' This petition for leave to appeal is directed against an order passed by the High Court on 10-9- 1998, whereby the writ petition filed by respondent No,1 was admitted for regular hearing and the interim relief was granted in the following manner:-- "All the proceedings of elections to Constituency I-A-38, Valley-IV to the Legislative Assembly shall remain suspended till further orders. Objections to this order, if any, shall be filed on or before the next date of hearing."
2. The precise facts, giving rise to the present petition for leave to appeal, are that initially respondent No,1 was granted State Subject Certificate by the District Magistrate, Muzaffarabad on 14-3-1996. On the basis of aforesaid State Subject Certificate the name of respondent No,1 was entered in the Electoral Roll for LA-39, Valley-V, at its Serial No,210. The respondent filed nomination papers to contest general elections of Azad Jammu and Kashmir Legislative Assembly held on 30- 6-1996. The respondent was declared returned candidate from Constituency LA-38, Valley-IV. The petitioner and another, namely Abdus Salam Butt, challenged the respondent's State Subject Certificate, the entry of vote in the Electoral Roll, nomination of respondent for the election of LA-38, Valley-IV and the notification dated 14-7-1996, declaring respondent as returned candidate through a writ petition in the High Court. The Hon'ble High Court accepted the writ petition on 13-4- 1998, declaring that the State Subject Certificate issued in respondent's favour on 14-3-1996, alongwith subsequent actions including the notification declaring respondent as returned candidate dated 14-7-1996, were without lawful authority and the fresh election in the said Constituency was ordered. The judgment of the High Court was upheld by this Court vide its judgment dated 3-8-1998. This Court also directed for re-election in the said Constituency.
3. The review petition filed by respondent was also rejected by this Court on 25-8-1998. In compliance with the direction of this Court vide its judgment dated 3-8-1998, the Chief Election Commissioner issued Election Schedule to hold bye-election in Constituency LA-38, Valley-IV However, respondent managed to get a fresh State Subject Certificate from District Magistrate, Mirpur on 7-9-1998. Prior to that vide letter dated 29-8-1998, the Chief Election Commissioner sent the copies of judgments of High Court dated 13-4-1998 and of this Court dated 3-8-1998, to the Returning Officer, whereby the status of respondent No,1 was notified.
4. In view of the Election Schedule announced by the Chief Election Commissioner, the last date for filing the nomination papers was fixed as 1-9-1998. The scrutiny of nomination papers was to be held on 2-9-1998. The respondent could not file his nomination papers on due date as according to the petitioner he was not qualified on the aforesaid date. After obtaining the State Subject Certificate, respondent No,1 filed an application before the Chief Election Commissioner praying therein that nomination papers of respondent may be accepted. The aforesaid application was rejected by the Chief Election Commissioner on 9-9-1998. The other application for stopping the election was also rejected by the Chief Election Commissioner on 10-9-1998. Feeling aggrieved by the aforesaid orders, respondent No,1 filed a writ petition before the High Court on 10-9-1998, praying therein that after the renewal of his State Subject Certificate re-election in the relevant constituency could not be held and in the alternative a prayer was made that respondent may be declared qualified to contest the election from Constituency LA-38, Valley-IV. Alongwith the writ petition a separate application was filed by the respondent for grant of stay order. The writ petition filed by respondent was admitted for regular hearing by a learned Judge in the High Court on 10-9- 1998, and on the same date the learned Judge, by granting an interim relief, suspended the process of election. The petitioner, who was a contesting candidate for bye-election from Constituency LA-38, Valley-IV, however was not impleaded as party to the writ petition filed by respondent No,1. The petitioner was thus constrained to file the present petition for leave to appeal for setting aside the impugned order of the High Court dated 10-9-1998.
5. Arguing the case on behalf of petitioner, it was vehemently contended by Raja Muhammad Hanif Khan, the learned counsel, that bye-election to Constituency LA-38, Valley-IV, is being held in compliance of the direction given by this Court in its judgment dated 3-8-1998. The Election Schedule dated 24-8-1998, was issued so as to give effect to the aforesaid judgment of this Court.
Thus suspension of the process of election through the impugned order tantamounts to frustrate the object of judgment of this Court dated 3-8-1998.
' The learned counsel also submitted that issuance of stay order is a severe contempt of Court on the part of respondent No,1 and the High Court. The learned counsel contended that State Subject Certificate issued on 14-3-1996 and consequential orders including the notification of election dated 14-3-1996, have been declared as being without lawful authority by this Court. Subsequent issuance of State Subject Certificate in the name of respondent on 7-9-1998, does not revive the status of respondent as a State Subject. The learned counsel also A contended that the subsequent State Subject Certificate issued in favour of respondent No,1 on 7-9-1998, does not qualify him to contest the election for Constituency LA-38, Valley-IV, for the reason that only the refugees of State of Jammu and Kashmir who left the occupied part of the State as a result of Wars of 1947, 1965 and 1971 are eligible to contest the election from the said constituency. The respondent in accordance with his State Subject Certificate dated 7-9-1998, was born on 6-4-1958, in Pakistan and was not a refugee nor his father was a refugee hence the respondent did not qualify to contest the election from Constituency LA-38, Valley-IV merely on the basis of new State Subject Certificate. The learned counsel contended that respondent's name from voters' list has been declared invalid on the ground that the name of respondent was entered in the Electoral Roll on the basis of State Subject Certificate dated 14-3-1996, which has been declared as being without lawful authority. Likewise, all actions taken, orders passed in respondent's favour, on the basis of State Subject Certificate dated 14-3-1996, have been declared unlawful and mere wrong entry of Constituency LA-38, Valley-IV instead of LA-39, Valley-V, is not sufficient to hold that respondent's vote No,210 entered in the Electoral Roll for Constituency LA-39, Valley-V, is still intact. Rather Vote No,210 has been declared cancelled which is entered in LA-39, Valley-V. The respondent's name does not appear at Serial No,210 in LA-38, Valley-IV; hence it shall be deemed that respondent's vote has since been declared unlawful. The respondent had not applied for entry of his name in the Electoral Roll after issuance of State Subject Certificate dated 7-9-1998, therefore he was not qualified to contest bye-election from Constituency LA-38, Valley-IV. The learned counsel also submitted that respondent deliberately had not impleaded petitioner as party to the writ petition, so no effective writ without impleading the petitioner as party could be issued; hence the writ petition was not competent. By concluding his arguments, the learned counsel contended that respondent failed to file the nomination papers in accordance with the Schedule of Election on the specified date, therefore, he was not eligible to contest the election. The learned counsel also contended that the High Court committed the violation of rule 34 of the High Court Procedure, Rules and no cogent reason was advanced for dispensing with the provisions of the said rule.
6. On the other hand, Kh. Shahad Ahmed, the learned counsel for respondent No,1, controverting the arguments raised by the learned counsel for the petitioner, submitted that the petitioner had no locus standi to file the petition for leave to appeal as he was not adversely affected by the order of the High Court. Since the respondent challenged the order of election authorities, so it were only the said authorities who had been arrayed as parties. The learned counsel also contended that Returning Officer has wrongly refused to accept the nomination papers of the respondent.
According to the learned counsel the Chief Election Commissioner has wrongly mentioned that Returning Officer has denied the allegations in parawise comments as the same had not been filed by Returning Officer rather they have been sent by some other person who stated that he contacted the Returning Officer on telephone. In this view of the matter,. According to the learned counsel, these comments could not have been said to be the comments submitted by the Returning Officer. The learned counsel vehemently argued that the Chief Election Commissioner has illegally and against the facts passed the order impugned before the High Court. His stand.
That nomination papers were not presented before him is also incorrect. In fact nomination papers were presented before him, submitted the learned counsel.
7. In support of his contentions the learned counsel relied on a receipt Annexure 'A', whereby Rs.2,000 were deposited as security Annexure 'B', is nomination paper of respondent No,1, purported to have been presented on 1-9-1998. Then the next document is an affidavit filed by Abdur Razzaq Butt, Annexure 'C' and a copy of comments filed by Duty District and Sessions Judge, Rawalpindi Annexure D'. Annexure. 'E' is an application addressed to the Chief Election Commissioner moved by respondent to the effect that he presented his nomination papers before the Returning Officer on 1- 9-1998, but Returning Officer refused to issue any order or to keep the nomination papers with him.
On the application the Chief Election Commissioner called for parawise comments from the Returning Officer on the same date. The learned counsel contended that section 25 of Azad Jammu and Kashmir Interim Constitution Act, 1974 whereby under sub-section (3) in case of vacancy the seat is to be filled in within sixty days is not a mandatory provision because section 56-A of the said Act provides:- ' "When any act or thing is required by this Act to be done within a particular period and it is not done within that period, that doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period."
' Therefore, according to the learned counsel, if the Election Schedule is changed or revived it would not be a violation of the Constitutional provisions. The learned counsel contended that the Supreme Court in its judgment under review opened the door that the respondent, if so advised, may get a fresh State Subject Certificate on the basis of satisfactory evidence produced before the District Magistrate. This obiervation implies that in fact the intention of the Court was that if the respondent gets a new State Subject Certificate, he would be eligible to contest the election. The learned counsel for respondent seriously opposed the grant of leave.
8. I have given my deep consideration to the arguments addressed at Bar and perused the relevant record with care. After hearing the submissions made by both the learned counsel for the parties, I am of the view that points canvassed in the present petition are of vital legal importance needing detailed examination to be resolved in a regular appeal. Leave is, therefore, granted.
Security Rs.1,000, failing which the leave granted shall stand rescinded . Office is directed to get completion of the file and place the same before the learned Chief Justice for proper orders.
9. There is also an application for suspension of operation of the order of High Court dated 10-9- 1998, moved by the petitioner herein, duly supported by his affidavit. On this application vide my order dated 17-9-1998, I suspended the impugned order of the High Court subject to objections from the opposite side. Accordingly the objections have been filed by the contesting respondent.
10.. In support of the application it was contended by Raja Muhammad Hand Khan, the learned counsel for the petitioner, that the High Court vide the order impugned dated 10-9-1998, had suspended the process of election scheduled to be held on 29-9-1998, in Constituency LA-38, Valley-IV. The order of suspension of election process, according to the learned counsel, on the one hand is violative of the Constitutional provisions and on the other it tantamounts to frustrate the directions given by this Court in its judgment dated 3-8-1998.' The learned counsel submitted that under subsection (3) of section 25 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, where a seat in the Assembly has become vacant the election to fill in the same shall be held within sixty days from the occurrence of the vacancy. The learned counsel submitted that under the said Act and in accordance with the directions of this Court vide its judgment dated 3-8-1998, the Chief Election Commissioner was bound to hold the elections within sixty days and this, being the Constitutional process, could not have been stopped or suspended by the High Court. The learned counsel submitted with vehemence that in accordance with the election schedule, issued by the Chief Election Commissioner, the date for filing the nomination papers was 1-9-1998, whereas the date of scrutiny of nomination papers was 2-9-1998, but respondent No,1 did not file his nomination papers on the date fixed for the said purpose. The learned counsel contended that State Subject Certificate, on the basis of which the respondent claims himself to be eligible to contest the election, was issued on 7-9-1998, whereas the date fixed for filing the nomination papers was 1-9-1998, and after scrutiny it was either to be accepted or to be rejected. The learned counsel pointed out that the Chief Election Commissioner has rightly observed that the qualification of respondent No,1 for the purpose of election to the member of Legislative Assembly is required to be determined on the date fixed for filing of nomination papers or at the most on the date on which the same was to be accepted or to be rejected after scrutiny. The learned counsel also contended that in the writ petition the petitioner was not arrayed as a party so he was left with no option except to file the present petition for leave to appeal and the application for suspension of impugned order of the High Court.
11. On the other hand; Kh. Shahad Ahmed, the learned counsel for respondent No,1, pressed into service the submission that on 1-9-1998, the respondent did file his nomination papers before the Returning Officer but the same were not either accepted or rejected by the Returning Officer. Then the Chief Election Commissioner was informed that the preparation of the fresh State Subject Certificate was under process and it would be available within a few days so the respondent may be allowed to contest the election. It was also brought to the notice of Chief Election Commissioner that the Returning Officer has without any cogent reason refused to take the nomination papers of respondent No, 1 . The Chief Election Commissioner illegally rejected the application filed by the respondent. Then another application was moved and alongwith it a photostat copy of new State Subject Certificate was appended but all the same this application too was rejected.
12. After hearing the respective contentions of the learned counsel for the parties and perusing the record, I am of the view that the election authorities were well aware of the judgments recorded by the High Court and the Supreme Court, whereby the State Subject Certificate of respondent No,1 was cancelled and in consequence of which his vote in the Electoral Roll was also cancelled.
Similarly the notification of respondent No,1 as being elected member of the Legislative Assembly was also declared as null and void. In this background as the new State Subject Certificate was not ready on 1-9-1998, therefore the respondent was not in a position to file his nomination papers on 1-9-1998. Even on the date of scrutiny the State Subject Certificate had not been issued in favour of respondent No,1 thus by failing to file his nomination papers on the date fixed for the purpose and the scrutiny, the respondent automatically comes out of the field of contesting candidates. It was rightly observed by the Chief Election Commissioner that the Provisional Certificate in favour of respondent No,1 was issued on 3-9-1998, whereas the date fixed for filing the nomination papers was 1-9-1998, and after scrutiny on 2-9-1998 it was either to be accepted or rejected. The qualification of respondent No,1 for the purpose of his election to the membership of the Legislative Assembly was required to be determined on the date fixed for filing of nomination papers or on the date on which the same was to be accepted or rejected after scrutiny. The Certificate, alleged to be Provisional State Subject Certificate, had not been issued in favour of respondent No,1 by the District Magistrate even on the date when after holding the scrutiny nomination papers were to be accepted or rejected by the Returning Officer.
13. There seems to another predicament in the way of respondent No,1 that a person does not become qualified to be a candidate for the election to the seat of Legislative Assembly reserved for refugees merely on the basis of the State Subject Certificate. His name should appear on the Electoral Roll of any Constituency in Pakistan. The name of respondent as a voter was entered on Electoral Roll Area Ward No,6. Municipal Committee/Electoral Area Murree, at Serial No,210, which stood deleted in view of the decisions of the High Court and this Court with the result that he did not qualify to be a member of the Legislative Assembly. The respondent will have to get himself entered as a voter in the concerned Electoral area in accordance with relevant law to be qualified as a candidate for election to the Legislative Assembly.
14. The argument raised by Kh. Shahad Ahmed, the learned counsel for respondent No,1, that after getting the new State Subject Certificate the respondent's status shall be restored to the position as duly elected Member of the Legislative Assembly from the said Constituency, is without any merit and cannot be inferred so from the perusal of the judgments recorded by the High Court and the Supreme Court.
15. Another objection raised by Kh. Shahad Ahmed that the comments called for by the Chief Election Commissioner were not sent by the Returning Officer who was the relevant man but were sent by Duty District and Sessions Judge, Rawalpindi and those too after getting telephonic information from the Returning Officer, also merits no consideration for the simple reason that in accordance with the Election Schedule, decisions on appeal were to be given by the Chief Election Commissioner on 9-9-1998, therefore, on 8th September, 1998, the comments were called by the Chief Election Commissioner and the same were sent by the Duty District and Sessions Judge, Rawalpindi on the same day and the appeal was decided on 9-9-1998. The Duty District and Sessions Judge, being a responsible judicial officer, had no motive or animus to submit the comments against the facts. Whatever was conveyed by the Returning Officer was submitted in the shape of comments by the Duty District and Sessions Judge. Therefore the presumption would be that the comments were sent to the Chief Election Commissioner on the basis of correct and right information. The mere fact that the comments were not sent by the Returning Officer would not by itself be a sufficient ground to disbelieve the information as the Schedule of the Election was a tight one, therefore, the Chief Election Commissioner could not have waited till the Returning Officer had come back after spending his holidays.
16. Keeping in view the overall circumstances of the case and the essential ingredients for grant or refusal of interim injunction, i.e, prima facie case, the balance of convenience and irreparable loss, I am of the view that the petitioner, herein, has made out a prima facie case in his favour and if the process of election is stopped the petitioner shall suffer an irreparable loss. Therefore, it would serve the ends of justice if the impugned order of the High Court dated 10-9-1998, whereby the process of election was stopped, is suspended till decision of appeal. I, therefore, .