NASIR ASLAM ZAHID, CJ: --This judgment will govern the following three Constitutional petitions:--
(a) C.P. No. D-2670/1993 filed by Ghulam . Mustafa Jatoi against Returning Officer, Naushahroferoze and others.
(b) C.P. No. D-2683/1993, Masroor Ahmad Khan Jatoi against the Returning Officer, Naushahroferoze and others.
(c) C.P. No. D-2684/1993, Ghulam Murtaza Khan Jatoi also against Returning Officer, Naushahroferoze and others.
Petitioner Ghulam Mustafa Jatoi had filed nomination papers for Constituency NA. 158 (Naushahroferoze-1) with the Returning Officer. According to the petitioner, his nomination paper was complete in all respects including the fresh declarations required to be made under Ordinance XVI of 1993, and on 1-9-1993, scrutiny of nomination papers took place and the Returing Officer found the nomination papers of the petitioner in order and accepted the same and the name of the petitioner appeared in the list of validly nominated candidates. According to the petitioner, no appeal was filed against the acceptance of the nomination papers filed by the petitioner.
Under section 14(5) _ of the Representation of the People Act, 1976, any candidate can prefer an appeal against the decision of the Returning Officer rejecting or accepting nomination papers of any other candidate to the Tribunal constituted for the constituency consisting of not less than two or more than three Judges of the High Court nominated by the Chief Election Commissioner with the approval of the President. According to the said provision, if any such appeal is filed, it is required to be decided summarily within such time' 'as may be notified by the Election Commission. According to the schedule of the Election Programme, the last date for deciding appeals by the Tribunal was notified as 12-9-1993.
According to the petitioner, at about 8 p.m. On 14-9-1993, that is, after the final date for decision of appeals under section 14(5) of the Act of 1976 had passed, the petitioner was delivered a copy of the order dated 14-9-1993, passed by the Returning Officer the same day, which order has been impugned in this Constitutional petition. The entire order-of the Returning Officer dated 14-9-1993 reads as follows:-- "the candidate is found to be a defaulter. Clearance has not been produced. Form is dropped."
The case of petitioner Ghulam Mustafa Jatoi is that the impugned order dated 14-9-1993 of the Returning Officer is ex facie illegal, mala fide and without lawful authority inasmuch as the petitioner's nomination paper was accepted on 1-9-1993 and, in the absence of any appeal (the period of filing and decision of appeals being over by 12-9-1993), the order had become final.
According to the petitioner, he is net a defaulter and the finding given is not only factually incorrect but being without any notice to the petitioner is even otherwise of no legal effect. The petitioner, finding no other alternate remedy, has filed this Constitutional petition challenging the validity and the legality of the order dated 14-9-1993 of the Returning Officer deleting his name from the list of the contesting candidates. Apart from the Returning Officer, all other candidates, whose nomination papers had been accepted by the Returning Officer, have been impleaded as respondents in this petition. Petitioner Ghulam Mustafa Jatoi is represented by Mr. Maqbul Elahi Malik and Mr. Mushtaq Riaz, Advocates (from Lahore). Mr. Muhammad Sardar Khan, Attorney- General for Pakistan, appeared on notice and was assisted by Mr. Naimur Rehman, Standing Counsel, Government of Pakistan. Mr. Aftab Akhund, Advocate-General, Sindh, also appeared on notice and was assisted by Mr. K.M. Nadeem, Assistant Advocate-General. Notices were issued to all the private respondents but only three private respondents have been represented. Mr. Muhammad Ameen Lakhani, Advocate, appeared for respondent No. 2, Ghulam Asgher Abbasi, Mr. Rashid A. Razsri, Advocate, appeared for respondent No. 4, Khan Muhammad Jamali, and Mr. Ghulam Hussain Abbasi, Advocate, has appeared for respondent No. 8 Asif Ali Zardari.
2. Petition D-2683 of 1993 has been filed by petitioner Masroor Ahmed Khan Jatoi. Respondents in this petition are the Returning Officers PS-18 and PS-19 Naushahroferoze, Government of Pakistan and the Election Commission of Pakistan. Originally-only three official respondents had been impleaded as parties, but, later on, amended petition was filed impleading all the candidates whose nomination papers for the aforesaid two constituencies had been accepted. The: petitioner was represented by Mr. Fazle Ghani Khan, Advocate, whereas Advocate-General, Sindh, and Mr. Naimur Rehman, Standing Counsel, Government of Pakistan, for Attorney-General for Pakistan, appeared pursuant to notice. The petitioner's case is identical to the case of petitioner Ghulam Mustafa Jatoi, except that petitioner Masroor Khan Jatoi filed his nomination papers for PS-18 and PS-19 Naushahroferoze. According to the petitioner, no objections were filed by any other candidate against the nomination papers submitted by the petitioner. Scrutiny was carried out and petitioner's nomination papers were accepted by the Returning Officer and- his name appeared in the list of validly nominated candidates displayed by the Returning Officer outside his office. No appeal was filed by any other candidate against the acceptance of petitioner's nomination papers but, on 14-9-1993. The following order was passed by the Returning officer in case of petitioner in respect of his nomination papers for P.S.18 (Naushahroferoze-IV):-- "Candidate is bank defaulter. He has not produced any clearance as per his undertaking.-Hence nomination is dropped."
In case of P.S.19 (Naushahroferoze-V), the following order was passes also on 14-9-1993 by the Returning Officer:--- "The candidate is bank defaulter to the tune of exceeding 1.0 million rupees. He has not cleared the loan as per undertaking. Hence hi: nomination form is dropped."
The impugned orders have been, challenged. The amendments made recently by Ordinances XVI and XX of 1993 had also been challenged in the memo of petition but during arguments, challenge to the vires of such Ordinances was not made on account of time not being available, the petitioner being interested in a very early decision of the petition on account of the elections being scheduled for the Provincial Assembly on 9-10-1993.
3. Petition D-2684 of 1993 has been filed by petitioner Ghulam Murtaza Khan Jatoi, who had filed nomination papers for NA. 15F (Naushahroferoze-1) and P.S.19 (Naushahroferoze-V). Apart from the Returning Officer, Government of Pakistan and the Election Commission, we were originally the only respondents in the petition, all the candidates for the two constituencies, whose nomination papers had been accepted, were impleaded as respondents through an amended petition filed by the petitioner The case of petitioner Ghulam Murtaza Khan Jatoi is similar to the case o1 petitioner Masroor Ahmed Khan Jatoi. The order passed by the Returnint Officer on 14-9-1993 in respect of NA.158 (Naushahroferoze-1) relating to Nomination Form of petitioner Ghulam Murtaza Khan Jatoi is as follows:-- "Clearance of loan not produced. Form dropped."
In respect of Nomination Paper of the petitioner for P.S.19 (Naushahroferoze-V), the following order was passed by the Returning Office on 14-9-1993:-- "The candidate is bank defaulter in the sum of Rs. Over 1 million rupees. Lie has not cleared the loan as per undertaking. Hence hi: Nomination Form is dropped."
4. The relevant section in the Representation of the People Act, 1976 relating to qualification and disqualification of candidates is section 99. Sub. Section (1) of the section 99 of the Act is an exact reproduction of Article 62 o: the Constitutions except that clause (i) of Article 62 which provides that, "he possesses such other qualifications as may be prescribed by Act of Majlis-e-shoora (Parliament)--- is not contained in section 99(1) of the Act.
In subsection (1A) of section 99, it is provided that, "a person shall be disqualified from being elected as, and from being, a member of an Assembly, it and thereafter there are clauses from (a) to (q) specifying the disqualifications.
By Ordinance XVI of 1993 promulgated by the President on 19-8-1993, various amendments were made in the Representation of the People Act, 1976. The two relevant sections of the Amendment Ordinance, 1993, are section 2 and section 9. By subsection (2), section 12(2) of the Act has been substituted. Prior to its substitution by the Amendment Ordinance of 1993, subsection (2) of section 12 of the Act read as follows:-- "Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed by both the proposer and the seconder and shall contain a declaration signed by the candidate that he has consented to the nomination and that he is not subject to any disqualification for being elected as a member."
After its substitution by the Amending Ordinance of 1993, section 12(2) of the Act now reads as follows:--- "(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed by both the proposer and the seconder and shall contain, duly signed by the candidate--
(i) a declaration that he has consented to the nomination and that he is not subject to any disqualification for being elected as member;
(ii) a declaration about his party affiliation if any;
(iii) a declaration that an amount of loan, as may be prescribed, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or dependent or any business concern mainly owned by the aforesaid does not remain unpaid for more than one year from the due date; and
(iv) a declaration that no loan, the amount of which may be prescribed, obtained by him, his spouse or dependent or a business concern mainly owned by him or anyone of the aforesaid from any bank, financial institution, cooperative society or. Corporate body was written off or such amount which was written off has since been paid."
By section 9 of the Amending Ordinance, for clause (f) in section 99(1), the following has been substituted:-- "(f) He is sagacious, righteous, non-profligate, honest, Ameen and pays his debts specified in subsection (2) of section 12."
It would be observed that by the said amendment in section 99, the change that has been brought about is that the words, "and pays his debts specified in subsection (2) of section 12" have been added to the previously existing clause (f).
On 19-8-1993, the Chief Election Commissioner of Pakistan, with the approval of the President, made further amendments in the Representation of the People (Conduct of Election) Rules, 1977, and the said amendments inter alia prescribed the additional declaration on oath by the candidate as follows:-- "I hereby solemnly declare to the best of my knowledge and belief that-- (i)no loan amounting to one million rupees or more obtained from any bank, financial institution, cooperative society or corporate body, in my own name or in the name of my spouse or dependent or business concern mainly owned by the aforesaid, remains unpaid for more than one year from the due date; and (ii)no loan amounting to one million rupees or more obtained by me, my spouse or dependent or a business concern mainly owned by me or anyone of the aforesaid from any bank, financial institution, cooperative society or corporate body was written off or such amount which was written off has since been paid."
By another Ordinance promulgated by the President on 27-8-1993, being Ordinance No. XX of 1993, Representation of the People Act, 1976, was further amended by insertion of the following new subsections after section 12(2) of the Act: "(2A) The declaration specified in clause (iv) of subsection (2) shall be made in respect of the loan written off after the twenty-third day of March, 1985.
(2B) Where a candidate desires to make payment of any loan speed in clauses (iii) and (iv) of subsection (2) and subsection (2A) and gives and undertaking to the Returning Officer for payment of such loan before the 13th day of September, 1993, the Returning Office shall allow such candidate to file nomination paper without the declarations specified in the aforesaid clauses.
(2C) Where a candidate pays back the loan in respect of which he has given an undertaking under subsection (2B), the earlier non-payment or writing off the loan shall not be deemed to be corrupt practice for the purpose of section 78.
(2D) Where a candidate does not make payment of a loan in respect of which he has given an undertaking under subsection (2B) within the period specified therein, in addition to any penalty which may be levied upon him under any law for the time being in force, his name shall not be published in the list of contesting candidates required to be published by the Returning Officer under subsection (4) of section 16 nor shall his name appear in the ballot paper."
The said Amending Ordinance XX of 1993 also added the following explanation after subsection (7) of section 12 of the Act:-- Explanation.---For the purpose of this section the expression "mainly owned" shall mean ownership of forty-one per cent. Or more shares in business concern."
The ultimate consequence of the aforesaid amendments is that every 1 candidate for the Elections to the National or Provincial Assemblies is required to give a declaration on oath along with his nomination that loan amount in excess of rupees one million obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or dependent or any business concern mainly owned by the aforesaid, is not remained unpaid for more than one year from the due date and also a declaration that a loan of rupees one million or more had been written off and or if it had been written off, it has since been paid. However, in case the candidate desires to make payment of any loan speed in clauses (iii) and (iv) of subsection (2) and subsection (2A) and gives an undertaking to the Returning Officer for payment of such loan before the 13th . Of September, 1993, the Returning Officer shall allow such candidate to file nomination papers without the aforesaid declaration. In case, the candidate pays back the loan in respect of which he has given an undertaking, the earlier non-payment or writing off the loan shall not be deemed to be a corrupt practice for the purpose of section 78 of the Act. In case, such candidate does not pay back the loan by 13th September, 1993, his name shall neither be published in the list of contesting candidates nor his name will appear in the ballot paper.
5. We have heard at length the arguments of the learned counsel for the petitioners and those private respondents who have been represented We have heard Mr. Muhammad Sardar Khan, learned Attorney-General for Pakistan and Mr. Aftab Ahmed Akhund, learned Advocate-General, Sindh.
6. As noticed earlier, the effect of amendments made in the Representation of the People Act, 1976, through Ordinances XVI and XX of 1993, inter alia, is that required declarations should be given on oath along with nomination papers that loan amount in excess of Rupees One Million obtained from the prescribed Banks or institutions in the name of the candidate or in the name of his spouse or dependent or in business concern mainly owned by them has not remained unpaid for more than one year from due date, and that a loan of over Rupees One Million had not been written off.
However, in case the candidate wants to make payment of any loan specified in clause (iii) and
(iv) of subsection (2) and subsection (2A) and gives an undertaking to the Returning Officer for payment of such loan before 13-9-1993, the Returning Officer was required to allow such candidate to file H nomination papers without the aforesaid declaration but in case such candidate does not pay back the loan by 30-9-1993 his name shall neither be published in the list of contesting candidates nor his name will appear in the ballot paper.
7. According to the learned counsel for the petitioners, none of the petitioners was a defaulter and as such their names could not be dropped from the list of contesting candidates. However, it is admitted that despite giving declarations as required, some undertakings were in fact given.
According to the counter-affidavit of the Returning Officer, when the scrutiny of nomination papers had taken place on 1-9-1993, an undertaking dated 1-9-1993 was given by the representative of petitioner Ghulam Mustafa Khan Jatoi that the loan, if any, against him will be paid on or before 13th September, 1993. Photo copy of the undertaking given by Mr. Usman Ali, Advocate, representative of petitioner Ghulam Mustafa Khan Jatoi has been filed as annexure to the counter- affidavit. The Court as well as learned counsel found it difficult to decipher some of the words in the said undertaking but it appears that according to the representative of the petitioner there was no loan pending against his client but if there was a loan, it would be paid on or before 13th September, 1993. In the cases of the other petitioners, namely, Masroor Ahmed Khan Jatoi and Ghulam Murtaza Khan Jatoi also, undertakings were given. In the case of Masroor Ahmed Khan Jatoi, the following undertaking was given by his representative, Mr. Usman Ali, Advocate: "It is submitted on behalf of my client Mr. Masroor Ahmed Khan Jatoi, candidate for P.S. 18-N.F.IV that there is no loan more than one million outstanding against him for more than a year but, if any, it may be communicated to me and it will be paid by 13th September, 1993."
In the case of Ghulam Murtaza Khan Jatoi also an undertaking was given by Mr. Usman Ali, Advocate, representative of the said petitioner on 2-9-1993 in the following words: "It is submitted on behalf of candidate Ghulam Murtaza Khan Jatoi P.S. 19-N.F.V that there is no loan outstanding against my client amount of one million since year back and if any I will pay the same by 13 September, 1993."
8. From the counter-affidavits of the Returning Officer filed in the three petitions, which counter- affidavits are supported by several documents, it follows that, according to the Returning Officer, though petitioner Ghulam Mustafa Khan Jatoi had not taken any loan, he had given several guarantees, amounts whereof exceeded the prescribed limit, and as such his name was liable to be dropped, clearance of the loan having not been produced from the Bank concerned. In so far as petitioners Masroor Ahmed Khan Jatoi and Ghulam Murtaza Khan Jatoi are concerned, documents have been filed by the Returning Officer along with his counter-affidavits showing that amounts were in fact due in excess of the prescribed limits to certain Banks.
9. In the case of petitioner Ghulam Mustafa Khan Jatoi, the Attorney General very frankly stated that the case against the petitioner was not that he had taken a loan in excess of the prescribed limit which had not been paid within the prescribed time, but he was disqualified because he was a guarantor in respect of several loans running into million of rupees and a guarantor came within the mischief of the amended provisions. On the other hand, Mr. Maqbool Elahi Malik learned counsel for the petitioner Ghulam Mustafa Khan Jatoi argued that no doubt guarantees had been furnished by the petitioner but guarantor did not come within the mischief of the amended provisions of section 12 of the Act of 1976. According to Mr. Maqbool Elahi Malik, in section 12(2) (iii), the declaration required to be given is that an amount of loan taken by the candidate in his own name would not include a guarantee furnished by the candidate in respect of a loan taken by another person or concern. The learned Attorney-General had argued that the word "loan" would include a guarantee also and in that connection he had referred to clause 4A of section 3 of the Bank Nationalization Act, 1974, defining "loans and advances" as "loans, advances and credit" defined in the Banking Companies Ordinance, 1962. He then referred to section 5(gg) of the Banking Companies Ordinance, 1962, according to which, "loans, advances and credit" includes "finances" as defined in the Banking Tribunals Ordinance, 1984, and section 2(e) of the Banking Tribunal Ordinance, 1984, defines "finances" to include guarantees. According to the Attorney- General the word `loan' mentioned in section 12(2), as amended, therefore, included guarantees also and, as petitioner Ghulam Mustafa Khan Jatoi had admittedly given guarantees for amounts in excess of the prescribed amount, his name was rightly dropped from the list of contesting candidates by order dated 14th September, 1993, of the Returning Officer, petitioner having failed to produce a clearance certificate that the guarantees given by the petitioner had been discharged or released. The learned Attorney-General had also referred to sections 126 and 128 of the Contract Act and various clauses of the Bank guarantees furnished by petitioner Ghulam Mustafa Khan Jatoi for the proposition that the liability of the guarantor was co-extensive with the liability of the principal debtor and in fact guarantor is equated with the principal debtor.
Reply of Mr. Maqbool Elahi Malik was that even if guarantees were included in the word "loan" in the amended provisions of section 12 of the Act of 1976, the petitioner having given a guarantee only could not be described as a person who had taken an amount of loan in his own name.
10. Mr. Maqbool Elahi Malik further argued that in any case the petitioner had been denied the opportunity of putting up his case or defence before any authority under the Elections Laws that he did not come within the mischief of disqualification. According to Mr. Maqbool Elahi Malk if the information was available with the Banks concerned, the same should have been furnished to the Returning Officer so that at the time of scrutiny, the petitioner would have been able to defend himself and if he had been unsuccessful and his nomination papers were rejected, he would haveth a right of appeal before the Tribunal under section 14(5) of the Act of 1976. According to Mr. Maqbool Elahi Malik, the order having been passed on 14-9-1993, the petitioner has been deprived of the two remedies that would have been available to him i.e. At the stage of scrutiny and before the Tribunal. It was further argued that, on 14-9-1993, the Returning Officer had become functus officio and could not disqualify the petitioner.
11. Learned Advocate-General Sindh Mr. Aftab Ahmed Akhund adopted the arguments of the learned Attorney-General for Pakistan but he raised a preliminary objection on the basis of the judgment of the Supreme Court of Pakistan in the case of Election Commission of Pakistan v.
Javaid Hashmi PLD 1989 SC 396. According to the learned Advocate-General, once the election schedule is announced which marks the advent of the election process, no action taken or order passed by any authority under the Elections Laws can be challenged under Article 199 of the Constitution in view of the provisions of Article 225 of the Constitution which reads as follows: "225. No election to a House or 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)."
The argument of the learned Advocate-General on the question of maintainability of the Constitutional petition was adopted by the other learned counsel appearing for the respondents. In fact, Mr. Ghulam Hussain Abbasi, learned counsel appearing for respondent No. 8 in the petition of Ghulam Mustafa Khan Jatoi, read the entire judgment of Mr. Justice Muhammad Haleem, CJ. (as he then was) to demonstrate that the Supreme Court, in the said judgment, has in very clear and unambiguous terms laid down the law that once the election process starts, the only remedy available to a person challenging any order or action of any authority under the Election Laws is by way of an election petition after the election is over and the remedy under Article 199 of the Constitution is totally barred by the wordings of Article 225.
12. Replying to the preliminary objection about the maintainability of the Constitutional petition, Mr. Maqbool Elahi Malik, Advocate made an attempt to argue that the judgment of the Supreme Court in Javaid Hashmi's case does not place a total bar on the exercise of Constitutional jurisdiction under Article 199 of the Constitution but the observations and the law laid down in the said judgment should be taken to be applicable only after the election is over. He also referred to Article 171 of the 1962 Constitution which, according to him, is similar to Article 225 of the Constitution. He relied upon the cases of Sadruddin Ansari PLD 1957 SC 569, Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24, Farzand Ali PLII 1970 SC 98, Haji Behram v. Abdul Hameed Achakzai PLD 1990 SC 352. He also submitted that in the judgment of Mr. Justice Muhammad Haleem, CJ., in Javaid Hashmi's case, reference was made only to the judgment of Cornelius, C.J., in Jamal Shah's case PI.D 1956 SC 1, whereas, in the same case the other three Judges, namely, SA. Rahman, J., Fazle Akbar, J. And Kaikaus, J., clearly observed that in exceptional circumstances recourse to writ petitions under Article 98 of the 1962 Constitution would remain available despite the provisions of Article 171 of the 1962 Constitution. Reliance was also placed on AIR 1946 Lahore 85 for the proposition that remedy under special law being not available, a writ would always lie.
Mr. Fazle Ghani Khan appearing for petitioners Ghulam Murtaza Jatoi and Masroor Ahmed Jatoi had argued that loans taken by the petitioners were for another Company and not for themselves and if an opportunity had been granted at any stage by the Authorities under the Election Laws determining the validity of the nomination papers, it would have been established that the loans had been paid by the Company. According to the learned counsel, however, no such opportunity has been provided by the Returning Officer or even at later stage as the time for finalization of appeals by the Tribunal expired on 12-9-1993; whereas the ex parte and non-speaking orders were passed by the Returning Officer on 14-9-1993 and the petitioners were left with no remedy under the law. According to the learned counsel, in this situation, the only remedy available is by way of Constitutional petition under Article 199 of the Constitution. Mr. Fazle Ghani Khan read the judgments of Fazle Akbar, J., SA. Rehman, J. And Kaikaus, J. In Jamal Shah's case PLD 1966 SC 1 for the proposition that writ was competent in exceptional circumstances, and, according to the learned counsel the petitioners' cases of exceptional nature require interference at this stage.
According to the learned counsel, the petitioners have been deprived of the right to take part in the Elections by patently illegal ex parte orders and they should not be required to wait for entire election process to be over and then asked to file Election Petitions for redress of their grievances, which require immediate consideration and decision so that they may be allowed to take part in Elections as candidates in case the decision goes in their favour. Reliance was also placed on the case of Asghar Hussain PLD 1968 SC 387 and Masroor Ahsan reported in 1991 SCMR 668. Reliance was also placed on a Division Bench judgment of the Balochistan High Court in case of Muhammad Ilyas Khan 1992 MLD 828, but that decision related to Elections for Local Bodies.
13. We were tentatively of the view that Article 225 does not bar the exercise of Constitutional jurisdiction by the High Court under Article 199 of the Constitution till the actual Election takes place.
As otherwise, by patently C illegal orders passed by any authority purporting to act under Election Laws, a person, otherwise entitled to take part in elections, can be deprived of his I rights and then required to wait till -the election is over and then file Election petition for redress of his grievance against the alleged illegal or mala fide order passed much earlier to the actual date of election. In this connection. Some illustrations can be given. For instance, through a bona fide mistake or for mala fide reasons or ulterior purposes, names of all the candidates, except one, are deleted from the list of validly nominated candidates by the Returning Officer after the period for filing appeals before the Tribunal under section 14(5) of 1976 Act is over. In such event, despite the passing of such illegal or mala fide order, the lone candidate remaining in the field will be declared elected and all the other candidates whose names had been deleted would have to wait for the time when the election petitions can be filed and await the decision of the Election Petitions. There can be a case where documentary evidence is available to show that Polling Staff appointed for certain polling stations has been transferred or removed for mala fide reasons to favour one candidate or the other. If the remedy under Article 199 of the Constitution is barred and the only remedy that is available is by way of Election Petition after elections are over, the entire exercise of holding elections may turn out to be a farce.
14. However, we have been taken through the entire majority judgment in the case of Javed Hashmi and, despite attempts being made by the learned counsel for the petitioners in all these three petitions, it has not been possible to find any room for the view that once the election process starts by the announcement of the election schedule, for challenging any order passed or any action taken by any authority or functionary under the Election Laws, a Constitutional Petition is maintainable, despite the fact that such action or order may appear to be patently illegal or mala fide or otherwise invalid.
We may refer to the following principles very clearly enunciated by the Supreme Court (majority view) in Javaid Hashmi's case:-- "The main controversy is directed 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'."
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'.
In Y.B. Chaven v. K.T. Mangalmurti AIR 1958 Bom.397, the meaning of the word `election' as pointed out in Shanker v. Returning Officer, Kolaba AIR 1952 Bom.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.
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 bearing on the result of the process.
Now the next important matter is as to what meaning should be given to the words `No election shall be called in question'.
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' is 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.
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 prodded.
Section 68 relates to the ground for declaring the election of a returned candidate void, section 69 deal 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 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 fails within its ambit or not it can be tested on this touchstone.
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.
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 petition and that too after the process of the election is completed.
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 only 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.
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 for the exercise of power under Article 199."
We may also here refer to the dissenting view of Mr. Justice Nasim Hasan Shah, as he then was, in Javaid Hashmi's case where he observed, that he could not agree with the view that since Article 225 by its mandate creates an independent jurisdiction (in Election Tribunal) for redress of grievance in regard to Election disputes and the Constitution intends that all questions of law and fact 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. It was further observed as follows:-- "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 vindicated by the exemplary restraint and responsibility exhibited by it in the recent case of Dissolution of the National and Provincial Assembly (Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah.725).
While I agree that it is more 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, 1 would, therefore, hold that orders passed even by election authorities, which are outside the limits of the law, are not immue from challenge and correction, by the High Court under Article 199. 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."
We are, however, bound by the judgment (majority view) of the Supreme Court` of Pakistan in Javaid Hashmi's case and as such we dismiss E those petitions on the ground that the impugned orders cannot be challenged under Article 199 of the Constitution.
There will be no order as to costs.