INTESAR HUSSAIN BHATTI vs VICE-CHANCELLOR, UNIVERSITY OF PUNJAB, LAHORE and others

ORDER

' ABDUL HAMEED DOGAR, C J.---Through this application the learned counsel for the petitioner has prayed for constitution of larger Bench as important questions of law and facts are involved in Civil Petitions Nos. 2 to 5 of 2008. It is contended by learned counsel for the petitioner that during the course of hearing of these petitions, the cases reported as Election Commission of Pakistan v.

Javed Hashmi PLD 1989 SC 396; Ghulam Mustafa Jatoi v. Addl. District and Sessions Judge/Returning Officer and others 1994 SCMR 1299; Ayatullah Dr.Imran Liquat Hussain v. Election Commission of Pakistan PLD 2005 SC 52 and Muhammad Safdar Abbasi v. Aamir Yar Malik 2004 SCMR 1602 were relied by the petitioner but another Bench of this Court in the case of Muhammad Arif v. Rao Sikandar and others has taken a view which appears, to be in conflict with the question raised in these petitions which is of fundamental importance. According to him since important questions of law and Constitution are involved, the decision whereof is likely to affect large number of cases pending before this Court. He further contended Vice-Chancellor of the University could not exercise the emergency power under section 15 of the Punjab University Act, 1973 to quash the result of the petitioner without assigning any reasons or ground. According to him, the BA degree was not quashed or withdrawn by the syndicate, as such the same was still intact. In support, he placed reliance on the cases of University of the Punjab and 2 others v. Rehmatullah PLD 1982 Lah.

729; Muhammad Zargham Eshaq Khan v. University of Engineering and Technology, Lahore and others PLD 1988 Lah. 191; Tanvir Ashraf v. Ch. Riasat Ali and others 2004 YLR 659; Najaf Abbas Sial v.

Kh. Hassan Wali Khan, Additional District Judge/Returning Officer and others 2003 CLC 1068; Ch. Nasir Ali Khan v. Ghulam Sarwar Khan and others 2003 CLC 442; Amina Bibi v. Muhammad Sharif 1987 MLD 3052; University of Dacca and another v. Zakir Ahmed PLD 1965 SC 90; Samar Pervaiz v.

Board of Intermediate and Secondary Education, Lahore and another PLD 1971 SC 838.

2. On the other hand Mr. Saiful Malook, learned counsel for respondent controverted the above contentions and contended that all the points taken in the application were also raised during the hearing of the petitions. He further contended that in the facts and circumstances of case, there is no need for constitution of larger Bench.

3. The contention of the learned counsel for the petitioner that another Bench of this Court in the case of Muhammad Arif v. Rao Sikandar and others has taken a view which appears to be in conflict with the question raised in these petitions, as detailed judgment in the referred case has not yet released. Moreover, already a larger Bench of this Court in the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others 1994 SCMR 1299 has held that High Court generally cannot interfere in the election process in the exercise of its Constitutional jurisdiction in view of bar of jurisdiction contained in Article 225 of the Constitution.

However, this is subject to an 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 an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can invoke constitutional jurisdiction of the High Court.

4. In view of above this C.M.A. Stands dismissed being devoid of force.