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Petitioner: Syed NADIR ALI SHAH VS Respondent: MOHTAMIM/RAEES UL MADRASSA, MADRASSA ARABIA JUDGMENT
Court Name: Peshawar High Court Judge(s): Waqar Ahmad Seth, Rooh-ul-Amin Khan Title:Syed NADIR ALI SHAH vs MOHTAMIM/RAEES UL MADRASSA, MADRASSA ARABIA
JUDGMENT
Reported As: PLD 2017 Peshawar 133 Result: Petition allowed Judgment JUDGMENT WAQAR AHMAD SETH, J.---Through this single judgment, we propose to dispose of instant Writ Petition as well as connected Writ Petitions Nos. 191-A and 240-A/2014 as common questions of law and facts are involved therein. 2. In essence, grievance of the petitioners is that they are voters of constituency PK-54 Mansehra-II and private respondent namely Mian Zia-ur-Rehman, who contested the General Election of 2013 from the said Constituency, has been declared as returned candidate but he is not honest, ameen, righteous, sagacious, non-profligate person within the meaning of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973 on the ground that in General Election of 2008 while filing nomination papers, he declared himself as Graduate on the basis of Sanad-ul-Faragh Shahadatul-Alia whereas in General Elections of 2013, he declared himself as Matriculate, thus, the petitioners have filed the instant quo warrant writ petitions before this Court with the prayer to call the private respondent i.e. Mian Ziaur Rehman as to under what authority of law and constitution, he is holding the Office of Member Provincial Assembly PK-54 Mansehra-II and respondent/Election Commission of Pakistan be directed to set aside his notification as Member Provincial Assembly. 3. While filing comments to the writ petitions, private respondent/Mian Zia-ur-Rehman states that the Writ Petitions are hit by the principle of Res judicata as the subject matter of instant Writ Petitions has been finally decided and disposed of by the worthy Supreme Court of Pakistan in Civil Appeals Nos. 1308 and 1309/2013 vide judgment dated 27.1.2014. It is further stated that nomination papers of respondent No.5 has neither been challenged by anyone including the petitioners within the meaning of Article 62 read with Article 63 of the Constitution of Islamic Republic of Pakistan,
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1973 nor the petitioners have locus standi to challenge his educational qualification being not candidates in any election in his constituency coupled with the fact that the petitioners are not aggrieved/affected person. That the answering respondent has disclosed his qualification as BA and in the subsequent General Elections of 2013 as Matriculation because in the former Elections of 2008, he was legally required to do so as by that time without being BA he could not contest the Elections while no such requirement existed to mention such qualification in the nomination papers of 2013. Anyhow, all these allegations and objections relate to the jurisdiction of Election Tribunal, constituted under Article 225 of the Constitution to decide all such disputes and do not fall within the constitutional jurisdiction of this Hon'ble Court. Taking cognizance of the matter relating to Election Tribunal would be beyond the terms of Constitution and legal mandate and thus any decision rendered would be ipso facto illegal and without jurisdiction. Earlier, this Court in Writ Petition No. 730-A/2013 titled "Mian Zia-ur-Rehman v. Syed Ahmed Hussain Shah etc" in its very elaborate judgment held that all the questions relating to the election are within the domain of Election Tribunal and does not fall within the jurisdiction of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Moreso, the allegations are factual, needing recording of pro and contra evidence, which cannot be resolved in constitutional jurisdiction, hence, prayed for dismissal of instant Writ Petitions. 4. Similarly, the Federal Government through Secretary Ministry of Parliamentary Affairs, Islamabad was arrayed as respondent No.6 by this Court vide order dated 13.12.2016 being necessary party, who furnished report by stating that the petitions exclusively relates to the election issues and Ministry of Parliamentary Affairs is not involved in such issues, therefore, prayed for its dismissal with costs. 5. Likewise, in Writ Petition No. 240-A/2014, respondent No.1/ Secretary Election Commission of Pakistan has filed parawise comments and stated therein that the petition is not maintainable as the petitioner is barred to file the same being not contesting candidate. According to Section 52(1) of ROP Act, 1976, no election shall be called in question except by an election petition made by a candidate for that election. It is further stated that petitioner has no cause of action to file instant petition as earlier petition filed on the same cause of action has already been dismissed by the apex Court vide judgment dated 27.1.2014. 6. Arguments heard and record perused. 7. Before dilating upon the merits of the case, which even otherwise are not specifically denied and the same were determined explicitly by the Election Tribunal, Abbottabad, in its judgment / decision dated 23.10.2013, the main plea of private respondent is regarding the maintainability of writ of quo warranto and secondly the res judicata, while relied on PLD-1974 Supreme Court-228, PLD 2010 SC-34, PLD, 2008 SC 735, PLD-2008 SC-85, 2008 YLR-1493, PLD 2016 SC 79, 2004 MLD 36, 2014 SCMR 1015, 2015 PTD 438 PLD1988 SC 416., 2016 SCMR 439 and PLD 1965 SC 236, hence the preliminary objections of maintainability and res, judicata are taken before main discussion. 8. The word Res judicata has been defined in section-11 of the C.P.C. 1908 which reads as under:- "Res Judicata.---No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation No.1-- The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation No.II.--For the purposes of the section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court. Explanation No. III.--The matter above referred to must in the former suit have been alleged by one
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party and either denied or admitted expressly or impliedly by the other. Explanation No. IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation No. V. -- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. Explanation No. VI .---Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall for the purposes of this section, be deemed to claim under the person so litigating. 9. This section qualifies insofar as suit are concerned the doctrine of res judicata, where there is a judgment inter se parties, it will prevent a fresh suit between them regarding the same matter. This principle/doctrine is of universal application and in fact a fundamental concept in the organization of every jural society. Justice requires that every cause should be once fairly tried and public tranquilizes demands that having been tried once all litigations about that cause should be concluded for ever between those parties. We have attended to the entire record and the learned counsel for respondents was invited to lead us to any documents/judgment showing that previously between the same parties, emphasis is upon same parties matter has been decided, but could not show us that previously any litigation except the instant quo warrant to were initiated or decided and as such the doctrine of res judicature is not applicable to any of the three writ petitions. 10.As regarding the maintainability of the writ of quo warranto and the jurisdiction of Election Tribunal is concerned, the Election Tribunals are constituted under Article-225 of the Constitution of Islamic Republic of Pakistan, 1973 which reads as under:- "No election to 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- Shoora. 11.The Election Petition has been defined in the Representation of Peoples Act, No. LXXXV of 1976, section-52 which reads as under:- "No election shall be called in question except by an election petition made by or candidate for that election (hereafter in this Chapter referred to as the petitioner). 12.The emphasis in the above quoted section is upon 'made by or candidate for that election'. The petitioners in all the three writ petitions are voters of the PK-54, Manshera-II and were not candidate in the election, which was contested by the private respondent. The entire scheme and theme of the Representation of the Peoples Act, 1976, revolves around the election and the candidates whether contestant or returned. The voters and for that matter the citizens of Pakistan or of the constituency, nowhere figures. 13.Record suggests that one Syed Ahmad Hussain Shah and Syed Mazhar Ali Qasim, previously challenged the election of private respondent/Mian Zia ur Rehman as a returned candidate from the constituency PK-54 Manshera-II on the ground that he on the day of his filing of nomination form for General Elections of 2013, was not qualified to be elected or chosen as member of the Parliament or Provincial Assembly in terms of the Provisions of Article-62 (1) (1) of the Constitution of Islamic Republic of Pakistan, 1973. The said election petitions were entertained by the Election Tribunal, Abbottabad and were allowed. The present private respondent went in appeal before the appellate Court i.e. Supreme Court of Pakistan in C.Ps. Nos. 1308 and 1309 of 2013 and the apex Court without dilating upon the merits of the case, just dilated upon section-54, decided the matter by holding that since the Election Petition was not properly verified as required under sections-54 and 55 of the Representation of Peoples Act, 1976, but in the concluding paragraph No.17 held as under:-
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"For what has been discussed above, both these appeals are allowed and the impugned judgment is set aside with no order as to cost. However, before parting with the judgment, we may like to add that the observations made in this judgment are without prejudice to any, other remedy against the appellant which the respondents-objectors may have under the law." 14. The instant writ petitions are for all intent and purposes writ of quo warranto and a writ of quo warranto is an information in nature placed before the Court and the petitioner may not be an aggrieved person. Reliance is placed on PLD-2013 Lahore-586 which reads as under:-- A writ of quo warranto is information in nature placed before the court and the petitioner may not be an aggrieved person. The words in Article 199(b) (ii) of the Constitution are "holding or purporting to hold a public office". Writ of quo warranto can be issued against a person, who is holding a public office without any lawful authority or he is a usurper. The word used in Article 199(b) (ii) of the Constitution are "the holder of public office" denotes that relief of writ of quo warranto will be available to a person against a holder of public office and not a retired person. The intention of the legislature is clear that relief of quo warranto is available only against those who are present and not who were public office holder or would be public office holder. When the holder of public office ceased to hold the office, the relief of quo warranto also becomes not available to an aggrieved party or any other person. The only object of the writ of quo warranto is to inquire into and determine the authority of a person holding a public office, and the consequence of the acceptance of the petition is the ouster of the person from the public office, the relief by way of writ of quo warranto remain only available so long as the person attacked is in actual possession and user of the office. As a general rule, therefore, quo warranto to question a person's title to office will not be granted after he has ceased to hold that office. The writ of quo warranto cannot be used to quash acts already done by a usurper. Quo warranto is meant to prevent a continued exercise of authority unlawfully asserted and not to correct what already has been done under it or to vindicate private rights. As far as the right of person to ask for refund of salaries or other benefits from a usurper to a public office is concerned, it cannot be determined in a proceeding for quo warranto. The said determination is an independent right and can be ascertained in appropriate proceedings according to law. In the case of Naqeebullah Khan v. Malik Imran Khan and 6 others, reported in PLD-2006 Peshawar-21 it has been held as under:- The constitutional jurisdiction of this Court includes issuance of . writ in the nature of quo warranto; therefore, we shall first discuss the scope of our Jurisdiction. It was ruled in the "University of Mysore v. Govinda Rao AIR 1965 SC 491 while quoting a passage from H alsbury:-- "An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim in order that the right to the office or franchise might be determined." And observed: "........the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provision; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to
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hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by (a) usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not." 31. It has been ruled in number of judgments from Indian jurisdiction including AIR 1952 Nag. 330, AIR 1952 Tr. C. 66, AIR 1957 Raj. 75, AIR 1961 AP 250 and AIR 1970 Raj. 184 that "any person could move the Court without alleging violation of any specific right of the applicant where the application is in respect of Public office". It is not disputed nor can be disputed that respondent is holding a public office as he is member of the Provincial Assembly. It is also not denied that the petitioner before us is a registered voter of the constituency which is represented by respondent in his capacity as Member of the Provincial Assembly. The case-law in support of proposition that writ can be issued on the application of any person where some interest lies, reliance was placed at: (i)PLD 1970 SC 98 (Lt. Col. Farzand All and others v. Province of West Pakistan); (ii)PLD 1975 Pesh. 146 (Khaista Gul v. Akbar Khan and 7 others); (iii)PLD 1982 Kar. 604 (Syed Arshad Hussain v. The Government of Sindh and 38 others) (iv)PLD 1962 Lab. 231 (Abdul Aziz and others v. The State and others) (v)1994 SCMR 1299 (Ghulain Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others) 32. An objection has been raised by the learned counsel for the respondent that in view of Article 225 of the Constitution of Islamic Republic of Pakistan, 1973, there is a bar of jurisdiction of all Courts. An election can only be challenged by filing an election petition before the Election Tribunal. One cannot disagree with the learned counsel for the respondent but that would be when the challenge is made to the election and not Case Judgment where it is; made to the qualification of the person holding public office. Otherwise, it is true under the Representation of the People Act, 1976; an election petition can only be filed by a candidate and by none else. No doubt that ground of disqualification to be disqualified on the date of nomination or has become disqualified while holding office fall within the arena of jurisdiction of the Election Tribunal but for the purpose of filing of election petition by a candidate. A candidate has been defined under the Representation of the People Act, 1976: "Candidate" means a person proposed as a candidate for, or seeking election as a member. "Contesting Candidate" means a validly nominated candidate who has not withdrawn his candidature. Under section 52 of Representation of the People Act it is only a candidate who can file election petition. 33.Bar of Article 225 of the Constitution would not be attracted where a person having some interest furnishes information to the High Court and challenges the very holding of public office on the ground that respondent was disqualified to hold such public office. 34.Another objection that was taken by the learned counsel was that the question of disqualification can be raised at the floor of the Assembly with reference to Article 63(2) of the Constitution of Islamic Republic of Pakistan, 1973. 35.We doubt that contention of the learned counsel for the respondent would not hold field because sub-Article (2) of the Article 63 of the Constitution deals with a disqualification which might occur during holding of the public office. i.e. during membership of the Assembly. Here in this case, it is case of the petitioner that respondent was disqualified from being elected because
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he was not holding the requisite educational qualification on the date he filed his nomination papers. 36.Another legal objection that has been raised by the learned counsel for the respondent is that the present writ petition is not in the form of writ of quo warranto or is a mixture of writ of certiorari, mandamus and writ of quo warranto. Reference is made to the prayer part of the petition. 37, When learned counsel for the petitioner was confronted, he has prayed that his prayer made in para. 14 of the writ petition is no doubt in the form of mandamus but followed by a relief in the nature of quo warranto and this Court can confine itself if contention of the petitioner prevails to the extent of issuance of quo warranto and the rest is left to be followed as the law would prescribe. Similarly, in the case of Hafiz Hamdullah v. Saifullah Khan and others, reported in PLD 2007 Supreme Court-52, wherein it was held as under:- (a)Constitution of Pakistan (1973)-- ----Art.199(1)(a)---Constitutional jurisdiction of High Court-- Scope---"Aggrieved person'---Connotation---Constitutional jurisdiction of High Court, under Art. 199(1)(a) of the Constitution, can be invoked by an aggrieved person, which denotes a person who has suffered a legal grievance, against whom a decision has been pronounced which has wrongfully deprived him or wrongfully refused to him something which he was legally entitled to-- -Further requirement is that the person invoking Constitutional jurisdiction under Art.199 of the Constitution has to establish that any of his legal or fundamental rights guaranteed under the Constitution has been violated resulting in legal loss. (b)Constitution of Pakistan (1973)-- ----Art. 199(I)(b)(ii)---Writ of quo warranto---Scope---Aggrieved person--Person seeking writ of quo warranto---Locus standi--- Writ of quo warranto is in the nature of laying an information before a Court, against a person who claimed and usurped an office, franchise or liberty, requesting for holding an enquiry to enable him to show the authority under which he supported his claim of right to the office, franchise or liberty---Object of writ of quo warranto is to determine legality of the holder of a statutory or Constitutional office and decide whether he was holding such office in accordance with law or was unauthorizedly occupying a public office--Where a person prays for a writ of quo warranto, the Court would be under an obligation to inquire whether the incumbent is holding the office under the orders of a competent authority and also to examine whether he would be legally qualified to hold the office or to remain in the office-- For issuance of a writ of quo warranto, the person invoking the jurisdiction of High Court under Art.199 of the Constitution is not required to fulfil the stringent conditions required for bringing himself within the meaning of an aggrieved person---Any person can move High Court to challenge the usurpation or unauthorized occupation of a public office by the incumbent of that office and he is not required to establish his locus standi to invoke Constitutional jurisdiction under Art.199 of the Constitution in the manner as generally required by this Article--Writ of quo warranto can be instituted by a person though he may not come within the meaning of word aggrieved person. M. U.A. Khan v. Rana Muhammad Sultan and another PLD 1974 SC 228; Al-Jahad Trust through Raeesul-Mujahidin Habibul Wahabul Khairi v, Federation of Pakistan and others PLD 1996 SC 324; Malik Asad Ali and others v. Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs Islamabad and others PLD 1998 SC 161 and Captain Retired Muhammad Naseem Ejazi v. Province of Punjab 2000 SCMR 1720 rel. (c) Representation of People Act (LXXXV of 1976)- ----Ss, 14, 52 & 99(1) (a) (k)---Conduct of General Elections Order (7 of 2002), Arts. 8-D (2) (a) & 8-E---Constitution of Pakistan (1973), Arts. 63 (2), 199(1) (b) (ii) & 225--Petition for writ of quo warranto---Maintainability---Member of Provincial Assembly--Disqualification--High Court
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disqualified the returned candidate on a petition filed by a person who himself was not a candidate in election---Plea raised by appellant was that in view of the bar contained in Art.225 of the Constitution, High Court could not set aside the election--Validity--Appellant was not qualified to contest for the seat of Provincial Assembly in view of the provisions contained in Art.8- D(2)(a) of Conduct of General Elections Order, 2002, read with S. 99(i) (a) (k) of Representation of People Act, 1976, thus he was suffering from pre-election disqualification--Petitioner before High Court was not a candidate in general election held for electing members of Provincial Assembly, as such could not have recourse to Ss.I4 and 52 of Representation of People Act, 1976, nor any other remedy made available to him by any law, rules or regulations to challenge the election of appellant as member of Provincial Assembly, which emphatically claimed/described to be absolutely illegal and void---Only remedy available to the petitioner before High Court was by way of institution of a Constitutional petition praying for writ of quo warranto, requesting High Court to inquire from the appellant to show that under what authority or law he was entitled to hold the office of member of Provincial Assembly---Constitutional petition was maintainable before High Court. While passing the judgment reliance was placedKhuda Bakhsh v. Mir Zafarullah Khan Jamali 1997 SCMR 561; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 and PLD 2003 Quetta 94; Farzand Ali v. Province of Pakistan PLD 1970 SC 98; Masoodul Hasan v. Khadim Hussain and another PLD 1963 SC 203; Rex v. Speyer 1916 IKB 595 rel. Likewise in the case of Lt. Col. Farzand. Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, reported in PLD 1970 Supreme Court-98, it was held that:- (a) Constitution of Pakistan (1962), Arts. 98 & 171 --Quo warranto---Pre-election disqualification of member of Legislature--Whether can be questioned in writ jurisdiction. Where the argument was that once the name of a person has been registered on the roll of electors, his nomination paper…
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