' JAVED IQBAL, J.---By this Judgment we propose to record reasons of our short order dated 5-10- 1993.
' This Constitutional Petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, by the petitioner Muhammad Asim Kurd through his attorney, against the order passed by Tribunal constituted by Election Commission of Pakistan under section 14 of the Representation of People Act, 1976. It is worth mentioning that the Returning Officer, PB-24 Bolan-I (Dhadar) had rejected the Nomination Papers of the appellant on the alleged involvement in heinous cases under Prohibition (Enforcement of Hadd) Order, 1979, 302, P.P.C., and other non-bailable offences.
Order dated 2-9-1993 passed by the Returning Officer is reproduce hereunder for ready reference:- - "The candidate is involved in heinous crimes cases like Prohibition Order, 1979, 302 P.P.C., and other non-bailable offence with maximum punishment prescribed under the relevant clauses of P.P.C. He has been declared proclaimed offender by the Special Court for Speedy Trial, Balochistan and perpetual warrants of arrest have also been issued against by the said Court. The Advocate 'appearing on behalf of the Candidate has referred to clauses-34 Manual of Instructions, section 99(h) of Act, 1976. In my opinion he is known drug baron and his inclusion as a candidate has been objected upon by other candidates and if allowed to be done will attract annoyance of public at large. The nomination paper on the abovementioned grounds is hereby rejected."
' The appeal filed in this regard was also rejected by the Hon'ble Election Tribunal vide its Judgment dated 13-9-1993, hence this petition.
2. It is mainly contended on behalf of the petitioner that legal and factual position has not been appreciated by the Election Tribunal and moreso, the Provisions as contained in Article 63(1) (G) of the Constitution of Islamic Republic of Pakistan cannot be invoked as the absconsion does not amount to ridicule judiciary. It is further pointed out that the petitioner was elected as Member of Provincial Assembly Balochistan, from some constituency in the previous General Elections held in the year 1990 and was a sitting member of the Balochistan Assembly until its dissolution. The said constituency was then known as PB-24 Karachi-I from where the petitioner obtained the highest number of votes. It is also contended that the case in which perpetual warrants have been issued, the same was registered by Pakistan Narcotics Control Board on 4-1-1991, under Provisions of Articles 3, 4 and 26 of Prohibition(Enforcement of Hadd) Order, 1979, but the name of the appellant is conspicuous by its omission therein and furthermore, that the petitioner is not involved in any other case registered under local or Special Laws. It was further pointed out that the petitioner has no concern with the business of Drug much less to be characterised as Drug Baron.
3. The learned Standing Counsel appeared on behalf of Election Commission of Pakistan and learned Advocate-General, who represented the State have vehemently objected to the maintainability of this petition on the ground that no Constitutional Petition can be filed under Article 199 of the Constitution of Islamic Republic of Pakistan, but an appeal may be preferred if so desired under Article 225 of the Constitution before an appropriate forum.
4. Adverting to main objection regarding maintainability of appeal under Article 199 of the Constitution. The pivotal question to be examined seems to be whether Article 199 of the Constitution can be read in isolation or it is controlled by any other Provisions of Constitution and, if so, which is the one and how it extends to control over the Provisions as contained in Article 199 of the Constitution. It is worthy to note that the legislature had no intention to confer unfettered powers upon a High. Court and bar has been imposed by using the words "subject to the constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, -- (underlining is ours). The language which has been used and as reproduced above is free from any ambiguity and indicates an unequivocal term that the jurisdiction as conferred upon under Article 199 of the Constitution is to be exercised not in an exclusive independent manner but subject to the other provisions as enumerated in the Constitution. The words subject to the constitution", and the words "no other adequate remedy is provided by law" are having legal significance and used in order to achieve a specific object which apparently seems to be that the jurisdiction as conferred under Article 199 is subject to well-defined restraints meaning thereby that the two factors are to be kept in view before exercising such jurisdiction i,e, subject to other provisions of the Constitution and where no other adequate remedy is provided. It would be appropriate here to mention at this juncture that "a Court of law must gather the spirit of the Constitution from the language used, and what one may believe to be the spirit of the Constitution cannot prevail if not supported by the language, which, therefore, must be construed according to well established rules of interpretation uninfluenced by an assumed spirit of the Constitution.
(Keshawan Madhave Menon v. Bombay (1951 S.C.R. 228,232 (51) A.S.C. 128). The intention of the legislature can only be ascertained from the language as sued in making and promulgating the law which also includes the Constitutional Law. In the light of what has been stated above and on the basis of un-ambiguous language as used in Article 199 of the Constitution and as discussed above, it can be inferred that unfettered jurisdiction has not been conferred upon and it is subject to other Provisions as laid down in the Constitution. In this particular context the Provisions as contained in Article 225 of the Constitution cannot be over-looked and by passed which are re- produced hereunder for ready reference:-- "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. "
5. The word 'election' as used in the above re-produced Article needs some further elaboration and keeping in view the grievances of the petitioner. The case of the petitioner is that his nomination papers were rejected by the Returning Officer and the appeal filed challenging the said order met the same fate. The dispute as to the rejection of nomination papers, of course, arises in connection with the election and can be a valid ground for an election petition under the relevant laws, but this dispute cannot be decided otherwise than under a such law and any matter pertaining to an election cannot be called in question except in accordance with such law. The High Court under Article 199 of the Constitution can assume jurisdiction only subject to the Constitution. Since Article 225 of the Constitution imposes a restriction and creates a bar for adjudication and such disputes, therefore, in our view the jurisdiction under Article 199 of the Constitution cannot be invoked in the absence of any exceptional circumstances. This aspect of the matter was discussed at length in case titled Election Commission of Pakistan v. Javed Hashmi (PLD 1989 SC 396) as under:-- "In enacting Article 225 in the Constitution the purpose of legislature is obvious that it did not contemplate two attacks on matters connected with the election proceedings; one while the election process is on and had not reached the stage of its completion by recourse to an extraordinary remedy provided by Article 199 and another when the election has reached the stage of completion by means of an election/petition. It is also of utmost consideration that in the case of two attacks on a matter connected with the election proceedings there is likelihood of there being two inconsistent decision; one given by the High Court and the other by the Election Tribunal which is also an independent Tribunal and this could not be the intention of the Legislature. Again the words 'except by an election petition in Article 225 of the Constitution do not refer to the period when it can be called in question. It is, therefore, that the Constitutional Provision is expressed in the negative form to give exclusive jurisdiction to the Tribunal appointed by the Election Commission and thus to exclude or oust the jurisdiction of all Courts in regard to election matters and to prescribe only one mode of challenge. The purpose is not far to seek as in all democratic Constitutions such as it is ours, the Legislautes have an important role to play, and, therefore, it is of utmost importance that the election should be held as scheduled without being unduly delayed or prolonged by challenging matters at an intermediate stage."
' It was further observed while discussing Article 199 and Article 225 of the Constitution as under:-- ' The exercise of powers under Article 199 cannot be placed on any higher footing than that emanating from Article 225 of the Constitution; and while the power under Article 19.9 exercisable by the High Court is 'subject to the Constitution' there is no such limitation in Article 225. This Article by its language creates an independent jurisdiction for the decision of election dispute 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 parliamentary jurisdiction which under the law entrusts election disputes for decision to the Election Tribunal and in appeal to the Supreme Court whose decision is final both on questions of law and facts."
' After an elaborate discussion regarding provision as contained in Article 225 of the Constitution it was opined as under:-- "Article 225 creates a right to challenge the election and lays down the method for its enforcement through an Act which is a Constitutional mandate as by use of the word 'No' a negative imperative.
The Act also creates a right to challenge the election and also prescribes special remedies for enforcing the right. In such a case it is the remedy provided by the Act alone which should be availed of not only because of the Constitutional mandate but also because of the settled rule 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 an intermediate stage against which an appeal lies to the Supreme Court whose decision is final. I this milieu there cannot be any justification for the exercise of power under Article 199."
6. The principles and embodied in C.P.C., are equally applicable to the Constitutional Petition filed under Article 199 of the. Constitution. The Court has thus unfettered powers to invoke any of the relevant Provisions of C.P.C., where situation so demands. In so far as the procedural law is concerned, it deals with practice and procedure in Court to enforce certain rights and obligations and C.P.C., lays down the procedure to be followed with a view to enforce such rights and obligations. In so far as the appearance in Court is concerned that can be in person or by recognized agent or by a pleader. "As regards a pleader appointed to act in court, it is provided by sub-rule (1) of Rule 4 Order 3 of C.P.C., that he cannot act for any person in any Court unless he is appointed by such person or by a document in writting, signed by such person or by his recognized agent. It is only if the appointment is made by a writing signed by the party etc. That he can act, and it is only where he is so appointed that he can be said to be duly appointed to act." When a suit is instituted by a plaintiff through an Agent, the Court has the powers to enquire into the agent's authority. In pursuance of Provisions as contained in Order 3, Rule 1, Order 5, Rule 3 read with Order 10, Rule 4, C.P.C., the personal attendance of defendant and plaintiff can be directed irrespective of the fact whether they are being represented by a pleader or recognized, agent. Keeping in view the said back ground and to check the authenticity of the powers of attorney allegedly signed by the petitioner, during the course of arguments the learned counsel was 'asked to procure the attendance of petitioner as his absconsion had created certain doubt regarding the genuineness of the power of attorney executed by him, which also compelled the learned Tribunal to ask for his personal attendance but, astonishingly, his personal attendance was assured subject to the cancellation of his warrants of arrest duly issued by a Court of competent jurisdiction and, that too, in a heinous offence. How could we do it? When withdrawal of the warrant of arrest was neither prayed for nor a subject-matter of this Constitutional Petition. A fugitive, from law who has flouted the process of law cannot take the refuge of law and, therefore, the learned Tribunal had rightly observed as under:-- "Adverting now to the main contention of the learned Advocate-General that the petitioner is disqualified even otherwise because he had brought the judiciary into ridicule and thus stands disqualified under Article 63(1) (g) of the Constitution of Islamic Republic of Pakistan. The said Article of the Constitution is hereby reproduced:-- "Article 63(1).-- A person shall be disqualified from being elected or chosen as, and from being, a Member of Majlise-e-Shoora if...........
(a)..
(b).
(c).
(d)
(e).
(f).
(g) He is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity of independence of the judiciary of Pakistan, or which defames or brings into ridcule the judiciary or the Armed Forces of Pakistan."
' From plain reading of the aforementioned Article it becomes abundantly clear that a candidate stands disqualified if he defames or brings the judiciary into ridicule. Learned Advocated-General invited our attention to the definition of ' ridicule' by referring to the 'Concise Oxford Dictionary' wherein ridicule means as follows:-- "Ridicule:
1. Holding or being held up as object of derision or mockery; (arch) ridiculous thing or person.
2. Make fun of, subject to ridicule, laugh at.
' To supplement his argument learned Advocate-General submitted that the appellant has already been declared a proclaimed offender but sitll he seeks aid of the law through judiciary. If the "judiciary gives him concession despite the fact that he did not choose to appear before it this will bring the judiciary into ridicule in the eyes of general public. We find sufficient force in this argument. Indeed if a persons who has disregarded the law and the Courts is given confession of law by Courts this will tantamount to bring the judiciary into ridicule.
' From the aforementioned discussion we have come to the conclusion that in the first instance this petition has not been properly filed. The candidate did not appear before the Tribunal despite clear instructions. Thus, the appeal was not entertainable. Appellant is an absconder from law and as laid down by the Supreme Court he will loose his substantive right of franchise Or to contest elections being fugitive from law. Lastly according to our calculated view he is disqualified within the meaning of Article 63(1) (g) of the Constitution. We, therefore, see no merits in this appeal which is dismissed."
7. We have also examined the deposition of Notary Public recorded by the learned Tribunal and a close scrutiny whereof indicates that the same is not free from doubt. We are, therefore, of the view that a right conclusion has been drawn by the learned Tribunal i,e, "since appellant could not appear in person despite clear instructions, therefore, the appeal was not entertainable." The view of the learned Tribunal that "Thus, the point before us is whether to entertain an appeal which has been filed by a person against whom perpetual warrants of arrest have been issued and he, who is absconding to face the legal process and has failed to appear before this Tribunal despite directions, can seek aid of justice and law. In this respect our attention was drawn by learned Advocate-General to a case as reported in 1982 SCM R 818. In the said case the honourable Supreme Court did not grant petition for leave to appeal on the principle that fugitive from justice is not entitled to concession of leave to appeal. So also our attention was invited to the case of Muhammad Saleem Babar v. The State PLD 1987 Lah. 288 where it was held that an absconder is not entitled to exemption under section 540-A, Cr. P.C., yet in another case (PLD 1969 SC 89) it was held by the Supreme Court "that a person should submit to process of justice before he can claim right of audience in Court by way of appeal. Another important case was referred to by the learned Advocate-General which applies on all force wherein an accused was acquitted by the Court of Sessions but on appeal was sentenced to death. He did not surrender himself before the Court and became fugitive from justice. However, he appeared before an attorney and signed a Power of Attorney in his favour for presenting petition before Federal Court. It was held that the Court would not act in aid of a person who was a fugitive from justice and the petition was dismissed (PLD 1956 Federal Court p.43). Similarly in 1985 SCM R 1991, it was held that unexplained noticeable absconsion shall disentitle a person to consession of bail not withstanding merits of the case. It was further held that fugitive from law and Courts shall loose some of normal right granted by procedural as well as substantive law." Seems to be in consonance with the authorities as laid down by the Hon'ble Supreme Court of Pakistan and relied upon by the learned Tribunal, therefore, does not call for any inference.
8. It is also to be noted that right of appeal is provided against rejection of nomination papers under section 14(5) of Representation of People Act, 1976 (Act No,LXXXV) of 1976) which is reproduced hereunder for ready reference:- "A Candidate may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination Paper of the candidate to the Tribunal constituted for the constituency to which the nomination relates and consisting of not less than two nor more than three Judges of the High Court nominated by the Commissioner, with the approval of the President; and such appeal shall be summarily decided with such time as may be notified by the Commission and any order passed there shall be final."
9. It is important to note that the order passed by the Tribunal so constituted shall be final. It hardly needs any discussion that where a specific procedure has been provided in an enactment it should be followed. It is well-settled by now that when the Legislation is un-ambiguous the doctrine of telescoping and the doctrine of pragmatic construction and contemporaneous construction have no application. Where the language is plain and un-ambiguous the Courts are not entitled to go behind the language but the function of the Court is to apply the law as it stands. Keeping in view the finality of the order, the only option appears to be filing of Election Petition before the Election Tribunal after the Elections are over. There is no cavil to the proposition that where alternate remedy is available the same should be availed of instead of approaching the High Court. The Election Laws prevalent at present are very comprehensive and capable enough to deal with all the situations pertaining to Election affairs, resultantly on this score alone this Constitutional Petition is not competent. The matter has also been examined to see whether there exists any exceptional circumstances to justify any interference which of course, can be made in pursuance of the powers as conferred upon this Courts under Article 199 of the Constitution, at this stage by this Court or otherwise? It has been noted with grave concern that the petitioner has failed to comply with the directions of Hon'ble Election Tribunal regarding his personal attendance. It was incumbent upon him to appear in person keeping in view the objection as raised regarding the genuineness and authenticity of this power of attorney. It is an admitted position that the order for issuance of writ is always a matter of discretion and the High Court is fully competent to take into consideration, the conduct of the petitioner- and in case it is found that the petitioner has not come with clean hands, it would not exercise its discretionary power of writ even if the petitioner has made out a good case on merits. The writ jurisdiction is intended to be exercised with a view to promote the cause of justice and not a perpetuate ill-gotten gains. In other words it is a well- settled principle that the High Court's writ jurisdiction can be invoked in aids of justice and not to help retention of ill-gotten gains. The conduct of petitioner as determined by the Hon'ble Election Tribunal was contumacious. The Courts are bound to proceed to maxim "He who seeks equity must do equity". There is no cavil to the proposition that where the petitioner is himself guilty of illegal practice, he is not entitled to relief by invoking writ jurisdiction. In view of what has been stated above there is absolutely no justification to grant interim relief as prayed for. The writ petition is hereby dismissed.