1. S. USMAN ALI SHAH, J.---Humayun Saifullah Khan petitioner seeks leave to appeal against the order, dated 18-9-1989 of a Division Bench of the Peshawar High Court, Peshawar, whereby Constitutional petition filed by Muhammad Ayyub Khan Tanoli was accepted and the reference under section 8-B of the Political Parties Act made by the petitioner before the Election Commission of Pakistan was declared as invalid and incompetent in law.
2. The relevant facts of this petition stated in brief are that the I.J.I., a combination of certain political parties and independent groups, formed to act as a single political party with a common manifesto and constitution, in order to contest the general elections of 1988 for the National as well as Provincial Assemblies and so much so that a common symbol of (bicycle) for those candidates contesting elections on I.J.I. Tickets were allocated to them. As a result of the elections for N.-W.F.P.
3. Provincial Assembly, both the petitioner as well as the respondent Muhammad Ayyub Khan Tanoli were declared as successful on the I.J.I. Tickets. The I.J.I. Secured 28 seats out of total 80 seats in the N.-W.F.P. Provincial Assembly.
4. Respondent No.2 is said to have withdrawn from the I.J.I. Political party and joined as Minister of the coalition cabinet formed by the P.P.P. In the Government of N.-W.F.P. The petitioner being a parliamentary leader of I.J.I. Party in the Provincial Assembly made a reference to the Election Commission of Pakistan within the meaning of section 8-B of Political Parties Act, 1962. The respondent No.2 after being summoned filed his written statement. Vide order of the Election Commission, dated 22-4-1989 an objection was raised by the learned counsel for the respondent No.2 that it was necessary in the first instance to frame issues and thereafter the parties may be given opportunities to adduce their evidence. The Commission with the consent of the learned counsel fixed the schedule of proceedings for hearing the reference and on the same day contesting issues with the consent of the parties were framed.
5. The respondent No.2 filed a Constitutional petition before the Peshawar High Court, challenging the vires of section 8-B of Political Parties Act as being inconsistent with the provisions of fundamental rights and was invalid and ultra vires of the Constitution. The respondent No.2 also filed an application before the High Court, praying to stay the proceedings before the Election Commission.
6. The High Court after hot contest allowed the writ petition, vide impugned judgment.
7. We have heard the learned counsel for the parties at length and have gone through the impugned judgment. The learned counsel for the petitioner took us through the writ petition, states that only the vires of the provisions of section 8-B of Political Parties Act II of 1962 which was introduced by Political Parties (Amendment) Act XXII of 1958 were called in question wherein it is stated that this section being ultra vires of the Constitutional provisions of Articles 17(2), 19, 25, 63, 66 and 113 of the Constitution of Pakistan and was to be declared void and ultra vires being in conflict with the above Constitutional provisions.
8. The learned counsel contended that withdrawal and defection from the LJ.I. Made the respondent No.2 disqualified and thus he was liable to be removed from the membership under section 8-B of the Political Parties Act. He also contended that the respondent No.2 instead of exhausting his adequate remedy available to him under the law in the form of appeal to the Supreme Court against the order of the Election Commission of Pakistan, filed a writ petition and the High Court under the exercise of its Constitutional jurisdiction could not declare the pending proceedings as incompetent and invalid and have no jurisdiction to restrain the Election Commission from proceeding with a reference under section 8-B of the Political Parties Act, 1962. It has also pointed out that the petitioner at the time of filing the writ petition was a leader of the Parliamentary party and thus he could file a reference in his capacity as a leader of the Parliamentary party within the meaning of section 8-B of Political Parties Act.
9. After hearing the learned counsel for the parties we have come to the conclusion that the questions involved in this case are:-- "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?"
10. In our opinion these are the most telling Constitutional and legal questions of great public importance which need thorough examination of this Court.
11. Leave to appeal is granted. However, the prayer for suspension of the order restraining the Election Commission to proceed with the reference is not allowed.
12. Security Rs.15,000.
13. Appeal shall be made ready on the present record, however, the parties are allowed to file additional documents, if any. 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.