Abdul Hameed Dogar, HCJ.--This petition for leave to appeal is filed against order dated 6.3.2008 passed by learned Division Bench of Lahore High Court, Lahore whereby W.P. No, 1891 of 2008 filed by petitioner Syed Fakhar Imam was disposed of with the observation that he may approach a competent Election Tribunal by filing a properly constituted election petition wherein all these questions will be gone into and decided in accordance with law.
2. Briefly stated, facts giving rise to the filing of instant petition are that petitioner and Respondents No, 2-7 contested election for the National Assembly, NA-156 Khanewal, held on 18.2.2008. The Respondent No, 2 won the election by securing 71381 votes whereas petitioner secured 58271 votes.
Feeling aggrieved, on 26.2.2008 petitioner filed application under Section 103-AA of the Representation of People Act, 1976 (hereinafter referred to as the Act of 1976") before the learned Chief Election Commissioner of Pakistan alleging grave illegalities and irregularities committed by the returned candidate/Respondent No, 2 during the process of election and prayed that the election may be declared as void. The said application was dismissed on 28.2.2008 by the learned Election Commission. This order was assailed by petitioner before learned Lahore High Court, Lahore through Writ Petition No, 1891 of 2001, which was disposed of vide impugned order as stated above.
3. We have heard Mr.Maqbool Ellahi Malik, learned Sr.ASC for the petitioner and Respondent No, 2 appearing in person at length and have gone through the record and proceeding of the case in minute particulars.
4. Learned counsel for the petitioner vehemently contended that petitioner filed application to the Election Commission under Section 103-AA of the Act of 1976 along with affidavits of some polling officer supporting the version of petitioner that illegal and corrupt practices were committed by or at the behest of returned candidate/Respondent No, 2 which badly affected the result of election.
According to him, even the Presiding Officers at concerned polling stations were transferred and appointed before elections in violation of mandatory provisions of Section 9 of the Act of 1976. He contended that the application of applicant was dismissed by the Election Commission on 28.2.2008 without providing opportunity of being heard, which is against the principles of natural justice. He contended that under Section 103-AA of the Act of 1976, the Chief Election Commissioner acting as Tribunal may exercise powers to declare a poll void before expiration of 60 days and even after publication of name of returned candidate in official gazette. He further contended that there are two parallel forums available for trial of the same grievance, firstly under Section 103-AA of the Act of 1976 requiring summary trial by the Chief Election Commissioner having the powers of Tribunal and secondly, a regular trial in manner provided under Section 52 of the Act. of 1976 to be read with Article 225 of the Constitution of Islamic Republic of Pakistan, 1973. He further contended that proceedings under Section 103-AA of the Act of 1976, involving summary inquiry, provisions of Qanoon-e-Shahadat Order as well as principles of natural justice should be dispensed with by the learned Election Commission. He contended that there is a complete failure to exercise jurisdiction by learned Election Commission under Section 103-AA of the Act of 1976 which has prejudiced the case of petitioner. In support, he placed reliance on the cases of Mir Ghalib Domki v. Election Commission of Pakistan & others (PLD 2006 Karachi 314), Syed Saeed Hassan v. Pyar Ali & others (PLD 1976 SC 6) and Agha Ghulam Ali v. Election Commission & others (PLD 1991 Karachi 396).
5. On the other hand Respondent No, 2 appearing in person controverted above contentions and supported the impugned order. He contended that no rigging, irregularity or any untoward incident has happened in the constituency. He referred to consolidated statement of the results of the count furnished by the Presiding Officers and pointed out that the allegations with regard to change of staff at his behest has no force as out of five polling station he lost in two.
6. We have considered the arguments advanced by learned counsel for the parties. For better appreciation it would be appropriate to reproduce Section 103-AA of the Act of 1976, which reads as under:-- "103-AA. Power of Commission to declare a poll void,--
(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of the record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission, may make a declaration accordingly and, by notification in the official Gazette, call upon that constituency to elect a member in the manner provided for in Section 108.
(2)Notwithstanding the publication of the name of a returned candidate under sub-section (4) of Section 42, the Commission may exercise the powers the powers conferred on it by sub-section (1) before the expiration of sixty days, after such publication; and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribunal.
(3) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter VII, regulate its own procedure.
The perusal of above provisions reveal that the Commission shall be deemed to a Tribunal to which an election petition has been presented. Respondent No, 2 appearing in person has placed on record letter No, F.11(157)/2008-LAW dated 18th March, 2008 whereby Chief Election Commission has referred the election petition titled "Syed Fakhar Imam vs. Muhammad Raza Hayat Hiraj and others" relating to Constituency No, NA-156 Khanewal-I to Hon'ble Mr. Justice Hashat Ahmed Khan, Judge, Lahore High Court, Lahore/Election Tribunal for trial and disposal in accordance with law.
7. The complaints received by the Commission were not corroborated by any reliable material. The evidence produced by petitioner and his witnesses was vague, sketchy and devoid of any substance to inspire confidence. Moreover, he had failed to furnish full particulars with names, places and the time of alleged corrupt or illegal practice or of any other illegal act as alleged by him to get a verdict in his favour.
8. It is well settled principle of law that alter the publication of the name of the respondent as a returned candidate in the official gazette the only remedy available to the petitioner was to file an Election Petition as provided under Section -52 of the Act of 1976 before the Election Tribunal appointed under Section 57 of the Act of 1976. The case law cited by learned counsel for the petition does not apply to the facts of the present case. Section 52 of the Act 1976 is expressed in the negative form to exclude the jurisdiction of all other forums, including the Election Commission to call in question the validity of an election, by a contesting candidate for that election, except by an Election Petition to be presented to the Commissioner within forty five days of the publication in the official gazette of the returned candidate. It would be advantageous to reproduce 52 of the Act of 1976, which reads as under:- "52. Election petition.--No election shall, be called in question except by an election petition made by a candidate for that election.
(2) An election petition shall be presented to the Commissioner within [forty five days) of the publication in the official gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or sub-Treasury in favour of Commissioner, under the prescribed head of account, as security for the costs of the petition, a sum of one thousand rupees.
The submissions made by learned counsel for the petitioner did not make a case for interference in the impugned order. Furthermore, the order of the Election Commission was not liable to be interfered through a Constitution Petition. Irrespective of above, petition was barred by Article 225 of the Constitution.
9. As regards the claim of the petitioner for change of polling staff is concerned no substantial material has been placed on record. The learned High Court in its jurisdiction under Article 199 of the Constitution cannot grant relief in view of provisions of Article 225 of the Constitution and the Act of 1976 as held in the case of Election Commission of Pakistan v. Javed Hashmi (PLD 1989 SC 396). In our opinion the order of the learned High Court is a just, fair and proper ' which is calculated to advance the interest of justice and, therefore, this is not a fit case for exercise of our discretionary jurisdiction to grant leave to appeal.
10. In view of above discussion, the petition being devoid of force is dismissed and leave to appeal is refused.