1999 PLP 1460 (CLC)

(c) abstains from voting in the House against party policy in relation to any Bill. (2)

(3)

(4)

(5)

(a)

(b)

(6) Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to the action under this Article." Mr. Aslam Chishti, learned counsel for petitioner, argued, that Chief Election Commissioner, has been empowered to disqualify a Parliamentarian, on receipt of a Reference from the Head of a Political Party through the Speaker, and if there is a dispute about his status, then it can be decided by him, being a jurisdictional fact, in exercise of ancillary powers, which run in continuation of jurisdiction, to determine finally the question; whether a Parliamentarian/ M.P.A. has defected or not? Learned counsel further stated that Article 63‑A of the Constitution, was legislated, With an object, to prevent instability in relation to the formation of functioning of Government, and if all ancillary questions, including the one determining that, who is the Head of a Political Party, is left for determination by a Civil Court; then the purpose could not be achieved for which, Article 63‑A was promulgated, because any of the Parliamentarian/ M.P.A., who is guilty of defection, can raise alike plea, to avoid the proceedings of Disqualification. In support of his contention, he referred to dictionary meaning of "ancillary jurisdiction" from Black's Law Dictionary 5th Edition, 1979, Commentary from N.S. Bindra's, The Interpretation of Statutes, 7th Edition p.229, on the subject "Courts jurisdiction to determine jurisdictional fact", AIR 1963 SC 1547, AIR 1968 SC 169, PLD 1991 Kar. 1, 1998 SCMR 1363. Learned counsel further contended that as the Chief Election Commissioner had refused to exercise jurisdiction under Article 63‑A, therefore such order would be termed, "without jurisdiction", and thus, it is amenable to the jurisdiction of this Court under Article 199 of the Constitution. In this behalf, he placed reliance on PLD 1989 SC 26, PLD 1994 SC 713; 1994 SCMR 1299 and PLD 1998 SC 1263. He also cited the judgment of Honourable Supreme Court reported in 1999 SCMR 215 and argued that in pursuance of this judgment, the case was remanded to Chief Election Commissioner, for fresh decision, in view of the judgment, delivered in the case of Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263. He further informed us, that after remand order by Honourable Supreme Court, the Chief Election Commissioner, had recorded evidence, produced by parties, and in the light of same, arguments were heard and now the case is fixed for announcement of judgment. For our perusal, he placed on record, the copies of order‑sheets and the statements, recorded before Chief Election Commissioner. To counter the view‑point of learned counsel for petitioner, Mr. Fakharuddin G. Ibrahim, learned Advocate, contended that Article 213(3) of the Constitution, provides, that the Commissioner shall have such powers and functions, as are conferred on him by the Constitution and law. He argued that no powers have been bestowed by the Constitution or Law upon C.E.C. for conducting a detailed enquiry, to ascertain; that amongst two claimants, who is the Head of the Political Party. According to him, such exercise requires full-fledged trial, during course whereof, pleadings are to be received, issues are to be framed, evidence is to, be recorded, etc. but in terms of Article 63‑A of the Constitution, the Code of Civil Procedure and Qanoon‑e‑Shahadat Order, 1984, have not been made applicable. Moreover, as per the mandate of clause (1) of Article 63‑A, a Disqualification Reference is required to be disposed of within seven days. He stated that how this lengthy exercise can be completed within this much short period, particularly with reference to the facts of instant case, where about 400 affidavits were filed by both the parties, to counter the claim of each other, before him. Therefore, the Chief Election Commissioner, had right observed, that parties should seek relief, relating to determination of status of Head of a Party, before the Civil Court. He further, argued, that in such like situation, the Honourable Supreme Court in the judgment, reported in 1983 SCMR 1064, had observed, that where there is a disputed question of title or entitlement, the Tribunal of a limited jurisdiction, instead of dilating upon the matter itself, should advise the parties to get adjudication of their rights from the Civil Courts. Learned counsel further stated that even if for sake of arguments, it is presumed that Chief Election Commissioner had determined that petitioner as the Head of the Political Party, then too, his such findings would be of a tentative nature and would have no binding effect, until the person, claiming entitlement, had not obtained a decree from the Civil Court, as it has been held in PLD 1965 SC

698. It is well‑known fact that Article 63‑A of the Constitution, was enacted in pursuance of unanimous demand of the Political Representatives of different parties, who had experienced that in the past, Government had been destabilized, due to the menace of defection by the Parliamentarians both at the Federal and Provincial levels. Inasmuch as the Honourable Supreme Court, in its judgment, made observations for legislating such fool‑proof system, so the Parliamentarians/M.P.As. may not change their loyalties, for their personal benefits. As we have seen that prior to the enactment of Article 63‑A, there was a provision in the Political Parties Act, namely section 8‑B, which was amended from time to time, to provide apparatus for render the Parliamentarians, disqualified on the ground of defection, but on account of inherent defect in this provision, the object could not be achieved. At this juncture reference to few judgments delivered by Honourable Supreme Court, in which, it was impressed upon the Legislatures to enact such penal legislation, which may promptly extinguish the evil of defection for the purpose of political Sovereignty and firm establishment of Government, can be made. In the case of Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan PLD 1992 SC 646 on the subject under reference, the Honourable Supreme Court observed as under:‑‑ "Defection of elected members has many vices. In the first place, if the member has been elected on the basis of a manifesto, or on account of his affiliation with a political party, or on account of his particular stand on a question of public importance, his defection amounts to a clear breach of confidence reposed in him by the electorate. If his conscience dictates to him so, or he considers it expedient, the only course open to him is to resign to shed off his representative character which he no longer represents and to fight a re‑election. This will rake him honourable, politics clean, and emergence of principled leadership possible. The second, and more important, the political sovereign is rendered helpless by such betrayal of its own representative. In the normal course, the elector has to wait for years, till new election take place, to repudiate such a person. In the meantime, the defector flourishes and continues to enjoy all the wordly gains. The third is that it destroys the normative moorings of the Constitution of an Islamic State." In Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66, the Honourable Supreme Court, on the subject of defection, referred to the Verses of Holy Qur'an and Sunnah. Relevant portion from the judgment is reproduced hereinbelow:‑‑-- "Defection in its concept and political parlance refers to an act of political opportunism to obtain immoral gains and worldly advantages through exploitative approach of one's representative and political status. Such act cannot be justified to any known principle of Islamic policy. Islam ordains the believers to stand by their promises and fulfil their commitments. In Verse 91 of (Surah Namal) God has ordained‑‑‑ The translation of the Verse is as follows:‑

91. Fulfil the covenant of Allah when ye have convenanted, and break, not your oaths after the asseveration of them, and after ye, have made Allah surety over you. LO: Allah knoweth what ye do' Similarly, in Verse No.77 (Surah Al-Imran) God has obrdained as follows‑‑

77. Lo: those who purchase a small gain at the cost of Allah's covenant and their oaths, they have no portion in the Hereafter. Allah will neither speak to them nor look upon them on the Day of Resurrection, nor will He make them grow. Theirs will be a painful doom' In Verse No.34 of (Surah Bani-Israil) the directions to faithfuls to fulfil their commitments is as follows‑‑

and keep the covenant. Lo: of the covenant it will be asked. In Verse No.27 of (Surah Infal) the commandant of God to discharge the trust is in these words:‑‑

27. O! ye who believe betray not Allah and His Messenger, nor knowingly betray your trusts. Similarly in "Mishkhat‑ul‑Masabih, various saying of Holy Prophet (peace be upon him) have been quoted as under:‑‑ Abu Hurariah reported that the Messenger of Allah said: The signs of a hypocrite are three. When he talks, he speaks falsehood; and when he promises, he breaks, and when he is entrusted, commits treachery, Agreed upon it (Add Muslim added: Even though he keeps fasts, prays and thinks that he is a Muslim).

151. Abdullah‑b‑Aamr reported that the Messenger of Allah said, Whoso has got four things in him is a true hypocrite, and whoso has got a habit therefrom in him has got in him a habit of hypocrisy till he gives it up; when he is trusted; he is unfaithful; and when he speaks, he speaks falsehood; and when he makes promise, he proves treacherous, and when he is quarrel, he commits sin ‑‑‑ Agreed

152. Ibn Omar reported that the Messenger of Allah said: The parable of a hypocrite is a goat roaming between two goats going once unto this and once unto that. The narration of above Islamic Principles make it clear that Islam requires that believers to carry out their promises and commitments whenever make (except where such promises are made against any express Injunction of Islam) and refrains from committing the breach of any trust. A person who seeks election as a candidate of a political party on its ticket, holds out to his party and the electorate his abiding faith on the manifesto of his party. His defection from the party after election, therefore, amounts to his refusal to carry out his promise and commitments besides constituting a breach of the trust reposed in him by his electorate. Such act of defection cannot be Justified on any known principle of morality muchless on any recognized Code of Islam Polity. As pointed out in the celebrated passage in Khawaja Ahmad Tariq Rahim's case (supra) quoted earlier in this judgment, if a person after his election as a candidate of a political party finds himself unable to subscribe to the programme and policy of that party, the only honourable course for him is to renounce his representative character, which reflects his abiding faith to the programme and policies of that party, and seek a fresh mandate from his electorate on the basis of his changed loyalties. This course will be fully in accord with the principles of Islamic Polity. The manifest intention behind section 8‑B of the Act is to promote principled politics by rooting out corrupt practices embedded in our body politics. A legislation based on such cherished objectives cannot be described as an un‑Islamic or unconstitutional under Article 2A of the Constitution of 1973. I, accordingly, hold that section 8‑B of the Act is neither in conflict with Article 2A of the Constitution of 1973, nor it contravenes any express or known Injunction of Islam." In the above cited case; with reference to the need of legislation as to deal with the vice of defection and floor‑crossing by the elected Members of the Assemble learned Chief Justice referred to amendments in Indian Constitution as follows:‑‑ "

38. It appears clearly fro‑ what is stated above that on the subject of defection law is to be framed by the Legislature and has to be construed or interpreted by the Courts as it is. On the subject of defection the law which holds the field is the Political Parties Act, 1962, which cannot be improved by the Courts during interpretation in the sense that something can be added to it which is not put there by the Legislature. We cannot and should not make any comments on the merits or demerits of defection, because these questions are to be left open to be determined by competent forum where such questions can be raised and vires of law are questioned. It would be pertinent to mention that neighbouring country India also faced the same problem which has been solved in 1985 by both major parties one in the Government and other in opposition, by agreeing upon Constitutional Fifty‑second Amendment Bill, which has been incorporated in the Tenth Schedule to the Constitution of India suitably amending Article 102 thereof as well. Resultantly, now in Indian Constitution law on the subject of defection 5 categorical and explicit and grounds of defection mentioned is detail ". The Honourable Supreme Court has also referred above two judgments in the case of Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others PLD 1998 SC 1263, and his Lordship Mr. Justice Saiduzzaman Siddiqui, in his Note, observed that "every political party in this country condemned, in strongest term, the vice of floor‑crossing and defection by the elected members of the Assemblies and promised to eliminate this evil from the body politic of the Country, if voted to power but as would appear from the history of legislations narrated above that when in power, the political parties turned a blind eye towards this immoral practice. Therefore, before the advent of last general election in the country of 1997, there was a public outcry against the vice of defection and floor crossing by elected representatives of Assemblies, and under tremendous pressure of public opinion the two major political parties held out promises to their electorate that if voted to power they will do away with the vice of defection and floor‑crossing by members of Assemblies elected on the ticket of a political party, through legislative measures. In the above stated background when the 14th Amendment Bill was moved in the two Houses of Parliament by the Ruling party it was not only supported by the main opposition parties in the Parliament but it was carried through without a vote of dissent'. The Honourable Chief Justice Mr. Justice Ajmal Mian, in leading judgment, had made following valuable observations, with regard to promulgation of Article 63‑A of the Constitution‑‑ "The impugned 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 Islam and Sunnah as the same enjoined its believers to honour their commitments if the same are not in conflict with the teachings of Islam and Sunnah." As it has been noted hereinabove that in pursuance of the demand of public at large, as well as keeping in view the judicial pronouncements, referred above, Article 63‑A was enacted, with the object to prevent the instability in relation to the formation of functioning of Government. Thus, to achieve this object, Article 63‑A is to be implemented/enforced with promptitude, so the defector may not succeed, to frustrate the proceedings, by adopting delaying tactics, on account of lame excuses. At this stage, observations made by Mr. Justice (Rtd.) Shafiur Rehman, in the case of Khawaja Tariq Rahim, may be referred once again, wherein, his Lordship observed that "defection amounts to clear breach of confidence reposed in him by the electorate and the only course open to him is to resign to shed off his representative character, which he no longer represents and to fight a re‑election. As per his Lordship's observations, this will make him honourable, politics clean and emergence of principled leadership possible. It was further observed that, the second, and the more important, the political sovereign is rendered helpless by such betrayal of its own representative. The most important and valuable observations made were that, in the normal course, the elector has to wait for years, till new elections take place, to repudiate such a person. In the meantime, the defector flourishes and continues to enjoy all the wordly gains. His Lordship further observed, that it destroys the normative moorings of the Constitution of an Islamic State. If, we look into the object of promulgation of Article 63‑A in the Constitution, it casts an obligation upon the Chief Election Commissioner to enforce it, without providing opportunity to a defector of flourishing and continuing to enjoy all the wordly gains, despite the fact that by changing the loyalties, he had betrayed his Elector, for personal gains and considerations, because if a defected Parliamentarian/M. P.A. continues to hold the public office, in representative capacity, he is acting against the dictates/mandate of his voters, who had voted him, for their right of representation in the House. This protracted proceedings for disqualification of a Parliamentarian/M.P.A. shall render the Article 63‑A, ineffective and it can also lead, once again to an instability in the formation of functioning of the Federal as well as Provincial Governments. There is no cavil with the proposition that the Constitutional provisions are to be interpreted, in such a manner, so it could be made viable, workable, not with reference to a particular case, but for all the times to come in future as well. This principle of interpretation has been. elaborately discussed by Honourable Supreme Court, in the case of Syed Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC

823. For guidance relevant para. from the leading judgment, written by Honourable Chief Justice, is reproduced hereinbelow:‑‑ "We have a written Constitution, which is an organic document designed and intended to cater to the needs for all times to come. It is like a living tree; it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus, the approach while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation which has arisen, effectively. The interpretation cannot be narrow and pedantic but the Courts' efforts should be to construe the same broadly, so that it may be able to meet the requirements of an ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In other words, their colour and contents are derived from the context." The demand of the day, that menace of defection be eradicated from the body politic of the Country and the principles of interpretation of Constitutional provision as reproduced hereinabove, leads us, to interpret Article 63‑A(1), in such a manner, so the Chief Election Commissioner, may exercise his jurisdiction concerning disqualification of a Parliamentarian/M.P.A. on the ground of defection, in a prompt and befitting manner, so the alleged defector, may not prove himself inevitable, for the formation of functioning of the Government. Therefore, while examining the provisions of clause (1) of Article 63‑A of the Constitution in its simple and plain language, there is no difficulty in understanding, that such proceedings can be initiated against a defector, only by the Head of a Political Party or such other person, as may be authorised in this behalf by him. (Emphasis supplied by underlining). So, the exercise of jurisdiction to proceed against a defector, shall commence, on satisfaction of Chief Election Commissioner, that reference has been filed by the head of a p political party. As far as statutory jurisdiction of Chief Election Commissioner, to disqualify a defector, if case against him has been brought within the four corners of Article 63‑A(1) Explanation, is concerned, that cannot be questioned or doubted. But beside exercising such jurisdiction, he also enjoys collateral/additional or ancillary jurisdiction, to determine those facts which are necessary to exercise actual powers/jurisdiction, commonly known as "jurisdictional facts". It would be appropriate to reproduce hereinbelow the definition of word "Collateral" from the Black's Law Dictionary, Fifth Edition page 237:‑‑

"Collateral, by the side; at the side; attached upon the side. Not lineal, but a parallel or diverging line. Additional or auxiliary; supplementary; cooperating; accompanying as a secondary fact, or acting as a secondary agent. Related to, complementary; accompanying as a coordinate. As to collateral consanguinity; Descent; Estoppal; Guaranty; Issue; Limitation; Negligence; Power; Proceeding; and Warranty." Similarly expression "ancillary jurisdiction" from the same Dictionary, appearing at page 79, is also reproduced hereinbelow:‑‑ "Ancillary jurisdiction. Power of Court to adjudicate and determine matters incidental to the exercise of its primary jurisdiction of an action. Under 'ancillary jurisdiction doctrine' federal district Court acquires jurisdiction of case or controversy as an entirety and may, as incident to disposition of matter properly before it, possess jurisdiction to decide other matters raised by case, though district Court could not have taken cognizance of them if they had been independently presented. Ortman v. Stanray Corporation CA III 371 p.2d 154, 157. 'Ancillary jurisdiction' of Federal Court generally involves either proceedings which are concerned with pleadings, processes, records or judgments of Court in principal case or proceedings which affect property already in Court's custody. Cooperative Transit Co. v. West Penn. Electric Co. C.C.A.W. Va., 132 F.2d 720, 723." It may be noted, that in terms Article 63‑A of the Constitution, does not explicitly contain the provisions of taking those steps, which are necessary to finalize the reference by the Chief Election Commissioner, such as, that there is no provision to the effect that on receipt of reference through Speaker of the House, he would issue notice to parties and allow them to appear before him, either personally or through duly authorised representatives, including the F Advocates and directing them to file the reply, and then afford them opportunity of leading evidence and address the arguments. But in exercise of collateral/ additional or ancillary jurisdiction, the Chief Election Commissioner is empowered to do so, as he has undertaken this exercise, in the reference filed by Jamhoori Wattan Party against Sardar Fateh Ali Umrani, M.P.A. from Constituency P.B.‑23 Nasirabad, after the remand of case by Honourable Supreme Court, in Civil Appeal No. 1389 of 1998, reported in 1999 SCMR

215. It is important to note that in this reference the Chief Election Commissioner, in the order sheet, dated 6th February, 1999, has himself observed that "the parties may file any additional documents in the meanwhile. If parties wish to produce any evidence, they should give the witnesses within two weeks. Learned counsel for petitioner, placed on record the copy of order‑sheet as well as the statements of witnesses, recorded by the Chief Election Commissioner of Pakistan. Undoubtedly, this jurisdiction has been exercised by the Chief Election Commissioner, to ascertain; whether alleged defector has violated the provisions of Article 63‑A or not? In this context, it can be said without any fear, that the doctrine of determining the jurisdictional facts by any Authority before exercising actual jurisdiction conferred on it by a Statute, is not foreign to the judicial system of our country. There are many cases, where statute has not conferred jurisdiction on ancillary or collateral matters, but the Courts while exercising actual jurisdiction, had been determining these facts. In this behalf, N.S. Bindra in the Interpretation of Statutes Seventh Edition, 1984, p.229, has defined "Court's jurisdiction to determine the jurisdictional fact", as follows:‑‑

"Court's jurisdiction to determine jurisdictional facts.‑‑‑ It is well settled that a Tribunal can investigate into the facts relating to the exercise of its jurisdiction when :that jurisdictional fact itself is in dispute. Where a Tribunal is invested with jurisdiction to determine a particular question, it is competent to determine the existence of the facts collateral to the actual matter which the Tribunal has to try. This power to decide collateral facts is the foundation for the exercise of its jurisdiction. " In the judgments, being quoted hereinafter, the above doctrine has been discussed very elaborately. In the case reported AIR 1964 SC 743, there was a dispute with regard to compensation of a Workman within the meaning of section 33‑C(1) and (2) under Industrial Disputes Act, 1947. The proposition under consideration, was that subsection (2) refers to any workman entitled to receive from the Employer any benefit there specified, it does not mean that he must be workman whose right to receive the said benefit is not disputed by the Employer. In this context, it was observed as follows:‑‑ "The claim under section 33‑C(2) clearly postulates that the determination of the question about computing the benefit. in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by subsection (2). As Maxwell has observed 'where an Act confers a jurisdiction, it impliedly also grants the powers of doing all such acts or employing such means, as are essentially necessary to its execution. " The case reported as AIR 1968 SC 169, pertains to Administration of Evacuee Property Act, 1950. Questions for consideration were; whether a particular property is or has not become an Evacuee and whether property to dispute belongs to him? Under section 46 of the Act, there was an absolute bar to the jurisdiction of Civil or Revenue Court, in any matter, which can be decided tinder section 7 by the Custodian. Thus, with this background, it was_. held as follows:‑‑ "Now there is nothing in section 7 which shows that the Custodian cannot enter into all questions whether of fact or of law in deciding whether certain property belongs to an evacuee. There is no reason to hold that under section 7 the Custodian cannot decide what are called complicated questions of law, or title. It is difficult to see how the Custodian can avoid deciding a question of title if it is raised before him in proceedings under section

7. Nor do we find it possible to make a question of law that may arise before the Custodian under section

7. If he has the power to decide question of fact, which the learned Judges in the order under appeal seem to concede, we do not see why he should not have the power of deciding questions of law also. Further, if the learned Judges in the order under appeal are correct in saying that if a question of title rests on a simple allegation of fact it can be finally determined by the Custodian, we cannot see on what reasoning it can be said that where a question of title depends on a question of law it cannot be finally decided under section 7 by the Custodian. His powers under section 7 is to decide whether certain property is evacuee property or not and there is nothing in section 7 which restricts that power to deciding only questions of fact. " In the case of Shad Muhammad and others v. Malik Abdul Rauf and others 1998 SCMR 1363 the Honourable Supreme Court recognized the Doctrine of determining the jurisdictional facts, as follows: "The claim put-forth by the petitioners before the Revenue Court certainly raised a question of title but his plea neither determined the forum nor the jurisdiction. Jurisdictional facts, namely, the existence of the relationship of landlord and tenant between the parties was to be determined and decided by that Court which had the initial jurisdiction to take cognizance of the matter, namely, the Revenue Court. It is apparent that those Courts decided the matter. The only course open to the petitioners is to demonstrate that the decision of the jurisdictional facts at the hands of Revenue Courts suffered from any legal infirmity. In the background of the controversy alluded to in the earlier part of this judgment we are of the considered view that the Revenue Courts could not, on the mere assertion of the petitioners, hold that the relationship of landlord and tenant does not exist. A specific mention of this fact has been made in the order of the Revenue Courts. There is, therefore, no defect in assuming jurisdiction or in deciding a jurisdictional fact by the Revenue Courts. ' It may be noted that in the abovecited case, there was a dispute between the landlord and tenant, therefore, respondents Malik Abdul Rauf and others instituted proceedings against petitioner Shad Muhammad and others under Balochistan Tenancy Ordinance. Before the Revenue Courts, petitioners raised the question with regard to the jurisdiction, on the plea that they are not tenants of respondents, therefore, the Revenue Court has no jurisdiction. Initially their objection was turned down, as such, they filed a Constitutional Petition being No.324 of 1994, before the High Court, which was dismissed and ultimately they approached the Honourable Supreme Court, who in view of the above observations dismissed the petition for leave to appeal. Learned counsel for respondents, vehemently contended that Chief Election Commissioner, has not been empowered under Article 213 of the Constitution, to regulate the proceedings of holding trial/enquiry, to determine. that who is the Head .of a Political Party. In this behalf, it is to be noted that Chief Election Commissioner, exercises the powers of Judicial Officer, because it is the condition precedent for his appointment, that either he is or has been the Judge of the Supreme Court or is or has been the Judge of the High Court and is qualified under paragraph (a) of clause (2) of Article 177 of the Constitution, to be appointed as the Judge of the Supreme Court, and on his appointment under Article 214, he makes oath before the Chief Justice of Pakistan. Therefore, when he is seized with a reference, he does exercise powers in capacity of a Judicial Officer and not as an Administrative Authority. Thus, being so, in absence of procedure laid down under Article 63‑A, he can regularize his jurisdiction, on following the recognized natural principle or administration of justice and for the purpose of discharging his functions, he can also follow the principles of the Code of Civil Procedure. In this behalf, it is noteworthy that section 4 of the Code of Civil Procedure, provides; that in the absence of any specific provision to the contrary nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the‑ time being in force. In the context, reference can be made to AIR 1978 All.

243. In this case, the Deputy Director of Consolidation dismissed the application filed by petitioner Babu Ram, but when finally he was supposed to dispose of the revision, he dismissed it on the ground, that necessary party was not before him. In this background, it was held that although the Civil Procedure Code in strict sense is not applicable but the analogy laid down in Order 41, Rule 20 of the Civil Procedure Code would clearly be applicable in view of the settled principles of natural justice. It was further observed that, so for consolidation matters are concerned the authorities appointed under the Act are vested with the Supreme power and it is not open to question those powers in any other Court except by means of a writ petition in this Court. It, therefore follows that a finality is attached to these orders and a party losing there is rendered without any remedy. It is in this background that the powers vested with the respective authorities under the Consolidation of Holdings Act have to be viewed. With this background, it was further observed that the Deputy Director of Consolidation in a most arbitrary manner rejected the application for impleadment of parties as prayed by the petitioner. Therefore, it was held, that once the record is before the Deputy Director of Consolidation, he should not adopt a short‑cut in adjudicating the dispute that has been brought before him by the, respective parties, etc . As for as the applicability of the principles of Civil Procedure Code are concerned, reference can also be made to PLD 1970 SC 1, wherein it has been held as under:‑‑ "The writ jurisdiction under Article 98 of the Constitution, as already stated, is in an original jurisdiction. Obviously, the jurisdiction under that Article pertains civil as well as other matters. At the moment. I shall consider the nature of the proceedings arising out of a writ petition relating to a civil matter, as in the instant case. A proceeding taken for the enforcement of a civil right is a civil proceeding, whatever may be he source of the Court's jurisdiction invoked for enforcement of such a right. According to Stroud's Judicial Dictionary, 'Civil proceedings' is a process for recovery of individual right or redress of individual wrong, inclusive, in its proper legal sense, of suits by the Crown see Bradlough v. Clarks. Whether a proceeding is civil or not depends on the nature of the subject‑matter of the proceedings and its object, and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding which deals with a right of civil nature does not cease to be so merely because the right is sought to be enforced by having recourse of the writ jurisdiction. Judged from these aspects a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding, although the High Court's jurisdiction in such a proceeding is Constitutional jurisdiction of an original kind. A civil proceeding in a Court of civil Jurisdiction is governed by the Code of Civil Procedure (see its preamble). By virtue of section 117 of the Code, a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specially excepted." Moreover. in the case of Muhammad Siddiq and another v. Zawar Hussain Abidi and others PLD 1976 SC 572 the Honourable Supreme Court, in relation to the applicability of Civil Procedure Code on the Functionaries, having Special Jurisdiction has observed as under:‑‑

"It is no doubt true that whenever any special jurisdiction is created or a power is conferred upon a Civil Court then in the absence of any provision to the contrary, the provisions of the Code will apply to such proceedings. But is equally well‑settled that in the case of any conflict between the provisions of the Code and the law the latter will override any provisions to the contrary contained in the Code. " Thus, we are inclined to hold that the Chief Election Commissioner, while deciding a disqualification reference under Article 63‑A of the Constitution, can regularise proceedings before him, on following the principles of the Code of Civil Procedure and he is also empowered to record evidence under Qanun‑e‑Shahadat Order, 1984, because its Article 1(2) provides; that it applies to all judicial proceedings in or before any Court; including a Court Martial, a Tribunal or other Authority exercising judicial or quasi‑judicial powers or jurisdiction, but does not apply to proceedings before an arbitrator. In this behalf reference to the case of Muhammad Saeed v. Election Tribunal PLD 1957 (Pak.) 91 would be beneficial. Relevant para. therefrom reads as under:‑‑

"Beyond the definition of 'judicial proceeding' in section 4(m) of the Code of Criminal Procedure, which only applies to proceedings under that Code, no statutory definition of that expression or of 'judicial functions' is to be found in Pakistan law. An enquiry is judicial, if the object of it is to determine a jural relation between one person and another or a group of persons or between him and the State representing the community. Generally speaking a person performs judicial functions if he is enjoined by the law to adjudicate upon and determine, as between the parties, some controversy relating to the existence or non existence of a right or liability, whether such right or liability be the creation of common law or statute, provided the right, or liability is actionable either under the general law or special law, and the duty to determine the controversy is derived from the State and rests on the ascertainment, with notice and opportunity to parties, of the facts and the law applicable to them and not on policy, expediency or some other extraneous consideration. " Now we will advert towards the objection of learned counsel for respondents, namely; that in respect of an order passed by an Administrative Authority, a Court can make an enquiry and if it is found, that all circumstances needed for passing the order, were not present, it will declare the order to be A void. According to learned counsel, the Chief Election Commissioner, being not the Judge of facts, which are foundation of his jurisdiction, cannot enter into an enquiry, to ascertain; whether petitioner is the Head of Party or not? and even if such opinion is expressed by him, it would be of a tentative nature, having no binding effect. To substantiate the plea, reliance was placed by him on PLD 1965 SC

698. In our opinion, the principle laid down in this judgment, with utmost respect, is not applicable to the instant case, because Article 63‑A had conferred exclusive jurisdiction upon Chief Election Commissioner, to determine the defection of a Parliamentarian/M. P.A., on the grounds mentioned therein, and his findings so recorded, are not amenable to the jurisdiction of an ordinary Court, under clause (6) of Article 63‑A of the Constitution. Therefore, any findings recorded by him, to determine jurisdictional facts, would not be of a tentative nature and shall have a binding effect. To support the same, reference once again can be made to 1998 SCMR 1693, relevant para. wherefrom has already been reproduced hereinabove. It would also be equally important to point out here that in view of ouster of jurisdiction of ordinary Courts, including Honourable Supreme Court and the High Court, it was all the more necessary for the Chief Election Commissioner, to have adjudicated upon the jurisdictional facts; namely, who is the head of a party, because in our opinion, whatever findings would have been given by him that would be final, and cannot be challenged m any Court, therefore, directions by him to the parties, in impugned order, to approach the Civil Court, for resolving their dispute, that who is the Head of the party, are beyond the scope of his powers under Article 63‑A of the Constitution. We are ready even to go to the extent, that if for sake of arguments, it is presumed that he had rightly directed the parties to go before the Civil Court, then too, the Civil Court would be reluctant to grant the relief, as its jurisdiction has been absolutely barred under clause (6) of Article 63‑A of the Constitution. Thus, the argument putforth by learned counsel in this behalf, is not entertainable. It has been next contended by Mr. Fakharuddin G. Ibrahim. learned Advocate, that in view of Rehmatullah's case 1983 SCMR 1064 directions made by the Chief Election Commissioner, are correct, because the entitlement is to he proved by the petitioner, before a Civil Court. Suffice it to observe that in view of the above discussion, we are of the opinion, that the principle discussed in Rehmatullah's case, would not be applicable, because this matter pertains to Urban Rent Restriction Ordinance, where question of ownership of a landlord in respect of disputed premises, was under consideration and in this context, following observations were made by Honourable Supreme Court:‑‑ "There is nothing in the law including the case‑law as discussed already to answer the second (earlier posed) question in the affirmative. What a party, tenant included can, offer to do, for going to the Civil Court, the Controller can no doubt pass an order with the same result including the injurious consequences for the patty concerned. It has been seen that there are three major demands for the relevant laws. They are‑‑ (i) The proceedings are summary before a forum which is not in the strict sense a Court ‑‑ Evidence Act and Civil Procedure Code do not apply and the Presiding Officer need not have judicial experience e.g. in cantonment rent cases in some areas. (ii) The law leaves no doubt, that except where tentative and only prima facie orders are permissible, the decision regarding eviction (and its basis including when the matter involves title) cannot be without complete satisfaction of the Controller. It cannot be so where he is in 'doubt'. (iii) By operation of general law of res judicata, section 9, section 12(2), C.P.C. and section 15(7) of Rent Restriction Ordinance together with policy of Court to prevent multiplicity and repeat litigation, the Civil Court is debarred from setting aside the orders of the Controller. What is permissible for Court of general jurisdiction in the field of fair play, justice and equity when there is no statutory bar, is also permissible for the Controller. He can, in a given case even when the landlord has discharged the initial burden in a title involving case, on the tenant creating genuine and reasonable doubt about the same, refuse to eject the tenant and can leave the landlord to a remedy in a Civil Court, first and then again approach to the Controller. Even when the tenant has not succeed before the Controller to create the required reasonable' doubt but has convinced him that his plea is not frivolous and/or create the required satisfaction or doubt, while ejecting him, the Controller can leave scope for civil suit by observing so and where he fails to do so, higher Court can do the same." It may be seen that in the above report, the Honourable Author Judge has observed that the Courts of general jurisdiction can adjudicate upon the matter, when there is no statutory bar. Whereas in the case in hand, there is absolute bar on the jurisdiction of Civil Courts, including the Supreme Court and the High Court in terms of clause (6) of Article 63‑A of the Constitution, which says that, notwithstanding anything contained in the Constitution, no Court including the Supreme Court and the High Court shall entertain any legal proceedings, exercise any jurisdiction or make any, order, in relation to any action under this Article. Therefore, we are of the opinion that no legal proceedings can be drawn against the action, directing the parties to go before a Civil Court, for determination of the fact,, that who is the head of the party. Thus, the objection raised in this behalf, merits no consideration. Learned counsel for respondents also contended that instant Constitutional petitions, are not maintainable in view of the bar contemplated by clause (6) of Article 63‑A of the Constitution. Suffice it to observe that in the judgment Wukala Mahaz Barai Tahafaz Dastoor PLD 1998 SC 1263, while examining clause (6) of Article 63‑A of the Constitution, the Honourable Supreme Court has opined as follows:‑‑ "

15. Dr. A. Basit, learned counsel, has particularly referred to clause (6) of the impugned Article, which provides that 'Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to any action under this Article' and submitted that the same is hit by the doctrine of basic structure as in most of the above Indian Supreme Court cases the exclusion of the jurisdiction of the High Courts and the Supreme Court was treated as a breach of the basic structure of the Constitution. It will be suffice to observe that it has been consistently held by this Court that the question, as to whether a superior Court has jurisdiction in a particular matter or not, is to be decided by the Court itself. No provision of whatsoever amplitude can take away the jurisdiction of the superior Courts to examine the above question as laid down inter alia by the dictum in the case of State v. Zia‑ur‑Rehman PLD 1973 SC

49. Furthermore, the simplicitor factum that a particular provision of the Constitution contains a non‑abstante clause will not itself be sufficient to deny the jurisdiction of the superior Courts if the impugned action/order is without jurisdiction, coram non judice or mala fide. In this behalf reference may be made to the case of Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26 in which the scope of Article 270‑A of the Constitution which contained a non abstante clause and which was couched in the broadest possible wordings was in issue. It was held that the Court had the jurisdiction to interfere with the acts performed without jurisdiction, coram non judice and mala fide. In our view, the above clause (6) of Article 63‑A does not debar a High Court or this Court from examining an order passed under the above Article in terms of the aforesaid judgment." The above view had been consistently followed by our Judicial Forums. Reference in this behalf can be made to the case of Pir Sabir Shah v. Shad Muhammad PLD 1994 SC 738 and Mian Muhammad Nawez Sharif v. President of Pakistan and others PLD 1993 SC

473. Learned counsel then argued that even if it is presumed that jurisdiction of this Court can be invoked, then too same would be subject to the principles laid down in the above para. by Honourable Supreme Court. According to him, the impugned order has not been passed without jurisdiction, therefore, it is not open to challenge. Mr. Aslam Chishti, learned counsel for petitioner, was of the opinion that the Chief Election Commissioner, refused to exercise jurisdiction, vested in him, without lawful authority, as such, the impugned order would be termed to have been passed, without jurisdiction, as it has been held by Honourable Supreme Court in the case of Ghulam Mustafa Jatoi 1994 SCMR 1299. Relevant observations therefrom, reads as under:‑‑ "We are inclined to hold that appellant's above Constitutional petition was competent and the High Court by declining to exercise its Constitutional jurisdiction, for the reasons quoted hereinabove, has failed to exercise jurisdiction vested in it." We are in quite agreement with the learned counsel for petitioner that Chief Election Commissioner, in exercise of collateral/additional or ancillary jurisdiction, may have exercised the powers to determine the jurisdictional facts, relating to the status of petitioner, being the head of the party or otherwise, therefore, in not doing so, jurisdiction has not been exercised. Thus, the order is, without jurisdiction, therefore, instant petitions are competent. Learned counsel for respondent also stated before us that if, without prejudice to his submissions made by him to oppose the petition, it is presumed for sake of arguments, that Chief Election Commissioner, had the jurisdiction to determine the Head of the Party, even then, writ cannot be issued, because violation of the party discipline or declared policies, is defined in Article 63‑A(1) Explanation (a) of the Constitution, does not constitute defection, in view of the clarification made by Honourable Supreme Court in the case of Wukala Mahaz Barai Tahafaz Dastoor PLD 1998 SC 1263, wherein it has been held that paragraph (a) to be read in conjunction with paragraphs (b) and (c) to Explanation of clause (1) of Article 63‑A of the Constitution and according to him, as in the instant case, the counsel for petitioner, repeatedly stated that reference was instituted against respondent, alone under Article 63‑A(1) ‑ Explanation (a), therefore, even if the case is remanded to the Chief Election Commissioner, it would an exercise in futility. Malik Sikandar Khan, learned Advocate‑General stated that in the case of Sardar Fateh Ali Umrani ‑f999 SCMR 215, the petitioner's counsel Mr. Muhammad Aslam Chishti, who incidentally had appeared in that case as well had relied on the above judgment of Wukala Mahaz Barai Tahafaz Dastoor, and argued that the alleged act of defection has taken place outside the House of provincial Assembly, therefore, it is not covered by clause (1)(a) of Article 63‑A of the Constitution and he relied upon a Para. of the said judgment. Therefore, petitioner's counsel cannot ask for remand of case, as he himself was of the opinion, that violation of party policies, outside the House, does not constitute, defection. Mr. Aslam Chishti, learned counsel contended, that firstly this objection has not been incarcerated in the written statement filed by respondent, although till then the Honourable Supreme Court had announced the judgment, secondly, during arguments, which continued for two days, even orally, it was not pointed out that respondents are contemplating to raise this objection, thirdly; he stated that the case of petitioner is covered under Article 63‑A(1) and not under Explanation (a) of the Constitution, fourthly; in such like situation, the case of Sardar Fateh Ali Umrani, has been remanded to Chief Election Commissioner, for fresh decision, after going through the judgment of Wukala Mahaz Barai Tahafaz Dastoor. Thus, this question may be left open for decision by the Chief Election Commissioner. It is important to note that during arguments, we enquired from learned counsel for petitioner, time and again, that which part of Article 63‑A of the Constitution, covers the case of private respondent. He repeatedly stated that against him, case falls under Article 63‑A(1) Explanation (a). Inasmuch as at one stage, he was asked that, as to whether he is sure that his case is covered by the provision noted hereinabove, he answered in affirmative. But when he was confronted with the argument of Mr. Fakharuddin G. Ibrahim, learned counsel, he stated that he had taken the stand, that case against respondents was filed under Article 63‑A(1) and not under Explanation (a) and he also admitted that there could be an error on his part. We were inclined to attend this issue, but for the reason that the Honourable Supreme Court had remanded the case of Sardar Fateh Ali Umrani to Chief Election Commissioner for fresh decision, therefore, we also though it proper not to attend this question at this stage, and left it open for the Chief Election Commissioner to adjudicate upon this aspect of the case as well, but with liberty to attend the question; as to whether reference of disqualification is competent, in view of the judgment of Wukala Mahaz Barai Tahafaz Dastoor, even before resolving the controversy that who is the Head of the Party? Thus, for the foregoing reasons we are inclined to hold that under Article 63-A(1) of the Constitution of Islamic Republic of Pakistan, 1973, the Chief Election. Commissioner has the jurisdiction to determine as to who is the `head of the political party being a jurisdictional fact. However, no powers are available to the` Chief Election Commissioner for resolving inbuilt organisational structural disputes which might have cropped up in the folds of a political party. Consequently, the impugned order, dated 25th September, 1998 passed by Chief Election Commissioner of Pakistan is declared to have been passed without jurisdiction, thus, it is of no legal effect. Accordingly case is remanded to Chief Election Commissioner for decision of Reference Nos.8 to 13 of 1998 filed by petitioner Sardar Attaullah Khan Mengal. Because the judgment is being held, as of no legal effect, therefore, References Nos. 14 to 17 of 1998, filed by Mr Moheem Khan Baloch against Sardar Muhammad Akhtar Mengal and others, shall also be deemed to be pending for decision before the Chief Election Commissioner, in view of the observations made hereinabove. Parties are left to bear their own costs. M.B.A./756/Q Order accordingly.