P L D 1966 (W (PLP)

S. A. MAHMOOD, J.‑Allah Ditta petitioner and Muhammad Munir sought election to the Electoral College from Electoral Unit No. 182, Ward No. 13, Police Station Mitha Tiwana, Tehsil Khushab, District Sargodha. The petitioner objected to the nomination paper of the respondent before the Returning, Officer on the ground that he was not qualified to seek election to the Electoral College in view of Article 158 (1) of the Constitution. His objection was overruled. The respondent, petitioner and others contested the election, in which respondent No. 1 was successful. The petitioner then moved this Court in writ jurisdiction under Article 98 of the Constitution of Islamic Republic of Pakistan. praying that the order of the Returning Officer accepting the nomination paper, and election of respondent No. 1 from Unit No. 182 be declared to be illegal and of no legal effect. 2. The respondent has not filed any' written statement, but we have recorded his statement. He admits that he was born on the 16th of May 1943, so that in terms of Article 158 (1) of the Constitution, he was not qualified to seek election to the Electoral College. The petitioner did not, however, file an election petition to challenge the election of the respondent. The question therefore, falls for determination whether we can set aside the election in exercise of powers under section 98 of the Consti tution. 3. The case has been argued at considerable length before us While the learned counsel for the petitioner argues that as Muhammad Munir Khan respondent does not possess the basic qualification under the Constitution for being elected as an elector, he is not entitled to remain a member of the Electoral College and now a member of the Basic Democracies, the learned counsel for the respondent argues that as the petitioner has not availed of the remedy in section 58 of the Electoral College Act, the remedy under Article 98 (2) of the Constitution is not open to him. For an examination of this question we may refer to section 58 of the Electoral College Act and Article 98 (2) of the Constitution:‑ "58 (1). No election shall be called in question except by an election petition under subsection (2). (2) Any candidate may make an election petition challeng ing the election at which he was a candidate. (3) An election petition in respect 4 an election from an electoral unit shall be presented, in such manner as may be prescribed, to the Election Tribunal appointed under section 59." "Article 98 (2). Subject to this Constitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law‑ (a) on the application of any aggrieved party make an order‑ (i) directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or (ii) declaring that any act done or proceedings taken in the Province by a person performing functions in connection with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect; or (b) on the application of any person, make an order‑ (i) directing that a person in custody in the Province be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in any unlawful manner; or (ii) requiring a person in the Province holding or purporting to hold a public office to show under what authority of law he claims to hold that office." This writ petition was filed on the 7th of November 1964 probably before Election Tribunals were appointed. When election petitions were later invited, an election petition was not filed. So far as section 58 of the Electoral College Act is concerned, the election of the respondent could not be called .in question, except by an election petition under subsection (2). This does not, however, conclude the matter. It is apparent from the statement of the respondent made before us on oath that he was born on the 16th of May 1943, so that at the time of election, he was well below 25 years of age. He thus lacked the basic qualification under Article 158 of the Constitution to be elected as elector. Article 158 (1) provides that the persons enrolled on the Electoral Roll for an electoral unit shall, in accordance with law, from time to time elect from amongst themselves al person who is not less than 25 years of age. This provision, therefore, creates a prohibition in the way of election of a person below 25 years of age and the mandate in the Constitution cannot be nullified by a person manoeuvring to have his age recorded in the electoral roll as 25 years or above. An entry, I as to age recorded in the electoral roll is not conclusive, as held. by a Division Bench of this Court in Diwan Mahboob Ahmad v. Controlling Authority, Bahawalpur, and another (P L D 1961 B J 15). Though under section 23, proviso (iii), the Returning Officer shall no' enquire into the correctness or‑validity of an entry in the electoral roll, the effect is not to shut out a challenge to the election of a successful candidate by an election petition or under Article of the Constitution on toe ground that his age was recorded in the electoral roll as more than 25 years. Since the Constitution provides that a person, who is not less than 25 years of age cars be elected as an elector, the election of a person below 25 years of age has to be set aside in view of the clear mandate in the Constitution. 4. The question whether a person elected to the Electoral College holds a public office is a matter of some difficulty. In Article 242 of the Constitution of Islamic Republic of Pakistan, public officer includes any officer in the service of Pakistan and membership of the National or the Provincial Assemblies, but this is not an exhaustive definition. Since the term is not defined, we have to look for its meaning elsewhere. In re: G. A. Natesan (I L R 40 Mad. 125) in considering whether members of the Syndicate of the Madras University were persons holding a public office within section 47 of the Specific Relief Act, the term was defined as follows:‑ "Public office means any office created by the Legislative or other lawful authority for the purpose of discharging functions which affect the public generally or any particular section thereof." The learned Judges held that the member of the Syndicate were holding a public office for the following reasons: "The Universities Act created a public body to carry out certain defined public objects. It created a corporation vested with powers to carry out various objects for which the University was created. As part of the machinery and for the better carrying out of the public objects contemplated by the statute, it has by section 15 constituted a body of persons called the Syndicate, in whom is vested the Executive Government of the University. I find it difficult to see why the members of the statutory body so constituted are not persons holding a public office. 5. In Muhammad Usman M. P. A. v. The Province of East M Pakistan and others (P L D 1957 Dacca 424) Muhammad Osman who was elected as a member and later President of the Union Board, was held to hold as President a public office on the ground that it was an office created by a statute and was certainly office of a public nature. 6. Winfield in Law Quarterly Review, Volume 61 at page 464 has in an interesting article discussed what a public office is. He mentions two judicial definitions: In 1914, Lawrence, J. said that a public officer is an officer who discharges any duties, in the discharge of which the public are interested, more clearly so, if he is paid out of a fund provided by the public. Best, C. J. in 1828 described a public officer as everyone who is appointed to discharge a public duty and receives a compensation in whatever shape, whether from the Crown or otherwise. The C. J. lays too much emphasis on remuneration of some sort, for some public officers discharge their duties gratui tuously for example, the Lord Lieutenant of a country or Justice of the Peace, and both definitions use the very word which they purport to explain. He concludes that the chief characteristics of a public officer seem to be that is a post, the occupation of which involves the discharge of duties towards the community, or some section of it, and that usually those duties are connected with Government, whether central or local. Winfield repeats these views in his text‑book of the Law of Tort, Third Edition at page 614. Burrows in Volume IV says that to make the office a public office the pay must come out of national and not out of local funds and the office must be public in the strict sense of that term. It is not enough that the due discharge of the duties of the office should be for the public benefit in a secondary and remote sense. A public office includes the holding of commission in the territorial army or in any of the armed forces of the Crown. In Halsbury's Laws of England at pages 146 and 147 (Simonds Edition) it is stated: The duties of the office must be of a public nature. Thus, an information lay against a privy councilor, because membership of the Privy Council constitutes the holding of an office of a public nature. An information in the nature of quo warranto was held to lie in respect of a vestryman elected under the Metropolis Management Act on: the ground that it was an office created by the status Rex v. Soutter (1891) 1 Q B 57." Similarly, recorder of a borough, freeman of a borough, burgess, bailiff of a borrough, constable, mayor, alderman, town councillor, coroner of a borough, coroner of a county, justice of the peace, sheriff, chief constable, clerk of the peace, Judge of a county Court, high bailiff of a county Court, master of a city company and member of the General Medical Council were held to hold a public office. 7. A case directly in point is Munir Ahmad v. Returning Officer Karachi and others (P L D 1966 Kar. 1) in which relying on Judicial and Statutory Definitions of Words and Phrases Volume III, Second Series published by St. Paul, West Publishing Company, U. S. A., in was held that members of the Electoral College hold a public office since they perform very important public functions under the Constitution. The learned Judges observed: "The Electoral College has been created under Article 158 of the Constitution, persons elected as members of this College have to take an oath under Article 159 of the Constitution. The functions assigned to the members of the Electoral College are the election of the President, election of the members of National and Provincial Assemblies. Besides these electoral functions the members of the Electoral College may be given other functions as contemplated by clause (4) of Article 158 of the Constitution. We know that these other functions under the Constitution have in the past included membership of the Basic Democracies." The definition of public‑office quoted with approval, is "a right, authority and duty created and conferred by law, by which an individual is invested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public. It implies a delegation of a portion of the sovereign power to and in possession of it by the person filling the office." This case was decided on the 11th of February 1965, but since then the members of the Electoral College have actually been conferred functions under Basic Democracies Act and have become members of the Basic Democracies. This argument, which was formerly open, that members of the Electoral College merely performed elective functions and not any portion of sovereign Government (and, therefore, did not hold a public office) is not now open, since the members of the 'Electoral College have been entrusted with some of the executive functions of the Government as members of the Basic Democracies. We would, therefore, respectfully agree with the above decision that at any rate now the members of the Electoral College hold public office. The effect of reaching this conclusion is that a person holding such public office can be required to show under what authority of law he claims to hold that office under Article 98 (2) (b) (ii), which in olden times was issued in the form of a writ of quo warranto. Such an application can be made by any person and not necessarily by a person aggrieved, though it cannot be said in the present case that a person who was a rival candidate, is a person who was not aggrieved by the election the respondent. 8. The contention that the election cannot be challenged except by an election petition, cannot be allowed to prevail for two reasons, firstly, because section 58(1) of the Electoral College Act is sub‑constitutional legislation, which has not the same authority and status as the Constitution itself and this Court has the power under Article 98(2) (b) (ii) to make the necessary order in case a person is not qualified to hold a public office, and, secondly, because a person, who does not possess the basic qualification under the Constitution to be elected as a member of the Electoral College cannot be allowed to function in view of the mandate in the Constitution. The requirement of the Constitution must prevail over the provision in section 58 (1) of the Electoral College Act The contention, therefore, that the alternate remedy provided under section 58 (1) not having been availed of, the respondent cannot be removed from membership, does not have any force, the reason that he was debarred by the Constitution from being elected as a member of the Electoral College, and the petitioner cannot be allowed to benefit by his own dishonest act of falsehood and misrepresentation in having his age recorded as more than what it actually was in order to make himself eligible for election. To accept the contention that because alternate remedy has not been availed of, no relief can be granted to the petitioner, is to perpetuate a wrong and a result which the Constitution prohibits. The learned Judges in Munir Ahmad v. The Returning Officer, Karachi and others repelled a similar contention by saying that they would be failing in their duty if they did not give effect to their finding that the respondent being below 25 years of age, was not qualified to be returned a member and to order in consequence that he should be removed, simply because there is another remedy, which may be given to the petitioner to challenge the election of the respondent, for it would be highly unjust and inequitable to force the petitioner to resort to further‑litigation to establish something, which he had already succeeded in doing in this Court, namely, ineligibility of the respondent. These observations apply with full force to this case. 9. Our power to act under Article 98(2) of the Constitution is subject to being satisfied that no other adequate remedy is provided by law. At the time when this writ petition was filed in this Court, Election Tribunals had not been constituted and, there was, therefore, no other immediate and adequate remedy available to the petitioner. The respondent was elected to the Electoral College, although he lacked the necessary qualification provided by the Constitution. His remaining a member of the Electoral College is a continuing violation of the provisions of the D Constitution and, therefore, the remedy in Article 98(2)(b)(ii) is available to the petitioner and cannot be denied to him. If he did not avail of the remedy by way of election petition the proceedings that he has taken do not become incompetent. He should not be ignored in this context that what the petitioner seeks to challenge before us is not only the election of the petitioner. but his continuing as a member of the Electoral College and a member of the Basic Democracies. The basis of his challenge is, Article 158 (1). of the Constitution. 10. It was argued before us that as the petitioner has not specifically sought any relief under Article 98 (2) (b) (u), this relief could not be granted to him, but the learned counsel for the petitioner relied before us on Saiyyid Abul A'la Maudoodi v. The Government of West Pakistan and others (P L D 1964 SC 67), in which Hamoodur Rahman, J. observed as follows:‑ "I also find no difficulty in granting relief because of any defect in the form of the prayer in the petition. The prayer as framed in the petition is sufficiently wide and in any event the Court is not powerless to grant the relief that justice of the cause requires to the same extent as if it had been asked for." These observations clearly support the petitioner. We have no hesitation in holding that the respondent No. 1 was not qualified to be elected as, a member of the Electoral College and cannot continue as a member. 11. We, therefore, accepting this writ petition direct the removal of the respondent No. 1 from membership of the Electoral College and the Basic Democracy, of which he may have become a member by virtue of his being a member of the Electoral College. The petitioner will also have his costs from respondent No. 1. K. M. A. Petition accepted.