' QAZI FAEZ ISA, C.J.--- Through this common judgment Constitutional petitions numbers (S)50 and 55 of 2014 are being decided as both pertain to Mr. Hairbyar Domki's right to contest the Local Government Elections on the special reserved seats of 'peasant' and 'social worker', and in both Mr. Muhammad Anwar Khan has opposed the candidature of Mr. Hairbyar Domki (the said gentlemen are hereinafter referred to as "Mr. Domki" and "Mr. Khan").
' C. P. No, (S) 50 of 2014:
2. Mr. Domki filed his nomination papers under sub-rule (3) of rule 50 of the Balochistan Local Government (Election) Rules, 2013 ("the Rules") seeking to contest the elections on the seat reserved for peasants, which was accepted by the Returning Officer. Against the Returning Officer's acceptance of Mr. Domki's papers Mr. Khan filed an appeal under rule 17 of the Rules before the appellate authority, being the District and Sessions Judge, Sibi, contending that Mr. Domki was not a peasant. The appeal was accepted; the operative part of the order is reproduced hereunder: "I have also gone through the material available with the assistance of learned counsel for parties.
Admittedly the respondent No,1 is son of Sardar Chakkar, Khan Domki, so obviously he does not fall within definition of peasant, the certificate issued by Tehsildar, Lehri smacks mala fide on his part.
Hence the certificate of Tehsildar is discarded. It does not appeal to a prudent mind that being a member of Sardar family the respondent No,1 owns only three Acres of land in Lehri District. Having regard to above mentioned factors, the appeal is accepted and the order dated 6th May, 2014 passed by R.O., Sibi is hereby set aside."
' The aforesaid order dated 10th May, 2014 has been assailed in C.P. No,(S)50 of 2014, filed by Mr. Khan.
3. Mr. Adnan Kasi, the learned counsel for Mr. Domki, placed reliance upon the certificate issued by the Tehsildar Lehri and also filed in court property extract showing that the petitioner had purchased land admeasuring 14 rods and 16 poles (3 acres, 2 rods and 16 poles) on 17th June, 2010.
The learned counsel stated that the said land was the entire agricultural property owned by the petitioner and as such he was qualified to contest elections on the reserved seat of 'peasant' and relied upon the definition of peasant contained in section 2(1)(1ii) of the Balochistan Local Government Act, 2010 ("the Act") as under:- " 'Peasant' means a person who is a landless tenant or who for a continuous period of five years preceding the year in which election is held is or has been the owner of not more than five acres of land and engages himself personally in cultivation for his maintenance."
' He also referred to the case of Shahid Khan v Senior Civil Judge/Returning Officer (2002 MLD 1945) wherein an advocate had sought to contest on the reserved seat of peasants.
4. Mr. Adnan Kasi further stated that the order dated 10th May, 2014 states, that the petitioner is the son of a Sardar, whereas the Sardari system was abolished by the System of Sardari (Abolition)
Act, 1976 and as such reference ought not to have been made to the petitioner being the son of a Sardar and in this regard reliance was placed upon a judgment of this court, Asmatullah Khan v Government of Balochistan (PLD 2013 Balochistan 13). We were informed that Mr. Domki did not receive any property upon the death of his father and that the properties were inherited by the other brothers of the petitioner and he only has a share in the ancestral home known as 'Domki House' situated in Sibi.
5. That the Act repealed the Balochistan Local Government Ordinance, 2001, which had in turn repealed the Balochistan Local Government Ordinance, 1980. Both the Ordinances had provisions for reserved seats, amongst others for peasants and 'peasant' was defined as under:--- ' In section 3(1-A) (39) of the Balochistan Local Government Ordinance, 1980:--- "'peasant' means a person who is a landless tenant or who for a continuous period of five years proceeding the year in which the election is held is or has been the owner of not more than five acres of land and engages himself personally in cultivation for his maintenance."
' In section 2(xxvi) of the Balochistan Local Government Ordinance, 2001:--- 'peasant' means a person who is a landless farm worker or, one who during the period of five years preceding the year in which election is held, has been the owner of not more than five acres of land and depends directly on it for subsistence living."
' As the definition of 'peasant' in the Act is similar to those in the earlier Ordinances the precedents under the Ordinances can be usefully referred to.
6. In the case of Sarfraz v. Allah Dad (1992 MLD 1959) the petitioner sought to contest local government elections on the reserved seat of peasant and had assailed the order of the Returning Officer rejecting his candidature. Since the facts of that case are somewhat similar to the present one it would be useful to reproduce the order of the Returning Officer passed therein: "It is an admitted position that the appellant is son of late Sardar Moheem Khan Umrani and is brother of Mir Fateh Ali Umrani, the present Sardar of Umrani tribe who is also an M.P.A. It is beyond all proportions to treat him peasant for the purpose."
' A Divisional Bench of this court upheld the order of the Returning Officer and observed that:--- "It appears that ethos and object of law for providing separate seats was to ensure induction of deprived class and people of special interest who on account of their social handicaps might face serious ordeals in getting elected as members of Local Bodies. It is obligatory for the Court to strike balance and protect rights of oppressed classes, to save the system from being eroded. We feel that Legislature desired preservation of people from special interest for effective proper and broad based administration of the affairs of Local Bodies" (page 1961A).
' In another judgment of this court, Naseer Ahmed v. Deputy Commissioner-cum-Returning Officer (2006 MLD 715), a petition was filed against the acceptance of the nomination papers, whereby the respondent was allowed to contest being, 'a Sardar Khel' (or of the chieftain's family) of Shahwani tribe and his brother was an ex-M.P.A. From Bolan District. This Court allowed the petition and declared that the respondent No,3 was not eligible to contest the election of the reserved 'peasant' seat.
' In the case of Shahid Mehmood Khan v Returning Officer (2003 CLC 176) a practicing lawyer sought to contest on the reserved seat of peasant but was not allowed to do so as he was earning his livelihood as a lawyer; the decision in this case and in the above mentioned case of Shahid Khan, both of which are decisions of learned single Judge of the Lahore High Court, appear to be contradictory. However, in the Shahid Khan's case the learned Judge did not decide the issue whether an advocate could be a 'peasant' but left it to for the aggrieved party to agitate it in a post-election dispute before the election tribunal.
' The object of the creation of special reserved seats has been succinctly set out by Mr. Justice Mian Saqib Nisar in the case of Majeed Ahmad v District Returning Officer (PLD 2006 Lahore 43) as under:--- "The object behind the creation of special seats of peasants/ workers is to give representation to a special class of people, who otherwise on account of certain rigours of contesting the general election, may not be able to seek representation and thus stands precluded from their participation in the affairs of the local governance at the grass root level. And, if a person who does not squarely fall within the class of Peasant/Worker, rather is an established landlord or the businessm an, etc. Is permitted to contest the election in the guise and garb of special class, it deprives and usurps the rights of the deserving people. This usurpation by disqualified persons undoubtedly is not permissible under the law, thus if they are allowed to contest the election on these special seats, it shall tantamount to be a fraud upon the statute, which under no circumstances can be allowed." (page 47C).
' The local government laws that have been enacted from time to time provide for reserved seats for women, peasants and workers, probably because the Article 32 of the Constitution of Pakistan requires such representation. Article 32 is reproduced hereunder:- "32. The State shall encourage Local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women." [emphasis added] ' Mr. Adnan Kasi, the learned counsel for the petitioner, is undoubtedly correct in stating that the sardari system has been abolished by the System of Sardari (Abolition) Act, 1976 and that no one has, nor can claim, any benefit from being a sardar or a former sardar. However, it is an admitted position that the father of the petitioner, prior to the enactment of this law was recognized as the sardar of the Domki Tribe and precedents of this court have excluded such persons from the definition of peasants. The petitioner is also admittedly the owner or co-owner of 'Domki House' in the heart of Sibi Town. Admittedly, Mr. Domki had earlier served as Nazim of Sibi for the period 2001 to peasants. We were also informed that Mr. Domki is a graduate and a brother of his resides in London and another (Mr. Sarfraz Domki) is a Member of the Provincial Assembly and Provincial Minister. The lifestyle of Mr. Domki, as depicted in the photographs attached 2005 and as a Nazim of Tehsil Lehri from 2005 to 2008, having contested elections on general seats and not on the reserved seats of with C.P. No,(5)55 of 2014, which were not disputed, show him with shotguns and rifles in hand with dead wild boar, crocodile, houbara bustards and partridges, and he is the centre of attention, and importance, in these photographs of the hunting parties, which also show four- wheel drive vehicles, presumably owned by him. Surely, in view of these indisputable facts Mr. Domki cannot by any stretch of the imagination be categorized as a peasant.
9. The garb of downtrodden peasants, who till the land to eke out a bare living, cannot be donned to secure an advantage, and one which is exclusively meant for the benefit of peasants. The reserved seats, including those for peasants, are meant to secure the representation of downtrodden and deprived segments of society in the system of government at the lowest tier, to have their voices heard, to encourage them to participate in local matters that affect them and to partly alleviate the deprivation faced by them. If persons like the petitioner are also able to contest elections on seats reserved for peasants the right of peasants will be violated and the letter and the spirit of the Act and the Constitution violated. The definition of 'peasant' contained in the Act means a person who is either a landless tenant or one who owns not more than five acres of land and engages "himself personally in cultivation for his maintenance". The petitioner has not even averred that he, "engages himself personally in cultivation for his maintenance" therefore, even if it be accepted that he does not own more than five acres of agricultural land, it does not automatically follow that he is a peasant; he must also demonstrate that he himself cultivates the land personally for his maintenance. Under the circumstances we do not find anything wrong in the order dated 10th May, 2014 that requires our interference exercising powers under Article 199 of the Constitution. Accordingly, C.P. No,(S)50 of 2014 is dismissed. We are constrained to impose costs in the sum of ten thousand rupees since an advantage, not otherwise available to the petitioner, was blatantly sought.
C. P. No,(S)55 of 2014:
10. That Mr. Domki also filed his nomination papers to contest on the reserved seat of 'social worker' and his nomination papers were accepted by the Returning Officer. An appeal was filed by Mr. Khan but the same was dismissed vide order dated 10th May, 2014 by the appellate authority, being District Judge, Sibi. It is against the orders of the Returning Officer and the Appellate Authority that C. P. No,(S)55 of 2014 has been filed by Mr. Khan. The category of 'social worker' was inserted in the Local Government laws for the first time by the 13alochistan Local Government (Amendment) Act, 2014 (published in the Balochistan Gazette Extra Ordinary of 27th January, 2014).
11. Mr. Abdul Basit, the learned counsel for Mr. Khan, stated that Mr. Domki (respondent No,1 in C.P.
No,(S)55 of 2014) did not come within the definition of 'social worker' and the documents submitted by Mr. Domki were forged. He further stated that respondent No,1 was not "of good character" which is a requirement for candidates under section 24(1)(d) of the Act, reproduced hereunder:-- "24.(1) A person shall qualify to be elected or to hold an elective office or membership of a local council, if he---
(d) is of good character and is not commonly known as one who violates Islamic injunctions."
' It was contended that Mr. Domki is not of good character and violates Islamic Injunctions as he is openly flouting the wildlife laws and killing species that are prohibited to be killed, including houbara bustards. In this regard he referred to the photographs attached with the petition showing Mr. Domki gun in hand with houbara bustards, wild boar, crocodile and partridges shot by him. He concluded by stating that Mr. Domki's lifestyle as depicted in the photographs is not one of a social worker or one that displays good character.
12. Mr. Adnan Kasi, the learned counsel for Mr. Domki, opposed the petition and stated that there are two concurrent findings in favour of Mr. Domki with regard to his status of social worker and no case has been made out by the petitioner to show that he is not a social worker. He also objected to the photographs and stated that Mr. Domki's privacy Had violated by the same.
13. That we need not go into the merits of this petition as we have already held vide judgment dated 23rd May, 2014 in the case of Attaullah v. Government of Balochistan (C.P. No,86 of 2014) that social workers are not a tangible class and one that requires to be encouraged or protected as they are not downtrodden, impoverished, alienated or discriminated and by carving them out from the class of workers and peasants was discriminatory, illegal and violated under Article 25 read with Article 32 of the Constitution, consequently, the. Balochistan Local Government (Amendment)
Act, 2014 was declared to be void and struck down as it was repugnant to the Constitution of Pakistan. In the same petition we had also struck down the amendments made in the Balochistan Local Government (Election) Rules, 2013 vide notification dated 4th February 2014. Therefore, as the category of 'social worker' no longer exists Mr. Domki cannot contest on such seat; with these observations C.P. No,(S)55 of 2014 is disposed of but with no order as to costs.