ABDUL MAALIK GADDI, J. All these Constitutional Petitions involve a common question as to the eligibility of the contesting candidate(s) being disqualified or otherwise in terms of Article 63(1)(d) of the Constitution of the Islamic Republic of Pakistan, 1973 and were -therefore, heard together and are being decided through this common order .
2. Facts necessary for the disposal of these petitions are that the respondent No.4 namely Haji Khan and Ahmed Ali Khan submitted their nomination papers separately before the Returning Officer on the seat of NA-205 Ghotki-II, which fell vacant on account of the death of the Ex-MNA. The Election Commiss ion of Pakistan announced the schedule for the Bye-Election vide its Notification dated; 10.06.2019, to be held on 18:07.2019.
3. The petitioners being voters submitted their objections separately on 16.06.2019 against the nomination papers of the respondent No.4 before the Returning Officer and raised the following legal and factual grounds for rejection of the nomination papers of the said respondent in the said petitions, which are as under; "The candidate namely Ahmed Ali Khan in the CPs Nos. D-1004 and 1006/2019 is/was the Chairman of the Town Committee Khangarh @ Khanpur , whereas the candidate namely Haji Khan in C.P.No.D-1005/2019 is the Chairman of the District Council Ghotki, which fell within the definition of "Service of Pakistan", and being person in the office of Chairman and Mayor holds the office of profit in the "Service of Pakistan" are disqualified to contest the Elections in terms of Article 63(d) of the Constitution of Pakistan, 1973. The Candidates are disqualified to become the Members of the National Assembly in terms of Article 63(d) of the Constitution of Pakistan, 1973 and Section 60(2) (a) of the Elections Act, 2017. The section 79(2) of the Sindh Local Government Act, 2013 provides the Executive Powers of the Council, which shall vest in and be exercised by the Mayo r or Chairman, as the case may be, either directly or through any person authorized by him in accordance with the Rules. Since the candidate namely Ahmed Ali Khan is the Chairman of the Town Committee Khangarh @ Khanpur , and the other candidate namely Haji Khan is the Chairman of the District Council Ghotki, hence they are disqualified to contest the Elections of NA-205, Ghotki-ll, in terms of Article 63(1)(k) of Constitution of Pakistan, 1973. In view of above the Nomination Papers of the Candidates may be rejected."
4. It appears from the record that the objections raised by the petitioners were replied in detail by the said respondents separately by mentioning the legal position to the effect that they have been elected member/chairman of Sindh Local Government but were not appointed/employed by the Local Government, therefore, their offices do not come within the definition of "Service of Pakistan" as envisaged under Article 260 of the Constitution of Pakistan, 1973 and that the post of the Mayor or Chairman of any council has not been declared either by the Provincial or Federal Government or by any Court of law, being "Service of Pakistan" but are out of the definition provided under Article 260 of the Constitution of Pakistan, 1973 and further more they have not been appointed/employed as a Chairman or member of the council but they have been elected through legal process of Elections of Local Government.
5. It reflects from the record that the returning officer of the said constituency after hearing the parties accepted/allowed the nomination papers of Ahmed Ali Khan whereas the nomination papers of Haji Khan were rejected.
6. However , on appeals after hearing the parties in Election Appeal No.S-02/2019 filed by Haji Khan before Appellate Tribunal of this Court was allowed whereas the appeal filed by Aitzaz Ali Pitafi (Election Appeal No.S- 03/2019) and Agha Qurban Ali (Election Appeal No.S-04/2019) against the acce ptance of nomination papers of Ahmed Ali were dismissed vide a common order dated; 25.06.2019.
7. Being aggrieved and dissatisfied with the order dated; 25.06.2019, passed by the Appellate Tribunal of this Court, the petitioners have filed these Constitutional Petitions with a prayer that the said impugned order , which is against law and facts, be set-aside and the nomination papers of the respondent No.4 in three petitions be rejected.
8. It is argued by the learned counsel for the petitioners that impugned order dated; 25.06.2019, passed by the Appellate Tribunal is not only illegal and unlawful but so also are against the Constitution of Pakistan and have been passed without any lawful authority and in violation of the provisions of Articl es 63(1)(d), 63(1)(k), 260 of the Constitution of the Islamic Republic of Pakistan, 1973, Section 60(2)(a) and 62(9)(a) and 231 of the Elections Act, 2017; that the learned Election Tribunal has failed to appreciate that provision of Sindh Local Government Act, 2013, particularly section 79(2) is a pari-materia with the provisions of section 64(2) of Punjab Local Government Act, 2013 and in this connection, he has taken to us various Section and Article of the relevant provision of law and was of the view that if these sections and articles were taken into consideration, the respondents Nos.4 in these petitions have no case for participation in Election but the learned Appellate Tribunal without considering all these aspects of the case in its true perspective allowed the respondents Nos.4 in these petitions to participate in Election; that besides the respondents Nos.4 in these petitions being Chairman of the District Council, Ghotki and Chairman of the Town Committee Khangarh @ Khanpur respectively , which fell within the definition of "Service of Pakistan" and being person in the office of Chairman and Mayor holds the office of the profit in "Service of Pakistan" are disqualified to contest the Election in terms of Article 63(1)(d) of the Constitution of Pakistan, 1973, hence they are disqualified to contest the Bye-Elections of NA-205 Ghotki-II in terms of Article 63(1)(d) of the Constitution of Pakistan, 1973; that the resignation of Ahmed Ali Khan from the office of Chairman Town Committee Khangarh @ Khanpur after the cutof f date of filing nomination paper cannot cure the defect. During the course of arguments, learned counsel for, e petition er has also reiterated the same facts and grounds, which he has urged in the memo of petitions; however , in support of his arguments, he has relied upon the following case law;
1. PLD 2014 Lahore Page 330 (Pakistan Peoples Party v . Government of Punjab and others)
2. PLD 2018 Lahore Page 895 (Fozia Khalid v . Election Appellate T ribunal and others)
3. PLD 2004 SC Page 479 (Muhammad Ayub v . Ubedullah Khan and others)
4. PLD 2019 SC Page 201 (Suo Motu Case No.8 of 2018 and Civil Misc. Application No.649-L of 2018 along with other petition)
5. PLD 2007 SC Page 52 ( Hafiz Hamdullah v . Saifullah Khan and others)
6. 2013 SCMR Page 1246 (Sadiq Ali Memon v . Returning Of ficer, NA-237, Thatta-1 and others)
7. 2016 MLD Page 1953 (Syed Sadaruddin Shah v. Provincial Election Commission through DEO and 4 others)
8. PLD 1997 SC Page 32 (Shahid Nabi Malik and another v. Chief Election Commissioner , Islamabad and 7 others)
9. PLD 2018 SC Page 1 14 (Muhammad Hanif Abbasi v . Jahangir Khan T areen and others)
10. PLD 1989 Karachi Page 404 (Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and others)
11. PLD 1975 SC Page 244 (Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others )
12. Notification dated; 14th June, 2018, issued by the Election Commission of Pakistan.
9. As against this, learned counsel for the respondent No.4 in the above petitions has supported the impugned order passed by the learned Appellate Tribunal of this Court dated; 25.06.2019 and submits that the impugned order is perfect in law and on facts; that the respondent No.4 never held an office of the profit in the service of Pakistan and is qualified to contest the present Election under the law; that the allegations of the petitioners that lite respondent No.4 (Ahmed Ali Khan), who prior to his resignation dated; 16.04.2019, was holding the position of Chairman Town Committee Khangarh Khanpur and thus, fell within the prohibition of Article 63(d) of the Constitution of Pakistan, 1973 is miscon ceived in law; that the order of the Election Appellate Tribunal is well reasoned and a speaking order; that learned counsel while reiterating the contents of the counter affidavit of respondent No.4 has also taken to us to the various provisions of the Constitution of Pakistan, 1973 as well as the provisions of SLGA and PLGA and submits that the respondent No.4 (Ahmed Ali Khan and Haji Khan) are competent to participate in Bye-Election. In support of his arguments, he has relied upon the following cage law;
1. PLD 1997 SC Page 32 (Shahid Nabi Malik and another v. Chief Election Commissioner , Islamabad and 7 others )
2. PLD 1975 SC Page 244 (Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others )
3. PLD 2006 SC Page 602 (Muhammad Mubeen-Us-Salam and others v. Federation of Pakistan through Secretary , Ministry of Defence and others)
4. 2010 PLC (C. S.) Page 1308 (Syed W ajih-Ul-Hassan v . Muhammad Khalid Alvi and 3 others),
5. PLD 2016 SC Page 151 (Ghazanfar Ali v. Appellate Authority/Additional District Judge Sahiwal and others)
6. 1971 (3) SCC 870 (Shivamurthy Swami Inamdar and Veerabhadrappa Veerappa v. Agad Sangana Anadanappa and Chanbasangouda Hanumanthagouda Patil and another)
7. AIR 1975 SC Page 575 ( Karbhari Bhimaji Rohamare v . Shanker Rao Genuji Kolhe and others).
10. Learned DAG at the time of hearing of these petitions, files para-wise comments of respondent No.3, which is in-fact are not in detail; however , during the course of arguments, he has relied upon the comments filed by him and submits that the order of this Court shall be implemented.
11. Learned AAG has not filed any comments.
12. We have carefully heard the arguments of learned counsel for the parties and have gone through the available record.
13. In these 0:institutional Petitions, there is only one legal controversy and that is in respect of eligibility of the contesting candidate(s) viz-a-viz their holding of office of Chairman District Council Ghotki and Chairman Town Committee Khangarh @ Khanpur . As observed above, the respondents Nos.4 in these petitions finally have been allowed to contest the Election by the Election Tribunal vide his detail order dated; 16.04.2019 but the learned counsel for the petitioners has still disputed such acceptance and has prayed for decision of these petitions on the ground that the respondents Nos.4 were ineligible to contest the Bye-Election in view of the objections already filed by the petitioners.
14. In order to have a better understating of the controversy in hand, it would be advantageous to refer to the relevant provisions of the Act and the relevant Articles of the Constitution, including S.37(5) of the Sindh Local Government Act, 2013, Article 63(1)(d) and Article 260 of the Constitution.
Article 63 Disqualifications for membership of Majlis-e-Shoora (Parliament).-( 1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament) if-.
(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or Section 37. Prohibition on dual members.
(5). If a member of council is elected as a member of the Parliament or Provincial Assembly , his seat as member of the Council shall stand vacated on his taking oath as a member of the Parliament of Provincial Assembly , as the case may be".
Article 260 (Service of Pakistan)
"Service of Pakistan " means service, post or office in connection with the affairs of the Federation or of a Province, and include all Pakistan-Service, services in Armed Forces and in other servic e declared to be a service of Pakistan by or under the Act of [Majlis-e-Shoora (Parliament)] or of Provincial Assembly , but does not include service as Speaker ."
15. Perusal of Article 63(1)(d) of the Constitution reflects that a person shall be disqualified from being elected or chosen as a member of Parliament, if he holds and office of profit in the service of Pakistan other than an office declared by the law not to disqualify its holder , whereas, under Article 260, service of Pakistan is defined and means service, post or office in connection with the affairs of the Federation or of a Province and includes all Pakistan-Service, services in Armed Forces and other service declared to be a service of Pakistan by or under the Act of Parliament or Provincial assembly , but does not include various other persons which are not relevant for the present purpose. For the present purpose , the matter which requires appreciation is that whether a Chairman of a Council or Town Committee, or for the matter a Mayor of a City can be called to be holding an office of profit in the service of Pakistan. Learned counsel for the respondent has also referred to Article 140(A) of the Constitution in support of his contention that a Local Government does not fall within the Province anymore.
16. It is a matter of fact that the respondent No.4 are elected Members/Chairman of Sindh Local Government, but were not appointed/employed by the Local Government as such in our view, their positions do not come in the definition of the "Service of Pakistan" as envisaged under Article 260 of the Constitution of Pakistan, 1973. The post of Mayor/Chairman or any council has not been declared by the Provincial or Federal Government or any Court of law, being the "Service of Pakist an" but are out of definition provided under Article 260 of the Constitution of Pakistan, 1973.
17. It is pertinent to mention here that firstly , it must be established that the office in question i.e. service of Pakistan is an office of profit, controlled by the Provincial Government, having authority to appoint and remove the Chairman. This admittedly is not the position as the contesting candidates are firstly elected representatives, and secondly , after their Election as member of the District Council or Town Committee, they have been further elected as Chairman by the elected members and can only be removed from such post through a no confidence motion, as provided in law .
18. During the course of arguments, we have specifically asked the question from learned counsel for the petitioners whether the respondent No.4 in the said C.Ps have been employed or appointed by the Government.
He has replied in negative. When they are not appointed or employed in service of Pakistan then how they would be debarred to contest the election. Learned counsel for the petitioner during the course of arguments has placed his much reliance to the case of PLD 2014 Lahore 330 relevant page 338 (Pakistan People' s Party v. Government of Punjab and others ), and submits that facts of this case law attracts-in the present circumstances of the case and supports the version of petitioners. This fact has been denied by the counsel for respondent No.4. However , on perusal of the said case law, the said case law is distinguishable to the facts and the question involved in this matter for the reasons that this pertains to Punjab Local Government Act, 2013. In the said case law Article 63 was not in question. No determination has been made in this case law with regard to service of Pakistan. Nothing has been provided in the provision of law that the Government can appoint or remove the Chairman or member , therefore, in our view Chairman or the elected member of the Local Government do not fall in the category of service of Pakistan. In this regard we are supported by case law reported in PLD 2016 SC Page 151 (Ghazanfar Ali v. Appellate Authority/Additional District Judge, Sahiwal and others).
19. In view of the above stated facts and circumstances, we have come to the conclusion that the learned Appellate Tribunal has rightly allowed the respondent No.4 to contest the Election by rejecting the case and claim of the petitioners through valid and sound reasons. No interference is required by this Court in the impugned order of learned Appellate Tribunal.
20. Needless to say that generally in an election process; the High Court cannot interfere with by invoking its constitutional jurisdiction in view of Article 225 of the Constitution of Islamic Republic of Pakistan, 1973; however , this is subject to an exception that where no legal remedy is available to an aggrieved person during the process of election or after its completion against the order of an Election Functionaries, which is patently illegal, without jurisdiction being coram-non-judice he can press into service Constitutional Jurisdiction of the High Court in terms of Article 199 of the Constitution. During the course of arguments, we have also asked the question from the learned counsel for the petitioners to point out any jurisdictional defect or patent illegality in the impugned order passed by the Appellate Tribunal, though he has reiterated his assertions as stated in the memo. of petitions but did not reply satisfactorily . Therefore, on this ground also these constitutional petitions are not maintainable under the law. The case law cited by the learned counsel for the petitioners has also been perused and considered by us but did not find applicable to the facts of the present case, therefore, the said case laws as well as notification dated; 14th June, 2018, issued by the Election Commission of Pakistan are not helpful to the petitioners.
21. For the aforesaid facts and reasons, the captioned Constitutional Petitions having no merits are dismissed along with listed application.