K. E. CHAUHAN, J.------In pursuance of Article 41 of the Constitution of the Islamic Republic of Pakistan enacted on 12th April 1973 (hereinafter called for the sake of brevity as the Permanent Constitution) election to the office of the "President" of the country was to be held. The procedure for the conduct of the said election was laid down in the Second Schedule of the Permanent Constitution. . In pursuance of paragraph 26 of the said Schedule, the Chief Election Commissioner, with the approval of the President, could, by notification in the official Gazette, make rules for carrying out the purpose of that Schedule. Consequently, the Chief Election Commissioner framed the Presidential Election Rules, 1973, which were issued in the Extra--ordinary Gazette of Pakistan, dated 22nd June 1973. According to rule 3, every nomination paper was to be accompanied by an attested copy of an extract from the electoral roll in which the person nominated was enrolled as a voter. Argument of the learned counsel is that the nomination paper of Chaudhri Fazal Elahi respondent No. 3 was not accompanied by such a copy and an objection to this effect was duly raised before the Chief Election Commissioner, who, however, overruled it. ' A copy of the order of the Chief Election Commissioner has not been filed alongwith the writ petition. The plea of the learned counsel is that the nomination paper of respon--dent No. 3 suffered from the defect hereinbefore mentioned and, therefore, the failure of the Chief Election Commissioner to reject the same was without lawful authority.
2. We asked the learned counsel as to how the present writ petition was maintainable. His answer was that the writ petition had been filed under Article 201 of the Interim Constitution and, therefore, this Court had the jurisdiction to proceed with-it. In our opinion the contention is not correct. The election of the President is being held under Article 41 read with Second Schedule of the Permanent Constitution. In clause (6) of Article 41 it is clearly laid down that the validity of the election o )A the President shall not be called in question by or before any Court or other authority. In Article 265 of the Permanent Constitution it is laid down as follows :----- "265.-(1) This Constitution shall be known as the Constitution of the Islamic Republic of Pakistan.
(2) Subject to clauses (3) and (4), the Constitution shall come into force on the fourteenth day of August, one thousand nine hundred and seventy-three or on such earlier day as the President may, by notifica--petition in the official Gazette, appoint, in the Constitution referred to as the commencing day".
(3) The Constitution shall, to the extent necessary--(a) for the constitution of the first Senate ; (b) for the first meeting of a House or a joint sitting to be held ;
(c) for the election of the President and the Prime Minister to be held; and
(d) to enable any other thing to be done which, for the purposes of the Constitution, it is necessary to do before the commencing day, come into force upon the enactment of the Constitution but the person elected as President or Prime Minister shall not enter upon his office before the commencing day.
(4) Where by the Constitution a power is conferred to make rules or to issue orders with respect to the enforcement of any provision thereof, or with respect to the establishment of any Court or office, or the appointment of any Judge or officer thereunder, or with respect to the person by whom, or the time when, or the place where, or the manner in which, anything is to be done under any such provision, then that power may be exercised at any time between the enactment of the Constitution and its commencement."
According to the provisions of Article 265 it will be evident that the Permanent Constitution has, for the purposes of the conduct of the election of the President, come into force and as a matter of fact the election -is being held under the said Constitution. It cannot be assumed that the election machinery has come into force for the purposes of bestowing, certain rights and privileges on certain persons but the disability portion connected therewith has not come into operation. Clause
(6) of Article 41, which pertains to the said election is a clear bar to the maintainability of the present writ petition. At this stage it was argued that the writ petition did not purport to call in question the validity of the election of the President but was confined merely to the acceptance of the nomination papers of respondent No. 3 and prayed for a consequential relief in the form of a declaration that instead it was the petitioner which in the eye of law should be considered to have been elected. As to when does an election start and when it ends or what is the meaning of the word "election" is a question to be answered with reference to the context of each case and the relevant law or statute. See Halsbury's Laws of England, Third Edition, Volume XIV, para. 315, which though deals with a differen subject but is a sufficient pointer to the general principle which has been mentioned by us. Generally speaking election is a process which starts wit 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 are challenged it really tantamount to challenging the said (process of) election. "What cannot be 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. The Permanent Constitution, which creates the office of the President and lays down the procedure and machinery for its election, has bestowed no right on any person to challenge the same. The petitioner from that point of view is not clothed with any right to challenge that election and the mere fact that he ,was a rival candidate does not improve his legal status in any manner.
3. Coming to the precise objections which are being raised regarding the alleged defects in the nomination papers of respondent No. 3, since we do not have the order of the Chief Election Commissioner before us we do not want to forestall all the reasons which may have weighed with the Chief Election Commissioner or which may be raised against such pleas, and would simply for our part observe that the objections raised are not of a substantial nature, when basically it has not been urged either in the petition or before us that respondent No. 3 was in fact not a voter or that his name did not exist in the list of voters.
4. The result is that this writ petition does not merit admission and is hereby dismissed in limine.