Muhammad Nawaz Abbasi, J.--This petition for leave to appeal is directed against the judgment dated 6.3.2008 passed by the Peshawar High Court, .Peshawar, whereby the Writ Petition No, 239/2008 filed by the petitioner against the consolidation of result prepared by the Returning Officer NA-3, Peshawar, on 20.3.2008, was dismissed as not maintainable.
2. The facts in the background in the small compass, are that the petitioner contested the election for the seat of National Assembly from constituency N.A.-3, Peshawar-III and as per his claim, he was leading candidate in the result being received from the different polling stations whereas Noor Alam Khan, Respondent No, 4, was following him but later said respondent was declared successful. The petitioner when on 19.2.2008 contacted Returning Officer; he was informed that official result after consolidation would be announced on 20th February, 2008, therefore, the petitioner on the same day moved an application under Section 39(6)(a) of the Representation of People Act, 1976, for recount of the entire ballot papers of the constituency before the consolidation of result. However, the Returning Officer while expressing his inability to entertain such an application, advised the petitioner to approach the District Returning Officer and on the next day on query made by the counsel of the petitioner from Returning Officer about the fate of the application, he was told that after consolidation of result, drawn on Form XVI the application for recounting became infructuous. The petitioner in this background filed a writ petition Bearing No, 239/2008 in the High Court at Peshawar seeking declaration that the consolidation of results prepared by the Returning Officer on Form XVI on 20.2.2008 without proper disposal of the application filed by him under Section 39(6)(a) of the Representation of People Act, 1976 for recount was illegal, improper and without lawful authority. The High Court having considered the matter, in detail, dismissed the writ petition vide order dated 6.3.2008 with the observation that writ petition was not maintainable and petitioner has assailed this order of the High Court before this Court in the present petition.
3. Learned counsel for the petitioner placing reliance on Abdul Majeed Khan Vs. District Returning Officer (2006 SCM R 1713) has contended that an order passed by an Election authority at any stage before the publication of the notification of official result, if is an order of the nature which materially effected the right of a party and is a patent illegal order, the High Court must not refuse to exercise the power of judicial review in its constitutional jurisdiction under Article 199 of the Constitution. Learned counsel submitted that failure of the Returning Officer not to decide the application moved by the petitioner under Section 39(6)(a) of the Representation of People Act, 1976, ,before consolidation of final result, would amount refusal of the exercise of jurisdiction vested in him under the law and dismissal of writ petition by the High Court with observation that in view of Section 52 of the Representation of People Act,. 1976, read with Article 225 of the Constitution, the remedy under Article 199 of the Constitution, would not be available was in utter disregard of the law and mandate of the Constitution. The next contention of the learned counsel was that according to the un-official result, the petitioner obtained 26201 votes and Respondent No,4 having obtained 27038 votes had a lead of 837 votes but 2566 votes were rejected and in view of the objection of the petitioner, the Returning Officer in all fairness, was required to consolidate the final result after determination of the status of rejected ballot papers through recount in presence of contesting candidates or their agents but the Returning Officer having not discharged his statutory duty committed grave illegality which was overlooked by the High Court in perfunctory manner. In nut-shell learned counsel submitted that in the given facts, the order passed by the Returning Officer and subsequent order passed by the Election Commission of Pakistan on 24.2.2008, whereby the application of the petitioner under Section 103-AA of Representation of People Act, 1976, was rejected summarily was illegal and the same illegality was repeated by the High Court by dismissing the writ petition on the ground that same was not maintainable.
4. Dr. Babar Awan, learned ASC, counsel for the respondents, on the other hand, has submitted that the statement of the Court pertaining to the different polling stations was prepared in accordance with law on the basis of which result was consolidated, therefore, in the peculiar facts and circumstances of the present case, the petitioner instead of agitating the matter before this Court should avail the proper remedy of election petition provided under Section 52 of the Representation of People Act, 1976. The learned counsel submitted that in any case, in view of the bar of jurisdiction contained in Article 225 of the Constitution, the election dispute could not be raised before the High Court in its constitutional jurisdiction under Article 199 of the Constitution, therefore, dismissal of writ petition was unexceptional.
5. The sole question requiring consideration in this petition relates to the exercise of jurisdiction by the Returning Officer under Section 39(6)(a) of the Representation of People Act, 1976, and the validity of publication and issue of notification of official result without disposal of such an application. Learned counsel placing reliance on Election Commission of Pakistan Vs. Javaid Hashmi (PLD 1989 SC 396) & Abdul Majeed Khan Vs. District Returning Officer (2006 SCM R 1713) has contended that the power of judicial review of the High Court under Article 199 of. the Constitution in the cases in which the election authorities failed to discharge their statutory duty, is not curtailed for mere reason that alternate remedy of election petition under Section 52 of the Representation of People Act, 1976, can be availed. The learned counsel for the respondent, on the other hand, placing reliance on Commission of Pakistan Vs. Javaid Hashmi (PLD 1989 SC 396) as well as Ghulam Mustafa Jatoi Vs. Additional District and Sessions Judge (1994 SCM R 1299), Ayatullah Dr. Imran Liaquat Hussain Vs. Election Commission of Pakistan (PLD 2005 SC 52) & Abdul Majeed Khan Vs. District Returning Officer (2006 SCM R 1713), has submitted that writ petition in such cases may not be the proper remedy.
6. There is no cavil to the proposition that after issuance of notification of the result of election, a dispute arising out of election should be brought before the Election Tribunal under Section 52 of the Representation of People Act, 1976, by way of an election petition and the remedy of constitution petition under Article 199 is not a proper remedy but the bar of jurisdiction contained in Article 225 of the Constitution may not be absolute to oust the jurisdiction of the High Court under Article 199 of the Constitution in all matters, directly or indirectly concerned with the election. The constitutional jurisdiction of the High Court can surely be invoked in certain situations, particularly in the cases in which a pure question of law is raised in the constitution petition and a question of fact or mixed question of law and fact is not involved. This Court in Abdul Majeed Khan Vs. District Returning Officer (2006 SCM R 1713) held as under:-- "The language used in Rule 36(3) would clearly indicate that the Presiding Officer if he finds that such ballot-paper should not have been so excluded then he should have counted it as a valid ballot-paper in favour of contesting candidate. Essentially when there is no marking aid rubber stamp, no conclusion can be drawn that it has been validly used. Therefore, Returning Officer who, in fact was influenced by the direction of the District Returning Officer, had looked these ballot- papers over consciously and wrongly included these votes in favour of Respondent No,
5. As has been pointed out hereinabove that whenever there is such an illegality or an order has been passed without jurisdiction and its effect is to disfranchise the candidate, then petition under Article 199 can be maintained."
7. In Civil Petition No, 1 of 2008, Ch. Muhammad Arif Hussain Vs. Rao Sikandar Iqbal and others, decided vide judgment dated 10.1.2008, it has been held by this Court as under:-- "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 BA 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 us. Jawed Hashmi (PLD 1989 SC 396), question was raised regarding jurisdiction of High Court under Article' 199 vis 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 the 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.
7. The relief claimed in the constitution 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."
8. In view of the legal position explained above and the nature of dispute, the question relating to the exercise of jurisdiction by the High Court under Article 199 of the Constitution, in election matters due to bar contained in Article 225 of the Constitution, must be determined in the light of facts and circumstances of each case as concept of complete bar of jurisdiction of the High Court may not be in the wisdom of the Constitution. Be that as it may, in the present case, the Election Commission as well as the High Court having undertaken the exercise of examination of record observed that in the light of nature of controversy, the petitioner instead of invoking the constitutional jurisdiction of the High Court, should avail the remedy of election petition and we also in the light of facts of the present case and the propositions, raised by the learned counsel for the parties have not been able to differ with the High Court.
9. The grievance of the petitioner, notwithstanding the question of jurisdiction of the election authorities and the High Court, was confined only to the extent of consolidation of result and the recount of the rejected votes, therefore, we without commenting upon the merits of the case in either way, dispose of this petition with direction that if the petitioner avails the remedy of election petition under Section 52 of the Representation of People Act, 1976, before the Election Tribunal established in terms of Article 225 of the Constitution, the Tribunal at the first instance will consider the question relating to the recount or count of rejected votes, as the case may be as preliminary issue and without decision of the same in possible short time, will not proceed on merits. With the above observation, this petition stands disposed of. Petition disposed of.