MUHAMMAD AFZAL ZULLAH, J.-This Intra-Court Appeal arises out of a writ petition, whereby addition of section 89-A through an Amendment in the West Pakistan Motor Vehicles Ordinance (XIX of 1965) to the effect that the driver and occupant of pillion seat of two wheeled motor vehicle shall near crash helmet, was brought under challenge. The petition met with failure and the appellant has been burdened with costs.
2. The relevant provisions of the 1965 Ordinance, after the impugned Amendment are as follows: "89. Pillion riding.----No driver of a two wheeled motor cycle shall carry more than one person in addition to himself on the cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the cycle behind the driver's seat."
"88-A. Rider to wear helmet.----No person shall drive, or ride the pillion seat of, a two-wheeled motor vehicle except when he is wearing a crash helmet.
Explanation.---In this section, "crash helmet" means a helmet made of such material and meeting such other requirements as may be prescribed."
3. The impugned amendment has been brought on the Statute book through the "Provincial Motor Vehicles (Amendment) Ordinance, 1978, made and promulgated by the President. By virtue of subsection (3), of section 1, of the amending Ordinance, the impugned amendment was to come into force only on issuance of a notification. Although the writ petition was filed before the issuance of the notification but the petitioner later on filed an amended writ petition wherein the notification has also been challenged.
4. The arguments advanced before the learned Single Bench can be divided into two parts-one legal and the other general. The submissions in the first category were: that the provisions of Articles 48 and 89 of the Constitution regarding promulgation of an Ordinance by the President (qua advice of Prime Minister and action of National Assembly) could not be satisfied without an amendment of the Constitution; that the subject of the Motor Vehicles is in the provincial field while the impugned amendment has been made through a Federal Law; that the impugned law is against fundamental right regarding liberty; and that the police tried to enforce the law before the issuance of relevant notification. The general submissions were: that in absence of the parliament, objections of the public should have been invited before enacting the impugned law; that there was no necessity for the same; that the said law would be counterproductive qua its object because the high temperature inside the helmet would cause more accidents, that it would be too costly for the poor citizens to observe this law; and that the owners of the concerned vehicles would not be able to give lift to others.
5. In an elaborate judgment dealing with all the points, the above-noted arguments have been repelled. No justification has been made out for us to differ with the reasoning. While reiterating, we affirm the same.
6. Learned counsel has assailed the impugned law as also the judgment on some fresh arguments.
Whatever we have been able to make out from his submissions is: That section 89 and the new impugned section 89-A fall in Chapter VII of the Motor Vehicles Ordinance, 1965 which deals with control of traffic and although the subject of section 89, "pillion riding" and its regulation falls within the scope of the said Chapter and Motor Vehicles in general, the object of the impugned law (section 89-A) namely, `wearing of crash helmet by the riders' is foreign to the said scope.
That the subject of "Crash Helmet" as provided in section 89-A does not fall within the scope of "Mechanically propelled vehicles", i.e. Item No. 33 of the Concurrent Legislative List in Schedule IV of 1973 Constitution, as held in the impugned judgment; That even if the provisions of the Constitution relating to the functions of the Prime Minister and the Parliament have been kept in abeyance. The Chief Martial Law Administrator should have made amendment in the Constitution to provide substituted machinery for promulgating laws through Ordinances; That Article 4 of the Constitution has been contravened; and That the explanation to section 89-A provides for the specification of Standard crash helmets but the same has not been laid down through the prescribed method.
7. The original Motor Vehicles Act, 1939 since repealed was a Central law while the repealing and the re-enacting Motor Vehicles Ordinance (XIX of 1965) is a Provincial law. We have scanned and compared the Legislative Lists containing the item in question, in the Constitutions since 1935.
Briefly the position is as follows:
(i) Government of India Act, 1935-It had three Legislative Lists, Federal, Provincial and Concurrent.
Item No. 20 (Part I) in the concurrent list was "Mechanically propelled vehicles'",
(ii) In the Constitution of 1956 the same subject was within the Provincial List (out of the three) as Item No. 32 with slight elaboration--it reads "Vehicles, including mechanically-propelled vehicles".
(iii) In the 1:962 Constitution, there was only one list of the Central Subjects which did not contain the item in question.
(iv) Interim Constitution of 1972 contained three Legislative Lists. Like that in the Act of 1935, the subject of "mechanically propelled vehicles" was in the concurrent list, as item No. 22. (Part I)
(v) In present Constitution of 1973, there are only two lists, namely, Central and Concurrent. Item No. 33 in the latter list is "mechanically propelled vehicles".
8. It is pertinent to note that in every legislative list there is general item which can be called the amplifying guide for interpretation. It reads as follows: "Matters incidental and ancilliary to any matter enumerated" in the list. Obviously the entire scope of the subject cannot be included in the few words/phrases of the items concerned, The phrase "mechanically propelled vehicles" if interpreted in a restricted manner would include only the matters) concerning manufacture and use thereof The questions of control of traffic and Road Transport; the licensing system for drivers and vehicles including' their registration; Road signs and consequential safety; and also insurance, would fall out of the scope of the legislative item, if it is given a narrow construction. Learned counsel understood this after some difficulty and was then constrained to take the position that the item concerned has to be given a wide connotation so as to include all the incidental and ancillary matters. Looked at in this context his arguments regarding comparison of sections 89 and 89-A falling in Chapter .Relating to traffic control, as also qua the legislative competence, lose all force. Section 89, mainly deals with safety, in that 'no more than one' person in addition to the driver of a two-wheeled Motor Vehicle shall 'ride the same' and that too on a 'proper' seat which must be: a) 'behind' the driver's seat; and (b) 'securely fixed' to the vehicle. Each expression has been chosen to suit the subject of Motor Vehicle and safety, when the same is in use. Major part of Chapter VII 'Control of Traffic', deals with various measures to avoid accidents and to achieve safety for users of Roads and Vehicles. It is strange that while accepting all this as within the scope of the item "mechanically propelled vehicles" the use of 'Crash Helmet' which is also 8 a measure for safety connected with Roads and Vehicles, as argued, is considered to be out of it. There is absolutely no legal or other logical basil for these arguments. We accordingly repel the same.
9. Learned counsel in order to advance his next argument that an amendment in the Constitution was necessary, repeatedly referred to the following observation of the Supreme Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 457): "That the 1973 Constitution still remains the supreme law of the land, subject to the condition that certain parts thereof have been held in abeyance on account of State necessity."
Their Lordships also indicated the parts which have been held in abeyance: "namely the parts dealing with Federal and Provincial Executives and Legislatures" (same page 71.5).
We asked the learned counsel as to whether Sub-Articles (1) and (2) of Article 89, of the Constitution, which empower the President to make and promulgate Ordinances, cannot stand alone, after excluding the references contained therein, to the Houses of the Parliament as also the reference to the Prime Minister contained in Article 48, he could not offer any answer. Instead his submission was that Chief Martial Law Administrator substituted the so excluded provisions (which were kept in abeyance) by providing his own advice as binding on the President. He in this behalf referred to para. 3 of the Laws (Continuance in Force) Order, 1977. There is nothing in the language of the saved parts of Article 89 which are in force and have not been kept in abeyance (which confers power on President to make and promulgate Ordinances) so as to show that when properly considered and interpreted they cannot stand alone and thus remained in force. The said Article, after excluding the parts kept in abeyance would read as follows: --89.-(1) The President may, . . . . . . . . If satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.
(2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of Parliament and shall be subject to like restrictions as the power of Parliament to make law, but every such Ordinance (a)-------------------- (i)---------------- (ii)----------------and;
(b) may be withdrawn at any time by the President.
(3)
The above quoted part of Article 89 does not need any amendment for providing the so called machinery to make the power contained therein, effective and complete for the President to make and promulgate Ordinances. The Laws (Continuance in Force) Order, however, has provided for the advice of the Chief Martial Law Administrator to be binding in this behalf, on the President. It was not necessary to achieve this object by the amendment of the Constitution.
10. The argument of the learned counsel regarding Article 4 of the Constitution is also without any force. It would have been of some relevance if it was possible for him to assail the impugned legislation on any valid ground. In this behalf learned counsel brought to our notice that the provisions contained in the Explanation to the impugned section 89-A, are not being complied with.
He complained that as required by it no specifications have been provided for the manufacture of Crash Helmets. He did not pursue this point further after becoming aware of the issuance of the notification. It was however, stated by him; (a) that the notification has not been given enough publicity and further; (b) that substandard helmets are being sold in the market. The first assertion, if true might, if so advised, be made use of as a defence in particular cases when prosecutions are launched; and the second assertion can be made subject of action which might be launched against the manufacturers and or suppliers of helmets. These questions do not affect the validity of the law impugned before us.
11. Learned counsel also touched the subjects of inconvenience, habit, customs qua dress including Burqa and turban and other related questions regarding purchase and wearing of the crash helmets. As observed in the impugned judgment these matters though can be brought to the notice of the Government (for removing the inconveniences) can hardly be a ground for declaring the ultra vires legislation the Constitution and the powers of the President. In the above context, a possibility can be visualized that in cases of real and genuine hardship, the principle of lesser evil might be achieved by modifying the impugned law; so as to admit therein, the system of legal exemptions.
12. In the light of the above discussion we find no merit in this appeal and the same is dismissed in limine.
13. Before parting with this order it needs to be mentioned that although the learned counsel has not been able to satisfy us on the point of the writ petition being premature, when initially moved (before the enforcement of the impugned law we permitted him to argue the appeal on merits; because we did not consider it necessary to decide at this limine stage the question of the validity of the permission granted to the learned counsel (as is mentioned in paras 5 and 6 of the impugned judgment) to raise the points, taken in the amended writ petition; notwithstanding the fact that the respondents having objected to the amendment, the same had not been formally allowed. It also needs to be noted that the learned counsel at the end of his arguments requested for expungement from the impugned judgment, of certain remarks regarding him. Our reaction included reference to the quality of his performance before us (about which we refrain from saying anything further in this order). The prayer was left at that and was not then pressed.