WIQAR AHMAD, J. Petitioner has brought instant constitutional petition with the prayer that respondent No. 3 may be declared disqualified to contest any election in Pakistan and that the Act of respondent No.2, i.e. Returning Officer City/Tehsil Mayor for Abbottabad, whereby he had accepted nomination papers of former, be declared as without lawful authority, null and void.
2. The reason due to which petitioner was objecting candidature of respondent No. 3 was that said respondent was having dual nationality of Pakistan as well as Australia. He was claimed to be disqualified under Article 63
(1) (c) of the Constitution of Islamic Republic of Pakistan, 1973 (herein after referred to as "Constitution"). Other objections relating to concealing source of income by respondent No. 3 had also been raised in the petition, but same were not pressed at bar. Besides, petitioner has never filed any such objection regarding source of income of respondent No. 3 before the Returning Of ficer.
3. On last date of hearing, i.e. 02.03.2022, respondent No. 3 appeared along with his counsel namely Sardar Nasir Aslam Khan, Advocate, and the latter also filed Vakalatnama on his behalf. Mr. Mohsin Kamran, Advocate accepted notice on behalf of respondent No. 1 and 2. Respondent No. 3 had not denied that he was having nationality of Australia, which admission of him and his counsel were recorded in relevant order of the day, which is reproduced hereunder for ready reference:- "Respondent No. 3 present in court, accepts notice of this petition. Sardar Nasir Aslam Khan, Advocate, also submitted his power of attorney on his behalf Respondents No. 1 & 2 are being represented by Mr. Mohsin Kamran, Advocate, who also accepts notice on their behalf Respondent No. 3 as well as his learned counsel admitted before the Court that respondent No. 3 is also having nationality of Australia. After admitting it, learned counsel for the petitioner contends that Section 78 of the Khyber Pakhtunkhwa Local Government Act, 2013 does not prohibit dual national from contesting local bodies elections in the Province of Khyber Pakhtunkhwa. Learned counsel for the petitioner seeks time to prepare the case on said proposition. On said question, notice be also issued to the learned Advocate General Khyber Pakhtunkhwa which is to be conveyed through the learned Assistant Advocate General (Mr. Sajid-ur-Rehman present in court in some other cases), who accepted notice on behalf of former. To come up for arguments on 22.03.2022."
4. Learned counsel for the petitioner draw attention of this Court towards Rule 2 of the Khyber Pakhtunkhwa Local Councils (Conduct of Election) Rules 2021, herein after referred to as "Election Rules" and contended that it has been provided in the Election Rules that if no provision or procedure was provided for Local Government under the Act, such matters would be dealt with in the manner as provided in the Election Act 2017 and rules made thereunder. Learned counsel also referred to sub Rule(3) of Rule-3 of the Election Rules and stated that it has further been provided therein that all words and expressions used but not defined in the Rules would have same meaning as were given to them in the Election Act and Rules made thereunder. On such analogy, learned counsel for the petitioner proceeded further and relied upon Section 231 of the Election Act, 2017, wherein it has been provided that "The qualifications and disqualifications for a person to be elected or chosen or to remain a Member of the Majlis-e-Shoora (Parliament) or a Provincial Assembly shall be such as are provided in Articles 62 and 63 of the Constitution." Learned counsel thus contended that Article 63 would be deemed to have been applicable to the Local Bodies Elections as well, and when same Article is found applicable to the Local Bodies Election, then respondent No. 3 would naturally be ousted of contest of the Local Bodies Elections as being disqualified under Article 63(1) (c) of the Constitution.
5. Learned counsel also submitted that Section 78 of the Khyber Pakhtunkhwa Local Government Act, 2013, hereinafter referred to as "Act" had only provided for qualifications and disqualifications have never been provided under the Act, or Rules framed thereunder , therefore, while making resort to the provisions of Rule 2 of the Election Rules, Article 63 shall be adopted so as to fill up vacuum of disqualification provision in the Act and Rules made thereunder .
6. Learned Counsel next contended that a dual national would have divided loyalties and should not be allowed to contest elections to a post like Mayor of a Tehsil Council. In order to bolster his submissions, learned counsel relied on judgment of the Honourable Supreme Court of Pakistan, rendered in the case of "Syed Mehmood Akhtar Naqvi Vs. Federation of Pakistan through Secretary Law and others" reported as (PLD 2012 SC 1089 ).
Learned counsel also placed reliance, partly on the judgment of august Supreme Court of Pakistan rendered in the case of "Muhammad Ibrahim Shaikh Vs. Government of Pakistan through Ministry of Defence and others" reported as (PLD 2019 SC 133) and in a Suo Motu Case No. 8 of 2018 reported as (PLD 2019 SC 201 ).
7. Sardar Nasir Aslam Khan, Advocate while representing respondent No. 3 contended that the fact that respondent No. 3 had been dual national, would not debar him from contesting Local Government Elections as the referred bar of disqualification has not been provided in Section 78 of the Act. He further added that such a bar could not be imported to law as it has not been specifically provided. Learned counsel for respondent No. 3 further contended that there should be no conflict of interest for Mayor of the Tehsil Council as, such a Mayor of Local Government is not supposed to take decisions which may be in conflict with interest of any foreign nation.
Learned counsel while making reliance on a judgment of the Honourable Supreme Court of Pakistan, in the case of "Zahid Iqbal Vs. Hafiz Muhammad Adnan" reported as (2016 SCMR 430), contended that provisions of the constitution could not be imported in the Act.
8. Ms. Isma Urooj, appearing on behalf of respondents No. 1 and 2 contended that it has been provided in Section 229 of the Election Act, that qualifications and disqualifications of Local Bodies Elections would be regulated according to laws of the respective provinces and therefore, resort may not be had to the qualifications and disqualifications provided for members of Parliament under the Constitution.
9. Mr. Sajid-ur-Rehman Khan, learned Assistant Advocate General also supported arguments of learned law officer representing respondents No. 1 and 2.
10. W e have heard arguments of learned counsel for the parties and perused the record.
11. We would first take main argument of learned counsel for the petitioner which related to applicability of disqualifications provided under Article 63 (1) (c) of the Constitution. It is quite apparent that Section 78 of the Local Government Act, inter-alia requires a person to be citizen of Pakistan so as to be qualified to contest election of Local Bodies, established under the Act. For ready reference, clause (a) of Sub Section (1) of Section 78 of the Act is reproduced as under:- "78. Qualifications for candidates and elected members. ---(1) A person shall qualify toto be elected or to hold an elective office or membership of a local council, if he-
(a) is a citizen of Pakistan; (b)___ "
12. There is no provision in Section 78 or anywhere else in the Act which says that a person shall be disqualified from contesting elections or remaining member or office holder of local bodies established under the Act, if he acquires citizenship of another country . On the other hand, such a provision is existing in Section 109 (2) (1) of the Punjab Local Government Act, 2019. Such a provision had also been existing in Representation of the People Act, 1979 in clause (c) of sub-Section (1) of Section 99. Such a connotation may also be found in clause (c) of sub Article (1) of Article 63 of the Constitution.
13. Learned counsel for the petitioner was contending that on the dent of Rule 2 read with sub-Rule (3) of Rule 3 of the Election Rules, the disqualification provided in Article 63(1)(c) would attract to the case of petitioner. We are afraid, we would not be able to agree with the submissions of learned counsel for the following reasons: A. Section 78 of the Act no doubt bears the heading, "qualification for candidates and elected members". But perusal of main body of Section reveals that same not only provides qualifications but also provides disqualifications as well. Particular reference in this respect may be made to disqualifications provided in clauses "(e), (f), (g), (h), (i), (j), (k), (1), (m), (n), (o), (p), (q) and (r)" of sub-section (1) as well as clause (a) and (b) of sub-section 2 of Section 78 of the Act. In this regard reference may also be made to sub-section (3) of the ibid Section where it is provided that if a question arises whether a member of local council has become disqualified from being a member, the chairman shall refer the question to the Election Commission for decision and sub- section (4) thereof provides that the Election Commission shall decide such question within 90 days.
Section 78 (a) substituted by Local Government Amendment Act, 2019, also provides for disqualification on the ground of defection. So it cannot be argued that the Local Government Act had not provided provisions for disqualification of a candidate leaving a vacuum to be filled by importing relevant clauses from the Constitution.
Heading or sub-heading of a section may not always be taken as conclusive guidance for the substance contained in main body of a provision. Heading or sub-heading of a section may be read in aid of interpretation but where text of a provision is not clear regarding an issue. These may not be used to limit or otherwise affect express text of a provision of law. In "Understanding Statutes" Mr. S.M. Zafar, while explaining the role of "heading and sub-heading" of a Section in interpretation of statutes, has opined:- "Headings of sections are part of the enactment, but the heading should not be taken into consideration when the language of the section is free from obscurity. Section or an Article may embody more than one matter and in such asituation, when diverse matters are prefixed by a singular heading, the heading cannot afford a key to interpret the Section or Article where a heading differs from the material it describes, this puts the Court on inquiry. However, it is most unlikely to be right to allow the plain literal meaning of the words to be overridden purely by reason of a heading Head notes of section and chapters cannot cut down the express meaning of the words occurring in the section.
However, where general words are preceded by the heading indicating a narrower scope, it is legitimate to treat general words as cut down by the heading.
Heading of section can be relied upon only when language of the section is vague and ambiguous. Heading in a statute can be referred to for the purpose of finding out the meaning of a doubtful expression in a section."
Similarly , Hon'ble Supreme Court of India while giving its judgment in the case of "M/s. Frick India Ltd. Vs. Union of Indian and others" reported as AIR 1990 Supreme Court 689, has also held that "headings prefixed to sections or entries cannot control the plain words of the provisions". It was explained therein that same could be referred for the purpose of construing the provisions when the words used in the provision were not clear . Further reliance in this respect may also be placed on the judgments reported as PLD 1987 Lahore 336 and 1994 CLC 2214 . Hence, in the case in hand text of Sectio n 78 was clear in providing for disqualification as well and heading of the Section could not be taken as a conclusive guide.
The disqualifications provided in Section 78 as well as 78-A, therefore, left no void to be filled by importing provisions from the constitution. Hon'ble Supreme Court of Pakistan has also clarified this aspect of the matter while giving its judgment in the case of "Zahid Iqbal Vs. Hafiz Muhammad Adnan" reported as (2016 SCMR 430) by observing that provisions of the Constitution related to qualifications or disqualifications of Majlis-e -Shoora (Parliament) or Provincial Assembly may not be imported in the Local Government Act of the Province of Punjab.
Relevant part of the judgment of august apex Court is reproduced for ready reference:- "It is neither the duty nor the function of the Court to read into or delete any word and or provisions in an enactment, unless specifically adopted or imported by reference. Courts do not legislate but interpret statute according to their ordinary and plain meaning and do not import and or supply word or provisions from "any other law", no matter how laudable and desirable it may appear to be. In this view of the matter, disqualification prescribed under "any law" or even in "The Constitution" unless as noted above are specifically made applicable or adopted by reference, specially penal and or castigatory provisions contained in "any law" cannot be imported, read into or inflicted on a person who put forth his candidature to be elected as a Member or to hold an elected office of Punjab Local Government but his qualification and or disqualification for any office of the Punjab Local Government is to be adjudged strictly under the provisions of "the Act, 2013" only."
B. Without prejudice to above stated reasons, Section 231 of the Election Act, could not be pressed into service as same was specific in its import and aimed at providing qualifications and disqualifications for members of Majlis-e Shoora (Parliament) or Provincial Assembly. Same was not a provision related to Local Bodies Election. Election Act, on the other hand, has provided a specific provision i.e. sub Section(2) of Section 229 of the Act, wherein it is specifically mentioned that qualifications and disqualifications of a candidate in Local Government Elections or a member of Local Government would be decided under the applicable Local Government Law. The applicable law in the case in hand is Khyber Pakhtunkhwa, Local Government Act, 2013, particularly , its Section 78.
C. In addition to the reasons mentioned above, it is also clear that purpose and object of Rule-2 as well as sub- Rule(3) of Rule-3 of Election Rules could not be extended to the effect so as to allow or to implant a disqualification provided in Article 63, into Local Government Act. It should not be lost sight of that the Election Rules have been framed under Section 112 of the Act. Section 112 had authorized Government to make rules for carrying out purposes of the Act. Sub-Section(3) of Section 112 has expressly provided that the rules made should inter-alia, be consistent with provisions of the Act. When the Act was itself found providing provisions relating to disqualification, then such Rules may not be given the effect of importing such disqualifications from the Constitution.
14. Next question for our consideration was "Whether a person on acquiring nationality of a foreign state may still remain a citizen of Pakistan?" This was also important question for determination of the instant case in the sense that if answered in negative, then respondent No. 3 would stand disqualified for the reason that he has admittedly acquired citizenship of Australia. In this respect, Section 14 of the Pakistan Citizenship Act, 1951 lays down a criteria wherein a general principle has been provided that if a person acquires citizenship of any foreign country, he shall lose citizenship of Pakistan, but while providing such general principle, certain exceptions have also been provided. One of those exceptions, which is important for our present discourse is that such an exception shall not be deemed to have applied to a person who is also citizen of United Kingdom, its former colonies or such other country as the Federal Government may, by notification in the official gazette, specifies in this behalf. Section 14, being relevant to the present controversy, is reproduced for ready reference:- "14. Dual citizenship or nationality not permitted. - (1) Subject to the provisions of this section if any person is a citizen of Pakistan under the provisions of this Act, and is at the same time a citizen or national of any other country he shall, unless he makes a declaration according to the laws of that other country renouncing his status as citizen or national thereof cease to be a citizen of Pakistan.
(IA) Nothing in subsection (1) applies to a person who has not attained twenty-one years of his age:
(2) Nothing in subsection (1) shall apply to any person who is a subject of an Acceding State so far as concerns his being a subject of that State.
(3) Nothing in subsection (1) shall apply, or shall be deemed ever to have applied at any stage, to a person who being, or having at any time been, a citizen of Pakistan, is also the citizen of the United Kingdom and Colonies or of such other country as the Federal Government may, by notification in the official Gazette, specify in this behalf
(4) Nothing in subsection (1) shall apply to a female citizen of Pakistan who is married to a person who is not a citizen of Pakistan."
As mention in the judgment of the Hon'ble Supreme Court of Pakistan, given in the case of "Muhammad Ibrahim Shaikh Vs. Government of Pakistan through Secretary Ministry of Defence and others" reported as PLD 2019 SC 133, nineteen countries have been notified by the Federal Government under the above reported Section law particularly its sub-section (3), whose names are also reproduced herein below:- Sr.#Name of Country Sr. # Name of Country
1. United Kingdome 11. Jordan
2. France 12. Syria
3. Italy 13. Switzerland
4. Belgium 14. Netherland
5. Iceland 15. United States of America
6. Australia 16. Sweden
7. New Zealand 17. Ireland 8.Canada 18. Bahrain 9.Finland 19. Denmark
10. Egypt Acquiring citizenship of the abovementioned countries shall not, ipso-facto cause stripping person of his status as Pakistani citizen.
15. It has therefore become manifestly clear that on acquiring citizenship of one of those countries mentioned above, a person does not loose Pakistani Citizenship but if he acquires citizenship of any other State not included in the above list, he shall loose citizenship of Pakistan. Reliance in this respect may be placed on observation of the august Supreme Court of Pakistan in the case of "Syed Mehmood Akhtar Naqvi Vs. Federation of Pakistan through Secretary Law and others" reported as (PLD 2012 SC 1089 ), wherein it has been held that:- "We reiterate that the dual citizenship held by expatriate and overseas Pakistanis is not the issue requiring adjudication in this case. The learned Attorney General and counsel representing some of the respondents appear to have confused dual citizenship with the Constitutional disqualification contained in Article 63(1)(c) ibid. We may clarify that section 14(1) of the Citizenship Act, 1951, confers upon Pakistan Citizens the right to hold the citizenship of certain other countries without having to forgo their Pakistani citizenship. The right, therefore, of Pakistani citizens to hold dual citizenship, as per law, remains very much a statutory right vested in them. The extent and scope of that legal right has no relevance to the question of disqualification relating to eligibility for being a member of Parliament or of a Provincial Assembly."
16. A similar view has also been reiterated by the Honoruable Supreme Court of Pakistan in the case of "Muhammad Ibrahim Shaikh Vs. Government of Pakistan through Secretary Ministry of Defence and others" reported as (PLD 2019 SC 133). Relevant findings given in the said judgment are also reproduced verbatim:- "In other words, a Pakistani citizen who acquires the citizenship of a country other than the 19 countries (including the UK) falling under Section 14(3) ibid mentioned above, shall cease to be a Pakis tani citizen unless he renounces his other nationality , by making a declaration according to the law of that country . "
17. From the list of countries notified under sub-Section (3) of Section 14 of the Citizenship Act, Australia may well be found in those countries within which, a person may continue his status as Pakistan National.
Respondent No.3 cannot, therefore, be treated to have lost citizenship of Pakistan by acquiring citizenship of Australia. He was qualified under clause (a) of Sub-Section (1) of Section 78, wherein the requirement was "being a citizen of Pakistan".
18. Another ground raised by learned counsel for the petitioner was based upon and arising out of observations of the honourable Supreme Court of Pakistan in the case of of Syed Mehmood Akhtar Naqvi (Supra). Learned counsel contended in this regard that loyalty of respondent No. 3, after acquiring citizenship of foreign State would be divisible and therefore, he would be disentitled to hold a public office in Pakistan. Honourable Supreme Court of Pakistan has observed that the provisions of sub-Article (1) of Article 63 could not be made applicable to the Elections of Local Bodies, while giving its judgment in the case of Zahid Iqbal (supra). Secondly , the observation as expressed by august Supreme Court of Pakistan in the case of Syed Mehmood Akhtar Naqvi (supra), had been diluted to a substantial effect in judgment rendered in the case of "Muhammad Ibrahim Shaikh Vs. Government of Pakistan through Secretary Ministry of Defence and others" reported as (PLD 2019 SC 133), wherein Hon'ble Supreme Court of Pakistan has observed:- "The statements regarding dual nationality in the extract reproduced hereinabove do not have a direct bearing on the instant matter which differs somewha t from the issue before the Court in Syed Mehmood Akhtar Naqvi's case (supra) which concerned the Framers' intent and the Constitutional bar again st dual nationality on elected representatives. However no such bar exists in the Constitution with respect to the non-elected government officials who are not required to take oath as the others are required to including elected representatives and members of the armed forces. Be that as it may, we cannot lose sight of the fact that divided loyalty does not necessarily mean disloyalty to Pakistan. There are many dual nationals or even foreigners of Pakistani origin for that matter who possess great love and affection for Pakistan and express it in the form of foreign remittances or by working in Pakistan, etc. Nonetheless, a real concern as raised by the opponents of dual nationality is that of divided loyalties leading to potential national security risks. It is in light of both the advantages and disadvantages of dual nationality that leads us to consider the adoption of a balanced approach where certain important positions in government service and public offices where indeed complete and undivided loyalty to Pakistan is required ought to be restricted to those who are citizens of Pakistan only. At the same time, keeping the door open for the Pakistani diaspora abroad who are an immense source of talent, skills, experience and competence, dual nationals and foreigners of Pakistani origin (and even non-Pakistani origin for that matter) ought to be allowed to work in various public and private sector entities in Pakistan such as health, education, etc. where they can share their wisdom, training, skills and learning and contribute to a better Pakistan."
19. Further ahead in said judgment, it was also concluded that it was for the Fede ral and Provincial Governments to consider inter-alia, whether they formulate negative list of posts within the Government to which citizens holding dual nationalities should not (normally) be appointed for reasons of safeguarding national security and vital national interest. Policy of the Provincial Legislatu re, while providing Section 78 was however , clear that it had not intended to debar dual nationals of the countries notified under sub-section (3) of Section 14 of The Citizenship Act, from holding public of fices in the Local Government Established under the Act.
20. Other objections raised relating to concealment of source of income of respondent No. 3 have not been pressed further at the bar. Besides, such objections have not been raised before the Returning Officer or appellate forum under the law .
Similarly, said objections required determination of factual controversy, which could not be taken under consideration under constitutional jurisdiction of this Court. Hon'ble Supreme Court of Pakistan in a good number of judgments has held that determination of factual controversy was the job of civil Court and such an exercise could not be carried on, in writ jurisdiction of High Court. In this respect, reliance may be placed on judgment rendered in the case of "Ahmad Developers v/s Muhammad Saleh" reported as "2010 SCMR 1057" wherein the Hon'ble Court had recorded the following observations; "Contest on factual controversy could only have been determined through a civil suit and not in constitutional jurisdiction before High Court. Such plea of private respondent was repelled in circumstances. Leave to appeal was declined."
Further reliance in support of said ratio may also be placed on judgments in "Suo Motu case No. 13 of 2007" reported as "PLD 2009 Supreme Court 217" and the case of "Sardar Naseer Ahmad Mooiani v/s Chief Executive/Chief Secretary Govt: of Baluchistan Quetta" reported as "2007 SCMR 105".
21. In the light of what has been discussed above, the instant constitutional petition was found divested of merits and same is accordingly dismissed. These are the reasons for our short order of even date which read as: "For reasons to be recorded later , this writ petition is dismissed. "