Dr. Khurshid Iqbal, J.
1. The subject writ petitions relate to the delimitation of certain constituencies of the Khyber Pakhtunkhwa Provincial Assembly in the District of Swat. The Delimitation Committee (respondent # 2) of the worthy Election Commission of Pakistan (respondent # 1) issued a preliminary delimitation report of certain constituencies. The respondent # 1 published the report on 31 May 2022, vide a Gazette Notification. Later on, the respondent # 1 received some representations in respect of the delimitation. After hearing those representations, the respondent # 1 amended the preliminary delimitation lists by its Order passed on 05 July 2022. In all these petitions, the aforesaid Order (impugned order) has been challenged before us. We, therefore, propose to decide them by this single Judgment.
2. Herein below, we state the germane facts of these petitions one by one to put forth the individual contention of each petitioner: a. W.P # 928-M/2022 Petitioner(s) Name: Zafar Khan & others Counsel's Name: Mr. Aurangzeb, Advocate Prayer: On acceptance of the instant writ petition, the order dated 05.07.2022, passed by the Election Commission of Pakistan in shape of proposed amendment/direction to the extent of ChuprialPatwar Circle, Tehsil Matta, and inclusion of Patwar Circle Sam Sheen, Kotanai, Janu of Tehsil Khwazakhela, District Swat, in PK-9, Swat, may kindly be declared against the relevant law, delimitation rules and Elections Act, 2017 and the same may very graciously be set aside. Previous status of Provincial Constituency of PK-9 Swat, notified in Gazette of Pakistan on May 31, 2022, may kindly be restored.
Impugned Form-7 issued under Rule of Form-14 according to the impugned order dated 05.07.2022 of the Election Commission of Pakistan, may also be declared against the law and rules.
Election Commission of Pakistan and Delimitation Committee of Election Commission of Pakistan may further be directed to maintain/restore earlier delimitation of PK-9 Swat, which was notified through Gazette Notification dated 31.05.2022.
Any other remedy which is just, efficacious and appropriate in the light of peculiar circumstances of the case, may also be graciously awarded, though not specifically prayed for. b. W.P # 902-M/2022 Petitioner(s) Name: Qaimoos Khan &others Counsel's Name: Mr. Shams-ul-Hadi, Advocate Prayer: On acceptance of the instant writ petition: i. The impugned order/judgment dated 05.07.2022 passed by Election Commission of Pakistan in shape of proposed amendments/directions to the extent of exclusion of Patwar Circles of Khwazakhela Tehsil, i.e., i) Samshin PC, ii) Kotani PC and Janu PC from PK-4 Swat and inclusion of the same in PK-9 Swat may kindly be declared against the relevant law, Delimitation rules and Elections Act, 2017 and the same may very graciously be set aside. ii. Previous status of Provincial Constituency of PK-4 Swat notified in Gazette of Pakistan at Part-III notified on May 31, 2022 may kindly be resorted. iii. Impugned Form-7 issued under rule of Form-14 according to the impugned order dated 05.07.2022 of ECP may also be declared against the law and rules. iv. Election Commission of Pakistan and Delimitation Committee of ECP may kindly be further directed to maintain/ restore earlier delimitation of PK-4 Swat, which was notified through Gazette Notification dated 31.05.2022 Or v. Any other relief which this august Court deems appropriate in circumstances of the case may kindly also be awarded to petitioner. c. W.P # 956-M/2022 Petitioner(s) Name: Aziz Ullah Khan & others Counsel's Name: Mr. Pukhtoon Wali, Advocate Prayer: On acceptance of the instant writ petition, the order passed by respondent No. 1 dated 05.07.2022 regard final list of constituencies published on Form 7 e.g. PK-5 may kindly be set aside and the preliminary list of the constituency on Form-5 dated 31.05.2022 in respect of the constituency PK-5, Swat-III may be leaved intact (restored).
Consequent upon the above order passed by respondent No. 1 is liable to be struck down and the proposals/objections filed by petitioner may please be accepted as prayed for.
Any other remedy which is just, efficacious and appropriate in the light of peculiar circumstances of the case may also be graciously awarded, though not specifically prayed for. d. W.P # 966-M/2022 Petitioner(s) Name: Alam Khan & others Counsel's Name: Barrister Asad-ur-Rahman Prayer: On acceptance of the instant writ petition, the impugned order dated 05.07.2022, of the Election Commission of Pakistan may kindly be set aside being arbitrary and against the relevant law.
The previous status of the constituency of PK-4, Swat-II, notified in the Gazette of Pakistan through Notification dated 31.05.2022, may kindly be restored.
The impugned Form-7, issued under the Rule of Form-14, according to the impugned order dated 05.07.2022, may also be declared as against the relevant law and rules.
Any other relief which this Honorable Court deems fit may also be granted. e. W.P # 993-M/2022 Petitioner(s) Name: Ali Shah Khan Counsel's Name: Mr. Ali Shah Khan, Advocate Prayer: On acceptance of this writ petition, this Hon'ble Court may graciously be pleased to issue orders and direct that: 1) The impugned order/judgment dated 05.07.2022 passed by the respondent No. 1/Election Commission of Pakistan in shape of proposed amendments/direction to the extent of exclusion of Patwar Circles of Khwazakhela Tehsil i.e., i) Samshin PC, ii) Kotanai PC and Janu PC from PK-4, Swat and inclusion of the same in PK-9, Swat may kindly be declared against the law, Delimitation Rules and Elections Act, 2017, consequently, the same may please be set aside.
2) Previous status of Provincial Constituency of PK-4, Swat notified in Gazette of Pakistan at Part-III notified on 31.05.2022 may kindly be restored.
3) Impugned Form-7 issued under Rule of Form-14 according to the impugned order dated 05.07.2022 of Election Commission of Pakistan may also be declared against the law and rules.
4) Election Commission of Pakistan and Delimitation Committee of Election Commission of Pakistan may kindly be further directed to maintain/restore earlier delimitation of PK-4 Swat, which was notified through Gazette Notification dated 31.05.2022.
Any other remedy, which is just, appropriate and officious may also be awarded though has not been specifically prayed for in this writ petition, but if the interest of justice demands SO.
3. The respondent # 1, 2, 4 & 5 submitted their para-wise comments. We have heard learned counsels for the petitioners and of the respondent # 1 and perused the available record.
4. Mr. Mohsin Kamran Siddiqui, learned counsel for the respondent # 1 questioned the maintainability of these petitions, stating that the impugned Order is not amenable to judicial review by this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
5. Learned counsels for the petitioners argued that this Court has the power of judicial review over the impugned Order. On facts, they emphatically argued that the amendments proposed by the impugned Order are against the principles of delimitation as envisaged in section 20 (1) of the Elections Act, 2017 ("Act"). The argument of Mr. Mohsin Kamran Siddiqui, on the other hand, is that the respondent # 1 has given due consideration to the principles of delimitation, and has not disturbed any Patwar Circle. He maintained that the respondent # 1 has the power under section 22 of the Act, to amend, alter or modify the final list of constituencies.
6. We are constrained to begin with the question of maintainability. We don't need to engage in a hectic discussion on this question though. The reason is that the thrust of the judicial opinion is that Courts generally, and the higher Court, particularly don't relinquish their jurisdictional competency if they see that an action or order under attack is beyond the remit of law and there is no alternate remedy available to an individual to redress his/her grievance. For this view, we are fortified by a recent opinion of the honourable Lahore High Court expressed in a Writ Petition # 20507 of 2022 in the case of Tahir Iqbal v. Election of Commission of Pakistan decided on 28 April 2022. The honourable Court has placed reliance on several rulings which we also mention here. Those are Begum Syeda Azra Masood v. Begum NoshabaMoeen and others (2007 SCMR 914) and Yousaf Ali v. Muhammad Aslam Zia and 2 others(PLD 1958 Supreme Court 104). Reference may also be made to the case titled as Arshad Mehmood v. Commissioner/Delimitation Authority, Guiranwala and others reported as PLD 2014 Lahore 221. In this case, it was held: "Shortly stated, an ordinary statute or a sub-constitutional legislation is incapable of ousting, curtailing or limiting the constitutional jurisdiction of the Supreme Court or the High Courts and the words 'no Court'in an ouster clause in a statute do not, therefore, include the High Courts or the Supreme Court so far as their constitutional jurisdiction (e.g. under Article 199 and Article 184 of the Constitution) is concerned. This well settled constitutional principle loudly resonates through our jurisprudence: Khan Asfandvar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607), Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632), Malik Muhammed Mukhtar, through Legal Heirs v. Province of Punjab through Deputy Commissioner (Collector) Bhawalpur and others (PLD 2005 Lah. 251), Miss Asma Jilani v. The Government of the Punjab and another (PLD 1972 SC 139), Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) and Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26).
In a more common law context, it is a judicial norm, that Courts jealously guard their jurisdiction. They start with a strong presumption against ouster of jurisdiction and construe the same strictly, which means "that if such a provision is reasonably capable of having two meanings, that meaning ... which preserves the ordinary jurisdiction of the Court" is preferred.
"An ouster clause, however widely worded and whether it occurs in a Constitution or in an ordinary statute, does not save an act or order without jurisdiction (which expression compendiously describes and includes acts and orders coram non judiceandmala fide) from scrutiny of the Courts because the purported act or order is no act or order at all."
Hence, we rule that we are jurisdictionally competent to exercise our power of judicial review in the instant case.
7. We shall now proceed to consider the rest of the contentions of the parties. Under Article 218 (3) of the Constitution, the respondent # 1 has the duty to: [...] to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.
Delimitation of constituencies is a key aspect of the conduct of elections and a duty of the respondent # 1 under a statute which the parliament has introduced under Article 222 of the Constitution. It is pursuant to the above referred Article of the Constitution that the Elections Act, 2017 has been introduced. Sections 20, 21 and 22 of the Act and Rule 10 (4) of the Election Rules, 2017 govern the process of delimitation of the constituencies. Section 20 (1) of the Act provides that delimitation of constituencies for general seats shall be carried out as far as it is practicable. It further provides that while delimiting constituencies, regard has to be paid to such principles as: the distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of constituencies. Subsection (3) of section 20 requires that variation in population shall not ordinarily be more than ten percent.
8. The stance of the petitioners is that when respondent # 1 has published delimitation report pursuant to section 21(2) of the Act of 2017 and the representations filed before respondent No.1 by the some of the residents of locality in term of section 21(3) of the Act, then in such an eventuality, provision of first proviso of rule 10(4) of the Election Rules, 2017, were required to be followed--i.e., the Patwar circle being the basic unit could not be broken whereas, pursuant to the acceptance of representations, the basic units have been broken which otherwise have affected the delimitations of constituencies. In such circumstances, by considering the sole jurisdiction of respondent No. 1, we cannot enter into the factual controversy, especially, when those who were petitioners before worthy Election Commission are not before this Court qua the powers and jurisdiction of the worthy Election Commission within the four corners of section 22 of the Act of 2017, which would reveal that the Commission has the power to amend, alter or modify the final list of constituencies notwithstanding anything contained in the law, at any time but at least four months before the Notification of the Election program of its own motion and for reasons to be recorded. We are of the view that the concern of petitioners emerging from the impugned order, requires to be adjudicated upon by the respondent No.1 by providing an opportunity of hearing to them subject to notice to those who were petitioners/applicants in representations. Thus, for the reasons mentioned above, the impugned order is hereby set aside, the representations decided earlier through impugned order shall be deemed pending before respondent No.1, which shall be decided after hearing the petitioners of the these petitions so that the controversy of delimitation could be taken to its logical conclusion, one for all, before general elections.
9. Resultantly, all these writ petitions are disposed of accordingly.