MIAN SHAKIRULLAH JAN, J.---This appeal has been directed against the decision/order of the Returning Officer of the Constituency NA-I Peshawar-I, under section 14(5) of the Representation of the People Act, 1976 whereby the objection of the appellant, who is a candidate of the said Constituency, was rejected and the nomination papers of respondent No. l were accepted.
2. The objection of the appellant is that respondent No. l was appointed as Assistant Advocate- General on 23-W-1994 and he served as such till the termination of his services on 6-2-1997 as the two years when he ceased to be an Assistant Advocate-General had not elapsed and thus disqualified under Article 63(l)(k) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter called as the Constitution) read with section 99(k) of the Representation of the People Act, 1976 (to be hereinafter referred to as the Act). This objection did not find favour with the Returning Officer and, as stated above, was rejected. The reasons which weighed with the Returning Officer was that the person who served in the affairs of the Federation or Province has been ordinarily defined as civil servant and according to the definition given in section 2(b)(II) of the N.-W.F.P. Civil Servants Act (No.XVIII of 1973), employees on contract or on work-charged basis are excluded from the definition of Civil Servants Act. It was further held that as the candidate was in service on contract basis and according to the definition given in the Civil Servants Act, 1973, he was not a civil servant and thus did not come within the embargo. The judgment of the Hon'ble Supreme Court reported as Syeda Abida Hussain v. Tribunal for NA-69, Jhang-IV and two others (PLD 1994 SC 60) and Sahibzada Tariqullah v. Haji Amanullah Khan and others (PLD 1996 SC 717) were held to be distinguishable.
3. The learned counsel for the appellant has contended that the respondent No. l was holding the office of profit and he was also in the service of the Province. And his case is hit by Article 63(k) of the Constitution read with section 99(1-A)(k) of the Act. He has also contended that the post of Assistant Advocate-General is quite different from that of the office of Advocate-General and it is only Advocate General who is appointed under Article 140 of .The Constitution and to have been excluded by Article 260 of the Constitution from the definition of service of Pakistan and resultantly from any of the disqualification enumerated in the relevant Articles and sections of the abovementioned laws. Reference was also made to the N.-W.F.P. Government Rules of Business, 1985, framed under Article 139 of the Constitution and according to Schedule-I of the said Rules the office of the Advocate-General has been described as an attached Department to the Law and Parliamentary Affairs Department at serial No.13 and the incumbent on the post of Assistant Advocate-General also gets salary and other allowances as the house rent etc.
4. The learned counsel for respondent No.1, on the other hand, has contended that the post of Assistant Advocate-General is at par with the post of Advocate-General and thus the benefit of Article 260 of the Constitution is also available to him. In this respect, reference was also made to section 4(1)(a) of the Code of Criminal Procedure (Act V of 1908) wherein the definition of Advocate-General has been given and according to which 'Advocate-General' includes also a Government Advocate or, where there is no Advocate-General or Government Advocate, such officer as the Provincial Government may, from time to time, appoint in this behalf. He has also submitted that the post of Assistant Advocate-General is non-pensionable and thus it cannot be held that it is an office of profit. He has made a reference to section 5-C of the Legal practitioners and Bar Councils Act, 1973 and Rules 174 and 173 of the Pakistan Legal practitioners and Bar Councils Rules, 1976 and has tried to make out a case that he is an Advocate and his tenure of office will be counted towards his practice for the purpose of his appointment as a judge of the High Court and thus it cannot be held that the post of Assistant Advocate-General is an office of profit. He has lastly argued that the case of the appellant does not come within the ambit of Article 63(k) of the Constitution but at the most would come under Article 63(1)(d) of the Constitution and as respondent No. l at the relevant time was not holding the office, as such he cannot be disqualified.
5. We have considered the respective contentions of the learned counsel for the parties and also perused the record.
6. For the sake of convenience the order of appointment of respondent No. 1, dated 23-10-1994 issued by the Secretary to Government of N.-W.F.P., Law Department, is reproduced below:- "The Provincial Government is pleased to appoint Mr. Muhammad Khurshid Khan, Advocate, as Assistant Advocate-General (B-20), North-West Frontier Province, against the existing vacancy, with effect from the date of his assuming charge of the post.
The aforesaid appointment is on contract basis, liable to termination at any time without notice or without assigning reason.
The incumbent shall be entitled to BPS-20 plus usual allowances as admissible under the rules to an Assistant Advocate-General.
He shall not be allowed private practice/Legal Advisorship of any kind. He shall not be paid any fee for the opinion of the Provincial Government of the N.-W.F.P.
(Salim Khan)
Secretary to Govt. Of N.-W.F.P. Law Department."
Similarly, the order of termination of services of respondent No. l dated 6-2-1997 reads as under:- "In supersession of this Department Order's No.E&A(LAD)/2--13/91/Vo1.I1I/7471 dated 23-10-1994 and No.E&A(LD)/2--13/91/Vol.V/6091-190, dated the 5th August, 1996, the Governor of the North-West Frontier Province is pleased to order that the services of M/s Muhammad Khurshid Khan and Abdul Qayum Khan, Assistant Advocates-General, N.-W.F.P. Are hereby terminated with immediate effect.
(Salim Khan)
Secretary to Govt. Of N.-W.F.P. Law Department."
It is not a denying fact that respondent No. l was appointed as Assistant Advocate-General and in pursuance of the Government of N.-W.F.P. In the Law Department Notification he assumed the charge and was drawing the salary and enjoying other privileges attached to the post. It is also a common ground that two years period had not so far elapsed when he ceased to hold the post of Assistant Advocate-General as is evident from the termination order dated 6-2-1997 mentioned above. Though the appointment was on contract basis and liable to termination at any time but this by itself would not bring him (respondent No. l) out of the ambit of Article 63(1)(k) of the Constitution or for that matter section 99(1-A) of the Act, 1976, as the very order of appointment shows that he was held to be entitled to BPS-20 plus usual allowances. Even, he was not allowed private practice/Legal Advisorship during his tenure when he held the post. In this respect reliance can be placed on Syeda Abida Hussain v. Tribunal for NA-69, Jhang-IV and two others (PLD 1994 SC 40) wherein it has been held as under:- "The post of an Ambassador is a post in connection with the affairs of the Federation. 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. Ex facie sub- clause (n) of Article 63(1) of the Constitution does not apply to situations where the relationship of master and servant exists between the parties. In the present case the person 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.
These rules were framed in pursuance of the provisions of Article 240 of the Constitution of Pakistan. 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 could not be accepted. Admittedly, a period of two years had not passed since she relinquished charge of the said post. Therefore, she was rightly held to be suffering from the disqualification laid down in clause (k) of Article 63(1) of the Constitution."
The contention of the learned counsel for respondent No. I to the effect that according to the definition given in section 4(1)(a) of the Code of Criminal Procedure (Act V of 1898) which includes also the Assistant Advocate-General, would be of no help to him. Though in the constitution the word 'Advocate---General' has not been defined but his appointment is made according to Article 140 of the Constitution and it would be only that person to be called Advocate-General who has been appointed and, by no stretch of imagination, such definition could be extended to any other officer particularly to the Assistant Advocate-General who is appointed in BPS-20 with all privileges and benefits of the said grade and moreover the definition which has been given in the Code of Criminal Procedure, 1898, is for the purpose of the Code and proceedings conducted in accordance with Cr.P.C. For the sake of convenience, the definition of section 4 aforesaid reads as under:-- "4. Definition.--(1) In this Code the following words and expressions have the following ,meanings, unless a different intention appears from the subject or context:-
(a) "Advocate-General." "Advocate-General" includes also a Government Advocate or, where there is no Advocate-General or Government Advocate, such officer as the Provincial Government may, from time to time appoint in this behalf."
From the above it is clear that the definition given in the Code, would be confined and restricted only to the purposes for which they are used in the Code to meet different eventualities- and not for any other purpose. The very provisions provided in Article 260 of the Constitution shows that persons who have been excluded from the service of Pakistan have been specifically mentioned which includes the Advocate-General and such benefit cannot be extended to any other person who has not been specifically mentioned in the said provision. The various provisions of the Legal Practitioners and Bar Councils Act, 1973 and the rules framed under the Pakistan Legal Practitioners and Bar Councils Rules, 1976, as mentioned above, and referred to by the learned counsel for respondent No.1, have got no relevancy whatsoever with his contention and the case of respondent No.1 as section 5-C dealt with the membership of the Provincial Bar Council. The learned counsel for respondent No.1 also relied on Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others (PLD 1997 SC 32) but it is also of no avail as it rests mainly on the interpretation of the office of profit as mentioned in Article 63(1)(d) of the Constitution the same to be read in clause (k) as these words are omitted from clause (k) and the Hon'ble Supreme Court by a majority arrived at the conclusion that the office of profit had to be read in clause (k). In the said judgment and the note appended to by Hon'ble Ajmal Mian, J., who while agreeing with his Lordship. Saiduzzaman Siddiqui, J. Observed as under:- "I am inclined to hold that the question, whether a person holds an office of profit in terms of Article 63(1) of the Constitution, will depend on the facts of each case. If an office is regular office on the strength of the department concerned to which salary/ emoluments/allowances are attached, it is an office of profit. A person cannot change the character/nature of such an office by not drawing salary etc., but if such an office is a newly created office which is not on the strength of the department concerned and for which no salary or emoluments are determined nor they are payable to the incumbent, it is not an office of profit. "