MUZAMIL AKHTAR SHABIR, J. Through this constitutional petition, Sohail Shahzad, the petitioner, an independent candidate with symbol 'Hammer' who is one out of 11 contesting candidates for Bye- Election to the National Assembly of Pakistan for constituency NA-133, Lahore-XI, has called in question orders dated 27.11.2021 and 01.12.2021 (`impugned orders') passed by the District Monitoring Officer, Bye-Election-NA-133-Lahore-X1, Lahore ("DMO, Lahore"), in his capacity as nominated officer under section 234 of the Elections Act, 2017, ("the Act"), whereby on complaints received against respondent No.5 (Mrs. Shaista Pervaiz) and respondent No.4 (Ch. Muhammad Aslam Gill), who are petitioner's rival contesting candidates from platform of Pakistan Muslim League (N) ("PML-N") with symbol 'Tiger' and Pakistan Peoples Party Parliamentarians ("PPPP") with symbol 'Arrow', the DMO, Lahore, has imposed fine of Rs. 20..000/-each upon the said respondents for violating conditions of Para-25 of the Code of Conduct for Political Parties, Contesting Candidates and Election Agents (`Code of Conduct') issued by the Election Commission of Pakistan ("ECP") through notification dated 18th October, 2021 and following prayer has been made in this constitutional petition:- "Under the circumstances, it is most respectfully prayed, that the respondent No.3 may kindly be directed to debar/disqualifying the respondents Nos. 4 and 5 from the forthcoming election going to be held on 5.12.2021 as the corruption of respondents Nos. 4 and 5 has been proved through their admission of the guilt before respondent No.3 and subsequently depositing of fine amounting to Rs. 20,000/- through social and electronic media and the decision of the respondent No.3 may kindly be set aside being illegal, unlawful, against the law and facts of the case.
Any other relief which this august court deems fit may begranted to meet the ends of justice, equity and fair-play."
2. It is contended by the learned counsel for the petitioner that as the respondents Nos. 4 and 5 have persistently been violating the conditions mentioned in the Code of Conduct, therefore, they are liable to be declared as ineligible for the purpose of contesting elections and be disqualified and de-barred from taking part in bye-elections wherein polling is to be held between the hours of 08:00 a.m. to 05:00 p.m. on 05.12.2021.
3. On the other hand, learned Law Officers state that alternate remedy of appeal under section 234(5) of the Act is available to the petitioner, therefore, constitutional petition at this stage is premature and is liable to be dismissed.
4. Heard. Record perused.
5. The grievance agitated by the petitioner through this petition is that his rival candidates from PML-N and PPPP are persistently violating mandatory conditions mentioned in Para-25 of the Code of Conduct as is evident from their respective admission recorded in the order of DMO, wherein fine of Rs. 20,000/- was imposed against each of them, which has been deposited by them without any challenge to the observations relating violation of Code of Conduct recorded by the DMO, therefore, they were liable to be declared as ineligible for the purpose of contesting elections and prays that by setting-aside the order of fine of Rs. 20,000/-imposed upon each of the said rival candidates, they be declared disqualified to contest the elections. The order of the DMO, which is similar in both cases, is reproduced below:- "ORDER WHEREAS, under Article 218(3) of the Constitution of Islamic Republic of Pakistan, Election Commission of Pakistan is mandated to organize and conduct 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 the corrupt practices are guarded against.
2. Needless to mention here that Bye-Election in Constituency No. NA-I33, Lahore-XI is scheduled to be held on 05-12-2021 and the Hon'ble Election Commission of Pakistan has also issued Code of Conduct/"Directives" to provide the level playing field to all the contesting candidates and Political Parties and to guard against the corrupt practices. The restriction regarding panaflexes has described in Para-25 which is narrated as:- "There shall be complete ban on hoardings, bill board, Wall chalking and panaflexes of any size.
Violation will be treated as an illegal practice"
3. It had previously come to the knowledge of the undersigned that the violation of above said Para had been committed by you for which a notice bearing letter No.F.3(20)/2021-Bye Els133(DMO)/DEC-1 dated 29th October, 2021 was issued for your appearance before the undersigned and consequently you appeared through counsel and pledged not to commit the violation again. In response, you were strictly warned not to affix Panafiex of any size vide this office order No.F. 3(20)/2021- Bye-Els-133(DMO)/DEC-I dated 3rd November, 2021.
4. Furthermore, you have also submitted a written affidavit with affirmation to follow code of conduct but even then you are persistently violating code of conduct regarding panaflexes. The banned publicity material/panaflexes of you have been observed/ seen placed in the constituency, which is a blatant violation of Para-25 of Code of Conduct.
5. Keeping in-view the above situation, on the basis of available evidence and repeated violation of the code of conduct, the undersigned has reached to the conclusion that you have deliberately violated the Code of Conduct despite being warned against the same. Hence, the undersigned being empowered under section 234(3) of the Elections Act, 2017 imposes a fine of PKR.20000/- upon you for violation of para-25 of code of Conduct. This fine is to be deposited in the relevant head of account (CO2166) through Challan Form No. 32-A and the receip of the same be submitted with the undersigned within a period ,of three (3) days."
6. It has also been argued that under the Article 218 sub-Article (3) of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution') it is the duty of the Election Commission to organize and conduct the elections and to make arrangements as are necessary to ensure that election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against but the ECP is not' doing its duties by doing the needful. The Article 218 of the Constitution is reproduced below:- "Election Commission:-
218. (I) For the purpose of election to both Houses of Majlis-eShoora (Parliament), Provincial Assemblies and for election to such other public offices as may be specified by law, a permanent Election Commission shall be constituted in accordance with this Article.
(2) The Election Commission shall consist of--
(a) the Commissioner who shall be Chairman of the Commission; and
(b) four members, one from each Province, each of whom shall be a person who has been a judge of a High Court or has been a senior civil servant or is a technocrat and is not more than sixty-five years of age, to be appointed by the President in the manner provided for appointment of the Commissioner in clauses (2A) and (2B) of Article 213.
Explanation. "senior civil servant" and "technocrat" shall have the same meaning as given in clause
(2) of Article 213.
(3) It shall be the duty of the Election Commission 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."
(Emphasis supplied)
7. The Election Commission under the provisions of section 233 of the Act, which is reproduced below, is authorize to frame Code of Conduct for the political parties, etc., for the purpose of elections, which the political parties and their candidates have to follow.
"233. Code of Conduct.-- (1) The Commission shall, in consultation with political parties, frame a Code of Conduct for political parties, contesting candidates, election agents and polling agents.
(2) The Commission shall also frame a Code of Conduct for security personnel, media and election observers.
(3) A political party, a candidate, an election agent, a polling agent, security personnel, media and an observer shall follow the Code of Conduct during an election.
(4) The Commission shall publish a Code of Conduct framed under this section in the official Gazette and on its website."
The Para-25 of the Code of Conduct framed by the ECP is reproduced below:- "There shall be complete ban on hoardings, bill board, wall chalking and panaflexes of any size violation be treated is an illegal practice."
It has also been argued that under section 233, subsection (3) of the Elections Act, 2017 ("the Act"), the political parties, candidates, election agents, polling agents, security personnel, media and observers are bound down to follow the Code of Conduct during election and section 234 of the Act provides monitoring of election campaign by the DMO in order to ensure that the Code of Conduct is being complied with, which conditions have not been followed by the said respondents, therefore, it is claimed that the afore-referred contesting candidates are disqualified to contest the election in terms of punishment provided under section 234(3) and (4) of Act Section 234(1) to (4) are reproduced below:- "234. Monitoring of election campaign.--(1) The Commission shall constitute a monitoring team consisting of such number of persons as may be determined by it, to monitor election campaign of the candidates and political parties and report, on regular basis in the prescribed manner, to an officer nominated by the Commission in respect of each district for the purpose of deciding the complaints regarding any violation by a candidate or a political party of any provision of the Act, Rules or the Code of Conduct issued by the Commission.
(2) The Commission shall constitute a monitoring team for a constituency or a group of constituencies and determine the terms of reference of the monitoring team.
(3) If the officer, nominated under sub-section (1) receives a report of any violation of the Act or the Rules and, after holding a summary enquiry, finds that the reported violation has been committed and no other punishment is provided under the Act for such violation, he may impose a fine not exceeding fifty thousand rupees.
(4) If the nominated officer after summary enquiry finds a candidate or a political party guilty of violation of the Act or the Rules for the second time, he shall refer the matter to the Commission for initiation of proceedings against such candidate or political party under the law, including proceedings for disqualification of the said candidate and in case of the political party, its candidate."
Learned counsel has also referred to para No. 3 of the impugned orders, wherein it is mentioned that earlier also the matter was brought into the notice of the DMO, wherein warnings were issued to the said respondents not to affix panaflex of any size and in furtherance thereof according to the learned counsel for the petitioner for second violation of Code of Conduct the DMO was required to refer the matter to the ECP for further proceedings for disqualification of the afore-said rival candidates, which duty it has not performed and the impugned orders suffering from misapplication of law are not sustainable, hence, it is claimed that imposition of fine on lesser side was not justified.
8. Question that arises at this stage is whether constitutional petition is maintainable against the impugned orders at the behest of the petitioner when perusal of subsection (5) of section 234 of the Act shows that alternate remedy is available to the petitioner against the impugned orders passed by the DMO? When confronted, learned counsel for the petitioner states that said remedy was available to his rival candidates against whom fine had been imposed but was not available to the petitioner as fine had not been imposed against him and no other remedy for seeking enhancement of punishment/penalty and disqualification of the rival candidates was available to him, hence, according to him constitutional petition is maintainable. In order to resolve the same, reference is made to subsection (5) of section 234 of the Act, which is reproduced below.
"234 (5). Any person aggrieved from an order of nominated officer under this section may within three days from the order, file an appeal before the Commission and the order of the Commission on the appeal shall be final."
The perusal of the afore-referred subsection shows that any person aggrieved from order of the nominated officer (i.e., DMO in this case) has remedy of appeal available to him, which phrase 'any person' includes not only the persons against whom fine was imposed but also the person (i.e., a contesting candidate) who was seeking modification of the order, therefore, the ground raised by the petitioner that his constitutional petition is maintainable due to non-availability of alternate remedy, is not spelt out from perusal of the afore-referred subsection (5). In view thereof, if the petitioner was aggrieved of the orders of nominated officer/DMO under this section, he was required to file appeal within three days from the impugned orders, before the Commission, whose order shall be final. Without availing the remedy of appeal, the petitioner could not circumvent the procedure provided under the law to directly approach this Court through the constitutional petition as it is settled by now that party complaining of some violation of statue/law, must first avail remedy/particular mechanism for impugning a particular action provided by the statue before applying for any other remedy. Reliance is placed on 2004 CLC 308 (Muhammad Aslam v.
Karachi Development Authority), 2004 SCMR 107 (Saeed Ullah, Line Superintendent v. Chief Executive LESCO Limited and others), 2003 CLD 1293 (Wajid Rafique Sheikh v. Chamber of Commerce and Industry, Karachi and 19 others) and PLD 1958 Supreme Court 437 (The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service Sargodha and others).
Needless to mention that where a law requires a thing to be done in a particular manner, it has to be done in that manner alone and such dictate of law cannot be termed as a mere technicality otherwise it would be non-compliance with the legislative intent. Reliance in this regard may be placed on PLD 2016 Supreme Court 995 (Shahida Bibi and others v. Habib Bank Limited and others), 2014 SCMR 1015 (Zia-ur-Rehman v. Syed Ahmad Hussain and others), PLD 2013 Supreme Court. 255 (Muhammad Anwar and others v. Mst. Ilyas Begum and others), PLD 2011 Supreme Court .512 (Khalil-ur-Rehman and another v. Dr. Manzoor Ahmad and others), PLD 2011 Supreme Court 241 (Hafiz Tasadduq Hussain v. Muhammad Din through legal heirs and others). Moreover, section 236 of the Act, which is reproduced below, provides that where ECP has the jurisdiction to decide a matter, the jurisdiction of the courts is barred in such matters.
"236. Jurisdiction of courts barred.-- (1) No court shall question the legality of any action taken in ,good faith by or under the authority of the Commission, the Commissioner or an election official or any decision given by any of them, or any other officer or authority appointed under this Act or the Rules.
(2) No court shall, question the validity of the electoral rolls prepared or revised under this Act or the legality or propriety of any proceedings or action taken by or under the authority of the Commission or a Registration Officer.
(3) The 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."
9. The bar of jurisdiction of courts contained in section 236 of the Act although cannot curtail the jurisdiction of this Court conferred under Article 199 of the Constitution, this Court has to regulate its proceedings keeping in view the availability of alternate remedy, which in this case is available, to the petitioner in shape of appeal provided under section 234 subsection (5) of the Act, and the Election Laws being special laws where remedy of appeal was provided were to be implemented in letter and spirit and without availing it, further remedy could not be availed especially when Election Laws were to be strictly construed and any ambiguity was to be resolved in favour of the candidate, who had been permitted to participate in the electoral process, hence, the constitutional remedy of Writ Petition is not available to the petitioner at this stage. Reliance in this regard is placed on 2016 SCMR 893 (Muhammad Mujtaba Abdullah and another v. Appellate Authority/Additional Sessions Judge, Tehsil Liaqatpur, District Rahim Yar Khan), which provides that Election Laws, more particularly disqualification provisions to dis-enfranchise a Candidate thus depriving him of valuable right of franchise guaranteed under the Constitution were to be strictly construed and any ambiguity was to be resolved in favour of candidate, who could be permitted to participate in the electoral process, hence, this Court cannot interfere into the orders of the DMO at this premature stage, which jurisdiction even otherwise could not be exercised unless any illegality committed by the fora below or jurisdictional defect is pointed out. Reliance in this regard is placed on 2016 SCMR 842 (Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others), 2011 SCMR 1813 (Dr. Sher Afghan Khan Niazi v. Ali S.Habib and others), PLD 2010 Supreme Court 1066 (Rana Aftab Ahmad Khan v. Muhammad Ajmal and another) and PLD 2010 Supreme Court 969 (Muhammad Abbasi v. SHO Bhara Kahu and 7 others). Needless to mention that the petitioner has raised some disputed questions of facts which cannot be determined through constitutional jurisdiction of this court without deeper inquiry into the matter which cannot be 'done at this stage. Reliance in this regard is placed on 2014 SCMR 1676 (Pakistan WAPDA Employees Pegham Union v. Member, National Industrial Relation Commission, Islamabad and others), 2011 SCMR 1023 (Amir Jamal and others v. Malik Zahoor- ul-Haq and others).
10. In view of what has been discussed above, it is held that this constitutional petition is not maintainable at this stage due to availability of alternate remedy to the petitioner under the relevant Election Laws, which remedy provided by the said Special Laws on the subject cannot be circumvented in ordinary circumstances especially when no extra ordinary circumstances have been pointed out.
11. For what has been stated above, this constitutional petition being not maintainable is dismissed in limine.