P L D 1962 Supreme Court 370 (PLP)

B. Z. KAIKAUS, J.‑

Muhammad Nawaz appellant as well as Ghulam Muhammad and Muhammad Ismail respondents were elected members of Union Council No. 52 of the Gujranwala District. In the election for the Chairman of this Council both the appellant and Ghulam Muhammad respondent were candidates and Ghulam Muhammad respondent was elected by a majority of eight votes to seven. In this election Muhammad Ismail had second ed the nomination of Ghulam Muhammad as a candidate. The appellant then filed an election petition before the Collector chal lenging the election of Ghulam Muhammad as Chairman on a number of grounds. The Collector issued notice to Ghulam Muhammad respondent. On the 2nd of May 1960, which was the date fixed for hearing, when the Collector called the case neither party appeared and he dismissed the petition for default of appear ances. Are application for restoration of the election petition was put in by the appellant the same day in which it was stated that while the appellant had gone to call his counsel the election petition had been dismissed in his absence. On this application after hearing counsel the Collector passed the following order "Heard counsel for petitioner. Rejected." The appellant then approached the High Court of West Pakistan for the exercise of its writ jurisdiction. He claimed a writ of certiorari against the order of the Collector on the ground that an order of dismissal of an election petition for default was not contemplated by the rules governing election petitions at all and the impugned order was in any case an unjust and materially irregular order. He prayed for a writ of mandamus or quo warranto against both Ghulam Muhammad and Muhammad Ismail on the ground that both of them were disqualified from being members of a Union Council. The disqualification urged against Ghulam Muhammad was that he had on the 5th of January 1953 been sentenced to rigorous imprisonment for five years under section 325, P. P. C. and therefore was debarred from being a member of a Union Council by virtue of clause (f) of paragraph 2 of the Second Schedule to the Basic Democracies Order. 1959, read with Article 5, clause (d) of the Elective Bodies (Disqualification) Order, 1959. With respect to Muhammad Ismail respondent the contention was that he had not reached the age of 25 on the 1st of January 1964, which was a necessary qualification for a candidate as required by Paragraph 1 of Part II of the Second Schedule to the Basic Democracies Order. The High Court found that the order of dismissal for default was neither illegal nor irregular. As regards the alleged disqualification of Ghulam Muhammad it found that Imprisonment for 5 years in respect of an offence not involving moral turpitude was not a disqualification. With respect to Muhammad Ismail it found that there was no sufficient proof of his age being less than 25 years on the 1st January 1960. It therefore dismissed the writ petition, but certified the case to be a fit one for appeal. Before us nothing has been urged as against Muhammad Ismail. As regards Ghulam Muhammad learned counsel for the appellant does not press for a writ of certiorari in case we are prepared to grant him a writ of quo warranto or mandamus. As we are agreeing with him on the question as to whether Ghulam Muhammad respondent was disqualified it is not necessary to determine whether the order of the Collector was liable to be set aside in the exercise of certiorari jurisdiction" and we have simply to state our reasons for differing from the High Court as to the effect of the provisions relating to disqualification. The disqualifications of candidates for election to Union Councils are provided in Paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order which runs :‑ "A person shall be disqualified for being a member or a candidate for the membership of a local council :‑ (a) if he has ceased to be a citizen of Pakistan, or has voluntarily acquired the citizenship of a foreign State, or has made a declaration of allegiance or adherence to a foreign State ; (b) if he is an undischarged insolvent ; (c) if he has been ordered to execute a bond under section I 10 of the Code of Criminal Procedure, 1898 (Act V of 1898) or has been, on conviction for an offence involving moral turpitude, sentenced to imprisonment for a term of not less than six months, unless five years, or such less period as the Government may, by notification in the official Gazette, specify in this behalf, has elapsed from the date of the expiration of the period of the bond or sentence, as the case may be; (d) If he is a whole‑time salaried official In the service of Government, or of a public statutory corporation, a loyal council, or a local body or other local authority ; (e) if he is under contract for work to be done for or goods to be supplied to the Union Council or the Town or Union Committee concerned, or has otherwise any pecuniary interest in its affairs ; (f) if he is for the time being disqualified for membership of an elective body under the Elective Bodies (Disqualification) Order, 1 959 (President's Order No. 13 of 1959), or under any other law for the tune being in force. In sub‑paragraph (f) reference Is to the Elective Bodies (Disqualification) Order, 1959. Article 5 of that Order runs :‑-- "Disqualification of certain persons.‑(1) Notwithstanding anything contained in this Order, or in any other law, a person shall stand disqualified until the thirty‑first day of December 1966, for being a member or a candidate for the membership of any elective body,‑ (a) If he is dismissed, removed or made to retire from the service of Government or of a public statutory corporation, on a charge other than that of inefficiency ; or (b) if an order under section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952), or a similar order under any other law relating to the prevention of acts prejudicial to the defence, or the external affairs, or the security of Pakistan or any part thereof, or to the maintenance of supplies and services essential to the community, or the maintenance of public order, has ever been made against him ; or (c) if he was found guilty by the Federal Court, a High Court or Tribunal under the Public and Representative Offices (Disqualification), Act, 1949 ; or (d) if he has been convicted of any offence and sentenced to a term of imprisonment for more than two years or to trans portation for any term. It will be observed that according to clause (d) of this Article if a person has been sentenced to imprisonment for more than two years he is disqualified for being a member of an "elective body" and according to sub‑paragraph (f) of Para. 2 of Part II of the Second Schedule to the Basic Democracies Order, if a person is disqualified by the Elective Bodies (Disqualification) Order for being member of an "elective body", he is disqualified for being a member of a Union Council (Union Council being only one of the categories of "local Council)". As Ghulam Muhammad respondent had admittedly been sentenced to imprison ment for five years and therefore was debarred from being a member of an "elective body", prima facie It appeared that he would be disqualified from being a member of a Union Council. The learned Judges of the High Court however argued thus the effect of sub‑paragraph (f) was to incorporate Article 5 Into the Basic Democracies Order ; Article 5 (d) was not con sistent with para. 2 (c) of Schedule If, Part If, wherein it was provided that imprisonment involving moral turpitude for a period of not less than six months was required for disquali fying a person from being a member; sub‑para. (f) therefore became inconsistent with sub‑para. (c), as of two inconsistent provisions in an enactment one only could be enforced, it is sub‑para. (c) that should prevail over (f ), and the prohibition contained in Article 5 (d) of the Elective Bodies (Disqualification) Order was ineffective. We are unable to agree with this line of reasoning. The simple provision in sub‑para. (f) was that if a person stood disqualified for being a member of "elective body" on account of the prohibitions contained in the Elective Bodies (Disqualifica tion) Order he was disqualified from being a member of a Local Council, but by the line of reasoning adopted by the learned Judges the contrary result has been achieved. In the first place it was not correct that any inconsistency existed between) sub‑para. (c) and Article 5 (d). In the second place, the approach that Article 5 should first be incorporated in Schedule II of the Basic Democracies Order and then any portion of it which was inconsistent with sub‑para. (c) should be regarded as void was not a correct approach. It is proper to point out before dealing with the question of inconsistency, though this point was not argued either in the High Court or before us, and though for disagreeing with the High Court it is not necessary to refer to it, that sub‑para. (f ) was not Intended to create any new disqualification. Article 5 of the Elective Bodies (Disqualification) Order had, even without the help of sub‑para, (f), the effect of disqualifying a person from being a member of a Union Council, for Article 5 was applicable to the membership of every "elective body" and the definition of elective body covered a Union Council. "Elective Body" is defined in the Elective Bodies (Disqualification) Order as follows :‑-- "'elective body' " means any assembly, board, committee or similar other body, by whatever name called, established or to be established by or under any law, of which the consti tuent members are wholly or partly chosen by means of election, and includes a legislature, a municipal corporation, a municipal committee, a cantonment board, a district board, a notified area committee, a town area committee, a sanitary committee or any other local body or electoral college formed for election to a legislature." The Elective Bodies (Disqualification) Order is a general provision relating to all "elective bodies" and its effect is to disqualify a person from being a member of any elective body on specified grounds. Even if there was no provision in the Basic Democracies Order relating to disqualifications, a person disqualified by the Elective Bodies (Disqualification) Order, would be debarred from being a member of a Union Council. The object of sub‑para. (f) was only to say that the Elective Bodies (Disqualification) Order was not being repealed in respect of membership of Union Councils. It became proper to clarify this because in para. 2 of the Second Schedule, Part II, of the Basic Democracies Order some disqualifications were being stated and in the absence of a provision like sub‑para. (f) a conten tion may have been put forward that no other disqualification was intended and that there was an implied repeal of the Electric Bodies (Disqualification) Order to the extent that it applied to Local Councils. It will be observed that sub‑para. (f) refers not only to the Elective Bodies (Disqualification) Order, but to "any other law for the time being in force". The obvious Intention was that if a person was disqualified by any law other than the Basic Democracies Order, that disqualification was no being interfered with. We do not see any inconsistency between sub‑para. (c) and Article 5 (d). Article 5 (d) provides that whatever the nature o the offence if the punishment awarded exceeds 2 years the person concerned stands disqualified and sub‑para. (c) adds to it by P saying that in case the offence of which a person is convicted involves moral turpitude a punishment of even six months would be a sufficient disqualification. It will be proper to state that simple disqualifying provisions can never be inconsistent with each other. The effect of a disqualifying provision is that if the person concerned has a particular attribute he is debarred from being a member. There may be a hundred attributes, provided in a hundred different clauses by which a person could be disqualified. All of them will have to be given effect to. If a disqualifying provision simply states an attribute which disqualifies, the only provision which could be inconsistent with such a provision would be one which enacted that even if a person had this attribute he would be entitled to be a member. But a simple disqualifying provision never enacts that a person would be entitled to be a member even if he possessed certain attributes. It only states the disqualification. It was not a proper approach to incorporate in the Basic Democracies Order the provisions of the Elective Bodies (Disqualification) Order and then to see whether any inconsistency resulted. Sub‑paragraph (f) simply stated that if a person was otherwise disqualified he was not entitled to be a member. For the application of sub‑para. (f ) the question to be put was not whether the person concerned had been sentenced to a term of imprisonment. That was a subsequent step in the enquiry. The question to ask was only this : is he disqualified under the provisions of the Elective Bodies (Disqualification) Order from being a member of an elective body ? If the answer was in the affirmative he was disqualified for being a member of a Local Council. For answering the question as to whether the person concerned was disqualified under the Elective Bodies (Disqualification) Order the further question as to whether he had been sentenced to a term of imprisonment may have to be asked, but that was a subsidiary question, the main question being whether he was disqualified under the Elective Bodies (Disqualification) Order. We find that Ghulam Muhammad respondent was disqualified even for membership of a Union Council and he could not be the Chairman of such a Council. As a result this appeal is accepted and a writ of quo warranto is issued declaring that Ghulam Muhammad respondent is not entitled to hold the office of the member of Union Council No. 52 of the Gujranwala K District. As a necessary result, he is not entitled to hold office also as Chairman of that Council. There is no order as to costs. A.H. Appeal accepted.