SAEED-UR-REHMAN FARUKH, J.- The facts forming the background of this writ petition are quite brief; the petitioner and respondent No. 3 are candidates for election-to the National Assembly of Pakistan from NA-97, Lahore and both filed their nomination papers. The nomination papers of the petitioner were accepted by the Returning Officer, respondent No. 2 while nomination papers of respondent No. 3 were rejected on 28-12-1995 on the ground that his proposer was not enrolled as a voter in this constituency. This is despite the fact that respondent No. 3 during the course of hearing of objections about his nomination papers applied to the Returning Officer for permission to rectify the nomination papers by substituting the name of another person enrolled as voter in this constituency as, a proposer.
Respondent No. 3 filed an appeal against the order of respondent No. 2 before Election Tribunal, respondent No. 1 herein, under section 14(5) of Representation of Peoples Act, 1976 which was accepted on 7-1-1997 through the order, impugned in the present writ petition and he was allowed to substitute his proposer. This concession, we are informed, was promptly availed of. Hence the present writ petition.
2. It is contended by Mr. Ashtar Ausaf Ali. Advocate, learned counsel for the petitioner that there was no valid nomination paper on behalf of respondent No. 3 filed till 21-12-1996, last date fixed by the Election Commission of Pakistan and as such respondent No. 3 stood decisively excluded from the contest. According to him, the permission granted by the leamed Election Tribunal for substitution of the proposer was an exercise which was clearly illegal as it amounted to extension in the date of submission of nomination papers which was beyond the scope of its authority and as such it merits to be struck down. It was also urged that the defect in the nomination papers of respondent No. 3 being of substantial nature, within the meaning of section 14(3)(d)(ii) of Representation of the Peoples Act, 1976 it was neither open for the Returning Officer nor for the learned Election Tribunal to condone it.
Learned counsel with a view to seek support for the proposition that a nomination paper, carrying the name of proposer not being enrolled in the constituency under contest, was liable to be rejected, relied on a decision of the Election Tribunal Punjab in Hafiz Muhammad Abbas's case reported as (1993 M LD 2509).
3. While opposing the writ petition, Mr. S.M. Zafar, Advocate, leamed counsel for respondent No. 3 raised a preliminary objection about the maintainability of the writ petition on the ground that since the scrutiny of nomination papers was part of election process which was already in progress which was already in progress, no power vested in High Court under Article 199 of the Constitution to intervene in the impugned decision in view of the clear bar of Article 225 of the Constitution. He placed strong reliance on Javid Hashmi's case (PLD 1989 SC 396).
Alternately it was submitted that proceedings of appeal before learned Election Tribunal being in continuation of that Returning Officer, no legitimate grievance can be made of the fact that the appellate forum allowed respondent No. 3 to remove the defect in his nomination papers by substituting the proposer. It was also argued that the defect was of inconsequential nature and its removal did not affect the election process adversely in any manner and on the contrary tended to advance the real purpose of the Act by providing protection to respondent No. 3 from being disenfranchised.
4. Before dealing with the merits of the case, we deem it necessary to first advert to the objection about the non maintainability of the writ petition.
Lt is true that in Javed Hashmi's case supra, Supreme Court of Pakistan has laid down that once the election process is set in motion, resort to writ jurisdiction cannot be allowed in view of the- prohibitive force of Article 225 of the Constitution which postulates that no election to a house or a Provincial Assembly can be called in question except by a election petition before Election Tribunal.
However, it must be borne in mind that in the precedent case, Javed Hashmi, the writ petition was in the field of electioneering after having successfully crossed the hurdles of scrutiny of his nomination papers. His complaints/grievance, about the shifting of election staff etc. During the course of election campaign, were held by their Lordships of the Supreme Court to be not amendable to writ jurisdiction and were found to be only capable to being raised before Election Tribunal through an election petition after the elections were over. In the instant case due to the rejection of his nomination papers by the Returning Officer, respondent No. 3 was not to be deemed to be a candidate within the meaning of section 2(iv) of the Act who could be asked to wait for the end of the election process and then to give went to his grievance through an-election petition.
5. The facts of the present case are more akin to that of Ghulam Mustafa Jatoi's case (1994 SCM R 1299) wherein the name of the candidate was dropped ex- part e from the published list of candidates and having failed before the High Court in writ jurisdiction, he rushed to Supreme Court and was ultimately granted relief and after holding his nomination papers to be valid, he was allowed to contest the election, which the, incidentally, won by a comfortable majority. The objection about the availability of remedy of election petition, in such a situation, was overruled and it was held that a election petition cannot be filed, by a candidate whose nomination papers had been rejected and who could not participate in the election on that account. It was laid down at page 1321 of the report:- "------ 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 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 election functionary which is patently illegal/without jurisdiction and effect to which is to disenfranchise a candidate he can press into service Constitutional jurisdiction of the High Court ".
(underlining is ours).
The bar of Article 225 of the Constitution is thus not absolute. In Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738), their Lordships of the Supreme Court have laid down at page 764 that even if the impugned act or action has been protected by a Constitutional provision by ouster clause, the superior Courts, Still have the jurisdiction to interfere with in the above three categories of cases, namely without jurisdiction, coram-non-judice and mala fide. In Utility Stores Corporation of Pakistan (PLD 1987 SC 447), Supreme Court has laid down that when a Tribunal goes wrong in law, it goes outside jurisdiction conferred on it and such a decision of the Tribunal can be quashed in writ jurisdiction.
Moreover, respondent No. 3 being beneficiary of the order of Election Tribunal cannot be permitted to object to the filing of writ petition by his opponent who has assailed the said order as being illegal.
6. For what has been stated above, the objection about the non maintainability of the writ petition is repelled.
7. Coming to the merits Of the case, it is true that the nomination papers of respondent No. 3 when initially filed were not in accord with section 14(3)(b) of the Representation of the People Act, 1976 and hence liable to be rejected. However, it cannot be omitted from consideration that at the time of hearing of objections to this nomination paper, respondent No. 3 offered to substitute the name of his proposer. This plea was no acceded to. The leamed Election Tribunal permitted him to remove the defect by substituting the name of a voter in the constituency as a proper in place of the original one who was not enrolled there as such. This concession has been admittedly availed of.
"The intent of election laws is to permit people to freely participate in the election. The election process in consequence of the impugned order, has not been impleaded hampered in any manner." It would be too harsh and unjust to oust respondent No. 3 at .This stage from the contest and thus make room for the petitioner to have a walk over." Therefore, keeping in view the facts and circumstances of the case, while treating the impugned order to be tainted with legality, we refrain, in our discretionary jurisdiction under Article 199 of the Constitution from declaring it to be without lawful authority and refuse to quash it. While dong so, we have in our mind, for our guidance, the principles laid down by Supreme Court of Pakistan in Wali Muhammad's case (PLD 1974 SC 106):- "grant of relief in writ jurisdiction being entirely discretionary with the High Court, the Judge would have certainly acted in aid of justice in refusing any relief to the respondents on the facts of the case, even if because of any technical reason, the order of the tribunal below was not strictly found justifiably. It is well settled principle that in High Court, writ jurisdiction can be invoked in aid of justice."
The petitioner cannot be permitted to secure a technical knock out in the election contest.
The writ petition is dismissed. No costs.