' AYESHA A. MALIK, J.---Through this Petition, the Petitioner has challenged the proceedings undertaken by the Election Commission of Pakistan ("ECP") under Section 103A of the Representation of the People Act, 1970 ("Act").
2. The basic facts of the case are that the Petitioner moved a petition under Section 103AA of the Act calling into question the result of take bye-election held in NA 122 on 11.10.2015, on the ground that gross illegalities were uncovered in the bye-elections. In this regard, the basic grievance of the Petitioner was that a large number of people, listed as voters in NA 122 for the general elections of May 2013, were excluded from the list of voters for the bye-elections of 11.10.2015. Also that some voters were included in the electoral roll for the bye-elections whereas they did not reside within NA
122. In support of these allegations, the Petitioner supplied more than 2000 affidavits from different voters, which affidavits were relied upon for the purposes of the petition. The Petitioner also prayed for providing information pertaining to the electoral rolls and the record related thereto. The said petition was heard over four dates and eventually the ECP issued its order on 1.2.2016. In terms of the order, the petition filed under Section 103AA of the Act was rejected and it was held that remedy under Section 56 of the Act was the proper and efficacious remedy available to the Petitioner. As to the request for information, a direction was issued making available the requisite information to the Petitioner. The ECP also made an observation in the said order which essentially gives rise to the instant Petition. For ease of reference, the order of 1.2.2016 is reproduced hereunder:-:- ' The petition under Section 103AA is rejected. The proper and efficacious remedy is already provided under Article 225 of the Constitution, for which, the Election petition of the petitioner stands already referred to the Tribunal under Section 56 of the Representation of the People Act, 1976. It was not pressed as well, having become otherwise infructuous.
2. So far as the application under Section 19A of the Constitution is concerned, the Commission declines to adhere to unlawful assertions whereby the petitioner aimed at converting a simple application under Article 19A into a matter of investigative nature and indirectly holding a trial which is the job of the Election Tribunal.
3. All the petitioners and respondent No,1 under Article 19A of the Constitution are allowed to inspect before and obtain from District Registration Officer: a) Documents/record under Section 45 of the Representation of the People Act, 1976. b) They are entitled to have copies of record whereby the voters were freshly included in the Electoral Roll of 2015. c) They may obtain the copies of record from District Registration Officer of numerous persons registered on a specific address after specifying the Census Blocks and the specific persons so registered. d) They may obtain the copies of record of inclusion, exclusion and deletions of voters in the electoral rolls of 2015 compared with electoral roll of 2013 after specifying such persons as well as incidents. e) They may obtain the copies of supplementary list published in July, 2015 which includes the record justifying the addition/deletion/inclusion of alleged 4542 votes. f) They are entitled to obtain the copies of record of additions, if any, made in the electoral roll after the announcement of schedule for bye-elections in NA-122.
4. The inspection and copies of the above documents/record would be available on payment of such fee as prescribed by Rules.
5. It has been observed by the Commission with serious concern that some Affidavits filed by the petitioner were absolutely false and hence the Commission reserves its authority/right to proceed against them in accordance with law after final decision by the Tribunal concerned.
3. On the basis of this observation in paragraph 5, Respondent No,2 moved a contempt petition under Section 103A of the Act seeking ' action against the Petitioner for committing contempt of court. The basic grievance of Respondent No,2 in his petition was that false and fabricated affidavits were filed by the Petitioner, thereby giving false evidence to the ECP with the intent to obstruct and divert the course of justice. The Respondent No,2 detailed his objections against 180 affidavits and prayed that action be taken against the Petitioner and that he be punished for submitting false and fabricated affidavits before the ECP.
4. As per the record, the contempt petition was filed on 10.3.2016. Notices were issued and the first date of hearing was.
30.3.2016. On 30.3.2016, counsel for the respondent in the petition, the Petitioner in this case, raised certain preliminary issues before the ECP. The case was adjourned for 7.4.2016. On 7.4.2016 the case was not heard and it was adjourned to 8.4.2016. On 8.4.2016, it was again adjourned giving the Petitioner one last opportunity to argue his case. The case was fixed for 25.4.2016. On 25.4.2016, counsel for the Petitioner appeared before the ECP and argued his entire case. The case was then adjourned to 2.5.2016 for orders. On 2.5.2016 it was adjourned for 9.5.2016 again for orders. On 9.5.2016, the ECP was informed of the orders of this Court dated 3.5.2016 wherein the proceedings were stayed by this Court. Hence the matter was not taken up.
5. Learned counsel for the Petitioner argued that the ECP rejected the petition under Section 103AA of the Act on the ground that jurisdiction lies with the Election Tribunal, being the proper forum.
Notwithstanding the same, the ECP observed in paragraph 5 of its order that certain affidavits filed by the Petitioner were false and that the ECP would take action against the Petitioner once a final decision was taken by the Tribunal. Learned counsel submitted that once the Respondent ECP decided, it did not have jurisdiction in the matter. It could not have made the said observations.
However, even though such observation was made, it could proceed under Section 103 of the Act against the Petitioner on account of the fact that there is no order of the ECP which has been violated in terms of Section 3 of the Contempt of Court Ordinance, 2003 ("Ordinance"). Since the ECP did not adjudicate upon the merits of the 'case, its observation regarding the falsity of some affidavits was presumptive and after the filing of the application under Section 103A of the Act by Respondent No,2, the Respondent No,1 hastily proceeded against the Petitioner and concluded the matter on 2.5.2016, reserving the case for orders. Learned counsel further argued that Respondent No,1 has no jurisdiction in the matter and cannot proceed under Section 103A of the Act since there was no adjudication on the merits of the affidavits, hence the question of their falsity could not be presumed.
6. Reply has been filed by Respondent No,1. Learned counsel for Respondent No,1 submitted that the Respondent ECP has acted in accordance with law. In terms of the proceedings under Section 103AA of the Act on cursory examination of the record and on the basis of the-information provided by NADRA, the ECP was of the opinion that some of the affidavits filed by the Petitioner contained false declarations. Hence the ECP opined in its order dated 1.2.2016 in paragraph 5 that it may look into the matter after a decision by the Election Tribunal. In the meantime, the Respondent No, 2 filed the contempt petition, hence the ECP heard the matter and reserved the case for orders. He argued that the instant writ petition is premature as no order has been passed by the ECP and it has not decided whether it will proceed under Section 103A of the Act or not. Learned counsel further submitted that where false information is given to the ECP, it can proceed under Sections 78 and 94 of the Act read with Ordinance in terms of its constitutional mandate under Article 218(3) of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel argued that at this stage any interference from the Court is premature as no order has been passed by the ECP and the Petitioner has misrepresented the facts before the Court.
7. Reply has also been filed by Respondent No,2. Learned counsel for Respondent No,2 submitted that Respondent No,2 filed petition under Section 103A of the Act read with Sections 191, 192, 193, 196, 199 and 200. Also Sections 468 and 471 of the Pakistan Penal Code, 1860 and Sections 2(B), 3 and 5 of the Ordinance. The basic grievance of Respondent No,2 is that the Petitioner brought 180 false affidavits before the ECP to obstruct the process of justice and to give a bad name to the Respondent No,2. Learned counsel further argued that the matter was heard at length by the ECP and an undertaking was given by the counsel for the Petitioner before the ECP that he would withdraw the instant writ petition as he was of the opinion that it was a misconceived petition.
Learned counsel submitted that the Petitioner is bound by the undertaking given by the Petitioner and as such cannot proceed in the instant petition. She further argued that the ECP is acting in accordance with law as false and fabricated affidavits were relied upon before it and the factum of their falsity was brought to the notice of the ECP by NADRA, hence it made its observation in paragraph 5 of its order dated 1.2.2016. Learned counsel argued that since the allegations relate to Respondent No,2, hence he was well within his rights to move an application seeking necessary action against the Petitioner. She has placed reliance on the case titled Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089).
8. Arguments of the learned counsel for the parties have been heard and record perused.
9. The basic issue before the Court is whether the ECP can proceed under Section 103A of the Act against the Petitioner. Section 103A of the Act authorizes the power of the ECP to punish any person for committing contempt of court. The Section reads as follows:-- ' 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 therein 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].
' Sections 3, 4 and 6 of the Ordinance reads as follows:
3. Contempt of Court.---Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey, or commits a willful breach of a valid undertaking given to a Court; or does anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect of disrepute, or to interfere with or obstruct of interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a Court or scandalize a Judge in relation to his office, or to disturb the order of decorum of a Court, is said to commit "contempt of Court". The contempt is of three types, namely, the "civil contempt", "criminal contempt" and "judicial contempt".
4. Jurisdiction.---(1) Every superior Court shall have the power to punish a contempt committed in relation to it.
(2) Subject to subsection (3), every High Court shall have the power to punish a contempt committed in relation to any Court subordinate to it.
(3) No High Court shall proceed in cases in which an alleged contempt is punishable by a subordinate Court under the Pakistan Penal Code (Act No, XLV of 1860).
' Since the Respondent No,2 has alleged committing criminal contempt against the Petitioner of the Ordinance, Section 6 becomes relevant which is reproduced hereunder:-- Criminal contempt when committed. ---(1) A criminal contempt shall be deemed to have been committed if a person:--
(a) Attempts to influence a witness, or proposed witness, either by intimidation or improper inducement, not go give evidence, or not to tell the truth in any legal proceedings;
(b) Offers an improper inducement or attempts to intimidate a Judge, in order to secure a favourable verdict in any legal proceedings;
(c) Commits any other act with intent to divert the course of justice.
(2) Nothing contained in subsection (1) shall prejudice any other criminal proceedings which may be initiated against any such person as it mentioned therein.
10. Contempt of Court as per Section 103A of the Act read with Section 3 of the Ordinance is the deliberate disobedience or disregard of an order or direction of the Court. Contempt of court is when a person willfully interferes with the process of the Court in order to disrupt or challenge the authority or the dignity of the Court. Criminal contempt is made out when a person willfully interrupts or interferes in the administration of justice such that it obstructs or hampers the course of justice. The difference between the two kinds is that where contempt of A Court is the disobedience of the order or direction of the Court, criminal contempt is the obstruction of the administration of justice in a Court of law. In both cases the objective is that law and order must be maintained in the Court and the course of justice should not be hampered or deviated. Hence the power of contempt is a necessary sanction to protect the administration of justice, however it is a power which must be exercised with great care and caution and only when it is absolutely necessary for the proper administration of justice.
11. In this case, there is admittedly no order which has been disobeyed or disregarded by the Petitioner. There was no proceeding which was interfered with or obstructed by the, Petitioner.
Contempt is said to have been committed by filing 180 false' affidavits in support of the petition under Section 103AA of the Act. The pasic allegation is that these 180 affidavits are false and fabricated, hence they divert the course of justice. In order to determine whether the ECP could have proceeded under Section 103A of the Act, the first. Question that needs to be determined is the effect of the observation it made in paragraph 5 of the order dated 1.2.2016. Given that the ECP did not adjudicate on the merits of the complaint, the ECP could not have concluded that some affidavits were false and fabricated. The said observation is presumptive, without following any process of law, supported by no reasoning. The ECP essentially left an option open to itself to proceed against the Petitioner, once the Election Tribunal decides the fate of the election petition filed by the Petitioner. Interestingly, more than 2000 affidavits were filed by the Petitioner yet the ECP observed that some' of the affidavits were false and fabricated, without explaining how it has quantified or qualified that 180 affidavits are false out of the 2000 or more filed. The ECP's observations in fact prejudices the case of the Petitioner as it is still pursuing its remedy to challenge the bye-election results of NA 122 and the fate of that challenge is yet to be finally decided. Furthermore the affidavits were filed in support of the petition under Section 103AA of the Act meaning thereby that the affidavits are evidence in support of the petition and have to be seen in the context of the petition under Section 103AA of the Act. Since the ECP did not adjudicate upon the merits of the petition under Section 103AA, there was no legal justification to observe that some affidavits are false. It is important to note that the ECP passed this observation after holding that the matter will be heard, by the Tribunal, meaning that the ECP itself accepted that jurisdiction has with the Election Tribunal, hence it accepted the fact that the veracity of the affidavits would be determined by the Tribunal and not by the ECP.
12. The next question that needs to be determined is whether the ECP could proceed under Section 103A of the Act on the basis of the petition filed by Respondent No,2. The answer to this question is quite simply that it could not have proceeded in the matter. Admittedly, there is no order of the Court which has been disobeyed, no process of law which has been interfered with or disrupted by the Petitioner. The Respondent No,2 as the winning candidate has been notified and has assumed public office. Therefore, the argument that the Petitioner has committed contempt of Court for which he is liable to be punished is totally misconceived. When the learned counsel for Respondent No,2 was confronted with this reasoning, she relied upon Section 6 of the Ordinance to urge the point that criminal contempt has been committed by the Petitioner. Even this argument is misconceived as there was no case, no proceeding, no order before the ECP in which the Petitioner could have committed contempt, to divert or hamper the course of justice. The ECP declined to adjudicate upon the petition under Section 103AA of the Act on the ground that the Election Tribunal has jurisdiction. Having held that the petition and all affidavits in support thereof would not be considered by the ECP, the matter ended and there was no proceeding pending before the ECP.
There was no case pending before the ECP, no proceedings held by the ECP in which the Petitioner could have committed criminal contempt. Even otherwise in criminal contempt there must be some act which has obstructed the course of justice. In this case, the Petitioner has challenged the bye-election result and has given affidavits in support of his case. The filing of the affidavits cannot be considered obstruction of justice. They have been filed by the Petitioner in his effort to claim justice its a case that he has filed. Hence the question of contempt or criminal contempt does not arise by the filing of the affidavits. The Respondent No,2 filed the petition under Section 103A of the Act on the basis of the observation in para 5 of the ECP's order of 1.2.2016 which observation does not give rise to any reason or cause of action to allege contempt against the Petitioner. In fact, the ECP itself observed that it will consider whether it wants to proceed against the Petitioner, after a final decision by the Tribunal. Hence by way of its observation the ECP would have to first ascertain whether the affidavits were false or not before it could proceed against the Petitioner for relying on false affidavits. Admittedly, there have been no such proceedings or determination by the ECP.
Under the circumstances, the ECP could not have proceeded on the petition under Section 103A of the Act.
13. Learned counsel for the Respondent ECP has also argued that the instant petition is premature as the ECP has not decided upon the matter and there is no order of the ECP. However, I am of the opinion that not only was the ECP unlawful in proceeding with the contempt petition but it also acted in haste. The contempt petition was filed on 10.3.2016, the case was heard at length and reserved for order on 2.5.2016 and again on 9.5.2016. Learned counsel for the Respondent ECP has not been able to explain why the case was heard at length and thereafter reserved for orders. In terms of the reply filed by Respondent No,2, the contempt petition was argued at length and information given by NADRA was relied upon for the purposes of establishing the falsity of 180 affidavits that were filed. Therefore, it appears that the ECP was determined to proceed in the matter and it hastily reserved the case for orders even though there is no order, direction or proceedings pending before it in which any contempt could have been made out. The ECP could not have commenced proceedings on the application filed by Respondent No,2 as there is no order of the ECP that has been violated and no act of the Petitioner that has hampered the process of justice. At this stage when the fate of the Petitioner's allegations regarding wrongful exclusion and inclusion of voters in NA 122 has not been decided, the ECP cannot presume that the affidavits were false and based on that presumption proceeded in contempt proceedings against the Petitioner.
14. Under the circumstances, the instant writ petition is allowed. The act of the ECP to proceed on the petition under Section 103A the Act filed by Respondent No,2 is illegal and against the mandate the law.