MUNIB AKHTAR, J.--By this petition the petitioner challenges, on jurisdictional grounds, certain proceedings initiated by the respondent No,3 and pending before the respondent No, 1 (the Election Commission of Pakistan, herein after the "Election Commission"). The matter arises out of the General Election of 2013 for the Sindh Assembly. Both the petitioner and the respondent No, 3 were candidates for PS-42 Kamber Shandadkot-III. The petitioner won the election and was declared as the returned candidate and is now the sitting MPA for the aforesaid constituency. It is pertinent to note that after the election no election petition was filed challenging the same, nor were proceedings taken by or before the Election Commission in terms of section 103AA of the Representation of the People Act, 1976 ("1976 Act).
2. Learned counsel for the petitioner submitted that when the nomination forms were filed by the candidates and scrutinized by the Returning Officer, certain objections were taken to the petitioner's papers, though not by the respondent No,
3. The same were however rejected by the Returning Officer. Thereafter, the objections were not pursued further. The election was held, with the result as noted above. It was only in 2015 that the petitioner suddenly received notice from the Election Commission (dated 01.06.2015) that a complaint had been filed before it by the respondent No, 3 seeking the petitioner's disqualification on the ground that he was non-compliant of the requirement of Article 62(1)(f) of the Constitution. The ground taken in the complaint was that at the time of filing his nomination papers, the petitioner was required to disclose in full his assets and liabilities, but had failed to do so inasmuch as he had not declared certain immoveable properties owned by him. The Election Commission had also sent a copy of the complaint to the Sindh Assembly secretariat and the petitioner received a copy from there as well. Learned counsel strongly contested the allegations made in the complaint and submitted that there had been full disclosure as required by law at the time that the nomination papers had been filed.
The claim made in the complaint was denied and rejected. On receipt of the notice, the petitioner immediately filed the present petition. Learned counsel submitted that the proceedings before the Election Commission were without jurisdiction. The Election Commission could only entertain a reference regarding the disqualification of a member in terms of Article 63 read with Articles 113 and 127 of the Constitution. It was only then that the Election Commission would have the jurisdiction to make a determination of disqualification, and not otherwise. Inasmuch as the present proceedings had been launched by way of a direct so-called complaint filed by the respondent No, 3, the same were without jurisdiction and liable to be quashed. It was emphasized that the matter before this Court was not one filed by a person seeking relief in the nature of quo warrant against the petitioner, nor were the allegations made in the complaint ever admitted by him. The present petition had been filed by the returned candidate himself raising an issue of jurisdiction while at the same time denying and repudiating the allegations on the merits. It was submitted that the petition ought to be allowed and learned counsel prayed accordingly.
3. Learned counsel for respondent No, 3 contested the case sought to be made on behalf of the petitioner. It was submitted that the complaint lay within the jurisdiction of the Election Commission, which was fully competent to proceed with and decide the same. Learned counsel denied that a direct complaint had been filed. Explaining the respondent's case, learned counsel submitted that on 02.04.2015, the respondent No, 3 had approached the Speaker of the Sindh Assembly, laying before him the complaint that the petitioner stood disqualified from being a member of the Assembly on the ground that he had not made full disclosure of his assets at the time of filing his nomination papers. A reminder was sent to the Speaker on 20.05.2015. Referring to Article 63(2) learned counsel submitted that a question as to the petitioner's disqualification had thus been properly raised before the Speaker. Since the Speaker took no action in terms of the aforesaid provision, after 30 days the matter was deemed referred to the Election Commission as provided in Article 63(2). It was in such circumstances that, according to learned counsel, the matter came before the Commission, which therefore had the jurisdiction to decide it. On the merits of the case, learned counsel referred to various documents on the record and submitted that it stood established that the petitioner had not made full disclosure of all his assets in his nomination papers. He was therefore not qualified to be a member of any Assembly in terms of Article 62(1)(f), and ought to be disqualified by the Election Commission. Referring to various case law (which will be considered later), learned counsel submitted that the present petition ought to be dismissed and prayed accordingly.
4. The learned Law Officer from the Election Commission placed reliance on the parawise comments filed by the Commission and prayed that the petition be dismissed. The learned DAG submitted that the Election Commission did have jurisdiction in the matter and was the proper forum where the petitioner could raise all grievances and objections, including by way of lack of jurisdiction. The complaint ought therefore to be allowed to proceed, and the petition dismissed.
Exercising his right of reply, learned counsel for the petitioner strongly contested the respondent No, 3's claim that he had first approached the Speaker of the Sindh Assembly and only then, once nothing had been done by him for a period of 30 days, that the complaint had been placed before the Election Commission, to which it stood deemed referred in terms of Article 63. Learned counsel submitted that no such averments had been made in the complaint before the Election Commission or in the reply filed to the present petition (on 13.06.2015). The so-called reference to the Speaker on 02.04.2015 and reminder of 20.05.2015 were never brought on record earlier. They were created and manipulated documents, which had been filed belatedly under cover of a statement on 08.09.2016. This was nothing but an obvious attempt to fill in a fatal lacuna in the respondent's case, in order to somehow overcome the jurisdictional bar. In fact, learned counsel submitted, the documents were filed only because of an observation from the Bench on an earlier date of hearing.
5. We have heard learned counsel as above, examined the record and considered the case law relied upon. It must be stated at the outset what this petition is all about. It is a jurisdictional challenge to the proceedings pending before the Election Commission. Although both learned counsel for the petitioner and for the respondent No, 3 have made submissions on the merits of the dispute, i,e,, as to whether the petitioner made (or did not make) full disclosure of his assets at the time of filing his nomination papers, that is not a point that we need or intend to decide or even touch upon. We proceed to consider and decide this petition on only legal grounds that go the very root of the proceedings before the Election Commission.
6. The manner in which a matter relating to the disqualification of a member of an Assembly (or the Senate, for that matter) can come before the Election Commission was considered recently by a Division Bench of this Court (of which one of us was a member) in C.P. D-7199/2016, which was decided by judgment dated 22.05.2017 (titled Bashir Ahmed Halepota v. Election Commission of Pakistan and others; herein after the "Bashir Halepola case"). It was there observed as follows (emphasis supplied): "7. The most immediate way of challenging an election to a legislative seat in the National or a Provincial Assembly is of course to file an election petition, as provided for in terms of Article 225 of the Constitution read with the relevant provisions of the 1976 Act. That petition has to be decided by an Election Tribunal constituted under the 1976 Act. While the Election Commission and Chief Election Commissioner have an important role to play in the constitution, etc. of the said Tribunal they do not as such have any jurisdiction to decide the election dispute raised by the election petition. This is solely within the jurisdiction of the Election Tribunal. Any such petition has to be filed within a period of 45 days from the date of the publication in the Official Gazette of the name of the returned candidate, and of course that period has long since expired in the case of the petitioner.
In addition, the Election Commission has the jurisdiction in terms of section 103AA of the 1976 Act to declare the poll in any constituency to be void (subject to the specified conditions, having been met), but this power can be exercised within the period specified in subsection (2), and that also has long since expired in the present case.
8. The jurisdiction that is conferred on the Election Commission to disqualify a legislator is for the question of disqualification to come before the Commission in terms as provided for in the Constitution... To recapitulate: the disqualifications contained in Articles 62 and 63, which apply to Federal legislators, have been made applicable to Provincial legislators by reason of Article 127.
Clauses (2) and (3) of Article 63 provide as follows: "(2) If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and should he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission.
(3) The Election Commission shall decide the question within ninety days from its receipt or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant."
Thus, in relation to a Provincial Assembly,. if a question is found to have arisen as to whether a member of that Assembly has become disqualified from being a member, the Speaker of the said Assembly is to refer the question to the Election Commission in terms of clause (2), and upon such referral the latter is to decide the same in terms of clause (3), with attendant consequences, if any.
The basis on which the said question can arise is to be found, and is only to be found, in any of the clause of Articles 62 and 63, and not elsewhere. The reproduction (to any extent) of the said clauses in subsections (1) and (IA) of section 99 of the 1976 Act is only for purposes of the election process, such as, e.g., scrutiny of nomination papers, or any declaration to be made by the Election Tribunal in a dispute brought before it in an election petition. For present purposes, it is important to note that in neither of those cases, and for that matter even under section 103AA, is there any jurisdiction conferred on the Election Commission in relation to the disqualification of the legislator.
10. It follows that in our view the only manner that the Election Commission can lawfully exercise jurisdiction with regard to whether a legislator is disqualified from being a member of an Assembly is if, and when, the question is brought before it in terms of clauses (2) and (3) of Article 63...."
7. Keeping the foregoing observations in mind, it is clear that if the matter before the Election Commission came to it, as contended by learned counsel for the petitioner, by way of a direct complaint filed by the respondent No, 3, then it would be without and beyond jurisdiction. In such a situation, in our view, the petitioner would be entitled to the relief sought and the complaint and pending proceedings would have to be quashed.
8. Learned counsel for the respondent No, 3 of course contends that that is not the case. According to him, the matter came before the Election Commission via the procedure laid down in clause (2) of Article 63 and that therefore the Commission has jurisdiction over the complaint. This is strongly contested on behalf of the petitioner for the reasons set out above. We have considered the point.
It does appear to be the case that, as submitted by learned counsel for the petitioner, in neither the complaint itself, nor in the parawise comments filed in this petition, has the respondent No, 3 specifically pleaded that he had first approached the Speaker of the Sindh Assembly and it was only on account of inaction on the latter's part for a period of more than 30 days that the complaint was made to the Election Commission, on the basis that it stood deemed referred to it under Article 63(2). The reference to the Speaker on 02.04.2015 and reminder of 20.05.2015 find no mention in either the complaint or the parawise comments. It is also undoubtedly correct that the said material was placed on record only under statement filed on 02.09.2016. Neither the reference, nor the reminder, bears any acknowledgement of receipt by the Sindh Assembly secretariat. No separate or independent statement from the said secretariat has been produced. Along with the statement two receipts of a courier service have also been appended. These are presumably intended to show dispatch of the reference and the reminder to the. Speaker. However, neither of the receipts appears to be signed by the consignor, nor do they bear the date and time on which the documents were received by the courier service for onward delivery. No certificate of service from the courier service has been produced. We have already held that no direct complaint to the Election Commission is maintainable. The onus therefore lay on the respondent No,3 to show that the complaint had reached the Election Commission via the procedure laid down in clause (2) of Article 63. On the record as produced before us, we conclude and hold that the respondent No, 3 has failed to discharge the burden that lay upon him. Therefore, the matter now before the Election Commission was by way of a direct complaint. The pending proceedings are without and beyond jurisdiction.
9. Even if the finding just recorded is incorrect, in our view the petition would still succeed and we turn now to consider this situation. On the assumption now made, the matter would be within the jurisdiction of the Election Commission, having come to it, on deemed basis, via the procedure laid down in Article 63(2). Now, clause (3) of Article 63, which is reproduced in the passages extracted above from the Bashir Halepota case, requires in the first instance that those specific clauses of Articles 62 and/or 63 be identified in terms of which the disqualification of the legislator is sought.
In the present case, reliance is placed on one provision, Article 62(1)(f). This is in the following terms: "62. Qualifications for membership of Majlis-e-Shoora (Parliament):
(1) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless--...
(f) he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; ....- Article 62 was substituted in its entirety by the 18th Amendment. Clause (f) was also to be found in Article 62 prior thereto but with this difference, that the words emphasized above were not there; they were only added by the 18th Amendment. The effect of these words is clear: unless there is a declaration by a court of law to contrary effect, or there is a declaration by a court of law that amounts to, or has, such effect, it must be assumed that a legislator satisfies the requirements of clause (f). In other words, the existence of such a declaration is an absolutely necessary condition for clause (f) to cease applying to a legislator. Now, the Election Commission is certainly a constitutional authority of the highest importance. But, with respect, whatever else it may be, it is not a court of law. Therefore, the Election Commission itself cannot make a declaration to the effect that a legislator does not satisfy one or more of the requirements of clause (f). It follows that even if a matter is properly before the Election Commission in terms of clauses (2) and (3) of Article 63, if the ground taken for disqualification is that the legislator has failed to meet the requirements of Article 62(1)(f) but there is no declaration to this effect by a court of law, the proceedings must necessarily fail. The reference to the Election Commission must be dismissed. This would be so even if the Election Commission is satisfied--nay convinced--that on the merits of the case before it, the legislator does not meet the requirements of clause (f). Absent such declaration, the Election Commission would be bound to dismiss the reference. (We may note, before proceeding further, that we leave open for consideration in a future case certain important questions relating to the jurisdiction of the Election Commission and proceedings before it that may arise in relation to, or in the context of, the words "has become disqualified" that appear in Article 63(2). Nothing said herein is intended to having any bearing on such questions.)
10. Now, in the case at hand, it is admittedly the position that there is no declaration by a court of law to the effect that the petitioner has failed to meet the requirements of Article 62(1)(0, on the basis as urged by the respondent No,
3. Such being the position, even if the Election Commission were to proceed with the complaint, there could be but one outcome: the complaint would necessarily and inevitably fail, and have to be dismissed. It is well settled that if proceedings brought or pending before any authority, though within jurisdiction, must necessarily fail then the High Court can in appropriate circumstances exercise its jurisdiction under Article 199 to quash such proceedings. In our view, the present situation is of precisely this nature. The respondent No, 3's complaint must necessarily fail, even if within the jurisdiction of the Election Commission (on the assumption currently made). The petitioner has approached this Court at the very outset, successfully raising objections that go the very root of the matter. No purpose would be served in letting the proceedings continue before the Election Commission. The petitioner is therefore entitled to relief from this Court.
11. The cases relied upon by learned counsel for the respondent No,3 may also be considered.
Reliance was placed on Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828. The matter related to the General Election of 2008 and a constituency of the Punjab Assembly. The appellant was the returned candidate and the first respondent one of the losing candidates. She filed an election petition alleging that the appellant did not have a graduate degree (which was then a mandatory requirement) and had falsely stated in his nomination form that this was so. The challenge was in terms of section 99(1)(cc) of the 1976 Act (since omitted), which had provided that one of the qualifications of a member of an Assembly was that he has a graduate degree or equivalent. The election petition succeeded, and the appellant filed the statutory appeal in the Supreme Court. The Supreme Court, while dismissing the appeal, made certain observations regarding the qualifications required of members of the legislatures, the need to guard against corrupt practices and the obligations of the Election Commission this regard. We have carefully considered the decision. With respect, it does not assist learned counsel. The reason is that it was prior to the 18th Amendment, when Article 62(1)(f) did not have the form that it has today.
Furthermore, the point now in issue, namely the jurisdiction of the Election Commission, was not as such before the Court. The reliance placed on the decision is therefore, with respect, misconceived.
Learned counsel relied also on Najeeb ud Din Owasi and another v. Amir Yar Waran and others PLD 2013 SC 482. This cited case was in fact an order made on a miscellaneous application in the decision just before cited, i,e,, Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828. The miscellaneous application had been filed after the Supreme Court had decided the earlier case. In the earlier case, while dismissing the appeal, the Supreme Court, in para 18, had directed the Election Commission to initiate action against all persons who were accused of committing corrupt practices or forgery or using as genuine documents that they knew or had reason to believe were forged. The Election Commission was directed to ensure that the matters be investigated honestly, efficiently and expeditiously. It appears that the Higher Education Commission (HEC) had provided information regarding the authenticity of the degrees of parliamentarians. According to the HEC and/or information with the Election Commission, the degrees of 69 parliamentarians were found to be fake. It was in this context that observations were made by the Supreme Court in the cited order, which were relied upon by learned counsel. With respect, as is clear, the matter before the Supreme Court was far removed from the circumstances at hand. Therefore, the cited case also does not assist learned counsel. Reliance was also placed on Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others PLD 2012 SC 774 and in particular on certain observations made by Mr. Justice Khilji Arif Hussain in his concurring judgment (at pg. 864). With respect, the reliance placed thereon is misconceived. It is clear from the portion relied upon (para 40) that the observations made were in the context of a petition brought before the Supreme Court or a High Court by a person other than the legislator sought to be disqualified. Here of course, the situation is the exact opposite. Furthermore. the context here relevant, namely the jurisdiction of the Election Commission, was not as such before the Supreme Court.
12. Learned counsel also relied on Allah Dino Khan Bhayo v. Election Commission of Pakistan and others 2013 SCM R 1655. This was a leave refusing order, against a decision of the Islamabad High Court. We may respectfully note that the jurisprudence of the Supreme Court categorically holds that leave refusing orders do not enunciate the law. A recent example is Squibb Pakistan (Pvt) Ltd. and another v. Commissioner of Income Tax and another 2017 SCMR 1005,. where it has been clearly observed that a leave refusing order is not the law enunciated by the Supreme Court (para 5). Therefore while the leave refusing order relied upon by learned counsel is worthy of the highest respect, it will, in our respectful submission, have to be considered as a matter of law in the manner as established by Supreme Court jurisprudence. The petitioner was the returned candidate for a Sindh Assembly constituency in the General Election of 2013. Almost immediately after the elections, a complaint was filed before the Election Commission (it is not clear under which provision) and one of the grounds taken was that the petitioner was disqualified from being a member of the Assembly because he did not fulfill the requirements of Article 62(1)(f). It was, inter alia, averred that in the previous General Election of 2008 the nomination papers of the petitioner had been rejected by the Returning Officer on the ground that the petitioner had presented a fake certificate (equivalent to a graduate degree). The decision of the Returning Officer had never been challenged by the petitioner. It was in such circumstances that the Election Commission concluded that the petitioner failed to meet the requirements of Article 62(1)(f), which decision was upheld by the Islamabad High Court and against which the Supreme Court declined leave to appeal. In our respectful view, the cited decision does not assist learned counsel. The decision against the petitioner by the Returning Officer was given at a time when Article 62(1)(0 did not have the crucial concluding words, "there being no declaration to the contrary by a court of law", now to be found therein. It was in this context that the decision of the Returning Officer was held by the Supreme Court to be conclusive and binding, and one that would "haunt him [i,e,, the petitioner] forever"
(para 11). In other words, the disqualification that attached to the petitioner in terms of Article 62(1)
(f) came about at a time when there was no requirement that there be a declaration by a court of law. The position in the present case is entirely different, Article 62(1)(f) now having a most material and crucial addition. Furthermore,. insofar as the jurisdiction of the Election Commission to directly entertain a complaint is concerned, that issue was not raised before the Supreme Court. The cited decision therefore also does not, with respect, assist the case sought to be made on behalf of the respondent No, 3.
13. Learned counsel also relied on a Division Bench decision of this Court noted at 2016 CLC Notes 137 (Shabbir Ahmed Bijrani v. Election Commission of Pakistan and others). Learned counsel for the petitioner placed before us a full copy of the decision whereby the petition was dismissed (by judgment dated 7-11-2014). It appears that the petitioner petitioned the Supreme Court for leave to appeal. The petition was converted into an appeal and allowed (C.P. 2195/2014, decided on 05.12.2014). A copy of the decision of the Supreme Court was also placed before us. The matter related to the jurisdiction of the Election Commission in terms of section 103AA of the 1976 Act, and proceedings thereunder. As is clear, this case was of a different nature from the issues raised before us in this petition. The Supreme Court expressly noted that "neither the Election Commission of Pakistan nor indeed the High Court was empowered to go beyond the limits of Section 103AA of the Act" (para 7). The reliance placed thereon by learned counsel for respondent No, 3 is therefore, with respect, misconceived.
14. Lastly, learned counsel referred to the judgment, dated 28.07.2017, of the Supreme Court in Imran Ahmed Khan and others v. Mian Muhammad Nawaz Sharif and other matters (C.P. 29/2016 etc.).
These were petitions filed under Article 184(3) of the Constitution. Learned counsel relied in particular on para 14 of the judgment, and the Final Order of the Court. With respect, the reliance placed is misconceived. The issues raised there were, with respect, materially different from those before us in this matter.
15. In view of the above discussion and analysis, this petition is allowed. The complaint filed by the respondent No, 3 and all proceedings taken, actions done and notices issued by the Election Commission arising out of or in relation thereto are hereby quashed and set aside. No other or further action shall be taken in this regard or in respect thereof. There will be no order as to costs.