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MUTTAHIDA QUAMI MOVEMENT (MQM) versus PROVINCE OF SINDH

, S, 18 (3) (4) (6) (7) (8) and (9) [as amended by Sindh Local Government (Amendment) Act (XII of 2015]] - Constitution of Pakistan, Arts 7, 25 (3), 32, 34, 36, 37 (i), 140A, 219D and 226 ???? Hand-Election - Wears - The petitioner was introduced in the Sindh Local Government Act, 2013, under which the mayor, deputy There were elections on the seats of. The mayor, chairman and vice chairman and special seats were to be conducted by 'show of hands' instead of 'secret ballot' - the validity was elections under the local municipal government constitution and that should be done through 'secret ballot'. ? The Provincial Legislature enacted the law in violation of the mandate contemplated by Article 226 of the Constitution, which stipulated that every election under the Constitution would be through 'secret ballot' and not ' By showing the hand '* The provisions of Article 226 of the Constitution were not limited to the holding of elections under the Constitution and, in addition to direct elections, these provisions were related to the indirect election of the allotted seats and the Mayor, Deputy Mayor, The election of chairman and vice chairman and his election could not have been made by 'showing his hands' instead of secret ballots - Government Had no constitutional or constitutional right to interfere with the electoral process of the special interests by amending the Sindh Local Government Act, 7th Amendment, in that the election of the special seats shall be by 'showing hand *' rather than by secret ballot. The High Court announces amendments to the questions of forfeiture of Articles 7, 25 (3), 32, 34, 36, 37 (i), 140A, 219B and 226 of the Constitution - the constitutional petition allowed thereto Was like, [Row

P L D 2017 Sindh 169 

Before Syed Hasan Azhar Rizvi and Syed Saeeduddin Nasir, JJ

MUTTAHIDA QUAMI MOVEMENT (MQM) through the Leader of the Opposition a d others—Petitioners

versus

PROVINCE OF SINDH through Chief Secretary, Karachi and others—Respondents

Constitutional Petitions Nos.D-540 to D-543, D-419 and D-468 of 2016, decided on 24th February, 2016.

(a) Sindh Local Government Act (XLII of 2013)—

—S,18(3)(4)(6)(7)(8) & (9) [as amended by Sindh Local Government (Amendment) Act (XII of 2015)]—Constitution of Pakistan, Arts. 7, 25(3), 32, 34, 36, 37(i), 140-A, 219-D & 226—Election by show of hands—Vires—Petitioner assailed amendments introduced in Sindh Local Government Act, 2013, whereby elections to seats of Mayor, Deputy Mayor, Chairman and Vice Chairman and special seats were to be held by ‘show of hands’ instead of ‘secret ballot’—Validity— Elections of Local Government were elections under the Constitution and the same should be held by ‘secret ballot*—Amendments were enacted by Provincial Legislature in grave violation of the mandate contemplated by Art.226 of the Constitution, which stipulated that every election under the Constitution would be held by ‘secret ballot* and not by ‘show of hands*—Provisions of Art.226 of the Constitution were with regard to holding of election under the Constitution and were not confined to direct elections furthermore the provisions were relevant to indirect elections of reserved seats and that of elections of Mayor, Deputy Mayor, Chairman and Vice Chairman and the same could not be held by ‘show of hands* instead of ‘secret ballot*—Government had no constitutional or legal right to interfere in election process of special interest I reserved seats by amending Sindh Local Government Act, 2013, in the manner that elections of the reserved seats would be held by ‘show of hands* instead of ‘secret ballot*—High Court declared amendments in question as repugnant to Arts. 7, 25(3), 32, 34, 36, 37(i), 140-A, 219-B and 226 of the Constitution— Constitutional petition was allowed accordingly, [pp. 190, 193, 194, 197] A, B, D & G

Attaullah and another v, Government of Balochistan, Local Government Rural Development and Agrovilles Department and another PLD 2014 Bal. 206; Election Commission of Pakistan v. Province of Punjab PLD 2014 SC 668; Province of Sindh through Chief Secretary and others v. MQM through Deputy Convener and others PLD 2014 SC 531; Arshad Mehmood v. Commissioner/Delimitation Authority Gujranwala and others PLD 2014 Lahore 221; Malik Nazar Hussain v. Governor of Punjab and 4 others PLD 1988 Lah. 171; Kuldip Nayyar v. Union of India and others AIR 2006 SC 3127; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC. 187; Ghulam Farid and 2 others v. Hamida Bibi and 2 others 2011 YLR 2188; M. Omkar v. Government of A.P. AIR 1983 And. Pra 379; In re: P. Raghava Redid AIR 1975 And. Pra. 123; Wukala Mahaz Barai Tahafuz-e-Dast'oor v. Federation of Pakistan and others PLD 1998 SC 1263; G. Narayana Swamy v. Government of A.P. and others AIR 1985 And. Pra. 225; Niaz Ahmed v. Azizuddin and others PLD 1967 SC 466; Lahore Development Authority through D.G. and others v. Imrana Tiwana and others 2015 SCMR 1739; Muhammad Salahuddin v. Government of Pakistan PLD 1990 FSC 1; Abdul Majeed Khan v. District Returning Officer 2006 SCMR 1713 and Hari Khemu Gawali v. Deputy Commissioner of Police, Bombay and another PLD 1957 SC (India) 90 ref.

(b) Judgment—

—Pronouncing of judgment—Two different laws—Effect—Not safe to pronounce judgment 6n the provision of one Act with reference to decision dealing with other Acts which are not pari materia, [p. 183] C

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A.158 Naushero Feroze 1994 SCMR 1299 rel.

(c) Sindh Local Government Act (XLII of 2013)—

—Ss. 18 (2) (3) (4) (5) (6) (7) (8) (9), 19 & 20 fas amended by Sindh Local Government (Third Amendment) Act (XXXVIII of 2015)]— Constitution of Pakistan, Arts. 7, 25 (3), 32, 34, 36, 37(i), 140-A, 219-D <& 226—Special seats for ‘youth*—Vires—Petitioner assailed amendments introduced in Sindh Local Government Act, 2013, whereby special category of seats for ‘youth* were reserved—Validity—No cogent reason was given for providing ‘youth* a preferential treatment—Constitution did not recognize ‘youth* as a category of society which was subject to bias, prejudice, discrimination or suffering from deprivation—Even if the ‘youth * was brought into the category of the society which deserved preferential treatment, the same was not sustainable inasmuch as it was in contravention of the express provisions contemplated by the Constitution—Provincial Legislature did not take into consideration while enacting Sindh Local Government (Third Amendment) Act, 2015, as to whether or not the new category of ‘youth* that it was creating was compatible with the Constitution— Special or reserved seats qould only be maintained in respect of class of a person belonging to a down trodden and discriminate segment of society or minority community who had been specifically mentioned in the Constitution, like non-Muslims, women, peasants and workers— ‘Youth * could not be categorized as such inasmuch it was neither down trodden nor discriminated nor specifically stipulated in relevant Articles of the Constitution—By taking away reserved seats of workers and peasants and giving it to the category of ‘youth* was discriminatory, illegal and in violation of Art. 25 of the Constitution read with Art. 32 of the Constitution, which guaranteed protection and special status to peasants and workers—High Court declared amendments in question as repugnant to Arts. 7, 25(3), 32, 34, 36, 37(i), 140-A, 219-B and 226 of the Constitution—Constitutional petition was allowed accordingly, [pp. 196, 197] E & G

(d) Interpretation of statutes—

—Retrospective effect—Principle—Legislation that touches

inalienable vested rights of individuals of the State cannot ot all be given retrospective effect, [p. 197] F

Muhammad Farogh Naseem and Ahmed Zamir for Petitioners . (in C.Ps. Nos. 540 to 543 of 2016).

Muhammad Mansoor Mir for Petitioners (in C.Ps. Nos.419 and 468 of 2016).

Farooq H. Naek and Owais Ahmed for Respondent No.l.

Khalid Javed Khan for Pakistan People’s Party Parliamentarians, Respondent No.6.

Abdus Samad Khattak for Jammat-e-Islami, Karachi, Respondent No.7.

Ghulam Shabbir Shah for Respondent No.5.

Mirza Nasim Baig for Respondent No.5.

Nisar Ahmed, Durrani, Advocate General Sindh along with Mukesh Kumar Karara, Addl. A.G. Sindh and Jaam Habibullah, State Counsel.

Dilawar Hussain, Standing Counsel.

Ghulam Shabbir Shah for Respondent No.5.

Niaz Ahmed Election Officer, Syed Rashid Hussain, District Election Commissioner, Korangi and Abdullah Hanjrah, Law Officer, Provincial Election Commission, Sindh.

Date of hearing: 10th February, 2016.

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