ABDUL HAKEEM KHAN, J.--Mr. Muhammad Yousaf Khan Khattak has prayed that implementation of the order of the Election Tribunal, Peshawar, dated 13th May 1972, whereby his election to N. W. 1 (Peshawar-1) has been declared to be void may be kept in abeyance, and the Election Commission. Islamabad, be directed to withhold action on the election programme announced by it on 30th May 1972, as respects the ensuing bye-election till his appeal against the order of the Election Tribunal is disposed of by this Court finally.
2. We have heard the learned counsel for the parties and respondent No. 1 and also the learned Advocate-General. The main burden of the arguments addressed on behalf of the petitioner is that we have got the powers to stay implementa--tion of the impugned order, for such powers are implied in the appellate jurisdiction, and that in any case, section 151 of the Civil Procedure Code can be invoked, as such a resource will be necessary for the ends of justice.
3. This last argument has, however, not impressed us; for we are not exercising any jurisdiction under the Code of Civil Procedure. Rather, our jurisdiction is a special one, and it has been confined within the limits laid down by the Statute, which gives us jurisdiction. It will be seen that sub-section
(3) of section 64 of the National and Provincial Assemblies (Elections) Ordinance, 1970 (hereinafter called the Ordinance) provider for our special jurisdiction in the following words:
(3) Any person aggrieved by a decision of the Tribunal may, within thirty days of the announcement of the decision, appeal to the High Court on any of the grounds enumerated in section 100 of the Code of Civil Procedure, 1908 and the decision of the High Court on such appeal shall be final and shall not be subject to appeal to the Supreme Court. Every such appeal shall be heard by a Division Bench of two Judges of the High Court.
It must be mentioned, that apart from the above-quoted provision, there is nothing in the Ordinance, which might be construed to have conferred any further powers upon us, while hearing an appeal in the exercise of the said special jurisdic--tion.
4. No doubt, section 61 of the Ordinance provides that the Tribunal shall have all the powers of a civil Court trying a suit under the Code of Civil Procedure, 1908, and shall be deemed to be a civil Court within the meaning of sections 4810 and 482 of the Code of Criminal procedure, 1898, but It will not necessarily flow from this provision, that our powers In the exercise of our special jurisdiction are co-extensive with the powers of the Tribunal itself. The section unequivocally confers all the powers of civil Court trying a suit upon the Tribunal, and there is no mention, whatsoever, of the appellate powers under the Code of Civil Procedure. It was precisely for this reason, that section 100 of the Civil Procedure Code was referred to in subsection (3) of section 64 of the Ordinance, which relates to our appellate jurisdiction.
5. Section 59 of the Ordinance Is also of no avail; for it refers to the procedure before the Tribunal and says that the Tribunal shall try, as nearly as may be every election petition before it In accordance with the procedure for the trial of suits under the Code of Civil Procedure. If at all, it was intended that in the exercise of our special jurisdiction we will have all the powers of an appellate Court, a specific provision to that effect could have been made. More so when we see, that the powers of the appellate Court to stay proceedings in the subordinate civil Courts have been made the subject-matter of a separate rule, and it has been made further clear in Order XLI, rule 5, Civil Procedure Code, that an appeal does not ipso facto, operate as stay of the proceedings in the lower Court, even though it has to b-- conceded, that the appeal is a continuation of the original suit.
6. We are also clear in our mind, that in the absence of a special dispensation, powers to stay proceedings before the Tribunal do not inhere in the appellate Court, and that directions g like de novo trial or remand are therefore not on an equal footing with the powers to allow stay of the proceedings.
7. Be that as it may, our task has been made simple by the Constitutional provision contained in Article 248 of the Interim Constitution of the Islamic Republic of Pakistan. Clause (3) whereof provides as follows:
(3) When, except by dissolution of the National Assembly or a Provincial Assembly, a seat in any such Assembly has become vacant not later than one hundred and twenty days before the term of that Assembly is due to expire, an election to fill the seat shall be held within sixty days from the occurrence of the vacancy.
A mere reading of the above provision will show, that it is a mandatory requirement of the Constitution, that whenever seat in an Assembly becomes vacant, unless, of course, the term of the Assembly is due to expire within a period of one hundred and twenty days, an election to fill up the seat has to be held within a period of sixty days from the occurrence of the vacancy. It follows that there is a Constitutional obligation of the Commission to hold a bye-election within sixty days, and t if the Commission fails to discharge its obligation in this behalf, it will commit a breach of the Constitutional requirement. Since a provision for holding of a bye-election in such unequivocal terms has been made in the Interim Constitution itself, the National and Provincial Assemblies (Elections) Ordinance, 1970, which is art earlier legislation would stand superseded, even if it was to contain a provision, that the appellate Court can stay implementation of the order passed by a Tribunal.
But we have already indicated, that no such powers have been given to us in the exercise of our special jurisdiction. We even doubt that such powers can be given to us so long as Article 248 (3) of the Interim Constitution, quoted above, remains intact. It is well-settled, that where a Statute provided for the doing of a thing in a particular manner, it impliedly prohibits doing of that thing in any other manner.
7. We will like to bring on the record, that the mandate given by the Constitution for filling up a casual vacancy within sixty days is not without reason. Rattier, there is ample wisdom in it, and the Constitution givers wanted to avoid unpleasant experiences of the past, when bye-elections were not held so as to suit the conveniences of the ruling party. There is also ample reason for not giving powers to the High Court to direct that the operation of the order of the Tribunal be stayed, inasmuch as it is not unusual to see the party obtaining a stay order losing all interests in the early disposal of the matter. This would not only have frustrated his opponents, but would also have thwarted the ascent of democracy to Pakistan.
8. Luckily, the matter is not without precedent, and though no provision was made in the Electoral College Act, 1964, for an appeal before the High Court, a Full Bench in Dost Muhammad Malik v. The Returning Officer and another (PLD 1965 Lah. 560) has laid down, that the Court will hesitate to interfere in the exercise of its writ jurisdiction with an intermediary order passed by the Returning Officer. But a reference to the report in Ch. Muhammad Ali v. Government of West Pakistan and others (PLD 1966 Lah. 335) will not only be conclusive, but it will also re-enforce the proposition, that stay of the proceedings with reference to section 151 of the Code of Civil Procedure should not be allowed in election matters. The head-note may be reproduced with advantage:-- Making of interim order would be tantamount to interfering with the carrying out of the functions and public duties of the public authorities and would be otherwise harmful to the public interest. A stay order in such circumstances is likely to create complications and the balance of convenience lies in not issuing it. A machinery of public administration cannot be brought to a standstill simply for the sake of one individual. A candidate for election to an electoral body like anyone else has a right to pursue his legal remedies, whatever they may be, but, save in exceptional circumstances, it is an abuse, for a candidate who for some reason is shut out, to make his pursuit of remedies in civil Courts a weapon for dislocating the electoral machinery and staying an election injunction could not be granted as the balance of inconvenience resulting from the postponing of the election would be greater than inconvenience resulting from the election being held on the fixed date. The contention that if temporary injunction was not issued, the legal remedy being pursued by aim would become infructuous is not in itself sufficient to warrant the issue of temporary injunction. In the matter of election of Legislatures and other electoral bodies an exception is made in it that no dispute arising in the course of an election will be entertained until the election is completed. Election rights are no common law rights. They are the creation of a statute and should be exercised only in the manner in which the law created them says that they should be exercised and vindicated.
9. For the reasons, we reject the petition.