Makhdoom M. Niaz Inqalabi etc VS Election Commission of Pakistan etc

ORDER SHEET

IN THE ISLAMABAD COIIRT. ISLAMABAI)

wRrr PETITION NO.668 I 2OL3 MAr(HDooM M. NtAzINeLABr, ADvocATE etc'

APPELLANT

PETITIONER

VERSUS

ELECTION COMMISSION OF PAKTSTAN, ETC.

RESPONDENT

DET'ENDANT

Appeal/revision against the decree or order (as the case may be) of

SDRIAL ITO. OF

DATE OR ORI'ER OT Order with signatures of judge, and that of parties or

ORDER, OT

PROCEEPIilGA PROCEDDII|GS counsel, where necessary.

I 2 3

2O.O2.2O13 M/s. Makhdoom M. Niaz Iqlabi,M. Zahid Aziz Alvi and Asghar Ali Mubarak, Advocates, petitioners.

Petitioners invoked the constitutional jurisdiction of this court by way of filing instant writ petition with the following prayer:- "In uieut of aboue submissiong if is mosf respectfullg praged that a direction and declaration mag graciouslg be giuen to the effect that;- a. The appointment of Chief Election Commissioner and four Honourable Members oi the Election Commission of Pakistan is not in accordance with tLrc prouisions of Article 213 and 218 of the constitution, hence all these appointments are uoid ab-initio.

b. Ttnt a direction to the respondent No.4 mag graciouslg be issued on urgent bosis to re- appoint the Chief Election Commissioner and four Members of the Election Commission of Pakistan immediatelg in accordance uith procedure laid down in Article 213(2) (a) and 218(2) (a) and (b) of the Constitution of Islamic Republic of Pakistan, 1973 so tlnt forthcoming elections mag not be delaged on anA preturt and is conducted, fairlg, justlg and in accordance withlaw.

c. A direction maA kindlg be issued to tl,e respondents regarding tLrc lauful appointment of Honourable members of Election Commission of Pakistan in accordance uith procedure and law mentioned in the Constitution of Pakistan within shortest possible peiod of time. d.. Respondent No.l mau kindlu be restrained from performinq its duties till ttrc disposal of instant uit petition. (underlining is mine) e. It is furttrcr praged that concerned authoities mag kindtg be directed to obserue the entire prouisions of Article562 and 63 of Constitution of Islamic Republic of Pakistan, 1973 while conducting the election Process'

f. The direction be issued regarding implementation of People Representatiue Act, 1976 ttthollg in letter and sPiit.

g. The direction be issued to concerned authoities for restraining ang kind of enhancement of seanitg amount Rs.2OO0/ 4000 for the candidates of MPAs and MNAs respectiuelg' Ang kind of enhancement in secuitg amount mag kindtg be declared as null and uoid ab-initio' tL Ang other relief, which this Honourable Court d.eems fit and appropiate in uieut of the auerments made in the petition mag also be awarded for the sake of holding of free and fair election in the country."

2.Petitioners in person contended that this is a writ of quo-warranto through which authority to hold office by Chief Election Commissioner and Members of Election Commission of Pakistan has been challenged. According to petitioners appointment of the Chief Election Commissioner and members of the Election Commission are

besides the constitution as procedure prescribed by Articles 213 arld 218 has not been followed. When asked by the court that why the petitioners remained silent since June 2oll, when appointment of the learned members of the commission was made, petitioners replied that they were not aware of this fact and came to know about the same/ couple of weeks back, when debate about same started on the electronic media and thereafter, they kept on waiting of the outcome of proceedings pending before the Honourable Supreme Court. On court question about the non-joining of necessary parties, petitioners maintained that all necessary parties have been impleaded and there is no requirement to implead by name, the learned Chief Election Commissioner and members as respondents' Petitioners vehemently argued that very foundation i.e composition of the Election Commission is not in accordance with the constitution, therefore, general elections likely to be held in the near future would not be lawful' Petitioners further submitted that law of necessity P+/4 ) has alreadv been buried by the Supreme Court, therefore, holding of elections in near future should not come in the way, in making the declaration that appointments made are without procedure prescribed.

I have heard the petitioners at some length and also perused the documents annexed with the petition.

3.Instant writ petition has been described by the petitioners as one of "Quo Waranto", although prayer made in the writ petition does not reconcile with the same. Article 199(1) (b) (ii) which empowers the High Court to issue writ of "Quo Warranto" reads as under:-

(ii)requlrlng d person within the territorialJurtsdiction of the Court holding or putportlng to hold a publlc office to show under uhat authorltg of laut he clalm.s to hold that office;

Plain reading of above makes it clear that for the purpose of "requiring any person" particulars of that person are necessary and if "any person" prefers a petition then person to be called upon has to be impleaded as respondent.

Although this court invited the attention of petitioners who are learned advocates of the High Court but they preferred to argue the matter with this inherent defect. Even, otherwise, no petition can be maintained without necessary parties, who are likely to suffer of the outcome of any proceedings.

4.This petition also hits by "LACHES" as appointment of the learned members was made on June 11.06.2011 and learned Chief Election Commissioner was appointed on 16.07.2012' Reasons advanced by the petitioners that they came to know about the appointments recentlyT

when debate started on the electronic and print media, to my mind is nothing but a fallacy. It is a matter of record that same media, aired and published the news of the appointment of the learned CEC and members of the commission.

5.Timing of instant petition requires greater attention and sensitive approach. On 13ft Feb. 2}lg Honble Supreme Court passed the order of dismissal of the constitution petition No.5 titled as Dr. Muhammad Tahir-ul-Qadri Vs' Federation of Pakistan etc. On the same date petitioner No.1, through TCS, send applications for the reconstitution of ECP to the Ministry of law, Parliamentary Committee and ECP. Petitioners approached this court on 18.02.2013.

6.It is ground reality that term of national and Provincial Assemblies coming to an end by 16th March, 2013, therefore, all the political parties are preparing for the fresh electionsrwhich are likely to be held in the month of May,2Ol3' Entire nation has also focused on the constitutional and democratic event of election, as Election commission of Pakistan commenced the process of holding elections. If, for the sake of arguments, stance of the petitioners that proper procedure has not been followed in the appointmentofChiefElectionCommissionerand members of ECP, is accepted, even then at this stage, this court shaIl refrain from issuing any writ.

W.P No.668/2O13

7.In the case of Haji Saif Ullah, reported as PLD 1989 SC 166, august Supreme Court has already held as under:- *The third factor to be noted is that all the Wit Petitioners u)ere directlg and immediatelg affected bg the dissolution of the Assemblies, bg the failure to hold the General Elections within ninetg dags of tlrc dissolution, bg tlrc omission to appoint a Prime Minister for tlrc caretaker cabinet, but none of them came forutard to challenge anA of these acts of omission and commission. It was onlg u.thenthe late General Muhammad Zia-ul-Haq, disappeared from th.e scene on account of an unforeseen disaster, afier tlrc stage had been fullg set and the uhole nation uas preparing itself for the General Elections that tlrcse uit petitions u)ere filed seeking reuersal ofthe state of affairs, asking for a declaration of all round peruasiue nullities and illegalities and for claiming all the reliefs which haue been enumerated. This conduct of the petitioners, the stage at which these petitions u)ere filed and the death of General Muhammad Zia-ul-Haq whose acts had in essence occasioned all the gieuances of the petitioners, disentitled th.em of ang discretionary relief in tlrc matter. The mere transitory continuance for such a pre-existing state of affairs, u-tith an ege on t?rc immediate and pime objectiue of lnlding a timetg and fair General Elections prompts us not to interfere in these proceedings utith those matters, and the preuailing state of affairs.

For reasons alreadg giuen the findings record.ed. bg the High Court are upheld, the denial of relief to tlrc ttit petitioners is affirmed, and all the appeals are dismissed with no order as fo costs' "

8.In my estimation above laid down dictum is directly applicable in the present scenario' Now, coming to the contention of the petitioners that "law of necessity' has been buried by honourable Supreme Court, therefore holding of elections in near future should not come in the way in making declaration that appointments of

Chief Election Commissioner and Members as unconstitutional. Undoubtedly, august Supreme Court through authoritative pronouncement reported as PLD 2OO9 SC 879, buried the notorious "law of necessit5/ for all times to come but at the same time superior courts have become more vigilant in appreciating the intent of any party in bringing any matter before them. As superior courts have also thrown out the "doctrine of mischief' tqFa/ I

I am constrained to observe that instant petition originated from above mentioned doctrine.

g. Even otherwise questions raised before this court were also agitated in the constitutional petition No.O5/2013 which stand dismissed, vide order dated lg.O2.2OL3, to be followed by the reasons of dismissal. Therefore, this court lacks jurisdiction to adjudicate upon any matter which has already been decided by august Supreme Court.

In this view of the matter and for the reasons stated above instant petition is dismissed being not maintainable.

SIDDTQUI)

JUDGE

Approved for RePorting

'WaqarAhmed"

Uploaded By :- Engr. Umer Rasheed Dar