ANWAR HUSSAIN, J.---The Petitioner has filed Nomination Paper in the Election for the Seat of Member, District Council from UC No,4, Haji Sawan Khan Gopang, Taluka and District, Hyderabad (Rural).
2. The Respondent No,11, also filed Nomination Paper for the seat of Member, District Council from UC No, 4 Haji Sawan Khan Gopang, Taluka and District Hyderabad (Rural).
3. The Respondent No,11, filed Objections on the Nomination Paper of Petitioner before the Respondent No,8/ Returning Officer, Taluka Hyderabad (Rural) on the ground that the Petitioner is Chairman of Zakat and Ushr Committee, Taluka Hyderabad (Rural) and as such the Petitioner, being Public Servant as per Sindh Local Government Ordinance, 2013, is not qualified to contest in the Local Government Election.
4. The Petitioner submitted that on 8.9.2015, he has resigned from the said Chairmanship, which has been accepted and to that effect a Notification dated 8.9.2015, has been issued. Copy of said Resignation and Notification are available at pages 55 and 56, respectively of this Petition File.
5. The Returning Officer/Respondent No,8, after hearing the Petitioner and Respondent No,11 through their respective Counsel rejected the Nomination Paper of the Petitioner vide Order dated 2.10.2015, in the following terms:-- ' "The nomination form of candidate Haji Ghulam Ali Gopang son of Ali Nawaz Gopaing for the Member District Council is hereby rejected under Section 36(1) clause (e) of SLGA 2013 and Section 23 of Zakat and Ushr Ordinance repealed 1986 following the facts as under:--
1. He has remained Chairman Zakat Committee Taluka Hyderabad under notification No, DZ and UC/Hyd/43/2015 dated 3.2.2015.
2. He held his office under the Section 23 of Zakat and Ushr Ordinance repealed 1986.
3. He rendered his services in a statutory body which is owned/ controlled by the Government through a council i.e, Sindh Zakat council under Section 36(1)(e) of SLGA 2013.
4. His resignation accepted on 8.9.2015 under the notification No, 665 dated 8.9.2015 in continuation of his hand written resignation dated 8.9.2015.
6. Against the above order, the Petitioner filed Election Appeal No, 22 of 2015, before the Respondent No,6/ Appellate Authority i.e, District Judge, Hyderabad Sindh, which Appeal was dismissed vide Order dated 10.10.2015, which is impugned in this Petition by the Petitioner.
7. Counsel for Petitioner submits that the Petitioner is not disqualified as per Section 36(1)(e) of Sindh Local Government Act, 2013 and is not Public Servant under Section 21, P.P.C. The Petitioner has resigned on 8.9.2015 and even otherwise the rejection of Nomination Paper by the Returning Officer and dismissal of Petitioner's Appeal are not legal and proper. Hence the same are liable to be set-aside. The Petitioner's counsel relied upon the case of Tariq Hussain reported in 2013 CLC 1620 and an unreported Order dated 27.10.2015 passed by this Court in Constitution Petition No,D- 2366 of 2015.
8. Case of the Respondent No,11, is that as per Section 23 of Sindh Zakat and Ushr Act, 2011, Section 36(1)(e) of Sindh Local Government Act, 2013 and Section 21, P.P.C., the Petitioner is not qualified to contest the Election and the case of Muhammad Khan reported in PLD 2014 Balouchistan 128 has been referred to in the impugned order.
9. Heard and considered the submissions of the parties and learned A.A.G. Has also been heard.
Perused the records; gone through the Impugned Orders, the Provisions of Law and citations referred to in the matter.
10. For the purpose of adjudication of the main controversy in this matter the relevant Provisions of Law are being reproduced herein-below. Section 36 of Sindh Local Government Act, 2013 "Section 36.... Disqualifications for candidates as members. (1) A person shall be disqualified from being elected or chosen as and from being a member of the Council, if -
(a) .............
(b) ..........
(c) ..........
(d) ..........
(e) he is in the service of any statutory body or a body which is owned or controlled by the Government or the Federal Government or Council or, in which any of such Government or Council has a controlling share or interest, except the holders of elected public office; provided that in case of a person who has resigned or retired from any such service, a period of not less than six months has elapsed since his resignation or retirement; or AND ' Section 23 of Sindh Zakat and Ushr Act, 2011 "23. Certain persons to be public servants.---Every person engaged in, or employed for, the administration of this Act shall be .Deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code.
Explanation.---For the purposes of this section, the Chairman and members of the District Committee and Local Committee shall be the persons engaged in the administration of this Act."
11. Admittedly the Petitioner being Chairman of Zakat and Ushr Committee, has resigned on 8.9.2015, and Notification to that effect issued on 8.9.2015, and statutory period of six months has not elapsed since Petitioner's said resignation.
' The Zakat and Ushr Committee is a statutory Committee under Sindh Zakat and Ushr Act, 2011, and being controlled by Government and having interest therein in view of Section 36(1)(e) of Sindh Local Government Act, 2011.
12. Further as per Section 12 of the said Act, 2011, Zakat Council to exercise general superintendence and control over the matter relating to Zakat and Ushr particularly Zakat Funds in the Province and such Council shall consist of Chairman, Retired Judge of High Court nominated by the Government, Secretaries Finance, Local Government, Health, Education, Social Welfare and Zakat and Ushr Departments and the Council shall consist of District, Taluka and Local Zakat and Ushr Committees as per provisions of Sections 14, 15 and 16, respectively, of the said Act, 2011.
13. Even as per Section 23 of the said Act, 2011 the Petitioner is engaged in the administration of this Act, and as such the Petitioner is a Public Servant within the meaning of Section 21, P.P.C., and Explanation of the said Section 23 also provides that the persons i.e, Chairman, Member of District and Local Committee shall be the person engaged in the administration of this Act. The case of Muhammad Khan reported in PLD 2014 Balochistan 128 supports the case and contentions of.
Respondent No,11. There is another latest case of Zulekhan Bibi reported in 2015 YLR 1584, in respect of the same situation.
14. The case of Tariq Hussain, which is earlier to the case of Muhammad Khan and an un-reported Order passed in C.P. No, D-2366 of 2015, relied upon by the learned counsel for Petitioner are not helpful to the Petitioner's case as the facts of that very cases are different from the case in hand.
Further the Returning Officer and District Returning Officer have rejected the Nomination Paper of the Petitioner and have given valid reasons for the same as such requires no interference by this Court.
15. Hence, this Constitution Petition stands dismissed accordingly along with pending applications.