JUDGMENT EJAZ AFZAL KHAN, J. --- This petition for leave to appeal has arisen out of the judgment dated 26.08.2013 of a Division Bench of the Peshawar High Court, Peshawar whereby it an receipt an information from the PSO to the Chief Justice, Peshawar High Court, Peshawar that female voters in NA-5 Nowshera and NA-27 Lakki Marwat have been denied their right of franchise, held as under:- "In view of the facts and circumstances and the grave nature of the subject-matter and because reportedly some of the supporters and agents of one or other candidates were instrumental, creating the present impass and because after holding enquiry by the worthy Election Commission of Pakistan, it has to decide that on how much female polling stations re-polls has to take place thus, we hold that till the result of the re-polls is received by the Election Commission of Pakistan in a compiled and consolidated shape, the present result of the election held in both the constituencies NA-5 Nowshera and NA-27 Lakki Marwat shall neither be announced nor the same be notified in the official Gazette. It is further held, that in case after holding enquiry by the worthy Election Commission of Pakistan, those who are found involved in this detestable act, denying fundamental rights of the female voters, may be booked under the above penal provisions, cited earlier, and be prosecuted and brought to justice accordingly.
In the end, we would appreciate the role of the electronic media who immediately highlighted this detestable act on the part of unscrupulous elements, enabling this Court to take a timely action which, in our opinion, would have a great impact on the future course of action in the election process".
2. Learned counsel appearing on behalf of the petitioners contended that the High Court in exercise of its Constitutional jurisdiction was not supposed to enter into the realm of factual controversy and give any opinion about the role of any candidate in the absence of any material before it. The learned counsel next contended that the Election Commission has the power to declare the poll void in any constituency, if it after such inquiry as it may deem necessary, is satisfied that by reasons of grave illegalities or violation of the provisions of the said Act or the rules made thereunder, the poll ought to be declared as such. Such power, the learned counsel added, could be exercised even after the publication of the name of the returned candidate before the expiration of sixty days after such publication. The High Court, the learned counsel maintained, under no circumstances could meddle with the affairs of election in exercise of its Constitutional or Suo Motu Jurisdiction where adequate and efficacious remedy can be had from the Commission or the Tribunal constituted under Article 225 of the Constitution. The learned counsel by winding up his argument submitted that when Article 199 of the Constitution of Pakistan does not provide for exercise of Suo Motu jurisdiction, an order passed in exercise of such jurisdiction shall be coram non judice.
3. Learned counsel appearing on behalf of the respondents argued that where female voters were denied one of their fundamental rights of franchise, the High Court on getting an information about it was well within its rights to step in and pass an appropriate order. The learned counsel to support his contention placed reliance on the case of "High Court Bar Association and others v.
Government of Baluchistan through Secretary, Home and Tribal Affairs Department and six others"
(PLD 2013 Baluchistan 75). The learned counsel also placed reliance on the cases of "Mian Muhammad Nawaz Sharif and others v. Muhammad Habib Wahab-al-Khairi and others" (2000 SCM R 1046), "Multiline Associates v. Ardeshir Cowasjee and others" (1995 SCM R 362), "Mst. Zubaida A. Sattar and others v. Karachi Building Control Authority and others" (1999 SCM R 243) and "Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others" (1999 SCM R 2883). The learned counsel next contended that where fundamental rights of the citizens are trampled over, a High Court in exercise of its Suo Motu Constitutional Jurisdiction could take cognizance of the matter and pass an appropriate order redressing the grievance of the persons aggrieved. The expression application used in Article 199 of the Constitution of Pakistan, the learned counsel maintained, not only includes an application in writing but also the one made orally.
4. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties.
5. Before we appreciate the contentions of the learned counsel for the parties, it is worthwhile to see as to what is the scheme of the Constitution, who has been assigned the duty of holding elections fairly, justly, honestly and in accordance with law, and what remedial measures could be taken by the body performing such duty, if it is marred by grave illegalities and violation of the provisions of the Act. The relevant provision of the Constitution is Article 218 (3) which reads as under:- "21 8 (3).---It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against." he above-quoted provision shows that it is duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure election is conducted honestly, justly, fairly and in ice with law. Nor only that it is also one of its duties against corrupt practices affecting the fairness of the election. The other instrument which provides for ensuring fair election is the Representation of Peoples Act. Sections 103, 103-A and 103-AA of the Act are relevant is this context which read as under:--- "103.---Commission to ensure fair election, etc.---Save as otherwise provided the Commission may---
(a) stop the polls at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion, intimidation and pressures, prevailing at the election:
(b) review an order passed by an officer under this Act or the rules, including rejection of a ballot paper and
(c) issue such instructions and exercise such powers, and make such consequential orders, as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly, and in accordance with the provisions of this Act and the rules.
103A.---Power of Commission to punish for contempt.---The Commission shall have the same power as the High Court has to punish any person for contempt of Court and the Contempt of Court Act, 1976 (XLIV of 1976), shall have effect accordingly as if reference herein to a "Court" and to a "Judge" were a reference, respectively, to the "Commission" [and the Commissioner or, as the case may be, a] member of the Commission].
103AA.---Power of Commission to declare a poll, void.---(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of the record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission may make a declaration accordingly and, by notification in the official Gazette, call upon that constituency to elect a member in the manner provided for in Section 108.
(2) Notwithstanding the publication of the name of a returned candidate under sub-section (4) of Section 42, the Commission may exercise the powers conferred on it by sub-section (1) before the expiration of sixty days after such publication; and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribunal.
(3) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter VII, regulate its on procedure.]"
6. A perusal of the above-quoted provisions would unmistakably indicate that it is the domain of the Election Commission to declare a poll void in any constituency if it, after holding such summary inquiry as it may deem necessary, is satisfied that by reason of grave illegalities or violation of the provisions of the Representation of the Peoples Act or the rules made thereunder, the poll ought to have been declared void and then call upon that constituency, by notification in the official Gazette, to elect a member in the manner provided for in Section 108. It is well worth mentioning that this power can be exercised by the Commission before the expiration of 60 days after the publication of the name of the returned candidate. After the expiration of 60 days, the election of the returned candidate shall be deemed to become final subject to a decision of a Tribunal constituted under Article 225 of the Constitution. The remedy provided by the provisions of the Act and the Constitution mentioned above are not only adequate but efficacious as well by all means.
The High Court in such a situation could not encroach upon the domain of the Election Commission, nor could it arrogate to itself a power or jurisdiction which has not been conferred on it by the Constitution or the Act mentioned above. The worst of it is that it has never been the case of the respondents that the Election Commission at any stage failed or refused to perform its legal and Constitutional duty which necessitated the exercise of Constitutional jurisdiction by the High Court. The High Court thus, over stepped the parameters laid down by the Constitution and the law.
It is quite obviously a case of exercise of jurisdiction not conferred on it by the law and the Constitution. It be noted that no Judge of a High Court or the Supreme Court is robed, crowned and sceptered as a King to do whatever suits his whim and caprice. In all eventualities, he is bound to abide by and adhere to the law and the Constitution. This is what he has undertaken in his oath while being sworn in as a Judge or Chief Justice of a High Court. Yes, in certain cases a High Court on receipt of a letter or an application of an aggrieved person can convert it into a Constitutional petition and exercise its Constitutional jurisdiction but not in the matters where the Constitution and the law of the land have provided a forum and a machinery for their settlement. Any deviation from such course is opt to lead the country to anarchy rather than rule of law which cannot be encouraged in any form and color.
7. Now the question arises whether Article 199 of the Constitution of Pakistan, expressly or by implication, provides for exercise of Suo Motu jurisdiction by a High Court. Before we answer the question by referring to the case-law, we would like to read the Article itself which runs 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-- 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 1 of Part II.
(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part ll shall not be abridged.
(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.
(4) Where---
(a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and
(b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest or State property or of impeding the assessm ent or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order- - would not have such effect as aforesaid; or
(ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.
[(4A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, State property or assessm ent or collection of public revenues shall cease to have effect on the expiration of a period of six months following the. Day on which it is made: Provided that the matter shall be finally decided by the High Court within six months from the date on which the interim order made.]
[PM) Every case in which, on an application under clause (1), the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court is prevented from doing so far sufficient cause to be recorded.]
(5) In this Article, unless the context otherwise requires,--- "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan; and "prescribed law officer" means---
(a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and
(b) in any other case, the Advocate-General for the Province in which the application is made."
8. A careful perusal of the Article reproduced above would show that a High Court would exercise its extraordinary discretionary Constitutional jurisdiction where it is satisfied that, subject to the Constitution, no other adequate remedy is provided by law. It would exercise such jurisdiction under Article 199(1)(a) (i & ii) and (c) on the application of an aggrieved person while under 199 (1)
(b) (i & ii) on the application of any person whether aggrieved or not, and not on an information or on its on knowledge. In the case of "Tariq Transport Company, Lahore v. Sargodha Bhera Bus Service and others" (PLD 1958 S.C. (Pak) 437), this Court held that a High Court was not competent merely on an information or on its on knowledge to commence certiorari proceedings or other 'proceedings of a similar nature under Article 170 of the Constitution of Islamic Republic of Pakistan, 1956. In the case of "Fazl-e-Haq, Accountant General, West Pakistan v. The State" (PLD 1960 S.C.
(Pak) 295), this Court reiterated the view by holding that the extraordinary jurisdiction relating to a writ could only be exercised by the High Court when moved by a party whose legal rights have been denied. In the case of "Mst. Zubaida A. Sattar and others v. Karachi Building Control Authority and others" (1999 SCM R 243), a bench of this Court, while dealing with the question whether the High Court could register a petition Suo Motu under Article 199 of the Constitution of Pakistan, opted to decide it in an appropriate case, in the case of "Mian Muhammad Nawaz Sharif and others v.
Muhammad Habib Wahab-al-Khairi and others" (supra), this Court while upholding the order passed by the learned ICA Bench of the Lahore High Court holding that Single Judge has no Suo Motu jurisdiction under Article 199 of the Constitution of Pakistan declined interference therewith by holding as under:- It is true that in the order passed by the learned I.C.A. Bench, it has been held that the learned Single Judge had no Suo Motu jurisdiction under Article 199 of the Constitution and therefore, the proceedings initiated by him in exercise of his power under Article 199 of the Constitution in respect of the alleged illegal allotment of plots as well as mismanagement of Federal Baitul Maal Funds, .
Were wholly without jurisdiction and were accordingly quashed. It is, however, pointed out by Mr. l- labib Wahabul Khairi that after he was made party in Suo Motu writ petition on which the learned Judge had taken notice of the alleged irregularities in allotment of plots in the Province of Punjab and Federal Capital Territory, he had free following writ petitions which are awaiting heading in that Court:---
(1) Al-Jehad Trust and others (W.P. No. 7459 of 1993);
(2) Al-Jehad Trust v. Mian ManzoorAhmed Wattoo (W.P.No. 8622 of 1993);
(3) Al-Jehad Trust v. Mian ManzoorAhmed Wattoo (W.P. No. 8623 of 1993).
(4) Al-Jehad Trust v. Ghulam Asghar Malik (W.P. No. 8624 of 1993)
The learned counsel for the petitioner in C.Ps. 690-L and 691-L of 1994 very vehemently contends that after decision by the I-C.A. Bench that Suo Motu jurisdiction exercised by the learned Single Judge was not available to him, the learned Judges should not have remanded the case for hearing to the learned Single Judge. We are unable to accept the contention of learned counsel for the petitioner in C.Ps. 690-L and 691-L of 1994. It is no doubt true that the learned I-C.A. Bench held that the learned Single Judge had no Suo Motu jurisdiction under Article 199 of the Constitution but regarding writ petitions mentioned above filed by Al-Jehad Trust, they were to be disposed of after hearing the petitioners and respondents in the cases. The learned counsel for the petitioner in C.Ps.
690-L and 691-L of 1994 also contended that by remand of the above-mentioned petitions filed by Al-Jehad Trust, his client, petitioner in C.Ps. 690-L and 691-L of 1994, has specifically been singled out. This contention of the learned counsel does not appear to be correct as from the copies of writ petitions which are mentioned above, it is quite clear that besides the petitioner there were other persons who were named as respondents in the cases and that they were issued notices by the learned Single Judge to Show-Cause and explain the irregularities in the allotment of plots in the Province of Punjab and Federal Capital Territory. The disposal of these petition having not taken place in accordance with law, the learned 1.-C.A. Bench was fully justified in remanding the cases to the learned Single Judge for decision offer hearing, the parties in accordance with law. No case for interference with the judgment of 1-C.A. Bench is made out. Civil Petitions Nos. 690-L and 691-L of 1994 are accordingly dismissed.
We have already stated that insofar C.P. 1277 of 1997 is concerned, the only grievance of Mr. Habib Wahabul Khairi is that writ petitions filed before the Lahore High Court, which are pending since 1993 have not been disposed of, and if they are directed to be disposed of expeditiously, he, will be satisfied. The prayer made by Mr. Habib Wahabul Khairi appears to be reasonable and we, accordingly, observe that the High Court will make every effort to dispose of above-mentioned writ petitions within a period of three months from today., With these observations, the petitions are dismissed and leave is refused".
In the case of "Shehnaz Begum v. The Hon'ble Judges of the High Courts of Sindh and Baluchistan"
(PLD 1971 S.C. 677), this Court while dealing with a similar question held as under.-- "Under this Constitution, a High Court has been given the power of judicial review of executive actions by Article 98 in certain specified circumstances but even in such a case, the High Court cannot move Suo Motu far, it is specifically provided in each of the sub-clauses (a), (b) and (c) of clause (2) of Article 98 that only on the application of an "aggrieved party" or of any person, the High Court may make the orders or issue the directions therein specified. It is clear, therefore, that under Article 98 there is no scope for any Suo Motu action by the High Court".
It thus follows that the framers of the Constitution of 1962 and those of 1973, inasmuch as it can be gathered from the words used in Article 98 of the former and Article 199 of the later, never intended to confer Suo Motu jurisdiction on High Court. Had they intended, they would have conferred it on the terms as the frames on the Code of Civil Procedure under its provision contained in Section 115 have conferred it on the High Court and the District Judge and the framers of the Code of Criminal Procedure under its provisions contained in Sections 439 and 439-A have conferred it on the High Court and the Sessions Judge respectively. Article 175(2) of the Constitution leaves no ambiguity by providing that "no Court shall have jurisdiction, save as is or may be conferred on it by the Constitution or by or under any law". We would be offending the very words used in the Article by reading exercise of Suo Motu jurisdiction in it which cannot be -ead even if we stretch them to any extreme. It has been settled as far back as in 1916 in the case of "Tricomdas Cooverii Bhoja v. Sri Gopinath Jiu Thakur" (AIR 1916 Privy Council), that where the meanings of a provision are clear, unequivocal and incapable of more than one interpretation, even a long and uniform course of interpretation, if any, may be overruled, if it is contrary to its meanings. We have, therefore, no hesitation to hold that the High Court could not exercise Suo Motu jurisdiction under Article 199 of the Constitution of Pakistan. The more-so when we have noticed that such jurisdiction has stridently been used even in the matters which are clearly and squarely outside the jurisdiction of a High Court.
9. The case of "High Court Bar Association and others v. Government of Baluchistan through Secretary, Home and Tribal Affairs Department and six others" (supra), inasmuch as it upholds exercise of Suo Motu jurisdiction is per incuriam for having been rendered in derogation of the express words used in Article 199 of the Constitution, therefore, has no force altogether The case of "Mian Muhammad Nawaz Sharif and others v. Muhammad Habib Wahab-al-Khairi and others"
(supra), when read carefully does not support the contention of the learned counsel for the respondents. The case of "Multiline Associates v. Ardeshir Cowasjee and others" (supra), too, does not support the contention of the learned counsel for the respondents as in that case Sindh High Court had not passed the order impugned before this Court, in exercise of its Suo Motu jurisdiction.
The case of "Mst. Zubaida A. Sattar and others v. Karachi Building Control Authority and others"
(supra), would not advance the case of the respondents as in that case this Court opted to decide the question as to whether the High Court can register a Constitutional petition Suo Motu under Article 199 of the Constitution in an appropriate case. The case of "Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others" (supra), too, would not give any strength to the contention of the learned counsel for the respondents as in that case the High Court did not pass the order impugned before this Court in exercise of its Suo Motu jurisdiction. A reference was also made to the case of "Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty" (AIR 1996 SC 922) by arguing that for exercise of Suo Motu jurisdiction, it is not necessary that the person who is the victim of violation of his fundamental right should personally approach the Court as the Court can itself take cognizance of the matter and proceed Suo Motu or on a petition of any public spirited individual, but this would not support the case canvassed at the bar by the learned counsel for the respondents as Article 226 of the Constitution of India does not provide anywhere that any writ, order or direction shall be issued on the application of an aggrieved person. The case of "Benazir Bhutto v. Federation of Pakistan" (PLD 1988 S.C. 416) was also cited but that has no perceptible relevance to the case in hand as the jurisdiction in that case was exercised by this Court under Article 184(3) of the Constitution which too does not provide anywhere that this Court will exercise its jurisdiction on the application of any aggrieved or any person. We, therefore, are of the view that a High Court cannot exercise Suo Motu jurisdiction under Article 199 of the Constitution.
10. For the reasons discussed above, we convert this petition into appeal, allow it and set aside the impugned judgment. The aggrieved persons may approach the fora provided by the Constitution and the Act mentioned above for the redressal of their grievance. Copy of this judgment be dispatched to the Chief Justices of all the High Courts.