' MUHAMMAD MUNIR KHAN, J.---This appeal arises from the judgment dated 18-1-1994 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Writ Petition No, 2399 of 1993.
2. The facts leading to this appeal, briefly stated, are that Bartha Ram (petitioner), Lala Mehar Lal Bheel (respondent No,1) and eleven others contested election for the reserved seat of Hindus and Scheduled Castes, Provincial Assembly Punjab, held on 9-10-1993. The respondent No,1 was declared elected with lead of 45 votes, vis-a-vis the appellant. Notification of his election was published in the official Gazette dated 18-10-1993. It so happened that after the publication of the aforesaid notification, the appellant filed a petition under sections 103 and 103-AA read with section 39 of the Representation of the People Act, 1976 (hereinafter referred to as the Act) on 2-11-1993 before the Election Commission of Pakistan challenging the election of the respondent No,1 on the ground of wrong counting of the votes. He prayed for the correction of the result by recounting the votes polled in PP-237 Rahimyar Khan-VI declaring him a returned candidate. On this the Election Commission issued notice to the respondent No,1 to show cause as to why the order/notification declaring him as a returned candidate be not reviewed. Before the Election Commission could proceed further, the respondent No,1 filed Writ Petition No, 2399 of 1993 in the Lahore High Court, Bahawalpur Bench, Bahawalpur, questioning the authority/jurisdiction of the Election Commission of Pakistan to entertain the petition of the present appellant or to take cognizance of it. After hearing the parties, the High Court vide impugned order/judgment has declared that after the publication of Notification on 18-10-1993, the Election Commission had become coram non judice under section 103-AA of the Act to seize the matter and the only remedy available to the losing candidate was to have recourse to the Election Tribunal constituted under the Act. Feeling aggrieved thereby, Bartha Ram filed a Petition for Leave to Appeal (No, 63 of 1994) which was allowed on 20-2-1994 to consider whether the learned Judges of the High Court, while holding that after the issuance of Notification in the official Gazette declaring the name of the respondent No,1 as a returned candidate for the seat reserved for Hindus and Scheduled Castes for Punjab, the result of the election could only be challenged through an Election Petition before an Election Tribunal, were justified in holding that the proceedings pending before Election Commission under section 103 read with section 103-AA of the Act became coram non judice.
4. Learned counsel for the appellant relied on sections 103 and 103-AA of the Act and the case reported as Election Commission of Pakistan through its Secretary v. Javid Hashmi and others (PLD 1989 SC 396) to contend--
(i) that in view of the law declared in the case of Javid Hashmi (PLD 1989 SC 396), the High Court should not have interfered with the proceedings in the petition of the appellant pending before the Election Commission;
(ii) that the time limit of sixty days after the publication of notification given to the Election Commission under subsection (2) of section 103-AA of the Act for exercise of powers conferred on it by subsection (1) of section 103-AA of the Act does not apply to the petition pending before the Election Commission, and
(iii) that since the High Court did not decide the writ petition for several months, the appellant could not file petition before the Tribunal in time.
4. Learned counsel appearing for the respondents has supported the judgment of the High Court.
5. We have considered the arguments addressed by the learned counsel for the parties carefully.
On our independent appreciation of the relevant provisions of law and examination of the judgment relied on by the learned counsel for the appellant, we are of the view that in the instant case the only remedy for the appellant was to challenge the election of the respondent through Election Petition before the Election Tribunal constituted under the Act and his petition seeking only the recount of votes before the Election Commission after the issuance of the notification of the name of the respondent as returned candidate was misconceived. That being the position, the High Court was fully justified in declaring the proceedings taken by the Election Commission in the Petition of the appellant coram non judice.
6. The relevant provisions of the law (the Act) and the relevant contents of the petition of the appellant before the Election Commission may be reproduced advantageously:--
(I) Provisions of law "103. Commission to ensure fair election. Etc.--Save as otherwise provided, the Commission may--
(i) stop the polls at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion, intimidation and pressures, prevailing at the election;
(ii) review an order passed by an officer under this Act or the rules, including rejection of a ballot paper; and
(iii) issue such instructions and exercise such powers, and make such consequential orders, as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly, and in accordance with the provisions of this Act and the rules.
103-AA.Power of Commission to declare a poll void,--(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of the record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission may make a declaration accordingly and, by notification in the official Gazatte, call upon that constituency to elect a member in the manner provided for in section 108.
(2) Notwithstanding the publication of the name of a returned candidate under subsection (4) of section 42, the Commission may exercise the powers conferred on it by subsection (1) before the expiration of sixty days after such publication and where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of Tribunal.
(3) While exercising the powers conferred on it by subsection (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter VII, regulate its own procedure.
52. Election petition.--(1) No election shall be called in question except by an election petition made by a candidate for that election (hereafter in this Chapter referred to as the petitioner): ' Proviso (omitted).
(2) An election petition shall be presented to the Commissioner within forty-five days of the publication in the official Gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or Sub-Treasury in favour of the Commissioner, under, the prescribed head of account, as security for the costs of the petition, a sum of one thousand rupees."
57. Appointment of Tribunal.--(1) For the trial of election petitions under this Act, the Commissioner shall appoint as many Election Tribunals as may be necessary.
(2) An Election Tribunal shall consist of a person who has been, or is, or, at the time of his retirement as a District and Sessions Judge, was qualified to be, a Judge of High Court.
(II) Relevant contents of the election petition, para. 7--- ' That the difference between the votes of the petitioner and the respondent No,11 is only of 45 votes and had the votes been counted correctly, the petitioner would have been declared as returned candidate.
Prayer "It is, therefore, respectfully prayed that the relevant record may be called for, the votes of the petitioner for PP-237 Rahim Yar Khan-VI be recounted, the result of the respondent No,11 be declared as void and the petitioner be declared as successful/returned candidate."
7. The words "Save as otherwise provided" used in section 103 of the Act will show that if something otherwise is provided in the Act, then this section will not apply. Furthermore, the reading of clauses
(a) to (c) of this section will show that this section deals with the power of the Commission at the time of election. In the petition filed by the appellant before the Election Commission no prayer for the review of the order passed by a particular officer has been made. In the Election Petition his only grievance was that the votes were not counted correctly.
8. As regards section 103-AA, the reading of this section will also show that this section would apply when by reasons of grave illegalities or violation of the provisions of the Act or the rules the poll in any constituency is sought to be declared void. In the petition pending before the Election Commission, the allegations of grave illegalities and violation of the provisions of the Act or rules have not been levelled by the appellant. So, the petition of the appellant before the Election Commission for recounting of the votes on account of the mistake in the counting of the votes does not fall within the ambit of section 103-AA of the Act. We feel that since the case of the appellant before the Commission is not covered by subsection (1) of section 103-AA, subsection (2) of section 103-AA which authorises the Commission to exercise powers conferred on it by subsection (1) of section 103-AA before expiry of sixty days is also not attracted and the correct legal position is that after the publication of the name of the respondent as a returned candidate in the official Gazette on 18-10-1993, the only remedy available to the appellant was to file an Election Petition as provided under section 52 of the Act before the Election Tribunal appointed under section 57 of the Act. The case-law cited by the learned- counsel for the appellant does not apply to the facts of the present case. The provisions of sections 103 and 103-AA of the Act have not been discussed therein. Section 52 of the Act is expressed in the negative form to exclude the jurisdiction of all other forums, including the Election Commission, to call in question election, by a candidate for that election, except by an Election Petition to be presented to the Commissioner within forty-five days of the publication in the official Gazette of the name of the returned candidate. The submissions made by the learned counsel for the appellant did not make out a case for interference in the impugned order/judgment.
9. The upshot of the above discussion is that there being no merit, the appeal is dismissed. No order is made as to costs.