2006 PLP 1311 (MLD)

SABIHUDDIN AHMED, CJ.

The election of the respondents Nos.2 and 3 as Nazim and Naib Nazim respectively from UC-8, Liaquatabad Town, Karachi (Central) was called in question by the petitioners on the grounds that, votes cast by non-Muslims were illegally taken into consideration as a consequence whereof the respondents were found to have secured highest votes. The other defeated candidates respondents Nos.4 to 9 have not appeared.

2. Mr. Muhammad Nawaz Shaikh, learned counsel for the petitioners, took us through relevant provision of the Sindh Local Government Elections Ordinance, 2000 and Rules made thereunder and emphatically argued that since the law envisaged electorate and since the respondents Nos.2 and 3 as well as the petitioners happen to be Muslims the votes of non-Muslims minority could not be taken into consideration.

3. To appreciate the correct legal position it may be appropriate to reproduce sections 8, 9 and 10 of the Sindh Local Government Elections Ordinance, 2000 as follows:-

8. Union Councils.

There shall be twenty-one members of a union council as follows: (a) twelve seats for Muslims, including four seats reserved for woman; (b) six seats reserved for peasants and workers including two seats for woman to represent peasants and workers; (c) save as otherwise provided, one seat reserved for minority communities; (d) Union Nazim; (e) Naib Union Nazim. "

9. Special minority seats.

In a local area where the population of minorities is in excess of ten per cent of the total population of that area, the seats mentioned in the preceding sections shall be allocated in such manner as the Government may determine." "

10. Franchise.

(1) Members of a Union Council shall be elected through elections based on adult franchise, and on the basis of separate electorate. (2) Electoral college for the election of Zila Nazim and Naib Zila Nazim, Town Nazim and Naib Town Nazim, or Taluka Nazim and Naib Taluka Nazim shall be all the members of union councils in the District, town in a city District or a taluka, as the case may be. (3) Electroal college for the election of reserved seats of women, peasants and workers and minority population for zila council, town council, or taluka council shall be all the members of union councils in the District, town in a city District for a taluka as the case may be."

4. We have carefully considered the above provisions and have noticed that there is no specific provision regarding Electoral College for Nazim and Naib Nazim of a union council. Indeed such representatives are elected on the basis of adult franchise in terms of section 10(1), which persuaded Mr. Nawaz Shaikh to argue that voters from minority communities had to be excluded when candidates for such offices were only Muslims. Nevertheless, we are not impressed by the contention inasmuch as the concept of separate electorate contemplates that representatives of every community be elected by members of each community when participation of the minorities is ensured in the membership of a union council. Their exclusion from the elections to the offices of Nazim and Naib Nazim merely because the candidates do not belong to their communities would not amount to following the principle of separate electorate but would entail their total disenfrachisement.

5. As rightly argued by the learned A.-G. as well as the learned counsel for the respondents Nos.2 and 3 Mr. Muhammad Shoaib. The rule of separate electorate is only confined to the 12 seats reserved for Muslims under section 8(a) and the one or more seats reserved for minority communities under section 8(c) read with section 9 but cannot be extended to election of Nazim or Naib Nazim or for that matter two seats reserved for workers and peasants under the remaining clauses of section

8. The whole scheme of the Local Government Ordinance and the Elections Ordinance clearly shows that minorities are entitled to participate in the process of participatory democracy at all levels.

6. In any event the question raised is fully covered by an authoritative pronouncement of the Honourable Supreme Court in Muhammad Afzal and another v. D.R.O. and another (2001 SCMR 1709) where their Lordships have clearly summed up the correct legal position in the following words:-- "It is clear from the scheme of section that against the seats reserved for Muslims, only Muslims would contest and only Muslim voters would cast their votes qua the elections of the said seats whereas the seats reserved for minority, election would be contested by a candidate from the said class only and only non-Muslim voters would cast votes for the said seats. As regards other seats of peasants/workers and Nazim and Naib Nazim, it is not provided that non-Muslim was disqualified to contest election against these seats, therefore, it is clear that against all these seats, the election could be contested by any person irrespective of his religion and for the election of these seats, all the voters whether Muslim or non-Muslim would cast votes jointly, therefore, apprehension that for election of Nazim and Naib Nazim, the Muslim Community may not be bound down to cast votes in favour of non-Muslim panel only and non-Muslim in favour of non-Muslim panel is baseless. All the voters irrespective of their religion would jointly cast votes in favour of any of the contesting panels. For the foregoing reasons, we find no merits in this petition which is accordingly dismissed subject to the above observations and leave refused."

7. In view of the above, we find no substance in the petition and dismiss the same in limine. H.B.T./A-69/K??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.