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Petitioner: Syeda WAHEEDA SHAH VS Respondent: ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner and 4 others
Court Name: Sindh High Court Judge(s): Aftab Ahmed Gorar, Munib Akhtar Title:Syeda WAHEEDA SHAH vs ELECTION COMMISSION OF PAKISTAN through
Chief Election Commissioner and 4 others Case No.:Constitutional Petitions Nos.D-565, D-2175 and D-1134 of 2012 C.P. No,D- 2175/2012 (respondent No,3 in C.P.D-1134 of 2012 C.P. No,D-2175 of 2012 Date of Judgment:2012-09-19 Reported As: PLD 2013 Sindh 117 Result: Order accordingly Judgment ORDER ' MUNIB AKHTAR, J.---These two connected petitions came to be filed, in circumstances to be explained, in relation to a bye-election held on 25-2-2012 for PS-53 (Tando Muhammad Khan- cum-Hyderabad), a constituency of the Sindh Provincial Assembly ("the Constituency"). The seat had been held by Mr. Mohsin Shah Bukhari and fell vacant on account of his death. The main contesting candidate in the bye-election was his widow MRs, Syeda Waheeda Shah, and she and the Election Commission of Pakistan are the main contesting parties in these petitions. In Constitutional Petition D-2175 of 2012, MRs, Waheeda Shah is the petitioner, whereas the Election Commission of Pakistan is a respondent; in the other petition, Constitutional Petition D-1134 of 2012, the roles are reversed. For convenience however, we will throughout refer to MRs, Waheeda Shah as "the Petitioner", and to the Election. Commission of Pakistan as "the Commission". Both petitions were filed originally at the Hyderabad Circuit Court and Constitutional Petition D-2175 of 2012 was subsequently transferred to the principal seat with consequent change in number. Ultimately, both petitions, in a manner that need not be described in detail, came to be taken up together and were heard at the principal seat before a Division Bench comprising of ourselves, and are therefore being decided by means of a common judgment. 2. On polling day, 25-2-2012, the Commission arranged 102 polling stations for the Constituency. One of these was polling station No,16 ("the Polling Station"), where the presiding officer was Ms. Habiba and the assistant presiding officer was. Ms. Shagufta. Briefly stated (the details to be given shortly), an incident took place at the Polling Station involving the petitioner and the two aforesaid
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officeRs, That led ultimately to proceedings by way of a summary criminal trial that were initiated by the returning officer for the Constituency (who is the respondent No, 4 in Constitutional Petition D-2175 of 2012 and is herein after referred to as the "Returning Officer"). By order dated 5-3-2012, the Returning Officer convicted the petitioner of an offence under section 86(3)(b) of the Representation of the People .Act, 1976 ("the 1976 Act") and imposed a fine of Rs,1000. Concurrently, the Commission itself took action under the 1976 Act on a complaint made by the respondent No, 5 in Constitutional Petition D-2175 of 2012 ("Respondent No, 5"). By an order dated 7-3-2012 made by majority decision, the Commission annulled the poll at the Constituency under section -103AA and ordered a fresh bye-election, and on account of the petitioner's conviction as aforesaid, disqualified her under section 100 for two years from being elected as a member of an Assembly. By means of C.P. D-2175/2012, the petitioner has impugned her conviction as well as the order of the Commission. The petitioner also preferred an appeal against her conviction. By means of judgment dated 30-5-2012, the learned VIth Additional Sessions Judge. Hyderabad (" ASJ") allowed the appeal (while converting it into a revision) and acqitted the petitioner by setting aside the conviction. The Commission has impugned, the order of the learned ASJ in the connected petition Constitutional Petition No,D-1134 of 2012. 3. The petitioner was represented by Messrs Rashid A. Razvi, Syed Haider Imam Rizvi and Farhat Ullah, Advocates. Although the senior counsel, Mr: Rashid Razvi graciously permitted Mr. Syed Haider Imam Rizvi along with Mr. Farhat Ullah to open the case for the petitioner. Since the submissions of all the learned counsel were complementary, we will (without intending any disrespect) take them up together without differentiating between them. The Commission was represented by Mr. Muhammad Ali Shaikh, DAG (Hyd.) in Constitutional Petition D-2175 of 2012 and Mr. Muhammad Munir Paracha, Advocate in Constitutional Petition D-1134 of 2012. Again, since the submissions .Of both learned counsel were complementary, we will (without intending any disrespect) take them up together without differentiating between them. Finally, we may note that when, judgment was reserved on 1-8-2012, we had permitted all the learned counsel who appeared before us to file written synopses. Learned counsel for the petitioner did so in respect of both petitions. 4. Learned counsel for the petitioner submitted that on polling day, at around 3-30 p.m., the petitioner visited the Polling Station on account of certain reports regarding the voting taking place there. The petitioner claims that she found the polling agents of one of the contesting, candidates (the respondent No, 5) engaged in .Bogus voting. The presiding and assistant presiding officers were there attempting to direct matters, but according to the petitioner they, was not wearing their official badges or carrying any other identification indicating that they were the election officials. The petitioner mistook them for the polling agents of the other contesting candidate. An incident took place, which is described by the petitioner in her petition (para 1(iv) to (vi)) as follows:- "(iv) That the petitioner considered both the ladies as agents of respondent No, 5 and prevented them from rigging the poll and in the scuffle the ladies were inadvertently hit by the back side of petitioner's hand. (v) Immediately respondent No, 4the Returning Officer] came. He removed the disorderly agents of the respondent No, 5 from the booth and the petitioner learnt that the ladies, were Presiding and Polling Officer. (vi) The petitioner regretted and the matter settled then.And there and polling 'continued without any interruption...." (emphasis supplied) ' We pause to note that the only aspect that is relevant for present purposes is whether any, and if so what, consequences do or should flow from the fact that the election officials got hit by 'the petitioner. (This is herein after referred to as "the incident"). No question of the rigging of the poll or bogus voting or any other electoral irregularity of a similar nature arises or has relevance for
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present purposes. Learned counsel for the petitioner submitted that a media team from a news channel was present on the occasion and the incident was filmed and almost immediately, and repeatedly, aired on various channels. This led to an intense media hype in which the incident was given a wrong complexion and deliberately presented in a manner that was entirely negative of; and adverse to, the petitioner. However, learned counsel emphasized that polling was not interrupted at the Polling Station. 5. Learned counsel submitted that at the conclusion of the polling, and on the same day, all the presiding officers at the various polling stations, including the Polling Station, filed the prescribed returns of the votes cast with the Returning Officer.. This was in terms of Form XIV of the Representation of the People (Conduct of Election) Rules, 1977 ("1977 Rules"). The Returning Officer, on the same day, filed up and signed the prescribed consolidated statement of results on the basis of the count furnished by the presiding officeRs, This is Form XVI of the 1977 Rules. According to learned counsel, by signing Form XVI the Returning Officer became functus officio; which had certain important consequences for present purposes that are stated below. The unofficial result was also released by the Returning Officer late at night on the polling day, with the petitioner being the winning candidate by a substantial margin. 6. Learned counsel further submitted that notwithstanding the foregoing position, and because of the intense media hype regarding the incident, the District Returning Officer on 25-2-2012 constituted a thiee member committee, to investigate and furnish a report. The committee comprised of the Returning Officer and the Deputy Commissioner and the Senior Superintendent of Police,. Tando Muhammad Khan. The report was submitted on 26-2-2012 and according to learned counsel substantially confirmed the position as stated by the petitioner. The committee reported, inter alia, that the:- ' mishap of abuse/beaten [sic] of polling staff: [was] mainly due to misunderstanding that they were purporting to be supporters of rival group, who have pressed to cast vote on the basis of fake NADRA reeipts. ' After understanding the situation, the contesting candidate made excuse of occurring the same incident with the result that the polling stall realized the situation and termed as misunderstanding in their statements. Hence, they do 'not press for any action in the matter." ' It appears that based on the foregoing report, the District Returning Officer submitted his own report to the Commission on the night of 26-2-2012. Learned counsel contended that this report exonerated the petitioner as and to the extent relevant for present purposes. 7. Continuing with their submissions, learned counsel submitted that notwithstanding the foregoing, on 27-2-2012 (Or perhaps on 26.02), two members of the Commission, who were at that time apparently at Karachi, directed the Returning Officer to register an FIR. In respect of the incident under section 86(3)(b) of the 1976 Act. The Returning Officer proceeded to do so (as complainant), with F.I.R. 33/2012 being registered at Police Station Tandu Muhammad Khan on 27- 2-2012 at around 0300 p.m: However, also on the same day, the 'remaining three members of the Commission directed the Returning Officer to himself take cognizance, in terms of a notification that had earlier been issued by the Commission under section 86A, of the offence under section 86(3)(b). Learned counsel took a number of legal objections to these directives/acts (described below) and took strong exception to the. Returning Officer having initiated two separate criminal proceedings in respect of the same incident/alleged offence, one as complainant and the other under his own authority. They further contended that the two orders of the members of the Commission could not stand together, and in particular, the order directing the Returning Officer to himself take cognizance under section 86A was completely vitiated by reason of the earlier order directing that the F.I.R. Be registered.
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8. The notification of the Commission pursuant to section 86A ("the Notification") under which the Returning Officer was directed to take cognizance had been issued on 14-2-2012 in relation to a number of bye-elections, all of which were scheduled for 25-2-2012. The Notification stated in material part as fo11ows:-- "In exercise of the powers under section 86A of the Representation of the People Act, 1976 ... The Election Commission hereby authorizes the District Returning Officers, Returning Officers and Assistant Returning Officers appointed for Bye-Elections in Constituencies No .... PS-53 '(Tando Muhammad Khan-cum-Hyderabad) and the Presiding Officers appointed for each Polling Station of the said Constituency, to exercise the powers of a Magistrate of the First Class under the Code of Criminal Procedure, 1898 ... On the 25th February, 2012; the day appointed for Election, in respect of the offences punishable under section 80, section 82A, section 83, section 84, section 85, section 86 and section 87 of Representation of the People Act, 1976 and to take cognizance of any such offence under any of the clauses of subsection (1) of section 190 of the said Code of Criminal Procedure and to try such offence in a summary way in accordance with the provisions of the said Code, relating to summary trials." (Emphasis in original) ' Learned counsel submitted (among other objections) that the officers mentioned in the Notification, including the Returning Officer, could4 take cognizance of the offences specified therein only on 25-2-2012, and since in the present case cognizance was admittedly taken on 28- 2-2012 when notice was issued by the Returning Officer, the entire proceedings were without. Jurisdiction. It was also contended that since the Returning Officer had become functus officio on 25-2-2012 by signing Form XVI, he could not in any case have taken any action under the Notification. 9. In the event, the Returning Officer did take cognizance as directed by three members of the Commission and issued notices on 28-2-2612 to the petitioner, the other contesting candidates, the election officials of the Polling Station and other officials to appear before him on 3-3-2012 at Karachi to record their statements/evidence "in connection with the incident which took place at Polling Station No, 16 G.G.H.S., Tando Muhammad Khan on 25th February, 2012". On the appointed date, the election officials of the Polling Station, certain other officials and some of the contesting candidates (including the respondent No,5 and the intervener in Constitutional Petition D-2175 of 2012) appeared before the Returning Officer. The petitioner did not appear, but a representative attended on her behalf and stated that she was not feeling well and asked for one day's time for her appearance. This request was acceded to by the Returning Officer, but he did proceed to record the statements of those persons who were present. Thus, those statements were recorded in the absence of the petitioner. The petitioner appeared on 5-3-2012; on which date her statement was recorded. By order of the same date, the Returning Officer, as noted above, found the petitioner guilty of an offence under section 86(3)(b) and imposed a fine of Rs,1000 on her. Learned counsel for the petitioner has impugned this order on a number of grounds; which are described below. Also as noted, the petitioner challenged this order both directly in Constitutional Petition D- 2175/2012 as well as by way of an appeal to the learned ASJ. The latter allowed the appeal (after converting it into a revision) and set aside the order of the Returning Officer, thereby acquitting the petitioner. This judgment is of course the subject matter of Constitutional Petition 1134 of 2012, where it is impugned by learned counsel for the Commission and supported by learned counsel for the petitioner. 10. In the meanwhile, the respondent No, 5 had, on 25-2-2012, filed a complaint before the Commission in relation to the bye-election. A number of grounds were taken in the complaint, but the only one relevant for present purposes was in relation to the incident, as to which the complaint stated as follows:--
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"P.S-16, Government Girls High School Tando Muhammad Khan. My opponent candidate namely Waheeda Shah along with Deputy Superintendent of Police Irfan Shah and police escort tortured the womenfolk and the Presiding Officer at P.S-16 namely Habiba D/0 Ghulam Hussain Memon and other Assistant ... Action against her. Such incident was broadcasted in the media by all leading news channel as a breaking-news." (A certain portion of this ground is not fully legible in the copy on our record but the substance of the allegation is clear.) ' Notice was issued to the petitioner and she filed her objections to the complaint, strongly denying the allegations against her. After considering the matter, the Commission gave its decision, by majority, by order dated 7-3-2012. The majority comprised of Mr. Justice (R) Fazal ur Rahman, who wrote the order, Mr. Justice (R) Shahzad Akbar Khan (who agreed with the order) and Mr. Justice (R) Riaz Kiyani, who agreed with the order and also wrote a concurring note. Two members dissented; being Mr. Justice (R) Muhammad Roshan Essani, who wrote the dissent, with which Mr. Justice (R) Hamid Ali Mirza (the Chief Election Commissioner) concurred. The majority held as follows:-- "Exercising of powers under section 103AA of the said Act we declare the poll held in PS-53 on 25th February, 2012 for a seat of the Provincial Assembly to be void. The Election Commission shall proceed to hold bye-election as provided in section 108 of the said Act." ' By 7-3-2012, the Returning Officer had of course already convicted the petitioner of the offence under section 86(3)(b). Accordingly, the Commission (again by majority) also disqualified the petitioner under section 100 from being elected as a member of an Assembly for two yeaRs, Learned counsel submitted that the Commission's order was contrary to law and liable to be set aside. There was nothing on the record that justified the taking of action under section 103AA and none of the conditions as specified therein were applicable in the facts and circumstances of the case. It was also submitted that the order of disqualification was without jurisdiction but that in any case it had to be quashed since the petitioner's conviction had been set aside by the learned ASJ. 11. Learned counsel assailed the order of conviction and the order of the Commission on various grounds, some of which have been noted above. The principal questions raised by learned counsel were stated in the written synopsis as follows:-- (1) Whether the order dated 27-2-2012 was an order passed by properly constituted Election Commission of Pakistan as per mandate of Article 218(2) of the Constitution of Pakistan 1973? (2) Whether Order dated 27-2-2012 passed by the Chief Election Commissioner and another member amounts to a lawful order passed by the Election Commission of Pakistan? (3) Whether after 25-2-2012 the Returning Officer has, become functus officio after furnishing/signing the Form XVI? (4) Whether in absence of election process (general elections or bye elections) the Election Commission of Pakistan was legally competent and justified to invoke section 86-A of the Representation of People Act, 1976? (5) Whether in absence of an order under section 100 of the Representation of People Act, 1976, any candidate could be treated as disqualified? (6) Whether the principle of Natural Justice that no person should be a judge in his own cause was violated by appointing Mr. Ali Asghar Sial (i,e,, the Returning Officer) as Special Magistrate who was also complainant in the F.I.R. No,33 of 2012? (7) Whether the order passed by the learned Returning Officer on 5-3-2012 is in violation of section 353 of the Criminal Procedure Code 1898 read with Article 10-A of the Constitution, 1973? (8) Whether the proceedings conducted by the Election Commission of Pakistan under section 103- AA of the Representation of People Act, 1976 was lawful, bona fide and in accordance with the provisions of the Act, 1976?
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(9) What is the effect of order dated 30-5-2012 passed by the VIth Additional District and Session Judge, Hyderabad, in Criminal Appeal No,9 of 2012 whereby the order dated 5-3-2012 passed by the Returning Officer was set aside? ' The other grounds/objections taken by learned counsel are noted at the appropriate places in the paras below. Learned counsel contended that the Commission's order merited being quashed and that the petitioner's conviction was unlawful and rightly set aside by the learned ASJ. Learned counsel also relied on certain case-law, which is taken up below as and to the extent necessary. 12. Learned counsel for the Commission supported the Commission's order and submitted that the petitioner had been rightly convicted for the offence under section 86(3)(b). They therefore contended that the order of the learned ASJ setting aside the conviction was erroneous and liable to be quashed. Learned counsel submitted that the Returning Officer, while exercising the powers conferred on him by the Notification was not an "inferior criminal court" within the meaning of section 435 Cr.P.C. And hence his order was not subject to the jurisdiction purportedly exercised by the learned ASJ under that section. It was also submitted that since the Returning Officer's order was made at Karachi, the learned ASJ Hyderabad did not have territorial jurisdiction in the matter. Learned counsel further submitted that even on the merits, the order of the learned ASJ was liable to be set aside and various grounds were taken in this regard. Insofar as the order of conviction was concerned, learned counsel candidly conceded that the recording of statements on 3-3-2012 in the absence of the petitioner was in violation of section 353 Cr.P.C. However, learned counsel submitted that the petitioner's own statement, recorded on 5-3-2012, was sufficient for purposes of establishing the offence under section 86(3)(b). It was contended that all that was required for purposes of the aforesaid section was to show that the proscribed act had occurred. Thus, learned counsel contended in effect that an offence under section 86 was of strict liability and the submission was that the offence had been made out on the basis of petitioner's own statement. Learned counsel further submitted that the Returning Officer had complete jurisdiction under the Notification to take cognizance of the incident and the proceeding on the basis thereof that resulted in the petitioner's conviction was lawful and proper. It was also submitted that the Commission's order under section 103AA was within jurisdiction and fully justified in the facts and circumstances of the case. 13. Learned counsel for the intervener in Constitutional Petition No,2175 of .2012 ("Intervener") supported the submissions by learned counsel for the Commission and challenged the maintainability of the petition both under Article 225 of the Constitution and section 105 of the 1976 Act. Learned counsel submitted the Commission had the jurisdiction to take suo motu action under section 103AA and action had rightly been taken in terms thereof. Learned counsel further submitted that the offence for which the petitioner had been convicted had been committed in relation to, and in violation of, the electoral process. In this contest, the fact that the presiding and assistant presiding officers of the Polling Station had accepted the petitioner's apology or explanation was of no consequence; the offence was not personal to them. Learned counsel for respondent No, 5 adopted the submissions made by learned counsel for the Intervener. 14. Exercising the right of reply. Learned counsel for the petitioner submitted that once the prosecution evidence stood excluded, the petitioner could not he convicted on her own statement; the prosecution had to prove the offence beyond reasonable doubt on the basis of its own evidence. Of which there was none since section 353 had been violated. Learned counsel further submitted, relying on sections 6 and 29 Cr.P.C., that the Returning Officer was "an inferior criminal court" while exercising the powers conferred by the Notification, and hence his order was amenable to the jurisdiction of the learned ASJ. It was further submitted that the learned ASJ had territorial jurisdiction in the matter. Learned counsel also contended that another reason why the conviction order was liable to be set aside was that the Returning Officer had taken different stands at
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different times on the basis of the same material/evidence, and in this regard referred to the report that had been submitted by the committee to the District Returning Officer, the F.I.R. Registered by the Returning Officer as complainant, and the conclusions arrived at by him in the order convicting the petitioner. It was contended that these inconsistencies were sufficient to vitiate the entire proceedings against the petitioner, whether those taken by the Commission or the Returning Officer. It was also contended that the Returning Officer had throughout acted in a wholly partisan manner inconsistent with his duties under the 1976 Act and the exercise of jurisdiction under the Notification. Thus, on any view of the matter, the conviction and the order of the Commission were liable to be set aside. 15. We have heard learned counsel as above, examined the record with their assistance and considered the case-law relied upon. It will be seen that three distinct matters require consideration: (a) the petitioner's conviction under section 86(3)(b) in exercise of powers conferred under section 86A; (b) her disqualification under section 100; and (c) the Commission's decision under section 103AA to annul the poll in the Constituency. The first two matters are linked since the disqualification stands or falls with the conviction, though, as will be seen, there is a juiisdictional issue involved as well. It is the first and the third matters that will be the focus of attention. It is important to keep in…
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