IJAZ-UL-HASSAN, J.--Amanullah and Malik Qasim Khan, Nazim Union Council Dalian, District Hangu and Naib-Nazim Zila Council District Karak, respectively, feeling aggrieved of the amendment introduced, in section 158 of the N.-W.F.-P. Local Government Ordinance, 2001 have filed instant Writ Petitions Nos.941 and 942 of 2002 under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 with the prayer that amendment in question whereby Nazimeens and Naib- Nazimeens have been debarred from participation in the General Elections for National and Provincial Assemblies by first resigning from their offices, be declared as a void law being in conflict with the fundamental rights, discriminatory and in violation with Article 4 of the Constitution.
2. This judgment shall dispose of both the writ petitions as the respective petitioners therein have canvassed similar points.
3. Mr. Abdul Latif Afridi, Advocate learned counsel for Malik Qasim Khan petitioner contended, inter alia, that the amendment made in section 158 of the N.-W.F.P. Local. Government Ordinance, 2001 is prima facie in conflict with the fundamental rights as enshrined in the Constitution; that the impugned law is discriminatory inasmuch as it makes a glaringly unreasonable classification and that the impugned amendment/law has laid down double standard in violation of Article 4 of the Constitution which envisages right of individuals to be dealt with in accordance with law, etc. And has deprived the petitioner of equal treatment under the law as well as equal protection of law.
Concluding the arguments, the learned counsel submitted that the impugned amendment is a clear cut example of transgression of power and cannot be allowed to remain intact. In support of the pleas, reliance was placed on Cantonment Board v. District Sanitary and Food Inspector (1993 SCMR 941), Water and Power Development Authority and others v. Mian Muhammad Riaz and another (PLD 1995 Lahore 56) and Messrs Brooke Bond Pakistan Limited v. Province of Sindh through Secretary, Ministry of Finance, Sindh and 3 others (2001 CLC 148).
4. Mr. Abdul Hakeem Khan Kundi, Advocate for Amanullah petitioner adopted the arguments of Mr. Abdul Latif Afridi, Advocate and added that amendment in section 158 (ibid) militates against Article 25 of the Constitution, as it postulates a discriminatory provision of law and the same is also in conflict with sections 37, 65, 87 and 152 of the aforesaid Ordinance. To supplement the contentions our attention was also invited to Article 223 of the Constitution pertaining to the bar against double membership. Providing no such restrictive condition on candidates for election to the. National Assembly and the Provincial Assemblies. Various provisions in the Representation of the People Act, 1976 were also referred in this connection, in order to show that there is no such corresponding condition of prior resignation in the said Act. To substantiate the please reference was made to Saiyyid Abul Maudoodi and others v. Government of West Pakistan PLD 1964 Supreme Court 673 and Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 Supreme Court 416.
5. Mr. Imtiaz Ali, Additional Advocate-General appearing on behalf of the respondents, on the contrary, defended the impugned amendment and maintained that Nazimeens desirous of contesting elections for National Assembly and Provincial Assemblies, are require1 to step down from their existing portfolios by tendering resignation before filing nomination papers in order to ensure just, fair and transparent election and that the embargo placed and condition attached cannot be considered unreasonable and discriminatory by any stretch of imagination. He also submitted that the question of qualification/disqualification for office/membership of the Local Government is not involved and the restriction has been placed on Nazimeens for the reason mentioned above.
6. We have heard at length the arguments and submission of learned counsel for the petitioners as well as of learned Additional Advocate-General in the light of the various provisions of the Constitution of the Islamic Republic of Pakistan, 1973, N.-W.F.P. Local Government Ordinance, 2001 and the Representation of the People Act, 1976.
7. The Governor, N.W.F.P through an Ordinance amended section 158 of the N.-W.F.P. Local Government Ordinance, 2001 which provides bar against Nazims dual membership and required them to resign from the existing office in case they elect to contest elections for another political office. Section 158 of the said Ordinance as it existed before and after the amendments is reproduced below for facility sake:-- Pre-amendment section of law
158. Bar against dual membership.---The holder of an elective office may contest election for any other political office, provided that he resigns before filing his nomination papers for election to the new office.
Post amendment section of law
158. Bar against Nazims dual membership.---A Zila Nazim, Naib Zila Nazim, Tehsil Nazim, Naib Tehsil Nazim, Town Nazim, Naib Town Nazim, Union Nazim, Naib Union Nazim may contest election for any other political office after resigning from the existing office of Nazim, or, as the case may be, Naib Nazim, before filing his nomination papers. Provided that a member of Zila Council, Tehsil Council, Town Council or Union Council may contest election for any other political office without resigning from the membership of such Council: Provided further that such member shall not hold more than one office at one time."
8. The High Court in the exercise of its Extraordinary Constitutional jurisdiction under Article 199 of the Constitution enjoys very .Wide and immense powers to correct errors, issue any order or direction in the interest of justice and to safeguard the fundamental rights of the citizens guaranteed by the Constitution. The High Court has the power to issue writs of mandamus, quo warranto, certiorari, habeas corpus, any other writ and declare or strike down any law which is found to be contrary to or in conflict with the provisions of the Constitution.
9. Article 25(1) of the Constitution enjoins that all citizens are equal before law and are entitled to equal protection of law. However, the above clause does not prohibit treatment of citizens by a State, on the basis of a reasonable classification. While considering the scope of Fundamental Right in context with Article 25 of the Constitution, the following observations were made in Brig.
(Reid.). F.B. Ali and another v. The State (PLD 1975 SC 506): "Equal protection of the laws does not mean that every citizen, no matter what his condition, must be treated in the same manner. The phrase 'equal protection' of the laws means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other class of persons in like circumstances in respect of their life, liberty, property, or pursuits of happiness. This only means that persons, similarly situated or in similar circumstances, will be treated in the same manner. Besides this, all law implies classification, for, when it applies to a set of circumstances, it creates thereby a class and equal protection means that this classification should be reasonable. To justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference or distinction. Thus different laws can validly be made for different sexes, for persons in different age groups, e.g., minors or very old people; different taxes may be levied from different classes of persons on the basis of their ability to pay. Similarly, compensation for properties acquired may be paid at different rates to different categories of owners. Such differentiation may also be made on the basis of occupations or privilege or the special needs of a particular locality or a particular community. Indeed the bulk of the special laws made to meet special situations come within this category. Thus in the field of criminal justice a classification may well be made on the basis of the heinousness of the crime committed or the necessity of preventing certain antisocial effects of a particular crime.. Changes in procedure may equally well be effected on the ground of the security of the State maintenance of public order, removal of corruption from amongst public servants or for meeting an emergency."
10. Regarding 'reasonable classification we may observe here that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike and that reasonable classification is permissible if it is founded on reasonable distinction or reasonable basis. A law applying to one person or one class of persons may be Constitutationally valid if there is sufficient basis or reason for it. In a case reported in PLD 1976 SC 57 it was observed:-- "....What is unreasonable in one given set of circumstances may well be in another different set of circumstances. In order to test the reasonableness of such restrictions, therefore, no general standard exists. It will depend upon a variety of circumstances including the interest and urgency of the action proposed and 1 kie nature of the safeguard, if any, provided to prevent possibilities of abuse of power. The investment of arbitrary power in the executive to put to an end to the existence of a political party on the basis of its own satisfaction which may or may not be capable of being proved in a Court of law may well be an unreasonable restriction having regard to the importance of the right of association guaranteed by the Constitution. The safeguard that such a declaration by the Executive will be subject to the decision of the Supreme Court is, however, a sufficient safeguard of the interests of the political party and adequately protects it from being dealt with either arbitrarily or whimsically or out of political vengeance. This can, in no sense, be considered to be an unreasonable restriction."
11. The amendment in question is criticized principally on the ground that it is violative of the provisions of Articles 4, 8, 25(1) and 233 of the Constitution and offends the language of sections 37, 65, 87 and 152 of N.-W.F.P. Local Government Ordinance, 2001. Certain provisions of the Representation of the People Act, 1976 were also referred in this connection. We have gone through the above-referred Articles of the Constitution and the provisions and we are of the view that the impugned amendment has been introduced strictly in accordance with law keeping in view the prevailing political scenario of the country. Truly, a bar against Nazimeen dual membership has been provided in section 158 of the Ordinance but it may be noted that the bar/restriction cannot be considered a disqualification. The term 'disqualify' has been defined in Black's Law Dictionary (6th Edition) as to divest or deprive of qualifications; to incapacitate; to render ineligible or unfit, as, in speaking of the "disqualification" of a Judge by reason of his interest in the case, of a juror by reason of his holding a fixed preconceived opinion, or of a candidate for public office by reason of non-residence, lack of statutory age, previous commission of crime, etc. The condition attach& i,e, prior resignation is not unreasonable restriction. It is founded on reasonable and legal basis. There is no element of discrimination or arbitrariness in the same. This condition, in no sense, be considered to be an unreasonable restriction. It may be noted here that the step has been taken for ensuring just, fair and transparent election and to avoid all possible chances of pre-poll rigging.
The Nazims and Naib-Nazims do not stand on a higher pedestal than the Ministers and Governors in the Federation and Provinces. It is true that members of local councils are not required to resign before filing nomination papers but the fact cannot be lost sight of that Nazimeen are the head of these local governments and are directly involved in day to day administration whereas a member has a different role to play. Section 87(1) of the Ordinance mentioned the Nazims/Naib-Nazims separately and they are elected directly like members of the Union Council.
12. In view of what has gone above, it follows that the impugned amendment in section 158 of the Ordinance has been introduced for valid reasons and no Article of the Constitution or provision of any other law seem to have been violated. The amendment does not amount to disqualification and it is not harmful in any manner. Resultantly, finding no substance in these writ petitions we dismiss the same as non-maintainable with no order as to costs. The listed applications also meet the same fate. We had vide our short order dated 30-8-2002, dismissed the petitions for reasons to be recorded later. Above are the detailed reasons.