1. ' WAJIHUDDIN AHMED, J.---The petitioner is an Advocate. He has questioned the appointment to and assumption of office of Provincial Ombudsman for Sindh of Mr. Justice (Rtd.) Salahuddin Mirza.
2. In effect, an order in the nature of a writ of quo warranto is sought by the petitioner. The sole ground on which the petitioner questions the appointment is that, as postulated by Article 207 of the Constitution, a period of two years had not elapsed before the respondent-Judge has assumed the referred office of Provincial Ombudsman of Sindh. Article 207 of the Constitution is reproduced hereunder for ready reference:--- "207. Judge not to hold office of profit, etc.---(1) A judge of the Supreme Court or of a High Court shall not---
(a) hold any other office of profit in the service of Pakistan if his remuneration is thereby increased; or
(b) occupy any other position carrying the right to remuneration for the rendering of services.
(2) A person who has held office as a Judge of the Supreme Court or of a High Court shall not hold any office of profit in the service of Pakistan, not being a judicial or quasi-judicial office or the office of Chief Election Commissoner or of Chairman or member of a law commission or of Chairman or member of the Council of Islamic Ideology, before the expiration of two years after he has ceased to hold that office.
(3) A person who has held office as a permanent Judge--
(a) of the Supreme Court, shall not plead or act in any Court or before any authority in Pakistan;
(b) of a High Court, shall not plead or act in any Court or before any authority within its jurisdiction; and
(c) of the High Court of West Pakistan as it existed immediately before the coming into force of the Province of West Pakistan (Dissolution) Order, 1970, shall not plead or act in any Court or before any authority within the jurisdiction of the principal seat of that High Court or, as the case may be, the permanent Bench of that High Court to which he was assigned."
3. ' While clause (2) in the quoted Article makes an exception for a Judge of a superior Court to be appointed to or come to hold a judicial or a quasi-judicial office and the embargo, by process of elimination, is confined to other offices of profit, the petitioner's case is that the office of Ombudsman under the Establishment of the Office of Ombudsman for the Province of Sindh Act is neither judicial nor quasi-judicial in character. For the determination of the question whether a particular office is or is not an office of profit, reliance has been placed on the criteria laid down in Abida Hussain v. Tribunal for NA 69 PLD 1994 SC 60, Shahid Nabi Malik v. Chief Election Commissioner PLD 1997 SC 32 and Registrar Supreme Court of Pakistan v. Wali Muhammad, 1997 SCM R 141. Reference is also made to Motidas v. State of Behar AIR 1954 SC 657. In these cases the discussion has pivoted around the question as to what are the elements of an office of profit. That, however, is not relevant for the purposes of deciding this petition.
4. ' Article 207(1) of the Constitution is directed to ensure that a Judge of the Supreme Court or of a High Court hold any office or profit in the service of Pakistan "if his remuneration is thereby increased" or occupy any other position carrying the right to remuneration for the rendering of services. That is not relevant for our purposes here. Clause (2) of the same Article contemplates a similar disentitlement for Judges of the superior Courts but such pertains to the period after the Judge(s) under reference has/have ceased to hold such office and the prohibition is that any such Judge "shall not hold any office of profit in the service of Pakistan not being a judicial or quasi- judicial office or the office of Chief Election Commissioner or of Chairman or member of a law commission or Chairman or member of the Council of Islamic Ideology" before the expiration of two years after he has ceased to hold office as Judge. Clause (3) in the Article has no bearing on the discussions here.
5. ' Thus, relevant to the controversy in this petition, while under clause (2) of Article 207 a person, who has held office as a Judge of the Supreme Court or of a High Court, shall not hold any office of profit in the service of Pakistan before the expiration of two years after he has ceased to hold that office, there is no preclusion for a person, who has held office of such a Judge, to be appointed to or to hold "a judicial or a quasi-judicial office". The provision goes a step further and excludes from the mandated prohibition the offices of the Chief Election Commissioner or of Chairman or Member of a Law Commission or Chairman or Member of the Council of Islamic Ideology. This enumeration, apparently, seems to have been expressly made irrespective of the named offices not qualifying as judicial or quasi-judicial offices, for the holding of which there is no restriction even though the qualifying period of two years has not expired.
6. Now, it has to be seen as to what are the connotations of a judicial or quasi-judicial office. A judicial office necessarily carries with it the function of exercising discretion or judgment. The subject- matter of such discretion or judgment embraces rights, obligations or proprietary matters.
7. Incidents of hearing and determination or adjudication are also involved. On the other hand, a quasi-judicial office denotes an administrative office, endowed with a jurisdiction to investigate or ascertain facts on the basis of hearing, assessment of evidence and drawing of a conclusion, which is the foundation of action or exercise of discretion of a judicial nature.
8. ' The crucial question, therefore, is whether the office of the Provincial Ombudsman, as created by the Establishment of the Office of Ombudsman for the Province of Sindh Act, 1991, is or is not a judicial or quasi-judicial office. For the purpose it would be necessary to examine the statutory functions which the Ombudsman has to perform. In the first place, under section 3 of the enactment the appointment is made by the Governor of the Province and the Ombudsman is required to take the prescribed oath before the Governor. Subsection (3) of section 3 postulates that the ombudsman shall, in all matters, perform his functions and exercise his powers fairly, honestly, diligently and independently of the executive. All executive authorities throughout the Province would be obliged to act in aid of the Ombudsman. The post of the Ombudsman is a tenure post under section 4 of the Act and such tenure of four years is neither extendable nor a re- appointment is permissible. What is more, under section 5 of the same statute the Ombudsman is precluded from holding any office of profit in the service of Pakistan or to occupy any position carrying the right to remuneration. Likewise, the Ombudsman shall not hold any office of profit in the service of Pakistan before expiry of two years after he has ceased to hold that office. These postulates are akin to and obviously in line with the prohibitions contained in Article 207(1) and (2) of the Constitution. Under the succeeding section 6, while the Ombudsman may be removed from the office by the Governor on grounds of misconduct, the Ombudsman may request for an open public evidentiary hearing before the Supreme Judicial Council and if such a hearing is not accorded within thirty days of the receipt of the request or not concluded within 90 days of its receipt, the Ombudsman would stand absolved of any or all stigma whatsoever. As to jurisdiction, in terms of section 9, the Ombudsman has powers to, upon being moved or on his own motion, undertake any investigation into any allegation of maladministration on the part of an agency or any of its officers or employees, there being some exceptions as postulated. Under section 11 the Ombudsman is empowered to communicate his findings and seek implementation in various ways. In case of defiance of recommendations the Ombudsman may also seek implementation thereof under section 12. The Ombudsman exercises the powers of a Civil Court in matters specified by section 14 of the Act and that includes, summoning and enforcing the attendance of any person and examining him on oath, compelling the production of document; receiving evidence on affidavit and issuing commissions for examination of witnesses. The Ombudsman under the same provision also has power to award compensation in the event a complaint is found to be false, frivolous or vexatious. Under section 16 of the Statute the Ombudsman has been vested with powers, to impose punishment for contempt, mutatis mutandis, as those of the High Court. Per section 22 of the Act, the Ombudsman has been empowered to award costs and compensation to aggrieved persons.
9. Applying the criteria discussed above on the quoted provisions, it would appear that the Ombudsman under the 1991 Statute, at the minimum, exercises quasi-judicial powers. As seen, he can act either on being moved or even suo motu. He has the powers of a Civil Court for the purpose of recording evidence. He can make recommendations and take other suitable actions upon the evidentiary material produced, before him. Much like a Judge of a superior Court he cannot hold any office of profit during his incumbency, his statutory tenure cannot be extended, he cannot be re-appointed nor is he eligible for appointment to an office of profit for a term of two years following upon the efflux of his tenure. His orders are appealable, obviously being speaking orders.
10. ' It, therefore, seems to us that the office of the Ombudsman, even if not a judicial office in all the connotations of that term, such is, at the minimum, a quasi-judicial office. As a result no contravention of Article 207(2) of the Constitution has come into play.
11. ' Something has been said by the petitioner on the score that no counter affidavit has been filed in this petition but then the Division Bench, which issued notices on 24-12-1996 in the petition, did not issue any notice to the respondents but only to the. Advocate-General, Sindh, and the Deputy Attorney-General for Pakistan. At any event, there is no factual dispute involved. It is undeniable that the respondent No,1 came to occupy the office of Ombudsman in a little over three months' time from the date of his retirement from this Court. Had he, therefore, come to hold an office, which was not excepted by clause (2) of Article 207, there would have been a clear disqualification from occupying or holding such an office. But that is not the case here because, as we have observed, the office of Ombudsman, involved in these proceedings is, at the very least, a quasi- judicial office and, manifestly, exempted from the prohibition contained in Article 207(2) of the Constitution. As a result, this petition has no merit and is dismissed.