Muhammad Nawaz Abbasi, J.--This petition has been directed against the judgment dated 03.03.2008, passed by a learned Division Bench of the Islamabad High Court, Islamabad, in the writ Petition Bearing No, 33 of 2008, filed by the petitioner (Syed Nayyar Hussain Bukhari), a candidate in the general elections for the seat of National Assembly (NA-49, Islamabad-II), whereby he questioned the legality of the order dated 20.7.2008 of the Election Commission of Pakistan, and the order dated 23.02.2008 passed by the Returning Officer by virtue of which his request for recounting of the ballot papers of all the polling stations before the consolidation of the final result, was rejected.
2. The ground urged for recounting of the entire ballot papers of the constituency was that during the initial count, the rejected ballot papers at certain polling stations were wrongly included in the count and the polling agents of the petitioner were also not allowed to participate in the process of counting. The application filed by the petitioner in this behalf was rejected by the Returning Officer whereupon he moved a similar application to the Election Commission of Pakistan which was also rejected on the short ground that from the material available on record, no substantial reason for recounting of the ballot papers was spelt out. The petitioner being aggrieved of the above orders, filed a constitution petition in the Islamabad High Court and the petition was dismissed in the light of the judgment of this Court in Election Commission of Pakistan Vs. Javaid Hashmi (PLD 1989 SC 396) with, the observation that after establishment of Election Tribunal in terms of Article 225 of the Constitution, the petitioner may avail the remedy of election petition before the Election Tribunal.
3. Syed Asghar Hussain Sabzwari, learned ASC, counsel for the petitioner has contended that the request of the petitioner for recounting of the ballot papers under Section 39(6)(a) of the Representation of People Act, 1976, on the ground mentioned therein, was quite reasonable and legal which was rejected by the Returning Officer in an arbitrary manner and further Election Commission of Pakistan also without taking notice of the illegality committed by the Returning Officer, summarily rejected the application of the petitioner for recounting of the ballot papers in complete departure to the mandate of law. Learned counsel taking us to the orders in question, submitted that the refusal of the High Court to interfere in the matter would amount to perpetuate the illegality committed in the consolidation of result under Section 39 of the Representation of People Act, 1976 and notwithstanding the provision of Article 225 of the Constitution, the order passed by the Returning Officer was subject to the correction by the Election Commission of Pakistan in exercise of its powers under Section 103 read with 103-AA of Representation of People Act, 1976, and by the High Court in exercise of the power of judicial review under Article 199 of the Constitution.
4. Mr. Waseem Sajjad, learned Sr. ASC, counsel for the returned candidate, however, has opposed this petition with the assertion that the Returning Officer after taking into consideration the facts and circumstances of the case in detail, passed a well reasoned order and no valid ground was made out for interference either by the Election Commission of Pakistan or the High Court rather the petitioner on the basis of general assumption sought recounting of entire constituency without pointing out any particular instance of illegality or irregularity in the initial count at any polling station, therefore, in the facts leading to this petition in the background, the petitioner could neither avail the remedy of writ petition nor has been able to make out a case before this Court for interference and instead of agitating recounting at this stage can unhesitantly avail the appropriate remedy of election petition provided under the law.
5. The general law is that the High Court should not interfere in the election disputes in its constitutional jurisdiction and this Court in Javed Hashmi's case supra has emphasized that in view of the bar contained in Article 225 of the Constitution, the High Court is not supposed to exercise its jurisdiction under Article 199 of the Constitution in election matters. The same view was expressed in Ghulam Mustafa Jatoi vs. Additional District & Sessions Judge (1994 SCM R 1299) with the observation that in exceptional cases the jurisdiction of the High Court under Article 199 of the Constitution can be invoked and same principle was followed in Ayatullah Dr. Imran Liaquat Hussain Vs. Election Commission of Pakistan (PLD 2005 SC 52) but we may point out that the concept of absolute bar of jurisdiction of the High Court in election matters is based on misconception of law. The power of judicial review of the High Court is certainly not available as an alternate remedy in the election matter but if the aggrieved person has no other remedy, the bar of jurisdiction contained in Article 225 of the Constitution, may not affect the jurisdiction of the High Court to entertain a petition involving question of law or interpretation of law in respect of an election dispute.
6. This Court in Abdul Majeed Khan v. District Returning Officer (2006 SCM R 1713), in an identical situation, held as under:-- "Thus for the foregoing reasons, under the circumstances of the case, DRO under Rule 36(6) has jurisdiction only to direct the Returning Officer for recounting of the votes subject to the conditions prescribed therein and so far Returning Officer is concerned he had to exercise the jurisdiction lawfully keeping in view the provisions of Rules 30(6)(ii), therefore, for such reasons a candidate cannot be allowed to be disfranchised and subject to availability of these conditions writ petitions under Article 199 of the Constitution would be competent particularly in view of the fact the Returning Officer had not left undecided any question for the decision of the Tribunal as has been discussed hereinabove. As a result of 'above discussion, petition is converted into appeal and allowed."
7. In Ghulam Mustafa Jatoi Vs. Additional District & Sessions Judge (1994 SCM R 1299) while dealing with the similar proposition, it has held by this Court as under:-- "Generally in an election process the High Court cannot interfere by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court.'
In Civil Petition No, 1 of 2008, Ch. Muhammad Arif Hussain Vs. Rao Sikandar Iqbal and others, decided vide judgment dated 10.1.2008, this Court held 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 Article 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 there under 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 vs. 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 the light of the judgment of this Court referred above, it is difficult to agree with the proposition that in all election matters at all stages, the jurisdiction of the High Court under Article 199 of the Constitution or that of Election Commission of Pakistan, a Constitutional forum is completely ousted by virtue of Article'225 of the Constitution. We therefore, hold that Election Commission of Pakistan can conveniently take notice of an irregularity/illegality committed during the process of election in an appropriate case in exercise of its powers under Section 103 read with Section 103-AA of Representation of People Act, 1976. Similarly the High Court in a suitable case can interfere in the order passed by the election authorities during the election process in its Constitutional jurisdiction under Article 199 of the Constitution.
9. The learned counsel for the petitioner without disputing the legal position that the question relating to the recounting of ballot papers can also be adjudicated by the Election Tribunal in an election petition, notwithstanding the order passed by the Election Commission of Pakistan under Section 103-AA of Representation of People Act, 1976, submitted that so long the order passed by the Returning Officer and Election Commission of Pakistan are holding field, the issue relating to the recounting, may have no significance in the election petition. This may be seen that the orders in question were passed at a stage when election process had not yet come to an end, therefore, these orders may have no effect on the subsequent proceedings in the statutory remedy of election petition available under the law in which the proceedings have to be culminated on the basis of its own merits.
10. Be that as it may, adverting to the question relating to the recounting of ballot papers by the Returning Officer under Section 39 of the Representation of People Act, 1976, and under Section 103- AA of the ibid Act by the Election Commission of Pakistan, we find that the application of the petitioner in this behalf was not considered in proper exercise of jurisdiction and similarly the High Court dismissed the writ petition in a perfunctory manner, therefore, the petitioner may either approach the Election Commission of Pakistan afresh under Section 103-AA of Representation of People Act, 1976, or avail the remedy of election petition under Section 52 of the ibid Act. In view of the above, notwithstanding the judgment of the High Court and the order passed by Returning Officer as well as Election Commission of Pakistan, we direct that subject to all just exceptions, the concerned forum to be chosen by the petitioner, shall decide the matter quite independently on its own merits without being influenced by the orders assailed before us or by this order and also at the first instance, will decide the matter relating to the recounting of the ballot papers as preliminary issue within the possible short time.
11.This petition with the above observations, stands disposed of.