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Petitioner: Tahir Hussain Khan VS Respondent: Pirzada Muhammad Jahangir Bhutta, etc
Court Name: Lahore High Court Judge(s): Asim Hafeez Title: Tahir Hussain Khan vs Pirzada Muhammad Jahangir Bhutta, etc Case No.: Election Petition No 11 of 2018 Date of Judgment:2020-12-31 Reported As: KLR 2021 Civil Cases 192 Result: Order accordingly
JUDGMENT
JUDGMENT ASIM HAFEEZ, J.--- Through this consolidated judgment, I propose to decide the legal questions, assiduously raised in almost all the election petitions -- listed in enclosed Schedule -A. Fundamentally , the controversy at hand touches upon and calls for determination of the scope and extent of the powers of Election , Tribunal (`Tribunal'), extended under sub-section (1) of section 145 of the Elections Act 2017 (`Act, 2017'). In pith and substance, the case canvassed is that, powers conferred under sub-section (1) of section 145, ibid, are exercisable subject to invoking Rule 140 of the Election Rules, 2017 (Rules, 2017) and only before the issuance of notices to the respondents in terms of sub-section. (2) of section 145 of Act. 2017, and not otherwise. It is expedient to reproduce section 145 of Act, 2017 and Rule 140 of Rules, 2017, for ease of reference: Section 145; Procedure before the Election T ribunal. (1) If any provision of sections 142, 143 or 144 has not been complied with, the Election Tribunal shall summarily reject the election petition. (2). If an election petition is not rejected unde r sub-section (1), the Election Tribunal shall issue notice to each of the respondents through-- (a) registered post acknowledgment due; (b) courier service or urgent mail service; (c) any electronic mode of communication, which may include radio, television, email and short message service (sins); '(d) affixing a copy of the notice at some conspicuous part of the house, if any, in which the respondent is known to have last resided or at a place where the respondent is known to have last carried on business or personally worked for gain; (e) publication in two widely circulated daily newspapers at the cost of the petitioner; and
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(i) any other manner or mode as the T ribunal may deem fit. Rule 140. Processing the petition. Every petition shall be processed by the Tribunal and in case the petition is not in accordance with the laid down procedure, the petitioner shall be informed accordingly indicating the deficiencies in the petition, if any, directing him to fulfill the same within seven days of the receipt of communication from the T ribunal failing which the petition shall be dismissed by the T ribunal. [Emphasis supplied] Relevant facts in the context of controversy 2. Instant election petitions relate to General Elections of 2018, held on 27.07.2018 for the elections of National Assembly and Provincial Assemblies. The petitioners contested the elections from respective constituencies, vying for a seat in the National Assembly or Provincial Assembly , as the case may be., Upon tabulation of election results, Election Commission of Pakistan issued notification of returned candidates. Dissatisfied with the election results, with respect to the constituencies involved, petitioners invoked the remed y provided under section 142 of Act, 2017 and presented petitions before Tribunal(s) appointed in terms of section 140 of Act, 2017. Notices, subject to the question of maintainability , were issued in all the elect petitions. Respondents entered appearances and are represented through their respect ive legal counsels. Upon hearing election petitions, preliminary objections were raised by the respondents, alleging that election petitions are not duly verified, hence, liable to be rejected in exercise of powers under sub-section (1) of section 145 of Act, 2017. Conversely , petitioners objected to the jurisdiction of the Tribunal to adjudicate upon the question of want of verification of election petitions on two counts; firstly , that notices were already issued under sub-section (2) of section 145 of the Act, 2017, and secondly that without invoking Rule 140 of Rules, 2017, petitions are not liable to be rejected, for an alleged deficiency . To facilitate adjudication, questions of law were framed vide order dated 08.12.2020, which questions are reproduced hereunder , for ease of reference: - a) Whether the powers conferred on the Election Tribunal under sub-section (1) -of section 145 of the Act can be exercised retroactively once notices were issued in terms of sub-section (2) of section 145 of the Act and when respondents are duly represented and have submitted replies? and b) Whether the exercise of powers under sub-section (1) of section 145 of the Act is or has been encumbered / subjected to or regulated by virtue of Rule 140 of the Rules? Snapshot of Submissions on behalf of the petitioners: 3. By and large all learned counsels addressed this Court, which submissions are overlapping therefore, substance thereof is narrated. Petitioners question powers of the Tribunal to ascertain and adjudicate that whether elections petitions are duly verified, once notices were issued. Submits that legislative intent, upon perusal of sub-section (2) of section 145 of Act, 2017 and Rule 140 of Rules, 2017; is clear purpose whereof is to quell mischief of dismissal of election petitions, simplicitor , due to non-verification(s) without appreciating the merits. It is averred that provisions of Act, 2017 and Rule 140 of Rules, 2017 have to be interpreted in the light of Heydon's rule of statutory interpretation is further emphasized that unless prescribed seven days are allowed, to cure alleged deficiency under Rule 140 of Rules, 2017, petitions cannot .be summarily rejected. Adds that allowance of additional seven days, would not offend limitation prescrib ed under section 142 of Act, 2017 -- provided election petition is initially filed within 45 days of the date of declaration of the returned candidate. Learned counsels referred and attempted to distinguish following decisions, reported as "MUHAMMAD AHMED CHA TTHA v. Ch. AADIL BAKSH CHA THA and others" (2019 CLC 1110), "USAMA AHMAD MELA v. MOHSIN NAWAZ RANJHA and others" (2019 MLD 294) and "MUSHT AQ AHMED v. Sardar AFTAB AKBAR KHAN and others" (2019 MLD 1313 ), "Abdul Wahab Baloch Vs. Imrart Ahmad Khan Niazi and others" (PLD 2019 Lahore 119) and "Malik Muhammad Nawaz Vs. Khayal Ahmad and others" (2019 CLC 960). Learned counsels punctiliously argued that judgment in the- ease of "Lt.Col (Rtd) Ghazanfar Abbas Shah Vs. Mehr Khalid Mehmood Sargana and others" (2015 SCMR 1585 ) is distinguishable and inapplicable in the wake of sub-section (2) of section 145 of Act, 2017 and Rule 140 of Rules, 2017, alike of which were not available under previous enactment, dealing with the election disputes. Submissions on behalf of the respondents:
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4. Learned counsel for contesting respondents submits that notices were issued without any resignation on the part of the Tribunal qua the power available under sub-section (1) of section 145 of Act, 2017. Adds that absence of verification constitutes an incurable defect and petitions are liable to be dismissed summarily . It is argued that ratio of the decision in the case of Lt.Col (Rtd) Ghazanfar Abbas Shah (supra) is fully applicable notwithstanding promulgation of Act, 2017, wherein too the requirement of due and proper verification is mandatory and consequences for noncompliance are specifically provided. And it is obligatory for the Tribunal to reject election petitions, suffering from want of verification. It is argued that Rule 140 of Rules, 2017 cannot be interpreted to defeat legislative command expressed in terms of subsection (I) of section 145 of Act, 2017 and Tribunal, irrespective of issuance of notices, is competent to reject election petition in case of non-compliance of any requirements of any provision of sections 142, 143 and 144 of Act, 2017. Learned counsels drew support from the ratio of the decisions in cases of "Abdul Wahab Baloch Vs. Imran Ahmad Khan Niazi and others" (PLD 2019 Lahore 119), "Malik Muhammad Nawaz Vs. Khayal Ahmad and others" (2019 CLC 960), "MUHAMMAD AHMED CHA TTHA v. Ch, AADIL BAKSH CHA THA and others" (2019 CLC 1110), "USAM4 AHMED MELA v. MOHSIN NAWAZ RANJHA and others" (2019 MLD 294) and "MUSHT AQ AHMED v. Sardar AFTAB AKBAR KHAN and others" (2019 MLD 1313 ), "Sultan Mahmood Hinjra Vs. Malik Ghulam Mustafa Khar and others" (2016 SCMR. 1312 ), "Zia Ur Rehman Vs. Syed Ahmed Hussain and others" (2014 SCMR 1015 ), "Ch. Muhammad Ayaz Vs, Asif Mehmood and others" (2016 SCMR 849), "Mir Mujib-ur-Rehman Muhammad Hassani Vs. Returning Of ficer, PB-41 W ashuk and others" (PLD 2020 Supreme Court 718). Submissions by the Office of Advocate General Punjab in terms of section 152 of Act, 2017 and Election Commission of Pakistan. 5. Learned Law Officers submit that powers conferred in terms of sub-section (I) of section 145 of Act, 2017 are neither controlled by nor can be subjected to sub-section (2) of section 145 of Act, 2017 or Rule 140 of the Rules, 2017. Adds, that, in wake of the jurisprudence evolved over the years, election petitions suffering from want of verification are liable to be rejected summarily . Learned counsel representing Election Commission of Pakistan submits that no change was brought qua requirement of verification of election petitions under incumbent enactment, and election petition can be rejected for non-compliance of sub-section (4) of section 144 of Act, 2017. Opinion of the Court. 6. It is essential to contextualize the controversy at hand; in the context whereof questions of law were framed. Petitioners, in essence, questioned the act of exercise of powers by the Tribunal, under sub-section (1) of section 145 of the Act, 2017, after issuance of the notices in terms of sub-section (2) of section 145 of the Act, 2017, and that too without allowing opportunity to cure identified deficiencies by invoking Rule 140' of the Rules, 2017. In this backdrop, above-noted questions of law were framed. To dismiss any confusion, it is imperative to define the scope and extent of instant decision, which is confined to the consideration of effect and consequence of alleged non- compliance of sub-section (4) of section 144 of Act, 2017 -- requiring verification of the election petitions. And other requirements regarding any provision of sections 142, 143 and 144 of the Act, 2017 -- except sub-section (4) of section 144 - is not subjects of adjudication. 7. Right to elect, to contest election(s) and to be elected, as representative of the constituents, are all well acknowledged and recognized statutory rights. Ubi jus, ibi remedium' -- where there is a right, there is a remedy . Right to dispute 1 question the elections is a right-cum-remedy , available when any enforceable statutory right is invaded or breached. The entire process of elections including remedy to challenge election result is governed and regulated by the Election Act, 2017 -- incumbent enactment. Common law has no application qua election disputes and determination thereof. It is observed in the case of "K.Kamaraja Nadar Vs. Kunju Thevar and others" (AIR 1958 SC 687) at page 693 "that an election contest is not an action at law or a suit in equity but is a purely statutory proceedings unknown to comfy on law and that the court possesses no common law power ." It is apt to refer to pertinent observations in the case of Satya Narain V. Dhuja Ram and Ors AIR 1974 Supreme Court 1185 that, "It is well settled that it is a special right conferred under a self-contained special law and the court will have to seek answer to the questions raised within the four corners of the Act and tie powers of the court are circumscribed by its provisions. It is not a common law right and an election petition cannot be equated with, a plaint in a civil suit". The
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nature of the rights and remedies, relating to the election matters and disputes, in respect thereof, are elucidated in the case of "Jyoti Basu & others Vs. Debi. Ghosal & others" (1982 AIR SC 983) appropriate portion whereof is reproduced hereunder; 'A right to elect, fundamental though it is to democracy , is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple , a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An Election petition' is not an action at Common. Law, nor in equity . It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special Jurisdiction has always to be exercised in accordance with the statutory creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act." [Emphasis supplied] 8. Remedy to question election has it origin in the Article 225 of Constitution of Islamic Republic of Pakistan, 1973, directing that 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] -- Elections, Act 2017 is the manifestation of Act of the Parliament. Petitioners opted for the statutory remedy of challenging elections with respect to the constituencies involved, whereupon notices were issued. Maintainability of election petition was questioned for want of verification(s) of petitions, determination of said questions involve adjudication of appurtenant legal issues earlier identified. 9. Fundamentally , construction and applicability of section 14.5 of Act, 2017 and Rule 140 of Rules 2017 is at the heart of the controversy . Petitioners seek s purposive interpretation thereof -- claiming that apparent mischief of summary dismissal of election petitions for want of verification of petitions was intended to be curbed. Another pressing question is that whether requirement of verification under incumbent enactment -- Elections Act 2017'- is mandatory or directory? 10. The condition of requirement of verification of election petitions, in the manner laid down in the Code of Civil Procedure, 1908 (`Code') for the verificati on of pleadings, is contained in subsection. (4) of section 144 of Act, 2017 -- which provision of law is similar to the erstwhile section 55(3) of Representation of Peoples Act, 1976 (`ROP A') *except a slight change that now annexures need not be verified but only the petition]. Sub section (1) of section 145 of Act. 2017 provides consequences, for non-fulfilment of condition of due verification of the election petition(s) -- which by and large is identical to clause (a) of section 63 of ROP A in terms whereof, Tribunal was empowered to dismiss the election petition, if provisions of section 54 and 55 of ROP A were not duly complied. There is notable variation in the procedure regarding presentation of the election petition(s), under ROP A and Act of 2017, which may not be relevant for the purposes of determining subject matter controversy . 11. Literal reading of sub-section (1) of section 145 of Act, 2017 suggests that legacy of section 55(3.) of aOPA continued unabated; requirement of verification of election petitions was mainta ined, without, compromising its sensitivity and absoluteness. In terms of sub-section (1) of section 145 of Act, 2017, power of the Tribunal to summarily reject election petition for non-compliance of any provision of sections 142,. 143 and 144 is prescribed. It is notable that each provision of sections. 142, 143 and 144 of Act 2017, inter alia, provides for various requirements, each of which requirement calls for independent determination qua compliance or otherwise. And only the effect of non-verification of election petitions is subject of instant determination. Now coming to the
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question that whether the purpose of sub-section (2) of section 145 of Act, 2017 , read with Rule 140 of Rules, 2017, is to suppress alleged mischief of summary dismissals of election petition(s) for want of due and proper verification. Mischief Rule of statutory interpretation had its genesis in the `Heydon's case', and opinion expressed by Lord Coke was reproduced at, page 33.4 of N.S Bindrai's Interpretation of statutes 12th Edition, in following terms:- "It was resolved by them that for the sure and true interpretation of statutes in general be they penal or beneficial, restrictive or enlarging of the common law.., the obligation of all the judges is always to make such construction as shall suppress the mischief and advance the remedy , and to suppress subtle inventions and evasions for continuance of the mischief and pro privato commodo, and to add force and life to the cure and remedy , according to the true intent of the makers of the Act, pro bono public. This rule is popularly known as the 'mischief rule'. In a broader sense, this may be, understood as the purposive construction of statutes." [Emphasis supplied] 12. In N.S Bindra's 'Interpretation of Statutes' 12th Edition -- page 335, following essential conditions were explained for invoking Mischief Rule of statutory interpretation; For an application of the mischief rule firstly' `it must be possible to determine from a consideration of the provisions of the Act read as a whole what the mischief was that was the purpose of the Act to remedy; secondly , it must be apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purposes of the Act was to be achieved; and thirdly , it must be possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attenti on been drawn to the omission before the Bill passed into law. Unless these three conditions are fulfilled any attempt by a court of justice to repair the omission in the Act and to determine what is the meaning of a writte n, law, which Parliament has passed cannot be justified as an exercise of its jurisdiction. Such an attempt crosses the boundary between interpretation and legislation. It becomes a usurpation of the function, which under the constitution of this country is vested in the legislature to the exclusion of the courts. [Emphasis supplied] 13. Limitations, defining sphere of Mischief Rule, are discussed in the case of "Sri Ram Saha Vs. State of W.B. and others" (2004) 11 SCC 497 - reproduced in N.S Bindra's 'Interpretation of Statutes' 12th Edition at page 335 -- which reads as; ".......It observed that the courts could not re-write a statue in the guise of purposive interpretation. A purposive interpretation may permit a reading of the provision consistent which the purpose and object of the Act but the courts cannot legislate and enact the provision either creating or taking away substantial rights by stretching or straining a piece of legislation." [Emphasis supplied] 14. When, section 145 of Act, 2017 and Rule 140 of the Rules, 2017, are examine d in the context of prerequisites of cannons of purposive statutory const ruction, it is not difficult to hold that requirement of verification of the election petitions is conspicuously retained while legislating new law. Submissions by the counsels for petitioners regarding application of Mischief Rule are misconceived. The legislative intent, regarding requirement of verifications of petitions and effect of non-compliance, is unequivocally evident, which clear , unambiguous and emphatic intent cannot be compromised in the garb of proposed purposive construction. 15. The question is whether , under prevalent election law regime, the requirement of verification of election petition is mandatory or directory? The distinction qua a mandatory and directory provision of law was aptly explained in Bennion on Statutory Interpretation, Oliver Jones Sixth Edition, at page 27 -- while reproducing portion from William Blackstone Commentaries on the Laws of England, - which reads as; ".... it is but lost labour to say, "do this, or avoid that," unless we also declare, "this shall be the consequence of your non-compliance." It was further elaborated by quoting a portion from the judgment in the case of Howard Vs. Bodington (1877) 2 PD 203 at 21 1), authored by Lord Penzance in following terms;
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"I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look- to the subject matter , consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a. review of the case in that aspect decide whether the enactment is what is called imperative or only directory . I have been very carefully through all the principal cases, but upon reading 'them all the conclusion at which I am constrained to arrive is this, that you cannot glean a great deal that is very decisive from a perusal of these cases. They are on 011 sorts of subjects. It is very difficult to group them together . and the tendency of my mind, after reading them, is to come to the conclusion which was expressed by Lord Compbell in the case of Liverpool Borough Bank v T urner ." 16. The requirement of verification of election petitions, and strict conformity thereto, is not alien to the election `laws - ROP A and now Act, 2017. Supe rior Courts of Pakistan have repeatedly upheld and affirmed the critical importance of requirement of verification of election petition(s) and indispensability thereto, declaring such requirement as mandatory . Reference is aptly made to the ratio laid in the case of Lt.Col (Rtd) Ghazanfar Abbas Shah (supra), wherein it was held that 'it is conclusively settled by this court that verification of an election petition is mandatory and a petition which lacks prdper verification shall be summarily dismissed by the Tribunal, even if the respondent has not asked for or prayed for its dismissal'. In the case of Lt.Col (Rtd) Ghazanfar Abbas Shah (supra) reference was made to celebrate d decisions in the cases of "Zia Ur Rehman Vs. Syed Ahmed Huss ain and others" (2014 SCMR 1015 ) and Engr . Iqbal Zafar Jhagra and others Vs. Khalilur Rehman and 4 others" (2000 SCMR 250 ). 17. In view of the aforesaid, there is no gain-saying that requirement of verification of election petition is mandatory , and not directory . Whether this mandator y requirement can be compromised / diluted by interpreting sub-section (2) of section 145 of Act, 2017 in a manner suggested by the petitioners -- who averred that since election petition was not rejected under sub-section (1) by the Election Tribunal before issuing notices to each of the respondents, under sub-section (2) of section 145 of Act, 2017, hence, same cannot be rejected now, irrespective of defect of non-verification of petitions. This argument is bordering an obvious absurdity . The mandatory requirement of verification of election petitions cannot, otherwise, be compromised merely upon issuing notices under subsection (2) of section 145 of Act, 2017. Sub-section (2) of section 145 cannot be interpreted, in the guise of purposive interpretation, to render sub-section (1) of section 145 ineffective / redundant or otherwise restrict / limit its applicability only before the stage of issuance of notices. Merely upon issuance of notices it cannot be held that Tribunal is denuded of its power under sub-section (1) of section 145 of Act, 2017. Act of issuance of notices by the Tribunal would not be construed as prejudicial to the rights, otherwise extende d to the succeeded candidate, necessarily requiring verification of the petition containing allegations of corrupt and illegal practices. Such rights of the respondents, to question maintainability of election petitions suffering from want of…
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