' SYED YAHYA ZAHID GILLANI J . ---Constitutional jurisdiction of this Court under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973 has been invoked by petitioner Hafiz Hamad Ullah Farooq, who has been heard in person on pre-admission notice. Mr. Muhammad Tahir, special attorney of respondent No,1, has also been heard in person.
2. The petitioner submitted that he is an enlisted voter in Constituency PF-64 D.I. Khan and a contesting candidate also. Respondent No,1 is one of his opponent contesting candidates, in the same constituency, who is not qualified to be elected because he does not possess required qualification. His Sanad has been issued by a Deni Madrassa, which is not recognized. As such he is debarred from contesting the forthcoming general elections, as held in a recent decision of a Division Bench of Honourable Peshawar High Court in Writ Petition No,2061 of 2007 at the principal seat of Peshawar. He next argued that his opponent, respondent No,1, being not qualified to be elected, if continues to contest the forthcoming general elections, it would be wastage of human resources as well as public Ex-chequer. Therefore, a writ may be issued directing the concerned authorities to stop him from contesting the election, as he is not qualified to be elected.
3. Mr. Muhammad Tahir, special attorney of respondent No,1, argued that the petitioner has failed to raise objections at the time of scrutiny of the nomination papers of respondent No,1, by the Returning Officer, and thereafter, by filing a petition before the Election Tribunal.
4. He also added that by now only three days are left to the general elections and all the exercise of contacting and convincing the voters has already been accomplished. The election campaign is going to end after a couple of days. Filing of this writ petition at this belated stage is sheerly a mala fide and to deprive a considerable large portion of masses to vote for a candidate of their choice.
5. The petitioner explained .That delay in filing this writ petition was because the defect in the Sanad of respondent No,1 was not in his knowledge in the days before filing the writ petition.
6. We have contemplated over the pro and contra arguments delivered before us and find it to be a lame excuse that the Sanad of respondent No,1 was not in the knowledge of petitioner, because the petitioner himself is a contesting candidate and he was supposed to be aware of the documents filed by his rivals along with the nomination papers.
7. We also take serious notice of the fact that the petitioner did not raise any objection on the nomination paper of respondent No,1 at the time of scrutiny by the Returning Officer. He also failed to file a petition before the Tribunal specially constituted for the hearing of objection petitions against acceptance and rejection of the nomination papers.
8. We agree that very short time is left for the election campaign and the whole exercise of campaign has already taken place involving all kinds of expenditures and human efforts. So much so, that the ballot papers have already been printed and delivered to District Returning Officer, including the name of respondent No,1 and his symbol. Even we expect that the ballot papers, by now, would have been sealed in the polling bags, to be sent to polling stations. It would thus he highly inappropriate at this belated stage to exercise constitutional powers and stop respondent No,1 from taking part in general elections as it would also amount to deprive his voters to exercise franchise in favour of a candidate of their choice, when the petitioner would still in future have a forum in the shape of Election Tribunal to be constituted after the elections for hearing his grievances and providing adequate remedy. Such remedial forum being available to him in near future, his alleged right to challenge the Sanad of respondent No,1 could still be scrutinized in future, if he so desires.
10. Exercise of constitutional jurisdiction under Article 199 of the Islamic Republic of Pakistan, 1973, in the circumstances discussed above is not justified. In this respect we rely on the case "Election Commission of Pakistan v. Javed Hashmi and others" reported in PLD 1989-SC at page-396
11. These are our reasons, for which we have announced dismissal of this writ petition in limine on 14-2-2008.