P L D 2005 Supreme Court 52 (PLP)

JAVED IQBAL, J.

The petitioner preferred a Constitutional petition under Article, 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as `the Constitution') in the High Court of Sindh, Karachi, with the prayer (not properly worded) that "the Election Commission of Pakistan be directed to reject nomination paper's of all those candidates who are not faithful to the declaration by the Founder of Pakistan and bear true Faith and allegiance to Pakistan and will uphold the sovereignty and integrity of Pakistan. Specially the candidates of M.Q.M. and those candidates who are holding tickets from M.Q.M. shall be strictly condemned to participate in the election of 10-10-2002 and their election campaign should be banned until the judgment of this petition be fulfilled." The Constitutional petition has been rejected vide judgment impugned, hence this petition.

2. We have heard Mr. Ayatullah Dr. Imran Liaquat Hussain (petitioner) at length who mainly argued that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is urged with vehemence that proper opportunity of hearing was not afforded to the petitioner and the main contention as agitated by the petitioner that Mr. Altaf Hussain, the Quaid of Motehda Quami Movement who is anti of Pakistan and deadly against the Quaid-e-Azam Muhammad Ali Jinnah, has not been adverted to which caused- serious prejudice against the petitioner. The press clippings attached with the Constitutional petition and brought to the notice of the High Court to substantiate the case of petitioner, were ignored without any rhyme and reason and thus it is al case of misreading and non-reading of record and on this score alone the judgment impugned is liable to be set aside. It is also pointed out that Mr. Altaf Hussain is against the Pakistan Army and always speaks A against it and therefore, his party should have been disallowed to participate in the elections. It, is also argued that Mr. Altaf Hussain, Quaid of Motehda Quami Movement, during his telephonic speech in Sindh Ittehad Convention dated 19-4-2002 proclaimed provincialism and demanded for a new Constitution which is against the integrity and solidarity of Pakistan. It is also pointed out that Mr. Altaf Hussain in an interview with British national Pakistani student in London which published in daily "Amn" on 11-10-2002 criticized two nations theory bitterly which amounts to a severe threat to the entire nation and solidarity of Pakistan.

3. The learned Deputy Attorney General Syed Zaki Muhammad and learned Advocate-General, Sindh, Mr. Anwar Mansoor Khan, entered appearance on the Court notice and supported the judgment impugned for the reasons enumerated therein with further submissions that as a result of elections, the National Assembly, Senate and Provincial Assemblies are performing their function and at this stage to examine as to whether the member of political party could have been participated in the election or otherwise would be an exercise in futility. It is urged emphatically that the petitioner should have invoked the relevant provision of Election Laws for the redressal of his grievance.

4. We have carefully examined the respective contentions as adduced on behalf of the parties. After having heard Mr. Ayatullah Dr. Imran Liaquat Hussain at length, he was pointedly asked as to why the relevant provision of Election Laws were not invoked to get the nomination papers filed by the candidates of Mutehda Qaumi Movement rejected on the basis of serious allegations leveled against them? No plausible justification could be furnished by the petitioner except that the petitioner was fighting for the integrity, solidarity and prosperity of Pakistan. The petitioner however, referred Article 63 of the Constitution to substantiate his arguments as mentioned hereinabove. No doubt the allegations leveled against Mutehda Quami Movement, are very serious but how 0the genuineness and authenticity of such allegations could be determined by this Court merely on the basis of press clippings and speeches made on various occasions. Besides that all the elected members of Senate; National Assembly and Provincial Assembly of Sindh belonging to Mutehda Qaumi Movement, are not impleaded as a party and they cannot be condemned unheard which would be in violation of principles of natural justice, fair play and equity. On this score alone the Constitutional petition could have been dismissed.

5. We may mention here at this juncture that the provisions as contained in the Representation of the People Act, 1976 are capable enough to meet all sort of such eventualities which were never invoked by the petitioner at opportune moment who preferred to watch the entire process of elections till its conclusion as a silent spectator and woke up from deep slumber when all the democratic institutions such as National Assembly, Senate and Provincial Assemblies are functioning as a result of elections held in 2002. The petitioner could have very conveniently invoked the provision enumerated in section 14(5-A) of the Representation of the People Act, 1976 for initiation of appropriate action by the Election Tribunal being concerned Constitutional forum having exclusive jurisdiction to dilate upon and determine such issues. The petitioner could have approached the learned High Court and this Court after availing all the remedies available under the election laws for, the redressal of his grievance. The forum available in the hierarchy of election laws cannot be bypassed without sufficient lawful justification which is lacking in this case. We are not persuaded to agree with the contention as pressed time and again by the petitioner that this petition falls within the realm of "public interest litigation" because the public has exercised its right of franchise and elected their representatives who cannot be de-seated on the basis of "public interest litigation" and the prescribed procedure under relevant election laws are to be followed.

6. In the same wake of events we have adverted to the provisions embodied under Article 63 which hardly renders any assistance to the case of petitioner and "provides mode to oust a member of the Parliament if he incurs disqualification subsequent to his election as. member. The Speaker of the National Assembly or the Chairman of the Senate as the case may be, may make a reference to the Election Commission for decision of the question as to whether a member who had suffered disqualification ceased to hold his office or not. When a matter is brought to the notice of the Speaker with reference to the disqualification of a member, he would have to apply his mind to the fact whether a question such as contemplated in Article 63(2) had arisen or not. For instance, if the information upon which he was required to make a reference was unrelatable to any of the grounds contained in sub clauses (a) to (e) or clause (i) of Article 63 of the Constitution, he would be entitled to refuse to make a reference. However, his function under Article 63(2) is clearly of a very limited character. He will no doubt apply his mind to the very limited point whether a question had or had not arisen. In fact, in a proper case, he might be directed by the superior Court to make a reference where he had refused to do so, if a petition was brought for that relief." Ghulam Muhammad Mustafa Khar v. Chief Election Commission of Pakistan and others (PLD 1969 Lah. 602).

7. There is no substance in the arguments as adduced by the Petitioner that the members of National Assembly, Senate and Provincial Assemblies could be disqualified by this Court in exercise of power as conferred upon it under Article 63 of the Constitution. It is worth meaning that "if a question arises whether a particular person has incurred of the disqualifications mentioned in Arts. 63(1)(a) to (p) & 113 then the jurisdiction to decide that question, via the Speaker or then-chairman of the Senate, would be that of the Chief Election Commissioner whose jurisdiction would be exclusive in the matter. Therefore If the latter is of the opinion that tire member has become disqualified, the member will cease to be a member of the House." President v. Benazir Bhutto (PLD 1991 Kar. 164), Muhammad Abdul Haque v. Fazlul Qadir Chaudhry (PLD 1963 Dacca 669).

8. A careful scrutiny of the entire record would reveal that Mr. Ayatullah Dr. Imram Liaquat Hussain has ignored the provisions as contained in Article 225 of the Constitution which have been discussed on various occasions in different cases and the judicial consensus seems to be "that Article 225 is expressed in the negative form to give exclusive jurisdiction in election cases to the Tribunals appointed by the Election Commission thus to exclude or oust the jurisdiction of all Courts in regard to electron matters and to prescribe only one mode of challenge. If the electron dispute is about the conduct or validity of election, it could only be challenged through election petition, a statutory remedy, provided under the law. The Constitution itself prohibits the disputes relating to corrupt or illegal practices, being called in question by any other mode or manner except by way of election petition under the provisions of the Representation of the People Act, 1976. Therefore, writ jurisdiction was barred as other adequate remedy was available. However, the bar created by Art. 225 does not apply where the matter has once been finally decided by the Tribunal created for the purpose and it is, only such disposal which is being questioned in the writ proceedings. Hence, there is no bar to an application to the High Court under Art.199 of the Constitution against the decision of an Election Tribunal and the High Courts may issue appropriate writs of mandamus or certiorari in such cases." Election Commission of Pakistan v. Javed Hashmi and others (PLD 1989 SC 396), Muhammad Tariq Chaudhry v. Syed, Masroor Ahsan, (PLD 1991 Lah.200), Niaz Ahmed Khan, Advocate. v. Province of Sindh (PLD 1977 Kar.604), Muhammad Sadique, v. Muhammad Hussain (1983 CLC 2734), Qazi Ghulam Ahmed, v. G.F. Elahi Election Tribunal Chakwal (PLD 1962 Lah. 786), Shankar v. Returning Officer, Kolaba (AIR 1952 Bom. 277).

9. We have carefully perused the judgment impugned and examined the prime contention of the petitioner that the legal and factual aspects of the controversy have not been appreciated in its true perspective. After having gone through the judgment, we are of the view that "as a rule where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must be availed of. Hence ordinarily the Court in exercise of its writ jurisdiction declines to interfere in cases of election because it is desirable that the decision on a matter of disputed election should as soon as possible become final and conclusive so that the constitution of a House or Assembly may be distinctly and speedily known. There is another reason why the Court declines to enter into these questions because in such cases there are found to be serious disputes on questions of fact which cannot be properly decided in writ jurisdiction. If it was to do so, it would enter into a field of investigation which is more appropriate for a Tribunal rather than for a Court exercising the exceptional power of issuing writs. The Court has therefore avoided interfering with election disputes, although it cannot be said that the writ jurisdiction of the Court cannot at all be attracted in such cases. For instance, where actions are characterized as being done in bad faith, the exercise of public power may be called in questions in writ proceedings." There is no cavil with the proposition that "so far as the dispute of pre-election qualifications or disqualifications of members is concerned, it could only be determined in accordance with the Election Law in force and the High Court in its jurisdiction under the Article 199 of the Constitution is not competent to determine such disputes." A M. Khan Leghari v. Government of Pakistan (PLD 1967 Lah. 227). It hardly needs any emphasis that "all steps in conduct of election could be challenged only by way of election petition by a rival candidate. The blanket cover is, therefore provided to all litigable challenges in respect of every kind of order passed in the course of election process because the provisions of Article 199 were subject to Constitution including Article 225 and exercise of power under Article 199 could not be placed on higher footing than that contained under Article 225 of the Constitution. As filing of nomination form containing false information, would be a step in the conduct of election arid could only be assailed through election petition, a statutory remedy provided under the law with mandate under Article 225 of the Constitution." Fazl-I-Mehmood v. Ch. Muhammad Hussain Chatha (PLD 1964 Lah.74).

10. We are not impressed by the prime contention of Mr. Ayatullah Dr. Imran Liaquat Hussain that the High Court has failed to exercise its jurisdiction as conferred upon it under Article 199 of the Constitution and thus failed to perform its legal duties for the reasons that "High II Court, under Article 199 has no power to interfere with the process of election at an intermediate stage or question the correctness of the decision of the Election Tribunal on any ground whatsoever upon an election petition filed to question the validity of the election. Exercise of power under Art. 199 cannot be placed on any higher footing than that emanating from Art 225 Article 225 is expressed in the negative form to give exclusive jurisdiction to the Tribunals appointed by the Election Commission and thus to exclude or oust the jurisdiction of all Courts in regard to election matters and to prescribe only one mode of challenge. The Election Tribunals are final judges of facts as well as of law, including the interpretation of law and, it would be incorrect to say that their determinations are "without lawful authority" because the High Court does not agree with them. All questions of law which have to be decided for determination of the election disputes must be decided and finally decided only by the authorities mentioned in Article

225. The Article is intended to protect the determinations of the authorities designated in it from being' subjected to judicial review by the High Court under Article 199 on grounds such as an error of law apparent on the face of the record. Legislature expects every statutory authority to act within the limits .of the law and if any such authority steps out of these limits or refuses to function as the law requires him to function and he proceeds to make an order not within the limits of the law; such order can be declared under Art. 199 as without lawful authority and to be of no legal effect. Therefore, orders passed even by election authorities which are outside the limits of the law, are not, immune from challenge, and correction, by the High Court under Article

199. Undoubtedly, in doing so the High Court will exercise its jurisdiction with extreme circumspection, in full consciousness of the normal rule that it should not interfere with the process of elections at an intermediate stage, but leave it to the Tribunal to correct all errors ,committed after the election is over. Where a finding of fact given by the Election Tribunal is based on, no evidence at all, it is not immune from review of High Court." Mian Ghulam Dastagir Bari, v. Rai Salahuddin (PLD 1987 Lah. 39) Mian Jamal Shah v. The Member Election Commission (PLD 1996 SC 1), Walayat Khan v. Ghulam Muhammad (1968 SCMR 109).

11. In sequel to above mentioned discussion, we are of the considered opinion that all the grievances agitated before this Court could have been conveniently brought to the notice of concerned forums available in the hierarchy of election laws by the petitioner. The judgment impugned being well based does not warrant interference. The petition being meritless is dismissed and leave refused. M.B.A./A-100/S Petition dismissed.