1. CH. MUSHTAQ AHMAD KHAN, J: --Syed Abdul Aziz Nasir Haqqani alias Pir Aziz Ullah Haqqani, a Muslim citizen of Pakistan filed his nomination papers to contest the election to the Office of the President of Pakistan scheduled to be held on 13-11-1993. His nomination however was neither proposed nor seconded by any Senator, M.N.A. or Member of the Provincial Assemblies who constitute the electoral college, to elect the President. On 2-11-1993, the Returning Officer for the presidential election (Chief Election Commissioner of Pakistan) the respondent in this writ petition rejected the nomination paper on the ground that the same is not proposed and seconded by any Senator, MNA or MPA. The order dated 2-11-1993 passed by the Returning Officer is reproduced as under:-- "The nomination paper presented by Pir Mir Aziz Ullah Khan before the Chief Justice, Sindh High Court is not in order. It is neither proposed nor seconded by any Senator, M.NA. or M.P.A. It is, therefore, rejected."
2. Dated 02-11-1993. (Sd.)
3. Returning Officer"
4. This order has been challenged. by Syed Abdul Aziz Nasir Haqani petitioner through this Constitutional Petition.
2. Mr. Shamim Wahid, Advocate has appeared on behalf of the petitioner. This case was placed before us for motion hearing on 8-11-1993. We directed that a copy of the writ petition shall be handed over to Mr. Mansoor Ahmad, Standing Counsel for Federation of Pakistan, who shall assist this Court today. Learned Standing Counsel is hence present today to assist the Court.
5. 3 Learned counsel for the petitioner in support of this writ, petition has raised the following contentions:--
(1) That the ultimate electoral college for election of the President of Pakistan is people of Pakistan, therefore, the imposition of the condition for a candidate to file his nomination paper having been proposed and seconded by chosen -representatives is extremely harsh and is void as the same abridges the rights and privileges of the people to elect a President of their choice.
(2) That the election to the Office of President is to be held through secret ballot as per provisions of Article 226 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, imposing condition upon a contesting candidate to get his nomination paper proposed and seconded by Voters in writing amounts to violating the secrecy of ballot inasmuch as filing of a nomination paper is a step during the course of election and that in case a voter signs a nomination paper as proposer or as a seconder, he discloses his identity and hence the requirement of getting the nomination paper proposed and seconded by a voter is void and non-existent in the eyes of law.
(3) That 1st four Khulfa-e-Rashdeen, were elected as Heads of the State without being proposed and seconded by anybody by the Muslim Ummah, and therefore, the grounds on the basis whereof the nomination paper of the petitioner has been rejected is' against the injunctions of Islam and hence the impugned order is void and without a lawful authority as per provisions of Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973 which requires the various functionaries of the State to perform their functions in accord with the injunctions of Islam and in case of conflict between the said injunctions and law of the country which includes the Constitution, they are bound to follow the injunctions of Islam and not the law as the law in such a situation will be void ab initio, therefore, the nomination paper filed by the petitioner could not have been rejected by the respondent on the ground mentioned above, and, hence the impugned order being illegal and without a lawful authority, the petitioner being otherwise qualified to contest the Presidential election his nomination paper shall be deemed to have been validly filed and accepted, hence the petitioner is entitled to contest the coming Presidential election, and as such, entitled to the issuance of a writ/order to the effect that the impugned order is illegal and without a lawful authority and a direction to the respondent to accept the nomination paper filed by the petitioner and to allow him to contest the election.
4. Elaborating his argument, learned counsel for the petitioner has drawn our attention to the provisions of Article 41 of the Constitution of Pakistan, according to which a person is qualified to contest the election as the President if he is not less than 45 years of age, is a Muslim and is qualified to be elected as member of the National Assembly. Learned. counsel contends that the petitioner satisfies all these qualifications, and therefore, he is entitled to contest the election in question. Learned counsel has further argued that in this Article there is no such condition that only that person can contest the Presidential election whose nomination paper is proposed and seconded by a voter. Learned counsel has further referred to the provisions of Article 226 of the Constitution for the proposition that all the elections under the Constitution had to be held through secret ballot and as the Presidential election is an election under the Constitution, therefore, it has to be held through a secret ballot, therefore, imposing the condition upon a candidate to get his nomination paper proposed and seconded by a voter amounts to violation of the secrecy of the ballot and therefore the said condition being illegal and without a lawful authority is not enforceable in law. Ultimately, however, learned counsel stated that he does not press this ground as signing of a nomination paper of a candidate as a proposer or a seconder does not amount to violation of secercy of ballot. Regarding the last limb of his argument to the effect that in Islam to seek an election as Head of the State, it is not necessary that a person should be proposed and seconded by a voter, therefore, conditions for non-fulfilment whereof the nomination paper of the petitioner has been rejected are illegal and void. It is contended that all the four Khulfa-e- Rashdeen were elected by Muslim Ummah as a whole and their nominations were not proposed and seconded by particular individuals, therefore, the conditions referred to above being violative of the injunctions of Islam are not enforcible in law as being void as per provisions of Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973.
5. Mr. Mansoor Ahmed, learned Standing Counsel for the Government of the Federation of Pakistan has argued that the requirement of a nomination paper of a candidate, who wants to contest as President, to be proposed and seconded by a voter has been provided under Article 41 read with second Schedule to the Constitution of Islamic Republic of Pakistan, 1973, therefore, the requirement being provided in the Constitution itself, it cannot be declared to be illegal and without a lawful authority in Constitutional jurisdiction of this Court and so long as the condition remains as a part of the Constitution it has to be followed and as admittedly the nomination paper of the petitioner was not proposed or seconded by a voter, it has been rejected by the Returning Officer for legal and valid grounds. It is further contended that signing the nomination paper as a proposer or a seconder does not amount to violation of secrecy of the ballot inasmuch as nomination of a candidate is definitely a step during the course of Presidential election but is not a part of actual balloting which is yet to take place, and therefore, it cannot be said that a person who has proposed or seconded a nomination paper for a candidate will or has voted for him at the time of actual polling. Consequently, the contention of the learned counsel is premature and misconceived and is of no legal consequences and at any rate having been ultimately not pressed, has no legal officially. Regarding the argument of the learned counsel for the petitioner that the condition on the basis whereof the nomination paper of the petitioner has been rejected is violative of the injunctions of Islam, the learned Law Officer has contended that the argument is misconceived inasmuch as the people exercise their rights through their chosen representatives who have to sign the nomination paper as proposer and seconder and hence in reality it is the people of Pakistan who have authority to elect the President and the Constitution has provided a procedure for exercise of that authority of the people through their chosen representatives, hence there is no inconsistency between the conditions referred to above as well as the provisions of Article 2A of the Constitution of Islamic Republic of Pakistan, 1973, as well as injunctions of Islam.
6. We have considered the arguments addressed by the learned counsel for the petitioner as well as the learned Law Officer. Election to the Office of President of Pakistan is to be held according to the provisions of Article 41 of the Constitution of Islamic Republic of Pakistan 1973 read with second schedule thereof. Relevant portion, of the Article 41 of the Constitution and Second Schedule are reproduced as under:-- "Article 41(1): --There shall be a President of Pakistan who shall be the Head of State and shall represent the unity of the Republic.
(2) A person shall not be qualified for election as President unless he is a Muslim of not less than forty-five years of age and is qualified to be elected as member of the National Assembly.
(3) The President to be elected after the expiration of the term specified in clause (7) shall be elected in accordance with the provisions of the Second Schedule by the members of an electoral college consisting of---
(a) the members of both the Houses; and
(b) the members of the Provincial Assemblies.
6. (4)
7. (5)
(6) The validity of the election of the President shall not be called in question by or before any Court or other authority."
8. SECOND SCHEDULE (ARTICLE 41(3)
ELECTION OF PRESIDENT
(1) The Chief Election Commissioner (hereinafter referred to as the Commissioner) shall hold and conduct election to the Office of President and shall be the Returning Officer for the election.
(2) ...............
(3) At any time before noon on the day fixed for nomination, any member of either House may nominate for election as President a person qualified for election as President by delivering to the Commissioner, or in his absence to the Secretary to the Election Commissioner, a nomination paper signed by himself as proposer and another member of either House as seconder, together with a statement signed by the person nominated that he consents to the nomination; provided that no person shall subscribe, whether as proposer or seconder, more than one nomination paper at any one election, and if any person subscribes more than one nomination paper, whether as proposer or as seconder, all the nomination papers so subscribed shall be invalid.
9. (4)Scrutiny of nomination papers shall be conducted by the Commissioner at the place and time and on the date fixed for the purpose.
(5) Each candidate, or his authorised agent, shall be entitled to attend the proceedings for scrutiny of nomination papers and to raise objections in respect of nomination papers of other candidates.
(6) ...............
(7) ...............
(8) ...............
(9) ...............
(10) ...............
(11) ---------...
10. (12)------------
(13) The poll shall be by secret ballot.
11. (14)
(15) ...............
(16) Every ballot paper shall bear the names of all the validly nominated candidates in alphabetical order. A ballot paper, authenticated by the initials of the Presiding Officer, shall be issued by the Presiding Officer to a voter upon due identification and the name of the voter to whom the ballot paper is issued shall be noted on the counterfoil. The voter shall exercise his vote by placing a cross-mark against the name of the candidate for whom he wishes to vote.
(17) The ballot paper having been marked by the voter shall be inserted by that voter in a ballot box placed in front of the Presiding Officer."
12. A plain and joint reading of the aforementioned provisions of the main provisions of the Constitution and the Schedule clearly shows that election of the President is to be held in accordance with the provisions of Second Schedule by the members of the electoral college consisting of the members of both the Houses of the Parliament and members of the Provincial Assemblies. The nomination paper of a candidate has to be proposed and sconded by a voter and in case it is not so proposed or seconded the said nomination paper shall be invalid; that poll shall be by secret ballot; the ballot paper shall be issued to a voter on the date and during the course of the period fixed for poll and that the validity of the election of the President shall not be called in question by or before any Court or other Authority. Admittedly, the nomination of the petitioner has not been proposed by any voter, hence, the nomination paper in question is invalid as per provisions of the Constitution referred to above. The Returning Officer, therefore, was under a lawful duty to reject the nomination paper as the same has not been executed and filed in accordance with the provisions of the Constitution of Pakistan. It is an established legal proposition that if an act is provided to be done in a particular manner, it has to be done in that manner and not otherwise and in case the same is done in the manner not provided for, the act shall be illegal and void as held in case of Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others (PLD 1971 SC 61) at page 70-71 of which report it has been held as under:-- "The learned counsel for the appellant argued that subsection (5) ibidcontains an absolute command of the Legislature couched in negative language prohibiting the taking of an adverse action against anyperson under section 20 without giving him an opportunity to show cause against it. The learned counsel for the respondent, on the other hand, argued that subsection (5) is merely directory in nature and its non-compliance did not render the order void, and that, in any case, the absence of show-cause notice by the Additional Commissioner has lost all importance, as the appellant, by taking the matter in further revision before the Settlement Commissioner got a full opportunity there of being heard by him, and that the principles of natural justice were thus fully satisfied. It is well-settled that the neglect of the plain requirements of a statutory enhancement, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and when as merely directory? It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure; if, on the other hand, the language is affirmative it may be considered as a directory provision. Nonetheless, it appears that in several reported English cases, it has been held that an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language. In Mayor of London v. R.
13. (1848) 13 QB 30 it was stated that `the words negative and affirmative of a statute mean nothing.
14. The question is whether they are repugnant or not to that which before existed. That may be more easily shown when the statute is negative than when it is affirmative, but the question is the same.
15. In Liverpool Borrough Bank v. Turner (1861) 30 UCH 379, Lord Campbell observed as follows:-- No universal rule can be laid down as to whether a mandatory enactment shall be construed directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. In Howard v. Bolingdon (1), Lord Penzance after citing this dictum of Lord Campbell added as follows:-- I believe as far as any rule is concerned, you cannot safely go further than that. In each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object to be secured by the Act and upon review of the case in that aspect, decide whether an enactment is, what is called, imperative or only obligatory. One other principle which has been enunciated in this behalf is that as a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language. At page 226 of Cralies on Statutory Laws, 6th Edition, this rule is stated thus:-- `That when a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and ' qualifications annexed to the grant must be strictly applied: Argument of the learned counsel for the petitioner to the effect that requirement of signing nomination paper by a proposer and a seconder is against the principle that the President has-to be a representative of the people and not of the chosen representatives is misconceived and is based upon misunderstanding of the correct factual and legal position. Preamble of the Constitution of Islamic Republic of Pakistan, 1973 reads as under:-- PREAMBLE.
16. "Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; And whereas it is the will of the people of Pakistan to establish an order:-- Wherein the State shall exercise its powers and authority through the chosen representatives of the people."
17. A bare reading of the aforementioned portion of the preamble clearly shows that the people have to exercise their power and authority through their chosen representatives. hence, the requirement of signing of a nomination paper by a proposer and a seconder in fact vests the authority even to nominate and propose in the people and it cannot be said that the said requirement in any manner destroys or deminishes the rights of the people to elect the President, hence the above contention raised by the learned counsel for the petitioner has no force and the same is repelled.
18. Argument of the learned counsel for the petitioner to the effect that the requirement of signing a nomination paper by a proposer and a seconder is violative of the provisions of Article 226 of the Constitution of Islamic Republic of Pakistan, 1973, which is reproduced as under:-- Article 226.--Ali elections under the Constitution shall be by secret ballot." is also misconceived and is based upon misunderstanding of the correct factual and legal position. However, the secrecy which is required to be observed as is clear from the joint and harmonious reading of Articles 41, 226 and para. 12 of Second Schedule is to be that of the ballot. Signing of nomination paper of a person by a voter as a proposer or a seconder in no way affects the secrecy of ballot and it is not necessary that a voter who has signed a nomination paper of a candidate as proposer or a seconder may have actually voted for the said person as the ballots have to be issued and polled on a date subsequent to the signing and filing of the nomination paper. Learned counsel for the petitioner has also ultimately conceded that the condition in question is not against the principle of secrecy of ballot.
19. Last argument of the learned counsel for the petitioner to the effect that the requirement of signing of a nomination paper by a proposer and a seconder is violative of the' Injunctions of Islam is also incorrect and is p misconceived. In Islam in fact a candidate has no right to offer himself as a candidate for a Public Office. It is the voter who is to propose, second and elect him for the said office. Consequently, the whole argument appears to be based upon misconceived notion of the Islamic Law and the Islamic history inasmuch as the four Caliphs never offered themselves to be elected as Head of the State. They were proposed by individuals and were elected by Muslim Ummah through Baat, as is clear from the following reproduced extracts from Tarikh-e-Islam, Volume I by Shah Moin-ud-Din Ahmad Nadvi;-- Resultantly, it cannot be saiu that the requirement of signing nomination paper by a voter as proposer or a seconder is in any manner violative of the injunctions of Islam. Even otherwise, the provisions of Article 2A of the Constitution have to be read in conjunctions with the other Articles of the same Constitution keeping in view the principle of harmonious interpretation as held in the following cases:-- Mst. Kaneez Fatima v. Wali Muhammad and others (PLD 1993 SC 901) and Hakim khan and 3 others v. Government of Pakistan through Secretary, Interior and others (PLD 1992 SC 595). and this court has no jurisdiction to declare a Constitutional provision as Void being un-Islamic. In case of "Mst. Kaneez Fatima" at page 910 of the report, it has been held as under:-- The question arises whether the principles of Hakim Khan's case (supra) can be applied to cases where the provision of any enactment and not the Constitution is to be considered and challenged on the plea that it is hit by Article 2A. As is obvious from the aforestated weighty observations, Article 2A cannot pressed into service for striking down any provision of the Constitution on the grounds that it is not self-executory and also that another provision of the Constitution cannot be struck down being in conflict with any other provision of the Constitution. The last principle enunciated may not be applicable while dealing with the provisions of any enactment which may be in conflict with the provisions of the Constitution. The difference in Constitutional provisions which are not self-executing and which are self-executing has been laid down by our learned brother Shafiur Rahman, J., in Hakim Khan's case and reliance has been placed on Bindra's Interpretation of Statutes, 7th Edition. The self-executing provision not only confers a right but it provides for its protection and a further duty is cast to enforce it without the aid of legislative enactment. There may be supporting legislative enactments which may flow from such self- executing provisions of the Constitution, but they will not change the character of the self -- executing provisions of the Constitution nor will they be dependent upon such supporting legislation. But where merely a "policy has been laid down or some guidelines have been provided', they are dependent upon supporting legislations and enactments because without them the same cannot be enforced by themselves. Sometimes, as in our Constitution, procedure is provided for enforcing or making such non--self-executing provisions operative. Therefore, in such circumstances, the non-self-executing provisions of the Constitution serve as a beacon light for the enactment of laws by the legislature and also for making rules and regulations which have the force of law."
20. In case of Hakim Khan and 3 others (supra) at pages 619 and 621 of the report, it has been held as under:-- "This submission undoubtedly has force. In an Islamic polity all the three limbs of the State namely Executive, Legislature and Judiciary can exercise the delegated functions of the divine sovereignty within their respective spheres and the reference in the Holy Qur'an to the obedience of is equally applicable to the members of the judiciary.
21. In this connection, it is pertinent to note that Maulana Maududi in his work entitled Tafheem-ul- Quran observes; the original is in Urdu and the English rendering thereof below is somewhat as under:-- `The concept of `Oolilamr' comprises of persons who are in charge of the collective affairs of the Muslims. They may be Ulema offering guidance on religious matters, or the political leaders, the civil servants running the administration or Judges deciding disputes in Courts etc..
22. Interpreting the same verse Maulana Amin Ahsan Islahi in Tadabbar-i-Quran observed:-- `Since at the time of Revelation of this verse there was no question of any State or Caliphate, the expression 'Qolilamr' referred to in that context to the prominent leaders of the Muslims in various fields.'
23. This shows that the judiciary too can exercise the delegated divine sovereignty.
24. But here we are concerned with the mode and manner of its exercise as visualised in the Objectives Resolution. It has already been pointed out that immediately upon the adoption of the Objectives Resolution a Basic Principles Committee was set for framing the provisions of the Constitution in conformity with the principles enunciated in the Objectives Resolution. These provisions were eventually to be adopted by the Constituent Assembly after examining that they, indeed complied with the principles enunciated in the Objectives Resolution. The Courts could neither participate in this process nor had any role therein.
25. The role of Objectives Resolution, accordingly in my humble view notwithstanding the insertion of Article 2A in the Constitution (whereby the said Objectives Resolution has been made a substantive part thereof) has not been fundamentally transformed from the role envisage for it at the outset; namely that it should serve as beacon light for the Constitution-makers and guide them to formulate such provisions for the Constitution which reflect in ideals and the objectives set forth therein. Thus, whereas after the adoption of the Objectives Resolution on 12th March, 1949, the Constitution-makers were expected to draft such provisions for the Constitution which were to conform to its directive and the ideals enunciated by them in he Objectives Resolution and in case of any deviation from these directives, while drafting the proposed provisions for the Constitution the Constituent Assembly, before whom these draft provisions were to be placed, would take the necessary remedial steps itself to ensure compliance with the principle Laid down in the Objectives Resolution. However, when a Constitution already stands framed (in 1973) by the National Assembly of Pakistan exercising plenary powers in this behalf wherein detailed provision in respect of all matters referred to in the Objectives Resolution have already been made and Article 2A was made a mandatory part thereof much later that is after 1985 accordingly now when a question arises whether any of the provisions of 1973 Constitution exceeds in any particular respect, the limits prescribed by Allah Almighty (within which his people alone can act) and some inconsistency is shown to exist between the existing provisions of the Constitution and the limits to which the man- made law can extend; this inconsistency will be resolved in the same manner as was originally envisaged by the authors and movers of the Objectives Resolution namely by the National Assembly itself. In practical terms, this implies in the changed context, that the impugned provisions of the Constitution shall be corrected by suitably amending it through the amendment process laid down in the Constitution itself.
26. This brings us to the question posed at the outset of the judgment namely that in case the Constitution-makers of 1973 in enacting the provisions of Article 45 of the Constitution of 1973 in their present form have indeed transgressed the `limits prescribed by Allah Almighty'; can the Courts invalidate the aforesaid provisions of Article 45 to the extent of the transgression?
27. Now expressions like `the limits prescribed by Allah' or the principles of `democracy, freedom, equality, tolerance and social justice, as enunciated by Islam' which according to another clause of the Objectives Resolution shall form the basis of the Constitution are rather vague,' general and flexible concepts which are capable of different interpretations at different times. Keeping this in view the author of the Objectives Resolution appear to have thought given this flexibility and suppleness of these concepts and further conscious of the fact that the Constitution is the fundamental law of the land cannot be allowed to remain in a state of suppleness and uncertainty as in the words of Mr. Liaquat Ali Khan (in the speech referred to earlier) the Constitution is to govern the people not only for generations but for centuries" `and' the Constitution, once framed is scarcely changed or modified" that making the validity of its provisions dependent on the result of the interpretations placed on these concepts by Courts of law from time to time pursuant to controversies raised about them every now and then would render the Constitution unstable and make it uncertain. They, accordingly, opted for saddling the -responsibility of giving effect to the true intent of these concepts on the chosen representatives of the people as the chosen representatives the ones who had to frame the Constitution and were also the ones empowered to amend it (subject, of course, to the divine limitation). Indeed, no objection can be taken to adopting this course because the members of the Parliament (Majil-i-Shoora) are equally accountable to God Almighty as are the member of the Court or any other body of persons falling under the category ofUoolul-amr).
28. Accordingly, now if any question is raised in connection with the validity of any existing provision of the Constitution on the ground that it transgresses the limits prescribed by Allah Almighty (within which His people were competent to make laws) such a question can only be resolved by the Majlis-i-Shoora (Parliament), which can, if the plea is well-founded, take the necessary remedial action by making suitable amendments in the impugned provision in order to bring it within the limits prescribed by Allah Almighty."
29. Law declared in case of Hakim Khan (supra) has been followed in case of Muhammad lqbal v.
30. Federation of Pakistan (1993 SCM R 1987). In the casein hand admittedly the requirement of signing of a nomination paper by a seconder and a proposer is provided under the Constitution itself.
31. Therefore, even if the argument of the learned counsel for the petitioner is given some weight which it has not, this Court is not competent to strike down the Constitutional provision and unless and until the said requirements are a part of the Constitution it cannot be said that a nomination paper filed in violation of the said condition is invalid. Consequently, we hold that the order passed by the Returning Officer rejecting the nomination paper of the petitioner is quite in accordance with the provisions of the Constitution which are valid and which cannot be declared to be illegal in exercise of the Constitutional jurisdiction of this Court. This writ petition is also not maintainable for the reasons that the election of the Office of the President is scheduled to be held on 13-11-1993. All the machinery responsible for holding of the said election is in full gear. As per provisions of Article 41, sub-Article (6), the validity of the election of the President cannot be called into question by or before any Court or other Authority. Filing of nomination paper and rejection thereof are steps taken during the course of election of the President. Consequently, the word "election of the President" as used in Article 41, sub-Article (6) shall include the final election as well as a part thereof, hence there is a Constitutional bar on the powers of this Court to call in question the final election of the President or a part thereof in exercise of the Constitutional jurisdiction of this Court as is clear from the provisions of Article 199 of the Constitution itself which provides with the powers under this Article have to be exercised subject to the other provisions of the Constitution. As there is a clear bar of jurisdiction as provided under Article 41(6) of the Constitution of Islamic Republic of Pakistan, 1973, no relief can be granted to the petitioner in exercise of the Constitutional jurisdiction of this Court. In case of Election Commission of Pakistan through its Secretary v. Javid Hashmi and others (PLD 1989 SC 396) wherein at pages 422 and 423 of the report it has been held as under:-- "Here I may point out that the exercise of power under Article 199 cannot be placed on any higher footing than that emanating from Article 225 of the Constitution; and that while the power under Article 199 exercisable by the High Court is `subject to the Constitution' whereas there is no such limitation in Article 225. This Article, by its language creates an independent jurisdiction for the decision of election disputes under the law and its contents, therefore, should be given the fullest meaning irrespective of anything contained in any other Article. More particularly so as it is an essential part of the Parliamentary jurisdiction which under the law entrusts election disputes for decision of the Election Tribunal and in appeal to the Supreme Court whose decision is final both on questions of law and fact. In this connection it would be useful to refer to the case of Theberge v.
32. Laudry, 2 App. Cas. 102, wherein it was pointed out that decisions upon such matters are not decisions of the mere ordinary civil rights; that such an enactment as this section 33 (Quebec Controverted Election Act, 1875) creates an entirely novel jurisdiction, the history of which, in cases where the Legislative Assembly is not itself than created for the first time, has been that the Assembly has, by its own consent, concurred in vesting in the Court these jurisdiction hitherto inherent in itself of determining the status of those who claim to be its members. The jurisdiction is extremely special; it is of a character that ought, as soon as possible, to become conclusive, in order that the constitution of the assembly may be distinctly and speedily known. And there is another reason for finality in such a jurisdiction. It concerns what according to British ideas, are normally the rights and privileges of the assembly itself always jealously maintained and guarded in complete independence of the Crown so far as they properly exist."
33. In case of Khalid Ahmed Khan v. Returning Officer and others (C.P.LA.No.812-L/1990) while deciding the Stay matter on 6-10-1990, their Lordships of the Supreme Court 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:'
34. Resultantly, we see no force in this writ petition, the same hence is dismissed in limine. This detailed order shall be read in continuation and as a part of our short order.