JAWAD HASSAN, J. Through this petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner seeks to set aside order dated 28.09.2021 (the "Impugned Order") passed by the Election Commission of Pakistan (the "ECP") whereby she being a returned candidate has been declared as disqualified from the seat of Member Cantonment Board.
A. BRIEF FACTS
2. The Petitioner submitted her nomination papers to contest elections as Member Cantonment Board Kamra on general seat from Ward No.4. Her nomination papers were accepted and she was declared as successful candidate in terms of notice dated 13.08.2021. The Respondent No.4 also submitted his nomination papers but the same were withdrawn by him on 12.08.2021. Thereafter, the said Respondent moved an application dated 17.08.2021 raising objection on seconder of the Petitioner on the ground that he does not belong to Ward No.4. Although application dated 17.08:2021 submitted by aforesaid Respondent before the Respondent No.3 remained undecided yet, Respondent No.1 proceeded to pass the Impugned Order.
B. PETITIONER'S SUBMISSIONS
3. Sh. Ahsan-ud-Din, ASC, argues that in response to public notice dated 15.07.2021, election schedule for Cantonment Board Kamra was issued and accordingly the Petitioner submitted her nomination papers, which after scrutiny by the Respondent No.3 in terms of Rule 19 of the Cantonments Local Government (Election) Rules, 2015 (the "Rules") were accepted and she was declared as successful contesting candidate under Rule 24 of the Rules on 13.08.2021. Sh. Ahsan- ud-Din, ASC further argues that during the scrutiny process from 31.07.2021 to 03.08.2021, no objection was sever filed by any candidate against nomination papers of the Petitioner however, the Respondent No.1 entertained time barred application of the Respondent No.4 which is violation of Section 225 of the Act read with Rule 19(6) of the Rules. He adds that the Respondent No.4 had no Iocus-standi to file objection petition after withdrawal of his nomination papers in terms of Section 65 of the Act read with Rule 21 of the Rules and if he had any grievance, he should have filed petition before Election Tribunal. He next adds that the Respondent No.1 has no jurisdiction to decide question of qualification /disqualification of a candidate for which a right of appeal against acceptance or rejection of nomination paper has been provided in the Act and the Rules which has not been availed by the Respondent No.4 from 04.08.2021 to 07.08.2021 hence, the order passed by the Respondent. No.1 is illegal. Sh. Ahsan-ud-Din, ASC has relied on paragraphs No.41 and 42 of the case law reported as "Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others" (PLD 2012 Supreme Court 681).
C. RESPONDENTS' ARGUMENTS Arguments of Respondents Nos. 1 to 3
4. Mr. Sana Ullah Zahid, ASC for the Respondents Nos.1 to 3 objected to maintainability of the petition on the ground that the Petitioner has to file appeal against the impugned order of the ECP within thirty days under Section 9(5) of the Elections Act, 2017 (the "Act") before the Hon'ble Supreme Court of Pakistan. He argues that the nomination papers of the Petitioner were erroneously accepted vide notice dated 13.08.201 and returning officer declared her as successful candidate being unopposed due to withdrawal of nomination papers by other candidates, but when on filing of application by the Respondent No.4 under Rule 17(2) of the Rules, it was unearthed during inquiry by the ECP that seconder of the Petitioner was not resident of Ward No.4, it has rightly allowed that application by disqualifying her from the seat of member Cantonment Board. He adds that. Article 218(3) of the Constitution empowers the ECP to take pre-emptive measures and steps to conduct elections and the impugned order passed by the ECP is in accordance with law.
He has relied on recent judgment of this Court passed in W.P.No.70103 of 2021 titled "Jamshed lqbal Cheema v. The Election Appellate Tribunal and others" (2022 CLC 463).
Arguments of Respondent No.4
5. Mr. Zafar Hussain Joiya, Advocate for the Respondent No.4 while objecting to maintainability of the petition on the ground of availability of alternate remedy under Section 9(5) of the Act argues that the Respondent No.4 did withdraw his nomination papers but thereafter he filed application to the concerned authority under Rule 19(4) of the Rules for disqualification of the Petitioner by highlighting that seconder of the Petitioner was not of the same Ward. He further argues that not only Section 75 of the Act empowers the Respondent No.1 to correct the illegality committed on the part of returning officer but also Section 9 of the Act authorizes the Respondent No.1 to declare the poll void.
D. POINTS OF DETERMINATION
6. Out of divergent contentions of the parties following points of determination are framed: I. Whether the ECP is competent to de-notify a Returned candidate on the basis of a pre-election disqualification under Section 9 of the Act?
II. Whether the jurisdiction of this Court is barred in lieu of Section 9(5) of the Act?
E. DETERMINATION BY THE COURT Point No.1
7. Any voter of a constituency may propose or second the name of any qualified person to be a candidate for Member for that constituency and may file objections to the candidature of a candidate of that constituency as per Sections 60 and 62 of the Act. The Rules stipulates that after publication of election programme the Returning Officer shall give a public notice inviting nomination papers. Every proposal for a candidate contesting election from the ward where he is a registered elector in the electoral roll of that ward shall be signed by the proposer and the seconder of the same ward on the nomination paper. The Returning Officer in terms of Rule 17 of the Rule shall inform such person of the time and place at which he shall hold scrutiny of his nomination Paper. The scrutiny, of nomination papers shall be open to the candidates, their election agents, proposers and seconders or the person who made any representation or objection against the nomination papers. The Returning Officer shall give reasonable opportunity for examining all nomination papers. He shall decide any objection raised to any nomination. Appeal, against the decision of the Returning Officer may be preferred to the appellate authority and the decision of such authority shall be final as per Rule 19 of the Rules. After scrutiny, where only one person remains as validly nominated candidate from a ward, the Returning Officer shall, by public notice, declare such candidate to be elected to the seat from that ward in view of Rule 24 of the Rules. No election shall be called in question except by an election petition made by a candidate for the election to membership the Board from a ward of a cantonment as per Rule 54 of the Rules.
For the trial of election petitioners, the Commission may appoint as many Election Tribunals as may be necessary, in consultation with the Chief Justices of the concerned High Courts (Rule 57).
The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that the nomination of the returned candidate was invalid; or the returned candidate was not on the nomination day qualified for, or was disqualified from, being elected as a member of a Board; or the election of the returned candidate has been procured or induced by any corrupt or illegal practice etc. (Rule 65).
8. Section 9 of the Act contains the provisions corresponding to that of section 103-AA of the Representation of the People Act, 1976 (the "ROPA") (since repealed). There is, however, some change in the terminology as well as the addition of some powers of the ECP, in Section 9. of the Act. A comparative table of relevant provisions is laid down for ease of convenience.
The Elections Act, 2017 The Representation of the People Act, 1976
8. Power of Commissioner to ensure fair election. - Save as otherwise provided, the Commission may- a) stop the poll at one or more polling stations at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractice including coercion, intimidation and pressure, prevailing at the election; b) review an order passed by an officer under this Act or the Rules, including rejection of a ballot paper; and c) issue such instruction exercise such powers and make such consequential order as may in its opinion, be necessary for ensuring that an election is conducted honestly, fairly and in accordance with the provisions of this Act and the Rules.
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 the103. Commission to ensure fair election, etc.--Save as otherwise provided, the Commission may- a) stop the polls at any stage of the election if it is convinced that is shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion, intimidation and pressures, prevailing at the election: b) review an order passed by an officer under this Act or the rules, including rejection of a ballot paper; and c) issue such instructions and exercise such powers, and make such consequential order as may in its opinion, be necessary for ensuring that an election is conducted honestly, fairly and in accordance with the provisions of this Act and the Rules.
103A A. Power of a Commission to declare a poll void.----(1) Notwithstanding anything contained in this Act, if, from facts apparent 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 competent 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.
10. Power to punish for contempt.----The Commission may exercise the same power as the High Court to punish any person for contempt of court and Contempt of Court Ordinance, 2003 (V of 2003), or any other law pertaining to contempt of court shall have effect accordingly as if reference therein to a "court" and to a "judge" were a reference, respectively, to the "Commission" and theon the face of the record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission may make a declaration accordingly and, by notification in the official Gazette, call upon that constituency to elect a member in the manner provided for in section 108.
(2) Notwithstanding the publication of the name of a returned candidate under sub- section (4) of section 42, the Commission may exercise the powers conferred on it by sub-section (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 a decision of a Tribunal.
(3) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be a Tribunal to which. an election petition has been presented and shall, notwithstanding anything contained in Chapter VII, regulate its own procedure.
(4) An appeal against decision of the Commission made while exercising powers under sub-section (1) (2) and (3) shall lie before the Supreme Court for decision within thirty days.
103A. Power of Commission to punish for contempt.--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 "judge" were a reference, respectively, to the "Commission" and the Commissioner or, as the case may be, a member of the Commission.
"Commissioner" or, as the case may be a member of the Commission.
9. Section 103-AA was introduced in the Representation of the People Act, ROPA vide the Representation of the People (Amendment) Act, 1991 which empowered the ECP to declare a poll void, if it, on summary inquiry, was satisfied that by reason of grave illegalities or violation of the provisions of the ROPA or the Rules, the poll in any constituency ought to be declared void. However, the Commission might exercise this power before the expiration of sixty days after publication of the name of returned candidate in the official gazette; and, where the Commission did not finally dispose of a case within the said period, the election of the returned candidate would be deemed to have become final, subject to a decision of a Tribunal. An appeal under Section 103-AA of the ROPA against the decision of the Commission was to lie before the Supreme Court of Pakistan. This right of appeal was conferred by insertion of sub-section 4 to Section 103AA, vide the Representation of People (Amendment) Act, 2017.
10. Perhaps for the first time, Section 103-AA supra came for consideration before the Hon'ble Supreme Court in "Bartha Ram v. Lala Mehar Lal Bheel" (1995 SCMR 684), wherein Bartha Ram (Petitioner), Lala Mehar Lal Bheel (Respondent No.1) and eleven others contested election for the reserved seat of Hindus and Scheduled Castes, of the Provincial Assembly Punjab, held on 9-10- 1993. The Respondent No.1 was declared returned candidate with lead of 45 votes, vis-a-vis the Appellant. Notification of his election was published in the official Gazette dated 18-10-1993. After the publication of the aforesaid notification, the Appellant filed a petition under Sections 103 and 103-AA read with Section 39 of the ROPA. on 2-11-1993 before the ECP challenging the election of the Respondent No.1 on the ground of wrong counting of the votes. On this the ECP issued notice to the Respondent No. 1. Before the ECP could proceed further, the Respondent No.1 filed Writ Petition in the Lahore High Court, questioning the authority jurisdiction of the Election Commission of Pakistan to entertain the petition of the Appellant or to take cognizance of it. After hearing the parties, the High Court declared that after the publication of Notification on 18-10-1993, the ECP had become coram non judice under Section 103-AA of the Act to seize the matter and the only remedy available to the losing candidate was to have recourse to the Election Tribunal constituted under the Act. Feeling aggrieved thereby, Bartha Ram filed a Petition for Leave to Appeal and the Hon'ble Supreme Court held as under: - "8. As regards section 103-AA; the reading of this section will also show that this section would apply when by reasons of grave illegalities or violation of the provisions of the Act or the rules the poll in any constituency is sought to be declared void. In the petition pending before the Election Commission, the allegations of grave illegalities and violation of the provisions of the Act or rules have not been levelled by the appellant. So, the petition of the appellant before the Election Commission for recounting of the votes on account of the mistake in the counting of the votes does not fall within the ambit of section 103-AA of the Act. We feel that since the case of the appellant before the Commission is not covered by subsection (1) of section 103-AA, subsection
(2) of section 103-AA which authorises the Commission to exercise powers conferred on it by subsection (1) of section 103-AA before expiry of sixty days is also not attracted and the correct legal position is that after the publication of the name of the respondent as a returned candidate in the official Gazette on 18-10-1993, the only remedy available to the appellant was to file an Election Petition as provided under section 52 of the Act before the Election Tribunal appointed under section 57 of the Act (Underlined by me for emphasis)
11. A similar view was expressed by the Hon'ble Supreme Court in "Syed Fakhar Imam v. Chief Election Commission of Pakistan" (PLD 2008 SC 730), wherein the Petitioner, on 26.02.2008 filed application under Section 103-AA of the ROPA before the ECP alleging grave illegalities and irregularities committed by the returned candidate/respondent No.2 during the process of election and prayed that the election may be declared as void. The said application was dismissed on 28.02.2008 by the Election Commission. This order was assailed by Petitioner before High Court in Writ Petition which was disposed of with the observation that he may approach a competent Election Tribunal by filing an election petition wherein all these questions will be gone into and decided in accordance with law. The Petitioner impugned this order before Supreme Court through CPLA and the Hon'ble Court held as under:- "8. It is well settled principle of law that after the publication of the name of the respondent as a returned candidate in the official gazette the only remedy available to the petitioner was to file an Election petition as provided under section 52 of the Act of 1976 before the Election Tribunal appointed under section 57 of the Act of 1976."
(Underlined by me for emphasis)
12. In view of afore-mentioned dicta of the Hon'ble Supreme Court, it is obvious that the ECP, under section 103-AA of ROPA, is competent to declare poll of constituency as void if it is satisfied, even on summary inquiry, that grave illegalities or violation of the provisions of the ROPA or the Rules have been committed during polling of that constituency and the ECP, after publication of the name of the Returned Candidate in official gazette, became functus officio. Such power, however, can only be exercised within statutory period i.e. sixty days from the date of notification of Retuned Candidate in the official gazette. Now a question arises, whether the ECP, under the same provision of law, has the jurisdiction to examine the candidature i.e. pre-election disqualification or absence of qualification of a candidate during the election process or after notification of a candidate as returned candidate in the official gazette and can declare the election void on this ground too.
13. The Hon'ble Supreme Court in "Ch. Muhammad Ashraf Warraich v. Muhammad Nasir Cheema" (2016 SCMR 998), authoritatively prescribed three different stages at which the candidature of a candidate can be challenged, under the RdPA, right from the day of nomination and till 45 days after declaration of the official results. In this case two Civil Appeals arising out of the decision of the Election Tribunal, whereby a returned candidate (Muhammad Ashraf Warraich) was non-seated and the ECP was directed to take necessary steps for holding Bye-Election, were decided. The relevant para of the judgment is reproduced hereunder for ready reference: "15. It may be observed that candidature of a candidate could be challenged under the ROPA, 1976 at three different stages, right from the day of nomination till 45 days after the declaration of the official result. First stage is pre-election challenge at the time of scrutiny of nomination papers.
Challenge to the candidature could be thrown by any of the contesting candidate, their agents, proposer, seconder, electors by filing objections against any of the candidate before the Returning Officer, on the grounds enumerated in clauses (a) to (d) to subsection (3) and subsection (5A) of section 14 of the RoPA. Any decision rejecting or accepting nomination paper, passed by the Returning Officer, is subject to right of appeal before the Tribunal comprised of not less than two and not more than three High Court Judges. Appeal is required to be decided summarily within prescribed time, if time lapses, appeal by virtue of deeming provision subsection (6) thereof is deemed to be rejected. Second stage is post-election challenge to the election of returned candidate before the Election Commission of Pakistan, under section 103AA of the RoPA, 1976.'Election Commission, after such summary enquiry as to grave illegality or violation of the provisions of RoPA, 1976 or the rules framed there under, may declare the poll in any constituency as void and may call upon constituency to elect member, but such jurisdiction to declare the poll void, could be exercised before the expiry of sixty (60) days after the publication of result of the election (per section 42 of RoPA), where after, the Election Commission, becomes functus officio, and the returned candidate is deemed to be elected, but subject to the decision of Election Tribunal, constituted Section 57 of RoPA. Provided such challenge is thrown, by any of the contesting candidate. Third opportunity to challenge the election of the returned candidate becomes available post-election, to be made by any candidate of the subject constituency, before the Election Tribunal constituted under Section 57 ibid, within forty five (45) days from the date of publication in the official gazette of the name of the returned candidate, of the subject constituency in the manner provided under the RoPA, 1976 itself "
(Underlined by me for emphasis)
14. It is however notable that aforementioned case was originated from filing of an election petition before the Election Tribunal, and not from the proceedings by the ECP under Section 103-AA of the ROPA. The matter of powers of ECP, under Section 103AA, was not sub-judice before the Court.
15. The Hon'ble Supreme Court in "Muhammad Salmon v. Naveed Anjum and others" (2021 SCMR 1675), elaborated in details the powers and jurisdiction of the ECP under Section 9 of the Act and in terms of Article 218(3) of the Constitution. The relevant para of the judgment is reproduced hereunder for ready reference: - "41. It would therefore seem that there is no direct authority, at any rate as would be binding on us, in which the question under discussion was considered or decided directly. The question, nonetheless, remains: did Parliament confer a jurisdiction in terms of section 103AA (and/or section 9) on the Commission to consider the qualification or disqualification, under Articles 62 and/or 63, of a candidate for election or a member of the legislature? In our view, the answer must be in the negative. We begin with an obvious point: neither of the sections expressly or explicitly conferred (or confers) any such jurisdiction. If at all it exists, it has therefore to be read into the provisions, and discovered collaterally or by implication. Now, the question of whether a candidate is qualified or disqualified goes to his status, i.e., ability to contest the election. Both the sections however are primarily (though not exclusively) directed towards what happens on the polling day, i.e., towards the process of the actual conduct of the election itself. Obviously, this remains unaffected by the status (qualified/disqualified) of the candidates. Section 9(1) even otherwise makes this clear, in two ways. Firstly, by adding the test of materiality: the "result of the poll" should have been affected. Even if (and secondly) the test applies only to second condition (a point on which we form no definite opinion), the last part of the subsection, which allows only for a recasting of votes to be ordered, makes it clear that the slate of candidates remains the same. Although section 103AA was worded in a more open-ended manner, empowering the Commission to decide whether the poll in the constituency (or, by way of judicial gloss, any one or more polling stations) ought to be declared void, the purpose behind the section was still the same. It remained essentially focused on the day of the election itself.
The facts and circumstances in which almost all the reported cases came to be decided also testify, and point, to this conclusion.
42. It is also to be remembered that in the entire process leading up to the day of the election, the question of whether the candidate was qualified or disqualified has already been scrutinized. This scrutiny, of the nomination papers, is done by the Returning Officers. However, they are not the only ones allowed by law to scrutinize the nomination papers. They are also open to objections by others. Under the 1976 Act this right was of a somewhat restricted nature: see section 14(1). Under section 62 of the 2017 Act the right has been extended to any voter of the constituency. There is a right of appeal to an appellate forum comprising of High Court judges. Under the 1976 Act this right of appeal was restricted to candidates only, whereas the 2017 Act has expanded it to include the objector as well. After this appellate forum there can be (though not of course as of right) constitutional petitions under Article 199 and even petitions to this Court under Article 185(3). In other words, the question of qualification/disqualification is thoroughly tested by a dedicated procedure before the day of the election. And of course, after the election a losing candidate can always file a petition before the election tribunal and again bring the question into issue.
(Underlined by me for emphasis)
16. A discreet analysis of aforementioned case law and relevant provision leads irresistible conclusion that confusion caused by Section 103-AA of the ROPA has been addressed by the legislature in the newly enacted provisions of section 9 of the Act by making change in the terminology. In the new provisions, the phrase "result of the poll" instead of mere "poll" has been used; and it has been further amplified by the addition of terminology "at one or more polling stations or in the whole constituency". In view of this change of terminology and the principles enunciated recently by the Hon'ble Supreme Court in "MUHAMMAD SALMAN supra, it is unequivocal that the ECP is not competent to de-notify a returned candidate on the basis of pre-election disqualifications under Section 9 of the Act and this section relates to the illegalities/violation as to the process of poll only. The judgments of Hon'ble Supreme Court of Pakistan mentioned above, are binding on this Court under Article 189 of the Constitution because they have enunciated principles of law and decide the question of law which has been followed by this Court. It is to be noted that any judgment of this Court under Article 201 is subject to Article 189 of the Constitution, hence this Court cannot decide the question in the presence of right of appeal to the Petitioner under Section 9(5) of the Act but only discussed the principles enunciated by the superior Courts in point No.2.
The hurdle before this Court is Section 9(5) of the Act which has been addressed in MUHAMMAD SALMAN case, supra. In the said case, Justice Munib Akhtar in paragraph No.42 has observed as under: "There is a direct appeal to this Court against the decision of the election tribunal. When such a framework is available, it is difficult to see why any such jurisdiction should be impliedly read into section 103AA and/or section 9 so as to empower the Commission".
Point No.2
17. According to Petitioner, the ECP has no jurisdiction to qualify or disqualify her being declared and successful candidate by the Returning Officer and adopting proper procedure under the law.
On the other hand, the stance of the Respondents is that the Petitioner has an alternate remedy of appeal before the Hon'ble Supreme Court of Pakistan in terms of Section 9(5) of the Act against the impugned order as such this petition is not maintainable. In the impugned order, the ECP has observed as follows: "We are of the considered opinion that Respondent violated mandatory provisions of Rule 17(2) and Rule 19(4) (b) of the Cantonments Local Government (Election) Rule, 2015 and her nomination papers are not valid. The Returning Officer also violated Rule 19 of the Cantonment Board Rules while conducting scrutiny of nomination papers and declared the nomination papers of Respondent as valid. Neither he saw the Vote Number Certificate of the Seconder nor cross- checked the Seconder's name from the Ward-wise list of electoral roll. The Returning Officer vide Notice "Uncontested Election" dated 13.08.2021 wrongly declared the Respondent as unopposed returned candidate under Rule 24 of the Cantonments Local Government Election Rules, 2015".
18. Admittedly, the impugned order was passed by the ECP against which a specific remedy of appeal is provided under Section 9(5) of the A Act which reads as:
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. --------- "(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".
(Underlined by me for emphasis)
19. From the bare reading of the above-said section it is very much clear that remedy of appeal is available before the Hon'ble Supreme Court of Pakistan. In the wake of availability of an alternate efficacious remedy, jurisdiction of this Court under Article 199 of the Constitution cannot be invoked because the said Article 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.
20. In view of above, this petition being not maintainable is hereby dismissed.