2024 PLP 1463 (MLD)

Kamran Hayat Miankhel, J.

Through this election appeal, the appellant has challenged the order of Returning Officer dated 30th December, 2023, whereby objection filed by the appellant was turned 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 on 12.05.2023, therefore, he is not eligible to contest the Elections. The Returning Officer, vide order dated 30.12.2023, rejected the objections of the 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 Taraqiati Bank Limited is a company and therefore, the disqualifications as provided in Article 63 of the Constitution, are not applicable to the case of respondent No. 4.

5. Arguments heard and record perused.

6. To fully appreciate the contentions raised by the learned counsel for the parties, it will be advantageous to reproduce Article 63(1) clause (e) and (k) of the Constitution of Islamic Republic of Pakistan, 1973 as under:- "63. (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-eShoora (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 interest; or (f)

(k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or"

7. The expression "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) of the Constitution, is that the said statutory body is owned or controlled by the Government. Article 63(1) (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 government 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 Government.

8. In the case of "Sahibzada Tariqullah v. Haji Amanullah Khan and others" reported as PLD 1996 SC 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 government or the government has controlling share or interest therein. Similarly, in the case of "Muhammad Nasim Turyali and others v. Ghulam Sarwar Khan and others" reported as PLD 2005 SC 570, 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 interest" 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 government. Further reliance in this respect is placed on the case of "Bashir Kamal Abbag v. Returning Officer (NA-50) District Rawalpindi and another" (2013 CLC 1230)(sic) and "Muhammad Nadeem v. Muhammad Mumtaz Akhter Kahloon and others" (2013 CLC 1796).

9. So in view of the above, as the respondent No. 4 retired from the Zarai Taraqiati 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 (1) (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. MQ/107/P Appeal allowed.