1. ' NASIM HASAN SHAH, J.--This judgment will dispose of the above-noted two appeals as they are directed against one and the same judgment dated 2340-1990 passed by the Lahore High Court in Writ Petitions Nos.7671/90 and 7871 of 1990.
2. ' The facts which form the background to these appeals are that the respondent Mr. M.P. Bhandara, who is a Parsi by religion, was a candidate for a seat for the National Assembly reserved for "Sikh, Budhist and Parsi Communities and other non-Muslims" under Article 51(2-A) of the Constitution of the Islamic Republic of Pakistan, 1973. The constituency for this seat extends over the whole of Pakistan. List of voters of this constituency was issued, which list included 191 votes of persons who claim to be Sansis by religion. They were treated as non-Muslims. Their names were, therefore, shown in the list of voters who were to vote for a candidate contesting election for a seat in the National Assembly reserved for "Sikh, Budhist and Paris Communities and other non-Muslims" under Article 51(2-A) of the 1973 Constitution. In the same Article persons/ voters belonging to the scheduled castes have been bracketed with Hindus for the purpose of elections to the reserved seats. According to the Election Commission, this was so because Sansis have nowhere been defined or described as persons belonging to the scheduled caste under the 1973 Constitution, under the provisions of which elections are held in Pakistan. It is explained that in the absence of any definition of schedule caste describing Sansis as persons belonging to the scheduled caste, they cannot be treated as persons belonging to the scheduled caste. They will, therefore, have to be treated as non-Muslims and as such they have to be included in the list of voters who are supposed to vote for a candidate contesting election for a seat for the National Assembly reserved for "Sikh, Budhist and Parsi Communities and other non-Muslims".
3. ' It is also the submission of the Election Commission that besides Mr. M.P. Bhandara, other persons were also contesting for this seat. None except Mr. M.P. Bhandara objected to the inclusion of the Sansis in the list of voters reserved for the above-stated seat. Sansis also did not raise any objection. The Hindu candidates also raised no. Objection to the lists issued and made no demand that their names be included in their list. However, Mr. Bhandara alone felt aggrieved and filed two petitions; one on 14-10-1990 and the other on 17-10-1990 before the Election Commission of Pakistan praying that names of Sansis be deleted from the list of voters for the seat reserved for "Sikh, Budhist and Parsi communities and other non-Muslims" on the ground that Sansis being persons belonging to the scheduled caste are required to be included in the list of voters for the Constituency and for seats reserved for "Hindus and persons belonging to the scheduled caste".
4. The petitions filed by Mr. P.M. Bhandara, the respondent, were dismissed by the Election Commission of Pakistan vide its order dated 21-01-1990 observing:- "This also applies (holding of enquiry to determine factual plea) to the request of grouping Sansi voters with Hindu voters as no time is now available to provide hearing to the candidates and the voters concerned."
5. ' Mr. Bhandara feeling dissatisfied with the order of the Election Commission filed Writ Petition No, 7671 of 1990 in the Lahore High Court, Lahore on 22-10-1990 which petition came up for hearing the very next day i,e, on 23-10-1990 when after hearing the counsel for the writ petitioner the petition was admitted to full hearing and notice was issued for same day at 11-30 a.m. When Mr. Faqir Muhammad Khokhar, Deputy Attorney-General for Pakistan appeared and prayed for some time for obtaining instructions. The case was then ordered to be heard at 1-00 p.m. The same day. After 1-00 p.m. The case was heard and the writ petition was allowed with a direction that Sansis be grouped with Hindus in the Electoral Rolls.
6. ' According to the High Court Sansis were members of the scheduled caste and that their names were wrongly included in the voters list of Sikhs, Budhists and Parsis etc. And the Election Commission was directed to take necessary steps to rectify the mistakes and group the Sansis in the Electoral Rolls in which they fall appropriately under Article 51(2-A) of the Constitutiton. The writ petition was accepted accordingly.
7. ' Feeling aggrieved by the judgment of the High Court, the Election Commission of Pakistan has filed Civil Appeal No, 38 of. 1991; while Sooba, Manzoora, Manga and Yezdiar H. Kaikobad have filed Civil Appeal No, 39 of 1991 also seeking reversal of the above judgment of the High Court.
8. ' On behalf of the Election Commission of Pakistan it is submitted that writ petition filed by M.P.
9. Bhandara was, in fact, directed against Sansis, hence it was essential to implead them as a party to the writ petition. It is further submitted that before any order taking away their right to vote and contest for the seat reserved for "Sikh, Budhist and Parsi Communities and other non Muslims" could be passed, it was essential to afford them a hearing. It is also contended that Sansis have been found to belong to the scheduled castes without ascertaining their point of view on this vital question which was not possible in law.
10. ' In Civil Appeal No, 39 of 1991 while appellants Nos. 1 to 3 (Sooba, Manzoora and Manga) complain that they have been deprived without even hearing them of their right to vote in the Constituency reserved for "Sikh, Budhist, Parsi and other non-Muslims" on the assumption that they belong to the scheduled caste and clubbed them with "Hindus and persons belonging to the scheduled castes"; appellant No, 4 Yezdiar H. Kaikobad complains that this important decision has been made without affording him any opportunity to be heard although he was a contesting candidate for the same seat (reserved for "Sikh, Budhist, Paris and other non-Muslims") for which Mr. M.P. Bhandara was a candidate. He submits that the High Court acted against law in proceeding to hearing the writ petition of Mr. M.P. Bhandara in which all the contesting candidates were not impleaded as parties and in accepting the same without hearing him, to his grave prejudice.
11. ' It appears that Mr. M.P. Bhandara had filed the Writ Petition (W.P. No,761/90) in the Lahore High Court on 22-10-1990, just two days before general elections were scheduled to be held (24-10- 1990). This petition came up for hearing next day (23-10-1990) and was admitted to full hearing after hearing learned counsel for Mr. M.P: Bhandara. In view of the paucity of time, notice was issued to the respondent Election Commission for the same date and Mr. Faqir Muhammad Khokhar, Deputy Attorney-General for Pakistan, appeared before the Court at 11.30 a.m. He prayed for some time for obtaining instructions and the case was then ordered to be heard at 1 p.m.
12. Accordingly, the hearing thereupon took place after 1 p.m. And the writ petition was allowed with the directions that Sansis be grouped with Hindus and the scheduled castes in the electoral roll.
13. Apparently a finding of such grave import could not have been granted unless the Sansis and all the contesting candidates to the seat reserved for the "Sikh, Budhist, Paris, and non-Muslims" were made parties to the proceedings and duly heard.
14. ' We were informed that the Government of India (Scheduled Castes) Order, 1936, was made by the British sovereign in pursuance of the provisions of subsection (1) of section 309 of the Government of India Act, 1935. This order continued to be in force in Pakistan, after independence by virtue of the Indian Independence Act, 1947, and the Pakistan Provisional Constitution Order, 1947, until the 1956- Constitution came into force. Article 204 of the 1956 - Constitution provided that the castes, races and tribes, which, immediately before the Constitution Day, constituted the scheduled castes shall be deemed to be the scheduled castes until Parliament by law otherwise provides. Article 204 of the Constitution of 1956 is in the following terms: "204 The castes, races and tribes, and parts or groups within castes, races and tribes which, immediately before the Constitution Day, constituted the scheduled castes within the meaning of the Fifth Schedule to the Government of India Act, 1935, shall, for the purposes of the Constitution, be deemed to be the scheduled castes until Parliament by law otherwise provides.
15. ' And Articles 205 and 206 lay down as follows: "205 The Federal and Provincial Governments shall promote, with special care, the educational and economic interests of the scheduled castes and backward classes in Pakistan, and shall protect them from social injustice and exploitation."
206. (1) The President may appoint a Commission to investigate the conditions of Scheduled Castes and backward classes in Pakistan and make recommendations as to the steps to be taken and grants to be made by the Federal or Provincial Government to improve their conditions.
(2) The Commission appointed under clause (1) shall investigate the matters referred to them and submit a report to the President with such recommendations as the Commission thinks fit, and copies of the report shall be laid before the National Assembly and the Provincial Assemblies."
16. ' Thus the purpose and object of these provisions was only to bring about the amelioration and uplift in the conditions of the scheduled castes and to protect them against social injustice and exploitation.
17. ' In this connection an Ordinance (Ordinance No, XVI of 1957) which was of course promulgated declaring certain castes of non-Muslims mentioned in the Schedule to that Ordinance as Scheduled Castes. But this classification was only for the purposes of Articles 204 and 205 of the 1956 - Constitution. But even this Ordinance was not converted into an Act and was allowed to lapse at the expiration of the period provided by Article 69 of that Constitution. No law was made thereafter until the 1956 - Constitution was abrogated on the promulagtion of Martial Law in the country in October, 1958.
18. ' It is further to be observed that the Constitution of 1962 is completely silent in relation to the question of 'scheduled castes' in Pakistan. This was probably because of the fact that separate electorates for Muslims and non-Muslims was not envisaged in the 1962 Constitution. Thus after the abrogation of the 1956-Constitution and even under the 1962-Constitution, there were no constitutionally recognised "scheduled castes" in Pakistan.
19. It is true that the Constitution of 1973 makes a reference to the scheduled castes inasmuch as in clause (3) (b) of Article 260 of the Constitution 'scheduled castes' have been included among 'non- Muslims' and in clause (2A) of Article 51 they have been bracketed with Hindus for the purpose of elections to reserved seats. But this Constitution too is silent as to which groups are to be categorised as the scheduled castes. The 'scheduled castes', it is submitted, are not a recognised group or followers of any religion in Pakistan. As the term suggests itself, scheduled castes could be the castes that were put in some schedule issued by the appropriate agency .But there is no. Such schedule in existence in Pakistan and there is no provision in the Constitution or any other law enabling issuance of such a schedule. Unless, therefore any one himself claims to be a Hindu or belonging to a 'scheduled caste' he cannot be placed in the category of 'Hindus and Scheduled Castes'. Unfortunately, however, the persons belonging to Sansi Caste or tribe, who have been affected by the judgment, were not given any opportunity to clarify as to which catergory they could like to be bracketed. It is noteworthy that some of the persons belonging to Sansi Caste have converted to Islam. It will, therefore, be unjust and unfair to bracket them with Hindus or other non- Muslims.
20. ' These and other matters required a full examination which has not been made before pronouncing the impugned judgment.
21. In our opinion, questions, of such importance which affect the faiths, rights and susceptibilities of individuals cannot be disposed of without making the persons concerned as parties to the proceedings and without affording them a hearing. It was essential to ascertain their point of view before any decision in this regard could be made.
22. ' We would, accordingly, accept these appeals, set aside the impugned judgments of the High Court and remand the cases to the High Court for decision in accordance with the law and observations made above. These cases should be given priority and disposed of on a very early date.