' TARIQ PARVEZ, J . ---This judgment is intended to dispose of two Writ Petitions bearing Nos.964 of 2001 and 987 of 2001 as common question of law is involved therein i,e,: "Section 19 of the N.-W.F.P. Local Government Elections Ordinance, 2000 (Ordinance VI of 2000) places a bar against double membership where it provides that 'the holder of an elective office may contest election for any other political office; provided that he resigns before filing his nomination papers for election to the new office."
2. Facts of Writ Petition No,964 of 2001 (Abdal Muhammad v. Malik Asad and others) are to the effect that petitioner is an elected Councillor from Union Council Lachi Urban, Kohat and he has challenged the nomination of respondent No,1(ii) Sardar Khan, by raising objection that such respondent stands already elected for the office of Nazim Union Council, Darmalak and stands duly notified by notification dated 27-3-2001, therefore, shall be held disqualified.
' In Writ Petition No,987 of 2001 (Syed Imran Bacha and another v. Shad Ali Khan and others), the two petitioners therein have filed their nomination papers for the office of Nazim and Naib-Nazim in respect of District Council Kohat and so did respondents 1 to 8. Shad Ali Khan, one of the contesting respondents stood elected as Nazim for Union Council, his nomination papers were also challenged on the ground, referred to above.
' Although some more objections regarding disqualification on the ground of invalid nomination papers were taken in the lower forums as well as in these petitions but because on the basis of law point involved, if the petitioners are going to succeed, we would, therefore, refrain ourselves to give any finding thereon because such objections are related to facts.
3. Necessary is to give some background in which the N.-W.F.P. Local Government Election Ordinance, 2000 (Ordinance VI of 2000) (hereinafter referred to as the Ordinance) was promulgated despite the fact that there was similar Ordinance of 1979 i,e, the North-West Frontier Province Local Government Ordinance, 1979 (N.-W.F.P. Ordinance No,IV of 1979). The present regime, in order to provide active participation to the general public in the democratic scheme of running the public affairs relating to their day to day problems at street, village, Tehsil and Town level, decided to entrust the public representatives through devolution programme to participate in self- governance. To achieve the object and also to get good governance notwithstanding the Local Government Ordinance, 1979, the Ordinance was promulgated. Under the Ordinance a scheme for the administration of Local Government has been arranged in the manner that the elective offices starts from the bottom i,e, Union Councils then go up and constitute Tehsil, Town and Zilla Councils.
For the purpose of Basic Unit i,e, Union Council, it provides that there shall be twenty-one members of a Union Council with twelve seats for Muslims, including four seats reserved for women, six seats reserved for peasants and workers, including two seats for women to represent peasants and workers, one seat reserved for minority, Union Nazim and Naib-Union Nazim.
' Section 10 of the Ordinance provides the mode of franchise and the electoral college. Members of a Union Council.Shall be elected through adult franctise whereas the electoral college for the election of Zila Nazim and Naib-Zila Nazim, Town Nazim and Naib-Town Nazim, Tehsil Nazim and Naib-Tehsil Nazim, shall be the members of Union Councils in the district, town in a city or a Tehsil, as the case may be. An explanation is added to section 10 of the Ordinance which states that all members of Union Council notified as returned candidates in the election held under the Ordinance shall be deemed to be members of the electoral college.
' Section 19 of the Ordinance which is the subject of interpretation of our this judgment has placed a bar against double membership. The language of section is reproduced below for ready reference: "Section 19. The holder of an elective office may contest election for any other political office; provided that he resigns before filing his nomination papers for election to the new office."
4. We have heard learned counsel for the parties. Barrister Jehanzeb Rahim appeared in both the writ petitions for the petitioners while Qazi Muhammad Anwar, Advocate represented the contesting respondents. Mr. Gul Akbar Khan, Provincial Deputy Election Commissioner appeared on behalf of Chief Election Commissioner and Provincial Election Commissioner.
5. At the very outset in Writ Petition No,964 of 2001 objection was raised by learned counsel appearing for the contesting respondents as to the maintainability of the writ petition because the petitioner namely, Abdal Ahmad was though a voter being member of the Union Council but was not a contesting candidate for the office of Zila Nazim and it was submitted that he would not be termed as an "aggrieved person" as required under Article 199 of the Constitution of Islamic Republic of Pakistan.
' Qazi Muhammad Anwar, in support of his preliminary objection has referred to number of case- law including PLD 1978 SC 151, PLD 1982 SC 308, PLD 1964 SC 636, AIR 1982 SC 1473 and 1989 MLD 2192 and argued that an aggrieved person should be one who has sustained some personal grievance and because his objection against the nomination of contesting respondents was turned down by the Returning Officer (hereinafter referred to as R.O.) and by District Returning Officer (hereinafter referred to as D.R.O.) but because such orders were not against him and were not effecting his right of franchise, therefore, he would not be entitled to bring the Constitutional petition. It was contended that he can approach the High Court in Constitutional jurisdiction in a writ of quo warranto but only after the elections are held and if he was to show that the public office was held without lawful authority.
6. Barrister Jehanzeb Rahim while meeting the preliminary objection, stated that the position of an elector, as the petitioner is, totally different from an elector as it was under the N.-W.F.P. Local Government Ordinance, 1979. Reference is made to Rule 14 of the Local Councils Elections Rules, 1979 framed under such Ordinance where objection to the nomination papers at the time of scrutiny can only be raised by the proposer and seconder and one other person authorised in this behalf by each candidate and that under sub-Rule (5) of the Rules a candidate whose nomination papers were rejected could prefer an appeal whereas under the Ordinance and the Rules framed thereunder with reference to Rule 18, the objection can be raised by a candidate, their election agent, proposer and seconders or the persons who made representations or objections against the nomination papers and any voter of the local area concerned after obtaining permission of the R.O. And R.O. Shall give reasonable opportunity to such persons to examine all nomination papers and then in the presence of persons attending the scrutiny will examine the nomination papers and would decide any objection raised by any such persons. It is argued that a complete departure has been made from the earlier laws by giving right of objection to any voter of the area so much so that such objector if present at the scrutiny shall have the right to file an appeal on rejection of his objection on any nomination paper before the Appellate Authority appointed by Chief Election Commissioner.
' It is, therefore, argued that in view of right being given to the petitioners not only to object but to file an appeal and appeal being a statutory right if decided against the petitioner shall make him an aggrieved person and would thus vest him with the right to invoke the Constitutional jurisdiction of this Court.
7. In view of the statutory provisions where a voter has been given right of objection to the nomination papers and he has been given right of appeal against the acceptance of nomination papers, despite his objection, he will be a person aggrieved in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan notwithstanding the fact that he would not sustain any personal grievance. Our such finding is also supported from the fact that the Court can also see into the object of the Legislation where any voter is equipped with the right of objection to eliminate any illegal contract between two or more contesting candidates where they may agree not to raise any legal objection qua their disqualification though such disqualification may exist therein and thereby anyone of them may get elected despite disqualification.
8. In support of the legal proposition that there is bar on double membership, learned counsel for the petitioners argued that without going into reasons and object as to why section 19 in the Ordinance was enacted but the Court is to see the law as it is and if on plain language of the Statute no second interpretation can be given, the law should he applied as it is and it is not for the Court to decide as to how the law should have been. It is argued that if a respondent is already elected to an elective office he is not to be disfranchised for a new office but provided he first resigns from the office already held. It is submitted that a person who contests election for the Union Council membership and once elected has the option to contest and to be aspirant for a higher office but it should not be at the cost of electors who have elected him in the first instance i,e, electors of the Union Council.
9. Learned counsel has referred to subsection (3) of section 2 of the Ordinance where "elector" has been defined to be a person whose name for the time being appears on the electoral roll for a ward prepared or adapted under this Ordinance. Reference is also made to N.-W.F.P. Local Government Elections Rules, 2000 (hereinafter referred to as the Rules) where under sub-rule (iv) of. Rule 2 "candidate" has been defined which means a person nominated for election as member.
It is argued that section 10 of the Ordinance specified the electoral college for the office of Zila, Town, Tehsil Nazim and Naib-Nazim who are, according to the explanation added to the section, notified members of the Union Council. It is argued that section 19 of the Ordinance is unambiguous and the bar contained for double membership being statutory bar, cannot be removed by any authority including the Chief Election Commissioner but by amending the Statute.
10. Learned counsel appearing for contesting respondents, however, argued that section 19 of the Ordinance is not to be read in isolation but in order to interpret this section, this Court shall keep in view all laws on the subject which are pari materia to the Ordinance.
' Learned counsel has vehemently argued and has forcefully relied on Article 223 of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Constitution). It is submitted that when there is Constitutional requirement and such requirement is not as harsh as section 19 of the Ordinance then section 19 shall be interpreted and should be followed but as is envisaged under Article 223 of the Constitution. We, for brevity purpose would briefly reproduce Article 223 of the Constitution which is as under:-- "223.---(1) Bar against double membership.---No person shall, at the same time, be a member of,- - (a)
(b)
(c)
(d)
(2) Nothing in clause (1) shall prevent a person from being a candidate for two or more seats at the same time but if he is elected to more than one seat he shall, within a period of both Houses; or....
After declaration of the result for the last such seat, resign all but one of his seats, and if he does not so resign, all the seats .... Shall become vacant at the expiration of said period .... Except the seat to which he has been last elected ' It is argued that in view of the above Constitutional provisions where there is a consequential effect of non-resignation but such is not the case in section 19 of the Ordinance. Therefore, no clog can be imposed nor any bar placed on double membership. It is submitted that in absence of penal consequences for not tendering resignation before filing nomination for a new office by a person already holding an elective office, he would not loose his earlier membership.
11. It is argued by the respondents that under section 38 of the Ordinance, Chief Election Commissioner is empowered to remove any difficulty which may arise in giving effect to the provisions of the Ordinance by making an order and because the manual of instructions issued for the guidance of D.R.O., R.O. Etc. Is issued from the office of Election Commissioner of Pakistan and under para.8 of such instructions a returned candidate of a Union Council, Union Nazim and Naib Union Nazims are allowed to contest indirect election of Zila, Tehsil and Town Council without resigning. Therefore, section 19 shall be deemed to be not applicable and would not debar the respondents from contest.
12. Mr. Abdul Rauf Gandapur, Advocate appeared on behalf of contesting respondents in Writ Petition No,987 of 2001 and has produced an advertisement published in "Daily Aaj" dated 8-7-2001 where there is a full page advertisement issued by Election Commission of Pakistan and under heading "Indirect Elections and Qualification of Their Candidature" at S. No,5 the contents of para.8 of instructions have been reproduced and submitted that in view of such publicity the intention of the Chief Election Commissioner who is the overall incharge of the elections and who has been specifically authorised to conduct the elections, his such instructions would override the provisions of section 19 of the Ordinance.
13. Mr. Gul Akbar Khan, Provincial Deputy Election Commissioner appearing on behalf of Chief Election Commissioner of Pakistan and Provincial Election Commissioner stated at the bar that section 19 of the Ordinance has not been amended but when the Provincial Election Commissioner sought instructions from the Federal Law Division about the interpretation of section 19 of the Ordinance some Section Officer of the Law Division has orally communicated to them that notwithstanding bar on double membership as contained in section 19 of the Ordinance the person holding an elective office can be a candidate for the new office.
14. Reverting back to the arguments of learned counsel, Qazi Muhammad Anwar, he argued that qualifications for contesting election have been enumerated in section 14 of the Ordinance and it does not contain disqualification on the ground of double membership. It is first argued that if once a person is on the electoral roll for a particular constituency, as in the instant case the respondents being members of the Union Council is on the electoral college for the office of Zila, Town, Tehsil Nazim and Naib Nazim he can also to be the candidate for such slot.
15. The counsel appearing for the respondents namely, Qazi Muhammad Anwar and Mr. Abdul Rauf Gandapur have also argued that every word given in section 19 shall be meaningfully interpreted.
In their view the phrase "holding of an elective office" would be applicable only it' a member has entered into the office and such entry is dependent on taking of oath under Rule 44. Therefore, in their view as such stage has not arrived because none of the contesting respondents has so far taken oath, therefore, the bar contained, if any, for double membership in section 19 would not apply against the respondents.
16. After hearing the detailed arguments of the learned counsel for either side and because much emphasis was placed on Article 223 of the Constitution, we will first address ourselves to such point.
Constitution is the supreme law of the land: It provides fundamental rights to the citizens of the country. It provides different organs of the State namely, Executive, Legislature, Judiciary, their spheres 'of working, the parameters and domain of their respective jurisdiction. All other laws are framed under the Constitution. They cannot be in derogation of Constitutional provisions nor can be inconsistent. But, where a provision is made in the Constitution for the Members of National Assembly, Senate or any Provincial Assembly and where such membership is controlled on the basis of qualification and disqualification enumerated under Articles 62 and 63 of the Constitution and when there is no bar on the powers of Legislature, be it Federal or Provincial, to make laws but within the scope of their respective jurisdiction then a law enacted either by the Provincial Assembly or an Ordinance promulgated by the Governor unless found inconsistent to the Constitution and unless its vires are challenged and unless it is so declared, shall remain a valid law.
17. We doubt if the arguments of the learned counsel for the contesting respondents have got any force inasmuch that the Ordinance should be taken as pari materia to the Constitutional provisions. We may here refer to the interpretation of statutes by M. Farani, Edition, 1974 and on page 391 a reference is made to a judgment 14 CWN 817 and to another judgment 71 C. 196(PC) which states that Statutes passed on the same day by the same Legislature and dealing always with the same subject may be referred to each other to ascertain the meaning of any particular word in any of them. It was ruled in R. Titterton, (1895) 2 QB 61, per Lord Russell of Killowen, C.J. That reference to the earlier Statute on the same subject shall only be made when there is ambiguity in the latter:-- "(z) Sutherland on construction with reference to other statutes. Dealing with construction of acts in pari materia, Sutherland, in his treatise, says: ' It is at no time profitable task to seek to interpret one statute with reference to another statute, but when the statute is ambiguous, the intention of the Legislature may be gathered from statutes relating to the same subject-matter i,e, statutes in para materia, on the presumption that whenever the Legislature enacts a provision it has in mind the previous statute relating to the same subject-matter. Statutes are considered to be in pari materia -- to pertain to the same subject- matter -- when they relate to the same person or thing or to the same class of persons or things or to have the same purpose or object. To be in pari materia, statutes need not have been enacted simultaneously or refer to on another."
' It is advisable and proper that while construing an Act or any provisions of it in the first place, the language of the Act or its provisions should be closely examined and not to start making inquiries as to how the law previously stood and then to base the construction on the new Act or its provisions. The rule of construction of statutes in pari materia would not permit the use of a previous statute to control the plain language of a subsequent statute. It is also a well-settled principle that two different provisions are made to fulfil the requirements of two different statutes they can be said to be inconsistent merely because they are different as they are intended to serve different purpose hiconsistency will arise only if two different provisions not only contradict each other but also cannot co-exist.
18. In Interpretation of Statutes by N.S. Bindra, Fourth Eddition at page 333, it is held that where words of the statute are clear then it is not within the province of a Court simply with a view to avoid apparent anomalies to put such an interpretation on the words as they are incapable of bearing.
It is always for the Legislature to take steps and to remove the anomaly, if any, and where it is considered fit to do so. Nothing can be added to the statute nor can be subtracted from it. It is the duty of the Court to give effect to the law as it stands and Court should not depart from the plain meaning of the section even though serious anomalies may result where the provisions of the law are unambiguous, the Court of law has nothing to do with the reasonableness or unreasonableness of such statutory provisions.
19. The Court of law is bound to construe an interpretation of the Act to the plain meaning of the language unless in the section itself or in any other part of the Act anything is found to modify, qualify dr hold the statutory language even if absurd to be the result of such interpretation. What we hold is that even the principle of inconvenience i,e, "ab inconvenienti" is only admissible in construing the provisions of law or statute where the meanings are obscure but where language is explicit, its consequences are for the Legislature/law-maker and not for the Court to consider.
Where a person/citizen feels like suffering from such enurement he must appeal for relief to the law-maker. It is not for the Court to extend the scope of an Act on the ground of convenience.
20. One of the arguments which we forget to mention in the earlier part of this judgment advanced by the learned counsel for respondents was with regard to the interpretation of section 19 of the Ordinance as provisions contained in the body of the section viz. Heading of the section.
' In this paragraph we will dilate upon such submission. The heading of the section is "Bar against Double Membership" while body of the section debars a person holding elective office to contest election for another political office but if he so desires he shall first resign. It is argued that the body of the section and its heading are inconsistent and they cannot co-exist and even if so, then the heading of the section shall be taken because that would be a Construction of the provisions of statute favourable to the citizen. We regret to agree with the arguments of the learned counsel for respondents because heading of the section is not in all cases a determining factor regarding the interpretation of provisions of the section. Where language is clear headings are not to be taken into consideration. Due consideration must be given to the words of the section independent of the heading for arriving at a conclusion as to what was the purpose of enacting the section. Reliance is placed on PLD 1966 BJ 30. Reading of the heading may be of some help in clearing an ambiguity if it so exists in the body of the section but the heading cannot control the provisions of section when they are unequivocal and clear.
21. Although the heading of the section contains bar against double membership and if the contention of the learned counsel for the respondents is allowed to prevail with regard to their interpretation of member i,e, member who has also taken oath will become holder of elective office, it will disturbe the whole scheme of the Ordinance, because, if the membership for the purposes of constituting electoral college as envisaged under section 10 of the Ordinance is made dependent on taking of oath by the members of the Union Council then the very election of Zila, Town and Tehsil Nazim and NaibNazim could not be held. The explanation added to section 10 is clear in terms where a member of a Union Council notified as such is made entitled to vote.
22. Whenever there is a question of interpretation of any Act, Ordinance or statutory provisions, the Courts constituted whether under the Constitution or law have their own jurisdiction and role, the powers of the Courts and its duties are controlled under the law. Court is to keep in mind the realities of changing situation which necessitated the promulgation of an Ordinance or enactment.
Once the intention of the law-givers becomes clear, no consideration of practical expediency or possibility of abuse should be allowed to stop the natural consequences flowing from the correct interpretation of statutory provisions. Even the right of franchise cannot be referred to by the Courts in interpreting legislative enactment except when so far as they appear from the enactment themselves. Reference in his behalf can be made to PLD 1950 Lah.
985. The Court should, keep the whole Act in mind (K and view while construing the provisions of I law even if inappropriate language is used it would not justify the Court in adopting an interpretation which results to frustrate the very object of the statute. Wisdom of law-makers cannot be challenged unless the vires of the statute itself. The Court cannot import into a statute anything which is no/ there.
23. As in the opening paragraph of this judgment we had briefly highlighted the object for the promulgation of the Ordinance and after we have gone through the entire law with the assistance of the learned counsel for the parties we feel that the insertion of sections 19 to the Ordinance is purposeful. This section does not disfranchise any citizen but bars a person already holding elective office to contest for another. When seen in the light of ground realities, such insertion was necessary because when a person has once opted to go for poll for the office of member of Union Council he shall leave it open to others to go forward and get themselves elected for the other office. A member of the Union Council becomes the elector for Nazim, NaibNazim of Zila, Town and Tehsil and it is he who by exercise of his right of vote as such, represent his own electoral ward at a higher level. We have already highlighted that Rule 18 of the Rules a common voter i,e, elector of the electoral ward has been bestowed with the right not only to object to the nomination but can also go in appeal and it was for sole object that there should be a direct check on the nomination by the elector who should not allow a person who is disqualified to get elected.
24. Before parting with our this judgment, we may here refer that section 14 of the Ordinance enlists therein the qualifications. Such are qualifications other than the one mentioned in Articles 62 and 63 of the Constitution though some are common, but the insertion of certain sub-clauses in section 14 as to the character, reputation, knowledge of Islam, tiling of declaration of assets, conviction on moral turpitude are such qualifications which clearly indicate that the object of the Ordinance is to provide people a right of self-governance to the exclusion of such element which can be hit under the qualification clause. The qualification once vested in a person can turn into disqualification at a later stage e.g. a sane member may get insane and will thus incur disqualification. Similarly, a person who might be below 25 years of age at the time of filing nomination papers may on a subsequent date becomes qualified on attaining the age of 25 but bar as contained in section is a statutory bar and cannot be removed unless so removed by the law-givers which can only be done either by amending the provisions or by repealing it.
We may refer here that nomination of the respondents despite objection as to double membership were accepted merely with reference to para.8 of the instructions but such instructions would not have any bearing in view of clear language of sections 19 of the Ordinance. Also, no rules or orders framed under the Ordinance or issued by Government or Chief Election Commissioner under section 38 of the Ordinance could stand if they are inconsistent to the Ordinance itself. Section 38 of the Ordinance empowers the Government and the Chief Election Commissioner to remove difficulties in order to give effect to the provisions of Ordinance. This power is not for rather creating difficulties. For these reasons the writ petitions stand allowed.
' These are the reasons for our short order of even date.