' MALIK MUHAMMAD QAYYUM, J.--Gulzar Ahmad Khan, the petitioner herein, and respondents Nos.2 to 8 contested elections to the seats in Senate of Pakistan for North-West Frontier Province which was held on 12-3-1997. The Returning Officer after count of ballots declared respondents Nos.2 to 8 as having been elected unofficially. However, the official result was notified by the Election Commissioner of Pakistan at Islamabad on 18-3-1997 pursuant to section 25 of the Senate (Election) Act, 1975 and Article 24 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The petitioner challenged the count by filing an appeal under section 32 of the Senate (Election)
Act, 1975 before the Chief Election Commissioner, Islamabad along with an application under section 5 of the Limitation Act, 1908, seeking condonation of delay. The appeal as also the application for condonation of delay were rejected by the Chief Election Commissioner on 4-4- 1997.
3. In this Constitutional petition the petitioner has prayed for the grant of following reliefs:-- "(i) To declare the impugned order dated 4-4-1997 as without lawful authority and of no legal effect;
(ii) To direct the production of ballot papers and statement of count before this Hon'ble Court;
(iii) To call upon respondents Nos.2 to 8 to show under what authority of law they hold the membership of Senate."
4. On 14-4-1997 this petition was admitted to regular hearing to consider inter alia the contention raised by Mr. S.M. Zafar, petitioner's learned counsel that the petitioner's appeal under section 32 of the Senate (Election) Act, 1975, could not have been dismissed without hearing the petitioner. We consequently directed that notice be issued to the respondents as also to the learned Deputy Attorney-General for Pakistan for 28-4-1997, who was asked to procure the relevant record. The case, however, could not be heard on 28-4-1997 as the respondents had not been served.
Proceedings were accordingly adjourned to 12-5-1997, and a duly authorised representative of the Chief Election Commissioner was directed to appear on that date along with the record. The order dated 28-4-1997, so far as it directed the production of record was challenged by respondent No,3 by filing C.P.S.L.A. No,392/97. We are informed that the Supreme Court of Pakistan has disposed of the said petition by observing that the High Court should decide the question of jurisdiction before ordering production of the record or proceeding on merits.
5. Pursuant to the direction of the Hon'ble Supreme Court, we have heard the learned counsel for the parties on the question of jurisdiction.
6. Mr. Naeem Bukha'ri, learned counsel appearing on behalf of the contesting respondent has raised two-fold objections; firstly, that this Court lacks territorial jurisdiction to try this petition and secondly; that in any case, a writ in the nature of quo warranto cannot be issued to respondents Nos.2 to 8 who have been elected to the Senate from North-West Frontier Province. In elaboration, the respondent's learned counsel has submitted that elections which are under challenge were for seats in the Senate from North-West Frontier Province and were held at Peshawar; that the nomination to the elections were filed at Peshawar, the voting was also held there, all the voters were members of N.-W.F.P. Provincial Assembly, the Returning Officer had counted the votes and had unofficially declared the result at Peshawar, as such this Court cannot try this petition. He urged that though some incidental and ancillary reliefs in respect of certain orders passed at Islamabad have been prayed for- yet the proper Courts which can adjudicate upon the dispute was the High Court of N.-W.F.P. And not this Court. He. Emphasised that in a Federation, one Federating Unit should not encroach upon the domain of another unit as it would be violative of the principles of federalism. Heavy reliance was placed by the learned counsel on the dictum of the Supreme Court in the case of Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334). In the end., the learned counsel reiterated that writ in the nature of quo warranto cannot be issued by the Lahore High Court to the Senators from the N.-W.F.P.
8. In reply, Syed Zahid Hussain, petitioner's learned counsel has argued that it was obvious from the petition itself. That the petitioner in addition to seeking writ in the nature of the quo warranto has also prayed that order dated 4-4-1997 of the Chief Election Commissioner dismissing the petitioner's appeal at Islamabad and the notification issued under section 32 of the Senate (Election) Act, 1975 by the Chief Election Commissioner on 18-3-1997, again at Islamabad, be declared to be without lawful authority and of no legal effect. According to Mr. Zahid, as these two orders were passed by the Chief Election Commissioner at Islamabad, it was only this Court which can declare those orders to be without lawful authority and of no legal effect. It was maintained by the learned counsel that there was nothing in the Constitution or any other law ) which prohibits this Court from issuing writ in the nature of quo warranto against respondents Nos.2 to 8 merely on the ground that they had been elected as Senators from the Province of N.-W.F.P.
9. The question of jurisdiction arising in this case has to be decided in the light of the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this petition in addition to a writ in the nature of quo warranto the petitioner has prayed that prder dated 4-4-1997 of the Chief Election Commissioner be declared to be without lawful authority and of no legal effect. This part of the relief is covered by clause (a) (ii) of sub-Article (1) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 which provides that on an application of any aggrieved party, a High Court may, make an order declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect. It follows that the territorial jurisdiction of a High Court is dependent upon satisfaction of the condition that the impugned action should have been done or the impugned proceedings taken within the territorial jurisdiction of that Court by a person performing functions in connection with the affairs of the Federation or the Province.
10. So far as the order of the Chief Election Commissioner dated 4-4-1997 is concerned, it is admitted that it was passed at Islamabad on an appeal filed by the petitioner at Islamabad.
Therefore, there appears to be no difficulty in holding that this Court is competent to entertain a petition seeking declaration that order passed by the Chief Election Commissioner and the proceedings held by him on the appeal of the petitioner at Islamabad are without lawful authority and of no legal effect.
11. As the whole case of Mr.Naeem Bukhari, respondent's learned counsel is based upon the pronouncement of the Supreme Court in Sandalbar's case (supra), it appears appropriate to take notice of the same before proceeding any further. The petitioner in that case had imported certain consignments from abroad which arrived at the Karachi Port where the petitioner filed their bills of entry for the release of the machinery which was duly assessed at Karachi and regulatory duty in terms of notification dated 29-10-1995 issued by the Central Board of Revenue. The petitioner challenged the assessm ent and levy of duty by filing Constitutional petition in the Lahore High Court where a preliminary objection was raised that the Lahore High Court lacked jurisdiction to try the petition. That objection was upheld by this Court which held that as the bill of entry had been filed at Karachi where the goods were lying and the Customs Authorities were also functioning there, the Constitutional petition was not maintainable. The matter was taken by M/s. Sandalbar Enterprises to the Supreme Court of Pakistan but the petition for leave to appeal was dismissed by the Supreme Court which observed that as the thrust of attack of the petitioner was directed against the order of assessm ent which had been made at Karachi, the main cause of action had arisen within the jurisdiction of Sindh High Court and as such the Constitutional petition was not maintainable before the Lahore High Court notwithstanding that the petitioner had also challenged the vires of the notification issued at Islamabad.
12. On close analysis of Sandalbar's case, it became evident that ratio in that case negate the contentions being raised by Mr.Naeem Bukhari that this Court lacks jurisdiction rather than helping him. As already observed, the present petitioner had challenged count of ballots in an appeal under section 32 of the Senate (Election) Act, 1975, which was not only filed at Islamabad but was also decided there by the Chief Election Commissioner on 4-4-1997. That order having been passed within the territorial limits of this Court can only be challenged before Lahore High Court and for that matter no other High Court has jurisdiction to grant this relief. We are not impressed with the contention raised by Mr.Naeem Bukhari, Advocate that as the real matter in controversy between the parties is the election to the Senate from N.-W.F.P. Which took place at Peshawar as such this Court cannot interfere. To us it is quite apparent that the main relief which the petitioner has sought is setting aside the order of the Chief Election Commissioner whereby the petitioner's appeal against the count of bollot was rejected by the Chief Election Commissioner.
13. It is to be noted that in Sandalbar's case (supra) the Supreme Court of Pakistan took notice of its earlier decision in M/s. Al-Iblagh Ltd., Lahore v. The Copyright Board, Karachi etc. (1985 SCM R 758), which was distinguished on the ground that in that case, the Copyright Board had been set up for whole of Pakistan and was performing functions in relation to the Federation in all the Provinces. At page 337 of the report, in Sandalbar's case supra, the following observation in M/s. Al-Iblagh's case have been reproduced:-- "The rules laid down in the said case would, we think, be applicable also in the circumstances of this case, The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence any order passed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territory the order would affect such a person, jurisdiction to hear the case. The learned Deputy Attorney-General, Mr. Munir A. Sheikh, who appeared on behalf of he respondent-Copyright Board, supported this interpretation of the Constitution provision in question and submitted that the writ petition filed by the appellant before the Lahore High Court should not have been dismissed for lack of jurisdiction by the said High Court, as it also had jurisdiction to entertain it, concurrently with the Sindh High Court.
' We agree and are of the opinion that both the Lahore High Court as well as the Sindh High Court had concurrent jurisdiction in the matter and both the Courts should have entertained a writ petition against the impugned order in the circumstances of this case. We, therefore, hold that the Lahore High Court has illegally refused to exercise jurisdiction in this case. The case will, therefore, go back to the Lahore High Court for decision of the writ petition filed by the appellant before it for decision on merits, in accordance with law."
14. The distinguishing features of Al-Iblagh's case and the case of Sandalbar' were noted in para. 5 of the above judgment in the following words: "The above case is distinguishable for the reason that in the above report, the appeal was heard at Lahore by the Copyright Board. Secondly, the Board was for the entire Pakistan and not for Karachi alone. Whereas the Customs Authority which assessed the levy of the regulatory duty on the consignment imported by the petitioner is posted for Karachi Sea Port and not for any other territory."
15. We feel that on facts of the present case is almost on all fours with that of Messrs Al-Iblagh's case inasmuch as both the Copyright Board and the Chief Election Commissioner performed functions in relation to the whole Federation and all the Provinces and not merely in the Province of N.-W.F.P. And that the appeal before the Chief Election Commissioner was not filed at Islamabad but was also decided then.
It follows from the above that so far as the first relief in this petition namely the declaration that the order dated 4-4-1997 of the Chief Election Commissioner was without lawful authority and no legal effect is concerned, it can competently be granted by this Court on the principle contained both in Sandalbar and M/s. Iblagh's cases supra. We may also mention that the result of the elections to the Senate was officially notified at Islamabad vide Notification dated 18-3-1997, a copy of which is available on the record as Annexure "A".
16. At this stage we are not called upon to decide as to whether writ in the nature of quo warranto would lie against respondents Nos.2 to 8 at this stage for, even if the petition is not competent to that extent it can certainly be heard by us in respect of other reliefs. Moreover, whether a particular relief should or should not be granted is one which can only be determined after hearing the arguments of the learned counsel for the parties on merits of the case.
17. In view of above we have no hesitation in repelling the objection as to the jurisdiction of this Court to entertain this petition.
' The case shall now be listed for further hearing on 9-6-1997.