P L D 1977 Lahore 1437 (PLP)

KHALILUR RAHMAN, J. this petition is directed against the order dated 30‑8‑1977 of a learned Member of the Election Commission whereby he allowed the appeal of respondent No. 3 against the acceptance of the nomina tion papers filed by the petitioner for the forthcoming elections in respect of Constituency No. N. A. 128‑Muzaffargarh‑II. As a result of the decision in appeal the petitioner stands disqualified from contesting elections on account of the fact that he has been serving the Prime Minister as his Special Assistant till the 5th of July 1977. 2, The learned counsel for the petitioner seeks a declaration to the effect that the impugned order of the learned Member Election Commission is without lawful authority and of no legal effect, firstly on the ground that he was not competent sitting singly to hear the appeal in question 1 and secondly on the ground that the petitioner has not been in the Service of Pakistan within the meaning of Article 10(2)(b)(4) of the President's (Post Proclamation) Order No. 5 of 1977.

3. The learned counsel for' the petitioner contends that under the provisions of the Representation of the People Act, 1976 made applicable to the impending elections, the appeal lies to the Election Commission u a whole and that all the members of the Commission can only jointly hear and decide it. And since it has been clearly laid down in Article 8 of the President's (Post Proclamation) Order No. 4 of 1977 that all decisions of the Election Commission should be expressed in terms of the opinion of the majority of its members including the Chairman, he argues that the appeal in question could not lawfully be decided by a single member. But it is to be~ noted that by article 16 of the President's (Post Proclamation) Order No. 3, the Representation of the People Act, 1976 has been made applicable to the conduct of elections in so far as it is not inconsistent with any of the provisions of the said Order. And under section 4 of the said Act, the Commission has been empowered to authorise its Chairman or any of its members or any_ of the officers of the Commission to exercise and perform any of its powers any functions under that Act. The learned counsel for the petitioner, how ever, contends, in view of the expression "conduct of elections" used in Article 16 of President's (Post Proclamation) Order No. 5, that only Chapter IV of the Representation Act, which is entitled "Conduct of Elections", has been made applicable and not the other provisions of that Act, and as section 4 falls in Chapter II of the Act, the Commission could not authorise one of its members to hear appeals filed under subsection (5) of section

14. It was next contended that coming elections are held under President's (Post Proclamation) Order No. 4 of 1977 and in so far as It does not contain any provision authorising the Commission to delegate its functions to its members, section 4 of the Act will be deemed to stand repealed on the principle "Expressio unius est exclusio alterius". None of the arguments of the learned counsel has impressed us. In our opinion the words "Conduct of Election" in article 16 of President's (Post Proclamation) Order No. 5 have not been used in a restricted sense so as to apply only to Chapter 1V titled as "Conduct of Elections". The argument, however, would have been of some significance if the true construction of the words had not been possible without taking the headings or sub‑headings of various Chapters into consideration. Craies on Statute Law Sixth Edition by S. G. G. Edgar observes :‑ "But the same general rule which regulates the effect of the preamble applies also to these headings namely, that they are not to be taken into consideration if the language of the enactment is clear. To this effect Lord Goddard. C. J. said with reference to cross‑headings in the Rating and Valuation Act, 1925: 'But while the Court is entitled to look at the headings in an Act of Parliament to resolve any doubt they may have as to ambiguous words, the law is quite clear that you cannot use such headings to give a different effect to clear words of the section where there cannot be any doubt as to their ordinary meaning. The leading authority is Hammersmith & City Ry. v. Brand and the matter has been more recently considered in Fletcher v. Birkenhead Corpn. (1907) 1 K. B. 205." The true import of the words "conduct of elections" in Article 16 can be determined without touch difficulty. If the author of President's (Post Proclamation) Order No. 5 had intended to use them in a restricted sense, it would have been much simpler for the draftsman to say that the provisions of Chapter IV of the Representation of the People Act alone shall apply. From the very wording of Article 16 of the President's (Post Proclamation) Order No. 5, It is clear that the expression "conduct of elections" has been use therein in the most general sense without reference to any particular Chapter of the Representation of the People Act. Therefore, all the provisions of that Act are still operative to the extent they are not inconsistent with any o the provisions of the President's (Post Proclamation) Order No.

5. The argument that President's (Post Proclamation) Order No. 4 not having envisaged the delegation of the functions of the Commission to its members, section 4 of the Act stands repealed by implication has, also, no force. President's (Post Proclamation) Order No. 4 and President's (Post Proclamation) Order No. 5 flow from. the same source of authority. The former provides for the constitution, powers and duties etc. of the Election Commission and the latter for holding of Elections to the two houses of Parliament and the Provincial Assemblies. Article 16, therefore, rightly figures in the latter Order. Even otherwise the rule expressio unius est exclusio alterius is not an absolute rule of inflexible nature. The maxim expressio unius est exclusio alterius is based on the probable intention of the Legislature. Where the intention clearly reveals that the law‑makers . did not mean that the express mention of one thing should operate to exclude all others, the principle is not applicable. Consequently, where .the statutory language is plain and the meaning clear, there can be no implied exclusion The principle is to be used only as a means of ascertaining the legislative intent where it is doubtful and not as a means of defeating the apparent intent of the Legislature. Thus the power of the Election Commission to delegate its authority to any single member is intact including the authority to hear and decide appeals. The ' provisions of Article 8 of President's (Post Proclamation) Order No. 4 will be attracted only when the Commission D decider anything in a joint session. It is not the case of the petitioner that the authority to bear and decide appeals was not delegates by the Commission to the learned member concerned. He has only unsuccessfully questioned the authority of the Commission to delegate. We, therefore, hold that the learned member, who allowed the appeal of the respondent No. 3 was compe tent to do so. The next question is whether the petitioner was in the service of Pakistan in the months of June and July 1977. It is an admitted fact in this case that during that period be served as a Special Assistant to the Prime Minister. It is to be seen that under Article 10(2)(6)(4) a person who has been in the Service of Pakistan stands disqualified from being elected or chosen as a member of Parliament unless a period of two years has elapsed since he ceased to be in such service, But the expression "Service of Pakistan" has not been directly defined in President's (Post Proclamation) Order No.

5. Indirectly, however, this expression, like all other words and expressions not specifically defined, has been given the same meaning as in the President's Order XII of 1973 or, as the case may be, the Senate (Election) Act, 1975 or the Representation of the People Act, 1976 or the Laws (Continuance in Force) Order, 1977. After a perusal of all these Acts and Orders mentioned in clause (e) of Article 2 (definitions) of President's (Post Proclamation) Order 5, it becomes evident that only the Senate (Election) Act 1975 is relevant to the purpose of finding out the meaning of the expression "service of Pakistan". But the Senate (Election) Act has itself failed to define this expression directly and instead left that expression to receive the same meaning a9 in the Consti tution. Now, the expression "Service of Pakistan" has been defined in the Constitution in Article 260 which definition read as follows at the time the Senate (Election) Act was enacted "Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All. Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Parliament or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister (Attorney‑General, Parliamentary Secretary) or member of a House or a Provincial Assembly." It is true that subsequently Special Assistant to Prime Minister was also excluded from the scope of "service of Pakistan" by an amendment in Article 260 but that cannot affect the definition clause in the Senate (Election) Act. It was argued that amendment brought about in Article 260 of the Constitution by Constitution (Sixth Amendment) Act, 1976, shall be read into the Senate (Election) Act, 1975. The argument is not well founded. The effect of bringing into a latter Act, by reference, sections of an earlier Act is to G introduce the incorporated sections of earlier Act into latter Act as if they have been enacted in it for the 1st time. As observed by Lord Esher Mal in In Re : Wood's Estate (1886) 31 Ch. D 607 if a subsequent Act brings into itself by reference some of the clauses of the former Act, the legal effect of that is to write those sections into the new Act just as if they have been actually written in it by pen or printed in it and the moment we have those clauses in the latter Act, we have no occasion to refer to the former Act at all. We are supported in the view we have taken by a decision of the Privy Council in Secretary of State v. Hindustan Co‑operative Insurance Society Ltd. AIR 1931 P C

149. It has thus been observed at page 152 ‑,‑ "It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition." It is thin clear that the expression "service of Pakistan" as used in the President's (Post Proclamation) Order No. 5 of 1977 does Include Special Assistant to the Prime Minister except in relation to sub‑paragraph (4) o paragraph (a) or sub‑paragraph (9) of paragraph (b) of Sub‑Article (2) o Article 10 thereof, as it has been specifically explained under Explanation (I) to the said Sub‑Article that in the said sub‑paragraphs "Service of Pakistan" has the same meaning as in Article 260 of the Constitution which means Article 260 of the Constitution as it stood on the day President's (Post Proclamation) Order No. 5 was promulgated. We are, therefore, clear in our mind that the petitioner was in the "service of Pakistan" till the 5th of July 1977 and as a period of two years has not elapsed since he stands disqualified. For the foregoing reasons the writ petition is dismissed to limine. K. M. A. SAMADANI, J‑I agree. MAZHARUL HAQ, J.‑I agree. S. A. H. Petition dismissed.