P L D 1962 (W (PLP)

M. R. KAYANI, C. J.‑The petitioner is a defeated candidate for a reserved seat of the Provincial Assembly, and it is argued on her behalf that the election was void by reason of the fact that the Electors for the said constituency were not sworn in as required by Article 159 of the Constitution. When we objected that Article 159 applied only to the consequences arising from Article 158, were referred to Article

229. In our opinion, neither of these Articles applies, and the Constitution does not require members of the Assembly who have to vote for women to take an oath before voting.

2. Article 158 provides that persons enrolled on the electoral roll for an electoral unit shall from amongst themselves elect a person who shall be known as the Elector for that unit and that these Electors shall constitute the Electoral College of Pakistan. It is clear that the Electors under Article 158 are persons who will return members to the ordinary seats of the Assembly. Article 159 is to the following effect: "As soon as is practicable after he has been elected, an Elector shall, in the manner prescribed by law, make an oath in such form set out in the First Schedule as is applicable to members of the Electoral College."

3. Thust Article 159 requires an oath to be administered to persons who are members of the Electoral College under Article 158 and not to persons who are themselves elected by these Electors.

4. It was then pointed out that the present Electoral College was constituted under Article 229 which "shall have effect until an Electoral College of Pakistan is constituted as provided in Article 158." Under clause (2) the members of the Electoral College shall be‑ (a) the persons who are the elected members of Union Councils, Union Committees and Town Committees under the Basic Democracies Order ; and (b) such other persons, representative of areas not divided into Wards under that Order, as are chosen in such manner as the Chief Election Commissioner may direct. Clause (3) requires that "as soon as is practicable after the enactment of this Constitution, each member of the Electoral College as constituted in accordance with this Article shall, in such manner as the President may determine, make an oath in such form set out in the First Schedule as is applicable to members of the Electoral College of Pakistan". Then follow clauses (4) and (5) which may be profitably reproduced: ‑ "(4) The Chief Election Commissioner shall from time to time arrange the members of the Electoral College as constituted in accordance with this Article into groups so that there are one hundred and fifty such groups for each Province and the persons In each group represent, so far as is practicable, adjacent areas." "(5) The persons included in a group referred to in clause (4) of this Article shall be the constituents for one seat (not being a seat reserved exclusively for women) in the Assembly of the Province in which the group is included."

5. It was contended before us that sub‑clause (b) of clause (2) of this Article envisages the inclusion of women in the Electoral College. This argument, however, is repelled by the provision in clause (4) that there will be one hundred and fifty members for each Province, and the provision in clause (5) which indirectly indicates that seats reserved for women are not included.

6. We have, therefore, no doubt that the Constitution does not provide for an oath to be administered to members of the Assembly who elect women to reserved seats.

7. We should point out that where an election petition lies, this Court will not interfere in writ jurisdiction. An election petition is provided for by President's Order No. 13 of 1962, Chapter III, and Article 3 thereof provides that no election shall be called in question except by an election petition or by an appeal under Chapter II Chapter IV provides for the trial of the election petition, and Article 27 lays down the grounds on which an election can be declared void. Ground (a) is to the following effect: "The Tribunal shall declare an election to be void if it is satisfied that‑ (a) the failure of any person to comply with the provisions of the Constitution or the Order or the rules has materially affected the result of the election."

8. Now since it is contended that the absence of oath has not bound the members to vote for the best candidate among women, the result of the election was materially affected. The election petition would be covered by clause (a).

9. It was argued, however, that the Preamble of President's Order No. 13 provides only for the settlement of disputes "arising out of elections under the National and Provincial Assemblies (First Elections) Order, 1962 (Presidents' Order No. 4 of 1962) and that since President's Order No. 4 did not apply to the reserved seats, the provisions for an election petition did not apply to the election of women candidates. In support of this argument reliance was placed on Article 45 of President's Order No. 4 of 1962, which is to the following effect: ‑ "

45. Election for reserved seats.‑(1) Save as otherwise provided, the provisions of this Order shall not apply to an election to fill a reserved seat. (2) The Commission shall, subject to the provisions o! Article 169 of the Constitution, hold and conduct an election to fill a reserved seat in such manner as It may think fit. (3) The Commission may, for the purpose of holding and conducting an election under clause (2), apply, with or without modifications, any provision of this Order to such election." It is obvious that this Order does not apply to an election for reserved seats "save as otherwise provided" and that provision is in clauses (2) and (3). Under that provision the Election Commission has provided for election to reserved seats In Gazette Notification No. F. 2(42)/b2‑ELS dated the 1st of May 1962. There 9s no other provision regulating the conduct of an election to reserved seats and, therefore, the Preamble to President's' Order No. 13 of 1962, when it refers to disputes arising out of elections under President's Order No. 4, should be understood to cover elections to reserved seats, for It is clear that provision for election to reserved seats was trade under Article 45 of that Order.

10. In order to meet the argument that no other provision existed for election to women seats, reference was made to President's Order No. 16 of 1962 which is called the Reserved Seats (First Elections) Order, 1962. This merely provides for zonal representation and has been enacted for the removal of doubts. Under Article 169 of the Constitution, a Provincial Assembly was required to elect five members to the seats in the Assembly reserved exclusively for women. This language could lend itself to the interpretation that all the one hundred and fifty members of the Assembly may have to vote for each of the five women seats.

11. We dismissed this petition on this ground also. K. B. A. Petition dismissed.