P L D 1957 (W (PLP)

CONSTANTINE, J.

By virtue of the Constituent Assembly Order, 1955, dated 28th May 1955, the total membership of the Constituent Assembly was fixed at eighty. The combi nation of this order and of the Representation of States and Tribal Areas Act 1955, dated 10th July 1955, provided the number and method of selection in respect of the various areas of Pakistan as follows: 40 to be elected by the persons elected to East Bengal the Legislative Assembly of East Bengal East Bengal 21 to be elected by the persons elected to Punjab the Legislative Assembly of Punjab Punjab 4 to be elected by the persons elected to the Legislative Assembly of North-West Frontier Province North-West Frontier Province 5 to be elected by the persons elected to Sind the Legislative Assembly of Sind. Sind. 1 to be elected by the Shahi Jirga and Baluchistan unofficial members of Quetta Municipality 1 to be elected by the Municipal Corporation. Karachi 2 to be nominated by the Ruler Bahawalpur 1 to be elected by the Legislative Assembly Khairpur 1 to be elected by the Rulers of Swat, Dir Frontier and Amb States and the Regent of Chitral States. States. 4 to be elected by the Council of Rulers Baluchistan States Union 3 to be elected by the members of the tribal Advisory Council. Tribal Areas Elections and nominations duly took place. The Establishment of West Pakistan Act, 1955, dated 14th October 1955 provided in section 11 for an Interim Provincial Legislature for West Pakistan, to be composed of 310 members, as provided in the second schedule to the Act. The former Provinces of the Punjab, Sind and the N.-W. F. P., were divided into districts : for each district a certain number of members were to be elected by the members elected to the former Provincial Assemblies from constituencies within that particular district. The same scheme applied to Bahawalpur. The elected members of the Legislative Assembly of Khairpur were to elect four members. The "Special Areas" and the Baluchistan States Union were divided into areas, and the Jirga of each area was to elect a certain number of members for each area. Lastly the municipalities and Cantonment Boards in Quetta and Karachi were given certain rights of election. Section 14 restricted the representation of the Punjab to 40 percent of the membership. Section 13 of the same Act substituted a new section 8 in the Constituent Assembly (Proceedings and Privileges) Act 1955, empowering the Governor of East Bengal or that of West Pakistan to take steps to fill a casual vacancy in the Assembly and to appoint a returning officer who should conduct the election in accordance with rules in the schedule to the Cons tituent Assembly (Proceedings and Privileges) Act, 1955. On 23rd March 1956, the Constitution of Pakistan came into force. Part XIII consisting of Articles 222 to 234 is headed "Temporary and Transitional Provisions" Art. 223 provides in sub-article 1 for the Constituent Assembly to be the National Assembly constituted in accordance with the provisions of the Constitution. Sub-Article (2) of Article 223 reads : "Any casual vacancy in the National Assembly under this Article shall be filled in accordance with such rules as may be made in that behalf by the President". Article 141 provides that whenever a casual vacancy occurs in the National Assembly or a Provincial Assembly a bye-election to fill the vacancy shall be held not later than three months from the date of the occurrence of the vacancy. Vice Mr. M. A. Gurmani there was a casual vacancy in the National Assembly on the 23rd March 1956, whether because as Governor of West Pakistan his seat became vacant by virtue of Art. 70 (5) when the Constitution came into force (as is stated in the petition or whether because (as is stated in the counter affidavit) he had resigned from the Constituent Assembly on 18th March 1956). The National Assembly (Filling of Casual Vacancies) Rules 1956, made by the President, came into force on 17th May 1956. Rule 5 provides. "5.-(1) When the seat of any Member of the Assembly elected by the Province of East Pakistan falls vacant, a person shall be elected thereto and at such election only those persons shall be entitled to vote who are at the time of such bye-election members of the Provincial Assembly of East Pakistan, and if at the time of such bye-election that Pro vincial Assembly stands dissolved persons entitled to vote to fill the vacancy shall be only "those members of the Assembly who have been elected by the Province of East Pakistan. (2) When the seat of any member of the Assembly elected by the Province of West Pakistan falls vacant, a person shall be elected thereto and at such election only those persons shall be entitled to vote who have been elected to the Assembly by the Province of West Pakistan. (3) If a vacancy relates to a seat reserved for a Muslim, the vacancy shall be filled by electing a Muslim, and if the vacancy relates to a seat reserved for a non-Muslim the vacancy shall be filled by electing a non-Muslim". The respondent was appointed returning officer with effect from 17th August 1956. The petitioner has prayed for an order restraining the respondent from holding the bye-election. Of three grounds he has given up the third, lack of bona fides. The first ground is based on Articles 4 and 5 of the Con stitution. Rule 5. so it is said, discriminates ex facie between the two Provincial Assemblies, and is therefore void to that extent. If members of the East Pakistan Provincial Assembly were given the right to vote at a bye-election, then the petitioner, a member of the West Pakistan Provincial Assembly, being denied the equivalent right, has been deprived of the equal protection of law. To this the reply in the counter affidavit is that the old Province of the Punjab returned 55 percent of the representatives to the Constituent Assembly, whereas in the present West Pakistan Assembly the Punjab representation amounts to 40 percent and further the old electoral colleges in the areas of West Pakistan ceased to exist. The principles of law regarding Art. 5, both according to the learned Attorney General and Mr. Naseem are contained in cases of the Supreme Court of India which in turn adopt the principles laid down by the Supreme Court of the United States of America. Both parties agree with the 7th proposi tion at p. 326 of Balsara's case (A I R 1951 S C 318) laid down by Fazal Ali, J. (with whom the remaining judges concurred). "

7. While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis." From Rule 5 read with previous constitutional legislation two principles are clearly deducible. One is that the elector ates are to be representative of East or West Pakistan as a whole. The second principle, subject to the first, is that if the original electoral body still exists, it is to be employed, but if not, the members representing East or West Pakistan in the Constituent Assembly are to form the electorate. The President has been entrusted by the Constitution with the power and discretion to adopt the principles that he may think fit, and it is not for this Court to praise or blame. If these principles are fairly deducible as I think they are, then it seems clear to me that the difference in treatment of the Assemblies is not arbitrary, but is based on a real and subs tantial difference between them, having a just and reasonable relation to the filling of casual vacancies. The East Pakistan Legislative Assembly until dissolu tion (casual vacancies being disregarded) remains in fact the original electoral college. In West Pakistan the three main electoral colleges have disappeared. In form therefore the West Pakistan Legislative Assembly is not the original Electoral college. In substance too it is no mere reproduc tion or aggregate of the former electoral colleges. The representation of the largest area and largest population, the Punjab has shrunk from 55 per cent. in the West Pakistan section of the Constituent Assembly to 40 per cent. in the West Pakistan Assembly : apart from this, it cannot be 1 postulated that the process whereby members of an individual district in the three former Assemblies of Sind, Punjab and the N. W. F. P. elected from their number a lesser number to represent that district in the new West Pakistan Assembly would result in a faithful reproduction of the political complexion of the former Assemblies in the corresponding sections of the New Assembly, for parties might lose or gain in this process : furthermore in what I may call without disrespect the minor areas there were changes in the actual electorates. A contention not raised in the petition was touched upon in arguments, namely, that section 8 of the Constituent Assembly (Proceedings and Privileges) Act, 1955 is still in force. The reply is that Article 224, which continues all laws in force, contains the proviso " save as is otherwise expressly provided in the Constitution " and Article 223 (2) contains an express provision that a casual vacancy shall be filled in accordance with such rules as may he made in this behalf by the President section 8 must, therefore, yield to Article 223 (2). The second ground raised in the petition is that originally Article 141 provided that a bye-election shall be held not later than three months from date of occurrence of a casual vacancy in the National Assembly. This was altered by the President's Order VII of 1956, entitled The Removal of Difficulties (Holding of Bye-elections) Order so as to alter the period of three months to six months. Article 234 reads :- " 234. (1) The President may, for the purpose of re moving any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, and the Indian Independence Act, 1947, together with Acts amending or supplement ing those Acts, to the provisions of the Consti tution, by Order, direct that the provisions of the Constitution shall, during such period as may be specified in the order, have effect, subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient: Provided that no such order shall be made after the first meeting of the National "Assembly constituted after the first general election held for the purposes of that Assembly. (2) Every Order under this Article shall be laid before the National Assembly, and may be amended or repealed by Act of Parliament." The petitioner contends that the President's power of adaptation is confined to the transition from the provisions of the Government of India Act, 1935 etc., to the provisions of the Constitution. The clause is illustrative not exhaustive R and, the contention is opposed to the plain grammatical meaning of the section. The petitioner further contends that the words in Ziaul Haq v. Government of West Pakistan (P L D 1956 Lah. 358 ( p. 362)) "The test of adaptation lies in the fact that but for the alteration carried out the law which has been altered would not be applicable to the new surroundings " or a general test : that is a clearly wrong reading of the case in my opinion : the point in that case was whether the Governor was entitled under section 5 of the Establishment of West Pakistan Act, 1956 to substitute a Commissioner for Government as the authority competent to supersede a Municipality. The Court held that such an alteration was not within the scope of the power of adaptation, since the power, having been given for the purpose of bringing pre-existing laws into conformity with the rise of the new Province was limited to this purpose. Article 224 (2) gives a similar temporary power to the President. But in Article 235 the President is given the power of adaptation for the express purpose of removing difficulties. The President states in the preamble to his order that it is not possible to hold by elections within three months of the Constitution Day, and thus for a period of nine months amends Article

141. Now as regards the interim Assemblies, both National and Provincial, the President had to frame rules for filling casual vacancies. These were framed in respect of the National Assembly on 17th May 1956. On 3rd June 1956 the West Pakistan Assembly passed a resolution that it should be the electoral college. The election was postponed in order that the Central Govern ment (on whose advice the President acts) should consider the matter. The Prime Minister was absent from 23rd May 1956 to 26th July 1956 from Pakistan. Hence the delay in considering the resolution. In my opinion this was genuine difficulty in holding by election within three months of the Constitution Day, i.e., before 23rd June 1956. The alternative contention of the respondent inconsis tent with the President's order amending Article 141, was that this Article does not apply to the interim National Assembly constituted by Article

223. It is true that Ariticle 223 is one of the temporary and transitional provisions, but these provisions are -to be read with the rest of the Act : for instance in section 225 dealing with the interim Provincial Assemblies, it is provided that Article 79 (1) shall not apply. Article 141 reads as follows "

141. Whenever the National Assembly or a Provincial Assembly is dissolved, a general election for the reconsti tution of the Assembly shall be held not later than six months from the date of dissolution ; and whenever a casual vacancy occurs in any such Assembly, a bye-election to fill the vacancy shall be held not later than three months from the date of occurrence of the vacancy: Provided that the Chief Election Commissioner may, if in his opinion climatic Conditions so require, hold a by election at any time after three months, but not later than six months, from the date of the occurrence of the vacancy". Now, it is true that the wording of Article 223 (1) is such that the first portion of Article 141 does not apply to the Interim National Assembly. Does the word "such" in the second portion of the section refer merely to the words "the National Assembly or a Provincial Assembly" occurring in the first half or does the word "such" refer to National and Provincial Assemblies which (unlike the interim National Assembly) are subject to dissolution ? As a matter of, grammar the word "such" refers to National and Provincial Assemblies without reference to dissolution. Nor is there' anything extraordinary or repugnant, if this time limit of three months should apply to the Interim Assembly. The learned Attorney-General argued that since rules are to be treated as part of the statute empowering rules to be made. Articles 5 and 4 cannot be invoked to invali date rules framed under powers granted by the Constitution. To this the short answer is that rules are to be consistent with the statute. I raised myself the point whether the members of the West Pakistan section of the National Assembly should have been parties to the application. I did not press the point since the petition merited dismissal and since the learned Attorney-General did not adopt the point. I have, however, grave doubts whether if our opinion on the merits had been otherwise, we should have been justified in taking away the electoral right from those members without having heard them. The above are the reasons which I consider justify the order of dismissal which the Full Bench announced, the matter being urgent, immediately on the close of arguments on 31st August 1956. INAMULLAH, J.--This is a petition by a Member of the West Pakistan Assembly under Article 170 of the Consti tution of the Islamic Republic of Pakistan seeking relief against alleged infringement of certain fundamental right. I had the advantage of reading the order of Sir George Constantine, J., but not that of my other brethren. Though I agree with the conclusion of Constantine, J. that the petition should be dismissed, I do not entirely agree with his line of reasoning, and would like to add a few words of my own. The facts urged in the petition are fully set out in the order of Sir George Constantine, J., and I do not wish to repeat them. The learned Advocate for the petitioner raised threefold contentions before us: (i) That Rule 5 of the National Assembly (Filling of Casual Vacancies) Rules, 1956, made by the President, was invalid, as the same was a discriminatory legislation. (ii) That section 8 of the Constituent Assembly (Pro ceedings and Privileges) Act, 1955, is still in force. (iii) That under Article 141 of the Constitution of Pakistan, the casual vacancy should have been filled within three months from the date of the occurrence of the vacancy. The casual vacancy in question not having been filled within three months, the President had no power to enlarge the period of three months by his order. So far as the first contention is concerned, it was urged on behalf the petitioner that the two Provincial legis latures of East Pakistan and West Pakistan have been treated equally under the Constitution of Pakistan, and therefore they should be treated as a class. Or: the assump tion that the two Provincial Legislatures formed a class, it was urged that Rule 5 of the National Assembly (Fill ing of Casual Vacancies) Rules, 1956 was a piece of dis criminatory legislation, created inequality before the law, and therefore violated the principle of equal protection guaranteed under Article 5 of the Constitution. Article 5 reads as under: "(i) All citizens are equal before the law and are entitled to equal protection of law. (ii) No person shall be deprived of life or liberty, save in accordance with law ". Article 5 of our Constitution corresponds to the equal protection clause of the fourteenth Amendment of the Constitution of the United States of America, which declares that no " State shall deny to any person within its jurisdic tion the equal protection of laws". The principle underlying this clause has been summed up by Prof. Willis, which has been relied upon by Indian Authorities while considering Article 14 of the Indian Constitution which corresponds to Article 5 of our Constitution, Prof. Willis sums up the law as follows :- "Meaning and effect of the guarantee.

The guarantee of the equal protection of the laws means of the pro tection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not pro hibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed. The inhibition of the amendment . . . . was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legis lation. It does not take from the States the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classifica tion, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis". (Page 579, 1st Edition of " Constitutional Law by Prof. Willis). The Supreme Court of India has accepted this as correct exposition of law ; Charannjit Lall v. Union of India (A I R 1951 S C 41), State of Bombay v. F. N. Balsara, (A I R 1951 S C 318). The above principle of law is equally applicable while considering the mos: valuable and important guarantee provided under Article 5 of our Constitution. The learned Advocate while conceding the principle of classification has contended that the classi fication was not reasonable. The contention, as already mentioned, was that the Members of the West Pakistan Legislative Assembly have been subjected to a discrimination vis-a-vis the Members of the East Pakistan Legislative Assembly in-as-much-as the Members of the former Assembly have been denied the right to vote in the bye-election of casual vacancy in the National Assembly, while the Members of the latter Assembly have been given such right. Prima facie the argument appears to be plausible but loses its force if it is examined in the light of the principles deducible from the rule laid down, as mentioned above, by Professor Willis: (i) That the presumption is always in favour of con stitutionality of an enactment ; (ii) if any state of facts can reasonably be conceived to sustain classification, the existence of that state of facts must be assumed; (iii) That the burden lies upon the petitioner to show that the classification is without any reasonable basis. The burden indeed is very heavy on the petitioner. This is deducible from the principle laid down in Middleton v. Texas Power & L -Co. (249 U. S. 150-152 at pp. 156-158). The relevant passage runs as follows: " It must be presumed that a Legislature undertakes and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations .are based upon adequate grounds". This principle can legitimately be extended to the Members of the Cabinet on whose advice the President acts. The onus, therefore, is on the petitioner to show that the impugned rule is unreasonable. The petitioner, in my opinion, has failed to discharge the onus. One is merely asked to presume on the assumption that as there is a classification, therefore the same is unreasonable. Classifi cation by itself cannot lead one to an inference that it is unreasonable and arbitrary. The petitioner must suggest some valid ground in support of his contention as to why this classification, assuming that it is a classification, is unreasonable. The petitioner has not suggested any valid ground to hold the classification to be unreasonable. The relative merit of the election by the Members of the Pro vincial Legislative Assembly and by the Members of the National Assembly does not further the contention of the petitioner. This Court cannot go into the relative merit of the procedure provided under the rules if the same is not unreasonable and arbitrary. On the other hand, the respondent has given a valid reason for the basis of the classification which has been fully considered by Sir George Constantine, J., and I need not repeat the same. Moreover, keeping in view the principle that where state of facts can reasonably be conceived to sustain classi fication, the existence of those facts must be assumed, I am of the view that there is another reasonable ground for the classification that the casual vacancy in the National Assembly representing the West Pakistan should be filled by votes of the Members of the National Assembly re presenting the West Pakistan Province. This rule of election would give representation to a class of persons who are not represented in the West Pakistan Provincial Assembly. This question requires a little detailed consideration. On the 28th May 1955 the Governor-General by his Order XII of 1955 passed an order called "the Consti tuent Assembly Order, 1955". Para. 4 of the Order is relevant for the consideration of the point in question, and I would reproduce the same: " (1) The Constituent Assembly shall be composed as follows: Muslim Non-Muslim Total East Bengal 31 9 40 Punjab 20 1 21 North-West Frontier Province 4 . 4 Sind 4 1 5 Baluchistan 1 . 1 Karachi 1 . 1 Bahawalpur State 2 . 2 Baluchistan States Union 1 . 1 Khairpur State 1 . 1 Frontier States 1 . 1 Tribal Areas 3 .. 1 Total 69 11 80 (2) The representatives of East Bengal, the Punjab, the North-West Frontier Province and Sind shall be elected by the persons elected to the Provincial Legislative Assemblies by the method of proportional representation with single transferable vote. (3) The representatives of Baluchistan shall be elected by Members of the Shahi Jirga and the non-official members of the Quetta Municipality, and the representatives of Karachi by members of the Municipal Corporation of the City of Karachi. (4) Arrangements for the representation of Bahawalpur State, the Baluchistan States Union, Khairpur State, the Frontier States and the Tribal Areas shall be made by the Constituent Assembly pursuant to the proviso to sub section (3) of section 19 of the Independence Act". The Constituent Assembly, on the 10th July 1955, in pursuance of 'sub-para. (4) of Para 4 of the Constituent Assembly Order, 1955, passed an Act known as "the Representation of States and Tribal Areas Act, 1955". According to this Act, the Ruler of Bahawalpur State was authorised to nominate two persons to represent that State in the Constituent Assembly. The Members of the Council of Rulers of Baluchistan States Union, namely, the Rulers of Kalat, Makran, Kharan and Lesbella were to elect one person to represent the Baluchistan States Union in the Constituent Assembly. The Rulers of the States of Swat, Dir and Amb and the Regent of Chitral State were to elect one person for the Constituent Assembly to represent those States. Lastly, the Members of the Tribal Advisory Council of the North-West Frontier were to elect three persons to represent the Tribal Areas in the Constituent Assembly. What is important to note at this stage is that while the Ruler of Bahawalpur State, the members of the Council of Rulers of Baluchistan States Union, the Rulers of States of Swat, Dir, Amb, the Regent of Chitral State and the Tribal Advisory Council of the North-West Frontier have been given a right of representation in the National Assembly but they have not been given any right of representation in the West Pakistan Provincial Assembly under section 11 read with the second schedule of the Establishment of West Pakistan Act. I may swa,.here that I had put a question to the learned advocate far the petitioner if there was any difference between the "Members of the Tribal Advisory Council of the North-West Frontier" and the "Council of Elders" (Jirgas) and I understood him to say that there was a difference, and this fact has not been controverted by the learned Attorney-General. It is clear from the above statement of fact that the Constituent Assembly for reasons best known to itself had given representation to a certain class of persons in the Constituent Assembly but it has not given them any representation in the Provincial Assembly of West Pakistan. The total number of representatives of this class, as given in para. 4 of the Constituent Assembly Order, 1955 comes to seven members out of forty. The votes of seven members can be of considerable weight on any issue concerning the section of persons that they represent. In regard to a casual vacancy in the National Assembly for the West Pakistan Province, the question before the President may well have been whether to allow vote of election to the representatives of the various class of persons who had been given right to elect some of the Constituent Assembly members, now the National Assembly, under the Representation of States and Tribal Areas Act, 1955, or to ignore them altogether by allowing the members of the Provincial Assembly, where this class is not represented at all, to elect a member for the National Assembly. To my mind, the reasonableness of this basis of classification cannot be minimised on the ground that it was less democratic than the election by the Members of the Provincial Assembly. If Rule 5 of the National Assembly (Filling of Casual Vacancies) Rules, 1956, has given more weight to the wishes of the Constituent Assembly, now the National Assembly, as impliedly expressed by them in the Representation of States and Tribal Areas Act, 1955, it cannot be held that it was unreasonable and arbitrary

Now, coming to the other contention raised by the learned advocate for the petitioner, I am clearly of the view that section 8 of the Constituent Assembly (Proceedings and Privileges) Act, 1955, and Article 141 of the Constitution of Pakistan do not apply to a casual vacancy in the present National Assembly of Pakistan. The relevant Articles of the Constitution, which would be necessary to consider for this aspect of the case are Article 141 and clauses (1) and (2) of Article 223 of the Constitution. Article 141 runs as under :- "

141. Whenever the National Assembly or a Provincial Assembly is dissolved, a general election for the recon stitution of the Assembly shall be held not later than six months from the date of dissolution ; and whenever a casual vacancy occurs in any such Assembly, a bye-election to fill the vacancy shall be held not latter than three months from the date of the occurrence of the vacancy: Provided that the Chief Election Commissioner may, if in his opinion climatic conditions so -" mire, hold a bye-election at any time after three months, otit not later than six months, from the date of the occurrence of the vacancy". Clauses (1) and (2) of Article 223 read as under :- "(1) Until the first meeting of the National Assembly constituted in accordance with the provisions of the Constitution, the body functioning as the Constituent Assembly of Pakistan, immediately before the Constitution Day, shall, as from that day, be the National Assembly of Pakistan. (2) Any casual vacancy in the National Assembly under this Article shall be filled in accordance with such rules as may be made in that behalf by the President". The short point is whether the casual vacancy in question has to be filled in accordance with clause (2) of Article 223 of the Constitution, or in accordance with section 8 of the Constituent Assembly (Proceedings and Privileges) Act, 1955, or Article 141 of the Constitution of Pakistan. To my mind, the key words are : "Any casual vacancy . . . . . . . . under this Article". The words "under this Article" in Article 223 (2) of the Constitution clearly indicate the intention of the framers of the Constitution. Reading the two clauses (1) and (2) of Article 223 of the Constitution together, it is clear that the 'casual vacancy' has reference to the vacancy that may occur in the present National Assembly. The 'casual vacancy' in Article 223 of the Constitution has no reference to a Constituent Assembly which may come into being after the general election; while the 'casual vacancy' in Article 141, reading the Article as a whole, would have reference to a casual vacancy that may take place in the National Assembly after the election. In this view of the matter, the 'casual vacancy' occurring in Article 223 of the Constitution "shall be filled in accordance with such rules as may be made in this behalf by the President. In my opinion, the Constitution of Pakistan provides a distinct and separate machinery for filling casual vacancies occurring in the present National Assembly, namely, "in accor dance with such rules as may be made" by the President. For these reasons I would hold that section 8 of the Constituent Assembly (Proceedings and Privileges) Ac 1955, and Article 141 of the Constitution have no application to the present casual vacancy, and, therefore, the question of adaptation of Article 141 under Article 234 of the Constitution was misconceived. I must, before disposing of this petition, express a few words about the scope of Article 234 of the Constitution. Article 234 runs thus :- "The President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935 and the Indian Independence Act, 1947, together with Acts amending or supplementing those Acts, to the provisions of the Constitution, by Order, direct that the provisions of the Constitution shall, during such period as may be specified in the Order, have effect, subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient: Provided that no such Order shall be made after the first meeting of the National Assembly constituted after the first general election held for the purpose of that Assembly. (2) Every Order under this Article shall be laid before the National Assembly, and may be amended or repealed by Act of Parliament". The learned Attorney-General contended in the first place that the question whether any difficulty existed or not is not justiciable. In the second place he contended that the power conferred upon the President was very extensive and that the President could modify Article 141 of the Constitution, as he has done, by his Order called the Removal of Difficulties (Holding of Bye-Elections) Order, 1956. In my opinion, the question of the existence of difficulty is justiciable. Whenever the Legislature has intended that the decision of the authority concerned should not be justiciable, it has used the words "in the opinion" or the like expres sion. Reliance was placed by the learned Attorney-General on the following passage in the case of Bhagat Singh v. Emperor (A I R 1931 P C 111) :- "The petitioners ask this Board to find that a state of emergency did not exist. That raises directly the question who is to be the Judge whether a state of emergency exists. A state of emergency is something that does not permit of any exact definition : It connotes a state of matters called for drastic action which is to be judged as such by someone. It is more than obvious that that someone must be the Governor-General and he alone. Any other view would render utterly inept the whole provision. Emergency demands immediate action, and that action is prescribed to be taken by the Governor-General. It is he alone who can promulgate the Ordinance". No such consideration as weighed with the Privy Council has been urged so far as the consideration of the question of difficulty" in Article 234 is concerned. Coming to the next contention of the learned Attorney -General that the language of Article 234 of the Constitution was wide enough to empower the President to modify the period provided under Article 141 of the Constitution for holding the bye-election, I am of the view that Article 234 does not contemplate removal of difficulties created by non-observance of the provisions of the Constitution itself. The object underlying Article 234 appears to be this that if any provision of the law does not fit in with the Constitution the Constitution may be adapted, i.e., made to fit. Article 234 of the Constitution itself particularises one class of diffi culties. The difficulties contemplated by Article 234 of the Constitution should, in my opinion, be of similar nature as particularised under Article

234. In this connection the observation made by Kayani, J. in the case of Ziaul Haq v. Government of West Pakistan (P L D1956 Lah. 358) while interpreting the words "for the purpose of adaptation of laws, make repeals of, omission from, addition to, and modification of any Act" occurring in section 5 of the Establishment of West Pakistan Act, 1955 is helpful. The relevant words in Article 234 of the Constitution, "subject to such adaptation, whether by way of modification, addition, or omission" are, no doubt, somewhat different from section 5 of the Establishment of West Pakistan Act, but in both of these provisions the object was to be achieved only by '`adaptation" and therefore assistance can be derived from the observation of Kayani, J. He observed : "The meaning is that the Governor-General may for the purpose of adaptation of laws, make "repeals of, omissions from, additions to, and modifications of any Act'. It is equally clear that any alteration is to be made only for the purpose of adaptation of laws ; that is, if the laws existing on the day of integration do not suit one another, or fit into one another, they will be made to fit". The observation of Patanjali Sastri, J., in Shankari Prasad Singh Deo and others v. Union of India and others (A I R 1951 S C 458) which has been relied upon by the learned Attorney-General in support of his contention would also show that the difficulties which were intended to be removed by the President under Article 392 of the Indian Constitution, which is to the same effect as Article 234 of our Constitution, were the difficulties in the Constitution itself arising because of the inappropriateness of the language of some of the pro visions. Sastri, J. observed :- "Difficulties are bound to arise in applying provisions which by their terms are applicable to a Parliament sitting as a Single Chamber. Those difficulties, arising as they do out of the inappropriateness of the language of those provisions as applied to provisional Parliament have to be removed by modifying that language to fit in with the situation created by Article 379". No authority has been cited by the learned Attorney-General to show that adaptation of the Constitution is permissible even where difficulty has arisen solely because of the non-observance of any particular provision of law. Moreover, a distinction has to be drawn between "adaptation" and "amendment". The Constituent Assembly has drawn p a distinction between "amendment" and "adaptation". Under Article 216 "the Constitution or any provision thereof may be amended or repealed by an Act of Parliament", while Article 234 speaks only of "adaptation whether by way of modification, addition or omission". "To amend" means `'to free from faults ; correct ; to make alterations", while "to adapt" means "to fit ; to make suitable ; to alter so as to fit for new needs". It may be conceded that amendment in a Constitution is introduced because of some changed circumstance, but then, as a rule, amendment is not introduced in order to reconcile different provisions of the Constitution or to bring the Constitution in line with any other lady, while the object of adaptation is to fit some provision of the Constitution with another provision of the same, or with any other law. In my opinion, the so-called modification introduced in Article 141 of the Constitution is not an adaptation, but an amendment of the same by introducing some new proviso to the same. I would, for the reasons given, dismiss the petition. WAHIDUDDIN, J.

I am of the opinion that this Writ Petition should be dismissed. The considerations that have weighed with me in arriving at this conclusion are given below. According to the contention raised by the petitioner the right of the respondent to conduct the ensuing bye-election from West Pakistan to the National Assembly is assailed on the following grounds :- (a) That rule 5 of the National Assembly (Filling of Casual Vacancies) Rules 1956, takes away the fundamental right guaranteed to the petitioner under Article 5 of the Constitution Act as it classifies and makes the distinction between members of the East Pakistan and the West Pakistan Legislative Assemblies. This classification is not based on any reasonable distinction and substantial basis. (b) that under Article 141 of the Constitution Act, bye-elections to the National Assembly should be held within 3 months from the date of the occurrence of the casual vacancy. As no election was held within this time the casual vacancy in dispute cannot be filled unless the said article is amended in accordance with the provisions of the Constitution. (c) that the President's order dated 31st May 1956, known as Order No. VI of 1956, and the other order dated 9th June 1956, known as Order No. VII of 1956 are ultra vires of the Constitution in-as-much-as he had no right to extend the period specified in the said article for holding the bye-elections. The alleged amendment made in Article 141 by him is also without jurisdiction and illegal, as it had not been done for the purpose of resolving diffi culties and are not in the nature of adaptations. It is needless to refer to the historical background and the circumstances under which the Constituent Assembly that ultimately framed and passed the Constitution, came into existence. The fact, however, remains that according to the Constitution Act, the body functioning as the Con stituent Assembly of Pakistan is to act as National Assembly of Pakistan, until the first meeting of the National Assembly, constituted in accordance with its provisions. Article 223 of the Constitution Act reads as under :- " 223 (1). Until the first meeting of the National Assem bly constituted in accordance with the provisions of the Constitution, the body functioning as the Constituent Assembly of Pakistan, immediately before the Constitution Day, shall, as from that day, be the National Assembly of Pakistan. (2) Any casual vacancy in the National Assembly under this Article shall be filled in accordance with such rules as may be made in that behalf by the President. (3) Persons holding office immediately before the Con stitution Day as Speaker and Deputy Speaker of the Constituent Assembly shall, as from that day, hold office respectively as Speaker and Deputy Speaker of the National Assembly under this Article, on the same terms and con ditions-as to remuneration and other privileges as were applicable to them immediately before the Constitution Day." According to the above-mentioned Article during the transitional period any casual vacancy arising in the National Assembly is to be filled in accordance with such rules as may be made in that behalf by the President in pursuance of the powers conferred by sub-clause (2) of the said Article, on 17th May 1956, the rules known as the National Assembly (Filling Casual Vacancies) Rules 1956, were published in the Official Gazette Extraordinary of Pakistan. Rule 5 of the said rule is the subject-matter of the present dispute and is reproduced below: " 5 (1) When the seat of any member of the Assembly elected by the Province of East Pakistan falls vacant, a person shall be elected thereto and at such election only these persons shall be entitled to vote who are at the time of such bye-election members of the Provincial Assem bly of East Pakistan, and if at the time of such bye-election that Provincial Assembly stands dissolved persons entitled to vote to fill the vacancy shall be only those members of the Assembly who have been elected by the Province of East Pakistan. (2) When the seat of any member of the Assembly elected by the Province of West Pakistan falls vacant, a person shall be elected thereto and at such election only those persons shall be entitled to vote who have been elected to the Assembly by the Province of West Pakistan. (3) If a vacancy relates to a seat 'reserved for a Muslim, the vacancy shall be filled by electing a Muslim, and if the vacancy relates to a seat reserved for a non-Muslim, the vacancy shall be filled by electing a non-Muslim." Mr. Naseem, the learned counsel for the petitioner, has urged that under the Constituent Assembly (Proceedings and Privileges) Act 1955, the petitioner along with other members of both the Assemblies, that is, in West and East Pakistan, had the right to vote for the bye-election to fill the casual vacancy from their respective areas. They form a well defined class and receive equal treatment under the Constitution Act. The discrimination and classification made under rule 5 between the members of the two Assemblies is not based on any reasonable distinction and substantial basis, and, therefore, offends Article 5 of the Constitution Act. Article 5 of the Constitution Act reads as under :- "5. (1) All citizens are equal before law and are entitled to equal protection of law.

2. No person shall be deprived of life or liberty save in accordance with law." It will also be proper to reproduce here Article 4 of the Constitution, which reads as under :- "4. (1) Any existing law, or any custom or usage having the force of law, in so far as it is inconsistent with the provisions of this Part, shall, to the extent of such inconsis tency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part, and any law in contravention of this clause shall, to the extent of such contravention, be void. (3) Nothing in this Article shall apply to any law relating to the members of the Armed Forces, or the Forces charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them". It is contended that the said rule takes away or abridges the right conferred under Part II of the Constitution Act and is, therefore, void. The election proposed to be held by the respondent is under a law which is inconsistent with the fundamental right guaranteed under the Constitution, and should not be allowed to be held. The learned counsel for the petitioner in order to gain support to his contention in this matter referred to the provisions of the Indian Constitution particularly to Article

14. It reads as under :- "

14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." According to him, the language of the said Article, except with slight variation; is identical and carried the same import and meaning. Article 14 of the Indian Constitution was the subject matter of interpretation of several Indian decisions. The leading cases on the subject are reported in Charanjit Lall v. Union of India (A I R 1951 S C 41), State of Bombay v. F. N. Balsara (A I R 1951 S C 318) and State of West Bengal v. Anwar Ali (A I R 1952 S C 75). The learned judges in these cases while interpreting the said Article, have placed much reliance on American case-law, as the equal protection clause of the 14th amendment of the Constitution of the United States of America, declares :- " that no State shall deny to any person within its juris diction, the equal protection of law." Fazl Ali, J. in Balsara's case (A I R 1951 S C 313 at p.326) while considering the meaning and scope of Article 14 of the Constitution Act, enunciated seven import ant principles and summarised them in the following "(1) The presumption is always in favour of the consti tutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made menifest by experience and its discrimina tions are based on adequate grounds. (2) The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class. (3) The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, anti the varying needs of different classes of persons often require separate treatment. (4) The principle does not take away from the State the power of classifying persons for legitimate purposes. (5) Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough. (6) If a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. (7) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable' and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis." The learned Attorney-General did not dispute the above mentioned principles laid down in the said authority, but contended that the petitioner had no fundamental right in respect of bye-election to the National Assembly and none has been infringed. According to him there is neither any discri mination nor any classification. Discrimination is only when there is one law for a certain class and then certain members of that class are singled out for different treatment. In the present case the two Assemblies are not at par with each other in the matter of representation and rule provides one procedure for one Province and another for the other Pro vince. He has, in the alternative, 'contended that even if there was classification, then also according to the principles laid down in State of Bombay v. F. M. Balsara (A I R 1951 S C 318) the power of legislative authority to classify legislation is not taken away. According to him, classification can be based on territorial, geographical and on other similar grounds. The condition of the two Provinces in Pakistan are different : The East Pakistan Assembly was directly elected. On the other hand, the West Pakistan Assembly was elected in an indirect manner. The first is more representative then the other. It was further urged that although the members of the two Assemblies had a right to vote in the bye-election to the Constituent Assembly before the Con stitution came into force, yet the President was asked to frame fresh rules. This clearly indicates that the framers of the Constitu tion wanted to give a go-bye to the old rules and entrust the matter to the President with wide powers. The learned Attorney General, in support of his argument, has referred to the Governor-General's Order XII of 1955 and West Pakistan Establishment Act, 1955 and urged that the election to the Constituent Assembly was of a much more representative character than the one held to elect members of the West Pakistan Assembly. He laid great stress on the fact that casual vacancies to be filled are those of the National Assembly. The President while framing the rules has created electoral colleges for West Pakistan as near as possible to those provided in Governor-General's Order XII of 1955. It was also pointed out that the representation given to the old Punjab Province in the Constituent Assembly was 55 percent, and this representation was secured under the rules in ques tion. According to him these reasons sufficiently establish the reasonableness of the classification and the rules framed by the President are therefore not void. He has also pleaded that rule 5 having been framed under the provisions of the Constitution Act acquired the force and quality of the, Constitution Act, and, as such, cannot be attacked on the ground that it runs contrary to Article

5. The contention of the Attorney-General that there is neither any classification or discrimination contemplated in the rules in question is not well founded. There is no doubt that Article 5 does not imply political equalities in the sense that any citizen whether an adult, lunatic or a minor must be given a right to vote to the National Assembly. What it emphasises and seeks to ensure is that amongst equals,) the law should be equal and in the words of Professor Willis " it merely requires that all persons subjected to such legislation, shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabi lities imposed, and as laid down in Southern Railway Company v. Greene (216 U. S. 400 at p. 412) this means "subjection to equal laws applying alike to all in the same situation." In other words, there should be no discrimination between the persons if as regards the subject-matter of legislation, the position is the same. The subject matter of legislation in the present case is the bye-election to fill casual vacancy in the National Assembly. If for such a legislative body, a right is given to the members of a Provincial Legislative Assembly in Pakistan, and that right is denied to the members of the only other Provincial Legislative Assembly, then certainly there is discrimination between the members of the said bodies. There is no doubt that members of the Provincial Assemblies in Pakistan are a defined class like Medical Practitioners, Practising Lawyers, Members of Municipalities etc. If the Legislative Authority chooses to confer right of franchise for the election of a legislative body to a portion of a well-defined class, then it would be creating discrimina tion and it will certainly offend Article 5 of the Constitution Act. It will be, however, otherwise if such classification can be justified on some reasonable grounds. The view taken by me, however, does not resolve the difficulties. We shall have, therefore, to examine the alterna tive plea advanced by the respondent. If this Court was only to decide whether the electoral college consisting of the members of the West Pakistan Assembly was more democratic than the Electoral College consisting of the members of the National Assembly from West Pakistan, then I would have no hesitation to hold that the former Electoral College is much more democratic and representative. But this alone cannot determine the decision of the question involved in this matter. Pakistan is a vast country and in various parts of its territory different circumstances and conditions prevail. They may be due to geographical situation, may be based on territorial, economic and communal and other similar consi derations. The Constitution itself contemplates passing of different legislation for different Provinces by their separate legislatures. This is evident from the list of subjects, given in the schedule appended to the Constitution. Thus the Constitution itself recognises classification on territorial basis. If that is so, then any legislative authority contemplat ed in the Constitution, while legislating, is entitled to take into consideration conditions and circumstances prevailing in the different parts of Pakistan. To put it more clearly, having regard to the fact that con ditions vary from locality to locality, a State while legislating is not prevented from adopting any system of law as it sees fit for all parts or any parts of its territory. But such classi fication must be based on reasonable and substantial basis. It should not be imaginary, whimsical and arbitrary. The consideration underlying those legislations should be relevant to the object and ought not be unjust in their circumstances. If the classification contemplated in the present case is also approached on these principles, then it is abundantly clear that the contention of the learned Attorney-General that different conditions prevail in West Pakistan is not without foundation. It will be pertinent to mention here that West Pakistan 1x11 14th October 1955, consisted of various Provinces and States, besides the centrally administered and excluded areas. These areas have now been brought together under the One Unit Scheme. The former Province of Punjab in order to pacify and create goodwill in the inhabitants of the smaller areas, have foregone for a period of ten years its true representation in the Provincial Legislature. In fact, the West Pakistan Assembly has been constituted on this basis. In such circumstances, if the President, on ministerial advice, has attempted to give proper representation to this area in the matter of election of West Pakistan Members to the National Assembly, then such consideration cannot be said to be unjust, irrelevant and unreasonable. There can be two opinions on this question. It may be that these regional considerations ought not to prevail any longer. But if in the matter of elections to the Central Legislative Body it is recognised for a temporary and during a transitional period, then in my opinion it cannot be said to be an unreasonable basis. The fortunate aspect of rule 5, however, is that the President has given the right of franchise to members of the West Pakistan National Assembly, and has not narrowed it down to the ministers of his cabinet from this area. If such would have been the case, then certainly the classification would have been unjust and unreasonable. In any event, the members of West Pakistan to the National Assembly are to be elected and not be nominated. The principle of classification is that there should be similarity and not identity of treatment. On this ground also, the classification contemplated in rule 5 cannot be attacked. The presumption in law is always about the constitu tionality of a Statute. It should be also presumed that the legislative authority acts reasonably and effect must be given to the legislation enacted by them, unless they are so unreason able having regard to the circumstances of the matter that no reasonable man could say that they were reasonable. I am aware that the ultimate responsibility of deciding the reasonable or unreasonable nature of classification is on the Court, but they must attach the greatest possible weight to the opinion of the legislative body. According to some autho rities, the Courts can only speculate. They are not in posses sion of all the material that leads to the enactment. In this connection the following observations made in the case of Ogden v. Saunder (12 Wheat 213 at p. 270), cited with approval in Chapter XV of Cooley on Constitutional Law (1931) 4th Ed. at p. 198, are worth consideration "It is but a decent respect due to the wisdom the integrity and the patriotism of the legislative body by which any law is passed to presume in favour of its validity, until its violation of the Constitution is proved beyond all reasonable doubt". The learned author judge Cooley has further observed at pp. 198-199, as follows: "Legislatures have their authority measured by the Cons titution ; they are chosen to do what it permits and nothing more, and they take solemn oath to obey and support it. When they disregard its provisions they usurp the autho rity, abuse their trust and violate the promise they have confirmed by an oath. To pass an act when they are in doubt whether it does not violate the Constitution, is to treat as of no force the most imperative obligation any person can assume. A business agent who would deal in that manner with his principal's business would be treated as untrustworthy ; a witness in Court who would treat his oath thus lightly and affirms things concerning which he was in doubt would be held a criminal, indeed, it is because the legislature has applied the judgment of its members 'to the question of its authority to pass the proposed law, and had only passed it after being satisfied of the authority, that the judiciary waive their own doubts and give it their support". In such circumstances the Courts have to exercise their mind in the manner suggested by Marshal, C. J., in the case known as Yazoo Land Fraud Case reported as Fletcher v. Peck (6 Cranch at pp. 87-128). "The question whether a law be void for its repugnancy to the Constitution is, at all times a question of such delicacy which ought seldom if ever, to be decided in the affirmative in a doubtful case. The Court when impelled by duty to render such a judgment, would be unworthy of its high station could it be unmindful of solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounc ed to have transcended its powers and its acts to be consi dered void. The opposition between the Constitution and the law should be such that the Judge feels a clear and strong conviction of their incompatibility with each other". The observations of Holmes, J., in Otis and Gassman v. Oarjar ((1930) 47 Law Ed. p. 323) are to the same effect: "While the Courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible aim or based upon conceptions of morality with which they disagree. Considerable latitude must be allowed for differences of view, as well as for possible peculiar conditions which this Court can know but imperfec tly, if at all. Otherwise a Constitution instead of embodying only relatively fundamental rules of right as generally understood by all English speaking communities would become the partisan of a particular set of ethical or economical opinion, which by no means are held sember ubiqus et ab omnibus." I am in respectful agreement with these observations, and I am of the opinion that under Article 223 (2), the President has unfettered powers to frame rules for the filling of casual vacancy in the National Assembly. It is as plenary as possessed by any other Legislative functionary contemplated under the Constitution Act, and that rule 5 of the said rules does not offend Article 5 of the Constitution Act. During the course of the hearing, I was much impressed by the argument advanced on behalf of the petitioner that if the seat given to Karachi was vacant, then there will be nobody to represent the interest of Karachi in the selection of a member in a bye-election to fill such a casual vacancy. It was urged that for this reason the unreasonableness of rule 5 is apparent on the face of it. But a further probe in the matter revealed that a legislation cannot be all-embracing. It can be imperfect and defective in details, yet for such a reason it cannot be declared as void. This aspect of the question was considered in a recent case in Sakhawant Ali v. State of Orissa (A I R 1955 S C 166). Bhagwati, J., made the following observations: " Legislation enacted for the achievement of a particular object or purpose need not be all-embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories would embrace within the scope of legislation and merely because certain categories would stand on the same footing as those which are covered by the legislation are left out, would not render legislation Which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by Article 14." This brings me to the other argument advanced by the learned Attorney-General that rule 5 was framed under the provisions of the Constitution Act, and so has acquired the force and quality of the Constitution Act and, as such, cannot be attacked on the ground that it offends or runs contrary to Article

5. It was argued that these rules were framed under Article 223(2) of the Constitution Act. The President had unfettered powers, and they have acquired the force of the law and should be treated as part of the Constitution. In support of this contention, the learned Attorney-General had placed reliance on a number of authorities, particularly Wicks v. Director of Public Prosecutions(1947, 1 All Eng. Rep. 205); Wlllingal v. Norris (1909, 1 K B 57); Lakhan Singh v. Balbir Singh (A I R 1953 All. 342) and Institute of Patent Agents v. e7oseph Lockwood (1894 A C 347). The learned Attorney-General has emphasised that the law mentioned in Article 4 is an ordi nary law, and does not contemplate the constitutional provision that has found its way in the Constitution. Without expressing my view whether the law mentioned in Article 4 is ordinary law or it embraces the law in the nature of constitutional laws, I am not at all impressed by this argument of the Attorney-General. The argument on the face of it can lead to anamolous results and can create lot of mischief. The learned Attorney-General has lost sight of the fact that rules framed under the ordinary enactment cannot take away the right given by the sections. In this case in Part II of the Constitution certain fundamental rights are guaranteed. They are not illusory but are real and substantial in effect. In fact, the Constitution is based on these fundamental rights. It will be a painful sight if these fundamental rights can be taken away by the process or the method proposed by the learned Attorney-General. It is beyond my comprehension how the rule-making power of the President during the transitional period, can be of such a far-reaching character that it can suspend the fundamental rights guaranteed in the Constitution. The learned Attorney-General has tried to support his argument by referring to the decisions mentioned above. They relate to ordinary enactments and the principle laid down there is that if under the provision of any enact ment, powers to frame rules are given to an authority then such rules will have the power of law, and will be considered to be as part of that particular enactment. It does not lead to the other conclusion which the learned Attorney-General has asked us to jump at, that if those rules are inconsistent with the very enactment itself, then still they will be considered as having the force of law and as part of the enactment. This argument is fallacious and does not deserve any further comment. The next question for consideration in this matter is whether Article 141 is applicable to bye-elections held to fill the casual vacancies in the National Assembly during the transitional period. Article 141 of the Constitution Act reads as follows: "Whenever the National Assembly or a Provincial Assembly is dissolved, a general election for the reconsti tution of the Assembly shall be held not later than six months from the date of dissolution; and whenever a casual vacancy occurs in any such Assembly, a bye-election to fill the vacancy shall be held not later than three months from the date of the occurrence of the vacancy: Provided that the Chief Election Commissioner may if in his own opinion climatic conditions so require, hold a bye-election at any time after three months but not later than six months, from the date of the occurrence of the vacancy. The scheme of the Constitution Act shows that it is divided into various parts, and the provisions which are to be enforced during the temporary and transitional period are mentioned in Part XIII of the Constitution Act. Article 141, however, appears in Part VIII which relates to the elections. The contention of the learned counsel for the petitioner is that according to this Article, a bye-election to fill the casual vacancy should be held not later than three months from the date of the occurrence of the vacancy and as the election in this particular case was not held within three months of the casual vacancy, the respondent is not entitled to hold it, unless this article is amended in accordance with the provisions of the Constitution. Having regard to the scheme of the Act, I am of the opinion that Article 141 is not applicable in the circumstances of the present case. Article 223 is a specific Article for filling the casual vacancies during the transitional period in the National Assembly and according to sub-clause (2) of this Article, the President is empowered to make rules and the bye-elections are to be held in accordance with such rules. These rules could also fix the period within which the casual vacancies may be filled. In the present case rule 3 provides that the occurrence of the vacancy shall be notified in the Official Gazette and as soon as may be reasonably practicable thereafter steps shall be taken to fill it. Thus the rules have specifically provided the period within which bye-election is to be held. The maxim generalia speeialibus non derogant i. e., general provisions will not abrogate special provisions can be invoked and is applicable in such cases. While dealing with this subject, Maxwell on Interpretation of Statutes (Tenth Edition) at page 177 observed :- " Having already given its attention to particular subject and provided for it, the legislature is reasonably presumed not to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these condi tions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one." The learned author at page 184 further observed: " When a general Act is incorporated into a special one, the provisions of the latter would prevail over any of the former with which they were inconsistent." It therefore follows that if one statute enacts on some subject in general terms and afterwards in the same statute intro duces special provision for a particular period then the subsequent provisions will pro Canto avoid or curtail the general provisions. Applying these principles I am driven to the conclusion that this contention of the petitioner carries no weight and the authorities concerned are governed by the rules framed under Article 223 (2) of the Constitution Act and not what is laid down in Article

141. In any case, even if it is held that Article 141 is applic able, then also the period fixed in this Article is in the nature of a direction and is not of a mandatory character. There are numerous authorities on this aspect of the case. The principle of law enunciated in those authorities is also discussed in Maxwell on Interpretation of Statutes. It is observed at page 376 that "when a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative". At page 381 the following remarks are also instructive :- " On the other hand, where the prescriptions of statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and Government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time. Thus, the 13 Hen. 4 (c. 7), which required justices to try rioters "within a month" after the riot, was held not to limit the authority of the justice to that space of time but only to render them liable to a penalty for neglect. To hold that an Act which required an officer to prepare and deliver- to another officer a list of voters on or before a certain day, under a penalty, made a list not delivered till a later day invalid, would, in effect, put it in the power of the person charged with the duty of prepar ing it to disfranchise the electors, a conclusion too unreasonable for acceptance." In my opinion the time fixed in this particular is also o a directory character and, therefore, even if the election was not held within the period mentioned therein, the res pondent or the authorities concerned are not debarred to hold the elections. Non-compliance of the period in this: Article will only be an irregularity, and if it is found to have not seriously prejudiced any party, then its disregard will not be of a vital and effective character. The neglect of breach of duty imposed on the Election Commissioner in this Article may however, in appropriate case, be a ground for his removal according to the provision laid down in this chapter. The aggrieved party can also invoke the extraordinary juris diction of the High Court to compel the authority to hold election. It however, appears that the President has amended this provision of the Constitution under Article 334 of the Constitu tion Act. The learned counsel for the petitioner in this respect, has challenged the power of the President. According to him, the President has no right to amend the Constitution and the amendment made by his Order dated 9th June 1956 known as President's Order V11 of 1956, is ultra vires to the Constitution. My learned brother Inamullah, J. has discussed this contention in its various aspects and I am in complete agreement with the reasoning and the conclusion arrived at by him on this question. It may, however, add that if the modifications, addition or omission of the Constitution are not made with a view to meet genuine difficulties in its working and are also not in the nature of adaptations then such modifications, etc. will be ultra vires of the Constitution. On this view of the matter, I am constrained to hold that the President's Order VII of 1956, amending Article 141 off the Constitution is void and ineffective. The learned Attorney-General further raised a plea that Article 146 of the Constitution Act is a bar to the application under consideration. It was urged that the matter relates to election and the only remedy open to the petitioner is by way of an election petition. He invited our attention to a case in N. P. Poonuswami v. Returning Officer Namakal (A I R 1952 S C 64). In that case, their Lordiships of the Supreme Court of India were considering the effect of Article 329 (b) of the Indian Consti tution, almost identical in terms of Article 146, in connection of an, alleged improper rejection of a nomination paper. This case is distinguishable from the facts of the present one. Here neither the Parliament has passed any law nor created the authority and prescribed the manner in which the election petitions are to be heard. Under Article, 146, an Act of the nature of Representation of the People Act of India is contemplated. That stage has yet to arrive. The following observations in the above mentioned case will throw light on this aspect of the case: "Broadly speaking, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made ; (2) there should be an executive charged with the duty of securing the due conduct of election; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections." The pre-requisites mentioned in the above passage do not exist in Pakistan. I am, therefore, clearly of the opinion that Article 146 is not applicable to the present case. Moreover, through this petition, the rules framed by the President for the conduct of bye-elections to the National Assembly, are challenged, and it is incidentally that the question of election is involved in this matter. In the circumstances of the present case, this Court has ample jurisdiction to hear this petition and the contention of the Attorney-General in this respect is not tenable. There yet remains another question which arose during the course of the hearing of this matter. My learned brother Muhammad Bakhsh, J, pointed out that casual vacancy mentioned in Article 223 of the Constitution, relates to casual vacancy arising in the National Assembly. It is an admitted position that the seat for which the bye-election is going to be held was originally occupied by Mr. Mushtaq Ahmad Gurrnani, the present Governor of West Pakistan Province. He resigned on 17th March 1956, and therefore the casual vacancy if any arose in the Constituent Assembly. It was therefore urged that the rules framed by the President will not be applicable to the present case, as the casual vacancy does not relate or has not arisen in the National Assembly. The learned Attorney-General at first conceded that technically speaking the vacancy in question cannot be treated to have arisen in the National Assembly. On reconsideration, however, he urged that the casual vacancy in the present case by operation of law will be considered to have arisen in the National Assembly. I think the learned Attorney-General is right in this view of the matter. The body that was func tioning as the Constituent Assembly at the time when the Constitution came into force was the Constituent Assembly composed of 83 members. Thus, according to the provision of Article 223 of the Constitution Act, this body as a whole, whether there existed any vacancy or not, was to act during the transitional period as the National Assembly. The National Assembly also inherited, by the operation of law, all the rights and privileges attached or enjoyed by the Consti tuent Assembly. One of the characteristics of the Constituent Assembly was that it should be composed of 83 members. Therefore it can legitimately be said that the National Assembly should also be composed of 83 members. If any seat was vacant or not filled at the time when the body known as Constituent Assembly became National Assembly then by operation of law, such vacancy will be treated to have casually arisen in the National Assembly. Such was the intention of the Legislature is apparent from the fact that if for any reason all the seates representing any particular area or wing in Pakistan would have been vacant and if they are not treated as casual vacancy, then the National Assembly minus such member will lose its representative character

I am clearly of the opinion that such intention cannot be attributed to the framers of the Constitu tion: A truncated body could not be in the contemplation of the legislators. In view of this, I will hold that the casual vacancy in question arose in the National Assembly, and the rules framed by the President are applicable -to the ensuing Bye-Election. For the reasons given above this Writ Petition is dismissed. The parties to bear their own costs. LARI, J.

The result of this Writ Petition depends upon interpretation and application of Article 5 of our Constitution which enjoins equality before law. Equality of right is a principle of republicanism and a basic concept of Islamic Jurisprudence. Such an article must be liberally interpreted, and strictly enforced. Hence the necessity of dissent by me' even though a lone voice in the company of five. The Constituent Assembly was reconstituted in accordance with the Governor-General's Order XII of 1955. This provided that East Bengal should send 40-representatives, the Punjab 21, N.-W. F. P. 4, Sind 5, Baluchistan 1, Bahawalpur State 2, Baluchistan States Union 1, Khairpur State-1, Frontier States and Tribal Areas 3 representatives to it. The representatives of East Bengal, the Punjab, N. W.-F. P. and Sind were to be elected by the members of the Provincial Legislative Assemblies for these areas by the method of proportionate representation with single transferable vote. The representatives of Baluchistan were to be elected by members of Shahi Jirga and the non-official members of the Quetta Municipality while members of the Municipal Corporation of the City of Karachi were to elect member assigned to Karachi. The Constituent Assembly itself was to determine the manner in which the representation of Bahawalpur State, Baluchistan States Union, Khairpur State, the Frontier States and the Tribal Areas was to be secured on the Constituent Assembly. When the representa tives of East Bengal, the Punjab, N -W. F. P., Sind. Baluchistan and Karachi met they made arrangements for representation of the States and Tribal Areas in accordance with para 11 of this Order. This arrangement is embodied in the Representa tion of States and Tribal Areas Act, 1955: The Act provided that the Ruler of the State of Bahawalpur shall nominate 2 persons to represent that State, the members of the Council of Rulers of Baluchistan 'States Union shall select 1 person to represent the Union, the Rulers of the States of Swat, Dir and Amb and the Regent of Chitral States shall elect 1 person and the members of the Tribal Advisory Council of the N.-W. F. P. shall elect 3 persons to represent the Tribal Areas in the Constituent Assembly. In case of Khairpur State the Act provided that members of the Legislative Assembly of Khairpur State shall elect its representative. It would be seen from the above that people in some areas had nothing to do directly or indirectly with the election of their representatives in the Constituent Assembly. For instance Malir and Cantonment Areas of Karachi had no hand in electing the so-called representative from Karachi. Same was the case with Cantonment Areas in Quetta. Bahawalpur representatives were the nominees of the Ruler and so was the case with Baluchistan States Union and Frontier States. The Constituent Assembly therefore was neither directly nor indirectly representative of the whole of West Pakistan or its people. The Constituent Assembly Order XII of 1955 did not provide as to how casual vacancies shall be filled in as subsection 3 of section 19 of the Independence Act required that provisions in that behalf shall be made by the Constituent Assembly itself. The Constituent Assembly accordingly passed the Constituent Assembly Proceedings and Privileges Act, 1955. Section 8 is the relevant section. It runs thus :- "Filling of casual vacancies, (1) whenever the seat of a member of the Assembly becomes vacant the Speaker of Assembly shall within seven days of the vacancy give notice thereof in the Official Gazette. (2) Where the vacancy is in respect of a member from a Governor's Province, the Governor shall appoint a Returning Officer, who shall conduct the election in accordance with the rules in the Schedule to this Act. (3) Where the vacancy is in respect of a member from Baluchistan or Karachi, the Chief Commissioner shall appoint a Returning Officer, who shall conduct the election in accordance with the rules in the Schedule to this Act. (4) Where the vacancy is in respect of a member from Bahawalpur State, the Baluchistan States Union, Khairpur State, the Frontier States or in the Tribal Areas, the election shall be conducted in accordance with the provisions of the Representation of States and Tribal Areas Act, 1955". The effect of section 8 of the Act was that casual vacancy in the Constituent Assembly be filled in such a manner as to maintain the number assigned to each area in West Pakistan. A revolutionary step in constitutional development was taken by the Establishment of West Pakistan Act 1955, which came into force on 14th October 1955. By virtue of this Act all the Provinces and States in West Pakistan were welded into one Province to be known as West Pakistan and a Legislature representative of the whole of West Pakistan was also established. The total number of Assembly was to be at 310 of which 223 were to be elected by the members of the Provincial Assemblies for the Punjab, Sind and Frontier. Khairpur Assembly elected 4, non-official members of District Board of Bahawalpur and Bahawalnagar elected 12 and non official members of District Board of Rahimyar Khan elected

11. The members of the Council of Elders of the Tribal Areas of N.-W.F.P., elected 22 members and the Council of Elders for Baluchistan elected 7 members while non-official members of the Municipal Committee and Cantonment Boards of Quetta elected

1. The members of the Council of Elders of Chitral, Dir and Swat States elected 9 members and the Council of Elders of Kalat, Kharan, Makran among themselves elected

7. Lastly the elected members of the Karachi Municipal Corporation elected 13 while elected members of the Cantonment Boards of Karachi, Drigh Road, Malir and Manora elected

1. It is clear that people from all areas of West Pakistan were in one manner or other associated with the election of the representatives of these areas to West Pakistan Assembly. For instance people of Karachi Canton ment, Malir and Drigh Road had no say whatsoever in the election of Karachi representative to Constituent Assembly but they sent one representative through the non-official members of their Boards to the West Pakistan Legislative Assembly. Same was the case with Cantonment Boards of Quetta. The non-official members of the Boards took the place of Ruler in Bahawalpur while members of Council of Elders took the place of Rulers in Baluchistan States Union and Frontier States. The West Pakistan Interim Legislature thus was fairly representative of all the areas and people of West Pakistan. With the integration of various Provinces and States in West Pakistan into one the question arose whether representation of West Pakistan on the Constituent Assembly should continue to be on the old basis or a new one warranted by the integration itself. The Constituent Assembly inserted section 13 in the West Pakistan Establishment Act. It substituted a new section for the old section 8 of Constituent Assembly Proceedings and Privileges Act, 1955. The effect of this amendment in the Constituent Assembly Proceedings and Privileges Act was that from 14th October 1955 onward all vacancies in the Constituent Assembly from among members relating to West Pakistan were to be filled in by members of the West Pakistan Interim Legislative Assembly just as casual vacancies relating to East Pakistan were to be filled in by the members of East Pakistan Legislative Assembly. This continued to be the position till 23rd March 1956, when the Constitution came into force. The new Constitution created two Provincial Assemblies one for East Pakistan and the other for West Pakistan vide Article

76. Both were to have the same Constitutional status and powers. Article 225 (1) of the Constitution laid down that the Provincial Assembly for the Province of East Bengal functioning immediately before the Constitution Day was to exercise the powers conferred and perform the duties imposed upon the Provincial Assembly of East Pakistan by or under the provisions of the Constitution. Similar status was given to the Interim Legislative Assembly for West Pakistan constituted under section 11 of the Establishment of West Pakistan Act, 1955. Article 225 (2) clearly stated that the Legislative Assembly of that Province consisting of persons elected thereto under section 11 of the Establishment of West Pakistan Act 1955, shall exercise the powers conferred and perform the duties imposed upon the Provincial Assembly of West Pakistan by or under the provisions of the Constitution. The Constituent Assembly became National Assembly by virtue of Article 223 (1) of the Constitution. Sub-clause 2 of the same Article provided that any casual vacancy in the National Assembly under this Article shall be filled in accordance with such rules as may be made in that behalf by the President. Necessity of such rules did not indicate, as contended by the Attorney-General, any change of policy which is writ large on the pages of the constitution but was occasioned by the failure of the Constituent Assembly to determine whether joint or separate electorate should be adopted. The Rules impuged in this writ petition have been framed under this Article. Rule 5 (1) of these Rules provided that when the seat of any member of the assembly elected by the Province of East Pakistan falls vacant a person shall be elected thereto and in such election only those persons shall be entitled to vote who were at the time of such elections members of the Provincial Assembly of East Pakistan. Rule 5 (2), however, lays down that when the seat of any member of the Assembly elected by the Province of West `Pakistan falls vacant a person shall be elected thereto and in such elections only those persons shall be entitled to vote who had been elected to the National Assembly by the Province of West Pakistan. The clear effect of Rule 5 is that the right of filling casual vacancy enjoyed heretofore by the members of East Pakistan Assembly is maintained while a similar right admittedly enjoyed by the members of West Pakistan Assembly up to 23rd March 1956, is negatived and that right is conferred on the members of the National Assembly appertaining the West Pakistan. The question is whether this Rule violates the fundamental right enshrined in Article 5 (1) of the Constitution. Article 5 (1) says: "All citizens are equal before law and are entitled to equal protection of law". This obviously means that all actually situated similarly will be treated alike. In other words the purpose of Article is to rest the rights and obligations of all persons upon the same rule under similar circumstances. The Article cannot prohibit classification of citizens provided the classification is based on a difference which is pertinent and real. The very purpose of the Article would be nullified if an arbitrary and unreason able classification is permitted. This Article in substance corresponds to last part of 14th Amendment of the American Constitution. Article 14 of Indian Constitution is also modelled on the relevant part of 14th Amendment of the American Constitution. The Indian cases cited at the Bar proceed on the basis of American cases and it would suffice to quote only two American authorities in this connection. Mr. Justice Holmes one of the most celebrated Judges that the United States has produced observed in the case of Quaker City Col. Co. v. Pennsylvania (1). " The equality clause requires merely that the classification shall be reasonable. We call that action reasonable which an informed, intelligent, just-minded, civilised man could rationally favour. In passing upon legislation assailed under the equality clause we have declared that the classification must rest upon a difference which is real and distinguished from one which is seeming, specious or fanciful, as that all actually situated similarly will be treated alike ; that the object of the classification must be the accompalishment of a purpose or the promotion of a policy, which is within the permissible functions of the State and that the difference must bear a relation to the object of the legislation which is substantial, as distinguished from one which is specula tive, remote or negligible". In another case Louisville Gas df E. Co. v. Coleman (2), the Supreme Court observed: "It does not however forbid classification, and the power of the State to classify for purposes of taxation is of wide range and flexibility, provided always, that the classification "must be reasonable not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation . . . . . . That is to say, mere difference is not enough : the attempted classifica tion must always rest upon some difference which bears a reasonable and just relation to the Act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis". It is admitted that a distinction has been made between the members of East Pakistan Assembly and members of West Pakistan Assembly but the Attorney-General sought to r justify discrimination on two grounds. The first ground is that East Pakistan Assembly is the original electoral college which elected representatives of East Pakistan on the Con stituent Assembly while the West Pakistan Assembly is not the electoral college which elected representatives to that body from West Pakistan. It has to be seen from the stand point of an informed, intelligent, just minded and civilised man whether this difference is real and substantial. When the Constituent Assembly was constituted in June 1955 many Provinces and States existed in West Pakistan. Seats were assigned to these Provinces and States and electoral colleges (1) United States S C R 72 Law Edition p. 927. at p. 932 (2) 22 United States at p. 774 were also formed on that basis. With the establishment of a single Province for the whole of West Pakistan different Legislatures necessarily, disappeared and their place was taken by one single interim Provincial Legislature for the whole of the West Pakistan. The Act which abolished the various distinguishable regions in West Pakistan also legislated that new West Pakistan Assembly shall take the place of all electoral colleges that had been created for the purpose of election or selection to the Constituent Assembly. The interim West Pakistan Legislative Assembly in fact functioned as electoral college for filling in casual vacancies to the Con stituent Assembly from 14th October 1955 up to 22nd March 1956. The altered situation in West Pakistan was also recognised and sanctified by the Constitution whereby only two Provinces were recognised and only two Provincial Legislatures were created. The Constitution went a step further when it recognised the existing Provincial Legislature for West Pakistan as equivalent to provincial Legislature to be elected under the new Constitution. Can any rational man think of old Electoral colleges which have become anachronism in the present state of things, especially when they have been legally and constitutionally substituted by another body in the shape of West Pakistan interim Legislative Assembly. On the day when the rules in question were framed East Pakistan Assembly was the electoral college for East Pakistan and West Pakistan Legislative Assembly was electoral college for the West Pakistan. The mere fact that prior to 14th October 1955 some other electoral colleges existed cannot constitute a distinction real and substantial between East Pakistan Assembly and West Pakistan Assembly. To use the words of the Supreme Court it is a mere difference but not a real and substantial one. The next ground advanced by the Attorney-General was that Punjab had only 40 per cent. representation in the West Pakistan Interim Assembly while it had 55 per cent. representation in the Constituent Assembly and as the purpose was to maintain the original complexion of the Constituent Assembly, the West Pakistan Interim Legislature could not form electoral college. The argument is that electoral college should be such as would ensure that casual vacancy is filled by persons who enjoyed the confidence of the region from which the member was originally returned. Let us examine and find out if this ground is a real basis of the rule. Take the case of Karachi which returned only one member to the Constituent Assembly. Assuming that that seat fall vacant and a question of filling the vacancy arises. Under the impugned rule it would be filled in by the remaining members of the Constituent Assembly hailling from West Pakistan. The result would be that Karachi member would be elected by members hailling from other areas of West Pakistan and Karachi itself would have no voice what soever. The basis advanced by the Attorney-General is negatived in this case. The same will be the position in case of casual vacancy in respect of members from Bahawalpur, Khairpur arid many other areas, It is true that a legislation need not be all embracing and merely because certain categories are left out of the legislation would not be void. But in this case the rules are all embracing and purport to regulate all bye-elections whether in respect of members from old Punjab, old Bahawalpur or Karachi. A basis can be reasonable only if it applies to all cases covered by the legisla tion. The consideration inherent in this ground is ruled out by the very object for which rules came into being. The object is to have a casual vacancy filled in by West Pakistan and not by any other particular region thereof. In such a case no question of compartmental representation arises. The very fact that West Pakistan Assembly on a motion of privileges unanimously demanded that it continue to be recognised as electoral college for filling in casual vacancies shows that this consideration has become wholly irrelevant in the present set up. Both the grounds suggested suffer from a common infirmity. The difference alleged between East Pakistan Legis lative Assembly and West Pakistan Legislative Assembly must bear a relation to the object of the legislation which is subs tantial as distinguished from one which isspeculative, remote or negligible. Now what is the object of framing the rules ? The object is to secure representative of West Pakistan on the National Assembly in a casual vacancy. Naturally this task can be assigned either to the people of West Pakistan or to a body which is the most representative of the people of West Pakistan. The members of the Constituent Assembly hailling from West Pakistan, as already pointed out, do not represent all the areas of West Pakistan and are less representative than the West Pakistan Legislative Assembly as some of them are nominees of Rulers who have altogether disappeared from the scene. On the other hand West Pakistan interim Legislative Assembly is a body which was more democratically elected and is the only body which is representative of all the areas included in West Pakistan. The members of the Constituent Assembly from the view point of the object of the rules could not be at all compared with the members of the West Pakistan Legislative Assembly. Keeping in view the criteria laid down by Mr. justice Homes I have no hesitation in holding that the alleged distinctions neither bear a substantial relation to the object of the Rules nor they rest upon alt difference which can be considered real by an informed, intelligent, just minded and civilised man. The same conclusion will be reached if we keep in view an other test laid down by the Supreme Court in the case. Hartford S. B. I. & Ins. Co. v. Harrison (81 Law Edition p. 1223). Therein they say that classification will hold good if it did not offend plain standard of common sense. Common sense would insist that the right of filling a casual vacancy would continue to vest in the only body which fairly represents the West Pakistan as a whole and that is none other than West Pakistan Interim Legislature. To give that right to members of the National Assembly is to give a right to majority of another class to increase its number irrespective of the wishes of those whom they claim to represent: The idea behind bye-elections is not to maintain original party position as indirectly suggested by Sir George Constantine but to get a representative of the electorate at the time of the bye-election. Public opinion is not static and bye-elections help to represent the latest current opinion in a house. In any event no harking back to the old dead pastor revival of considerations which have sought to be buried by recent legislation can appear reasonable to common sense even for transitional period when an electoral college heretofore recognised and consistent with the principles of the Constitu tion exists. The alleged grounds for distinction between East Pakistan Legislature and West Pakistan Interim Legislative Assembly having failed the test, of reasonableness as laid down earlier, the Court has no right to conjure up possible situation which might justify the discrimination and I have come to the conclusion that the Rule 5 (2) is repugnant to Art. 5 (1) of the Constitution and to that extent void. The pending bye-election is also challenged by the petitioner on the ground that in view of Article .141 of the Constitution, it could only be held within three months of the accrual of the vacancy, which admittedly took place on 18th March 1956. The learned Attorney-General tried to meet this argument in two ways. He firstly contended that Article 141 has no application to casual vacancies arising during the transitional period. My brother, Constantine, J. with whom Muhammad Bakhsh, J. has agreed, has held that Article 141 is applicable to the bye-election in question. I am in respectful agreement with his reasoning and conclusion. The alternate argument of the Attorney-General was that Article 141 has been amended by the President's Order VII of 1956 so as to extend the period of 3 months to 6 months. The petitioner argued that the President's Order VII of 1956 was beyond the scope of Article 234 on which the Attorney General relied for validity of the President's order in question. Justice Sir Constantine has accepted the plea of the Attorney General while my brothers Inamullah, J. and Wahiduddin J. have repelled it. I am in complete agreement with my brothers Inamullah J. and Wahiduddin J. in so far as they held that the President's Order VII of 1956 is beyond the scope of Article

234. The point has been discussed by my brother Inamullah J. and I need not deal with the point beyond making a few observations. Human memory is proverbially short but we have not yet forgotten and it is clear from the reported decisions that on a mere alleged mis reading of the judgment of the Federal Court in Tamizuddin's case (P L D 1955 F C 240) the executive wanted to amend the Government of India Act and Independence Act by means of Ordinances. The Federal Court had to explain the position in a subsequent decision to prevent the executive from this course. Situation has not yet altered perceptibly and the history has a tendency to repeat itself. Article 234 must be strictly construed so as not to place it on par with Article 216 which provides for amendment of the Constitution lest the Constitution of which the judiciary is the guardian and the protector may be altered beyond recognition. To apply Article 234 two conditions must co-exist, one the necessity of removing any difficulty and second the alteration made must be in the nature of an adaptation. The test of adaptation, if I may say so, with respect, has been truly laid down by our brother Kayani, J. If both the ingredients of Article 234 are taken into consideration it cannot be gain said that the difficulty which is sought to be removed must arise from the working of any provision of the Constitution and not crated by acts or omissions on the part of the adaptor or his adviser. The difficulty in this case on the basis of counter-affidavit is the creation of the Cabinet. In fact even on the day when the order extending three months period was passed, enough time of fourteen days was still left for holding a bye-election. Mere absence of the Prime Minister cannot hold up the work of the State. It is presumed that when the Prime Minister leaves the country for abroad, alternate arrangements for conducting state business exist. In any event Article 234 does not authorise the President to amend any provision of the Constitution to suit the convenience of the Cabinet or any member thereof. There is yet another ground which would justify the grant of writ petition. Article 223 (2) authorises the President to frame rules in accordance with which a casual vacancy in the National Assembly shall be filled in. Casual vacancy is defined in Article 218 as a "vacancy arising in the National or a Provincial Assembly otherwise than by reason of the dissolution of the Assembly." The word "arising" imports a vacancy in future, namely, on or after 23rd March 1956. The vacancy in question admittedly arose on 18th March 1956, and in the Constituent Assembly. If election had been ordered immediately thereafter it would have been held in accordance with Privileges and Proceedings Act which made the West Pakistan Interim Legislative Assembly electoral college for the purpose. The vacancy in question existed when the Constituent Assembly became a National Assembly, and Article 223 (2) cannot apply to such a vacancy which must be filled by the West Pakistan Interim Legislative in accord ance with Privileges and Proceedings Act, 1955. For the reasons given above I am of opinion that the petition should succeed and necessary writ shall issue. I dictated the above yesterday. Today's papers mentioned the issue of a President's Order XI of 1956 amending the provisions of Article 223 (2) of the Constitution so as to bring casual vacancies existing on 22nd March 1956, within the ambit of the rule-making power of the President. I sent for the Pakistan Extraordinary Gazette dated September 5th, 1956. The order has been issued under Article 234 (1) on the plea of removal of difficulties and adds the following words after "any casual vacancy in Article 223 (2)", "which having existed immediately before the Constitution Day in the body functioning as aforesaid has not been filled on that day in the National Assembly or which occurs on or after that day". There is no difficulty at all which can warrant an amend ment sought to be made by the order. It has already been held by the majority of the Full Bench comprising my brother Inamullah and Wahiddin, JJ. and myself that the question of difficulty is a justiciable issue. The Privileges and Proceedings Act, 1955 makes provision for filling in casual vacancy in the Constituent Assembly. This Act has not been repealed; in fact it has been continued by virtue of Article 224 of the Constitution.' Even the Attorney-General conceded that the Privileges and Proceedings Act, 1955 was in force except in so far as it was repugnant to Article 223 (2) of the Constitu tion. Article 223 (2) as already held by me covers vacancies arising on or after 23rd March 1956. A vacancy arising before 23rd March 1956 is to be filled according to the provisions E of the Privileges Act 1955. The electorate mentioned by the Act viz., the West Pakistan Interim Legislative Assembly exists and so does the machinery, with this adaptation introduced therein by virtue of Article 224 of the Constitution, that Election Commission will take the place of the Speaker. Any difficulty in filling the vacancy caused by the resignation of Mr. Gurmani can only arise if the Privileges and Proceedings Act is not acted upon. It has been observed by Inamullah, J. and respectfully assented to by myself and my brother Wahiduddin, J. that adaptation is not permissible when difficulty arises solely because of the non-observance of any particular provisions of law. Exactly same is the case there and I would therefore hold that Order XI of 1956 is ultra vices of the powers of the President under Article 234 of the Constitution. I cannot refrain from observing that I was rather dismayed by the issue of this Order. Among the questions canvassed at the Bar of the Full Bench were (1) Whether Article 223 (2) covered casual vacancy in existence on the eve of the enforce ment of the Constitution ; and (2) what was the scope of the powers of the President under Article

234. The judges of the Full Bench had not yet given reasons and were expected to do so by the 7th instant. An appeal to the Supreme Court had been permitted by the Full Bench and the matter was actually to come before the Supreme Court on the 8th of this month. The judiciary therefore was still seized of the questions. In such circumstances proper respect for the judiciary demands that the Executive should wait for the final interpretation of the law accept the law as interpreted by it and then proceed to take steps to amend the law if it be considered desirable and possible. (Vide observations of Chatterjee, J. in paras-89 to 95 at pages 19 and 20 of All India Reporter, Calcutta, 1949). A citizen comes for relief against the State on the basis of the existing law and it does not behave a party to the proceedings to amend the disputed law during the pendency of the proceedings so as to serve its own purpose. Such a procedure obviously militates against the principles of fair play. A. H. Petition dismissed.