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Petitioner: DUR MUHAMMAD KHAN NASAR and others VS Respondent: MUHAMMAD SHAFIQ TAREEN JUDGMENT
Court Name: Balochistan High Court Judge(s): Qazi Faez Isa Title:DUR MUHAMMAD KHAN NASAR and others vs MUHAMMAD SHAFIQ TAREEN
JUDGMENT
Reported As: PLD 2014 Balochistan 152 Result: Order accordingly Judgment JUDGMENT ' QAZI FAEZ ISA, C J.---These six petitions filed under Article 199 of the Constitution of the Islamic Republic of Pakistan ("the Constitution") assail interlocutory orders passed by different election tribunals that have been set up under the Representation of the People Act, 1976 ("the Act") after the 11th May 2013 general elections. That a bench of this court had entertained petitions under Article 199 of the Constitution against interlocutory orders of such election tribunals and another bench had not, therefore, this larger bench was constituted to consider, whether a petition under Article 199 of the Constitution can be filed to assail interlocutory orders of election tribunals. 2. Messrs Malik Sikandar Khan, Amanullah Khan Achakzai, Muhammad Riaz Ahmed, Muhammad Qahir Shah and Adnan Ejaz, Advocates, supported the proposition that a constitutional petition can be filed against interlocutory orders, whereas Syed Ayaz Zahoor Advocate and Mr. Tariq Ali Tahir, Additional Advocate General ("AAG") opposed the same. 3. To appreciate the question it would be appropriate to reproduce Section 67 of the Act and Article 225 of the Constitution respectively. Section 67 of the Representation of the People Act, 1976: "67. Decision of the Tribunal.--(1) The Tribunal may, upon the conclusion of the trial of an election petition, make an order-- (a) dismissing the petition; (b) declaring the election of the returned candidate to be void; (c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or
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(d) declaring the election as a whole to be void." (1A) 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 costs 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 an 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. (2) Save as provided in subsection (3), the decision of a Tribunal on an election petition shall be final. (3) Any person aggrieved by a decision of the Tribunal may, within thirty days of the announcement of the decision, appeal to the Supreme Court which shall be decided within thirty days and the decision of the Supreme Court on such appeal shall be final. ' Explanation.--In this subsection, "decision of the Tribunal" shall not be deemed to include an order made by the Commission in the exercise of its powers under section 103 AA. " Article 225 of the Constitution of Pakistan: "225. 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)." 4. Messrs Malik Sikandar Khan, Muhammad Qahir Shah and Muhammad Riaz Ahmed made their submissions whereas Messrs Amanullah Khan Achakzai and Adnan Ejaz adopted their arguments. It was stated that subsection (3) of section 67 of the Act provides for filing of an appeal against, "a decision of the Tribunal" and the term 'decision' does not include an interim or interlocutory order, therefore, the party adversely affected by such order has no adequate or alternate remedy and can file a constitutional petition under Article 199 of the Constitution. It was further contended that Article 225 does not contain any restriction in filing a petition under Article 199 before the High Court. Reliance was placed upon a number of precedents, which we shall attend to herein below. 5. That, on the other hand, Syed Ayaz Zahoor and Mr. Tariq Ali Tahir relied upon Article 225 of the Constitution and stated that elections can only be called in question by filing an election petition and the same has to be decided in accordance with the Act, which sets out the procedure regarding the manner in which election petitions are filed and how they are to be decided; and subsection (3) of Section 67 stipulates that an appeal against the decision of the election tribunal lies before the Hon'ble Supreme Court. The learned counsel further contended that merely because no remedy is provided against interlocutory orders does not mean that the High Court can exercise jurisdiction under Article 199 of the Constitution; and that it is the intention of the Legislature to have election disputes expeditiously decided within four months (subsection (1A) of section 67) and strict conditions and consequences for adjournments are stipulated (the three provisos to subsection (1A) of section 67). They stated that the maximum duration of any parliament is five years, though it may be shorter if elections are called earlier, and if constitutional petitions against interlocutory orders are entertained it will effectively defeat the intention of the Legislature as matters would drag on without any possibility of being deciding within the stipulated period. They
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stated that after the dispute is decided by the election tribunal an appeal can be preferred before the Hon'ble Supreme Court. It was lastly contended that if petitions under Article 199 of the Constitution are entertained against interlocutory orders it will also result in multiplicity of litigation in addition to causing inordinate delay. They referred to a number of precedents, which we shall attend to herein below. 6. We have gone through the precedents cited by both sides in support of their respective contentions and will attempt to derive the principles therefrom. (1) Kanwar Fiaz Ali v. Irshad Ali (PLD 1986 SC 483) was an appeal under section 67(3) of the Act filed before the Hon'ble Supreme Court against the decision of the Election Tribunal which had dismissed the election petition filed by the appellant and which also did not allow recounting of the votes. The Supreme Court upheld the decision of the Election Tribunal. (2) Zahid Sarfaraz v Nadir Pervaiz Khan (1987 SCMR 1107) was also an appeal filed under Section 67 (3) of the Act before the Supreme Court but against a decision of the Election Tribunal on a preliminary appeal is only competent against a 'decision'. In this regard the following paragraphs. From the judgment of Justice Shafiur Rahman are relevant: "After enumerating the nature or the types of orders that an Election Tribunal can pass under section 67 of the Act subsection (2) provides that such a decision as is enumerated in subsection (I) is final except for the right of an appeal provided for in subsection (3). The .Finality lent to such a decision is made subject to an exception of appeal. This necessarily enjoins that subsection (2) and subsection (3) of section 67 are to be read together and the two along with the empowering provision of section 67. It is true that while enacting, the conclusion of the trial has been mentioned in section 67 but in section 63 and section 76 provision has been expressly made for passing of such an order as is envisaged in section 67 during the trial and not at its conclusion. Nevertheless, the order is of the type as is enumerated in subsection (1) of section 67 of the Act and has the effect of either concluding the trial or is passed at the conclusion of the trial. This fact of conclusion of the trial or concluding the trial by that order and the order conforming to what is enumerated in subsection (1) section 67 limits the scope of the expression a 'decision' as contained in subsection (3) of section 67 of the Act" [at pages 1112-1113]. "The policy of election law as well as Rent Control Law is the same, notwithstanding a material difference in the subject-matter of each. Both are separately framed, both are self-contained, both are directed towards achieving expeditious and substantial disposal of the cause brought before the designated authority, Tribunal in the case of election matters and Controller in the case of Rent and allied matters. The priniples of construction of statutes always draw upon first on the express language of the statute, next the context, then the object and purposes and last of all on the policy. If the express language presents no difficulty in interpretation resort cannot be had to the context. Where the context and the language resolve the meaning resort to object and purposes is uncalled for" [at page 1114]. (3) Election Commission of Pakistan v. Javaid Hashmi (PLD 1989 SC 396). This case pertained to a pre-election dispute with regard to the appointment of polling staff in respect of which a constitutional petition was filed before the Lahore High Court. The High Court allowed the petition and against such order a petition was preferred before the Hon'ble Supreme Court. The following observations of the Hon'ble Supreme Court are relevant: ' Legislature is obvious that, it .Did not contemplate two attacks on matters connected with the election proceedings; one while the election process is on and has not reached the stage of its completion by recourse to an extraordinary remedy provided by Article 199, and another when the election has reached the stage of completion by means of an election petition. It is also of utmost consideration that in the case of two attacks on a matter connected with the election proceedings there is likelihood of there being two inconsistent decisions; one given by the High
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Court and the other by the Election Tribunal which is also an independent Tribunal and this could not be the intention of the Legislature. Again the words 'except by an election petition' in Article 225 of the Constitution do not refer to the period when it can be called in question but point to the manner and the mode in which it can be called in question. It is, therefore, that the constitutional provision is expressed in the negative form to give exclusive jurisdiction to the Tribunals appointed by the Election Commissioner and thus to exclude or oust the jurisdiction of all Courts in regard to election matters and to prescribe only one mode of challenge. The purpose is not far to seek as in all democratic Constitutions such as is ours the Legislatures have an important role to play, and, therefore, it is of utmost importance that the election should be held as scheduled without being unduly delayed or prolonged by challenging matters at an intermediate stage" [ at pages 416-417 C]. "The Act comprehended by Article 225 is comprehensive in all respects. Section 52 of the Act provides for the challenge of an election through an election petition. This section is also expressed in the negative form to exclude jurisdiction of all Courts in matters of elections except as provided" [at page 417 D] . "The scheme of the electoral laws and conduct of election accordingly appears to be that any matter which has the effect of vitiating the election process should be brought up only at the appropriate stage in an appropriate manner before the Election Tribunal and should not be brought up at an intermediate stage before any Courts as otherwise Article 225 of the Constitution would be deprived of its meaning and content" [at page 417 F]. "Article 225 creates a right to challenge the election and lays down the method for its enforcement through an Act which is a constitutional mandate as by use of the word `No' a negative imperative. The Act also creates a right to challenge the election well settled that in such a case it is the remedy provided by the Act alone which should be availed of not only because of the constitutional mandate but also the cause of the settled rule" [at page 418 H]. ' Justice Nasim Hasan Shah did not agree with the majority view (of three learned judges) to the extent of the scope of Article 225, and held, that: "While I agree that it is most desirable that the election process should not be interrupted during the intermediate stage, I cannot agree that to avoid the complications of any such interference a blanket ban should be read into Article 225 to every litigative challenge made to every kind of illegal order passed by an election authority" [at page 429]. "Accordingly, I would, therefore, hold that orders passed even by election authorities, which are outside the limits of the law, are not immune from challenge and correction, by the High Court under Article 199" [at page 430 U]. (4) Bhagwandas v. The Returning Officer (1990 SCMR 1228) was an appeal under section 67 (3) of the Act against an interlocutory order of the Election Tribunal. The Hon'ble Supreme Court dismissed the appeal as the Election Tribunal had not decided the election petition. The brief judgment of the Hon'ble Supreme Court referred to the judgment in the case of Zahid Sarfaraz v. Nadir Pervaiz Khan (1987 SCMR 1107), which has been considered above (2). (5) Rashid Ahmed v. Election Tribunal (PLD 1993 Lahore 791) is a judgment of a division bench of the Lahore High Court. A petition under Article 199 of the Constitution was filed calling into question an interlocutory order of the Election Tribunal, which had allowed an application filed by the respondent seeking to summon certain witnesses. The petition was dismissed. The question before us was also considered by the court, in paragraph eight of the judgment, reproduced hereunder: "The writ petition has been filed against an interim order. As per provision of .Section 67 of the Representation of the People Act, 1976, any decision of the Election Tribunal is appealable to the Supreme Court. The word 'decision' has been used in section 67 of the Representations of the People Act, 1976 and it does not always refer to a final order. It shall also include an interim order.
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The petitioner if aggrieved by the order could have, hence filed an appeal before the Supreme Court of Pakistan and at any rate in case the ultimate final order is impugned order in that appeal, in view of the established legal position to the effect that while challenging final order, the interim orders are also challengeable. Hence, writ petition against the interim order cannot be entertained as it will tend to delay the disposal of main case which is an election petition and is to be decided within a specified period of time expeditiously. It has been held in cases of Ibrahim v. Muhammad Hussain PLD 1975 SC 457, Abdul Bari v. Government of Pakistan and-2 others PLD 1981 Karachi 290, Allah Yar Khan v. Mst. Sardar Bibi and others (1986 SCMR 1957) and Mushtaq Hussain Bokhari v. The State (1991 SCMR 2136), that interim orders are not amenable to the exercise of the writ jurisdiction of this Court inasmuch as entertainment of writ in such like cases delays the decision of main cases wherein the interim orders have been passed' [at pages 800-801]. (6) Ghulam Mustafa Jatoi v Additional District and Sessions Judge (1994 SCMR 1299) was also in respect of a pre-election dispute. The name of the appellant was dropped from the published list of candidates on the ground that he was a defaulter of bank dues and because he had not produced a clearance certificate from the bank. Justice Ajmal Mian delivered the judgment on behalf of a five member bench of the Hon'ble Supreme, and the following passages are relevant for our purposes: ' the remedy of an election petition on the ground of rejection of nomination papers is not available as a ground for assailing the election of a returned candidate contained in subsection (I) of section 68 ..." [para. 24 at page 1319] "The upshot of the above discussion is that generally in an election process the High Court cannot interfere with by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court" [at page 1321 I]. (7) Muhammad Iftikhar Mohmand v. Javed Muhammad (1998 SCMR 328); the petitioner had filed a civil petition for leave to appeal against the decision of the Election Tribunal overruling a preliminary legal objection raised by the petitioner challenging the maintainability of the election petition. The Hon'ble Supreme Court refused leave and held Tribunal. It would be useful to reproduce the following extract from the order of Justice Saiduzzaman Siddiqui: "After hearing the learned counsel for the parties we are of the view that as the main election petition is still pending before the learned Tribunal and an appeal is provided against the .Final decision of the Tribunal before this Court, the petitioner in the event of the final decision going against him, will be entitled to raise all the pleas available to him, in the appeal before this Court including the preliminary objection as to the maintainability of the petition which has been overruled by the learned Tribunal by the impugned judgment. With these observations, the petition stands disposed of accordingly" [at pages 329-330 A]. (8) Muhammad Asim Kurd alias Gailoo v. Lashkari Khan Raisani (PLD 1998 Quetta 1) is a judgment of a division bench of this court wherein an interlocutory order passed by the Election Tribunal, Balochistan, that had allowed the recounting of the valid votes of the entire constituency on the application of Mr. Lashkari Raisani, was assailed. The question arose whether a constitutional petition can be filed. The learned bench held that an appeal before the Supreme Court could be filed against the impugned order therefore it did not entertain the petition. (9) The aforesaid order of the Balochistan High Court was assailed before the Hon'ble Supreme Court, reported as Muhammad Asim Kurd alias Gailoo v. Lashkari Khan Raisani (1998 SCMR 1597), but the civil petition for leave to appeal was dismissed and leave was refused. Justice lrshad Hasan Khan, who headed the two member bench and authored the judgment, held that:
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"...The final order is yet to be passed by the Tribunal seized of the Election Petition filed by respondent No.1 against the petitioner. Admittedly, appeal against the final order of the Tribunal lies before this Court. The petitioner shall also be at liberty to file objections to the report of the Commission on recounting of votes. Clearly, if such objections are raised the same shall be considered by the Tribunal justly, fairly and in accordance with law, after providing an opportunity of being heard to the parties and allowing them to lead evidence in support of their respective contentions, if so desired, before final disposal of the Election Petition" [at pages 1602-1603 C]. ' The Hon'ble Supreme Court however did not set aside the order of the divisional bench of this court that had been assailed before it. (10) Muhammad Asim Kurd alias Gailoo v Lashkari Khan Raisani (1999 SCMR 689). The facts of this case were that Mr. Kurd also filed an application for recounting the votes of Mr. Raisani but the application was dismissed by the Election Tribunal, and against such an interlocutory order he filed an appeal before the Supreme Court under subsection (3) of section 67 of the Act. However, the Assistant Registrar of the Supreme Court raised an objection, that, an appeal was not competent against an interlocutory order of the Election Tribunal. The Hon'ble Supreme Court made it clear that the view of the divisional bench of the High Court (above), holding that an appeal to the Supreme Court can be filed against an interlocutory order, was not correct. The fact that this judgment was rendered by three learned judges (as opposed to two learned judges in 1998 SCMR 1597) concludes the matter that the Supreme Court will not entertain appeals against interlocutory orders. The reason that prevailed with the court in holding that appeals against interlocutory orders were not competent was that election disputes must be attended to and decided promptly. In this regard Chief Justice Ajmal Mian, who authored the judgment, held: "If we were to hold that an appeal under subsection (3) of section 67 of the Act would be competent against an interlocutory order of the Election Tribunal, that will defeat the object of the law-makers for enacting section (IA) of section 67 of the Act" [at pages 696-697 B]. ' That after reproducing section 67 of the Act Justice Ajmal Mian held, that: "6. The perusal of the above-quoted section 67 of the Act indicates that the heading of the section is 'decision of the Tribunal' appearing before subsection (1) of the above-quoted section. Subsection (I) thereof provides that the Tribunal may upon the conclusion of the trial of an election petition, make an order of the nature referred to in clauses (a), (b), (c) and (d) of the above subsection (1) quoted hereinabove. ' It may further be noticed that newly-added subsection (I-A) lays down that the trial of the election petition shall proceed day to day and the decision thereof shall be taken by the Tribunal within .Four months from the date of its receipt from the Commissioner. It may also be noticed that the proviso to the above newly-added subsection (1-A) reinforces the intention of the law-makers that the election petition be disposed of within the above statutory period of four months by providing that where the delay in the proceedings is occasioned by any act or candidate may be declared to have ceased to perform the function of his office either till the conclusion of the proceedings, or for such period as the Commissioner may direct. ' It may further be pointed out that subsection (2) of above section 67 provides that save as provided in subsection (3), the decision of the Tribunal on an election petition shall be final. ' It may also be noticed that subsection (3) of above section 67 lays down that any person aggrieved by a decision of the Tribunal may, within thirty days of the announcement of the decision, appeal to the Supreme Court and the decision of the Supreme Court on such appeal shall be final. It may be pointed out that Explanation to above subsection (3) provides that in the above subsection decision of the Tribunal shall not be deemed to include an order made by the Commission in the exercise of its powers under section 103-AA of the Act" [at page 693A].
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(11) Anjum Farooq Paracha v. Chief Election Commissioner of Pakistan (2002 YLR 3283) is a judgment of Justice Muhammad Nawaz Abbasi, as a single member bench of the Lahore High Court. The learned judge held that it is an established principle of law that if no forum is provided for the adjudication of a dispute relating to an election or no alternate remedy is provided under the relevant law a constitutional petition for judicial review of the matter can be filed under Article 199 of the Constitution of Pakistan (at page 3296 A). ' However, the case was in respect of the local council elections held under the Punjab Local Government Rules, 2000 whereunder there was no provision of an appeal. In contrast the Act provides for an appeal to the Supreme Court under subsection (3) of section 67 of the Act. (12) Muhammad Latif v. Election Tribunal (2003 CLC 1034) is a judgment of a single judge of the Lahore High Court. This case pertained to the elections to a union council (UC-3, Behwal, Tehsil Gujjar Khan, District Rawalpindi). The Election Tribunal allowed an application for recounting and, due to difference of votes emerging as a result of the recounting, the election petition was allowed. The petitioner filed a constitutional petition, which was accepted and the matter was remanded to the Election Tribunal to summon the election record to conduct recount in the prescribed manner. ' The applicable law governing the said elections has not been cited in the…
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