KHAISTA GUL Versus AKBAR KHAN

1. GHULAM SAFDAR SHAH, C. J.- This petition has been filed by Khaista Gul tinder Article 98 (2) (b) (ii) of the Repealed Constitution of 1962 (hereinafter called the Constitution), in his capacity as Relator, in which he has prayed for following reliefs:

2. "(1) The aforesaid actions and orders of respondents 7 and 8, detailed in paragraphs 8 and 10 above, be declared to be without lawful authority and of no legal effect.

(2) Respondents 7 and 8 be directed to do all that is detailed in para graphs 9 and 11 respectively.

(3) Respondent 1 be required to show under what authority of law he holds or purports to hold the public office of a Member of the National Assembly and grant the consequential declaration in respect of it.

(4) Any other relief antecedent to or flowing from or consequential upon any or all of the foregoing reliefs be also granted to the petitioner."

3. Respondents 7 and 8 are Returning Officer, Constituency No. NW-19 Tribal Area-I, Mohmand Agency and the Election Commission, Islamabad, respectively.

4. The case of Khaista Gul is that he is Elector from Constituency No. NW-19, Tribal Area-1, Mohmand Agency; his name appearing at Serial No. 2780 of the Electoral Roll of that Area; that in order to return a Member from that Constituency to the National Assembly of Pakistan respondents 1-6 had filed their nomination-papers with respondent 7 at. Peshawar, but respondents 3, 4, 5 and 6 later withdrew their nomination papers and thus left in the field as contestants only respondents 1-2; that after scrutiny the nomination-papers of these respondents were accepted by Returning Officer and in consequence of the Election, which was subsequently held in the said Constituency, Akbar Khan respondent was declared to have been duly elected and in due course his election was notified in official Gazette of 16-12-70 by respondent 8-Election Commission, Islamabad.

5. The main grounds, upon which petitioner has challenged the election of Akbar Khan, are:

(1) That when he filed with Returning Officer his nomination-papers on 14-10-70, he was disqualified from being as, and from being a Member of the Assembly within the meaning of Article 9 (2) (h) of the Legal Framework Order, 1970 (hereinafter called the L.F.O.), as on that date be had a subsisting contract with P. W. D., N.-W. F. P. Govern ment, and

(2) that on that date he was also working as clearing-and-forwarding agent under a licence issued to him by Superintendent, Land Customs, Torkham (Khyber Agency).

6. In his written-statement Akbar Khan has denied the last-mentioned allegation. But in regard to the first allegation, he has admitted the case of petitioner saying however

(a) That the contract was so vague as neither party knew what was expected of it;

(b) that it suffered from a mistake of fact;

(c) that the Public Works Department was unable to get the execution of contracted project for want of funds; and

(d) that the contract in question was arrived at not in normal course, it was never acted upon, he was never included in the list of approved contractors and that he was simply nominated as contractor by the Political Agent for the execution of certain projects.

7. Article 9 of the L.F.O. enumerates a list of qualifications/disqualifications for being elected as, and from being a Member of an Assembly. But for the purpose of present petition, reliance has been placed on disqualification mentioned in paragraph (h) of clause (2) thereof which, without the proviso appearing thereunder with which we are not concerned, reads as under:

8. "9 (2) A person shall be disqualified from being elected as, and from being a member if:

(h) He, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods, or for the execution of any contract or' the performance of any service undertaken by Government:"

9. The language of this provision, which in view of Article 2 of the L.F.O. shall have effect notwithstanding anything to the contrary contained in the Provisional Constitution Order, the Constitution or any other law for the time being in force, is altogether clear to allow any room for doubt that Akbar Khan was, when he filed his nomination papers with Returning officer at Peshawar on 14-10-70, disqualified from being elected as, and from being a Member of an Assembly. But before I proceed to examine this question in depth, it would be proper to deal with the following two preliminary objections raised by the learned counsel for Akbar Khan as to the jurisdiction of this Court :--

(1) That the National Assembly of Pakistan has been summoned to meet on 28-11-74 and thus this Court, in view of the bar contained in sections 3 and 4 of Act I of 1963 (Privileges of Members of National Assembly (Exemption from Preventive Detention and Personal Appearance) Act, 1963), would have no jurisdiction to hear this case, and

(2) that the case relates to a Centrally Administered Tribal Area respecting which the jurisdiction of this Court is barred under Clause (5) of Article 223 of the Constitution.

10. Sections 3 and 4 of Act I of 1963 read as under:

11. "3. The privilege etc.-(1) No Member shall be detained under any law relating to preventive detention, nor shall any Member be required to appear in person in any civil or Revenue Court, or before any Election Tribunal, during a session, and for a period of fourteen days before and fourteen days after the session.

(2) Nothing in subsection (1) shall be construed as applying to any Member detained under any such law as is referred to therein immediately before the commencement of this Act, or at any time during the period commencing on the fifteenth day next after the conclusion of the current session and ending on the fifteenth day before the commencement of the next session.

4. Proceedings in civil Court etc.-(1) Notwithstanding anything to the contrary contained in any law in force for the time being, no civil or Revenue Court, and no Election Tribunal, shall proceed, during a session and for a period of fourteen days before and fourteen days after the session, with any matter before it in which a Member is a party, unless the privilege conferred by section 3 is waived, by appli cation made in writing to the Court or Tribunal, as the case may be by the Member concerned with the matter, and, where more members than one are so concerned, by all of them.

(2) The provisions of subsection (1) shall apply to all matters pending immediately before the commencement of this Act in any civil or Revenue Court, or before any Election Tribunal, in which a Member is party, and no such Court or Tribunal shall proceed further with any such matter, unless the privilege referred to therein is waived in accordance with the provisions thereof, or the period specified therein` has lapsed."

12. The learned counsel has not pressed in service section 3 of the Act. 'But relied on section 4 with considerable emphasis saying that since his client has declined to waive the privilege conferred on him by that section, this Court would have no authority to proceed with the hearing of this case. I .am afraid, I have not been able to agree with the learned counsel. A look at the preamble of Act I of 1963 would show that what the Legislature intended to provide to a Member of an Assembly was exemption for specified periods from preventive detention and from personal appearance in civil/ Revenue Courts and before Tribunals. In regard to criminal Courts, however, the preamble is silent. And when we proceed to examine section 4 of the Act, it is the same position. In other words the Legislature did not seem to provide to a Member exemption from arrest in a criminal case. But we are not called upon to decide this question in these proceedings in which the only question is whether a High Court can be said to be a "civil Court" within the meaning of that expression used in section 4 of the Act. In this respect, we have a judgment of the Supreme Court of Pakistan in the case of Hussain Bukhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1). In which the same question was raised. But it did not find favour with their Lordships, as would be seen from the following dictum appearing at page 5 of the Judgment :

13. " . . These civil Courts are subordinate to the High Court. There fore, the High Court, though it also exercises civil jurisdiction, is not a civil Court."

14. Quite apart from this position, the learned counsel seems to have mis conceived the scope of constitutional jurisdiction of High Court under Article 98 of the Constitution. This Court has been created under Article 91 :of the Constitution in Article 98 whereof it is said "A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law." The 'learned counsel argued, relying on the words "by this Constitution or by law", that since Act I of 1963 would be "law" within the meaning of that expression, this Court would have no jurisdiction to proceed with the hearing of this case in view of what has been laid down in section 4 thereof. There .is no force in this contention. It is well-settled that the constitutional juris diction of this Court cannot be taken away or whittled down by means of a subordinate legislation. And if any authority is needed to support this conclusion, reference may be made to one judgment of the Supreme Court of Pakistan in the case of Mehr Din and 7 others v. Border Area Committee, Bahawalpur (PLD 1970 SC 311), in which the same objection had been taken to the jurisdic tion of High Court in view of the bar contained in paragraphs 15 and 16 of Martial Law Regulation 9, Zone B. But it was repelled with these observations :-

15. "We may pause here to consider the nature of the jurisdiction of the High Court under Article 98 of the 1962 Constitution. The Article provides that subject to this Constitution a High Court shall have such jurisdiction as is conferred on it by this Constitution or by law. This is re-affirmed in Article 130 that "No Court shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law." This, however, did not mean that the jurisdiction conferred on the High Court by Article 98 could be taken away by a law, passed by the Central or Provincial Legislature Short of amending the Constitution by an Act of Central Legislature passed by the votes of not less than two-thirds of the total number of the members of the National Assembly as laid down in Article 209 no law could divest the High Court of the jurisdiction to give directions to a person performing in the province functions in connection with the affairs of the Centre, the province or a local authority to refrain from doing that which he is not permitted by law to do and to declare that any act done or proceeding taken without lawful authority and is of no legal effect. A Border Area Committee is "person performing in the province functions in connection with the affairs of the Centre". Under Article 22 of the Constitution the West Pakistan Border Area Regulation, 1959, is deemed to be an Act of the "Central Legislature" and with the necessary adaptations has the effect as such. The ouster of jurisdiction of the High Court in paras. 15 and 16 of the Martial Law Regulation 9, Zone B, therefore, ceased to be operative as against the jurisdiction conferred on the High Courts by Article 98 from the commencing day, viz. 8th June 1962."

16. It would be noted that in that case also, notice was taken of Article 130 of the Constitution that "No Court shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law." But even so, it was laid down by their Lordships that the constitutional jurisdiction of High Court under Article 98 of the Constitution cannot be taken away by Martial Law Regulation 9, which after the coming into force of the Constitution bad become an Act of Central Legislature, unless the Constitution itself was amended by an Act of Parliament passed by the votes of not less than two thirds of the total number of the members of the National Assembly as laid down in Article 2n9. It would thus be obvious that in the exercise of its constitutional jurisdiction under Article 98 of the Constitution, under which the present petition has been filed, this Court is not fettered by what has been said in section 4 of Act I of 1963, which admittedly is an enactment of ordinary nature.

17. The second objection of learned counsel is based on Clause (5) of Article 223 of the Constitution which reads as under:

18. "(5) Notwithstanding anything in this Constitution neither the Supreme Court nor a High Court shall, unless the Central Legislature by law otherwise provides, exercise any jurisdiction under this Constitution in relation to a Tribal Area."

19. The non-obstante clause, which appears in the beginning of this Article, would appear to convey the unmistakable intention of Legislature that unless the Central Legislature by law otherwise provides, neither the Supreme Court nor a High Court would have any jurisdiction in relation to a Tribal Area. The clause in question had, in the past, presented some difficulty. But its scope has now been finally settled by the Supreme Court of Pakistan in a series of judgments beginning with the case of State v. Dosso (P L D 1958 S C (Pak.) 533), in which the view taken was that if all proceedings in a case are held in a special area, then the High Court would have no jurisdiction in the matter. This C view was reiterated in the subsequent cases of Piao Gul v. The State (P L D 1960 S C 307), Sar Khan v. The State (PLD 1967 SC 149), Abdul Ghani v. Shoedar Khan & Co. (PLD 1963 SC 131), Ihsanullah v. Commissioner, F.C.R., Peshawar (1968 S C M R 974), Jamil Ahmad v. The State (PLD 1969 SC 344), Superintendent, Land Customs, Torkham v. Zewar Khan (PLD 1969 SC 485) and lastly in the case of Abdur Rahim v. Home Secretary, Government of West Pakistan (PLD 1974 SC 109) in which their Lordships of the Supreme Court had the occasion to consider in some depth the connotation of words "in relation to a Tribal Area" and this is what they had to say on the subject:

20. "The first thing to be noticed is the non-obstante clause in the beginning of the above constitutional provision, which gives it an overriding effect over other provisions of the Constitution including that relating to the writ jurisdiction of the High Court. The pro hibition is against the exercise of jurisdiction `in relation to a Tribal Area'. This is not an expression of art-like the expression `cause of action' which has a well-defined meaning and, therefore, has a limited import. The words `in relation to' on the other hand are of wide import and postulate of a connection of one thing with another: a nexus. The question therefore is whether there is such a connection or nexus between the subject-matter of the dispute and the former State of Chitral. In this context, the situs of the land and the residence of the two sets of claimants become decisive. The location of the land in dispute and the residence of the parties plainly establish ed this nexus or relationship for the relevant purpose.

21. Besides, in the instant case, all material actions were taken in the tribal territory on the basis of the local custom having the force of law where the land in dispute is also situate. The mere fact that the final order sought to be challenged in this case was that of the Home Secretary, West Pakistan dated the 23rd July 1964 would not snap the relationship of the dispute with the former State of Chitral and bring the matter within writ jurisdiction of the High Court."

22. In this judgment, in which notice has been taken of all the existing case- law on the subject, the words "in relation to a Tribal Area" have been constru ed with considerable clarity that unlike the expression "cause of action", which has a well-defined meaning and therefore has a limited scope, the former words are of wide import and postulate of a connection of one thing with another a nexus. In other words, the emphasis of the dictum would appear to be that if in a given case the Court comes to the conclusion that there does exist such a nexus, i.e., a connection between the subject-matter of dispute and the tribal area, then it would have no jurisdiction to take cognizance of the cause even under Article 98 of the Constitution. In order, therefore, to see if the case in hand would be covered by the said dictum, let us advert to the facts which are not disputed.

23. The record would show that nomination papers were filed by the parties in this case with Returning Officer at Peshawar, these were scrutinized at Peshawar, the list of validly-nominated candidates was published at Peshawar, the result of Election was consolidated by Returning Officer at Peshawar, respondent Akbar Khan was declared at Peshawar to have received the highest number of votes and thus elected to the National Assembly of Pakistan; and finally the Commission published his name in official Gazette D at Islamabad as a person having been elected to the National Assembly from Constituency No. NW-19, Tribal Area-I, Mohmand Agency. It would thus be seen that except for the polling, which had taken place in Tribal Area, all other proceedings in regard to the Election from that Constituency had not only taken place at Peshawar but respondent Akbar Khan is performing his duties as Member of the National Assembly of Pakistan at Islamabad. Obviously, therefore, no exception could be taken to the jurisdiction of this Court unless, of course, it could be shown that there does exist the type of nexus between the subject-matter of dispute in this case, namely, the election of Akbar Khan as Member of the National Assembly of Pakistan and the Tribal Constituency from which he was elected. In other words, can it be said that if this Court was to pronounce upon the validity of his election as such Member, it would be exercising jurisdiction "in relation to a Tribal Area" respecting which there is a clear bar contained in Clause (5) of Article 223 of the Constitution.

24. To begin with, it would be instructive to take note of the facts in Abdur Rahim's case, in which the principle of "nexus" is laid down by their Lordships in regard to the jurisdiction of High Court under Article 98 of the Constitution in a case from Tribal Area. The dispute in that case related to land situated in the former State of Chitral (which was then Tribal Area), the dispute had been decided in Chitral according to local custom, having the force of law, and the only thing, which had been done in that connection at Lahore, was the filing of revision application before Home Secretary which was, however, dismissed. It was in this background that writ petition was filed by the unsuccessful litigant in High Court but it was dismissed in limine. And his appeal before the Supreme Court of Pakistan also failed, as according to their Lordships the case was clearly of the type in which the Court was required to exercise jurisdiction "in relation to a Tribal Area" respecting which, however, it had no jurisdiction in view of Clause (5) of Article 223 of the Constitution.

25. The one principle, which is discernible from the judgment in Abdur Rahim's case, is that if a High Court/Supreme Court passes an order the implementation of which necessarily has to take effect in a Tribal Area, then the order in question would in view of the prohibition contained in Clause (5) of Article 223 of the Constitution, be without jurisdiction. In order to appreciate the wisdom of this principle, all one has to do is to take note of the structure and peculiarities of the tribal society. A look at the history of constitutional development of this country, beginning with the Government of India Act, 1935, would show that Centrally Administered Tribal Areas have always been treated differently, in that the administration therein has been exclusively run under the direct supervision of Central Government headed by officers known as Political Agents. It is common knowledge that in regard to the administration of these Areas, even the Legislature has/had no jurisdiction to make laws. And it is not difficult to appreciate the reason on which this policy is based. The peoples of these Areas are not only back ward but they happen to inhabit sensitive positions straddling international borders. It is, therefore, obvious that in connection with the administration of the Areas which they occupy, the Central Government had to innovate special measures of expediency rather than the rule-of-law concept by which the rest of the country is normally governed. In order to ensure, therefore, that the said exclusive preserve of Central Government, with which the security of the country itself is interlinked in some measure, is not made the subject-matter of encroachment by other organs of the State, the Legislature excluded in Clause (5) of Article 223 of the Constitution even the jurisdiction of High Court/Supreme Court in all cases in which the orders passed by it .are to be implemented in those Areas. The judgment of Supreme Court of Pakistan in the case of Superintendent, Land Customs, Torkham v. Zewar Khan is an authority which might be referred to with advantage to illustrate the point that I have been trying to make. In that case, a truck loaded with goods was seized within the tribal area. But later it was driven to Peshawar Cantonment. In order to challenge the legality of the seizure of truck, a writ petition was filed in the Peshawar Bench of defunct West Pakistan High Court. But it was dismissed for want of Jurisdiction under Clause (5) of Article 223 of the Constitution. In appeal before the Supreme Court of Pakistan, however, the judgment of High Court was set aside with these observations:

26. "The next question is as to whether the writ could at all issue, because, the truck and the articles therein were seized within the tribal area. The Court has already held in the case of Jamil Ahmad and another v. The State P L D 1964 S C 344 that the High Court had no jurisdiction to issue a writ under Article 98 of the Constitution to the tribal areas. But in this case since the truck and the goods were brought to Peshawar Cantonment, which was within the jurisdiction of the Court, no legitimate objection could be taken to the High Court issuing a writ on the authorities concerned within their jurisdiction to release the truck from such seizure. Since that order would have had to be carried out within the territorial limits of the jurisdiction of the High Court it could have been lawfully issued. It is only if the order was sought to take effect in a territory outside the limits of the jurisdiction of the High Court that the question of non-maintainability of the writ could arise."

27. Now by comparing the facts of that case with those of the case in hand, it would be seen that they are analogous. It will have been noted that except for the polling, which had taken place in the tribal area, all other actions in this case were taken at Peshawar, as also that Akbar Khan is performing his duties as Member of the National Assembly of Pakistan at Islamabad. I am, therefore, of the opinion that his case is fully covered by the ratio of Zewar Khan's case, especially when the order which the Court would be passing in these proceedings would, in no wise, be implemented in the tribal area.

28. Even on principle, it would be difficult to agree with the learned counsel. According to Article 9 of L.F.O., which is a supra-constitutional enactment, a person offering himself as candidate to be elected as Member of an Assembly must not only possess the requisite qualifications but must be free from any of the disqualifications enumerated thereunder. In other words, if it is found that when he filed his nomination-papers with Returning Officer, a person was disqualified from offering himself as candidate, then his election would be void. And the Judges of superior Courts, in view of the oath of their office to protect and preserve the Constitution, would be bound to declare the election of such a Member void. The well-known judgment of Supreme Court of Pakistan in the case of Farzand Ali v. The Province of West Pakistan (PLD 1970 S C 98) would support this conclusion. And it would suffice to reproduce from it the following passage:

29. "I regret my inability to accept this contention for more than one reason. Firstly, because this would be allowing a person to continue to remain a member of an Assembly even though Article 103 of the Constitution says that he cannot . . . . ."

30. It is true that in that case the objection taken was that in view of the facts and circumstances of the case the Court would have no jurisdiction to issue a writ in the nature of quo warranto. But even so, the principle laid down therein would be applicable to this case, for if the Court was to throw s away this petition in view of the bar contained in Clause (5) of Article 223 of the Constitution, it would be allowing Akbar Khan to continue to remain a Member of the National Assembly of Pakistan, even though he was when he filed his nomination-papers with Returning Officer at Peshawar on 14-10-70, disqualified under paragraph (h) of Clause (2) of Article 9 of L.F.O.

31. At some stage of the proceedings an objection was also voiced as if this Court would have no jurisdiction in this case, as Election Commission, Islamabad, is not a person within the meaning of Article 98 of the Constitu tion performing functions in the province in connection with the affairs of the Centre. In regard to this objection, however, we have the contrary authority of Supreme Court of Pakistan in the case of Asghar Hussain v. Election Commissioner of Pakistan (P L D 1968 S C 387). The facts in that case were that in an Election to the Provincial Assembly of East Pakistan one of the candidates was declared elected. But on an election petition filed against him by the unsuccessful candidate, he was unseated by the Election Tribunal. The unseated candidate, therefore, filed a constitutional petition in Dacca High Court, impleading therein also the Election Commission, challenging the order, of Tribunal. But a preliminary objection was taken to the jurisdiction of High Court on behalf of Election Commission that since it did not perform: any function in the Province of East Pakistan in connection with the affairs of Central Government, the Court would have no authority to hear the petition. It seems that the High Court was impressed with this objection and dismissed the petition for want of jurisdiction. But in appeal before the Supreme Court of Pakistan, the judgment of High Court was set aside and the case remanded to it for decision on merits. It was observed by their Lordships that just as in the case of many Departments of Central Government, such as Defence of Pakistan, External Affairs, Insurance, Copyright, Patent, Design, Air Navigation, Mineral, Oil and Natural Gas, Mateorology, National Libraries and Museums which are located in Islamabad or at Rawalpindi but have their functions spread over the whole country, the functions of Election Commission are also spread over the entire land, and thus it would be a person performing functions within the territorial limits of High Court in connection with the affairs of Central Government.

32. It would thus be seen that in view of this dictum of Supreme Court, the Election Commission would be a person performing functions in this Province in connection with the affairs of Central Government. And thus there would' be no bar in the way of this Court to proceed with the decision of this case in its constitutional jurisdiction under Article 98 of the Constitution.

33. An objection may also arise, although no such objection was taken by the learned counsel for Akbar Khan, that the proper forum for the adjudi cation of disputes raised in this petition would be the Election Tribunal and not this Court the jurisdiction of which under Article 98 of the Constitution is subject to there being no other adequate remedy provided by law. It may be noted that in section 50 of Ordinance XIII of 1970, in Clause (2) of Article 104 of the Constitution and Clause (2) of Article 63 of the permanent Constitution, a machinery has been provided to test the validity of election of a Member of an Assembly. But under the Ordinance a candidate alone has been given the right to avail of the remedy, whereas the right under the constitutional provisions has been given only to the Speaker of an Assembly who, in the event of a question arising whether a Member has after his election become disqualified, is required to refer the said question for the decision of Chief Election Commissioner. It is common ground between the parties, however, that petitioner was not a candidate for election as Member to the National Assembly of Pakistan from the Tribal Constituency from which Akbar Khan was elected. And hence he could not avail of the remedy provided under the Ordinance, although it is a matter of record that the remedy in question bad been availed of by the unsuccessful candidate (respondent Yusaf Khan). But he later withdrew his petition and the same was dismissed by Election Tribunal. As regards the remedy provided under the constitutional provision, it can be availed of only by the speaker of an Assembly, and that too if a question arises whether a Member has, after his election, become disqualified. But the position in this case is different, in which it is alleged that Akbar Khan was initially disqualified from being elected as, and from being a Member of the National Assembly of Pakistan even on 14-10-70, when he filed with Returning Officer at Peshawar his nomination papers. In these circumstances, this petition, in which informa tion has been laid by Khaista Gul in the nature of quo warranto, alone would appear to be competent, especially when he is an Elector from the Constituency from which Akbar Khan was declared to have been elected as Member to National Assembly. If any authority is needed for this conclusion reference may be made to the well-known judgment of Supreme Court of Pakistan in the case of Lt.-Col. Farzand Ali and others v. Province of West Pakistan in which the following principle was laid down on the point:

34. "I regret my inability to accept this contention for more than one reason. Firstly, because this would be allowing a person to continue to remain a Member of an Assembly even though Article 103 of the Constitution says that he cannot. Secondly, because, the dispute raised after an election is not, a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a Member of an Assembly. An election dispute ii a dispute raised by a voter or a defeated candidate in his individual capacity under the Statute. It determines the private rights of two persons to the same office but a proceeding for an information in the nature of quo warranto is invoked in the public interest. The latter seeks to determine the title to the office and not the validity of the election. These are two distinct and independent remedies for enforcing independent rights, and the mere fact that the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for properly scrutinizing a person's right to be enrolled as a voter or his right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still continuing. Indeed a writ of quo warranto or a proceeding in the nature of an information for a quo warranto, unless expressly barred by some statute, is available pre cisely for such a purpose."

35. And further that- "even in a case where an election petition is the only remedy when an election is objected to on the ground that the person whose election in question was disqualified at the time of the election in lieu of quo warranto is available where a person becomes disqualified after election or where the objection is a continuous holding of the office by the person disqualified."

36. In so far as the merits of the case are concerned, they would present no difficulty, as the facts are admitted. The learned counsel for Akbar Khan has not disputed that when his client filed with Returning Officer at Peshawar his nomination papers on 14-10-70, he was tied up with P. W. D. N.-W. F. P. Government by a subsisting contract in regard to the execution of certain pro jects in Tribal Area. In the written statement filed by Akbar Khan, however, he has attempted to avoid the contract in question on the grounds already noted. But this would not help him in the present proceedings. After all, in paragraph (h) of Clause (2) of Article 9 of L. F. O., of which he shall be presumed to have been aware, his subsisting contract with the Provincial Government was said to be a disqualification from being elected as, and from being a Member of National Assembly. And thus be would have had no option but to disclose that fact in his nomination papers in order to enable the Returning Officer to scrutinize them under section 14 of Ordinance XIII of 1970 to ensure that he was not disqualified. It cannot be denied that he could have taken before Returning Officer the same grounds, which he has taken in his written statement, that his contract with the Provincial Government was void. But unfortunately for him, he did not even mention in his nomination papers, which appear at page 12 of File VII, B-III produced before us by the Election Commission authorities, that he had a subsisting contract with Government. It is, therefore, obvious that by not disclosing this crucial fact in his nomina tion papers, the Returning Officer was kept in dark by Akbar Khan in regard to disqualification respecting which he alone had the jurisdiction to give a decision. The inevitable conclusion would, therefore, be that he was disqualified from being elected as, and from being a Member of National Assembly on the date when he filed his nomination papers with Returning Officer. And this disqualification would continue from day to day so long as he performs his duties as Member in the National Assembly, I am, therefore, clear in my mind that his case is, in all its facts, covered by the case of Farzand Ali.

37. The learned counsel, however, argued that whatever disqualifications were intended to be laid down by Legislature, they are contained in L. F. O. But this enactment, he added, has not been extended to the Centrally Administered Tribal Areas. In support of this contention, he relied on Clause (2) of Arti cle 6 of L. F. O. which, alongwith Clause (1) thereof reads as under :-

38. "(1) Except as provided in clause (2), the members shall be elected to the general seats from territorial constituencies by direct election on the basis of adult franchise in accordance with law.

(2) The President may, by regulation, make separate provision for election of members from the Centrally Administered Tribal Areas."

39. It is obvious that in the case of members from general seats in the rest of the country the Legislature provided in Clause (1) of Article 6 of L. F. O. that the election would be held on the basis of adult-franchise in accordance with law. But in regard to members from the Centrally Administered Tribal Areas it is provided in Clause (2) thereof that the President may by regulation, make a separate provision. Now by President's Order No. 13 of 1970 (Preparation of Electoral Rolls (Centrally Administered Tribal Areas) Order, 1970), every Political Agent/Deputy Commissioner was required to prepare and maintain an electoral roll for each constituency in the Centrally Administered Tribal Areas within his jurisdiction containing the name:

(a) of every Malik who is not at the commencement of this Order, less than 21 years of age; or

(b) where any such Malik is less than 21 years of age at such commence ment, the name of his duly accredited or recognized guardian.

40. In section 2 of the said Order, Malik has been defined to mean `a person who is in receipt of Maliki allowance or lungi allowance or is a mowajib elder, (i. e. one who is in receipt of some gratuitous allowance from Government). And this would show that in the case of elections from the Centrally Adminis tered Tribal Areas, the right of franchise was restricted to the class of Maliks receiving some allowance from Government. Strange though this may appear, the intention of Legislature in that regard, however, is understandable. The tribal society has its own peculiarities in which the institutions of Maliks occupy a pivotal position. They are the recognized leaders of their men and all outside intercourse bearing upon the administration of their tribes has to be made through their person. It seems to me that the Legislature was aware of this position. And in order not to disturb the established ways of tribal society, it provided only to Maliks the right of franchise. To this extent, there fore, no exception can be taken to this otherwise seemingly unsavoury practice. But this would not mean that in the absence of anything to the contrary, the other disqualifications contained in L. F. O. would not apply in the case of Members from the Centrally Administered Tribal Areas.

41. It will have been noted that by Clause (2) of Article 6 of L. F. O., the President was authorised to make by regulation separate provisions for election of Members from the Centrally Administered Tribal Areas. And in that regard, the President promulgated Regulation I of 1970. But there is nothing in this Regulation, which would tantamount to a radical departure from the provisions of Ordinance XIII of 1970. A perusal of the said Regulation would show that by paragraph 3 of it, the provisions of Ordinance XIII of 1970 were, subject to the notifications specified in the Schedule attached thereto, made applicable to elections from the Centrally Administered Tribal Areas. But the said modifications are entirely in the nature of conse quential measures, having no bearing on the merits of the case, except that by paragraph 8 of the Regulation, subsection (3) of section 64 of Ordinance X1II of 1970 was substituted by a new subsection providing for appeal by an aggrieved person to Peshawar High Court against the decision of Tribunal. Therefore, the only significant change introduced by Regulation I of 1970, in so far as the Centrally Administered Tribal Areas are concerned, was the extension by it of Ordinance XIII of 1970 to these Areas. And this would, as I would presently show, have some bearing on the decision of this case.

42. Ordinance XIII of 1970 and Regulation I of 1970 do not Jay down any thing by way of disqualification of a Member. And thus the only enactment which is left in the field is L. F. O. in Article 9 of which would be found a list of qualifications/disqualifications. But it would be proper to glance through its other provisions to see if they would apply to Tribal Areas. In paragraph (v) of Clause (1) of Article 3 of it, a Member has been defined to mean a member of an Assembly; in paragraph (vii) of the same Clause, the Centrally Adminis tered Tribal Areas have been given the same meaning as in the Province of West Pakistan (Dissolution) Order, 1970; in Clause (1) of Article 4 of L. F. O. it is said that there shall be a National Assembly of Pakistan consisting of 313 members of whom 300 shall be elected to fill general seats and 13 to fill seats reserved for women ; in Clause (2) of the same Article, it is said that these seats shall be distributed amongst the provinces and the Centrally Administer ed Tribal Areas, as set out in Schedule I, in which 7 seats have been reserved for the said Areas ; by Article 8 of L. F. O. which is the next relevant Article the President is required to constitute an Election Commission ; and in Article 9 are laid down the qualifications/disqualifications of a person seeking election to an Assembly. But as already noted in the case of Members from the Centrally Administered Tribal Areas, a different set of qualifications has been provided by Order No. 13 of 1970, in which however, the disqualifica tions have not been mentioned. In Article 10 of L. F. O., it is said that no person shall, at the same time, be a member of more than one Assembly or a member of the same Assembly from more than one constituency. And when we proceed to Article II of it, it says that a member may resign his seat by notice in writing under his hand addressed to the Speaker, and in case he remains absent from the Assembly without leave of the Speaker for 15 consecutive days or if he fails to take the pres cribed oath in accordance with Article 12 within a period of 7 days from the date of the first meeting of the Assembly after his election, his seat shall become vacant. Article 16 of L. F. O. says that the National Assembly shall, as soon as may be, elect two of its members to be respectively the Speaker and Deputy Speaker. Article 17 provides for the quorum of the house and rules of procedure. Article 18 contains the privileges to which a Member of National Assembly is entitled. Article 19 speaks of the privileges of Speaker, Deputy Speaker and other Members of the National Assembly of Pakistan which the President; may by order, prescribe. And lastly is Article 20 of L. F. O. which says that the Constitution shall be so framed as to contain the principles of Islamic Ideology and Fundamental Rights.

43. This analysis of the various provisions of L.F.O. would show that it would equally apply to Members elected from constituencies in the Centrally Adminis tered Tribal Areas, especially when it makes no distinction between members elected from constituencies in the said Areas and from other constituencies of Pakistan. It is conceded by the learned counsel for Akbar Khan that except for the disqualifications contained in Article 9 of L. F. O., there is no other law providing for similar disqualifications in the case of Members from Tribal Areas. Now this concession, which would evidently support the conclusion I have already reached, seems to be significant, in that in the absence of any other law providing disqualifications in regard to Members from Tribal Areas, the ones enumerated in Article 9 of L. F. O, would apply in their case, for a otherwise even a minor, an un-discharged bankrupt of a convict, all of whom are disqualified under that Article, could as well claim to be qualified to seek election to an Assembly which, however, could not have been the intention of Legislature. In this view of the matter, there is no option but to hold that the election of respondent Akbar Khan as Member of National Assembly of Pakistan from Constituency No. NW-19, Tribal Area I, Mohmand Agency is void under section 65 (1) (b) of Ordinance XIII of 1970, as when he filed his nomination papers with Returning Officer at Peshawar on 14-10-70, he was holding a subsisting contract from P. W. D., N. W. F. P. Government and thus was disqualified from being elected as, and from being a Member of National Assembly of Pakistan.

44. However, we have not been able to agree with the learned counsel for petitioner that instead of Akbar Khan this Court should now declare that Yousaf Khan (respondent No. 2) would be the person as Member elected to the National Assembly of Pakistan from the said Constituency. It is a matter of record that Yusaf Khan had filed an election petition under section 50 of Ordinance XIII of 1970 before the Election Tribunal. But he latter withdrew this petition and it was dismissed. In other words, after having withdrawn his election petition filed by him before the Election Tribunal, he would seem to have had no further interest in the matter. And thus by this conduct, he would be disentitled to any discretionary relief in these proceedings. In any case, this question would not arise. For he is not a petitioner before us in these proceedings And in this respect, let us advert to the relevant provisions of Article 98 of the Constitution. In so far as the jurisdiction of this Court under paragraph (b) of Clause (2) of that Article is concerned, it can be exer cised "on the application of any person" laying information before the Court in the nature of quo warranto requiring a person in the province holding or purporting to hold a public office to show under what authority of law he claims to hold the office. And we have exercised it in favour of Khaista Gul petitioner in these proceedings. It is true that respondent Yusaf Khan would be the "aggrieved" person within the meaning of paragraph (a) of Clause (2) of Article 98 of the Constitution, for he was the only other candidate against Akbar Khan. But since he has not chosen to come to this Court in its cons titutional jurisdiction under that Article, no relief could be granted to him.

45. The net result of this discussion is that in answer to the rule of nisi, Akbar Khan has been unable to show the authority of law under which he claims to have been elected to and continues to be a Member of National Assembly of Pakistan from Constituency No. NW-19, Tribal Area I, Mohmand Agency. It would, therefore, follow that the action of Returning Officer (respondent No. 7) declaring him to have received the highest number of votes would be without lawful authority and of no legal effect. And same would be the case in regard to the action of Election Commission (respondent No. 8) having notified him in official Gazette to have been duly elected as such Member. As a necessary corollary to this finding, a declaration would go to these two functionaries to undo the wrong. And to that end, respondent 7 must withdraw his declara tion in favour of Akbar Khan and the Election Commission, Islamabad the Notification by which Akbar Khan was declared to have been duly elected. I am conscious of the fact that in consequence of said action being taken by the said functionaries of State, Constituency No. NW-19, Tribal Area I, Mohmand Agency, would fall vacant. But this is the function of Election Commission respecting which this Court is not called upon to give any declaration.

46. This petition is accordingly allowed. And in fairness to petitioner, I would direct that he should be compensated in costs by respondent Akbar Khan.

47. K. B. A. Petition accepted.