JUDGMENT.
Mirza Vipas Rauf, J. This single judgment shall govern the subject petition as well as W.Ps.No.4100, 4101, 4135 and 4151 of 2023 on account of similarity of questions of fact and law involved in all these petitions.
2. In order to delimit territorial constituencies for upcoming elections to the National Assembly and the Provincial Assembly of the Province, the Election Commission constituted a committee for preparing a draft proposal for the delimitation of the constituencies in question (PP-8 and PP-9) and on publication of draft, the petitioners being the residents and voter members of the constituencies filed their objections to the Election Commission but the objections were discarded by way of order dated 26th November, 2023, hence these petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution").
3. I have heard learned counsel for the petitioners as well as learned Law Officer and perused the record with their able assistance.
4. The Election Commission is the creation of the "Constitution". Part VIII of the "Constitution" deals with Chief Election Commissioner and Election Commission. Article 218 of the "Constitution" lays down the composition of the Election Commission and its duties prime of which is to hold election to both Houses of Majlis-e-Shoora (Parliament), Provincial Assemblies and such other public offices as may be specified by law. In the case of WORKERS' PARTY PAKISTAN through Athar Hussain, Advocate, General Secretary and 6 others v. FEDERATION OF PAKISTAN and 2 others (PLD 2012 Supreme Court 681), the Supreme Court of Pakistan, outlined the significance and scope of Article 218 of the "Constitution" in the following words: - "38. The Constitution provides a comprehensive mechanism to ensure minimal deviation from these dictates. It identifies and regulates one of the key aspects of democracy, the election process. In Article 218, the Constitution constitutes the Election Commission and empowers it to organize and oversee the election process and to ensure, inter alia, that it is conducted "honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against". Article 218(3) of the Constitution enumerates the broad and overarching responsibility of the Election Commission and declares that:-- "218. Election Commission.
(1) For the purpose of election to both Houses of Majlis-e-Shoora (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--
(b) four members, each of whom has been a Judge of a High Court from each Province, appointed by the President in the manner provided for appointment of the Commissioner in clauses (2A) and (2B) of Article 213.
(3) It shall be the duty of the Election Commission constituted in relation to an election 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."
39. The phrase "the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against" as used in Article 218(3) of the Constitution informs the content and scope of powers conferred by it on the Election Commission. It may be advantageous to refer to the meanings of the terms "honestly", "justly" and "fairly" as given in various legal instruments, which read as under: - "Honestly":
(i) 'honest' means full of honour: just: fair dealing: upright: the opposite of thievish: free from fraud: candid: truthful: ingenious: seemly: respectable: chaste: honourable; 'honestly' means in an honest way: in truth; 'honesty' is the state of being honest: integrity: candour. [Chambers, 20th Century Dictionary, New Edition 1983 at page 601]
(ii) 'honesty'-"according to the best lexicographers the words 'truth' 'veracity' and 'honesty' are almost synonymous, very nearly the same definitions being given to each of the words". [P.
Ramanatha Aiyar's "Advanced Law Lexicon", 2005 Edition, Vol. 2, at page 2153]
(iii) Honesty is a thing deemed to be done in good faith, where it is infact done honestly, whether it is done negligently or not. [Fakhruddin v. A. Shah (PLD 1982 Kar 790)]
(vi) Honestly is state of mind which is psychological factor capable to prove or disprove only by a evidence or conduct. [Amjad Khan v. Marium (1993 CLC 175)] "Justly"
(i) 'just' means "conforming to or consonant with, what is legal or lawful, legally right, lawful"; ... "The words 'just' and 'justly' do not always mean 'just' and 'justly' in a moral sense, but they not unfrequently, in their connection with other words in a sentence, where a very different signification.
It is evident, however, that the word 'just' in the statute [requiring an affidavit for an attachment to State that plaintiff's claim is just] means 'just ' in a moral sense; and from its isolation, being made a separate sub-division of the section, it is intended to mean 'morally just' in the most emphatic terms. The claim must be morally just as well as the legally just in order to entitle a party to an attachment."
Robinson v. Burton (5 Kan. 300.) [Black's Law Dictionary, Revised 4th Edition of 1968, at page 1001]
(ii) "just' means righteous: fair: impartial: according to justice: due: in accordance with facts: well- grounded: accurately true: exact: normal: close-fitting: precisely: exactly: so much and no more: barely: only: merely: quite; "justly' means in a just manner: equitably: accurately: by right; "justness' means equity: fittingness: exactness. [Chambers, 20th Century Dictionary, New Edition 1983 at page 686]
(iii) 'just'. As an adjective, fair; adequate; reasonable; probable; right in accordance with law and justice right in law or ethics; rightful; legitimate, well founded; conformable to laws; conforming to the requirements of right or positive law; conformed to rules or principle of justice. 2 Bom LR 845. As an adverb of time the word "just' is equivalent to ""at this moment," of the least possible time since"
(Ame. Cyc.).
The word "just' is derived from the Latin "justus' which is from the Latin "jus' which means a right, and more technically a legal right--- a law. The world "just' is defined by the Century Dictionary as conforming to the requirements of right or of positive law, and in Anderson's Law Dictionary as probable, reasonable. Kinney's Law Dictionary defines "just' as fair, adequate, reasonable, probable, and justa causa as a just case, a lawful ground. Being in conformity with justice [S.191, Expln.2, ill. (a)
IPC (45 of 1860) and Art. 42, Const]; fair.
An allegation is an indictment that an offence has "just' come to the knowledge of an officer having authority to prosecute is, by implication, a sufficient allegation that the offence had not previously come to the knowledge of any other public officer having authority to prosecute.
"JUST' as sued in Laws providing that an affidavit for attachment shall show the nature of the plaintiffs claim, and that it is just, etc., should be construed to mean just in a moral sense. The claim must be morally just, as well as legally just in order to entitle a party to an attachment. "Shall have the power, if he shall think just, to order a new trial." in the County Courts Act, 1888 (51 & 52 Vict. c.
43), S.93. These words do not give a County court judge an absolute power of granting new trials.
His power under the section is subject to the rules and limitations as to the granting of new trials which are binding upon the High Court, the Court of Appeal, and the House of Lords. Murtagh v.
Barry (1890) 44 Ch D 632 (LORD COLERIDGE, C.J.). The crucial word in the phrase is ""just" which imparts a judicial, and not an absolute power. (Craies St. Law).
The term "just' is derived from the Latin word "justus'. The word, "just' connotes reasonableness and something conforming to rectitude and justice something requirable and fair. M.A. Rahim and another v. Sayari Bai, AIR 1973 Mad 83,87. The world 'just' denotes equitability, fairness and reasonableness having a large W.Ps.No.4099, 4100, 4101, 4135 and 4151 of 2023 peripheral field. Helen C. Rebellor v. Maharashtra S.R.T.C., (1999) 1 SCC 90, para 28: AIR 1998 SC 3191. The world 'just' occurring in Section 168 of the Act means that the compensation must be just and it cannot be a bonanza; not a source of profit but same should not be a pittance. The expression 'just' denotes equitability, fairness and reasonableness and non-arbitrariness. Divisional Controller KSRTC v.
Mahadeva Shetty, (2003) 7 SCC 197, para 15. [Motor Vehicles Act (59 of 1988), S. 168].
Reasonableness may be 'good cause' but it is not necessarily 'just cause'. If a person voluntarily retires on pension, he is getting a substantial financial benefit for himself, and it is not fair or just to the unemployment fund that he should also get unemployment benefit for the six weeks under the act. Crewe v. Social Security Commissioner, (1982) 2 All ER 745, 749. [Social Security Act, 1975, S.20(1)(a)].
The words 'just cause' in S.263 are exhaustive and not merely illustrative. Merely the failure to fill an inventory or the account within the specified time is not sufficient. It must be established that the person to whom the grant has been made wilfully and without reasonable cause omitted to exhibit them. In Re. T. Arumuga Mudaliar, AIR 1955 Mad 622. [Indian Succession Act (39 of 1925), S.263]. [P.
Ramanatha Aiyar's "Advanced Law Lexicon", 2005 Edition, Vol. 3, at pages 2539 and 2540:]
(iv) 'just' means according to law. [Utility Stores Corporation of Pakistan Ltd v. Punjab Labour Appellate Tribunal (PLD 1987 SC 447) and Shahi Bottlers (Pvt) Ltd v. Punjab Appellate Tribunal (1993 SCMR 1370)] "Fairly"
(i) 'fairly' means "equitably, honestly, impartially.... Justly, rightly, with substantial correctness, reasonably...". [Black's Law Dictionary, Revised 4th Edition of 1968, at page 719]
(ii) 'fairly' means beautifully: neatly: justly: reasonably: plainly: gently: fully: quite: tolerably.
[Chambers, 20th Century Dictionary, New Edition 1983 at page 452]
(iii) 'fair' --"the world conveys some idea of justice or equity in partial free from suspicion or bias; equitable; reasonable; honest; upright; and as applied to the weather, a fair weather is one free from clouds; not obscure"-'FAIR, HONEST, EQUITABLE, REASONABLE' - 'fairness" enters into every minute circumstance connected with the interest of the parties, and weights them alike for both; honestly is contended with a literal conformity to the law, it consults the interest of one party. An estimate is fair in which profit and loss, merit and demerit with every collateral circumstance is duly weighed; a judgment is equitable which decides suitably and advantageously for both parties; a price is reasonable which does not exceed the limits of reason or propriety. A decision may be either fair or equitable; but the former is said mostly in regard to trifling matters, and the W.Ps.No.4099, 4100, 4101, 4135 and 4151 of 2023 latter in regard to the important rights of mankind. It is the business of the umpire to decide fairly between the combatants, it is the business of the Judge to decide equitably between men whose property is at issue." [P. Ramanatha Aiyar's "Advanced Law Lexicon", 2005 Edition, Vol. 2, at page 1761 and 1762] A perusal of the above shows that the words "justly", "fairly" and "honestly" have similar shades of meaning. As has been rightly submitted by Mr. Farogh Naseem, these words imply that the Election Commission is under a direct constitutional obligation to exercise all powers invested in it in a bona fide manner, meeting the highest of standards and norms. As a natural corollary, therefore, all discretionary power is also to be exercised and tested against these standards.
40. 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 scru tiny, 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.
41. The Election Commission may also exercise its powers in anticipation of an ill that may have the effect of rendering the election unfair. In the case titled as In Re: Petition filed by Syed Qaim Ali Shah Jellani (PLD 1991 Jour. 41) the Elections Commission exercised its powers under Article 218(3) pre-emptively, by making all necessary arrangements to ensure that a certain class of people would be allowed to vote. This case implies that where a violation of the standards mentioned in Article 218(3) has not as yet taken place, the Election Commission is legally empowered under Article 218(3) to exercise its powers pre-emptively in order to avoid a violation of these standards.
Furthermore, Mst. Qamar Sultana v. Public at Large (1989 MLD 360) and In Re: Complaint of Malpractices in Constituency No. NA-57, Sargodha-V (supra) both reinforce the argument that the Election Commission is fully empowered by Article 218(3) to make 'such orders as may in its opinion be necessary for ensuring that the election is fair, honest etc'. These decisions recognize that the Election Commission enjoys broad powers not only to take pre-emptive action but also to pass any and all orders necessary to ensure that the standards of 'honesty, justness and fairness' mentioned in Article 218(3) are met."
5. In order to amend, consolidate and unify laws relating to the conduct of elections and matters connected therewith or ancillary thereto, the Elections Act, 2017 (hereinafter referred to as "Act") was promulgated. The matter in issue since relates to the delimitation of the constituencies, so instead of pondering upon any other aspect, it would be apposite to have a direct recourse to Chapter-III of the "Act", which deals with the subject. Section 17 mandates the Election Commission to delimit territorial constituencies for elections to the National Assembly, each Provincial Assembly and to the local governments in accordance with the provisions of the "Constitution", the "Act", the Rules and the applicable local government law. Section 19 specifies the manner of delimitation of constituencies whereas section 20 lays down the principles of delimitation, which is relevant for the matter in issue. Section 20 is, thus, reproduced below: - "20. Principles of delimitation. (1) All constituencies for general seats shall, as far as practicable, be delimited having regard to 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.
(2) Omitted vide elections (Second Amendment) Act, 2023 dated 5th August, 2023.
(2-A) For the purpose of delimiting constituencies, for the general seats of the Provincial Assembly of Khyber Pakhtunkhwa for Tribal Areas two or more separate areas may be grouped into one constituency for their elections to be held in 2019 and Bye-elections related thereto and thereafter this sub-section shall stand omitted. (added by the Elections (Second Amendment) Act, 2019 dated 16th May, 2019.
(3) As far as possible, variation in population of constituencies of an Assembly or a local government shall not ordinarily exceed ten percent.
(4) If the limit of ten percent under sub-section (3) is exceeded in an exceptional case, the Commission shall record reasons thereof in the delimitation order."
From the bare reading of the above noted provision of law, it clearly manifests that there are numerous factors which matters for the purpose of delimitation of constituencies as is incorporated in sub-section (1) above.
6. In order to carry out the purpose of the "Act", the Election Rules, 2017 (hereinafter referred to as "Rules") were framed. Chapter-III of the "Rules" deals with delimitation of the constituencies of Assemblies. Rule 10 prescribes a detailed mechanism for preparation of draft proposals for delimitation of constituencies, which reads as under: -
10. Draft proposals for delimitation of constituencies.-- (1) A Delimitation Committee constituted under rule 9 shall, immediately after its constitution, proceed to obtain from Pakistan Bureau of Statistics, population data of last census officially published along with relevant maps showing therein census charges, census circles and census blocks along with description, relating to a Province, a district or any other administrative or revenue unit as it may require.
(2) The Delimitation Committee shall also obtain district maps along with description, duly authenticated by Pakistan Bureau of Statistics, or, as the case may be, the district head of Revenue Department, prepared on a uniform scale as may be determined by the Commission indicating therein details of all administrative and revenue units in the district to the level of a Patwar Circle or, as the case may be, a Tapedar Circle, as well as prominent geographical and physical features, such as rivers and mountains and any other information as may be determined by the Commission or required by the Committee.
(3) In preparing draft proposals for delimitation of constituencies, the Delimitation Committee shall follow the principles of delimitation as laid down in section 20, procedure given in this Chapter and the guidelines provided by the Commission from time to time.
(4) The constituency for an Assembly shall not ordinarily extend to more than one district except in exceptional circumstances for reasons to be recorded by the Delimitation Committee: Provided that a Patwar Circle or, as the case may be, a Tapedar Circle shall be the basic unit for delimitation and it shall not be broken under any circumstances: Provided further that in case of urban areas census circle shall not be broken under any circumstances:
(5) As far as possible, the delimitation of constituencies of an Assembly shall start from the Northern end of the district, and then proceed clock-wise in zigzag manner keeping in view that population among the constituencies of an Assembly shall remain as close as may be practicable to the quota: Provided that the quota under this sub-rule shall be determined by dividing total population of the district with number of seats allocated to that district: Provided further that the variation in population between two or more constituencies shall not ordinarily exceed ten percent and the Delimitation Committee shall record reasons if, in exceptional circumstances, the variation has to exceed the limit.
(6) For the purpose of preparation of draft proposals for delimitation, the Delimitation Committee may require assistance from any Federal, Provincial or, as the case may be, a Local Government Authority.
(7) After the draft proposals for delimitation of constituencies are finalized on Form-5, the Delimitation Committee shall send the same to the Commission, within the time specified and in the manner as may be determined by the Commission.
7. It appears that after preparation of draft proposals in terms of Rule-10, the Commission published the preliminary proposals through wide publicity and in response thereto, the petitioners in W.Ps.No.4099, 4100 and 4101 of 2023 being the voter members of the constituencies moved their respective representation in terms of Rule 12 of the "Rules" whereas the petitioners in W.Ps.No.4135 and 4151 of 2023 did not file any such representation. After hearing the objections, the Election Commission passed the impugned order.
8. It evinces from the respective representations moved by the petitioners in W.Ps.No.4099, 4100 and 4101 of 2023 that they are aggrieved of exclusion of certain area (Patwar Circle) from constituency PP-8 and its inclusion in constituency PP-9. The stance of the petitioners is that including these Patwar Circles in any other constituency would cause serious inconvenience to the voters in the process of election. The main stay of the petitioners in challenging the impugned order is that their objections have not been properly addressed by the Commission. Needless to observe that delimitation of constituencies is one of the foundational and important step to organize and conduct fair and transparent elections. The Election Commission is the creation of the "Constitution" and its prime duty as ordained in the "Constitution" and the "Act" is to conduct the elections in fair and transparent manner. As already observed that one of the foundational step to hold the elections emerges from the delimitation of the constituencies which is undoubtedly within the domain of the Election Commission.
9. There is no cavil that before finalizing the delimitation process, the Election Commission has to ensure that every genuine objection be attended and dealt with properly. As already observed that the objections of the petitioners in W.Ps.No.4099, 4100 and 4101 mainly relate to the exclusion of a specific area (Patwar Circle) from PP-8 and inclusion in PP-9, which in their estimation would result into serious inconvenience to the voters of the constituencies, suffice to observe that mere inconvenience of a segment of people cannot be made basis for delimitation of the constituencies. The suitability and proximity of an area, being part of a constituency is to be determined on the basis of various factors. Even otherwise, in order to examine the worth of the objections offered by the petitioners on the delimitation process, I have examined the map prepared for the said purpose, which also shows that the exclusion of the areas from PP-8 and inclusion in PP-9 was quite justifiable, in the circumstances and it has been done after taking into consideration the relevant law.
10. In the case of SHAHBAZ KHAN v. ELECTION COMMISSION OF PAKISTAN through Chief Election Commission, Islamabad (PLD 2003 Lahore 125), while dealing with the issue of delimitation of constituency, the Division Bench of this Court held as under: - "However, in the interest of justice and fair play we have examined sketch of the constituencies in question with the assistance of the learned counsel for the parties and representative of the respondents. It is quite apparent from the sketch that the aforesaid changes do not in any manner contravene or violate the principles and para meters as laid down in section 9 of the aforesaid Act.
The said changes, inclusions and exclusions pertained to the area contiguous to the very constituencies to which they are added. It may be pointed out that delimitation of the constituencies is based on not only the geographical situation but also on the basis of the population and it is the function of the Commission to determine the same. We in exercise of Constitutional jurisdiction are not obliged to embark upon the inquiry into facts pertaining to the aforesaid contentious assertions. It is pertinent to mention here that in the impugned order of the learned Member of the Commission it is specifically maintained that the modifications of the delimitation as made by it would achieve better compactness and contiguity of the electoral unit.
The population has increased therefore, it appears to be justified for making aforesaid changes in the delimitation as otherwise the polling scheme and other allied arrangements will also have to be changed which will cause unnecessary inconvenience and uncertainty amongst the voters. In respect of the population criteria we find that the population regarding the constituencies as carved out by the Election Commission falls within the permissible variation and thus no exception in this regard can be made against the order of the Member of the Election Commission. The respondents have made certain adjustments keeping in view the increase in population and seats in the District in question. It is also settled principle of law that respondent has lawful authority to make adjustments without notice order section 10-A of the said Act. In arriving to this conclusion we are fortified by the law laid down in Chaudhry Shafiq Ullah's case (PLD 1971 Lahore 533). It is also settled principle of law that this Court has no jurisdiction to substitute its own findings in place of the findings of the Tribunals below. Moreover, we cannot dilate upon the factual controversy raised before us nor we can substitute our findings for that of the competent authority. In arriving to this conclusion we are fortified by the following judgments:--
(1) Musaddaq's case (PLD 1973 Lahore 600).
(2) Qaisar Shafi Ullah's case (1994 SCMR 859).
18. It is better and appropriate to reproduce relevant provisions of limitation of Constituencies Act, 1974 (Act No. XXXIV of 1974) to solve the controversy between the parties:-- "Section 9. Principles of delimitation. ---(1) All constituencies for Muslim seats shall, as far as practicable, be delimited having regard to the distribution of population, including non-Muslims 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 constituencies.
(2) As far as may be the constituencies for election to the same Assembly shall be equal among themselves in population."
"Section 10(3). The Commission shall, after hearing and considering the representations, if any, received by it, make such amendments, alterations or modifications, in the preliminary list published under subsection (1) as it thinks fit or necessary, and shall publish in the official Gazette the final report and list of constituencies showing the areas included in each constituency. "
"Section 10-A Power of Commission to make amendment alteration or modification in the final list of constituencies. ---Notwithstanding anything contained in this Act, the Commission may, at any time, of its own motion, make such amendments, alterations or modifications in the final list of constituencies published under subsection (3) or in the areas included in a constituency, as it thinks necessary. "
Mere reading of section 9 reveals that the following principles are to kept in mind at the time of making the delimitation of the constituencies:-
(1) Distribution of population in geographically compact areas.
(2) Existing boundaries of administrative units.
(3) Facilities of communication.
(4) Public convenience.
(5) Other cognate factors to ensure homogeneity.
The respondents have followed the aforesaid principles at the time of issuing the impugned notifications as the learned Member' of the Commission vide its order dated 16-5-2002 has kept in mind the aforesaid principles at the time of deciding the representations filed by the aggrieved persons before him against the preliminary notification. It is also settled principle of interpretation that order is to be read as a whole and not piecemeal. In case the impugned order of the learned Member of the commission be read as a whole there remains no doubt that he has passed the impugned order after applying his independent mind with cogent reasons. Reference to para. 7 alone of the order by the petitioner, is uncalled for. Reading of the order as a whole clearly demonstrates due application of mind to the essential aspects of the matter. As far as practicable the criteria laid down in section 9 of the Act has been kept in view and adhered to, in making adjustments. The criteria of equality of population amongst various electoral units has been achieved. It is fully in consonance with the law on the subject. Suffice it to observe that personal wishes or choice of the prospective candidate for few voters cannot be the criteria or yardstick for alteration or modification in the delimitation of constituencies. We are, therefore, not persuaded to interfere with the process of delimitation of constituencies.
In view of what has been discussed above, these writ petitions are dismissed."
11. Needless to reiterate that it is not the job of this Court in constitutional jurisdiction to evaluate the suitability or otherwise of the delimitation of the constituencies merely as per whims of a segment of the society. The constitutional jurisdiction is always discretionary with the Court and the person(s) approaching for the said purpose has/have to establish(s) the negation of his/their vested rights. Furthermore, the constitutional mandate is not unbridled and this Court is precluded to exercise the constitutional jurisdiction in an omnibus fashion.
12. For the foregoing reasons, I feel no hesitation to observe that all these petitions are devoid of any merits. Resultantly, the same are dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.