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‑‑ Proviso to section‑Scope‑Proviso to a section, held, cuts down meanings of that section; it is in nature of an exception to substantive provision to which it is appended‑Effect of an excepting or qualifying proviso, is to except out of preceding portion of enactment or to qualify something enacted therein, which but for proviso would be within it; and as such a proviso cannot be construed as enlarging scope of an enactment when it can be fairly and properly construed without attributing to it that effect.

Pramatha Nath Chowdhury and others v. Kamir Mondal and others P L p 00 5 C 434 and Craies on Statute Law, V. 218 rel.

(b) Punjab Local Government Ordinance (VI of 1979)‑

‑‑ S. 21(1) (f), proviso‑Proviso, held, has the effect of whittling down provisions contained in relevant clauses of subsection (I) of S. 21 Disqualification referred to does not apply to person who has been retired otherwise than by way of punishment‑Person not retired by way of punishment‑Not disqualified to be a candidate or a member of local council.

Malik Allah Yar Khan for the State.

Date of hearing : 23rd October, 1983.

ABAID ULLAH KHAN, J.

‑This is a Constitution Petition calling into question the right of Noor Muhammad, respondent No. 3, to hold the seat of Ward No. 1 of Union Council No. 74 Tehsil Chiniot, District Jhang. Noor Muhammad respondent No. 3 has been elected to the said seat in the recent elections.

2. The objection raised is that Noor Muhammad respondent was a J. V. Teacher in Primary School of Chak No. 13 Walanewala Tehsil Chiniot District Jhang and he retired from service w. e. f. 11‑4‑1982 and, as such, he, in view of the provisions of clauses (e) and (f) of section 21 of the Punjab Local Government Ordinance, 1979, was disqualified to be a candidate or a member of a Local Council. The relevant part of section 21 may be reproduced hereunder: ‑

S.21.‑A person shall be disqualified to be a candidate or a member of a local council‑

(e) if he is a salaried official of Federal or Provincial Government or of a Public or Statutory Corporation, a local council or other local authority ;

(f) If he for the time being is disqualified for membership of the Parlia ment or a Provincial Assembly under any law for the time being in force:

The law which provides for disqualification for membership of Parliament is "The Houses of Parliament and Provincial Assemblies (Elections) Order, 1977". Article 10(2) (b)(4) of the Order 1977, being relevant, is reproduced‑

S. 10(2)‑A person shall be disqualified from being elected or chosen as, and from being, a member, of Parliament,‑

(b) if----

(1).

(2).

(3).

(4) 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 ceases to be in such service.

On the basis of the above provisions, it is argued that the respondent having retired on 11‑4‑1982, was disqualified to be a candidate as a period of two years has not elapsed since his retirement from Government service. This argument has been made in ignorance of the proviso added to section 21 of the Ordinance, which reads as under

Provided that this disqualification shall not be applicable to‑

(1).

(2) a person who has resigned or has been retired or removed otherwise than by way of punishment, from service of the Federal Government or a Provincial Government or a local authority or an autonomous body.

This proviso was added to section 21 by Punjab Ordinance VI of 1981. As a general rule a proviso to a section cuts down the meaning of that section, it is in the nature of an exception to the substantive provision to which it has been appended. See Pramatha Nath Chowdhury and others v. Kamir Mondal and others (P L D 1965 S C 434). The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the provisio would be within it; and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect. (See page 218 Craies on Statute Law). Applying this rule of construction, it is apparent that the proviso has the effect of whittling down the provisions contained in the relevant clauses of subsection (1) of section 21 of the Ordinance, and that the disqualification referred to does not apply to a person who has been retired otherwise than by way of punishment. It is not the case of the petitioner that the retirement of the respondent was by way of punishment. The respondent as such was not disqualified to be a candidate or a member of the local council. There is no merit is this petition and the same is, accordingly, dismissed in limine.

M. Y. H. Petition dismissed.

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