Muhammad Faizan Babar Vs Returning Officer PK-40

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

(APPELLATE ELECTION TRIBLINAL)

Election Apneal No. 13-A/2024

Muhammad Faizan Babar (Appellant)

Vs

Returning Officer and others...... (Respondents) Present: Mr. Muhammad Saqib Lughmani, Advocate for the appellant.

Ms. Isma Urooj, Assistant Director Law, Election Commission of Pakistan.

Qazi Muhammad Arshad and Khurram Ghias Khan, Advocates for rcspondent No.4.

Date of hearing: 10.01.2024

JUDGMENT

KAMRAN HAYAT MIANKHEL. J.- Throu gh this election appeal, the appellant has challenged the order of Retuming Officer dated 30th December, 2023,, whereby objection filed by the appellant was tumed down and nomination papers of respondent No. 4 for contesting Election for constituency PK- 40 Mansehra-V, were accepted.

2 Brief facts of the case are that respondent No. 4 submitted his nomination papers

for contesting election from the seat of PK-40 Mansehra-V and the appellant being registered voter of the constituency, raised objection that the respondent No. 4 got retired from Zarai Taraqiati Bank Limited or 12.05.2023, therefore, he is not eligible to contest the Elections. The Retuming Offlrcer, vide order dated 30.12.2023, rejected the objections ofthe appellant, hence this appeal.

3 Learned counsel for the appellant

inter-alia contended that the respondent No. 4 was an employee of Zarai Taraqiati Bank Limited and retired on attaining the age of superannuation on 12.05.2023, and hence he was hit by clog of Article 63(1) (e) and (k) of the Constitution.

4.On the other hand, learned counsel for the respondent, while refuting said arguments, stated that Zarai Taruqiati Bank Limited is a company and therefore, the disqualifications AS provided in Article 63 of the Constitution, are not applicable to the case ofrespondent No. 4'

5.Arguments heard and record perused' 6 To fully appreciate the contentions raised by the leamed counsel for the parties, it will

be advantageous to reproduce Article 63(1) clause

(e)and (k) of the Constitution of Islamic Republic ofPakistan, 1973 as under:-

"63. (1) A person shall be disqualiJied from being elected or chosen as, and from being, a member of the Mailis-e- Shoora (Parliament), if-

(a)--

(e)he is in the service of any statutory body or aby body which is owned or controlled by the Government or in which the Government has a controlling share or interesf or

(fl--

(h)he has been in the service of Pakistan or of anY stdlutorY bod.Y or anY bodY which is owned or controlled bY the Government or in which the Government has a controlling share or interesl, unless a period of two years has elapsed since he ceased to be in such servicel or"

7.The expressiort "service of any statutory body or any body, which is owned or controlled by the Government or in which the Government has

controlling share or interest" should not be confused with civil Service or a civil servant. It connotes any service, post or office in the statutory body, regulated by rules or regulations framed by the competent authority and the only rider so placed by Article 63(1)

(e)and (k) ofthe Constitution, is that the said statutory body is owned or controlled by the Govemment.

Article 63(l) (k) clearly stipulates that a person who has been in service of Pakistan or any statutory body or any body which is owned or controlled by the government or in which the govemment has controlling share or interest, will not be eligible to contest the election unless a period of two years has elapsed since he ceased to be in such service. It is no body's case that the Zarai Taraqiati Bank Limited is not owned or controlled by the Federal Govemment 8 In the case of"sahibzadu Tariqullah Vs.

Haji Amattullah Khan und others" reported as ELD 1996 Su reme C orurt 717 it was held by the aPex Court that for disqualification under Article 63(1) (e), it is not necessary that the candidate must be a civil servant. The said provision would also be attracted in case it is found that the candidate is in service of any body which is owned or controlled by the govemment

or the govemment has controlling share or interest therein. Similarly, in the case of "Muhammad Nasim Turyali and others Vs. Ghulam Sarwar Khan and others" reported as BryqQ!-Q!@, it was held that the expressing "Service of any statutory body or any body which is owned or controlled by the government or in which government has controlling share or interesf' shall not be co-related with civil service or civil servant but it connotes any service or post in any statutory body, which is either to be owned or controlled by the govemment. Further reliance in this respect is placed on the case of "Bashir Kamal Abbai Vs. Returning OfJicer (NA-50) District Rawalpindi and another" 2013 cLC 1230 and "Muhammad Nadeem Vs. Muhammad Mumtaz Akhter Kahloon and others" 013 CLC 179

9.So in view of the above, as the respondent No. 4 retired from the ZaraiTaraqiati Bank Limited on 12.05.2023 and since two years have not been elapsed from the date of his retirement, so the bar as contained under Article 63 (l) (e) and (k) are fully applicable to the respondent No. 4, therefore, this appeal is allowed' The impugned order of the Returning Officer dated 30.12.2023 is set aside and the nomination papers of

respondent No. 4 for contesting election from PK-40 Mansehra-V, are hereby rejected.

Announced 10.0r.2024

JU

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