' CH. MUSHTAQ AHMAD KHAN, J.---Through this Constitutional Petition, the petitioner who is an Advocate of this Court and is voter citizen of Pakistan, has prayed for issuance of a writ in the nature of quo warranto requiring Mohtarama Benazir Bhutto and Mr. Hamid Nasir Chattha, respondents Nos. 1 and 2 herein to show under what authority of law they claim to hold the office as members of National Assembly of Pakistan prohibiting issuance of their notification as elected members and further directing them not to take Oath of their Office as members of the National Assembly. This writ petition was filed on 12-10-1993 as urgent petition. It wasplaced before us as an objection case on 13-10-1993 on which date, the objection was disposed of and we directed that the writ petition shall be fixed before the D.B. In routine. Today after we had finished with regular D.B.
Work including the urgent matters and had retired to our Chamber, the petitioner appeared before us in the Chamber, requested and insisted for fixation of this matter today as being a matter of utmost importance. The request was considered and conceded to and the case was directed to be listed for hearing today under orders of the Hon'ble Senior Judge.
2. Although the petition has been filed through a learned counsel yet the petitioner has opted to argue in support of this petition himself. It has been contended that the respondents who are claiming themselves to have been elected as members of the National Assembly and entitled to form Government in Centre as well as in the Provinces, are not entitled to be elected as members of National Assembly as they stand disqualified in view of the provisions of Article 63(g) of the Constitution of Islamic Republic of Pakistan, 1973.
3. We have asked petitioner to first address the arguments with regard to the competency of the writ petition as framed, inasmuch as according to the averments contained therein, the respondents had not as yet been notified as members of the National Assembly and also had not taken Oath, hence, were neither holding a public Office nor performing any function in relation to the affairs of Federation, Provinces or the Local Authority and further the writ petition being aimed at stoppage of issuance of notification and prohibiting the respondents from taking Oath as members of the National Assembly, has been filed without impleading the Election Commission of Pakistan as a party to the petition who has to issue the notification and in reality the stay order if issued shall operate against the Election Commission of Pakistan, hence, prima facie the writ petition does not disclose a cause of action and also appears to have not been properly constituted. The petitioner has argued that there is no bar under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to issue writ as prayed for in this petition against the respondents even if they were not holding a public office and were not performing functions in relation to the affairs of Federation or the Provinces, inasmuch as according to the petitioner this Court has vast powers to issue writ even against the private persons who are expected to hold public office in future, and further that it is not at all necessary to implead the Election Commission of Pakistan as party to the writ petition as the petitioner is claiming relief only against the respondents who are party to the writ petition.
4. We have called upon Mr. Mansoor Ahmad, learned Standing Counsel for Federal Government to assist us in this case to determine the aforementioned preliminary points. Learned counsel has argued that this Court has no jurisdiction to issue a writ of quo warranto against a private individual unless and until he is holding a public office or is performing functions in relation to the affairs of the Federation, in the Provinces or the Local Authority and as in this case admittedly the respondents were not notified as yet to be the members of the National Assembly, it cannot be said that they stood elected, hence the writ petition is liable to be dismissed as being premature having been filed without any cause of action. It is further contended that without impleadment of Election Commission of Pakistan as a party to this writ petition, no relief can be granted to the petitioner inasmuch as issuance of a notification is within the competency of Election Commission of Pakistan and if the relief as prayed for is granted, it shall operate against the Election Commission of Pakistan, who is not a party before this Court. It is further contended that the writ is not competent during the course of process of election in view of the provisions of Article 225 of the Constitution of Pakistan, therefore, the petition being improperly constituted and not maintainable at this stage is liable to be dismissed. In reply to the arguments addressed by the learned Standing counsel, the petitioner has reiterated his arguments and in the end has requested for adjournment of this case. We have considered the request of the petitioner for grant of adjournment which has been made at the end of the arguments. No reasonable ground has been urged to seek adjournment. We are of the view that there is no sufficient reason to adjourn this case inasmuch as the writ petition was filed as an urgent petition, has been got listed today on the request of the petitioner and the arguments in details have already been heard and request for adjournment has been made at the fag-end of the arguments, therefore, we proceed to decide this writ petition as it is.
5. We have considered the arguments addressed by the petitioner as well as the, learned Standing Counsel for Federal Government and have gone through the record as well as the provisions of Articles 199 and 225 of the Constitution of Pakistan, 1973. It is clear from the averments of the writ petition itself that on the date when the writ petition was filed, the respondents had not taken Oath of the Office nor had been notified as members of the National Assembly, therefore, their status on that date being of private persons holding no public office who were not performing any functions in relation to the Federation, the Provinces or a Local Authority, no writ can be issued against them as per provisions of Article 199(1)(a)(i) of the Constitution of Islamic Republic of Pakistan, 1973 as held in the following cases:---
(1) Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203.
(2) Muhammad Ibrahim Siddiqui v. Thal Industries Corporation Ltd. And another PLD 1974 SC 198.
' One of the major prayers made in this writ petition is that notification of the respondents as members of the National Assembly may be stopped. This relief if granted had to operate against the Election Commission of Pakistan who has not been impleaded as party to this writ petition. As a necessary party has not been impleaded in this writ petition, it being improperly constituted, is not maintainable as held in the following cases:---
(1) Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203.
(2) Pakistan Medical and Dental Council v. Dr. Raza Muhammad Khan 1992 SCM R 1621.
(3) Akhtar All Khan another v. Settlement Commissioner, Peshawar and 4 others 1989 SCM R 506.
(4) Ch. Riaz Ahmad Yazdani v. The Federation of Pakistan through Attorney-General of Pakistan, Lahore and 8 others 1990 CLC 1406, and
(5) Government of Punjab, Health Department through Secretary, Health, Lahore and another PLD 1987 Lah.
336.
' A perusal of the writ petition demonstrates that it aims at pre-empting the election process. As per Article 225 of the Constitution of Pakistan, 1973, the election of a person is to be challenged through an election petition and at any rate the election process should not be interfered with by exercise of powers under Article 199 of the Constitution of Pakistan, 1973, which is to be read subject to the provisions of Article 225 of the Constitution of Pakistan. The above view is supported by the observations made by their Lordships of the Supreme Court of Pakistan in case of Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396. The relevant portion reads as under:--- "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, thereafter, 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."
' In case of Khalid Ahmad Khan v. Returning Officer and others in CPLA No,812/L of 1990 while deciding CMP No, 449/L of 1990, their Lordships of Supreme Court of Pakistan have held as under:-- - "This Court in the case of Election Commission of Pakistan v. Javed Hashmi, (supra) has found that election is a continuous process consisting of a series of steps to be accomplished in different stages in accordance with the schedule notified in the notification issued in connection with the elections. These steps include the filing of nomination papers, their scrutiny, hearing of objections withdrawal, retirement of candidates, actual polls, counting of votes and declaration of results, etc. When any of these steps is challenged it really amounts to challenging the said process of election and in so far as Article 225 of the Constitution provides that 'no election to a House or a Provincial Assembly shall be called in question except by an election petition', the jurisdiction of all Courts in matters of elections namely the questioning of any decision taken in respect of any step in the process of elections is excluded. The scheme of the electoral laws in the matter of conduct of elections, it has been observed, appears to be that any matter which has the effect of interfering with 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."
' The petitioner has informed us that the respondents have now been notified as members of the National Assembly and have also taken Oath of Office, therefore, the writ petition for grant of a prayer to the extent of stoppage of issuance of notification and taking of Oath by the respondents has become infructuous.
' Resultantly, this writ petition being not maintainable, not properly constituted and having fructified, is dismissed in limine.