Amanullah V. Secretary Religious Affairs and Inter-faith Harmony Department, Balochistan and 2 others,

2015 C L C 1552

[Balochistan]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

AMANULLAH ----Petitioner

versus

SECRETARY RELIGIOUS AFFAIRS AND INTER -FAITH HARMONY DEPARTMENT, BALOCHISTAN and 2 others ----Respondents

C.P. No.768 of 2012, decided on 7th July, 2015.

Balochistan Zakat and Ushr Act (I of 2012) ---

----S. 20(3) ---Constitution of Pakistan, Art.199 ---Constitutional jurisdiction of High Court --- Scope ---Chairman District Zakat Committee, appointment of ---Matter b eing a factual controversy would require a complete regular probe which in proceedings under Art.199 of the Constitution was not possible ---Exercise of constitutional jurisdiction was subject to non - availability of other adequate remedy ---Balochistan Zakat and Ushr Act, 2012 had provided a mechanism for removal of Chairman or Member District Zakat Committee ---Petitioner should have utilized that forum at the first instance ---Matter was sent to the Provincial Council for appropriate action within a specified period ---Constitutional petition was disposed of accordingly.

Abdul Khair Achakzai for Petitioner.

Baz Muhammad Kakar and Shai Haq Baloch, A.A. -G. for Respondents.

Date of hearing: 27th May, 2015.

JUDGMENT

MUHAMMAD NOOR MESKANZAI, C.J. --- The petitioner is aggrieved of Notification dated 15th August, 2012 issued by the respondent No.1 whereby the latter was appointed as Chairman District Zakat Committee Pishin. It is also the case of petitioner that the respondent No.2 was not qualified to have been appointed and cannot remain on the chair on account of disqualification attached to respondent No.2. According to petitioner after declaring the appointment of respondent No.2 as Chairman, District Zakat Committee illegal and void ab initio unde r subsection (4) of section 14 and subsection (3) (a) (iii) of section 20 of Balochistan Zakat and Ushr Act, 2012 the respondent No.1 be directed to appoint the petitioner as Chairman District Zakat Committee, Pishin.

2 Learned counsel for the petitioner submitted that the respondent No.1 appointed the respondent No.2 on the basis of favoritism and nepotism. Learned counsel for the petitioner maintained that the respondent No.2 was not qualified to be appointed as Chairman, District Zakat Committee, Pishi n for the reasons, firstly; he had obtained dual CNICs one from District Pishin and the other from Quetta. Secondly, he has changed his age in CNIC and there is great difference between the ages mentioned in the respective CNICs. Thirdly, the age of respon dent No.2 is not reconcilable in various electoral lists whereby he has simultaneously registered himself in four different constituencies. Fourthly, the fine upon him has been imposed by the NADRA, as result whereof he has paid fine of Rs.10,000. So all t hese facts on the part of the respondent No.2 fall within the definition of moral turpitude, as such disentitle him to be appointed or retain the chair of Chairman Zakat Committee, District Pishin.

Mr. Baz Muhammad Kakar, learned counsel for the private respondents vehemently opposed the submissions by maintaining that obtaining of dual CNICs is not a disqualification within the meaning of section 14(4) of the Balochistan Zakat and Ushr Act, 2012. He stated that so far registration of name of respondent No.2 in various electoral lists is concerned, it is a factual controversy which requires strict probe and same cannot be undertaken by this Court while exercising constitutional jurisdiction. It was maintained that so far as the change of age is concerned, that was a clerical mistake and done in accordance with NADRA Act. He finally submitted that this petition is not competent because the petitioners have alternate and efficacious remedy within the meaning of section 20(3) the Balochistan Zakat and Ushr Ac t, 2012 to supplement his argument. He made a reference to the section 20(3) of the Balochistan Zakat and Ushr Act, 2012.

3. The learned Assistant Advocate -General adopted the arguments of Mr. Baz Muhammad Kakar, learned counsel for the petitioners and s tated that the petition is not maintainable on account of availability of alternate remedy.

4. We have heard the learned counsel for the parties and gone through the available record. The perusal of record reveals that admittedly the respondent No.2 has obtained two CNICs and he also changed his date of birth in the CNICs. Similarly, the electoral list provided contained the name of respondent No.2 in various electoral lists, however, it is not ascertainable as to whether the lists so filed are exclusive and final or have been changed at a subsequent stage. Similarly, there is no evidence as to whether the respondent No.2 has cast his vote in all such constituencies simultaneously or otherwise, so this limb of the matter being a factual controversy require s a complete regular probe which in the present proceedings is not possible. Moreover, the Balochistan Zakat and Ushr Act, 2012 itself prescribes qualification and disqualification for a person sought to be appointed as member or Chairman Zakat Committee. For the sake of convenience section 20(3) of the Act is reproduced: ---

"(3) If Provincial Council, in the case of District Committee, and the District Committee, in the case of Local Committee is of the opinion that the Chairman or a member of a Committe e constituted under this Act, ----

(a) was at the time of his selection, election or nomination;

(i) not a pious Muslim, ---

(ii) not an adult;

(iii) not a resident of the area within the jurisdiction of the Committee;

(iv) an un -discharged insolve nt;

(v) not of sound mind;

(vi) engaged in political Activity, or

(b) has been, during the period of three years preceding the date of his Selection, election of nomination:

(i) ordered to execute a bond under section 108, 109 or 110 of the Code of Criminal Procedure, 1898 (Act V of 1898); or

(ii) convicted for an offence involving moral turpitude; or

(iii) declared Goonda under the law relating to the control of Goondas;

(c) has, after his selection, election or nomination, incurred any of the disqualification referred to in sub -clause (i), (iii), (iv), (v), or (vi) of clause (a), or sub -clause (i), (ii), or (iii) of clause (b);

(d) has, without reasonable excuse, absented himsel f from three consecutive meetings of the Committee;

(e) has been guilty of abuse of power or of misconduct in the discharge of his duties as Chairman or member, or been responsible for any loss or misapplication, misappropriation, or misuse of any money or property of the Committee; or

(f) has become physically disabled or unable on any count from performing functions as Chairman or member; the Provincial Council in the case of District Committee, and the District Committee, in the case of Local Committ ee may, by a resolution, remove such Chairman or member from office."

The powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 are exercisable subject to the Constitution and non -availability of other adequate remedy. Since the Balochistan Zakat and Ushr Act, 2012 provides a mechanism for removal of Chairman or Member of District Zakat Committee and in our considered opinion at first instance the petitioner should have utilized that forum provided by the relevant law itself, hence, we deem it appropriate to send this matter to the Provincial Council as envisaged under section 20(3) of the Balochistan Zakat and Ushr Act, 2012 for appropriate action in the matter preferably within a period of one month. Office is directed to se nd a copy of this order along with copy of petition to the Provincial Council. Thus, the petition stands disposed off.

ZC/81/Bal. Petition dispose of.