' MIAN SAQIB NISAR, J.---The petitioner No,1 is the Government of Punjab and has filed this petition through the Chief Secretary of the Province, while petitioner No,2 is the Home Secretary thereof, (hereinafter jointly referred to as "the Petitioner").
2. Through the present constitutional petition, the order dated 15-9-2009 passed by the worthy Chief Election Commissioner, Pakistan ("CECP") aid consequent thereupon the Notification dated 16-9-2009 has been assailed, whereby the bye-elections have been directed to be held for the two seats of the National Assembly and two for the Punjab Provincial Assembly. The constituencies are NA-123 Lahore-VI, NA-55 Rawalpindi-VI, PP-82 Jhang-X and PP-284 Bahawalnagar-VIII. It is primarily the petitioner's case that the electorates of the constituencies have been called upon by the CECP to elect their representatives, without affording an opportunity of hearing to the petitioner, which (the petitioner) practically has to conduct the elections and is obliged under the law to provide all the possible assistance, by all means whatsoever, in the whole process of election, including the effective control of the law and order situation throughout the compaign and on the polling day. It is stated that in view of the wave of terrorism which has gripped the country especially the Province of Punjab, the law and order situation of the Province does not permit the holding of the bye-elections and, therefore, by virtue of the impugned order the petitioner has been deprived of an opportunity to apprise the worthy CECP about the circumstances, on account of which it shall be impracticable to hold the elections in a smooth, free, peaceful, fair and transparent manner.
3. Khawaja Haris Ahmad, the learned counsel for the petitioner, has explained that the NA-55 Rawalpindi-VI has fallen vacant because of the resignation tendered by Haji Pervaiz Khan somewhere in March, 2009, while PP-82 Jhang-X also due to the same reason (as Mian Azam Chela, MPA resigned on 14-6-2009); the election of Mr. Muhammad Rauf Khalid from PP-284 Bahawalnagar-VIII as the returned candidate, has been declared void by Election Tribunal vide order dated 10-6-2009, and the order has been upheld by the Honourable Supreme Court on 1-9- 2009. As regards NA-123 Lahore-VI, it has been elucidated that in the general elections held in the country in February, 2008, Mr. Javed Hashmi was the returned candidate, who gave up this seat by retaining another from Multan, (which was also won by him) and the Notification for the bye- election on the said seat was issued by the Chief Election Commissioner on 18-6-2008. However, through subsequent Notification, the election was postponed by the CECP. Again vide Notification dated 7-5-2008, the election was fixed for 26-6-2008 and in this process, Mian Muhammad Nawaz Sharif, the former Prime Minister of Pakistan, filed his nomination papers, which were accepted by the Returning Officer; the acceptance was challenged by a contesting candidate before the requisite Tribunal, but on account of the split decision of the two members (of the Tribunal), the order of the Returning Officer remained intact. A writ petition was filed by the opposite side (in those proceedings) challenging the order of the Tribunal, which was accepted, consequent thereupon the nomination papers of Mian Muhammad Nawaz Sharif were rejected. The Federation challenged the above decision before the Honourable Supreme Court and holding of the election in NA-123 was stayed by the apex Court. Anyhow, the CPLA of the Federation was dismissed by the Honourable Supreme Court on 25-2-2009; but, the review was accepted on 26-5-2009 and the Notification for holding the election was thus issued by the CECP on 28-5-2009 for the above constituency as also for NA-55; on account of the report of the Government of Punjab sent to the Chief Election Commission on 8-6-2009 responding to the query of the Election Commission, the elections were however, postponed; the relevant part of this report reads as below:-- "(2) Credible Source Reports from Minister of Interior as well as Intelligence Agencies have been received that there is serious threat to one of the main contesting candidates in the Constituency and that the terrorists are bent upon to strike at any place/ opportunity available to them. It has also been reported that the possibility of suicidal/terrorists attack during the campaign or on polling day cannot be ruled out.
(3) Home Department, Government of the Punjab, vide letters dated 25-10-2008, 30-10-2008, 25-11- 2008, 16-12-2008, 24-12-2008 had earlier also intimated the Election Commission of Pakistan that due to serious law and order and precarious internal security situation, it is not possible to conduct elections in the Province of Punjab in a free and transparent manner and that necessary arrangements for the elections cannot be ensured in these circumstances.
(4) Government of the Punjab, therefore requests that the conduct of bye-elections in Constituencies No,NA-123, Lahore-VI & NA-55, Rawalpindi scheduled to be held on 30-6-2009 & 4- 7-2009 respectively may kindly be postponed till returning of the situation to normality."
' In response to the above, by virtue of the Notification dated 10-6-2009 the elections were accordingly postponed while notifying: "No, F8 (1)/2009-Cord.--In continuation of this Commission's Notification of even number, dated the 5th June, 2009, containing the date of Poll for Bye-Election in Constituency No, NA-123 Lahore-IV; in pursuance of the provisions of Article 6 of the Election Commission Order, 2002, Section 11A of the Representation of the People Act, 1976 (LXXXV of 1976) and all other powers enabling him in that behalf, the Chief Election Commissioner is pleased to postpone the date of Poll for Bye-Election in the aforesaid constituency till further orders, in view of the Report, dated the 8th June, 2009 received from the Chief Secretary, Government of the Punjab, Lahore regarding volatile law and order situation particularly as to serious threats of terrorists attacks."
' This was also so done in the case of NA-55 Rawalpindi-VI.
' On 23-6-2009, Mr. Kanwar Muhammad Dilshad, Secretary Election Commission of Pakistan wrote a letter to the Chief Secretary, Government of Punjab stating:-- "As you are aware that due to resignation tendered by Mian Muhammad Azam Chela, MPA, a Bye- Election to fill the resultant seat is to be held within sixty days from the occurrence of vacancy i,e, before the 14th August, 2009 as required under Article 224(4) of the Constitution of Islamic Republic of Pakistan.
2. The Honourable Chief Election Commissioner has desired me to request you kindly to apprise this Commission about the law and order situation in Constituency No,PP-82 Jhang-X before the Election Commission issues the Schedule for holding Bye-Election in that constituency."
' It is clear from this letter that the views of the Provincial Government (Punjab) were being sought and solicited about the law and order situation in the Province before notifying the election schedule; (leaving apart the correspondence in between) the letter was responded to vide letter dated 21-8-2009 in the following terms:-- "2. Credible Source Reports from Ministry of Interior as well as from Intelligence Agencies have been received that the terrorists are bent upon to strike at any place/opportunity available to them. It has also been reported that the possibility of suicidal/terrorists attack during the campaign or on polling day in above said constituency cannot be ruled out. Further, the internal security situation has become more precarious in the aftermath of assassination of Maulana Ali Sher Haidri and there is liklihood of backlash in District Jhang. The District Administration has also reported that due to these circumstances, it is not possible for them to ensure arrangements for holding of said bye- elections in free, fair and transparent manner."
' Acting upon the above, the Notification dated 21-8-2009 was issued in which, it was stated:-- "No F.8(4)/2009-Cord.---In supersession of this Commission's Notification No, F. 8(4)/2009-Cord(1), dated the 12th August, 2009 and in pursuance of the provisions of Article 6 of the Election Commission Order, 2002, Section 11A of the Representation of the People Act, 1976 (LXXXV of 1976) and all other powers enabling him in that behalf, the Chief Election Commissioner is pleased to postpone the Schedule for Bye-Election in Constituency No, PP-82 Jhang-X, till further orders, in view of the Report dated 21-8-2009, received from the Chief Secretary, Government of the Punjab and detailed briefing given by him regarding precarious law and order situation in the Province particularly in the areas where by-elections are being held. The fresh Schedule of Bye-Election in the aforementioned constituency will be issued later on."
' Vide letter dated 12-8-2009, the Joint Secretary (Elections), Election Commission of Pakistan addressed to the Chief Secretary, Government of Punjab, regarding the conduct of bye-elections in the Province, with particular reference to NA-123 Lahore-VI and NA-55 Rawalpindi-VI, queried as under:-- "I am directed to refer to your letter No,PS/CS/701/2009, dated the 8th August, 2009, on the subject cited above.
2 In order to know the factual position, the Honourable Chief Election Commissioner has desired you to personally brief him OR the 20th August, 2009 at 12-30 p.m. In his office located at Constitution Avenue G-5/2, Islamabad, on the security situation in the Punjab Province with particular reference to the areas where Bye-elections are to be held."
' The meeting did take place, but the versions of its outcome are divergent, (which in due course shall be highlighted in this judgment.)
' It may be pertinent to mention here that even with regard to the bye-election pertaining to the local Government, as earlier as on 1-9-2008, the Secretary Election Commission of Pakistan wrote to the Chief Secretary, Government of the Punjab, as under:-- "I may draw your attention to the fact that Bye-elections to fill the vacant seats in the Union Councils and Zila/Tehsil/Town Councils were previously scheduled to be held in the month of November, 2007 but these were deferred for some months due to conduct of General Elections in the country. Now this Commission is planning to announce the schedule in the end of this month.
2. The Honourable Chief Election Commissioner has desired me to request you kindly to comment on the present law and order situation in your Province so that schedule for Bye-elections to the Local Government institutions is issued accordingly."
' This was replied by the Home Secretary, Punjab as under:- "2. Provincial Police Officer/IGP Punjab has reported that serious law and order situation in view of the increasing price hike, load shedding, suicidal bombing etc. Exist in the districts, where Local Government Bye-Elections 2008 are scheduled to be held in the Province of Punjab.
3. Any public gathering has therefore, become a potential target for the terrorists/miscreants aiming at destabilizing the system/country.
4. Government of Punjab, therefore, requests that said Local Government Bye-Elections 2008 scheduled to be held on 17-11-2008 may kindly be postponed till returning the situation to normality."
' Vide another letter dated 13-12-2008, the CECP through the Secretary Election Commission of Pakistan, has solicited to ascertain about the law and order situation of the Province in the manner:-- "4. To complete legal requirement.--Election Commission intends to issue Bye-elections schedule to vacant seats in the Union Councils in the 1st Week of January, 2009 and that of Indirect Bye- election to the vacant seats in Zila/Tehsil/Town Councils in the 2nd week of February, 2009. The Honourable Chief Election Commissioner has desired me to request you kindly to apprise us about law and order situation in your Province so that schedule for Bye-elections to the Local Government institutions could be issued accordingly."
' As has been mentioned above that for the purposes of briefing the CECP about the law and order situation if was satisfactory for holding the bye-elections, 20th of August, 2009 was fixed for the personal appearance of Chief Secretary, Punjab (the relevant part of this letter has been reproduced above). In the parawise comments filed on behalf of the CECP and the Election Commission of Pakistan through Ch. Qamar-uz-Zaman, Provincial Election Commissioner, the outcome of the meeting is stated to be:-- "Similarly, another report, dated 8-8-2009 (Annex-B) received from the petitioners for further postponement of bye-elections, the Chief Secretary, Government of the Punjab was requested to appear personally before the Honourable Chief Election Commissioner on 20-8-2009 who was heard about the security situation in Punjab particularly in the areas where bye-elections are to be held. The petitioner was told to suggest any date for polls for holding bye-elections but he left saying he would intimate date after consulting the authority, though answering respondent was not required to consult or obtain date from the petitioner for fixing polling date or issuing schedule of bye-elections."
' It may be relevant to mention that it is nowhere stated in these comments if those have been filed on the instruction of respondents Nos.1 and 2 and had requisite authority in this behalf, including the authority to swear an affidavit in support thereof. Whereas the petitioners have filed the re- joinder to the comments, which is supported by the affidavit of petitioner No,2 and in response to this Para (about the meeting) it is stated:-- "As regards the assertion that pursuan, to another report dated 8-8-2009 received from the petitioners, the petitioner No,1 was requested to appear personally before the Honourable Chief 'Election Commissioner on 20-8-2009, and that after hearing about the security situation in Punjab, particularly in the area where bye-elections are to be held, the petitioner No,1 'was told to suggest any date for polls for holding bye-elections but he left saying he would intimate date after consulting the authority....'It is submitted, with the utmost respect, that this is not an accurate version of what transpired on 20-8-2009. The correct facts are that both the petitioners were called by the Honourable Chief Election Commissioner for discussing the issue about the security situation coming in the way of holding bye-elections. Both the writ petitioners gave a comprehensive briefing duly supported by the reports of different Provincial and Federal Security Agencies to the effect that the security situation was not conducive for holding of the elections, and also that there was threat to life of certain VVIPs, Politicians, High Level Government Officials and Security Agency Personnel. The Honourable Chief Election Commissioner did desire that a date be indicated when the Provincial Government may be able to organize the elections from the security point of view, but the writ petitioners 'could not commit to any date because of the security concern based on the material produced before the Honourable Chief Election Commissioner.
Ultimately, the meeting, ended with the broad based understanding between the Honourable Chief Election Commissioner and the Petitioners to the effect that the security situation and the comfort of the Provincial Government for holding election would be reviewed about 15 days after the month of Ramadan."
' As mentioned earlier, the outcome of the meeting has been translated differently by both the sides; and it has been conspicuously noticed by the Court that the Parawise comments are not established on the record to have been filed under the instructions or the authority of the CECP and the same is the position about the affidavit in support thereof. Therefore, it shall not be a safer course to infer that it was only a date of poll which the Chief Secretary, Punjab undertook to apprise the CECP, and the probability otherwise cannot be ruled out.
4. Be that as it may, around 28th August 2009 (as this is the date of verification of the petition), Sheikh Rashid Ahmad/respondent No,3, who intended to contest the election from NA-55 Rawalpindi-VI, moved an application under section 103 of the Representation of the People Act 1976 ("RPA, 1976"), upon which a notice dated 4-9-2009 was issued to petitioner No,1, which reads as below:-- "To ' The Chief Secretary, ' Government of the Punjab, Lahore.
' Subject: PETITION UNDER SECTION 103 OF THE REPRESENTATION OF THE PEOPLE ACT, 1976 FILED BY SH.
RASHID AHMAD V. GOVERNMENT OF THE PUNJAB THROUGH ITS CHIEF SECRETARY.
NOTICE "Please take notice and be informed that the petition cited as subject has been fixed for hearing before the Honourable Chief Election Commissioner at 11-00 a.m. On 15-9-2009 in the Election Commission Secretariat, Constitution Avenue, G-5/2, Islamabad.
2. You are therefore, required to appear before the Honourable Chief Election Commissioner of Pakistan in person or through counsel on the above-mentioned time, date and place, failing which the matter will be decided in your absence. A copy of petition in enclosed.
3. By order of the Chief Election Commission of Pakistan."
' At this stage, it seems expedient to reproduce certain portions of the above petition:--- "8 That the Provincial Government headed by Mian Shahbaz Sharif managed to send report dated 8-6-2009 through the Chief Secretary, Government of the Punjab Lahore regarding volatile law and order situation particularly as to serious threats of terrorist attack. It was a report based on mala fide in view of the fact that the law and order situation in Rawalpindi had not been deteriorated and there was no serious threat of terrorist attack more than what existed at the time when the election of the Constituency were held on 2008. The petitioner and the Public agitated against the postponement.
9. That yet another false and frivolous report dated 8-6-2009 was managed to be issued by the Chief Secretary, Government of Punjab, Lahore regarding fake and fabricated volatile law and order situation as to the serious fabricated threats of terrorist attack. The learned Chief Election Commission of Pakistan vide Notification F.8(3)/2009-Cord dated 15-6-2009 in supersession of this Commission's notification of even number dated 10-6-2009 and in pursuance of the provisions of Article 6 of the Election Commission Order, 2002, section 11-A of the Representation of the People Act, 1976 (LXXXV of 1976) and all other powers enabling him in that behalf was pleased to postpone the schedule of bye-election in Constituency No,NA-55, Rawalpindi-VI notified vide notification No,F.8(3)/ 2009-Cord(1) dated 28th May 2009 till further orders, in view of the report dated 8th June 2009 received from the Chief Secretary, Government of Punjab, Lahore regarding volatile law and order situation particularly as to serious threats of terrorist attack. The fresh schedule of bye- election in the aforementioned Constituency was to be notified later on.
15 That no serious terrorist activity has happened in Pakistan ever since the first notification of the holding of election. The situation at Rawalpindi remained calm and except for some minor incidents no threat to the life and liberty of the public has been witnessed."
' In the light of the above, it was prayed:-- "It is therefore most respectfully prayed that a speedy action be taken and a schedule for bye election of the Constituency of NA-55, Rawalpindi-VI be announced."
' The petitioner in response to the above notice, vide letter dated 9-9-2009 apprised the CECP as under:- "2. It is stated that Chief Secretary Punjab as well as Home Secretary Punjab are heavily committed to important assignments regarding law and order and Price Control in the Province of Punjab during the month of Ramadan and as such the representative of Government of Punjab as required vide above referred letter may not be able to attend your good office on 15-9-2009.
3. It is therefore, requested that some other appropriate date may kindly be intimated in this regard preferably after Eid-ul-Fitr."
' Besides the above written request, Mr. Rashid Hafiz, the Assistant Advocate-General, Punjab appeared for the petitioner and requested for the adjournment, which was declined and the following impugned order dated 15-9-2009 has been passed by the CEP:- "Heard. Mr. Raheel Malik, learned counsel for Sheikh Rashid Ahmad, petitioner and Rashid Hafiz, Assistant Advocate-General, Punjab for the respondent-Chief Secretary Punjab. Mr. Rashid Hafiz was given time to seek instructions from the concerned person so far as the fixation of the date of Poll for Bye-elections on vacant National and Provincial Assemblies' seats but he insisted for adjournment, which is vehemently opposed by the petitioner (for emphasis the underline is mine) on the ground that already sufficient period has passed And constitutional obligation imposed upon this body has not been 'complied with.
2. In view of Article 224(4) of the Constitution bye-elections are to be held within 60 days of the occurrence of a vacancy and this statutory period has long been over. (for emphasis the underline is mine). In the circumstances, I direct the office to issue Schedule for Bye-elections and fix that date of poll as the 7th November, 2009 for all the vacant seats of National and Provincial Assemblies constituencies, namely NA-123 Lahore-VI, NA-55 Rawalpindi-VI NA-271 Kharan-cum- Washukcum-Panjgur, PP-82 Jhang-X, PP-284 Bahawalnagar-VIII."
5. Khawaja Haris Ahmad, the learned counsel for the petitioner contends that the impugned order has no nexus to the notice dated 4-9-2009 issued to the petitioner, it does not address the grounds on which, Sheikh Rashid Ahmad has requested for holding the election in NA-55; if anything was to be decided on 15-9-2009, was the application of Sheikh Rashid Ahmad and therefore, no order could be passed to direct the holding of the elections to the other constituencies; if the CECP had any material, contrary to the reports submitted by the petitioner about the law and order situation in Punjab procured from the relevant quarters and sources, before him justifying the elections, that should have been reflected in the impugned order; the application of Sheikh Rashid Ahmad to hold the elections Was only for the Constituency NA-55 and the petitioner through the notice dated 4- 9-2009 was not called upon to answer for any other Constituency; when the impugned order is considered and analyzed in the light of the past practice, it is incompatible thereto, because earlier the election schedules were setout by the CECP in harmony, understanding and compatibility of the Provincial Government, obviously keeping in view the information provided about the law and order situation of the Province, and even where the schedule had been announced, the elections were postponed on such material (provided) and information exchanged, but this time all the above has not been adhered to and abruptly without hearing the petitioner, the schedule has been given. The learned counsel submits that if the Chief Election Commissioner had desired to pass the order on the basis of the application of Sheikh Rashid Ahmad, then should have addressed that application alone; it is an unfair dealing of the matter because in the notice dated 4-9-2009, the reference for the decision was made about the particular application, on a particular date and time, but instead of disposing of that application restricting to NA-55, the order has been passed for the other constituencies as well; this is extraneously done and the petitioner was not put to a notice and yet the order has been passed for other constituencies. With regard to the constitutional and legal position about the conduct of the elections and the authority of the CECP, Khawaja Haris Ahmad, the learned counsel for the petitioners, has made reference to Article 220 of the Constitution of Islamic Republic of Pakistan, 1973 and states that it is the duty of every executive functionary/authority in Pakistan to assist the Election Commission in the conduct of the elections.
It is submitted that the CECP being alive and conscious of the fact that an election cannot be conducted without the assistance of the Provincial Government/setup and for the purpose to ascertaining if the Province in the given circumstances is in a position to render such a assistance, has been seeking the opinion/view and obviously in this context, the petitioner's point of view was most expedient and relevant; he also submitted that on account of the past practice, a constitutional convention has emerged due to which the opinion of the Province should have been obtained, a the matter could only be resolved on the basis of the cooperation of the Province, which the Province is always obliged and prepared to provide, thus both the CECP and the Government of the Province has to act in complete conjunction with each other for achieving the object of fair and free election. It is though conceded that there is no express law about the consultation of the CECP with the Provincial Government or asking for its opinion, but the emphasis is on the above interpretation of Article 220 of the Constitution and the past practices, and the instances mentioned at pages Nos.3 and 4 of the re-joinder; for the reason that the election has to be supervised in terms of the law and order situation by the Provincial Government, thus over the period it has developed into a convention that before announcing the bye-election schedule, the Provincial Government is consulted. About the emergence of convention, reliance has been placed upon the judgment reported as Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab ul Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324) [at page 439]. Khawaja Haris Ahmad, Advocate has also submitted that Article 224(4) of the Constitution is not a mandatory provision, but a directory and there can be circumstances where the elections cannot be conducted within the period provided by the aforesaid Article, as being beyond the control of anybody/authority, thus in the situation the provisions of Article 254 shall come into play and resultantly, the lapse of time would not invalidate the election if not held within sixty days. In nutshell the case of the petitioner is that it has been deprived of its valuable right of hearing before the CECP, particularly upon the petition of respondent No,3, thus the impugned order dated 15-9- 2009 and the Notification dated 16-9-2009 on the touchstone of the rule of `audi alteram partm' cannot sustain.
6. Responding to the above, Syed Manzoor Gilani, who is one of the candidates for the constituency NA-123 Lahore-VI has made reference to the Charter of Democracy (Para-E) and states that all the parties to the Charter had agreed for free and fair elections by an independent Election Commission/Commissioner; Pakistan Muslim League (N) is one of the major parties to the said document and now in the garb of the alleged volatile law and order situation, intends to wriggle out of the election; this in fact is the negation of the Charter of Democracy, which is being eluded and violated in the guise of law and order situation.
' Before proceeding to examine the matter regarding other propositions involved herein, it may be held that above plea is of a political nature having political implications and fallout, but does not meet the legal submissions propounded by the petitioner's counsel; thus is accordingly discarded.
7. Mr. Ijaz Feroze, the learned counsel for Hafiz Salman Butt, one of the candidates of the same constituency, has stated that the CECP had given sufficient opportunity of hearing to the petitioner, but it failed to avail and asked for adjournment on extraneous and unjustified reasons, therefore, the argument about the infringement of the rule of natural justice is baseless. Some of the other candidates/respondents, present in person, have also made these submissions, which are only rhetoric.
8. Dr. Syed Farooq Hassan, the learned counsel for respondent No,3 has raised the following preliminary objections:--
(i) That the petitioner has no locus standi.
(ii) The petition by the Government is not maintainable, as the petitioner is not an aggrieved party within the purview of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
(iii) There are no allegations in the petition that the order is bad in law; no reasons have been given in the petition on the basis of which the impugned order should be set aside. -
(iv) The petitioner has not been condemned unheard; the petitioner was not entitled to hearing and thus, the issue raised about the violation on the rule of `audi alterm partem' is misconceived.
(v) That on account of the provisions of Articles 220, 222, 224 and 225 of the Constitution, the election cannot be challenged through a writ petition.
(vi) The provisions of Article 224(4) of the Constitution are mandatory in nature and thus the. CECP has no authority to postpone the election. The learned counsel by relying upon Articles 129 and .130 has also argued that the executive authority of the Province vests in the Governor and can only be exercised in the name of the Governor, but in the instant case the Governor of the Punjab has publicly declared that the elections should not be avoided, meaning thereby that he has endorsed the impugned order, with the consequences that contrary to the above the petitioner cannot throw any challenge thereto; in this behalf, Rule 11 of the Punjab Rules of Business has also been relied upon. In support of his contentions that the election cannot be challenged otherwise than in terms of Article 225 of the Constitution, the learned counsel has placed reliance upon the judgment reported as Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396). It is also argued that as per the law laid down in Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others (PLD 1989 SC 166) [at pages 172 & 177 (page 177 being most important), the appeal to the electorate for choosing their representative is the cardinal'rule of the parliamentary democracy; support in this context is also drawn from the dictum reported as Khawaja Muhammad Sharif v. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others (PLD 1988 SC 725). The learned counsel has further submitted that the provisions of Article 224(4) were considered by the Courts in the judgments reported as Syed Qaim Ali Shah v. Atta Muhammad Murri and 6 others (1993 MLD 1127)
(Karachi) and Begum Shireen Bahar Cheema v. Federation of Pakistan through Secretary, Cabinet Division, Islamabad and 14 others (PLD 1993 Lahore 822) and it has been held that the provisions are mandatory and the bar contained in Article 222 read with Article 225 is of a greater nature; in support of his submissions, he has also referred to Durga Shankar Mehta v. Raghuraj Singh and others (AIR 1954 SC 520).
9. Heard. I find it expedient to first deal with the preliminary objections raised by the learned counsel for respondent No,3 (Sheikh Rashid Ahmad). The proceedings on 15-9-2009 have not been fixed by the CECP of his own to seek the assistance of the Chief Secretary, Punjab to know about the law and order situation as was earlier desired by him vide letter dated 12-8-2009 in which the Chief Secretary, Punjab was asked to be personally present before him to brief on the subject on 20-8- 2009, rather from the notice dated 4-9-2009, it is abundantly clear that it is the petition under section 103 of RPA, 1976 filed by Sheikh Rashid Ahmad, which was fixed for hearing on the given date. From the contents of the petition, it is lucid the Chief Secretary, Government of the Punjab, has been made the respondent in the matter; this also is. Evident from the notice as well. Thus, when an order primarily based upon this petition has been passed by the worthy, CECP, in which the petitioner was a party, obviously being aggrieved of the impugned order, it is the Government of Punjab, which shall have the locus standi to file the petition. This also settles the question about the maintainability raised by the respondents' side. Even viewing the maintainability point from another angle (if the Government can file a writ petition), suffice to it say that the expression "any aggrieved party" appearing in Article 199 of the Constitution is quite comprehensive, which should be given the fullest possible meaning and amplitude, as this is the rule for the interpretation of constitutional provisions. Therefore, it embraces an individual, group of persons, legal entity and the authority, as the Provincial Government is, and thus where a grievance comes within the purview of Article 199 of the Constitution, such party (aggrieved party) shall have the right to file the petition against a "person" which has been defined in sub clause (5) thereof. Thus due to the above as well, the objections about' the locus standi and maintainability have no force and are overruled.
10. As far as the argument that the present petition is barred in terms of Article 225 of the Constitution is concerned, suffice it to say that the said Article provides "No election to House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of [Majlis-e-Shoora (Parliament).]". The simple interpretation of the said Article is that it shall attract to those matter's, which pertains to the election process and against which an election petition can be maintained. However, this Article has no application at all if an order has been passed by the CECP while exercising his power upon the petition under section 103 of RPA, 1976 or otherwise fixing the schedule of the election. I am also not convinced that as under Article 222, the Parliament is empowered to make the electoral laws, thus on this basis, the provisions of Article 225 or any part of Article 260 be attracted to declare this petition to be barred or incompetent. Article 51 to which the reference in this context has been made also does not seem to be relevant at all. For the submission that under Article 129 read with Article 130 of the Constitution and Rule 11 of the Punjab Rules of Business, the executive authority of the Province shall vest in the Governor and as the Governor has made a public statement that the election should be held, thus the petition cannot be maintained, I am not impressed if the institution of the present petition is in the nature of the exercise of that exercise of "executive authority" as contemplated by Article 129, rather the present petition only calls in question an order, for which the principal executive officer of the Province and the Secretary of the concerned division can initiate and maintain a legal action, to which the procedure provided in Order XXVII, C.P.C. Shall be applicable. The argument that the allegations and the reasons for challenging the impugned order are not mentioned in the petition, the document has been examined and is found to contain the averments, which are necessary for the purposes of the Petitioner's case. As far as the submission of the respondents' counsel that the appeal to the electorates is to be finally made; it may be held that there can be no cavil and cudgel with the above, but it has 'no relevance with the question about the validity or otherwise of the impugned order, because as and when the valid process of election is commenced, obviously it is the people (eligible voters of the constituency) who shall choose their representative. In the present matter, the proposition alone is, if the impugned order for any reason is legally infirm and/or void.
11. Having disposed of the above preliminary objections, I advert to the question if the provisions of Article 224(4) are' mandatory in nature or otherwise. In this behalf it may be held that this question does not directly arise in this matter, because in some of the constituencies the period of 60 days has already elapsed. Besides, the CECP of his own or even on the information provided by the Province of Punjab on numerous occasions has postponed the elections. The time period of 60 days has not been thus so adhered to by the CECP and I am of the considered view that any such finding given may circumvent the authority of the CECP to postpone the elections in even those cases where undisputedly it is so warranted. Likewise, I am intentionally not expressing my view on Article 254 of the Constitution as admittedly in the main two constituencies such as NA-123 and NA-55, the period of 60 days has already passed and, therefore, the validation clause is duly attracted to these cases. In this petition, I am also not called upon to determine if the order of the CECP when passed in proper exercise of its jurisdiction is justiciable or not. Even Khawaja Haris Ahmad, the learned counsel for the petitioner, has not questioned the exclusive and absolute authority of the CECP to fix the polling schedule, rather has confined only to the violation of the rule of "natural justice".
12. The key question which thus arises for determination in the case is; whether the petitioner was/is entitled to hearing in the matter, if so, such opportunity has been provided to it; and if not, whether the impugned order should be set aside as being void.
From the correspondence between the office of the CECP and the Government of the Punjab as also the various Notifications elaborately mentioned above (reproduced), the contents of Pages No,3 & 4 of the re-joinder, it is abundantly clear that the CECP has been soliciting the opinion of the Provincial Governments for the purpose of ascertaining if the law and order situation in the Province is congenial for the holding of the bye elections and whenever it was reported to be not suiting, these were postponed. This shows and means that due deference and weight age was given by the CECP to such opinion/view. It is not only in the bye-elections of the National or Provincial Assembly's rather for local government bye-elections also, that the opinion was asked for and was acted upon. I thus, agree with the learned counsel for the petitioner that where there is no prohibition and the law on the subject is silent, a constitutional convention due to the above has emerged and developed as per which, the schedule of the bye-elections should be setout by considering and taking into account the opinion/view of the Provincial Government and the material placed by it before the CECP. Consequently, in this context undoubtedly the Provincial Government has the right to be heard in the matter, especially for the reason that the entire burden of the election is to be shouldered by the Provincial Government, such as providing the entire manpower needed for the election and also for ensuring the security measures not only on the polling day, rather throughout the campaign as well, which in these sensitive days may not be an easy job. It should not, however, be construed that if the Provincial Government, for any unfounded and unsubstantiated reasons, has opposed the holding of election, especially while relying upon the alleged precarious law and order conditions, the CECP is still bound by such opinion, rather he can ask for the information from other relevant sources of the State in this behalf, which all (the other relevant sources) under the Constitution are bound to assist him, so that he can take an independent decision. However, obviously as being a highest authority in the State to take the final decision in the matter, it is excepted that the material provided by the Provincial Government (the Province) in which the election is to be held, shall be considered by the CECP by applying his mind. The order impugned unfortunately does not reflect such an application and that too without affording the hearing to the petitioner.
13. The impugned order is being examined from another angle i,e, that the Chief Secretary, Punjab was required to personally appear before the CECP on 20-8-2009 where he had to brief the CECP about the situation. He did appear and according to the Petitioner's version propounded in the re- joinder (the parts whereof have been reproduced above), the petitioner could not commit to any date because of security concern based on the material produced before the CECP and the meeting ended with the broad based understanding between the CECP and the petitioner to the effect that the security situation and the comfort of the Provincial Government for holding election would be reviewed about 15 days after the month of Ramadan. This is supported by an affidavit sworn by the Home Secretary. Whereas in the para wise comments, the outcome of the meeting is stated to be confined only to the indication of the date of election. There seems divergence of the perceptions, the lack of cohesion of understanding and, therefore, it was all the more a reason that the CECP before issuing the schedule should have confirmed from the Petitioner in writing expressing its perception and seeking the indication of the date so that in response either the impression should have been dispelled or the date could be given; anyhow this was not done and yet the petitioner on 15-9-2009 was not given a chance to explain its position.
14. Besides the above, the matter should be analyzed from another important aspect; the impugned order on the face of it, overwhelmingly rather primarily is based and founded upon and passed on the petition brought by Sheikh Rashid Ahmad under section 103 of RPA, 1976, in which petition, the Government of the Punjab has been cited as a respondent of the matter. This petition without any misconception was a lis of an adversarial nature. It is for this reason that the notice was issued to the Government of Punjab to respond to the above petition on the given date and time and it was clearly mentioned that failing which, the matter will be decided in its absence, of course as ex parte. From the contents of the petition, which have been reproduced above, it is manifest that the allegations of mala fide, falsehood and frivolous information provided to the CECP for seeking the postponement of the election were imputed; it was also alleged that all this is based upon the political manoeuvring of the ruling people of the Province; these were/are no doubt serious allegations. Thus, if on account of some exigencies due to month of Ramadan, which are publicly known facts, the request was made that an adjournment should be granted postponing the matter for few days, it should have been allowed, rather insisting that the case should be decided on the same date in an ex parte manner. The first part of the impugned order indicates that without even looking at the contents of the petition under section 103 of RPA, 1976, it was insisted that the election date be given by the petitioner; this obviously was not in consonance with the rule of natural justice; while the second part reflects that the CECP was only concerned about the time, which in the two major constituencies has elapsed. No material seems to have been examined while passing the impugned order, which could controvert the one already supplied by the petitioner. If the petitioner had been given the opportunity, it could have defended the petition as in an adversarial proceedings it had the vested right to do so and also justified its earlier stance. In this manner the rule of natural justice has been infringed.
15. As mentioned above, on the application of respondent No,3, in which the petitioner was arrayed as the respondent, the sufficient chance of hearing should have been given to the petitioner to meet the serious allegations and the case should have been adjourned so as to safeguard the sacred rule of `audi alteram partem'. It may be relevant to mention here that the hearing means the adequate opportunity thereof, keeping in view of the nature of the proceedings and not an eyewash. In the instant case. I find that the worthy CECP has proceeded with undue hurry, which has resulted into miscarriage of Justice. Therefore, I am of the considered view that for holding free, fair, smooth and transparent election on count of constitutional convention mentioned above, the petitioner should have been given sufficient opportunity to place its point of view. Above all, on the petition of respondent No,3, which as mentioned earlier was "adversarial" in nature, it had a vested right to be . Heard which has been fortified, but the schedule pertaining to other constituencies has also been announced.
' In the light of above, the allowing this writ petition, the impugned order dated 15-9-2009 and the Notification dated 16-9-2009 based thereupon, are set aside. The CECP thus shall obviously fix a date for hearing the parties and it is expected that the worthy Chief Election Commissioner of Pakistan shall, after seeking the reply of the petitioner under section 103 of RPA, 1976, considering the material provided by the petitioner about the law and order situation and other aspects, and applying his mind, set out a fresh schedule of the election.