' By a short order announced on 6-7-1994, Writ Petitions Nos.3693/94, 3377/94 and 3440/94 involving the same controversy were dismissed leaving the parties to bear their own costs. This judgment furnishes detailed reasons in support of that order.
2. The petitioner in W.P. No,3693/94, Mian Muhammad Shahbaz Shard is the Leader of the Opposition in the Punjab Provincial Assembly, while the other two Writ Petitions bearing Nos.3377/94 and 3440/94 have been filed by Syed Ali Raza Abidi and Mr. Iftikhar Hussain, who are citizens of Pakistan residing in the Province of Punjab. All of them feel aggrieved of the appointment of Ch. Muhammad Altaf Hussain, respondent No, 1 as Governor of Punjab by the President of Pakistan vide notification dated 20-3-1994.
3. The factual background in which this controversy arises is that on the resignation of Mian Muhammad Azhar as Governor of Punjab on 25-4-1993, Ch. Muhammad Altaf Hussain, respondent, No 1 was appointed as Governor of the Province. He continued to hold that office till 19-7-1993 when he resigned. He was re-appointed to the same office by the President of Pakistan on 26-3-1994.
This appointment has been challenged by the petitioners in these petitions primarily on the ground that having held an office in the service of Pakistan, Ch. Muhammad Altaf Hussain was not qualified to be a Member of National Assembly and thus could not be appointed as the Governor.
4. On behalf of the petitioner, Mr. Muhammad Akram Sheikh, Advocate has elaborated that under Article 101(2) of the Constitution of Islamic Republic of Pakistan, 1973, only a person qualified to be elected as a Member of the National Assembly can be appointed as Governor but as respondent No, 1 has been in service of Pakistan within a period of two years of his re-appointment as Governor of Punjab, he was disqualified from being elected as a Member of the National Assembly and, therefore, from being appointed as the Governor. He maintained that to be eligible for being elected as a Member of the National Assembly, a person must not only hold the qualifications enumerated in Article 62 of the Constitution but should not also suffer from any of the disqualifications provided in Article 63 and the two Articles must read together and not in isolation of each other. He emphasised that clause (k) of Article 63 clearly debarred a person, who had remained in service of Pakistan within a period of two years from being elected as Member of the National Assembly.
5. Mr. Muhammad Akram Sheikh, Advocate heavily relied upon the definition of service of Pakistan appearing in. Article 260 of the Constitution to contend that all services, posts and offices in connection with affairs of the Federation or a Province except those specifically excluded therefrom by the Constitution itself fall in the service of Pakistan. According to the learned counsel the Goyernor was an agent of the President and executive Head of the Province and as such the office held by him related both to the 'affairs of the Federation and the Province and was thus in service of Pakistan. In support of this argument he cited Mr. Fazlul Quader Chowdhry and others v.
Muhammad Abdul Haque PLD 1963 SC 486 and Mr. Zulifqar All Bhutto v. The State PLD 1978 SC 40.
5. According to the learned counsel for the petitioner, the other disqualification from which respondent No,1 suffered was that he was not an Ameen and righteous person as required by Article 62 of the Constitution as held by the Full Bench of this Court in Ch. Pervaiz Elahi v. Province of Punjab and another PLD 1993 Lah.
595.
6. Mr. Sharif ud Din Pirzada, Advocate and Mr. Shahzad Jehangir, Advocate appearing on behalf of respondent No, 1, however, maintained that the office held by the Governor cannot be considered to be an office in the service of Pakistan but can more aptly be described as a Constitutional office, the holder of which was not in the service of Pakistan. The learned counsel urged that the Constitution visualises two types of offices namely, the Constitutional offices, like that of President, Governor etc. And offices in service of Pakistan. He explained that Constitutional offices are creatures of the Constitution and terms and conditions of such offices are also provided by the Constitution unlike the later kind of offices which are set up by or under a statute or an administrative instrument which also lay down their terms and conditions of service. Reference was made by the learned counsel to Article 275 of the Constitution as also to the case of Nawabzada Nasarullah Khan v. Ghulam Mustafa Khar PLD 1977 Jour.
299.
7. As regards definition of 'service of Pakistan' in Article 260 Mr. Sharif ud Din Pirzada, Advocate emphasised that Article 260 is in the nature of an interpretation clause which by its very wording and on the accepted principles of construction of statute is not of universal application but its applicability was subject to the context and stands excluded in the event of any repugnancy.
Reliance in this respect was placed by the learned counsel on Iftikhar Ahmad and others v.
President, National Bank of Pakistan and others PLD 1988 SC 53 and Syed Muhammad Haider Zaidi and others v. Abdul Hafeez and others 1991 SCMR 1699. It was urged that on proper construction of the Constitution, holders of Constitutional offices cannot held to be in the 'service of Pakistan' merely on account of the definition given in Article 260 which was not applicable. So far as the exclusion of certain offices from the definition in Article 260 of the Constitution, the learned counsel explained that those offices were excluded by making amendments in the Constitution from time to time in order to remove doubts which had arisen.
8. It was next argued by Mr. Sharif ud Din Pirzada, Advocate that Article 101(2) of the Constitution only makes to qualifications and not disqualification of a Member of the National Assembly applicable in the case of Governor and as the Constitution itself had prescribed qualifications separately from disqualifications, on reasonable hypothesis could Article 63 dealing with disqualifications be pressed into service for determining whether or not a person was qualified to be appointed as a Governor. He referred to the cases of G.D. Karkara v T.L. Shevde and others AIR 1952 Nagpur 330, Atlas Cycle Industries Ltd. Sonepat v. Their Workmen AIR 1962 SC 1100, Malik Hamid Sarfraz v. Federation of Pakistan and another PLD 1979 SC 1991 in support of this submission. It may also be stated to the credit of the learned counsel that he brought to the notice of this Court the judgment of the Supreme Court in the. Earlier case of Dr. Kamal Hussain and 7 others v.
Muhammad Sirajul Islam and others PLD 1969 SC 42 and distinguished the same.
9. Mr. Shahzad Jehengir, Advocate supported Mr. Sharif ud Din Pirzada Advocate and submitted that the fact that Article 260 of the Constitution does not specifically exclude some of the Constitutional offices like President, Governor, Judges of the Superior Courts- and Chief Election Commissither from the definition of 'service of Pakistan' was not conclusive and did not furnish a basis for assuming that all other offices were covered by the definition. He reiterated that in any event, the disqualifications enumerated in Article 63 cannot be taken into consideration for determining whether or not a person was qualified to be appointed as a Governor. In support of this submission, the learned counsel relied upon Government of Pakistan v. Syed Akhlaque Hussain PLD 1965 SC 527, Shahidullah Kazi v. The Additional Deputy Commissioner (Development) and Election Tribunal, District Faridpur PLD 1969 Dacca 868, M/s. Pervez Industrial Corporation v. M/s. New Lahore Transport Co. And 3 others PLD 1975 Kar. 88, Hargovind Pant. v. Dr.Raghukul Tilak and others AIR 1979 SC 1109 and Black's Law Dictionary page 1241, as also Dr. Chandra Bhan Singh v.
State of Rajasthan and others AIR 1983 Rajasthan 149. Relying upon Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160, it was also urged that provisions being penal in nature should be strictly construed and 'disqualifications' not clearly spelt out by the Constitution should not be made applicable inferentially.
10. He next contended that reliance of the petitioner's learned counsel on Article 62(f) of the Constitution was wholly misplaced as nothing has been brought on record to show that respondent No,1 suffered from `disqualifications' of the nature mentioned therein. He explained that respondent No,1 was not a party to the case in which the Full Bench delivered the judgment reported as Ch. Pervaiz Elahi v. Province of Punjab and another PLD 1993 Lah. 595 and in any case there was nothing in that judgment to sustain this contention.
11. Mr. Abdus Sattar Najam, learned Advocate-General, Punjab referred to various Articles of the Constitution and submitted that the office of the Governor was not an office or post in the service of Pakistan. He in particular referred to Articles 103 and 109 of the Constitution.
12. Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General for Pakistan apart from reiterating the contentions of the other learned counsel for the respondent and also relied upon Hargovind Pant. v. Chancellor, University of Rajasthan and others AIR 1978 Rajasthan 72 and Hardwari Lal v. Ch. Bhajan Lal and others AIR 1993 Punjab & Haryana 3 in support of these submissions.
13. From the respective contentions of the learned counsel for the parties, the questions which arise for determination in this case are:--
(1) Whether the office of the Government is an office in the service of Pakistan?
(ii) Are the 'disqualifications' enumerated in Article 63 of the Constitution applicable for finding out whether a person was qualified to be appointed as Governor under Article 101(2) of the Constitution?
(iii) Whether Ch. Muhammad Altaf Hussain, respondent No,1, suffers from disqualification of the nature described in Article 62(f) of the Constitution?
' These questions, I must confess are not only of Constitutional importance but are also not free form difficulty. The valuable assistance rendered by the learned counsel for the parties, especially, Mr. Sharif ud Din Pirzada, Mr. Shahzad Jehangir and Mr. Muhammad Akram Sheikh, Advocates as also the learned Law Officers has been of great help in resolving these controversies.
15. The main burden of the argument of the petitioner's learned counsel on the first proposition was that in Article 260 of the Constitution, 'service of Pakistan' has been defined as a service, post or office in connection with the affairs of the Federation or the Province and the office of the. Governor clearly falls within the ambit of this definition. The learned counsel sought to draw strength from the fact that therein offices which otherwise would have fallen within the mischief of this provision, have been specifically taken out of the definition by making amendments in the Constitution which according to the learned counsel was clearly indicative of the intent that all other officers, posts and services connected with the Federation and the Province are in the service of Pakistan.
16. The argument on the face of it appears to be attractive but does not stand to scrutiny on deeper analysis. As pointed out by Mr. Sharif ud Din Pirzada with admirable clarity; the Constitution itself draws distinction between 'Constitutional Offices' and Offices in 'service of Pakistan'. The offices like that of the President, Governor, Judges of the superior Courts, Chief Election Commissioner and the Auditor-General of Pakistan are creatures of Constitution and do not exist independently of the Constitution which itself prescribes terms and conditions of those offices. On the other hand, the offices in 'service of Pakistan' are neither created by the Constitution nor are their terms and conditions prescribed by it. The two kinds of offices by their very nature are different and have been separately dealt with by the Constitution itself and cannot be equated. To illustrate, reference may be made to Chapter 1 of Part III of the Constitution deals with the office of the President of Pakistan, Chapter 1 of Part IV with Governors, Chapters 1 and 3 of Part IV with the Judges of Superior Courts and Chapter 1 of Part VIII to the Chief Election Commissioner which lay down not only the qualifications for appointment but also their terms and conditions. This is in clear contradistinction of Article 240 of the Constitution which provides that the appointments to and the conditions of service of persons in the service of Pakistan shall be determined in case of services and posts in connection with the Federation by or under the Act of Parliament and in case of services and posts in connection with the affairs of a Province by or under the Act of Provincial Assembly. If the argument of the learned counsel for the petitioner is accepted that the holder of Constitutional- offices like the Governor are also deemed to be in service of Pakistan under Article 240 of the Constitution, the appointment to and the conditions of service even in respect of those offices can be regulated by law which could not certainly be the Constitutional intent.
17. In 63' Am Jur 2d, Vol. 10, at page 638, distinction between Constitutional offices and other offices has been drawn in the following word:-- ' Article 16. Constitutional offices.--A Constitutional office is one created by the United States Constitution or by a State Constitution, as distinguished from an office created by Statute or from an office which, like that of Notary Public, has existed in nearly all countries for centuries.
' Article 17. Distinction between Constitutional office and Statutory office.-- Constitutional offices differ in many ways from offices created by Statute. The legislature has full control over the latter, whereas its power over Constitutional offices is limited. It cannot abolish a Constitutional office, nor can it change such an office, except as expressly permitted by the Constitution itself. Generally, therefore, it has no power to change the title of a Constitutional office. The Constitution may even prohibit legislative interference with all offices in the cities of the state of a character known at the time of the adoption of the Constitution, irrespective of whether such offices were then known by the same or by different names.
It is also to be seen that while the holders of Constitutional offices are required to take oath prescribed by the Constitution itself before entering their offices, it is not so in the case of offices in service of Pakistan. It is therefore difficult to agree with the learned counsel for the petitioner that all public offices irrespective of the nature of the offices should be deemed to be offices in the service of Pakistan.
18. The distinction becomes further clear from Article 275 of the Constitution of Islamic Republic of Pakistan, 1973, the relevant part of which reads as under:-- "Constitution in office of persons in Service of Pakistan. Etc.---(1) Subject to the Constitution and until law is made under Article 240 any person who, immediately before the commencing day, was in the service of Pakistan shall, as from that day, continue in the service of Pakistan on the same terms and conditions as were applicable to him under the Interim Constitution of the Islamic Republic of Pakistan immediately before that day.
(2) Clause (1) shall also apply in relation to a person holding office immediately before the commencing day as --
(a) Chief Justice of Pakistan or other Judge of the Supreme Court, or Chief Justice or other Judge of a High Court;
(b) Governor of a Province;
(c) Chief Minister of a Province;
(d) Speaker or Deputy Speaker of the National Assembly or a Provincial Assembly;
(e) Chief Election Commissioner;
(f) Attorney-General for Pakistan or Advocate-General for a Province;
(g) Auditor-General of Pakistan.
19. Although clause (1) of Article 275 in comprehensive terms provided that all those persons who were in service of Pakistan shall continue to hold their offices on coming into force of the Constitution of Islamic Republic of Pakistan, 1973 yet a separate provision was made in respect of holders of offices enumerated in clause (2) the reason being that the Makers of the Constitution were fully aware that the holders of Constitutional offices were not in service of Pakistan and, were, therefore, not covered by clause (1). If, as has been argued by the learned counsel for the petitioner, persons holding Constitutional offices are also in service of Pakistan, there was no occasion to make a separate provision for them and in that event clause (2) would be rendered completely redundant. It is well-established principle of interpretation which applies greater force to a Constitutional document, that each and every word contained therein must be given a definite meaning and no surplusage or redundancy can be attributed to the Constitution-makers.
20. This view finds support from the opinion of Dr.Nasim Hassan Shah, J. (as he then was) in the case of Nawabzada Nasarullah Khan v. Ghulam Mustafa Khar PLD 1977 Jour. 299 wherein it was observed that:-- "A reference to the provisions of the Constitution reveals that the existence of three kinds of posts and offices is visualised by it namely:--
(i) Offices and posts created expressly by the terms of the Constitution, such as Prime Minister, Ministers, Chairman of the Senate, Speaker, Chief Justice and Judges of the Supreme Court and High Courts. Members of the Legislature etc. Whose modes of appointments, tenure and removal is fully dealt with therein. They may be referred to as holders of Constitutional Offices;
(ii) Posts created by any act of Parliament or Provincial Legislature.--A separate chapter in the Constitution (Part VII-Chap.I) deals with the subject of Service of Pakistan and Article 240 contained therein provides that no person can be a Member of the Service of Pakistan unless there is a law regulating the appointment to and conditions of service. The relevant part of this provision reads as under:-- `240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined---
(a) in the case of the services of the Federation posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Parliament; and (b)
(iii) Posts created under the authority of the powers conferred to the Televant authorities by the law (referred to in item No, (ii) above).'
' In its ordinary sense the expression 'service of Pakistan' would, therefore, refer to the holders of posts and offices who are created under items (ii) and (iii) above and would not normally include persons referred to in item (i) above, viz., holders of Constitutional offices whose services are not visualised in Article 240 of the Constitution, which is the specific provision in the Constitution dealing with the subject of services. This view is fortified on reference being made to Article 275 of the Constitution."
21. Mr. Muhammad Akram Sheikh, Advocate submitted that the cited judgment was delivered by an Election Tribunal and has, therefore, no force. Although the judgment of the Tribunal is not binding on this Court but exposition of law and interpretation of the Constitution by an eminent Judge of this Court, who rose to be the Chief Justice of Pakistan is certainly entitled to great respect and has to be given due weight.
22. It may also be stated that the judgment of the Election Tribunal was chellenged by Mr. Ghulam Mustafa Khar by filing a Constitutional Petition (W.P. No,2208 of 1977) but that was dismissed by a Full Bench of this Court (See Ghulam Mustafa Khar v. Election Commissioner of Pakistan and 2 others PLD 1977 Lah.
1437. Mr. Muhammad Akram Sheikh submitted that as the Full Bench did not deal with the issue now in controversy, it should have deemed to have disapproved the reasoning of the Election Tribunal to that extent. This argument on the face of it is wholly untenable. There is nothing in the judgment of the Full Bench from which it can even remotely be inferred that any of the findings given by the Tribunal have been disapproved. On the other hand, as the Constitutional petition was dismissed by the Full Bench and the order of the Election Tribunal was maintained, its value stands enhanced.
23. The question as to whether holders of Constitutional offices are in service of Pakistan was also considered by the Election Tribunal comprising of two learned Judges of this Court in Syeda Abida Hussain v. Returning Officer and others 1993 MLD 2489 in which it was observed that:-- " Holders of the Constitutional and elective posts, created by the Constitution, do not fall in the category of persons in the service of Pakistan but since the appellant was not holding an office created by the Constitution and dealt with by it, she would be deemed to be in the service of Pakistan falling within the mischief of Article 63(k) of the Constitution of Pakistan."
' The appeal against that judgment was dismissed by the Supreme Court of Pakistan (see Syeda Abida Hussain v. Tribunal for NA-69 Jhang-IV and 2 others PLD 1994 SC 60).
24. Mr. Muhammad Akram Sheikh, learned counsel for the petitioner has himself relied upon the pronouncement of Supreme Court in Syeda Abida Hussain's case supra contending that the expression 'service of Pakistan' cannot be equated with the civil servant and though a person may not be a civil servant within the meaning of Civil Servants Act, 1973 yet he can be in service of Pakistan.
25. There cannot be any cavil with the argument advanced by the learned counsel for the petitioner which, however, has no relevance in the present case. It is true that a person may not be a civil servant within the meaning of Civil Servants Act, 1973 but may be in the service of Pakistan as is the case with an Ambassador. However, the fact remains that in such cases also appointments to and terms and conditions of offices are determined by or under the Act of appropriate legislature or by rules framed pursuant to Article 240 of the Constitution which is not so in respect of holders of Constitutional offices. Apart from the fact that Syeda Abida Hussain's case did not deal with the holder of a Constitutional office and is, therefore, clearly distinguishable, on a closer analysis of the said judgment, it will be seen that one of the reason for holding that Syeda Abida Hussain was in service of Pakistan as an Ambassador was that she was governed by Rules of Service applicable to civil servants framed pursuant to Article 240 of the Constitution. Similarly, the case of Mahboob Khan and 242 others v. Government of Pakistan through Secretary, Ministry of Railways, Islamabad and 5 others (1991 PLC (C.S.) 415) has no relevance nor does it advance the case of the petitioner. Moreover, in that case also it was observed that the terms and conditions of persons in service of Pakistan were to be determined by or under the Act of the Parliament or the Provincial Assembly as mandated by Article 240 of the Constitution which shows that the determinating factor, as to whether or not a person is in the service of Pakistan, is as to whether his terms and conditions are determined by law made under Article 240 of the Constitution.
26. In arguing that the Governor holds an office in the service of Pakistan, the main thrust of the petitioner's learned counsel was that as Article 260 itself has excluded certain offices from being in the service of Pakistan by making specific exclusions, all other offices in connection with the affairs of the Federation and the Province are offices in the service of Pakistan.
27. Having considered this contention, I find myself unable to agree with the learned counsel for the petitioner. On the other hand, the argument of Mr. Sharif ud Din Pirzada, Advocate that these amendments were declaratory and clarificatory in character and were made in order to remove doubts or ambiguities with respect to holder of those offices as and when occasion arose appears to be unexceptionable. This conclusion is strengthened by the fact that amendments were made at different points of time as and when the necessity for doing so was felt. For example, the Attorney-General was excluded from the definition by the Constitution (Second Amendment) Act, 1974, the Advocate-General by the Constitution (5th Amendment) Act, 1976, the Chairman and Members of Law Commission, Chairman and Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to a Chief Minister by the Constitution (6th Amendment) Act, 1976.
28. It is an accepted principle of interpretation that the object in promulgating an Amendatory Act is not aways or invariably to bring out a change but sometimes the amendments are made to clarify certain issues and to remove doubts. In Bindra's Interpretation of Statutes, 7th Edition, at page 689, it is stated:-- "Now it is not necessary to hold that in every case where the Legislature amends the law that it does so because but for the amendment the effect would have been something different. There are innumerable cases in the history of legislation where the Legislature has added or deleted words in order to clarify the position. Amendments are often made to clear up ambiguities and such amendments which are intended to prevent misinterpretation do not in themselves alter the law in any way. When the Legislature amends to clarify things it does not necessarily mean that the original Act did not include and cover those things."
' Again at page 696 it is stated as under:-- "Whether an amendatory Act adds something to or takes something from the original Act, so as to effect a change in the law, or is merely an interpretation of the intent of the original Act, depends much on the time when and the circumstances under which, the amendment is enacted. The case of People v. Dovenport, is one of the leading judicial pronouncements dealing with the subject. It affirms these general principles:
(a) If an amendment follows soon after controversies have arisen as to the meaning of the original Act, there is reasonable likelihood and it is logical to believe it was merely intended to clarify the meaning of the pre-existing law;
(b) ..............................................................................................................
29. The exclusion of certain offices from the definition of Article 260 of the Constitution does not, therefore, imply that the holders of all other offices are deemed to be in the service of Pakistan.
Furthermore, Article 260 in which the definition of 'service of Pakistan' appears is in the nature of an interpretation clause and itself provides that the definition contained therein would stand excluded in the event of any repugnancy with the context. The interpretation clause does not override other substantive provisions nor can it be applied with rigidity. It must give way to the context in which the word in question appears. The law on the subject as stated by Bindra in his Interpretation of Statutes, 7th Edition, at page 38 is as under:- "...Definitions in statutes must be read subject to qualifications variously expressed in the definition clauses which created them such as 'unless the context otherwise requires.' Thus, all statutory definitions must be read subject to the qualifying words, 'unless the context otherwise requires,' though such words are not contained in the definition. In other words, the definition section in an Act would ordinarily apply to the provisions of the Act, unless any particular provision therein either expressly or by intendment excludes it by giving to the words used a different meaning or a wider construction. If it is possible to gather the intent of the Legislature and it is then found that such legislative intent cannot be given effect because of the legislative definition, the latter should not be allowed to control the former. This must all the more be so in cases where the definition clause opens with the word 'subject to the context to the contrary', or `unless the context otherwise requires' or expression similar in effect...
' Again in Halsbury's Laws of England (4th Ed.), Volume 44 in para. 845, it is stated that:-- "845. Interpretation sections.--Most modern statutes contain an interpretation or definition section or schedule in which is declared the meaning which certain words and expressions bear or include for the purposes of the statute in question. As a rule, it ought as a matter of drafting to be used for interpreting words which are ambiguous or equivocal only, and not so as to give an artificial meaning to words the ordinary meaning of which is plain.
' An interpretation section does not necessarily apply in all the possible contexts in which a word may be found in the statute. If a defined expression is used in a context which the definition will not fit, it may be interpreted according to its ordinary meaning. In practice, interpretation sections in modern statutes almost invariably contain express provision that the meanings thereby assigned are to apply unless the context otherwise requires."
30. In Syed Muhammad Haider Zaidi and others v. Abdul Hafeez and others 1991 SCMR 1699, the Supreme Court was pleased to declare that the definition clause was declaratory and cannot be applied with rigidity to all situations irrespective of the context in which the definition appears.
Again in The Bank of Bahawalpur Ltd. Through its Manager v. The Chief Settlement and Rehabilitation Commissioner, Lahore and another PLD 1977 SC 164, it was observed that although the expression defined in the Statute has to be given the same meaning wherever it occurs but then there is ample authority for the principle of interpretation that the definition by a term in a Statute is merely declaratory in nature and should not necessarily be interpreted when it does not fit in with the subject and the context. To the same effect is a pronouncement of the Supreme Court in Iftikhar Ahmad and others v. President, National Bank of Pakistan and others PLD 1988 SC 53.
31. In the present case, as already observed, holder of Constitutional offices have been treated by the Constitution itself on a different plain and on a different level and, therefore, to hold only on the basis of the definition clause that persons holding Constitutional offices are also in service of Pakistan within the meaning of the Constitution would amount to violating the Constitutional intent itself.
32. Though the provisions in the Indian Constitution are somewhat different but reference with advantage may be made to the two cases from the Indian Supreme Court with regard to the nature of the office held by a Governor. In Hargovind Pant. v. Dr.Ranghukul Talak and others AIR 1979 SC 1109 in which it was observed that the Governor is the Head of State and holds Constitutional office which carries with it important Constitutional functions and duties and he cannot, therefore, even by stretching to the breaking point be regarded as an employee or servant of Government of India. In Union of India v. S. H. Sheth AIR 1977 Supreme Court 2328, it was ruled that the holder of various Constitutional offices like Judges of the Supreme Court and of High Court hold high Constitutional offices and exercise State powers although draws salary from the State office, they nevertheless cannot be said to be employees under the Government of India. The reasonings in the above precedents apply to the present cases also inasmuch as Article 101 of the Constitution also does not provide that it is subject to other provisions of the Constitution or that the disqualifications enumerated in Article 63 must be read into it.
33. On the reasonings advanced by Mr. Muhammad Akram Sheikh, Advocate, even the office of the President would be in the service of Pakistan, which is difficult to accept in view of the pivotal position occupied by him as Head of State he is the repository of all executive powers under Article 90 of the Constitution. It is also interesting to notice that though under Article 58(1) of the Indian Constitution only a person qualified to be elected as Member of the Parliament can be the President yet a specific provision was made in sub-Article (2) for debarring the holder of offices in service of India from being elected as President. This is despite the fact that in Article 102 of the Indian Constitution, a person in the service of India cannot be a Member of the Parliament.
34. I have repeatedly asked the learned counsel for the petitioner to state the rationale behind his insistence that a person who had once held office of the Governor cannot be appointed to the same office within a period of two years which despite his acumen and dexterity he was unable to do. It would be anomalous to hold that having held an office once, the holder stands disqualified from being appointed to the same office in the absence of any clear prohibition in the Constitution itself. It cannot be successfully argued that though a person was originally qualified to be appointed to an office but by virtue of holding it once he ceased to be qualified to do so again.
35. Reliance of the learned counsel for the petitioner on the cases of Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Hague PLD 1963 SC 486 and Mr. Zulifqar Ali Bhutto v. The State PLD 1978 SC 40 is again not apt for there is nothing in these judgments to sustain the contention that the holders of Constitutional offices like the President, Governor, are in service of Pakistan.
36. It follows from the above discussion that Ch. Muhammad Altaf Hussain respondent while holding Constitutional office of the Governor of Punjab was not in service of Pakistan and was not disqualified from being reappointed as Governor within a period of 2 years from his ceasing to hold that office.
37. In view of these findings it is not necessary to render any final opinion on the second question posed above but as the matter has been argued at some length, I am attempted to make certain observations in this respect also.
38. Although much can be said in support of both the views but I am inclined to agree with the points of view putforth by Mr. Sharif ud Din Pirzada with his usual skill and excellence that disqualifications mentioned in Article 63 of the Constitution cannot be taken into consideration while determining whether or not a person was qualified to be appointed as a Governor. Article 101(2) of the Constitution on its plain wording speaks of a person qualified to be elected as a Member of the National Assembly. The qualifications of a member of National Assembly are provided in Article 62 of the Constitution which, therefore, by reference becomes applicable. Both, the heading as also the wording of this Article specially speak of qualifications while Article 63 lays down the disqualifications. This Article is a separate and distinct from Article 62 of the Constitution.
As reference in Article 101(2) is a person qualified and not to a person not disqualified, Article 63 cannot be read into Article 101(2) of the Constitution.
39. It is also to be noticed that Article 62 of the Constitution was imported by P.O. 14 of 1985 and clauses (e) to (h) were added thereto which contained certain disqualifications. As these disqualifications have been added to Article 62 which prescribe the qualifications it can perhaps be successfully argued that the disqualifications contained in the qualification clause must also be taken into consideration while determining whether a person was qualified to be appointed as a Governor. However, there is no warrant for importing Article 63 of the Constitution which is a provision separate and distinct and deals with disqualifications only.
40. The next argument of the petitioner's learned counsel that both Articles 62 and 63 must be given effect to while determining the eligibility of the appointee to the office of the Governor proceeds on mistaken assumption that lack of qualifications is the same thing as disqualification.
However, there is no warrant for such assumption. While qualification means possession of certain necessary elements and attributes, disqualifications arise when a person is deprived or divested of some of the qualifications. In Black's Law Dictionary, 5th Edition, at page 1116, 'qualification' is defined as under:-- "The possession by an individual of the qualities, properties or circumstances, natural or adventitious, which are inherently or legally necessary to render him eligible to fill an office or to perform a public duty or function. Thus, a 'qualified voter' is one who meets the residency, age and registration requirements.
' Also, a modification or limitation of terms or language; usually intended by way of restriction of expressions which, by reason of their generality, would carry a larger meaning than was designed."
' At page 424 of the same book, the following definition of "disqualification" appears:-- "To divest or deprive of qualifications: to incapacitate to render ineligible or unfit, as, in speaking of the 'disqualification' of a Judge by reason of his interest in the case, of a juror by reason of his holding a fixed preconceived opinion, or of candidate for public office by reason of non-residence, lack of statutory age, previous commission of crime, etc."
41. It will thus be seen that lack of qualification and disqualification are not synonymous but have different connotations. Consequently as Article 101(2) of the Constitution refers to a person "qualified to be " a Member of National Assembly, there is no occasion to import the provision referring to his 'disqualification' also therein.
42. The question as to whether 'qualification' would include `disqualification' has been subject- matter of various cases, some of which have taken the view, advocated by Mr. Muhammad Akram Sheikh. The preponderance of opinion, however, appears to be that want of qualification and disqualification are not interchangeable expressions and a person not possessing requisite qualifications cannot be said to be disqualified. The distinction appears to be that a person is said to be not qualified when he lacks necessary attributes. He is however, disqualified when he is divested of any of the qualifications.
So far as this Court is concerned, the earliest judgment on the subject is that of the Division Bench of the West Pakistan High Court in Ghulam Abbas v. The Additional Commissioner and Election Tribunal, Khairpur Mirs and 3 others PLD 1965 (W.P.) Karachi 625 wherein Inam Ullah, J. (as he then was) observed that a person less than 21 years of age cannot be said to be disqualified and all that can be said is that he does not possess the requisite qualification. In the aforesaid precedent, a passage from the earlier judgment of the Court in Ghulam Mohiud Din v. Election Tribunal (AIR 1959 All. 357) was cited with approval which reads as under:-- "A person's non-residence for the prescribed period or not attaining the age of 21 years is not his disqualification for registration but amounts to his being not qualified *to be registered. So long as one is not qualified no question of disqualification arises. According to Murray's New English Dictionary 'disqualification' means 'the action of depriving of requisite qualifications' and 'to disqualify' means to deprive of the qualifications required for some purpose. A disqualification is, therefore, not identical with the absence of qualification."
44. A Full Bench of the Dacca High Court in Shahidullah Kazi v. The Additional Deputy Commissioner (Development) and Election Tribunal, District Faridpur PLD 1969 Dacca 868 took the same view and ruled that `disqualification' and 'absence or want of qualification' are two different concepts and do not mean one and the same thing.
45. I am also persuaded to take this view by the following observations of B.Z. Kakaus, J. In the famous case of Government of Pakistan v. Akhlaque Hussain PLD 1965 SC 527:-- "While sometimes qualification and disqualification may present two aspects of the same matter, the two concepts are obviously distinct and it is not possible to contend that there can be no classification into qualification and disqualification of the attributes of a person in relation to a profession, etc. Reference may in this connection be made to Article 103 of this very Constitution which in two separate paragraphs provides for qualifications and disqualifications for membership of an Assembly. 'Qualification' as will appear from Aiyar's Law Lexicon means 'that which makes person fit to do an act'. The Lexicon goes on to state: 'qualification relates to the fitness of capacity of the party for a particular pursuit or a profession'. Webstor defines qualifications to mean 'any natural endowment or acquirement which fits a person for a place, office or employment, or enables him to sustain any character with success'. It should be quite appropriate to refer by qualifications to the competence or the positive qualities needed for carrying on a profession and to regard the obstacles in the carrying on of a profession as disqualifications. Every profession requires for the efficient performance of the duties involved in it (1) knowledge, (2) skill and (3) a moral standard. In short whatever goes to his competence or makes a person fit to discharge the duties involved in his profession is a qualification. On the other hand if a person is debarred from entering a profession though he is admittedly quite competent to discharge his duties for some reason not connected with his competence that is. a disqualification. A person may be disqualified because he has served under a foreign Government or because he belongs to a particular tribe or his father was a rebel or because he has already sufficient income from lands or he is a shareholder of a company and so on. He may be the most competent person for carrying on a profession yet he may be debarred because of some other attributes which he possesses. That will be a disqualification."
46. This brings into bold relief the distinction between disqualification and lack of qualification. Be that as it may, so far as this Court is concerned, the issue stands clinched by the pronouncement of the Supreme Court in the case of Malik Hamid Sarfraz v. Federation of Pakistan and another (PLD 1979 SC 991) wherein it was observed that:-- "...Mr. Mahmud Ali Qasuri referred us to Article 207 of the Constitution in an effort to show that as a person appointed as Attorney-General had to be one who was qualified for appointment as a Judge of the Supreme Court, therefore, he could be deemed to be under the same 'disability' as has been placed by the Constitution on a Judge of the Supreme Court in the matter of accepting another-assignment carrying the right to remuneration. The argument is clearly misconceived, as merely prescribing a certain qualification for appointment as Attorney-General for Pakistan does not mean that he would be governed by the same disability as applies to a Judge of the Supreme Court.
47. Now the cases cited by the respondent's learned counsel may also be examined. His strongest reliance was upon the case of Dr. Kamal Hussain and 7 others v. Muhammad Siraj ul Islam and others PLD 1969 SC 42, which is of no relevance as the question in that case was whether a person of more than 40 years of age could be appointed as an Advocate-General. There is no detailed discussion on the subject. The judgment in Muhammad Yousaf v. M. Irshad Sipra and others 1988 CLC 2475 was delivered by a learned Single Judge of this Court as an Election Appellate Authority.
Unfortunately, the attention of the learned Judge was not drawn to the precedents referred to above. Reliance on the case of Muhammad Khan v. Muhammad Sarfraz Khan etc. 1980 CLC 1 is not apt for, that case does not deal with the question in issue. The case of Syeda Abida Hussain v.
Returning Officer and others 1993 MLD 2489 has again no relevance as it was a case arising under Articles 63 and not 62 of the Constitution.
48. There is also considerable force _in the contention raised by Mr.Shahzad Jehangir, Advocate that the provisions relating to disqualification being penal in nature must be strictly construed and disqualifications not spelt out by the Constitution should not be imported by inferences. It is well- settled principle of interpretation of Penal Statute that even if two views are possible, one favourable to the subject has to be adopted. (See Khan Muhammad Yusuf Khan Khattak v. S.M.
Ayyub and 2 others PLD 1973 SC 160.
49. The learned counsel for the petitioner next submitted that if Articles 62 and 63 of the Constitution are not read together many startling results would arise for even an undischarged insolvent or a person of unsound mind would qualify for appointment. This argument is based upon over simplification and cannot be accepted. As will be seen in cases of various other Constitutional offices, there is nothing in the Constitution that a person not of sound mind or an undischarged insolvent cannot be appointed but it would be absurd to assume even such a person would be appointed to any such office.
50. Coming now to the last point, Mr. Shahzad Jehangir, Advocate is correct in contending that there is nothing in the judgment of Ch. Pervaiz Elahi v. Province of Punjab and another PLD 1993 Lah.
595 on the basis of which it could be held that respondent No,1 was not an `Ameen', or 'righteous', Moreover, respondent No,1 was not a party to the proceedings before this Court in Ch. Pervaiz Elahi's case nor did he file his affidavit or appear as a witness. Consequently, the findings given therein, if any, cannot be considered to be binding on respondent No,1 on the question of his qualification or otherwise to be appointed as a Governor.
' For these reasons, this Court has dismissed all the three Constitutional petitions.