' SHAFIUR RAHMAN, J.---Leave to appeal was granted to examine the following questions of law:-- "Whether the High Court could issue the writ of prohibition to the Election Commission when specially a provision of appeal is provided to the Supreme Court?
' Whether the High Court could declare the reference made before the Election Commission as incompetent, without there being evidence of fact that the petitioner was not a leader of the Parliamentary party? And ' Whether the High Court could restrain the Election Commission from deciding a reference, duly referred to it within the meaning of section 8-B of the Political Parties Act, 1962?"
2. On the 26th of January, 1989, the appellant filed a Reference or References before the Election Commission, under section 8-B(2) of the Political Parties Act, 1962, seeking disqualification amongst others, of respondent No,
2. The reference was seriously contested and on the pleadings of the parties, the following consent/issues were framed on 22-4-1989:-- "(1) Whether Mr. Humayun Saifullah Khan was the leader of the Parliamentary Party of the I.J.I. In the Provincial Assembly of N.-W.F.P. At the relevant time?
(2) Is the I.J.I. a political party within the meaning of section 2(c) of the Political Parties Act?
(3) Have the respondents withdrawn/defected from I.J.I. And have thereby attracted the disqualification within the meaning of section 8-B of the Act?
(4) Is section 8-B of the Act ultra vires the Constitution?
(5) Is section 8-B violative of the basic structure of the Constitution?
(6) Is the reference mala fide as alleged in paragraph F of the Preliminary Objections?
(7) Whether the petitioner not having tiled any reference against Sahabzada Yaqub Ali Khan is estopped from filing the present reference?
(8) Relief., ' A schedule of proceedings was fixed in consultation and with the consent of the parties for hearing the reference by the Election Commission. The hearing of the matter before the Election Commission was to start on 15-5-1989. An application was moved claiming adjournment which was in fact rejected but the date of hearing before the Election Commission was advanced to 29th of May, 1989.
3. In the meantime on the 22nd of May, 1989, the respondent No, 2 filed a Constitution Petition (Writ Petition No, 216 of 1989) in the Peshawar High Court. It was directed against the Federation of Pakistan, through the Secretary Ministry of Justice and Parliamentary Affairs, and the Election Commission of Pakistan, and it came up for hearing on 23 5-1989, when the learned counsel appearing for the respondent No, 2 (the writ petitioner) sought permission to implead the present appellant as respondent. The request was allowed and the case was ordered to he fixed before 29- 5-1989. An amended Writ Petition impleading the appellant as respondent No, 3 was filed on 24-5- 1989. By this Constitution Petition it was contended that section 8-B of the Political Parties Act invoked by the appellant before the Election Commission was ultra vires the Constitution as it violated the provisions contained in Articles 8, 17, 19, 25, 65 and 66 of the Constitution. It was claimed that in enacting it the basic structure of the Constitution was violated. On these grounds he sought the following reliefs/declaration:-- "(a) Section 8-B of the Political Parties Act, 1962 is invalid being ultra vires the Constitution and also falls short of reasonable legislative measure being inconsistent with fundamental rights and void in terms of Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973.
(b) The reference (Annex. 'A') made by Respondent No, 3 and all proceedings by Respondent No, 2, in consequence thereof, are incompetent and without jurisdiction. Any other relief appropriate in the circumstances but not specifically asked for may also be granted to the Petitioner, with costs."
4. On the adjourned date i.e, 28-5-1989, the High Court called for parawise comments and the proceedings before the Election Commission were ordered to remain stayed. The Petition was finally admitted on 25-6-1989. The interim Order of stay of the proceedings before the Election Commission was confirmed. The matter was heard on the 17th and 181h of September, 1989 and the Constitution Petition was allowed on two grounds, none of which was contained either in the Writ Petition or in the comments or replies filed by the respondents in the Writ Petition. The first finding recorded was in the following words:-- "From the above facts it is more than clear that the contention raised by the learned Attorney- General is not without force that respondent-3 ceased to be the leader of the parliamentary party after the election of Arbab Mohammad Jehangir Khan as leader of the combined opposition group in the Assembly. With the result that the reference filed by respondent No, 3 before the Election Commission of Pakistan had become invalid and incompetent in law Further, the reference under section 8-B of the Act even if competently made by Humayun Saifullah Khan (respondent No, 3) before the Election Commission of Pakistan became invalid and incompetent in law when Arbab Mohammad Jehangir Khan was appointed as the leader of the opposition in the Assembly."
' The second finding recorded was to the following effect:-- "This argument would carry no force when the learned counsel could not refute that Islami Jamhoori Ittehad remained an alliance of different political parties. Each component party retaining its own identity with a separate programme and manifesto In view of what has been stated above it was rightly urged by the learned Attorney-General that the alleged defection or withdrawal on the part of the petitioner from Islami Jamhoori Ittehad is not covered by the provision of section 8-B of the Political Parties Act."
' The High Court concluded its judgment by observing as hereunder:- "For the aforesaid reasons and without determining the question of the vires of section 8-B of the Political Parties Act, 1962, this writ petition is accepted to the extent that the reference under section 8-B of the Political Parties Act filed by Humayun Saifullah Khan (respondent No,3) before the Election Commission of Pakistan (respondent No, 2) is declared to be invalid and incompetent in law. The respondent No, 3 is also restrained from proceeding with the reference in question before respondent No,
2. No order as to costs."
5. Mr. Khalid M. Ishaque, Senior Advocate, the learned counsel for the appellant has taken up four grounds for challenging the judgment of the High Court. In the first place, he referred to various provisions of the Political Parties Act to demonstrate and establish that the law on the subject was exhaustive and it conferred exclusive jurisdiction on a high powered body like the Election Commission of Pakistan, providing a very efficacious remedy in the form of an appeal to the Supreme Court. If the vires of the law was not at all to be examined by the High Court, then it should have as well and was bound to have left the controverted questions of fact with regard to the locus standi of the appellant and the question whether Islami Jamhoori Itehad was a Political Party or not to be determined by the Election Commission exclusively charged with the duty of dealing with the matter. The High Court should not have, under the cover of a challenge to the vires of the law, without attending to the vires, usurped, appropriated and exercised the jurisdiction reserved for the Election Commission. Secondly, he has drawn our attention to Article 199 of the Constitution under which the Petition was filed before the High Court and disposed of, to show that none of the jurisdictional requirements was attracted for exercise of powers under that Article by the High Court. The Election Commission was on the findings ultimately recorded by the High Court competently possessed of the jurisdiction to deal with the questions arising out of the alleged violations of sectio 8-B of the Political Parties Act in a matter which had been brought before it an all the questions on which decision has been given by the High Court could legitimately be raised before the Election Commission and were in fact raised and they could competently be disposed of by it. There was, therefore, no occasion for thc High Court for pre-empting the adjudicatory jurisdiction of the Election Commission, the conferment of which jurisdiction was not examined or questioned by the High Court. Thirdly, the learned counsel has stated that while restraining itself from deciding the constitutional issues raised by the parties before it in writing, the Court should not have proceeded to deal with grounds not raised in writing by any of the parties. The full amplitude of these grounds, the reasons why the same could not more appropriately be examined by the Election Commission, and the very propriety of the High Court intermeddling with such jurisdiction at that stage could not in thc absence of full particulars in writing be taken note of or argued before the High Court. Besides, the grounds taken up necessarily required resolution of controverted questions of fact and law and the High Court in constitutional jurisdiction could not appropriately discharge that duty. Finally, it has been contended that the proceedings before the Election Commission had been smoothly going on and with the consent of the parties and with their full participation. In such circumstances, the writ petitioner was undeserving of the relief granted to him, In support of his contentions, the learned counsel for the appellant has relied on Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382, The Tariq Transport Company, Lahore v.
The Surgod6a-B6craBus Service, Sargodha and 2 others PLD 1958 SC 437, N.P. Ponnuswa mi v. The Returning Officer, Namakkal Constituency, Namakkal, Salem District and others AIR 1952 SC 64 and Haji MohummadAsohar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542.
6. The learned Attorney-General has supported the judgment of the High Court on the ground that the Constitution Petition involved serious questions of constitutional interpretation and jurisdiction of authorities and the vires of Political Parties Act. Such a content of the Constitution petition made it fully competent before the High Court notwithstanding the pendency of the References before the Election Commission. Similarly, the High Court was justified in restraining itself from deckling the constitutional issues if it found that decision could be rendered on other grounds not so serious, constitutional or embracing. According to the learned Attorney-General appropriate and satisfactory enquiry was made by the High Court and the conclusions recorded by it on both the questions can be shown to be correct.
7. Raja Muhammad Anwar, Senior Advocate, the learned counsel representing the Writ Petitioner, respondent No, 2 before us has taken us to the history of the developments which took place, after the election in N.-W. F.P., the formation of a group within a party, the splinter group having a majority of members over the others and the fact that while maintaining its identity it coalesced with the party in power in the Province, in the larger interest of the country and the Province. These facts forming the background coupled with the certificate of the Speaker fully established that the writ petitioner/respondent No, 2 had not defected and proceedings could not be instituted against him under section 8-B of the Political Parties Act by the appellant. The learned counsel has referred to the decisions in Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another PLD 1966 SC 639, Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 and Noori Trading Corporation (Pvt.) Limited and others v. Federation of Pakistan through the Ministry of Finance and 3 others PLD 1989 Quetta 74 to contend that when the vires of a law is in question, the constitutional jurisdiction is the appropriate one and the mere availability of an alternative remedy is no bar to it because the alternative remedy is not in such cases equally effective, convenient and pervasive as is provided under Article 199 of the Constitution.
8. After hearing the learned counsel for the parties and going through the record, we find that six features of this case now before us arc most unusual and striking. The first is that none of the grounds taken up in writing in the Writ Petition, or in opposition to it, have been decided by the High Court by the impugned judgment. The second is that the Writ Petititon has been decided on grounds of fact and law raised during the course of arguments orally. The third is that the grounds on which the writ of prohibition issued to the Election Commission, are shown in the judgment to have been taken up by the learned Attorney-General who, as is stated by him, had received notice and had attended the hearing of the case in the High Court pursuant to requirement of Order XXVII-A Rule 1 of the Code of Civil Procedure, that is. To give assistance on a substantial question as to interpretation of constitutional law. The fourth is that the grounds on which the writ petition has been decided do not relate to any substantial question as to the interpretation of constitutional law but relate to the application, interpretation and effect of various provisions of Political Parties Act, which prescribes a complete code for entertaining and adjudicating such questions, entrusting the same exclusively to the Election Commission for trial and to this Court on appeal therefrom. The fifth is that the exact grounds on which the writ petition has been decided by the High Court were already taken up in the Written Objections to reference pending before the Election Commission in the following words:-- "A--That the Petitioner (Humavun Saifullah Khan) is not the Leader of the Parliamentary Party in the Provincial Assembly of N.-W.F.P. He is, therefore, not qualified to make any reference under section 8-B(2) of the Political Parties Act, 1962. The reference is accordingly incompetent."
"C--That the Islami Jamhoori Ittehad is not a "Political Party" within the meaning of section 2(c) of the Political Parties Act, 1962. Therefore, there does not arise any question of the respondent either withdrawing or defecting from the same."
' The sixth is that Raja Muhammad Anwar, Senior Advocate, who was, as is now before us, representing Mr. Muhammad Avub Khan Tanoli, raised an objection before the Election Commission which was upheld in the following words:-- "As Mr. Abdul Hakeem Khan, learned counsel for the petitioner, proceeded to argue his case, an objection was raised by Raja Muhammad Anwar, learned counsel for the respondents, that it was necessary in the first instance to frame the issues arising out of the pleadings of the parties and thereafter the parties may be given opportunity to adduce evidence. In this connection, reliance was placed on the judgment of the Supreme Court in the case of Rahim Shah v. The Chief Election Commissioner of Pakistan and another PLD 1973 SC 24, which is precisely to this effect. In the circumstances, relevant issues were framed and have been placed on the record.
(2) By consent of the learned counsel, following schedule of proceedings is fixed for hearing of the above references:--
(a) The parties shall file list of their witnesses and documents, if any, on or before 29-4-1989.
(b) The recording of evidence of the Ptitioner shall commence on 15-5-1989 and the case shall proceed from day to day.
(c) After the conclusion of the evidence of the petitioner, the respondents. Will be given not less than five days time to adduce their evidence.
(3) The hearing of the references is accordingly fixed on 15-5-1989 at 9-30 a.m. At Islamabad."
9. On the points noted, there exists explicit law laid down by this Court. For example, in the case of Tariq Transport Company, Lahore PLD 1958 SC (Pak.) 437, at page 497 Cornelius, J., stated the law as hereunder:-- "I deem it necessary also to make some observations regarding this special jurisdiction which is vested in the High Court. The power to issue a writ is indeed a very special power. It is a temporary power, intended to be exercised in a short-handed manner, to correct errors of the relevant kind which arc patent and demand that they should be righted. They must, of course, be errors of a type with which the Courts are specially competent to deal. It is not necessary to detail or categorise the errors which may be dealt with in this way. Enough has been said in this judgment which will indicate what the errors are that may be corrected by the writs of certiorari and prohibition. To gain the speedy, not to say immediate, relief available under these writs, it is necessary that the person complaining of the error should make his allegations in as specific a manner as possible, for in dealing with such petitions, the Court will not ordinarily enter into the examination of complicated questions of fact or law, such as are more suitable for resolution in a suit or other proceedings of more normal kind, in which an opportunity for full investigation and presentation of all relevant matters is available to both sides. Particularly with reference to writs of certiorari and prohibition, the error should generally appear on the very face of the proceedings, and the relief granted should be addressed specifically to the correction of such error. If, then no error of the relevant kind is made to appear in the petition itself, it is clearly the duty of the Court to reject the petition. To allow the petitioner to make out fresh grounds is not permissible, otherwise than in the most exceptional circumstances."
' Muhammad Munir, C. J., in the same case stated the law at page 450, as hereunder:-- "Having given careful consideration to this aspect of the matter, I am of the view that the present case was governed by the general rule that where a statute creates a right and also provides machinery for the enforcement of that right, the party complaining of a breach of the statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of a writ. Since in the present case the statute under which the respondent had a grievance provides an appeal in which that grievance can be set right, no writ of certiorari or mandamus or any other discretionary order of that nature should have been issued by the High Court."; ' and also at page 448, in the following words:-- "....I consider it to be wrong on principle for the High Court to entertain petitions for writs, except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal fully competent to award the requisite relief. Any indulgence to the contrary by the High Court is calculated to create distrust in statutory tribunals of competent jurisdiction and to cast an undeserved reflection on their honesty and competency and thus to defeat the legislative intent."
' This statement of the law has been followed consistently by this Court, as for example, in Dr. M.O.
Ghani, Vice-Chancellor, University of Dacca v. Dr. A.N.M. Mahmood PLD 1966 SC 802 at page 816, where it was held that "resort to the High Court's summary jurisdiction should not he permitted if it amounts to circumvention of the normal processes of law."
10. The learned counsel for the respondent has attempted to create a scope for the type of exercise undertaken by the High Court by reference to the cases of Anjuman-e-Ahmadiya Sargodha PLD 1966 SC 639, Rahim Shah v. The Chief Election Commissioner of Pakistan and another PLD 1973 SC 24, cases of Miss Benazir Bhutto PLD 1988 SC 416, Noori Trading Corporation (Pvt.) Limited and another PLD 1989 Quetta 74 and Abdul Jabbar and others v. Abdul Waheed Khan and others PLD 1974 SC 331, where act of a public functionary was involved, a jurisdictional fact had been wrongly decided or an error apparent on the face of the record allegedly existed. In the case in hand, there was no attack from any quarters that the Election Commission had exercised or was exercising a jurisdiction not possessed by it or had while exercising it exceeded its jurisdiction. There was nothing in the objection raised by the learned Attorney-General as noted in the judgment of the High Court to suggest a malfunctioning of the Election Commission such as could justify the transference of the adjudicatory power from the Election Commission to the High Court on questions of fact and law. The legal threshhold of the bar of its jurisdiction having not been crossed by the Election Commission no adjudication on merits in the nature of a substitutive, finding could he recorded and a parallel jurisdiction on the subject-matter of the controversy could not be exercised by the High Court. The judgment of the High Court suffers from a serious error. The appeal is accepted. The judgment of the High Court is set aside. The writ is recalled.
11. As regards the nature of the further relief to be granted, the learned counsel for the appellant contended that as none else has come up in appeal against the judgment, particularly the writ petitioner, the writ petition on setting aside of the order/judgment of the High Court he dismissed.
In support of this proposition, the learned counsel has referred to the conduct of the writ petitioner before the Election Commission and the judgment of this Court in the case of Haji Muhammad Asghar PLD 1986 SC 542.
12. As the respondent No, 2 has a right to support the judgment of dismissal of the writ petition on any ground available to him under the law, it can as well be urged that in case his plea does not succeed here then the writ petition as framed by him and presented before the High Court would still he awaiting decision. He would not be wrong in making such a submission and in view of the gravity of the question raised by him and its effect on the body politic of this country, we would not take any such course of action as is suggested by the learned counsel for the Appellant. Keeping in view the importance of the issues raised in the Constitution Petition and the absence of any discussion or finding of the High Court on these issues, we would while setting aside the judgment of the High Court remand the matter to High Court for disposing of the Constitution Petition in accordance with the law. In the meantime, and while this Constitution Petition is awaiting decision on merits in the High Court, there shall he no restraint on the Election Commission, in the matter of adjudicating the controversy pending before it. No order as to costs.
(Sd.)
Shafiur Rehman, J (Sd.)
Abdul Qadeer Chaudhry, J (Sd.)
Rustam S. Sidhwa, J ' AJMAL MIAN, J.--I have given a separate dissenting opinion on the question whether the case should be remanded or not. On the other point I have agreed to.
' AJMAL MIAN, J.---I have had the advantage of reading the draft of my learned brother Shafiur Rahman's proposed judgment. I am in respectful agreement that the High Court judgment is liable to be set aside and that there should be no restraint on the Election Commission, in the matter of adjudicating the controversy pending before it, but I would like to add a few lines of my own on this aspect. However, I am unable to persuade to myself to agree with the proposed remand order as in my humble opinion this Court should deal itself with the vires of section 8-B of the Political Parties Act, 1962 (hereinafter referred to as the Act) instead of sending the case to the High Court for the reasons recorded hereinbelow.
2. Adverting to the merits of the case, I may observe that the judgment of the High Court is founded on the findings recorded by it that the appellant ceased to be the leader of the parliamentary party and that the Islami Jamhoori Ittehad remained an alliance of different political parties. None of the above findings relates to any jurisdictional defect in the Election Commission, but they relate to questions of fact which were pre-eminently within the jurisdiction of the Election Commission and could be more aptly adjudicated upon by it subject to an appeal to this Court, and on which the consent issues were already framed by the Election Commission on 22-4-1989. The High Court without holding that section 8-B of the Act was ultra vires the Constitution deprived the Election Commission its jurisdiction vested in it by law. In my view such an exercise by the High Court was beyond the purview of Article 199 of the Constitution. The above Article provides mechanism for keeping the various organs and/or functionaries of the State within their legal bounds and to ensure that none of it transgresses or encroaches upon the functions of the other. I am appalled to note that in the instant case the High Court instead of discharging its above constitutional function has itself transgressed upon the jurisdiction of the Election Commission and rendered section 8-B of the Act, (which was designed and intended to prevent floor crossing in the Assemblies by its members in order to bring the required stability in the democratic institutions of the country), ineffective. The exercise of writ jurisdiction by the High Court in the present case on the grounds found favour with it was not warranted by law or otherwise.
3. As regards the question, whether the case should he remanded to the High Court for adjudication upon the wires of section 8-B of the Act or should this Court take upon itself to decide the above issue, I may observe that when an original Court fails to decide an important question, two courses are open to an appellate Court in an appeal against such a judgment/order, namely,
(i) to remand the case to the original Court or/to decide the question itself if the facts/dictates of justice so demand. In the present case the question, whether section 8-B of the Act violates any fundamental right is a question of great public importance which affects the body politic of this country. The popularly elected members of the assemblies and the public-at-large should know, whether; section 8-B of the Act is legally enforceable provision or not as it provides penalty against defection by an elected member of an assembly. It is a question of the nature, which can directly he brought before this Court under clause (3) of Article 184 of the Constitution which provides that "without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question" of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
' I may observe that on the basis of the above provision of the Constitution this Court entertained directly and decided the case of Miss Benazir Bhutto v. Federation of Pakistan and another reported in PLD 1988 SC 416 as to the vires' of certain provisions of the Act in issue in the instant case.
' In my humble view any doubt as to the legality of section 8-B of the Act will encourage floor crossing by the members of the Assemblies which will not be in the interest of the democratic institutions and of the stability of the country. Am, therefore, of the view that it is a fit case in which the facts/dictates of justice demand that there should he an authoritative pronouncement from this Court on the above question particularly keeping in view that the High Court declined to examine the above question.
4. The notices be issued to the Advocates-General of the Provinces, to the Political Parties represented in the Houses of Parliament or in the Provincial Assemblies, to the other respondents before the Election Commission and to the Attorney-General as per legal requirement.
' The matter is to be placed before the Hon'ble Chief Justice for constituting an appropriate Bench for hearing of the matter.
ORDER OF THE COURT ' The Court unanimously accepts the appeal, sets aside the impugned judgment of the High Court, with the result that there shall be no writ of prohibition, interim or perpetual preventing the Election Commission from proceeding with the matter before it.
' By a majority the Court remands the matter to the High Court for decision of the writ petition on the constitutional issues raised therein.