' Mian Ghulam Yaseen (petitioner No,1) and Malik Sana Ullah (petitioner No,2), through the present constitutional petition, have challenged orders, dated 21-7-2006 and 13-10-2006, both passed by the learned Member, Election Commission of Pakistan, Punjab (Mr. Justice Nasim Sikandar).
2. Facts culminating to the present constitutional petition are that the petitioners jointly contested the Local Bodies Election for the seats of Nazim and Naib Nazim, respectively, in panel, from U.C.
No,32 (Urban) Chowk Azam, Layyah, they were declared returned candidates from the said Union Council and notification, qua their success, was issued on 20-8-2005. Seemingly aggrieved from the said results and notification, Muhammad Imtiaz (respondent No,3) instituted a constitutional petition (Writ Petition No,5215 of 2005) before this Court, however, it was disposed of on 30-8-2005, with the observation that the petitioner may approach the Election Commission of Pakistan in terms of section 152(2) of Punjab Local Government Ordinance, 2001 (Ordinance). Respondent No,3, on 7-9-2005, filed the application before the learned Chief Election Commissioner, pleading therein that petitioner No,2 was not qualified to contest the election, because he only possess the "Sand of Dini Madrasa", which is not equivalent to the matriculation certificate. In the meantime, Election Tribunals were constituted and respondents Nos.3 and 4, on 14-9-2005, also instituted the election petition on the principal ground that petitioner No,2 is not a matriculate, as such, he was disqualified to contest the election on the basis of "Dani Sanad". The petitioners contested the said election petition. Through the written statement and they also filed a miscellaneous application for summary rejection of the election petition. During the proceedings the Election Tribunal, vide order, dated 17-6-2006, directed the Returning Officer to ensure safe production of record for the purposes of recounting, which order was challenged by the petitioner through the constitutional petition (Writ Petition No,3279 of 2006). This Court issued pre-admission notices to the respondents, and also suspended the operation of order, dated 17-6-2006, vide its order dated 27-6-2006.
' During the pendency of the said constitutional petition, the learned respondent No,2 disposed of aforestated application, filed by respondent No,3, cancelled notification of petitioner No,2 and ordered for holding fresh election for the seat vacated by him, vide order, dated 21-7-2006.
Respondent No,3, then, filed review petition before the learned respondent No,2, claiming that petitioner No,1 be also de-seated for the same reasons, as they jointly contested the election in one panel. Simultaneously, petitioner No,2 filed the application, under section 151, C.P.C., seeking rehearing of the matter as according to him order, dated 21-7-2006 was passed at his back. The learned Member, Election Commission of Pakistan dismissed the application of petitioner No,2, while the review petition, filed by respondent No,3, was partly allowed and directions were issued for cancellation of notification of both `Nazim' as well as `Naib Nazim', vide composite order, dated 13-10-2006, hence the present petition.
3. Learned counsel for the petitioners has contended that when the learned respondent No,2 decided the matter, admittedly, constitutional petition (Writ Petition No,3279 of 2006) was pending and during its pendency no parallel proceedings could be undertaken on the same subject-matter by the learned respondent No,2. He has further submitted that the learned respondent No,2, while rendering order, dated 21-7-2006, consciously omitted to pass any order against petitioner No,l. He has relied upon the case reported as Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94. He has next Contended that no power of review, either under the Constitution or Ordinance, vests with the learned Member, Election Commission, as under the law, power of review is the creature of statute and can only be exercised when it is specifically conferred upon judicial forum. Conversely, Muhammad Arif Alvi, Advocate, representing respondents Nos.3 and 4, while refuting the aforesaid contentions, has supported the impugned orders and states that since petitioner No,2 was de- seated, therefore, his panel member (petitioner No,1) stood automatically disqualified .By operation of law. He has added that the learned Member did not review his earlier order but has clarified/elaborated his earlier order.
4. We have heard the learned counsel and examined the available record . Section 152(2) of the Ordinance, provides that whoever is found by the Chief Election Commissioner to have contravened the provisions of subsection (1) shall stand disqualified from being a candidate for election and whoever having been elected as a member of a Local Government shall cease forthwith to be an elected member or to hold the office. It appears appropriate to reproduce section 152(2) of the Ordinance, which reads as follows:-- "section 152(1) .......................................................................
(2) Whoever;
(a) is found by the Chief Election Commissioner to have contravened the provisions of subsection
(1) shall stand disqualified from being a candidate for election to any office of the Local Government for a period of four years; or
(b) having been elected as a member of a Local Government or is a holder of an elective office of the Local Government is found by the Chief Election Commissioner to have contravened the provisions of subsection (1) shall cease forthwith to be an elected member or to hold the office of such member and stand disqualified from being a candidate for election to a Local Government for a period of four years.
5. It is evident from bare perusal of the afore mentioned provisions of law that the learned Chief Election Commissioner is empowered to disqualify a person who is found guilty of violating and contravening the provision of section 152(1) of the Ordinance. To our mind, the powers of the learned Chief Election Commissioner, under the said provisions of law, appear to be independent of any other remedy or law provided for disqualification of any person. Mere pendency of election petition or constitutional petition does not debar the learned Chief Election Commissioner to exercise his powers conferred by the aforenoted provisions of law, unless valid injunctive order is in field and operative. It is not the case of the petitioner that this Court in the constitutional petition (Writ Petition No,3279 of 2006) issued any prohibitory order restraining the Chief Election Commissioner/Commission from proceeding with the application filed by respondent No,3. In view of the pendency of constitutional petition, it cannot be argued that the Chief Election Commissioner/Commission lacks jurisdiction to exercise powers conferred under the law. It is settled law that merely by filing the appeal against a decree or order would not operate as stay of proceedings unless the Appellate Court specifically stays the proceedings or grants injunction.
' Even otherwise according to own showings of the petitioners, they in the constitutional petition, have challenged order dated 17-6-2006, whereby the Election Tribunal directed the Returning Officer to produce the record for the purpose of recounting. The controversy raised and decided by the Member Election Commission was not the subject-matter of petitioners' constitutional petition, as it was directed against order dated 17-6-2006. In view whereof, it cannot be argued that either the subject-matter of the constitutional petition and the application before the learned Member, Election Commission were the same or that the parallel proceedings were undertaken by the Member of Election,Commission. We feel that those were not parallel proceedings, as IC contended by the learned counsel, and were independent proceedings before the two different forums provided under the law. Contention of the learned counsel is, thus, repelled.
6. Now coming to the next contention of the learned counsel. Muhammad Imtiaz filed an application pleading therein that Malik Sana Ullah (petitioner No,2), at the time of filing of the nomination papers relied upon the "Sanad of Dani Madarsa", which according to him, is equivalent to the matriculation certificate. Respondent No,3 did not level any allegations against petitioner No,1 in his application and the disqualification of petitioner No,1 was not specifically pleaded by the said respondent, as there was none. In view whereof, the learned Member did not deem fit to render findings, in order, dated 21-7-2006, qua disqualification of petitioner No,l. Moreso, when, admittedly, under the law both panel members swim and sink together. Proviso to rule " 14(3) of the Punjab Local Government Elections Rules, 2005 (Rules) provides that in case of rejection of the nominations of either a "Nazim" and a "Naib Nazim" as joint candidates, the nomination as a whole for both the joint candidates shall stand rejected. Obvious result of the disqualification of petitioner No,2, under the law, is that the nomination of petitioner No,1 would automatically stands rejected and he is also disqualified, of course, without any fault on his part. The petitioners, D who opted to contest the elections in panel as "Nazim" and "Naib Nazim" for the same Union Council, under the law, cannot stand or fall singly. The legal consequence and obvious result of the disqualification and cancellation of notification of Malik Sana Ullah is that his co-panel member i,e, the petitioner No,1 shall also cease to hold office forthwith. In view whereof, the contention of the learned counsel, that it was E conscious omission of the learned Member not to pass any order against I petitioner No, I, cannot be accepted.
7. Now adverting to the last contention of the learned counsel regarding exercise of review jurisdiction. There cannot be any cavil with the proposition that power of review is creature of statute and can only be exercised, when it is conferred upon a Court or a Tribunal. The right of review is a substantive right and not a matter of procedure and no Court/Tribunal possesses the inherent powers to review its decree or order unless such a power is expressly granted by the statute. If any case-law is needed, judgments reported as Riaz Hussain and others v. Board of Revenue and others 1991 SCM R 2307; S.A. Rizvi v. Pakistan Atomic Energy Commission and another 1986 SCM R 965; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 and Muhammad Yousaf and another v. The Government of Pakistan through General Manager, Pak. Railway, Lahore and 5 others 1992 SCM R 1748 can be referred.
8. Now coming to the present case in the above backdrop, the question arises as to whether the Chief Election Commissioner/ Commission has the powers to review its order. We have examined all the relevant laws with the assistance of both the learned counsel and came to the conclusion that neither the Constitution of Islamic Republic of Pakistan, 1973 nor Punjab Local Government Ordinance, 2001 nor Punjab Local Government Elections Rules, 2005 empowers the Chief Election Commissioner/ Member Election Commission to review its order. The learned counsel for the contesting respondent has also agreed to this legal proposition, however, added that order, dated 21-7-2006 was not reviewed through order dated 13-10-2006, rather it was clarified.
' Having said that, now the next question is as to whether by passing order, dated 13-10-2006, the learned Member has, in fact, reviewed his order or clarified his earlier order. Although the application for modification/correction/review of order, dated 21-7-2006 was filed by Muhammad Imtiaz, yet we feel that the same was not decided as a review petition. The learned Member in view of the express provision of law and settled law on the subject has held "that Malik Sanaullah Naib Nazim having been found disqualified by way of my order, dated 21-7-2006 his panel member namely Ghulam Yasin Nazim also stood disqualified". The impugned order, dated 13-10-2006 was not passed in exercise of review jurisdiction, rather through its order, dated 21-7-2006 was clarified and elaborated. The directions contained in order dated 13-10-2006 of the learned Member are in consonance with the express provision of law.
9. Assuming the learned Member has reviewed his order dated 21-7-2006, even then the latest order, dated 31-10-2006 cannot be set aside on two grounds, firstly it would be against the express provision of law and secondly it would perpetuate injustice. It has been held in the case reported as Messrs Qureshi Salt and Spices Industries, Khushab and another v. Muslim Commercial Bank Limited, Karachi through President and 3 others 1999 SCM R 2353 that jurisdiction is vested in the Courts to dispense justice and not to perpetuate injustice. It would be appropriate to reproduce portions of paras.10 and 12 of the said judgment, which reads as under:-- "(10) We would have allowed the above appeal on the above two grounds, but we find that it will cause miscarriage of justice instead of advancing the cause of justice. The jurisdiction is vested in the Courts to dispense justice and not to perpetuate injustice...."
(11) If we were to set aside the above order of the learned Judge in Chamber on the above two grounds urged by the learned counsel for the appellant, in our view, it would perpetuate injustice...."
In this case, even if para.9 of the order, dated 13-10-2006 is taken off the file, it would not change the complexion of the matter, as law will take its own course and with the disqualification of panel member (Sana Ullah Malik) the petitioner No,1 (Mian Ghulam Yaseen) would automatically stand disqualified and cease to hold the post of "Nazim".
10. In the above perspective, we have examined the impugned orders and find that the same do not suffer from any jurisdictional defect and those were passed not only in accordance with the record of the case but the same were also in consonance with the law on the subject, thus, the same are maintained.
11. In the above perspective, the present petition stands dismissed with no order as to costs.