This Election Petition, under Article 225 of the Constitution of Pakistan (1973) read with section 52 of the Representation of the People Act, 1976 by Mr. Shahid Nabi Malik, calls in question the notification of success of Mr. Muhammad Ishaq Dar/respondent No.1 as a returned candidate from the seat of National Assembly NA-95, Lahore. The Notification was published in the official Gazette on 9th December, 1993.
2. The controlling facts, according to the petition, are that by-election of NA-95, Lahore was scheduled on 2-12-1993. The petitioner as well as five respondents/namely Mr. Muhammad Ishaq Dar/1st respondent, Mr. Almas Haider Kazmi/2nd respondent, Syed Qaisar Shah/3rd respondent, Aqeel Ahmad/4th respondent, Nawab Amber Shahzada/5th respondent filed their nomination papers before the Returning Officer on 30-10-1993. The Returning Officer, on the date of scrutiny, found all the nomination papers in order as none of the nominated candidate raised objection.
Meanwhile, the petitioner became aware that first respondent had been serving as a full-time Vice Chairman of Pakistan Investment Board (shortly referred to as P.I.B.) from 15-9-1992 to 19-4-1993 and so he was ineligible to file his nomination papers within the terms of Article 63(1) (k) of the Constitution. Of Pakistan and section 99(1-A)(k) of the Representation of the People Act, 1976 (hereinafter described as Act) as 2 years have not elapsed between the date of his resignation and filing of nomination papers. Feeling so, the petitioner preferred an application before the Chief Election Commissioner under section 103 of the Act for seeking declaration that first respondent was 'ineligible to contest Election. Besides this, he filed Constitution petition (W.P. No.16274/93) which was admitted to full hearing by the High Court on 24-11-1993. This was not the end of the matter. Malik Mehraj Khalid and Raja Abdul Sattar too joined the battle and filed separate writ petitions/challenging Mr. Muhammad Ishaq Dar right to contest the Election. These petitions were filed on 27-11-1993 and were admitted to hearing. On 30-i1-1993 High Court was pleased to issue an order that the result of Election of NA-95, Lahore shall not be announced till the decision of the afore noted petitions. The first respondent also did not lag behind. He, too, called in question the right of the petitioner to contest election by lodging an application before the Chief Election Commissioner. The aforestated two applications were dealt with by the Chief Election Commissioner who, by order, dated 30-11-1993, dismissed the application filed by first respondent and adjourned the hearing of the application moved by the petitioner to 20-12-1993. Feeling dissatisfied from the order, dated 30-11-1993 passed by Lahore High Court in W.P. No. 16274 of 1993, the first respondent went to Supreme Court and the Hon'ble Supreme Court was pleased to modify the impugned order and directed the Election Commission to announce the result of the Election. It was, however, observed that the result so announced shall be subject to the decision of the Constitution petitions pending before the Lahore High Court. The Election was held on scheduled date and the following results were declared:
(1) Mr. Muhammad Ishaq Dar39483 Votes
(2) Mr: Shahid Nabi Mali23825 Votes
(3) Mr. Almas Haider Kazmi103 Votes
(4) Mr. Aqil Ahmad49 Votes
(5) Syed Qaiser Shah43 Votes
(6) Nawab Amber Shehzada26 Votes. and so the impugned result was notified in the official Gazette. Feeling dissatisfied, the petitioner had filed the instant election petition on 22-1-1994.
3. The petition was contested by first and fifth respondents. None others filed any reply. First respondent also filed recrimination petition/alleging therein that the petitioner was a bank- defaulter and so he was neither 'Amin' nor sagacious and so he was disqualified to contest election. On the pleadings of the parties the following issues were framed: ISSUES:
(1) Whether respondent No. 1 was in service of Pakistan with effect from 15-9-1992 to 19-4-1993 and he was so ineligible to file his nomination papers on the relevant date, if so, what is its effect? OPP
(2) Whether the petitioner was disqualified to contest the Election for the reasons mentioned in recrimination notice?
(3) Whether disqualification of the respondents, if any, was so notorious as to attract the principle of .Throwing away of votes? OPP
(4) Relief. '
No other issue was claimed. It is pertinent to mention over here that issues were framed with the consent and active participation of the learned counsel for the contesting parties. In order to substantiate his case, the petitioner relied upon P.W.1 Ashfaq Hussain/Section Officer, Cabinet Division, Islamabad, P.W.2 Riazul Haq, Deputy Secretary, Prime Minister Secretariate, Islamabad, P.W.3, Ch. Saeed Ahmad, Deputy Director, Pakistan Investment Board, P.W.4 Sh. Rafique Ahmad, Advocate P.W.5, Badarul Islam Butt, P.W.6 Bakhat Geer Ahmad, and P.W.7 Sadiq Hassan, P.W.8 Malik Shabbir Hayat, Advocate P.W.9 Ch. Muhammad Aslam Gill and. Mr. Shahid Nabi 4. In order to prove his case, the first respondent examined R.W.1, Mr. Khalid Javed (former Finance Secretary), Government of Pakistan, R.W.2, Iftikhar Malik, Deputy Secretary, Ministry of Finance, R.W.3, Mukhtar Haider Shah, Deputy Secretary, Ministry of Industries R.W.4, Ch. Saeed Ahmad, Deputy Director, Board of Investment, R.W.5 Imtiaz Ahmad Sahibzada, Cabinet Secretary, Government of Pakistan, R.W.6 Kh. Riaz Mahmood and R.W.7 Abdul Waris Malik. In addition to it, the first respondent tendered into evidence his own affidavit, copy of Foreign Investment Advisory Services, copy of Income Tax Return.
5. The petition was argued by the learned counsel for the parties with . Their usual remarkable dexterity, industry and legal acumen. The learned counsel for the petitioner as well as the learned counsel for first respondent tendered their written notes. None, however, had entered appearance on behalf of respondents Nos.2, 3, 4 and 6. They had, therefore, been proceeded against ex parte.
Nawab Ambar Shahzada/respondent No.5 was represented by Mr. Irshadullah Chattha, Advocate, who, however, never showed keen interest in proceedings of the petition. Neither he produced any evidence nor he argued the case. The arguments advanced by the learned counsel for the petitioner can be conveniently summarized as below: Firstly;that Mr. Muhammad Ishaque Dar, was appointed as full-time Vice --Chairman of P.I.B. On 15- 9-1992 vide Notification No.TA-14(2)/92--PIB(Mark 1PD); that first respondent served as Vice- Chairman up to 22-4-1993 when he submitted his resignation which was accepted on the same day; that P.I.B. Which was part and parcel of Ministry of Industries and was subject to control of the Prime Minister Secretariat. On the strength of this circumstance, it was argued that first respondent had been in service of Pakistan within the terms of Article 260 of the Constitution and two years had not elapsed from the date of his resignation and the date of filing of nomination papers and so that Returning Officer had accepted his nomination papers without any lawful authority. In this view it was suggested that the election of first respondent was wholly void, ab initio and merited to be declared as such. Reliance was placed on Nasrullah Khan v. Ghulam Mustafa Khar PLD 1977 Jour.
299, Syeda Abida Hussain v. Returning Officer 1993 MLD 2489 and Syeda Abida Hussain v. Tribunal for NA. 69 PLD 1994 SC 60.
Secondly; that first respondent was never administered oath within the terms of Article 92(2) of the Constitution. According to the learned counsel under Article 92(1) of the Constitution the President appoints the Federal Minister and Ministers of State from the amongst the Members of Majilis-e- Shoora (Parliament) on the advice of the Prime Minister. This Article further requires that the holder of office of Minister of State shall take oath in the form set out in the Third Schedule and is to seek election to Majlis-e-Shoora within a period of six months, if at the time of his appointment, such Minister was not Member of Parliament. According to the learned counsel, there, was a common ground between the parties that neither Mr. Muhammad Ishaque Dar took oath nor he secured his election within the meaning of the Constitution. In this view, it was suggested that Mr. Muhammad Ishaque Dar did not enjoy the status of a Minister of State and so was within the services of Pakistan under Article 260 of the Constitution.
Thirdly; that the first respondent was obviously in services of Pakistan and this aspect of the case was known to voters who cast their votes in his favour. According to the learned counsel, the Lahore is the heart of Pakistan and the area of NA-95 is the heart of Lahore as all the known educational institutions are located in this constituency. This being the position, according to the learned counsel, the disqualification of first respondent was so well-known and so well-explained to the voters; that the principle of throwing away of the votes was clearly attracted to this case. In order to fortify his contention the learned counsel for the petitioner relied upon the following cases: Abdul Ghani v. Mumtaz Hussain 1986 SCMR 1701, Saleh Muhammad v. Muhammad Riaz PLD 1962 Lah. 68, Allah Yar Khan v. Sardar Ali PLD 1968 Lah. 319,, Sanaullah v. Election Tribunal PLD 1966 Lah.
97, Zafarullah Khan v. Muhammad Shafi PLD 1976 Lah. 302, Lai Muhammad v. Muhammad Usman 1975 SCMR 409, Haji Muhammad v. Ali Bakhsh Shah 1987 CLC 841, Saheb Mia Chaudhry v. Election Tribunal PLD 1966 Dacca 439, Rashid Ahmad Rehmani v. Mirza Barkat Ali PLD 1968 SC 301, Raja Afzal v. Ch. Manzoor Illahi PLD 1975 Lah. 1278, Saeed Hassan v. Pyar Ali Alana PLD 1976 SC 6.
On these facts, it was argued that the election of first respondent be set aside and the petitioner, in his place, be declared as elected.
Fourthly; that the Recrimination petition filed by the first respondent was barred by time in view of section '66 of the Act. Explaining further, it was submitted that the petitioner came up for hearing for the first time on 21-3-1994, but the first respondent did not file any Recrimination petition which was filed on 20-11-1994. So, the Recrimination petition was barred by time.
Fifthly; that the petitioner was 'Amin', `sagacious; that had filed review petition against the decree of the Banking Court dated 21-8-1993; that the Review petition is still sub judice. On these facts, it was suggested that the petitioner could not be treated, on* the basis of simple bank-- decree, as not sagacious and not Amin.
6. Mr. Muhammad Akram Sheikh, Advocate the learned counsel for respondent No.1 replied the above contentions as follows: Firstly;that Article 63(1) of the Constitution had various clauses out of which clauses (d), (e), (k) and
(o) were relevant. According to him all these clauses were to be given harmonious construction and expression `office of profit' used in clause (o) ibid, was to be read into clauses (d), (e) and (k) ibid. According to the learned counsel the sum and substance of service of Pakistan was salary or fee and until and unless it was shown that the office of Vice-Chairman of P.I.B. Was remunerated, that post did not fall within the ambit of civil service as defined in Article 260 of the Constitution.
Reliance was placed on Kanta Kathuria v. Manak Chand AIR 1970 SC 694 and K.B. Rohamare v.
Shankar Rao AIR 1975 SC 571. On the strength of the above, it was vehemently argued that neither the petitioner received any salary nor any fee and he was serving the country out of love and affections. So, he was not disqualified within the terms of Articles 63(1), (d), (e) and (k) of the Constitution.
Secondly; that vide order, dated 19-12-1992, the first respondent was conferred the status of Minister of State with effect from 15-9-1992 and so the first respondent did go out of mischief of Article 260 ibid. Thirdly; that the learned counsel for the petitioner had made a statement that he would not like to cross-examine respondent No.1 and the affidavit filed by him became a substantial piece of evidence wherein it was claimed that first respondent was not in the services of Pakistan at the relevant time of filing the nomination papers.
Fourthly; that section 52 of the Act had been declared contrary to injunction of Islam and so it stood erased from the Statute Book. Help was sought from the decision of Federal Shariat Court reported as Muhammad Salahuddin v. Government of Pakistan PLD 1990 FSC 1.
Fifthly; that the word `office' was of a wide amplitude and of varied meanings. It, however, carried an element of permanency. According to the learned counsel the office of Vice-Chairman, P.I.B., was neither permanent nor salaried. So, this office did not fall within the terms of Article 260 nor Article 63(1), clauses (d), (e), (k) and (o) of the Constitution; Sixthly; that even if it was assumed (without conceding) that first respondent suffered from disqualification to contest election, his disqualification was such that it needed determination by the Court of competent jurisdiction and so the petitioner could not be declared successful in place of first respondent. Reference was made to Muhammad Afzal v. Manzoor Illahi PLD 1975 Lah. 1276; Syed Saeed Hassan v. Pyar Ali PLD 1976 SC 6 and Rashid Ahmad v. Barkat Ali PLD 1968 SC 301.
Seventhly; that the Election Petition' was filed on 24-1-1994 and so it was not filed within the time as prescribed by section 52 of the Act.
Eighthly; that the petitioner has not correctly verified the election petition so it merits rejection.
Reliance was placed on Muhammad Ibrahim v. Muhammad Arif Sardar 1986 CLC 2050, Sardar Khalid Nawaz v. Manzoor Ahmad Wattoo 1987 CLC 1167, Tariq Mahmood Bajwa v. Muhammad Afzal Sahi 1994 CLC 1366 and Mayor War Ahmad Hiraj v. Dr. Khawar Ali Shah 1988 CLC 1289.
Ninethly and lastly; that the petitioner was a bank defaulter; that he had pocketed the money of Bank and so he could not be termed as 'Amin' within the meaning of Article 62 of the Constitution.
7. Having penned down the facts, the circumstances of the case and the arguments of the parties, I now proceed to deal with the points for determination. Before dealing with Issue No.1, I find it essential to note three well-known and well-established principles pertaining to interpretation of the Constitutional provisions: Firstly;that the Constitution is a living document. It reflects the ideological aspiration of the people and is made through their will. It is a basis document which lays down the framework of distribution of the powers and subjects between Federation and Federating Unit and between three limbs of the State, i.e. Legislature, Executive and Judiciary. Being the life and soul of the country and being the main fountain of authority, it is to be interpreted liberally, and is to be saved A from cosmetic, circumscribed and pedantic constructions. It is to be construed organically and with purposiveness. It is not only document of a past, present but is of a future, so it is to be interpreted in a manner to meet the exigencies of the State, the changing conditions of socio-religious and economic, dynamics of the State. See New Electronics (Pvt.) Ltd. v. Collector of Customs (Appraisement) PLD 1994 Kar. 286, Arif Iqbal Hussain Bhatti v. Federation of Pakistan PLD 1994 Lah.
220 and Aisha Spinning Mills Ltd. v. Federation of Pakistan 1995 PTD 493.
Secondly; that object of incorporating a definition clause in a statute is generally to declare what certain expressions or words embodied in the statute shall mean. The definition clause is declaratory in nature and ordinarily applies to expressions used in statute. Normally, the 13 definition clause controls the meaning of words in a given statute, The Punjab Cooperative Bank Ltd. v. The Republic of Pakistan and 128 others PLD 1964 SC 616, Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and 3 others PLD 1965 SC 434 and Sh. Ihsanul Haq Piracha v. Wasim Sajjad and others PLD 1986 SC 200. In the latter case, while interpreting the definition clause, speaking for the Bench, his Lordship Justice Shafiur Rehman, as he then was, said: -- "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, its recognition and experience in a specialized area of knowledge, and practice in that particular specialization. In contra--distinction 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) emphasize the practical 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'
Thirdly; that our Constitution is built upon the doctrine of separation of powers. To legislature is allocated the function of making laws, to Executive is given the task of implementing the laws made by the Legislature; the Judiciary is assigned the task of interpreting and construing the laws within the framework of Constitution.
8. Guided by these principles, I, now, take up Issue No.1. This issue raises question pertaining to construction of Articles 62, 63, 91, 92 and 260 of the Constitution. While Article 62 prescribes the positive qualification required for contesting election to seat of the Parliament, Article 63 lays down the negative disqualification. Any person who falls within any sub-clause of Article 63 ibid, is disqualified from seeking Membership of Parliament. Article 260 is an interpretation clause. It defines the various expressions used-in the various provisions of the Constitution and states that unless the context of the given provision otherwise requires, the meaning given to that word in this clause, shall apply. As the meaning of expression `service of Pakistan' embodied in this Article is of decisive importance, I will first venture to deal with this expression in detail. This expression contained in Article 260 is asunder: " `Service of Pakistan' means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis--e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate-General, Parliamentary Secretary or Chairman -or Member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or Member of a House or a Provincial Assembly." This word/expression came up for consideration before superior judiciary on number of occasions in different factual background. In Nawabzada Nasrullah Khan v. Ghulam Mustafa Khar PLD 1977 Jour. 299, this expression was examined by his Lordship Justice Dr. Nasim Hassan Shah as a Member of Election Commission. Mr. Ghulam Mustafa Khan had been appointed Special Assistant to the Prime Minister on 16-6-1977. He continued to hold this office till July, 1977 when Martial Law was proclaimed and he, so, was ousted from that office on 18-8-1977. He filed his nomination papers as candidate for election to National Assembly from Constituency No.128, Muzaffargarh-II which was accepted by Returning Officer vide order dated 20-8-1977. Feeling aggrieved, Nawabzada Nasrullah Khan another candidate from the same Constituency, challenged the order by filing an appeal on the premises that Ghulam Mustafa Khar had been occupying the office of Special Assistant to Prime Minister and Was so disqualified from being a candidate to contest election. Having examined the relevant law, the learned Member of Election Tribunal upheld the contention and found that Mr. Ghulam Mustafa Khan had been occupying a post in service of Pakistan. It will be extremely advantageous to reproduce paragraph 16 of the judgment: -- "The upshot is that the respondent has been in the service of Pakistan as the said expression is to be understood in its ordinary sense, as distinct from the special meaning given to it is Article 260 of the Constitution. The interpretation of the learned counsel for the respondent that the meaning assigned to the said expression should also be given to it while interpreting sub-clause (4) of clause (b) of Article 10(2) of the Order cannot be accepted as it would amount to nullifying the effect of Explanation I to the said sub-Article and treating it as redundant, which cannot be done.
The interpretation placed on sub-clause (4) of clause (b) of Article 10(2) of the Order avoids the startling results apprehended by the counsel for the respondent and full effect must, therefore, be given to it. On so doing the respondent must be held to be disqualified as he was in the service of Pakistan and a period of two years has not elapsed since he ceased to be in such service "
The same question came up for examination again in Mst. Sardar Bibi v. Finhas and others PLD 1980 Jour.
43. The Local Councils Election Authority Punjab held that respondent No.1, who was in service as work-charged, was disqualified from being elected to the seat in question by virtue of section 21(f) of Ordinance No.VI of 1979 read with section 99(d) of the Act as two years had not elapsed since he ceased to be in service when counted on the date of filing of nomination papers. In Syeda Abida Hussain v. Returning Officer and others 1993 MLD 2489, the Election Tribunal Punjab comprising of their Lordships Justice Ijaz Nisar and Muhammad Nawaz Abbasi, refused to uphold the contention of Syeda Abida Hussain that she had been appointed as Ambassador in United States on a contract basis and so her case did not fall within the mischief of Article 240 and Article 260 of the Constitution. Feeling aggrieved, Syeda Abida Hussain preferred C.P.S.L.A. No.1242-L of 1993 which was dismissed in limine by Supreme Court. Speaking for the Bench, his Lordship Justice Saad Saood Jan, while dealing with expression `service of Pakistan' as embodied. In Article 260(1) said: "Learned counsel for the petitioner rightly concedes that the post of an Ambassador is a post in connection with the affairs of the Federation. It will be seen that the definition does not take notice of the manner in which a post in connection with the affairs of the Federation or a Province may be filled. Thus, so far as the inclusion of a post in the service of Pakistan is concerned, it is immaterial whether the holder thereof has come to occupy it through a special contract or in accordance with the recruitment rules framed under the Civil Servants Act; consequently, the mere fact that a person is not a civil servant within the meaning of the Civil Servants Act would not put him beyond the pale of the said Constitutional definition. The contention that the case of the petitioner was covered by sub-clause (n), ibid, is entirely misconceived as ex facie it does not apply to situations where the relationship of master and servant exists between the parties. Here, the petitioner was a whole time employee of the Government and except for matters which were specifically provided in the letter of appointment she was governed by the ordinary rules of service applicable to the civil servants. It may perhaps be of interest to mention here that these rules were framed in pursuance of the provisions of Article 240, ibid. Thus, the assertion on her behalf that while serving as an Ambassador she could not be treated as one in the service of Pakistan merely because her appointment to the post owed its origin to a special contract cannot be accepted. Admittedly, a period of two years has not passed since she relinquished charge of the said post. Therefore, she has been rightly held to be suffering from the disqualification laid down in clause (k), ibid. We find merit in this petition. It is hereby dismissed."
9. It is unnecessary to examine the decision rendered by my brother Malik Muhammad Qayyum, J.
In Writ Petition No.3693 of 1994. As in this case the question for examination before my brother was whether the office of the Governor was Constitutional in nature and so it did not fall within the ambit of Article 260. Similarly, the facts of Rao Hashim's case are dissimilar to circumstances of this case. However, one more case which needs examination is Mr. Khalid Ahmed Kharl's case which was decided by this Court in Writ Petition No.7071 of 1990. His Lordship Justice Irshad Hassan Khan, now the Acting Chief Justice, Lahore High Court, speaking for the Bench, said: "We do not think that it would be expedient to express any view on the submissions made by learned counsel for the petitioner which touch the merits of the writ petition because the question of acceptance of rejection of nomination papers is essentially a matter which falls within the purview of `election dispute' and such a matter is not justiciable in writ jurisdiction at this intermediary stage in view of the judgment of the Supreme Court in the case of Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 396. The relevant portion reads thus: --- `Accordingly what is intended to be achieved by the exercise of the power under Article 199 is achieved by the exercise of the appellate power by the Supreme Court in an appeal against the decision of the Tribunal not at an intermediate stage but only after the election is over. There is, therefore, no scope of any interference by the High Court under Article 199 of the Constitution to interfere with the process of election at an intermediate stage or question the correctness of the decision of the Election Tribunal on any ground whatsoever upon an election petition filed to question the validity of the election'."
10. Having dealt with Article 260, now I turn to Articles 62, 63, 91 and 92 of the Constitution. As already stated that Article 62 deals with the positive qualification required for candidate for the membership of Parliament. While Article 63 enacts, in negative terms, the disqualification of such candidate. Any person who comes within any of the sub-clauses of this Article, will not be a fit person to seek membership of the Parliament. Articles 62 and 63 were enacted to save the Parliament from vicious influence of the Executive. In order to provide a fair, neatly and vibrant mechanism of governance, it was felt necessary to exclude from the Parliament from those who were employed in the service of the country for sometime to keep the stream of legislation free from pollution. In order to achieve the above objective, Articles Nos.62 and 63 were put in the Constitution. The contention of the learned counsel for the respondent No.1 is that respondent No.1 did neither receive any salary nor obtain any fee and so he did not hold any office of profit within the terms of Articles 63(1) (o) and so he did not fall within the mischief of Article 260. He further relied upon the sue word "office of profit" in clause (o), to suggest that this word used in (o) and (d) be read into clauses (e) and (k) of this Article. I am afraid this submission is not tenable. As already noted, Article 63 has two sub-Articles. Sub-Article (1) has 16 sub-clauses. These sub-clauses, in substance, cater for different fields. No doubt, clauses (d), (e), (k) and (o) relates to holder of office in service of Pakistan, in the service of statutory body or any body which is owned or controlled by Government or in which the Government has a controlling share, yet these have been inserted to disqualify different clauses. They pertain to separate fields. On the principle of casus omissus this Tribunal cannot read the expression `office of profit', used in sub--clause (d) in sub-clauses (e) and (k). Such an exercise will be contrary to intents and purposes of the Constitution which was designed to-keep away such persons from the Parliament. I am, accordingly, unable to accept the argument of learned counsel for the respondent which actually seeks inspiration from the decision of the Supreme Court of India. It will be apt to note over here that the relevant provisions in Constitution of India, i.e. Article 84, Article 101 and Article 102 are couched in a different language which holds no similarity with the language of Article 63 and Article 260 of our Constitution. In order to further, understand the point, it will be proper to reproduce Article 63(1)(d), (e), (k) and (o) of our Constitution and Article 102 of the Indian. Constitution: From the perusal of Article 102, it becomes abundantly clear that the word used in Article 102 is `the office of profit under the Government of India or the Government of any State other than office declared by law not to disqualify its holder'. The word `service of Pakistan' as defined in Article 260 and expression used in Article 63(1)(e) and (k), are different. The rule laid down by Supreme Court of India in Karbhari Bhimaji Rohamare v. Shanker Rao Genuji Kolhe and others AIR 1975 SC 575 in my humble view, does not lend any support, whatsoever to the stand of first respondent. From the foregoing discussion it becomes quite clear to me that the expression `service of Pakistan' as embodied in Article 260 is neither circumscribed by any concept of salary nor by any fee. It is applicable to any service, post or office in connection with the affairs of Federation or of a Province and includes all Pakistan Services, services in Armed Forces )r any other service, declared to be service of Pakistan or the Act of Parliament or of a Provincial Assembly. It only excludes from its ambit the holder of office, mentioned therein. Furthermore, the word `office of profit' cannot be read into Article 63(1), (e) and (k) of the Constitution.
11. Applying these principles to the facts and circumstances of this case, it is quite clear that vide Notification dated 29-6-1992, the Government of Federation had decided to establish P.I.B. With an object to promote direct foreign investment in the country; that respondent No.1 was appointed as a full-time Vice-Chairman of P.I.B. On 15-6-1992. The Notification of order viz. Appointment indicates that the terms and conditions of this appointment would be determined thereafter. It is not disputed that vide Notification No.4-10/92--Min. The P.I.B. Was reconstituted and its charter was made clear therein. It will be highly necessary over here to reproduce the afore stated Notification:- -- "No.4-10,/92-Min.I.---In supersession of this Division's Notification No.4-10/92-Min. I (ii), dated the 30th August, 1992, the Prime Minister has been pleased to set up the Pakistan Investment Board with the following composition and terms of reference: -- I. Composition:
(1) Minister for Industries Chairman.
(2) Vice-Chairman.
(full time) to be appointed by the Government:
(3) At least three Members to be nominated by the Government.
II. Terms of Reference of the Board:
(a) To take steps for image building of Pakistan as safe and attractive place for investment both foreign and local;
(b) to make policy recommendations to the Government and to take all necessary steps aimed at generation of investment locally and from abroad; and
(c) to provide in an appropriate manner efficient and effective services to prospective investors at home or abroad.
III.Powers and Functions:
(1) The Vice-Chairman of Pakistan Investment Board (P.I.B.) shall be the Chief Executive of the Board. The Board will function on principles of corporate management. It will be an autonomous organization having a separate budget and its Chief Executive will be the Principal Accounting Officer. It will be an attached office of the Prime Minister's Secretariat under the direct administrative control of the Prime Minister.
(2) For day to day operations the Chief Executive will operate independently in accordance with the terms of reference of the Board and policy decisions taken by the Board. For important issues, the Chief Executive will consult with the Chairman, P.I.B. And seek the guidance of the Prime Minister in his capacity as Chairman, National Investment Council.
(3) The Chief Executive will have the status of Minister of State and will have the standards terms and conditions applicable to a Minister of State.
(4) The Board shall have the authority to issue directives with the approval of the Prime Minister to concerned Ministries on matters concerning facilitation of investment.
(5) The functions of the Board will cover investments in all sectors. The Board shall be vested with all powers necessary for the performance of its functions."
A bare look at the above Notification would show that the P.I.B. Was to function on the principle of corporate management; that it was an autonomous organization having a separate budget; that Vice-Chairman was its Chief Executive, who was also made its Principal Accounting Officer; that the office of the Vice-Chairman was attached office of Prime Minister's Secretariat under the direct administrative control of Prime Minister; that the Chief Executive was given the status of Minister of State and was to seek salary in the terms and conditions applicable to Minister of State; that the Board was given authority to issue directives, with the approval of Prime Minister to concerned Ministries on the matter of attracting foreign investment.
From the above, it is crystal clear that the holder of the office of the Vice-Chairman of the Pakistan Investment Board was occupying a post which was attached to the Secretariat of the Prime Minister. This was a post clearly having connection with the affairs of Federal Government. The holder of this E post, in my humble view, clearly fell within the terms `service of Pakistan' as defined in Article 260 of the Constitution. The question, now, remaining for consideration, is whether the conferment of the status of Minister of State upon this office took it from 'the mischief of Article 260 ibid. This question is not free from difficulty and requires further examination within the ambit of Articles 91 and 92 of the Constitution. It is true that the form of Government in our Constitution is Parliamentary. This form had continued despite tampering, brought by 8th Amendment. The country is run by Cabinet which is captained by Prime Minister as its Chief Executive. The President, except in the matters, specified in 8th Amendment, acts on the advice of the Prime Minister.
Cabinet comprises of Ministers, Ministers of State and is headed by Prime Minister. It is collectively responsible to Parliament. This is, in short, known as the doctrine of ministerial responsibility. Articles 91 and 92 ibid run as follows: -- "91. The Cabinet.---(1) . . . . . . . . . . . . . . . . . . . . . . . , , . (2) ...................................
(2-A) .................................. (3) ...................................
(4) The Cabinet, together with the Ministers of State, shall be collectively responsible to the National Assembly.
(5) .................................. (6) ..................................
(7) A Minister who for any period of six consecutive months is not a member of the National Assembly shall, at the expiration of that period, cease to be a Minister and shall not before the dissolution of that Assembly be again appointed a Minister unless he is elected a member of that Assembly: Provided that nothing contained in this clause shall apply to a Minister who is a member of Senate.
(8) Nothing contained in this Article shall be construed as disqualifying the Prime Minister or any other Minister or a Minister of State for continuing in office during any period during which the National Assembly stands dissolved, or as preventing the appointment of any person as Prime Minister or other Minister or as Minister of State during any such period.
92. Federal Ministers and Minister of State.---(1) Subject to clauses (7) and (8) of Article 91, the President shall appoint Federal Ministers and Ministers of State from amongst the members of Majlis-e-Shoora (Parliament) on the advice of the Prime Minister: Provided, ...............
(2) Before entering upon office a Federal Minister or Minister of State shall make before the President oath in the form set out in the Third Schedule.
(3)
Sub-clause (ivl of sub-Article (1) clearly enacts that Cabinet, together with Minister of State, shall be collectively responsible, to National Assembly. The sub-clause (vii) of this Article enjoins a Minister, who is inducted into his office and who is not the Member of Parliament, to seek election to Parliament within a period of six consecutive months and if he does not do so, he shall cease to be a Minister. Article 92 says that subject to clauses (7) and (8) of Article 91, the President shall appoint Federal Minister and Minister of, State from amongst Majlis-e-Shoora and on the advice of Prime Minister. Sub-clause (ii) of the Article mandates that before entering upon an office, the Federal Minister or a Minister of State shall make before the President oath in the form set out in the III Schedule. From the above - integrated study of afore Articles, it becomes dear that a Minister of State, like other Ministers, is the Member of the Cabinet; that he alongwith Cabinet is collectively responsible to the Parliament and that before entering office, he is to take oath in the form set out in the III Schedule. These are the Constitutional requirements for holding a place in the Cabinet. The taking of the oath is a condition precedent for entering the office of the Minister of State. This is a mandatory/compulsive Constitutional prescription. Without it, nobody could become a Minister of State. A simple incorporation of expression, "status of Minister of State", in Notification noted above, cannot make him Minister of State. Our Government is under a Constitution and cannot be run by whims or speculative orientation of authorities, how highs ever they may be. On the above in- depth examination of the relevant Constitutional provisions, I have come to an irresistible conclusion that respondent No.1 was, a full-time employee of Pakistan Investment Board, was in service of Pakistan and was not Minister of State as suggested by the learned counsel for respondent No.1. The authorities cited by the learned counsel for respondent No.1 proceed on dissimilar facts and do not apply to case in hand. It is true that the word `status' is the state or condition; it shows the legal relation of individual to rest of community; it may comprise of rights, duties, capacities, incapacities which determine a person to given class. See Black's Law Dictionary at page 1264. Yet when this word is to be examined within the context of Constitutional provisions, this word will have to be given means within the parameters of relevant Constitutional provisions - discussed above.
13. The result, of whatever has been discussed above, is that Mr. Muhammad Ishaq Dar/first respondent was holding a post in the service of Pakistan as Vice-Chairman of Pakistan Investment Board, within the parameters of Article 260 of the Constitution and was not Minister of State; I that he was disqualified to seek membership of Parliament at the time of filing of his nomination papers within the ambit of Article 63(1)(k) of the Constitution as admittedly two years have not elapsed from his date of acceptance of his resignation as Vice-Chairman of P.I.B.
14. Having dealt with Issue No.1, I, now, come to Issue No.2. The case of first respondent is that the petitioner, who is owner of US Marbel (Pvt.) Ltd. And others, obtained loan from United Bank Ltd., Karachi and had not paid the loan to Bank within the terms agreed between him and Bank; that the Bank was so constrained to file Suit No.338/92 for recovery of lent money, in Banking Tribunal, Karachi; that the Court, vide decision dated 16-12-1993, had decreed the suit to the extent of Rs.1,95,16,969; that the petitioner had not filed any appeal and so the decree passed by that Court had become final. On the above it was urged that the petitioner had misappropriated the public money. He was, therefore, neither 'Amin' nor `sagacious' within the terms of Article 62(f) of the Constitution. The petitioner, who appeared as P.W.10, stated that he had filed a review petition in the Banking Court which was still pending decision and that he will abide by the decision of the Court. The question for examination is as to whether on these facts and circumstances, the petitioner can be treated as not 'Amin' and not `sagacious' within the terms of Article 62(f). I am not able to subscribe to the view canvassed by respondent No.1. While dealing with this expression in Raja Muhammad Afzal v. Muhammad Altaf Hussain 1986 SCMR 1736 the Supreme Court said: "The word `Ameen has been given a very extended meaning by the learned Election Tribunal so as to include `all rights and liabilities whether concerning Allah or His creation, whether of individual significance or collective, whether concerning one's relatives or strangers, financial matters or political agreements'. The learned counsel for the respondent has also advocated as extended meaning by concluding that word `Amanah' includes all the good qualifies of Muslims including righteousness, freedom from profligacy as well as abstinence from major sins. It would also include the practising of obligatory duties. Ameen is a person `who obeys Allah and his Prophet in his actions, utterances as well as beliefs'. Such a extended meaning of Ameen is quite out of place because clause (f) which contains it equally applies to non-Muslims. For that reason it has to be given more mundane and uniform meaning restricted to one's dealings with fellow beings and public affairs generally. The spiritual, the religious and the philosophical content thereof has to be ignored."
It is clear from the foregoing discussion, that no extended meaning of Amin and sagacious can be given in this case. The question whether the petitioner is a bank defaulter, is still to be decided by the forum of competent jurisdiction. It is not denied by other side that the petition for Review filed by the petitioner is pending adjudication before the Banking Court and has not so far been decided. It cannot be said that on final decision of Review petition, the petitioner would not pay the decrefal amount (if so decreed). Moreover, the contentions of the learned counsel for first respondent is devoid of any strength on merits. The word 'Amin' relates to Amanat/Trust. There exists no relationship of trust between Bank and the petitioner. Petitioner and the Bank stand in the relationship of creditor and borrower. Bank as a creditor does not lend money without taking enough security from the borrower. In view of the above, I have no difficulty in coming to the conclusion that the principle of Amin or trustee is not attracted to the case in hand.
15. Having dealt with Issues Nos.1 and 2, the question to be considered is whether the petitioner, who secured votes i.e. 39483. In order to answer this question, the Tribunal had to be satisfied that the disqualification of first respondent was so notorious that it was known to every voter of the Constituency No. NA-95, Lahore. The Courts in England have laid down remarkable tests for applying the principle of throwing away of votes. These tests were summerised in paragraph 549 of the Halsbury's Laws of England, Vo1.14. It reads as under: "549. Votes given to, a disqualified candidate.--Votes given for a candidate who is disqualified may in certain circumstances be regarded as not given at all or thrown away and for so deciding a scrutiny is not necessary. The disqualification must be founded on some positive and definite fact existing and established at the time of the poll so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away or being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal arguments or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given to him will not be thrown away so as to give the seat to the candidate with the next highest number of votes. For the votes given for a candidate to be thrown away the voters must before voting either have had or be deemed to have had notice of the facts creating the candidate's disqualification. It is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification. Votes given without such notice from the total number of votes given for the disqualified candidate he remains in a majority, the minority candidate cannot be seated and there must be a fresh election.
This question has also been fully discussed in Re: Bristol South East Parliamentary Election (1961) 3 All ELR 354."
The afore stated views were approved by the Supreme Court in Rashid Ahmad v. Barkat Ali PLD 1968 SC 301 and was reiterated in Saeed Hassan v. Pyar Ali PLD 1976 SC 6. Speaking for the Bench his Lordship Muhammad Afzal Cheema, J., said: "---.The well-known principle in substance is that `Votes given for a candidate who is disqualified could be deemed to have been cast away only where the disqualification was so notorious that the electors could be presumed to be aware of it'. It must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the reasonable inference of wilful perverseness on the part of the electors' voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still seeing the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes."
15.. Seen on above tests, it is quite clear that the disqualification of respondent No.1 was not so notorious as to attract the principle of throwing away of votes. Even from the perusal of the election petition, it is apparent that the petitioner himself was not aware of this disqualification on the date of filing the nomination papers and even on the date of scrutiny of nomination papers; that he came to know of it much thereafter. It would appear from the record that in the first instance the petitioner moved the Chief Election Commissioner under section 103 of the Act for seeking a declaration to the effect that first respondent was disqualified to contest the election; as he was in the service of Pakistan (Vide Chairman, P.I.B.) and two years had not elapsed between the date of his resignation and the date of filing nomination papers. This was not the end of it. The Chief Election Commissioner has not decided this question so far. Feeling dissatisfied, the petitioner had filed a writ petition in Lahore High Court bearing No.16274 of 1993 which was admitted to regular hearing on 24-11-1993 and a Full Bench was constituted to decide the same. It is agreed that the Full Bench had not so far decided the writ petition. The main stress of the petitioner is that he had been informing the voters of the Constituency that the first respondent was in services of Pakistan; that two years had not elapsed between the date of his resignation and the date of filing the nomination papers, through press, public meetings and so on and so forth. So, these acts and circumstances amounted to notice to electors of Mr. Ishaq Dar and these acts were sufficient to communicate the disqualification of first respondent to his voters. The question is whether on the facts and circumstances noted above, the principles of throwing away votes was applicable. I am very clear that the answer is a loud "No". It is manifest that notification of the appointment of first respondent was not known to the voters of NA-95, Lahore. Disqualification of first respondent was based upon the facts which were not in the knowledge of his voters and which needed examination by forum of competent jurisdiction. This was a complex exercise. It could not be ordinarily known to the electors. It is well-known that the election's results turn upon very slender margin. Sometime the returned candidate may secure one vote more than the unsuccessful candidate. In the instant case respondent No.1 had secured 39483 votes while petitioner had secured 23825 votes. The remaining candidates have secured nominal votes. Such a great chunk of votes cannot be thrown away as it would tantamount to their disenfranchisement.
16. Guided by the above principles, I have no hesitation in coming to the conclusion that principle of throwing away votes cannot be applied in the circumstance of the instant case and petitioner cannot be declared as successful candidate in place of first respondent. Issue No.3 is accordingly decided in favour of first respondent. The authorities cited, by the learned counsel for petitioner proceeds on distinguishable fats and hardly needs any comments.
17. The points, now, surviving for consideration are technical in nature. The learned counsel for the petitioner contended that the Recrimination petition filed by first respondent was barred by time and so merited to be dismissed on this ground alone. On the contrary the learned counsel for first respondent stressed that the petition filed by Mr. Shahid Nabi Malik, was in fact, presented on 24-1- 1994 in the office of the Election Commission and so was barred by time. He further submitted that the election petition was not correctly verified and was not accompanied by the documents relied upon in the petition. On this score, also it merited to be dismissed. Before dealing with these objections it is to be noted that the proceedings in this petition were conducted with active participation of the learned counsel for the parties and with their consent. On 23-11-1994, issues were framed in the presence of the learned counsel for the parties and they did not claim any issue on the basis of these objections. The perusal of the case shows that they did not even produce an iota of evidence in order to substantiate these objections. Mr. Shahid Nabi Malik, while appearing as P.W.10, did not utter even a single word in support of technical pleas. Similarly the written statement filed by respondent No.1 is bereft of particulars of these objections. Para. 3 of the written statement only refers to a bald allegation that the election petition was barred by time. It is not the case of either party that these objections can be decided without recording of evidence of the parties. They agreed that these questions are of mixed nature i.e. Law and facts. Furthermore, it is well-settled proposition of law that the questions, arising out of procedure, are subject to waiver and if parties do not claim such issue, they are deemed to have abandoned them. See Muhammad Afzal Khan v. Khadim Hussain Khan PLD 1978 SC (AJ&K)
73. Applying this principle to the facts and circumstances of this case and having regard to available material, I have no difficulty in holding that by not leading evidence and by not claiming any issue on technical objections, the parties had in fact abandoned them. These do not, therefore, merit any finding by the Tribunal.
18. As a result of foregone conclusion, this election petition partly succeeds. The election for the Seat of National Assembly NA-95, Lahore-IV, held on 2-12-1993, is declared to be void as a whole on account of disqualification of first respondent within the term of Article 63(1)(k) of the Constitution as two years had not elapsed between the date of his acceptance of resignation from the office of Vice-Chairman, P.I.B. And filing of his nomination papers. The Recrimination petition filed by respondent No.1, too fails and is hereby dismissed. Resultantly the notification of success of first respondent, is set aside and the Election Commission is directed to hold fresh election of NA-95, Lahore-IV, strictly within the parameters of law. Since the points raised in this petition were vexed questions of law, there shall be no order as to costs.
While parting with this order I want to express my acknowledgement to the learned counsel for the parties who argued their case with their high sense of duty and with usual legal acumen. I further want to note that I have not examined the evidence of the parties as the basic facts were not in contest between the parties.