SHAMEEM HUSAIN KADRI, J.--One Ch. Shafqatullah, resident of Chak No, 493. Tehsil Shorkot, District Jhang, has filed a petition under Article 98 of the Constitution of the Islamic Republic of Pakistan. He claims to be a candidate from Constituency No, PP-50 Jhang-VII in the next general elections to be held in the country. He has complained about alteration made in the delimitation of this constituency. By this petition challenge has been thrown to the validity of the order made by the commission being in excess of jurisdiction, and mala fide against the Commission has also been alleged.
2. The Delimitation Commission notified the preliminary proposals for different constituencies for the country including the Province of Punjab. Eighty-two seats were assigned to the province for the National Assembly with three seats reserved for women. The provincial Assembly was allocated 180 seats out of which six seats were reserved for women. The Delimitation Commission invited objections and suggestions by the 16th of May 1970. In the preliminary notification Constituency No, PP-50 Jhang VII included Shorkot Tehsil, excluding Garh Maharaja Town and Local Councils Nos, 104, 106 to 116 of Jhang District. Constituency No, PP-70 Lyallpur XIX in this preliminary list included the Cantonment areas of Toba Tek Singh Tehsil, Per Mahal Town of Toba Tek Singh Tehsil and Local Councils Nos, 196 to 202 and 204 to 210 of Tehsil Toba Tek Singh, District Lyallpur.
3. According to the petitioner, nobody made any objecion or suggestion to the Commission by the prescribed date but the Commission in the final delimitation of these two -constituencies, while issuing notification on the 25th of June 1970, altered the area of these two constituencies by including Shorkot Cantonment of Shorkot Tehsil in constituency No, PP-50 Jhang VII which was originally proposed in constituency No, PP-70 Lyallpur XIX and the area proposed for the former constituency was added to the latter. He complains that on account of this amendment, nine Chaks of -Tehsil Toba Tek Singh District Lyallpur have been included in Constituency No, PP-50 Jhang VII, the total voting strength of these nine chaks being 8,067. According to him Shorkot Tehsil of Jhang District has been divided into two ,constituencies, namely PP-50 Jhang VIE and PP-51 Jhang VIII. On account of the inclusion of Shorkot Cantonment in ,Constituency No, PP-50 Jhang VEI, voting strength of these two constituencies has been altered considerably. The voting -strength of Constituency No, PP-50 Jhang VII has accelerated to 91,000 votes while the voting strength of Constituency 'No, PP-51 Jhang VIII remained only up to 84,000.
4. Instead of issuing Notice, we sent for Raja Muhammad Anwar, standing counsel for the Central Government. He handed-over to him a copy of the petition and directed him to receive instructions from the Commission so as to apprise this Court about its position regarding the specific allegatiod of malice alleged by the petitioner. Learned Standing counsel ,contacted the Central Law Secretary and made a statement before us emphatically denying the alleged malice. He stated that he received this information from the Central Law Secretary who has contacted the members of the Commission since he himself could not contact the Chairman or the members of the Commission who were not available in Islamabad. We therefore did not consider it necessary, to have a written denial from the Commission because Mr. Munir Ahmad learned counsel appearing on behalf of the petitioner,"changed his position and submitted that the word, mala fide, in the petition was mentioned without imputing any motive and he used this word in the petition after gathering a sense to that effect, from the conversation which he had with his client before filing the petition. We find that in paragraph No, 14 of the petition, it is mentioned that alteration made by the Delimitation Commission in the two constituencies was ultra wires, in excess of jurisdiction and mala fide on the following grounds. In Ground (D) it has been mentioned "voters of Shorkot Cantonment area are strangers to the petitioner. That area had all along been included in Lyallpur District and formed a part and parcel of the Constituency of Lyallpur District. This has maliciously been got done by some interested person" and Ground (E) mentions "as the -order issued is mala fide, its remedy can be sought under writ jurisdiction and the writ petition is, therefore, being tilled". Ground (0) clearly raises an allegation- of malicious order passed at the instance of some interested person. The order of the Commission having been specifically challenged on the allegation of malice could be interfered with since fraud and malice vitiates the most solemn proceedings. The petitioner after making such wild allegation against the Delimitation Commission, which consists of a Judge of the Supreme Court as its Chairman and two Judges of High Courts in the East and the West Wing, has been unable to substantiate his allegation. Learned counsel for the petitioner tried to wriggle out of this allegation by saying that all this has-been done without attributing any motive. There can hardly be any substance in his submission. In any case plea of mala fide with this attitude of the learned counsel automatically falls to the ground.
5. Examining the next allegation made in the petition,. namely, the excess of jurisdiction, we refer to Article 8 of the. President's Order No, 3 of 1970. Clause (3) of Art. authorises the Commission to publish in the official Gazette preliminary list of territorial constituencies after making enquiries,. examining records which the Commission may consider necessary for that purpose and such representations which may have been received in this behalf. The Commission is required to issue Notice for inviting objections and suggestions to the proposed constituencies within a specific period. But there is no dispute so far as this procedure is concerned. The peti-tioners, however, has taken exception to the action of the Commission in altering the Delimitation of the Constituencies- mentioned above in violation of sub-Article (4) of Article & His grievance is that although there were no objections and suggestions filed by any one for the alteration of these constituencies, the change in the area of the constituencies by the Commission was in excess of its jurisdiction, since such a change could only be made after hearing and considering the objections and suggestions, if any, made. The argument is fallacious. It does not deprive the Commission to alter the preliminary list published by it even if there is no objection or suggestion raised, for the Commission is competent to amend, alter or modify the preliminary list as it thinks fit or necessary.
The only embargo placed on the Commission is to hear the objections and suggestions, if they are raised. The scheme of this order, and, in particular, sub-Article (2) of Article 8 empowers the Commission to Delimit the Constituencies keeping in view administrative convenience, the compactness of a constituency and the population in the constituencies so far as practicable. The petitioner could certainly have a grievance if he had raised an objection or suggestion and the Commission had passed the order of Delimitation of the constituency without hearing him for it is imperative for the Commission to hear and consider objections and suggestions. Failure to do so would certainly vitiate the delimitation made by the Commission by virtue of sub-Article (4) of Article 8 of the order and the principle of audi alteram partem would also come into play. But no exception can be taken to the alteration made in the Delimitation of the constituencies if the Commission considered it necessary to do so for various reasons, namely, the administrative convenience etc., as discussed above.
6. The learned standing counsel of the Central Government raised an objection that the petitioner could not challenge the order of the Delimitation Commission under Article 98 of the Constitution, the Presidential Order No, 3 being of supra-Constitutional nature. He relied on Zafar-ul-Ahsan v.
The Public Prosecutor of Pakistan and Muhammad Ayub Khuhro v. Pakistan through the Ministry of Interior Government of Pakistan and two others in support of his submission. He invited our attention to Articles 3 and 9 of the Order which according to him is the ouster of jurisdiction of any Court for challenging the order of the Commission. We, however, do not agree with him. The order of the Commission could certainly be challenged under Art. 98 of the Constitution if the order is maliciously made jeopardising the interest of citizen and if such an order is made in excess of the jurisdiction of the Commission. For instance, if the delimitation is ordered without hearing the petitioner bad he raised any objection or suggestion within the prescribed period. In our view, Article 3 of the President's Order No, 3 of 1970 does not take away our extraordinary jurisdiction under Article 98 of the Constitution, which has been saved by the Provisional Constitution Order by the President.
7.For the foregoing reasons, we are of the view that no case for interference under Article 98 of the Constitution is made out, We have already dismissed the petition by a Short Order dated 13-8-1970 and these are the reasons for that order. The petition having been dismissed, we leave the parties to bear their own costs. PLD 1960 SC 113 PLD 1960 SC 237