1. The petitioner is aggrieved by acceptance of Nomination Paper filed by respondent No. l before the Returning Officer, respondent No.4, in respect of' Sindh Assembly Constituency No.PS-66 Sinjhoro, District Sanghar, whereby the respondent No. l has been permitted to contest the forthcoming general elections scheduled to be held on 3-2-1997. The main grievance of the petitioner is that the said respondent is only 23 years of age kid thus he is not qualified to contest the said elections.
2. The petition has been resisted by respondent No. l as, according to him, the respondent was born on 1-2-1971 and thus he is over 25 years of age. A photo-copy of an extract from the Birth Register of Town Committee Jam Nawaz A.I District Sanghar has also been filed alongwith his counter- affidavit.
3. So far as the factual controversy is concerned, it has been pointed out by Mr. Abdul Hafeez Lakho, learned counsel for the petitioner, that some interpolations appear to have been made in the extract from the said register as date of birth of the said respondent's sister, Mst. Shazia Khatoon, has been shown as 6-1-1970 after tempering with the said document which otherwise indicates that she was born on 6-11-1970. If the said respondent's sister was born on 6-11-1970, the said respondent, who was born thereafter, could not be born on 1-2-1971, that is to say, after about three months of the birth of his sister. The said annexure further indicates that entries in the said register had been made upon information supplied by one Abdul Rehman. The entries also indicate the I.D.
4. Card number of the said Abdul Rehman, but at the time when the said respondent or his sister are shown to have born, National Registration Act, (Act LVI of 1973) had not yet been enforced. Learned counsel for the petitioner has also filed a copy of B-Form, issued by the Registration Authority; which indicates that the date of birth of the said respondent as 5-1-1974. Consequently, according to the learned counsel for the petitioner, no reliance can be placed by the Court upon the said extract filed by the respondent alongwith his counter affidavit.
5. Be that as it may, but the main question that requires to be considered in this petition is, whether this Court is empowered to entertain the present petition in view of Article 225 of the Constitution. It is pertinent to point out that the question in regard to the jurisdiction of the High Court under Article 199 of the Constitution had arisen before the Supreme Court in Election Commission of Pakistan v.
6. Javaid Hashmi and others (PLD 1989 SC 396), and it was held that from Article 225 of the Constitution, a clear intention could be spelt out to completely oust the jurisdiction of all Courts in regard to election matters and to provide for only one mode of challenge which was by filing an election petition, as provided by section 52 of the Representation of the People Act, 1976. It was observed in the said case, "the above discussion leads me to conclude that there can only be challenged to the election by one mode, that is, by an election petition and that too after the process of the election is completed". It was further held by the Supreme Court that Representation of People Act was a self-contained enactment and it contemplated various steps to be taken in the process of completion of the election and, therefore, the expression "election" would include the entire process of election as contemplated by the said enactment. Mr. Abdul Hafeez Lakho as nevertheless invited our attention to the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer (1994 SCM R 1299), as according to him, a somewhat different view was taken by the Supreme Court in the said case. Reference was made in this regard to the following observations made by the Supreme Court:----- "26. 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 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. Javaid Hashmi (supra) is not applicable. We may clarify that we do not intend to overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed hereinabove. "
7. As would appear from the observations of the Supreme Court, the order of the functionary which had been impugned in the said case was firstly found to be patently illegal and without jurisdiction and secondly it was further found to have an effect to defranchise a candidate by preventing him from taking part in the elections. In the present case, no irreparable prejudice would be caused to the petitioner because in that an eventuality, the respondents' election can be challenged before the Election Tribunal by the petitioner. As can clearly be spelt out from the said observations, the Supreme Court did not intend to overrule the majority view in Javaid Hashmi's case (supra) but only an exception was made because, an irreparable injury could have been caused to the petitioner in the said case. In the present case, an equally efficacious and alternate remedy is available to the petitioner by way of an election petition under section 52 of the Representation of People Act, 1976. Therefore, in our opinion, reference to Ghulam Mustafa Jatoi's case by the learned counsel for the petitioner is clearly misplaced. So far as the factual controversy is concerned, we would not like to refer to the merits thereof as any observation made in this regard may ultimately prejudice the petitioner's or the respondent's case before the Election Tribunal before which the petitioner may ultimately seek his redress.