' TARIQ JAVAID, J.---This order shall dispose of the instant writ petition as well as W.P.No,4397 of 2010 (Muhammad Asghar Khan v. Jamshad Ahmad Khan Dasti and another), as common question of law and fact is involved therein.
2. The petitioners have challenged the acceptance of nomination papers of respondent No,2, who is said to have been disqualified vide judgment passed by the Hon'ble Supreme Court in C.P. No, 287 of 2008. The petitioner in W.P.No, 3943 of 2010 did not file any objections before the Returning Officer whereas the petitioner in W.P.No, 4397 of 2010 raised objections before the Returning Officer (NA-178 Muzaffargarh-III), which were rejected.
3. It is maintained by the learned counsel for the petitioners that under the above said judgment the respondent No,2, for all practical purposes stands disqualified to contest the elections as a definite finding with regard to his character has been recorded by the Hon'ble Supreme Court in the said judgment. The relevant portion is as under:-- "14. The Parliament of any country is one of its noblest, honourable and important institutions making not only the policies and the laws for the nation but in fact shaping and carving its very destiny. And here is a man who being constitutionally and legally debarred from being its member, managed to sneak into it by making a false statement on oath and by using bogus, fake and forged documents polluting the piety of this pious body. His said conduct demonstrates not only his callous contempt for the basic norms of honesty, integrity and even for his own oath but also undermines the sanctity, the dignity and the majesty of the said august House. He is guilty, inter- alia, of impersonation posing to be what he was not i,e, a graduate. He is also guilty of having been a party to the making of false documents and then dishonestly using them for his benefit knowing them to be false. He is further guilty of cheating---cheating not only his own constituents but the nation at large. However, on account of his confessing repentance shown through the resignation tendered by him and also on account of the fact that we are not called upon, in these proceedings, to punish him for his above-noticed acts, we have decided to exercise restraint in the said connection. This would, however, not preclude anyone else from moving in the matter if it is so desired. And we may add that, unfortunately, he does not appear to be the only one being guilty as afore-said as just today alone, two others, namely Nazir Ahmed Jatt, M.N.A. From Vehari (a respondent in Civil Appeal No,1673 of 2008) and one Muhammad Ajmer, M.P.A. From Faisalabad (a petitioner in Civil Petition No,2049-L of 2009) who also stood accused of having contested their respective elections on the strength of fake and bogus degrees and "SANADS" had also elected not to defend the said allegations; had chosen not even to appear before us in person and had instead tendered their respective resignations from their respective seats. And what makes it a matter of further concern to us is that the matter does not end at these three as we also have more cases coming up on our cause list carrying similar allegations against some other legislators.
"17. A perusal of the relevant constitutional and statutory provisions would reveal that a Returning Officer appointed under section 7 of the Representation of People Act, of 1976, is the key-man in the entire exercise of conducting an honest, a just and a fair election in accordance with law, as commanded by Article 218 of the Constitution. Needless to add that the first and the most crucial step towards the attainment of the said commanded goal is to ensure that no person who is not constitutionally and legally qualified to contest any such election is allowed to enter the arena. And for the said purpose, the provisions of section 14 of the said Act clothe the said Officer with immense powers to conduct such enquiries as he deems fit to make sure that only the qualified persons are allowed to contest an election and no ineligible intruders are permitted to participate in the same. A reference especially the subsection (3) of the said section 14 would demonstrate that in order to carry out the said process of screening, the Returning Officers have not been left at the mercy of anyone and he is obliged to move in the matter of his own motion without sitting there and waiting for an objector to come forward so that he could reject the nomination pipers of an un-qualified person. The relevant provisions of the said subsection read as under:-- "(3) The-Returning Officer may, either of his own motion or upon any objections, {either by an elector or} {by any person referred to in subsection (1)}, conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that-
(a) the candidate is not qualified to be elected as a member;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(c) any provision of section 12 or section 13 has not been complied with {or submits any false or incorrect declaration or statement in any material particular}; or
(d) the signature of the proposer or the seconder is not genuine; (emphasis and under-lining has been supplied).
18. In the present case and the like, we are not satisfied with the performance of the Returning Officers who appear not to have taken any steps at all to determine the eligibility of the concerned candidates or to determine whether the said candidates were actually possessed of the acclaimed qualifications. They need to be more careful in future."
4. It is contended on behalf of the petitioners that at the time of filing of the nomination papers they objected to the candidature of the said respondent on the basis of the judgment passed by the Hon'ble Supreme Court, which was turned down. The reasons given for rejection of the objections filed by the writ petitioner in W.P. No, 4397 were as follows:-- "2. Applicant did not study of judgment passed by the honourable Supreme Court of Pakistan in case "Civil Petition No, 287 of 2008" Nawabzada Iftekhar Ahmed Khan versus Chief Election Commissioner of Pakistan and others that the honourable Supreme Court of Pakistan in his judgment did not suggest any punishment to Jamshaid Ahmed Dasti, but direction was issued to the Election Commission of Pakistan to conduct the bye-Elections of the seat vacated by Jamshaid Ahmed Dasti in accordance with law. "As the petition is converted into an appeal and allowed as a result whereof all the orders and decisions rendered in the matter by the concerned authorities and even the impugned judgment of the Lahore High Court are set aside as being of no legal consequences. It may be added that legal questions raised in this petition are being left unanswered as having been rendered only of academic nature."
3. The punishment awarded by the Court of Mr. Ijaz Mehmood Choudhry, District and Sessions Judge, Muzaffargarh in case F.I.R. No, 892 of 2001 was suspended by Lahore High Court Multan Bench, Multan and criminal appeal is pending before the honourable High Court.
4. That decision on case Election Appeal 6/A of 2010 titled as Mian 1mran Masood v. Returning Officer and others did not apply to the present case because said Judgment was passed by Election Tribunal.
5. But in case Nawabzada Iftikhar Ahmed Khan v. Chief Election Commissioner, the Honourable Supreme Court of Pakistan did not disqualify Jamshaid Ahmed Dasti to contest the further Election and not awarded any punishment.
' Now the objection raised by Nawabzada Iftikhar Ahmed Khan is over ruled and Nomination Paper of Jamshaid Dasti is hereby accepted."
5. Admittedly, Sahibzada Iftikhar Ahmad Khan filed an appeal against the rejection of his objections, which was subsequently withdrawn by him.
' However, the writ petitioner in W.P.No,4397 of 2010 has filed the petition against the rejection of his objections on the ground that under section 14 (5) of the Representation of the People Act, 1976 the petitioners have no right to appeal, therefore, this writ petition is competent. It was argued that in the light of the above judgment the petitioner was not qualified to contest the elections and his candidature was hit by Article 8-D (1) (g) as well as under. Articles 62 and 63 of the Constitution of the Islamic Republic of Pakistan, 1973 and section 78 of the Representation of People Act, 1976. On the basis of various judgments passed by the Hon'ble Supreme Court reported in case of Asif Ali Zardari v. The State (PLD 2008 Karachi 310, 313, 429, 487). It was argued that ordinarily High Court does not interfere in the election process in the exercise of its constitutional jurisdiction. However, in cases where there is no alternate remedy available, the petitioner can always invoke the constitutional jurisdiction and bar contained in section 225 of the Constitution shall not be operative. Reliance has vehemently been placed on Federation of Pakistan through Secretary Cabinet Division, Islamabad and others v. Mian Muhammad Shahbaz Sharif and others (PLD 2009 Supreme Court 237). It has been argued that in cases where the aggrieved party has no alternate remedy then the bar contained in Article 225 of the Constitution, where the facts are not disputed, shall not be operative and the constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 will be available to the High Court. The relevant portion of the, judgment is re-produced as under:- "In such circumstances we are of the considered view that the writ petition before the Lahore High Court, Lahore filed by respondent No,5 was maintainable in law. The contentions raised by learned Advocate General, Punjab being without substance are therefore repelled. Even the doctrine "Semper Proesumitur Pro negante" (Presumption is always in the favour of the one denying or in favour of the negative) pressed into service by learned Advocate General, Punjab would not be attracted in the present case for the simple reason that there was no denial. Even otherwise the facts were borne out from the record. The contentions raised on behalf of learned Advocate General, Punjab suggesting the filing of a writ of quo warranto by respondent No,5 would amount to negate the provisions of subsection (5-A) of section 14 of the Representation of the People Act, 1976 as respondent No,5 has placed the information regarding inherent disqualification of respondent No,1 before the Election Tribunal prior to completion of the election process. Besides the suggestion being unreasonable and contrary to the rule of advancement of cause of justice if accepted, was bound to encourage multiplicity of litigation which in a way tantamounts to denial of justice."
6. It was also argued that where the impugned order is patently illegal it cannot be said that a statute has prescribed a remedy, as such the High Court is debarred from exercising its constitutional jurisdiction. Reliance was placed on Ahad Sharif alias Muhammad Ahad and another v. Javed Tariq and others (2006 SCM R 1356 and 1713). The learned counsel for the petitioner further argued that under the dictum laid down by the Hon'ble Supreme Court, in Mian Muhammad Shahbaz Sharif's case (PLD 2009 Supreme Court 237) supra and Lt. Col. Farzand Ali and others v.
Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 Supreme Court 98) the petitioner was entitled to the writ of quo warranto even before the respondent has entered into office. In support of this argument reliance has also been placed on Basanta Lal v. Comrs. For the Port of Calcutta and others (AIR 1951 Calcutta 460) and Dr Mobashir Hassan and others versus Federation of Pakistan and others (PLD 2010 Supreme Court 265).
7. The arguments advanced by the learned counsel for the petitioners are not convincing. Their reliance on PLD 2009 Supreme Court 237 is also of little help to them for the reason being firstly, that if every elector is said to have a right to raise objections and then file writ petitions then shall give rise to multiplicity of litigation. The law makers, appear to have rightly allowed an elector to raise objections but, without any right or interest therein. The right of appeal is given only to the candidates who raise objections to the acceptance or rejections of nomination papers filed by them or by their competitors, as the case may be. Secondly, the reliance on PLD 2009 Supreme Court 237 could not be placed as the same judgment was reviewed by the larger Bench of the Hon'ble Supreme Court, soon after its passing through PLD 2009 Supreme Court 531 and thirdly, PLD 2009 Supreme Court 237 has been passed without having taken into consideration the law relating to the writs of quo warranto and mandamus. It would be more advantageous to follow the age old settled principles for the development of laws and application thereof.
8. Learned counsel appearing on behalf of the Election Commission maintained that the Election Commission has already issued a circular dated 6th May 2010 whereby it has been unequivocally maintained that the Supreme Court's judgment passed in C.P. No, 287 of 2008 Nawabzada Iftikhar Ahmad Khan v. Chief Election Commissioner, Islamabad and others shall be implemented in letter and spirit. In view of the statement made by the learned DAG and Standing Counsel there hardly appears to be any ground to agitate the question being raised in these petitions.
9. In the above judgment it was observed by their lordships in the Hon'ble Supreme Court that their lordships are not satisfied with the performance of the Returning Officers, who did not appear to have taken steps at all to determine the eligibility of the concerned candidates or to determine whether the said candidate was actually possessed of the requisite qualifications. They were also warned to be careful in future. In response to the said observation the Election Commission appears to have issued circular dated 6th May 2010, for implementation of the Supreme Court's judgment. The Election Commission being Constitutional body is mandated under the Constitution to implement the judgments passed by the Hon'ble Supreme Court in letter and spirit. The petitioners have been seeking constitutional remedy instead of approaching the Election Commission. Since an information with regard to the ineligibility of the respondent has already been laid before the Election Commission through the judgment passed in C.P.No,287 of 2008, I do not think any more direction is required. All Institutions are bound to implement the judgments of the Hon'ble Supreme Court.
10. Adverting back to the grievance of the petitioner the law relating to the filing of nomination papers is contained in section 14 of the Representation of the People Act, 1976. For resolution of the present controversy the relevant provisions are section 14 (1) (3) and (5) which are being re- produced as under:-- "14. Security .---(1)The candidates, their election agents, (the proposers and seconders and one other person authorized in this behalf by each candidate) (and an elector who has filed an objection to the nomination of a candidate, may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under section 12: (Provided that an elector who has filed an objection to the nomination of a candidate shall only attend the scrutiny of the nomination paper of that candidate.)
(3) The Returning Officer may, either of his own motion or upon any objection (either by an elector or) by any person referred to in subsection (1)} conduct such summary ,enquiry as he may think fit and may reject nomination paper if he is satisfied that-
(a) the candidate is not qualified to be elected as a member; {(b) the proposer or the seconder is not qualified to subscribe to the nomination paper; }
(c) any provision of section 12 or section 13 has not been complied with (or submits any false incorrect declaration or statement in any material particular); or {(d) the signature of the proposer or the seconder is not genuine;} Provided that:--
(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper; 61(1a) the Returning Officer may, for the purpose of scrutiny, require any agency or authority to produce any document or record;) {(5)A candidate, may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination paper of the candidate to the Tribunal constituted for the constituency to which the nomination relates and consisting of not less than two nor more than three Judges of the High Court nominated by the Commissioner, with the approval of the President; and such appeal shall be summarily decided within such time as may be notified by the Commission and any order passed thereon shall be final.}
11. A bare perusal of the above section shows that the candidate, who is contesting elections has a right to raise the objections on the eligibility of the candidate and/or acceptance of the nomination papers whereas any other elector can raise objection to the acceptance of nomination papers of any candidate. However, proviso to section 14 says that an elector, who has filed an objection to the nomination of a candidate is only permitted to attend the scrutiny of the nomination papers of that candidate meaning thereby if any voter or elector raises any objection his function, as soon as he has laid the information before the Returning Officer, comes to an end. Thereafter he is not supposed to be a party to the proceedings with regard to his objections and it will be an issue between Returning Officer and the candidate, who has raised any such objections himself or on whose behalf the objection has been raised. The role of an elector comes to an end as soon as he has laid information before the Returning Officer, which means that he has not been conferred with any right. On this analogy it cannot be said that he is an aggrieved person within the meanings of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, which reads as under:-- "199. Jurisdiction of High Court.-- (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,---
(a) on the application of any aggrieved party, make an order:--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order.
(I) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II.
12. Relying upon the above said article of the Constitution, the learned counsel for the petitioner maintained that a writ of quo warranto is the only remedy available to the petitioner. According to Mr. A.K. Brohi, in his most celebrated book, Fundamental Law of Pakistan, opines that writ of quo warranto is issued upon an information which may be lodged against a person who claims or usurps "Office/Franchise or liberty, and upon such information being laid, the Court will inquire by what authority the person who claims or has usurped the office, supports his claim." Mr. A.K. Brohi, quoted the summing up by Lord Reading from the leading case of Rex versus Speyer (1916)1 K.B.D.
595 as follows:-- "In early times the writ of quo warranto was in the nature of a writ of right for the king against any subject who claimed or usurped any office, franchise, or liberty, to enquire by what authority he supported his claim in order to determine the right."
' According to Mr. A.K. Brohi the essential thing in the words of Lord Reading is:-- "Whether there has been usurpation of an office of a public nature and an office substantive in character that is an office independent of title."
13. There is a long list of authorities wherein the above said rule of law has been followed and it has been held that in case of writ in the nature of mandamus the person invoking the constitutional jurisdiction of this Court must be an aggrieved person whereas in case of invoking the constitutional jurisdiction for the issue of writ in the nature of quo warranto he does not need to be an aggrieved person. The reference may be made to the case of Masudul Hassan versus Khadim Hussain and another (PLD 1963 Supreme Court 203) wherein A.R.Cornelius, C.J. Observed as under:- "In the first instance, it seems to me that the writ as prayed was not competent. The principles applicable to a writ of mandamus are well-known. They are set out in the monograph on the subject of mandamus in the 11th volume of Halsbury's Laws of England in the following words:-- "(i) An applicant for an order of mandamus must show that there xesides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought.
(ii) In order that a mandamus may issue to compel something to be done under a statute, it must be shown that the statute imposed a legal duty.
(iii) It is only in respect of a legal right that mandamus will issue.
(iv) The legal right to enforce the performance of a duty must be in the applicant himself, The Court will therefore only enforce the performance of statutory duty by public bodies on the application of a person who can show that he has himself legal Right to insist on such performance."
' The ground put forward by the petitioner Masud-ul-Hasan was merely that he was himself an elected member and that there was an election impending for the chairmanship of the Town Committee and if Khadim Husain remained as a member, this would be "likely to materially and adversely affect the forthcoming election of the Chairman and thereby wrongfully injure the petitioner's right." The interest of the petitioner was at the best of an indirect nature. Merely as a member of the Town Committee, there did not reside in him a legal right to demand that the Collector should remove another member of the same Committee. There is here no legal and specific right vested in Masud-ul-Hasan to enforce the removal of Khadim Husain, and it seems to me that was a sufficient ground upon which the writ could have been refused.
' But, that was not the only relief which Masudul Hasan could claim. He could have moved for an order in the nature of a writ of quo warranto with equal efficacy. Referring again to the monograph on Crown Proceedings in Volume II of Halsbury's Laws of England, the now obsolete writ of quo warranto was in its nature an information lying against a person who "claimed or usurped an office, franchise or liberty" and was intended "to enquire by what authority he supported in order that the right to the office may be determined." It was necessary for the issue of the writ that the office should be one created by the State, by charter or by statute, and that the duty should be of a public nature. It was necessary also that the respondent should be in possession of the office."
14. It is crystal clear from the above judgment that for invoking constitutional jurisdiction of this Court for the issue of writ of mandamus the petitioner must, be an aggrieved person. However, in case of quo, warranto he need not be an aggrieved person but it is imperative that the person against whom a writ is sought to be issued must be incumbent of a public office. Here in the present case as far as the question relating to the grant of writ in the nature of mandamus is concerned, the petitioners are not aggrieved persons. They are not candidates. The petitioner in W.P.No,4397 of 2010 filed objections under section 14 (5) of the Representation of the People Act, 1976 whereas the petitioner in W.P.No,3943 of 2010 has not filed even objections. However, in view of the proviso added to subsection 1 of section 14 of the Representation of the People Act, 1976, the role of an elector come, to an end as soon as he has laid the information before the Election Commission. He has no more role to play nor he can be deemed to be an aggrieved person. The only aggrieved person is candidate, who admittedly filed appeal against the rejection of his objections and subsequently withdrew the same. Therefore, the petitioners have no locus standi as far as issuance of writ in the nature of quo warranto is concerned. So far the election has not been held. The respondent No,1 is not holding any office wherefor he can be asked to show the warrant under which he is exercising the authority. The above said principle has been followed in another celebrated judgment of the Hon'ble Supreme Court reported as Lt. Col. Farzand Ali and others v.
Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 Supreme Court 98) and the learned counsel for the petitioners have also heavily relied upon it, which is re-produced as under:-- "I regret my inability to accept this contention for more than one reason. Firstly, because this would be allowing a person to continue to remain a member of an Assembly even though Article 103 of the Constitution says that he cannot. Secondly, because, the dispute raised after an election is not, a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a Member of an Assembly. An election dispute is a dispute raised by a voter or a defeated candidate in his individual capacity under the Statute. It determines the private rights of two persons to the same office but a proceeding for an information in the nature of quo warranto is invoked in the public interest. The latter seeks to determine the title to the office and not the validity of the election. These are two distinct and independent remedies for enforcing independent rights, and the mere fact that the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for properly scrutinizing a person's right to be enrolled as a voter or his right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still continuing. Indeed a writ of quo warranto or a proceeding in the nature of an information for a quo warranto, unless expressly barred by some Statute, is available precisely for such a purpose."
15. The same principle has been followed in Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 Supreme Court 52), which is reproduced as under:-- "12. With regard to the first objection it may be noted that under Article 199 (1)(a) the constitutional jurisdiction of the High Court can be invoked by an aggrieved person which denotes a person who has suffered a legal grievance, against whom a decision has been pronounced which has wrongfully deprived him or wrongfully refused him something which he was legally entitled to. It is also the requirement that the person invoking the constitutional jurisdiction under Article 199 of the Constitution has to establish that any of his legal or fundamental right guaranteed under the Constitution has been violated resulting in legal loss: It is, however, to be noted that respondent No,1 has approached High Court of Balochistan by way of a constitutional petition wherein he had prayed for issuance of a writ of quo warranto against the appellant. A writ of the quo warranto is in the nature of laying information before a Court, against a person who claimed and usurped an office, franchise or liberty, requesting for holding an enquiry to enable him to show the authority under which he supported his claim of right to the office, franchise or liberty. Its object is to determine the legality of the holder of a statutory or constitutional office and decide whether he was holding such, office in accordance with law or was unauthorizedly occupying a public office.
Where a person prays for a writ of quo warranto the Court would be under an obligation to enquire whether the incumbent is holding the office under the orders of competent authority and also to examine whether he would be legally qualified to hold the office or to remain in the office. For issuance of a writ of quo warranto the person invoking the jurisdiction of the High Court under Article 199 of the Constitution is not required to fulfil the stringent conditions required for bringing himself within the meaning of an aggrieved person. Any person can move the High Court to challenge the usurpation or unauthorized occupation of a public office by the incumbent of that office and he is not required to establish his locus standi to invoke the constitutional jurisdiction under Article 199 of the Constitution in a manner as generally required by the said Article."
16. The same principle was followed in Province of Balochistan through Secretary Excise and Taxation Department, Civil Secretariat, Quetta and 2 others v. Murree Brewery Company Ltd.
Through Secretary (PLD 2007 Supreme Court 386), which is reproduced as below:-- "It is sine qua non for invoking the jurisdiction of the High Court through a Writ Petition, under the clauses referred to above and under which the instant writ comes, that the petitioner must be an aggrieved person and he must have a locus standi for availing such a jurisdiction. The word aggrieved or aggrieved party has not been defined in the constitution, however, from time to time it has been interpreted by the superior Courts in the given circumstance of the case."
17. The resume of the above said authorities shows that the under lying principle having been followed by the superior Court is that the petitioners cannot be granted relief unless they are aggrieved persons within the meanings of Article 199 and that in case of quo warranto the person against whom the relief is being claimed must be holding an office of public nature. The present petitioners are neither aggrieved persons with the meanings of Article 199 nor the respondent (Jamshed Ahmad Dasti) is holding any office of profit, therefore, the present writ petitions are not maintainable. Dismissed in limine with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.