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Constitution of Pakistan (1973), Part VIII deals with the election and provides three measures to ensure free and a fair election. Firstly, there is appointment of Chief Election Commissioner and the constitution of Election Commission for each general election, charged with the duties of organising and conducting elections honestly, fairly and in accordance with law. The independence of Election Commission has been ensured in the Constitution (Articles 216 and 219). Secondly there is the enactment of laws for preparation of electoral rolls ; conduct of Elections and Election Petition and other matters necessary for Constitution of Majlis-e-Shoora and Provincial Assemblies (Article 222). Thirdly, the appointment of an independent judicial Tribunal for decision of the election disputes.

Chief Election Commissioner, Azad Jammu & Kashmir and another v. Abdul Majid and 2 others P L D 1986 S C (A J & K) 120 and Abdur Rashid and 2 others v. Member Board of Revenue Baluchistan and 3 others P L D 1986 Quetta 280 ref.

(b) Representation of the Peoples Act (LXXXV of 1976)----

-- Ss. 52 & 67(3) - Constitution of Pakistan (1973), Art. 199Election, legality of - Election, held, could not be challenged except by election petition to be adjudicated upon by Election Tribunal-Appeal from decision of Tribunal would lie to Supreme Court-Right of vote or to take part in election being a statutory right could be enforced subject to limitations imposed by statute which created such right-Redress of grievance concerning exercise of such right had .to be sought through the machinery provided by statute and not otherwise-Constitutional jurisdiction would not be available for challenging legality of election.

Jamal Shah v. Election Commission P L D 1966 S C 1 ref.

(c) Constitution of Pakistan (1973)-

-- Art. 225-Representation of the Peoples Act (LXXXV of 1976), Ss. 52 & 67 - Election petition-Error in interlocutory orders-Assailing of such order-;.ailing in question of election is prohibited except through determination of Election Tribunal-Provision of right of appeal under S. 67(3), Act LXXXV of 1976, held, was manifestation of intention of law-maker that proceedings before Election Tribunal be continued uninterrupted -Error in interlocutory orders of Election Tribunal could be assailed in appeal against final order.

N. T. Veluswami Thevar v. G. Raja Nainar and others A I R 1959 S C 422 and Brij Sunder Sharma v. V. Shri Ram Dat and others A I R 1964 Rajasthan 99 ref.

(d) Representation of the Peoples Act (LXXXV of 1976)-

-- Constitution of Pakistan (1973), Arts. 199 & 225 - Constitutional jurisdiction, exercise of-Prohibition contained in Art. 225 of Constitution that validity of elections could not be called in question except through the manner prescribed thereby is absolute Constitutional jurisdiction under Art. 199 being subject to other provisions of Constitution could not be exercised in derogation, of Art. 225 of Constitution of Pakistan (1973) -- Merely because interlocutory order is not appealable, would be no ground to render same to constitutional jurisdiction.

Raja Muhammad Anwar and Ch. Muhammad Ashraf Azim for Petitioner.

MUHAMMAD AFZAL LONE, J.-In the last general Elections Rai Salah-ud-Din respondent No. 1 was elected as Member National Assembly from Seat No. NA-72. Faisalabad. The petitioner who lost the Election, filed an Election Petition under section 52 of the Representation of Peoples Act, 1976, against the respondents, which is still pending before the Election Tribunal, comprising a Judge of this Court. During the course of its bearing, for adjudication of one of the issues, covering the controversy as to the recount of the votes, the Tribunal by its order dated 18th February, 1986 appointed a Committee of two Officers, headed by the Provincial Election Commissioner, to inspect the votes in question and submit its report.

2. The petitioner also moved an application, Annexure C', before the Tribunal for grant of permission to inspect the electoral rolls of issued ballot papers and packets containing the ballot papers account relating to 34 Polling Stations, and further electoral rolls and the packets containing counterfoils of 28 Polling Stations. He filed another application Annexure 'D', for obtaining certified copies of the ballot papers, account Forms and the marked lists of the electoral rolls of the said 34 Polling Stations. The learned Tribunal disposed of these matters, by means of its order dated 4th June, 1986, under challenge in this writ petition.

3. On consideration of the Committee's report the Tribunal found that 1,152 voters had put the prescribed marks in the horizontal compartment immediately below the chamber wherein the name and symbol of the petitioner figured. The Tribunal treated these votes as having been polled in favour of the petitioner and credited the same to him but rejected his claim for other votes, 335, 929 and 341 in number ; voters' marks in respect whereof, existed in second, third and fourth horizontal compartments respectively, below the first compartment. As regards the petitioner's other two prayers the learned Tribunal maintained that,;

"It is too late in the day now for the petitioner to inspect the election records so as to obtain or secure certified copies of the Ballot Papers Accounts Forms and the marked lists of the electoral rolls of 34 Polling Stations, so as to file the said certified copies with the present petition, in order to support his case. On behalf of the petitioner it is submitted that no application was made earlier to the Punjab Election Commission for. the examination of the electoral records, as the Commission did not permit such inspection, due to a policy letter received from the Chief Election Commission which directed them not to permit such inspection, unless an order was obtained from an Election Tribunal. Be that as it may, the petitioner should have filed his petition for inspection of the records, before filing of the present election petition, and obtained the order of Punjab Election Commission refusing such permission. Against such a refusal, he should have made a representation to the Chief Election Commission or sought a mandamus from the High Court. In fact, it appears that the petitioner did not want to inspect the election records and, therefore, did not take any further steps in that behalf, but that finding himself in some predicament now, he wants to inspect the same and to secure some certified copies, for supporting his case. Even assuming, for a matter of argument, that I were to permit the petitioner to lodge certified copies of the Ballot Papers, Account Forms or the certified copies of the marked lists of the electoral rolls of the 34 Polling Stations, referred to in the petition, the lists of the dead voters, non-resident voters, fictitious voters, absent voters, bogus voters and double voters, filed by the petitioner, obviously have no reference to persons who cast their votes at the instance of the contesting respondent, or his agents and servants, if they were so, that lists would be with the contesting respondent and not with the petitioner. But even assuming that these are the names of the persons who cast their votes at the instance of the contesting respondent No. 1, or his agents and servants, the petitioner would have been the first person to have raised objection in respect of each one of them before the Presiding Officers at the relevant Polling Stations concerned and before the Returning Officer, during the final count. Since there is no affidavits of any person filed with the election petition showing that the petitioner, through his agents and servants objected to the votes of the persons whose names are given in the annexures, before the Presiding Officers concerned or before the Returning Officer, at the time of final counting, I would not be able to permit any such certified copies being brought on the record to substantiate a case not adverted to by any of the witnesses in their affidavits filed with the election petition."

3. We have heard the learned counsel at some length. He assailed the Tribunal's refuse] to award the said votes to the petitioner and argued that intention of the voters, who cast these votes, was, to poll the same for the petitioner but the Election Tribunal illegally deprived him of these votes. On the authority of Chief Election Commissioner, Azad Jammu & Kashmir and another v. Abdul Majid and 2 others (1) it was argued that when the findings of a special Tribunal are patently wrong or based on inadmissible evidence or gross non-reading or misreading of evidence, such an error assumes the character of "error of law" which can be rectified in exercise of writ jurisdiction. As regards the inspection on the record and issue of copies of the documents, the learned counsel heavily relied on section 45 of the Representation of People Act, 1976. This section provides that the documents placed in the custody of the Election Commission under section 44, except the ballot papers, are open to public inspection and further on payment of prescribed fee copies of the extract of such documents can also be obtained from the Commission. It has been pointed out that the Commission delegated its powers regarding inspection of record and issue of copies, to the Election Tribunal. The learned counsel agitates that the impugned order is an affront to section 45 and displays a patent illegality, liable to be corrected through judicial review. In the submission of the learned counsel it is a case of failure to exercise jurisdiction lawfully vesting in the Election Tribunal. Reliance is placed on Abdur Rashid and 2 others v. Member Board of Revenue Baluchistan and 3 others (2) for the proposition that despite the availability of remedy in the form of appeal or revision, under the special law, to correct errors committed by the Tribunal, the High Court's constitutional jurisdiction can be pressed into service if the Tribunal fails to exercise jurisdiction.

4. Since the writ petition is directed against an interlocutory order, we have asked the learned counsel as to ho -N the writ jurisdiction can be extended to such an order, particularly, when it can be challenged in appeal against the final decision of the Tribunal. His contention, is, that the error committed by the Tribunal goes to its jurisdiction ; no appeal is provided against the impugned order. The petitioner is, thus, left with no remedy except under Article 199 of the Constitution.

5. Part VIII of the Constitution deals with the election and provides three measures to ensure free and a fair election. Firstly, there is appointment of Chief Election Commissioner and the constitution of Election Commission for each general election, charged with the duties of organising and conducting elections honestly, fairly and in accordance with law. The independence of Election Commission has been ensured in the Constitution (Articles 216, 219). Secondly there is the enactment of laws' for preparation of electoral rolls; conduct of Elections and Election Petition and other matters necessary for Constitution of Majlis-e-Shoora and Provincial Assemblies (Article 222). Thirdly, the appointment of an independent judicial Tribunal for decision of the election disputes (Articles 219 and 225). To facilitate the reference, Article 225 is reproduced below :

"225. 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 Majlis-e-Shoora."

(1) P L D 1986 S C (A J & K) 120 (2) P L D 1986 Quetta 280

The Tribunal seized of the petitioner's Election petition has been appointed by the Chief Election Commissioner in contemplation of Art. 225 and in exercise of the powers vesting in him under Article 219(c) of the Constitution and section 57 of the Representation of Peoples Act, 1976. Section 52 of the Act prohibits questioning of election, except by a election petition, to be adjudicated upon by the Election Tribunal. Under section 67(3) of the Act, an appeal from the decision of the Tribunal lie to the Supreme Court. It may be observed that the right of vote or to take part in election is a statutory right and, therefore, can be enforced subject to the limitations imposed by the Statute. On principle, such a right is exercisable in the manner, as laid in the Statute which creates the same. A redress of grievance concerning the exercise of such right, therefore, must be sought through the machinery provided by the Statute and not otherwise. Reference here may usefully be made to Jamal Shah v. Election Commission (1). In that case the question before the Supreme Court was whether the rejection of a ballot-paper by the Member Election Commission, could be subjected to judicial review. A Full Bench of the High Court chose to interfere with the determination made by the Election Commission but the Supreme Court, reversed the orders of the High Court and restored the decision of the Election Commission. It would be profitable to produce here the concluding part of the judgment rendered by the then Chief Justice

" . . . . . I am clear in my view that on a true construction of the term of Article 171(1) of the Constitution giving them their full effect when regarded against the background of the past history of the law on the subject, under which election disputes have always been treated as being outside the purview of the Courts in the territories included in Pakistan, except for the short period that the Constitution of 1956 was in force, the power of final determination by the Authorities specified under that order, must be allowed to prevail as against the general power of correction given to the High Court under Article 98. I conceive that the provision in section 112 of the Act of 1964, namely, that no Court shall question the legality of any action taken by or under the authority of the Commission is available to the full in relation to legal decisions, regarded as acts of a Member of the Commission exercising the authority of the Commission duly delegated to him under the appellate powers given by section 53 of the Act."

6. Article 171 of 1962 Constitution which fell for consideration before the Supreme Court in Jamal Shah's case, is, parameteria with Article 225 of 1973 Constitution. The Scheme of Part VIII of the Constitution read with Chapter VII of the Representation of People Act, 1976, in which sections 52 and 67 ibid, are included, appears to be that whatever the ground of attack on the election, it should not be urged at an intermediate stage before any Court but should be raised and adjudicated upon in the manner prescribed by Article 225. This Article completely prohibits calling in question of election except through the determination of Election Tribunal. The provision of right of appeal under section 67(3), is a manifestation of the intention of law-maker that the proceedings before the Election Tribunal are continued uninterrupted and any error in its interlocutory orders, may be assailed in appeal against the final order.

7. There are precedents from Indian Jurisdiction, which support the view. In N. T. Veluswami Thevar v. G. Raja Nainar and others (2), the Supreme Court of India despite expressing its opinion that the order of Election Tribunal is open to judicial review, declined to uphold interference under Article 226 of the Indian Constitution, by the High Court with an interlocutory order of the Election Tribunal, and maintained that :

(1) PLD1966SC1 (2) AIR1959SC422

"As the question has also been raised as to the propriety of interfering in writ petition under Article 226 with interlocutory orders passed in the course of an enquiry before the Election Tribunal, we shall express our opinion thereon. The jurisdiction of the High Court to issue writs against orders of the Tribunal is undoubted ; but then, it is well-settled that where there is another remedy provided, the Court may properly exercise its discretion in declining to interfere under Article 226. It should be remembered that under the election law as it stood prior to the amendment in 1956, election petitions were dismissed on preliminary grounds and correctness of the decision was challenged in applications under Article '226 and in further appeal to this Court, with the result that by the time the matter was finally decided, the life of the Legislature for which the election was held would have itself very nearly come to an end, thus rendering the proceedings infructuous . . . . . . . . It is to remedy this defect that the Legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under S. 116-A, and its intention is obviously that proceeding before the Tribunal should go on with expedition and without interruption, and that any error in its decision should be set right in an appeal under that section. In this view, it would be a proper exercise of discretion under Article 226 to decline to interfere with interlocutory orders."

This dicta was followed in Brij Sunder Sharma v. V. Shri Ram Dat and others A I R 1964 Raj. 99, and the High Court of Rajasthan, in exercise of its extraordinary jurisdiction refused to disturb an interlocutory order of the Election Tribunal for recount of the votes, as such an order could be challenged in appeal against the final order.

8. We have also examined the precedents cited by the learned counsel. In the ruling from the Azad Jammu and Kashmir jurisdiction, the rejection of the nomination papers of the petitioner therein, was interfered with by the High Court on the ground that the Chief Election Commissioner relied upon inadmissible material. The case was then taken to the Supreme Court. The learned counsel has drawn our attention to the observation of the Supreme Court at page 131 of the report, that even findings of a Tribunal of special jurisdiction can be disturbed if the same are based on inadmissible evidence, gross misreading or non-reading of evidence. As regards the ruling of Baluchistan High Court, in that case, the petitioners were being tried under the Criminal Law (Special provisions) Ordinance, 1968 and bail was refused to them by the Tribunal. The Court maintained that denial of the bail to the accused, without reverting to the material on the record and on the sole ground that the case has been referred to a Tribunal, under Ordinance of 1968 amounted to refuse to exercise jurisdiction. It is to be noticed that in none of these two cases, any constitutional impediment, as posed by Article 225 was present. The prohibition envisaged by this Article that the validity of election cannot be called in question except in the manner prescribed thereby, is absolute. The jurisdiction conferred on the High Court under Article 199 is subject to other provisions of the Constitution and thus, cannot be exercised in derogation of Article 225. Exercise of such powers against an interlocutory order would amount to defeating the purpose of law. Merely because an interlocutory order is not appealable, is, no ground to render it amenable to E writ jurisdiction. An interference with the interlocutory order through judicial review would be circumvention of the provisions of law.

For all these reasons this writ petition is dismissed in limine.

A. A. Petition dismissed.

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