CH. IJAZ AHMAD, J.---We intend to decide the following writ petitions by one consolidated judgment having similar facts and law:--
(1) W.P.No,13955/2002.
(2) W, P.No,13222/2002.
(3) W.P.No,13914/2002.
(4) W. P. No, 12410/2002.
(5) W.P.No,12080/2002.
2. The petitioners in the aforesaid writ petitions have assailed the delimitation of PP-164, PP-165, NA- 131, NA-132, NA-135, PP-172, PP-173, PP-174, NA-136 and NA-137 respectively as finalized by the Election Commission of Pakistan under section 10(3) of the Delimitation of Constituencies Act (XXXIV of 1974) notified on 28-6-2002.
3. Learned counsel for the petitioner in writ petition at Serial No,1 submits that provisional notification was issued by the respondents on 26-3-2002 in terms of section 9 of the aforesaid Act but subsequently in violation of mandatory provisions Faizpur Khurd Patwar Circle was excluded from PP-165 and included in PP-164. Similarly six Patwar Circles consisting of (1) Banssi Nagar (II)
Burj Atari (III) Moran Wala (IV) Rana Bhatti (V) Sahad Pur were excluded from PP-165 and wrongly added in PP-164. He further submits that the respondents constituted four Provincial Constituencies in Tehsil Ferozewala consisting of PP-162, PP-163, PP-164 and PP-165. He mentioned the population of the aforesaid constituencies to show the difference qua the population in the said constituencies which is as follows:-- (1)PP-162241,887 (2)PP-163234,225 (3)PP- 164244,273 (4)PP-165 272,244 He submits on the basis of the aforesaid data that at least there is difference of 27,000 in PP-165 with regard to the remaining constituencies.Therefore, impugned notification is not in accordance with the parameters prescribed by the Legislature in section 9 of the aforesaid Act, He further urges that in the final notification the respondents did not follow the principles contained in section 9 qua distribution of population, geographical compactness, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of constituencies.
4. Learned counsel for the petitioner in writ petition at Serial No,2 submits that no representation was filed by any person against the preliminary Notification dated 26-3-2002 therefore, the respondents thus erred in law to modify the preliminary notification in the final impugned notification dated 28-6-2002. He further urges that Patwar Circle, Jawahaipur of RehanWala, Qanungo Halqa, Teshil Nankana, Patwar Circle, Kala Khanpur and Mandiali of Abul Khair Qanungo Halqa have wrongly been included in NA-132 of Tehsil Ferozewala. Similarly Patwar Circles of Qanungo Halqa Kot Pindi Das, Qila Sattar Shah, Wandala Nasir and Sekhwan were also wrongly included in NA-132 of Tehsil Ferozewala. He further submits that Patwar Circle Jahanianwala of Qanaungo Halqa Kot Pindi Das, Tehsil Ferozewala be excluded from PP-166 and be included in PP- 163 or PP-164 of Tehsil Ferozewala. He summed up his arguments that respondents issued the aforesaid impugned notification in violation of the principles laid clown in section 9 of the Act.
Therefore, the same is not sustainable in the eyes of law.
5. Learned counsel for the petitioner in writ petition at Serial No,3 submits that petitioner was out of country when preliminary notification and final impugned notification were issued by the respondents, he however, submitted a representation before the Chief Election Commissioner on 25-7-2002 with the prayer for inclusion of Patwar Circle Chak No,184/R.B. Of Shahkot Qanungo Halqa Safdarabad, Tehsil and District Sheikhupura in NA-135 Sheikhupura 5 but the learned Chief Election Commissioner of Pakistan expressed his regrets and said that at this stage he could not do anything and asked the petitioner to approach this Court. He further urges that Chak No,184/R.B.
Was constantly being a part and parcel of NA-135 and inclusion of the said Chak in NA-137 is against the declared policy of the respondents themselves. He further urges that it would create hurdles for the petitioner and his voters/supporters/friends living in the said Chak would not be able to cast vote for him and support him in the coming elections. He further submits that principle of homogeneity was not taken into consideration at the time of issuing the impugned Notification.
He summed up his arguments, that learned Chief Election Commissioner refused to entertain the application meaning thereby he refused to exercise his statutory duty. Therefore, action of the respondent is not sustainable in the eyes of law.
7. Learned counsel for the petitioner in writ petition at Serial No,4 submits that petitioner filed representation before the respondent which was decided by the respondent on 15-6-2002 without applying his mind and rejected the representation of the petitioner summarily without any reasons as is evident from para.7 of the order of the respondent dated 15-6-2002. He further submits that after addition of section 24-A in the General Clauses Act it is duty and obligation of the authorities to decide the controversy between the parties with reasons. He further urges that he had taken various grounds in the representation but the respondent did not consider any of those grounds in the impugned order. He further submits that it is the duty and obligation of the Election Commission by virtue of Article 218 to organize and conduct the elections 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. He further submits. That by virtue of Article 222(b) it is the duty cast upon the Commission to make delimitation of constituencies in accordance with law. The respondent did not issue preliminary .Notification in terms of section 10(1)(2) and also did not decide the representations in terms of section 10(3).
Therefore, preliminary notification and the final notification are non-existent in the eyes of law as the same were issued by the Commission in violation of the mandatory provisions of law and Constitution. He further highlighted that reasoned order on the representation of the petitioner was not supplied by the respondent, therefore, the petitioner was not able to allege grounds of attack in the memorandum of writ petition. In support of his contention he relied upon unreported judgments of this Court in W.P. No,12885 of 2002 and W.P. No,12178 of 2002.
7-A. Learned counsel for the petitioner in writ petition at Serial No,5 submits that respondents wrongly excluded Patwar Circle Mora, Asilpur, Jalal Nau, Mangtanwala from the old Constituency No,NA-105 and included in NA-136 and Wrongly included Patwar Circle 184/R.B., 1811R.B., 177/R.B.
Qanungo Halqa Shahkot, Tehsil Safdarabad and Patwar Circle 572/G.B. Of Qanungo Halqa Warbarten, Shireen Jahangir and Nankana Sahib in NA-137. Old Constituency No,NA-105 was constituted long ago under the provisions of aforesaid Act and petitioner has been elected four times as a Member Provincial Assembly from former Halqa PP-143. He further submits that it is the duty and obligation of the respondents to keep the old constituencies intact instead of bifurcating the said old constituencies without any justification. He summed up his arguments that impugned notification is not in accordance with mandatory provisions of the aforesaid Act. He further submits that it is the duty and obligation of the respondents to issue the impugned notification keeping in view the principles laid down in section 9. The preliminary notification was issued by the respondents keeping in view the guidelines prescribed in section 9. Subsequent Notification was issued by the respondents in violation of guidelines prescribed in section 9. Initial notification was issued by the respondents demarcating the constituency vertically whereas the final notification was issued horizontal division. It is the duty of the respondents to exclude some area from Tehsil Nankana Sahib for the purpose of meeting the criteria of population qua the other seats on account of addition of seats. The respondents had disturbed three Tehsils through the impugned Notification. Therefore, impugned notification and order of Commission is not in accordance with law. It is contended that this Court has ample jurisdiction to entertain the Constitutional petitions where the action of the respondent is not in accordance with law in view of Preamble of the Constitution read with Article 2A as the Objectives Resolution is substantive part of the Constitution after addition of Article 2A in the Constitution. He further submits that More Khunda is divided into two parts through the impugned Notification.
8. Kh.Saeed-uz-Zafar, learned Deputy Attorney-General submits in writ petition mentioned at Serial No,1 that impugned notification was issued by the competent authority keeping in view the principles contained in section 9 of the Act. He further submits that it is the sole discretion of the respondents to issue a Notification qua delimitation in view of sections 10. 11 and 12 read with Article 222(B) of the Constitution. He further urges that this Court has no jurisdiction to substitute its own findings in place of the finding of the Tribunal below while exercising power under Article 199 of the Constitution. He further submits that Amanat Ellahi son of Habib Ullah, Rehmat Ali Dogar son of Din Muhammad, Faiz Ahmad son of Ghulam Alimad Khan filed representations against preliminary Notification dated 26-3-2002 qua -PP-164/165 before the respondents and the impugned notification was issued after hearing the objections keeping in view the homogeneity, population and compactness. The respondents did not violate any principle mentioned in section 9 of the Act.
He submits that main town in PP-164 is Kot Abdul Malik which is situated on Lahore-Sheikhupura Road whereas main town Sharaqpur Sharif in PP-165 which is situated on Lahore Jaranwala Road.
Therefore, Patwaf Circles mentioned in the impugned Notification were adjusted by the respondents in the best interest of the people of area in terms of section 9 above. He further submits that there is a Railway 'I'rack and Motor Way in PP-164. Therefore, keeping in view the means of communications the aforesaid Patwar Circles were adjusted in between PP-164 and PP-
165. He further submits that no Patwar Circle is broken in whole of the District. He further submits that initially there were 11 Provincial seats in District Sheikhupura which have been increased on account of increase in population from 11 to 13. The following seats were allocated to teach Tehsil:-- (1)Tehsil Ferozewala =4 (2)Tehsil Nankanan Sahib=3 (3)Tehsil Safdarabad = 2 (4)Tehsil Sheikhupura = 4 Total = 13 He further submits that total population of District Sheikhupura is 3321029 which was divided by 13 seats therefore District quota per seat was determined as 255,464. Keeping in view that criteria the competent authority has excluded three Patwar Circles from Tehsil Nankana Sahiband added the same in Tehsil Safdarabad otherwise population of Safdarabad qua two seats was not in terms of the aforesaid quota fixed by the competent authority in terms of the population of District Sheikhupura. He further submits that the respondent is competent to adjust the constituencies in the impugned notification without issuing any notice to the aggrieved persons by virtue of section 10-A of the said Act.
9. Chaudhry Muhammad Sajjad, Advocate, submits that impugned notification was passed after considering the representation of the aforesaid objectors. The writ petition is liable to be dismissed as the petitioner did not implead all the parties. He further submits that there are two Nallas in these constituencies which create hurdle to the voters to reach the polling stations. This fact was also considered by the competent authority at the time of issuing the impugned notification and deciding the representation of the petitioner. He summed up his arguments that the learned counsel for the petitioner failed to point out any illegality committed by the respondents in the impugned order/Notification.
10. Mr.Asghar Ali Chaudhry, Advocate submits that there will be 35 Kilometers distance in case the contention of the learned counsel for the petitioner is accepted which will be contrary to the, terms of section 9 of the Act. He offered that if his statement is wrong then he has no objection in acceptance of the writ petition.
11. Learned Deputy Attorney-General submits in writ petition at SerialNo,2 that following persons had filed the representations before the respondents: (i) Muhammad Akram Chaudhry son of Haji Faqir Muhammad, (ii) Riaz Ahmad son of Rai Ahmad Kharal, (iii) Mian Shahid Haider. Therefore, contention of the learned counsel for the petitioner that no representation was filed qua NA-131 and NA-132 is factually incorrect. He further submits that there are 7 seats allocated to the District Sheikhupura whereas there are four Tehsils of District Sheikhupura. Due to increase in the seats the old constituencies had to be disturbed. He reiterated his earlier arguments that respondents issued the impugned notification keeping in view the principles contained in section 9 of the aforesaid Act.
12. Learned Deputy Attorney-General submits in writ petition at SerialNo,3 that petitioner did not file representation before the respondent within the prescribed period as is evident from the contents of para.8 of the writ petition. He further submits that representation was filed by the petitioner allegedly on 25-7-2002 after the final notification. He further submits that representation does not contain signatures of any of the official of the Chief Election Commissioner. He further submits that representation was also filed qua this constituency by one Muhammad Shahid Haider of Chak No,184/R.B. And the petitioner also belongs to the said village. He summed up his arguments that aforesaid adjustments were trade as mentioned in the impugned notification by the respondents in view of increase in the seats. He further urges that petitioner is estopped to file this writ petition on the well-known principle of estoppel and waiver as the petitioner did not file objections against the preliminary notification well in time.
13. Learned Deputy Attorney-General submits in writ petition at Serial No,4 that respondent decided the representation of the petitioner after applying its independent mind as is evident from the impugned order dated 15-6-2002. He further submits that learned counsel for the petitioner only read para.7 whereas the impugned order has to be read as a whole which reveals that impugned order was passed by the respondents after applying its independent mind with reasons. He further submits that following persons filed representations before the respondents against the preliminary notification: (i) Muhammad Akram Chaudhry son of Faqir Muhammad, (ii) Dilshad Ahmad, (iii) Mian Shahzad Ali Haider, (iv) Muhammad Akhtar son of Muhammad Younas Khan, (v)
Muhammad Aslam son of Mohabat Khan, (vi) Riaz Ahmad Advocate, (vii) Ibne Saood son of Malik Riaz Ahmad(present petitioner), (viii) Rai Sher Ahmad KhBhatti, (ix) Rai Tariq Saleem, (x)
Muhammad Akram. The petitioner has not impleaded the aforesaid persons as respondent..
Therefore, writ petition is liable to be dismissed. Kh.Saeed-uz-Zafar, Deputy Attorney-General submits that the petitioner has not impleaded all the necessary parties on whose objections the preliminary notification was modified by the respondents. Therefore, vested right had accrued in their favour and the case cannot be decided without issuing notice to the aggrieved persons. The respondents modified the preliminary Notification keeping in view the guidelines laid down in section 9 of the aforesaid Act. Mr.Muhammad Ahsan Bhoon, Advocate submits that learned counsel for the petitioner failed to point out any irregularly or illegality committed by the respondents in the impugned Notification. In fact the petitioner is not resident of the area and he has filed writ petition male fide and is not an aggrieved person. He further submits that petitioner through this Constitutional petition wants that Patwar Circle of Chak No,2 and Chak No,4 be bifurcated. He summed up his arguments that the petitioner is not resident of Chak No,2, Chak No,4 and Jalal Nau. He further submits that distance of Jalal Nau is less than 20 kilometers from Nankana Sahib. Learned counsel for the petitioner in rebuttal submits that respondents issued three notifications
(i) on 23-6-2002 preliminary notification, (ii) on 28-6-2002 final Notification, (iii) on 4-7-2002 Notification under section 10-A by exercising suo motu power. In case all the three notifications are put in juxtaposition then it brings the case in the area that the respondents did not pass the impugned Notification in terms of section 9 read with Article 218 and Article 222 of the Constitution.
14. Learned Deputy Attorney General submits in writ petition at Serial No,5 that Muhammad Akram Chaudhry son of Haji Faqir Muhammad, Chaudhry Riaz, Advocate, Ch.Bilal Virk, Dilshad Ahmad, Rai Tariq Saleem, Naeem Ahmad Chatha, Rai Bashir Ahmad Khan and Mian Shahid Haider filed representations against the preliminary notification. The petitioner did not implead the aforesaid persons as respondents. He further ' urges that representations were decided by the respondent after applying its independent mind and final notification was issued by the respondent keeping in view the principles contained in section 9 of the aforesaid Act. This Court has no jurisdiction to take the cognizance of the matter in view of bar contained in section 11. He further submits that the respondents had issued the final notification keeping in view the guiding principles laid down in section 9. In case the contention of the learned counsel of the petitioner is accepted then the constituencies of the whole District are to be revised automatically which will create hurdles for the respondents to hold election within time. In support of his contention he relied upon the following unreported judgments:-
(1) W.P. No,13556 of 2002 (Muhammad lqbal Bhatti v. Election Commission of Pakistan).
(2) W.P.No,12933 of 2002 (Mumtaz Ahmad v. Federation of Pakistan)
(3) W.P.No,12117 of 2002 (Liaqat Ali Bhaddar v. Election Commission of Pakistan). Chaudhry Muhammad Abdus Saleem learned counsel of the respondents submits that the petitioner did not file any objection against the preliminary Notification. Therefore, the petitioner is not an aggrieved person. He further submits that More Khunda is not divided into two parts as the respondents did not bifurcate the Patwar Halqas. In fact More Khunda is already divided into two parts on account of main Road passing .Through it. The respondents keeping in view the convenience of the people without breaking the Patwar Circle had issued the impugned Notification and has made certain adjustments keeping in view the means of communication.
Ch.Muliatnmad Ahsan Bhoon, Advocate entered appearance and submits that Muhammad Naeem Chatha had filed objections which were accepted by the respondents. Therefore, writ petition is liable to be dismissed on this groundalone as the petitioner mala fide did not implead him as respondent. He further submits that More Khunda is not divided by the respondents. Jalal Nati Patwar Circle is in NA-136 whereas Natha Patwar Circle is already situated in NA-137. The seats were increased on account of census of 1998 from 5 seats to 7 seats therefore, it was natural that old constituencies could not be maintained and were to be adjusted keeping in view the guiding principles laid down in section 9.
15. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record also.
16. The preliminary objection raised by the learned Deputy Attorney-General in view of section 11 of the said Act has no force in view of the law laid down by the superior Courts in the following judgments:--
(1) Rahim Shah's case (PLD 1973 SC 24).
(2) Shah Jahan Khan's case (1980 CLC 544).
(3) Noorwar Jan's case (PLD 1991 SC 531).
(4) Zia-ur-Rehman's case (PLD 1973 SC 49).
(5) Kh.Muhammad Sharif's case (PLD 1988 Lah.725).
(6) Shah Muhammad's case (PLD 1989 SC 26).
(7) Utility Stores' case (PLD 1987 SC 447).
17. It is better and appropriate to mention that final Notification was issued on 28-6-2002 in para. 4 of which it is specifically mentioned that the Election Commission had received a total number of 945 objections/representations against preliminary delimitation of 849 constituencies out of which 307 pertained to the National Assembly and 638 to Provincial Assemblies. The details mentioned in the Notification reveal that the representations received qua District Sheikhupura were decided after providing hearing by the learned Member Election Commission on 15-6-2002. The petitioners did not implead any of the objectors as respondents. The petitioners did not attach order of the learned Member Election Commission along with the writ petitions. It is pertinent to mention here that the impugned Notification was finally issued on the basis of order of the learned Member Election Commission dated 15-6-2002. The petitioners did not challenge the wires of said order through these writ petitions. The writ petitions could, therefore, be dismissed as the petitioners failed to implead the objectors as respondents. In arriving to this conclusion we are fortified by the following judgments:--
(1) Rameez-ul-Haq's case (PLD 1992 SC 221).
(2) Zafar Mahmood's case (1984 CLC 115). However, in the interest of justice and fair play we have examined the sketch of the constituencies in question with the assistance of the learned counsel for the parties and representative of the respondents. It is quite apparent from the sketch that the aforesaid changes do not in any manner contravene or violate the principles and para meters as laid down in section 9 of the aforesaid Act.
The said changes, inclusions and exclusions pertained to the area contiguous to the very constituencies to which they are added. It may be pointed out that delimitation of the constituencies is based on not only the geographical situation but also on the basis of the population and it is the function of the Commission to determine the same. We in exercise of Constitutional jurisdiction are not obliged to embark upon the inquiry into facts pertaining to the aforesaid contentious assertions. It is pertinent to mention here that in the impugned order of the learned Member of the Commission it is specifically maintained that the modifications of the delimitation as made by it would achieve better compactness and contiguity of the electoral unit.
The population has increased therefore, it appears to be justified for making aforesaid changes in the delimitation as otherwise the polling scheme and other allied arrangements will also have to be changed which will cause unnecessary inconvenience and uncertainty amongst the voters. In respect of the population criteria we find that the population regarding the constituencies as carved out by the Election Commission falls within the permissible variation and thus no exception in this regard can be made against the order of the Member of the Election Commission. The respondents have made certain adjustments keeping in view the increase in population and seats in the District in question. It is also settled principle of law that respondent has lawful authority to make adjustments without notice under section 10-A .Of the said Act. In arriving to this conclusion we are fortified by the law laid down in Chaudhry Shafiq Ullah's case (PLD 1071 Lahore 533). It is also settled principle of law that this Court has no jurisdiction to substitute its own findings in place of the findings of the Tribunals below. Moreover, we cannot dilate upon the factual controversy raised before us nor we can substitute our findings for that of the competent authority. In arriving to this conclusion we are fortified by the following judgments:-
(1) Musaddaq's case (PLD 1973 Lahore 600).
(2) Qaisar Shafi Ullah's case (1994 SCMR 859).
18. II is better and appropriate to reproduce relevant provisions of Delimitation of Constituencies Act, 1974 (Act No,XXXIV of 1974) to resolve the controversy between the parties:-- "Section 9.Principles of delimitation.---(1) All constituencies for Muslim seats shall, as far as practicable, be delimited having regard to the distribution of population, including non-Muslims in geographically compact areas, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of constituencies.
(2) As far as may be the constituencies for election to the same Assembly shall be equal among themselves in population."
"Section 10(3). The Commission shall, after hearing and considering the representations, if any, received by it, make such amendments, alterations or modifications, in the preliminary list published under subsection (1) as it thinks fit or necessary, and shall publish in the official Gazette the final report and list of constituencies showing the areas included in each constituency."
"Section 10-A Power of Commission to make amendment, alteration or modification in the final list of constituencies.---Notwithstanding anything contained in this Act, the Commission may, at any time, of its own motion, make such amendments, alterations or modifications in the final list of constituencies published under subsection (3) or in the areas included in a constituency, as it thinks necessary."
Mere reading of section 9 reveals that the following principles are to be kept in mind at the time of making the delimitation of the constituencies:--
(1) Distribution of population in geographically compact areas.
(2) Existing boundaries of administrative units.
(3) Facilities of communication.
(4) Public convenience.
(5) Other cognate factors to ensure homogeneity.
The respondents have followed the aforesaid principles at the time of issuing the impugned notifications as the learned Member of the Commission vide its order dated 16-5-2002 has kept in mind the aforesaid principles at the time of deciding the representations filed by the aggrieved persons before him against the preliminary notification. It is also settled principle of interpretation that order is to be read as a whole and not piecemeal. In case the impugned order of the learned Member of the Commission be read as a whole there remains no doubt that he has passed the impugned order after applying his independent mind with cogent reasons. Reference to para. 7 alone of the order by the petitioner, is uncalled for. Reading of the order as a whole clearly demonstrates due application of mind to the essential aspects of the matter. As far as practicable the criteria laid down in section 9 of the Act has been kept in view and adhered to, in making adjustments. The criteria of equality of population amongst various electoral units has been achieved. It is fully in consonance with the law on the subject. Suffice it to observe that personal wishes or choice of the prospective candidate for few voters cannot be the criteria or yardstick for alteration or modification in the delimitation of constituencies. We are, therefore, not persuaded to interfere with the process of delimitation of constituencies.
In view of what has been discussed above, these writ petitions are dismissed.