Muhammad Yousaf Vs Abdul Mateen and others

V

IUDGMENT SHEET

PESHAI,YAR HIGH COURT

ABBOTTABAD BENCH

(J url icial Departmenl)

Election Appeal No. 06-4/2023

Muhammud Yousof.

(Appellant/s)

VS

Abdul Mateen and others.

(Respondent/s)

Present Mr. Saad Abbasi, Advocate, /br the petitioners.

Syed Hammad Hussain Shah Gillani, Advocale, for respondent No. l.

Ms. Isma Urooj, Law Officer, for rasponde nts/ Elect ion Commission.

Date of hearing: 18.03.2024

Date of announcement: 25.03.2024

JUDGMENT

MUHAMMADIJAZ KHAN J .- Through the instant judgment, this Court shall decide this as well as connected Election Aooeal No. 27-A/2024 titled "AbtluI Mateen vs. Muhommad Yousaf and others" as both these appeals have arisen from one and the same judgment of The Election Tribunal, Abbottabad dated 13.12.2023, whereby, it allowed the election petition of co-appellant namelv Abdul Mateen and Iahir st'lee,I (l) U ) I lon hlc Mr .loslice Muhirmmad ijar Lhan

thereby de-notified the appellant namely Muhammad Yousaf from the seat of general councilor of Union Council Tatreela (No. 44) and also directed the Election Commission of Pakistan to issue a schedule of polling tbr the constituency of said Village Council for the vacant seat of category ofgeneral councilor.

, Precisely the facts as per the averments of these appeals are that the Local Bodies Election for the seats of general councilors were held on 31.03.2022 in which for the Union Council No. 44 namely Tatreela, District, Abbottabad total rwelve ( l2) candidates contested the said election and out of which as per Section 27 read with Eleventh Schedule of The Khyber Pakhtunkhwa Local Government Act, 2013 (hereinalier is to be referred as The Act of 2013) the top three candidates were declared as successful in which one Shabir Ahmad had obtained 290 votes, whereas, the appellant Muhammad Yousaf obtained v 278 votes and other Muhammad Shabir obtained 265 votes and Shabir Ahmad being the highest scorer with 290 votes is also acting as the Chairman of the said Village Council, whereas, co-appellant namely Abdul Mateen obtained 227 votes and as such he was at Serial No.4 and was a runner-up candidate, therefore, lahir Salccm (l).U.) f{on hle Mr Justioe Muhanllnad l.iaz Khan

being at serial No. 4 he was not declared as returned candidate,, however, the said Abdul Mateen filed an election petition before The Election Tribunal, Abbottabad that the present appellant namely Muhammad Yousaf being a Nikah Registrar was not eligible to contest the said election, therefore, he prayed before the Election Tribunal that his notification be withdrawn and instead he (Abdul Mateen) may be declared as returned candidate. After filing of the election petition. the Worthy Election Tribunal without recording any evidence considering the issue being of legal nature straightway issued notices to the respondents and after hearing arguments of contesting pafties, allowed the election petition of Abdul Mateen and thereby the present appellant Muhammad Yousaf was de-notified from the seat of general councilor and the Election Commission of Pakistan was directed to issue a schedule for the polling of the said constituency vide impugned order and .judgment dared 13.12.2023. The aforesaid order and judgment has now challenged by the present appellant namely Muhammad Yousaf as a whole, whereas, co-appellant namely Abdul Mateen has challenged the same to the extent that instead of Tahir Saleem (D B ) Hon'ble Mr. Justice Muhammad liaz Khan

issuing direction for re-polling he, being runner up at serial No. 4, should have been notified by the Election Tribunal as retumed candidate.

t. Arguments of, leamed counsel for parties AS well as law officer appearing on behalf of respondent/Election Commission were heard rn considerable detail and record perused with their able asslstance.

4 The only controversy involved in these appeals are that as to whether a person who is a "Nikah Registrar" could contest an election of the local bodies in view ofthe bar contained in Section 78 (l) (0 of The Act of 2013, therefore, it is a case where the intentions of the legislature behind the said clause ts required to be traced, therefore, the same being relevant is reproduced below;

"78. QualiJications for candidates and elected members.---(l) A person shall quoli/y to be elected or to hold an eleclivc ffice or membership o;f a bcul council, if he- Gt) .. .....

(b)(c)

(d)(e) (/) is nol in the service the federal. a ovincial or ktcal vernme r an statulorv b or a bodv which is c ontrolled bv anv such so vernment or. in which anv of such PO vernments has a controllins share or inlercsl. ent the holders ol ele cted nuhlic o{/ict' and parl-lime oflicials remuneraletl e ithcr b sala r ee rovided thctt n a,fe o a Derson v,ho has resisned or relired om such 'Iahir SaleeDr 1D B ) HoD'ble Mr .lustice Muhamnrad l.ia7 Khan

w

senice, o period of not less than six months hos clapsed since his retiremenl"

On a plain reading, the aforesaid clause (f) could be segmented in three parts; fugb, that a person shall qualify to be elected or to hold an elective office or membership of a local council, if he is not in the service of federal, a provincial or a local government or, any statutory body or a body which is controlled by any such govemment secondlv an excluded class of employees has been provided i.e. except those persons who are holder of elected public office and part-time officials remunerated either by salary or fee and thirdly that a person who has been in the service of federation/provincial or local government could contest an election provided he has resigned or retired from such service and a period of six months has elapsed since his retirement. So, in plain words clause (0 of Section 78 of The Act of 2013 v mandates/stipulates that a person could not contest an election if he is in the service of federation or a provincial or a local govemment or any statutory body, however, even such person could contest an election but after his resignation or retirement from such service and when a period of six months has been lahir Saleem (D B ) Hon ble Mr. Justice Muhammad l.iaz Khan

v expired from his retirement. The aforesaid bar as contained qua a person who being in service and unless a period of six months has elapsed since his retirement could not be applied to the excluded class of employees provided by the same clause (f) to the effect that all those persons who are holding elected public office and are part tirne officials and who are being remunerated either by salary or fee. The legislatures with a very clear intention have excluded the parl time officials from the said bar and thus if the aforesaid yardstick ls applied to the case of the appellant Muhammad Yousaf, who too is a Nikah Registrar which is a part time duty and he is being remunerated from the fee collected by himself from the registration of the marriages and thus he could not be termed as a person in the service of federal, a provincial or a local govemment or, any statutory body or a body which is t7 controlled by any such government and as such he was an eligible person to hold the seat of general councilor and thus the learned Election Tribunal has put a wrong interpretation to the said clause and has wrongly applied the said bar to the case of the appellant Muhammad Yousaf.

Tahir Saleem (D.B ) Hon'ble Mr Justice Muhamrnad Ijaz Khan

5 During the course of arguments, the

leamed counsel representing the respondent namely Abdul Mateen vehemently argued that since the appellant Muhammad Yousaf is a sitting Nikah Registrar and he has neither resigned nor got retirement from his position, therefore, the inbuilt proviso in clause (f) of Section 78 of The Act of 2013 would fully attract to the excluded class of employees as well including to the part-time employment of the appellant, however, such plea is misconceived as the words "a person who has resigned or retired from such service" and "Six months has elapsed since his retirement" occurring in the said proviso are of much significance and surely speaks of such service where any such eventuality of "retirement" or "resignation" may arise and as in the part-time duty like that of Nikah Registrar no such eventuality of "retirement" could arise as under the provision of The Muslim v Family Laws Ordinance, 1961 (hereinafter is to be referred as The Ordinance of l96l) and The Rules of 1961 framed thereunder do not provide for any threshold of retirement qua upper age limits of a Nikah Registrar. Similarly, these law/rules are also completely silent about the resignation of a Nikah Tahir Saleenr (D Il ) Iloo hle Mr .luslice Muhammad ljaz Khan

I

Registrar. It may be relevant to mention here that the position of Nikah Registrar is not a permanent post on the strength of the local govemment/village council.

Similarly, to fill such position neither any publication is made in the newspaper to invite applications from general public nor any open competition is required to be carried out amongst the eligible persons rather it is the sweet will of any individual of the area who wish to perform such duty and thus such desirous person on his own may apply to the relevant authority for the grant of a license within the meaning and as per mandate of Section 5 (2) of The Ordinance of 1961 read with Rule 7 of The Rules of 1961 and thus after fulfilling of all pre-requisite formalities a license is issued to the desirous person in Form-l with the prescribed terms and conditions mentioned therein and in case of violation of any terms and conditions of license, the competent authority i.e. Secretary Unron Council may revoke/cancel his license and he may also be punished with imprisonment for a period of one month and thus in the given facts and circumstances the word "retirement" and "resignation" as occurred in the inbuilt proviso of clause (f) of Section 78 of The Act of 2013 are totally alien for the office of a Nikah Tahir Saleem (D.8.) Hor'ble Mr. Justice Mthammad ljaz Khan

I

Registrar and thus the said proviso could not be tagged or applied to the parl-time employment of a Nikah Registrar. ln Ghazanfar Ali's case reported as PP.

2016 Suoreme Court 151 the Apex Court has held that the qualifications and disqualifications imposed by law for a candidate to contest the election and even to hold office should be construed and applied strictly and a person can only be debarred from contesting elections or holding an office if the case falls squarely within the strict scope of the qualifications and disqualifications stipulated by law. Similarly, it is also an established principle of interpretation of statute that a statute must be interpreted in such a manner so as to advance the cause of justice instead of defeating the same. In the case of "Govt: of Khvber Pakhtunkhwa throush Chi ef Se cretarv Peshswar & others v/s Intizar Ali & others" reported as 2W.B 4n it was held by the Apex Court that ln a number of judgments, the superior courts of the country have held that when meaning of a statute is clear and plain language of statute requires no other interpretation then intention of Legislature conveyed through such language has to be given full affect. Plain words must be expounded in their natural and ordinary sense.

Tahir Salecnr (D B ) Horr'blc N.1r .lustice N{uhammad Iiaz Khao

Intention of the Lesislature is orimarilv to be eathered from lansu a e used and attentio n has to be naid to what has been said and not to that what has not been said. Similarly, in the case of "Govt: o Kh ber Pakhtunkhwa & others v/s Abtlul Manan re ported as 2021 SCMR l87I the A pex Court has reiterated the aforesaid rational by observing that when the intent o the le islature is mani e stl clear rom the wordin o the statute, the rules of interrt retation reauired that such law be interpreted as it is bv ASS I ine the ordinarv Enslish lansuase and usase to the words used. unless it causes srave iniustice which mav be irremediable or leads to absurd situations which could not have been intended bv the le gisla ture.

Likewise, in the case of '7S Bank Limited v/s Province of Pun iab throush Secrelarv Food Lahore & olhers" re ported as 2021 SCMR 1617, the APex Court has declared that for the interpretation of statutes purposive rather than a literal approach is to be r adopted and any interpretation which advances the pulpose of the Act is to be preferred rather than an interpretation. which def'eats its objects 6 It is also relevant to mention here that Section 27 & Section 23 of The Punjab Local -l-aht (l) B ) Hon blc l\1r .lLrslicc Mohammad liaT Khln salccnl

ll

Government Act, 2013 and Section 78 & Section 114 of The Khyber Pakhtunkhwa Local Government Act, 2023 are synonymous as these sections respectively speak about the qualifications/disqualifications of candidates and elected members and the status of the members of the local govemment being of public servants. The interpretation of Section 27 and Section 23 of the Punjab Local Government Act,20l3 came up before the Apex Court ln Ghazanfar Ali's case reported as PLD 2016 Supreme Court 151 wherein the Apex Court in Para No. 5 has held as under;

5.Heard. ln lha conlexl o/ the ./acts of the cuses, vvhich are nol dispulcd, we .lirul that the ./blknuing proposition.s need resolulion through this opinion (i) the interpretation of section 27(2)(e) of the Punjab Local Government Act, 2013: (ii) rhe e/fect of section 23 o/ the Zakat and Ushr Ortlinant'e, l9U0 vvhen reud v'ilh lhe provisions of section 2l ol thc Pukistan Penal Code, 1860; and (iii) whelher in the .facts and circumslances of the present case and in the lelter and spirit of the Ordinance. lhe pelitioners arc "in lhe service ol a statutory body". Thus .for lhe above purPose, it seems expedient to reproduce the relevant Seclions: -

Puniab Locol Govern menl Acl.20l3

"27. QuoliJications antl disqualiJications v Jor candidates and elecled members.' ( I )

(2)A person shall be di:tquulified lrom being elecled or chosen as, and .from baing, an eleclecl mcmber oJ a local governmenl, ifhe- (a)

(h)

Iahrr Salecm (D.B ) lkm-hle Mr luslice Muhammad Iiaz Khan

t2

(c)

kt)

k) is in the service of any statutory body or a body which is owned ancl controlled by the Government or a Provincial Government or the Federal Government or o local goyernment <tr, in which any of such Government or local government has a controlling share or inleresl, except the holders oJ'elected public ofJice and part- time o/ficials remunerated either by salary or fee; ptpt,idcd that in case ofa person who has resignecl or retired .from any such service, a period of not less than two years htt.\ rlop:(d .\in(c hi: rcsignulfutn rr reliremenl."

23.Certain persons to be public servants.- Every person engaged in, or employed./br, the administration of this Ordinance shall be dcemed to be o public servant within the meaning o/ section 2l of the Pakistan Penol Code (Act XLV tt l860).

Explanation.-For the purposes o/ this section, the Chairman and members of the District Committee and Local Commitlee shall be the persons engaged in the administration of this Orclinonce. "

From the unambiguous language of section 27(2)(e), there is no room .fitr doubt that the disqualilication is only in relotion to a person who is "in the service" o/ any statutory body, etc. Be/bre proceeding ./urther il may be mentioned that il i.t settled law that the qualifications and disqualifications imposed by law .for a candidate to contest tlrc election and even to hold of/ice should be utnslrued and applied slriclly (note; u,e ctre deliberately not examining this aspecr in lhis case on the buchstone of Article l7 oJ the Clon"'titulion of Islamic Republic oJ Pakistan, 1973), and a (\, person cttn only be debarred Jiom conte.tting ,/ elections or holding an o/fice if the case .falls squarely u,ithin lhe stricl .\cope of lhe quctli/ications ond disqua lificat ion,\ slipuloled b); lav. Be lhal as it muy. in order lo interpret and apply seclion 27(2)(e) in the context oJ the .facts oJ the present cose, il may be mentioned that various Councils/Committees envisaged by the Ordinance are undisputedly statulory boclies as these have been created by lhe .\lolule itse('(the Ordinance). There/bre, the pivotal queslion which needs consideration and resolution is that whether a 'lahir Saleenr 1l) B I ll,'n hle \4r ju\r(( \.1,rhanrn d lin/ Lha

person who holds a post or psition in any of these Councils,'Committees is in lhe service of o stotutory body. ln our viev' lo onsv'er lhis question il is expedient lo understand the obiect and spirit o./ the Ordinance, in that, why this law has been enforced, what dre the dilferent levels and nature of the Councilsicommittee s, what .funclions lhe:;e CouncilsiCommittees have to per/brm and, obviously v)hat are the duliesi/unction\ of the persons who are a part oJ these fttrums. holding posts/posilions thereto, because lhis analysis and comprehension has a direcl nexus with, and shall lacililate in understanding the nalure of the posts/pos ilions.

In the said judgment it is further held that though the melnber and chairman of the Local Zakat & Usher Committee are employees of a statutory body, however, such persons could not be termed as in the service of federal, a provincial or a local government or, any statutory body or a body which is controlled by any such government. Similarly, their nature of duties and the sovereign authority exercised by them and that they are not receiving any salary or honorarium or any other tinancial benefit from the public exchequer were also considered as determining factors and it was thereafter held that they are not in the service of federal, a provincial or a local government or, any statutory body or a body which is controlled by any such government. If the aforesaid interpretation so made by the Apex Court is applied to the case of present appellant namely Muhammad Yousaf who 'Iahir Saleem (l) B ) Hon ble Mr -lusliuc Muhamrnad liaz Khan

being a Nikah Registrar, too does not receive any salary or honorarium rather he receives a specific percentage in the fee collected by him fiom registration of the marriages, therefore, he too could not be termed as a person in the service of federal, a provincial or a local govemment or, any statutory body or a body which is controlled by any such govemment

7.During the course of arguments, the leamed counsel for the respondent namely Abdul Mateen also made much emphasis to the effect that as per section I l4 of The Act of 2013 all members of the local council functionaries of a local government and every other person duly authorized to act on behalf of a local government are u blic servant" , therefore, Nikah Registrar being part of the local government is also a public servant and as such he was not eligible to contest the said election, however, such interpretation of the leamed counsel for the petitioner is also -l misconceived. The said section being relevant is reproduced below.

" I 14. Members and servanls to be public servants.--- Atl 5 [Chairmen, the member presiding the meetingl members of the local councils, functionaries of the local governments and every other per.son duly authorized to act on behalf of the local governnrcnts shall be public servanls l ahir Salecm (l).B.) Hon ble Mr luslice Muhammad liitT Khar

within the meanings of section 2 I of the Pakistan Penal Code (Act XIV of 1860) and shall be subject to the provisions of sections 161 to 169 of the said Code.

A plain reading of the said section would also reflect that though this section mandate that all member of the local council functionaries of the local government are public servants, however, such meaning of public servant is to be considered in context of section 2l of the Pakistan Penal Code. It is by now settled jurisprudence that a "civil servant", a ovemment servant" or "person in service of Pakistan" and ublic servant" have distinct meaninoD as all persons whether theY are "civil s ervant" overnment servant" or " pe rsons in service of Pakistan" are surely & undisputedly "gublic servants", albeit all public servants are not civil servants. It is also settled by now that the definition of these categories of ernployees are to be read in the context of those statutes where such terminology has been used' There is no cavil with this preposition as advanced by the learned counsel for the respondent Abdul Mateen that the Nikah Registrar is a public servant, however, keeping in view the plain wording of clause (f) of Section 78 of The Act of 2013 qua this admitted 'l_ahir Saleem (l) ll ) ll( blc Mr Juslice Muh.mnrad liE Khan

position that all "pub lic servants" are not debarred from contesting election but only those persons who are in the service of Pakistan could not contest an election and keeping in view the part-time nature of duties and remuneration being paid to the appellant, he could not be a person in service of any federation or provincial government or local authority, therefore, the bar as contained in clause (f) of section 78 of The Act of 20t3 could not be attracted to the case of the appellant. The distinguishing characteristic of the aforesaid category of servants and followed by their legal consequences has been a favorite subject of the Apex Court as well as of various High Courts of the country. In M uhammad Naeem's case repofted AS 2023 SCMR 301 the A pex Court has interPreted the term "civil servant" and "government servant" and it has been observed that those civil servants and govemment seruants having almost the same meaning and scope and are commonly used interchangeably in the civil seruice laws of the country' The term "public servant" as defined in section 2l of the P.P.C. for the purpose of application of that law is, however, of wide import and scope than those terms. It cannot, therefore, be referred to or used as an equivalent or synonym of lahir Salcem (l) B.) Hon ble Mr Juslicc Muha mad l.inz Khan

t7

them, in the context of a person's civil status, capacity or position. In the ordinary English language, the words "civil servant" and "public servant" may have the same meaning, but this is not so in the legal language as commonly used in the laws of the country (Pakistan). It may be said that in legal parlance, particularly of the service and criminal laws, all civil servants are public servants as defined in section 2l of the P.P.C., but not all such public servants are civil servants . ln Muhammod lubal's case re ported as PLD 2006 Lahore 1J the candidate therein was an employee on work charge basis on a contract without entitlement to any kind of allowance or other vested rights of service and as such was not a regular employee who contested the election for Punjab local govemment and he was disqualified by the Retuming Officer as well as by the District Returning Officer, however, the Lahore High Court set aside the said disqualification on the ground as stated hereinabove' In Mst. S[ uhz.ina Parveen 's case. renofted as 2003 MLD 2023,too the S.l4(g) ofThe Sindh Local Government Elections Ordinance, 2000 which is synonymous to section 78 (l) (f) of The Act of 2013 it was held that the holder of the public office and part-time officials l ahir Sallrenl (t).8.) Hon ble Mr. Justice Muhammad liaz Khan

remunerated either by salary or fee has been excluded from the category of employees who could not contest election due to the nature of their job and remuneration paid to him. Similarly, rn Ghulam Musta t case reported as 1986 MLD 2143, it has been held that part- time employee of govemment institution could contest elections and they shall not be debarred in view their nature ofduty.

8 During the course of arguments, learned counsel for respondent Abdul Mateen heavily relied upon the judgment of the Lahore High Court in Ghulam Muslulra's case re ported as PLD 2016 Lahore {!, whereby, terming a Nikah Registrar as a public servant and as such was held as disqualified under Section 27 (2) (e) of The Punjab Local Government Act, 2013, however, this Court does not agree with the aforesaid findings of the Hon'ble Lahore High Court frt;dy that the said findings are persuasive for this Courl secondl the sanre are against the law as set by the Apex Court in Muhammad Naeem's case supra thirdllt, for the reasons that the word ' ublic servant" has neither been used by the legislature in Section 27

(2)(e) ofThe Punjab Local Government Act,20ll nor (l ) B ) H,m hlc Nlr Juslruc Muhamrrr.rd ltal Khan

t9

in Section 78 (t) of The Act of 2013 rather persons in the service of federal, a provincial or a local government or, any statutory body or a body which is controlled by any such govemment have been debarred from contesting election which has entirely a distinct meaning then the "public servant" as classified by the Hon'ble Lahore High Court and' fourthlv the judgment of the Apex Court being a kind of vertical precedent for this Court is binding upon it in view of Article 189 read with Article 203 of The Constitution of lslamic Republic of Pakistan, I 973.

9 In view of the above discussion and exposition of law, this aPPeal ( Eleclion Aooeal. No.

06-A/2023 ) titled "Muhammad Yousaf vs. Abdul Maleen and others" is allowed and the impugned order/judgment of The Worthy Election Tribunal, Abbottabad dated 13.12.2023 is set aside and consequently the notification of the appellant as a v returned candidate for the seat of general councilor of constituency of Village Council namely Tatreela (No. 44) District, Abbottabad is restored and as we have allowed the instant appeal, therefore, as a corollary the connected aPPeal ( Election Aooeal No.

'l ahir Salccnl (l) B ) tlon'hlc Mr .luslrct Muhanrmad I iaz Khar

v 27-A/2024) titled "Abrlul Mateen vs. Muhommad Yousaf and others" is dismissed

Announced

JU GE

l-ahir Salecnr (l) B ) Horr'ble Vr Jullrce Muhxnllnad Iial Khan