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Petitioner: Malik UMAR ASLAM VS Respondent: Mrs. SUMAIRA MALIK and others
Court Name: Supreme Court of Pakistan Judge(s): Jawwad S. Khawaja, Iftikhar Muhammad Chaudhry, Gulzar Ahmed Title: Malik UMAR ASLAM vs Mrs. SUMAIRA MALIK and others Case No.: Civil Appeal No,669-L of 2013 Date of Judgment:2013-10-28 Reported As: 2014 SCMR 45 Result: Appeal allowed
JUDGMENT
JUDGMENT ' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---Instant direct appeal has been filed under section 67(3) of the Representation of the People Act, 1976 (ROPA) against the judgment dated 5-4-2013 passed by the Election Tribunal, Lahore, whereby Election Petition No,104 of 2008 filed by the present appellant was dismissed. 2. Precisely stating facts of the case are that the appellant and respondent No,1 along with other candidates contested the election of National Assembly from NA-69 (Khushab-I) in the General Elections held on 18-2-2008 in which respondent No,1 was declared returned candidate with 61076 whereas the appellant was the runner-up having secured 60413 votes. The appellant challenged the said election through Election Petition No,104 of 2008 under section 52 of ROPA on the ground that various provisions of law, particularly section 39 of ROPA, were violated and that the BA degree of respondent No,1 was bogus. It was alleged in the election petition that respondent No,1 colluded with government and election officials for the perpetration of countless election offences and grave violations of law, which materially and substantially affected the entire election process. Such malpractice adopted by respondent No,1 rendered the entire election process void for not being just, free and fair. It was further alleged that on the polling day bogus votes were cast in a majority of polling stations. Moreover, it was asserted that the concerned Returning Officer (RO), without giving notice to contesting candidates or their polling agents, in collusion with respondent No,1 manipulated the entire record. Allegedly, the RO broke open the packets sent by the Presiding Officers and replaced/ destroyed/changed the ballot papers, resultantly, the rejected votes increased from 220 to 1061. Finally, it was alleged that the BA degree of respondent No,1 was bogus as she completed her Intermediate in 1981 but did not obtain a BA degree until 2002, when she
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obtained forged and fabricated BA degree from the University of the Punjab. He made following prayer in petition:-- "In view of the aforementioned facts and submissions, it is most respectfully prayed that the election of the respondent No,1 is void and the petitioner be declared as the successfully returned Candidates from NA-69, Khushab-I, in the national election conducted on 18-2-2008." 3. Respondent No,1 was the only respondent who contested the election petition. Respondent No,1 in her reply raised various legal and factual defences to controvert all the allegations ',welled against her. Learned Election Tribunal on 11-5-2010 formulated the following points:-- (i) Whether in the facts and circumstances given in the election petition, the election of NA-69 is void? (ii) Whether the election petition is not maintainable and has been instituted in violation of the provisions of the Representation of the Peoples, Act, 1976? 4. In the meantime, on 17-9-2008, respondent No,1 filed C.M.A. No,2 of 2008 under section 63 of ROPA read with section 151, C.P.C. Before the Election Tribunal praying therein that the petition may be dismissed as the provisions of section 55 of ROPA had not been complied with while instituting the same, inasmuch as the annexures appended with the petition had not been verified and attested in the manner provided in the Code of Civil Procedure, 1908. The Election Tribunal vide order dated 24-4-2009 dismissed the said C.M.A. And C.P.L.A. No,1322 of 2009 filed against the said order was also dismissed as withdrawn by this Court vide order dated 24-3-2010. 5. The appellant produced evidence which was also rebutted by respondent No, 1. The Tribunal after examining the evidence produced before it, dismissed the election petition vide impugned judgment which the appellant has challenged before this Court through the instant appeal. 6.. Mr. Hamid Khan, learned counsel for the appellant, placed on record following formulations:-- "(1) That from the evidence on record, it is obvious that the degree of B.A. Has not been obtained by the respondent No,1 in the ordinary course. ' She passed her F.A. In 1981 and did not attempt B.A. Examination until 2002. ' B.A. In April 2002 was obviously attempted in desperation to qualify for contesting elections for MNA in the forthcoming general elections of 2002. In such circumstance, particularly, when she was not in touch with the formal education for 20 years, it is plausible that another lady was hired to appear in the examination for her. (2) That impersonation of respondent No,1 by another lady is established from the following evidence: Respondent No,1 does not remember the subjects in which she appeared in the first instance and then corrects herself. She does not remember that there was any compulsory paper other than English; She does not remember the location of examination centers in Mustafaabad and Lahore Cantt. And as to how many papers were taken at what examination centre; She does not remember prescribed syllabus of the English papers and as to what she studied for the examination. She does not remember how many questions were to be attempted or whether those questions referred to poetry, drama, prose etc.; ' She could not recall whether Pak Studies was a compulsory subject and how many parts were there in such paper. ' She could not recall the syllabus of history paper and what she studied for that paper; II. It is obvious from the photographs of the lady on the admission form and Roll No, slip that person in these photographs is different from respondent No,1 as appears from her photograph on ID Card application for obtaining ID Card, computerized ID Card (CNIC), election poster and news papers clipping:
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' The photograph on Admission form and Roll No, Slip is of a lady in her early twenties whereas the respondent No,1 in 2002 is admittedly in her late thirties (38 to 39 years of age); The features of the two faces are different. The lady on the admission form and Roll No,slip wore glasses. On no photograph of the respondent No,1 she is wearing glasses. III. The signatures on the Admission Form are totally different from signatures of the respondent No,1 as seen from her specimen signatures, her ID Card of 21-8-2002 her computerized ID Card. The letters and flow of the two set of signatures are different even to the naked eye. (3) The so called enquiry and its findings are evidently fake, false and manipulated in order to cover up the impersonation. There is no notice of proceedings of enquiry for 11-12-2002 as is evident from the report of 10-12- 2002; She does not seem to have appeared before any enquiry committee and the writing and signatures appears to have been procured because she does not remember the number of committee members, who was its head, what were their designations, what is the date of appearance before the committee and who dictated her writing. Her husband at the given time held a very important position being Additional Secretary (Schools) Department of Education, Government of Punjab and the University of Punjab is controlled by the Education Department of the Punjab Government (Rules of Business of the Government of Punjab Education Department, para 2). Thus her husband was in a position to have his way with university officials who were dependent on him and he could manipulate matter in the university and actually did so. The hurried manner of holding an enquiry if at all, producing reports, one on 10-12-2002, the other on 12-12-2002 obviously with an intent to cover up the impersonation would clearly establish an influential hand behind the whole scheme of cover up. Even the order of V.C. To put up documents before him was not complied with. The court can presume above course of events and human conduct in relation to the facts of present case under Article 129 of the Qanun-e-Shahadat, 1984. (4) It is established from the evidence and the record that the appellant was never associated with the so called enquiry or its proceedings. This fact is critical in views of the judgment of the Election Tribunal in which reliance is placed heavily on these so called enquiry/enquires and report/reports. Whatever enquiry was held on 11-12-2002, the appellant was not in picture because he applied for the first time on 16-1-2003 and the second time on 28-1-2002; At no place in the so called enquiry proceedings the appellant has been marked present. It is not even alleged in the statement of P.W.5 Muhammad Rauf Nawaz, Deputy Controller (Examination), who appeared for the Punjab University, that appellant participated in any such enquiry. (5) That the degree of B.A. Claimed by the respondent No,1 has been proved to have been a result of impersonation, fraud and falsehood and therefore such a person is not qualified to contest for member of Parliament not being sagacious, righteous, non-profligate, honest and ameen as ordained by Article 62(i)(f) of the Constitution of Pakistan. It has been held by this honourable Court that those making false declarations about their qualifications in the nomination papers are hit by the Article 62(i)(f) of the Constitution. Reference in this behalf is made to the following authorities: (I) Abdul Ghafoor Lehri v. Returning Officer, 2013 SCMR 1271 (II) Malik Iqbal Ahmad Langrial v. Jamshed Alam, PLD 2013 SC 179 (III) Mudassar Qayyum v. Ch. Bilal Ijaz, 2011 SCMR 80" 7. Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court appearing on behalf of respondent No,1 placed on record following formulations:--
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(1) As the honourable Supreme Court is exercising statutory jurisdiction under section 67 of the Representation of the People Act thus can pass an order which is within the powers of the Tribunal and not beyond the mandate of the Law; (2) That the appellant has come with unclean hands, and also perjured himself before the Tribunal; (3) That the honourable Supreme Court may kindly not go behind the orders passed by the competent authority in 2003, which has attained finality; (4) That the reports of the University of Punjab are past closed transactions and cannot be reopened after a lapse of 10 years. (5) That the entire exercise is with regard to the 2008 elections, whereas new elections were held in 2013 and the appellant has already filed an Election Petition on the same ground; (6) That it is a classic case of harassment, intimidation and abuse of the process of the court by appellant even though he lost three elections i,e, 2002, 2008 and 2013 to the respondent, and is harassing the respondent since then, which means that appellant desires to win the elections through court orders and not by votes. The honourable Supreme Court may never countenance such conduct." 8. It is to be noted that the appellant has been challenging the success of respondent No,1 in the General Elections from 2002 to onward. The first chapter in this series of bilateral election disputes began with respondent No, l's success in the General Elections held on 10-10-2002 from the Constituency NA-69 (Khushab-I). The appellant challenged the said election by submitting an election petition under section 52 of ROPA on 2-12-2002, which was forwarded to the Election Tribunal for adjudication. On the objection of respondent No, 1, the petition was dismissed vide judgment dated 2-10-2003 passed in Election Petition No,101 of 2002 for want of compliance with the verification requirements mandated by section 55(3) of ROPA. The appellant proceeded to file Civil Appeal No,1716 of 2003 before this Court, which was decided on 19-12-2006 and reported as Malik Umar Aslam v. Sumera Malik (PLD 2007 SC 362). It is to be noted that in the Election Petition, the appellant specifically levelled the allegation that respondent No,1 was not a graduate and had procured a fake degree from the University of the Punjab in order to overcome the bar contained in Article 8-A of the Conduct of General Elections Order, 2002 and section 99(cc) of ROPA. 9. As it has been noted hereinabove the appellant lost in the General Elections held on 18-2-2008 and respondent No,1 was declared returned. Therefore, towards the month of April, 2008, the appellant filed Election Petition No,104 of 2008, which was initially entrusted to Mr. Justice M. Bilal Khan Judge/Election Tribunal who heard the petition from 30-4-2008 to 17-11-2008 when for personal reasons he declined to hear this case and forwarded it to the Chief Election Commissioner of Pakistan for its entrustment to any other Election ' Tribunal. It seems that the election petition was entrusted to Mr. Justice Ali Akbar Qureshi, Judge/Election Tribunal, who commenced proceedings from 17-12-2008 to 17-7-2009. Thereafter, the case was heard by Mr. Justice Manzoor Malik and Mr. Justice Nasir Saeed Sheikh on different dates who on 11-6-2010 in view of the following observations forwarded the case to the Election Commission of Pakistan:- "(4) The learned counsel for the respondent No,1 has argued that he has no objection to the production of the election result sheets prepared by the Polling Officer, but seriously takes exception to the use of this method for effecting recounting of the ballot papers. (5) This objection raised by the learned counsel for the respondent No,1 that the election petitioner is creating a situation for recounting of the entire ballot papers of Constituency NA-69 is, on the face of it, premature at this stage. However, this situation can be taken care of by the present in the bags sealed by the Polling Officer of each Polling Station be first produced for comparison, if necessary, with the election result sheets prepared by the Returning Officer.
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(6) With this observation and direction, I dispose of this C.M. No,4 of 2010 and allow the record of Constituency NA-69 to be brought before the Commission with full security by the Registrar of the Election Commission. The above mentioned observation recorded by this Tribunal be kept in consideration by the Commission while recording the statement of the Returning Officer and of opening the bags of the Polling Stations of Constituency NA-69. It is however clarified that in case some serious objection is felt by the Commission that in order to verify the correctness of any of the result sheets prepared by the Polling Officer, the examination of the ballet papers or of the rejected ballet papers or of the tendered ballet papers is necessary, the Commission may for reasons recorded order that that Commission shall not allow the opening of the ballet papers generally and will only stick to the comparison of the election sheet results with the result sheets prepared by the Returning Officer. Civil Miscellaneous No,4 of 2010 stands disposed of." 10. The Election Commission again entrusted this case on 7-7-2010 to Mr. Justice Sh. Azmat Saeed, Judge/Election Tribunal (as he then was) who also declined to hear the case for personal reasons as is evident from the order dated 14-7-2010. Accordingly, the case was entrusted to Mr. Justice Sh. Najam-ul-Hassan Judge/Election Tribunal who commenced hearing from 24-8-2010 and on 7-2- 2011. He also declined to hear the case due to personal reasons, thus the case was sent to Chief Election Commissioner for its entrustment to any other Election Tribunal. Accordingly, on 15-3-2011 Mr. Justice Ejaz-ul-Ahsan Judge/ Election Tribunal commenced the hearing and finally dismissed the petition vide impugned judgment dated 4-5-2013 about five weeks before the polling of the next General Elections, 2013. 11. The purpose of noting the above facts is that under the provisions of section 67(1A) of ROPA, the decision of election petition is required to be taken within four months from its receipt, which are reproduced hereinbelow:-- 67. (1) .......... (IA) The Election Tribunal shall proceed with the trial of the election petition on day to day basis and no adjournment shall be granted to any party for more than seven days and that too on payment of costs as the Tribunal may determine and the decision thereof shall be taken within four months from its receipt: ' Provided that where a petition is not decided within four months, further adjournment sought by any party shall be granted only on payment of special cost of ten thousand rupees per adjournment and adjournment shall not be granted for more than three days: ' Provided further that if the Tribunal itself adjourns it shall record reasons for such adjournment: ' Provided also that where delay in the proceedings is occasioned by any act or omission of a returned candidate or any other person acting on his behalf, the Tribunal itself, or on application of the aggrieved party, shall after issuance the show cause notice to the returned candidate, within fifteen days from the date of show cause notice may order that the returned candidate has ceased to perform the functions of his office either till the conclusion of the proceedings or for such period as the Tribunal may direct. 12. It has been noticed that not only in the instant case but in so many other identical cases pertaining to elections, timely decisions are not taken by the Election Tribunals; because, inter alia, Election Tribunals are ordinarily presided by learned Judges of the High Courts who remain unable to conclude matters expeditiously on account of their other judicial commitments, or because of delaying tactics employed by respondents who, having been declared as returned candidates, enjoy the status of Member of the National or Provincial Assembly. We are of the considered opinion that, as held by this Court in Muhammad Usman Achakzai v. Election Tribunal Balochistan (PLD 2010 SC 943), such delays in disposal of election petitions before the Tribunal in fact deprives a large number of electors of the constituency to have their due representation in the elected Houses, particularly in those matters where a whole term has been enjoyed by a winning
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candidate, who may later turn out to be disqualified on any count. Thus, delay causes the people of constituency to be represented by a person who is not duly elected. This clearly negates the principle of democratic system of Government. There is wisdom in fixing the period for decision of such cases, namely, that there should be no uncertainty for the persons, who have been elected or who have challenged the election before the Tribunal or the Court and after expeditious disposal of the same. They should consume all their energies for the welfare of the people whom they represent, instead of wasting time in pursuing such matters before the Courts. This principle was reaffirmed by this Court in Workers' Party Pakistan v. Federation of Pakistan (PLD 2012 SC 681). Furthermore, in the case of Muhammad Khan Junejo v. Fida Hussain Dero (PLD 2004 SC 452) this Court held that it is a mandatory requirement of ROPA that Election Tribunal shall proceed with the trial of the election petition on day-to-day basis and she decision thereof shall be taken within four months from its receipt as provided under section 67(1A) ibid. This Court further held that the contention of the appellant in that case that fair hearing was not afforded to him was without merit and in fact spoke volumes of the appellant's propensity to prolong litigation at any cost. 13. In light of the aforementioned facts, it is clear that a legal duty has been cast upon the Election Tribunal to reach a conclusion expeditiously by following stringent/coercive measures of imposing a cost and assigning the reasons if cases are adjourned by the Tribunal. To this end the Tribunal is even empowered to declare that a returned candidate who is delaying the proceedings of the Tribunal ceases to be a member of the Parliament/Provincial Assembly, either till the conclusion of the proceedings or for such period as the Tribunal may direct. 14. In this vein, it is pertinent to note that the provisions of section 67(1A) are mandatory in nature. This is evident as the said section contains penal consequences for taking adjournments and failing to decide an election petition within four months. In this regard it is instructive to have recourse to the decision of this Court in the case of Maulana Nur-ul-Haq v. Ibrahim Khalili (2000 SCMR 1305), wherein it was held that:-- "7. ... No doubt there exists no faultless acid test or a universal rule for determining whether a provision of law is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language in which the provision is couched but it is by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is directory and where the consequence is expressly mentioned the provision is mandatory. ..." ' In the case of Ghulam Hussain v. Jamshed Ali (2001 SCMR 1001) this Court held as under:-- "13. It is an established principle of law that where the Legislature has provided a penalty/consequences for the noncompliance, the said provision would be mandatory in nature and where such consequences are not provided it would be termed as directory..." ' Similarly, in the case of Malik Umar Aslam v. Sumera Malik (PLD 2007 SC 362) it was held as under:- - "10. ... ... The Court is always empowered to ensure that the law under which proceedings have been initiated before it stands complied with fully particularly in the cases where non-compliance of mandatory provision prescribes a penalty... ..." ' Furthermore, in the matter of: HUMAN RIGHTS CASES NOS.4668 OF 2006, 1111 OF 2007 and 15283-G of 2010 (PLD 2010 SC 759). Relevant extract therefrom is reproduced hereinbelow:-- "12. ... ... It is to be noted that non-adherence to legislative provisions other than the Constitution is permissible, provided it does not entail penal consequences as there are two types of statutes/legislation, i,e, mandatory and directory. As far as mandatory provision of law is concerned, same is required to be enforced strictly without interpreting/construing it in any manner liberally. ... ..."
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15. In light of the aforementioned case-law, it is abundantly clear that section 67(1A) is a mandatory provision of law that entails penal consequences for non-compliance. Therefore, the learned Election Tribunal below failed to penalise respondent No, 1 for repeatedly delaying the proceedings. 16. Moving now to the merits of the Appeal, it is pertinent to recap that the Election Petition No,104 of 2008 challenged the success of respondent No,1 as a member of National Assembly on the alleged commission of corrupt and illegal acts, etc., by and on behalf of respondent No,1 prior to as well as on the date of polling. In her reply, respondent No,1 raised various legal and factual defences. Learned counsel appearing on behalf of respondent No,1 contended that during the hearing of the election petition, the appellant abandoned every ground of attack except pleading that the election of respondent No,1 was liable to be declared void because she had procured a fabricated B.A. Degree from University of the Punjab. Moreover, according to him, the pleadings of the appellant never mentioned that respondent No,1 obtained the said degree as a result of impersonation. He explained that no fresh plea is allowed to be introduced without seeking amendments under section 62(3) of ROPA. If such amendment has not been made, the petition deserves to be dismissed on this sole ground as well. 17. In response, learned counsel for the appellant contended that this very issue was raised before the Election Tribunal wherein the appellant was not only allowed to raise this plea but permission was also accorded to produce the evidence, for which respondent No,1 also had no objection as is evident from the perusal of the impugned judgment. A careful perusal of the proceedings supports the contention raised by the appellant's counsel as after examining the record the learned Tribunal in the circumstances observed as under:-- "Therefore, the only question that requires determination by the Tribunal is as follows:- "Whether respondent No,1 procured a fabricated degree of Bachelor of Arts (B.A.) from the University of Punjab by arranging for some other lady to sit for the examination in her place, and hence her election is liable to be declared to be void." ' The answer to above question will have direct bearing in deciding issue No,1 third." ' Thus, objection raised by learned counsel for respondent being without substance needs no further discussion. 18. Learned counsel for respondent No,1 also emphasized that under section 67…
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