A URANGZEB KHAN vs ELECTION COMMISSIONER OF PAKISTAN, ISLAMABAD through Secretary and others

' SARDAR MUHAMMAD RAZA KHAN, J.---Aurangzeb Khan son of Nawabzada Azmat Ali Khan seeks leave to appeal from the judgment dated 4-3-2008 of a learned Judge in Chambers of Peshawar High Court, whereby, his writ petition under Article 199 of the Constitution against the order dated 20-2-2008, of Returning Officer PF-37 Kohat-1, declaring Amjad Khan Afridi (respondent No,4) as returned candidate from the said constituency, was dismissed.

2. In PF-37 Kohat-1, the polling was held on 18-2-2008 where the petitioner obtained 12814 vote while respondent No,4 secured 12927. The number of total rejected votes was 1308. The consolidation of result by the Returning Officer was conducted on 20-2-2008, objections were filed on 23-2-2008 and on almost the same day, the aforementioned writ petition was filed before the High Court. The learned High Court dismissed the same holding, in brief, that as the election process was over, the aggrieved party under Article 225 of the Constitution had the right to challenge the same before the Election Tribunal and that the extraordinary constitutional jurisdiction of the High Court could not be invoked.

3. The learned counsel on either side were heard at length for about two days but the point involved, either factually or legally, being quite obvious as well as simple, did not deserve such lengthy exercise. It would be appropriate to commence with Article 225 of the Constitution that runs as follows:-- "225. Election dispute.--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 (Parliament)1"

4. In the instant case, the election was held on 18-2-2008. The result was announced and conveyed to the authorities concerned as required under the law. The result received from each polling stations in the constituency was to be and so was it consolidated on 20-2-2008. Respondent No,4 was declared as returned candidate. The election process was closed so far as the relevant constituency is concerned. It was for this reason and keeping in view the finalization of results in the entire Province that Election Tribunals were constituted, as legal requirement, on 1-3-2008. The petitioner never resorted to the Tribunal despite the fact that it stood constituted prior to the impugned judgment of the learned High Court announced on 4-3-2008.

5. If we look into the terminology used by the legislature while enacting Article 225 of the Constitution, we find it quite emphatic, clear and unambiguous; not capable of any two interpretations. The very language thereof starts with negative phraseology which most commonly is interpreted for ousting any possibility other than one given in the Article itself. That is how any law starting with negative phraseology is interpreted.

6. There is another phrase in the Article which gives double effect to the already negative phrase with which Article starts. It goes like "except by an election petition". The overall effect given in the Article is that no election, like one in hand, shall be called in question otherwise than in the manner provided by law and before a forum provided by the Article. So it cannot be challenged except by an election petition presented to such Tribunal, and in such manner, as may be determined by the law (Act of Parliament).

7. It is a well-known matter of common knowledge that the election laws, being an Act of Parliament, already existed in the Country that contained provisions about the existence of Election Tribunal and, above all, the detailed provisions about the manner in which such petitions are to be filed. The manner and details thereof are quite different from and stringent than normal pleadings in a civil matter. Viewed in this background, Article 225 of the Constitution, double phrased with negative phraseology and in unambiguous terms, ousts the jurisdiction of any forum other than the Election Tribunal, which too, can be so resorted to only in the manner prescribed by the law.'

8. In the above conclusion, we are fortified by a larger Bench authority of this Court in Election Commission of Pakistan v. Javed Hashmi (PLD 1989 SC 396), Where it was held that once the election process is over, it can be challenged only before the Tribunal. This Court had also observed that the provisions of Article 199 of the Constitution can be invoked to challenge any irregularity that is committed during the process of election but once the election process is completed, it can only be challenged before the Election Tribunal which, in the instant case stood constituted on 1-3- 2008, that is, only seven days after the completion of election process. Better would it have been if the petitioner by that day had withdrawn the writ petition and had filed an election petition before such Tribunal.

9. It is alleged by learned counsel for the petitioner that more than 200 votes cast in his favour were rejected by the Returning Officer simply because those did not bear the signatures of concerned officer. The examination of each and every vote, the examination of the relevant signatures, the examination in Court of the relevant Polling Officers, as well as the Presiding Officer becomes necessary to conclusively determine the question of fact. During the course of arguments, it also was alleged and counter alleged that the record was tampered by the interested candidate. That, irregularity occurred due to non-availability of electric supply in the polling station and that the counting was conducted in the light of a lantern. Whether the electric supply was available or not; whether the lantern was used or not; and whether the lantern used was sufficient in the ordinary course; are all questions of fact which could not be attended to by the Court exercising constitutional jurisdiction. The only remedy, after recording of evidence on disputed questions of fact, could have been provided by the Election Tribunal exclusively.

10. This is another important aspect due to which we are of the view that the learned Election Tribunal had the ofily jurisdiction to adjudicate upon the matter, more particularly when it was efficaciously available on 1-3-2008. The learned High Court was, therefore, perfectly justified in declining to exercise constitutional jurisdiction. The filing of writ petition being misconceived in the circumstances, this petition also carries no merit. The same is accordingly dismissed and leave to appeal refused.