ZAFFAR HUSSAIN MIRZA, J.--The question raised in this appeal under section, 48 (3) of the Senate (Election) Act, 1975, is whether respondent No.l, Lt.-Gen. (Retd.) Saeed Qadir, is a "technocrat" within the meaning of the terms "as defined in clause (b) the Explanation to Article 5 (1) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 (hereinafter referred to as the "P.O.
No.5 of 1977").
2. The appellant Dr. Aon Muhammad Khan who is a medical doctor and respondent No. 1 as well as respondents Nos. 2 to 30, contested elections to the Senate for the 5 seats reserved for ulemas, technocrats and other professionals to be filled by the members of the Provincial Assembly having single transferable vote" under a system of proportional representation. In the aforesaid election respondents Nos. 1 and 4 other contesting candidates were declared elected to the aforesaid five reserved seats. The appellant being dissatisfied with the result of the election filed an election petition under section 34 of the Senate (Election) Act, 1975, in which he challenged the entire election held on 14th March, 1985, and particularly called in question the election of 3 returned candidates, namely, Shaikh Ihsanul Haq Piracha (Respondent No.2), Col. (Retd) Syed Mukhtar Hussain Shah (Respondent No.3) and Lt,-Gen. (Retd) Saeed Qadir (Respondent No.l). According to the averments made in the election petition by the appellant, these three returned candidates were not technocrats. Besides the said plea some other allegations were also made by the appellant. However, at the time of settlement of issues, after respondent No.l and others filed their written statements controverting the allegations made in the petition, the appellant dropped the allegations in respect of the election as a whole as well as against the individual successful candidates except the respondent No.l and submitted that he was challenging the election of respondent No.l only. Thus the only issue tried by the Election Tribunal was framed as under:- "Whether respondent No.18, Lt.-Gen. (Retd) Saeed Qadir, is not a technocrat as defined in Article 5 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977."
3. In the reply contained in his written statement, respondent No.l asserted that he is a technocrat within the meaning of the relevant law and in support of this plea he gave the background and history of his career in order to demonstrate his professional competence experience and expertise for administering and managing operational or policy making units. It will be of advantage to set out below the averments made by the respondent No.l in this behalf in the written statement which are as follows:- "The answering respondent graduated from the Pakistan Military Academy, at Kakul and was then sent to the Loughborough College of Technology Leicestershire England from where he obtained a diploma in Automobile Engineering after a 3 years course of study. The answering respondent claims expertise and experience in engineering and logistics. The answering respondent's professional competence was recognised by the Institution of Engineers, Pakistan, which is the highest professional engineering body in the country, when they made him an honorary fellow of the Institution in 1984. As regards professional experience the answering respondent was in the Electrical and Mechanical Engineering (EME) Corps of the Pakistan Army and was promoted to the rank of Lieutenant --Colonel on 1-1-1958 after graduation from the Staff College Quetta. The answering respondent has 25 years and 3 months experience to his credit as under:- (i)1958-60 in charge of the only tank workshop in Pakistan (502Central Workshop Rawalpindi).
(ii)January 1960-January 1962. Direct responsibility for theorganization,training and policy making for the Corps of Electrical .andMechanical Engineering which at that time had a strength of about 500 qualified engineer officers and 20,000other personnel approximately.
(iii)1962-64.Direct control of policy planning for all major electrical andmechanical engineering workshops of the Pakistan Army inthe whole country. Before being assigned to this appointment theanswering respondent was sent to Australia to attend an Industrial Engineering course for 6 months.
(iv)1964-66. Command of the first Aviation Engineering battalion. It is a matter of record that when the answering respondent took over the serviceability state of aviation aircraft was 34$. When he relinquished command the serviceability state was being maintained at 85-90$.
(v)1966-68. Command of a major engineering workshop at Karachi which serves and supports the Sind- Baluchistan area (602 Combined Workshop).
(vi)1969-70. In charge of Setting up engineering facilities for repair, overhaul and rebuild of rotary and fixed wing aircraft at Rawalpindi.
(vii)1970-71. Promoted to rank of full Colonel and appointed as Inspector, Corps of Electrical and Mechanical Engineers.
(viii)1971-72. Operational duties during the war in logistic area Headquarter for providing engineering support to Corps troops etc. (ix)1972-73. Colonel Administration Corps Headquarters with direct responsibility for Corps Logistics Plans and functional performance of all Corps Logistics infrastructures.
(x)1973-75. Promoted to the rank of Brigadier and posted as Director Logistics at tile GHQ of the Pakistan Army. During this period the answering respondent authorised the first ever Field Service Regulations on Logistics for the Pakistan Army. This is used as a teaching manual by all the institutions of the Pakistan Army. As it is a restricted document it has not been attached with this written statement but will be shown to this Honourable Tribunal at the time of hearing. During this period the answering respondent also attended an advanced management course for General Officers, in the United States.
(xi)1975-76. Deputy Quarter Master General in charge of planning and administering construction programme for the Pakistan Army and also policy planning and administering Logistic support for the Pakistan Army in co-ordination with Federal and Provincial Governments.
'(xii)1976-84. Became the first Electrical and Mechanical Engineering Officer to be appointed as Quarter Master General (with the rank of Major General). The Q.M.G. Is the Chief of Logistic. Because he administers and controls and lays down policy and plans for the entire logistics support and infrastructure o1 the Pakistan Army. The Q.M.G. Is also responsible for logistics support to the other two services viz. The Navy and the Air Force. In March, 1980 the answering respondent was promoted to the rank of Lieutenant-General in the same post. During this period (1978-84) the answering respondent was awarded Sitara-e-Basalat and Hilal-e-Imtiaz (M) in recognition of his professional competence.
(xiii)1978-85. Chief Executive and then, from 1981 onward, Chairman National Logistics Cell. This appointment was held by the answering respondent in addition to his duties as Q.M.G. The answering respondent created the National Logistics Cell (NLC). He did so in pursuance of a directive received by him on 23-7-1978. By 6-8-1978 the action plan prepared by the answering respondent was approved by the Federal Cabinet. The NLC successfully undertook the re- organisation of Karachi Port so as to clear 2 million tons of wheat through this port in between October, 1978 and April, 1979. The NLC moved this wheat from Karachi to the remotest corners of the country. During the last 7 years the NLC has organized the Karachi Port, built and rehabilitated hundreds of miles of roads, undertaken rapid handling of rice crop exports, built 150,000 tons of rice storage facilities, built another 150,000 tons of fertilizer storage facilities, transported fertilizer to the remotest corners of the country, moved crude oil from the oilfields throughout the country and operated and maintained the largest transport fleet in Pakistan. The NLC has also created large engineering workshop facilities, reorganized the Lahore Dry Port and established facilities in the country for major repairs of traction motor of locomotives for the Pakistan Railways.
(xiv)1981-85. Minister of the Federal Government incharge of the Ministry of Railways from 1981-83 and of the Ministry of Production from 1981-85. Thus, in the period 1981-83, the answering respondent was simultaneously Q . M.G. Of the Pakistan Army, Chairman National Logistics Cell, Minister for Railways and Minister for Production. As Minister for Production the answering respondent organized and activated the Experts Advisery Cell to monitor, collate, interpret and disseminate information on the performance of the public-Sector Industries including 9 major Corporations and 70 large manufacturing Units employing over 80,000 persons in the field of automobiles, cement, chemicals, fertilizer, heavy engineering, petroleum, steel and textile machinery manufacture. As Minister for Production one of the answering respondent's major achievements was the completion of the Pakistan Steel Mill which was officially opened by the President of Pakistan on 15-1-1985. Other achievements as Federal Government Minister include establishment, within the Steel Mill, of a Cadet College which will feed the engineering institutions with talented students, establishment of a post-graduate wing and a Research Institute in Metallurgy in the Steel Mill and establishment of a Cement Research Development Institute at Lahore. Under plans formulated by the answering respondent, similar facilities in fertilizer and plastics are being set up at Multan and Karachi."
4.At the trial the appellant requested for. Summoning two witnesses, namely, Secretary of Pakistan Engineering Council, Islamabad and the Secretary- of Pakistan Institution of Engineers, Lahore. But as on behalf of the respondent No.l a statement was made to the effect that he had not made any application to the Pakistan Engineering Council for being enrolled as a member, the Secretary of the said Council was not summoned as a witness. Thus, the only witness examined by the appellant was Ch. Muhammad Rashid Khan, Secretary-General, Institution of Engineering Pakistan.
On the side of respondent No. 1, by consent of parties his written statement was treated as his examination-in-chief and then he was cross-examined by the counsel for the appellant. This is all the evidence that was produced by the parties in support of their respective cases.
5. As to the interpretation of the term 'technocrat' the learned Tribunal relied upon a previous judgment of the same Tribunal in Election Petition No. 1/1985 (Senate). In the light of the aforesaid interpretation the learned Tribunal then considered the question whether in the facts and circumstances brought on record respondent No. 1 was qualified as 'technocrat' in order to be a candidate at the election. The Tribunal came to the conclusion on the admitted position that respondent No.l did not hold any degree in Engineering from any University. As regards the diploma in Automobile Engineering from Loughborough College of Technology, U.K., which the said respondent possessed, the Tribunal was of the opinion that such diploma was not proved to be internationally recognized. As to the honorary fellowship conferred on respondent No.l by the Institution of Engineering in 1984, with reference to the By-Laws of the Institution, the Tribunal found that the Secretary-General of the said Institution in his evidence having admitted that there was no written record in respect of the said conferment of fellowship on respondent No.l, it was not possible to hold that the certificate in respect thereof produced by the respondent by itself was sufficient to "raise any inference that respondent No.l possessed Engineering qualifications which are nationally and internationally recognized." The final conclusion in respect of this part of the controversy was stated by the Tribunal in the following words:- "On the basis of the record of the present election petition and the above discussion, this Tribunal finds that respondent No.18 does not possess nationally or internationally recognized professional engineering qualifications."
6.Notwithstanding the aforesaid finding the learned Tribunal relying on its previous judgment mentioned above, considered that s person without professional qualifications nevertheless can fall under the ambit of the word "technocrat" if he fulfils the other conditions in the definition of the said term. In other words if the person is professionally competent, which professional competence is nationally or internationally recognized, then subject to other conditions in the definition, he can still be held to be qualified as a technocrat. On behalf of the respondent No.l professional competence in the field of engineering was claimed to be nationally recognized. While examining this question in the light of the evidence on record, the learned Tribunal observed that the positions, and assignments held by the respondent as mentioned in para. 2(i) to (viii) of the written statement had not been challenged by the appellant as no cross-examination was directed against them. It was observed that diploma in Automobile Engineering possessed by the said respondent although not recognized by the Pakistan Engineering Council, the fact that he was granted commission in E.M.E. Corps of Pakistan Army in which he remained as an officer till he retired as a Lieutenant-General, having regard to the uncontroverted position that according to rules no officer can be enlisted in the said Corps unless he is a qualified engineer the inference was that the professional competence of the respondent in the field of engineering was officially recognized, and therefore, it could be said that he was a person of nationally recognized professional competence in the field of engineering. The learned Tribunal further found that respondent No.l was professionally competent in the field of Logistics. In this field the uncontroverted assertion of the said respondent that there is no University in the world which grants degree or diploma in -the Logistics was accepted. In this field the respondent asserted that he had obtained graduation from Staff College, Quetta, attended a training course in California in defence management from where he obtained a certificate and he had written a textbook on Logistics for the army. All these averments had gone uncontroverted. In addition the said respondent stated that he had been lecturing in Logistics at the Army School of Logistics, National Defence College and Staff College, Quetta, which according to the tribunal established that he is a person whose professional competence n the field of Logistics is also nationally recognized. As regards his experience in this field, the learned Tribunal referred to sub paragraphs (i) to (xiii) of para 2 of the written statement which have been reproduced above. In view of these findings and conclusions the learned Tribunal held that the respondent No.l was qualified as a technocrat and accordingly dismissed the election petition by his judgment dated 13th July, 1985. The present appeal has been filed against the aforesaid judgment by the appellant.
7. The appellant who has appeared in person addressed a rather incoherent and mostly irrelevant argument in support of his appeal. It is not his fault to do so because he is not a professional lawyer The main points touched by him which have some relevance to the controversy as culled out from his general argument may however, be mentioned. He submitted that it was essential for a person to be a technocrat to have educational qualifications in the same field, that respondent No. 1's qualifications are not recognized, that Logistics as a field of activities has no nexus with the position held by respondent No.l as Quarter Master-General, that the respondent No.l, does not possess educational qualifications in Logistics recognized nationally, that such qualifications are essential for recruitment to E.M.E. Corps, that the posts held by respondent No.l were administrative posts and not technical and that Logistics is a routine part of the army command. Finally the appellant submitted that respondent No.l did not possess the requisite 15 years' experience as required by law. On behalf of the respondent No.1 Moulvi Sirajul Haq, learned counsel for the said respondent controverted these arguments and submitted that respondent No.1 had established by evidence on the record to be a "technocrat" within clause (b) of the Explanation to Article 5(1) of P.O. No.5 of 1977. He submitted that respondent No.l had shown that he had in all 24 years experience of the nature required by law.
8. The judgment in election petition No.l of 1985 (Senate) on which the learned Tribunal relied with regard to the interpretation of the term "technocrat" had come up in appeal before this Court and the legal position as to the interpretation of the said term was reviewed vide Civil Appeals Nos. 93 and 94 of 1985 reported as Sh. Ihsanul Haq Piracha v. Mr. Wasim Sajjad and others PLD 1986 SC
200. While illucidating the true import and meaning of the definition of the term "technocrat" it was laid down as follows:- "It follows from the above discussion that where profession or professional has been defined, that definition fully governs the situation. Where it does not, and resort has to be had to its ordinary plain meaning then it should be borne in mind that it is 'vague and neither static nor rigid' in what it conveys. Having found a place in the Constitution itself it is necessary that it should retain its flexibility and adaptability. The scheme of the Explanation under consideration appears to be to emphasize in Explanation (c) professional qualification, itsi recognition and experience in a specialized area of knowledge, and practice in that particular specialization. In contradistinction to it there is no mention of qualification in Explanation (b). It talks of professional competence and experience and expertise' for administering or managing a unit. Expert has been defined in Black's Law Dictionary as 'one who is knowledgeable in specialized field that knowledge being obtained from either' education or personal experience.. One who by habits of life, and business has particular skill in forming opinion on subject in dispute.' Experience and expertise and absence of use of the word qualification in Explanation (b) emphasizes the pratical side rather than the academic. We, therefore, agree with the finding that a person without professional qualification but who is otherwise professionally competent, which professional competence is nationally or internationally recognized, can become a 'technocrat' if he fulfils the other conditions in the definition of technocrat."
The word 'Recognized' has been defined in Black's Law Dictionary as "Actual and publicly known". The national or international recognition of professional competence of an individual may come about in various forms--direct and indirect. Instances of direct recognition have been noted by the Election Tribunal in the words that follows:- "Recognition is a formal or official act by a university, seat of learning or professional body and I would add to these bodies the Government."
"Undoubtedly, instances of direct recognition noted by the Election Tribunal will certainly ex facie establish the competence of the individual. There, however, appears no particular reason to restrict the recognition only to such direct and formal acts. The indirect recognition at the national level may come aboutin diverse forms-in associating the professionally competent individuals in framing of the policies at the national level, in administering institutions and projects and in representations abroad in a particular speciality.
'The 'high level' should not be restricted to the highest level because it implies a level lower than the highest and higher than the intermediate. The degree of independence and the absence of accountability are tests extraneous to the requirement. We would, therefore, endorse the view taken by the Election Tribunal that 'high level has reference to experience and expertise' and it need not be in the capacity of 'head of ministries, statutory corporations' etc."
As the law has been authoritatively laid down in the aforesaid judgment of this Court, the arguments advanced by the appellant will have to be considered in the light of the same. Before adverting to the points raised by the appellant it may be useful to reproduce the Explanation (b) to Article 5(1) of the P.O. No.5 of 1977 in which the term "technocrat" has been defined:- "Explanation. In this clause:- (a)'Aalim' means a Muslim scholar with high qualifications in religious education recognised by the Unviersity Grants Commission or having specialized knowledge of Tafseer, Hadith, and Fiqh, to his credit and engaged for at least fifteen years in dissemination of these subjects either as an Imam in a Jamia Mosque or as a teacher or researcher in an educational or research institution or as a practitioner in Islamic Law: (b)'technocrat' means a person of nationally or internationally recognised professional competence with and at least fifteen years' experience and expertise at a high level for administering or managing an operational or policy-making unit; and (c)'professional' means a person of distinction with nationally or internationally recognised professional qualifications and practical experience at a high level in a specialized area of knowledge who has been practising in his specialisation by adopting it as his principal calling, vocation .Or employment."
9.The first argument that it is necessary to have educational qualifications for being a "technocrat" is not tenable in view of the law laid down that Explanation (b) does not mention qualifications as a requisite condition in respect of the definition of the term "technocrat". In this respect only professional competence, experience and expertise for administering or managing a unit is sufficient. The next point that the respondent's qualifications are not recognized does not arise in view of the law stated as above. When no qualifications, meaning thereby educational or professional qualifications are necessary as ingredient for constituting a "tech norcrat", the question of any such qualifications not being recognized does not arise. The next point that Logistics as a field of activities has no nexus with the position held by respondent No. 1 as Quarter Master-General is also without substance, as in his evidence the respondent has in para (2) sub- pare (xi) of written statement stated that in that capacity he was also incharge of "policy planning and administering Logistics support for the Pakistan Army in co-ordination with Federal and Provincial Government". This part of the testimony remained uncontroverted by any evidence from the appellant's side and was accepted by the Tribunal as an established fact. The argument that the respondent does not possess academic qualifications in Logistics recognized nationally also does not arise as the unequivocal assertion of the respondent in his testimony that there is no university which offers any course of teaching in the field of Logistics anywhere in the world, has not been rebutted. As regards the submission that professional qualifications as an engineer is an essential requirement for recruitment to E.M.E. Corps, the respondent has explained that after his recruitment he had already been sent to England for study in Loughborough College of Technology Leicestershire from where he obtained a diploma of Automobile Engineering. Besides the fact remains that the respondent was recruited as an officer in the E.M.E. Corps. The further argument that the posts held by the respondent were administrative and not technical is irrelevant, in that, the definition of the term "technocrat" itself requires high level administrative and managerial experience and expertise in an operational or policy making unit. Similarly the assertion that the Logistics is a routine part of the army command would rather support the case of the respondent than demolish it. The last argument that the respondent did not possess requisite 15 years' experience requires to be separately considered. In this behalf reference was made to the judgment of the Tribunal where in para 24 the Tribunal observed as under:- "As regards the experience and expertise of respondent No.18, para 2 (i) to (viii) of his written statements show that from 1958 to 1972 i.e. For a period of about 14 years, respondent No.18 was administering or managing at a high level operational or policy making units in Pakistan Army. It has already been noted that the positions and assignments held by him during this period in Pakistan Army have not been challenged by the petitioner. All these positions and assignments have a nexus with engineering and I have already found that his professional competence in the field of engineering has been accorded national recognition."
10. This passage of the judgment gives an impression that although 15 years' experiences required by law, the Tribunal expressly accepted 14 years' experience as sufficient to meet the requirements of law. This is a wholly incorrect assumption. In fact the Tribunal in its final conclusion had held that the respondent has proved to be a person of nationally recognized professional competence in two fields, namely, engineering and logistics, with at least fifteen years' experience and expertise at a high level for administering or managing an operational or policy making unit. The above- quoted passage from the judgment only related to the experience and expertise of the respondent in regard to operational and policy making units of the Pakistan Army from 1958 to 1972 as mentioned in para 2(i) to (viii) of his written statement. This period was stated to be 14 years. In addition to this in para (26) of the judgment, the learned Tribunal referred to the experience and expertise of the respondent in the field of logistics, from 1972 of 1985 which was described in paras 2(ix) to (xiii) of the written statement. Referring to this experience the learned Tribunal recorded its conclusion as under:- "The averments about the aforesaid posts and assignment having been held by respondent No.18 from 1972 to 1985 and the functions and responsibilities attached to such posts and assignments detailed in paras 2(ix) to (xiii) of the written statement of respondent No.18 have gone unchallenged. All these posts and assignments have a nexus with logistics, in which field the professional competence of respondent No.18 has been accorded national recognition.
Oncontroverted paras 2(ix) to (xiii) show that respondent No.18 has more than 10 years of requisite experience and expertise of administering or managing at a high level operational and of policy making units having nexus with logistics."
Here the learned Tribunal mentioned 10 years' experience in the field of logistics. Therefore, according to the finding of the learned Tribunal, respondent had 25 years total experience of the nature required by law. Accordingly there is no justification for the argument that he has failed to establish the requisite experience and expertise for 15 years.
11. It will not be out of place to point out here that in the case of Sh. Ihsanul Haq Piracha the two candidates who were found to be technocrats within the meaning of the relevant law both did not possess any professional or academic qualifications as such. One of them claimed professional competence in "business administration and co-operation" the other based his claim of being a technocrat in the "agricultural sector". As compared to them respondent No.l has based his claim of being a technocrat on the basis of experience and expertise in the field of engineering and logistics. Although as laid down the law does not require academic or professional qualifications for the purpose of being a technocrat, respondent No.l started his career on completing a three years course in automobile engineering from a foreign institution from which he obtained a diploma. Therefore, he has succeeded in establishing a basic nucleus around which he built up his career as an expert in the field of engineering and later on acquired proficiency and expertise in logistics sector. He had started gaining practical experience from 1958 when he was put incharge of the only Tank Workshop in Pakistan. This appears to be a very responsible charge from the point of view of operational and combat capability of Pakistan Arie,y. Subsequently he was responsible for of--ganization, training and policy making of the Corps of E. M . E. , Aviation engincaring, major engineering workshop at Karachi etc. The word "logistics" according to the Chambers Twentieth Century Dictionary means "the art of movement and supply of troops". This necessarily involves the management, operation and control of mechanically propelled vehicle. Therefore, logistics apparently is an allied field with the automobile engineering. In this field respondent No.l has occupied important administrative posts with powers of controlling and laying down policy. He has been responsible for establishing the National Logistics Cell which is a huge organization operating throughout Pakistan. All this experience and the expertise with the basic professional competence sufficiently meet the requirements of the law and, therefore, respondent No.l cannot be denied, the benefit of being a "technocrat" within the meaning of law.
12. In conclusion we find no reason to interfere with the finding of the learned Tribunal and dismiss this appeal with no order as to costs.