' MUHAMMAD NAWAZ ABBASI, J.---This petition for leave to appeal under Article 185 (3) of the Constitution has been directed against the judgment dated 12-3-2008 passed by a Division Bench of Peshawar High Court, Abbottabad bench, in a Constitutional petition filed by Sardar Shah Jehan Yousaf, respondent herein, for re-poll at Polling Station Nos.244 Sathan Gali and 219 (Chingari), and Constituency NA-20, Mansehra-I was dismissed.
2. The brief facts giving rise to this petition are that petitioner and respondent contested election for the seat of National Assembly from Constituency NA-20, Mansehra-I and in consequence to the consolidation of result by the Returning Officer, the petitioner was declared successful with lead of 53 votes. Subsequent to the announcement of result respondent filed an un-dated application before Election Commission of Pakistan, alleging that due to the incident which took place at Polling Station No,244, Sathan Gali, in which as a result of firing one person lost his life and another was injured and due to abnormal situation at the polling station, polling was stopped. The Election Commission of Pakistan called report from District Returning Officer and having found no substance in the application dismissed the same vide order dated 23-2-2008, as under:- "This application has been moved by Sardar Jehan Yousaf, a contesting candidate for Constituency No,NA-20 Mansehra. In the application he has alleged that on the polling day i,e, 18- 2-2008 at 12.30 pm an incident took place at polling station Sathan Gali in which one man lost his life. According to I, due to the incident only a small number of voters could use their right of franchise while the total number of voters assigned to the said polling station was 2310. Stately the applicant expected bagging majority of votes from said polling station. On the basis of these submissions, he has made the following prayer:--- "It is therefore most humbly prayed that on accept me of this application an order be graciously passed for re-polling of the remaining voters empowered to case their vote as to use their fundamental rights. And it is further prayed that the Returning Officer be ordered to stop the consolidation proceedings u/s 39 of Act LXXXV of 1976 as to render the Erection fair and transparent."
2. On receipt of application, its contents were transmitted to the District Returning Officer, as well as Returning Officer for their comments/reports. Both of them have submitted their comments/reports through the Provincial Election Commissioner. According to the Returning Officer, Additional District & Sessions Judge, Mansehra, the incident mentioned in the petition did take place. However, it did not happen in the polling station. Also that when he came to know of the incident at about 15.00 hours he telephonically contacted the Presiding officer who reported the occurrence as under:-- "That the firing and brawl took place in which one life was claimed and others injured. According to him the alleged occurrence took place outside the limits of polling station in which polling was stopped for short while but it was resumed later."
3. The Returning Officer has further stated that applicant and his election agents invariably participated in the preparation and consolidation of results including counting of excluded votes and postal ballots from 20-2-2008 to 22-2-2008.
4. The District Returning Officer has confirmed the report made by the Returning 'Officer. He has pointed out that out of 2310 registered votes as many as 803 were cast. He has also mentioned that the result has since been consolidated and sent to the Election Commission of Pakistan.
5. We have considered the submission made in the petition in the light to the reports submitted by the District Returning Officer and Returning Officer. It is our considered opinion that no case for interference for the petitioner is made out. Following being the reasons:
(i) There is nothing on record to support the assertion made in the application that a large number of voters lost their right of franchise and did not participate in the poll on account of the said incident. The number of case votes is comparable not only with overall average turn out but also other polling stations in the constituency.
(ii) As noted above the total votes at the polling station numbered 2310 out of which 803 were cast.
The polling agents of the applicant participated in the counting of votes as also in the consolidation of the result without any complaint of the kind now being made by him.
(iii) The application in hand was received in the office of the Commission on February 21, 2008 at 12-32 p.m. Neither the applicant nor his polling agent or for that matter none of the polling staff including the Presiding Officer ever made any complaint or reported stoppage of poll throughout the day. As reported by the Returning Officer and District Returning Officer, the poll was stopped for a while but then continued for the rest of the day as the incident took place between 12 and 1 p.m.
(iv) His claim that he had already made an application for re-polling at the said polling station on 19-2-2008 is not supported by any material on record.
6. Accordingly, as said above, no case for grant of the request/prayer is made out. The application is rejected."
3. The respondent assailed the order passed by Election Commission of Pakistan before Islamabad High Court in a constitutional petition, wherein in addition to Polling Station No,244, he also sought re-poll at Polling Station No,219, (Chingari) on the ground that women polling staff was not deputed at the polling station as a result of which women voters could not exercise their right of franchise.
Islamabad High Court by consent of the parties, allowed the writ petition and remanded the case to the Election Commission of Pakistan for fresh decision in respect of complaint in accordance with law regarding Polling Station No,244, (Sathan Gali) and No,219 (Chingari) of Constituency NA- 20, Mansehra-I, vide order dated 28-2-2008 which is reproduced hereunder:-- "Respondents Nos.1 & 2 were directed to file written comments vide our order dated 27-2-2008 but same have not been filed so far. However, Nahida Mehboob Elahi, Deputy Attorney General of Pakistan appeared on behalf of respondents Nos.1 to 3. On our question she informed that no application of the kind, which is placed as annexure-G at page 22 in the writ petition, has been received in the Election Commission of Pakistan. She states that the Presiding Officer of Polling Station No,219 (Chingari) has reported to the Election Commission that the female polling could not be started due to non-availability of female polling staff. It is argued by the learned counsel for the petitioner that apart from this polling station, at polling station No,244 (Sathan Gali) an incident occurred at 12.30 p.m. In which one person lost his life and some other received fire arm injuries. It is contended that due to the incident the voters of that polling station also did not cast their votes.
When Hafiz S.A. Rehman Advocate was confronted with the order of the Election Commission dated 23-2-2008 whereby this aspect of the matter was examined by the Election Commission of Pakistan and it was found that no case for interference by the Election Commission was made out, the learned counsel stated that the order dated 23-2-2008 was passed without hearing the parties. Mr.Qasim Ali Chohan Advocate for the respondent is also of the opinion that the case may be remanded to the Election Commission to examine as to whether the case u/s 103-AA of the Representation of the People Act, 1976, for interference of the Election Commission is made out.
With the consent of learned counsel for the petitioner, the learned Deputy Attorney General of Pakistan and learned counsel for respondent No,6, we remand the case to the Election Commission of Pakistan. The Election Commission of Pakistan will examine the case and decide as to whether the case is made out under section 103-AA of the Act before issuance of the notification of the returned candidate taking into the consideration the reports of the Presiding Officer of the Polling Stations Nos.219 and 244. The writ petition is disposed of in above terms. It is expected that the Election Commission of Pakistan would decide the matter within a week."
4. The Election Commission of Pakistan in post-remand proceedings having examined the matter in detail in the light of reports called from Presiding Officer of Polling Stations Nos.219 and 244, vide order dated 4-3-2008 allowed the application filed by respondent No,4 and in exercise of powers under section 103-AA of Representation of the People Act, 1976 (hereinafter called Act 1976) directed for re-poll at Polling Stations Nos.219 and 244 of Constituency NA-20, Mansehra -I. The order of Election Commission is read as under:-- "Petitioner, Sardar Shah Jehan Yousaf, a contesting candidate from NA-20 Mansehra-I, through the instant petition under section 103-AA of the Representation of the People Act, 1976, has assailed the result of Polling Station No,244 (Sathan Gali) and prayed that the same be declared void and re- poll be ordered and further that as the poll at female polling station No,219 (Chingari) for want of polling station was not held, fresh poll be ,,tilered thereat.
2. The petitioner contested election for NA-20 Mansehra-I and initially, in the unofficial count, as declared returned candidate. However, during consolidation of results, the scenario changed and he lost the election by a margin of 53 votes. He filed a petition under section 103-AA ibid, wherein he alleged that on the day of poll i,e, 18-2-2008 at 12.30 pm, an incident took place at PS-244 (Sathan Gali), in which one man lost his life on the spot, another sustained serious injuries and subsequently died in the hospital on 22-2-2008 and formal FIR No,43 was registered at Police Station Battal, Mansehra that due to the incident the polling was stopped and remained closed till closing hours and none of the registered voters returned to poll their votes and that only 803 voters out of the total 2310 voters could poll their votes. He prayed for re-poll in the said polling station and stay of the consolidation of result initiated by the Returning Officer. The Commission, in the light of the reports/comments of District Returning Officer and Returning Officer dismissed the petition on 29- 2-2008. He assailed the order of the Commission before the Islamabad High Court, Islamabad in writ petition No,31 titled "Sardar Shah Jehan Yousaf v. Chief Election Commissioner" and further prayed that due to non-availability of female polling staff the poll at female Polling Station No,219 (Chingari) was not held, therefore, fresh poll may be ordered thereat. The Hon'ble High Court, with consent of the parties, accepted the petition and remanded the case to the Commission with the following observations: ' we remand the case to the Election Commission of Pakistan. The Election Commission of Pakistan will examine the case and decide as to whether the case is made out under section 103-AA of the Act before issuance of the notification of the returned candidate taking into the consideration the reports of the Presiding Officer of the Polling Stations Nos.219 and 244 It is expected that the Election Commission of Pakistan would decide the matter within a week."
3. This Commission, in the light of the above observations, issued notices to the parties as well as to the District Returning Officer, Returning Officer, Presiding Officers of the Polling Stations Nos.219 and 244 and directed them to submit their reports on or before 4-3-2008.
4. We have heard the learned counsel for the parties at length and have gone through the documents placed before us.
5. The available record reveals that the petitioner as well as the voters filed applications to the Commission and conveyed the information that, after the above incident, no voter had taken part in the poll at polling station No,244. Even the polling agents of the parties left the polling station due to fear and to save their lives with the result that the polling was suspended and remained closed till the closing hours. Muhammad Shoukat, Presiding Officer of the Polling Station No,244 Sathan Gali sworn an affidavit on 23-2-2008 and, while affirming the incident had stated that all the people/voters present in the polling station, after the incident of murder, fled away and the polling was stopped and, therefore, no voter again approached the polling station for casting vote. The Returning Officer, with his comments, has filed the report of the above Presiding Officer made on 3- 3-2008, wherein he has stated that the incident of murder took place outside the polling station, that after some time heavy police contingent reached the spot and controlled the situation; thereafter, the polling resumed uninterrupted till the close of the polling hours, where-after the counting was made in the presence of the elders of the locality, final results were prepared and submitted to the Returning Officer at 11.00 pm. We have noted that the Presiding Officer, in his above report, has not disclosed that he had earlier sworn an affidavit on. 23-2-2008. The affidavit being earlier in time and having been submitted soon after the day of poll, his subsequent report to the Presiding Officer, cannot be accepted to be correct. Here, it needs to be mentioned that, on 21- 2-2008, a voter of polling station No,244, namely, Muhammad Ismail son of Behram, identity card No,13503-06656919, approached this Commission and stated in writing that a brawl, at the above polling station, had taken place at 12-30 pm resulting in death of a person and injuries to many others. He further stated that, after the incident no polling had taken place and requested for a direction for re-poll at the said polling station so that the people were not disenfranchised.
6. As far Polling Station No,219 Chingari (Combined), Muhammad Shabbir, Presiding Officer, has confirmed that on the day of poll, although a large number of female voters were gathered at the polling station since morning, but the female polling staff could not reach the polling station due to its situation in remote and far flung area and hundreds of female voters could not poll their votes and were deprived of their right of franchise; that he tried to approach the Returning Officer but he could not contact him; he mentioned this fact on the reverse of two Forms XIV that due to non- availability of female polling staff, women poll could not be held at this polling station". He on the very next day, i,e, 19-2-2008, made an application to the Returning Officer and alleged that the female polling started in time and defeated candidate, instead of producing female voters in person, handed over to him some identity Cards of the female voters and asked to issue ballot papers, which he declined and as a result he was harassed and detained till midnight. It is pertinent to mention that on 19-2-2006, the defeated candidate was (sic) prepared on 23-2-2008.
This statement is again contradictory to his first statement and, therefore, does not inspire confidence. As observed in the case of Presiding Officer of polling station No,244, the subsequent statement of this officer appears to have been managed and clearly an afterthought.
7. Keeping in view the observation of the Hon'ble High Court and the facts and circumstances stated above, we are constrained to hold that the statements of the Presiding Officer of Polling Stations Nos.219 and 244, which were made immediately, either on the day of poll or soon thereafter, can be believed and relied upon. Prima facie, the petitioner has been successful to make out a case under section 103-AA ibid and has shown us facts apparent on the face of record constituting violation of Constitutional rights of the voters to vote in the election and the breach of law and rules of the election for providing polling staff at the installed polling station to facilitate the voters to exercise their right of franchise, therefore, we are inclined to interfere in exercise of our summary jurisdiction and to declare the poll held at polling station No,244 void due to the stoppage of poll on account of above incident, whether occurred outside the polling station or its immediate vicinity but affected the polling process. Also since admittedly no polling was held at female polling booth of polling station No,219 (combined) a fact which was immediately reported by the Presiding Officer, therefore, was consider it appropriate to direct that polling be arranged at the above polling booth to enable the female voters to exercise their right of franchise.
8. Consequently, this petition is accepted, the poll held on 18-2-2008 at PS No,244 (Sathan Gali) is declared as void and the district Returning Officer is directed to hold the re-poll at the polling station on 13-3-2008. It is further directed that female polling staff at PS-No,219 (Chingari) be re- appointed and poll be held on the same date at female polling booth. The polling at both the polling stations shall be held under the supervision of the police and FC so that no untoward occurrence shall occur again. The parties be informed accordingly."
5. The voters in Kaghan Area also moved a similar application to the Election Commission of Pakistan on 29-2-2008 containing the remarks of NHA Engineers, that due to the land slide, roads in the area were blocked. The complaint of the voters was that because of land slide and block of road, they could not poll their votes. The Election Commission of Pakistan did not take any action on this application whereas on the other hand, on the application under section 103AA of Act 1976 moved by opposite candidate of the petitioner passed order of re-poll at the two polling stations referred to above. The petitioner being aggrieved of the order passed by Election Commission of Pakistan, filed a Constitutional petition in Peshawar High Court, Abbottabad Bench and narrating the facts in detail, pleaded that female voters at polling station No,116 (Seri Mansoor) have been able to poll their votes and bogus votes were polled at this Polling Station but the Election Commission paid no attention either to the complaint of the petitioner or the voters. The petitioner sought direction in the writ petition for re-election in the entire constituency, and to issue direction to the Election Commission to also consider the application filed by the petitioner.
6. The writ petition was dismissed by the High Court vide judgment dated 14-3-2008 with the observation that Election Commission of Pakistan in exercise of powers under section 103-AA of Act 1976 has rightly directed for re-poll at Polling Stations Nos.219 and 244, in Constituency NA-20, Mansehra-I which may not call interference by the High Court.
7. This petition and CP No, 369/2008 involving common questions of law have been heard together to consider the following questions of law of public importance formulated in CP No,369/2008.
1. What is the scope of jurisdiction of Election Commission of Pakistan under section 103 read with section 103-AA of the Representation of the People Act, 1976 and the Election Commission of Pakistan after establishment of Election Tribunals in terms of Article 225 of the Constitution becomes focus officio to invoke its jurisdiction under section 103-AA ibid?
2. Whether the Election Tribunals established under Representation of the People Act, 1976 have parallel jurisdiction with Election Commission of Pakistan or the two forums have independent areas of jurisdiction?
3. In the light of law laid down by this Court in "Election Commission of Pakistan v. Javed Hashmi (PLD 1989 SC 396), Ghulam Mustafa Jatoi v. Additional District & Sessions Judge (1994 SCMR 1299), Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan (PLD 2005 SC 520), Abdul Majeed Khan v. District Returning Officer (2006 SCMR 1713)" and subsequent decision, passed in Civil Petition No,1 of 2008 Ch. Muhammad Arif Hussain v. Rao Sikandar Iqbal and others what is the scope of judicial review of the High Court under Article 199 of the Constitution in election matters?
4. Whether the High Court in exercise of powers of judicial review can substitute its opinion with the opinion of the Election Commission of Pakistan or Election Tribunals, as the case may be, on the factual controversy?
8 Apart from the above questions, an additional question relating to the jurisdiction of Islamabad High Court in respect of the order passed by the Election Commission of Pakistan pertaining to the election dispute of the constituency situated beyond its territorial jurisdiction was also raised for consideration in the present petition.
9. Dr. Babar Awan, learned Advocate Supreme Court counsel for the petitioner raising serious objection to the exercise of jurisdiction by the Islamabad High Court in respect of an election matter falling within the territorial jurisdiction of Peshawar High Court (Province of N.-W.F.P.), has contended as follows:
1. The jurisdiction of High Court of Islamabad Capital territory is confined to the Capital City and District Islamabad which cannot be extended beyond the specified area and that the order challenged in the writ petition before the Islamabad High Court was passed by the Election Commission of Pakistan in respect of the election relating to constituency of Province of N.-W.F.P., therefore, the Peshawar High Court has exclusive jurisdiction to take cognizance of the matter. In support thereof, learned counsel has placed reliance on "Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423), Muhammad Miskeen v. Govt. Of Pakistan (PLD 1993 AJK 1); Abdul Rahim v. Home Secretary (PLD 1974 SC 109) and Abdul Ghaffar Lakhani v. Federal Government of Pakistan (PLD 1986 Karachi 525)".
2. That question of jurisdiction can be raised at any stage and an aggrieved person can competently challenge the order of Election Commission of Pakistan in respect of election dispute before the High Court of respective Province and in that Islamabad High Court may not have the jurisdiction to interfere in the cases of the jurisdiction of Provincial High Courts.
3. The Election Commission of Pakistan cannot exercise power beyond the scope of sections 103 and 103-AA of the Act 1976 and also has no power of review, therefore, the subsequent order passed by Election Commission of Pakistan was coram non judice.
10. Learned counsel while drawing our attention to the orders passed by the Election Commission of Pakistan on 23-2-2008 and 5-3-2008, under section 103-AA of the Act 1976, has contended that expressions summary inquiry, satisfaction, and grave illegality used therein would require interpretation with reference to Article 225 of the Constitution read with section 52 of Act 1976. The Election Commission of Pakistan, directed re-poll on two Polling Stations Nos.244 and 219 without verifying the correct factual position so much so the affidavits produced in support thereof, have been relied upon without confrontation whereas on similar complaint moved by the petitioner as well as voters of the area Commission passed no order.
11. Learned counsel with reference to sections 55 and 67 of the Representation of the People Act, 1976, submitted that the present case would squarely fall within the ambit of above provisions relating to the election petition and powers conferred upon the Election Tribunal whereas the petitioner a returned candidate was de-seated by the Election Commission without detailed examination of record or recording the evidence and thereby condemned him unheard.
' Learned counsel next argued that on establishment of the election Tribunal in terms of Article 225 of the Constitution no election to a House or a Provisional Assembly can be called in question except through an election petition and the expression "satisfaction" used in section 103-AA of Act, 1976, would mean forming of opinion regarding factual position which prevented the polling and created abnormal situation but no such opinion based on material evidence was formed by the Election Commission of Pakistan for exercise of powers under section 103-AA of Act, 1976. In support of the arguments, reliance has been placed on Abdul Hafeez Pirzada v. Ghulam Ali Buledi (1991 CLC 2093), Shah Jehan v. Abdul Subhan Khan (1988 CLC 750) and Ghalib Domki v. Election Commission of Pakistan (PLD 2006 Karachi 314).
12. Learned counsel for the petitioner while tracing out facts of the case in the background, has submitted that in the initial count at the polling stations as well as by the Returning Officer, petitioner was winning with lead of 53 votes and respondent for the first time on 21-4-2008, moved an application to the Chief Election Commissioner wherein his complaint was that at Polling Station No,244 at about noon time, a quarrel took place between the voters as a result whereof, firing was made in which one person lost his life in consequence' to which polling for short time, as per report of polling officer, was suspended and thereafter continued till close of poll at 5 p.m. He stated that respondent obtained about 770 votes whereas petitioner secured only 5 votes at this polling station, therefore, the Chief Election Commissioner, after considering the matter in detail in the light of report of District Returning Officer and Returning Officer, dismissed the application with the observation that there was no material on record to show that either polling was closed or in consequence to quarrel taken place outside the polling station, the process of polling was affected.
The order passed by the Election Commission was challenged before the High Court, Islamabad Capital Territory and the Court during the course of arguments by consent of the learned Deputy Attorney General and learned counsel for the private parties, sent the case back to the Election Commission for decision of the application under section 103-AA People Representation Act, 1976, afresh in accordance with law. Subsequently in the writ petition, respondent added a new ground that at women polling station No,219, the female voters could not poll their votes due to disturbance and also sought direction for re-poll at this polling station in addition to polling station No,244 of the constituency.
' The record shows that the Election Commission, vide order dated 5-3-2008 on the basis of affidavit furnished by the voters and the polling staff, directed for re-poll at the above mentioned two polling stations and in consequence to the re-poll petitioner lost the election with the difference of about 1000 votes and official result was subsequently notified accordingly. The order passed by the Election Commission was challenged by the petitioner before the Peshawar High Court and learned Judges in the High Court having upheld the order of Election Commission of Pakistan, dismissed the writ petition.
13. In view of the above factual background, learned counsel submitted that after issuance of the notification of the official result by the Returning Officer, there was no justification for the High Court at Islamabad to interfere in the matter and sent the case back to the Election Commission for decision of the application under section 103-AA of Act, 1976 rather proper course was that the writ petition should have been disposed of with direction to the private respondent to avail the remedy of election petition provided under the law. Learned counsel submitted that same illegality was committed by Peshawar High Court as the petitioner who was the winning candidate, has been de-seated by device of re-poll at two polling stations of the choice of private respondent/returned candidate.
14. Learned counsel questioning the exercise of jurisdiction by Islamabad High Court, contended that this Court was established for capital territory and notwithstanding the fact that the principal seat of Election Commission of Pakistan is at Islamabad, the dispute subject matter of the litigation, pertained to the constituency falling within the territorial jurisdiction of Peshawar High Court and cause of action was also arose within the territorial jurisdiction of said Court, therefore, the order passed by the Election Commission was not challengeable before the Islamabad High Court and that the order passed by the Islamabad High Court in the writ petition, being coram non judice and without jurisdiction had no legal consequence. Learned counsel in support of his argument, has placed reliance on "Mir Ghalib Domki v. Election Commission of Pakistan, Islamabad and 6 others (PLD 2006 Karachi 314), Kanwar Khalid Younis v. Federation of Pakistan & other (PLD 2002 Kar. 209), Yousaf Muneer Sheikh v. Election Commission of Pakistan (2005 CLC 123), Khurshid Mehmood Kasuri v. Returning Officer (1994 CLC 296), Abdul Hafeez Pirzada v. Ghulam Ali Buledi (1991 CLC 2093), Abdul Hamid Khan Achakzai v. Election Commission of Pakistan, Islamabad and 24 others (1989 CLC 1833), Shah Jehan v. Abdul Subhan Khan (1988 CLC 750), Dr. Zahoor Mehdi v. Chief Election Commissioner, Islamabad and others (PLD 2008 SC 22), Muhammad Miskeen v. Govt. Of Pakistan (PLD 1993 AJK 1), Abdul Rahim v. Home Secretary PLD 1974 SC 109 and Abdul Ghaffar Lakhani v.
Federal Government of Pakistan (PLD 1986 Karachi 525).
15. The next argument of the learned counsel was that in a Federation like Pakistan, exercise of jurisdiction by two or more High Courts of federating units concurrent in the same matter, would negate the concept of federalism and submitted that in the Federation of Pakistan in addition to the four Provinces FATA and Northern Areas as well as Islamabad Capital Territory are also included, therefore, in the light of concept of separation of powers, the interference in the function of federating units may destroy the Federalism which is injurious for the integrity of the country. The learned counsel submitted that High Court at Islamabad having no territorial jurisdiction beyond Islamabad Capital Territory, cannot interfere in an election matter relating to the constituency falling in a Provincial Territory notwithstanding the fact that order assailed before the High Court was passed by the Election Commission of Pakistan at Islamabad. Learned counsel summing up his argument concluded with the assertion that in view of the legal position arising out of the facts of the present case, all orders passed and action taken subsequent to the order passed by the Islamabad High Court were without lawful authority and have no legal effect.
16. Learned Attorney General for Pakistan (AG) on the other hand, has submitted that High Court of Islamabad capital territory has been established under President's Order 7 of 2007 and by virtue of P.O. No,5 of 2007, Article 175 of the Constitution was amended and words "and a High Court for the Islamabad Capital Territory" were inserted therein. The jurisdiction of Islamabad High Court was defined in sub-Article (5) of P.O. No,7 of 2007 as under:-- "5. Jurisdiction.-Islamabad High Court shall have, in respect of the Islamabad Capital territory, original, appellate and other jurisdiction, as under the Constitution or the laws in force immediately before the commencement of this Order, is exercisable in respect of the said territory by the Lahore High Court: ' Provided that Islamabad High Court will have original jurisdiction over the suits the amount for value of subject-matter of which is twenty-five hundred thousand rupees or more."
17. Learned Attorney General submitted that no doubt territorial jurisdiction of Islamabad High Court is confined to the extent of area of Islamabad Capital Territory but in view of the law laid down by this Court in Flying Kraft Paper Mills (Pvt.) Ltd. Charsadda v. Central Board of Revenue, Islamabad (1997 SCMR 1874), Islamabad High Court may exercise jurisdiction in all those matters in which order is passed by an authority discharging functions at Islamabad in connection with affairs of Federation and that Election Commission of Pakistan is a constitutional forum which has jurisdiction throughout Pakistan with principal seat at Islamabad, therefore, the order passed by the Commission at Islamabad in respect of a matter relating to any constituency in Pakistan, would be subject to the jurisdiction of Islamabad High Court and may also be challengeable in the High Court of concerned Province. Learned Attorney General argued that unless the jurisdiction of Islamabad High Court is defined in different manner by way of an amendment in law and Constitution, the High Court can competently exercise jurisdiction in respect of all those matters in which notwithstanding the fact that original order passed by an authority or cause of action arose beyond its territorial jurisdiction, if the order assailed before the Court was passed by an authority functioning in connection with affairs of the federation within the territorial jurisdiction of the Court.
18. Learned Attorney General submitted that by virtue of Ordinance No,1 of 1981 High Courts (Establishment) Order (Punjab Amendments) Ordinance, 1981, the Benches of High Courts were created and Rawalpindi Bench of the Lahore High Court was exercising the jurisdiction in Islamabad Capital Territory but in consequence to the Proclamation of Emergency in the country on 3rd November, 2007, Article 270AAA was added in the Constitution through President's Order No,5 of 2007 by virtue of which amendment was made in Article 175 of the Constitution and the words "and a High Court for the Islamabad Capital Territory" was inserted which has been validated by this Court in case of Capt. (R.) Iqbal Tikka Khan's (PLD 2007 SC 6) and now Islamabad Capital Territory has independent High Court which has original, appellate and other jurisdiction under the Constitution and law in the capital territory as was exercisable by the Lahore High Court.
However, learned Attorney General on the basis of constitutional provisions regarding bar of jurisdiction of superior Courts in certain matter of national and public importance, submitted that Courts in such situation must follow the dictate of Constitution and law and with reference to the constitutional provisions regarding bar of jurisdiction of all Courts in respect of proclamation of emergency, submitted that this Court repeatedly said that the Judges of the Superior Courts are not Judges of the emergency and must exercise jurisdiction in such matter with constitutional restraint as it is for the Executive to decide about the imposition of emergency in the country as well as its duration and unless an action of executive is found coram non judice, without jurisdiction or mala fide, the Courts are not supposed to interfere in the affairs of State machinery and executive authorities and similarly, the interference of the Courts in the functions of constitutional authorities may not be justified in law.
19. The constitutional bar of jurisdiction certainly does not permit the courts to dilate upon matter of the nature in which the courts are precluded to exercise jurisdiction, including the proclamation of emergency in the country by virtue of Articles 232 to 235 of the Constitution but notwithstanding the ouster clause, the Superior Courts in exercise of their power of judicial review, may examine the circumstances calling for justification of such action of the executives affecting the fundamental rights of people. The superior courts, in case of proclamation of emergency in the country in consequence to which Constitution is held in abeyance and is made inoperative, can also exercise power of judicial review which is inherent in the Superior Courts to examine the question regarding the existence of circumstances for justification of such extra constitutional action and State necessity.
20. The question as to whether an action taken in deviation to the Constitution, except for the sake of integrity and solidarity of the country and protection of the Constitution itself is justified cannot be answered in affirmative in the normal circumstances and such an action is certainly subject to the judicial review of the superior courts. There may be a situation leading to the imposition of emergency in the country through extra-constitutional measures in which the constitutional machinery of State becomes inoperative but there is no concept of proclamation of emergency while Constitution is operative except in the manner as provided under Articles 232 to 235 of the Constitution and an extra constitutional action by an executive authority while the Constitution is operative, may have no legal and moral justification. The courts in such situation, being custodian of the constitution, must protect the constitution and must not condone extra constitutional action and permit impairing of the constitutional mandate except for the integrity of country or in case of external aggression against the State. There is a difference between the emergency under the Constitution and beyond the scope of constitutional provisions and also has different purposes and consequences therefore, contention of learned Attorney General that the Executive authorities have absolute power and authority to Judge the need of emergency and Court due to the bar contained in the Constitution, have no jurisdiction to interfere in the matter, is not correct interpretation of law.
21. Learned Attorney General with reference to the question relating to the territorial as well as exclusive or concurrent jurisdiction of the Islamabad High Court submitted that the idea of establishing a separate High Court for the Islamabad Capital Territory is not a unique idea rather in all countries in the world, the Capital Territories have separate High Courts and Islamabad High Court, is just a High Court like any other High Court in Pakistan which has no special character and jurisdiction. He giving example of Delhi High Court in India which was established or the Capital Territory, submitted that territorial jurisdiction of Islamabad High Court is defined in the Constitution whereas inherent jurisdiction is included in the general jurisdiction.
22. With reference to the judicial system in United States, it is submitted that Islamabad High Court is not the Federal High Court as the concept of Federal Court is entirely different, the status of which is almost equal to Supreme Court, but there is no system of Branch Registries and Benches of Supreme Court anywhere in the world like Pakistan even Indian Supreme Court functions only at New Delhi. The Islamabad High Court has been established in the capital territory and all functionaries of Federal Government at Islamabad including Election Commission of Pakistan are subject to the jurisdiction of the High Court. The only distinction is that if the original order out of which proceedings are initiated, is passed by an authority functioning beyond the territorial jurisdiction of Islamabad High Court and final order is passed by an authority functioning at Islamabad in such proceedings, the High Court at Islamabad shall have concurrent jurisdiction with the High Court in the jurisdiction of which original order was passed. Learned Attorney General submitted that the territorial jurisdiction and inherent jurisdiction are entirely two different concepts of jurisdiction as inherent jurisdiction is enjoyed by the Court over the nature of lis whereas territorial jurisdiction is in respect of local limits of the Court in which jurisdiction can be exercised. In support thereof, he has referred S.A. Latif v. Nadir Khan (PLD 1968 Lahore 144), Mir Said Muhammad and another v. Mir Chakar and 6 others (PLD 1973 Quetta 35), "Flying Kraft Paper Mills (Pvt.) Ltd. Charsadda v. Central Board of Revenue, Islamabad (1997 SCMR 1874), Federation of Pakistan through Secretary General, Ministry of Defense v. Sqn. Ldr. (R) Mushtaq Ali Tahirkheli and another (PLD 2003 SC 930), Muhammad Sadiq v. Nazar Muhammad and 3 others (1995 SCMR 906), Ch. Ghulam Nabi v. Mirza Javid Iqbal (1994 SCMR 1893), Faqir Muhammad v. Pakistan through Secretary, Ministry of Interior and Kashmir Affairs Division, Islamabad (2000 SCMR 1312), Tikka Muhammad Iqbal Khan v. Pervez Musharraf (PLD 2008 SC 178), Election Commission of India v. Saka Venkata Rao (AIR 1953 SC India 210), K.S. Rashid & Son v. Income Tax Investigating Commission and others (AIR 1954 SC India 207), Lt. Col. Khajoor Singh v. Union of India (AIR 1961 SC India 532), Shriram Jhujhunwala v. The State of Bombay and others (AIR 1962 SC India 670), Hira Lal Patni v. Sri Kali Nath (AIR 1962 SC 199), Collector of Customs v. East India Commercial Co. Ltd. (AIR 1963 SC 1124), Bahrein Petroleum Co. Ltd. v. P.J. Pappu and another (AIR 1966 SC 634), S.A. Latif v. Nadir Khan (PLD 1968 Lahore 144), Mir Said Muhammad and another v. Mir Chakar and 6 others (PLD 1973 Quetta 35), American jurisprudence Volumes 20 & 77 and Corpus Juris Secundum Volume 21. In respect of the question regarding territorial jurisdiction of Islamabad High Court and Provincial High Court in Pakistan, learned Attorney General placing reliance on case law from Pakistan and Indian jurisdiction has made reference to Election Commission of India v. Saka Venkata Rao (AIR 1953 SC 210), in support thereof, and submitted that if two High Courts having concurrent jurisdiction can take cognizance in a matter, the propriety would demand that the High Court which has first invoked jurisdiction in the matter, should proceed accordingly and the other High Court must restrain from exercising jurisdiction in the same matter to avoid the judicial conflict.
23. In respect of next contention regarding the power of Election Commission of Pakistan under section 103-AA of Act 1976, learned Attorney General for Pakistan in addition to the judgment referred above placing reliance on Union of India v. Association for Democratic Reforms and another (AIR 2002 SC 2112) submitted that power of Election Commission of Pakistan is entirely independent to the Election Tribunal and argued that commission in exercise of its power under Articles 218 and 219 read with section 103-AA of Act 1976 can declare an election wholly or partially void in a constituency and High Court in exercise of its power of judicial review, may in exceptional situation interfere in an election matter. The Election Commission may adopt any mode of inquiry and is not bound by the procedure of Tribunal for trial of election petition or any other procedure rather in summary inquiry may proceed on the basis of reports of election authorities and affidavits, therefore, the real test for exercise of powers under section 103-AA of the Act, is the satisfaction of Commission regarding the fair and honest election. He submitted that Election Commission consists of Chief Election Commissioner, a retired Judge of Supreme Court and four Judges of High Courts, therefore, opinion formed by such a constitutional forum on a question of fact must not be substituted by the High Court in writ jurisdiction and in support of the proposition, has placed reliance on Malik Manzoor Hussain v. Election Commission (2004 SCMR 672), Malik Javed Akhtar alias Javed Awan v. Returning Officer and two others (2004 YLR 1459) and Mahmood Khan Achakzai and others v. Election Commission of Pakistan and others (2003 YLR 1413). The learned Attorney General has argued that the rule laid down in Javed Hashmi's case certainly has not been followed strictly in the subsequent cases in view of the principle that Court may not permit to a disqualified person to enter in the house (Parliament) ) and submitted that notwithstanding the bar of jurisdiction of the Courts in certain matter under Constitution, the power of judicial review of superior Courts may not effect.
24. The learned Attorney General commenting upon the scope of section 103-AA of the Representation of the People Act, 1976 and statutory powers of Election Commission of Pakistan in the matter has submitted that Commission in exercise of power of control and superintendence, is responsible for holding fair, just and honest election in accordance with law. The concept is that of fair and transparent election and if the circumstances so indicate that due to violation of any law or rule or an action of any person which might have impaired transparent election, the Commission may, in exercise of its powers hold a summary inquiry and pass an appropriate order.
25. While taking us to the provision of Representation of the People Act, 1976, he submitted that the Returning Officer is bound, to give the contesting candidates and their election agents a notice in writing of the day, time and place fixed for the consolidation of the results, and must consolidate the result of count sent by the Presiding Officer in their presence in the manner as provided therein.
The Returning Officer after compiling the result of count under section 39 (4) of the Act, shall intimate the result of the count to the Election Commission of Pakistan and Commission shall declare the candidate who has got highest votes in the election successful through public notice and thus function of Returning Officer is only to compile the result and intimate Election Commission. The result of a returned candidate who fails to submit return of expenses in terms of subsection (3-A) of section 42 of Act, 1976, shall not be published. The Election Commission under section 103 of the Act, has to ensure that an election is conducted fairly, justly, honestly and in accordance with law. The remedy of election petition can be availed before the Election Tribunal under section 52 of the Act only after publication of result in the official notification whereas Election Commission can exercise jurisdiction under section 103-AA of the Act at any stage within the period referred therein and under Articles 218 and 219 of the Constitution, the Election Commission is charged with the duty of (a) preparing electoral rolls for election to the National Assembly and the Provincial Assemblies, and revising such rolls annually; (b) organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly; and (c) appointment of Election Tribunals. In short, learned Attorney General submitted that under the scheme of law and Constitution, the Commission has to discharge its statutory duties as a forum of exclusive jurisdiction.
26. Hafiz S.A. Rehman, learned Senior Advocate Supreme Court, counsel for Sardar Shah Jehan Yousaf, respondent herein, has contended that the objection regarding territorial jurisdiction of Islamabad High Court has no substance for the reason that neither such an objection was raised before Islamabad High Court nor remand order was challenged before this Court which having been passed by consent of parties, attained finality and has caused no prejudice to either party, therefore, the petitioner cannot be allowed to raise such an objection before this Court at this stage. Learned counsel submitted that no doubt the matter in the present case, relates to Constituency No,NA-20, Mansehra-I of Province of N.-W.F.P. But Election Commission of Pakistan, a controlling authority of election, while discharging functions at Islamabad would be subject to the jurisdiction of Islamabad High Court and at the same time, Peshawar High Court may have concurrent jurisdiction in the matter, therefore, the writ petition filed by respondent before Islamabad High Court was competent.
27. In the light of the nature of proposition, we deem it proper to decide the question of jurisdiction of Islamabad High Court at the first instance. The principle is that question of jurisdiction which is always a fundamental question must be decided at the initial stage of proceedings as it is the right of court to proceed with the litigation and this right must be determined at the first instance. The power of court to adjudicate upon the matter is linked with the territorial jurisdiction otherwise the judgment is treated to have been rendered illegally, without lawful authority due to lack of jurisdiction. The court possesses jurisdiction which is directly or indirectly, expressly or impliedly conferred upon it by the law and the Constitution but jurisdiction of the court vested under the Constitution cannot be abridged or enlarged through an ordinary legislation. The jurisdiction conferred on High Court under Article 199 of the Constitution may be territorial as well as inherent which cannot be construed in a manner to curtail the concept of jurisdiction only to the territorial boundaries. This is settled principle that jurisdiction cannot be conferred by consent or waiver if the court otherwise lacked jurisdiction to adjudicate and render judgment in a matter and at the same time it is also settled law that if the objection relating to the jurisdiction which was required to be taken at initial stage, was not raised at appropriate stage, there may be waiver or estoppel to the question of jurisdiction of the court at a later stage. This Court in Flying Kraft Paper Mills (Pvt) Ltd.
Charsadda v. Central Board of Revenue, Islamabad (1997 SCMR 1874) in which, order was passed by Collector of Customs an Central Excise Peshawar, was under challenge, overruled the objection that Rawalpindi Bench of Lahore High Court was not competent to entertain constitutional petition and exercise the jurisdiction under Article 199 of the Constitution. It was observed that not only the order passed by the Collector of Customs and Central Excise, Peshawar was under challenge but the relief was also claimed against Central Board of Revenue which functions at Islamabad, therefore, High Court at Peshawar and Rawalpindi Bench of Lahore High Court had concurrent jurisdiction. There is no departure to the principle that in the Federal System, Federating Units are independent in their affairs and similarly the public functionaries and authorities as well as Courts or Tribunals of exclusive jurisdiction conferred on them and powers vested in them by law and can exercise such powers and jurisdiction within their respective territory. Islamabad Capital territory is not a Province but has independent status in the Constitution and in Article 175 of the Constitution, the words "Islamabad Capital Territory" have been inserted by virtue of a recent amendment made in the Constitution. The Islamabad High Court has been established with status equal to that of the High Courts of Provinces under (Establishment) Order, 2008 (P.O. No,5 of 2008) wherein its territorial limits have been described as Islamabad Capital Territory, therefore, this Court has territorial as well as inherent jurisdiction in all matters within the area of capital territory (Islamabad District) and the authorities functioning at Islamabad in connection with the affairs of Federation are subject to the jurisdiction of Islamabad High Court. The principal seat of Election Commission of Pakistan is at Islamabad with its Branches at Provincial Headquarters and the function of Election Commission of Pakistan is to manage and regulate the elections of Parliament (National Assembly and Senate), prepare electoral rolls for such elections with all other duties relating to election, therefore, in the light of principle laid down in Flying Kraft Paper Mills (Pvt.) Ltd. Charsadda v. Central Board of Revenue, Islamabad 1997 SCMR 1874, the order passed by Election Commission of Pakistan in respect of constituency situated in a Province can conveniently be challenged before the Islamabad High Court. The expression "discharges function within the territorial jurisdiction" would sufficiently indicate that an order passed by an authority which exercises jurisdiction within the boundaries of Capital Territory, is subject to the jurisdiction of Islamabad High Court. In the present case, Election commission of Pakistan while discharging functions in connection with the affairs of Federation within the territorial jurisdiction of Islamabad High Court passed an order in respect of NA-20, Mansehra-I, a constituency of Province of N.-W.F.P., therefore, the objection relating to the jurisdiction and maintainability of writ petition before the Islamabad High Court, would be of no significance. It may be pointed out that in the light of principle laid down by this Court regarding the exercise of jurisdiction in such situation, the order passed by the Election Commission of Pakistan which functions at Islamabad in respect of the constituency of Province of N.-W.F.P., would be challengeable both before the Islamabad High Court and Peshawar High Court.
This concurrent jurisdiction is, however, subject to the rule of propriety according to which a High Court having jurisdiction in a matter if has exercised such jurisdiction, the other High Court which has also jurisdiction in the matter may restrain from exercising its jurisdiction. In view thereof, in the present case, the propriety demanded that subsequent order passed by Election Commission of Pakistan should have been challenged before the Islamabad High Court and the jurisdiction of Peshawar High Court should have not been invoked and said High Court also should not, without determining the question of propriety exercise the jurisdiction. Be that as it may, initially the respondent invoked the jurisdiction of Islamabad High Court against the order of Election Commission of Pakistan and subsequently, the order passed by Election Commission of Pakistan in post remand proceedings was challenged by the petitioner before the Peshawar High Court and question of jurisdiction was neither raised before Islamabad High Court nor before Peshawar High Court and since both the Courts have concurrent jurisdiction, therefore, the orders of Islamabad High Court as well as Peshawar High Court have been passed in exercise of lawful authority and objection in this behalf may have no significance. This Court in Sandalbar Enterprises (Pvt.) Ltd. v.
Central Board of Revenue (PLD 1997 SC 334), held as under:-- "The appellant-company preferred an appeal under section 76 of the Copyright Ordinance before the Copyright Board, Karachi, which was heard by the three Members of the Board at Lahore at the request of the parties, but the order was announced at Karachi. The appellant company, therefore, challenged the said order of the Copyright Board in a writ petition before the Lahore High Court, but the same was dismissed on the ground that the Lahore High Court had no jurisdiction to entertain the writ petition because the office of the Registrar or the Copyright Board at located in Karachi and so also the record of the appellant company's case. The matter came up for hearing before this Court with the leave of this Court in the form of an appeal. The same was allowed for the following reasons:-- ' The rules laid down in the said case would, we think, be applicable also in the circumstances of this case. The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territory the order would affect such a person, jurisdiction to hear the case.
' The learned Deputy Attorney General, Mr. Munir A Sheikh, who appeared on behalf of the respondent-Copy right Board, supported this interpretation of the Constitution provision in question and submitted that the writ petition filed by the appellant before the Lahore High Court should not have been dismissed for lack of jurisdiction by the said High Court, as it also had jurisdiction to entertain it, concurrently with the Sindh High Court.
' We agree and are of the opinion that both the Lahore High Court as well as the Sindh High Court had concurrent jurisdiction in the matter and both the Courts could have entertained a writ petition against the impugned orders in the circumstances of this case. We, therefore, hold that the Lahore High Court has illegally refused to exercise jurisdiction in this case. The case will, therefore, go back to the Lahore High Court for decision of the writ petition filed by the appellant before it for decision on merits, in accordance with law."
28. The question relating to scope of sections 103 and 103-AA of Representation of the People Act, 1976 and the power of Election Commission of Pakistan to interfere in an election dispute in its supervisory jurisdiction and declaring the election in a constituency as whole or partially void to ensure that election must be conducted in just, fair, honest and transparent manner. The question relating to this constitutional duty of Election Commission of Pakistan in terms of Articles 218 and 219 subject to Article 225 of the Constitution read with section 52 of Representation of the People Act, 1976 has elaborately been examined in the connected petition "Aftab Shaban Mirani v.
Muhammad Ibrahim Jatoi and others (CP No,369 of 2008) as under:- "The next question for examination relates to the power of Election Commission of Pakistan under sections 103 and 103AA of Representation of the People Act, 1976 and the interpretation of these provisions in the light of Article 225 read with 218(3) and 219 of the Constitution and section 52 of the Representation of the People Act, 1976. The Plain reading of section 103 read with section 103-AA of Act 1976 would show that Election Commission of Pakistan on the complaint lodged by a candidate or his agent or polling staff or any other person if finds that in the situation mentioned therein, it would not possible to ensure fair, just and transparent election in a constituency as a whole or at a particular polling station, may declare election in the constituency void and direct for re-poll in the constituency and if such a situation is confined only to the extent of some of the polling stations, may direct re-poll at these polling stations. The power of Election Commission of Pakistan under section 103-AA is entirely independent to the power to be exercised in an election petition by the election Tribunal established in terms of Article 225 of the Constitution, therefore, the contention of the learned counsel for the respondent that power of the Commission under sections 103 and 103AA of Representation of the People Act, 1976 is subject to Chapter-VII of the Representation of the People Act, 1976, as the Commission by virtue of subsection (3) of section 103-AA of Act 1976 has to perform its functions as Tribunal has no substance. The Commission despite having been declared as Tribunal under section 103-AA (3) of the Act is empowered to adopt any procedure in the proceedings of summary inquiry before it and is not bound to follow the procedure of Tribunal or record the evidence and hold a regular inquiry. The word 'Tribunal' used in subsection (3) of section 103-AA ibid would not change the status, power and functions of the Commission."
' It has been further held in Aftab Shahbani Mirani's case, supra, as under:-- "In view of above discussion we hold that Chapter X as well as sections 103 and 103AA of Representation of People Act, 1976 are entirely independent to section 52 of the Act and the Commission before or after issue of notification of result of election, may exercise jurisdiction to entertain a complaint on the grounds mentioned therein and may continue to exercise the power within 60 days after official announcement of result of election whereas an election petition can be filed within 45 days of the publication of notification of result and election petitioner can take all these grounds which were taken in the application under section 103 AA of 1976 Act before the Election Commission and thus jurisdiction of Commission to some extent is concurrent with the Tribunal without any conflict."
29. The scope of power of judicial review of the High Court under Article 199 of the Constitution has also been discussed in detail in the above referred judgment in the light of earlier judgments rendered by this Court in Ghulam Mustafa Jatoi v. Additional District and Sessions Judge (1994 SCMR 1299), Election Commission of Pakistan v. Javed Hashmi (PLD 1989 Supreme Court 396) and in Rao Sikandar lqbal's case (C.P.No,1 of 2008). The relevant portion of the judgment in the above cases are reproduced hereunder:--
6. This is settled law that the Returning Officer in the scrutiny of nomination papers and Election Tribunal in appeal against the rejection of nomination papers can go into all questions of qualification and disqualification of a person relating to his candidature in the summary proceedings and in continuation thereto, the High Court also in its constitutional jurisdiction can entertain the question of rejection or acceptance of nomination papers in the cases in which the disqualification of a person to contest the election, is apparent and can be decided without any factual inquiry. In the present case, the petitioner on the basis of his intermediate certificate allegedly issued to him by the Board of Intermediate and Secondary Education, Lahore, appeared in B.A. Examination of the University of Punjab and the University by virtue of its rules, having gone into the question of eligibility of the petitioner to appear in BA examination at a subsequent stage, revised his result, therefore, the contention of the learned counsel that Election Tribunal under Article 225 of the Constitution, has exclusive jurisdiction to adjudicate the dispute arising out of election process, has no substance. This is correct that in the normal circumstances, the election dispute is challengeable only by an election petition on completion of election process and filing of writ petition at an intermediate stage, may not be justified but there is distinction between Articles 225 and Article 199 of the Constitution. The power of Election Tribunal constituted under Article 225 is confined to the extent of election disputes which may also include qualification and disqualification of a candidate whereas Article 199 of the Constitution is not as such controlled by Article 225 of the Constitution in all matter at all stages of election rather the High Court in exercise of its constitutional jurisdiction may in suitable cases exercise all powers to correct a legal error, defect or disability and has much wider power to that of the power of the Tribunal constituted under Article 225 of the Constitution of Islamic Republic of Pakistan. There is no cavil to the proposition that to avoid multiplicity of litigation and conflict of opinion, High Court may not interfere in the matters arising out of election dispute falling within the scope of Article 225 of the Constitution but nevertheless the jurisdiction of High Court under Article 199 is not ousted for the mere reason that the matter can be brought before the Election Tribunal at an appropriate stage.
There is no departure to the rule that there is limited scope of interference of the High Court under Article 199 in an election matter at an intermediate stage, which can be decided by the Election Tribunal but this rule, as such, may not be applicable to be pressed into service to permit a person to enter in the process of election who does not fulfill requisite qualification, therefore, the interference of the High Court during the process of scrutiny of nomination papers in a case in which disqualification of a person is floating on the surface of record is not objectionable instead non-interference of High Court in such a case in its Constitutional jurisdiction, would amount to allow a person who is not qualified to be elected or become Member of the Parliament to contest the election and disturb the whole process. Article 225 of the Constitution, provides that no election to the house of Parliament or Provincial Assembly can be called in question except through election petition before the Tribunal constituted thereunder but the rule envisages therein may not be invariably applicable to all situations at all stages, rather in exceptional case High Court may under Article 199 of the Constitution, interfere to uphold the constitutional mandate. In the case of Election Commission of Pakistan v. Javed Hashmi (PLD 1989 SC 396), question was raised regarding jurisdiction of High Court under Article 199 viz. Article 225 of the Constitution to exercise jurisdiction in election matters at an intermediate stage and it was held that High Court had no jurisdiction to exercise power in such matters under Article 199 of the Constitution. The controversy in the said case related to the appointment of Presiding Officer, Assistant Presiding Officer, Returning Officer and the High Court taking cognizance under Article 199, declared the appointments of polling staff made by the Returning Officer illegal and Returning Officer was directed to make fresh appointments in consultation with District Returning Officer. The interference in the matter of appointment of polling staff was certainly an administrative affair of the election process which was within the exclusive domain of Election Commission and similarly a dispute concerning with the election, would definitely be subject-matter of election petition whereas the question relating to the qualification and disqualification of a person would essentially be a pre-requisite to enter into process of election and if a person is not qualified to contest the election, the interference of he High Court against the order of acceptance of his nomination papers would not be in conflict to the provision of Article 225 of the Constitution. The power under Article 199 of the Constitution no doubt can be placed on higher footing to that of power emanating from Article 225 of the Constitution and notwithstanding the fact that two Articles have independent scope, the power of the High Court under Article 199 is not curtailed by the mere fact that question of law brought before the Court directly or indirectly related to the election dispute rather the High Court has to determine the question of its jurisdiction in the light of facts of a case before it and the point involved therein.
5. The relief claimed in the constitutional petition related to the candidature of the petitioner and the precise objection was that he was not a graduate to contest the election. This is not desirable to interrupt the election process except in the manner provided under the law but one cannot agree to the proposition that in case of substantial question of law arising in the election process, the same cannot be at all interrupted by the High Court at the intermediate stage and a blanket ban of jurisdiction should be read into Article 225 of the Constitution to every legitimate challenge of every kind of illegal order passed by an election authority. The order passed by the election authorities beyond the scope of law are not immune from challenge and correction by the High Court under Article 199 of the Constitution and High Court in doing so, must exercise jurisdiction subject to normal rule therefore no hard and fast rule can be made that what type of errors and actions of election authorities are immune from challenge before the High Court at an intermediate stage and in what type of error and action, the interference is possible rather it depends upon the facts of each case, that what type of dispute is brought before the High Court at an intermediate stage and in the light thereof High Court has to decide the question of its jurisdiction.
' It was held in Aftab Shahban Mirani's case supra (C.P. No,369 of 2008) as under:-- "The careful perusal of order of Election Commission of Pakistan, would reveal that order was passed after detailed discussion on legal and factual aspects of the case, therefore, High Court in exercise of its jurisdiction under Article 199 of the Constitution was not supposed to substitute its own opinion for the opinion of Election Commission of Pakistan on the question of fact. There is no concept of encroachment into the area of jurisdiction of a forum established under the Constitution for the mere reasons that the order passed by such a forum is subject to judicial review of the superior courts rather the concept is that the superior courts must follow the rule of reasonableness in exercise of discretionary jurisdiction and must not sparingly exercise such powers in a manner which may disturb the functioning of other Constitutional bodies. In support of the proposition, reference may be made to Multiline Associates v. Areshir Cease and 2 others (PLD 1995 SC 423) in which it was held that Court has to see that discretion is to be exercised in such a way that mischief and chaos is prevented.
' In consequence to the above discussion, we hold that the scope of interference of the High Court in its jurisdiction under Article 199 of the Constitution in election cases is very limited to the extent of matter which do not exclusively fall within the ambit of jurisdiction of election Tribunals or Election Commission of Pakistan or in respect of the orders which are coram non judice, without jurisdiction or mala fide. The interference of the High Court in the orders passed by Election Commission of Pakistan in discharge of its duty in terms of Articles 218 & 219 of the Constitution read with sections 103 and 103-AA of Act 1976 in the normal circumstances is not justified."
30. In the light of law referred to above, we would not take any exception to the judgment rendered by Peshawar High Court. The scope of judicial review of the High Court under Article 199 of the Constitution in election matter is confined to the extent of an order passed by election authority without lawful authority or it is coram non judice or mala fide an judicial review of the High Court cannot be enlarged to the cases relating to factual inquiry or in cases in which another view of the matter was also possible and if such view would have been taken it would not be illegal or unconstitutional. The High Court is also not supposed to substitute its opinion on the question of fact with the opinion formed by election authority or a Tribunal of competent jurisdiction.
31. There is no factual controversy of the nature in the present case which would require Election Commission of Pakistan for recording of evidence rather on the basis of report of District Returning Officer and the material provided by the Presiding Officer, the Election Commission of Pakistan formed opinion that the polling at two Polling Station i,e, Nos.219 & 244, could not be held in accordance with the law and consequently while exercising power as Tribunal on mixed questions of law and facts has passed order quite in accordance with law. In consequence thereto, we are of the considered view that the case would clearly fall within the purview of section 103-AA of Representation of the People Act, 1976 and the Election Commission of Pakistan has committed no error in exercise of its power in giving direction for re-poll at two polling stations.
32. However at this juncture we may point out that returned candidate initially lodged complaint before the Election Commission of Pakistan only to the extent of Polling Station No, 244 (Chingari) and subsequently, for the first time pleaded in the writ petition before Islamabad High Court that at Polling Station No,219, women voters could not exercise their right of franchise for want of female polling staff and female voters of this polling station also moved an application to the Election Commission of Pakistan and report was also submitted by the Polling Officer wherein he has verified the factual position referred therein. This may be seen that at the same time similar applications were made by the voters of Polling Stations Nos.1, 2, 3, 4 & 5 of Kaghan Area containing the grievance that due to land slide and blockade of roads they have not been able to exercise their right of franchise as they could not reach the polling station. The fact relating to land slide and blocking of road was duly verified by NHA Engineer. However, this application remained unattended.
33. This Court, however, cannot be oblivious of the fact that Election Commission has not given equal treatment to the petitioner in the matter relating to his complaint that at certain polling stations women voters have not been able to exercise their right of franchise and similarly, we have noticed that the Election Commission of Pakistan has not, given due consideration and weight to the written complaint dated 29-2-2008 lodged by male and female voters of Polling Stations Nos.1, 2, 3, 4 & 5 of Kaghan Area wherein the grievance voiced was that due to land slide and blockade of roads they have not been able to exercise their right of franchise. The contents of these applications were duly verified by the Engineer of NHA and the same were also received in the office of Election Commission of Pakistan at Islamabad before the order was passed on the complaint in respect of Polling Station Nos.219 & 244, Constituency NA-20, Maniehra-I, therefore, these applications/ complaints under section 103-AA of Representation of the People Act, 1976, have to be decided by the Election Commission of Pakistan along with the application of private respondent and should have passed an appropriate order in the interest of just, fair, honest and transparent elections in accordance with law. The non-disposal of these applications would reflect upon transparency and fairness of the election at the polling stations referred therein which may have also material effect on the free and fair election and ultimate result. In view thereof, we direct that Election Commission of Pakistan will also consider the application dated 29-2-2008, moved by male and female voters of Polling Stations Nos.1, 2, 3, 4 & 5 of Kaghan Area and applications of petitioner in respect of women votes at women polling stations after holding necessary inquiry will decide the same in accordance with the law in exercise of powers under section 103-AA of Representation of the People Act, 1976, after hearing the parties at its convenience. These are the reasons for our short order of even date which reads as under and is made part of this judgment:-- "For the detail reasons to be recorded later on, we having heard the learned counsel for the parties and Attorney-General for Pakistan and having considered the question of law and facts raised therein, dismiss this petition with direction that the grievance raised by the voters (male and female) of certain polling stations in Kaghan Area to the effect that they have not been able to cast their votes and exercise right of franchise, due to land slide and blockade of roads etc, shall be considered and disposed of by the Election Commission of Pakistan in accordance with law on their own merits after providing a proper opportunity of hearing to the parties."
…and 4 more citing cases