NASIR ASLAM ZAHID, J.---This judgment will dispose of Civil Appeal No,844 of 1994 filed by Sahibzada Tariqullah and Civil Appeal No,852 of 1994 filed by Haji Amanuallah Khan as both are directed against the judgment dated 2-10-1994 of the Election Tribunal. We have heard the arguments , of Mr. M. Sardar Khan, Senior Advocate Supreme Court for Sahibzada Tariqullah and Qazi Muhammad Anwar, Advocate Supreme Court, who represented Haji Amanullah Khan.
2. Election to the Provincial Assembly seat from Constituency FP 73 Dir-I was held on 9-10-1993. Four candidates took part in the elections, namely, the two appellants, Muhammad Rashid and Liaq Sayed (also respondents in these appeals). The four candidatessecured the following votes:--
(a) Sahibzada Tariqullah 13167
(b) Haji Amanullah Khan 11147
(c) Muhammad Rashid 2430
(d) Liaq Sayed 203 Having secured highest votes, Sahibzada Tariqullah was declared elected and his election was called into question by Haji Amanullah Khan through an election petition on the ground that he was disqualified under Article 63(1)(e) of the Constitution; identical provision in the Representation of the People Act, 1976 is section 99(1-A)(e). The case made out in the election petition against Sahibzada Tariqullah was that he was the District Administrator of Afghan Refugees Organization (A.R.O.) which was controlled and run by the Government and that he relinquished the office on 31- 5-1993 and as a period of 2 years had not expired since his ceasing to be in the employment of A.R.O. He was disqualified.
By the impugned judgment dated 2-10-1994, the Election Tribunal allowed the election petition filed by Haji Amanullah Khan after reaching the conclusion that the returned candidate, namely, Sahibzada Tariqullah, was disqualified under the said provision. The Tribunal held the election to the constituency void as a whole and ordered fresh election. Sahibzada Tariqullah has filed Civil Appeal No,844 of 1994 challenging the judgment of the Election Tribunal on the ground that he was not disqualified under the Constitutional and legal provisions referred hereinabove. Haji Amanullah Khan, on the other hand, filed Civil Appeal No,852 of 1994 challenging that part of the impugned judgment which declared the whole election as void and has prayed that, having secured the highest votes next after Sahibzada Tariquallh he be declared elected.
3. Mr. M. Sardar Khan appearing for Sahibzada Tariqullah has raised the following contentions in his challenge to the judgment of the Election Tribunal:--
(i) On record of the Election Tribunal it had not been proved that A.R.O. Was established or controlled by the Federal Government;
(ii) sufficient material is available on the record of the Election Tribunal that A,R.O. Is a Non- Governmental Organization (NGO) financed by United Nations High Commissioner for Refugees (UNHCR) and other international aid-giving-agencies;
(iii) any regulatory supervision over A.R.O. Cannot be equated with "control" of A.R.O. By the Government;
(iv) law of disqualification requires very strict proof based on positive evidence and the winner's election should not be set aside on inferences and surmises;
(v) election trial is akin to a criminal and if there is a doubt, benefit thereof should go to the returned candidate who is sought to be disqualified;
(vi) decisions of the Supreme Court referred to and relied upon in the judgment of the Election Tribunal are distinguishable and in any case findings in such judgments were not binding on the returned candidate as the material relied upon in the said judgments had not been brought on the record of the Election Tribunal in this case.
4. Qazi M. Anwar, Advocate Supreme Court for Haji Amanullah, on the other hand, argued that the evidence on record of the Election Tribunal had established that A.R.O. Is a body "controlled" by the Government. He referred to the evidence and the documents produced during the trial. He also relied upon the two judgments of this Court referred by the Tribunal.
5. Article 61(1)(e) of the Constitution reads as follows:-- "61.--(1) A person shall be disqualified from being elected or chosen as and from being, a member of the Majlis-e-Shoora (Parliament), if--
(e) he is in the service of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest; or The only question on which arguments were addressed by the learned counsel in these appeals before us was whether A.R.O. Is a body "controlled" by the Government. It is an admitted position that, for nearly 10 years, Sahibzada Tariqullah served the Organization as an Administrator and, when the election took place on 9-10-1993, two years had not expired since Sahibzada Tariqullah left the service of A.R.O.
The question in the appeal filed by Sahibzada Tariqullah is not whether he was a civil servant or a temporary employee of A.R.O. Or was serving the Organization on contract basis. The question requiring determination by the Election Tribunal was whether Afghan Refugees Organization was a body "controlled" by the Government and if the answer is in the affirmative, the case of Sahibzada Tariqullah came within the mischief of Article 63(1)(e) of the Constitution and was, therefore, disqualified.
6. There are two main witnesses who give evidence before the Election Tribunal, namely, P.W.1 Iltaf Gul, Establishment Superintendent, Afghan Refugees Organization, Peshawar and R.W. 2 Taimoor Khan, Section Officer, Afghan Refugees Home Affairs, Department, Government of N.-W.F.P., Peshawar. R.W.1, an officer of A.R.O. Had brought the personal file of Sahibzada Tariqullah. He produced various documents from the file of Sahibzada Tariqullah which proved that Sahibzada Tariqullah had been appointed as an Administrator in Afghan Refugees Organization by the Governor, N.-W.F.P.; he was initially placed in BPS-16 and was in due course of time promoted to BPS-17 and then to BPS-18 all under the orders of Government of N.-W.F.P.; ex-Pakistan leave had been granted to Sahibzada Tariqullah by the Governor of N.-W.F.P. He also deposed that Afghan Refugees Organization was financed by the Government and the officers in BPS-16 and above in Afghan Refugees Organization got their salaries and allowances from the office of the Accountant- General, N.-W.F.P., the same manner as other Government servants in other Departments. In answer to a question in cross-examination, the witness expressed his ignorance as to who provided funds to A.R.O. But he accepted as correct that funds were received by the Organization through SAFRON (a Government Department). He was not aware whether the funds provided by SAFRON were reimbursed by UNHCR. R.W.2, a witness of Sahibzada Tariqullah, deposed that he was working as Section Officer in the. Home Affairs Department, Government of N.-W.F.P. And that the employees of A.R.O. Had no separate service structure and were contractual employees and that A.R.O. Was funded by UNHCR and other foreign-aid giving agencies.
7. The Election Tribunal on the basis of evidence, including the aforesaid documentary evidence, came to the conclusion that Afghan 'Refugees Organization was a body "controlled " by the Government of N.-W.F.P. It has been observed that the evidence is available on the record of the Election Tribunal that all officers in Grade-16 and above in A.R.O. Were appointed by the Government of N.-W.F.P. Sahibzada Tariqullah himself had been appointed as District Administrator in the A.R.O. By Governor, N.-W.F.P. And was promoted. First to Grade-17 and then to Grade-18 by the Governor; even for going abroad ex-Pakistan leave was required to be taken from the Governor by Sahibzada Tariqullah salaries of officers in Grade-16 and above in A.R.O. Were paid by the Accountant-General, N.-W.F.P., and that all funds were provided to A.R.O. By the Provincial Government, though UNHCR and other international agencies may have been providing funds to the Government for purposes of running A.R.O.
The Election Tribunal came to the conclusion, on the basis of the evidence which had come on record, that A.R.O. Was a body "controlled" by the Provincial Government. The Tribunal has extensively referred to documentary and other evidence brought on record in reaching this finding.
We find no illegality or misreading of evidence by the Election Tribunal to interfere in such finding.
The first contention of Mr. Sardar Khan that evidence on record of the Tribunal had not established that A.R.O. Was controlled by the Federal Government, is therefore, without merit. His contention that A.R.O. Was a N.G.O. Financed by UNHCR and other international aid-giving agencies is not entirely correct inasmuch as the evidence shows that the funds are provided to the Government and it is the Government which provides funds to A.R.O. For its administrative expenses and other functions connected with helping the A Afghan Refugees. Even if A.R.O. Is an N.G.O. And that the funds for its maintenance are initially provided by international aid-giving agencies to the Government would not make difference to the decision of the Tribunal inasmuch as the finding is that A.R.O. Is a body controlled by the Government which finding is based on evidence. Other contentions raised by Mr. M. Sardar Khan that law of disqualification requires very strict proof based on positive evidence and that in case there is a doubt, benefit of such doubt has to go to the candidate who has won the election and is sought to be disqualified also do not support the case of Sahibzada Tariqullah. We have reached the conclusion that the finding of the Tribunal is supported by the evidence on record which finding does not call for interference.
8. Reliance had been placed by Mr. M. Sardar Khan on. PLD 1984 SC 385, Ghulam Rasool v.
Muhammad Hayat for the proposition that regulatory supervision of an Organization or a body cannot be equated to "control" of such Organization or body by the Government to call for disqualification of a candidate who was an employee in such Organization or body. On the facts of that case, this Court came to the conclusion that Pakistan Oil Fields Limited Company was not a body controlled by the Government and in reaching such conclusion this Court had noted that in the case of the said Company not more than 3 out of 8 Directors were nominees of the Government and that the Government share in the capital of the Company did not exceed 34.76 per cent. And though the staff of the said Company had been declared as essential personnel under the Pakistan Essential Services (Maintenance) Act, 1952, the regulatory control of the Government under the said Act did not amount to "control" of the Government under the disqualification provision in the Election laws.
The judgment in PLD 1984 SC 385 is clearly distinguishable. In the present case, total and effective control of the Government is based through appointment of all officers in A.R.O. And the fact that salaries of officers in Grade-16 and above were paid directly by the Accountant-General, N.-W.F.P.
And that the funds for running A.R.O. Were provided by the Government, though international aid- giving agencies may have been reimbursing the Government in this regard. In fact the entire management of A.R.O., according to the evidence on record, vested in the Government. It was not a case of mere regulatory control of the Government over the Organization. Reliance had also been placed on the judgment in the case of Sabiruddin v. Mushtaq Husain Bhatti PLD 1993 SC 412, in which reference had been made to PLD 1984 SC 385. In PLD 1993 SC 412, election of the respondent was challenged on the 'ground that he was an employee of United Bank Ltd. Which was wholly owned and controlled by the Federal Government. This Court came to the conclusion that Government having ownership of the shares, appointing officials and functionaries at its discretion and commanding management, had full control over the Banks and respondent being an employee of such a Bank was hit by the disqualification provision. This judgment also does not advance the case of Sahibzada Tariqullah.
9. Reliance has also been placed on the case of Alam Zab Khan v. Commissioner, Afghan Refugees 1994 SCM R 546, where it was held that the petitioner being an employee of A.R.O. On contract basis was not a civil servant and as such was not entitled to maintain his appeal before the Service Tribunal. As already observed for disqualification under Article 63(1)(e), it is not necessary that the candidate must be a civil servant. The said provision would also be attracted in case it is found that the candidate is in the service of anybody which is owned or controlled by the Government. As noticed, in the case of Afghan Refugees Organization, the evidence had proved that the Organization was controlled by the Goverment and as such Sahibzada Tariqullah was rightly disqualified.
10. The Tribunal had also relied upon the two unreported judgments of this Court in the Civil Appeal No,574 of 1992 (Mir Ahmad Khan v. Secretary to the Government) and Civil Appeal No,22(P) of 1988 (Commissioner A.R.O. And others v. Fazli Hakim). In the judgment in Civil Appeal No,574 of 1992 an objection had been raised regarding jurisdiction of the Federal Service Tribunal to entertain an appeal by an employee of A.R.O. And, while dealing with such objection, this Court noted that a similar objection had been raised in Civil Appeal No,22(P) of 1988 and in the judgment in that appeal it was held as under:-- "Another ground which was raised during the course of the hearing of the appeal but not noted in the leave granting order was that the respondent could not be treated as a Federal Government employee and had to be dealt with under the Provincial Law being for all purposes governed by the Ciyil Servants Act of the Province of N.-W.F.P. We find at page 21 of Service Tribunal's record a determination of the Government of Pakistan, States and Frontier Regions Division, dated 21st March, 1982, wherein it was made clear that the posts were civil in nature, were connected with the affairs of the Federation and were to be paid from the Federal Budget, and the employees were to be 'Federal Government employees and governed by rules applicable to the Federal Government employees."
From the aforesaid stand taken by the Federal Government it follows that the posts in A.R.O. Were civil in nature, were connected with the affairs of the functionary and were paid from the Federal Budget and the employees were to be the Federal Government employees and governed by the rules applicable to the Federal Government employees. Even if the contention of Mr. M. Sardar Khan is accepted that the stand of the Government of Pakistan in the Service Tribunal record in Civil Appeal No,22(P) of 1988 could not be relied upon by the Tribunal in the present case as the said documents had not been placed on record in the present case, it would not affect the decision of the Election Tribunal in the present case as we have already held that, on the evidence on record, the Election Tribunal had come to a correct conclusion regarding disqualification of Sahibzada Tariqullah.
11. As regard the other Civil Appeal No,884 of 1994 filed by Haji Amanullah Khan for being declared elected on having received highest votes after Sahibzada 'Tariqullah, we find no merit in that appeal also. Qazi M. Anwar, learned counsel appearing for Haji Amanullah Khan did not press his appeal. Even otherwise we are of the view that the Tribunal had rightly declared the whole election as void and did not declare Haji Amanullah Khan as elected. The Tribunal rightly held that Haji Amanullah Khan was not entitled to be declared elected because the disqualification of Sahibzada Tariqullah was not notorious and as such the votes cast in his favour could not be deemed to have been thrown away.
The Tribunal also rightly observed that there were two other contesting candidates also besides Sahibzada Tariqullah and if he had not been in the field the possibility that any one of them might have secured the votes obtained by Sahibzada Tariqullah could not be ruled out all together.
12. Finding no merit in either of these appeals, Civil Appeal No,844 of 1994 filed by Tariq Ullah and Civil Appeal No,852 of 1994, filed by Haji Amanullah Khan are dismissed.