2002 PLP 1871 (SCMR)

Dates of hearing: 24th and 27th July, 1998. CH. MUHAMMAD ARIF, J.‑‑‑This is a petition for leave to appeal against the order dated 6‑7‑1998 passed by the Lahore High Court, Lahore in respondent Muhammad Rashid Chaudhry's Constitution Petition bearing Writ Petition No.13424 of 1998 and Civil Miscellaneous No.1 of 1998 therein calling upon respondents No. l and 2 herein to enter appearance on 25‑9‑1998 and suspending the Notification dated 20‑5‑1998 of petitioner Muhammad Manaf as Councillor from Zila Council, 45 Simbli, previously under Zila Council Jhelum.

2. The background leading to the instant petition is that the petitioner, alongwith respondents Nos.3 to 8 and 10, contested the election of Zila Council Jhelum from 45 Simbli on 20-5‑1998. At the time of the election, the said Halqa fell under Zila Council, Jhelum, The Governor of the Punjab, in exercise of powers conferred upon him under section 6 of the Punjab Land Revenue Act, 1967 and in supersession of previous notifications and orders to the extent of Districts Jhelum and Gujrat, ordered that Tehsil/Sub‑Division Sarai Alamgir with its existing boundaries shall be detached from District Jhelum and attached to District Gujrat with immediate effect. On the same day two Notifications, bearing Nos. 336‑98/U‑36‑B/237 R&G/SO.II and 135‑98/U‑36‑B /24‑R&G/SOII, were issued by respondent‑Additional Deputy Commissioner/Returning Officer Jhelum, ordering that Gujrat District shall be divided into three Tehsils to include Sarai Alamgir as well. On 28‑5‑1998 the Governor of the Punjab issued Notification No.SOV(LG)2‑52/81(P) thereby including Tehsil Sarai Alamgir in Zila Council Gujrat. Thereafter, respondent No.10 Muhammad Rashid Chaudhry approached the Election Tribunal at Jhelum alleging that he was declared successful but the Notification regarding the present petitioner was gone ahead by changing the number of votes from 3 to 53 of Polling Station BP School, Bohang. As Simbli did not form part of jurisdiction of Zila Council Jhelum then and as his election petition was not maintainable, the said respondent filed an election petition before the Election Tribunal, Gujrat. The case of the petitioner is that instead of approaching the Punjab Local Council Election Authority for the alleged redress of his grievance that no Election Tribunal had been designated for newly‑added electoral units from 87‑93 in Gujrat, respondent No. 10 opted to file Writ Petition No. 13424 of 1998 before the Lahore High Court, Lahore in which the learned Single Judge has proceeded with making order dated 6‑7‑1998, which has been impugned in this C. P. S. L. A. No. 1077‑L of 1998.

3. Mr. Maqbul Elahi Malik, learned Senior Advocate Supreme Court appearing in support of this petition, has vehemently contended that filing of Writ Petition No. 13424 of 1998 by respondent Muhammad Rashid Chaudhry was not in order in that, in view of the provisions of section 17(2) read with sections 24 and 25 of the Punjab Local Government Ordinance, 1979, the present was a case which should have been tried and resolved by the appropriate Election Tribunal notified by the Punjab Local Council Election Authority. According to the learned counsel, the every assumption of jurisdiction by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be countenanced as the alleged genuineness or otherwise of Form No.XIII, which was made the basis for the declaration of the result, falls for resolution before the Election Tribunal alone, according to law. He has specifically referred to an unreported judgment of this Court, in Civil Petition No.793 of 1998 dated 25‑6‑1998, resolving such dispute in favour of the party similarly placed as the petitioner holding that the matter could be gone ahead only by an Election Tribunal constituted under the Ordinance (ibid).

4. Mr. S.M. Masood, learned Senior Advocate Supreme Court, appearing on behalf of respondent Muhammad Rashid Chaudhry/caveator, took up a preliminary objection to the very maintainability of the petition with the argument that the petitioner has purposely not placed on record the documents appended by his client to the Memo. of Writ Petition No. 13424 of 1998 and that there has been some overwriting/s also in the copy of the Notification appearing at page 48 of the present Paper Book. He has produced for perusal couple of documents including Form No.XIII, to contend that the Notification in dispute was not a genuine document in that its basis was tainted with fraud/overwriting in the office of the Election functionaries.

5. We have considered the arguments addressed by the learned counsel appearing for the petitioner and respondent Muhammad Rashid Chaudhry/Caveator and have also perused the material with their help.

6. On 24‑7‑1998 the learned Law Officer, appearing in the matter then, was directed to produce the original record of the Notification as also the original Form No.XIV prepared by the Returning Officer of Zila Council and the needful has been done today. This record has also been considered in the context of the present lis.

7. The only question which arises for decision is' w e err t e High Court is possessed of the power/jurisdiction to interfere with an election matter after its result has been notified. Para. 6 of the Constitution Petition, brought by respondent Muhammad Rashid/caveator, reads thus:‑‑ "

6. That tote petitioner approached the Election Tribunal, Jhelum for the redress of his grievance. However, he was informed that Simbli was out of the jurisdiction of Zila Council, Jhelum since the same has been brought under Zila Council, Gujrat. Consequently, petitioner approached the Election Tribunal, Gujrat, but to the utter surprise of the petitioner, two tribunals made in Gujrat, one had jurisdiction over Electoral units 1 to 40 of the Muslim Members and the second had the jurisdiction over electoral Unit Nos.41 to

86. Whereas the newly‑added Electoral Units from 87 to 93 were left out." His case was that the disputed result is forged and tampered with "by the Returning Officer, Gujrat illegally, without lawful authority by way of criminal act. .". The aforereferred excerpts from the writ petition, in which the impugned orders had been passed, clearly show that what requires to be decided is whether the disputed results are legal or otherwise. There is force in the contention being raised by the learned counsel for the petitioner that the dispute of the nature which has been taken by respondent Muhammad Rasbid Chaudhry/caveator before the High Court does not fall short of the legal requirements for the resolution of such dispute by the Election Tribunal concerned in terms of sections 24 and 25 of the Ordinance (ibid). He was also on solid grounds while arguing that even the question regarding the commission on any illegal act by the Returning Officer and/or any other functionary in accordance with the Election Rules, 1979 will, of course, be attended to according to law by it. As already mentioned above, respondent No. 10 had made a clean breast of it all that he remained unsuccessful in having this matter considered by an election tribunal in Jhelum and that at the time of institution of Constitution petition before the High Court no Tribunal had been designated to attend to the disputed Election of Halqa No.45 Simbli, Gujrat.

8. Both of the learned counsel for the private parties have stated, in most unambiguous terms, that the position on the surface today is that to decide this dispute an Election Tribunal has been nominated by the Punjab Local Bodies Election Authority, during the interregnum.

9. Mr. S.M. Masood, learned counsel for respondent. Muhammad Rashid Chardhry/caveator was not in a position to contend for the maintainability of his client's writ petition before the High Court. He submitted that as his client has not yet filed an election petition' it would advance the cause of justice if he is permitted to submit the same now taking up all objections to the Notification of the petitioner, including the objections against the alleged fraud/forgery/interpolation by the Returning Officer concerned. Learned counsel for the petitioner has no objection to the disposal of this petition in line with the observations made by this Court in C.P. 793 of 1998. He also made a reference to order dated 8‑7‑1998 passed by a learned Judge of the Lahore High Court, Lahore in Writ Petition No. 13479 of 1998 titled Nawabzada Ghazanfer Ali Gull v. Government of the Punjab etc, admitting the same to regular hearing and making the following observations in the aforesaid admitting order:‑‑ "

4. The matter is of public importance, if the Hon'ble Chief Justice deems it proper, the same may be placed before a larger Bench. " In Civil Miscellaneous No. l of 1998, in addition to issuing notice to petitioner herein it was also observed that "meanwhile holding of elections for the special interest and non‑Muslims seats as well as Chairman and Vice Chairman of both the District Councils are stayed". Mr. Maqbool Elahi Malik, learned counsel for the petitioner, knew about the pendency of Writ Petition No. 13479 of 1998 before the High Court and submitted that the result of the same will have a bearing on the decision of the present petition in terms of this Court's judgment in C.P. No.793 of 1998. He agreed with Mr. S.M. Masood, learned counsel for respondent No.10, that some observation may be made in that regard, while disposing of the instant petition.

10. In this view of the matter, we convert this petition into appeal, dispose of the same and set aside the impugned order dated 6‑7‑1998 and with consent of the learned counsel for the parties, direct that the writ E petition fled by respondent No. 10 in the High Court shall be remitted to the Election Tribunal, Gujrat (Mr. Shaukat Hussain Khan, Additional District Judge, Kharian) with the direction to treat the same as election petition and decide the matter within two months from the date of receipt of copy of this order. The requisite fee shall be deposited within 10 days with liberty to add additional pleas if any to the Election Petition. In the meanwhile, both the parties shall maintain status quo and neither the petitioner nor respondent shall work but this is subject to the decision of Writ Petition No.13479 of 1998 by the High Court. Q.M.H./M.A.K./M‑73/S Order accordingly.