P L D 1997 Peshawar 80 (PLP)

MIAN MUHAMMAD AJMAL, J.‑‑‑This writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973, has been filed by Sanaullah Khan Gandapur, Advocate, petitioner herein, for declaring the order dated 16‑11‑1993 passed by respondent No. l Advocate‑General, N.‑W.F.P./Returning Officer, N.‑W.F.P., Bar Council, Elections, 1993 to be illegal, arbitrary and ultra vires vide which the nomination papers of respondents 3 to 5 have been entertained beyond the prescribed period and accepted as valid and thereby rejected the objection petition of the petitioner herein.

2. Under Rule 5 of the Legal Practitioners and Bar Councils Rules, 1976, respondent No. l published the election programme for the election of the members of N.‑W.F.P. Bar Council vide Notification No.739/N.‑W.F.P.,/BC dated 5‑10‑1993 whereby the date and time for the receipt of proposals was fixed as 6‑11‑1993 by 2 p.m. The petitioner filed his nomination papers on 28‑10‑1993 at 11‑05 a.m. in the office of the Bar Council at Peshawar whereas respondents Nos.3 to 5 filed their nomination papers on 6‑11‑1993 before 2‑00 p.m. in the Court of Senior Civil Judge, D.I. Khan, who had been notified as Polling Officer for tire said station. The said nominations were sent to Bar Council Office at Peshawar which were received on 7‑11‑1993 at 9 a.m. The petitioner took objections to the nomination papers of respondents 3 to 5 before respondent No.l as time‑barred and not properly filed before the competent forum but the same did not prevail and as such rejected vide the impugned order.

3. The petitioner's contention is that since no remedy by way of appeal or representation has been provided in the Rules ibid against the acceptance or rejection of the nomination papers, he had no remedy but to invoke the Constitutional jurisdiction of this Court.

4. We have heard the parties and gone through the material placed on the file.

5. Rule 61 of the Legal Practitioners and Bar Councils Act, 1976 reads as under:- "An objection to the election under paragraph (h) of the sub‑rule (1) of Rule 5 or under paragraph (h) of sub‑rule (1) of Rule 30, may be filed by any candidate at the election or by any five voters to contest the validity of the election of a candidate, by letter signed and delivered to the Chairman of the Bar Council who shall refer such objection to the Election Tribunal concerned for disposal within fifteen days of the date fixed for filing objections. The objection shall be accompanied by a deposit of Rs.100." Rule 63 ibid, provides that the objections to the validity of an election of a member shall be heard by the Election Tribunal concerned and Rule 64 provides that the election shall be set aside if the Tribunal finds an irregularity which has materially affected the result of the election or any illegality has been committed. . A plain reading of the aforesaid rules amply provide that if any irregularity has taken place during the process of an election which materially affect the result thereof, it has to be resolved by the Election Tribunal as the only forum provided under the Rules for the election disputes is the Election Tribunal. Since no forum against intermediatory orders has been provided, therefore, all the disputes with regard to the election are amenable to the jurisdiction of the Election Tribunal.

6. The impugned order passed during the process of election of N.‑W.F.P. Bar Council, 1993, under the law is not amenable to the writ jurisdiction of this Court. Since the Special Law i.e. Legal Practitioners and Bar Councils Act, 1973 and the Rules made thereunder do not provide details for the conduct of elections and the mode, manner and forums for the determination of disputes arising out of or in connection with such elections, we therefore have to revert to parent law i.e. the Constitution and the general law on the subject i.e. The Representation of the People Act, 1976 for the resolution of the problem like the one in hand. Article 225 of the Constitution and section 52 of the Act provide for the forum where the election can be called in question. The word 'election' has been defined in an elaborate authority reported in the case of Election Commissioner of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396 wherein it has been laid down as under:‑‑‑ "Word 'election' in Art. 225‑‑‑Meaning‑‑‑Expression "conduct of elections" in Art. 218(3) is of a wide import and should be read into other provisions which occur in the same Chapter to give a purposeful meaning to the word "election"‑‑‑Word "election" thus has been used in Art. 225 with reference to the entire process consisting of several steps taken for its completion which have a bearing on the result of the process." In the same authority at another place, it has been laid down with regard to the forum before which any petition relating to disputes arising, out of "election process" could be filed, and the same reads as under:‑‑‑ "Any matter which has the effect of vitiating the election process should be brought up only at the appropriate stage in an appropriate manner before the Election Tribunal and should not be brought up at an intermediate stage before any Court as otherwise Article 225 of the Constitution would be deprived of its meaning and content. All disputes arising out of elections should be postponed till the elections are over so as not to dislocate the time schedule for the elections, and that such disputes should be raised after the elections by an election petition." So it becomes clear that all disputes arising out of elections should be raised through an election petition before an Election Tribunal. The instant petition I also relates to "election dispute", therefore, it should be filed/presented before an Election Tribunal at the appropriate time. As such, we hold that this Constitutional writ petition is misconceived which is hereby dismissed alongwith C. M. No.1358/93 with no order as to costs.

7. Above are the reasons in support of short order dated 29‑11‑1993. A.A./2088/P Petition dismissed.