NASIR-UL-MULK, J.---Syed Murad A.I Shah, an unsuccessful candidate in the election to the Senate of Pakistan, held on 2-3-1994 for a general seat from the North-West Frontier Province, has by this Constitutional petition challenged the order of the Returning Officer dated 2-3-1994 declaring respondent No. 3, Mr. Sartaj Aziz, elected instead of the petitioner and the appellate order of the Chief Election Commissioner, dated 7-3-1994 whereby the petitioner's appeal against the order of the Returning Officer was dismissed. He has prayed that he be declared elected.
2. Beside the petitioner there were 14 candidates for the Senate's seven general seats that were to be filled up from N. W. F. P. In the aforesaid election. At the polling, a total number of 82 votes were polled by members of the N. W. F. P Assembly, which forms the electorate for elections to the Senate. One vote was rejected as invalid, thus 81 valid votes were made the basis for determining the quota sufficient to secure the return of a candidate in accordance with the procedure prescribed by rule 25 of the Senate (Election) Rules, 1975 (for the sake of brevity hereinafter referred to as the Senate rules). This quota was ascertained to be 1013 and was arrived by assigning the value of 100 to each valid vote, thereafter totalling the value of total valid votes polled; 100 x 81 = 8100, then dividing this total by a number exceeding by one the number of seats to be filled, that is, 7 + 1 and finally adding one to the quotient, ignoring the remainder.
3. Seven of the candidates, respondents 6 to 18 herein did not receive any vote and were excluded by the Returning Officer in the first count. The value of ballot papers credited to each of the remaining candidates in the first count on the basis of the number of first preference votes received by them were as follows:--- (1)Mr. Waqar Ahmad Khan 1300 (2)Mr. Mir Afzal Khan 1200 (3)Mr. Ajmal Khattak 1200 (4)Mr. Sartaj Aziz (respondent No. 3)1000 (5)Mr. Azam Khan 1000 (6)Syed Muhammad Jawad 1000 (7)Syed Murad Ali Shah (petitioner)800 (8)Syed Qasim Shah 600 Thus, only three candidates, namely, Waqar Ahmad Khan, Mir. Afzal Khan and Ajmal Khattak, respondents 5, 6 and 7 respectively managed to poll enough votes to reach the required quota and were thus declared elected in the first count. After, the first count, four seats remained to be filled from the five candidates left in the field. In the subsequent counts, the surpluses left over and above the quota from the candidates already elected were transferred to the continuing candidates under the provisions of Rule 27 of the Senate Rules according to the preference indicated on the un-exhausted ballot papers of those elected candidates. By this process Syed Qasim Shah, respondent No. 4 and Syed Muhammad Jawad, respondent No. 9 got elected in the third count while Muhammad Azam Khan respondent No. 8 was declared elected in the 4th count, leaving the petitioner and respondent No. 3 to compete for the 7th seat. In the 5th count, Syed Qasim Shah's surplus of 43 was transferred to the petitioner on its new face value of 42, thus increasing the score of the petitioner from 800 to 842. There was no change in the 6th count but in the 7th count the surplus of 167 of Muhammad Azam Khan was transferred to the petitioner at a reduced value of 156 on account of loss due to fraction by application of clause 8 of Rule 27 of the Senate rule, which runs as under:--- "If the total value of the un-exhausted paper is greater than the surplus, the Returning Officer shall transfer each paper in each sub-parcel of un-exhausted paper to the continuing candidate indicating thereon as the voters next preference and the value at which each paper shall be transferred shall be ascertained by dividing the surplus by the total number of un-exhausted papers (fractional remainders being disregarded) except that the consequential loss of the value shall be noted on the result sheet."
By the 8th count all the surpluses were exhausted and the petitioner had to his credit votes of the value of 998 while respondent No. 3's score stood at 1000. By applying Rule 30 of the Senate Rules, the Returning Officer transferred the votes of the petitioner to respondent No. 3 as the value credited to the latter exceeded the value of the votes secured by the former. Consequently, respondent No. 3 was declared elected.
4. The petitioner not content with the result, preferred an appeal before the Chief Election Commissioner of Pakistan under section 32 of the Senate (Election) Act, 1975 (hereinafter called as the Senate Act) wherein both the vires of the Senate Rules and the application of Rule 27, whereby the Returning Officer had disregarded the fraction at the time of transfer of surplus to him in the 7th count were questioned.
5. On the latter plea the petitioner's case was that in the 7th count surplus of 167 gathered from the 12 un-exhausted ballot papers of Muhammad Azam Khan, was to be transferred and since the petitioner had the next preference on all those un-exhausted papers his grouse was that the Returning Officer instead of transferring the surplus as a whole subjected it to the provisions of clause 8 of Rule 27 of the Senate Rules whereby the 167 surplus was divided by 12, that is, 167/12 = 13.9166, the fraction was ignored and each vote was transferred on its new face value of 13. Thus, 13 x 12 = 156 value was transferred to the petitioner. As a result the petitioner's score at the end of the seventh count totalled 996. Had the surplus of 167 as a whole been transferred to the petitioner, the value of his votes would have been 1009 and thus exceeded the 1000 score of respondent No. 3 and by application of Rule 30 of the Rules would have been declared elected.
6. The Chief Election Commissioner dismissed the appeal and held that the Returning Officer had rightly applied clause 8 of Rule 27 in the 7th count by disregarding the fraction while ascertaining the value of each paper to be transferred. On the plea of vires, it was held, "the appeal under section 32 of the Senate Act was maintainable, against count only and thus the vires of the Rules cannot be challenged therein".
7. The Chief Election Commissioner of Pakistan (respondent No. 1) and the Returning Officer (respondent No. 2) have filed separate comments while respondent No. 3 has filed written statement to the writ petition. In his written statement respondent No. 3 has taken a preliminary objection to the maintainability of the Constitutional petition in view of the bar under Article 225 of the Constitution, which provides 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)."
8. At the hearing of the petition too the learned counsel Mr. Muhammad Akram Sheikh, Advocate for respondent No. 3 addressed us on the preliminary objection and contended that after giving meaning of wide import to the word `election' appearing in Article 225 the Supreme Court of Pakistan in the case of Election Commission of Pakistan v. Javaid Hashmi (PLD 1989 SC 396) held that all election matters are to be adjudicated upon through election petition by Election Tribunal and that the Constitutional jurisdiction of the superior Court in such matters was excluded. The learned counsel also referred to Mukhtar Hussain Shah v. Wasim Sajjad (PLD 1986 SC 178) wherein the Supreme Court held that election dispute regarding Senate election were to be decided by an Election Tribunal through an election petition constituted under the Senate Act; 1975 even if the Chief Election Commissioner had exercised appellate powers under section 32 of the said Act.
9. Controverting the arguments of the learned counsel for respondent No. 3, Mr. K.MA. Samdani, Advocate, counsel for the petitioner argued that the august Supreme Court in Ghulam Mustafa Jatoi v. Additional District and Sessions Judge (1994 SCM R 1299) while reiterating the principles enunciated in Javed Hashmi's case had made an exception thereto by holding that where the order of an Election Functionary made during the process of election or after its completion is patently illegal or without jurisdiction and has the effect of disfranchising a candidate, he can invoke the Constitutional jurisdiction of the High Court. The learned counsel added that plea as to the ultra vires of the Senate Rules on the ground of its being hit by the doctrine of excessive delegation of powers which has been taken up in this petition is outside the ambit of an Election Tribunal, constituted under Article 225 of the Constitution read with Article 38 of the Senate Act. It was further contended that election petition in the present case was not competent as under clause (b) of subsection (1.) of section 36 of the Senate Act, election petition is required to contain full particulars of corrupt or illegal practices or other illegal acts alleged to have been committed during the election, which according to the learned counsel for the petitioner confines election petition to matters relating to corrupt practices whereas the petitioner has not alleged any corrupt or illegal practice. It was further maintained that election petition was barred under subsection (2) of section 31 which provides that an appeal under section 32 of the Act to the Chief Election Commissioner against a count would be a bar to an election petition under section 34 of the Act whereas the petitioner had availed his right of appeal against the count.
10. Besides submissions on jurisdiction the learned counsel for the parties had addressed elaborate arguments on the merits of the case.
11. On behalf of the petitioner, broadly speaking, two-fold arguments were advanced on merits.
Firstly; that the Senate Rules were not competently framed and secondly, and in the alternative, that the said Rules have been misapplied, which if correctly applied, would have resulted in the election of the petitioner instead of respondent No. 3.
12. For the first contention, the learned counsel for the petitioner referred to Article 59 of the Constitution which provides the mode of election to the Senate, clause 2 of which reads:--- "Election to fill seats in the Senate allocated to each Province shall be held in accordance with the system of proportional representation by means of the single transferable vote."
It was contended that the framers of the Constitution failed to define the system of proportional representation by means of single transferable vote and left it to the Parliament under Article 222 of the Constitution to provide by law, inter alia, for the conduct of elections, election petitions and dispute arising in connection with the elections. That although the Senate Act was enacted yet the system was not spelt out therein which, under section 88 of the Act, was left to be defined by rules to be framed by the Federal Government in consultation with the Chief Election Commissioner. It was argued that the Senate Rules framed under section 88 were ultra vires Article 222 of the Constitution in that the same were the result of abdication by Parliament of its legislative powers as Article 222 had delegated powers to Parliament to provide "by law" for the conduct of election to the Senate. The learned counsel for the petitioner in this context made reference to the Constitutional provisions of Indian Constitution. Article 80 and Article 327 contain materially similar provisions to Articles 59 and 222 of our Constitution. However, in the Indian Representation of the People Act, 1950 which also deals with the election to Senate, by an amendment in 1961, subsection
(3) was added to section 8 of the Act which provides for review by Parliament of the Rules framed under the Act. It was thus contended that in India the Parliament has by adding this provision retained control over the Rule making under the Act whereas the Senate Act of 1975 does not contain a similar provisions. It was urged that the proportional representation by a single transferable vote operate differently in different countries and thus it was essential for the Parliament to have clearly defined the manner in which the system was to operate in. Our country.
13. As to the application, rather misapplication, of clause 8 of Rule 27 of the Rules it was maintained by the learned counsel for the petitioner that the said rule was inapplicable to the transfer of surplus of Muhammad Azam Khan to the petitioner in the seventh count. That the necessity for application of the Rule arises only when the surplus of an elected candidate is to be distributed amongst more than one continuing candidate while there was no occasion for applying the rule in the present case as the petitioner was the sole recipient of the entire surplus of Muhammad Azam Khan.
14. On the question of ultra vires of the Senate Rules the learned counsel for respondent No. 3 argued that the said rules are not hit by the doctrine of excessive legislation as they have been framed in the light of Article 59(2) read with clause (d) of subsection (2) of section 1 of the Senate Act, 1975 which defines the system adequately as the proportional representation by a single transferable vote is a system that is universally recognised and understood: It was pointed out that the rules are neither ultra vires the Constitution or the Senate Act nor against the spirit of the system of proportion representation as envisaged by Article 59 of the Constitution. That if the rules are declared ultra vires the system will collapse as there will be no rules in existence to regulate conduct of elections to the Senate. It was maintained that in any case the Rules cannot be declared ultra vires as no prayer to that effect has been made in the petition. On the application of the clause 8 -of Rule 27 of the Rules, it was contended that this was the only rule which prescribed the mode by which surplus is to be transferred to continuing candidates and is applicable to all transfer of surplus value, whether to a single or multiple recipients. That as under section 13 of the General Clause Act, 1897 "words in singular shall include the plural and vice versa" the "continuing candidates" used in clause 8 of Rule 28 will include `continuing candidate' and thus the Rule applies even if all the surplus is to be received by a single candidate.
15. The learned Deputy Attorney-General Mr. Saadat Hussain appearing for the Federation of Pakistan supported the petition on the ground of application of clause 8 of the Rule 27 and adopted the arguments advanced by the learned counsel for the petitioner but opposed the petitioner's plea regarding the Senate Rules being ultra vires. Mr. Haider A.I, Advocate, representing the Chief Election Commissioner and the Returning Officer, opposed the petition in toto.
16. The foremost question which would require determination is the jurisdiction of this Court under Article 199 of the Constitution in the matter before us in view of Article 225 of the Constitution which provides that no election to a House of Parliament can be called in question except by an Election Petition to an Election Tribunal to be established by an Act of Parliament. The leading judgment on the interpretation of Article 225 is that of the august Supreme Court in Javed Hashmi's case in which Election Commission of Pakistan had challenged the exercise of Constitutional jurisdiction by the Lahore High Court in a matter relating to preparation of list of polling staff for the polling in a bye-election in a National Assembly Constituency. Two important questions relating to election to a House of Parliament were resolved by their Lordships relating to definition of the word "election" appearing in Article 225 of the Constitution and the limits the said article imposes on the Constitutional jurisdiction of the superior Courts "Election", it was held, refer to the entire process consisting of several steps taken for its completion which have a bearing on the result of the process. Regarding mode of litigative challenge to an election, their Lordships referred to the words "except by an election petition" in Article 225 and held:-- "It is, therefore, that the Constitutional provision is expressed in the negative form to give exclusive jurisdiction to the Tribunals appointed by the Election Commissioner and thus to exclude or oust the jurisdiction of all Courts in regard to election matters and to prescribe only one mode of challenge."
17. Laying emphasis on the word "No" with which Article 225 opens the Supreme Court observed, "Article 225 vests a right to challenge the election and lays down the method for its enforcement through an Act which is a Constitutional mandate by use of the word "No" a negative imperative." It was finally concluded: "The above discussion leads me to conclude that there can be a challenge to the election by one mode, that is by .An election petition and that too after the election process is completed:" As to the jurisdiction of the High Court under Article 199 in election matters the Supreme Court held:--- "Article 225 is not controlled by Article 199 and there is also no occasion to have recourse to the satisfaction of there not being an adequate remedy. Article 225 by its mandate creates an independent jurisdiction for redress of grievance in election disputes and it is in the exercise of that jurisdiction that all questions of law and fact are decided by the Tribunal after the elections are over and not at intermediate stage against which an appeal lies to the Supreme Court whose decision is final. In this milieu there cannot be any justification for the exercise of power under Article 199:"
18. The Supreme Court thus set aside the judgment of the High Court by holding that the order of change in the polling personnel was without lawful authority and the High Court could not in the exercise of its extraordinary jurisdiction grant it having regard to Article 225 of the Constitution and the Act. The interpretation placed in Javed Hashmi's case on Article 225 came under scrutiny of Supreme Court lately in Ghulfn Mustafa Jatoi's case where the appellant, a candidate for NA. 158 Constituency in the General Elections held in autumn 1993 challenged the deletion of his name by the Returning Officer from the list of candidates on the ground that he was a defaulter. His writ petition was dismissed on the ground of incompetency by the High Court on the basis of the principle laid down in Javed Hashmi's case. The Supreme Court reversed the judgment of the High Court, accepted the appeal and held:--- "The upshot of the above discussion is that generally in an election process the High Court cannot interfere with by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution.
However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of an election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to disfranchise a candidate, he can press into service Constitutional jurisdiction of the High Court. The majority view in the case of Election Commission of Pakistan v. Javed Hashmi (supra) is not applicable. We may clarify that we do not intend to overrule the above majority view in the above case."
19. The august Supreme Court thus while reiterating the rule in Javed Hashmi's case, made an exception thereto by holding that a candidate can invoke the Constitutional jurisdiction of the High Court where there is no other remedy available to him and the order of the election functionary is not only patently illegal but has disfranchised the candidate. However, all the three conditions laid down by the Supreme Court -must co-exist before the Constitutional jurisdiction of the High Court can be invoked in election matters. In the present case, at least two of those conditions do not exist.
Firstly, the petitioner participated in the elections to the Senate and was thus not disfranchised.
Secondly, the petitioner has a remedy available to him by way of filing an election petition under section 38 of the Senate (Election) Act, 1975.
20. While dealing with the question of alternative remedy, their Lordships in Ghulam Mustafa Jatoi's case were impressed by the fact that section 68 of the Representation of-the People Act, 1976, which enumerates the grounds on which the election of a returned candidate can be declared void by an election petition, does not admit the filing of a petition by a candidate whose nomination papers were illegally rejected and who could not participate in the elections on that count. On the other hand, the petitioner before us has prayed that he be declared elected which can be granted to him under section 50 of the Senate Act which runs as follows:--- "50. Ground for declaring a person other than a returned candidate elected.---The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected."
The case of the petitioner thus does not fall within the exception enunciated in Ghulam Mustafa Jatoi's case to the principle laid down in Javed Hashmi's case.
21. The petitioner had filed an appeal under section 32 of the Senate Act before the Chief Election Commissioner and the case of the petitioner is that section 31 of the Act debars election petition on the same subject-matter. Section 24 of the Senate Act reads as follows:--- "24. Proceedings at the close of poll.---(1) Immediately after the close of poll, the Returning Officer shall proceed with the counting of votes in the prescribed manner.
(2) On the completion of counting, the Returning Officer shall prepare and certify a return of the election and submit the same to the Commissioner in the prescribed manner."
Section 32 of the Act provides for an appeal -to the Commissioner against the count by the Returning Officer made under section 24 of the Act. Section 31 of the Act which provides for challenge to election of the Senate runs as under:--- "31. Election not to be questioned except bar election petition or anneal.----(1) Save as provided in section 32, no election shall be called in question except by an election petition under section 34.
(2) No question that can be settled in an appeal under section 32 shall be raised by an election petition or before any Court or authority whatsoever nor shall any question that can be raised by an election petition be raised before any Court or authority other than an Election Tribunal."
Section 34 of the Act provides for presentation of an election petition to the Commissioner. The effect of the aforesaid statutory provisions came under discussion of the Supreme Court of Pakistan in Mukhtar Hussain Shah v. Wasim Sajjad and others PLD 1986 SC 178 where an objection was raised that election petition before the Chief Election Commissioner was not competent once the remedy under section 32 of the Senate Act was availed. Rejecting this contention it was held that on "no hypothesis can the Commissioner pre-empt the powers and functions of the Election Tribunal nor do the power and jurisdiction of the Election Tribunal get affected in dealing with an election dispute, by what the Commissioner has done in the matter of counting or in deciding an appeal under section 32 of the Act". In order to provide for the elections to the Houses of Parliament and the Provincial Assemblies announced to be held soon after promulgation of Martial Law in 1977, the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 (President's Order No. 5 of 1977) was promulgated, Article 16 of which provided that the provisions inter alia, of the Senate Act regarding conduct of elections amongst other matters, shall apply only if they are not inconsistent with its provisions. Article 14 of the said President Order further provided:--- "14.Election dispute.---Save as provided in Article 13, 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 is provided for in the Representation of the People Act, 1976 (LXXXV of 1976)."
Article 13 confines itself to the powers of the Commission to declare a poll void on a summary inquiry by reason of grave irregularity or violation of the provisions of the Representation of the People Act, 1976. Section 52 of the Representation of the People Act, 1976 further provides:--- "No election shall be called in question except by an election petition made by a candidate for that election:"
It was the examination of these statutory provisions that led the august Supreme Court to hold: .
"The upshot of these statutory provisions is that the challenge to an election is possible only by an election petition and further that such election petition is to be disposed of by an Election Tribunal appointed by the Commissioner (section 57 of LXXXV of 1976 and section 38 of the Senate Act)."
22. The learned counsel for the petitioner has contended that the Houses of Parliament and Provincial Assemblies Order of 1977 was applicable to the elections of 1985 alone as its clause (2) of Article 1 provides: "It shall apply only in respect of the forthcoming elections to the House of Parliament and the Provincial Assemblies."
It was thus contended that the 1985 Senate Elections were the only elections to the Houses of Parliament held after the promulgation of the said President Order and thus it has outlived its utility and is inapplicable to elections held thereafter and thus could not be applied to the Senate Elections in question. The learned counsel, however, failed to note that clause (2) of Article 1 of the said President Order has been omitted by Houses of Parliament and Provincial Assemblies (Election) (Amendment) Order, 1984 (President Order No. 8 of 1984). Therefore, President Order No. 5 of 1977 was not any more restricted to the one election to be held after 1977 but is applicable to all elections to the Houses of parliament and the Provincial Assemblies. Thus, the principle laid down in Mukhtar Hussain Shah's case has not lost its utility and is with equal force applicable to the present case. Resultantly, the appeal made by the petitioner to the Chief Election Commissioner under section 32 of the Senate Act is not a bar to the election petition under section 34 of the Act.
23. In Mukhtar Hussain Shah's case the Supreme Court's conclusion that the election petition was competent despite the provisions of sections 31 and 32 of the Senate Act were based not only on the provisions of President Order No. 5 of 1977 but also on the strength of Article 225 of the Constitution. The Supreme Court did not accept the contention that the Commissioner who heard the appeal against the count under section 32 of the Senate Act acted as a Tribunal under the Act.
Thus, even without recourse to the provisions of President Order No. 5 of 1977 the only mode provided for challenging election to a House of Parliament under Article 225 of the Constitution is by way of Election Petition to an Election Tribunal. Being a Constitutional requirement, it would override any inconsistent 'provision in any sub-Constitutional legislation.
24. Any doubt that may have been entertained regarding the forum to approach for redress when one forum is provided for by the Constitution and another by a sub-Constitutional legislation has been removed by the Supreme Court of Pakistan in the recent judgment delivered in two connected Civil Appeals Nos. 381 and 382 of 1994 titled Pir Sabir Shah v. Shad Muhammad PLD 1995 SC 66 and Pir Sabir Shah v. Akhtar Hussain Shah, respectively, disposed of by a short order, dated 16-11-1994, detailed judgment wherein has since been released. The Supreme Court in the said appeals, filed against the order of the Election Commission of Pakistan, which had declined to disqualify two M.P.As. Of the N. W. F. P. Assembly on a reference under subsection (2) of section 8-B of the Political Parties Act, 1962, had to resolve the question as to whether the Election Commission was competent to deal with the reference in view of clause (2) of Article 63 of the Constitution which empowers the Chief Election Commissioner to resolve the question of disqualification of a member of the Parliament on a reference by the Speaker. By a majority it was held that section 8-B of the Political Parties Act, 1962, which provides reference to the Election Commission, was ultra vires the Constitution to the extent of forums only as the said provision was in conflict with Article 63 of the Constitution in which forum of the Chief Election Commissioner is specifically provided.
The decision was based on the principle that where there is conflict between the Constitution and subordinate law, the Constitution shall always prevail to the extent of conflict. On the strength of this rule, the provisions of Article 225 of the Constitution shall prevail over any other subordinate legislation providing a different forum for challenging election to a House of Parliament. Thus, section 32 of the Senate Act, which has provided appeal to the Election Commissioner against the count of votes is not a remedy envisaged by Article 225 of the Constitution for challenging the elections of a returned candidate.
25. The Election Tribunal constituted under section 38 of the Senate Act, has, under section 45 of the Act, the powers of a Civil Court under the Code of Civil Procedure when disposing of an election petition. Therefore, as a Civil Court the Election Tribunal is empowered to look into the vires of the Rules. Besides vires of the Rules, the petitioner has alternatively questioned their application, which for the reasons aforementioned can be challenged only through an election petition. As both the points can be raised in an election petition before an Election Tribunal, the contention that the petitioner has no alternative adequate remedy is unfounded.
26. In light of the foregoing discussion, we are constrained to hold that the Election Tribunal constituted under the Senate Act has the exclusive jurisdiction to provide redress to the petitioner as the Constitutional jurisdiction of the High Court, in the subject-matter of the petition relating to elections is excluded by Article 225 of the Constitution. Consequently, this writ petition is dismissed.
However, we leave it to the Election Tribunal to condone the delay if any in the filing of the election petition by the petitioner in view of the present litigation before this Court in the event he decides to file an! Election petition. There shall be no order as to costs.
Above are the detailed reasons for our short judgment dated 7-12-1994.