MUHAMMAD SAJID MEHMOOD SETH I, J.---This consolidated judgment shall dispose of instant writ petition along with following connected writ petition as common questions of law and facts are involved in these cases:- W.P. No, 14893 of 2018 titled Muhammad Salman v . Election Commission of Pakistan, Islamabad and others.
2. Through instant petition, petitioner has assailed order dated 01.10.2018, passed by respondent No,1/Chairman, Election Commission of Pakistan ("ECP"), whereby the election of petitioner / returned candidate from PP-217 Multan-VII was declared void and his notification as returned candidate was withdrawn with direction to conduct re- election in the whole constituency . The operative part of said order is reproduced hereunder:- "16. In the light of the entire discussion above, the Commission holds that the respondent Muhammad Salman, on the date of filing nomination papers on 6.6.2018 was not eligible to contest election being below the age of 25. That his date of birth throughout shown as 28.1.1994, was correct and the one now changed to 1.2.1993, is a result of manipulations and interpolations. The election of Muhammad Salman, returned candidate from PP-217 Multan-VII is hereby declared void, under section 9 of the Election Act, 2017 and all enablin g provisions of the Constitution and the law. His notification as returned candidate is withdrawn and it is hereby directed that re-election be conducted in the whole constituency PP-217 Multan-VII."
3. Learned counsel for petitioner submit that Section 9 of the Elections Act, 2017 ("the Act of 2017") relates to such grave illegalities or violations as may have materially affected the result of the 'poll'. They add that said provision has no application in the case of petitioner and appeal available under Section 9(5) of the Act ibid is of no use to petitioner , however , appeal has been filed as an abundance of caution. They further submit that no appeal lies to the Supreme Court against the impugned order , passed by respondent-ECP in the exercise of powers under "all other enabling provisions in this behalf." They add that the last portion of Sectio n 9(1) of the Act of 2017 clearly spells out that in case, such illegalities or violations were found to have taken place , the respondent-ECP will make a declaration accordingly and thereafter , shall call upon the voters in the concerned polling station(s) to recast their votes in the manner provided for bye-elections. They further submit that in the instant case, respondent-ECP claims to have disqualified the petitioner under Article 62 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), therefore, the question of calling upon the voters of the constituency to recast their votes does not arise. They argue that material factual and legal aspects of the matter have been overlooked while passing the impugned order . They add that petitioner is entitled to fair trial as per Article 10-A of the Constitution.
They maintain that the provisions of Section 9 of the Act of 2017 and Section 103-AA of the Representation of the People Act ("ROP A"), 1976 are completely different and are not pari materia. They add that Section 9 clearly relates to poll, whereas Section 103-AA of ROP A, 1976 had an extended application. They further submit that powers of the respondent-ECP are not absolute. They add that there are disputed questions of facts involved in the matter , which could not have been resolved in a summary manner . They further submit that even otherwise, in such cases, benefit of doubt is to be given to the candidate. They further contend that respondent-ECP cannot pass a short order as after expiry of sixty days from the notification, it could neither issue nor sign the detailed judgment. In the end, they submit that Article 225 of the Constitution acts as a complete bar to the jurisdiction of any Court or Authority except an Election Tribunal, duly constituted in accordance with law. In support of their submissions, they have relied upon Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others (PLD 1957 Supreme Court 91), Hussain Bakhsh v. Settlement Commissioner , Rawalpindi and others (PLD 1970 Supreme Court 1), Shah Muhammad v. Ghulam and another (PLD 1970 Supreme Court 196), The Murree Brewery Co. Ltd. v. Pakistan through the Secreta ry to Government of Pakistan, Works Division and 2 others (PLD 1972 Supreme Court 279), Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 Supreme Court 160), Sind Employees' Social Security Institution v. Dr. Mumtaz Ali Tar and another (PLD 1975 Supreme Court 450), Ibrahim v. Mohammad Hussain (PLD 1975 SC 457), Syed Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 Supreme Court 6), Mirza Abdul Hameed and others v. Member , Board of Revenue-II (1986 SCMR 257), Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 Supreme Court 396), Habibullah Jan and 3 others v. Muhammad Hassan Khan and 6 others (PLD 1991 Supreme Court 93), Ghulam Mustafa Jatoi v. Additional District and Sessions Judge / Returning Officer , N.A. 158, Naushero Feroze and others (1994 SCMR 1299 ), Khiali Khan v. Haji Nazir and 4 others (PLD 1997 Supreme Court 304), The State v. Asif Adil and others (1997 SCMR 209), Regional Commissioner of Income Tax, Corporate Region, Karachi and others v.
Shaft Muhammad Baloch (1998 SCMR 246), Muhammad Tufail v. The State (1999 SCMR 1981 ), Furzand Raza Naqvi and 5 others v. Muhammad Din through-Legal Heirs and others (2004 SCMR 400), Muhammad Safdar Abbasi v. Aamir Yar Malik and 3 others (2004 SCMR 1602 ), Syed Nayyar Hussain Bukhari v. District Returning Officer , NA-49, Islamabad and others (PLD 2008 Supreme Court 487), Syed Fakhar Imam v. Chief Election Commission of Pakistan and others (PLD 2008 Supreme Court 730), Aurangzeb Khan v. Election Commissioner of Pakistan, Islamabad through Secretary and others (PLD 2010 Supreme Court 34), Rana Aftab Ahmad Khan v.
Muhammad Ajmal and another (PLD 2010 Supreme Court 1066), Dr. Muhammad Shahid Mian and another v. Faiz- ur-Rehman Faizi (PLD 2011 Supreme Court 676), Dr. Sohrab Ahmed Khan Sarki v. Mir Hassan Khoso and others (2011 SCMR 1084 ), Babar Hussain Shah and another v. Mujeed Ahmed Khan and another (2012 SCMR 1235 ), Reviews on behalf of Justice (Retd.) Abdul Ghani Sheikh and others (PLD 2013 Supreme Court 1024 ), Malik Umar Aslam v. Mrs. Sumaira Malik and others (2014 SCMR 45), Dr. Raja Aamer Zaman v. Omar Ayub Khan and others (2015 SCMR .1303 ), Lt.-Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others (2015 SCMR 1585 ), Muhammad Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 Supreme Court 97), Ch. Muhammad Ashraf Warraich and another v. Muhammad Nasir Cheema and others (2016 SCMR 998), Raja Shaukat Aziz Bhatti v. Major (R) Ifiikha r Mehmood Kiani and another (PLD 2018 Supreme Court 578), Mst.
Sumaira Malik v. Malik Umar Aslam Awan and others (2018 SCMR 1432 ), Order dated 16.03.2007, passed by Hon'ble Supreme Court in C.P. No,2060-L of 2003 titled Aziz-ud-Din Ahmed Khan v. Zafar Ullah Khan and others , Ajmal Hussain v. K.M.Hussain Darabu (1992 CLC 1073 ), National Development Finance Corporation v. Wafaqi Mohtasib, Islamabad and others (2004 CLD 260), Messrs Popular Boards (Pvt.) Ltd. v. Customs, Excise and Sales Tax Appellate Tribunal and another (2007 MLD 157), Riaz Mehmood Sheikh v. Shamsher Alam Khan and another (2009 CLC 862), Col. (Retd.) S. Maqbul Illahi through Attorney v. Pakistan Defence Officers Housing Authority through Administrator (2009 YLR 282), Moulvi Saifullah Memon and another v. Province of Sindh and others (2011 CLC 1004 ), Sh. Tariq Mehmood and others v. E.T.P.C., and others (2011 YLR 2850 ), Shabbir Ahmed v. Kiran Khursheed and 8 others (2012 CLC 1236 ), Muhammad Saleem v. Province of Punjab through Administrator Town Municipal Administration, District Gujranw ala and 2 others (2014 CLC 1259 ), Messrs National Highway Authority v.
Province of Punjab and others (2014 CLC 1578 ), Muhammad Nawaz Khan v. Election Commission of Pakistan through Secretary and 5 others (2018 CLC 784), United Bank Limited v. Federation of Pakistan and others (2018 CLD 587 ) and Karim Haider Shah and 3 others v . Faqir and 2 others (1992 CLC 25 ).
4. Conversely , learned Law Officer as well as learned counsel for respondents contend that as per Section 9 of the Act of 2017, alternate remedy of appeal against the order passed by respondent-ECP , lies directly to the Hon'ble Supreme Court, which is adequate, efficacious and effective, therefore, writ is not competent. They add that writ jurisdiction can only be invoked when the order is not only without jurisdiction and void, but also leaves the petitioner without any equally efficacious remedy . They further contend that it is not the discretion of a party to leave the statutory remedy and resort to the constitutional jurisdiction of this Court, which is even otherwise extraordinary in nature. They add that it is the duty of respondent-ECP under Article 218(3) of the Constitution to ensure that corrupt practices in the conduct of election are guarded against. They further contend that short order / order of the Court is, in fact, the judgment of the Court, thus, same is valid even in the absence of any supporting reasons as a Tribunal can pass a short order and reasons can be given later. In the end, they contend that once a disqualification is always a disqualification, hence, instant petition, being incompetent, is not maintainable. In support of their contentions, they have referred to The Tariq Transport Company , Lahore v. The Sargodha-Bhera Bus Service, Sargodha and others (PLD 1958 Supreme Court 437), Mian Muhammad Shahbaz Sharif v. The State (1998 SCMR 763), Khalid Mehmood v. Collector of Customs, Customs House, Lahore (1999 SCMR 1881 ), Mst.
Nusrat Batool v. Federation of Pakistan through Secretary , Establishment Division, Government of Pakistan, Islamabad and others (1999 SCMR 2811), Messrs Punjab Beverage Company (Pvt.) Ltd. through General Manager (Administration) v. Central Board of Revenue and 4 others (2001 PTD 3929 ), Syed Match Company Ltd. through Managing Director v. Authority under Payment of Wages Act and others (2003 SCMR 1493 ), Nawabzada Ifiikhar Ahmad Khan Bar v. Chief Election Commissioner , Islamabad and others (PLD 2010 Supreme Court 817), Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 Supreme Court 828), Muhammad Abbasi v. S.H.O.
Bhara Kahu and 7 others (PLD 2010 Supreme Court 969), Rana Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010 Supreme Court 1066 ), Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 Supreme Court 681), Mian Najeeb-ud- Din Owasi and another v. Amir Yar Waran and others (PLD 2013 Supreme Court 482), Reviews on behalf of Justice (Retd.) Abdul Ghani Sheikh and others (PLD 2013 Supreme Court 1024), Abdul Ghafoor Lehri v. Returning Officer , PB-29, Naseerabad-II and others (2013 SCMR 1271 ), Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655 ), D.-G. A.N.F . Rawalpindi and others v. Munawar Hussain Manj and others (2014 SCMR 1334 ), District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 Supreme Court 401), Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others (2015 SCMR 233), Ch. Muhammad Ashraf Warraich and another v. Muhammad Nasir Cheema and others (2016 SCMR 998), Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others (PLD 2018 Supreme Court 114), Sher Alam Khan v. Abdul Munim and others (PLD 2018 Supreme Court 449), Raja Shaukat Aziz Bhatti v. Major (R) Iftikhar Mehmood Kiani and another (PLD 2018 Supreme Court 578), Election Commission of Pakistan and another v. Bibi Yasmeen Shah and others (PLD 2018 Supreme Court 732). Judgment dated 25.03.2015, passed by Hon'ble Supreme Court in Civil Appeal No,91 of 2015 titled Abdul Waheed Chaudhry v. Rana Abdul Jabbar and others , Judgment dated 17.10.2018, passed by Hon'ble Supreme Court in Suo Motu Case No,8 of 2018 and Civil Misc.
Application No,649-L of 2018 in Suo Motu Case No,8 of 2018 regarding dual nationality of Parliamentarians, Mian Sultan Ali Nanghiana v. Mian Nur Hussain (PLD 1949 Lahore 301), Affan Khalid v. Abdul Razzaq and another (2006 CLC 1881 ), Pervaiz lqbal v. Tehsil Nazim and others (2007 CLC 583), Syeda Waheeda Shah v. Election Commission of Pakistan through Chief Election Commissioner and 4 others (PLD 2013 Sindh 117), Engro Foods Ltd. v. C.D.G. and others (2016 CLC 234), Haider Gabol through Lawful Attorney v. Province of Sindh and others (2017 CLC Note 118), Hassan Shahjehan v. FPSC through Chairman and others (PLD 2017 Lahore 665) and Malik Taj Ahmad v. Malik Muhammad Nawaz, Member of Provincial Assembly (MPA), Punjab and others (PLD 2018 Lahore 723 ).
5. Arguments heard. Available record perused.
6. The precise submission of the learned counsel for the petitioner is that Article 225 of the Constitution acts as a complete bar to the jurisdiction of any court or authority except an Election Tribunal, and Section 9 of the Act of 2017 is concerned with the polls or pollin g, hence the impugned order passed by the ECP is without jurisdiction.
Neither said provisions of law were attracted nor was such an order appealable before the Hon'ble Supreme. Court but the appeal has been filed as an abundance of caution, and, according the learned counsel, the only remedy of petition under Article 199 is available to the petitioner . It is the stance of petitioner that Section 9 is relatable to such grave illegalities and violations as may have materially affected the result of the poll. However , the impugned order is concerning the eligibility of petitioner to contest the elections on the day when he submitted his nomination papers. For facility of reference, Section 9 of the Act of 2017 is reproduced hereunder:- "9. Power of the 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 enquiry as it may deem necessary , the Commission is satisfied that by reason of grave illegalities or such violations of the provisions of this Act or the Rules as have materially affected the result of the poll at one or more polling stations or in the whole constituency including implementation of an agreement restraining women from casting their votes, it shall make a declaration accordingly and call upon the voters in the concerned polling station or stations or in the whole constituency as the case may be, to recast their votes in the manner provided for bye-elections. Explanation.--- If the turnout of women voters is less than ten percent of the total votes polled in a constituency , the Commission may presume that the women voters have been restrained through an agreement from casting their votes and may declare, polling at one or more polling stations or election in the whole constituency , void.
(2) Notwithstanding the powers conferred on it by subsection (1), the Commission may order filing of complaint under this Act before a court of competen t jurisdiction against persons who entered into the agreement referred to in subsection (1).
(3) Notwithstanding the publication of the name of a returned candidate under section 98, the Commission may exercise the powers conferred on it by subsection (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 the decision of an Election Tribunal on an election petition, if any .
(4) While exercising the powers conferred on. it by subsection (1), the Commission shall be deemed to be an Election Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter IX, regulate its own procedure.
(5) Any person aggrieved by a declaration of the Commission under this section may, within thirty days of the declaration, prefer an appeal to the Supreme Court."
7. Admittedly , petitioner has already filed an appeal before the Hon'ble Supreme Court wherein all the grounds enumerated in the submissions of the petitioner have already been taken and the Hon'ble Apex Court while taking the cognizance of the matter has already issued notices to the respondents for comments / written statements. The grounds so taken can well be adjudicated upon by the highest forum in the hierarchy of adjudicatory process of this country . It is trite law that appeal lies against an order without jurisdiction in the same manner as an appeal against an order with jurisdiction. Reference in this regard can be made to the esteemed judgments of Hon'ble Supreme Court of Pakistan reported as (PLD 1995 Supreme Court 66) Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly , N.W.F.P. and another , (PLD 1973 Supreme Court 368) Muhammad Ashfaq v. The State and others (PLD 1976 Supreme Court 315) Abrar Hasan v . Government of Pakistan .
Even otherwise, Article 199 of the Constitution opens with the words to the effect that High Court may exercise its powers under said Article only "if it is satisfied that no other adequate remedy is provided by law". Adequacy of the alternate remedy , therefore, if there is another remedy available, should always attract the attention of the Court.
There are other matters however , where the constitutional jurisdiction under Article 199 cannot be so readily resorted to. One such, falling in this category , would be matters amenable to the jurisdiction of an exclusive tribunal, mandated by the Constitution. Another , which readily comes to the mind, would be disputes under a statute, postulating the appellate or Revisional jurisdiction to reside either in the High Court itself or directly in the Supreme Court. An example essentially relevant to the first would be the Service Tribunal, where the tribunal is mandated by the Constitution of Pakistan namely , Article 212, thereof and where an appeal lies directly from the tribunal's decision to the Supreme Court. More or less similar principle applies where an exclusive tribunal or a regular court has jurisdiction in a matter but the legislation creating such court or forum or conferring jurisdiction on the same also ends up by providing appel late or revisional jurisdiction. Same rule applies to Election Tribunal which has been created under Article 225 of the Constitution. It is also worth mentioning that as per subsection (4) of the Section 9 of the Act of 2017, while exercising the powers conferred on the Commiss ion by subsection (1) of Section 9, the Commission is deemed to be an Election Tribunal to which an election petition has been presented. Hence constitutional jurisdiction in all the cases cannot be invoked as a matter of right, course or routine, rather such jurisdiction has certain circumventions which the Court is required to keep in view while exercising its extraordinary discretionary powers, as the condition' mentioned in the said Article are obviously meant for the purposes of regulation of the Court's jurisdiction and the availability of the "other remedy" is one of such limitations.
8. The issue to this extent has already been settled by Hon'ble Islamabad High Court, Islamabad vide judgment dated 28.07.2017, passed in W.P. No,2604 of 2017. The writ petition was dismissed being not maintainable by observing that writ petition complaining against the order of a tribunal would not be entertained in the absence of an adequate explanation as to why the petitioner did not avail the remedy of appeal provided to him against the impugned order , especially in view of subsection (4) of Section 103-AA of the ROP A, 1976. The aforesaid order was upheld by the Apex Court in the case of Raja Shaukat Aziz Bhatti supra . The relevant observations of afore- referred judgment dated 28.07.2017, passed by Hon'ble Islamabad High Court, are reproduced as under:- "21. There are innumerable cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record, where a certiorari has been granted even though the right of statutory appeal had not been availed by a petitioner . Other instances where the High Courts assume writ jurisdiction in petitions where an alternative remedy is available to the petitioner under the law, are where the order impugned is based on extraneous or malafide considerations, or where the rules of natural justice have been violated, or where the alternative remedy was not adequate or was onerous or where the provision of law under which the impugned order was passed is itself unconstitutional. In none of the cases that I have come across, the High Court has exercised Constitutional jurisdiction wher e the remedy of an appeal as of right to the Hon'ble Supreme Court is available under the law to a petitioner . Where a statute provides a remedy of an appeal to the High Court or the Hon'ble Supreme Court to a writ petitioner , the High Court ought to decline exerci sing its jurisdiction under Article 199 of the Constitution.
22. ...
23. ...
24. ...
25. The petitioner in the instant writ petition is essentially seeking the issuance of a writ of certiorari against the order dated 20.06.2017 passed by the E.C.P . The petition has been filed under Article 199 of the Constitution. This Court is to exercise jurisdiction under Article 199 of the Constitution only "if it is satisfied that no other adequate remedy is provided by law". Now, due to the addition of subsection (4) to section 103-AA of R.O.P .A. there is a remedy of an appeal against an order passed by the E.C.P . under section 103-AA of R.O.P .A. For this Court to assume jurisdiction in this matter by altogether ignoring subsection (4) to section 103-AA of R.O.P .A. as well as the mandate of Article 199(1) of the Constitution would be tantamount to reading the law with contempt.
26. .....
27. The petitioner is at liberty to agitate the grounds taken in this petition in his appeal before the Hon'ble Supreme Court, should he decide to file one. The appellate forum will be better equipped to consider and decide the questions of facts in this case, since it has jurisdiction over questions of fact as well as of law. The High Court while adjudicating upon a writ petition is not properly equipped to deal with questions of fact, especially if they are disputed.
28. For the above reasons, I am of the view that there are no exceptional circumst ances to persuade me to depart from the normal rule that a writ petition complaining against the order of a tribunal (in this case an order of the E.C.P . passed under section 103-AA of R.O.P .A.) would not be entertained in the absence of an adequate explanation as to why the petitioner does not avail the remedy of appeal provided to him against the impugned order by subsection (4) of section 103-AA of R.O.P .A. Since I do not find this petition to be maintainable in the presence of the remedy of an appeal to the Hon'ble Supreme Court available to the petitioner against the impugned order dated 20.06.2017, there is no need to give any finding on the second objection of respondent No,2.
29. The writ petition is, therefore, dismissed as not maintainable, but in the circumsta nces without any order as to costs."
9. Learned counsel for petitioner has argued that the said judgment by the Hon'ble Islamabad High Court was passed while interpreting ROP A which has extended application. There is no merit in this argument for the reason that both the above provisions are pari materia at least to the extent of remedy of appeal before the Hon'ble Supreme Court against an order passed by ECP, therefore, in presence of pending appeal before the Hon'ble Apex Court, this petition is not competent.
10. In view of the above, instant petition, along with connected petition, being not maintainable, is hereby dismissed with no order as to costs.