MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred against the judgment dated 11-11-2002 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench, Rawalpindi in a Constitutional petition.
2. The relevant facts giving rise to this petition are that the present petitioner and respondents Nos.2 to 6 contested in the local bodies election in panels for the seats of Nazim and Naib-Nazim Union Council 15, Tehsil and District Rawalpindi. The panel of respondent No,2 secured 1722 votes whereas the panel of petitioner could get 1517 votes and in consequence thereto the panel of respondent No,2 was declared successful. The petitioner challenged the election of respondent No,2 through an election petition on the ground that he by virtue of clause (d) of section 14 of the Punjab Local Government Elections Ordinance, 2000 was disqualified to contest the election and become member of local council. In support thereof, the petitioner placed on record copy of the order dated 13-3-2000 passed by the Chairman, District Zakat and Ushr Committee, Rawalpindi, in pursuance of the decision taken by the District Zakat and Usher Committee in its meeting held on 31-1-2000 for the removal of respondent No,2 from the office of Chairman Local Zakat and Ushr Committee, Mohallah Raj Sultan, Rawalpindi, under section 21(3)(e) of Zakat and Ushr Ordinance, 1980. In addition thereto the petitioner also placed on record a copy of F.I.R., pertaining to case registered under section 324/34, P.P.C., against respondent No,2 and others at Police Station Banni, Rawalpindi. However, the main ground urged by the petitioner in support of the election petition was that respondent No,2 while holding the office of Chairman Zakat and Ushr Committee, Mohallah Raja Sultan, Rawalpindi, was removed from the said office for the charge of misappropriation of an amount of Rs,30,000 of Zakat fund under section 21(3)(e) of Zakat and Ushr Ordinance, 1980 and in consequence thereto he earned a disqualification to become member of the Local Council. The respondent while denying the allegation of misappropriation of Zakat fund, pleaded that due to the wrong advice of the concerned official of Local Committee, the above amount was withdrawn from Zakat fund for distribution as stipend but on coming to know that Zakat fund could not be utilized for such purposes, the amount in question was deposited in the Zakat fund and that no loss was caused to the Zakat Committee. The Tribunal, however, having formed the opinion that respondent No,2 on account of his removal from the office of Chairman Zakat and Ushr Committee, earned a disqualification under section 14(d) of Punjab Local Government Elections Ordinance, 2000 to contest the election and become member of the Local Council, allowed the election petition vide judgment dated 13-5-2002. The Tribunal in para. 7 of its judgment held as under: "7. However, the respondent No,1 was removed from the office of Chairman of Ushr and Zakat Committee through the proceedings of inquiry and decision dated 31-1-2001, Exh.PB, for misappropriation of Zakat and Ushar Fund of Rs,30,000. This misconduct on his part labels him to be ' Non-Ameen'. Although further departmental action was recommended against other officials of Zakat and Ushar Committee but the respondent No,1 was removed from the office alongwith the termination of the membership of the entire Committee on deposit of the misappropriated amount of Rs,30,000 by the respondent No,1. This misconduct in discharge of his duties as Chairman and consequential removal from the office of Chairman Zakat and Usher Committee renders respondent No,1 disqualified in view of section 14(d) of P.L.E.G.E.O., 2000. The issue is decided against the respondent No,l."
3. The verdict given by the Election Tribunal was challenged by the respondent No,2 through a Writ Petition bearing No,1357 of 2002 in the Lahore High Court, Rawalpindi Bench, and a learned Single Judge while setting aside the judgment of the Tribunal, dismissed the election petition vide impugned judgment.
4. Learned counsel for the petitioner has contended that under the instructions of the Administrator Zakat and Ushr, Punjab, Lahore on a reference sent to him by District Zakat and Ushr Committee, an inquiry into the matter was conducted by the District Committee and on proof of the allegation of misapplication of Zakat fund, respondent No,2 was removed from the office of Chairman, Zakat and Ushr Committee under section 21 of Zakat and Ushr Ordinance, 1980 and by virtue of section 14(d) of Punjab Local Government Elections Ordinance, 2000 it would be a disqualification to contest election and become member in the local bodies. Learned counsel added that respondent was removed from the office of Chairman Zakat and Ushr Committee due to his bad conduct and dishonesty, therefore, he was not an Ameen to hold public office but the learned Judge in the High Court was misdirected in law in declaring that the removal of respondent under section 21(3)(d) of Zakat and Ushr Ordinance, 1980 would not be a disqualification under section 14(d) of the Punjab Local Government Elections Ordinance, 2000.
5. Section 21(3)(e) of Zakat and Ushr Ordinance, 1980 provides as under:-- "21(3)(e) has been guilty of abuse of power or of misconduct in the discharge of his duties as Chairman or member, or been responsible for any loss or misapplication of any money or property of the Committee.
6. The removal of a person from the office of Chairman or a Member of Zakat and Ushr Committee under the above provision may be a ground to disqualify him to become the member of the Zakat and Ushr Committee but this removal by itself cannot be construed a disqualification under section 14(d) of the Punjab Local Government Elections Ordinance, 2000. Section 14(d) of the Punjab Local Government Elections Ordinance, 2000 provides as under:- "14(d) is of good character and is not commonly known as one who violates Islamic Injunctions, has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins, provided that these qualifications shall not apply to a person who is a non-Muslim, but such a person shall have a good reputation."
7. The distinction between the two provisions is obvious. Under section 21(3)(e) of Zakat and Ushr Ordinance, 1980, a person can be removed from the office on the ground of abuse of power, misconduct or for causing any loss or misappropriation of any money or property of Zakat Committee. Section 14(d) of Punjab Local Government Elections Ordinance, 2000 on the other hand, provides that a person is not qualified to contest the election and become member of Local Council if he is not a man of good character and is commonly known as one who violates Islamic Injunctions. The District Committee having held the concerned official of Local Zakat and Ushr Committee responsible for tendering wrong advice to the Chairman of the Committee, recommended for an appropriate action against the said official but has not held the respondent guilty of misuse or misapplication of Zakat fund or that he caused any loss to the Committee or abused his power or misconducted himself in discharge of his duty. The allegation against the respondent No,2 related to an irregularity in the distribution of Zakat fund and the perusal of the proceedings of District Zakat and Ushr Committee would show that the irregularity in question happened due to the lack of proper vigilance of the respondent which was not a deliberate and willful act to constitute actionable misconduct. The misconduct in general terms means to manage badly, improper conduct, the doing of something by a person inconsistent with the conduct expected from him by rules of an institution or an organization but if the will of a person is not party to his action, it is not a willful misconduct. The misconduct can be distinguished from willful misconduct and unless an act is not done by a person intentionally, knowingly and purposely, it is not willful misconduct which is distinct from an act done carelessly or inadvertently.
The holder of a public office is always required to take proper care and responsibility in conduct of official business without any breach of duty and failure to act with proper care and in strict observance of law, may constitute misconduct liable to action but misconduct is something opposed to accident or negligence. The ground on the basis of which the respondent No,2 was removed from the office of Chairman Zakat and Ushr Committee constitutes an act of negligence which may be the misconduct for the purpose of section 21(3)(e) of Zakat and Ushr Ordinance, 1980 but definitely it would not be an evidence of bad character, dishonesty or proof of violation of Injunctions of Islam to create a disqualification under section I4(d) of Punjab Local Government Elections Ordinance.2000.
8. There can be no cavil to the proposition that a person who is dishonest and is not Ameen as provided under Article 62(t) of the Constitution or is a man of bad character or lacks any other qualification mentioned in section 14(d) of Punjab Local Government Elections Ordinance, 2000 is disqualified to contest election and become member in the Local Council but mere removal of a person for an act of negligence or for an administrative reason or for any other such ground under section 21(e) of Zakat and Ushr Ordinance, 1980 from the office of Chairman Zakat and Ushr Committee, would not ipso fact be a ground to raise a presumption of his disqualification to hold the elective office in the local bodies. The failure to take proper care in distribution of Zakat fund as Chairman of Zakat and Ushr Committee certainly is an act of mismanagement and negligence but in absence of any proof of misappropriation of Zakat fund it would be difficult to hold the respondent a dishonest person or that he was lacking the qualification mentioned in section 14(d) of Punjab Local Government Elections Ordinance, 2000. There is nothing on record to show that respondent No,2 was ever found a dishonest person or a man of bad character or he violated the Injunctions of Islam by any competent forum and thus we, in the light of foregoing reasons, without going into the question of jurisdictional defect pointed out 'ay the High Court in the order of removal of respondent No,2 from the office of Chairman Zakat and Ushr Committee hold that simpliciter removal of respondent No,2 from the said office, would not be a disqualification under section 14(d) of Punjab Local Government Elections Ordinance, 2000 and the error committed by the Tribunal was rightly corrected by the High Court in exercise of its Constitutional jurisdiction. The matter does not call for interference of this Court and this petition is accordingly dismissed. Leave to appeal is refused.