PAKISTAN TEHRIK-E-INQILAB Versus ELECTION COMMISSION OF PAKISTAN

This writ petition was dismissed in limine by short order dated 4‑5‑1995 on the following findings:

"

1. The Governor and the Acting Governor are two different legal entities under the Constitution. A person with the prescribed qualifications can be appointed as Governor by the President of Pakistan after consultation with the Prime Minister under Article 101 of the Constitution when the office of Governor falls vacant, while in the case of Acting Governor, any person can be required to perform the functions of Governor under Article 104 of the Constitution by way of temporary arrangement during his absence or when he is unable to perform his functions as Governor due to any cause. ii. It is only in the case of appointment of a member of the Parliament or a Provincial Assembly as Governor under Article 101 that he ceases to be such member under clause (2) of Article 103 of the Constitution. But in the case of an Acting Governor such a result does not follow. Since Mr. Muhammad Hanif Ramay, the Speaker of the Punjab Assembly was required under Article 104 of the Constitution by the President of Pakistan to perform functions as Acting Governor during the absence of Ch. Muhammad Altaf Hussain from Pakistan and the oath was also administered to him on 5th April, 1995 as Acting Governor, therefore, he d id not lose his seat in the Provincial Assembly. ? It may be relevant to mention here that an Acting Governor, is not entitled to the remuneration or other privileges etc. to which a Governor is entitled. So much so, that the Acting Governor cannot even use the official residence or the official conveyance of the Governor. iii. A Governor or for that matter an Acting Governor is not included in the service of Pakistan. Therefore, it cannot be said that Mr. Muhammad Hanif Ramay became disqualified from being member of the Provincial Assembly or its Speaker, by virtue of his assuming the office as Acting Governor of the Punjab Province.

The detailed reasons for the above findings are given below:‑‑

2. The relevant facts which led to the filing of this constitutional petition are that Ch. Muhammad Altaf Hussain, the Governor of the Province of Punjab proceeded to the United States of America from 5th to 16th of April, 1996 for medical treatment. During the absence of the Governor the President of Pakistan in exercise of powers conferred by Article 104 of the Constitution appointed Mr. Muhammad Hanif Ramay, Speaker of the Punjab Assembly as Acting Governor of Punjab. The letter issued by the Cabinet Division and the Commission of Appointment of Mr. Muhammad Hanif Ramay as Acting Governor are reproduced below:

"Subject:‑ APPOINTMENT OF MR. MUHAMMAD HANEEF RAMAY‑‑‑SPEAKER PUNJAB ASSEMBLY AS THE ACTING GOVERNOR OF THE PROVINCE OF PUNJAB.

My dear Chief Secretary

The President, in exercise of the powers conferred by Article 104 of the Constitution, has been pleased to appoint Mr. Muhammad Haneef Ramay, Speaker Punjab Assembly to act as the Governor of Province of Punjab during the absence abroad of Ch. Muhammad Altaf Hussain who is proceeding to United States of America alongwith the Prime Minister from 5‑16 April 1995 for medical treatment at Government expenses. The Oath of office will be administered by the Chief Justice of the High Court of Punjab.

2. The Commission of Appointment of Mr. Muhammad Haneef Ramay is enclosed. You will read it out at the swearing‑in‑ceremony before the Oath office is administered to the Acting Governor. The Oath of office is attached with the Commission of Appointment and it will be signed by the Acting Governor and the Chief Justice of the High Court of Punjab.

3. The Actual time and date of the swearing‑in‑ceremoney will be intimated by you to be Speaker, Punjab Assembly,. Date on the Commission of Appointment may be added before the Oath taking ceremony. Two spare copies of the Oath of Office are also enclosed one for the use of Acting Governor designate and the other for the use of Chief Justice who is to administer the Oath.

4. The actual time and date of assumption of office by the Acting Governor may please by intimated to the Cabinet Division.

With regards,

Yours sincerely,

(Sd.)

Deputy Secretary"

"COMMISSION OF APPOINTMENT

To

Mr. Muhammad Haneef Ramay

Greeting

I. I do by this Commission appoint you the said Mr. Muhammad Haneef Ramay at my pleasure, Acting Governor of the Province of Punjab.

II And I do hereby authorise, empower and require you to exercise and perform all and singular the powers and duties appearing in to the said office.

III And I do hereby direct that before assuming the said office you shall make an oath before the Chief Justice of the, High Court of the Province of Punjab in the form hereto appended before you shall have entered upon your office as such Acting Governor.

IV. And I do hereby direct that this Commission shall be read and published before you shall have made the oath as required by this Commissioner.

Given under my hand and seal at Islamabad this Day of April in the year one thousand nine hundred and ninety five. ,

(Sd.)

President:"

Mr. Muhammad Hanif Ramay took oath as Acting Governor. of the Punjab Province on 5th of April, 1995. The petitioner in the above circumstances filed this writ petition on the ground that as a consequence of assuming the office of Governor, Mr. Muhammad Haneef Ramay has ceased to be the Speaker and member of the Punjab Assembly, and prayed that the Election Commission of Pakistan may be directed to hold election for the Provincial Assembly seat which stands vacated by Mr. Muhammad Hanif Ramay.

3. Rana Ilam‑ud‑Din Ghazi, Advocate assisted by Mian M.A. Sabir Nishtar and Rana Abdul Hamid Advocates has made following submissions: ‑‑

(i) On assumption of office of the Governor of the Punjab Mr. Muhammad Haneef Ramay has ceased to be the Speaker and Member of the Punjab Assembly under clause (2) of Article 103 of the Constitution. On the language of this constitutional provision it is urged that membership of the Provincial Assembly held by Mr Muhammad Haneef Ramay became vacant on the day he entered upon the office of the Governor. Elaborating their submission learned counsel have added that as defined by Article 260 the Governor includes the Acting Governor and, therefore, consequences spelt out in Article 103 are fully attracted in the case of the Acting Governor as well.

(ii) The governor or for that matter an Acting Governor is a person in the 'Service of Pakistan performing functions in connection with the affairs of the Federation and the Province. Learned counsel have elaborated that expression 'Service of Pakistan' has been defined in Article 260 and certain offices have been excepted from the said definition but the office of the Governor has not been excepted with the result that the Governor comes within the definition of 'Service of Pakistan'. It is urged that Mr. Muhammad Haneef Ramay on account of holding an office in the Service of Pakistan has become debarred to continue as Speaker and Member of the Punjab Provincial Assembly without first completing two years. This submission is made on the strength of clause (k) of Sub‑Article (1) of Article 63 which disqualifies a person in the Service of Pakistan to become member of the Parliament or Provincial Assembly within 2 years of his ceasing to hold his office in the Service of Pakistan.

(iii) Despite the provisions of Article 104 Mr. Muhammad Haneef Ramay has been appointed as Governor under Article 101 of the Constitution because in the Commission of Appointment he has been appointed and not directed to assume the office of the Acting Governor. He has further argued that, in any case, an Acting 'Governor has to perform all duties and functions attached to the office of the Governor, therefore, notwithstanding the fact that appointment may be for a short period of time it will be deemed to be the appointment of a Governor entailing all benefits, liabilities and disqualifications attached to the office of the Governor.

3. In support of the above submission the learned counsel have placed reliance on the following case‑law:‑‑

(i) Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 730);

(ii) Mian Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473); and

(iii) Abdul Hameed v. Member Board of Revenue (1986 SCMR 257).

Reliance has also been placed on pages 22 and 23 of the Indian Constitutional Law by M.A. JAIN and commentary of the Indian Constitution by V.B. Raju as appearing with reference to Articles 153, 154, 155, 158, 159, 166, 182, 183, 184, 188, 190 and 191 of the Indian Constitution.

4. Mian Abdus Sattar Najam, learned Advocate General Punjab appeared as Law Officer and submitted that the offices of the President and the Governor cannot be deemed to be offices in the Service of Pakistan, on account of specific language of Articles 43 and 103 of the Constitution. He has also referred to Article 49 which provides that in the absence of the President of Pakistan the Chairman of the Senate or in his absence the Speaker of the National Assembly shall act as President during the period of the absence of the President. Article 104 inter alia provides that in the absence of the Governor from Pakistan any person can be directed to perform the functions of the Governor during the period of absence of the Governor. It is argued by the learned Advocate General that Articles 43 and 49 are relevant for the President while Articles 103 and 104 are applicable to the Governor of a Province. Article 43 is identical to Article 103 while clause (2) of Article 49 and Article 104 respectively provide for meeting the situation when the President and the Governor are away from the country or otherwise unable to perform their functions for any other cause. He has submitted that various provisions of the Constitution should be harmoniously interpreted so that same result follows in respect of the similar situations. It is submitted that when the Chairman of the Senate or the Speaker of the National Assembly assumes office of the Acting President during his absence from the country they do not cease to hold their respective offices of the Chairman and Member of the Senate or the Speaker and Member of the National Assembly. Similarly, if the Speaker of the Provincial Assembly is asked by the President to temporarily perform the functions of the Governor, he could not be intended to lose the Speakership and Membership of the Assembly.

5. Learned Advocate General has further submitted that Speaker of the Provincial Assembly is a different legal entity from that of a mere member of the Assembly. The nomenclature and function of the office of the Speaker are different from those of a member of the Assembly. The precise submission is that when the Speaker is asked to assume the office of the Acting Governor then he assumes the office only as a Speaker and not as a Member of the Assembly. The disqualification relied upon by the petitioner with reference to the provisions of Article 103(2) of the Constitution are relatable to the Member of the Assembly and not the Speaker. According to the learned Advocate General, a mere member of the parliament of a Provincial Assembly will lose his seat in the Parliament or the Provincial Assembly if he has been appointed as a Governor but if a Speaker is appointed as Governor, he will retain the Speakership.

6. Learned Advocate‑General has also submitted that neither the Governor nor the Acting Governor can be said to be in the Service of Pakistan. According to him, the language of clause (1) of Article 103 clearly shows that Governor cannot be in the Service of Pakistan. He has placed reliance on Messrs Pervaiz Industries Corporation v. Messrs New Lahore Transport Company and 3 others (PLD 1975 Lahore 88) to contend that Governor is not in the Service of Pakistan nor an Acting Governor appointed under Article 104 of the Constitution is required to have any qualification for his appointment as such. He does not have any prescribed qualifications nor does he incur. any disqualification by such temporary appointment.

6. Regarding the definition given in Article 260 learned Advocate General has submitted that these definitions are subject to the other provisions of the Constitution and if by reading various provisions of the Constitution it follows that the Governor and the Acting Governor are two different entities then it cannot be said that the Acting Governor will be included in the definition of the Governor will be included in the definition of the Governor and the disqualifications meant for the Governor and the disqualifications meant for the Governor will chase the acting Governor also. He has placed reliance on the following Precedents:‑‑

(i) Hergovind Panth v. Dr. Raghukul Tilak and others (AIR 1979 SC 1109);

(ii) Suraya Narain Chaudhry v. Union of India and others (AIR 1982 Rahasthan 1 (67); and

(iii) Hergovind Panth v. University of Rajasthan and others (AIR 1978 Rajasthan 72).

7. Syed Shabbar Raza Rizvi, learned Additional Advocate‑General has also addressed arguments. He has submitted that a Governor is appointed on permanent basis when this office falls vacant on account of the death, removal or resignation of the previous incumbent but when the office does not fall vacant but an exigency arises on account of temporary absence of the Governor from the country or when he is otherwise unable to perform his functions, then any person can be directed by the President to perform the functions of the Governor. Such a person who is called upon to act as Governor by way of temporary arrangement during the period of absence of the permanent Governor is called the Acting Governor. He has further submitted that only a person qualified to be a member of the National Assembly and of at least 35 years of age can be appointed as Governor to fill up the permanent vacancy of the Governor. The appointment of such a person is made under Article 101 of the Constitution. As against that, specific provisions has been provided for the appointment of an acting Governor in Article 104 of the Constitution, which provides that when the Governor is absent from Pakistan or is unable to perform the functions of his office due to any cause such other persons as the President may direct shall act as Governor. According to the learned law officer, the 'Governor' and' Acting governor' are two distinct legal entities under the Constitution, so far as their appointments are concerned.

8. Learned Additional Advocate General has explained that the definition of the word ? Governor' as occurring in Article 260 of the Constitution is referable to the performance of the functions of the office of the Governor. It is in this limited context that the Governor and the Acting Governor are included in the same definition. But so far as the qualifications and the exigencies in which the Governor and the Acting Governor are to be appointed, the same are entirely different. He has pointed out that under Article 104 any person can be directed to perform the functions of the Governor to the specified exignences, namely when the Governor is absent from Pakistan or he is unable to perform the functions of his office due to any cause. In the case of appointment of the Governor on permanent basis, the Governor to be so appointed has to have specified qualifications and his appointment is made when the office of the Governor falls vacant on permanent basis. On this analysis, the learned Additional Advocate‑General has submitted that the Governor and the Acting Governor are not the same legal entity, with the result that the disqualifications attached with the office of the Governor cannot be brought home to an Acting Governor.

9. Syed Afzal Haider, Advocate who appeared for Mr. Muhammad Haneef Ramay on his own has argued that a person who merely acts in an office is not to be regarded as successor or predecessor of the person who held that office before or after him. He has relied upon the provisions of Article 261 of the Constitution in this behalf and submitted that an Acting Governor cannot be considered as a Governor and thus does not incur the disadvantages attached with the Governor.

10. I have carefully considered the submissions made at the Bar. The following questions require to be resolved in order to decide this petition.

(i) Whether Mr. Muhammad Hanif Ramay was appointed as an Acting Governor under the provisions of Article 104 of the Constitution or whether his appointment was of permanent nature made under Article 101 of the Constitution.

(ii) Whether the Governor appointed under Article 101 and an Acting Governor required to perform functions of the Governor, under Article 104 are two different legal entities under the Constitution, if so whether the Acting Governor entails consequence under Article 103 of the Constitution on assuming the office of the Governor.

(iii) Whether the Governor and the Acting Governor are persons in the service of Pakistan and they are disqualified to be elected as members of the Parliament or the Provincial Assemblies under Article 63 of the. Constitution, with 2 years of their ceasing to be the Governor or the Acting Governor.

(iv) Whether a Speaker of a Provincial Assembly when he performs functions of an Acting Governor ce4ses to remain the Speaker and member of the Assembly.

11. The first two questions, namely whether Mr. Muhammad Hanif Ramay was appointed as a 'Governor' or as an 'Acting Governor' and whether the two terms speak of same person under the Constitution, will be examined together. The appointment of the Governor is made under Article 101 of the Constitution which provides:‑‑

"101. (1) There shall be a Governor for each Province, who shall be appointed by the President after consultation with the Prime Minister.

(2) n person shall not he appointed a Governor unless he is qualified to be elected as a member for the National Assembly and is not less than thirty‑five years of age.

(3) The Governor shall hold office during the pleasure of the President and shall be entitled to such salary, allowances and privileges as the President may determine.

(4) The Governor may, by writing under his hand addressed to the President, resign his office.

(5) The President may make such provision as he thinks fit for the discharge of the functions of a Governor in any contingency not provided for in this Part."

The disadvantages or disqualifications which a person who has been appointed as Governor has to suffer have been provided by Article 103 of the Constitution and the same are, (i) that the Governor shall not hold any office of profit to the Service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services, and (ii) the Governor cannot seek election as a member of the Parliament or a Provincial Assembly and in case a member of the Parliament or a Provincial Assembly is appointed as Governor, his seat in the Parliament or as the case may be, in the Provincial Assembly shall become vacant on the day lie enters upon his office. The consequences prescribed by Article 103 are referable to the Governor who has been appointed under Article 101 of the Constitution. However. so far as the question of appointment of Acting Governor is concerned, the same has been separately provided under Article 104 which reads as under:‑---

"When the Governor is absent from Pakistan or is unable to, perform the functions of his office due to any cause, such other person as the President may direct shall act as Governor." '

It may be seen that in the case of an Acting Governor no qualifications have been prescribed nor any restrictions or disqualifications have been provided for a person who acts as Acting Governor. Any person whether he is qualified to be elected as a member of the National Assembly or is of 35 years of age or not can be called upon to perform the functions of the Governor during his absence from the country or when he is otherwise unable to perform the functions of his office. On the other hand, a person who is appointed as 'Governor' under Article 101 must possess the prescribed qualifications of being capable to be elected as member of the National Assembly and should be of at least 35 years of ace. Articles 101 and 104 talk of two different persons who hold the office of the Governor in two different situations. The. Governor is he who is appointed on permanent basis to fill up the vacant office while Acting Governor is called upon to perform the functions of the Governor, on temporary basis during the absence of the Governor from the country or when he is unable to perform his functions as Governor.

12. Learned counsel for the petitioner laid much emphasis on the definition of the word 'Governor' as occurring in Article 260" which reads as under:‑‑

"Governor means the Governor of a Province and includes any person for the time being acting as the Governor of a Province. "

In order to find out the intention of the Constitution givers, as to what did they mean by including both the 'Governor' and the 'Acting Governor' in the definitions of the 'Governor' it will be profitable to read Clause (1), of Article 260, which is to the following effect:‑

"260(l). In the Constitution, unless the context otherwise requires, the following expressions have the meaning hereby respectively assigned‑to them, that is to say‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑.

It is accepted rule of construction of statutes that the definition given to a word in the interpretation clause may not apply to all possible contexts in the Statute. If a defined expression is used in a context which the definition will not fit, it may be interpreted in the sense in which it is used in a particular section of the Statute. Thus, the definitions given in Article 260 have to be read and understood subject to the specific meanings which these expressions carry by the language used in particular context. Now reference should be made to the provisions of Articles 101, 103, and 104. The language used in Articles 101 and 103 makes it clear that the expression 'Governor' occurring in these Articles is different from the expression 'Acting Governor' occurring in Article 104. I further agree with Syed Shabbar Raza Rizvi, learned Additional Advocate General, that the definition given in Article 260 to the word 'Governor' is referable only to the performance of the functions of the office of the Governor. This definition has to be read in this limited sense alone. It has nothing to do with the qualifications or disqualifications attached to the office of the Governor. The conclusion, therefore, is that the Acting Governor who is asked to perform the functions of the Governor under Article 104 is a different legal entity and he cannot be equated with the Governor, except for the limited purpose of performance of functions of the office of the Governor.

13. Let it now be examined in what particular terms and circumstances Mr. Muhammad Hanif Ramay came to hold the office of the Governor on 5th of April, 1995. The letter dated 3‑4‑1995 issued by the Cabinet Division which has been earlier reproduced shows that the President appointed Mr. Muhammad Hanif Ramay, Speaker Punjab Assembly, "to act as the Governor of the Punjab during the absence abroad of Ch. Muhammad Altaf Hussain, in exercise of the powers conferred by Article 104 of the Constitution." The commission of Appointment also shows that Mr. Muhammad Hanif Ramay was appointed as "Acting Governor of the Province of Punjab". The oath taken by him on 5th of April, 1995 clearly shows that he took oath as Acting Governor, Punjab. From this discussion the position that emerges is that Ch. Muhammad Altaf Hussain, the Governor of Punjab had gone to America for medical treatment and during the period of his absence Mr. Muhammad Hanif Ramay was called upon by the President of Pakistan under Article 104 of the Constitution to act as Governor of Punjab. Consequently, he took oath as Acting Governor.

14. It also requires to be mentioned that a person who performs the functions of the Governor under Article 104 as Acting Governor is not entitled to the pension, privileges and benefits attached with the office of the Governor. The Governor's Salaries, Allowances and Privileges Order, 1975 (P.O. No.5 of 1975) was amended by President's Order No. l of 1995 on 8‑3‑1995, with a view to disentitle the Acting Governor from enjoying the privileges attached with the office of the Governor. Article 16‑A was added through the amending President's Order No.5 of 1975. It reads as follows:‑‑

" 16‑A. Privileges etc. not to apply to an Acting Governor,‑‑‑(1) Acting Governor shall not be entitled to‑‑‑

(a) use of official residence of the Governor;

(b) use of official conveyance, except where necessary for performance of official duties under the said Order; and

(c) incur expenditure from sumptuary allowance on functions and parties, except where necessary for the performance of official duties under the said Order.

(2) The provisions of Articles 7 to 16 shall not apply to an Acting Governor. "

The effect of the aforesaid amendment was that when Mr. Muhammad Hanif Ramay entered upon the office of the Governor, he was not entitled to even enjoy the ordinary privileges attached with the office of the Governor, such as use of official residence, official conveyance and incurring of expenditures from sumptuary allowance on functions and parties etc. Therefore, by no stretch of imagination can it be said that Mr. Muhammad Hanif Ramay was appointed substantively to hold the office of the Governor, under Article 101 of the Constitution. On the other hand, it is abundantly clear that he had been required by the President to perform the functions of the Governor by way of temporary arrangement for limited period of 12 days, under Article 104 of the Constitution. My findings on questions Nos. l and 2, formulated in para. No. 10 are that a Governor and an Acting Governor are two different legal entities under the Constitution. Mr. Muhammad Hanif Ramav was the Acting Governor and the consequences spelt out by clause (2) of Article 103 of the Constitution are not attracted in the instant case, with the result that Mr. Muhammad Hanif Ramay continues to retain the Speakership and Membership of the Provincial Assembly despite of his having acted as Governor for a few days, during the absence of the permanent incumbent of the office of the Governor of Punjab. The cases reported as PLD 1993 SC 473 and 1986 SCMR 257 have no application to the facts and circumstances of the present case. So far as the case of Pir Sabir Shah (Supra) is concerned this too is distinguishable. The. facts of this case were that proclamation issued by the President of Pakistan under Article 234 of the Constitution, whereby he directed the Governor of the N.‑W.F.P. Province to assume the functions of the Government of that Province was challenged, inter alia, on the ground that appointment of Major General Khurshid Ali Khan as Acting Governor of N.‑W.F.P. Province was invalid because a person can be appointed as an Acting Governor if the Governor is absent from Pakistan or is unable to perform the functions of his office and as there was no Governor when the Acting Governor was appointed, Article 104 was not applicable, and since the Governor was not validly appointed the report submitted by him on the basis of which the proclamation was issued, vitiated the proclamation issued by the President. The Honourable Supreme Court taking note of this argument held as under:‑‑

"As stated earlier the case of the petitioner is that Major‑General Khurshid Ali Khan was not a validly appointed Governor and as such he was not competent to send any report to the President; further as his appointment was illegal his report should have been ignored by the President. It is not the case of any of the parties that Major General Khurshid Ali Khan has been appointed as Governor; in fact the commission of his appointment describes him as Acting Governor. The Acting Governor is appointed under Article 104 of the Constitution which reads as follows:‑‑

"When the Governor is absent from Pakistan or is unable to perform the functions of his office due to any case, such other person as the President may direct shall act as Governor."

There is merit in the contention raised on behalf of the petitioner that Article 104, ibid, presupposes existence of a Governor; it is only when he is absent from Pakistan or is unable to perform the functions of his office due to any cause that the power to Appoint an Acting Governor under the said Article can be exercised; in other words, without there being a person holding the office of Governor appointed under Article 101 of the Constitution there cannot be an Acting Governor, However, on behalf of the Federation it is contended that even though he was described as Acting Governor in the commission of appointment yet Major‑General Khurshid Ali Khan was a person discharging the functions of the Governor under clause (5) of Article 101, ibid, which reads as follows:‑‑

"The President may make such provision as he thinks fit for the discharge of the functions of a Governor in any contingency not provided for in this part."

In view of this position, the attack on the report submitted by Major? General Khurshid Ali Khan to the Federal Government on the ground that he was not competent to make the same fails, as according to the Federations counsel he was a merely a person discharging the functions of the Governor within the meaning of clause (5) of article 101, ibid. It is not the case of the petitioner that Major‑General Khurshid Ali Khan was not competent to perform the functions of the Governor under this clause. Apart from that I am in agreement with the view expressed by my learned brothers Ajmal Mian and Saeedduzzaman Siddiqui, JJ. that the legality of the appointment of Major General Khurshid Ali Khan to the office which he was holding could not be challenged in these proceedings."

The above view of the Honourable Supreme Court is to effect that an Acting Governor can be appointed under Article 104 if the Governor appointed under Article 101 of the Constitution is absent from the Pakistan or is unable to perform the functions of his office due to any cause. This is exactly what has happened in the instant case. The permanent incumbent of the office of the Governor appointed under Article 101 of the Constitution had gone to U.S.A. for treatment and during the period of his absence Mr. Muhammad Hanif Ramay was appointed as Acting Governor under Article 104 of the Constitution. Therefore, Mr. Muhammad Hanif Ramay was the Acting Governor appointed under Article 104 as distinguished from 'Governor' who is appointed under Article 101. The case of Pir Sabir Shah (supra) instead of helping the petitioner goes against the arguments submitted on his behalf.

15. The next question which calls for determination is whether a 'Governor' or for that matter an 'Acting Governor' can be said to be a person in the 'Service of Pakistan'. This question requires to be decided because contention of the learned counsel for the petitioner is that on being appointed as Acting Governor Mr. Muhammad Hanif Ramay came in the Service of Pakistan and thus he become disqualified from being a member of the Provincial Assembly in view of paras. (d) and (k) of Sub‑Article (1) of‑Article 63 of the Constitution, which read as under:‑‑

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

(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder or ‑‑‑‑‑‑

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

16. The submission of the learned counsel for the petitioner that a Governor is a person in the Service of Pakistan, is based on the definition of the expression 'Service of Pakistan' as given in Article 260 of the Constitution, which reads as under:‑‑

"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 Majlis‑e‑‑Shoora (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, Advocate General, Parliamentary Secretary or Chairman or Member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or Member of a House or a Provincial Assembly;"

The argument of the learned counsel is that the offices/posts which have not been excepted by the definition of 'Service of Pakistan' in Article 260 will automatically fall in the Service of Pakistan. 'Governor' or an 'Acting Governor' is not one of the persons who have been excluded for the definition of Service of Pakistan. Article 260 falls in Chapter 5 relating to interpretation. I have already held that the expressions defined under Article 260 will be subject to the context of the provisions of the. Constitution where these expressions have been used. It, therefore, follows that if by specific provisions of the Constitution an expression defined in this Article has different meanings, then the technical meanings given in Article 260 will have to be ignored and those appearing from the particular context will have to be adopted. If a word has been used in a particular sense in a particular provision of the Constitution, then that word shall be interpreted in that sense. Otherwise also, it is accepted principle of interpretation that constitutional instrument has to be interpreted in such a way that it harmonizes the various provisions of the Constitution and does not cause conflict or brings in ambiguity in various provisions of the Constitution. Let it now be examined in what particular context the word Governor or Acting Governor has been used in the relevant provisions of the Constitution, whether it has been used in the sense that the holder of this office can be considered to be in the Service of Pakistan. Article 103 provides, "the Governor shall not hold any office of profit in the Service of Pakistan or occupy any other post carrying the right to remuneration for rendering the services." This provision shows that the Governor is not a person in. the Service of Pakistan. If he is to be a person holding an office in the Service of Pakistan then there was no occasion to provide that the Governor will not hold any office in the Service of Pakistan. Clause (1) of Article 103 abundantly spells out that 'Governor' is outside the pale of 'Service of Pakistan'. Article 240 provides for the appointments and the condition of service of persons in the Service of Pakistan. It reads as follows:‑‑

"Article 240: Subject to the Constitution, the appointments to and the conditions of service of persons in the Service of Pakistan shall be determined‑‑

(a) in the case of the services of the Federation, pasts in connection with the affairs of the Federation and All Pakistan Services, by or under Act of Majlis‑e‑Shoora (Parliament); and

(b) in the case of the services of a Province and posts in connection with the affairs of Province, by or under Act of the Provincial Assembly. ,

Explanation‑‑‑‑In this Article, "All Pakistan service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing date of which may be created by Act of Majlis‑e‑Shoora (Parliament)."

The conditions of service of the persons in the Service of Pakistan are prescribed and regulated by Acts of the Parliament or the Provincial Assembly according to the fields of service. The Service of Pakistan is, therefore relatable to those persons who are appointed in connection with the affairs of the Federation or the Provinces by Acts of the Parliament or the Provincial Assemblies. However, offices/posts which are the creation of the Constitution and not of any Act of the Parliament or a Provincial Assembly do not fall within the definition of Service of Pakistan. Admittedly, the office of the Governor and the Acting Governor is the creation of the Constitution and not of any law, therefore, the holders of these offices cannot be regarded to be in the Service of Pakistan.

17. The question, whether holders of constitutional offices are in the Service of Pakistan has been considered by various Courts of Pakistan. In Sye4 Abida Hussain v. Returning Officer and others (1993 MLD 2489) it has been held by the Election Tribunal comprising of two learned Judges of the Lahore High Court as follows:‑‑

"Holders of the constitutional and elective posts created by the Constitution do not fall in the category of persons in the service of Pakistan but since the appellant was not holding an office created by the Constitution and dealt with by it, she would be deemed to be in the service of Pakistan falling within the mischief of Article 63 (k) of the Constitution of Pakistan."

The case reported as Messrs Pervaiz Industrial Corporation v. Messrs New Lahore Transport Company and three 3 (PLD 1975 Karachi 88) is a direct authority on the point. The facts of the precedent case are that Chief Justice Tufail Ali Abdul Rehman of the Sindh High Court was appointed as Acting Governor. An objection was taken that the Governor cannot hold any other office of profit in the Service of Pakistan, therefore, when Justice Tufail Ali Abdul Rehman became Governor he could not hold' the office of the Chief Justice. In this view of the matter it was urged that unless he took a fresh oath of the office of the Chief Justice he could not resume the office of the Chief Justice of the Sindh High Court. The objection was overruled by holding:‑‑

"Post of Governor has not been included in Service of Pakistan under Article 129. As the Chief Justice continues to hold office as such while acting as Governor also he did not cease to be the Chief Justice. Under Article 104 the Chief Justice was not appointed as Governor but the President directed him to also act as the Governor. So he was not appointed to hold any office of profit in the Service of Pakistan."

Similar question also arose in Muhammad Shahbaz. Sharif v. Muhammad Altaf Hussain (PLD 1995 Lahore 541). The facts of this case are that Ch. Muhammad Altaf Hussain who earlier remained Governor of the Punjab Province was appointed as Governor for the second time under Article 101 by the President in 1994. The appointment was challenged on the ground that having remained in the Service of Pakistan when he was the Governor of Punjab, he was not qualified to be reappointed in the office of the Governor before the expiry of two years because the office of the Governor was an office in the Service of Pakistan. After exhaustive examination of the case law the learned Judge came to the conclusion that the Governor is the holder of a constitutional office as distinct from Service of Pakistan, therefore, it could not be held on the basis of Clause (1) of Article 260 of the Constitution that the Governor is a person in the Service of Pakistan. The relevant observations are reproduced below:‑‑

"In the present case, as already observed, holder of constitutional offices have been treated by the Constitution itself on a different plane and on different level, and therefore, to hold only on the basis of the definition clause that persons holding constitutional offices are also in the Service of Pakistan within the meaning of the Constitution would amount to violating the constitutional intent itself."

"The exclusion of certain offices from the definition of Article 260 of the Constitution does riot, therefore, imply that the holders of all other offices are deemed to be in the service of Pakistan. Furthermore, Article 260 in which the definition of 'Service of Pakistan' appears is in the nature of an interpretation clause and itself provides that the definition contained therein would stand excluded in the event of any repugnance with the context. The interpretation clause does not override other substantive provisions nor can it be applied with rigidity.

It must give way to the context in which the word in question appears. "

"It follows from the above discussion that Ch. Muhammad Altaf Hussain respondent while holding constitutional office of the Governor in Punjab was not in Service of Pakistan and was not disqualified from being re-appointed as a Governor within a period of two years from his ceasing to hold that office. "

18. At this stage notice may also be taken of the submission made by the learned Advocate General that Governor cannot be deemed to be in the Service of Pakistan on account of the provisions of Article ‑129. This Article reads as under:‑‑

"Article 129: The Executive Authority of the Province shall vest in the Governor and shall be exercised by him either directly the through officers subordinate to him in accordance with the Constitution. "

I agree with the submission of the learned Advocate‑General. The Governor is the appointing authority and controller of the persons in the Service of Pakistan working in connection with the affairs of the Province. He belongs to the category of the creator or employer of the Service of Pakistan and, therefore, he himself cannot be a part of the Service of Pakistan. The conclusion that the Governor is not a person belonging to the Service of Pakistan is also evident from the provisions of Article 275 of the Constitution, which reads as sunder:‑‑

"275.(1) Subject to the Constitution and until law is made under Article 240 any person who, immediately before the commencing day, was in the service of Pakistan shall, as from that day, continue in the service of Pakistan on the same terms and conditions as were applicable to him under the Interim Constitution of the Islamic Republic of Pakistan immediately before that day.

(2) Clause (1) also apply in relation to a person holding office immediately before the commencing day as‑‑‑‑

(a) Chief Justice of Pakistan or other Judge of the Supreme Court, or Chief Justice or other Judge of a High Court;

(b) Governor of Province

(c) Chief Minister of a Province

(d) Speaker or Deputy Speaker of the National Assembly or a Provincial Assembly;

(e) Chief Election Commissioner;

(f) Attorney‑General for Pakistan or Advocate‑General for a Province

(g) Auditor General of Pakistan

(3) Notwithstanding anything contained in the Constitution, for a period of six months from the commencing day, a Federal Minister or a Minister of State or the Chief Minister or a Province, or a provincial Minister may be a person who is not a member of Majlis‑e‑Shoora (Parliament) or, as the case may be, the Provincial Assembly of that Province; and such Chief Minister and Provincial Minister shall have the right to speak and otherwise take part in the proceedings of the Provincial Assembly or any committee thereof of which he may be named a member, but shall not by virtue of this clause be entitled to vote.

(4) any person who, under this Article, is continued in an office in respect of which a form of oath is set out in the Third Schedule shall, as soon as is practicable after the commencing day make before the appropriate person oath in that form.

(5) Subject to the Constitution and law‑‑‑

(a) all civil, criminal and Revenue Courts exercising jurisdiction and functions immediately before the commencing day shall, as from that day, continue to exercise their respective jurisdictions and functions; and

(b) all authorities and all offices (whether judicial, executive, revenue or ministerial) throughout Pakistan exercising functions immediately before the commencing day shall, as from that day, continue to exercise their respective functions."

19. From‑the above it is clear that if the holders of any of the constitutional offices had been included in the Service of Pakistan, then there was no need to specify such an office in clause (2) of Article 275. The result is that 'Governor' and 'Acting Governor' are constitutional offices and, holders of these offices cannot be treated to be in the Service of Pakistan. The consequence that follows is that Mr. Muhammad Hanif Ramay when he assumed the office as 'Acting Governor' he did not serve in the Service of Pakistan or became its part.

20. After having held that Mr. Muhammad Haif Ramay while he performed functions as Acting Governor of the Punjab Province he did not hold office in the Service of Pakistan, the next question which requires adjudication is whether he became disqualified to hold elected office as member of the Provincial Assembly. and the Speaker on account of the provisions of Clauses (d) and (k) of Article 63. These provisions read with Article 113 provide that a person shall be disqualified from being elected or chosen as and from being a member of the Provincial Assembly if he is in the Service of' Pakistan or has remained in the Service of Pakistan within two years. Since in the instant case the Acting Governor was not in the Service of Pakistan, therefore, the question of incurring disqualification under Article 63 does not arise. The learned Advocate‑General also argued that the disqualification, if any, either under clause (2) of Article 103 or paras. (d) and (k) of Clause (1) of Article 63 are applicable to the Members of the Parliament or the Provincial Assembly. So far as the Speaker of the Provincial Assembly is concerned he has a distinct legal entity. I end force in this argument of the learned Advocate‑General. The nomenclature as also the functions of the Speaker are different from those of a Member of the Assembly. It is also to be noted that whenever the Assembly stands dissolved the Speaker continues to hold his office till fresh elections are held but members of the dissolved Assembly cease to be its members from the date of dissolution of the Assembly. The disqualification pressed into service by the petitioner in the instant case is admittedly penal in nature, it ends in depriving a member of his seat in the Assembly and office of the Speaker. It is the golden principle of interpretation that all penal provisions have to be construed strictly against invocation of the penalty. Keeping in view this rule, it cannot be said that a Speaker of a Provincial Assembly on becoming an Acting Governor ceases to remain the Speaker of the Assembly. This interpretation would also be in line with the comparable provisions of the Constitution in respect of the Acting President. Clause (2) of Article 49 provides that "when the President on account of his absence from Pakistan or any other reason is unable to perform his functions the Chairman of the Senate or in his absence Speaker of the National Assembly shall perform the functions of the President". The Chairman of the Senate and the Speaker of the National Assembly do not cease to hold their offices on account of their becoming Acting President. In the case of the Speaker of the Provincial Assembly also it cannot be held that he ceases to hold the office of the Speaker or member of the Assembly when he performs the duty as Acting Governor. While interpreting a provision of the Constitution guidance can be had from another provision of the Constitution dealing with the similar subject. Therefore, while interpreting Article 104 the same result is deducible as is available under Article 49. Resultantly, like the Chairman of the Senate or Speaker of the National Assembly. Mr. Muhammad Hanif Ramay Speaker of the Punjab, Assembly did not lose either the Speakership or membership of the Provincial Assembly.

The above detailed reasons have been recorded in support of the short order of dismissal of the writ petition.

M . B. A. /P‑20/L ?????????????????????????????????????????????????????????????????????????????? Petition dismissed.