MUHAMMAD FAHEEM WALI, J. The bunch of writ petitions, listed hereunder, involving common issue and questions of law, have been heard together at the stage of admission and are hereby decided by this common Judgment.
1. Writ Petition No.463-D/2022 with Interim Relief (Haq Nawaz and others v. Election Commission of Pakistan and others)
2. Writ Petition No.507-D/2022 with Interim Relief (Nazir Ahmad Dar v. Election Commission of Pakistan and others)
3. Writ Petition No.509-D/2022 with Interim Relief (Makhdoom Zada Muhammad Allah Haider v.
Election Commission of Pakistan and others)
4. Writ Petition No.521-D12022 with Interim Relief (Aghaz Ikramullah Khan Gandapur v. Election Commission of Pakistan and others)
5. Writ Petition No.577-D/2022 with Interim Relief (Abdur Rasheed Khan v. Election Commission of Pakistan and others)
6. Writ Petition No.634-D/2022 (Tanveer Abbas Mehdi v. Election Commission of Pakistan and others)
7. Writ Petition No.451-D/2022 with Interim Relief (Inayatullah v. Election Commission of Pakistan and others)
2. Common facts of the all the aforesaid petitions are that the Election Commission of Pakistan on 31-05-2022 publicized preliminary Delimitation Scheme of Constituencies of National and Provincial assemblies. Some objections were filed against preliminary delimitation of constituencies; and the Election Commission of Pakistan after hearing petitions on 15.07.2022 disposed of all the representations/objections vide single even dated order, thereafter, in view of the order dated 15.07.2022 the Election commission of Pakistan issued final Notification about delimitation of the provincial constitutes of Khyber Pakhtunkhwa pertaining to District D.I.Khan i.e. PK-111, PK-112, PK-113, PK-114, PK-115. Aggrieved of the order dated 15.07.2022 of the Election Commission of Pakistan and final Notification, petitioners have preferred the above referred petitions. Individual facts of each petition are as under: i. W.P. No.463-D/2022: Petitioners are aggrieved of the exclusion of Patwar Circle Giloti from PK-112 and its inclusion in PK-111; and exclusion of Patwar Circle Mithapur from PK-111 and inclusion in PK-
112. In this regard petitioners had filed a representation before the Election Commission of Pakistan. ii. W.P. No.507-D/2022 and W.P. No.521- D/2022: Petitioners are aggrieved of the exclusion of Patwar Circle Khoi Bahara from PK-115 and its inclusion in PK-114; and also exclusion of Patwari Circle Chehkan from PK-115 and its inclusion in PK-112. They are also dissatisfied with the exclusion of Patwar Circles Sheru Nao, Mapal, Kotla Habib, Haji Mora and Fateh from PK-114 and its inclusion in PK-115. Petitioners in both set of writ petitions had filed their respective representations / objections. iii. W.P. No.509-D/2022: Petitioner wants to include Patwar Circles Norang Luk, Thathal, Shah Kot, Dhap Shumali and Mithapur in PK-111 after detaching the same from PK-112. He is also not satisfied on exclusion of Patwar Circle Giloti from PK-112 and its inclusion in PK-111. In this regard, petitioner filed a representation/objection before the Election Commission of Pakistan. iv. W.P. No.577-D/2022: Petitioner of this writ petition contested the objection petition filed by respondent Fakhar Ullah Khan Miankhel before Election Commission of Pakistan. Resultantly, the Election Commission vide impugned order excluded Patwar Circle Khoi Bahara from PK-115 and included in the same in PK 114. v. W.P. No.634-D/2022: Petitioner is aggrieved of addition of Patwar Circle Haji Mora in PK-115, after detaching the same from PK-113. He is also discontented with detachment of Patwar Circle Chahkan from PK-115 and its inclusion in PK-112. He however, did not participate in the proceedings before Election Commission of Pakistan. vi. W.P. No.451-D/2022: Petitioner seeks restoration of Patwar Circle Dhap Chabak in PK-113 as, according to him, said Patwar Circle has wrongly been included in PK-114. He too had not participated in proceedings before Election Commission of Pakistan.
3. In compliance of the order of this Court, Respondent/Election Commission of Pakistan submitted para-wise comments to all the writ petition, wherein they opposed the issuance of desired writ on various grounds.
4. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsel, same will be adequately dealt with at appropriate stages in this judgment.
5. Perusal of the record transpires that the Election Commission of Pakistan (the Commission) after hearing various objections / representations pertaining to delimitations of provincial constituencies of District D.I. Khan i.e. PK-111 to PK-115, decided the same through a single Judgment dated 15.07.2022 and shuffled various Patwar Circles amongst the above constituencies. Petitioners are in-fact aggrieved of inter-se shuffling of various Patwar Circles and seek restoration of said Patwar Circles in the respective constituencies according to preliminary delimitation.
6. The first and foremost objection of the learned counsel representing Commission was on the maintainability of writ petitions. According-to him, the objection petitions were entertained and decided within the purview of Section 21(3) of the Elections Act, 2017 (the Act), and according to subsection (3) of Section 236 of the Act, validity of the delimitation of any constituency or of any proceedings taken or anything done by or under the authority of the Commission, under this Act shall not be called in question in any Court. In this context, suffice it to say that this Court is exercising its jurisdiction conferred under Article 199 of the Constitution of Pakistan and no provision of any law, for the time being enforced in Pakistan, override the constitutional powers of the High Court to exercise judicial review of the matter, if the Court is of the view that the order under challenge is illegal and outside the four corners of the law and no other alternate or efficacious remedy has been prescribed by law. There would be no decision within the meaning of the statute if there were anything done contrary to the essence of justice. In the case of "Yousaf Ali v.
Muhammad Aslam Zia and 2 others" (PLD 1958 SC 104), worthy Supreme Court of Pakistan was pleased to observe: "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded. On this view the orders made by the Rehabilitation Board and the Central Government refusing to effect the respondents which were based, on that part of the Deputy Custodian's order which was in excess of his jurisdiction were void and not final within the meaning of section 13-B of the Rehabilitation Ordinance, and it was the Rehabilitation Commissioner's order directing ejectment of the respondents that became final in law."
7. This view was further reiterated in the case titled "Begum Syeda Azra Masood v. Begum Noshaba Moeen and others" (2007 SCMR 914). Thus, while taking guidance from the referred dicta of the worthy apex Court, this Court has the jurisdiction to evaluate the order and notification of the Commission as well as Delimitation Authority/Committee. So far as the ouster clause provided under Section 236 of Elections Act, 2017, there can be no cavil with the proposition that said provisions cannot be construed to take away the constitutional jurisdiction of a High court. In this regard, we are fortified by the dictum laid down in the case of "Mrs. Shahida Zahir Abbasi and others v. President of Pakistan and others" (PLD 1996 SC 632), wherein the apex Court held that a provision barring jurisdiction of courts contained in a sub-constitutional enactment, however, expressly and widely worded, cannot affect or take away jurisdiction of superior courts conferred on them under the Constitution. Hence, the ouster clause of the Act cannot override the provisions of Constitution of Pakistan; and as such, the objection raised by the learned counsel representing Commission, as to maintainability of these petitions, is overruled.
8. Petitioners questioned the validity of impugned judgment of the commission on the ground that ten number of representations were decided, through a single Judgment instead of passing separate orders with regard to each representation. In this connection, we have noted that all the representation were pertaining to the provincial constituencies of District D.I. Khan, whereby various Patwar Circles were shuffled amongst all these constituencies; and grievance of parties in each representation was directly interlinked with each of the other representation; and as such, no representation could be decided isolatedly and without affecting the subject matter of other representations. Moreover, the impugned order explicitly reflects that after considering all proposals and jotting down the details, the Commission has finalized the delimitation. It is also clear from the impugned order that the proposals given by the parties have been mentioned and considered in the same order. Moreover, no legal bar exists to prevent the Commission from passing a single consolidated order to decide the fate of multiple representations pending before it.
9. The compilation and conception of delimitation is provided under Section 19 of the Elections Act, 2017 in which for the purpose of election of the National Assembly, the Commission may divide each province into as many separate territorial constituencies as the number of general seats allocated to that province under Article 51 of the Constitution and for the purpose of election of provincial assemblies, the Commission may divide each province into as many separate territorial constituencies as the number of general seats specified in Article 106. Principles of delimitation are provided under Section 20 of the Elections Act, 2017. The conspicuous and salient features of the quantified principles to be kept in mind are 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 with the rider that as far as possible, variation in population in the constituencies shall not ordinarily exceed 10% and if it is exceeded in an exceptional case, the Commission shall record reasons.
10. As far the argument of learned counsel for petitioners that previously limitations of constituencies were declared prior to General Elections 2018 on the basis of Census of 2017; and since, no fresh census has taken place therefore, changes cannot be made in the constituencies of District D.I. Khan. We are, however, not in agreement with what the learned counsel for petitioner has argued for the simple reason that albeit no fresh results of population census are there yet, in view of the latest development owing to upgradation of Paniyala Town into Tehsil and merger of F.R. D.I. Khan due to 25th Constitutional Amendment, delimitation of constituencies was inevitable.
Besides, Section 21 of the Act in unequivocal words confer power upon the Commission to make amendment, alteration or modification in the final list of constituencies in the manner that the Commission may, at any time, but at least four months before notification of the Election Programme, of its own motion and for reasons to be recorded, make such amendments, alterations or modifications in the final list of constituencies published under subsection (4) of section 21 or in the areas included in a constituency, as it deems necessary. For this purpose, the Commission shall publish in the official Gazette and on its website the proposed amendments, alterations or modifications with their justifications and invite and hear representations in respect thereof before taking final decision thereon. It is an admitted position that the Commission not only published the preliminary delimitation of constituencies on their website but the representations/objection too were uploaded for general public awareness. None of the petitioners was able to point out any violation of the provisions of Sections 19, 20 and 21 of Elections Act, 2017, or Election Rules, 2017, to create any exception calling for interference of this Court in the impugned Judgment by invoking its constitutional jurisdiction. Though population census has to be carried out from time to time, but, merely because fresh census is underway and no results have been gathered as yet, the same cannot be a ground for stalling the process of delimitations. Fair elections would mean fair representation and delimitation of constituencies is a foundational step towards that end. In "State of Madhya Pradesh and others v. Devilal" (AIR 1986 SC 434), the Court commenting on the significance of this step held: "The whole purpose of delimitation of a block into constituencies under subsection (1) of section 106 of the Act is to ensure that every citizen should get a fair representation to the Gram Panchayat and in turn to the Janapada Panchayat and the Zila Panchayat. The result of any election under a majority system depends in fact not only on the way people vote but on the way their votes are distributed among the constituencies."
11. The shuffling of Patwar Circles from one constituency to another, within the District D.I. Khan to maintain the equilibrium of population of each constituency, particularly after merger of FR D.I.
Khan, and addition of erstwhile FR Regions into constituencies PK-114 and PK-115 caused shifting of Patwar Circles from one constituency to the other. Fresh delimitation was carried out to achieve the constitutional values, vision and objective that areas are delimited and delineated into separate geographical electoral constituencies, based on distribution of population in geographically compact areas, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of the constituencies.
12. Mr. Aziz Bahadur, Regional Election Commissioner Hazara/Member Delimitation Committee, who is present before us on Video Link, apprised that the variation in population in constituencies is under the 10% limit as provided under sub-clause (3) of Section 20 of the Act and 2nd Proviso to rule 10(5) of the Election Rules, 2017. No doubt, the law provides rights to submit proposals by means of representation to the Commission for making some changes and modification in the preliminary delimitation and after considering all cognate factors, it is the sole responsibility of Commission to finalize the delimitation but at the same time one cannot claim vested right that whatever proposal placed by him should be accepted in letter and spirit nor any person can claim to contest elections in the constituency carved out according to his desires, wishes and proposals.
13. Contention of learned counsel for petitioners that delimitation has been done to favour a particular group of candidates, nevertheless, there are no details of such candidates nor any particular interest of the Commission could be highlighted in favouring such candidates. Contents of the petitions also indicate unnecessary exaggeration on the part of the petitioners, like there is no road network, in a bid to show that the entire delimitation is incorrect and that the Commission should have followed the whims and desires of petitioners. After going through the impugned Judgment and the record available before us, we do not find any illegality. The commission has properly appreciated the pros and cons including fundamentals of the delimitation with assistance of Delimitation Committee.
14. Considering the facts and circumstances of the petitions and arguments advanced by the highly competent senior counsel on either side and on perusing the typed-set of papers and the views of this Court as expressed in the above paras, this Court finds no merit in all the writ petitions.
Consequently, all the listed petitions stand dismissed.