P L D 2017 Sindh 169

Before Syed Hasan Azhar Rizvi and Syed Saeeduddin Nasir, JJ

MUTTAHIDA QUAMI MOVEMENT (MQM) through the Leader of the Opposition and others---Petitioners

Versus

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

Constitutional Petitions Nos.D-540 to D-543, D-419 and D-468 of 2016, decided on 24/02/2016.

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

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

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

(b) Judgment---

----Pronouncing of judgment---Two different laws---Effect---Not safe to pronounce judgment on the provision of one Act with reference to decision dealing with other Acts which are not pari materia.

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

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

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

(d) Interpretation of statutes---

----Retrospective effect---Principle---Legislation that touches inalienable vested rights of individuals of the State cannot at all be given retrospective effect.

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

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

Farooq H. Naek and Owais Ahmed for Respondent No.1.

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

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

Ghulam Shabbir Shah for Respondent No.5.

Mirza Nasim Baig for Respondent No.5.

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

Dilawar Hussain, Standing Counsel.

Ghulam Shabbir Shah for Respondent No.5.

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

Date of hearing: 10th February, 2016.

JUDGMENT

SYED SAEEDUDDIN NASIR, J.---Since the legal and constitutional questions involved in the instant petitions are common, therefore, we propose to dispose of the same through this common judgment.

Through these petitions, the petitioners have impugned the validity of the Sindh Local Government (Amendment) Act, 2015 being Sindh Act No.XII of 2015 dated 28.02.2015 the Sindh Local Government (Amendment) Bill dated 18.01.2016, which enacted that in the said Sindh Local Government Act, 1913, in Section 18, in subsections (3), (4), (6), (7), (8) and (9) in clause (c) thereof, for words "secret ballot" words "show of hands" shall be substituted in the following manner:

(ii)for subsection (3), the following shall be substituted:

"(3) District Municipal Corporation: There shall be a District Municipal Corporation for each district in a Metropolitan Corporation and shall comprise of the following members:

(a)All the elected Vice Chairmen of the Union Committees falling within that district;

(b)Reserved seats to the extent of 22% for women members, 5% for non-Muslim members and 5% for labourer or peasant members elected in the manner provided in section 18-A;

(c)The District Municipal Corporation so constituted shall elect a Chairman and Vice Chairman respectively from amongst its members elected by "show of hands".

(iii) For subsection (4), the following shall be substituted:

(4)Metropolitan Corporation: A Metropolitan corporation shall comprise of the following members:

(a)All the elected Chairman of the Union Committees of respective Districts:

(b)Reserved seats to the extent of 22% for women members, 5% for non-Muslim members and 5% for labourer or peasant member elected in the manner provided in section 18-A.

(c)The Metropolitan Corporation so constituted shall elect a Mayor and Deputy Mayor from amongst its members elected by "show of hands".

(iv) In subsection (5), for clauses (a),(b),(c),(d) and the following shall be substituted:

(a) A Chairman and a Vice Chairman as joint candidates;

(b) Four general members each elected from his respective ward;

(c) One woman member;

(d) One labourer or peasant member; and

(e) One non-Muslim member.

(v) In subsection (6), for clauses (a),(b) and (c), the following shall be substituted:

(a) All elected Chairmen of the Union Councils in respective district;

(b) Reserved seats to the extent of 22% for women members, 5% for non-Muslim members and 5% for labourer or peasant members elected in the manner provided in section 18-A.

(c) The District Council so constituted shall elect a Chairman and a Vice Chairman as joint candidates from amongst its members by "show of hands".

(d) In subsection (7) for clauses (a),(b) and (c) the following shall be substituted:

(a) Members elected by the Union Committees;

(b) Reserved seats to the extent of 22% for women members, 5% for non-Muslim members and 5% for labourer or peasant members elected in the manner provided in Section 18-A of the Act;

(c) The Municipal Corporation so constituted shall elect a Mayor and Deputy Mayor respectively as joint candidates from amongst its members by "show of hands."

(vi) For subsection (8), the following shall be substituted:

(vii) (8) Municipal Committees: There shall be as many Municipal Committees consisting of single member wards as may be determined by Government and shall comprise of the following Members:

(a) Each member elected from its respective ward;

(b) Reserve seats to the extent of 22% for women members, 5% for non-Muslim members and 5% for labourer or peasant members elected in the manner provided in section 18-A.

(c) The Municipal Committees so constituted shall elect a Chairman and a Vice Chairman as joint candidates from amongst its members by "show of hands".

(viii) -----------

(c) the Town Committees so constituted shall elect a Chairman and a Vice Chairman as joint candidates from amongst its members elected by "show of hands."

AND whereas in the Sindh Local Government (Third Amendment) Act, 2015 dated 27.08.2015, being Sindh Act No.XXXVIII which amended the Sindh Local Government Act, 2013, the amendment was made by inserting the word "youth" in the following manner:

(xcx) "youth" means a person below the age of twenty five years at the time of filing of nomination papers;

3.In the said Act, in section 18--

(a) For subsection (2), the following shall be substituted:

(2)Union Committee: There shall be such number of Union Committees in urban areas as may be determined by Government and each Union Committee shall comprise of the following members:

(a)A Chairman and a Vice Chairman to be elected as joint candidates;

(b)Four general members, each elected from his respective ward;

(c)Two women members;

(d)One labourer or peasant member;

(e)One youth member.

(f)One non-Muslim member;

Provided that the persons in clauses (a) and (b) shall be elected on the basis of adult franchise by the electors falling within the respective Union Committee or ward respectively, while the members in clauses (c) to (f) shall be elected in the manner as may be prescribed;

Provided further that the Chairman of Each Union Committee shall represent the Union Committee in Metropolitan Corporation or Municipal Corporation, as the case may be, and Vice Chairman shall represent the Union Committee in respective District Municipal Corporation;"

(b)For subsection (5), the following shall be substituted:

(5)Union Council: There shall be such number of Union Councils in the rural areas as may be determined by government and each Union Council shall comprise of the following members:

a)A Chairman and a Vice Chairman to be elected as joint candidates;

b)Four general members, each elected from his respective ward;

c)Two women members;

d)One labourer or peasant member;

e)One youth member;

f)One non-Muslim member

Provided that the persons in clauses (a) and (b) shall be elected on the basis of adult franchise by the electors falling within the respective Union Council, while the members in clauses (c) to (f) shall be elected in the manner as may be prescribed;

(4)In subsections (3), (4), (6), (7) and (8), in clause (b) thereof for the figure "22%" the figure "33%" shall be substituted;

(5)In subsections (3), (4), (6), (7), (8) and (9), in clause (b) thereof after the words "woman members" the words "5% for youth members" shall be inserted.

(6)In subsections (3), (4), (6), (7), (8) and (9) in clause (c) thereof for the words "show of hands", the words "secret ballot" shall be substituted.

(7)In subsection (6), for clause (a) the following shall be substituted:

(a)One member from each Union Council of the district to be directly elected on the basis of adult franchise by electors falling within the respective Union Councils:

(8)In subsection (7) in clause (a), for the word "Members", the word "Chairman" shall be substituted;

(9)After subsection (9), following new subsection shall be added:

(10)for the purpose of determining the number of seats for women, youth, labourer or peasant and non-Muslims, if the member of seats falls short of one seat, at-least one seat shall be allocated to each Council;

Provided that fraction less than 0.5 shall not be counted and fraction 0.5 or more than 0.5 shall be counted as a whole seat in each category of reserved seats.

4.In the said Act, Section 18-A, shall be omitted;

5.In the said Act, in Sections 19 and 21, after the word "women" "the word "youth" shall be inserted.

6.In the said Act, in section 35, subsection (1), in clause (c) for the words "a Council or ward" the words "the concerned Council or ward" shall be substituted.

7.In the said Act, in section 36, subsection (1), clause (c) shall be omitted;

8.In the said Act, in section 37, in subsection (2) the word "whether" and in subsections (2) and (3), the words "or different councils" shall be omitted."

2.The petitioners further impugn the validity of the Notification bearing No.RO(LG)/MISC/4(18)/2013 dated 17.01.2016, whereby the amendments were made in Sindh Local Councils (Elections) Rules, 2015 in the manner that Rule 54, sub-rules (3),(4),(5) and (6) have been omitted and rules 55-A are substituted and Notification dated 13.01.2016, whereby despite ban on transfers and postings imposed by the Election Commission of Pakistan vide their circular dated 09.09.2015, one officer of Ex-PCS (BS-19) has been posted until further orders as Collector/Deputy Commissioner, Mirpurkhas vice an officer of Pakistan Administrative Service (BS-18) who was transferred and directed to report 'Services, General Administration and Coordination Department, which notifications are reproduced respectively as under:

"GOVERNMENT OF SINDH

LOCAL GOVERNMENT AND HOUSING

AND TOWN PLANNING DEPARTMENT

Karachi, the 17h January, 2015

NOTIFICATION

NO.RO(LG)MISC/4/(18)/2013: In exercise of the powers conferred by section 135 read with entry 1 of Schedule-VII of the Sindh Local Government Act, 2013, the Government of Sindh are pleased to make the following amendments in the Sindh Local Councils (Election) Rules, 2015:

1.In rule 54, sub-rules (3), (4), (5) and (6), shall be omitted.

2.For rule 55, the following shall be substituted:

"(1) Procedure of counting: The Presiding Officer shall count the choices of the voters by "Show of Hands" in respect of each candidate separately one by one and record the choices of the voters on a proforma to determine the result of voters in favour of each candidate and for each category separately and shall announce the result accordingly.

(2) The Presiding Officer shall provide a copy of the result of the count to each contesting candidate and also provide copies thereof to the Returning Officer, Election Commission of Pakistan and the Secretary, Local Government Department, Government of Sindh by quickest means.

(1) For rule 55 (A) the following shall be substituted:

55 (A) Pattern for election: The election of Mayor and Deputy Mayor of Metropolitan Corporation and Municipal Corporation, Chairman and Vice Chairman of District Municipal Corporations, District Councils, Municipal Committees and Town Committees shall be held by "Show of Hands".

"NOTIFICATION

NO: SOI(SGA&CD)-1/ 8/ 2015

GOVERNMENT OF SINDH

Services, General Administration and

Coordination Department

Karachi, Dated 13th January, 2016

Syed Mehdi Ali Shah, an officer of Ex-PCS (BS-19), awaiting posting is posted with immediate effect and until further orders as Collector/ Deputy Commissioner, Mirpurkhas, vice Mr. Muhammad Zaman Narejo, an officer of Services, General Administration and Coordination Department."

3.Learned counsel for the petitioners, Mr. Muhammad Farogh Naseem appearing in C.Ps. Nos.540 to 543 of 2016 inter alia contends that Article 7 of the Constitution defines the State inter alia to mean local or other authorities in Pakistan, which means that by the said constitutional definition provided in Article 7, local government institutions are a part of the State of Pakistan.

4.The learned counsel next contended that Article 37(i) of the Constitution of Islamic Republic of Pakistan, 1973 provides for decentralization of the government administration so as to facilitate the expeditious disposal of its business and meet the conveniences and requirement of public. He next contended that Article 140-A of the Constitution provides for establishment of local government and devolution of political, administrative and financial responsibility and authority to the elected representatives of the local government. Learned counsel for the petitioners submitted that Article 140-A of the Constitution was inserted pursuant to the 18th Amendment, and stated that through this amendment, the constitution for the first time mandates creation of local government institutions to whom political, administrative and financial responsibility could be devolved through their elected representatives, who should be able to cast votes freely and by a secret ballot without being influenced in any manner whatsoever for the reserve seats.

5.Learned counsel for the petitioners further relied upon Article 226 of the Constitution and contended that since the local government elections have been referred to in the constitution under Article 140-A, such elections are now deemed to be held under the constitution, therefore, such elections too have to be held by secret ballot under the said Article; that under Article 226 of the Constitution it has been specified that all elections under the constitution, other than those of the Prime Minister and the Chief Minister are to be conducted through secret ballot. He further contends that under Articles 219 (d) and 140-A sub-article (2) of the Constitution, the Election Commission of Pakistan is duty bound to hold general elections to the National Assembly, Provincial Assemblies and the Local Governments. Learned counsel for the petitioners further contended that the impugned amendments made in Section 18 of the Sindh Local Government Act, 2013 whereby the manner of voting for Chairman and Vice Chairman of Local Council has been changed from "secret ballot" to "show of hands" and word "one youth member" has been inserted in the list of special interest/reserved seats, could not be enacted by the government as it did not have express authority under the Sindh Local Government Act, 2013 to do the same and are also ultra vires the Constitution; that the Hon'ble Supreme Court and Federal Shariat Court have endorsed secrecy of ballots and Article 140-A read with Article 226 of the Constitution mandated elections by "secret ballot". He further contended that inclusion of category of youth in special or reserved seats in section 18 of the Sindh Local Government Act, 2013 for the election of Chairman and Vice Chairman is ultra vires the Constitution inasmuch as youth is not specifically mentioned in Articles 32, 51(1) and 106 (1) of the Constitution which envisage only women, workers, peasants and non-Muslim as categories of persons entitled to be elected on special or reserved seats. He further contended that the persons who participated in the local government elections at the commencement of the electoral process did so on the presumption that the Mayor and Deputy Mayor, Chairman and Vice Chairman would be elected in a specific and particular manner i.e. by secret ballot, which was amended arbitrarily before the completion of the entire election process by making it by show of hands, as such, the impugned Acts are operating retrospectively, which is in violation of the fundamental rights of the returned candidates of the local government election and not warranted under the law and the Constitution. The learned counsel for the petitioners further submitted that the petitioners have also impugned the validity of the Notification bearing No.RO(LG)/MISC/4(18)/2013 dated 17.01.2016, whereby the amendments were made in Sindh Local Councils (Elections) Rules, 2015 in the manner that Rule 54, sub-rules (3),(4),(5) and (6) have been omitted and rules 55-A are substituted on the ground that the same are repugnant to the Constitution, made in excess of jurisdiction, ultra vires to the Articles 7, 37(i), 140-A, 219(B) and 226 of the Constitution of Islamic Republic of Pakistan, 1973. He further contended that the amendment in Sindh Local Government (Elections) Rules, 2015, whereby the manner in which the election of Mayor and Deputy Mayor of Metropolitan Corporation and Municipal Corporation, Chairman and Vice Chairman of District Municipal Corporations, District Councils, Municipal Committees and Town Committees is to be held by "show of hands" could not be enacted by respondent No.1, inasmuch as the Government of Sindh had not been granted express authority by the Sindh Local Government Act, 2013 to make such amendments in the Rules.

6.The learned counsel for the petitioners also contended that the Election Commission of Pakistan vide its letter dated 09.09.2015, and the Provincial Election Commissioner, Sindh dated 12.09.2015 imposed ban on transfers/postings of bureaucracy after the announcement of Local Bodies Elections, however, the respondent No.1 vide notification dated 13th January, 2016 has transferred Syed Mehdi Ali Shah, an officer of Ex-PCS (BS-19), awaiting posting, and posted him with immediate effect and until further orders as Collector/Deputy Commissioner, Mirpurkhas, vice Mr. Muhammad Zaman Narejo, an officer of Services, General Administration and Coordination Department.

7.Learned counsel lastly submitted that the impugned amendment in the Act as well as the Rules cannot operate retrospectively in respect of the elections already held in the Province of Sindh, the process of which is still continuing till the election of special interest/reserved seats.

8.In order to substantiate his arguments, the learned counsel for the petitioners placed reliance on the case of (1) Attaullah and another v. Government of Balochistan, Local Government Rural Development and Agrovilles Department and another PLD 2014 Balochistan 206 (2) Election Commission of Pakistan v. Province of Punjab - PLD 2014 SC 668 (3) Province of Sindh through Chief Secretary and others vs. MQM through Deputy Convener and others PLD 2014 SC 531 (4) Arshad Mehmood v. Commissioner/ Delimitation Authority Gujranwala and others - PLD 2014 Lahore 221 (5) Malik Nazar Hussain v. Governor of Punjab and 4 others PLD 1988 Lahore 171 (6) Kuldip Nayyar v. Union of India and others - AIR 2006 Supreme Court of India 3127 (7) Adnan Afzal v. Capt. Sher Afzal - PLD 1969 SC 187 (8) Ghulam Farid and 2 others v. Hamida Bibi and 2 others - 2011 YLR 2188.

9.Mr. Muhammad Mansoor Mir, learned counsel appearing for the petitioners in C.Ps. Nos.D - 419 and 468 of 2016 has impugned the validity of the Sindh Local Government (Third Amendment) Act, 2015 dated 27.08.2015, being Sindh Act No.XXXVIII which amended the Sindh Local Government Act, 2013, in the manner that the amendment was made by inserting the word "youth" by insertion and substitution to clauses (b) and (c) of subsections (2), (3), (4), (5), (6), (7), (8), (9) and (10) and proviso to Section 18 of the Sindh Local Government (Third Amendment) Act, 2015 dated 27.08.2015 and Sindh Local Government Amendment Bill dated 18.01.2016. The learned counsel contends that the said amendments are ultra vires of the Articles, 32, 51(1), 106(1), 140-A, 226 of the Constitution of Pakistan and Section 47-A of Representation of the People Act, 1976, therefore the same to be declared as void ab initio and of no legal effect. In addition to his arguments, he has also adopted the arguments extended as aforesaid by Mr. Muhammad Farogh Naseem, the learned counsel in other constitutional petitions on legal and constitutional points.

10.On the other hand, Mr. Farooq H. Naek, learned counsel appearing for the respondent No.1 Government of Sindh, while controverting the arguments extended by the learned counsel for the petitioner has inter alia contended that Article 140-A of the Constitution of Pakistan dealing with local government clearly contemplates that each Province shall by law establish a local government system, which means that the local government is not under the constitution, but it is under the law of each province which is to be enacted by the Provincial legislature. He further contended that the impugned amendment Acts are strictly in accordance with Article 140-A of the Constitution, which empowers the provincial government to establish and regulate local government system by law which is to be enacted by its legislature. Learned counsel for the respondent No.1 further contended that with the completion of direct elections for the local body/government in the Province of Sindh, the second stage is meant for indirect elections for various seats/offices as provided in Sindh Local Government Act, 2013. If at all, the local government elections are interpreted to be recognized as elections under the constitution by virtue of whatever is contemplated by Article 226 of the Constitution, the same is applicable to the first stage of direct elections to the local government and not to the second stage, which is meant for indirect elections of the Mayor, Deputy Mayor, Chairman and Vice Chairman, that in order to eradicate the menace of corrupt practices and horse trading, and in order to ensure free, fair and smooth completion of the process of the second stage of local government election, the members of the Provincial Assembly, Sindh belonging to the ruling party voted and supported the Sindh Local (Amendment) Bill, 2016 which was passed by the majority of members of the Provincial Assembly of Sindh and was duly signed by the Governor of Sindh and became Sindh Local Government Amendment Act, 2016; that government of Sindh has direct interest in the transparency in the process of the second phase of local government elections for which the Act of 2016 has been enacted; that placing of reliance by the counsel for the petitioner PLD 2015 Quetta 206 is misconceived inasmuch as the same relates to a government notification, whereas in the present petition the Act of the legislature has been impugned. At the end of his arguments, the learned counsel for the respondent No.1, Government of Sindh pleaded for rejection of the instant constitutional petitions on the ground that no mala fides can be attached to the impugned amendments, which are strictly in accordance with law and the Constitution of Pakistan, 1973. The learned counsel in order to substantiate his arguments, placed reliance on the following case law:

(1)M. Omkar v. Government of A.P. - AIR 1983 Andhra Pradesh 379;

(2)In re: P. Raghava Reddi .. petitioner - AIR 1975 Andhra Pradesh 123;

11.While the instant petitions were partly heard, three intervenors namely; (1) Pakistan People's Party Parliamentarians (2) Jammat-e-Islami and (3) Shahzaib Ali Shah made applications under Order I, Rule 10, C.P.C. for being impleaded as necessary parties to the present petitions through their counsel, Mr. Khalid Javed Khan, Mirza Nazim Baig, Abdus Samad Khattak and Ghulam Shabbir Shah, advocates. These C.M.As. being 3390/2016, 3389/2016 and 3603/2016 were allowed vide orders dated 04.02.2016 and 09.02.2016 and independent candidate Shahzaib Shah, Pakistan People's Party Parliamentarians and Jammat-eIslami Pakistan were impleaded as respondents Nos.5, 6 and 7 respectively, thereafter their respectively counsel were heard at length.

12.Mr. Khalid Javed Khan, the learned counsel appearing for respondent No.6, has inter alia contended that the respondent No.6, Pakistan People's Party Parliamentarians is the largest political party which has secured the highest number of seats in the local government elections in Sindh held in the year 2015, the further arguments extended by the learned counsel for the respondent No.6 are more or less identical to the arguments extended by Mr. Farooq H. Naek, the learned counsel appearing for the respondent No.1, therefore, we feel no need here to repeat the same for the sake of brevity. However, it will not be out of place to mention here that the learned counsel for respondent No.6 in order to substantiate his arguments placed reliance on the following case law:--

1.Attaullah and another v. Government of Balochistan, Local Government Rural Development and Agrovilles Department and another - PLD 2014 Balochistan 206;

2.Wukala Mahaz Barai Tahafuz-e-Dastoor v. Federation of Pakistan and others - PLD 1998 SC 1263;

3.Kuldip Nayyar v. Union of India and others - AIR 2006 Supreme Court of India 3127

4.G. Narayana Swamy v. Government of A.P. and others AIR 1985 Andhra Pradesh 225;

5.Niaz Ahmed v. Azizuddin and others - PLD 1967 Supreme Court 466;

6.Lahore Development Authority through D.G. and others v. Imrana Tiwana and others - 2015 SCMR 1739 (SC).

13.Mr. Abdus Samad Khattak, learned counsel appearing for the intervenor Jammat-e-Islami, the respondent No.7 herein has adopted the arguments of the learned counsel for the respondents Nos.1 and 6, Mr. Farooq H. Naek and Mr. Khalid Javed Khan.

14.Mr. Ghulam Shabbir Shah, the learned counsel appearing for the respondent No.5 has inter alia argued in favour of the amendments impugned by way of these petitions and has argued that Article 32 of the Constitution of Islamic Republic of Pakistan, 1973 does not put any restriction on the Provincial Government to legislate laws in order to secure promotion of local government institutions and for that purpose, by way of an enactment, the provincial government can include another deprived class of the society i.e. youth, besides peasants, workers and women for special representation of the areas concerned and in such institutions. The learned counsel further contends that if such a ban is put on the powers of the legislature to legislate laws in furtherance of promotion of local government, then such institutions cannot serve their purpose as envisaged by the Constitution.

15.First of all we take up the case law relied upon by the learned counsel for the petitioners in support of his arguments.

16.In the case of Attaullah and another v. Government of Balochistan, Local Government Rural Development and Agrovilles Department and another supra relied upon by the learned counsel for the petitioner, it is held that:--

"The special reserved seats can only be maintained in respect of a class of persons who have been specifically mentioned in the constitution like non-Muslims, women, peasants and workers.

The amendment in the impugned rules whereby the manner of voting of Chairman and Vice Chairman of a local council, from secret ballot to show of hands, could not be enacted as the government had not been granted express authority by the Act in this regard and as such the said amendment is inconsistent with the Act.

The rules were amended before the completion of the entire election process, therefore, are retrospective in application to such extent, and it is well settled principle that subordinate legislation cannot be made to operate retrospectively.

The Supreme Court of Pakistan and the Federal Shariat Court have endorsed the secrecy of ballots; and

Article 140 (a) read with Article 226 mandate elections by secret ballot.

Therefore, for the aforesaid reasons we declare that the Balochistan Local Government (Amendment) Act, 2014 is repugnant to the Constitution and void. The Government of Balochistan, Local Government, Rural Development and Agroviles Department's Notification No.5-1/2013-13 (BLCEC)/ 1640-1704 dated 4th February, 2014 that made amendments in the Balochistan Local Government (Election) Rules, 2013 was made in excess of jurisdiction, is ultra vires the Act and the Constitution, therefore, it is also declared to be void and of no legal effect. There will however be no order as to costs."

17.In the next case of Election Commission of Pakistan v. Province of Punjab supra relied upon by the learned counsel for the petitioners, it is held that:--

"Sections 8 to 10 of the Punjab Local Government Act, 2013 and the relevant rules framed thereunder are ultra vires the Constitution in so far as they empower the provincial government to carry out the delimitation of the constituency for the local government elections, whereas Article 140-A of the Constitution of Islamic Republic of Pakistan, 1973 the election Commission of Pakistan has been mandated to organize and conduct the election, which includes the delimitation of constituencies which is part of the election process.

18.In the next case of Province of Sindh through Chief Secretary and others v. MQM through Deputy Convener and others supra relied upon by the learned counsel for the petitioners, it is held that:--

"The proviso to section 13 subsection (1) of Sindh Local Government Act, 2013 was ultra-vires of the said Act as well as the Constitution.

The expression holding of elections under Article 140-A of the Constitution includes steps which are anterior to the election process that is the preparation of electoral rolls is a step anterior to that and if the said anterior power has been conferred on the Election Commission of Pakistan, the power of delimitation has to lie with it. All the provisions in the Local Government Act providing the delimitation of the constituencies would in the aforementioned circumstances be ultra vires the Constitution.

Now the task of holding elections to the local government has been entrusted to Election Commission of Pakistan by a constitutional amendment by Article 140-A, we are persuaded to hold that the power of Majlis-e-Shoora to provide by law for the delimitation of the constituencies by the election commission would include the delimitation of the constituencies of the local government.

Law or provision of law not in conformity with the constitutional provisions. Court could declare such law or provision of law as ultra vires of the Constitution, and could issue appropriate directions to the Government to bring the law in conformity with constitutional provisions.

19.In the next case of Arshad Mehmood v. Commissioner/ Delimitation Authority Gujranwala and others supra relied upon by the learned counsel for the petitioners, it is held that:--

"By virtue of Sections 8, 9 and 10 of Punjab Local Government Act, 2013, delimitation of constituencies, which was also part of election process had been entrusted in the partisan hands of the ruling government, which was unconstitutional inasmuch as the election commission, which is mandated to hold election under Article 218(3) of the Constitution, had no role, to play in delimiting the Union Council. In these circumstances, the sections 8, 9 and 10 of the Punjab Local Government Act, 2013 and Rules 3 to 8 of the Punjab Local Government (Delimitation) Rules, 2013 were inconsistent with Article 218(3) read with Article 222(b) of the Constitution as they abridged and took away the constitutional role and obligation of Election Commission besides offending Articles 3, 4, 9, 14, 17, 19 and 25 of the Constitution and as a consequence were declared to be unconstitutional and, were struck down."

20.In the next case of Malik Nazar Hussain v. Governor of Punjab and 4 others supra relied upon by the learned counsel for the petitioners, it is held that:--

"Mandatory requirement of Section 13 of the Punjab Local Government Ordinance, 1979 to hold elections of members of all local councils through secret ballot being not applicable either to the elections of seats of special interest, Chairman or Vice Chairman of local council---Framing of rules under Section 12 prescribing different process of voting by show of hands with regard to election of such seats is ultra vires of section 13 of the Punjab Local Government Ordinance, 1979."

21.In the next case of Kuldip Nayyar v. Union of India and others supra relied upon by the learned counsel for the petitioners, it is held that:--

Para 458: "The constitution does not provide that voting for an election to the Council of States shall be by secret ballot. The voting for an election to the Council of States till now was by secret ballot due to a law made by Parliament. It cannot be said that secret ballot in all forms of elections is a constitutional right."

Para 461: "The principle of secrecy is not an absolute principle. The legislative Amendment cannot be struck down on the ground that a different or better view is possible. It is well settled that a challenge to legislation cannot be decided on the basis of there being another view which may be more reasonable or acceptable. A matter within the legislative competence of the legislature has to be left to the discretion and wisdom of the latter so long as it does not infringe any constitutional provision or violate the fundamental rights."

Para 462: "The secrecy of ballot is a vital principle for ensuring free and fair elections. The higher principle, however, is free and fair elections and purity of elections. If secrecy becomes a source for corruption then sunlight and transparency have the capacity to remove it."

22.In the next case of Adnan Afzal v. Capt. Sher Afzal supra relied upon by the learned counsel for the petitioners, it is held that:--

"Nevertheless it must be pointed out that if any existing rights are affected by giving retroactive operation to a statute, or it causes inconvenience or injustice, the Courts will not even in the case of the procedural statute favour and interpretation giving retrospective affect to the same".

23.In the next case of Ghulam Farid and 2 others v. Hamida Bibi and 2 others supra relied upon by the learned counsel for the petitioners, it is held that:--

"The litigant is prevented from raising inconsistent pleas in subsequently instituted proceedings---Litigant could not go hot and cool at the same time---Approbation and reprobation being not permissible in the legal proceedings, the litigant could not deviate from his previous instance."

Turning now to the case law cited by the learned counsel for respondents Nos. 1 and 6, we see that in the case of M. Omkar v. Government of A.P. supra relied upon by the learned counsel for the respondent No.1, it is held that:--

"Rule providing for right to vote by "show of hands" is not ultra vires under Article 19(1)(a) of the Constitution of India. The right to vote by "show of hands" as prescribed by Rule 36(3) of the Zilla Parishad Rules, 1979 cannot be set to be un-constitutional. Assuming that the right to vote falls within the right to freedom of speech and expression under Article 19(1)(a), the method or manner by which the said right to vote should be exercised cannot fall within the provisions of Article 19(1)(a)."

24.In the case of P. Raghava Reddi supra relied upon by the learned counsel for the respondent No.1, it is held that:

"There is nothing unconstitutional in not holding a secret ballot for the purpose of no-confidence motion against the President of the Punchayat".

25.In the case of Wukala Mahaz Barai Tahafuz-e-Dastoor v. Federation of Pakistan and others supra relied upon by the learned counsel for respondent No.6, it is held that:--

"Provision of Article 63-A as amended was meant to regulate the conduct and behavior of the members within the House of Parliament. This Article was not violative of any of the three basic structures namely, representative form of Government, Islamic concept of democracy and independence of judiciary. The Article will bring stability in the polity of the country as it will be instrumental in eradicating cancerous vice of the floor crossing. It is also in consonance with the tenets of the Islam and Sunnah as the same enjoin its believers to honour their commitments if the same are not in conflict with the teachings of Islam and Sunnah."

26.In the next case of Kuldip Nayyar v. Union of India and others supra relied upon by the learned counsel for the respondent No.6, it is held that:--

Para 458: "The constitution does not provide that voting for an election to the Council of States shall be by secret ballot. The voting for an election to the Council of States till now was by secret ballot due to a law made by Parliament. It cannot be said that secret ballot in all forms of elections is a constitutional right."

27.In the next case of G. Narayana Swamy v. Government of A.P. and others supra relied upon by the learned counsel for the respondent No.6, it is held that:--

"Voting by councilors in respect of no-confidence motion against Chairman - May be by show of hands and not necessarily by secret ballot - Section 46(9) permitting different modes of voting on no-confidence motion - Not per se unconstitutional or illegal on ground that adoption of different methods and procedures by different Ciyllectors or Revenue Divisional Officer might culminate in arbitrary exercise of power."

28.In the next case of Niaz Ahmed v. Azizuddin and others supra relied upon by the learned counsel for the respondent No.6, it is held that:

"The secrecy of ballot, therefore, has not to be implemented in the ideal or absolute sense but to be tampered by practical consideration necessitated by the process of election. The same is not inconsistent with Article 174 of the Constitution of Pakistan, 1962."

29.In the next case of Lahore Development Authority through D.G. and others v. Imrana Tiwana and others supra relied upon by the learned counsel for the respondent No.6, it is held that:

"Even after the insertion of Article 140-A of the Constitution the Provincial Government would continue to have the authority to enact and amend statutes, make general or special laws with regard to Local Government and Local authorities, enlarge or diminish the authority of Local Government and extend or curtail municipal boundaries - Such power of amendment, however, was subject to the fact that if the Provincial Government overstepped its legislative or executive authority to make the Local Government powerless, such exercise would fall foul of Article 140-A of the Constitution, and be struck down by the Court."

30.We have heard the learned counsel for the parties in detail, perused the material available on the record of the case and examined the case law cited at the bar with their able assistance.

31.Upon examining each aspect of the matter, we are of the opinion that the case of petitioners is two pronged firstly; that election of the local government is held under the constitution after the insertion of Eighteenth amendment to the Constitution of Islamic Republic of Pakistan, 1973 and by virtue of Articles 7, 32, 140-A, 218(3), 37(i), 219(d), the election of local government is recognized as an election under the constitution, secondly; and since it is an election under the constitution, therefore, it should be conducted in accordance with the mandate contemplated by Article 226 of the Constitution, and all the impugned amendments made, being in contravention of express provision contemplated by the Constitution, are liable to be struck down by this Court.

In order to deeply appreciate the arguments advanced by the learned counsel for the petitioners in the light of the Articles of the Constitution referred to above, it would be advantageous to reproduce the relevant articles of the Constitution relied upon by the learned counsel for the petitioners, which contemplate recognition of local government.

Art. 7. Definition of the State. In this Part, unless the context otherwise requires, "the State" means the Federal Government, [Majlis-e-Shoora (Parliament)], a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess.

Art. 37(i). Decentralize the Government administration so as to facilitate expeditious disposal of its business to meet the convenience and requirements of the public.

Art. 140-A. Local Government (1) Each Province shall by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local government.

Art. 140-A(2). Elections to the local governments shall be held by the Election Commission of Pakistan.

Art. 219. Duties of Commissioner. The Commission shall be charged with the duty of

(d)The holding of general elections to the National Assembly, Provincial Assemblies and the Local Governments.

32.The learned counsel for the petitioners has argued before us that since the election of local government is an election under the Constitution, therefore, the same should be conducted in accordance with the mandate contemplated to section 226 of the Constitution that is to say by "secret ballot". It will be equally advantageous to reproduce the said article in order to appreciate as to whether every election under the constitution should be held by secret ballot, which is as under:

Art. 226. Election by secret ballot. All elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot.

33.Upon bare perusal of the aforesaid Articles of the constitution we are of the considered view that indeed the Election of Local Government is election under the Constitution of Pakistan. And if once we have come to the conclusion that it's an election under the Constitution then obviously the same have to be conducted in accordance with the provision contemplated by Article 226 of the Constitution, i.e. by secret ballot. Moreover, we are fortified in our view by the judgments (1) Attaullah and another v. Government of Balochistan, Local Government Rural Development and Agrovilles Department and another (2) Election Commission of Pakistan v. Province of Punjab (3) Province of Sindh through Chief Secretary and others v. MQM through Deputy Convener and others (4) Arshad Mehmood v. Commissioner/ Delimitation Authority Gujranwala and others supra, wherein it is specifically held that after insertion of Article 140-A in the Constitution, the Local Government Elections have been conferred with constitutional status. Article 7 of the Constitution defines the State inter alia to mean local or other authorities in Pakistan, which means that by the said constitutional definition provided in Article 7, local government institutions are a part of the State of Pakistan.

34.Under Article 219-D of the Constitution, the Election Commission of Pakistan is duty bound to hold general elections to the National Assembly, Provincial Assembly and the local governments. Article 37(i) of the Constitution of Islamic Republic of Pakistan, 1973 provides for decentralization of the government administration so as to facilitate the expeditious disposal of its business and meet the conveniences and requirement of public. Therefore, we have no cavil to the proposition of the learned counsel for the petitioners that since the Elections of Local Government are elections under the constitution the same should be held by secret ballot.

35.The Sindh Local Government Act, 2013, as it stood prior to the insertion of impugned amendments provided that all elections to the Municipal Councils shall be held by secret ballot, however, after the impugned amendments were introduced to the same, the words "secret ballot" was substituted by "Show of hands", which in our view is a clear violation of the constitutional mandate contemplated by Article 226 of the Constitution. We are unable to agree with the submission of the learned counsel for the respondents Nos.1 and 6, Mr. Farooq H. Naek and Mr. Khalid Javed Khan that the impugned amendments have been enacted by the provincial legislature in the Sindh Local Government Act, 2013 in order to curb the menace of floor crossing, horse trading, corrupt practices and so that the election of the Mayor, Deputy Mayor, Chairman and Vice Chairman could be held in a free fair and transparent manner. We do not controvert the proposition that indeed it is the constitutional mandate under Article 140-A of the constitution that each Province shall by law, establish a local government system, however, the provincial legislature, while enacting any law in order to regulate the local Government system, should not transgress its limits that are prescribed by the constitution and should not legislate a law which is ultra vires the constitution and is in excess of the mandate conferred upon the legislature by the constitution inasmuch as the legislature itself is a creature of the constitution. It is pertinent to mention here that even after the insertion of Article 140-A of the Constitution the Provincial Government would continue to have the authority to enact and amend statutes, make general or special laws with regard to Local Government and Local authorities, enlarge or diminish the authority of Local Government and extend or curtail municipal boundaries, such power of amendment, however, was subject to the limitations imposed by the constitution that if the Provincial Government overstepped its legislative or executive authority to make the Local Government powerless, such exercise would fall out of the pale of Article 140-A of the Constitution, and can be struck down by the Court. In this regard guidance can be taken from the following cases; the cases of Lahore Development Authority through D.G. and others v. Imrana Tiwana and others and Election Commission of Pakistan v. Province of Punjab supra relied upon by the learned counsel for the petitioners, wherein the Hon'ble Supreme Court struck down Sections 8 to 10 of the Punjab Local Government Act, 2013 and the relevant rules framed thereunder holding the same as ultra vires the Constitution in so far as they empower the provincial government to carry out the delimitation of the constituency for the local government elections, whereas Article 140-A of the Constitution of Islamic Republic of Pakistan, 1973 the Election Commission of Pakistan has been mandated to organize and conduct the said election, which includes the delimitation of constituencies which is part of the election process.

36.The present process of the local government election, under which general member elections were held on different dates in the Province of Sindh shall continue till the special interest seats filled in through indirect elections whereby the Mayor, Deputy Mayor, Chairman and Vice Chairman of the local council are elected. The present local government elections are the first ones that are being held after insertion of Article 140-A in the Constitution by Eighteenth Amendment to the Constitution, therefore, it is to be looked into whether such elections can be categorized as being held "under the Constitution" If such local government election can be categorized as being held under the constitution, which, in our opinion, are undoubtedly under the constitution, then the clear mandate contemplated by Article 226 of the Constitution shall apply to all direct and indirect elections of the local government of general member elections and elections of special interest seats, meaning thereby that the elections shall be by "secret ballot". In this regard, we are fortified in our view by some cases in which the matter of secret ballots has been addressed to. In the case of Muhammad Salahuddin v. Government of Pakistan (PLD 1990 FSC 1) wherein the Federal Shariat Court has observed that though the secret ballots were un-Islamic, however, due to mandate contemplated in Article 226 of the Constitution the sanctions for secrecy of ballot in the law, may, therefore, be retained at (pages 25-26-L). The Hon'ble Supreme Court in the case of Abdul Majeed Khan, v. District Returning Officer (2006 SCMR 1713) elaborated upon the concept of secret ballots and it would not be out of place to reproduce the relevant portion from its decision which is as follows:--

"This procedure has been provided in order to ensure the sanctity of the secret ballot, otherwise if a voter is allowed to put in front of the candidate's choice any other visible mark (by the candidate in whose favour the votes have been cast) than it would lose its sanctity as it would be against the concept of electing a representative by means of secret ballot and if such procedure is allowed to prevail, there would be no purpose of holding the election as then it would become a selection by means of open balloting, which is not the object of the Constitution of law relating to the Election" (page 1723E).

37.In the case of Province of Sindh through Chief Secretary and others v. MQM through Deputy Convener and others supra relied upon by the learned counsel for the petitioners, similar view was adopted and the proviso to section 13 subsection (1) of Sindh Local Government Act, 2013 was declared ultra vires of the said Act as well as the Constitution on account of the fact that now the task of holding elections to the local government has been entrusted to Election Commission of Pakistan by a constitutional amendment by insertion of Article 140-A in the Constitution, and the power of Majlis-e-Shoora to provide by law for the delimitation of the constituencies by the election commission would include the delimitation of the constituencies of the local government. Therefore, a law or provision of law which is not in conformity with the constitutional provisions, could be declared by the Court of law as ultra-vires of the constitution, and could issue appropriate directions to the Government to bring the law in conformity with constitutional provisions.

38.In the case reported in PLD 2014 Balochistan 206 supra, it is held that the amendment in Section 12 of Balochistan Local Government Act, 2013, whereby category of professional and social workers was included in Rule 63 sub-rule 5 of Balochistan Local Government Election Rules, 2013, to elect Chairman and Vice Chairman of the local council with "show of hands" was ultra-vires the constitution inasmuch as the Hon'ble Supreme Court and Federal Shariat Court endorsed secrecy of ballots under Article 140-A read with Article 226 of the Constitution, which mandated elections by "secret ballot".

39.Upon bare perusal of impugned amendments we observe that the same have been enacted by the provincial legislature in grave violation of the mandate contemplated by Article 226 of the constitution, which clearly stipulates that every election under the constitution shall be held by "secret ballot" and not by "show of hands". We are also not impressed by the submission of the learned counsel for the respondents that the provisions of Article 226 with regard to holding of elections under the Constitution are in respect of direct elections, and the same are not relevant to the indirect elections of the reserved seats and that of election of the Mayor, Deputy Mayor, Chairman and Vice Chairman and that the same can be held by "show of hands" instead of "secret ballot". We, on the contrary, see that the said Article is very much in respect of indirect elections as well inasmuch as it contemplates a provision with regard to the elections of the Prime Minister and the Chief Minister, which undoubtedly are indirect elections. Therefore, in our view while enacting the Article 226 of the constitution, the legislature intended to include all direct and indirect elections to be held by secret ballot, and if the legislature wanted to oust the indirect elections from the said Article it would have said so either expressly or by sufficient implication, and in the absence of any such ouster clause we cannot interpret the said Article to mean that the indirect election is not covered by Article 226 of the Constitution.

40.The decisions and case law of Indian Courts relied upon by the learned counsel for the respondents Nos.1 and 6, therefore, are not relevant inasmuch as the same relate to holding of elections of local government by show of hands, which is not barred by the Indian Constitution. It is pertinent to mention here that the Indian Constitution does not contemplate any Article which is in pari materia with Article 226 of the Constitution of Pakistan, which mandates holding of all elections under the Constitution by "secret ballot". It is settled law that it is not safe to pronounce judgment on the provision of one Act with reference to decision dealing with other Acts which are not pari materia. We are fortified in our view on this law point by whatever is held by the Hon'ble Supreme Court in the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158 Naushero Feroze reported in 1994 SCMR 1299 that a statute cannot be interpreted in the light of language used in another statute, which is not in pari materia with that statute. The Hon'ble Supreme Court, in the same judgment, has further made reference to the case of Hari Khemu Gawali v. Deputy Commissioner of Police, Bombay and another reported in PLD 1957 Supreme Court (India) 90, wherein the Indian Supreme Court has inter alia held that "it is not safe to pronounce judgment on the provision of one Act with reference to decisions dealing with other Acts which are not pari material". Therefore, in our view, reliance on the Indian judgments by the learned counsel for the respondents, which are in support of holding elections through "show of hands" and not by "secret ballot" is misconceived.

41.It would be equally advantageous to mention here that insertion of Article 219 Clause (d) in the Constitution by the Eighteenth Amendment which confers duty upon the Election Commission to hold local government elections. Subsection (1) of Section 34 of the Sindh Local Government Act, 2013 also contemplates that "the Election Commission of Pakistan shall conduct elections for the local councils under this Act and subsection (3) contemplates that "the Election Commission of Pakistan shall organize and conduct the elections and to make necessary arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and the corrupt practices are guarded against." This means that the antecedent role of the government to hold and conduct elections has now been ousted and given to the Election Commission. Therefore, in our view, the government has no constitutional or legal rights to interfere in the election process of the special interest/reserved seats by amending the Sindh Local Government Act, 2013 in the manner that the elections of the reserved seats shall be held by "show of hands" instead of "secret ballot".

42.We now take up the legality and constitutionality of the impugned amendment whereby on 27.08.2015 the provincial assembly enacted the Sindh Local Government (Third Amendment) Act wherein it added new clauses (xcx), and substituted subsections (2), (3), (4), (5), (6), (7), (8) and (9) pursuant to which it added that one youth member in the members to be indirectly elected on reserved seats i.e. two women member, one labourer or peasant member, one youth member and one non-Muslim member, whereas in clause (b) of subsection (3), (4), (6), (7), (8) and (9) inserted 33% for women members and 5% for youth members. The learned counsel appearing for the petitioners have contended that the insertion of category of "youth" by way of the impugned amendment is also in contravention of Articles 32, 51(1) and 106(1) of the Constitution and Section 47-A of Representation of the Peoples Act, 1976. Article 32 provides as under:--

Art.32 "Promotion of local Government Institution. The State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women."

Section 47A"Party lists for reserved seats, etc (1). For the purpose of election to seats reserved for women and non-Muslims in the National Assembly and Provincial Assemblies, the political parties contesting election for such seats shall, within the period fixed by the Election Commission for submission of nomination papers, file separate lists for their candidates in order of priority for seats reserved for women and non-Muslims with the Chief Election Commissioner or, as he may direct, with the Provincial Election Commissioner, who shall forthwith cause such lists to be published for information of the public at large."

43.It is pertinent to mention here that by virtue of Section 71 of the Sindh Local Government Act, 2013 provisions of the Representation of the People Act have been made applicable to the elections and electoral process under the said Act.

44.The concept of having reserved seats has been introduced into the constitution by the framers who wanted to provide equal opportunity to all the individuals of the State to contest election, who otherwise cannot compete with stronger citizens of the State in the political arena. In this regard, it is pertinent to mention here that sub-article 3 of Article 25 specifically contemplate that nothing in this Article shall prevent the State from making any special provision for the protection of women. Similarly, Article 32 contemplates that in local government institution, special presentation will be given to peasants, workers and women. The framers of the constitution however did not have in their contemplation youth as a category which they did not consider as down trodden class of society to whom special treatment is to be accorded, who are socially and/or economically deprived and/or discriminating segment of society like workers, peasants, women and non-Muslims. Therefore, the question arises as to whether or not in the wake of reality that when the constitution did not opt to protect, encourage or give a benefit to youth, then can the legislature do so and will the principle which guarantees that every citizen shall be treated equally will not be violated when there is no stipulated category of youth that the constitution seeks to protect or encourage. In our view, creating a special interest group of "youth" is in contravention of Article 32 of the Constitution which does not contemplate any such group as a protected or under privileged, which only recognized that only certain persons require protection and encouragement, respectively non-Muslim, women, peasants and workers and a number of other constitutional provisions as well as Section 47-A of the Representation of the Peoples Act, 1976 mentions these classes. For instance the State is permitted to make "special provision for the protection of women" (sub-Article (3) of Article 25). The State is also required to ensure that "special representation will be given to peasants, workers and women" in local government institutions (Article 32). And "steps shall be taken to ensure full participation of women in all spheres of national life" (Article 34). To "safeguard the legitimate rights and interests of minorities" (Article 36).

45.In the impugned Acts no cogent reason whatsoever has been given for providing youth a preferential treatment. Moreover, the constitution does not recognize "youth" as a category of the society which is subject to bias prejudice, discrimination or suffering from deprivation, however, even if by remote possibility the youth is brought into the category of the society which deserve preferential treatment the same shall not be sustainable inasmuch as it would be in contravention of the express provisions contemplated by the constitution as aforesaid. The provincial legislature, did not take into consideration while enacting the Amendment Act as to whether or not the new category of "youth" that it was creating was compatible with the Constitution.

46.For the aforesaid reasons, we are of the considered view that insertion of word "youth" by the impugned amendment is ultra vires the Constitution.

47.Therefore, we hold that the special or reserved seats can only be maintained in respect of class of a person belonging to a down trodden and discriminate segment of society or minority community who has been specifically mentioned in the constitution as aforesaid, like non-Muslim, women, peasants and workers. The "youth" cannot be categorized as such inasmuch it is neither down trodden nor discriminated nor specifically stipulated in the aforesaid Articles of the constitution. We further hold that by taking away the reserved seats of workers and peasants and giving it to the category of "youth" is discriminatory, illegal and in violation of Article 25 read with Article 32 of the Constitution which guarantees the protection and special status to the peasants and workers. That the impugned amendments in Section 18 of the Act whereby manner of voting of Mayor, Deputy Mayor, Chairman and Vice Chairman has been substituted from "secret ballot" to "show of hands" is ultra-vires the constitution inasmuch as the same is in violation of Article 226 read with Article 140-A of the Constitution of Islamic Republic of Pakistan, 1973, which envisage "secret ballot". Moreover, at the commencement of the local government elections, those who participated at the believe that the elections of Mayor, Deputy Mayor and Chairman and Vice Chairman would be held in the manner prescribed in the Sindh Local Government Act as well as Article 226 of the Constitution which was arbitrarily amended before completion of the entire election process i.e. election of special interests and reserved seats, therefore, we have no hesitation in holding that the said amendments are retrospective in nature and it is well settled principle of the interpretation of the statutes which is also upheld by innumerable judgments of our superior Courts including the Hon'ble Supreme Court that the legislation that touches the inalienable vested rights of the individuals of the State cannot at all be given retrospective affect. The Hon'ble Supreme Court of Pakistan as well as Federal Shariat Court have already endorsed the secrecy of ballots and Article 140 read with Article 226 of the Constitution clearly mandate that the elections under the constitution shall be held by "secret ballot".

48.We are of the considered opinion that Notification bearing No.RO(LG)/MISC/4(18)/2013 dated 17.01.2016, whereby the amendments were made in Sindh Local Councils (Elections) Rules, 2015 in the manner that Rule 54, sub-rules (3),(4),(5) and (6) have been omitted and rules 55-A are substituted, are void, ab initio and of no legal effect on the ground that the same are repugnant to the Constitution, made in excess of jurisdiction, ultra vires to the Articles 7, 37(i), 140-A, 219(B) and 226 of the Constitution of Islamic Republic of Pakistan, 1973 the amendment in Sindh Local Government (Elections) Rules, 2015, whereby the manner in which the election of Mayor and Deputy Mayor of Metropolitan Corporation and Municipal Corporation, Chairman and Vice Chairman of District Municipal Corporations, District Councils, Municipal Committees and Town Committees is to be held by "show of hands" could not be enacted by respondent No.1, inasmuch as the Government of Sindh had not been granted express authority by the Sindh Local Government Act, 2013 to make such amendments in the Rules.

49.It is an admitted position that the Election Commission of Pakistan vide its letter dated 09.09.2015, and the Provincial Election Commissioner, Sindh dated 12.09.2015 imposed ban on transfers/ postings of bureaucracy after the announcement of Local Bodies Elections, however, the respondent No.1 vide notification dated 13th January, 2016 has transferred Syed Mehdi Ali Shah, an officer of Ex-PCS (BS-19), awaiting posting, and posted him with immediate effect and until further orders as Collector/Deputy Commissioner, Mirpurkhas, vice Mr. Muhammad Zaman Narejo, an officer of Services, General Administration and Coordination Department. Since the said ban imposed by the Election Commission of Pakistan and the Provincial Election Commissioner, Sindh as aforesaid is operational and still in the field, therefore, any transfer and/or posting in bureaucracy made by the Provincial Government of Sindh during the continuation of ban is declared as illegal, void ab initio and of no legal effect.

50. Therefore, for the reasons stated hereinabove, we declare that the impugned amendments i.e. the Sindh Local Government (Amendment) Act, 2015 being Sindh Act No.XII of 2015 dated 28.02.2015 the Sindh Local Government (Amendment) Bill dated 18.01.2016, Sindh Local Government (Third Amendment) Act, 2015 dated 27.08.2015, being Sindh Act No.XXXVIII, which amended the Sindh Local Government Act, 2013, and Sindh Local Government (Elections) Rules, 2015, are repugnant to Articles 7, 25 (3), 32, 34, 36, 37(i), 140-A, 219(B) and 226 of the Constitution of Islamic Republic of Pakistan, 1973, Section 47-A of the Representation of the Peoples Act, 1976 and are void ab initio, inasmuch as the same are in excess of jurisdiction, ultra vires the Constitution, and are hereby set aside and declared to be void and of no legal effect.

Above are the reasons for the short order dated: 10.02.2016. Announced in open Court.

MH/M-72/Sindh Order accordingl