ELECTION COMMISSION OF PAKISTAN through its Secretary vs JAVAID HASHMI and others

1. ' MUHAMM A D H A LEEM , C J --In the bye-election to the Constituency No,NA 120, Multan-cum- Khanewal, it was called upon by notification dated 18th of January, 1989, issued under section 11 read with section 108 of the Representation of the People Act, 1976, (hereinafter called "the Act"), to elect a representative to fill in the seat which fell vacant -on the demise of the father of Mr. Fazal Dad Valha, a PPP candidate. The main contestants of this election were Fazal Dad Vahla and Jpvaid Hashmi, a nominee of Islami Jemhoori Ittehad, and the date for polling was 22nd February, 1989. On the same date, that is, 18th of January,. 1989, another notification under section 7 read with section 108 of the Act was issued appointing the District and Sessions Judge as the District Returning Officer and Mr. Aziz-ur-Rehman, an Additional District and Sessions Judge as the Returning Officer.

2. ' The Returning Officer was authorised under subsection (1) of section 9 of the Act to appoint Presiding Officers, Assistant Presiding Officers and Polling Officers and under subsection (2) he was further required to submit a list of Presiding Officers and Polling Officers to the District Returning Officer at least 15 days before the polling date for its approval. There could not be any change under this provision in the personnel except with the approval of the Commission. The Returning Officer in compliance with this provision drew up such a list which was approved by the District Returning Officer on 4-2-1989.

3. ' It appears from paragraph, 4 of the parawise comments filed by the petitioner-Election Commission of Pakistan, that the Election Commission Secretariat, Islamabad, received several complaints on 10th and 11th of February, 1989, against the appointment of polling personnel as the majority belonged to the Provincial Government Departments, and in the context of the current strained relations between the Central Government and the Provincial Government, the holding of fair election was not possible unless a proper balance in such appointments was struck by appointing Federal Government employees in addition to the employees of the Provincial Government. Accordingly, the petitioner in the discharge of its constitutional duty to hold just, fair and impartial elections verbally instructed the District Returning Officer through the Provincial Election Commissioner, Punjab to make sure that no injustice was done to any one and that the polling staff should be drawn from both the Provincial as well as Central Governments on parity basis as far as possible. These instructions were issued in the absence of the Chief Election Commissioner, who was out of the country, in pursuance with his Policy Instructions available with the Secretariat. Paragraph 123 of the notings in this behalf was referred to us and it reads as under:- "Discussed with the CEC. He has directed in view of the current political situation, the polling staff shall be appointed on equal basis, as far as possible, from amongst the employees of the Provincial Government and the Federal Government for holding election in this constituency.

4. Necessary instructions in this behalf may be communicated to the PEC, Punjab, over the telephone just now. These instructions shall also be applicable to all the bye-elections to be held in future in the Punjab till such time the political situation in the Province returns to normal."

5. ' The verbal instructions were conveyed by the Provincial Election Commissioner to the District Returning Officer who wrote a letter, dated 11th of February, 1989 to the Returning Officer, which reads as under:- "I hereby convey to you telephonic message received from Ch. Abdul Aziz Sahib, the Provincial Election Commissioner for guidance and compliance. He has told me that the Election Commission of Pakistan has desired that the Polling Personnel be not taken from the Provincial Departments as a whole and instead the polling personnel to be employed on the day of election, be taken, as far as possible, from both the Provincial as well, as Central Departments on equal basis.

(2) Needless to emphasize that this policy would be in the fitness of things and would remove doubts/apprehensions from the minds of the contesting candidates. This would also display fairness on the part of the election authority.

(3) In the light of the above direction, you are advised to revise the list of polling personnel in accordance with the policy of the Election Commission of Pakistan. You are also 'advised to contact the Provincial Election Commissioner on telephone and sort out the detail of this new task."

6. ' In compliance with this memdrandum the Returning Officer changed as many as 467 personnel of the polling staff out of the total of 1804 polling personnel from the earlier approved list.

7. ' While alleging that the polling staff comprised almost 80 per cent. Employees of the Municipal Corporation, Multan and 20 per cent, from, the other departments, the respondent No,1 felt aggrieved by this change which was made without any rhyme or reason and at the behest of the Federal Government. It was further alleged that those substituted were the employees of the departments who were under "a very deep obligation of the persons presently in power." In this connection reference was made to Mr. Yousaf Raza Gilani who earlier had been a Minister for Railways in the Cabinet of Prime Minister Junejo and had employed hundreds of persons in that department who were most loyal to him and it were they who were appointed as Presiding Officers "in the said Halqa with the sole object of using them to obtain results of choice".

8. ' In paragraph 6 of the petition, the respondent No,1 further alleged that such a change could not be made without any allegation of partiality against the polling staff earlier approved and that in no case a change could have been made "especially within 15 days of the polling day", and that too even by the Election Commission without sufficient cause by substituting the personnel from the Railways Department whose ex-Minister was actively involved in the election campaign. And finally it was stated that this change in the polling staff had "eclipsed the much spoken of impartiality of the Election Commission of Pakistan".

9. ' The other grievance was that the sanctity of fair, free and impartial election was blurred by the issuance of nearly ten thousand National Identity Cards and their delivery to the workers of PPP obviously with the object of depriving the genuine voters from exercising their right of franchise by those personating. In this connection it was mentioned that Mr. Shafqat an Assistant Registration Officer, Multan, delivered a big chunk of prepared National Identity Cards to Mr. Fayyaz Chatha a worker of PPP and those persons who approached the Registration Officer for the issuance to them of their identity cards were referred to Mr. Fayyaz Chatha who refused to deliver those identity cards. This, according to respondent No,1, was done at the behest of the Ministry of Interior under whose control the registration offices are functioning in the country. It was, accordingly, averred that despite the grievance having been made to the Returning Officer as well as to Election Commission no redress was made by either of them. And further, it was not possible to hope that the elections would be fair, free and impartial by reason of the non-performance by the Election Commission of Pakistan of its obligation to hold a fair, free and impartial election under the law.

10. ' On these allegations the respondent No,1 claimed the following reliefs:

(a) That the change effected in the Polling Staff by the Returning Officer may graciously be declared to be tainted with ulterior motives, mala fide, without jurisdiction and without lawful authority and the same may be set aside.

(b) Respondents Nos. 2 and 3 may be proceeded against for handing over National Identity Cards to unauthorised persons like Fayyaz Chatha and other P.P.' s workers.

(c) The Identity Cards delivered to unauthorised persons may be recovered from them and they be handed over to Returning Officer for their proper distribution. All Identity Cards prepared till date but not delivered to the concerned persons may also be distributed through Returning Officer.

(d) The total Identity Cards issued after announcement of this bye-election may be scrutinized and appropriate constitutional relief may kindly be afforded.

(e) The Election Commission of Pakistan may be directed to fulfil its constitutional obligations of holding just, fair and impartial elections in Constitutency No,NA-120 Multan being held on 22nd of February, 1989.

(f) Any other relief to which this Honourable Court may find the petitioner entitled in justice, law and equity may also be awarded."

11. ' The writ petition was filed on 18th of February, 1989 and pre-admission notice was issued to the respondents on 19th of February, 1989, on which date the Returning Officer, respondent No,1 .Herein, appeared. According to paragraph 8 of the parawise comments a telegraphic notice was received in the petitioner's secretariat on 19th of February, 1989 at 11-00 a.m. And someone on its behalf appeared and sought adjournment of the hearing Of the case. The writ petition was admitted and the date of hearing was put off to 20th February, 1989. On the subsequent date the hearing was completed and for the reasons to be recorded later, the High Court by a short order allowed the petition. The reliefs granted by the High Court were:

(1) That the election shall be supervised by the Staff as per proposal of the respondent, dated 2-2- 1989 which was approved by respondent No,4 on 4-2-1989. All the appointments made by respondent No,1 on 12-2-1989 are hereby declared illegal, ultra vires and ineffective. The District and Sessions Judges Multan and Khanewal are directed to render all possible assistance to respondent No,1 so that he could get the appointment letters of the staff as per original list distributed.

12. Respondent No,1 can also issue the directions in this behalf to the heads of the Government Departments, both at Multan and Khanewal and they will be under an obligation to comply with the same. Respondent No,2 has stated that 18282 National Identity Cards are lying ready with him for distribution while respondent No,3 has stated that 11000 cards are ready with him for distribution.

13. The cards shall be distributed through the Mobile Teams which shall be supervised by the Civil Judges to be appointed by the concerned District and Sessions Judges. The Civil Judges so appointed shall ensure that the cards are handed over to the concerned persons against production of a receipt. The statements as to the number of cards, cards distributed and left-over cards shall be countersigned by the supervising Civil Judges.

(2) It is made clear that there is to be one Civil Judge for each Mobile Team. Respondents Nos.2 and 3 will report to the concerned District and Sessions Judges today at 2-00 p.m. For nomination of the Civil Judges.

(3) This short order is to be conveyed to the District Education Officers, Deputy Commissioners, Superintendents of Police of both the Districts and Commissioner, Multan for strict compliance.

(4) The Civil Judges also to counter-check the cards already issued by respondents Nos.2 and 3 in the last two days.

(5) The Additional Registrar of this Court also to get the information published and broadcast for the benefit of the concerned staff and to the voters of N.A-120."

14. ' Against the short order, the petitioner filed Civil Petition for Leave to Appeal No,78-R of 1989, and questioned the correctness of relief No,1 whereby it was ordered that the election should be supervised by the staff as per proposal of the respondent No,1 dated 2nd of February, 1980, which was approved by respondent No,4 on 4-2-1989, and that the appointments made by respondent No,1 on 12th February', 1989, were declared to be illegal, ultra vires and ineffective on the grounds: firstly, that it was neither physically nor otherwise possible or practicable to change the staff already appointed to conduct the election on the specified date and thereby to revert to the position as existing on 4th of February, 1989, as some of the officials might not be available for being employed as such and, accordingly, the impugned order was incapable of being implemented; secondly, that in the absence of any jurisdictional defect in the appointment of the polling staff by the subsequent order, dated 12th of February, 1989, their appointments could not be declared illegal or ultra vires; thirdly that as the polling date was a day after the passing of the short order it could not be implemented in the short time available and in that view of the matter, any candidate could challenge the result of the election on this ground; and, fourthly, that the allegations made in the writ petition rested on the controversial facts which were not substantiated by any material on record. Accordingly, the High Court erred in granting the relief.

15. ' Along with the civil petition for leave to appeal, a request was made for the suspension of the order and by order, dated 21-2-1989, the operation of the impugned order was suspended as an interim measure, and the interim order was listed for confirmation on 22-2-1989 and till then the arrangements earlier made, that is, by order, dated 12th of February, 1989 were allowed to hold the field. On 22-2-1989, the order was confirmed till the decision of the petition, and in the meanwhile it was ordered that the result of the election shall not be notified and the petition was directed to be heard on 26-2-1989 on which date it was adjourned to 11th of March, 1989 as the detailed judgment of the High Court was not available till then.

16. ' During the hearing of this petition on 11th of March and onwards, the petitioners, namely, the District Registration Officer, Multan, and the District Registration Officer, Khanewal, filed Civil Petition for Leave to Appeal No,106-R of 1989 to contest relief granted in regard to the distribution of the National Identity Cards on the grounds amongst others that respondent No,1 Javaid Hashmi was not an aggrieved person in so far as the manner of distribution of the identity cards was concerned and that such a relief was not within the purview of Article 199 of the Constitution. Further they also impugned the judgment on the ground that they did not give any consent to the passing of the order in the absence of any authority to do so in this behalf. All that they stated was that the High Court could pass any order which they would comply.

17. ' In its detailed judgment, the High Court held that respondent No,2 did not seek approval of the Commission after reviewing/changing the list of the polling personnel under the instructions conveyed by memorandum dated 12th February, 1989, which rendered the changed list as invalid.

18. Further that such approval could not be had as even according to respondents Nos. 2 and 4 the Chief Election Commissioner was out of Pakistan on the relevant time.

19. ' Next the High Court also rejected the justification of the action by respondent No,2 by reference to section 104 of the Act which in its view conferred residuary and inherent powers and that those powers could be pressed into service only in the absence of a provision in the Act to cope with the situation.

20. ' As to the contention raised by the Additional Advocate-General that the organization and conduct of bye-election was the responsibility of the Chief Election Commissioner and not of the Election Commission of Pakistan as provided by Article 219(b) of the Constitution, the High Court held: "The Provincial Election Commissioner does not figure anywhere in the hierarchy of the legal functionaries charged with the duties of conducting elections as is clear from Articles 218 and 219 of the Constitution of the Islamic Republic of Pakistan. Therefore, any instructions issued by him to respondent No,1 are without lawful authority and of no legal effect."

21. ' Again the High Court held that the author of the letter, dated 12th February, 1989 was not the District Returning Officer who was the permanent incumbent of this office, but the District and Sessions Judge who in his temporary absence officiated him. Therefore, he could not perform the duty of the District Returning Officer as such in the absence of any specific order in which case he had no authority to issue or convey the said instructions to the Returning Officer. In the similar context, the Deputy Provincial Election Commissioner, Headquarters, Lahore, who was contacted by respondent No,1 on telephone after the receipt of the letter, dated 11-2-1989 could not authorise him to revise the list.

22. ' The High Court noted that the Returning Officer did not place the copy of the instructions on the file as the Election Commission of Pakistan had only issued oral instructions, and, therefore, in the view of the High Court it was not possible "to determine exactly as to what were the true contents and scope of those instructions".

23. ' Again the High Court observed the distinction between Articles 218 and 219 of the Constitution and held that the bye-election was to be organized and conducted by the Chief Election Commissioner and not by the Election Commission of Pakistan under Article 219(b) and, accordingly, the Election Commission of Pakistan had no authority to issue any instructions and consequently no question arose to follow them. The High Court further held that the so-called instructions were liable to be ignored as they were not in writing and even otherwise the Election Commission of Pakistan had expressed at the most a desire which was converted into instructions by the ingenuity of the officiating District and Sessions Judge and that too was not complied with in letter and spirit as was evident from the appointments of the Presiding Officers who were to control the Polling Stations which generated doubts amongst the electorate in the absence of any legal justification.

24. ' Further the High Court held that instead of striking the balance in accordance with the memorandum dated 11th February, 1989, the Returning Officer proceeded to maintain disparity which tilted the ' scale to the other side. The High Court rejected the contention of the Returning Officer that the instructions, in fact, amounted to an approval and held that the earlier prepared list of the election staff was in accordance with the prevalent policy of the Election Commission, which was approved, and in this way it was a past and closed transaction which could not be reviewed by the instructions in which merely a desire was expressed. All that the instructions conveyed were the policy and the guidelines in the preparation of the list of the election staff which could not be equated with the approval of the list and that such a list could not be approved before its preparation and scrutiny.

25. ' In conclusion, the High Court held: "Agreeing with the said submissions, we hold that there is no ground to uphold the illegal action of respondent No,1 in changing the finally approved list. When law provides a thing to be done in a particular manner, then it ought to be done in that manner or not at all. This time-honoured principle was flagrantly violated by respondent No,1, who tamely followed the instructions contained in the illegal memorandum referred' to above."

26. ' The High Court further held that it was not possible to conclude that the Returning Officer acted mala fide in changing the list but his action was arbitrary and could be regarded as mala fide in law. As to the merits of the change from the erlier list, the High Court held that those substituted were neither disqualified to perform their functions nor there was anything necessitating their replacement. The High Court, therefore, held that there was a violation of subsection

(2) of section 9 of the Representation of the People Act, 1976, as there was no approval of the Chief Election Commissioner.

27. ' Mr. Fakhruddin G. Ebrahim, learned counsel for the petitioner contended: firstly-, that the petition did not disclose any legal grievance as it was presented on allegations which are vague and totally incorrect; secondly, that the writ petition was filed after a delay of six days on 18th of February, 1989, four days before the polling date although the list was revised on 12th February, 1989, and that the contesting candidates, who were directly to be affected by the result of the election, were not made parties; thirdly, that adequate opportunity was not given to defend the petition as the notice was received by the petitioner on 19th of February and the petition was decided on 20th of February, 1989; fourthly, that there is no right in a party to claim that the election should be conducted by a particular set of personnel particularly when the change of the personnel is entirely an internal matter relating to the supervision and control of the election by the Election Commission/Chief Election Commissioner; fifthly, that assuming that the change was not in accordance with law nevertheless the remedy did not lie by way of a writ petition under Article 199 of the Constitution but the redress could only be asked for through an election petition under Article 225 of the Constitution; and, sixthly, that in no case there was any non- compliance of law.

28. ' Besides these contentions, the learned counsel for the petitioner vehemently contended that the allegations in the petition were incorrect and that there was no averment in the petition that the list was changed without the approval of the Election Commission as held by the High Court under subsection (2) of section 9 of the Act. According to the learned counsel for the petitioner not a single employee of the Municipal Corporation, Multan, was included in the polling personnel although it was alleged that 80 per cent. Of the polling staff belonged to the Municipal Corporation, Multan. Again it was stressed that it was wrongly stated in the petition that the entire polling staff was replaced by the Presiding Officers who were employees of the Pakistan Railways as none in point of, fact was an employee of the Railways. In this context it was further stated that in the changed/revised list the number of Presiding Officers belonging to the Central Government increased from 51 to 94 but none of them was from the Pakistan Railways. Out of the total of 43, 42 were employees of the Habib Bank and one from the State Bank. Similarly, the increase in the changed list of Assistant Presiding Officers, namely, 129 from the Centre included the employees of the Habib Bank, National Bank, United Bank, Allied Bank, State Bank, ,Inconie-tax Department, WAPDA, National Savings, Customs and two from the Pakistan Railways. As regards the Polling Officers the number of Polling Officers belonging to-the Centre was increased to 373 and the newly-added 295 belonged to the National Bank of Pakistan, Customs', United Bank, Allied Bank, Habib Bank, State Bank, Income-tax Department, WAPDA, National Savings and 48 from the Pakistan Railways.

29. ' Mr. S.M. Zafar, learned counsel for the respondents on the other hand urged: firstly, that section 9(2) of the Act is a specific provision controlling the preparation of the list of Polling Staff and the change, if any, could only be brought about within its framework; accordingly, the validity of the change was legally impaired as several hundred persons were substituted without the approval of the Election Commission/Chief. Election Commissioner; secondly, that as oral directive was pleaded for the change in the list, the High Court has, on good authority, concluded that oral directive held no validity; thirdly, that even otherwise the instructions provided merely a cause for the change but the procedure for the change is not altered and continues to remain as envisaged by section 9(2) of the Act; fourthly, that the legality of the change in the list was not justified on the basis of a direction of the Chief Election Commissioner which too was oral as the High Court had held and did not emanate from him; in any case, what is now said is a general direction issued in January, 1989, which could have no relevance for effecting the change and could not sanctify the changed list as an approval by him; fifthly, as to what is the impact of the judgment if correctly rendered on the subsequent events particularly on the polling of the votes and the result of the election as the letter, dated 11th of February, 1989, itself emanated from unauthorised sources; sixthly, that the procedure adopted by the Returning Officer of changing the list was in violation of the mandatory provisions of law, and the so-called directive which caused the change in the list tilted the balance in favour of the employees of the Federal Government qua the appointment of Polling Officers in a large number and consequently this action was tainted with malice in law; seventhly, that Mr. Akhtar Mehmood, the officiating District Judge, Multan, purported to act as District Returning Officer and directed the Returning Officer to change the list which he could not do so as he was not appointed as such under section 9(1) of the Act; and, eighthly, that Article 225 of the Constitution was not a blanket ban on litigative challenge. In this context it was urged that the redress sought did not call in question the election but related to the non-fulfilment of the requirement of law by the Returning Officer who could be compelled to act in accordance with law.

30. It was also urged that the respondent No,1 approached the High Court not only as a candidate but also in the assertion of a right as a citizen to seek performance of the duty by the election staff in accordance with law.

31. ' The High Court while holding that the change in the list of the personnel was without the approval of the Election Commission/Chief Election Commissioner under section 9(2) of the Act granted the declaration but without considering the constitutional hurdle, namely, Article 225 of the Constitution. This Article reads as under:- "No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e- Shoora (Parliament)."

32. ' The language of this Article is almost similar to Article 329(b) of the Indian Constitution which reads: "No election to either House of Parliament or to the House or of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature."

33. ' Again section 52 of the Act as contemplated by Article 225 of the Constitution is in similar terms as this constitutional provision and reads as under: "No election shall be called in question except by an election petition made by a candidate for that election (hereafter in the Chapter referred to as the petitioner)."

34. ' The main controversy is direted towards the meaning of the words, "no election to a House or a Provincial Assembly shall be called in question except by an election petition" in Article 225 of the Constitution, and the issue is whether the High Court could have granted the relief under Article 199 of the Constitution for the violation of section 9(2) of the Act by the Returning Officer as he had changed the list of the polling personnel without the approval of the Election. Commission/Chief Election Commissioner. This necessitates the consideration of the meaning of the word "election" in Article 225 in order to determine whether the action of the Returning Officer was comprehended within the meaning of the word "election".

35. ' While considering the meaning of the word "election" the expression "conduct the election" in sub- Article (3) of Article 218 should also be taken into consideration as that expression is of a wide import and should be read into other provisions which occur in the same Chapter to give a purposeful meaning to the word "election".

36. ' In Srinivassalu v. Kuppuswa mi, AIR 1928 Mad. 253, the word "election" was stated to embrace the whole procedurewhere an elected member is returned whether or not it be found necessary to conduct a poll. In Sat Narain v. Hanuman Parshad, AIR 1946 Lah. 85, the same meaning was followed.

37. ' In N.P. Ponnuswa mi v. Returning Officer, Namakkal, AIR 1952 S.C. 64, the word "election" has been stated to have been used in the wide sense, that is, "to connote the entire procedure to be gone through to return a candidate to the Legislature."

38. ' In Muhammad Nazir Hakim v. Said Muhammad, PLD 1962 Lah. 421, a Full Bench of the West Pakistan High Court held: "But while we agree that the term "election" stands for the entire process which leads step by step to a certain result, we find it difficult to hold that the age of a candidate should be determined with reference to the final stage in the process. If election is a single process from the date of publication of the electoral roll to the date on which the result of the election is declared, like a chain with a number of links, then a date "preceding the election", will be a date preceding the first link in the chain and not a date preceding the last link; for a date preceding the last link would be a date preceding the declaration of the result, and all other links in the chain of election would "precede" such date. In that case we would be defining the term "election" as 'the publication of the result of the elections ."

39. ' In Muhammad Afzal v. Miraj Din, PLD 1967 Lah. 689, the same meaning to the word "election" was assigned as would appear from the following observations: "It is well settled that election is a continuous process consisting of a series of facts required to be done in different stages in accordance with the schedule contained in the notification to be published in the Official Gazette fixing dates for filing of nomination papers, scrutiny of nomination papers, withdrawal and retirement of candidates, actual poll, counting of votes and declaration of result, etc."

40. ' In Amirzada Khan v. Chief Election Commissioner PLD 1974 Lah. 178 again it was held: "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 the nomination papers, their scrutiny, the hearing of objections and the holding of the actual polls etc. Etc. If any of these links is challenged it really tantamounts to challenging the said (process of) election. What cannot he allowed to be done directly, cannot be allowed to be done indirectly on the basis of the type of pleas which are being advanced before us. We cannot accept that whereas on one hand the Constituent Assembly intended to stop raising of objections to the election of the President in clause (6) of Article 41, on the other hand it had the desire to allow the same thing to be done in the form of the petitions of present kind in Courts. It is well settled that the right to challenge an election or to put it in other words the right of franchise is not a common law right and is to be regulated by the law which creates or deals with it ' In Y.B. Chavan v. K.T. Mangalmurti AIR 1958 Born. 397, the meaning of the word "election" as pointed out in Shankar v. Returning Officer, Kolaba AIR 1952 Born. 277 was followed and it was stated that an election is one continuous process involving many steps and that every step taken is a part of the election.

41. ' In Election Commission of India v. Shivaji AIR 1988 SC 61 it was held that the word "election" was used in a wide sense to connote the entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in Article 329(b) of the Constitution. It reaffirmed the meaning of the word "election" as stated in N.P. Ponnuswami's case. Thus in its wide sense the word "election" has been appropriately used in the Article with reference to the entire process consisting of several steps taken for its completion which have a bearing on the result of the process.

42. ' Now the next important matter is as to what meaning should be given to the words "No election shall be called in question".

43. ' In enacting Article 225 in the Constitution the purpose of Legislature is obvious that it did not contemplate two attacks on matters connected with the election proceedings; one while the election process is on and has not reached the stage of its completion by recourse to an extraordinary remedy provided by Article 199, and another when the election has reached the stage of completion by means of an election petition. It is also of utmost consideration that in the case of two attacks on a matter connected with the election proceedings there is likelihood of there being two inconsistent decisions; one given by the High Court and the other by the Election Tribunal which is also an independent Tribunal and this could not be the intention of the Legislature. Again the words "except by an election petition" in Article 225 of the Constitution do not refer to the period when it can be called in question but point to the manner and the mode in which it can be called in question. It is, therefore, that the constitutional provision is expressed in the negative form to give exclusive jurisdiction to the Tribunals appointed by the Election Commissioner and thus to exclude or oust the jurisdiction of all Courts in regard to election matters and to prescribe only one mode of challenge. The purpose is not far to seek as in all democratic Constitutions such as is ours the Legislatures have an important role to play, and, therefore, it is of utmost importance that the election should be held as scheduled without being unduly delayed or prolonged by challenging matters at an intermediate stage.

44. ' The Act comprehended by Article 225 is comprehensive in all respects. Section 52 of the Act provides for the challenge of an election through an election petition. This section is also expressed in the negative form to exclude jurisdiction of all Courts in matters of elections except as provided.

45. Section 68 relates to the ground for declaring the election of a returned candidate void, section 69 deals with the ground for declaring a person other than a returned candidate elected, section 70 prescribes the ground for declaring election as a whole void and the Act further provides for an appeal against the order of the Tribunal and other procedural provisions relating to the withdrawal of the petition, the abatement on the death of the petitioner, the death or withdrawal of the respondent from the proceedings and failure of the petitioner to prosecute the petition. Besides, it defines corrupt practice (section 78), undue influence (section 81), penalty for corrupt practice (section 82) and illegal practice and its punishment (section 83) and all other steps which, are to be taken in connection with the holding of an election and other ancillary matters. Section 105 of the Act bars the jurisdiction of the Courts to question the legality of any action taken in good faith by or under the authority of the Commission, the Commissioner; a Returning Officer, Presiding Officer or an Assistant Presiding Officer or any decision given by any of them or any other officer or authority appointed under this Act or the rules. In a nutshell it is a self-contained enactment and the various steps taken in the process of the completion of the election as provided by the enactment are comprehended within the meaning of the word "election", and if it be the case whether an action falls within its ambit or not it can be tested on this touchstone.

46. ' The scheme of the electoral laws and conduct of election accordingly appears to be that any matter which has the effect of vitiating the election process should be brought up only at the appropriate stage in an appropriate manner before the Election Tribunal and should not be brought up at an intermediate stage before any Court as otherwise Article 225 of the Constitution would be deprived of its meaning and content. Seervai in his Critical Commentary on Constitutional Law. Of India, Second Edition, in para. 29.5 -at page 1505, states: ' it having regard to the important functions discharged by legislatures in democratic countries, it has been recognised both in England and in India that all disputes arising out of elections should be postponed till the elections are over so as G not to dislocate the time schedule for the elections, and that such disputes should be raised after the elections by an election' petition."

47. ' Article 225 creates a right to challenge the election and lays down the method for its enforcement through an Act which is a constitutional mandate as by use of the word "No" a negative imperative.

48. The Act also creates a right to challenge the election and also prescribes special remedies for enforcing the right. It is wellsettled that in such a case it is the remedy provided by the Act alone which should be availed of not only because of the constitutional mandate but also because of the settled rule. This rule was first stated in Wolerhampton New Water Works Co. v. Hawkesford (1859) 6 C.S. (N.S.) 336, as under: "There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law.

49. But there is a third class, viz. Where a liability not existing at common law is created ,by a statute which at the same time gives special and particular ,remedy for enforcing it.... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."

50. ' In Nevile v. London Express Newspaper Ltd., (1919) A.C. This rule was approved by the House of Lords, and it was reaffirmed by the Privy Council in Attorney-General of Trinidad and Tabago v.

51. Gordon Grant & Co., (1935) A.C. 532 and Secretary of State v. Mask & Co., 44 Cl. W.N.

709. This rule was adopted in Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382), which was also an election matter and where the question. Involved was whether the rules framed under the West Pakistan Basic Democracies Election of Chairman Rules, 1960, should be followed in contrast to the exercise of power in writ jurisdiction.

52. ' The above discussion leads me to conclude that there can only be a challenge to the election by one mode, that is, by an election I petition and that too after the process of the election is completed.

53. ' In N.P. Ponnuswa mi v. Returning Officer AIR 1952 SC 64, the question for consideration was whether the High Court could interfere with the order of the Returning Officer rejecting the nomination papers of a candidate by recourse to Article 226 of the Constitution, and it was held that Article 329(b) of the Constitution bars the jurisdiction of the High Court to grant the relief as that could only be had through an election petition after the process of election was over for returning the candidate having regard to the language of the constitutional provision and the Representation of the People Act.

54. ' In Amin Ahmad v. Nand Lal (AIR 1953 Pat. 293), it was held, on the 'view expressed by the Supreme Court of India in the case of N.P. Ponnuswami, that the issue of notification under sections 39(2) and 151 of the Representation of the People Act is a part of the process of election within the meaning of Article 329(b) of the Constitution which excludes the jurisdiction of the High Court to issue a writ under Article 226.

55. ' In Mohinder Singh v. Chief Election Commissioner (AIR 1978 SC 851), the poll which had already taken place was cancelled and a fresh poll was ordered. It was held that this was an order during the course of process of the election and even if it was a wrong order it does not cease to be an order passed by a competent authority charged with the conduct of elections with the aim and object of completing the elections. Therefore, the "catch-all jurisdiction under Article 226" cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re- poll as that was a step in the process of the completion of election and the jurisdiction was accordingly barred by Article 329(b).

56. ' In Election Commission of India v. Shivaji (AIR 1988 SC 61), the Governor of Maharashtra by a notification dated 18th of September, 1987, issued under section 16 of the Act called upon six local authorities constituencies in the State of Maharashtra to elect one member from each of the said constituencies in order to fill the vacancies in the Maharashtra Legislative Council which had been caused by the retirement of the members. On the same day the Election Commissioner of India issued a notification under section 30 of the Act fixing the calendar of events for the purpose of holding the elections accordingly. This notification was challenged under Article 226 of the Constitution. It was held, while restating the meaning of the word "election", that this was a step towards the completion of the process of the elections and that accordingly the High Court's jurisdiction under Article 226 to entertain the petition challenging the election was barred by reason of Article 329(b) of the Constitution. This case reaffirmed the decisions in N.P. Ponnuswami v. Returning Officer (AIR 1952 SC 64), Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman (AIR 1985 SC 1233) and Inderjit Barua v. Election Commission of India (AIR 1984 SC 1911).

57. ' The consistent view of the Indian Supreme Court is also that the relief under Article 226 is not available in view of Article 329(b).

58. ' I may here refer to the opinion of Shukla, on Article 329(b) in his treatise "the Constitution of India" at page 593: "Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination on the formal declaration of result. The constitutional provisions and the Representation of the People Act clearly express the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post-election stage. The sole remedy for an aggrieved party is an election petition and the exclusion of all remedies includes remedy under Article 226 because of the non obstante clause."

59. ' In Yahya Bakhtiar v. The State and another (NLR 1980 Criminal Quetta 815), although the conclusion of the Judges of the Division Bench was the same yet they expressed separate opinions with regard to the applicability of Article 225. Abdul Qadeer Choudhary, J., held that Article 225 debarred any authority from dealing with the election disputes including offences mentioned in P.O. 16 of 1977. The opposite view was expressed by M.A. Rashid, J.

60. ' In Niaz Ahmad v. Province of Sind (PLD 1977 Kar. 604), Abdul Kadir Shaikh, C.J., as he then was, in his separate opinion with which Z.A. Channa, J., agreed, dealt with the effect of Article 225 on Article 199 and held: "It is pleaded that exclusion of challenge by any other mode, including on a petition under Article 199 of the Constitution, is total, for, the Makers of the Constitution were fully aware of the language in which they had couched Article 199, which in its very opening, contains the phrase 'subject to the, Constitution'. Yet while phrasing the language of Article 225 they, in their wisdom, placed no such embargo in Article 225 and, therefore, the provisions of Article 199 are subjected to by the provisions of Article 225.

61. ' It, was on this line of arguments as to the- interpretation of Article 225 that plea was raised that the Constitution itself prohibits the disputes relating to corrupt or illegal practices etc. Being called in question by any other mode or manner except by way of election petition under the provisions of the Representation of the People Act, 1976. This Act, I may say at this stage for making the position clear, is no doubt the law contemplated by the provision made in Article 225. There can also be no manner of doubt that the Representation of the People Act, 1976 does provide adequate machinery for the challenge that may be made to the election of any of the Members of the National Assembly who has been declared to have successfully returned at the General Elections held on the 7th March, 1977 on the ground of 'rigging of the election'.

62. ' The learned Chief Justice based his decision on the opinion of Cornelius, C.J., in Jamal Shah v.

63. Election Commission, PLD 1966 SC 1 while construing Article 171 of the 1962 Constitution and further its affirmance later in Farzand Ali v. Province of West Pakistan, PLD 1970 SC 98, and also proceeded to distinguish the observations or Hamoodur Rehman, C.J., in Farzand Ali's case as under: "In the case before their Lordships of the Supreme Court the challenge to the election of the Members of the National Assembly concerned was made on the ground of their pre-election disqualifications and also on the grounds which could not have maintained an election petition. It was due to this admitted position, namely, absence of adequate remedy being available that challenge to the elections through constitutional means under sub-clause (b)(ii) of clause (2) of Article 98 of the Constitution of 1962 was held to be competent.

64. ' I may, however, clarify that the observations of the Supreme Court in Farzand Ali's case pertain to the interpretation of Article 171 vis-a-vis Article 98 of the Constitution of 1962, the former being no parallel in its language to Article 225 of the present Constitution, but in any case for the purpose of the present case, it would suffice to observe that the challenge to the elections on the grounds of illegal practices in relation to the actual conduct of the election being provided by the Representation of the People Act, 1976, and thus adequate remedy being available, the challenge to the election of the Members of the National Assembly through this petition under the provisions of Article 199 of the Constitution is clearly barred."

65. ' In that case a broad argument was raised that if once the name of the person has been registered on the electoral roll, his nomination papers having been accepted and he being allowed to contest the election successfully, his election could not be challenged in any other manner save under the specific law providing for challenging election, notwithstanding the fact that no provision has been made in the Constitution or any other law for prescribing a special procedure to meet a pre-election disqualification of the successful candidates. Hamoodur Rahman, C.J., did not accept the argument as presented mainly on two grounds: firstly, that if it was to prevail then it would hit Article 103 of the Constitution as then such a person would continue to remain a Member of the Assembly even though Article 103 did not permit it; and secondly, because the dispute raised after an election is not a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a Member of an Assembly. In effect, therefore, the dispute did not relate to the validity but title to the office in which case writ of quo warranto could issue. Again in that context it was also observed that the remedy would still be available in all cases where the matter is, as in the case under consideration, outside the scope of statutory remedy.

66. ' These observations are distinguishable as rightly held by the learned Chief Justice in the context of the fact that they did not arise in relation to an election or were outside the scope of the statutory remedies. This being so, the rule stated earlier that the action has to be tested on the touchstone of the word "election" is j not affected in view of the constitutional bar providing for the enforcement of the right through remedies available under the Act comprehended therein.

67. ' In Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457), a question arose as to whether the High Court could examine the legality of the impugned legislative instrument in view of Article 281(1) of the Interim Constitution and it was held: "As essentially the question of jurisdiction was involved, it arises for consideration as to what effect Article 281(1) has on the judicial power exercisable under Article 201 of the Interim Constitution wherein the power to enforce the remedy was subject to the Constitution.

68. ' In Mian Jamal Shah v. Election Commission PLD 1966 SC 1, a similar question arose as to the effect of Article 171 on Article 98, which was worded alike. As is obvious from the opinion of Yaqub Ali, J., at page 65, it operated as a constraint on the exercise of judicial power under Article 98 of the Constitution."

69. ' The case reported as Ghulam Dastgir Bari v. Salah-ud-Din, (PLD 1987 Lah. 39), also decides the question on the same lines. It was held: "It is to be noticed that in none of these two cases, any constitutional impediment, as posed by Article 225 was present. The prohibition envisaged by this Article that the validity of election cannot ..Be called in question except in the manner prescribed thereby, is absolute. The jurisdiction conferred on the High Court under Article 199 is subject to other provisions of the Constitution and thus, cannot be exercised in derogation of Article 225. Exercise of such powers against an interlocutory order would amount to defeating the purpose of law. Merely because an interlocutory order is not appealable, is, no ground to render it amenable to writ jurisdiction. An interference with the interlocutory order through judicial review would be circumvention of the provisions of law."

70. ' In re: Ahad Yusuf and others (PLD 1974 Note 126 at page 182), it was held: "According to the constitutional mandate as contained in Article 225 of the Constitution of the Islamic Republic of Pakistan, no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of Parliament. Section 50 of the Ordinance which is in consonance with this constitutional mandate, is to the like effect. It is totally wrong impression which appears to obtain in some quarters that the Election Commission has the powers under the existing law to revoke an election even if it is of the opinion that it is tainted with fraud and illegalities."

71. ' Here I may point out that the exercise of power under Article 199 cannot be placed on any higher footing than that emanating from Article 225 of the Constitution; and that while the power under Article 199 exercisable by the High Court is "subject to the Constitution" whereas there is no such limitation in Article 225. This Article by its language creates an independent jurisdiction for the decision of election disputes under the law and its contents, therefore, should be given the fullest meaning irrespective of anything contained in any other Article. More particularly so as it is an essential part of parliamentary jurisdiction which under the law entrusts election disputes for decision to the Election Tribunal and in appeal to the Supreme Court whose decision is final both on questions of law and fact. In this connection it would be useful to refer to the case of Theberge v.

72. Laudry, 2 App. Cas. 102, wherein it was pointed out that "decisions upon such matters are not decisions of mere ordinary civil rights; that such an enactment as this section 33 (Quebec Controverted Elections Act, 1875) creates an entirely novel jurisdiction, the history of which, in cases where the Legislative Assembly is not itself then created for the first time, has been that the Assembly has, by its own consent, concurred in vesting in the Court the jurisdiction hitherto inherent in itself of determining the status of those who claim to be its members.

73. ' The jurisdiction is extremely special; it is of a character that ought, as soon as possible, to become conclusive, in order that the constitution of the assembly may be distinctly and speedily known.

74. And there is another reason for finality in such a jurisdiction. It concerns what, according to British ideas, are normally the rights and privileges of the Assembly itself, always jealously maintained and guarded in complete independence of the Crown so far as they properly exist."

75. ' I would also here like to point out that there is distinction between Article 225 and Article 171. In the latter, the finality is given to the decision of the Election Tribunal but not so in the former as it is the law framed by virtue of it which gives finality to the decision of the Supreme Court against the decision of the Election Tribunal, and, therefore, the observations of Cornelius, C.J. , in Jamal Shah's case, namely, "It is tempting to examine the question from the point of view that the expression "without lawful authority" should be so construed in relation to the terms of the Act of 1964, that with the exception of direct contraventions of mandatory provisions, and in the absence of such circumtances and lack of competence or disqualification by bias or otherwise, or of fraud or malice which is destructive of all power under law everything done under the authority of that Act should be deemed to be within the lawful authority .Of prescribed person or tribunal"; would not be applicable as the Electoral College Act, 1964, is materially different from the Representation of the People Act where finality is attached to the judgment of the Supreme Court as because of the constitutional mandate.

76. ' The Supreme Court can in the exercise of its appellate power correct all legal errors or defects or disabilities and its powers are wider in scope than the powers exercised by the High Court under Article 199 to correct the defects of the kind mentioned above. To emphasise the distinction, I would refer to the observations of Cornelius, C.J., in Jamal Shah's case as under: "Anything in the nature of the exercise of full scale appellate jurisdiction must be rigorously avoided by the High Court, for that would be to override the requirement of the Constitution that the power under Article 98 should be exercised so as to give full effect to the terms of such a provision as that contained in Article 171."

77. ' Accordingly what is intended to be achieved by the exercise of the power under Article 199 is achieved by the exercise of the appellate power by the Supreme Court in an appeal against the decision of the Tribunal not at an intermediate stage but ony after the election is over. There is, therefore, no scope of any interference by the High Court under Article 199 of the Constitution to interfere with the process of election at an intermediate stage or question the correctness of the decision of the Election Tribunal on any ground whatsoever upon an election petition filed to question the validity of the election.

78. ' Mr. S.M. Zafar, Advocate, appearing on behalf of respondent No,1, relied on the Presiding Officer v.

79. Sadruddin Ansari, PLD 1967 SC 569 to justify the interference under Article 98. In this case the elections were held under the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960.

80. What happened was that 16 ballot papers were issued but only 15 were cast. One ballot paper was found missing at the count. The Presiding Officer rejected four ballot papers on the ground that they did not adequately disclose the intention of the voters. After this rejection, seven valid votes were found to have been cast in favour of respondent Lal Muhammad Bin Yousuf and four in favour of Sadruddin Ansari. The result was that the former was declared elected as Chairman. The declaration of the result was challenged through a petition under Article 98 of the 1962 Constitution on the ground that the Returning Officer had arbitrarily and capriciously rejected the four ballot papers as invalid, which, according to the cross marks on them, were manifestly cast in favour of Sadruddin, and, therefore, he should have been declared elected and not Lal Muhammad Bin Yousuf; and although an election petition was also filed but this fact was not disclosed to the High Court. It may here be noticed that under rule 7 of the Rules, the only jurisdiction that the Controlling Authority had in an election petition was to declare an election to be void and to order a fresh election according to the Rules. During the pendency of the election petition in the High Court, rule 7 was amended to read: "No election of a Chairman shall be called in question except by a petition, presented to the Controlling Authority or such other officer as Government may appoint in this behalf within ninety days of the declaration of the result."

81. ' The further remedies that were provided under the sub-rule were--

(a) that the election of the returned candidate is void, or

(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected, or

(c) that the election as a whole is void. An explanation was also inserted which read: "For the purposes of this rule 'material irregularity' means any non-compliance with the provisions of the Order, or these rules which materially affects the result of an election."

82. ' It was further provided that when election is held to be void a fresh election shall be held as provided by the Rules.

83. ' The High Court, on the argument raised by the Additional Advocate-General that the petition was not maintainable as, at any" rate, after the introduction of new rule 7 an adequate remedy had clearly been provided. The High Court rejected it holding that the amended rule 7 could not be given retrospective effect so as to apply to the election in dispute which had become a past and closed transaction before the new rule was framed.

84. ' Leave to appeal was granted to consider two questions; but it is only one question which is relevant and, that is, whether the petition under Article 98 was maintainable if Sadar-ud-Din "Ansari had actually filed an election petition before the disposal of his petition under Article 98.

85. ' Hamoodur Rehman, J., while examining Article 98 in the context that the extraordinary remedy contemplated therein should not be granted unless the Court is satisfied that no other adequate remedy is provided by law, held: "But this is not the same thing as saying that the existence of any alternate mode of seeking some other kind of remedy is by itself sufficient. This is not a case of a competition betweep a common law right and a statutory right."

86. ' Having said so, the learned Judge laid down the rule: "It has often been said that a relief of this nature is a supplementary remedy which does not supersede legal remedies but rather supplies the want of such a remedy. But it is not any and every kind of remedy which will defeat this constitutional right. In order that the other remedy should be sufficient to warrant refusal to exercise this jurisdiction it is necessary, as observed by Ferris in his book on Extraordinary Legal Remedies (page 247), that the other remedy must be "both specific and adequate" in the sense that it must be "competent to afford relief upon the very subject-matter of the application and be equally convenient, beneficial and effective."

87. ' After having said so, the learned Judge observed that on the date on which the writ petition was filed none of the reliefs sought in the petition could be given under old rule 7 and in that view of the matter there was no specific or adequate remedy available to redress his grievance in an effective manner. That even after the rule was amended, the prayer in the petition to declare the petitioner to be -an elected Chairman of the Union Committee No,4, Hyderabad, could not be granted directly but only upon getting the declaration that the election of the returned candidate was void.

88. Therefore, in the context of the relief all that Sadar-ud-Din Ansari desired to have was to enforce the duty cast upon the Presiding Officer under sub-rule (5) of rule 5. This was in its nature a ministerial duty; and there was no reason why it could not be granted when he was clearly charged with the duty to declare a person obtaining the highest number of votes at an election to be elected without having resort to an election petition. It will be relevant here to refer to those observations: "If the officer concerned has failed to discharge a mandatory duty imposed upon him by law he can certainly be compelled to do that which the law required him to do. This is not the same thing as contesting the validity of an election or challenging the election of a declared candidate. In a proceeding of this nature disputed questions of fact will not, of course, be gone into and it is only where it is shown upon the face of the record itself that the officer or the authority concerned has failed to discharge his duty that a direction of the nature contemplated by Article 98 will issue."

89. ' As there was no constitutional bar, the petition was maintainable on the date it was filed, and, therefore, the learned Judge proceeded to examine whether the alternate remedy under rule 7 was adequate to redress the grievance of Sadar-ud-Din Ansari in regard to his prayer, namely, "direct the Presiding Officer to declare the petitioner to be the elected Chairman of Union Committee No,4, Hyderabad". It was after the examination of the amended and unamended rule 7 that the learned Judge came to the conclusion that the adequate remedy provided by law was not effective, and it was, therefore, that the common law remedy of mandamus was granted to redress his grievance.

90. It may be of interest to mention that in that case the statutory remedy was not higher in status than the extraordinary remedy under Article 98 and it was, therefore, invoked and granted as the statutory remedy was found to be inadequate. Here, that is not the constitutional position. Article 225 is not controlled by Article 199 and there is also no occasion to have recourse to the satisfaction of there not being an adequate remedy. Article 225 by its mandate creates an independent jurisdiction for redress of grievance in election disputes and it is in the exercise of that jurisdiction that all questions of law and fact are decided by the Tribunal after the elections are over and not at an intermediate stage against which an appeal lies to the Supreme Court whose decision is final. In this milieu there cannot be any justification fors the exercise of power under Article 199. It may be of relevance to mention that clause (a) of section 70 of the Representation of the People Act takes care of the non-performance of the duty cast on the persons responsible for conducting the election and that situation is fully met but the only difference is that it is required to be dealt with by the Tribunal after the election is over. Any other construction will deprive Article 225 of its content and meaning and frustrate the intention of the Legislature.

91. ' Adverting now to the question as to whether the action of the Returning Officer to change the list of polling personnel without approval of the Election Commission/Chief Election Commissioner was a step towards the completion of the election of the returned candidate, there cannot be any doubt about it.

92. ' Sections 7, 8 and 9 of the Act provide for the appointment of the polling personnel for the purpose of holding the polls and is a Step towards the completion of the election process. And where there is a failure on the part of the Returning Officer to fulfil the requirements of law the Act provides the remedy in section 70 of the Act whery by the election as a whole can be declared to be void if the Tribunal is satisfied that the result of the election has been materially effected because of the non- fulfilment of the requirements of law. The decision of the Election Tribunal is subject to appeal to the Supreme Court which has the power to correct all legal errors and give the consequential reliefs as according to the subject-matter of the dispute. In that event the order although being a wrong order does not cease to be an order passed by a competent authority charged with the conduct of election to bring it to its completion. It is only that the availability of the redress is postponed as because of the constitutional. Mandate which can only be availed of through an election petition after the process of election is over. It is not possible to accept the contention raised by Mr. S.M. Zafar that the change of the polling personnel was not a process towards the completion of the election and not covered by the meaning of the word "election". It is also of no merit to say that the right to invoke the mandamus could be claimed by the candidate as an ordinary citizen as it is the subject-matter of dispute that will determine whether the relief could be granted in the context of the bar on litigative challenge.

93. ' The relief claimed in the petition admittedly impugns the change of the polling personnel as without lawful authority which the High Court could not in the exercise of extraordinary jurisdiction grant it having regard to Article 225 of the Constitution and the Act.

94. ' In this view of the matter, it will not be proper to examine the merits of the case as that will be a matter for the Election Tribunal to go into and decide upon the evidence led before it.

95. ' In the result, I would convert this petition into an appeal, set aside the order, dated 20th of February, 1989, granting the declaration as follows: "That the election shall be supervised by the Staff as per proposal of the respondent, dated 2-2- 1989 which was approved by respondent No,4 on 4-2-1989. All the appointments made by respondent No,1 on 12-2-1989 are hereby declared illegal, ultra vires and ineffective;" ' and the directions issued as a consequence thereof, and allow the appeal with costs.

96. ' In Civil Petition No,106-R of 1989, it was contended that Javaid Hashmi, the contesting respondent had no locus standi to claim a direction which could not be given under the National Registration Act, 1973, and so also under Article 199 of the 1973 Constitution. The learned Deputy Attorney- General in this context relied on the case reported as Muhammad Yousuf v. Collector of Sea Customs, PLD 1969 SC 153, wherein a similar contention was raised that there was no provision in the National Registration Act which could form the basis for this direction under Article 98 and accepted.

97. ' It may here be pointed out that the grievance of the contesting respondent was that a sizable number of national identity cards were handed over to unauthorised persons for delivery and that still a large number of those cards were withheld by the petitioners in order to rig the election. It was admitted by the District Registration Officer, Multan, the first petitioner herein, that during the period 30-1-1989 to 11-2-1989, 18282 national identity cards were lying for distribution while respondent No,3, petitioner No,2 herein, admitted that 11000 cards were lying with him for distribution which were prepared during the period 16-1-1989 to 2-2-1989. It may be of interest to mention that the Court examined Mr. Shafqat Chatha, Assistant Registrar, Khanewal, who admitted having handed over 257 identity cards to one Fayyaz Chatha, a social worker, for distribution to the concerned persons with the approval of respondent No,3, and that when there was a complaint by the persons concerned that they had not received the identity cards, he contacted Fayyaz Chatha who returned 165 identity cards and about the remaining 92 stated that he had distributed them.

98. This fact was affirmed by the District Registration Officer, Khanewal, although he gave the reason that he did so as the national identity cards were liable to be cancelled after 90 days. Further at the hearing, the learned counsel for respondents 2 and 3 gave an offer to the opposite counsel that he could suggest any mode of distribution which could satisfy the contesting respondent Javaid Hashmi. On such offer being made, the Court suggested that if the cards were distributed under the supervision of a Civil Judge, would this satisfy them or not? This suggestion was accepted by the counsel for the petitioner but the counsel for the contesting respondent felt hesitant and requested that the identity cards should be scrutinised and distributed through the Returning Officer. As there was no time left to scrutinise the genuineness of the cards, the counsel for the contesting respondent gave up that stand and stated that the national identity cards should be distributed by Mobile Teams supervised by Civil Judges. In this milieu, the High Court gave the directions which are impugned before us.

99. ' It was admitted by the counsel for the petitioners that the order of the High Court was partially complied with and what was left over was because of the fact that the Mobile Teams had already undertaken the job and there was no point of contact of the Civil Judges with the Mobile Teams deputed to distribute the identity cards.

100. ' This is sufficient to dispose of the contention not only that the petitioners had accepted the mode of distribution by leaving it to the Court and the contesting respondent but also because the directions of the High Court partially stood complied with.

101. ' The next grievance of the petitioner was that the contesting respondent had no locus standi to file the petition as he was not an aggrieved person but we do not agree with this contention. The contesting respondent had a legal grievance to the bulk issuance of the identify cards and their delivery to unauthorised persons for distribution which factors were likely to affect the result of the election. It is not necessary to refer here to the decisions cited by the Deputy Attorney-General.

102. ' Accordingly, we find no substance in this petition, which is dismissed.

103. ' NASIM HASAN SHAH, J.--I have had the privilege of seeing the judgment proposed to be delivered by the Hon'ble Chief Justice in these two petitions but my view, as regards the scope and Arnpleur of the provisions of Article 225 of the Constitution, is slightly different.

104. ' My Lord the Chief Justice is of the opinion that redress of all grievances in connection with an election must be sought by an election petition as provided for by Article 225, which lays down that "no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e- Shoora (Parliament)" and resort for this purpose, to the High Court for exercise of its jurisdiction under Article 199 is not possible. The learned Chief Justice has pointed out that while Article 225 is not controlled by any other Article of the Constitution, Article 199 is subject to the Constitution.

105. Moreover, Article 225 by its mandate creates an independent jurisdiction (an Election Tribunal) for redress of grievance of election disputes and it is the exercise of that jurisdiction, according to the intendment of the Constitution that all questions of law and facts are to be decided and that too after the elections are over (and not at an intermediate stage). Moreover, against the orders of the Election Tribunal an appeal lies to the Supreme Court, whose decision is final. Hence there is no occasion to have recourse to Article 199. Accordingly, even if, in the present case, the action of the Returning Officer to change the list of polling personnel without approval of the Election Commission/Chief Election Commissioner was wrong, the same could not be called in question in writ jurisdiction but by an Election Petition (under section 70(a) of the Representation of the People Act, 1976) after the election was over. The question which arises in these cases and it is of fundamental importance, is whether the provisions of Article 225 prevail against the provisions of Article 159 to the extent that a blanket cover is provided to all litigative challenges in respect of every kind of order passed in the course of the election process because the provisions of Article 199 are subject to the Constitution, including Article 225?

106. ' I cannot, speaking with utmost respect, agree with the view that since Article 225 by its mandate creates an independent jurisdiction (an Election Tribunal) for redress of grievances in regard to election disputes and the Constitution intends that all questions of law and facts must be decided by it, in the exercise of that jurisdiction; redress of every grievance relevant to an election dispute must perforce be sought by an election petition, after the process of election is over. In my humble opinion such width and amplitude cannot be read into the provisions of Article 225. I am, on the other hand, of the opinion that any decision or order made by a functionary charged with the conduct of elections which is made in excess of his authority, being coram non judice, would still be subject to the control of the High Court in exercise of its jurisdiction under Article 199. The legislature expects every statutory authority to act within the limits of the law and if any such authority steps out of these limits or refuses to function as the law requires him to function and he proceeds to make an order not within the limits of the law; such an order can be declared under Article 199 of the Constitution as without lawful authority and to be of no legal effect.

107. ' It is, no doubt true, that the election process must be completed expeditiously and that the constitution of the assembly should be distinctly and speedily known and that interference by the High Court at the intermediate stage can interrupt this process. But it must also be remembered that the exercise of jurisdiction under Article 199 is discretionary. The High Court can, therefore, be expected in the sound exercise of its discretion not to interfere at the intermediate stage unless it is absolutely essential to do so in the interest of justice, maintenance of purity of elections, supremacy of law and to prevent arbitrariness. The High Court mindful of its duty in this respect can legitimately be expected to desist from interfering in the election process, unless it is entirely imperative--an expectation fully vidicated by the exemplary restraint and responsibility exhibited by it in the recent case of the dissolution of the National and Provincial Assemblies (Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah. 725).

108. ' While I agree that it is most desirable that the election process should not be interrupted during the intermediate stage, I cannot agree that to avoid the complications of any such interference a blanket ban should be read into Article 225 to every litigative challenge made to every kind of illegal order passed by an election authority. The law laid down in this respect by Courts in Pakistan and reiterated in the recent judgment of the Full Court in Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 SC 26) is otherwise. Herein it was observed that "this Article 270-A does not take away the jurisdiction of the High courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide. For this purpose it is unnecessary to draw a distinction between malice in fact and malice in law". Accordingly, I would, therefore, hold that orders passed even by election authorities, which are outside the limits of the law, are not immune from challenge-and correction, by the High Court under Article 199.

109. Undoubtedly, in doing so the High court will exercise its jurisdiction with extreme circumspection, in full consciousness of the normal rule that it should not interfere with the process of the elections at an intermediate stage, but leave it to the Tribunal to correct all errors committed after the election is over.

110. ' This brings me to the question whether the High Court ought to have exercised its jurisdiction under Article 199 in the light of the principles enunciated above, in the present case.

111. ' The admitted position is that on 2-2-1989 the Returning Officer appointed the Presiding Officers, the Assistant Presiding Officers and the Polling Officers as required by subsection (1) of section 9 of the Act on 2-2-1989 and the list of the said Officers was submitted to the District Returning Officer.

112. The list was duly approved by him on 4-2-1989. This should normally have been the end of this matter. But, on 11-2-1989, the District Returning Officer asked the Returning Officer, by a letter, wherein he purported to convey the verbal instructions received by him from the Provincial Election Commission to revise the polling personnel. This letter reads as under:- "I hereby convey to you telephonic message received from Ch. Abdul Aziz Sahib, the Provincial Election Commissioner for guidance and compliance. He has told me that the Election Commission of Pakistan has desired that the Polling Personnel be not taken from "the Provincial Departments as a whole and instead the polling personnel, to be employed on the day of election, be taken, as far as possible, from both the Provincial as well as Central Departments on equal basis.

113. ' Needless to emphasize that this policy would be in the fitness of things and would remove doubts/apprehensions from the minds of the contesting candidates. This would also display fairness on the part of the election authority.

114. ' In the light of the above direction, you are advised to revise the list of polling personnel in accordance with the policy of the Election Commission of Pakistan. You are also advised to contact the Provincial Election Commissioner on telephone and sort out the detail of this new task.

115. (Sd.)

116. Akhtar Mahmood Khan, Officiating District Judge/ District Returning Officer, Multan."

117. ' As a result of these instructions, the Returning Officer drew up a new list on 12-2-1989 wherein he changed 467 Officers already included in the approved list including 49 Presiding Officers, 140 Assistant Presiding Officers and 287 Polling Officers. This change in the approved list was admittedly made without approval of the Chief Election Commissioner. In fact, he was out of the country, in Saudi Arabia, erformin Umra.

118. ' The first question is as to whether this alteration made in the approved list was possible in the face of the statutory provisions governing the matter. The relevant provision of the Representation of the People Act, 1976 is section 9 and subsections (1) and (2) thereof provide as follows:- "9. Presiding Officer and Polling Officers.-

(1) A Returning Officer shall appoint for each polling station a Presiding Officer and such number of Assistant Presiding Officers and Polling Officers to assist the Presiding Officer as the Returning Officer may consider necessary: Provided that a person who is, or has at any time been, in the employment of any candidate shall not be appointed as a Presiding Officer, Assistant Presiding Officer or Polling Officer.

(2) A list of such Presiding Officers and Polling Officers shall be submitted to the (District Returning Officer) at least fifteen days before the polling day for its approval and no change in the personnel shall be made except with the approval of the Commission."

119. ' A perusal of the above provision shows that the following steps are to be taken by the Returning Officer in the matter of the filling of the casual vacancies:-

(1) The Returning Officer appoints Presiding Officers, Assistant Presiding Officers and Polling Officers for each polling station.

(2) The Returning Officer has to submit the list so prepared to the District Returning Officer for his 'approval at least 15 days before the polling day; and

(3) No change in the personnel can be made except with the approval of the Commission.

120. ' The functions of the Commission in relation to the casual vacancies, it may be stated, are to be performed by the Chief Election Commissioner. [Article 219(b)]. There is force, therefore, in the submission that this change of as many as 467 personnel of the Polling Staff from the earlier approved list made by the Returning Officer was not in, accordance with the law; it was., in fact, outside the law.

121. ' It will be observed that in the relevant law there is a specific provision (section 9) dealing with the preparation of the list of the polling staff etc. To be employed during the election. This section also lays down the method of how a change, in the approved personnel, is to be made. Since both these matters are dealt with in section 9, the desired change can be brought about only within its framework. In the instant case, no approval was admittedly taken from the Chief X Election Commissioner, in terms of subsection (2) of section 9 for changing hundreds of members of the already approved election personnel. The change made by the Returning Officer was manifestly unauthorised and beyond his legal authority. The directive allegedly issued by the Chief Election Commissioner to the effect that "in view of the current political situation, the polling staff shall be appointed on equal basis, as far as possible, from amongst the employees of the Provincial Government and the Federal Government for holding election in this constituency. These instructions shall also be applicable to all the bye-elections to be held in future in the Punjab till such time the political situation in the Province returns to normal", was a general directive and not meant particularly for this case. Moreover, the aforesaid directive Merely indicates the reason why it is desirable that the polling staff shall be appointed on equal basis from amongst the Provincial and the Federal Governments during the forthcoming bye-elections. The procedure, however, for effecting any change to bring about this objective, if the polling staff already appointed, has not been appointed in accordance therewith, remains unchanged, namely, the procedure envisaged by subsection (2) of section 9 of the Act. In this view of the matter, the action of the Returning Officer taken on 12-2-1989 discarding as many as 467 members of the already approved polling staff, was clearly without lawful authority.

122. ' Coming to the letter, dated 11-2-1989 addressed by the District Returning Officer to the Returning Officer conveying the policy of the Election Commission of Pakistan that the polling personnel be taken from both the Provincial as well as the Central Government Departments as far as possible, on equal basis and advising him to revise the existing list of the polling personnel in accordance with the aforesaid policy of the Election Commission of Pakistan is concerned. It is clear that these instructions were in the nature of an advice to the Returning Officer and did not obviate the necessity of obtaining the approval of the Chief Election Commissioner to any personnel to be appointed in pursuance thereof by the Returning Officer because the express words of subsection

(2) of section 9 of the Act provide that once the list of the polling personnel has been approved by the District Returning Officer, "no change in the personnel shall be made except with the approval of the Commission". Thus, unless the Commission (in the instant case the Chief Election Commissioner--as it was a bye-election)-- had specifically approved the new lists of the appointees by the Returning Officer, the mandate of subsection (2) of section 9 was not satisfied.

123. ' The High Court has, in this connection, pertinently pointed out that the policy decision by the Election Commission conveyed through the letter of 11th February 1989 had not been strictly complied with by the Returning Officer. Attention is drawn to the fact that in the originally approved list out of the total number of 157 Presiding Officers, 54 belonged to the Central Government Departments while 103 were from the Provincial Government Departments whereas in the changed list 94 Presiding Officers were appointed from the Central Government Departments and only 63 from the Provincial Government Departments. Thus the balance spoken of in the letter, dated 11-2- 1989 could not be maintained by the Presiding Officer and the scale somewhat titled to the other side. Of course, if the Chief Election Commissioner had found, that in all the circumstances, this was inevitable and approved the new list, no objection could be raised against it. But in the absence of such approval, the High Court rightly concluded that the new list as neither in accordance with the terms of the policy directive of the Election Commission nor was it in consonance with the terms of subsection (2) of section 9.

124. ' There is also some force in the contention that calling in question the new list of the polling, personnel did not amount to calling in que'stion the election. In the Presiding Officer v. Sadaruddin Ansari and another PLD 1967 SC 569, this Court observed: "If the Officer concerned has failed to discharge a mandatory duty imposed upon him by law he can certainly be compelled to do that which the law required him to do. This is not the same thing as contesting the validity of an election or challenging the election of a declared candidate. In a proceeding of this .Nature disputed questions of fact will not, of course, be gone into and it is only where it is shown upon the face of the record itself that the officer or the authority concerned has failed to discharge duty 'that a direction of the nature contemplated by Article 98 will issue."

125. ' In the present case, the facts are not in dispute. In changing the already approved list of the polling personnel the Returning Officer had manifestly acted in contravention of the mandatory provisions of law. He could, therefore, be compelled to discharge his duty under Article 199 of the Constitution. Undoubtedly, before issuing any such direction it is necessary to see whether the remedy by an election petition is not an adequate alternative remedy. According to Mr. Fakharuddin G. Ebrahim section 70(a) provides a sufficient remedy in such a case. But is this so?

126. Section 70(a) of the Act lays down that:-- "The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of--

(a) the failure of any person to comply with the provisions of the Act or the rules; or (b)

127. ' A perusal of this provision shows that the election can be declared void "as a whole" entailing a re- election if any person fails to comply with the provisions of the Act. But this does not appear to be an appropriate relief because. The remedy by issuance of a direction under Article 199 can obviate all this inconvenience, expense and difficulty. As was observed by Hamoodur Rahman, J. In the case afore-cited. (The Presiding Officer v. Sadaruddin Ansari and another PLD 1967 SC 569) the exercise of the writ jurisdiction is to be refused only when the other remedy is "competent to afford relief unon the very subject-matter of the application" and is "equally convenient, beneficial and effective". Elaborating this rule he observed:- "In order that the other remedy should be sufficient to warrant refusal to exercise this jurisdiction it is necessary that the other remedy must be "both specific and adequate" in the sense that it must be "competent to afford relief upon the very subject-matter of the application and be equally convenient, beneficial and effective."

128. ' In my humble view, therefore, the order of the Returning Officer altering the approved list and substituting it with a new list was without jurisdiction and that this was a fit case for exercise of jurisdiction of the High Court under Article 199 because the remedy provided in law [namely section 70(a) of the Act] was not "equally convenient, beneficial and effective".

129. There is yet another reason why the impugned judgment of the High Court should not be interfered with.

130. Before the High Court it was also submitted that two statutory functionaries namely the District Registration Officer, Multan and the Deputy Registration Officer Khanewal, both functioning under the National Registration Act, 1973-- which is an Act to provide for registration of the citizens and issue of identity cards to them--were not discharging their duties in accordance with law. It is an admitted position that one of the aforesaid District Registration Officers had handed over a large numbet of identity cards to a private individual Mr. Shafqat Chatha for distribution to the applicants for issuance of the identity cards. This action was entirely against the law and could not possibly be countenanced by it. Calling in question the aforesaid action of the statutory functionary did not amount to calling in question the election. Therefore, the directions issued to the statutory functionaries by the High Court to ensure that their actions should conform with the law and are taken in 'furtherance of the provisions of law, are clearly justified. The petition for leave to appeal filed by the statutory functionaries (C.P. No,106-R/1989) questioning these directions has been found by my Lord the Chief Justice to be without merit and the aforesaid petition accordingly ordered to be dismissed, an order with which I entirely agree. But for the reasons given above, in my humble view, the first petition (C.P. No,78-R/1989) too is liable to be dismissed.

131. ' I would, accordingly, declare that the list of the polling personnel issued on 12-2-1989 by the Returning Officer was issued without lawful authbrity and was of no legal effect and that the polling can be conducted only by the polling personnel earlier appointed and was included in the approved list issued on 4-2-1989. Consequently, the-polling held on 22-2-1989 must be treated as non esse and polling in the Constituency NA-120 Multan-cum-Khanewal shall be held de nevo on a fresh date to be fixed by the petitioner (in C.P. No,78-R of 1989), in accordance with law.

132. ' I would leave the parties to bear their own costs. ORDER OF THE COURT A. In view of the majority opinion, Civil Petition for Leave to Appeal No,78-R of 1989, (Election Commission of Pakistan v.

133. Savaid Hashmi and others), is converted into an appeal and is allowed with costs. B. As a result of the unanimous opinion of the Court, Civil Petition for 'Leave to Appeal No,106-R of 1989, (District Registration Officer v. Javaid Hashmi etc.), is dismissed. 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.