' Petitioner, respondent No,1 and others contested for the Punjab Assembly seat reserved for Sikh, Budh and Parsi in the General Elections held on 3-2-1997. The result was consolidated on 17-2-1997.
The same day petitioner was declared successful and a notification was issued to that effect. The election result was, however, challenged through Writ Petition No,3499 of 1997 filed by respondent No,1 and on account of the injunctive order passed in the said petition petitioner though assumed functions as a Member of the Provincial Assembly yet did not participate in the election of the Deputy Speaker. On 20-2-1997 the aforereferred writ petition filed by respondent Nam Singh was disposed of as having fructified since a copy of the letter of the Returning Officer, dated 18-2-1997 was placed on record which was to the effect that as per the revised result petitioner in the said writ petition i,e,, Nam Singh (respondent in this petition) had secured more votes. On the basis of the revised result, the Returning Officer (respondent No,2 in the instant petition) made a reference to the Election Commission of Pakistan for de_ notifying the petitioner and, in his place, notifying Nam Singh respondent No,1 as elected Member of the Provincial Assembly. Through this Constitutional petition, the petitioner has challenged the Reference/letter, dated 18-2-1997 written by respondent No,2 to the Election Commission of Pakistan inter alia on the grounds that the petitioner having been notified as Member of the Provincial Assembly no proceedings could be entertained to challenge the said election except by way of a election petition in view of the mandate of Article 225 of the Constitution of Islamic Republic of Pakistan and the import of section 52 of the People Representative Act, 1976.
' Comments submitted by respondent No,2 (Returning Officer) are to the effect that on receipt of information that a fraud had been committed while tabulating the result, (whereby petitioner was declared successful) and after obtaining permission from the Election Commissioner of Pakistan the results were re-tabulated and the factual position emerged is as follows:--- "Form XVI-A in respect of PP-21 wherein petitioner, Dareyus Postonji was shown to have secured 219 votes was a forged one. In fact he had secured 119 votes from the said Constituency. Similarly, the number of votes secured by Darayus Pestonji, petitioner, from PP-239 and 240 were incorrectly written in Form XVI-B as 70 against actual 10 votes. Furthermore, Nam Singh, respondent No,1, secured 2 votes in PP-129 but the same were not shown in Form XVI-B. Resultantly, the number of votes actually secured by Nam Singh and Daryus Pastonji were 312 and 224 respectively.
2. Learned counsel for the petitioner, in support of the petition, has mainly pressed into service Article 225 of the Constitution of Islamic Republic of Pakistan and section 52 of the People Representative Act to contend that the Election Commission has no jurisdiction to annul the result specially when notification has been issued declaring petitioner to have been elected as Member of the Provincial Assembly. In support of this argument to relied on Bartha Ram v. Lala Mehar Lal Bheel and another (1995 SCMR 684).
3. Learned counsel for respondent No,1, on the other hand, has opposed the petition and has raised following points:---
(i) Refers to Annexures-F, H and I to contend that the petitioner was wrongly shown to have secured more votes on the basis of forged documents and on the basis of the fresh tabulation, the Returning Officer had moved the Pakistan Election Commission for denotifying petitioner's election and for issuing notification declaring respondent Nam Singh to have been elected. This is borne out from the letter written by the Returning Officer as also from the statement made on behalf of the Returning Officer before this Court in Writ Petition No,3499 of 1997 filed by respondent Nam Singh on the basis of which the said petition was disposed of as having fructified.
(ii) that the petitioner has come to this Court with unclean hands inasmuch as he has filed this petition without disclosing that the order, dated 20-2-1997 passed in Writ Petition No,3499 of 1997 was challenged by the petitioner through Civil Petition for Special Leave to Appeal No,146 of 1997 in the Hon'ble Supreme Court.
(iii) that no writ can be issued to perpetuate ill gotten gain.
(iv) that the ouster of jurisdiction is only attracted if the election process is complete. In the instant case the said process has yet to conclude as Election Commission of Pakistan is seized of a Reference received from the Returning Officer qua the Constituency in which petitioner was declared to have been elected.
4. I have heard learned counsel for the parties and have given anxious thoughts to the arguments addressed at the Bar.
5. For a better appreciation of the issues which have been mooted in this petition it is necessary to refer to some of the imnortant Constitutional and statutory provisions which have an important bearing on the case in hand. Part VIII Chapter 1 of the Constitution of Islamic Republic of Pakistan, 1973 relates to elections. Articles 213 to 226 contain various provisions regarding appointment of the Election Commissioner, his term of office, the Election Commission, electoral laws, bar of double Membership, time of election and bye-election, election dispute and secrecy of ballot papers. The Constitution mandates that the Election Commission of Pakistan shall ensure fair election. Article 218(3) reads as under:--- "Election Commission.---(1)
(2)
(a) .
(b) .
(3) It shall be the duty of the Election Commission constituted in relation to an election to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against."
' Article 225 relates to Election Disputes and stipulates as under:--- "Election dispute.--- 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 Majilis-e-Shoora (Parliament)."
' The conduct of General Elections have been regulated by the Representation of People Act, 1976.
There are some provisions of this Act a reference to which would be relevant here. Section 52 of the Act is as follows:--- "Election petition.--- (1) No election shall be called in question except by an election petition made by a candidate for that election (hereafter in this Chapter referred to as the petitioner).
(2) An election petition shall be presented to the Commissioner within (forty-five) days of the publication in the official Gazzette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or sub-treasury in favour of the Commissioner, under the prescribed head of account, as security for the costs of the petition, a sum of one thousand rupees."
' Section 54: "Parties to the petition.---The petitioner shall join as respondents to this election petition---
(a) all contesting candidates; and
(b) any other candidate against whom any allegation of any corrupt or illegal practice is made and shall serve personally or by registered post on each such respondent a copy of the petition.
Explanation.---In this section and in the following provisions of this chapter. ' corrupt or illegal practice' means a ' corrupt practice or an illegal practice' within the meaning of Chapter VIII."
' Section 68: "Ground for declaring election of returned candidate void.---(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that---
(a) the nomination of the returned candidate was invalid; or
(b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or
(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent.
(2) The election of a returned candidate shall not be declared void on the ground---
(a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by, or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission; or
(b) that any of the other contesting candidates was, on the nomination day, not qualified for or was disqualified from, being elected as a member."
' Section 69: "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 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."
' Section 70: "Ground for declaring election as a whole void.---The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of-- -
(a) the failure of any person to comply with the provisions of the Act or the rules; or
(b) the prevalence of extensive corrupt or illegal practice at the election."
' Section 78: "Corrupt Practice.---A person is guilty of corrupt practice if he--
(1) ..............................................................................
(2) is guilty of bribery, personation or undue influence;
(3) makes or publishes a false statement---
(a) concerning the personal character of a candidate or any of his relation calculated to adversely affect the election of such candidate or for the purpose of promoting or procuring the election of another candidate, unless he proves that he had reasonable grounds for believing, and did believe, the statement to be true;
(b) relating to the symbol of a candidate whether or not such symbol has been allocated to such candidate; or
(c) regarding the withdrawal of a candidate;
(4) calls upon or persuades any person to vote, or to refrain from voting, for any candidate on the ground that he belongs to a particular religion, province, community, race, caste, bradari, set or tribe.
(5) Knowingly, in order to support or oppose a candidate, lets, lends, employes, hires, borrows, or uses any vehicle or vessel for the purposes of conveying to or from the polling station any elector except himself and members of his immediate family; or
(6) causes or attempts to cause any person present and waiting to vote at the polling station to depart without voting."
Section 103: "Commission to ensure fair election, etc.---Save as otherwise provided, the Commission may---
(a) stop the polls at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion, intimidation and pressures, prevailing at the election.
(b) review an order passed by an officer under this Act or the rules, including rejection of a ballet paper; and
(c) issue such instructions and exercise such powers, and make such consequential orders, as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly, and in accordance with the provisions of this Act and the rules."
6. A Perusal of the aforereferred provisions of the Constitution and the law would show that the Election Commission has been entrusted with the task of ensuring free and fair elections (Article 218(3) of the Constitution) that to achieve the aforereferred objective it could review an order passed by an officer under this Act (section 103 of the Representation of the People Act) and that it could pass consequential orders and instructions which may be necessary; that the actions and orders of the Election Commission taken and passed in this regard shall not be called in question except by an election petition and in the manner prescribed by law (Article 225 of the Constitution).
The term "election" is of a wide import and has to be understood in all its remifications. In N.P.Pannuswa mi v. Returning Officer, Namakkal (AIR 1952 Lahore 64) the word "election" was held "to connote the entire procedure to be gone through to return a candidate to the Legislature.
' In Muhammad Afzal v. Miraj Din (PLD 1967 Lahore 689) it was held as under:--- "It is well-settled that election is a continuous process consisting of a series of facts required to be done in different stages in accordance with the schedule contained in the notification to be published in the official gazette fixing dates for filing of nomination papers, scrutiny of nomination papers, withdrawal and retirement of candidates, actual poll, counting of votes and declaration of result, etc."
' In Amirzada Khan v. Chief Election Commissioner (PLD 1974 Lahore 178) it was observed as under:- "Generally speaking election is a process which starts with the issuance of the election programme and consists of the various links and stages in that behalf, as for example, filing of the nomination papers, their scrutiny, the hearing of objections and the holding of the actual polls etc. Etc. If any of these links is challenged it really tantamounts to challenging the said (process of) election. What cannot be allowed to be done directly, cannot be allowed to be done indirectly on the basis of the type of pleas which are being advanced before us. We cannot accept that whereas on one hand the Constituent Assembly intended to stop raising of objections to the election of the President in clause (6) of Article 41, on the other hand it had the desire to allow the same thing to be done in the form of the petitions of the present kind in Courts. It is well-settled that the right to challenge an election or to put it in other words the right of franchise is not a common law right and is to be regulated by the law which creates or deals with it."
' In Mohinder Singh v. Chief Election Commissioner (AIR 1978 Supreme Court 851) it was held as under:--- "Election covers the entire process from the issue of the notification under section 14 of the Representation of the People Act to the declaration of the result under section 66 of the Act. When a poll that has already taken place has been cancelled and a fresh poll has been ordered, the order, therefore, with the amended date, is passed as an integral part of the electoral process.
When the Election Commission amended its notification and extended the time for completion of the election by ordering a fresh poll, it is an order during the course of the process of ' election'.
Even if it is a wrong order it does not cease to be an order passed by a competent authority charged with the conduct of elections with the aim and object of completing the elections.
Although that is not always decisive where the impugned order has been passed in the exercise of power under Article 324(1) of the Constitution and section 153 of the Representation of the People Act, such an order, relating as it does, to election cannot be questioned except by an election petition under the Act. If during the process of election, at an intermediate or final stage, the entire poll has been wrongly cancelled and afresh poll has been wrongly ordered, that is a matter which may be agitated after declaration of the result on the basis of the fresh poll, by questioning the election in the appropriate forum by means of an election petition in accordance with law. The petitioner, then, will have a remedy to question every step in the electoral process and every order that has been passed in the process of the election including the countramanding of the earlier poll."
' In Election Commission of India v. Shivaji (AIR 1988 Supreme Court 61) it was held that in its wide sence the word "election" has been properly used in the Article with reference to the entire process consisting of several' pleas taken for its completion which have a bearing on the result of the process.
7. While interpreting Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 particularly the expression "no election shall be called in question" the Hon'ble Supreme Court of Pakistan in Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 Supreme Court 396), at page 416, observed 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 election proceedings; one while the election process is on and has 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 decisions; 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 but point to the manner and the mode in which 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 Tribunals appointed by the Election Commissioner, and thus, to exclude or oust the jurisdiction of all the 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 is ours the Legislatures 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."
' At page 417 of the same judgment it was further elaborated as follows:--- "The scheme of the electoral laws and conduct of election accordingly appears to be that any matter which has the effect of vitiating the election process should be brought up only at the appropriate stage in an appropriate manner before the Election Tribunal and should not be brought up at an intermediate stage before any Court as otherwise Article 225 of the Constitution would be deprived of its meaning and content."
' In the same Judgment the Hon'ble Supreme Court also referred to the commentary of Shukla on Article 329-B and quoted from his book "the Constitution of India" which at page 593 reads as under:--- "Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination on the formal declaration of result. The Constitutional provisions and the Representation of the People Act clearly express the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post-election stage. The sole remedy for an aggrieved party is an election petition and the exclusion of all remedies includes remedy under Article 226 because of the non obstante clause."
8. Applying the law laid down in the aforereferred precedent, case-law to the case in hand I find that it had been brought to the notice of the Returning Officer that several illegalities had been committed by the election staff; that the result sheets had either been changed or tampered with and that the election result declaring the petitioner to have been elected was based on forged documents. The Returning Officer in turn informed the Provincial Election Commissioner through letter, dated 18-2-1997 that "on information I have rechecked the consolidation statements prepared in respect of the subject-seats and it has been found that there are errors in the same. It is, therefore, requested that the notification of the said result at your end may be withheld by not permitting Daryus Pestonji and Malik Naeemuddin Khalid to take Oath (Annexure-H with the petition).
' Again vide letter, dated 18-2-1997 the Returning Officer (vide Annexure-I) intimated the Provincial Election Commissioner as under:--- "In continuation of this office letter, dated 18-2-1997 on the subject noted above, after re-checking whole of the record and also making verification from the concerned Assistant Returning Officers/District Returning Officer, Form XVI-B pertaining to Non-Muslim Seat (Budh, Sikh, Persi etc.) has been revised, Accordingly, the revised form XVII is enclosed. However, position of the seat is as under:--- 1., Naam Singh 312
2. Darayus Pastonji 264."
' The Returning Officer issued Revised Result of the Court in Form XVII-B which indicated that Nam Singh respondent had secured 312 votes whereas the petitioner Darayus Pastonji secured 264 votes.
9. Having received the aforereferred Reference the Election Commission was considering the matter when the order, dated 26-2-1997 was passed by a learned Judge in Chamber whereby denotification of the petitioner was stayed. The Election Commissioner of Pakistan did not proceed any further on account of this injunctive order.
10. A bare reading of the various sections of the Representation of People Act, 1976 reproduced in para. 5 above would show that the remedy of election petition is not available to the Election Commission of Pakistan or its functionaries. If the Returning Officer finds that the illegalities/forgery is apparent on record without rectification of which fair election result was not possible, it is his duty to inform the Election Commissioner forthwith so that it carries out its Constitutional mandate of ensuring that, "election is conducted honestly, justly, fairly, and in accordance with law (Article 218(3) of the Constitution).
' The exercise initiated by the Returning Officer of which the Election Commission of Pakistan was seized of when the aforereferred order was passed in the instant petition was part of the election process and it was within its Constitutional mandate to take the same to its logical conclusion and it could not have been obstructed through a Constitutional petition. While dilating on the powers of the Election Commission, the Election Commission of Pakistan in case of complaint of malpractices in Constituency No,NA-57 Sargodha reported in PLD 1977 Journal 164 at page 179 held as under:--- "The combined effect of the provisions embodied in Articles 51 and 218(3) cited above is that the Commission is charged with a duty to hold elections by a free vote and to ensure that they are fair, impartial and free from all malpractices. The imposition of this duty on the Commission implies the existence of powers in it to do acts and to employ means such as are necessary to enable it to discharge its duty; for otherwise the said provisions will be reduced to futility and the legislative will of the Constitution-makers will be frustrated (See AIR 1966 Guj. 282 at p. 291). This conclusion follows from the doctrine of implied powers which is embodied in the maxim 'Quando lex aliquid aliqui concedit conceditur et id sine quo res ipsa esse non potest'. Its full and true import is set out in the judgment in the case of Fenton v. Hampton (1) wherein it is laid down that 'whenever anything is authorised and especially is, as a matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something else will be supplied by necessary intendment (see Interpretation of Statutes by Bindra, p. 436). Again, it is staged on page 437 ibid.--- 'What is necessarily implied is just as much a part of the statute as if it were especially written therein. It is stated in 'Caries on Statute Law', page 259': 'One of the first principles of law with regard to the effect of an enabling Act is that if the Legislature enables something to be done, it gives power at the same time, by necessary implication, to do everything which is indispensable for the purpose of carrying out the purpose in view 'on the principle', as Park B said in Clarence Ry. v. Great N. Of England Ry. (1845) 13 M & W 706. 721) 'that ubi aliquid concediture, conceditur etiam id sine quo res ipsa non essa potest.'
' It may be observed that although Article 218 speaks of the duty of the Commission its provisions bear a jurisdictional aspect also in that it is intended to enable the Commission to ensure a free election. As observed in Mexwell, 11th Edition, p. 350 ' where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing all such means, as are essentially necessary to its execution'. It is difficult to accept that the provisions of clause (3) of Article 218 which charge the Election Commission with the duty of holding free and fair elections do not invest the powers in the Commission to intervene where some of the executive authorities have deliberately set about to frustrate the arrangements which the Commission has made for the conduct of fair and just polls. Again Article 225 talks of an election but where an election is vitiated by illegalities reducing it to a nullity there is no election at all in the eyes of law to be called in question as contemplated by Article 225. We are of the opinion that Articles 51 and 218(3) read with Article 225 which must be construed harmoniously cannot take away the implied powers of the Election Commission to annul election and direct repoll to ensure fairness and impartiality of the elections. The Election Commission has the power to hold that where a poll is vitiated by illegalities no election has at all taken place. To put Article 225 as a hurdle in that power would completely frustrate the inherent powers of the Election Commission to see under its constitutional mandate that the election is fair and impartial and is held in accordance with law. This power inherently vests in the Commission flowing from its Constitutional obligation under Article 218 of the Constitution as mentioned above even though it were not specifically conferred upon it by section 103-B of the Act. In fact section 103-B has recognized this inherent power of the Commission in express terms while it reflects the existence and exercise of that power in a particular situation envisaged therein, nothing contained in the section can be construed to detract from the amplitude of those powers. This power also finds clear recognition even by the main sections 103 and 104 of the Act."
11. Without commenting on the finding of the Returning Officer, lost it may prejudice the case of either side if the final result/order to be announced by the Pakistan Election Commission is challenged through Election Petition, the comments submitted by the Returning Officer are to the effect that the forgery was apparent on record. No evidence was required and perhaps it was on account of this that in the writ petition filed by respondent No,1 the point was conceded by the Returning Officer and the Writ Petition No, 3499 of 1997 was disposed of as having fructified.
12. The reliance of the learned counsel for the petitioner on 1995 SCMR 684 is misplaced as facts in the instant case are distinguishable. In that case the application pending before the Election Commission did not allege "grave illegalities and violation of the provisions of the Act." It was merely application for fresh count after the result had been notified.
The argument of the learned counsel for the petitioner that after the issuance of notification declaring the petitioner to be elected, the Election Commission of Pakistan has become functus officio and that the notification cannot be rescinded as decisive steps have already been taken and the petitioner has taken Oath is not tenable because if the order is illegal then the principle of locus poenitentiae would not be applicable. In Engineer-in-Chief Branch v. Jalaluddin (PLD 1992 Supreme Court 207) at page 210 it was held under:- "Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade-11, they withdrew the said letter. The principle of locus poenitentiae would not apply in this case."
13. The petitioner is in equitable jurisdiction of this Court and has nothing to say on the merits of the main case i,e,, the allegation that the final result announced in his favour was based in documents which did not correctly reflect the vote count. He mainly attempted to press his case on technical grounds and Constitutional petition cannot be pressed into service to challenge the election result and that only election petition is the remedy.
14. In Writ Petition No,3499 of 1997 filed by respondent No,1 the petitioner was representated by his learned counsel and on 18-2-1997 the petitioner (who was respondent in the said writ petition) through his learned counsel had undertaken that he shall not participate in the Election of Speaker and the Deputy Speaker of the Provincial Assembly. On 20-2-1997 this petition was disposed of having furctified on the statement made on behalf of the Returning Officer that the election result had been revised and the petitioner in the said petition i,e,, Nam Singh (who is respondent in the present petition) had secured more votes The petitioner filed Civil Petition for Special Leave to Appeal No,146 of 1997 in the Hon'ble Supreme Court and without disclosing the same has filed this Constitutional petition. This conduct also does not speak too highly of the petitioner.
15. During the course of proceedings before this Court both the parties agreed that they will be satisfied if the Returning Officer is directed to produce the ballet paper before this Court and votes are counted and that they shall bound by the result of fresh count. The case was adjourned to 1-12- 1997 and on the said date the petitioner filed Civil Miscellaneous No,4304 of 1997 praying that Form- XIV has been misplaced and it may be traced and produced before this Court. The case was adjourned to 15-12-1997 but on 11-12-1997 the petitioner moved Civil Miscellaneous No,7 of 1997 praying that this petition be disposed of with the observation that since the matter required evidence to be recorded which was not possible in the writ jurisdiction of this Court and let the Election Tribunal decide the same. The petitioner wriggled out of his undertaking to stand by the fresh count. This conduct is also not too flattering for a person seeking relief in equity.
16. For aforereferred reasons I am of the considered view that this Constitutional petition in so far as it seeks to restrain the Pakistan Election Commission from passing a lawful order on the Reference received from the Returning Officer is not maintainable. The same is, therefore, dismissed with no order as to costs.
17. As the matter has already been delayed and the Election Commission of Pakistan was restrained by an order of this Court to proceed any further, I am persuaded to direct the Election Commission of Pakistan to decide the Reference 'received by it from the Returning Officer of the Constituency in question within a week of the receipt of this judgment. The Additional Registrar (Judicial) of this Court shall transmit a copy of this judgment to the Election Commission of Pakistan, Islamabad forthwith.