MUHAMMAD HASHIM KHAN KAKAR, J. --- Through this election petition, the petitioner Muhammad Yousaf Khan, has challenged the election of respondent No, 1 Naeem Khan Bazai (the "respondent") who, alongwith respondent Nos, 2 to 16 contested the election for the seat of Balochistan Provincial Assembly , PB-24, Quetta-I, the respondent was declared as a returned candidate on securing highest number of votes of 6531, against the petitioner , who securing 4289 votes with the dif ference of 2242 votes.
2. The Notification No, F.2(42)/2018-Cord. dated 7th August, 2018, issued by the Election Commission of Pakistan (the "Commission "), whereby the respondent No, 1 was declared returned candidate has mainly been challenged, inter alia, on the grounds that the success of respondent is the result of corrupt practices and illegal acts allegedly committed by him with the help of the polling staff and the District Administration. It is further pleaded that before the General Elections, 2018, the census were conducted throughout the country and the preliminary de-limitation of constituencies of National and Provincial Assemblies were carried out and objections were filed before Secretary of the Commission against the delimitation of constituency in question as well as PB-25 Quetta-II, PB-26 Quetta-III, PB-27 Quetta-IV , PB-28 Quetta-V , PB-29 Quetta-VI, PB-30 Quetta-VII and- PB-32 Quetta-VIII but the same were not entertained vide order dated 02.04.2018. The order dated 02.04.2018, passed by the Comm ission was challenged through Constitutional Petition No, 63 of 2018, before the Hon'ble High Court of Balochistan, which was disposed of alongwith the connected matters by means of order dated 01.06.2018 and after nullifying the delimitation of the aforesaid constituencies, the Commission was directed for restructuring of the said constituencies in the light of proposals made in CP No, 628 of 2018.
3. The order passed by the Hon'ble High Court of Balochistan was assailed befor e the Hon'ble Supreme Court of Pakistan by one Malik Naseer Ahmed and Abdul Basit but of no avail and order passed by the High Court was upheld vide order dated 07.06.2018, whereby , the Commission was directed to re-structu re the above eight Provincial constituencies of Quetta District in the light of order dated 01.06.2018 passed by the Hon'ble High Court of Balochistan but the Commission, in clear violation of the orders passed by the Superior Courts, held the Election on the basis of those constituencies which were already nullified by the Hon'ble High Court of Balochistan. As per petitioner , after passing the order dated 07.06.2018 by the Hon'ble Supreme Court of Pakistan, one Hazrat Umer , again approached the Hon'ble High Court of Balochistan by means of filing CP. No, 973 of 2018, which was disposed of by means of order dated 24.07.2018, which reads as under:-- "Learned counsel for the petitioners did not press the instant Constitution petition at this belated stage when the General Elections 2018 is going to be held by tomorrow and he contemplates to agitate the grievance of the petitioners before the post-election tribunal.
The petition having not been pressed for the time being is dismissed as withdrawn and the petitioners are held at liberty to agitate their grievance before the post-election tribunal."
4. The petitioner further pleaded that the election, held on the basis of those constituencies, which were already nullified by the Hon'ble High Court of Balochistan, has materially af fected the results.
Petitioner , on the aforesaid grounds, has made following prayers:-- "It is accordingly respectfully prayed that this Honourable Tribunal may call for the whole record of the election of the constituency in question with the direction that same may be kept in safe custody till final disposal of the matter and also declare the whole exercise conducted by the Election Commission in PB-24 Quetta-I void as a whole being it was not a constituency in the light of orders of Honourable Supreme Court and Hon'ble High Court in the interest of justice.
OR To pass any other appropriate order as is deemed fit and proper in the circums tances of the case with cost of petition, in the interest of justice."
5. None of the private respondents except respondent No, 1, who was declared elected, has contested this petition.
Therefore, on 08.10.2018 the respondent Nos, 2 to 16 were proceeded against ex-parte. Respondents 17 to 19, being the Election Commission and its officers, also submitted their joint written statement. The contesting respondents through their written statements, have denied all the allegations and grounds of the petition. In addition, they have also raised several preliminary legal objections to the maintainability of this petition.
6. The divergent pleadings of the parties gave birth to the following issues:--
(1) Whether the respondent has committed corrupt practices and illegal am on the day of polling i,e, July 25, 2018, if so to what effect?
(2) Whether before holding of general election of 2018, the Commission was bound for restructuring the constituencies of District Quetta in the light of directives issued by the Hon'ble High Court of Baluchistan?
(3) Whether the election of the respondent No, 1 is liable to be declared void as a whole being held on the basis of constituency , already nullified by the Hon'ble High Court of Baluchistan?
(4) Whether the petitioner is entitled for the relief claimed for?
(5) Relief?
7. The petitioner entered the witness-bo x as PW-1 in support of his case and cause. He did not examine any witness. Similarly , the respondent No, 1/returned candidate recorded his statement as RW-1, however , he also did not produce and examine any witness.
8. Issue No, 1, is regarding the allegations of corrupt and illegal practices alleged ly committed by the respondent No, 1, during the course of election process. In this regard, at the very outset, it would be relevant to state that the allegations levelled by the petitioner against the respondent No, 1 in the memo. of petition as well as in affidavit-in- evidence do not qualify the legal test as laid down by Section 144(1)(b) of the Elections Act, 2017, which reads as under:--- "
144. Contents of petition. ( 1) Every election petition shall contain---
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including names of the parties who are 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."
9. A combined reading of the allegations set up in the election petition and the statutory provisions of Section 144 of the Act of 2017 would show that the petitioner has badly failed to put forward full particulars of corrupt and illegal practices or other illegal acts alleged to have been committed by the returned candidate and his supporters. A bare perusal of the allegations mentioned in the election petition would show that instead of providing full particulars of the corrupt and illegal practices allegedly committed during the election process, the petitioner has merely relied upon the vague and general allegations that too without examining a single witness in support of his case. Mere words of the petitioner are not sufficient and very strong and cogent evidence is required for de-seating the returned candidate, thus the issue is resolved in negative.
10. In respect of the issue No, 2, Mr. Naseebullah Tareen, learned counsel for the petitioner contended that under Articles 187 and 189 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") any order passed by the Hon'ble Supreme Court of Pakistan is binding upon all the executive authorities and subordinate Courts but the election of respondent No, 1 was held on the basis of constituency , already nullified by the High Court of Baluchistan, as such, the Commission was not authorized to conduct the election on the basis of such constituency , which was already nullified by the Hon'able High Court, and the election of respondent is liable to be declared void. On the contrary , M/s. Jameel Ramzan and Muhammad Rafiq Longove, learned Law Officers, appearing on behalf of the Commission, contended that no violation of the order , passed by the Hon'ble High Court has been committed by the Commission, rather in pursuance of the said directions, the matter was revisited by a three Members bench of the Commissio n and in this regard a detailed order 07.06.2018 was passed. He, while making a reference to Section 236(3) of the Act of 2017, contended that this Tribunal has no jurisdiction to reverse the findings of the Commission in respect of de-limitation, conducted by the Commission in accordance with the provisions of Sections 19 to 22 of the Act of 2017.
11. There is no cavil to the proposition that neither the Commission nor this Tribunal has any authority under the law to sit in appeal to reverse the findings of High Court. Similarly , both the parties are in agreement that under Articles 189 and 190 of the Constitution, law declared by the Supreme Court becomes law of the land and is binding not only on all Courts in Pakis tan but also on all organs of the State and there is no escape from acceptance, obedience, or compliance of an order passed by the Hon'ble Supreme Court, which is the final and the highest Court in the country and no one can be allowed to violate the same, while taking shelter behind technicalities. It would also be pertinent to mention here that effect of the Supreme Court's judgment cannot be eroded or nullified through any executive or administrative instrumentality and it is by now settled that even legislature cannot destroy , annul, set aside, vacate, reverse or modify a final judgment of a Court of competent jurisdiction. While holding this view, I am fortified from the cases of "Mir Alam Gul v. Ismail" (PLD 1990 SC 926), "Ashiq, Hussain alias Muhammad Ashraf v. State" (PLD 1994 SC 879), "Province of the Punjab v. Haji Yaqoob Khan" (2007 SCMR 554) and "Sh. Muhammad Rafique Goreja v. Islamic Republic of Pakistan", (PLJ 2006 SC 127). Likewise, to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen and denial of vested right having accrued in favour of any party would justify issuance of directions by the High Court under Constitutional jurisdiction to set right the wrong. Since both the parties are not at variance, as such, the issue is resolved in affirmative and it is held that the under the law, the directions of the Hon'able High Court being also endorse by the Hon'able Supreme Court were/are binding upon the Commission and the constituencies of district Quetta are required to be restructured in the light of directions issued by Hon'ble High Court.
12. So far as the main issue No, 3, which is in respect of declaring the election of respondent No, 1 as returned candidate is concerned, I am of the opini on that only the election disputes can be challenged before this Tribunal under the provisions of Act of 2017, which is comprehended by Article 225 of the Constitution and the same is comprehensive in all respects. Section 139 of the Act provides for the challenge of an election; Section 156 relates to the grounds for declaring the election of a returned candidate void and Section 157 deals with the grounds for declaring a person other than returned candidate; whereas, Section 158 prescribes the grounds for declaring the election as a whole void and it also defines corrupt practices, undue influence, penalty for corrupt practice and all other steps, which are to be taken in connection with the holding of an election and other ancillary matters. The term "election" is not defined in the Act or the Constitution, however , it has received judicial consideration in different context in relation to the election process. In this regard reference can be made to the case of "Muhammad Afzal v . Mian Miraj Din" (PLD 1967 Lahore 689 ), wherein it has been held:--- "It is well-settled that election is a continuous process consisting of a series of facts required to be done in different stages in accordance with the schedule contained in the notification to be published in the official Gazette fixing dates for filing of nomination papers, scrutiny of nomination papers, withdrawal and retirement of candidates, actual poll, counting of votes and declaration of results, etc."
Similarly , in the case of "Election Commission of Pakistan through its Secretary v. Javaid Hashmi (PLD 1989 SC 396), it has been held:--- "In Election Commission of India v. Shivaji AIR 1988 SC 61 it was held that the word "election" was used in a wide sense to connote the entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in Article 329(b) of the Constitution. It reaffirmed the meaning of the word "election" as stated in N.P. Ponnuswami's case. Thus in its wide sense the word "election" has been appropriately used in the Article with reference to, the entire process consisting of several steps taken for its completion which have a bearing on the result of the process."
Likewise, in the case of "Worker's Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others" (PLD 2012 SC 681), the Hon'ble Supreme Court has held as under:- -- "A bare reading of Article 218(3) makes it clear that the Election Commission is charged with the duty to "organize" and "conduct the election." The language of the Article implies that the Election Commission is responsible not only for conducting the election itself, but also for making all necessary arrangements for the said purpose, prior to the Election Day. By conferring such responsibility on the Election Commission, the Constitution ensures that all activities both prior, on and subsequent to Election Day, that are carried out in anticipation thereof adhere to standards of justness and fairness, are honest in accordance with law and free from corrupt practices. This Court in Election Commission of Pakistan v. Javaid Hashmi and others (PLD 1989 SC 396), observed that "generally speaking election is a process which starts with the issuance of the election programme and consists of the various links and stages in that behalf as for example, filing of nomination papers, their scrutiny , the hearing of objections and the holding of actual polls. If any of these links is challenged it really (is) tantamount to challenging the said process of election". It interpreted that the phrase 'conduct the election' as having "wide import" and including all stages involved in the election process. These observations subject all election related activities that take place between the commencement and the end of the election process to the jurisdiction conferred on the Election Commission under Article 218(3). The Election Commission therefore has to test all election related activities that are carried out in the relevant period, both individually and collectively , against the standards enumerated therein."
13. A plain reading of the above case-laws manifests that election is a process which starts with the issuance of the election programme and consists of the various links and stages in that behalf, as for example, filing of nomination papers, its scrutiny , the hearing of objections and the holding of actual polls. If any of these links is challenged, it really (is) tantamount to challenging the said process of election. It is the proprietary of action taken in these stages that can be scrutinized by this Tribunal. It is an established point that the stage of delimitation of constituencies occurs much prior to and is altogether distinct from the election process that is announced in an election programme. Nor is it a stage that is amenable to the jurisdiction of this Tribunal. In this regard reference can be made to the case of "Pakistan Peoples Party v. Government of Punjab" (PLD 2014 330) (sic), wherein it was held:-- - "The above-quoted precedents, including most importantly , the view expressed by the Hon'able Supreme Court of Pakistan considered the stages of the election process that are challengeable before an Election Tribunal to constitute "election" within the meaning of Article 225. These are the stages or events that form part of the election schedule to constitute the "election". It is the propriety of action taken in these stages that can be scrutinized by an Election Tribunal. It is an established point that the stage of delimitation of constituencies occurs prior to and is altogether distinct from the election proce ss that is announced in an election programme. Nor is it a stage that is amenable to the jurisdiction of an Election Tribunal as envisaged by the Constitution and by the Hon'able Supreme Court in Hashmi's case."
14. It may also be stated that the provisions in regard to Census are covered by the Census Ordinance, 1959, under which the Government from time to time in order to obtain certain information with respect to the population, number of houses and its conditions in country has promulgated the Ordinance , authorizing its functionaries to collect the data for the aforesaid purposes. Similarly , there is nothing on record to show that respondent was either instrumental or was in any way responsible for formation of the constituency in question. The respondent also like the petitioner participated in the election and got elected, thus, this Tribunal would not sit in appeal to review the constituencies and process of de-limitation, carried out by the Commission.
15. It is also interesting to observe that the petitioner has never approached any forum in respect of constituencies in question nor appeared in any case, referred above. He participated in the election without raising any objection and after losing the election, at this belate d stage cannot be allowed to challenge the election of respondent due to his conduct in view of principle of "Acquiescence".
16. During the course of argument, I was also informed by the learned counsel of the parties that elections of all the returned candidates from eight provincial constituencies of Quetta District have already been challenged before the Hon'ble High Court of Balochistan on the strength of order dated 01.06.2018 by means of filing Constitutional Petition No, 628/2018 and the matter is still pending adjudication. In such circumstances, it would be appropriate for the parties to pursue their grievances before the Hon'ble High Court, which is the proper forum to decide as to whether directives of Hon'ble High Court have been violated or otherwise.
For the aforesaid discussion, the petition, being without merit, is dismissed with no order as to cost.