Khadim Hussain and Rana Nasir Mahmood petitioners have filed this Constitution petition seeking the relief asunder:-- "(a)That the appointment of respondent No. 2 may please be declared a: illegal and without lawful authority being mala fide in the circumstances as a whole.
(b)That any interference either by Respondent No. 1 and respondent No.2 in the election process may also be declared as illegal without lawful authority.
(c)That direction may be issued to the respondent No. 3 Chamber to ignore the illegal directions of the respondent No. 2 and continue with the election process according to the law."
2. The assertions made in the petition are that according to the Memorandum and Articles of the Association of the Chamber of Commerce, election to the Executive Committee is to be held each year. Article 26(4) provides that only such members who have been enrolled on or before 31st January or those who have cleared their dues before such date are entitled to vote or stand for election to the executive body in terms of Article 25 and for other offices. The list of eligible voters was prepared and circulated to the members alongwith the election Schedule on 31st January, 1994. According to the Schedule, after taking various steps noted therein, the nomination papers were to be received till 19-2-1994, scrutiny of the nomination papers was to take place on 20-2- 1994 and after withdrawal of nomination papers on 22-2-1994, a list of validly nominated candidates and ballot papers to out--station members were to be despatched on 26-2-1994. It was submitted that all these steps have already been taken. On the move of certain persons, Ministry of Commerce vide its Memo. No. 5(1)/94-T.O.I, dated 14-2-1994, authorised Malik Abdul Basit, President, Gujranwala Bar Association, Gujranwala, to watch and supervise the annual (March, 1994) elections, for the Executive Committee as well as office-bearers of the Gujranwala Chamber of Commerce and Industry to be held at Gujranwala according to election schedule chalked out for the purpose to ensure free, fair and impartial elections in accordance with the letter and spirit of the Trade Organizations Ordinance, as well as Memorandum and Articles of Association of the Chamber. This memo. was followed by another memo. of the same date. This was to the effect that "in order to ensure free, fair and impartial elections to the satisfaction of general electorate of the Gujranwala Chamber of Commerce and Industry it is hereby directed as under:-- (i)The Chamber shall prepare a list of voters in strict compliance of relevant articles of its MAA and rules relating thereto.
(ii)The Chamber may also provide for the following:-- (a)use of National Identity Cards/Passports at the time of polling; (b)duly-numbered counter foils of the ballot-paper.
(iii)The Chamber may also take necessary steps to provide for any other matter related thereto to ensure that no irregularity is committed in the conduct of elections with a view to make the election exercise transparent and free of complaints."
Malik Abdul Basit Khan, then addressed a letter dated 19-2-1994 noting down objections raised by certain persons to the list of the voters and pointed out that the matter requires thorough scrutiny and it will only be possible if the record of Chamber is made available and that in case allegations are found correct, the voters list will have to be recast and republished. The Section Officer of the Ministry of Commerce (Insurance Wing), thereafter, on 23-2-1994, issued the following directive:-- (i)Malik Abdul Basit Khan, President of Gujranwala Bar Association shall scrutinize the List of Voters and finalise the same in strict compliance of the relevant Articles of the Memorandum and Articles of Association of Gujranwala Chamber of Commerce and Industry and rules thereof. He shall be entitled to have access to all the record connected therewith for the purpose of completing this assignment and shall furnish a report within a period of one week thereof.
(ii)For the purpose of holding free, fair and impartial elections of the Gujranwala Chamber it must be ensured that membership of all the members eligible under the relevant provisions of Memorandum and Articles of Association of the Chamber is renewed without discrimination.
(iii)The Secretary of the Gujranwala Chamber shall render all assistance to Malik Abdul Basit including access to the relevant record and secretarial help in the completion of this assignment.
These directions have been challenged by the petitioners on the plea that the objections to the voters list cannot be legally allowed to be raised at this advance stage of election process. It was added that no election process can ever be completed if the allegation sought to be raised, are, entertained. Learned counsel explained that such objections are entertained either prior to the announcement of the election schedule or after the completion of the election process. Reference was made to section 9 of Trade Organizations Ordinance which provides remedy for challenging the election. It was pointed out that according to the election schedule, scrutiny and counting of votes is to be done and result is to be compiled and announced by the Scrutineers, the respondents Nos. 4 and 5 on 5-3-1994. It was submitted that the supervisor appointed by respondent No. 1 was to supervise the election to be held according to the election schedule chalked out and issued before his appointment and as such he cannot suspend or reverse the process.
3. I have heard the learned counsel for the parties, learned Deputy Attorney-General and Malik Abdul Basit Khan, Supervisor. The position which stands uncontroverted is that Malik Abdul Basit Khan, President, Gujranwala Bar Association, Gujranwala was appointed to supervise the annual (March, 1994) elections for the Executive Committee as well as office-bearers of the Gujranwala Chamber of Commerce and Industry to be held at Gujranwala according to the election schedule- chalked out for the purpose. His appointment as Supervisor was made with a view to ensure free, fair and impartial election in accordance with the letter and spirit of the Trade Organisations Ordinance as well as Memorandum and Articles of Association of the Chamber. In order to ensure free; fair and impartial election, the steps recommended to be taken were; use of National Identity Cards/Passports at the time of polling and duly-numbered counter-foils of ballot-papers. The Chamber of Commerce, Gujranwala was directed to prepare a list of voters in strict compliance of relevant articles of its Memorandum and Articles of Association and rules relating thereto and also to take necessary steps to provide for any other matter related thereto to ensure that no irregularity is committed in the conduct of elections with a view to make the election exercise transparent and free of complaints. It will, therefore, be seen that it was the conduct of elections which is to be supervised but the election is to be conducted in accordance with the schedule already chalked out and issued. The election process is at advance stage and at this stage if the Supervisor is authorised to scrutinize the list of voters, then election process cannot be completed according to the schedule. The conferment of such power to Supervisor is out of context. Malik Abdul Basit Khan, as such was not authorised to entertain any such complaint. He should have left the matter of these allegations to be sorted out in accordance with law after the election process was complete. Ch. Ijaz Ahmed ; learned Deputy Attorney-General, very rightly pointed out that section 9 of Trade Organisations Ordinance provides remedy for agitating such pleas. It will, therefore, be seen that memo. issued A on 23-2-1994 giving direction to scrutinize list of voters and finalise the same could not have been issued at that stage and that too without hearing the Chamber of Commerce and other interested persons. The Directive dated 23-2-1994 is, therefore, declared to be illegal and unauthorised. The order of I the Supervisor respondent No. 2 suspending the elections being equally illegal d and unauthorised, is also quashed. In this view of the matter, the prayer that the appointment of Malik Abdul Basil Khan respondent, be declared to be illegal, is not, pressed.
4. The net result of the above declaration is that the election process will continue and be completed according to the schedule. Anyone desirous of raising objection to the voters list will be at liberty to raise the objection before the appropriate forum and in accordance with law. The petition is, therefore, accepted in the above terms with no order as to costs.