1. WAQAR AHMAD SETH, J.--- Mian Zia-ur-Rehman petitioner seeks the constitutional jurisdiction of this Court praying for:--- "that on acceptance of the instant writ petition, the act done and proceedings taken so far may graciously be declared void ab initio, unlawful, without lawful authority and of no legal effect, secondly, the Tribunal may be directed to follow the law laid down in Representation of the People Act, 1976 particularly the provisions laid down in section 55 read with section 63 of the Act i.e. preliminary objection raised by the petitioner in his written statement shall be disposed of before taking further proceedings into the matter".
2. 2.Brief facts, as per contents of petition, are that petitioner contested the General Elections, 2013 from PK-54 Mansehra-II and was declared a returned candidate in the polls. Subsequently, respondents Nos.1 and 2 filed election petitions, which were entrusted to Election Tribunal Abbottabad for disposal and petitioner being returned candidate contested the same by submitting written statements and raised preliminary objection. Both the petitions were clubbed together and learned Tribunal instead of deciding the preliminary objection No.1 framed the issues and put the petitions to trial. The learned Tribunal deviated from the normal and established course directed the election petitioners to produce all the witnesses for the purpose of cross- examination and recorded statement of one witness as C.W.-1 and thereafter issued a commission for recording statement of Raees-ul-Madrasa. The Tribunal instead of calling objection of the parties on the proceedings of commission fixed the cases for statements of election petitioners and recorded their examination-in-chief. The petitioner had also moved another application for disposal of his earlier application and preliminary objections but to no avail and instead recorded the statements of respondents/election petitioners. Non-submission of list of witnesses, their affidavits, non-verification of annexures with Election Petitions could not be ignored in any case and in essence the preliminary objections of petitioner merit early disposal.
3. 3.Arguments heard at great length and record perused with the valuable assistance of learned counsel for the respective parties.
4. 4.In net shell the petitioner asked for issuance of writ under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for a direction to the Election Tribunal to decide the preliminary issue/ objection in accordance with the law laid down in the Representation of the People Act, 1976 particularly the provisions laid down in section 55 and section 63 of the Act, ibid. 5.While acquiring the jurisdiction in view of PLD 2009 SC 284, pre-admission notices were issued to the respondents, who appeared through their respective counsel and raised the question of maintainability of writ petition. In order to decide the question of maintainability of the writ petition, it is important to go through the scheme and theme of the Representation of the People Act, 1976, especially the relevant sections are reproduced below:--- Section 54. Parties to the petition---The petitioner shall join as respondents to his election petition- -- (a)all contesting candidate, and (b)any other candidate against whom any allegation of any corrupt or,illegalpracticeismadeandshallservepersonallyor by registered post on each such respondent a copy of the petition.
5. Section 55. Contents of petition (1) Every election petition shall contain: (a)A precise statement of the material facts on which the petitioner relies; (b)Full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; (c)The relief claimed by the petitioner; (2)A petitioner may claim as relief any of the following declaration; (a)that the election of the returned candidate is void; (b)that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or (c)that the election as a whole is void.
6. (3)Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of the pleadings".
7. Section 63. Dismissal of petition during trial.--- The Tribunal shall dismiss an election petition if--- (a)the provisions of section 54 or section 55 have not been complied with, or (b)if the petitioner fails to make the further deposit required under subsection (4) o section 64".
8. 6.A bare perusal of the election petition reflects that section 54 requirements are made as all the contesting candidates are respondents. Section 55, major requirement is mentioned in paras 6, 7, 8 and 9 of the Election Petition and same is the position of section 63.
9. 7.Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 provides:--- "No election to a 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)} ".
10. 8.The Representation of the People Act, 1976 provides complete mechanism i.e.:--- Section 52. Election Petition.--- No election shall be called in questionexceptbyanelectionpetitionmadebya candidateforthatelection; (2)anelectionpetitionshallbepresented to the Commissioner within 45 days of the publication in the official gazette of the name of the returned candidate and shall be accompanied by a receipt of showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or sub-Treasury in favour of Commissioner, under the prescribed head of account, as security for the costs of the petition, a sum of one thousand rupees.
11. Section 53. Presentation of Petition.--- (1) An election petition shall be presented by a petitioner and shall be deemed to have been presented--- Section 54. Parties to the petition Section 55. Contents of petition Election 56. Procedure on receipt of petition by the Commissioner. If the Commissioner finds that any provision of section 52, section 53 or section 54 has not been complied with, the petition shall be dismissed forthwith and (2) if an election petition is not dismissed under subsection (1), the Commissioner shall refer it for trial to a Tribunal. (the underlining is marked by us to show emphasis)
12. 9.The Election Commission is created under Article 218 of he Constitution of Islamic Republic of Pakistan, 1973 and when the Commission finds that any of the provision of above referred section especially either of sections 52, 53 and 54 has not been complied with, the petition shall be dismissed forthwith and if the same is not dismissed, the Commissioner shall refer it for trial to a Tribunal. In the instant case, the Election Petition has been referred to the Tribunal reflecting that the same had cleared the litmus test of sections 52, 53 and 54, in the opinion of the commission.
13. 10.TheElectionTribunalforthetrialofElectionPetitionunder the Act ibid are notified/appointed under section 57 of the Act, 1979. The procedure before the Tribunal is defined in sections 62 and 63, whereas the powers of Tribunal have been defined in section 64 and the power of recording of evidence has been defined in section 64 of the Act ibid. 11.Any decision given by the Tribunal under section 67 of the Act onanelectionpetitionshallbefinalandundersubsection(3)of section 67 right of appeal is provided to Supreme Court meaning thereby that the Supreme Court is the appellate authority.
14. 12.It is by now common knowledge that the election laws, being an Act of Parliament, already existed in the country that contained provisions about the existence of Election Tribunal and above all, the detailed provisions about the manner in which such petitions are to be filed, conducted and disposed of.
15. 13.In the instant case issues have been framed, which includes the issue of non-compliance of provisions of sections 54 and 55 of the Act ibid and the Rules framed there under. Moreover, the Election Commission vide order dated 26-9-2013 advised the Tribunal to decide the matter without unnecessary delay including the issue of mandatory provisions of sections 54 and 55 of the Act ibid in spite of the fact that the provisions of law were cleared by Commission while referring the petition to the Tribunal for trial.
16. 14.The Tribunal is conducting the proceedings in accordance with law after its receipt from the Commission and this Court while exercising its power under Article 199 of the Constitution is neither has an appellate or revisional or supervisory power to direct the Election Tribunal to conduct the proceedings this or that way. In the case of Aurangzeb Khan v. Election Commission reported as PLD 2010 Supreme Court 35, it has been held as under:--- "Provisions of Art. 199 of the Constitution could be invoked or challenge any irregularity committed during process ofelection--- Once election process was completed, then election could be challenged before Election Tribunal ---Such questions of fact could not be attended to by High Court in exercise of constitutional jurisdiction --- Election Tribunal already constituted had exclusive jurisdiction to decide such questions after recording of evidence ---Constitutional petition was dismissed in circumstances".
17. 15.Whereaslearnedcounselforpetitionercitedanumberof caselawreportedas2007SCMR1776,1995CLC158,1991 CLC 175, 2010 CLC 1424, 2009 CLC 1192, 2007 CLC 671, 2009 CLC 1302, 2002 SCM R 250, 1999 M LD 1533,2003 YLR 2878, 2009 CLC 771, 2010 CLC 912, PLD 2007 SC 362, 2009 CLC 1469, 1991 CLC 175, which are either of Election Tribunals or from appellate jurisdiction regarding election matter etc but none of the same has discussed the maintainability of writ petition and, as such, instant petition is not maintainable.
18. 16.Consequently, this writ petition being non-maintainable is dismissed. No order as to costs.