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Constitutional Petition No. 124 of 1984, decided on 1st December, 1985.

‑‑‑Art. 9‑‑Constitutional petition‑‑Obiter Dicta‑‑Observation of Division Bench (reported in P L D 1978 Quetta 17) to effect that sufficiency of evidence could be examined by High Court in exercise of constitutional jurisdiction when this was not a point in dispute or controversy, held, was in a form of an obiter and not binding on another Division Bench.‑ [Precedent].

‑‑‑Art. 9‑‑Constitutional jurisdiction‑‑Finding of fact‑‑High Court, in Constitutional jurisdiction, held, could examine material which was before forum which passed impugned order‑‑Insufficiency of evidence could not be a ground for interference with a finding of fact recorded by a competent Court or tribunal.

‑‑‑Art. 9‑‑Constitutional jurisdiction‑‑Finding of fact‑‑High Court 'in exercise of constitutional jurisdiction, held, could not interfere with a finding of fact recorded by a competent Court or tribunal mainly on ground that it might have taken a different view on basis of same material‑‑In order to justify interference with a finding of fact in exercise of constitutional jurisdiction, it should be shown that finding of fact was either based on no evidence or was contrary to evidence on record or was based on misreading of evidence or that Court or tribunal concerned failed to take into consideration material documents on record which would have ‑affected its decision‑‑For purpose of ascertaining such factual position, High Court would have to appraise material which was available before Court or tribunal passing order in question‑‑Appraisal of evidence, was different from determining question of sufficiency of evidence.

Miss Nasreen Fatima Awan v. Principal, Bolan Medical Collage, Quetta and 4 others P L D 1978 Quetta 17; Irshad Ahmed v. The Settlement Authority Punjab 1981 S C M R 758; Sikandar Hayat v. Ghulam Muhammad Shahbazi and others 1983 C L C Lah. 233; Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and 2 others P L D 1966 S C 1; Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139 and Shaikh Haider v. Government of Sind and 4 others P L D 1982 Kar. 336 ref.

‑‑‑Art. 9‑‑Baluchistan Local Government Ordinance (II of 1980), S.21 (d)‑‑Constitutional petition against decision of Election Tribunal‑ Documents not filed before Election Tribunal, held, could not be looked into by High Court.

‑‑‑Art. 9‑‑Instructions Government Service Matters of Levies Personnel, Instructions Nos. 12 and 14‑‑Instructions‑‑Scope‑‑In absence of any statutory rules, instructions can be looked into‑‑Instructions of Statutes.

Pakistan v. Sheikh Abdul Hamid P L D 1961 S C 105 and Khan Faizullah Khan v. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another P L D 1974 S C 291 rel.

‑‑‑S. 21(d)‑‑Instructions Governing Service Matters of Levies Personnel, Instructions Nos. 12 to 18‑‑'Bazgir'‑‑Status‑‑A Bazgir is as much civil servant as a levies man is, who is a civil servant for all purposes including for disciplinary action under Efficiency and Discipline Rules‑ Appointment of a Bazgir, once made, brings him at par with ordinary levies men‑‑Although such person is a temporary employee but is subject to all disciplinary provisions relating to his service. ‑‑I Civil service ] .

Wall. Muhammad v. The Commissioner, Quetta Division, Quetta PLD 1970 Quetta 76 and Baz Muhammad v. Commissioner, Quetta Division, Quetta and another P L D 1979 Quetta 113 rel.

‑‑‑S. 21(d)‑‑Instructions Governing Service Matters of Levies Personnel‑‑Petitioner taken as substitute in place of his father who was in Levies, and had been working f9r about five years and receiving salary for such a long period‑‑Petitioner, held, estopped from urging that he was not appointed by competent aufhorty.

‑‑‑S. 21(d)‑‑Instructions Governing Service Matters of Levies Person nel‑‑Election petition‑‑Disqualification‑‑Salaried official‑‑Election Tribunal not competent to examine question of validity of appointment of a petitioner but it has to see whether factually petitioner had acted as a whole time 'salaried official' of Provincial Government defacto.

‑‑‑Legislature‑‑Intent‑‑Intent of Legislature manifested, held, should be given effect to.

‑‑‑S . 21(d)‑‑ Election‑‑Disqualification‑‑Object of cl. (d) to S . 21 is to discourage Government functionaries from indulging in public politics‑ Construction of cl. (d) to S. 21 of Ordinance, held, should be placed in such a way which would advance object and would suppress mischief for which it had been provided for‑‑Object would stand defeated if persons who have acted as whole time salaried official of Provincial Government are excluded from disqualification on ground that strict interpretation of relevant clause would result in rendering certain persons disqualified from contesting elections.

‑‑‑S. 21 (d)‑‑Expression 'whole‑time' and 'salaried'‑‑Meaning‑‑Expression 'whole‑time' denotes daily engagement or employment during routine or normal office hours for entire day‑‑If a person is recipient of a salary as normal condition of his office, he comes within mischief of said definition and would be described as a salaried official even during period when he is on leave without pay or when he is under suspension and, therefore, doing no work.‑‑[Words and phrases].

Mukhlesur Rahman v. The Sub‑Divisional Officer, Narayanganj and another P L D 1962 Dacca 497 rel.

‑‑‑S. 21 (d)‑‑Baluchistan Local Government (Election) Rules 1983, r. 70 (b)‑‑Instructions Governing Service Matters of Levies personal, Instructions Nos. 12 and 14‑‑Election‑‑Disqualification‑‑Salaried official‑‑Petitioner, who contested local council election and succeeded as against respondent, disqualified by Election Tribunal on account of being a 'salaried official'‑‑Petitioner had been taken as a substitute (Bazgir) for his father who was in Levies, and had worked and performed duties as such for nearly five years upto date of filing of nomination papers and even after, i.e. upto declaration of results of elections and had .been receiving salary‑‑Petitioner, held, was rightly rendered dis qualified from being elected as a Member of Local Council‑‑Order of Election Tribunal disqualifying petitioner maintained.

Ehsanul Haq and Muhammad Aslam Chishti for Petitioner.

Basharatullah for Respondent No.l.

Dates of hearing: 19th and 20th November, 1985.

.‑‑This petition is directed against an order, dated 3rd November, 1984 passed by the respondent No. 5, i.e. the Election Tribunal Quetta Division, Quetta allowing the respondent No. 1's election petition by declaring the petitioner as a person dis qualified from contesting the election in terms of clause (d) of section 21 of the Baluchistan Local Government Ordinance, 1980 (hereinafter referred to as the 'Ordinance') and ordering of the re‑election in respect of District Council Zhob (hereinafter referred to as the 'Council') for the seat reserved for Union Council, Vala Akram.

The brief facts leading to the filing of the above petition are that the petitioner and the respondents Nos. 1 to 4 contested elections of the council. The petitioner secured 245 votes, the respondent No. 1, 112 votes, the respondent No. 2, 50 votes the respondent No. 3, 233 votes and the respondent No. 4, 190 votes. Since the petitioner had obtained the highest votes he was declared as elected. The respondent No. 1 filed the aforesaid election petition, (Election Petition No. 35 of 1983), which was heard by the learned District Judge, Quetta in the capacity of Election Tribunal. The petitioner, who was the respondent No. 1 in the above election petition contested the same, whereas, the other respondents supported the election petition, except the respondent No. 3 who was ex parte. The learned Election Tribunal on the basis of the pleadings of the parties, framed four issues. The respondent No. 1 in support of the election petition, examined himself

as P.W. 3, In addition to examining two 'witnesses, namely, P.W. 1 Lai Muhammad, the Assistant Commissioner, Lower Zhob and P.W. 2 Juma Muhammad, Nazir in the office of the Assistant Commissioner, Lower Zhob, whereas, the petitioner examined himself as P.W. 2, in addition to examining P.W. 1 Haider Khan, a Jamadar Levies of Thana Vala Akram. It may be observed that the petitioner had also summoned the Superintendent from the office of the Political Agent, one Muhammad Aslam, but he dropped him at the time of examination of the witnesses. Thereupon, the respondent No. 1 requested that the above witness may be examined as his witness. However, the learned Election Tribunal by its order, dated 25th September, 1984 summoned the above witness as the Court witness and examined him as such, who produced a number of documents. The learned Election Tribunal after hearing the parties passed the impugned order in the above terms. The petitioner being aggrieved by the above order has filed the present petition.

2. Mr. Muhammad Aslam Chishti, learned counsel for the petitioner in support of the above petition has urged as follows:‑

(i) That there was not sufficient material before the learned Election Tribunal to have concluded that the petitioner was whole‑time salaried official of the Provincial Government;

(ii) That the instructions regarding Levies (hereinafter referred to as the 'Instructions') do not permit substitution of a son in place of his father;

(iii) That the alleged order of substitution was passed by an in competent authority and, therefore, the petitioner never became a whole‑time salaried employee of the Levies; and

(iv) That the provisions relating to disqualification are to be construed strictly and the construction thereon should be placed as to advance the right of franchise. __

On the other hand, Mr. Basharatullah, learned counsel for the respondent No. 1 has contended as under:‑

(i) That the question whether the petitioner was a whole‑time salaried employee of the Provincial Government was a question of fact, which question was within the competency of the learned Election Tribunal and, therefore, this Court cannot interfere with a finding of fact arrived at by a competent Court;

(ii) That there was sufficient evidence on record to support the conclusion arrived at by the learned Election Tribunal; gnat a the instructions and his status is of a whole‑time Government salaried employee; and

(iv) That this Honourable Court will not place the construction on clause (d) of section 21 of the Ordinance in such a way as to defeat the object and the intent of the Legislature.

3. , Before dilating upon the above contentions, it may be observed that the petitioner's father Saleh Muhammad was working in the Levies and was posted at Thana Vala Akram. It is the case of the respondent No. 1 that in 1978 as Saleh Muhammad had become ill, the petitioner was taken as substitute in his place and he was working as such since then upto the date of filing of the nomination papers. This averment was denied by the petitioner. The parties had produced the evidence referred to hereinabove for and against. The learned Election Tribunal on the basis of some evidence on record concluded the above finding of fact holding that the petitioner at the relevant time was working as 'Bazgir' who falls within the category of whole‑time salaried Provincial Government employee. It has not even been contended by Mr. Chishti that the instant case is a case of no evidence. What was urged by him, was, that there was not sufficient evidence. The question in issue is as to the scope of interference with a finding of fact by the High Court in exercise of writ jurisdiction. Mr. Chishti has referred to the following cases:‑

(i) Miss Nasreen Fatima Awan v. Principal, Bolan Medical College, Quetta and 4 others reported in P L D 1978 Quetta 17, in which a D.B. of this Court while allowing the petition against the Medical College, inter alia, observed as follows:‑

"Para. 27: The next point that deserves consideration is whether the impugned orders are liable to be interfered with by this Court in exercise of powers under Article 199 of the Constitution. We are conscious of the legal position that this Court. does not normally undertake appraisal of evidence nor does it readily displace findings of fact. A traditional slowness of the. High Court to disturb findings of tact has become a succinct rule governing the exercise of powers in these cases. However, it would be laying too broad a proposition, if it is stated that this Court cannot at all interfere with the decision on facts recorded by administrative tribunals. A wealth of case‑law is available on the point. There have been instances when the High Courts have travelled into the realm of facts in exercise of its 'consti tutional jurisdiction. The High Courts have interfered when findings based on insufficient evidence, misreading of evidence, non‑consideration of material evidence, erroneoft assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and unreasonable views on evidence, has been taken. It cannot be said that every finding of executive tribunal is beyond the scope of interference of the High Court, because if that were so, the concept of certiorari would virtually become redundant and meaningless. We are sure such helplessness on the part of the superior Courts was not contemplated by the vast body of case‑law that has come to occupy the field over the years."

(ii) Irshad Ahmed v. The Settlement Authority, Punjab, reported in 1981 S C M R 758. In the above case, the Honourable Supreme Court while declining leave to appeal against a judgment of the Lahore High Court passed in a constitutional writ petition, observed that the High Court was not legally barred from inter fering with a finding of fact, if such finding of fact clearly was against the material on record, or if it was based on no evidence.

(iii) Unreported judgment of a D.B. of this Court given on 10th November, 1985 in Constitutional Petition No. 108 of 1984 in the case of Hap Dad Khan v. Abdul Raheem and another, in which, while allowing the constitutional petition against an order of the Election Tribunal, it was' held that the allegation of corrupt practices was not proved and that the evidence on the above point was contradictory and conflicting with each other and as such, it cannot be relied upon.

On the other hand, Mr. Basharatullah, learned counsel for the espondent No. 1 has referred to the following cases:‑

(i) Sikandar Hayat v. Ghulam Muhammad Shahbazi and others reported in 1983 C L C 233, in which, a D.B. of the Lahore High Court while hearing a Constitutional Petition against an order of Election Tribunal observed that admissibility of a document is altogether different from its evidentiary value and that it is always for the Court to see that in circumstances of a case what weight can be attached to a particular document. It was also held that in case an Election Tribunal by misapplying the provision of Evidence Act entertains an inadmissible piece of evidence, it cannot be said that it has exceeded its jurisdiction or acted illegally. In the above case, a Birth certificate of a candidate was admitted, which according to the petitioner, was not admissible.

(ii) Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and 2 others, reported in P L D 1966 SC 1. In the above case, which is considered to be one of the leading cases on the question of scope as to the interference with a finding of fact or question of law recorded by an Election Tribunal, inter alia, it was held that High Court has no juris diction under Article 98 of the late Constitution of 1962 to correct all errors of law relating to merits of a dispute before a Tribunal and that rejection or acceptance of a ballot paper at an election by the Appellate Authority appointed under section 53 of the National and Provincial Assemblies (Elections) Act, 1964, was a decision on merits of dispute within the jurisdiction of the Appellate Authority. It was further held that the order of Judicial Tribunal acting with jurisdiction cannot be interfered with even error committed in exercise of jurisdiction.

Muhammad Hussain Munir and others v. Sikandar and others reported in P L D 1974 S C 139, in which, the Honourable Supreme Court while construing the provisions of Article 98 of late Constitution of 1962 and Article 199 of the Constitution of Pakistan of 1973, observed that the expression "without lawful authority and of no legal effect" employed in the above Articles are expression of art and refers to jurisdictional defects as distinguished from a mere erroneous decision, whether on question of fact or even of law. It was further observed that it is well‑settled that where a Court or Tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity, mainly because it came to an erroneous decision on a question of fact or even of law.

(iv) Shaikh Haider v. Government of Sind and 4 others, reported in PLD 1982 Kar. 336. In the above case, it was held by a D.B. of the Sind High Court that finding of fact recorded by three competent Tribunals supported by evidence on record, cannot be interfered with in a constitutional petition.

4. In the above Quetta case of 1978, relied upon by Mr. Aslam Chishti, though the observation to the effect that sufficiency of the evidence can be examined by the High Court in exercise of writ jurisdiction has been made, but this was not a point in dispute or

controversy. The High Court has come to the conclusion that certain important document was not taken into consideration by the authority, of which, the order was impugned. At the most, the above observation is in the form of an obiter and is not binding on this Division Bench, particularly, in presence of the judgments of the Honourable Supreme Court contrary to the above observation. Similarly, in the above reported judgment given in Constitutional Petition No. 108 of 1984 on 10th November, 1985, in para. 11, it was held that there was no material before the Election Tribunal to record the finding on the question of corrupt practices. The above case, therefore, have no application to the present case. The proposition of law propounded in the case reported in 1981 S C M R 758 referred to by Mr. Aslam Chishti, does not need any citation. It cannot be denied that the High Court in writ jurisdiction can examine the material which was before the forum which passed the impugned order. It has not been held by the Honourable Supreme Court in the above case that insufficiency of evidence can be a ground for interference with a finding of fact recorded by a competent Court or Tribunal. The cases cited by Mr. Basharatullah referred to herein above on all fours are applicable to the present case. The High Court in exercise of Constitutional writ jurisdiction cannot interfere with al finding of fact recorded by a competent Court or Tribunal mainly on the ground that it might have taken a different view on the basis of the same material. In order to justify interference with a finding of fact in exercise of Constitutional writ jurisdiction, it is to be shown that the finding of fact is either based on no evidence or is contrary to the evidence on record or is based on misreading of evidence or. that the Court or Tribunal concerned failed to take into consideration the material documents on record, which would have affected its decision. No doubt, for the purpose of ascertaining the above factual position, the High Court will have to appraise the material which was available before the court or Tribunal, of which, the order is in question. It may be pointed out that appraisal of evidence is different from determining the question of sufficiency of evidence.

5. Having dealt with the scope of jurisdiction of this Court as to the interference with a finding of fact, we may examine the material which was available before the learned Election Tribunal. The above material is in the form of ocular and documentary evidence. The ocular evidence from the side of the respondent No. 1 was comprised of his own statement and the testimony of P.W. 1 Lal Muhammad, the Assistant Commissioner, Lower Zhob and of P.W. 2 Juma Muhammad, Nazir of the office of Assistant Commissioner, Lower Zhob. Both the above witnesses have clearly stated on the basis of official record that the petitioner was taken in service as 'Bazgir' in place of his father in 1978 and continued as such upto October, 1983, of which month, he received the salarv on 6th November, 1983. P.H'. 1 stated that the petitioner had performed the duties of Levies during the above period, whereas, P.SV. 2, the Nazir, stated that the petitioner had received the salary for the above period signing the receipts in his presence. Against the above ocular evidence, the petitioner had examined the above Haider Khan, Jamadar of the Levies Station Vala Akram, who has stated that factually the petitioner's father was performing the duties and not the petitioner. However, in his cross‑examination, he admitted the fact that he was brother in law of the petitioner, though he asserted that the petitioner's sister who was married to him had died about 30 years back. His above testimony apart from the fact of being of an interested person, is belied by the documentary evidence on record, inter alia, produced by the above Court witness Muhammad Aslam, the Superin tendent in the office of Political Agent, Zhob. Reference may be made to Exh. P/E (equivalent to Annexure Q to the petition), which is an application, dated 14th October, 1977 from the petitioner's father to the Assistant Commissioner requesting him to take the petitioner in his place from 15th October, 1977 on the ground that he was ill, whereon, the Assistant Commissioner passed the following order marking to the Nazir, which reads as follows:‑

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It may also be pertinent to refer to Exh.P.H. (equivalent to Annexure 'T' to the petition) which is an application, dated 26th March, 1981 filed by the petitioner for the change of his official rifle. In addition to that, there are. two more applications produced by the above witness, namely, Exhs.P.F. and P.G. (equivalent to Annexures 'R' and 'S' to the petition respectively) complaining about the mala fide on the part of the Levies Jamadar in reporting about inefficiency on the part of the petitioner, Apart from the above documents, we have also on record of the trial Court Annexure P/A, a certificate, dated 3rd October, 1983 issued by the P.VJ. 2 certifying that the petitioner had received the salary since 1978 upto July, 1983 in the name of his father Saleh Muhammad. Reference may also be made to Exhs. P.B., P.C., P.D. and P.E. (Annexures E, E‑1, F and F‑1 to the petition respectively), which indicate that the petitioner's father had furnished fresh surety bonds on 30th July, 1983. It may be pertinent to quote the caption of the above surety bonds, which read as follows:‑'

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It was vehemently urged by Mr. Chishti that the above bonds were not furnished by the petitioner, but were furnished by his father, which indicates that his father was in service Take above surety bonds Free to be read with the resignation, which was submitted by the petitioner on 21st July, 1983, the document marked as Exh. 'S' (equivalent to Annexure 'G' to the petition) whereby, he requested that his resignation acting as 'Bazgir' may be accepted with effect from 21st July, 1983. It may be observed that when he was confronted with this resignation, he had denied. However, Mr. Chishti has made alternative submission on the basis of the above resignation. The above fresh surety bonds furnished by the petitioner's father he lie the petitioner's statement that he had not submitted the above resignation.

6. Against the above overwhelming documentary evidence produced by the respondent No. 1 and brought through the Court witness, the petitioner had hardly produced any worth‑mentioning documentary evidence. He has attempted to produce before this Court first time inter alia, an alleged copy from the Political Agent's letter, dated 22nd August, 1959, whereby the request of one Malik Hajid Murad Khan Kibzai to substitute his son in his place in the Levies service was declined on the ground that under Rule No. (B)(a) of the Levies instructions the original service holder of a Levies Service had no right to transfer his service to any of his relatives during his life time. Apart from the fact that this document was not filed before the learned Election Tribunal and, therefore, it cannot be looked into it may be W observed that even on merits it does not affect the result of the present case for more than one reasons, firstly, that this application did not relate to the petitioner's father, secondly, the petitioner's father made the request for substitution in 1978, whereas, the above application is of 1959 and thirdly, that though under the instructions all person cannot claim substitution as a matter of right, but it is permissible, which is evident from the instructions Nos. 12 and 14 of the instructions. In the absence of .any statutory rules, the above instructions can be looked into. This was, in fact, contended by Mr. Aslam Chishti, learned counsel for the petitioner, who has placed reliance upon the case of (i) Pakistan v . Sheikh Abdul Hamid, reported in PLD 1961 S C 105 and (ii) Khan Faizullah Khan v. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another, reported in PLD 1974 S C 291. In the former case, distinction between the administrative instructions and the statutury rules has been high lighted, whereas, in the latter case, it was held that even instructions contained in memorandum issued by appropriate Government could be regarded as being in the nature of statutory rules, provided they are expressed with precision and yet possessed generality so as to be capable of application to large number of cases.

It may also be pertinent to observe that the status of a 'Bazgir' has been dealt with in an unreported judgment given by a Division Bench of this Court on 21st April, 1980 in Constitutional Petition No. 109 of 1978 (Ishaqzai son of Sher Muhammad v. The Deputy Commissioner and the Controlling Authority, Pishin and another). In this regard, it will be advantageous to reproduce paras. 4 and 5 of the same, which read as follows:‑

"a. The contract, if any, between the Bazgir and original service holder is not available with us. The instructions governing tile service matters of levies personnel properly take notice of a Bazgir. Chapter 5 of these instructions, which consists of paras. 12 to 18, relate to nomination i.e.; appointment of Bazgirs by original service holders. These paras. recognize the practice of nomination. Pars. 12 clearly declares that the practice has obvious disadvantages from administrative point of view but observes that it is not politic, in view of the Constitution of Baluchistan, to do away with such practice. Para. 13 says that nomination should not ordinarily be changed at intervals. Para. 14 reserves a veto with the Political Agent (now Deputy Commissioner) to reject such nomination on the grounds of bad character, physique and the like. This para, however, goes on to declare that once a levies man has been appointed (on nomination), 'his removal from service will entirely be a matter of Political Agent's decision.'

5. These provisions clearly indicate that the appointment of a Bazgir, once made, brings him at par with the ordinary levies men. Although he is a temporary employee but he is subject to all disciplinary provisions relating to his service. There being no contract between him and the Government the benefit of exception to (ii) cannot be claimed in this case.

In this view of the matter that a Bazgir is as much civil servant as a levies man is, this Court has no jurisdiction in view of the r bar contained in Article 212 of the Constitution, read with section 3(2) of Baluchistan Service Tribunal's Act, 1974. The petition is, therefore, dismissed with no orders as to costs. The petitioner may, if so advised, approach the Services Tribunal for the redress of his grievances."

7. It may also be stated that Levies Service is an irregular service, and their duties are alike Police, but the personnel of the same have been held by the High Court repeatedly as being 'Civil Servant' for al the purposes including for disciplinary action under the Efficiency and Discipline Rules. In this regard, reference may be made to the cases of (i) Wali Muhammad v. The Commissioner, Quetta Division, Quetta, reported in PLD 1970 Quetta, 76 and (ii) Baz Muhammad v. Commissioner, Quetta Division, Quetta and another, reported in P L D 1979 Quetta 113. In the former case, a D.B. of the erstwhile High Court of West Pakistan at Quetta held that a Risaldar in Levies is an employee of the Provincial Government and was entitled to the protection under Articles 177 and 178 of the late Constitution of Pakistan 1962. In the latter case, another Division Bench of the West Pakistan High Court at Quetta took the view that the Levies Sowars in Province of Baluchistan fall within the definition of services of Pakistan. .

8. It was then contended by Mr. Aslam Chishti, learned counsel for the petitioner that the respondent No. 1 has failed to produce the best evidence, namely, the appointment letter which could have been produced and, therefore, the evidence brought on record in the absence of appointment letter is not reliable. It is true that the appointment letter has not been brought on record, but the petitioner father's application for substitution of the petitioner in his place and the order passed thereon, has been brought on record, which has already been referred to hereinabove, besides, many other documents which have already been discussed hereinabove. The Tribunal could on the basis of the evidence on record conclude that factually the petitioner was in the service of the Levies. It may be pointed out that the Assistant Commissioner is the Incharge of the Levies in the Sub‑Division and, therefore, he was the person who could depose, whether the petitioner was in service.

9. It was also vehemently urged by Mr. Aslam Chishti, learned counsel for the petitioner that if the above application of the petitioner's father, dated 14th October, 1977 and the order passed thereon by the Assistant Commissioner, Lower Zhob, Exh. P.E. (equivalent to Annexure 'Q' to the petition) are to be taken as the basis for the substitution of the petitioner in the Levies service in place of his father, the learned Election Tribunal committed error in not holding that under the Instructions, a Political Agent is competent to allow substitution and not an Assistant Commissioner. Suffice to observe that the petitioner after having acted as a substitute for his father for nearly five years and after having received the salary for such a long period, is estopped from urging that he was not appointed by the competent authority.

We are also inclined to hold that the learned Election Tribunal could not have examined the question of the validity of the petitioner's appointment as the same would have been foreign to the scope of an election petition. What was to be seen was, whether factually the petitioner had acted as a whole‑time salaried official of the Provincial Government defect. In the alternative it was submitted by Mr. Aslam Chishti that the petitioner had factually submitted resignation on 21st July, 1983, which was prior to the last date for the filing of nomination papers, which was 24th July, 1983. The above contention is devoid of any force as, admittedly, as per statement of P.W. 1 Lal Muhammad, the Assistant Commissioner, Lower Zhob, the petitioner had received the salary upto October, 1983 on 6th November, 1983. This is also supported by the Nazir of the office of the Assistant Commissioner, Lower Zhob, who was the disbursing officer. It is, therefore, evident that the petitioner remained as 'Bazgir' even after the filing of the nomination papers and even after the declaration of the results.

10. This lead us to the last submission of Mr. Aslam Chishti, learned counsel for the petitioner that the provisions relating to disqualification are to be construed strictly and the construction thereon should be placed as to advance the right of franchise. In this regard, it may be observed that it is equally well‑settled principle of interpretation that the intent of the legislature manifested should be given effect. In the present case, the object of providing clause (d) to section 21 of the Ordinance seems to be to discourage the Government functionaries from indulging in public politics and, therefore; disqualification has been provided. The above intent/object will be defeated if the persons, who have acted as whole‑time salaried official of a Provincial Government ' are excluded from the disqualification on the ground that the strict interpretation of the above clause would result in rendering certain persons disqualified from contesting the elections.

We are, therefore, inclined to take the view that the construction of the above clause (d) to section 21 of the Ordinance is to be placed in such a way which will advance the object and would suppress the mischief, for which, it has been provided for. The above construction, no doubt, will render the petitioner as a disqualified person in terms of the above clause as on the day of filing of the nomination papers, he was disqualified from being elected as a Member in terms of clause (b) of rule 70 of the Baluchistan Local Government (Elections) Rules, 1983 read with the above clause (d) to section 21 of the Ordinance.

11. Before parting with the above discussion, it may also be observed that Mr. Basharatullah, learned counsel for the respondent No. 1 has also referred to the case of Mukhlesur Rahman v . The Sub‑Divisional Officer, Narayanganj and another, reported in P L D 1962 Dacca 497, in which, a D.B. of the Dacca High Court has dilated upon the expressions 'whole‑time' and 'salaried' employed in clause 2(d), part II of the Second Schedule read with Article 25(2)(a) of the Basic Democracies Order, 1959. In this regard, the following observations were made:‑

"Learned Advocate has argued that, being a Government servant under suspension, he was neither a 'whole‑time' nor a 'part‑time' official in the service of the Government, in the sense that, he was, in fact, doing no work of any kind whatsoever. Furthermore, he has reinforced his argument by saying that the petitioner did not draw his salary, but a 'subsistence grant' during the period of his suspension. '1 do not think that the expression, if he is a whole‑time salaried official in the service of Government, is amenable to such a narrow interpretation as has been sought to be done by the learned Advocate for the petitioner. The words 'whole‑time' The words 'whole‑time' and 'salaried' are adjec tives used as attributes to qualify the noun 'official' and the phrase as quoted above must mean an official, the characteristic of whose office is, that it is 'salaried' as opposed to the adjective 'honorary'. Furthermore, the other attribute of the official position must be that it is a 'whole‑time' as opposed to 'part‑time' appoint ment. One has to ask: Does the office carry a salary or is it honorary Is it whole‑time or part‑time The expression whole-time' denotes daily engagement or employment during the routine or normal office‑hours for the entire day. A temporary or periodical cessation of work or pay in a continuing service is of no consequence in this behalf. The expressions 'salaried' and 'whole‑time' are well‑understood terms. If the nature of his office is, that it is a 'whole‑time' job in the aforesaid sense, then he satisfied the qualification of a whole‑time holder of an office and it would make no difference if he, in fact, during a particular N interval was doing no work, being either on leave or for some other reason, although he continues in a service which involves a whole‑time appointment. Secondly, if he is a recipient of a salary as normal condition of his office, he comes within the mischief of the aforesaid definition and will be described as a salaried official even during the period when he is on leave without pay or when he is under 'suspension' and, therefore, doing no work."

It may be observed that the petitioner falls within the compass of the above quoted observation of the Dacca High Court as he has acted' 'whole‑time' as a 'Bazgir' in the Levies service, performed duties as such and received the salary in respect thereof for a period of about five years..

12. For the aforesaid reasons, the petition has no merits and, therefore, it is dismissed with no orders as to cost.

M.Y.H. Petition dismissed.

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