' Through this Constitutional petition petitioners have challenged the acceptance of nomination papers of respondents Nos.2 to 5 against the seats of Nazim and Naib-Nazim on the ground that they being non-Muslims can only contest for the seats which are reserved for minorities. In support of this petition learned counsel for the petitioner made following submissions:--
(i) That Pakistan is an Islamic Republic and being a religious State it cannot permit the non- Muslims to head the institutions of public representation. According to him, a bare reading of the preamble of the Constitution the Objective Resolution and the principle of policy would make it clear that by Constitutional command people have committed themselves to create a State where the principle of democracy, freedom, equity, tolerance and social justice as enunciated by Islam are be fully observed. According to him, this objective cannot be achieved if the effective seats of power are given to non-Muslims. He added that the non-Muslims have been granted fundamental rights under the Constitution but they have no' equal rights for governance of the country.
(ii) That Article 51 of the Constitution of Islamic Republic of Pakistan stipulates the concept of separate electorate and Muslims can elect Muslims and non-Muslim can only elect non-Muslims.
He explained that for the National Assembly 217 seats have been reserved for Muslims and 10 seats for non-Muslims under this Article. In the Provincial Assembly he referred to Article 106 wherein seats have been reserved for non-Muslims.
(iii) The concept of separate electorate has been incorporated in the Election for Local Councils as is clear from section 10 of Punjab Local Government Ordinance, 2000 and the non-Muslim can contest against only those seats which are, reserved for them in terms of section 8 of the Ordinance.
2. Malik Muhammad Rafique Rajawana, Advocate volunteered to Assisi as amicus. Because according to him an important question of public importance is involved. He mainly adopted the arguments of. Mr. Khadim Nadim Malik, Advocate but added following submissions:--
(i) That the electoral rolls have been prepared under the Electoral Rolls Act, 1974, that in the year 1978 section 4 of the said Act was amended, the concept of separate electorate was introduced and the same has been enshrined in the Punjab Local Government Ordinance, 2000 and if both these sections are read together the intention of the law maker is clear that the election has to be held on the basis of separate electorate and that Muslims can vote only for Muslim and non- Muslim for non-Muslim. He added that seats have been reserved for the minorities in the National and Provincial Assembly and also in the Local Councils they can contest only those seats which are reserved for them and any other interpretation would lead to anomalous results. In support of submissions made by learned counsel relied on a judgment of Peshawar High Court reported in PLD 1979 Pesh.
23.
3. Learned Assistant Advocate-General who was called to assist, submitted that the Electoral Rolls have been prepared under section 18 of the Punjab Local Government Ordinance, 2000, that in the Punjab Local Government Ordinance, 1979 as also in the Punjab Local Government Ordinance, 2000 seats have been reserved for non-Muslims but that does not mean that they cannot compete for general seats. He referred to section 5 and section 14(d) of the Punjab Local Government Ordinance 2000, to bring home the point that the qualifications to be elected as Member of a Local Council are general in nature and the requirement of adequate knowledge of Islamic Teachings or of being a practising Muslim do not apply to a person who is a non-Muslim and in his case the requirement is that he should be a person of good reputation. Thus, according to him, the intention of the law maker was to keep the general seats open for persons of all communities irrespective of their religion, caste and creed. He also referred to Instruction 18 of the Instructions issued by Election Commission which he added is supportive of the submissions made by him.
4. Learned counsel for the Federal Government adopted the arguments of learned Assistant Advocate-General but added that the special seats created for minorities in section 8 of the Punjab Local Government Ordinance, 2000 was a measure to protect their interests as they are in minority but no way it creates a bar for them to contest for those seats which have not been specifically reserved for Muslims. He added that the non-Muslim can contest not only for Nazim and Naib-Nazim but also against seats reserved for peasants, workers and women in the Local Councils.
5. Heard.
6. We have given out anxious thought to the submissions made at the bar and have also gone through various provisions of the Constitution and law, on which, reliance was placed by learned counsel for the parties.
7. So far as the broader question as to the interpretation of Article 106 is concerned i.e, as to whether the non-Muslims can contest against the general seats of Provincial Assembly we would not like to comment at this stage. Firstly because this question was not raised in the body of the petition. Secondly it is likely to effect the interest of minorities who are not represented before us.
Thirdly the matter required hearing of learned Attorney-General and greater assistance was needed which on account of the paucity' of time was not possible. The petition could not be kept pending for long as the main question raised in the petition called for early determination since polling for the Local Councils Elections is to take place on 31-5-2001.
8. To better appreciate the issue mooted in this petition it is necessary to refer to some of the provisions of the Punjab Local Government Ordinance, 2000 which are relevant. Those are as follows:-- "Section 2(8): 'member' means an elected member of a local elected body, and includes a Nazim and a Naib-Nazim."
"Section 5. "There shall be a Zila Nazim and a Naib Zila Nazim of a district."
"Section 8" There shall be twenty-one members of a union council as follows:--
(a) twelve seats for Muslims, including four seats reserved for women,
(b) six seats reserved for peasants and workers, including two seats for women to represent peasants and workers,
(c) save as otherwise provided, one seat reserved for minority communities,
(d) Union Nazim,
(e) Naib-Union Nazim.'
"Section 9. Special minority seats.---In a local area where the population of minorities is in excess of ten per cent. Of the total population of that area, the seats mentioned in the preceding sections shall be allocated in such manner as the Government may determine.
"Section 10. Franchise.---(1) Members of a union council shall be elected through elections based on adult franchise, and on the basis of separate electorate.
(2) Electoral college for the election of Zila Nazim and Naib-Zila Nazim, Town Nazim and Naib-Town Nazim, or Tehsil Nazim and Naib-Tehsil Nazim shall be all the Members of Union Councils in the District, Town in a City District or a Tehsil, as the case may be.
(3) Electoral college for the election of reserved seats of women, peasants and workers, and minority population for Zila Council, Town Council, or Tehsil Council shall be all the members of Union Councils in the district, town in a City District or a Tehsil, as the case may be."
"Section 14. Qualification for candidates and elected members. ---A person shall qualify to be elected or to hold an elective office or membership of a local Government, if he,--- ' is citizen of Pakistan; ' is at least twenty-five years of age; ' is enrolled as a voter in the electoral roll of the relevant ward; ' is of good character and is not commonly known as one who violates Islamic Injunctions; has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins: ' Provided that these qualifications shall not apply to a person who is a non-Muslim, but such a person shall have a good reputation;
(e) has academic qualifications of not less than matriculation or secondary school certificate or equivalent from a recognized institution, for contesting the election of a Nazim or Naib-Nazim;
(f) has not been declared by a competent Court to be of unsound mind; (g)
(h)
(i)
(k)
(I)
(m)
(n)
(o)
(q)
(r)
(s)
9. A careful perusal of the afore-referred provisions of law would indicate that in terms of the break-up of various categories of Members as provided in section 8 of the Punjab Local Government Ordinance, 2000, there are only 12 seats specifically meant for Muslims including 4 women seats and one for minority community whereas the remaining i.e, six seats are for peasants, workers including (two women) and of Nazim and Naib-Nazim. There is no bar for a person of minority community to contest against seats other than those mentioned in section 8(a).
The intention of the law maker appears to be that the members of union council are to be elected on the basis of adult franchise and the requirement of separate electorate is mandatory insofar as the seats described in section 8(a) and section 8 (c) are concerned but for the remaining seats all the voters shall have a right to vote. That is why Instruction 55 issued by the Election Commission of Pakistan mandates that each voter shall be given five ballet papers. It reads as under:--- "It may be noted that in the Local Government Election at union level, each voter has to cast five ballet papers at a time as such training of the polling personnel on the eve of the poll is of paramount importance. The lack of training of the polling personnel might adversely affect the conduct of the poll. The District Returning Officer and Returning Officer concerned should ensure that extensive training of the polling staff is organized vigorously so that they do not commit any mistake in the polling process and understand their duties fully."
10. The Election Commission of Pakistan does visualize situations in constituencies where the non- Muslim population is greater than Minority may contest fully observed; election on a seat reserved for peasants, workers or for Nazim and Naib-Nazim and Instruction No,18 is relatable to such situation. It reads as under:--- "It may be noted that in some union councils where non-Muslim population is greater, their candidates may contest elections on seats reserved for peasants and workers, peasants/workers (women) or as the case may be Nazim/NaibNazim."
11. The legislative intent is further manifested in section 10(2) and (3) which relates to the election of Nazim and Naib Nazim, and for the election of reserved seats of women, peasants and workers and minorities in various tiers of the local councils. The electoral college envisaged for the election of these seats are, all the Members of the concerned Union, Tehsil, City or District Councils. There is no concept of separate electorate for these seats. Similarly the qualification prescribed for candidates for the Local Council Elections are not restrictive to Muslims alone and those are general and while requiring adequate knowledge of Islam from Muslim candidates it creates exception for non- Muslims. And the said exception is in section 14(d) which is to the effect that "provided that these qualifications shall not apply to a person who is a non-Muslim, but such a person shall have a good reputation".
12. It may also be noted that the reservation of special seats is not meant to restrict the minorities to those seats alone. This provision primarily is aimed at safeguarding their interests in a Muslim majority country. Because otherwise they may not get a chance to be elected. This does not mean that they cannot contest for other seats which have not been specified in law as Muslim seats. This benign measure cannot be interpreted to their disadvantage. This legislative intent is reflective of the Constitutional safeguard provided to the minorities in Article 36 of the Constitution which mandates as under:-- "Protection of minorities. --- The State shall safeguard the legitimate rights and interests of minorities, including their due representation in the Federal and Provincial Services."
13. Before parting with this case we would like to reiterate that while rendering the judgment we are conscious of our national commitment enshrined in the Constitution of Islamic Republic of Pakistan which in its preamble and Article 2A mandate inter alia that Pakistan shall be a country:-- "Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed; ' Wherein adequate provisions shall be made for the minorities freely to profess and practise their religions and developed their cultures; ' Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; ' So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity; "
14. For what has been discussed above' we do not find any merit in this petition which is dismissed.