' Through this constitutional petition, the petitioner challenges an order dated 15-4-2013 passed by a learned Election Tribunal of this Court in Election Appeals No,24 and 125 of 2013, as common questions of law and facts were involved therein. Two separate petitions have been filed against the order of the learned Election Tribunal bearing W.Ps. Nos.9772 and 9773 of 2013. This judgment decides the instant petition as well as W.P. No,9773/13, as both arise out of the same order of the learned Election Tribunal.
2. Vide order dated 22nd April, 2013, notice was issued for service of the respondents in terms of section 14(7) of the Representation of People Act, 1976. The matter was taken up again on 23rd April, 2013, when we issued notice to the Infrastructure Project Development Facility (IPDF) as well the Ministry of Finance to depute a responsible officer to appear before us along with relevant record in order to establish the nature of the employment of the petitioner.
3. When the matter was taken up today, Mr. Adil Anwar, Chief Executive of 1PDF appeared and clarified the nature and scope of the service performed by the petitioner in the company.
4. The learned counsel for the petitioner submits that the sole ground relied upon by the learned Election Tribunal to reject the nomination paper of the petitioner was that based upon the terms and conditions of his service and perks and privileges, allegedly received by him during his association as an Advisor to the company, he fell within the definition of a person, who was in the service of Pakistan. Further the fact that he had resigned from the post of an Advisor on 29th March, 2013 but the acceptance of the same had not been formally communicated, persuaded the learned Tribunal to hold that his candidature was hit by the provisions of Article 63(1)(e) and (k) of the Constitution of Islamic Republic of Pakistan, 1973.
5. The learned counsel maintains that the questions about the terms and conditions of service of the petitioner, what was the extent, nature and scope of the work that he performed, whether or not log of activities of the petitioner were maintained and generally whether his services were of the nature, which made him an employee of the company or the Ministry of Finance were of a factual nature, which require recording of. Evidence. This exercise cannot be undertaken by this Court in the extraordinary, constitutional jurisdiction of this Court. He further submits that this inquiry cannot be undertaken as a pre-poll issue and cannot be probed into in the summary inquiry required to be undertaken by the Returning Officer as well as the learned Election Tribunal in exercise of their powers under the Representation of the People Act, 1976, or for that matter in proceedings before us, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. He submits that these are matters which are best left for determination in appropriate post poll proceedings.
6 The learned Standing Counsel does not seriously contest the assertions made by the learned counsel for the petitioner.
7. Despite repeated calls, none of the objectors has entered appearance, in spite of the fact that two notices issued under Section 14(7) of Representation of the People Act, 1976.
8. We have heard the learned counsel for the petitioner and gone through the documents appended with these petitions.
9, We find that IPFD is a company registered under section 42 of the Companies Ordinance, 1984 it is wholly owned by the Ministry of Finance. The petitioner was appointed as an advisor to the company through a notification issued by the Ministry of Finance dated 12th July, 2008. It appears that he did not draw any salary, was not a member of the Board and did not have any regular appointment' of the company as a regular employee. This is evident from the fact that no letter of appointment containing terms and conditions of service including salary, perks and privileges, was issued in his favour either by the company or by the Ministry of Finance. This fact is also evident from the language of the notification, which indicates that he was appointed as an advisor.
10. A perusal of Article 260 of the Constitution of Islamic Republic of Pakistan, 1973 shows that advisors to the Prime Minister as well as Chief Ministers are specifically excluded from the definition of persons in the service of Pakistan. Such advisors can be appointed in terms of B Article 93 of the Constitution of Islamic Republic of Pakistan. Admittedly, the said advisors work on a whole time basis and perform much more onerous duties compared to the petitioner, who appears to have been appointed as an advisor through a notification issued by the Ministry of Finance without specifically spelling out the terms and conditions of his service or the nature of duties to be performed by him. Using the analogy of. Article 260, if advisors appointed under the Constitutional mandate have been excluded from the service of Pakistan, prima facie it appears that the same benefit should be available to the petitioner as well. Admittedly, he performs a much less onerous duties being advisor of a company controlled by the Ministry of Finance. It also C appears that the petitioner is not in the service of the company, but is performing services for the company and is, therefore, not an employee of the company. There is' no credible material available on the record that may indicate that he was receiving any salary, other benefits, perks, privileges, house rent etc. From the company on regular basis. In fact the learned counsel on instructions has categorically denied that salary, house rent or other perks were received by the petitioner on regular basis as a part of compensation for petitioner's assignment. The Chief Executive Officer of the Company has also confirmed the aforesaid facts to us.
10(sic). We are, therefore, unable to agree with the reasoning adopted by the learned Election Tribunal to reject the nomination paper of the petitioner and disqualify him from the election process. We also find that the judgments relied upon by the learned Tribunal in support of the findings have been rendered in a different set of facts and circumstances and are not relevant to the facts and legal issues raised in this petition.
11. It is, however, clarified that through this judgment we are not recording definitive findings on the status of the petitioner, because we are not inclined to go into factual controversies and record evidence in this matter. Therefore, the objector is free to agitate the matter through an election petition, if so advised, if the petitioner is returned as a result of election.
12. In the facts and circumstances of the present case, the question whether the declaration/statements of the candidate in the nomination paper were false or incorrect in any material particular, cannot be ascertained without carrying out a factual probe through recording of evidence. This exercise cannot he undertaken in the present constitutional jurisdiction and could not have been gone into by the Returning Officer or the learned Tribunal in summary jurisdiction.
Therefore, keeping in view the constitutional requirement of due process laid down in Articles 4 and 10-A of the Constitution, this Court cannot determine with certainty, at this stage, whether qualifications/ disqualifications under Articles 62 and 63 of the Constitution are attracted against the candidate.
13. In view of the above, it is best that this matter be taken up by the Election Commission of Pakistan, if so advised, under Representation of the People Act, 1976 and dealt with in accordance with law in terms of pronouncements of the august Supreme Court of Pakistan in Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089).
14. For the afore-noted reasons, both the petitions are allowed. The order dated 15-4-2013 passed by the Election Tribunal is set aside. The order of the Returning Officer dated 6-4-2013 is upheld. A direction is issued to the concerned Returning Officer to include the name of the petitioner in the list of eligible 'candidates in terms of section 15 of The Representation of the People Act, 1976. In case the petitioner produces a letter from a political party in this regard for the purpose of allocation of symbol, if the same has not already been allocated to any person, such symbol shall be allotted to the petitioner.
15. Notwithstanding anything stated above, it is clarified that the findings recorded and observations made herein are based only on a tentative assessment of the material before us, in the facts and circumstances brought to our notice for the limited purpose of deciding this petition.
The Election Commission of Pakistan shall, however, be at liberty to independently exercise its powers on the basis of material before it and take appropriate proceedings and/or pass orders on the application of any interested party under the provisions of Representation of the People Act, 1976 without in any way being influenced by this order.
16. Petition allowed.