' AMIR-UL-MULK MENGAL, J.---This petition---under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the "Constitution)" has been filed by one Khuda Bakhsh, resident of Goth Nabi Bakhsh, District Jaffarabad in the capacity of a voter in National Assembly Constituency NA-203 Nasirabad/Jaffarabad having vote No, 109, Electoral Unit Gazzi, Halqa Gander, Tehsil Jhatpat, District Jaffarabad.
2. Relevant facts are that respondent Mir Zafarullah Khan Jamali contested the election for the membership of National Assembly of Pakistan from the said Constituency and was declared successful returned candidate. As such his name was notified as a Member of the National Assembly of Pakistan and he took oath of his office as a Member from the said constituency. The grievance of the petitioner is that at the time of submission of his nomination papers for National Assembly elections before the Returning Officer, the respondent was a defaulter of several financial institutions. It is further averred in the petition that on 2-10-1991 as regards loan advanced by United Bank Limited an order was passed by a Judge of Balochistan High Court resulting in a decree and the same was not satisfied, therefore, the respondent was disqualified at the time of filing of nomination papers to be a candidate for contesting elections of National Assembly. In this regard the respondent failed to file a declaration as envisaged under section 12 of the Representation of the People Act, 1976 (hereinafter referred to as the "Act"). The respondent did not file a correct and true statement of account as to his assets and liabilities. He thus has committed a corrupt and illegal practice as envisaged under section 78 (3) (d) of the Act and he stood disqualified under section 99(IA) (1) and liable to be punished under section 82 of the Act. On the basis of such averments the petitioner has sought the following relief:- "It is, therefore, most respectfully prayed that the nomination of the respondent as a duly nominated candidate, his election and declaration as a successful candidate and the Notification declaring him as a Member of the National Assembly and his continuance to hold the membership of the National Assembly be declared to be illegal, void, without any lawful authority and jurisdiction and the petitioner be directed to be removed from the membership of the National Assembly of Pakistan. Any other relief deemed just and proper in the circumstances of the case may also be granted."
' However, in view of the bar contained in Article 225- of the Constitution for challenging election of a member of the parliament, it was thought proper to issue pre-admission notice to Advocate- General Balochistan and an order was accordingly passed on 27-4-1995 and the matter came up for hearing on 22-5-1995.
3. Heard Mr. Abdul Bashir Qureshi, Advocate assisted by Mr. Amanullah Kanrani, Advocate and Advocate-General, Balochistan, assisted by Mr. Abdul Karim Khan Yousufzai, Advocate.
4. The counsel for the petitioner urged that the petition be admitted for regular hearing as the respondent was not entitled to be declared as a winning candidate as well as he is not entitled to hold the office of a member of National Assembly of Pakistan on account of inherent disqualifications from being chosen and from remaining a member of the Parliament as he was a defaulter within the meaning of subsection (2) of section 12 of the Act. Since the respondent failed to file a correct declaration within the meaning of subsection (2) of section 12 of the Act and instead he submitted a false statement of account of his assets and liabilities and suppressed his ineligibility, thus he was not qualified to contest elections or to remain as a member of the National Assembly of Pakistan. The respondent has committed a corrupt and illegal practice as stipulated under section 78 (3) (d) of the Act, therefore, he is disqualified under section 99 (IA) (1) and is liable to be punished under section 82 of the Act. Learned counsel also invited our attention to Article 63
(P) of the Constitution and submitted that the respondent stood disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament).
5. On the other hand learned Advocate-General seriously contested the arguments so advanced.
According to him the petitioner has not come with clean hands because he has not disclosed all the relevant facts in the memo. Of petition. It was further submitted that petitioner is not at all an aggrieved party and that as an elector he could raise objections to the acceptance of nomination papers at the time of scrutiny as well as an appeal could be filed before the Tribunal under section 14(5) of the Act against acceptance of the nomination papers. It was argued that the respondent himself filed an appeal before the Tribunal constituted for the purpose and his election appeal was registered as Election Appeal No,1 of 1993 and was decided by the Tribunal comprising of two Judges of the High Court vide order dated 12-9-1993. From perusal of the said judgment it appears that same objection has been raised. It was further observed in the judgment that the Returning Officer was cognizant of the fact that loans were outstanding against the appellant (respondent in this petition) but he gave an undertaking in writing that he shall pay the outstanding loans before 13-9-1993, hence he was allowed to return the loans and it was ordered that his name shall be included as a candidate in the list of candidates issued by the Commission in terms of section 15(2) of the Act. This order/judgment was not challenged by any body and attained finality. So much so that no objection was raised and no election petition was filed within the meaning of section 52 of the Act by the losing candidates. Learned A.-G. Further submitted that a writ in the nature of quo warranto is not maintainable particularly on the grounds urged in the petition.
6. v Firstly it may be observed that the question about maintainability of the petition on the ground that petitioner should be an aggrieved party is not applicable in a writ of quo warranto, because the nature of the petition is like an information to the Court which can be given by any person, thus the bar that the person applying should be an aggrieved party does not apply to the petition for a writ of quo warranto. Therefore, any person may apply as the enquiry initiated relates to a matter in which the public are interested. However, the other conditions of Article 199 of the Constitution are applicable in case of writ of quo warranto namely adequate remedy or discretion of the Court. As such when the law under which a person holds an office provides a remedy, proceedings under the quo warranto will not be maintainable and the other remedy within its scope would replace quo warranto.
7. We also do not agree with learned Advocate-General that quo warranto is not issued in case of franchise or in respect of a member, who has been elected. However, a writ of quo warranto cannot be issued against a member where the statute itself provides adequate remedy.
8. As stated hereinabove the Act specifically provides remedy for determination of questions as raised before us. At the time of filing of nomination papers, a candidate, his proposer, or seconder or an elector may raise objections on various grounds including the ground that the candidate is disqualified within the meaning of Article 63 of the Constitution. Thereafter an appeal under section 14(5) of the Act is provided for if the objection of disqualification did not fmd favour with the Returning Officer, to a Tribunal now comprising of two Judges of the High Court. Besides, after declaration of the election result as well as when a notification is issued, the same can be challenged by two ways. In the former case by filing election petition before Election Commission of Pakistan and in the latter by an Election Petition before the Tribunal constituted for the purpose.
These are all adequate remedies provided by the Act under which the election of the respondent was held.
9. In case of Haji Khizar Hayat v. Sarfraz Khan and another as reported in PLD 1968 Lahore 381, the petitioner wanted the Court to issue quo warranto regarding election as Member of Electoral College of Pakistan and same was refused on the ground that remedy against such person lies only by way of filing an election petition. Similarly another ground was the allegation as regard age, was not admitted as the same required elaborate enquiry. The relevant observations may be of benefit and are reproduced as under:-- "The case of the petitioner is that the respondent was not 25 years of age and as such was not qualified to contest the election. The dispute as to the age of the respondent, of course, arises in connection with the election, and can be valid ground for an election petition under section 58 of the Electoral College Act. Under clause (1) of Article 171, this dispute cannot be decided otherwise than under such a law and the validity of such an election cannot be called in question except in accordance with such a law. The High Court under Article 98 can assume jurisdiction only subject to the Constitution. Since Article 171 of the Constitution read with section 60(1) of the Act, creates a bar for the decision of such disputes except by the Election Tribunal, the High Court cannot decide under article 98(2) any dispute about the election. That being so, a person who is elected under the Constitution whether as a member of the Electoral College or a member of the Legislature cannot be required by the High Court on the application of any person to show under what authority he claims to hold that office because it is in fact a challenge of the election itself. What is in fact alleged in such cases is that a person has not been validly elected for an inherent defect, either on account of a lack of qualification or that he was disqualified to be elected. The remedy against such a person is only by an election petition. This point can be examined from another angle also. If the High Court calls upon a person who is so elected to show under what authority of law he claims to hold that office, the respondent can refer to the provisions of the Electoral College Act and say that he was so elected. He will thus show the authority. If any person wants to go beyond it, he will have, of course, to challenge the election and an election cannot be challenged except by an election petition as is contemplated in section 60 read with Article 171 of the Constitution."
' Besides the Constitution provides in Article 225 that no election to a House or a 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). Since the Constitution clearly provides that Election to the Parliament or Provincial Assembly can only be challenged through an election petition, therefore, the High Court would not issue a writ of quo warranto on an application of any person as regards the member calling upon him to show under what authority he is holding the office of membership of an Assembly.
' The question that a member was disqualified from contesting election can be decided by a Tribunal constituted for the purpose within the meaning of Article 225 of the Constitution, therefore, this writ is not maintainable and has been incompetently filed before us.
' Further the issue of writ of quo warranto is discretionary with the Court. In this regard we can safely rely on PLD 1963 SC 203, wherein it was observed as under:-- "At the same time, the issue of a writ of quo warranto is discretionary with the Court. It is not a writ of right."
Even otherwise, as observed above, issuance of a writ in the nature of quo warranto is discretionary with the Court. While issuing such a writ, the consequences flowing from the same have to be kept in mind. If it is allowed at such a belated stage, then any voter can challenge the membership of the Parliament on the basis of any disqualification in writ which, of course, cannot be issued readily as the consequences would be far-reaching. Furthermore the Constitution and the law are quite clear on the subject and remedies provided therein. We are, therefore, not inclined to exercise our discretion in favour of the petitioner.
' For foregoing reasons the present petition is not maintainable and as such is dismissed in limine.
' These are the reasons for our short order announced yesterday i,e, 22-5-1995 in the open Court.