HIGH COURT OF SINDH, KARACHI

Election Appeal No.06 of 2007

Date Order with signature of Judge

1. For orders on CMA 2290/07.

2. For Katcha Peshi.

10.12.2007.

Mr. Farooq H. Naek, for the appellant assisted by Mr. Adnan Karim, advocate.

Mr. Shoaib Bukhari, for respondents Nos.4 and 5 assisted by Mr. A. Iqbal Qadri and Mr. Muqeem Alam Sheikh, advocates.

Mr. Rizwan Ahmed Siddiqui, Deputy Attorney General

Naveed Aziz, Election Officer on behalf of Provincial Election Commissioner, Sindh.

…..

KHAWAJA NAVEED AHMED, J., This Election Appeal has been filed by appellant Saeed Ghani son of Usman Ghani (late), whose nomination papers have been rejected by the Returning Officer, NA-251 by impugned order dated 30.11.2007.

Being aggrieved and dis-satisfied by the impugned order, appellant has filed this appeal on the ground that Article 51 of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution, 1973”), provides for National Assembly comprising of 342 Members to be elected in the manner provided in Article 51 of the Constitution, 1973. It is stated that the Returning Officer has erred in holding that petitioner is not qualified for the seat of NA-251, Karachi, because his nomination papers are hit by Article 63(1)(d) and (s) of the Constitution, 1973 and Section 12(2) of Representation of the People Act, 1976 and Section 158(1) of Sindh Local Government Ordinance, 2001 (“Ordinance, 2001”).

Learned counsel for the appellant has argued that the appellant is fully qualified to contest election as provisions of Ordinance, 2001 are discriminatory and contrary to the provisions of Articles 2-A, 8 and 25 of the Constitution, 1973 and as such are not applicable to the instant case. Learned counsel for the appellant has further argued that the order of the Returning Officer is illegal, perverse, violative of principle of natural justice and is of no legal effect. In addition to his grounds of appeal, which he has taken in Memo of Appeal, learned counsel for the appellant has verbally argued that Article 51 of the Constitution, 1973 lays down condition for the candidates. Article 52 of the Constitution, 1973 provides duration of the tenure, Article 62 of the Constitution, 1973 provides qualification and Article 63 of the Constitution, 1973 provides dis-qualification. He has vehemently argued that office of Member of National Assembly is a Constitutional Office and is not a Political Office. He has further argued that under Article 158 of the Ordinance, 2001, it is provided that Nazim may contest election for any other political office after resigning from the existing office of Nazim or as the case may be Naib Nazim. Article 158 of Ordinance, 2001 is reproduced herein below:-

“158. Bar against Nazims for dual membership, etc.- (1) A Zila Nazim, Naib Zila Nazim, Taluka Nazim, Naib Taluka Nazim, Town Nazi, Naib Town Nazim, Union Nazim and Naib Union, Nazim may contest election for any other political office after resigning from the existing office of Nazim, or, as the case may be, Naib Nazim.

Provided that a member of Zila council, Taluka Council, Town Council or Union Council may contest election for any other political office without resigning from the membership of such Council;

Provided further that such member shall not hold more than one office at one time.

(2) Nothing in sub-section (1) shall apply to a Union Nazim or Naib Union Nazim, becoming members of the Zila Council or Taluka Council, or the members elected against reserved seats in the Zila Council or Taluka Council, or being elected as Naib Zila Nazim or, as the case may be, Naib Taluka Nazim.”

Learned counsel for the appellant has further argued that there are two types of offices: one is Constitutional and the other Political. Learned counsel has designated the offices of Member of National Assembly, Member of Provincial Assembly as Constitutional Offices while office of Nazim and Naib Nazim as the Political Offices. He states that the Members of National and Provincial Assemblies are not performing any political act, therefore, they are not holding any political office. In support of his arguments, he has relied upon Black’s Law Dictionary, Fifth Edition Page 282 in which Constitutional Office has been defined as follows:-

“Constitutional Office. A public position or office which is created by a constitution as distinguished from a statutory office which is created by an enactment of the legislature.”

Constitutional Officer has been defined in Black’s Law Dictionary, Fifth Edition at page 282 as follows:-

“A governmental official whose office was created by a constitution; as constrasted with an office whose position has been created by the legislature. One whose tenure and term of office are fixed and defined by the constitution, as distinguished from the incumbents of offices created by the legislature.”

Learned counsel for the appellant has further relied upon Ballentine’s Law Dictionary, Third Edition at page 960, wherein the words “Political Office” has been defined as follows:-

“Political Office. Any office of the civil government not connected with the administration of justice. United States v. Fitzpatrick (US) 13 Wall 568, 20 L Ed 707, 708. Any office filled by a popular election. Any public office not within the civil service system, that is, one whose occupant is not protected in his tenure by civil laws.”

Learned counsel for the appellant has relied upon Ballentine’s Law Dictionary, Third Edition at page 254, wherein the word “Constitutional Office” has been defined as follows:-

“Constitutional Office. A public office created by the United States Constitution or by a state constitution, as distinguished from an office created by statute, or from an office which, like that of notary public, has existed in nearly all countries for centuries.”

Learned counsel for the appellant has further argued that Representation of the People Act, 1976 is a Federal Statute while the Ordinance, 2001 is a Provincial Statute. He says that whenever there is conflict between the two, the Federal Statute will prevail.

In reply to the arguments advanced by learned counsel for the appellant, learned counsel for respondents Nos.4&5 have argued that appellant Saeed Ghani is Nazim of Union Council-IV, Chanesar Goath, Jamshed Town, Karachi and being the Nazim he is dis-qualified to contest the election of NA-251 because of Ordinance, 2001. Section 158 of Ordinance, 2001, creates bar against Nazim for dual membership. It clearly states that Nazim may contest election for any other political office after resigning from the existing office of Nazim.

Learned counsel for the respondents Nos.4&5 has further argued that the appellant Saeed Ghani, being a Nazim is bound by Ordinance, 2001, under which he is functioning as Nazim. He further states that by filing nomination papers for the seat of National Assembly 251, the appellant himself is violating the law, under which he has been elected Nazim. While referring to Article 63 of the Constitution, 1973, learned counsel has stated that it clearly says “any other law, for the time being in force”. Learned counsel for the respondents Nos.4&5 has further argued that the dis-qualification of appellant Saeed Ghani is under Ordinance, 2001 and as such even according to Article 63 of the Constitution, 1973 he stands dis-qualified from contesting the election.

The contentions raised by learned counsel for the appellant are not supported by his own citation which he has produced in support of his arguments. The Ballentine’s Law Dictionary, Third Edition at page 960, defines the words “Political Office” as under:-

The definition of Political Office clearly stipulates that “any office filled by a popular election”. The office of Member, National Assembly, is filled by popular election and according to Ballentine’s Law Dictionary, Third Edition this is a Political Office. Even otherwise, generally speaking the office of the Member, National Assembly is a Political Office because ultimately the members of a National Assembly cast his vote to form a political government. A Member, National Assembly usually contest election on the ticket issued by a political party. He uses the symbol allotted to the political party and once the party wins or looses election he cast his vote either enabling the government or strengthening the opposition. Regarding political rights, concept, political justice reliance has been placed on the case reported as MUHAMMAD NAWAZ SHARIF v. PRESIDENT OF PAKISTAN (PLD 1993 SC 473).

Consequently, this Election Appeal is dismissed with no order as to costs alongwith CMA No.2290/07.

Judge