P L D 1990 Supreme Court 599 (PLP)
P L D 1990 Supreme Court 599 Versus FEDERATION OF PAKISTAN through Secretary, Ministry of Justice , and Parliamentary Affairs, Islamabad and 2 others' — Respondents
| Citation | P L D 1990 Supreme Court 599 (PLP) |
| Forum / Court | |
| Bench Members | Single Bench |
| Parties | P L D 1990 Supreme Court 599 Versus FEDERATION OF PAKISTAN through Secretary, Ministry of Justice , and Parliamentary Affairs, Islamabad and 2 others' — Respondents |
| Primary Law | (d) Constitution or Pakistan (1973), (a) Political Parties Act (III of 1962), (c) Constitution of Pakistan (1973) |
Q1: What are the key laws and sections cited in P L D 1990 Supreme Court 599 (PLP)?
This judgment primarily cites: (d) Constitution or Pakistan (1973), (a) Political Parties Act (III of 1962), (c) Constitution of Pakistan (1973) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1990 Supreme Court 599 (PLP)?
The case was heard and decided by the bench comprising: Honorable Judges.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1990 Supreme Court 599 (PLP) (P L D 1990 Supreme Court 599 Versus FEDERATION OF PAKISTAN through Secretary, Ministry of Justice , and Parliamentary Affairs, Islamabad and 2 others' — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Khalid M. Ishaque, Senior Advocate Supreme Court, Muhammad Akram Sheikh, Advocate Supreme Court, and, Manzoor--- Ilahi, Advocate-on Record for Appellant.
- Yahya Bakhtiar, Attorney-General for Pakistan, Muhammad Afzal Siddiqui, Deputy Attorney-General, Abdul Baseer Oureshi, Standing Counsel and Ch. Akhtar Ali, Advocate-on-Record for Respondents Nos. I and 3.
- Raja Muhammad Anwar, Senior Advocate Supreme Court Sardar Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No. 2.
- Date of hearing: 11th April, 1990.
Headnotes / Summary
(From the judgment of Peshawar High Court, Peshawar dated 1&9-1989 passed in Writ Petition No.216 of 1989).
S.8-B(2)
Constitution of Pakistan (1973), Arts.199 & 185(3)
Leave,-to appeal was granted to examine questions of law namely: Whether High Court could issue the writ of prohibition to the Election Commission when specially a provision of appeal was provided to the Supreme Court; whether High Court could declare the reference made before the Election Commission as incompetent, without there being evidence of fact that (he petitioner was not a leader of the Parliamentary Party and whether the High Court could restrain the Election Commission from deciding a reference, duly referred to it within the meaning of S.8-B, Political Parties-Act, 1962. Link 1
S.8-B
Constitution of Pakistan (1973), Art.199
Disqualification on ground of defection--'-Constitutional petition
No attack was made from any quarters that the Election Commission had exercised or was exercising a jurisdiction not possessed by it or had while exercising it exceeded its jurisdiction and no mal functioning of the Election Commission was alleged
Held, there was no justification for transference of the adjudicatory power from the Election Commission to the High Court on questions of fact and law
Legal there should of the bar of its jurisdiction having not been crossed by the Election Commission no adjudication on merits in the nature of a substitutive finding could be recorded and a parallel jurisdiction on the subject-matter of the controversy could not be exercised by the High Court. Link 2
Arts.185 & 199
Political Parties Act (III of 1902), S.8-B
Appeal to Supreme Court- --Constitutional petition before High Court wherein important issues were raised but no discussion or finding on the said issue was found in the High Court judgment
Supreme Court while setting aside the judgment of' the High Court remanded the matter to High Court for disposing of the Constitutional petition in accordance with law and observed that while this Constitutional petition was awaiting decision on merits in the High Court, there shall be no restraint on the Election Commission in the matter of adjudicating the controversy pending before it. Imtiaz Ahmad v. Ghulam Ali and others P L D, 1963 S C 382; Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha and 2 others P L D 1958 S C (Pak.) 437; N. P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salcm District and others A I R 1952 S C 64; Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another P L D 1986 S C 542; Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another P L D 1900 S C 639; Miss Benazir Bhutto v. Federation of Pakistan and another P L D 1988 S C 416; Noori Trading Corporation (Pvt.) Limited and others v. Federation of Pakistan through the Ministry of Finance and 3 others P L D 1989 Quetta 74; Rahim Shah v. The Chief Election Commissioner of Pakistan and another P L D 1973 S C 24; Dr. M.O. Ghani, Vice-Chancellor, University of Dacca v. Dr. A.N.M. Mahn1ood P L D 1966 S C 802 and Abdul Jabbar and others v. Abdul Waheed Khan and others ,P L D 1974 S C 331 ref. "When an original Court fails to decide an important question, two courses are open to an appellate Court in an appeal against such a judgment/order, namely, (i) to remand the case to the original Court or (ii) to decide the question itself if the facts/dialects of justice so demand. In the present case the question, whether section 8-B of the Political Parties Act, 1962 violates any fundamental right is a question of great public importance which affects the body politic of this country. The popularly elected members of the assemblies and the public-at-large should know, whether section 8-B of the Act is legally enforceable provision or not as it provides penalty against defection, by an elected member of an assembly. It is a question of the nature, which can directly be brought before Supreme Court under clause (3) of Article 184 of the Constitution which provides that "without prejudice to the provisions of Article- 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article." On the basis of the above provision of the Constitution Supreme Court entertained directly and decided the case of Miss Benazir Bhutto v. Federation of Pakistan and another reported in P L D 1988 S C 416 as to the vires of certain provisions of the Act in issue in the instant case. Any doubt as to the legality of section 8-B of the Act will encourage floor crossing by the members, of the Assemblies which will not be in the interest of the democratic institution and of the stability of the country. It is a fit case in which the facts/dictates of justice demand that there should be an authoritative pronouncement from Supreme Court on the above question particularly keeping in view that the High Court declined to examine the above question. The notices be issued to the, Advocates-General of the Provinces, to the Political Parties, represented in the Houses of Parliament or in the Provincial Assemblies, to the other respondents before the Election Commission and to the Attorney-General as per legal requirement. Link 3 The matter is to be placed before the Hon'ble Chief Justice for constituting an appropriate Bench for hearing of the mater."
Art.199
Provision of Art.199 provides mechanism for keeping the various organs and/or functionaries of the State within their legal bounds and to ensure that none of it transgresses or encroaches upon the functions of the other.
Judgment & Decree
AJMAL MIAN, J.
I have had (lie advantage of reading the draft of my learned brother Shariur Rahman's proposed judgment. I am in respectful agreement that the High Court judgment is liable to be set aside and that there should be no restraint on the Election Commission, in the matter of adjudicating the controversy pending before it, but I would like to add a few lines of my own on this aspect. However, I am unable to persuade to myself to agree with the proposed remand order as in my humble opinion this Court should deal itself with the vires of section 8-B of the Political Parties Act, 1962 (hereinafter referred to as the Act) instead of sending the case to the High Court for the reasons recorded here in below.
2. Adverting to the merits of the case, I may observe that the judgment of the High Court is founded on the findings recorded by it that the appellant ceased, to be the leader of the parliamentary party and that the Islami Jamhoori Ittehad remained an alliance of different political parties. None of the above findings relates to any jurisdictional defect in the Election Commission, but they relate to questions of fact which were pre-eminently within the jurisdiction of the Election Commission and could be, more aptly adjudicated upon by it subject to an appeal to this Court, and on which the consent issues were already' framed by the Election Commission on 22-4-1989. The High Court without holding that section 8-B of the Act was ultra vires the Constitution deprived the Election Commission its jurisdiction vested in it by law. In my view such an exercise by the High Court was beyond the purview of Article 199 of the Constitution. The above Article provides mechanism for keeping the various organs and/or functionaries of the State within their legal bounds and to ensure that none of it transgresses or encroaches upon the functions of the other. I am appalled to note that in the instant case the 'High Court instead of discharging its above constitutional function has itself transgressed upon the jurisdiction of the Election Commission and rendered section 8-B of the Act, (which was designed and intended to prevent floor crossing in the Assemblies by its members in order to bring the required stability in the democratic institutions of the country), ineffective. The exercise of writ jurisdiction by the High Court in the present case on the grounds found favour with it was not warranted by law or otherwise.
3. As regards the question, whether the case should be remanded to the High Court for adjudication upon the vires of section 8-B of the Act or should this Court take upon itself to decide the above issue, I may observe that when an original Court fails to decide an important question, two courses are open to an appellate Court in an appeal against such a judgment/order, namely, (i) to remand the case to the original Court or/to decide the question itself if the facts/dictates of justice so demand. In the present case the question, whether section 8-B of the Act violates any fundamental right is a question of great public importance which affects the body politic of this country. The popularly elected members of the assemblies and the public-at-large should know, whether section 8-B of the Act is legally enforceable provision or not as it provides penalty against defection by an elected member of an assembly. It is a question of the nature, which can directly he brought before this Court under clause (3) of Article 184 of the Constitution which provides that "without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article." I may observe that on the basis of the above provision of the Constitution, this Court entertained directly and decided the case of Miss Benazir Bhutto v.1 Federation of Pakistan and another reported in P L D 1988 SC 416 as to the vires' of certain provisions of the Act in issue in the instant case. In my humble view any doubt as to the legality of section 8-B of the Act will encourage floor crossing by the members of the Assemblies which will not be in the interest of the democratic institutions and of the stability of the country. I am, -therefore, of the view that it is a fit case in which the facts/dictates of justice demand that there should be an authoritative pronouncement from this Court on the above question particularly keeping in view that the High Court declined to examine the above question.
4. The notices be issued to the Advocates-General of the Provinces, to the Political Parties represented in the Houses of Parliament or in the Provincial Assemblies, to the other respondents before the Election Commission and to the Attorney-General as per legal requirement. The matter is to be placed before the Hon'ble' Chief Justice for .constituting an appropriate Bench for hearing of the matter. The Court unanimously accepts the appeal, sets aside the impugned judgment of the High Court, with the result that there shall be no writ 0f prohibition, interim or perpetual preventing the Election Commission from proceeding with the matter before it. By a majority the Court remands the matter to the High Court for decision of the writ petition on the constitutional issues raised therein. M.B.A./H.104/S Appeal accepted,