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Petitioner: Dr. SHEELA B. CHARLES VS Respondent: QAISAR IFRAEEM SORAYA and another
Court Name: Supreme Court of Pakistan Judge(s): Saeeduzzaman Siddiqui, Mukhtar Ahmed Junejo, Muhammad Munir Khan Title: Dr. SHEELA B. CHARLES vs QAISAR IFRAEEM SORAYA and another Case No.:Civil Appeals Nos.60 and 216 of 1995Petitions Nos.86 and 85 of 1993C.A.
JUDGMENT
Reported As: 1996 SCMR 1455 Result: Case remanded. Judgment JUDGMENT SAIDUZZAMAN SIDDIQUI, J.---The abovementioned two appeals under section 67(3) of the Representation of the People Act, 1976 (hereinafter to be referred as the Act.Only), are filed by Dr. Sheela B. Charles and Ch. Fateh Jang against the decision of the Election Tribunal Punjab (hereinafter to the called 'the Tribunal'), dated 16-2-1995. By the impugned decision, the learned Tribunal allowed the Election Petition No,86 of 1993 filed by Qaisar Ifraeem Soraya (respondent No,1 in Civil Appeal No,60 of 1995) and declared him elected in place of appellant Dr. Sheela B. Charles. By the same judgment, the learned Tribunal dismissed the other Election Petition No,85 of 1993 filed by appellant Ch. Fateh Jang to call in question the election of Dr. Sheela B. Charles. For the sake of convenience and to avoid confusion, I will hereinafter refer the two appellants in the above appeals and the respondent Qaisar Ifraeem Saroya, by their respective names. Sheela B. Charles, Ch. Fateh Jang and Qaisar Ifraeem Soraya alongwith 56 others contested for five reserved seats of Christians in the Provincial Assembly of Punjab, in the general election of 1993. According to the result declared by the Election Commission of Pakistan, published in the official Gazette dated 18-10-1993, the folk wing five candidates who obtained the highest number of votes were declared elected against the said five reserved seats of Christians in the Provincial Assembly of Punjab:-- "Sr. No,Names Votes obtained. 1. Mr. Mil Sharif Gill 24,249 2. Mr. Johnson Michael 18,896 3. Mr. Peter Gill 13,363
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4. Begum Raj Hameed Gill13,131 5. Dr. Sheela B. Charles 9,673." The election of Dr. Sheela B. Charles as the 5th successful candidate against the reserved seat of Christians in the Punjab Provincial Assembly was challenged in two election petitions filed by Ch. Fateh Jang and Qaiser Ifraeem Soraya respectively. From the contents of both the election petitions, it is quite clear that neither any corrupt nor illegal practice was alleged in the election process against Dr. Sheela B. Charles, the successful candidate. The grievance of Ch. Fateh Jang and Qaisar Ifraeem Soraya, the two defeated candidates who filed the election petitions, was that mistake/manipulation was committed at the stage of compilation of the result by the Returning Officer (R.O.) in Form XVI-B. Both Ch. Fateh Jang and Qaiser Ifraeem Soraya, claimed that according to the count of votes recorded in Form XVI-A, by the Assistant Returning Officer (A.R.O.), they secured more votes than Dr. Sheela B. Charles. Accordingly, both Ch. Fateh Jang and Qaiser Ifraeem Soraya claimed that they are entitled to be declared elected in place of Dr. Sheela B. Charles. Ch. Fateh Jang's grievances related to incorrect compilation of result in Form XVI-B in respect of 17 constituencies, while Qaisar Ifraeem Soraya claimed that in respect of 35 constituencies the result of count was incorrectly recorded in Form XVI-B by the R.O. While transferring the same from Form XVI-A prepared by the A.R.O. Both the election petitions were tried together. The learned Tribunal framed no issues in the two petitions, apparently for the reason that there were no allegations of any corrupt or illegal practices against the successful candidate. Since the allegations in the two petitions were confined to the error in compilation of the result in Form XVI-B, the learned Tribunal directed the Provincial Election Commission, hereinafter to be referred as 'the Commissiononly, for recount of votes in respect of 35 constituencies in the election petition filed by Qaiser Ifraeem Soraya and 17 constituencies in respect of election petition filed by Ch. Fateh Jang. The Commission in its final report submitted to the Tribunal after recount of the votes in 35 and 17 constituencies respectively, stated the position of 3 contestants, namely, Dr. Sheela B. Charles, Ch. Fateh Jang and Qaisar Ifraeem Soraya as follows:-- "Name of Candidate Votes received from original Form XVI-B Number of votes determined after recounting Dr. Sheela B. Charles 9673 9390 Ch. Fateh Jang 9454 9878 Qaisar Ifraeem Soraya 9083 9984 The Tribunal on the basis of above recount of votes declared Qaisar Ifraeem Soraya elected in place of Dr. Sheela B. Charles whose election was declared as void, and dismissed the petition of Ch. Fateh Jang by the impugned decision, giving rise to the present appeals. Both the learned counsel for Ch. FLeh Jang and Dr. Sheela B. Charles in support of the appeals contended that the commission did not allow any opportunity to the parties to lead evidence before deciding the question whether the votes received by them or Qaisar Ifraeem Soraya were the highest. It is also contended by the learned counsel for Dr. Sheela B. Charles that the report of recount of votes submitted by the Commission could not be relied upon by the learned Tribunal as both, Dr. Sheela B. Charles as well as Ch. Fateh Jang had objected to the correctness of this report. The learned counsel for Qaiser Ifraeem Soraya on the other hand supported the decision of the Tribunal and contended that no objection was raised by any of the parties at the time of recounting of votes. In respect of 35 constituencies by the Commission. It is, accordingly, contended by the learned counsel for Qaisar Ifraeem Soraya that as no objection to the recounting of votes was raised by any of the parties before the Commission, it was not at all necessary for the Tribunal to have allowed any opportunity to the parties to lead evidence on the question of number of votes received by Dr. Sheela B. Charles, Ch. Fateh Jang and Qaisar Ifraeem Soraya. In addition to
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the above objections, the learned counsel for Dr. Sheela B. Charles has raised two further objections to the validity of the decision of the Tribunal. The learned counsel for Dr. Sheela B. Charles firstly, contended that the election petition filed by Qaisar Ifraeem Soraya was liable to be dismissed summarily as a copy of that petition was never supplied to his client either by the Commission or by the learned Tribunal. The second contention of Dr. A. Basit is that as there was no allegation of corrupt or illegal practice on the part of Dr. Sheela be Charles, the learned Tribunal was not competent to order recounting of the votes in 35 constituencies and declare her election as void. According to learned counsel for Dr. Sheela B. Charles recounting of votes in any constituency could only be ordered if there were allegations of corrupt and illegal practice against the successful candidate during the course of the election process. We would first of all like to deal with the two preliminary objections raised by Dr. A. Basit, the learned counsel for Dr. Sheela B. Charles. The first preliminary objection regarding maintainability of the election petition filed by Qaisar Ifraeem Soraya against Dr. Sheela B. Charles is based on the notification dated 17-3-1985 issued under subsection (1) of section 62 of the Act (hereinafter to be referred to as the notificationonly) whereby the following procedure was . Notified by the Election Commission of Pakistan for filing and conduct of the election petition:-- "No, F.1(7)/85-Cord.--In pursuance of the powers conferred by subsection (1) of section 62 of the Representation of the People Act, 1976, the Election Commission is pleased to lay down the following procedure for trial of election petitions:-- (1) Every election petition shall be filed with the Secretary, Election Commission of Pakistan, Secretariat Block S', Islamabad, in triplicate and shall be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner along with the receipt indicating that the copies of petition and the attached documents and the affidavits annexed to the petition have been supplied to the respondent. (2) Every election petition shall be processed by the Secretary, Election Commission. In case the petition is not in accordance with the procedure laid down herein it shall not be entertained and the petitioner shall be informed accordingly. If the petition is found to be in order, the Secretary shall fix the date of hearing. Notice of the date published through the press, radio and television shall be deemed to be a valid notice and no personal notice shall be necessary unless the tribunal feels necessary to do so. (3) The respondent shall upon the receipt of the petition from the petitionerwithin seven days file his written statement together with all documents relied upon by him and the affidavits of the witnesses as are desired to be produced in defense. (4) The petitioner shall make available for cross-examination all witnesses whose affidavits are filed with the petition for cross-examination on the first date of hearing before the Tribunal. (5) Where any party desires to summon any official witness he shall file with the petition a list of such witnesses justifying his production and also mention the documents, if any, which are required to be proved through such witness. (6) No witness whose name is not mentioned in the petition shall be summoned or examined unless required by the Tribunal. (7) Where the election petition claims as relief a declaration that the-election of the returned candidate is void on the ground that the returned candidate was not, on the nomination day, qualified for, or was disqualified from being elected as a member, the Tribunal may decide the question of such qualification or disqualification as a qualification as a preliminary issue. The Tribunal may make a memorandum of the evidence of each witness as his examination proceeds unless it considers that there is special reason for taking down the evidence of any witness in full.
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The Tribunal may refuse to examine a witness if it considers that his evidence is not material or that he has been called on a frivolous or vexatious grounds for the purpose of delaying the proceedings or defeating the ends of justice. (10) The Tribunal may, pending the final disposal of the petition, grant such interim relief as it may deem fit." The contention of the learned counsel for Dr. Sheela B. Charles is, that she did not receive any notice or copy of the election petition filed by Qaisar Ifraeem Soraya before the Tribunal. The learned Tribunal on the contrary found that the election petition filed by Qaisar Ifraeem Soraya was duly processed by the Commission and no objection to its maintainability was raised before the Commission on the ground of non-supply of the copy of the election petition which could be decided by the Commission: The learned Tribunal also cameto the conclusion that the Commission before forwarding the petition of Qaisar Ifraeem Soraya to the Tribunal for trial, has processed the same and found it in order and at the time this petition was received by the Tribunal it was accompanied by all the necessary documents required to be filed with it and as such it could not be dismissed on account of non-supply of the copy of petition. It is not disputed before us that the election petition was filed by Qaisar Ifraeem Soraya before the Secretary of the Election Commission of Pakistan. It is also quite clear from the record before us that the election petition of Qaisar Ifraeem Soraya was accompanied by all the requisite documents mentioned in paragraph 1 of the notification. The Commission forwarded this petition after it was duly processed in accordance with the procedure laid down in the notification. The contention of the learned counsel for Dr. Sheela B. Charles, however, is that his client did not receive any notice of the petition or copy of the petition. From the record before us it is quite clear that Dr. Sheela B. Charles made no appearance before the Commission and no such objection was raised before the Secretary, Election Commission who was authorized under the rules to receive and process the petition. The diary sheet of the election petition produced by the counsel for Dr. Sheela B. Charles before us indicates that the petition first came up for hearing before the Tribunal on 20-12-1993 when notices were ordered to be issued to all respondents for 9-1-1994. On 9-1-1994 counsel for respondents Nos.1, 2, 8 and 43 were present while some of the respondents were present in person. However, .Dr. Sheela B. Charles who was respondent No,7 in the petition .Did not appear on that date. The learned Tribunal accordingly, passed an order that, as it was not possible to serve the respondents in the petition in ordinary manner, notice of pendency of the petition be given to the other respondents through publication in daily Nawa-iWaqat. The notices to remaining respondents were also directed to be sent for 16-2- 1994 through posts. On 16-2-1994 when the petition came up for hearing a written request was made on behalf of Dr. Sheela B. Charles for adjournment of the case as she had gone alongwith Delegation of Punjab Assembly. This request of Dr. Sheela . Charles was allowed and case was adjourned to 7-3-1994. On this date Dr. A. Pasit appeared for Dr. Sheela B. Charles before the Tribunal and stated that she was not supplied the copy of the petition. He also filed an application objecting to the maintainability of election petition on account of non-supply of a copy of the petition. The case was adjourned to 27-3-1994 for arguments. The election petition came up for hearing on a number of dates thereafter, but no attempt was made on behalf of Dr. Sheela B. Charles to file written statement in reply to the petition of Qaisar Ifraeem Soraya. The above preliminary objection regarding maintainability of the petition was heard and decided by the learned Tribunal by its order dated 2-2-1995. In the said order, the learned Tribunal made positive observations that Dr. Sheela B. Charles was served in the case on 16-2-1994 but she failed to file written statement within 7 days from the date of service of notice. It was also observed by the learned Tribunal that this was besides the fact that she required no permission of the Court under the Representation of the People (Conduct of Election) Rules, 1977 (hereinafter to be called 'the
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Rulesonly), or Rules of Procedure, to file a written statement if she so desired. The learned Tribunal after considering the preliminary objections filed on behalf of Dr. Sheela B. Charles came to the conclusion that she was duly served with the notice of petition and if she desired she could file the written statement. We also have on our record C.M. No,3 of 1994 dated 20-11-1994 filed by Dr. Sheela B. Charles in which she prayed to the Tribunal that if her preliminary objection noted by the Tribunal on 7-3-1994 is not sustainable, her present application be treated as an application to file written statement before taking any further substantive stop in the case. This application of Dr. Sheela B. Charles along with preliminary objection was disposed by the Tribunal by order dated 2-2-1995, but in spite of that no attempt was made by Dr. Sheela B. Charles to file her written statement in the case. We therefore, find no substance in the submission of the learned counsel for Dr. n Sheela B. Charles, that she was deprived of any opportunity of filing the written statement in the case. The next preliminary objection of the learned counsel for Dr. Sheela B. Charles in the case is, that the Tribunal was not competent to make an order for recounting of the votes in respect of 35 constituencies as there were no allegations of corrupt or illegal practices against his client Dr. Sheela B. Charles. According to learned counsel unless there were allegations of corrupt and illegal practices by the returned candidate during the course of election process, an election petition against such candidate would not be maintainable. A similar contention was raised by the learned counsel for Dr. Sheela B. Charles before the learned Tribunal but it was repelled. In support of his above contention the learned counsel for Dr. Sheela B. Charles relied on section 55 of the Act and contended that according to this section full particulars of corrupt or illegal practice or any other illegality committed during the course of election have to be stated in detail. According to the learned counsel the tenure of section 55 of the Act supported his argument that unless the candidate is guilty of corrupt or illegal practice during the election process, his election cannot be declared void. The contention of the learned counsel does not appear to be correct. Section 55 of the Act only provided as to what is to be mentioned in election petition filed before the Tribunal. No doubt the petitioner who challenges the election of a returned candidate is required under this section to state full particulars of corrupt and illegal practices or any other illegality committed .By the returned candidate during the process of election but this does not necessarily mean that if these allegations were not there, the petition would not be maintainable. The grounds for declaring election of a returning candidate as void are contained in section 68 of the Act. Under section 68 of the Act, the election of a returned candidate can be declared void by the Tribunal if it is C found that the nomination of the returned candidate was invalid or that the returned candidate was not, on the nomination day, qualified for, or was disqualified from being elected as a member, or the election of the returned candidate has been procured or induced by any corrupt or illegal practice or any such corrupt or illegal practice was committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent. Subsection (2) of section 68 of the Act further provides the election of a returned candidate shall not be declared void on the ground of illegal or corrupt practice during the course of election process if the Tribunal is satisfied that such illegal or corrupt practice was not committed by or with the consent or connivance of that candidate or his election agent and that the election agent took all reasonable precaution to prevent the commission of such illegal or corrupt practice. The election of a contesting candidate also cannot be declared as void on the ground that on the nomination day any other contesting candidate was not qualified or was disqualified from being elected as 'a member. Section 69 of the Act which is an independent section provides that the Tribunal is empowered to declare the election of a returned candidate to be void and declare the petitioner or any other contesting candidate as having been duly elected, if it is so claimed by the petitioner or any of the respondents in the petition, and the Tribunal is satisfied that the petitioner or such other candidate was entitled to be declared elected It is, therefore, quite clear that under
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this provision of law the Tribunal is not only competent to declare the petitioner as elected in place of the returned candidate but this relief can also be granted to any other respondent in the petition provided the following two conditions mentioned in section 69 of the Act are satisfied. Firstly, that the petitioner or any of the respondents in the petition has claimed that he is entitled to be declared elected in place of the returned candidate; and secondly, that the Tribunal after trial of the petition is satisfied that the petitioner or such other respondent who has made the claim in a petition, was entitled to be declared elected. The grant of relief to the petitioner or any, other respondent in the petition under section 69 of the Act is not dependent on proof of any corrupt or illegal practice on the part of returned candidate during process of the election but on the strength of their own entitlement to get elected in place of the returned candidate. We are, therefore, of the view that upon examination of the contentions of Ch. Fateh Jang and Qaisar Ifraeem Soraya who had challenged the election of Dr. Sheela B. Charles in their election petitions, if the Tribunal`,. Was satisfied that any one of them was entitled to be declared elected having secured more votes than the returned candidate (Dr. Sheela B. Charles in this case), the Tribunal could declare him elected in place of the returned candidate under section 69 of the Act. We may also mention here that apart from section 69 ibid, the Tribunal under section 70 of the Act is also authorized to declare the election as a whole to be void if it is satisfied that the result of the election has been affected by reasons of the failure of any person to comply with the provisions of the Act or Rules or on account of prevalence of extensive corrupt or illegal practice at the election. We are, therefore, unable to accept the contention of the learned counsel for Dr. Sheela B. Charles that unless the petitioners before the Tribunal were able to allege and prove illegal or corrupt practice on the part of Dr. Sheela B. Charles, her election result could not be declared as void. In the case before us both Ch. Fateh Jang and Qaisar Ifraeem Soraya specifically alleged in their respective election petitions before the Tribunal that according to count of votes compiled by A.R.O. In Form XVI-A they secured more votes than the returned candidate Dr. Sheela B. Charles. If these allegations were correct, then under section 69 of the Act, any one of the petitioners who secured more votes than Dr. Sheela B. Charles could be declared as elected by the Tribunal. We are also of the view that since this was the only allegation in the petition, the omission on the part of the Tribunal to frame a specific issue has not caused any prejudice to the returned candidate,.Dr. Sheela B. Charles. In the election petition filed by Ch. Fateh Jang and Qaisar Ifraeem Soraya, there are specific allegations and instances which supported their contention that the R.O. While compiling the result in Form XVI-B did not compile it in accordance with the votes mentioned in Form XVI-A by A.R.O. At this stage, it would be appropriate here to refer briefly to the procedure for conduct of the election in the case of reserved seats for minorities. The procedure is contained in Chapter 4. Of the Rules. Rules 84 to 94 of the Rules govern the procedure for election of the candidates contesting for the minorities seats reserved in the Provincial Assembly. Rule 84 provides that the provisions contained in Chapters 1 and 2 of the Rules except rules 3, 11 and 26 to 28 are also applicable to the election of non-Muslim seats in the Assembly. Rule 24 of the Rules which is applicable both to the election of Muslim as well as non-Muslim seats provides that the statement of count under subsection (9) of section 38 of the Act shall be prepared by the Presiding Officer (P.O.) in Form XIV. Rule 90 which applies exclusively to the election of non-Muslim seats provides that the A.R.O. For the constituency of non-Muslim seat in the Assembly shall consolidate the statement of count received from the P.O. In Form XIV, in Form XVI-A separately for National Assembly constituencies or Provincial Assembly constituencies in the same manner as is provided for the consolidation of said result by the R.O. In cases of Muslim seats in accordance with section 39 of the Act and Rule 26 of the Rules. The result complied by A.R.O. In Form XVI-A under Rule 90(1) of the Rules is to be forwarded to the R.O., who then consolidates the result in Form XVI-B as provided in rule 92 of the Rules. However, before
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compiling the result in Form XVI-B, the R.O. Is required to give the contesting candidates and their election agents a notice in writing of the date, time and place fixed for final consolidation of result. The postal ballots in the case are to be dealt with directly by the R.O. It is, therefore, quite clear that the result of count prepared by the P.O. In respect of each constituency in Form XIV is to be forwarded to the A.R.O. Of the area. The A.R.O. Of the area concerned prepares the result of count in Form. XVI-A on the basis of Form XIV sent to him by the .P.O. Of each constituency. After consolidating the result in Form XVI-A, the A.R.O. Forwards the result of count to the R .0. Who consolidates the final result. In Form XVI-B. It, therefore, follows that consolidation of the final result in Form XVI-B by the R.O. Is on the basis of Form XVI-A received from A.R.O. Which in turn is based on the counts of votes recorded in Form XIV prepared by…
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