' SAIDUZZAMAN SIDDIQUI, J.---The abovementioned two direct appeals before this Court are filed against the decision of Election Tribunal, Punjab, Lahore, dated 28-9-1995 passed in Election Petition No,5 of 1994, under section 67(2) of the Representation of the People Act, 1976.
2. The relevant facts of the case are that in the bye-election against the National Assembly Seat No, NA-95, Lahore, which fell vacant on account of resignation of Mian Nawaz Sharif, held on 2-12- 1993 Muhammad Ishaq Dar appellant in Civil Appeal No,1025 of 1995 and respondent No,3 in Civil Appeal No,1024/1995 was declared elected having secured 39483 votes. His closest rival in the election Shahid Nabi Malik, appellant in Civil Appeal No, 1024 of 1995 and respondent No,3 in Civil Appeal No,1025 of 1995, secured 23825 votes. For the sake of convenience, we will refer the appellant in Civil Appeal No,1025 of 1995 and respondent No,3 in Civil Appeal No,1024 of 1995 as Mr. Dar and appellant in C.A. 1024/95 and respondent No,3 in C.A. 1025/95 as Mr. Malik. The remaining contesting candidates in the constituency, S. Almas Haider Kazmi, Aqil Ahmed, Syed Qaiser Shah and Nawab Amber Shahzada secured 103, 49, 43 and 26 votes respectively. The election of Mr. Dar was challenged by Mr. Malik before the Election Tribunal, Punjab, on the ground that Mr. Dar was disqualified for being a candidate of Majlis-e-Shoora on the date of his election as he was in the service of Pakistan and the prescribed period of two years had not elapsed since he resigned from his office. It was also asserted before the Tribunal by Mr. Malik that disqualification attached to Mr. Dar was also so notorious that the votes cast in his favour in the bye-election shall be deemed to have been thrown away and as such he was entitled to be declared as elected in place of Mr. Dar.
3. The learned Tribunal, after framing issues in the case, recording evidence of parties and hearing the counsel of contesting parties, held that Mr. Dar suffered from the disqualification prescribed under Article 63(1)(k) of the Constitution of Islamic Republic of Pakistan (hereinafter to be called as 'the' Constitution') and as such his election to the National Assembly Seat No, NA-95 Lahore, in the bye-election held on 2-12-1993, was void. The learned Tribunal, however, did not agree with the contention of Mr. Malik that the votes cast in favour of Mr. Dar in the bye-election be treated as thrown away votes and he be declared elected in place of Mr. Dar. The learned Tribunal, accordingly, after setting aside the election of Mr. Dar to the NA-95 Lahore, seat of National Assembly, directed the Election Commission, to hold fresh election to the above seat of National Assembly. The impugned order of learned Tribunal gave rise to the abovementioned to civil appeals, one by Mr. Dar and the other by Mr. Malik. We have heard at length Mr. Muhammad Akram Sheikh for Mr. Dar, Mr. Shahzad Jahangir for Mr. Malik and Raja Muhammad Bashir, Deputy Attorney-General, on Court notice.
4. The learned counsel for Mr. Dar contended that sub-clauses (k) and (o) of clause (1) of Article 63 of the Constitution are to be read with sub-clauses (d) and (e) ibid as these sub-clauses, which were added subsequently in Article 63 of the Constitution by P.0.14 of 1985, merely provided for further disqualifications for the categories of persons mentioned in sub-clauses (d) and (e) ibid. The learned counsel firstly, contended that Mr. Dar by accepting the office of Vice-Chairman, Pakistan Investment Board (P.I.I3.) could not be treated as in the service of Pakistan. The learned counsel next contended that even if the Court reaches the conclusion that Mr. Diu was in the service of Pakistan, he did not hold any office of profit in the service of Pakistan as no salary, remuneration, fee or benefits of any other kind was attached to his office.
' It is, accordingly, contended that Mr. Dar did not suffer from any of the disqualifications mentioned in Article 63 of Constitution at the time of his election to the seat of National Assembly.
5. The learned counsel for Mr. Malik on the other hand contended that the legislature by introducing sub-clause (k) in Article 63 ibid created a new category of persons, namely, those who had been in service of Pakistan and two years' period had not elapsed since they ceased to hold such office, who were held disqualified from being elected or from being the member of Majlis-eShoora.
According to learned counsel, this new category of persons is quite distinct and separate from those mentioned in sub-clauses (d) and (e) ibid. The learned counsel urged that Mr. Dar was appointed by the Government as Vice-Chairman, P.I.B. And he was in the service of Pakistan before he resigned, and as the prescribed period of 2 years had not passed since he ceased to hold that office he was disqualified from being elected as member of National Assembly. The learned counsel contended that whether Mr. Dar held an office of profit or not is not material as he stood disqualified by merely being in the service of Pakistan. The learned counsel for Mr. Malik in the alternative also urged that it is not correct to say that Mr. Dar's office was not remunerated or that he was not holding any office of profit in the service of Pakistan, as he was conferred the status of a Minister of State which carried with it perks like, salary, accommodation, transport etc. The learned counsel, accordingly, contended that from whichever angle the case is examined, we cannot escape the conclusion that Mr. Dar was disqualified from being elected as a member of Parliament on the date of his election.
6. Articles 62 and 63 of the Constitution prescribe qualification and disqualifications respectively for membership of Majlis-e-Shoora. The original Article 63(1) of the Constitution which dealt with the disqualifications for membership of Parliament, contained only the following sub-clauses (a) to (e):-- "63. Disqualifications for membership of Parliament.---(1) A person shall be disqualified from being elected or chosen as, and from being, a member of Parliament, if-
(a) he is of unsound mind and has been so declared by a competent Court; or
(b) he is an un discharged insolvent; or
(c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or
(d) he holds any office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or
(e) he is so disqualified by Act of Parliament.
(2)
' Present Article 63 was substituted in the Constitution by P.O. 14 of 1985. The substituted Article 63, besides containing the original sub-clauses (a) to (d) added sub-clauses (e) to (p) in clause (1) which provided for new grounds of disqualifications for membership of Parliament. We are here concerned only with the newly-added sub-clauses (e), (k) and (o) of clauses (1) of Article 63 of the Constitution which read as follows:-- "63.................................................
(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
(f) ...............................................
(k) he has been in the service of Pakistan or of any statutory body or anybody which is owned or controlled by the Government or in which the Government has controlling share or interest unless a period of two years has elapsed since he ceased to be in such service; or
(1) ...................................................................
(o) he holds any office of profit in the service of Pakistan other than the following offices, namely:-- -
(i) an office which is not whole-time office remunerated either by salary or by fee;
(ii) the office of Lumbardar, whether called by this or any other title;
(iii) the Quami Razakars;
(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the Constitution or raising of a force; or."
Article 63(1) (d) of the Constitution declares a person who holds an office of profit in the service of Pakistan from being elected or being the member of Parliament, unless the office held by him is declared by law, not to disqualify its holder. It is, therefore, quite clear that a person who does not hold an office of profit in the service of Pakistan, is not debarred from being elected or being the member of the Parliament. As a necessary corollary a person merely by virtue of his being in the service of Pakistan is not debarred from being elected to the member of the Parliament under Article 63(1)(d) ibid, unless he also holds an office of profit in such service. The expression "he holds an office of profit in the service of Pakistan" used in Article 63(1) ibid, clearly implies that in order to attract the disqualification mentioned in this provision, the person must be holding the office of profit in the service of Pakistan on the date of his election to the Parliament. Therefore, a person who ceases to hold the office of profit in the service of Pakistan before the date of such election does not fall within the mischief of this Article. We need not emphasize here that the provisions of Article 63 of the Constitution are to be construed strictly as they relate to the disqualification of a person, from being elected or being the member of Parliament. It is a well-established rule of interpretation that while construing a provision of this nature and holding a person disqualified, the case must fall both within the letter and spirit of the provision.
5. The learned counsel for Mr. Dar contended before us that sub-clauses (d), (e), (k) and (o) of clause (1) of Article 63 of the Constitution are to be read together to discover the true intention of the Legislature and the real meaning and scope of these provisions. The learned counsel for Mr. Malik on the other hand maintained that each sub-clause of clause (1) of Article 63 ibid is to be read separately as the disqualifications mentioned in each sub-clause deal with separate and distinct category of persons disqualified from being elected or from being the member of Parliament. The learned Tri\bunal in the impugned judgment held Mr. Dar disqualified from being elected as member of National Assembly under sub-clause (k) of clause (1) of Article 63 of the Constitution, as on the date of his election as a member of National Assembly the prescribed period of two years had not elapsed between the date he ceased to hold the office of Vice- Chairman P.I.B. And the date of his election. The learned tribunal repelled the contention of Mr. Dar as he was not holding any office of profit in the service of Pakistan, he was not disqualified from being elected or from being the member of National Assembly. The learned Tribunal held that in order to attract the disqualification mentioned in sub-clause (k) it was not necessary that the person should have held any office of profit in the service of Pakistan. In the view of learned Tribunal it was sufficient to disqualify a person from being elected or being the member of Parliament under Article 63 (1)(k) ibid, if he was in the service of Pakistan and two years' period had not elapsed on the date of his election to Parliament from the date he ceased to be. In the service of Pakistan. The moot point for consideration, therefore, in the case is, whether the Legislature by introducing sub-clause (k) of clause (1) in Article 63 of the Constitution intended to disqualify a person from being elected or from being the member of Parliament, simpliciter on the ground that he was before his election in the service of Pakistan and on the date of his election a period of two years had not elapsed from the date he ceased to hold that office; or, sub-clause (k) ibid disqualified only such person from seeking election to a seat of Parliament or from being a member of Parliament who held the office of profit in the service of Pakistan and two years' period had not passed on the date of his election since he ceased to hold such office. To discover the true meaning and import of sub-clauses (d), (e), (k) and (o) of clause (1) of Article 63 ibid and the real intention of law-givers in enacting these provisions, it is necessary in our opinion to briefly recapitulate the background of these amendments.
6. On 5th July, 1977, Martial Law was proclaimed in the country after dismissing the then Civilian Government. As a result of proclamation of 5th July 1977, the Constitution was held in abeyance, but fresh elections to Parliament and Provincial Assemblies were promised. The Martial Law Authorities on 28-7-1977 promulgated Houses of Parliament and Provincial Assemblies (Election)
Order (P.O. 5 of 1977) which provided for holding of general elections in the country in October 1977.
Article 10 of P.O. 5 of 1977 laid down the qualifications and disqualifications for membership of Parliament which were as follows:--- "10. Qualifications and disqualifications for membership of Parliament.--(1) A person shall not be qualified to be elected or chosen as member of Parliament unless, as provided in Article 62 of the Constitution,--
(a) he is a citizen of Pakistan;
(b) he is, in the case of the National Assembly, not less than twenty-five years of age and enrolled as a voter in any electoral roll for election to that Assembly; and
(c) he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; and has made oath as provided for in Article 7.
(2) A person shall be disqualified from being elected or chosen as, and from being, a member, of Parliament,--
(a) If, as provided in Article 63 of the Constitution,-
(I) he is of unsound mind and has been so declared by a competent Court; or
(2) he is an un discharged insolvent; or
(3) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or
(4) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or
(b) if--
(1) he has been, on conviction for any offence which in the opinion or the Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of two years has elapsed since his release; or
(2) he has been dismissed from the service of Pakistan on the ground of misconduct, unless a period of five years has elapsed since his dismissal; or
(3) he has been removed or compulsorily retired from the service of Pakistan on the ground of misconduct, unless a period of three years has elapsed since his removal of compulsory retirement; or
(4) he has been in the service of Pakistan or 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, unless a period of two years has elapsed since he ceased to be in such service; or
(5) he is found guilty of a corrupt or illegal practice under any other law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect; or
(6) he has, at any time on or after the twentieth day of December, 1971, been an office-bearer of a political party disclosed under subsection (2) of section 6 of the Political Parties Act, 1962 (III of 1962), and has not, before a declaration in respect of such party is made under subsection (1) of that section, resigned, or publicly announced his dissociation, from such party, unless a period of five years has elapsed from the date of such dissolution; or
(7) he has been convicted under section 7 of the Political Parties Act, 1962 (III of 1962), unless a period of five years has elapsed from the date of such conviction; or
(8) if he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by, Government: ' Provided that the disqualification under this paragraph shall not apply to a person---
(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him or such longer period as the President may, in any particular case, allow; or (ii)where the contract has been entered into by or on behalf of a public company as defined in the Companies Act, 1913 (VII of 1913), of which he is a shareholder but is neither a director holding an office of profit under the company nor a managing agent; or
(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on the separate business in which he has no share or interest; or
(9) he holds any office of profit in the service of Pakistan other than the following offices, namely :--
(i) an office which is not a whole-time office remunerated either by salary or by fee;
(ii) the office of Lumbardar, whether called by this or any other title;
(iii) the Qaunsi Razakars;
(iv) any office the holder whereof, by virtue of holding such office, is liable to be called up for military training or military service under any law providing for the Constitution or raising of a force.
' Explanation I--In sub-paragraph (4) Of paragraph (a) and sub-paragraph (9) of paragraph (b) "service of Pakistan" has the same meaning as in Article 260 of the Constitution.
' Explanation II--In sub-paragraph (6) of paragraph (b) "office-bearer of a political party" means an office-bearer at the National or Provincial set-up of the party otherwise than as a mere member of the working, Central, Provincial or other Committee of party.
' Explanation III---In sub-paragraph (8) of paragraph (b), "goods" does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply.
(3) If a person, having been elected to a House or a Provincial Assembly as a candidate or nominee of a political party, withdraws himself from that party, he shall from the date of such withdrawal, be disqualified from being a member of the House or the Assembly for the unexpired period of his term unless he has been re-elected at a bye-election held after his disqualification."
The grounds of disqualifications mentioned in sub-clauses (1) to (4) of clause (2) (a) of Article 10 ibid were identical to those stated in sub-clauses (a) to (d) of clause (1) of original Article 63 of the Constitution. However, sub-clauses (1) to (9) of clause 2(b) of Article 10 ibid provided for new grounds of disqualifications for membership of Parliament. These new grounds of disqualifications mentioned in sub-clauses (2) to (5) and (7) to (9) of Article 10 of P.O. 5 of 1977 were re-enacted as sub-clauses (i) to (o) of clause (1) of Article 63 which was substituted in the Constitution by P.O. 14 of 1985. The position both under original Article 63 (1) (d) and Article 10 (2) (a) (4) of P.0.5 of 1977 was that a person holding an office of profit in the service of Pakistan was disqualified from being elected and from being member of Parliament, unless under some law the holder of such office was declared not so disqualified. However, on the language of Article 63 (1) (d) of the Constitution or Article 10(2) (a) (4) of P.O. 5 of 1977, a person who may be in the service of Pakistan on the date of his election but not holding any office of profit could not be held disqualified from being elected or being a member of the Parliament. The effect of enacting sub-clause (4) of clause (2)(b) of Article 10 of P.O. 5 of 1977, however, was that all persons who were in the service of Pakistan or a statutory body or anybody which was owned or controlled by the Government or in which the Government had controlling share but had ceased to be in such service on the date of election were also disqualified from being elected or being the member of Parliament, if a period of 2 years had not elapsed on the date of election from the date they ceased to hold their office. We may mention here that Article 10(2)(b)(4) though disqualified a former employee of a statutory body or a body controlled by Government or in which the Government had the controlling share from being elected to the Parliament or from being a member of Parliament, if a period of 2 years had not passed since he ceased to be in the service of such a body, but this disqualification was not attracted in the case of a person who was serving in such organisation on the date of his election. This created anomalous position inasmuch as under Article 10(2)(b)(4) of P.0.5 of 1977 a person who was former employee of a statutory body or anybody controlled by Government or in which Government had controlling share stood disqualified from being elected or chosen as a member of Parliament or from being a member of the Parliament but a person who was in the service of such an organisation remained outside the mischief of this provision. This obvious anomaly was later sought to be rectified by the legislature by enacting sub-clause (e) of clause (1) of Article 63 ibid, which provided for disqualification of a person who on the date of election was in the service of any statutory body .Or anybody which is owned or controlled by the Government or in which the Government had a controlling share or interest, from being elected or being a member of the Parliament. As pointed out by us earlier, under sub-clause (d) of clause (1) of Article 63 ibid, a person in the service of Pakistan if he does not hold an office of profit is not disqualified from being chosen or elected or from being the member of Parliament. However, if we interpret sub-clause (k) of clause (1) of Article 63 of the Constitution as suggested by the learned counsel for Mr. Malik and as held by the learned Tribunal, it will lead to absurd result as a person who is in the service of Pakistan on the date of election but does not hold any office of profit, will be eligible for being chosen or elected or being the member of the Parliament under sub-clause (d) ibid; while a person who has ceased to be in the service of Pakistan before election but 2 years' period had not passed since the date he ceased to hold such office will be disqualified from being chosen or elected or being the member of Parliament under sub-clause (k) ibid. Can such inconsistency and absurdity be attributed to the law-givers? The answer to this is plainly in the negative. It is well-established principle that while interpreting a Constitutional provision it must be remembered that a Constitution unlike a statute cannot be changed or amended frequently. A document of such a basic nature is not merely the imprisonment of past but is also alive to the future aspiration and need of the nation. Therefore, while interpreting a Constitutional document it must be read and considered as a whole to discover the true intention of its framers. It is for these reasons that no redundancy, surplusage, absurdity or inconsistency can be attributed to the framers of the Constitution. The rule of harmonious interpretation provides that the Court while literally interpreting a provision of the Constitution notices apparent inconsistency as a result of such construction with another provision of the Constitution on the same subject, it may not follow the grammatical and literal construction of the words and adopt a construction which would harmonise the two apparently conflicting provisions and make their working purposeful and in accordance with the intention of Legislature.
The rule of harmonious interpretation in case of conflict was stated by the Supreme Court of India in the case of M. Pentiah v. Veeramallappa AIR 1961 SC 1107, as follows:-- "Where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence...."
' In the- case of Union of India v. Sankalchand AIR 1977 SC 2328, the Indian Supreme Court while quoting the abovementioned passage with approval, stated the ' rule of harmonious interpretation in the event of incompatibility between the two provisions of the Constitution in these words:-- "11. The normal rule of interpretation is that the words used by the Legislature are generally a safe guide to its intention. Lord Ried in Westminster Bank Ltd. v. Zang, 1966 AC 182 observed that "no principle of interpretation of statutes is more firmly settled than the rule that the Court must deduce the intention of Parliament from the words used in Act." Applying such a rule, this Court observed in S. Narayanaswa mi v. G. Panneerselvam, AIR 1972 SC 2284 at p. 2290 that 'here the statute's meaning is clear and explicit, words cannot be interpolated.' What is true of the interpretation of an ordinary statute is not anytheless true in the case of Constitutional provisions, and the some rule applies equally to both. But if the words of an instrument are ambiguous in the sense that they can reasonably bear more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the Court would be justified in construing the words in a manner which will make the particular provision purposeful. That, in essence is the rule of harmonious construction."
6. The framers of the Constitution made their intention clear by providing in sub-clause (d) of clause (1) of Article 63 ibid that a person who holds the office of profit in the service of Pakistan at the time he seeks election, stands disqualified from being elected or chosen or from being the member of Parliament unless under a law the holder of such office is declared not so disqualified.
However, if the Legislature intended that a person who is in the service of Pakistan but does not hold any office of profit also stands disqualified in the like manner as a person holding office of profit, it could have provided so. The fact that the Legislature while re-enacting with amendments sub-clause (e) of clause (1) of Article 63 ibid, only provided for disqualification of persons in the service of a statutory body or anybody which is owned or controlled by Government or in which the Government has a controlling share or interest at the time of election, from being elected or becoming a member of the Parliament, is indicative of the fact that the Legislature did not intend to enlarge the categories of persons mentioned in sub-clause (d) ibid any further. The Legislature, therefore, while providing in sub-clause (k) of clause (1) of Article 63 ibid, that the person who ceases to hold office in the service of Pakistan, or a statutory body or anybody owned or controlled by the Government or in which the Government has controlling share or interest, will not be eligible for election or being a member of Parliament for a period of two years from the date he ceases to hold such office, had in its contemplation the two categories of disqualified persons mentioned in sub-clauses (d) and (e) ibid. The Legislature having chosen not to disqualify a person in the service of Pakistan who does not hold any office of profit, it would be absurd to attribute to the Legislature that it intended to disqualify a person, who was in the service of Pakistan and did not hold any office of profit, from being elected to the Parliament or from becoming its member for a period of 2 years since he ceased to hold such office. We are, therefore, of the view that sub-clause
(k) of clause (1) of Article 63 ibid, disqualified only those persons for a period of 2 years from the date they ceased to hold their office who were either holding an office of profit in the service of Pakistan, or were in the service of a statutory body or anybody which was owned or controlled by the Government or in which the Government had controlling share or interest. The above interpretation of sub-clausea (d), (e) and (k) of clause (1) of Article 63 of the Constitution by us not only harmonises the apparent conflict in them but make the working of these provisions purposeful and in accord with the manifest intention of the Legislature.
7. This brings us to the next important controversy in the case, whether Mr. Dar who was appointed as the full-time Vice-Chairman, P.I.B. Was in the service of Pakistan and if so, whether the office of Vice-Chairman, R I.B. Was an office of profit. "Office of profit" is not defined but "Service of Pakistan" has been defined in Article 260(1) of the Constitution as follows:-- "260.-41) ...' 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, Advisor to the Prime Minister, Special Assistant to a Chief Minister, Advisor to a Chief Minister or member of a House or a Provincial Assembly;"
8. Pakistan Investment Board (P.I.B.) was established as a result of the decision of the Government through notification of Cabinet Division dated 29-6-1992. The object and responsibilities of P.I.B.
Were stated in the notification as follows:-- "No, 4-10/92-Min.i.--The Government has decided to establish as autonomous Board, reporting directly to the Prime Minister in order to promote direct foreign investment in industries, telecommunications, energy and such other sectors as Government may decide.
2. In particular the Board would be responsible for:-
(i) Dissemination of information, and projection of investment policies and investment opportunities in Pakistan including the organisation of investment conferences and seminars.
(ii) Assisting the Government in designing and implementing an investment strategy.
(iii) Assisting potential foreign investors in identification and implementation of projects.
(iv) Investment facilitation, including provisions of infrastructure and local financing as well as removal of procedural bottlenecks.
(3) The Board would have its Headquarters in Islamabad with Regional Offices in Karachi, Lahore, Peshawar and Quetta.
(4) Mr. Saeed Ahrnad Qureshi, Secretary-General Finance is appointed Chairman of Pakistan Investment Board, in addition to his own duties as Secretary-General Finance."
P.I.B. Was initially headed by Secretary-General Finance but subsequently Minister for Industries and Culture replaced him as the head of the organization. Following the appointment of Minister of Industries and Culture as the head of P.I.B., its composition was also changed by the Government.
The P.I.B. Then besides the Chairman, also had a full-time Vice-Chairman, a full-time Secretary and three members, to be appointed by the Government. The P.I.B. Was made part of Ministry of Industries with independent and autonomous status and following terms of reference provided the base for working of P.I.B.:-- "(1) to take steps or image building of Pakistan as a safe and attractive place for investment both foreign and local;
(2) to make policy recommendations to the Government and to take all necessary steps aimed at generation of investment locally and from abroad; and
(3) to provide in an appropriate manner efficient and effective services to prospective investors at home or abroad."
' The final decision relating to organisational structure of P.I.B. Was communicated by the Prime Minister's Secretariat to Finance and Cabinet Divisions, through letter dated 6-10-1992 which reads as follows:-- ' SUBJECT:ESTABLISHMENT OF PAKISTAN INVESTMENT BOARD ' Ministry of Industries may please refer to this Secretariat's U.O. Of even number dated 17th August, 1992 on the subject noted above.
2. The organizational structure of Pakistan Investment Board (P.I.B.) was discussed with the Prime Minister on 5-10-1992. In the light of this discussion following decisions have been taken:--
(i) Since P.I.B. Has to provide necessary Secretariat services to the National Investment Council (N.I.C.) which is headed by the Prime Minister of Pakistan and has to implement the policies laid down by N.I.C., it will be an executive arm of N.I.C.
(ii) The Vice-Chairman of P.I.B. Will be the Chief Executive of P.I.B. Which will function on the basis of a corporate structure.
(iii) For day to day operations the Chief Executive of P.I.B. Will operate independently in accordance with the terms of reference of P.I.B. And policy decisions taken in the Board of P.I.B. For important issues Chief Executive will consult with the Chairman, P.I.B. And seek the guidance of the Chairman, N.I.C.
(iv) P.I.B. Will be an autonomous organization under the direct administrative control of the Prime Minister like Pakistan Atomic Energy Commission (PAEC). All powers which are required to be exercised or acts to be done shall be performed by P.LB. This is necessary because P.I.B. Will be concerned with investment in all sectors and not just industrial investment.
(v) P.I.B. Will not be a part of Prime Minister's Secretariat but an attached office of Prime Minister's Secretariat. Its budget will be shown under a separate Deman distinct from the budget of Prime Minister's Secretariat or Ministry of Industries. For the purpose of expenditure the Chief Executive will be the Principal Accounting Officer. A separate budgetary provision will be made for P.I.B. By the Ministry of Finance.
(vi) The Chief Executive of P.I.B. Will have the status of Minister of State (MOS) and will have the standard terms and conditions applicable to MOS.
(vii) The Chief Executive of P.I.B. Will have the authority to issue directives to concerned Secretaries on matters facilitative to investment.
3. Ministry of Industries may please accordingly ensure that the P.I.B. Becomes functional immediately. The Prime Minister had earlier desired that the meeting of N.I.C. May please be convened at an early date. This may please be arranged.
4. This issue with the approval of Principal Secretary to the Prime Minister.
' Mr. Dar's appointment as full-time Chairman of P.I.B. Was notified in the Gazette of Pakistan dated 11-11-1992 effective from 15-9-1992, which was as follows:-- "No TA 14(2)/92 P.I.B..--The competent authority has been pleased to appoint Mr. Muhammad Ishaq Dar as full-time Vice-Chairman of Pakistan Investment Board (P.I.B.) with immediate effect and until further orders.
' The terms and conditions of the aforesaid appointment will be decided later."
'Service of Pakistan' as defined in Article 260 of the Constitution, besides other categories of service means "any service, post or office in connection with the affairs of the Federation or of a Province".
Keeping this definition in juxtaposition with the functions and responsibilities assigned to P.I.B. By the Government, it cannot be argued that the services rendered by the P.I.B. Were not in connection with the affairs of Federation. Mr. Dar who was the Chief Executive of P.I.B. And responsible for its proper functioning, therefore, in our view was undoubtedly in the service of Pakistan.
9. The only other point which now remains to be considered in these cases is, whether Mr. Dar who was appointed as a full-time Vice-Chairman of P.I.B. Was holding any office of profit in the Service of Pakistan. We have already reproduced the notification appointing Mr. Dar as the full-time Vice- Chairman of P.I.B.. From reading of the above-notification, it is quite clear that the terms and conditions of his appointment were to be settled later on. The documentary and oral evidence produced by the parties in this behalf before the learned. Tribunal, does not show that besides conferment of the status of Minister of State on Mr. Dar by the President on the advice of Prime Minister, any other terms and conditions of his appointment with regard to payment of salary, emoluments, remuneration, fee or other fringe benefits to Mr. Dar were ever settled. The learned counsel for Mr. Malik very vehemently argued that on conferment of the status of Minister of State of Mr. Dar by the President, he automatically became entitled to all the benefits accruing to a Minister of State by way of salary, fee or other fringe benefits and therefore, the fact that Mr. Dar did not avail of these benefits would not make any difference. The contention of the learned counsel for Mr. Malik does not appear to be correct. The word 'status' is defined in Concise Oxford Dictionary as follows:-- "Status"
1. Social position, rank, relation to others, relative importance, (his status is a matter of doubt; their status is wholly different; his status among novelists); superior social etc. Position (symbol, possession etc. Indicating person's high status).
2. (Law). Person's relation to others as fixed by law.
3. Position of affairs; quo, unchanged position; quo (ante), the previous position. L. Standing (stare stand) (quo in which, ante before)."
The above definition of the word "status" does not include in it the pecuniary and other benefits which a person may be entitled to under the law on acquiring a particular status or position. The expression "conferment of status" presupposes that the person on whom it is conferred does not in fact hold that status or position. A Minister of State like a Federal Minister is appointed by the President on the advice of Prime Minister from amongst the members of Majlis-e-Shoora and before entering upon his office, a Federal Minister or a Minister of State has to make oath before the President in the prescribed form, in accordance with the provisions of Article 92 of the Constitution.
The terms and conditions as to the payment of salaries and other benefits to Ministers and Ministers of State are regulated under the Act of Parliament. It is, therefore, quite clear that it is the office of a Federal Minister or a Minister of State and not the status which carries with it the terms for payment of salaries and other privileges and benefits. Mr. Dar who was not a member of Majlis- e-Shoora, therefore, could not be appointed to the office of a Minister of State in accordance with the provisions of Article 92 of the Constitution and as such by mere conferment of the status of a Minister of State, he could not automatically become entitled to the benefits of salary and other privileges attached to the office of a Minister of State.
10. The summary prepared by the Cabinet Secretary for conferment of the status of Minister of State on Mr. Dar by the Prime Minister and the note of Prime Minister thereon reads as follows:-- "The Prime Minister has been pleased to constitute the National Investment Council and the Pakistan Investment Board headed by the Prime Minister and the Minister for Industries, respectively (Annexes I and II). The Prime Minister has further been pleased to appoint Mr. Muhammad Ishaq Dar as full-time Vice-Chairman and Chief Executive of the Board with the status and terms and conditions applicable to a Minister of State (Annex-III).
2. In terms of SI. No,9 of Schedule B-V to the Rules of Business, 1973, approval of the President on the advice of the Prime Minister is required for the grant of status of a Minister or Minister of State. The Prime Minister is accordingly requested to advise the President to grant the status of Minister of State to Mr. Muhammad Ishaq Dar, Vice-Chairman and Chief Executive of the Pakistan Investment Board.
(Sd.)
(K.U. FARUQUI), Cabinet Secretary."
' The President is advised to grant the status of Minister of State to both Mr. Muhammad Ishaq Dar, Vice-Chairman/Chief Executive of the Pakistan Investment Board and Mr. Abdul Aziz Haji Yaqoob, Chairman of the Export Promotion Bureau.
(Sd.)
Prime Minister."
' The order of the President of Pakistan conferring status of Minister of State on Mr. Dar is as follows: "4. As advised by the Prime Minister, Mr. Muhammad Ishaq Dar, Vice-Chairman/Chief Executive of the Pakistan Investment Board and Mr. Abdul Aziz Haji Yaepob, Chairman, Export Promotion Bureau are granted the status of Minister of State.
(Sd.)
(Ghulam Ishaq Khan)
President."
' The mention in the summary prepared for Prime Minister by the Cabinet Secretary, that Mr. Dar was appointed as full-time Vice-Chairman of P.I.B. And Chief Executive of the Board with the status and terms and conditions applicable to a Minister of State does not appear to be correct as the notification dated 15-9-1992 published in the Gazette of Pakistan appointing Mr. Dar as the full-time Vice-Chairman, P.I.B., makes no mention of either his status as Minister of State or the terms and conditions applicable to his appointment. On the contrary the above notification clearly stated that the terms and conditions of his appointment will be settled later on. In any case neither in the advice of Prime Minister nor in the order passed by the President conferring the status of Minister of State on Mr. Dar, there is any mention about any other terms and conditions of the appointment of Mr. Dar.
11. The evidence produced before the Tribunal only shows that during the period Mr. Dar held the office of Vice-Chairman, P.I.B., he was paid only out of his pocket-expenses which he incurred on travelling abroad. There is nothing on record to show that either the office of Vice-Chairman, P.I.B., carried any benefit by way of salary, remuneration or other fringe benefits or that Mr. Dar was paid any salary, allowances, fee, or other benefits in his capacity as the Vice-Chairman of P.I.B.. To establish that a person is 'holding an office of profit' two things have to be proved. Firstly, that there is an office and secondly, the office carries with it some kind of remuneration. In the present case, the evidence on record only established that Mr. Dar was holding an office in the service of Pakistan but there is no evidence to show that the office held by Mr. Dar was an office of profit. Mere reimbursement of out of pocket expenses to Mr. Dar could not make the office held by him as an office of profit in the service of Pakistan. As we have reached the conclusion that Mr. Dar was not holding any office of profit in the service of Pakistan, he was not disqualified from being elected or being the member of National Assembly.
12. As a result of above discussion, Civil Appeal No,1025 of 1995 by Mr. Dar is allowed and the impugned judgment of learned Election Tribunal, Punjab, is set aside. As a consequence of acceptance of Civil Appeal No,1025 of 1995, Civil Appeal No,1024 of 1995 is dismissed. We will, however, make no order as to costs in the circumstances of the case.
(Sd.)
Saiduzzaman Siddiqui, J.
' AJMAL MIAN, J.---I agree subject to my note appended hereto.
' AJMAL MIAN, J.---I have had the advantage of reading the proposed majority view recorded by my learned brother Saiduzzaman Siddiqui, J. I am in full agreement with the reasoning recorded therein, subject to what is stated herein below.
2. The controversy in the case in hand seems to revolve on the interpretation of sub-clause (k) of clause (1) of Article 63 of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution. To put it precisely, the point in issue is, as to whether sub-cluase (k) of clause (1) of Article 63 is to be read in isolation or is it to be as read with other sub-clauses, namely, (d), (e) and (o), which cover the same field and the subject. If we were to read above sub- clause (k) in isolation, then the impugned judgment of the Election Tribunal, hereinafter referred to as the Tribunal, holding that in order to bring a case within the ambit of the above sub-clause (k), it is not necessary that the person who was in the service of Pakistan should have also been holding an office of profit, will hold good. However, if we were to construe above sub-clause (k) in conjunction with inter alia subcluases (d) and (p), in that event, in order to attract sub-clause (k), there were three pre-conditions, namely:--
(i) That the person concerned should have been in the service of Pakistan or 9f a statutory body or anybody which is owned or controlled by the Government or in which the Government has controlling share or interest;
(ii) that the above-service should have been relatable to an office of profit, and
(iii) that the two years' period should not have elapsed since the time the person concerned has ceased to be in the above service.
3. For the sake of brevity, I will refer the contesting parties as Mr. Dar and Mr. Malik. The Tribunal has disqualified Mr. Dar by holding that since he was the Vice-Chairman of Pakistan Investment Board (hereinafter referred to as the P.I.B), he was in the service of Pakistan and that it was not necessary that the above office should have been an office of profit. The relevant conclusion reads as under:- - "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 service, post or office in connection with the affairs of Federation or of a Province and includes all Pakistan Services, services in Armed Forces or 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 words ' office of profit' cannot be read into Article 63 (1), (e) &
(k) of the Constitution."
4. It may be pointed out that since the Tribunal was of the view that under above sub-clause (k) it was not necessary that the office involved should be an office of profit, it had not gone into the above aspect. However, this point was thoroughly, argued before us. My learned brother Saiduzzaman Siddiqui, J. Has concluded that the office of the Vice-Chairman of P.I.B. At the relevant time was not an office of profit though it was an office pertaining to service in Pakistan. I will dilate upon this aspect at a later stage.
5. Reverting to the above legal controversy, it may be pertinent to mention that the Constitution is an organic document, the object of which inter alia is to ensure the establishment of an Egalitarian Society. The construction found favour with the Tribunal not only runs counter to the above object of the Constitution but is also violative of Article 25 of the same which enjoins that all citizens are equal before law and are entitled to equal protection of law. The effect of the construction adopted by the Tribunal is that a person who holds an office in the service of Pakistan, which office is not an office of profit, can be a member of Majlis-e-Shoora but a person who has ceased to be in service of Pakistan and whose office was not an office of profit, cannot be a member of Majlis-e-Shoora before the expiry of two years' period since he ceased to be in such service. The above- classification does not come within the compass of a reasonable classification as it is not founded on intelligible differentia. It in fact, amounts to discriminatory treatment to the persons within the same class, in other words, the persons placed in the same situation/position are treated discriminately without justifiable reason. We cannot attribute such an intention on the part of the law-makers.
6. It may be mentioned that originally clause (1) of Article 63 of the Constitution contained sub- clauses (a) to (d) only, sub-clauses (e) to (p) were added by President Order No,14 of 1985 with effect from 2-3-1985 by the Chief Martial Law Administrator. The same were also incorporated in the Constitutional Eighth Amendment. The above newly-added sub-clauses were not framed by the framers of the Constitution. It seems that incorporation of the same was not preceded with the thorough debate and discussion as in March, 1985, there was no Parliament in existence. However, at the time of the passing of the above Constitutional Eighth Amendment, there was a Parliament which was interested in getting the Martial Law lifted from the country. It agreed to the above- Constitutional Eighth Amendment in exchange or as a consideration for the lifting of the Martial Law from the country. Apparently because of this, there appears to be above-omission in the sub- clause (k) or conflict between sub-clause (k) and sub-clause (d). After the restoration of the democratic institutions, it was expected that the Legislature would thoroughly scrutinize the amendments which were made in the Constitution by the Chief Martial Law Administrator . And would delete or modify those amendments which were in conflict with the other provisions of the Constitution. Or with the basic concept of the Constitution. Unfortunately, the Legislature has not taken upon itself the above important/urgent exercise in spite of expiry of about a decade after the lifting of the Martial Law. Since the Legislature has failed to take upon itself the above important Legislative exercise, the Judiciary though cannot legislate but it can through the process of interpretation remove such omission or conflict, if possible, by pressing into service well-settled rules of interpretation of statutes and Constitutional documents. This was pressed into service by me in my opinion in the case of Al-Jehad Trust through Raeesul Mujahideen Habib-ulWahabb-ul- Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324, wherein while construing Article 203 and clause (7) of Article 209 of the Constitution, I held as under:--- "Since there is a conflict between the above two Articles, efforts are to be made to resolve the same by reconciling it. The Constitution is to be read as a whole as an organic document. A close scrutiny of the various provisions of the Constitution highlights that it envisages that the independence of judiciary should be secured as provided by the founder fathers of the country by passing Objectives Resolution and by providing security of tenure. The Constitution also envisages separation of judiciary from the executive. Keeping in view the various provisions of the Constitution, it is not possible to reconcile the above-provisions of Article 203-C and Article 209. In such a situation, the question arises, which of the Article should prevail. One view can be that since Article 203-C was incorporated subsequent to Article 209, the former should prevail. The other view can be that since Article 209 was incorporated by consensus by the framers of the Constitution and whereas Article 203-C was incorporated by the then Chief Martial Law Administrator and as the same is detrimental to the basic concept of independence of judiciary and the separation of judiciary, the former should prevail. I am inclined to prefer the latter interpretation as it will be more in consonance with the various provisions of the Constitution and in accord with justice and fair play. A person cannot be appointed on adverse terms in a new Court without his consent."
' The above conclusion is founded on the well-settled rule of interpretation of statutes/Constitutional documents. In this regard reference may be made to the following celebrated treatises:--- ' Corpus Juris Secundum, Vol. 16, page 97: "24. Conflicting Provisions in general.---Although apparently conflicting provisions will be reconciled wherever possible, in case of a conflict in the provisions of a Constitution, if one or the other must yield, the one which, under the law, is the lesser right will yield.
' With respect to Constitutional construction, distinct Constitutional provisions are repugnant to each other only when they relate to the same subject, are adopted for the same purpose, and cannot be enforced without substantial conflict. While apparently conflicting provisions of a Constitution will be reconciled wherever possible, if one or the other must yield, that one which, under the law, is the lesser right will yield to the other."
Halsbury's Laws of England, Fourth Edition, Vol. 44, page 532: "872. Statute to be construed as a whole.---For the purposes of construction, the context of words which are to be construed includes not only the particular phrase or section in which they occur, but also the other parts of the statute.
' Thus a statute should be construed as a whole so as, so far as possible, to avoid any inconsistency or repugnancy either within the section to be construed or as between that section and other parts of the statute. The literal meaning of a particular section may in this way be extended or restricted by reference to other sections and to the general purview of the statute. Where the meaning of sweeping general words is in dispute, and it is found that similar expressions in other parts of the statute have all to be subjected to a particular limitation or qualification, it is a strong argument for subjecting the expression in dispute to the same limitation or qualification.
' It is sometimes said that where there is an irreconcilable inconsistency between two provisions in the same statute, the later prevails, but this is doubtful, and the better view appears to be that the Courts must determine which is the leading provision and which the subordinate provision, and which must give way to the other."
7. A perusal of the above-quoted extracts from the aforesaid treatises indicates that even when there is a conflict in Constitutional provisions, efforts should be made to reconcile the same but where it is not possible, the provision which relates to a lesser right will yield to the provision which contains a higher right. In the case of Al-Jehad Trust (supra), since clause (7) of Article 209 of the Constitution related to the security of tenure of the Judges of the superior Courts which is sine qua non for ensuring independence of judiciary as enjoined and guaranteed by the Constitution, it is a clause containing a higher right relating to one of the dominant objects of the Constitution, whereas the clauses contained in Article 203-C of the Constitution as to the appointment of a sitting Chief Justice of a High Court or a sitting Judge of a High Court to the Federal Shariat Court without his consent for a period of two years (which makes him susceptible to clause (4-B) of Article 203-C, which empowers the President to modify the terms of appointment of a Judge or assigned to a Judge any other office and require a Judge to perform such other functions as the President may deem fit or to pass such other order), are provisions containing a lesser right. In this view of the matter, the former provision, namely, clause (7) of Article 209 was to prevail over the latter provision.
8. Adverting to the question, whether Mr. Dar was holding an office of profit. It may be pertinent to know what is an 'office of profit'. In this regard, reference may be made to the definition of the above term given in Ballentine's Law Dictionary, 1969 Edition, page 881, which defines the above term as "A lucrative office; an office the incumbent of which is entitled to salary or other compensation". Reference may also be made to the following cases relied upon by Mr. Muhammad Akram Sheikh, learned Sr.ASC for Mr. Dar:---
(i) Cowan v. Seymour (Surveyor of Taxes) (1920) 1 K.B. 500); ' In which the facts were that the appellant acted as a Secretary of a company without remuneration from the date of its incorporation in January, 1912, up to September, 1916, when the company was wound up voluntarily. He was appointed liquidator for the purpose of the winding up and acted in that capacity also without remuneration. However, a final general meeting of the company was held in November, 1916, for the purpose of having an account of the winding up laid before the members of the company. In that meeting inter alia it was resolved that the appellant be given a moiety of the balance amounting to the sum of $ 586. The question came up before the House of Lords, as to whether the Revenue was right in treating the appellant as a holder of an office or employment of profit for the purpose of income-tax. The majority view of the learned Lords was that the appellant's office was terminated upon the winding up of the company and the above-payment was made after the termination of the employment and, therefore, the appellant was not holding office or employment of profit when the above-payment was received. The appeal was allowed by the House of Lords.
(ii) Revanna Subanna, appellant v. G.S. Kaggeerappa, respondent (A.I.R. 1954 SC 653); ' In the above case the facts were that an election was held for Town Municipal Councillorship of Gubbi Town in the State of Mysore in March, 1952. The appellant and the respondent before the Supreme Court of India were the rival candidates for the seat. At the time of scrutiny of the nomination papers objection was raised by the respondent to the nomination of the appellant as a candidate on the ground that he was holding an office of profit under the Government at that time as the Chairman of Gubbi Taluk Development Committee and hence disqualified under section 14 of the Mysore Town Municipalities Act, 1951. The objection was overruled by the Presiding Officer.
After the appellant was elected, an election petition was filed inter alia on the above ground, but the same was dismissed. However, upon appeal, the High Court reversed the judgment of the Election Tribunal and held that the appellant was holding an office of profit. The Supreme Court of India, while accepting the appeal of the appellant, held as under:--- "The plain meaning of the expression seems to be that an office must be held under Government to which any pay, salary, emoluments or allowance is attached. The word 'profit' connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit. It appears from the rules that the Taluk Development Committee is constituted as a part of the scheme for reorganization of rural development.
' It is a sort of advisory body consisting of 10 members and is presided over by a non-official Chairman. The Chairman has no executive duties to perform which are left entirely to the Amildar of the Taluk who is the 'ex officio' Secretary to the Commission, while a Special Revenue Inspector is to act as Assistant Secretary. The Chairman is to preside over meetings which are to be convened by the Secretary in consultation with him and the rules provide that the Chairman will be entitled to a fee of Rs,6 for each sitting he attends.
' From the facts stated above, we think it can reasonably be inferred that the fee of Rs,6 which the non-official Chairman is entitled to draw for each sitting of the committee, he attends, is not meant to be a payment by way of remuneration or profit, but it is given to him as a consolidated fee for the out-of-pocket expenses which he has to incur for attending the meetings of the committee. We do not think that it was the intention of the Government which created these Taluk Development Committees which were to be manned exclusively by non-officials, that the office of the Chairman or of the members should carry any profit or remuneration."
(iii) S. Umrao Singh, appellant v. Darbara Singh and others respondents (AIR 1969 SC 262); ' in which the question before the Supreme Court of India was, whether the office of Chairman, Punjab Panchayat Samities can be treated as an office of profit on account of payment of allowances to the Chairman under Rules 3 and 7 of Punjab Panchayat Samities (Payment of Allowances) Rules, 1965. It was held that the allowance paid under Rule 3 was clearly an allowance paid for the purpose of ensuring that the Chairman of a Panchayat Samiti does not have to spend money out of his own pocket for discharge of his duties; whereas Rules 4 to 7 which provide for payment of travelling allowance and daily allowance in connection with his official duties, were also intended to achieve the above object. It was, therefore, held that the office of a Chairman of the above Panchayat cannot be treated as an office of profit.
(iv) D.R. Gurushanthappa appellant v. Abdul Khuddus Anwar and others respondents (AIR 1969 SC 744); ' In the above case the facts were that a Government concern was taken over by a company.
Respondent No,1 was working in the said company as the Superintendent, Safety Engineering Department. He contested the election of Mysore Legislative Assembly. The appellant contested the above election of respondent No,2 on the ground that he was holding an office of profit in terms of Article 191 (1) (a) of the Constitution without success before the Election Tribunal and the Court below. The matter came up before the Supreme Court of India through an appeal, which was dismissed. It was held that the mere fact that the Government had control over the Managing Director and other Directors as well as the power of issuing directions regarding the working of the company was under the control of the Government would not make the above office as an office of profit. It was further held that mere inclusion of respondent No, 1 's name in the Civil List does not make him an employee of the Government but he was an employee covered by the definition of the term "workman" given in the Industrial Disputes Act.
(v) Shivamurthy Swami Inamdar and another v. Agadi Sangatma Andanappa and others (1971) 3 Supreme Court Cases 870); ' in which the facts were that certain elections of Lok Sabha as well as Provincial Assembly were assailed on the ground that successful candidates were holding office of profit in terms of Article 102(1)(a) of the Constitution. One of the candidates was Chairman of Koppal Taluk Agricultural Produce Marketing Society which carried with it an honourarium of Rs,2,000 per annum and a sitting fee of Rs,3 per day. The Supreme Court of India, while dismissing the appeals of the unsuccessful candidates, held that inter alia the above office was not an office of profit in terms of Article 102(1)(a) of the Indian Constitution. It would be advantageous to reproduce the discussion of the meaning of the words "office of profit":--- "In the election petition, it is alleged that he was disqualified for being a candidate under Article 102(1)(a) of the Constitution on various grounds as at the time of his nomination, he was holding many offices of profit under the Government of Mysore. We shall take up each one of those grounds and deal with them. But before doing so, it is necessary to analyse the ingredients of Article 102(1)(a). That Article says that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder. Therefore before the provisions of that Article can be attracted, it must be established that he was holding an office under the Union or the State Government and that office was an office of profit and thereafter we must see whether the disqualification relating to that office has been removed by any Parliamentary legislation. In other words, the office in question must have been held under a Government and to that some pay, salary, emoluments or allowance is attached. The word 'profit' connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit--see Revenna Subanna v. G.S. Kaggeerappa AIR 1954 SC 653. This Court in several decisions has laid down the tests for finding out whether an office in question is an office under a Government and whether it is an office of profit. Those tests are: (1) Whether the Government makes the appointment; (2) Whether the Government has the right to remove or dismiss the holder; (3) Whether the Government pays the remuneration; (4) What are the functions of the holder? Does he perform them for the Government and (5) Does the Government exercises any control over the performance of those functions? See Abdul Shakur v. Rikhab Chand 1958 SCR 387; Ramappa v. Sangappa 1959 SCR 1167; and Govida Basu v. Sankari Prasad (1964) 4 SCR 311. Bearing these tests in mind, we shall now proceed to consider each of the grounds alleged. The first ground of disqualification urged against Sangappa is that he was a member of Koppal Taluk Development Board as well as the member of the District Development Council of Raichur. These offices are said to be offices of profit under the State Government. This contention has no merit. He became an ex officio member of these bodies by virtue of his being elected as a member of the Mysore Legislative Council. Therefore it cannot be said that he was holding those offices under the Government. The Government neither appointed him nor could remove him. A member of the Koppal Taluk Development Board can only be removed by the Government on the strength of a resolution passed by that Board by a 2/3rd majority. A member of the District Development Board cannot be removed at all by the Government. The allowances paid for the members of the Taluk Development Board and District Development Board are intended to meet their out-of-pocket expenses. In other words they are compensatory allowances."
15. It was next said that he was a member of the Tungabhadra Board; he was appointed to that Board by the Government and as a member of that Board he was entitled to T.A. And D.A. At the rates prescribed by the Mysore Travelling Rules, 1957. We are unable to hold that this office was an office of profit. A member of that Board had no pecuniary benefit. The allowances given to him are clearly compensatory allowances."
(vi) Lalitha Bai petitioner v. Returning Officer, City Municipality Elections, Gulbarga and others respondents AIR 1971 Mysore 35; ' In the above case a Division Bench of the Mysore High Court held that a person, who is employed in an educational institution managed by a private society registered under the Societies Registration Act and receiving a grant in aid from the Government of Mysore, is not a holder of an office of profit under section 16(1)(c) of the Mysore Municipalities Act, 1964.
(vii) Karbhari Bhimaji Rohamare appellant v. Shanker Rao Genuji Kolhe and others respondents AIR 1975 SC 575; ' in which the question before the Supreme Court of India was, as to whether a member of the Wage Board, Sugar Industry, constituted by the Maharashtra Government under section 86-B of the Bombay Industrial Relations Act, 1946, can be treated as a holder of an office of profit within the meaning of Article 191(1)(a) of the Constitution so as to disqualify him to stand for election as a member of the State Legislative Assembly. After reviewing the case-law and after taking notice of the fact that such member is paid daily allowance, held that he cannot be said to hold office of profit in terms of the above-provision of the Constitution. It was also held that the law regarding the question, whether a person holds an office of profit should be interpreted reasonably having regard to the circumstances of the case and the times with which one is concerned and also the class of persons whose case the Court may be dealing.
(viii) Surya Kant Roy appellant v. Imamul Hai Khan respondent AIR 1975 SC 1053; ' In the above case the question was, whether the Chairman of the Mines Board of Health appointed by the State Government under B & 0 Mining Settlement Act (4 of 1920) was a person holding office under the Government as to disqualify him under section 100(1)(a) of the Representation of the People Act, 1951. It was held that though the respondent was holding office of profit but he was not holding the same under the Government and, therefore, the above provision was not applicable.
9. From the above case-law, it seems that in India the superior Courts while .Interpreting provisions relating to disqualification for being chosen as and for being a member of either House of Parliament or a Municipal or a Local Body has' applied various tests, some of which are as under:-- -
(i) Whether the Government makes the appointment?
(ii) Whether the Government has the right to remove or dismiss the holder of the office in issue?
(iii) Whether the Government pays the remuneration?
(iv) What are the functions of the holder of the office involved?
(v) Does the Government exercise any control over the performance of those functions?
' Applying inter alia the above tests, it has been held that a Chairman of a Wage Board or Development Board and/or of any other corporate body, who is not a full-time employee and is paid daily allowance and/or travelling allowance for attending meetings, is not an holder of office of profit. It has been further held that a member of the staff of a Government concern taken over by a company cannot be said to be holder of an office of profit notwithstanding the fact that the Government had the control over the Managing Director and other Directors and had the power of issuing direction regarding the working of the company. It has also been held that a teacher working in a private school registered under the Societies Act cannot be said to be holder of an office of profit merely for the reason that the Government gives annual grant.
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 a 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.
I am further inclined to hold that a provision of a Constitution/or a statute relating to disqualification should be construed reasonably having regard to the circumstances of the case involved and the time with which one is concerned and also the class of persons whose case the Court may be dealing.
10. From the evidence on record, it appears that at the relevant time the office of the Vice- Chairman of N.B. Was newly created. It was not a regular/budgeted post, neither salary was determined nor it was payable to Mr. Dar. In this regard, reference may be made to the relevant portions of the statements of R.W.4 Saeed Ahmad, Deputy Director, Board of Investment, and R.W.5 Mr. Imtiaz Ahmed Sahibzada, Cabinet Secretary, Government of Pakistan, which read as follows:--- ' Portion of the statement of Ch. Saeed Ahmad: "The office of Vice-Chairman does not carry any pay-scale." Portion of the statement of Mr. Imtiaz Ahmad Sahibzada: "I have no record in Cabinet Division indicating that any salary was attached to the office of Vice- Chairman, P.I.B. There is no record relating to payment of salary to respondent No,1 in the Cabinet Division. The summary relating to conferment of status of a Minister of State on respondent No,1 was moved by the Cabinet Division which is Annexure-XII of Mark '2/B'. No terms and conditions pertaining to the post of Vice-Chairman, P.I.B. i,e, the payment of salary and others were incorporated in this summary. He further explained that no other summary regarding terms and conditions including (sic) ever moved by the Cabinet Division. I am, therefore, not answered whether this is a budgeted post or not."
' The above statements are in consonance with the averments made by Mr. Dar in his affidavit-in- evidence which remained un rebutted, the relevant portion of which reads as under:--- "12. In respect of the second, the deponent was assured that the position to be created for him would be wholly unremunerated position, not attracting any salary, wage, fee or remuneration of any sort whatsoever. The deponent would only be given such out of pocket expenses as were incurred in the course of discharging his duties. The purpose of this was to ensure that his position was not an office of profit. Further, the deponent was under no obligation to Government to take up the position or once having taken it up to continue with it. The deponent was assured that he would be given the status of Minister of State so as to take advantage of the Ministerial immunity under Article 260 of the Constitution. Sometimes in June the deponent had received sufficient assurances from the Prime Minister regarding my position vis-a-vis the establishment of the Pakistan Investment Board and helping it to become a functioning body. The provisions of Article 63 of the Constitution were in the deponent's mind when he received these assurances."
11. The notification of the appointment as Vice-Chairman, P.I.B. And also the notification conferring status of a Minister of State on Mr. Dar do not spell out any terms as to the payment of salary and other fringe benefits as to make the same as an office of profit.
12. In view of the above evidence on record, it can be safely concluded that the office of the Vice- Chairman, P.I.B. Which Mr. Dar was holding at the relevant period for few months was not an office of profit in order to attract the disqualification under clause (1) of Article 63 of the Constitution.
' The above are the additional reasons in support of the majority view in the above case.
(Sd.)
Ajmal Mian, J.
' FAZAL KARIM, J.---By the short order dated 26-6-1996, Civil Appeal No,1025 of 1995 was, by majority, accepted. These are the reasons which led me to differ with my learned brothers.
' The question raised in these appeals turns upon Article 63, clause (1) of the Constitution which provides for disqualifications for membership of the Parliament. To do justice to the arguments of the learned counsel, I must set out the provisions of that Article, in so far as they are relevant; they read: "(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if-- (a)
(b)
(c) ......................
(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or '
(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 (g)
(h)
(i)
(k) he has been in the service of Pakistan or 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, unless a period of two years has elapsed since he ceased to be in such service; or
(1) ........................
(m) .............................
(n) .............................
(o) he holds any office of profit in the service of Pakistan other than the following offices;
(i) an office which is not whole-time office remunerated either by salary or by fee;
(ii) the office of Lumbardar, whether called by this or any other title;
(iii) the Qaumi Razakars;
(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the Constitution or raising of a Force; or
3. It is common ground between the parties that the case of Mr. Ishaq Dar fell to be dealt with under paragraph (k). Learned counsel for the appellant, Mr. Ishaq Dar, did not make a formal concession, but, what is the same thing, preferred to proceed on the basis that the appellant Mr. Ishaq Dar had been in the service of Pakistan. There is also no question that at the date of election a period of two years had not elapsed since he had ceased to be in that service.
4. There can be no doubt that paragraphs (d) and (e) apply to persons, who are serving at the date of election and in contrast paragraph (k) applied to persons who are not serving at the date of election, but had been in service but two years' period had not elapsed since they had ceased to be in service. This distinction, as I shall presently show, is of cardinal and decisive importance.
5. Learned counsel for Mr. Ishaq Dar argued that the disqualification in paragraph (k) must be so read as to be consistent with paragraph (d), for otherwise, the result will be such absurdity and unreasonableness as cannot be attributed to the Constitution-makers, namely that a person who is in the service of Pakistan must hold an office of profit to be disqualified under paragraph (d) but a person who had been in the service of Pakistan even a day before the election is disqualified under paragraph (k) irrespective of the fact that the office he had held was not an office of profit.
He, therefore, invited us to read paragraph (k) somewhat as follows:-- "He has been the holder of an office of profit in the service of Pakistan or 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, unless a period of two years has elapsed since he ceased to be in such service."
6. In other words, what we are called upon to do is to read the words "the holder of an office of profit" into paragraph (k). The question is-can we do that as the interpreters of the Constitution in so controversial a matter of legislative policy as the qualification and disqualification for membership of Parliament, which is, under our Constitution, essentially a matter for the Parliament? Is it a legitimate exercise of the judicial power of interpretation to take words from one part of Article 63 and read them into another?
7. It cannot be too strongly emphasised said Lord Diplock in Duport Steels Ltd. v. Sirs (1980) 1 All ER 529, 541) that "our Constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, and the judiciary interprets them". We have a written Constitution, and the theory of separation of powers is an entrenched theory; this, therefore, applied equally, if not with greater force, to our Constitution. "Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral". Duport Steels Ltd. v.
Sirs (1980) 1 All ER 529, 541).
8. Among the well-settled principles of Constitutional interpretation noticed and approved by this Court in Shrin Munir v, Government of Punjab (PLD 1990 SC 295) are (i) that it is not the function of the judiciary to legislate or to question the wisdom of the law-giver ; (ii) that no rule of construction can require that when the words of one part of a statute convey a clear meaning.... It shall be necessary to introduce another part of a statute which speaks with less perspicuity to diminish the efficacy of the first part; and (iii) that it is sometimes found that the conflict of two statutes is apparent only, as their objects are different and the language of each is restricted to its own object or subject and that distinct provisions of the Constitution are repugnant to each other in such a way as to be irreconcilable only when they are related to the same subject or adopted for the same purposes and cannot be enforced without material and substantial conflict.
9. Indeed the Courts do sometimes exercise what has been called by Sir Rupert Cross in his "Statutory Interpretation" (1976, 6th Edn. At page 94) a wholly exceptional but limited power of what is in effect rectification of a statute. That is the power to add to, alter or ignore statutory words. But generally speaking "it can only be exercised where there has been a demonstrable mistake on the part of the draftsman or where the consequence of applying the words in their ordinary, or discernible secondary, meaning would be utterly unreasonable". In the exercise of that power, the learned author goes on to say, "the Judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable, or totally irreconcilable with the rest of the statute". As Lord Diplock put it in Attorney-General of the Gambia v. Momodou Jobe (1984) 1 AC 689) a case arising out of the Constitution of Gambia, the Courts exercise this power where the draftsmanship of the provisions in question "is characterized by an unusual degree of ellipsis that has made it necessary to spell out explicitly a great deal that is omitted from the actual words appearing in the sections and has to be derived by implication from them". In such cases "omissions by the draftsman of the law to state in express words what, from the subject-matter of the law and the legal nature of the processes or institutions with which it deals, can be inferred to have been Parliament's intention, a Court charged with the judicial duty of giving effect to Parliament's intention, as that intention has been stated in the law that Parliament has passed, ought to construe the law as incorporating, by necessary implication, words which would give effect to such inferred intention, wherever to do so does not contradict the words actually set out in the law itself and to fail to do so would defeat Parliament's intention by depriving the law of all legal effect".
10. "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do". (Thompson v. Gold 4 Co. Inst. 330, cited in Stock v. Frank Jones (1978) 1 All ER 948, 951). The general rule is that plain language excludes a consideration of 'anomalies', i,e, mischievous or absurd consequence. (Stock v. Frank Jones at page 955). And in any case, as Aharon Barak has observed in his "Judicially Discretion" at page 60, the expressions clear, obscure, absurd, illogical, manifestly are themselves obscure and open-textured.
"Where the application of a rule of interpretation is conditioned upon them, the very application of the rule of interpretation naturally brings with it uncertainty as to the legal norms itself, and as a result, uncertainty as to the existence of judicial discretion".
11. Even the chief exponents of the theory, Mr. Justice Holmes and Mr. Justice Cardozo of the Supreme Court of America, that Judges so legislate, threat this power as a limited one. Mr. Justice Homes summed it up in one of his flashing epigrams: "I recognize without hesitation that the Judges must and do legislate, but they do so only interstitially" (Southern Pacific Co. v. Jensen, 244 US 205, 221). In simpler language, No doubt the limits for the Judge are narrower. He legislates only between gaps. He fills open spaces in the law'. (Justice Cardozo in "The Nature of the Judicial Process" at page 113).
12. The principles to be derived from decided cases then are: (1) that the power to add words is a power to rectify obvious drafting errors; (2) that the Courts may read words into a provision which are not there if they consider that those words are necessarily implied by the words which are already there in that provision; (3) even if it is right to describe this power as the power to legislate, it is limited to filling gaps, and (4) that what the Courts do in exercising that power is to give effect to the legislative or Constitutional intention.
13. To these principles must be added the observation that this power is not a power to amend a Constitutional or statutory provision; that power, as regards the Constitution, is reserved by Article 239 of the Constitution, to the Parliament and that too when the Bill to amend has been passed by the votes of not less than two-third of the total membership of each Houk.
14. Learned counsel for the appellant relied heavily upon this Court's recent judgment in the already famous case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), for the view that the Courts can, and ought to, add words where necessary. It is sufficient to say that that case was decided on the principle that the intent of the Constitution is to be found in the general principles that it lays down, 'independence of judiciary' being the general principle that was invoked by the learned Judges in majority in that case. No such general principle can, in this case, be called to the aid of the interpretation sought to be placed upon paragraph (k) by the appellant's counsel.
15. The question one must ask, therefore, is--is it necessary to give effect to the Constitutional intention to read the words sought to be read in the paragraph (k) of clause (1) of Article 63; is there an obvious drafting error to be rectified or are the words 'office of profit' necessarily implied in paragraph (k) of clause (1) of Article 63? In this behalf it is important to notice that the disqualification as contained in paragraph (k) of clause (1) of Article 63 was considered at least thrice by the law-makers and the draftsmen. It was first enacted as clause (2)(b)(4) of Article 10 of the President Post Proclamation Order of 1977 (P.O. 5 of 1977). Then it was bodily lifted from that enactment and was incorporated in Article 63 as clause (k) and lastly it was "affirmed, adopted and declared to have been validly made by the competent authority and, notwithstanding anything contained in the Constitution" by Article 270-A as substituted by the Constitution (8th Amendment) Act, 1985. We must, therefore, proceed on the presumption that the disqualification couched as it is in the words of paragraph (k) of clause (1) of Article 63 was the result of a considered legislative policy.
16. The starting point for the interpretation of paragraph (k) of clause (1) of Article 63 must, therefore, be its language and absent a clearly expressed intention to the contrary that language must ordinarily be regarded as conclusive. Each paragraph of clause (1) of Article 63 is separated by the word 'or'. Ther8 is, therefore, no doubt, and none was expressed, that each paragraph of clause (1) of Article 63 is an independent disqualification. Much was tried to be made of the fact that the disqualification in paragraph (o) of clause (1) of Article 63 is not an independent disqualification. I agree that the object of paragraph (o) was to create exceptions to the disqualification in paragraph (d) and that paragraph (o) could as well be a part of paragraph (d).
In other words paragraph (o) can be characterized as a specimen of drafting inelegance but that affords no reason for thinking that the disqualification in paragraph (k) must be read subject to the disqualification in paragraph (d) or what is a stronger thing, that an omission should be assumed or fancied and words should be imported from paragraph (d) into paragraph (k). What is to be remembered in interpreting paragraphs (d) and (k) is the important fact that they are two independent disqualifications each dealing with a distinct class of persons. As has been observed above, paragraph (d) provides for persons who are at the date of election in the service of Pakistan and paragraph (k) provides for persons who are not serving at the date of the election. As to why it was thought necessary to provide that a person who is serving must hold an office of profit and a person who is not serving may not hold such an office was a matter of legislative policy. In other words, persons who are in the service of Pakistan are treated by the Constitution-makers as a class apart and for them the mere fact that they had been in the service of Pakistan irrespective of whether or not they had held an office of profit was considered a sufficient disqualification. It is of some significance to note that clause (1) of Article 63 does not treat all serving persons alike as one category. Thus, while according to paragraph (d), for a person in the service of Pakistan, it is necessary that he holds an office of profit but according to paragraph (e) for a person in the service of any statutory body etc. It is not necessary that he holds an office of profit. But paragraph
(k) treats all persons who had been in the service of Pakistan and persons who had been in the service of a statutory body etc. As a distinct category; both are disqualified, irrespective of whether or not they had held an office of profit. All this shows, and in my view shows clearly, that there is no drafting error to be rectified, there is nothing to compel the reading of the words 'office of profit' in paragraph (k) on the principle of necessary implication and that the Constitutional intention manifested by the language of paragraph (k) can be given effect to without reading those words in paragraph (k). Read the disqualifications in paragraph (d) and paragraph (k) as independent disqualifications relating to two distinct categories of person, and no absurdity or unreasonableness will arise.
17. It sometimes becomes inevitably for Judges "to approach the line where interpretation ceases and legislation begins, a line which they may not cross". But this is not that case. This case rather reminds me of a great Judge who, when confronted with an argument about the difficulty of drawing the line, said that, "though he knew not when day ended and night began, he knew that mid-day was day and midnight was night". (Lord Simonds in Chapman v. Chapman (1954) AC 429, 445).
18. In the result, I would have dismissed Civil Appeal No,1025 of 1995. But as that appeal stands accepted by the majority judgment, the questions raised in Civil Appeal No,1024 of 1995 have not been reached.
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