P L D 2001 Azad J&K 60 (PLP)

16. The legislative Assembly is a forum created and regulated by the Constitution, law and rules. Its function is to enact laws for carrying forward the policies of the Government for the welfare of the State and good governance. Legislation is the primary field of functions of the members of assembly and one amongst them is elected as Prime Minister and as many others as the Prime Minister deems fit as Ministers incharge of various departments of the Government. The Government is to function in accordance with the laws made by the Assembly. The political power of the State is vested in the Government and it has to exercise its authority as ordained by various Verses of Qur'an, one of which is Verse (Ayat) No.41 of Sura Hajj, Part 17. (Tafseer by Dr. Muhammad Taqqiud Din Al‑Khalil Edition 1994, which is as follows: Those (Muslim rulers) who if We give them power in the land (they) order for "Iqamat‑as‑Salat" [i.e. to offer prayers perfectly ‑the five compulsory, congregational prayers (the mule in mosques)], to pay the Zakat and they enjoined AI‑Mar'uf (i.e. Islamic Monotheism and all that Islam orders one to do), and forbid AI‑Munkar (i.e. disbelief, polytheism and all that Islam has forbidden [i.e. they make the Qur'an as the law of their country in all the spheres of life]. An with Allah rests the end of (all) matters (of creatures). Though literally means five times prayers, but in the broader spectrum it includes entire system of establishment of governance including individual and collective rights and duties. To pay Zakat includes in itself the establishment of system of social justice and social security for all, particularly for those for whom the Qur'an has ordained the Zakat to be spent upon; enforce the laws in its letter and spirit believing in the ultimate authority of Allah for achieving the purpose of good governance. The good governance cannot be conceived without good laws and good orders, which have to coexist, and good laws and their implementation is not possible without good representatives in the Assembly and Government. Under law and social ethics every body is presumed to be good including the petitioners, but goodness for the purpose of legislation and of those who govern would relate back to their academic qualification which is the threshold of knowledge and skill of reading and writing is the basis thereof.

17. Acquisition of knowledge or education is must and has remained so since the creation of Adam. The Almighty Allah was the first teacher of first man. The Adam to whom he taught the names of all things and then asked the name of things from Angels who could not answer and the Adam answered. (Sura Baqara, Verse Nos.31 to 33). Verse 31: (And He taught Adam all the names (of everything), then He showed them to the Angels and said 'Tell Me the names of these if you are truthful'.) Verse 32: (They (Angels) said: 'Glory be to you, we have no knowledge except that you have taught us. Verily, it is You, the All‑Knower, the All‑Wise'.) (He said: 'O Adam! inform them of their names. and when he had informed them of their names, He said: 'Did I not tell you that I know the Ghaib (unseen) in the heavens and the earth, and I know what you reveal and what you have been concealing?') The first revelation which Almighty Allah made to the greatest law giver and last of the Prophets is" Verse No. l of Sura Al‑Alaq (Part 30): ('Read! m the Name of your Lord, Who has created (All that exists)'

18. And Allah Almighty has commanded his Holy Prophet to pray to him. Verse 114, Surah Ta‑Ha (Part 16): i.e. to continuously strive for enrichment of knowledge.

19. The father of the Prophets Hazrat Abrahim prayed to Almighty in the following words as ordained by Qur'an: Verse 129 Surah AI‑Baqarah: 'Our Lord! Send amongst them a Messenger of their own (and indeed Allah answered their invocation by sending Muhammad (p.b.u.h.) who shall recite unto them Your Verses and instruct them in the Book (this Qur'an) and AI‑Hikmah (full knowledge of the Islamic Laws and Jurisprudence or wisdom or Prophethood, etc.), and sanctify them. Verily! You are the All‑mighty, the All‑wise.

20. The Almighty described the virtue of his great prophet, besides many others in the following Verse 164 of Sura Al‑e‑Imran: Verse 164: (Indeed Allah conferred a great favour on the believers when He sent among them a Messenger (Muhammad p.b.u.h.) from among themselves, reciting unto them His Verses (the Qur'an). and purifying them (from sins by their following him). and instructing them (in) the Book (the Qur'an) and Al‑Hikmah (the Wisdom and the Sunnah of the Prophet (p.b.u.h.) (i.e. his legal ways, statements. acts of worship, etc.), while before that they had been in manifest error).

21. Superiority of the Learned is described by Almighty in Verse No. 11 of Sura AI‑Mujadila as follows: Verse No. 11: (O You who believe! When you arc told to make room in the assemblies, (spread out and) make room. Allah will give you, t y (ample) room (from His mercy). And when you are told to rise up (for prayers) Jihad, or for any other good deed): rise up. Allah will exalt in degree those of you who believe and those who have been granted knowledge. And Allah is Well‑acquainted what you do.)' Note.‑‑The English translation of Qura'nic versions is taken from 'Tafseer Ma'ani, translated by Dr. Muhammad Taqi‑ud‑Din Al Hilali.

22. I respectfully differ with Mr. Akram Sheikh that Last Prophet (p.b.u.h.) was not educated as his Title was UMMI. The word UMMI is derived form UMMUL‑QURA which is the ancient name of City of Makkah. As Prophet (p.b.u.h.) belonged to this city he was, therefore called as UMMI.

23. It may also be placed on record that the moment when the Prophet Muhammad (p.b.u.p.) was declared as prophet of God, he was first taught and then declared the Prophet which implies that to be posted, elected or chosen for a particular exalted office, one has to be read and educated though there can be no comparison between the prophethood and the worldly offices maned by ordinary people like us.

24. The preference in all fields of the life in all times was given to more or better qualified persons over the less. In the earlier times even formally educated and certificate holders were not available, the people expert by experience in any field of knowledge and those associated with great and learned people were kept by the Kings as their advisors for good governance In the times of Prophet ASHABE SUFFA were deemed the best and preferred over all in learning as they had first hand knowledge and training from Holy Prophet (p.b.u.h.) Imam Abu Hanifa employed the scholars in the advisory council constituted for legislation in Baghdad and established grand university for their training. Thus the acquisition of knowledge ordained by Almighty is the duty of every believer and one has to fulfil the duty, and one who lacks, that is disqualification and the impugned law, therefore is not against, sections 3, 31(5) of the Constitution or Shariat Act. 1989 but is to furtherance thereof.

25. The legislators as said earlier have to make the law and some of them are to be appointed Ministers and one as Prime Minister. Those who have to perform, these exalted duties they are expected to be educated and at least literate so that they are in a position to read and write. Matriculation in the modern era of academic qualifications is the minimum level of literacy though the concept of literacy has also changed now due to advancement of computer, and that person only is deemed as literate who is able to transcribe the words through the key board on the monitor and transmit the same through the internet to the world. If we are not able for the time being not to allow a person who is not a law graduate to be a legislator, and if one wants to be appointed as minister. to have an added qualification in public administration or management or at least possess the qualification enabling him to be appointed to any post in BPS‑20 in the Government department (where a Government servant reaches after twenty years of service). The qualification‑ of Matriculation or its equivalent must be strictly adhered to and level thereof must gradually be raised. In this complex world of trade. information technology, international relations and globalization, we cannot afford to be illiterate or semi‑educated. Changes have to be brought and accepted so as to compete and survive as a nation on this planet. The disqualification provided by the impugned legislation is a very small step towards a right direction which does neither militate against the fundamental rights nor is against the principles of Qur'an or Sunnah as alleged. 26 The argument of the learned Advocate for the petitioners that the Ordinance militates against the provisions of subsection 4(7) of the Constitution is also equally misconceived. Relevant provision is as follows: "4(7). Freedom of Association.‑‑(1) Subject to this Act every State Subject shall have the right to form Association or unions, subject to any reasonable restrictions imposed by law in the interest of Morality or Public Order." No political party or a member thereof including the petitioners is prohibited 1 or forbidden from forming a union or association or a political party as is generally argued. The members of the political parties have a right to contest the election to representative bodies and for that they have to satisfy the test of being qualified and not subject to any disqualification as provided by section 24 of the Constitution and section 5 of the Election Laws. The right to contest the election is a statutory right and the requirements of the statute under which one claims the right has to be satisfied so as to be a candidate. The disqualification relates to an individual candidate who is a non‑Matric. There is no cavil with the principle of law laid down in the authorities referred by the learned Advocates: but the principle laid down therein does not offend the impugned Ordinance. I may refer here the following para.27 from PLD 1985 Azad J&K 95 (Jammu and Kashmir Tehreetc‑e‑Amal Party v Azad State of Jammu and Kashmir).

27. The analysis of the genesis of the political parties and their establishment leads to the inference that elections to local bodies, legislative assembly or the council are means and not an end in itself. Therefore, when a particular party participates in an election, it does not mean that the participation in the election is an end in itself. Here. in the present case the fact that the political parties participated in the elections and captured certain seats and now by operation of section 6(A), they are to lose those seats, this losing of the seats in the Assembly, can by no stretch of imagination be called non‑infringement of a fundamental right. Mr. Qayyum Mallick rightly pointed out that to contest election is not a fundamental right and to impose a disqualification restricting the right to contest election is not an infringement of a fundamental right. Nevertheless the operation of section 8‑A, which suspends the functioning and political activities of political parties, obviously, abridges the basic right. For, we have already seen that the right to form an association means the right of continuance of the association.

27. Though the impugned legislation does not amount to a restriction as argued by the learned Advocates in the light of section 4(7) of the Constitution but assuming it so, it is neither immoral nor against the public order as to be a Matriculate is not immoral nor would it effect the Public Order, it would rather raise the level of morality.

28. The argument of the learned counsel for the petitioners that the impugned Ordinance is valid for four months only and if it is not approved by the Assembly, no mechanism is provided by the Ordinance as to how the petitioners would be afforded relief who are deprived of the right during the continuance of this temporary legislation is equally untenable for the reason that the Ordinance has the same force as an Act of the Assembly and disapproval by Assembly of the Ordinance or its repeal otherwise would not "effect the previous operation of the law or anything duly done or suffered under law". In view of clause (b) of section 56‑C of the Constitution and secondly for the reasons that we have to act in accordance with the law as it is in force today, future will take care of itself.

29. The argument of Mr. Majeed Mallick that the provisions of the Constitution i c: subsection (4) of section, 5. section 42 and section 43 relating to the qualification for office of the President. Judges of the Supreme Court and High Court are couched in positive form providing qualification hence: keeping in view the scheme of the Constitution the impugned law hail be deemed providing the qualification in the guise of the disqualification, which militates against the spirits of the Constitution is nicely negated by the learned Additional Advocate‑General reading out the provisions that all these are negatively couched providing disqualification. The provisions of section 5(4) begins with the words "no person shall be qualified for election to the office of the President". Similarly the provisions of section 42 and section 43 which regulate the appointment of Judges in the Supreme Court and High Court are worded that "A person shall not be appointed as Judge of the Supreme Court/High Court of Azad Jammu and Kashmir unless he is ...." Section 43(7) of the Constitution is similarly negatively couched stating that "Judge of the High Court shall not hold any other office of Profit .... or occupy any other position...". Thus the contention of the learned Advocate for the petitioner is not tenable as the Legislature can provide qualification as well as disqualification, but a qualification provided by the Constitution cannot be subjected to any disqualification, though it may be regulated by law. Similarly section 5(l) of the Azad Jammu and Kashmir Legislative Assembly Election Ordinance provides six qualifications while more than a dozen disqualifications. The learned Additional Advocate‑General referring to the clauses D, E and F added to section 5(1) of the Election Ordinance contended that these were incorporated by Act (1I) 1987 by the Assembly of which the petitioners were also members. By this, he means that the petitioners never deemed this qualification contrary to the Constitution and if it is so as they now maintain, this lends support to his argument that educated people are required to be elected to the Assembly so as to understand the spirit of Constitution and law.

30. Perusal of the different provisions of the Constitution reveal that the words qualification and disqualification have been used in a sense to be read as interchangeable as well. I may refer here subsection (4) of section 5 which begins with the words "that no person shall be qualified to be elected as President, unless: (A) he is a Muslim; (B) has attained the age of 35; (C) his name appears on the Electoral Roll; (D), he is qualified to be elected as Member of the Assembly". Similarly, subsection (4) of section 21 of the Constitution which deals Azad Jammu and Kashmir Council, is worded as follows: "21(4).‑‑The qualifications and disqualifications for being elected, as and for being, a member of the Council shall, in the case of a member referred to in clause (e) of subsection (1), be the same as these for being elected as, and for being a member of the Assembly. " Thus, without meaning that a person, who is qualified, cannot be said to be disqualified and vice versa the fact is clear that object of the Legislature has to be read keeping in juxtaposition all the provisions of law.

31. Arguments of the learned Advocates for the petitioners that no country of the world provides the academic qualification as a basis for election to any Assembly or Parliament and that without free and compulsory education up to matriculation level, enforcement of impugned Ordinance is ultra vires of the Constitution, is negated by a comparative table of qualification of the members of different Assemblies and Parliaments of the world to which I will refer hereafter, however, there is no reason to declare the impugned Ordinance unconstitutional for the reason that such a provision does not exist anywhere in the world as it is the political, economic, social, moral and other circumstances faced by each country which justify the validity or necessity of a law not of its being or not being in any other country. The Universality in the Legislation is not possible any where in the world. Notwithstanding that Mr. Akram Sheikh, has placed on record a comparative table of qualifications provided for members in different Parliaments of the world perusal of which reveals that Brazil. Cameron, Costa Rica,. Egypt, Indonesia, Ireland, Italy, Kenya, Kuwait, Lebanon, Malavi, Mali, Mauritius, Philippines, Uganda, Saint Winston, Syrian Arab Republic, Thailand, United Kingdom, Zairay, Zembia and Zimbabwe provide one or other academic qualification to ensure induction of educated, literate and knowledgeable representatives. In some of the countries secondary education or equal is provided while in others, different other types of literary academic qualifications are essential. Thus, worldwide trend is to prescribe a standard of qualification/education for election, especially in underdeveloped and developing countries.

32. The argument of the learned Advocate, Mr. Abdul Rasheed Abbasi, that though object and purpose of legislation was to be shown by the respondents so as to perceive constitutionality and reasonableness of the impugned Ordinance, but assuming that it is for the purpose of ensuring the induction of educated members in the Assembly, law graduates are only expected to do so, has implied reply in itself. 'The purpose and object of the law, explained by the learned Additional Advocate‑General at bar, is to open the doors of Assembly to the educated persons so as to raise level and standard of the State and the Government. He is right in stating so and I may add that functions of the Assembly as is clear from its name i.e. Legislative Assembly is to legislate for governing the territories of Azad Jammu and Kashmir, State Subjects and the persons living therein. This purpose can be better achieved by entry of educated people in the Assembly who are well aware and conversant with the world affairs and at least are able to read and write. If the education is provided as criteria, voters would be in a better position to choose highly qualified and best people to represent them. Thus choice of the voters is also enlarged and that way it would encourage the educated people to come to the politics and then to the Assembly, rather prepare themselves for becoming "Baboos" only, in view of the hereditary politics in the country. Though the petitioners have played their role under the circumstances which have been prevailing in Azad Jammu and Kashmir in a befitting manner; but, under the changed circumstances, they have to accept the hard facts of the life to which they and their generations can be confronted with. Reasonableness and object of the law is thus clear from above and also meets the criteria laid down in the commentary on Article 19 by Basu in Vol. C, Sixth Edition of Constitution of India and O.K. Ghosh v. EA. Joseph AIR 1963 SC 812 which are referred by the learned Advocate for the petitioners, Mr. Abdul Rasheed Abbasi. Mr. Akram Sheikh, Advocate, read before the Court following excerpts from the Words and Phrases, Permanent Edition Vol. 14, St. Paul Minn 'Publishing Company, from the paper book placed before the Court by him, which is as follows: "Education" is a broad and comprehensive term. It has been defined as the process of developing and training the powers and capabilities of human beings. To 'educate', according to one of Webstor's definitions, is to prepare and fit for any calling or business, or for activity and usefulness in life. Education may be particularly directed to either mental, moral, physical powers and faculties, but in its broadest and its best sense it embraces them all. And, wherein an institution is incorporated for the education of boys, its trustees did not exceed their authority when they established an institution providing a place where young men whose early education had been neglected could be instructed, their physical welfare cared for and a practical knowledge of work especially agriculture, given them daily. " Reading of the above para. also supports view that the education depends upon the developing skills of the human beings, make them fit for the business they have undertaken and this education includes Physical, Moral and Mental Education, minimum standard for acquiring that skill is literacy i.e. skill of reading and writing up to a particular level. The contention of Mr. Akram Sheikh is that the scope of the Electors and Voters be enlarged and person who is voter must have right to contest the elections. He on this point, placed reliance upon 2nd Edition of the Book 'Parliaments of the World', Vol (1), relevant portions of which are placed in his paper book. There can be no cavil with it that the scope should be enlarged and every skilful and capable person must have a right to be voter and once he is registered as voter, he must have right to participate in the elections. This also depends on the social and economic circumstances etc. of each country. We wish we could reach to the level of the countries which see the matter from that perspective and time should not be far off when we can track on the path and that is not possible unless well‑educated and visionary leadership comes to lead us in the Assembly as well as in the Government. For the time being, the law as it has to be enforced and under law distinction still exists between the voters and persons to be elected. Age of a voter, under law, is 18 years, but, the age for the purpose of being a member of the Assembly is 25 years and above; And for the President thirty years and above. These are just two examples quoted from the Constitution. Thus the argument of the learned Advocate for the petitioners militates against the express scheme of the Constitution however, it is good ground for consideration of the Parliament, if it is composed of educated members and they mean so.

33. Argument of the learned Advocate for the petitioners that without providing sufficient education facilities and without making education up to the Matriculation level compulsory, the petitioners cannot be compelled to be Matriculates for being elected, though, attractive on the face of it, but we cannot lose sight of the fact that the fellow citizens of the petitioners living in and around the locality from which they hail, possess highest qualifications comparable with their counterparts in any developed country of the world. They acquired highest educational, academic as well as practical qualifications passing through and hailing from the same circumstances and areas, from where the petitioners hail. They have achieved excellence for their interest in acquiring knowledge and higher education, but the petitioners choose to lead them without being educated. Where there is will there is a way and if one does not choose that way, the law has to follow its course. However, we wish that the State should strive to make education at least up to secondary level free and compulsory.

34. There is no cavil with the case‑law cited by the learned counsel for the petitioners on the point of striking down of a law on the ground of unreasonableness and for infringement of fundamental right, but the impugned provision is neither in conflict with Fundamental Right 7, nor is it against the morality or public order, except to the extent of membership of Ali Khan Chughtai, hence the authorities are not applicable in the case in hand, which are discussed hereafter.

35. In 0: case reported as Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 4 16), some provisions of the Political Parties Act were found in conflict with the fundamental rights as enshrined in Article 17(2)(3) of the Constitution; In the other case reported as Miss Benzir Bhutto v. Federation of Pakistan (PLD 1989 SC 66), provisions of Representation of the People Act, 1976 were called in question which envisaged the elections on non‑party basis. The Supreme Court declared the relevant provisions as violative of the fundamental rights contained in Article 17(2) of the Constitution. In the case reported as Jammu and Kashmir Tehreek‑e‑Ammal Party and 11 others v. Azad Government and others (PLD 1985 Azad J&K 95), section 8(a) of the AJ&K Political Parties (Amendment) Ordinance, 1985 and the provisions of section 5(2)(xii) of AJ&K Legislative Assembly Election (Amendment) Ordinance, 1985 were called in question on the ground of their being in consistent with Fundamental Right 7(4) which provided for cancellation of registration of the political parties which obtained less than 12 and a half per cent. of aggregate of the total valid votes cast in the election and less than 5 per cent. of the aggregate of the valid votes cast in each district and consequently the member so elected was to lose the seat. The High Court of Azad Kashmir felt pleased to hold that the legislation was ultra vires the Constitution in view of Fundamental Right 7 of section

4. In the case of Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1998 SC 473) the order of dissolution of National Assembly dated 18‑4‑1993 was declared as without lawful authority for being contrary to spirit of fundamental right of the citizens to form a Political Party and to contest the election under the banner of the party and then form the Government. As said earlier none of the fundamental rights of the petitioners except of Ali Khan Chughtai to the extent of membership is infringed hence the case‑law referred by the learned counsel has no nexus with the case in hand neither public order or morality is being disturbed through the impugned Ordinance. The cases of Mrs. Arshad Ali Khan v. Government of the Punjab 1994 SCMR 1532 and 1995 PCr.LJ 587, Muhammad Ayyaz Khan v. District Magistrate and others, also deal with the public order and morality which have also no relevance with the case in hand. The case reported as PLD 1982 .Lah. 77 referred on the point of morality and that qualification of a member must exist throughout the tenure of term and if any disqualification is incurred, it disentitles the member to hold the seat. The case reported as Referring Authority v. Sardar Sikandar Hayat PLD 1982 SC (AJ&K) 112 deals with the vires of law amended during the pendency of proceedings whereby certain amendments were affected which amounted to take away a vested right, the Supreme Court felt pleased to declare the law null and void. This authority has direct bearing on the case of Ali Khan Chughtai as far as his existing membership is concerned.

36. Mr. Ghulam Mustafa Mughal Advocate for one of the petitioners contended that as the petitioner fulfilled the qualification at the time of issuance of notification by the Election Commission, therefore he had a vested right to contest the election which has been taken away through the impugned Ordinance, hence it militates against Fundamental Right 7 of section

4. His reliance upon the case reported as Asif Ali Zardari v. The State 1993 PCr.LJ 783; Muhammad Fayaz and 5 others v. Shahnawaz and 30 others 1999 PLC (C.S.) 1493; Fazal Dad and others v. The State 1995 MLD 1299; Nazir Hussain v. Zia‑ul‑Haq and others 1983 SCMR 72 have also no nexus with the case in hand, which are, therefore, irrelevant. However, no vested right of Ali Khan to the extent of his being a member is taken away as discussed somewhere else in the judgment.

37. In the case of Fauji Foundation and another v. Shamim‑ur‑Rehman PLD 1983 SC 457, it is held that a law cannot be struck down by the High Court on the point of malice neither on the ground of point of time, as the law‑giver is the sole judge of necessity of the Legislation. Same is held in the case reported as Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC, 66 that the power of the President to promulgate an Ordinance is legislative power and legislation so made cannot be struck down on the ground of mala fide or lack of bona fide. Same principle of law is laid down in the case of Raja Muhammad Niaz Khan v. Azad Government and others PLD 1988 SC 53.

38. Mr. M. Tabassum Aftab Alvi, the learned counsel for the respondents has rightly contended that law is to be read as it is and nothing can be put in or subtracted therefrom if the words are clear. The impugned Ordinance contains a clear disqualification and is couched in the clear words in the section of law which deals with the disqualification, hence there is no ambiguity in it and it shall be read as it is and no other meanings can be given thereto. The Supreme Court of Azad Jammu and Kashmir in the case of Azad Government and others v. Genuine Rights Commission and 7 others 1999 MLD 268 placing reliance upon plethora of case‑law has held that while interpreting words employed in a statutory provision, the same should be given their natural meanings and nothing should be added to or subtracted from the provisions. It is held that law should be interpreted as it is and not as it should be.

39. The case of the petitioner, Mr. Ali Khan Ghughtai, however is, distinguishable on one account i.e. he is a sitting member of the Assembly and is continuing so since the elections held in 1996. He was not subject to any disqualification when he contested and won election in 1996, however, through the impugned Ordinance he is disqualified from being a member. Disqualifying a person from holding a representative office to which he was validly elected amounts to taking away a vested right and in fact a punishment and Fundamental Right No.4 of the Constitution does not authorize the punishment of a person for an act or omission that was not punishable by law at the time of the act or omission. The only one sentence of the impugned Ordinance i.e. "for being a member" infringes with the Fundamental Right No.4 of the Constitution, hence ultra vires. This sentence is separable from the rest of the clause, hence without effecting the preceding words it is declared as repugnant to the Constitution, to that extent, consequently Mr. Ali Khan Chughtai shall continue as member till the expiry of the present tenure of the Assembly.

40. In view of above‑stated reasons all the petitions are hereby dismissed, however, the impugned Ordinance to the extent of disqualifying Mr. Ali Khan Chughtai for being Member of the Assembly is declared repugnant to the Constitution and of no legal effect. He shall continue till the expiry of present tenure of the Assembly. No order as to costs. H.B.T./22/AJK Petitions dismissed/Order accordingly.