The petitioners who desire to participate and contest the election of Senate being held by the Election Commission of Pakistan in February, 2003, have approached this Court invoking its Constitutional jurisdiction in the terms of Article 199 with the following prayer:-- "That Article 8AA of Conduct of General Elections Order, 2002 is un-Constitutional, discriminatory and ultra vires the powers available to the President and of no legal effect.. That the petitioners are entitled to participate and contest in the elections of Senate being held by the Commission in February, 2003. That the respondents be directed to issue and receive the nomination papers from the petitioners in respect of the elections of the Senate as has been issued to other persons in terms of order dated 9-1-2003 passed by Hon'ble Supreme Court of Pakistan in Constitutional Petitions Nos.38 and 39 of 2002. Any other order as may be deemed fit and proper in the circumstances of the case may also be passed. In the meanwhile, interim relief in terms of the Supreme Court order may also be granted in the interest of justice."
2. The petitioners in view of Article 8AA of the Conduct of General Elections Order, 2002 apprehend that their nomination papers will not be entertained by the Election Commission as the petitioners No,2 and No,? Were candidates for election to the National Assembly and petitioners Nos.1, 4 and 5 were candidates for election to the Provincial Assembly, Balochistan and were not elected to such Assembly and stand disqualified in view of Article 8AA of the Election Order. The petitioners taking benefit of the order of Hon'ble Supreme Court passed in Constitution Petitions Nos. 38 and 39 of 2002 filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 by Javed Jabbar and Muhammad Ayub Khan Khattak, both unsuccessful candidates for the election to the National Assembly challenging the validity of the provisions of Article 8AA of the Conduct of General Elections. Order, 2002 also prayed for acceptance of their nomination papers by the Election Commission. The Hon'ble Supreme Court vide its order dated 9-1-2003 was pleased to issue directions that in case the petitioners (before Hon'ble Supreme Court) choose to file nomination papers to contest the Senate Election and are not found disqualified on any ground other than that provided in Article 8AA of the Conduct of General Elections Order, 2002 their nomination papers shall not be rejected in view of the provisions of Article 8AA of the Conduct of General Elections Order, 2002. However, the acceptance of the nomination papers shall, be provisional and subject to the final decision of these petitions.
3. Mr. Ayaz Sawati, Advocate the learned counsel for the petitioners came up with the only argument that as Hon'ble Supreme Court has already issued direction to the respondents not to reject the nomination papers of the petitioners (before Hon'ble Supreme Court) on the grounds provided in Article 8AA of the Conduct of General Elections Order, 2002, therefore, the petitioners are also entitled for the same relief.
4. On the other hand the learned Deputy Attorney-General objected to the maintainability of this petition and argued that this Court cannot take cognizance of the matter sub judice before the Supreme Court. The original jurisdiction of Hon'ble Supreme Court under Article 184 is exercised when the question of public importance or the enforcement of Fundamental Right is involved while the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can exercise jurisdiction in case when an aggrieved person having no other alternate remedy provided by the law approaches the High Court. It was further argued that under Article 225 no election to the House or Provincial Assembly can be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by the Act. The learned Deputy Attorney-General contended that this petition is premature as no order has been passed by Election Commission reject* the nomination papers and the petitioners have alternate remedy as they can approach the Election Tribunal where they can agitate the grounds taken in this petition regarding entitlement of petitioners to contest election in view. Of the order of Hon'ble Supreme Court referred to hereinabove.
5. The submissions made by the learned counsel for the parties considered. The order dated 9-1- 2003 passed by Hon'ble Supreme Court has also been perused. The petitioners are mainly aggrieved of the amendment made in the Conduct of General Elections Order, 2002 whereby Article 8AA was inserted and; having not been elected from any of the above said constituency the petitioners stand disqualified to contest the Senate election. The prayer made by the petitioners is to declare the said amendment un Constitutional, discriminatory and ultra vires. Also by way of consequential relief, the petitioners seek declaration to the effect that they are eligible and qualified to contest election of the Senate. The vires of Article 8AA of the Conduct of General Elections Order, 2002 has been challenged before Hon'ble Supreme Court by means of Constitutional Petitions Nos.38 and No,39 of 2002 and the same is sub judice, therefore, taking of cognizance of same matter by High Court is not appropriate. The above view is supported by the judgment of the Full Bench of Lahore High Court in Writ Petition No,6228 of 1990 (Khawaja Ahmad Tariq Rahim v. Federation of Pakistan) PLD 1991 Lahore 78 wherein following observation was made:-- "As regards the objection to the validity of the Eighth Amendment in the Constitution raised by the learned counsel for the petitioner in Writ Petitions Nos.5849 of 1990 and 379 (Peshawar) of 1990, suffice it to observe that this question was raised in case '"Malik Ghulam Mustafa Khar and others v.
Pakistan and others" PLD 1988 Lah. 49 but was repelled by a Full Bench of this Court. The Supreme Court of Pakistan while deciding the appeal against that judgment, did not take a contrary view.
Furthermore, as the matter is pending before the Supreme Court in appeal filed by Abdul Mujeeb Pirzada against the judgment of Sindh High Court, we do not consider it appropriate to re-open this controversy, especially when in the two petitions filed by directly affected persons, this argument was not raised, rather all the other learned counsel made a joint request to leave this matter for decision' by the Supreme Court."
6. In view of above, the grievance of petitioners regarding insertion of Article 8AA of the Conduct of General Elections Order, 2002 cannot be examined by this Court.
7. Under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 this Court can take cognizance of the matter where no adequate altered remedy is provided by law for the redressal of an aggrieved person. Schedule of Senate Election has been announced, petitioners are yet to approach Election Commission for filing of their nomination papers and in case their papers are refused they can approach Election Tribunal as per following Schedule:- (a)Filing of Nomination Papers 8-1-2003 to 22-1-2003 (b)Scrutiny 23-1-2003 to 29-1-2003 (c)Filing of Appeal 31-1-2003 (during office hours)
(d)Disposal of Appeals by. 6-2-2003 (e)Last date of Withdrawal 7-2-2003 (f)Publication of List of Contesting Candidates.8-2-2003 (g)Polling Day 24-2-2003 (09-00 to 16-00 hours)
(h)Place of Poll Provincial Assembly Building, Quetta.
8. The petitioners admittedly have not approached the Election Commission for filing of their nomination papers and directly invoked Constitutional jurisdiction of this Court on the apprehension that the Election Commission will not accept their nomination papers. Only on the basis of their apprehension the petitioners can hardly be termed as aggrieved persons.
Furthermore, in case of. Rejection of their nomination papers they have further remedy to approach the Election Tribunal where they can agitate the grounds taken in this petition. Besides, as already pointed out; the main grievance of petitioners regarding insertion of Article 8AA of the Conduct of General Elections Order, 2002 being sub judice before Hon'ble Supreme Court cannot be examined by this Court. However, as it has already been held that the petitioners before rejection of the nomination papers cannot be termed as aggrieved party while adequate alternate remedy is also available to them, therefore, the requirements for bringing into motion the powers of the Court under Article 199 is not available. In such view of the matter I, have no hesitation to hold that there exists no circumstance whereby this Court can exercise jurisdiction under Article 199 of the Constitution of Republic of Pakistan, 1973. However, 1 am unable to persuade myself to agree with the contention of learned Deputy Attorney-General that petition is barred in view of Article 225.
The said Article covers only dispute relating to election whereas in the present case the dispute is regarding eligibility of the petitioners to be candidates in the forthcoming elections for Senate, therefore, the said bar does not attract in the instant case.
9. The upshot of the above discussion is that this petition is devoid of any substance for the same having been filed prematurely, accordingly the same is dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.