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Petitioner: Syed GHAZI GULAB JAMAL VS Respondent: PRESIDING OFFICER, ELECTION TRIBUNAL, JUDGMENT
Court Name: Peshawar High Court Judge(s): Mazhar Alam Khan Miankhel, Malik Manzoor Hussain Title:Syed GHAZI GULAB JAMAL vs PRESIDING OFFICER, ELECTION TRIBUNAL,
JUDGMENT
Reported As: 2015 CLC 953 Result: Order accordingly Judgment JUDGMENT ' MAZHAR ALAM KHAN MIANKHEL, J.--- By this single judgment, vre propose to decide Writ Petitions No,2032-P of 2013 (Syed Ghazi Gulab Jamal v. Presiding Officer, Election Tribunal etc.), 2846-P of 2013 (Behram Khan v. Sahibzada Sana Ullah etc.), 3369-P of 2013 'Muhammad Bashir Khan vs. Election Tribunal etc.) and 28-P of 2014 zsir Khan v. Ameer Haider Khan Hoti etc.) as common questions of ldw and facts are involved in all these writ petitions. 2. Through Writ Petition No,2032-P of 2013, the petitioner namely, Syed Ghazi Gulab Jamal, has asked for the issuance of an appropriate writ, declaring that the judgment/order dated 12-7-2013 of the learned Election Tribunal, Peshawar, whereby, his application for the dismissal of the Election Petition of Javed Hussain, respondent No,2 was dismissed and it was also held that the rules, notified on 16th March, 1985 are directory and not mandatory, being nullity in the eye of law is of no effect whatsoever. He has also asked for the issuance of an appropriate writ declaring that Rules, especially Rule 1, notified on 16-3-1985, promulgated under subsection (1) of section 62 of the Representation of the People Act, 1976 (herein after called as "the Act'), are mandatory and not directory and, as such, the decision, so reached, is violative of the settled principles of law, the Election Petition of the respondent is liable to be dismissed, as provided under section 63 of the Act, ibid. 3. Through Writ Petition No,2846-P of 2013, the petitioner namely, Mehram Khan, has asked for the issuance of an appropriate writ, declaring that the judgment / order dated 29-10-2013 of the learned Election Tribunal, Peshawar, whereby, his application for the dismissal of the Election Petition of Sahibzada Sana Ullah, respondent No,1 was dismissed, being nullity in the eye of law and
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also in violation of Articles 189 and 201 of the Constitution of Islamic Republic of Pakistan, 1973, is of no effect whatsoever: 4. Through Writ Petition No,3369-P of 2013, the petitioner namely, Muhammad Bashir Khan, has asked for the issuance of an appropriate writ, declaring that the orders dated 12-12-2013 and 18-12- 2013 of the learned Election Tribunal, Peshawar, whereby, his applications for summoning of witnesses were dismissed, being nullity in the eye of law are of no effect whatsoever. He has also asked for the issuance of an appropriate writ directing the learned Tribunal to act in accordance with law and summon the official witnesses, as mentioned in the list of official witnesses. 5. Through Writ Petition No,28-P of 2014, the petitioner namely, Nasir Khan, has asked for the issuance of an appropriate writ, declaring that the orders dated 10-12-2013 and 24-12-2013 of the learned Election Tribunal, Peshawar, whereby, his two applications for providing him an opportunity to examine official witnesses as well as requisitioning of record under section 76-A of the Act ibid were dismissed, being nullity in the eye of law are of no effect whatsoever. He has also asked for the issuance of an appropriate writ directing the learned Election Tribunal to decide his application dated 21-12-2013 one way or the other. 6. All the learned counsel for the petitioners herein being mindful of the fact regarding maintainability of all these writ 'petitions, at the very outset contended that, no doubt, under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973, this Court, in general, can't interfere in the election matters but when the judgments/orders, impugned herein, apparently, illegal, void and without jurisdiction, this Court has the ample powers to interfere therewith while exercising its constitutional jurisdiction. The learned counsel in Writ Petitions Nos.2032-P of 2013 and 2846-P of 2013 further contended that since provisions of sections 54 and 55 of the Act, ibid have been violated on this score alone, the election petitions of the respondents were liable to be dismissed under section 63 of the Act, ibid. The learned Counsel further contended that the learned Election Tribunal at Abbottabad while facing with similar situation, where the Election Petition bearing No,43 of 2013 was not supported by the material and was not in accordance with section 55(1)(b) of the Act, straightaway, dismissed it vide judgment dated 10-7-2013, therefore, the learned Election Tribunal at Peshawar was also required to dismiss the election petitions of the respondents instead of dismissing the applications of the petitioners. The learned counsel in Writ Petitions Nos.3369-P of 2013 and 28-P of 2014 contended that when the learned Election Tribunal was given powers of a Civil Court trying a suit under the Civil Procedure Code, 1908 also acts under the Civil Procedure Code, 1908, they were legally entitled either to summon the official witnesses or to examine them or to make request for requisitioning any kind of the record, relevant to the lis before the learned Tribunal but the learned Tribunal while declining their request not only overstretched its jurisdiction but also stampeding the law in vogue. The learned counsel in all the writ petitions by summing up their arguments lastly contended that since the judgments/orders, impugned herein, are the sheer example of misinterpretation of the law/rules, all of them are liable to be set aside.
7. As against that the learned counsel appearing on behalf of respondents in all the writ petitions, at the very start, raised objection on the maintainability of these writ petitions and by tackling the arguments of the learned counsel for the petitioners, in this regard, vehemently argued that the judgments/orders, impugned herein, are interim in nature, which have been passed during pendency of the main election petitions, therefore, this Court while hearing a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can't adjudicate upon the matter and these writ petitions are required to be dismissed on this score alone. The learned counsel further argued that in all the petitions, mostly disputed questions of facts are involved, which can't be resolved without recording of evidence, which is not the domain of this Court while exercising its
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constitutional jurisdiction. The learned counsel by referring to a judgment of the Circuit Bench of this Court, at Abbottabad, rendered in Writ Petition No,730-A of 2013, decided on 3-10-2013 next argued that since a Division Bench of this Court while hearing an identical matter, dismissed the same on the ground of maintainability, this Court, in the given circumstances, is required to follow the same, otherwise, the matter is liable to be sent to a larger Bench for decision. The learned counsel next argued that the petitioners instead of taking shelter of technicalities, were required to face the proceedings before the learned Election Tribunal under the law and the intention of the petitioners by filing such like frivolous petitions is nothing but to prolong the lis before the Forum below, therefore, these writ petitions are liable to be dismissed besides being not maintainable. 8. We have gone through the record carefully and considered the submissions made by the learned counsel for both the parties. 9. The record would reveal in the General Election, 2013, Syed Ghazi Gulab Jamal (petitioner in W.P.No,2032-P of 2013) and Behram Khan (petitioner in W.P.No,2846-P of 2013) herein along with respondents therein and others contested for the memberships of the National Assembly of Pakistan as well as Provincial Assembly from the constituencies NA-39 (Tribal Area-IV) and PK-93 (Upper Dir) respectively, in which, the petitioners herein were declared as returned candidates. The respondents, feeling aggrieved, filed Election Petitions Nos.40 of 2013 and 106 of 2013 before the Election Commission of Pakistan, which were later on transmitted to Election Tribunal, constituted for the Peshawar Division and FATA. When the petitioners didn't receive the documents/annexures with the petitions and the election petitions of the respondents were not under the relevant provisions of law, they, before the Election Tribunal, submitted separate applications for the dismissal of the election petitions of the respondents, which were later on dismissed vide judgments/orders, dated 12-7-2013 and 29-10-2013. Likewise, Muhammad Bashir Khan (petitioner in W.P.No,3369-P of 2013) and Nasir Khan (petitioner in W.P.No,28-P of 2014), being runners up of the aforesaid general elections, preferred election petitions before the Election Commission of Pakistan, against their respective returned candidates, who are also respondents herein. During the pendency of these election petitions, the petitioners, through proper applications, requested the learned Election Tribunal for summoning some of the official witnesses as well as requisitioning of the relevant record but those applications were dismissed by the learned Tribunal vide judgments/orders dated 12-12-2013, 18-12-2013 and 10-12-2013,24-12-2013 respectively. Feeling aggrieved, the petitioners in all these writ petitions have approached this Court through these writ petitions. 10. Before we proceed ahead, it would be worthwhile to refer to the relevant section of the Representation of the People Act, 1976, which deals with election disputes and, as such, reads as under:--- ' Definition S.2(xi). Election Petition' means an election petition made under section 52; S.52. Election Petition.--- No election shall be called in question except by an election petition made by a candidate for that election (hereafter in this Chapter referred to as the petitioner). (2) An election petition shall be presented to the Commissioner within [forty-five days] of the publication in the official gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or sub-Treasury in favour of the Commissioner, under the prescribed head of account, as security for the costs of the petition, a sum of one thousand rupees. S.53 Presentation of petition.--- (1) An election petition shall be presented by a petitioner and shall be deemed to have been presented--- (a) When it is delivered in person to the Secretary to the Commission or to such other officer as may be appointed by the Commission in that behalf,
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(i) by the petitioner; or (ii) by a person authorized in writing in this behalf by the petitioner, or (8) When delivered by registered post to the Secretary to the Commission or to such other officer as aforesaid. (2) An election petition, if sent by registered post, shall be deemed to have been presented in time if it is posted within the period specified in subsection (2) of section 52. S.54. Parties to the petition.--- The petitioner shall join as respondents to his election petition--- (a) all contesting candidates; and (b) any other candidate against whom any allegation of any corrupt or illegal practice is made and shall serve personally or by registered post on each such respondent a copy of the petition. S.55. Contents of petition.--- (1) Every election petition shall contain--- (a) A precise statement of the material facts on which the petitioner relies; (b) full particulars.Of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and (c) the relief claimed by the petitioner. (2) A petitioner may claim as relief any of the following declarations, namely:- (a) that the election of the returned candidate is void; (b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or (c) that the election as a whole is void. (3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings.
11. It is also worthwhile to reproduce herein below relevant section, which deals with dismissal of the election petition, which reads as under: ---
S.63. Dismissal of petition during trial. --- The Tribunal shall dismiss an election petition, if-- (a) the provision of section 54 or section 55 have not been complied with; or (b) if the petitioner fails to make the further deposit required under subsection (4) of section 62.
12. It is also necessary to produce herein below the relevant section, which deals with the decision of the Tribunal and reads as under:---
S.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 (d) declaring the election as a whole to be void. [1-A)................................................................... Provided................................................................................ (2)
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[(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 and the decision of the Supreme Court on such appeal shall be final. Explanation ........................................................
13. Reproduction of Section 76-A of the Act ibid. Is also relevant, which reads as under:---
[76-A. Additional powers of Election Tribunal.-- (1) If an Election Tribunal, on the basis of any material coming to its knowledge from any source or information laid before it, is of the opinion that a returned candidate was a defaulter of loan, taxes, government dues or utility charges, or has submitted a false or incorrect declaration regarding payment of loans, taxes, government dues or utility charges, or has submitted a false or incorrect statement of assets and liabilities of his own, his spouse or his dependents, under section 12, it may, on its own motion or otherwise, call upon such candidate to show cause why his election should not be declared void and, if it is satisfied that such candidate is a defaulter or has submitted false or incorrect declaration or statement, as aforesaid, it may, without prejudice to any order that may be, or has been made on an election petition, or any other punishment, penalty or liability, which such candidate may have incurred under this Act or under any other law for the time being in force make an order--- (a) declaring the election of the returned candidate to be void: and (b) declaring any other contesting candidate to have been duly elected. (2) If on examining the material or information referred to in subsection (1), an Election Tribunal finds that there appear reasonable grounds for believing that a returned candidate is a defaulter or has submitted a false or incorrect declaration referred to in subsection (1) it may, pending decision of the motion under subsection (1), direct that the result of the returned candidate shall not be published in the official Gazette. (3) No order under subsection (1) or subsection (2) shall be made unless the returned candidate is provided an opportunity of being heard.]
14. It is also more relevant to reproduce herein below the relevant rules, notified on 16-3-1985, which read as under:---
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 petition:--- (1) Every election petition shall be filed with the Secretary, Election Commission of Pakistan, 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 the petition and the attached documents and the affidavits annexed to the petition have been supplied to the respondents. (2) . (3) The respondent shall upon the receipt of notice of the petition from the petitioner within 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 defence. (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 (and the trial of election petitions shall proceed on day to day basis). (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
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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) (8) 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. (9) 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 ground for the purpose of delaying the proceedings or defeating the ends of justice. (10) Relief. 15. First of all, we would like to meet the question of maintainability of the instant writ petitions, whether this Court has the jurisdiction to entertain these petitions, arising out of the judgments/ orders of the Election Tribunal, rendered during pendency of elections petitions. Section 67 of the Act, ibid. Clearly provides the mechanism of filing of an appeal but that would only be in the circumstances, when a party is aggrieved from the final decision of the Election Tribunal in the main lis/election petition as provided in section 67(1) of the Act ibid. Perusal of the entire Act of 1976 and the rules, notified on 16-3-1985 would make it clear that no such remedy of appeal/review or revision has been provided, if during pendency of an election petition, the Election Tribunal commits any illegality or acts in an unlawful manner without jurisdiction and prejudicial to the rights of a party. Then, the question would be as to whether the aggrieved person should be left remediless till the final decision in the main election petition is made and would question the same only in appeal with the final decision of main election petition and the law would be so rigid for him, not to allow him to seek his remedy there and then at the appropriate time. If no remedy is before a party at such a stage, it can create some legal problems also. If such a legal defect is not remedied at proper time, then it may call for remand of a case at appellate stage. Generally, writ petitions are filed and entertained against the interim/interlocutory orders' of the nature, which finally decide and interpret the law and rules on issue and, thus, attain the status of final orders or the Court/Tribunal during pendency of a matter, commits any illegality or unlawful exercise of jurisdiction detrimental to the rights of a party and the aggrieved party at that stage has no legal remedy available to him under the law, then that aggrieved party has naturally to look for the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as no one can be left remediless. ' The matters in hand relate to the General Elections, regulated by a special law and procedure. The election related matters can further be categorized into two different situations/stages. One from the start of elections process till notification of the returned candidates is made and by this, the election process gets completed. Case law on this aspect alone is very settled by now and during the process of election, if an aggrieved person is left remediless, he can invoke the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and there is plethora of case-law in this respect. Reference amongst many, can well be made to the cases of Ghulam Mustafa Jatoi v. Additional District and Sessions N.A.158, Naushero Feroze and others (1994 SCM R 1299); Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan, Islamabad and another (PLD 2005 SC 52); Faqir Abdul Majeed Khan v. District Returning Officer and others (2006 SCM R 1713); Intesar Hussain Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others (PLD 2008 SC 310 and 313) and Muhammad Hussain Babar v. Election Commission of Pakistan through Secretary and others (PLD 2008 SC 495). The second situation arises when the notification of returned candidate is made by the Election Commission and process of elections gets completed. Then anybody aggrieved of such results can question the election but only by way
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of an election petition under section 52 of the Act ibid and in view of the complete bar provided in Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 and section 52 of the Act ibid., elections can't be questioned before any other forum except by way of election petitions under section 52 of the Act ibid before the Election Tribunal. The ultimate decisions to be made by the Election Tribunals have also been specified in section 67(1) of the Act ibid and those decisions again could only be assailed before the Hon'ble Supreme Court of Pakistan only by way of an appeal under section 67(3) of the Act ibid. No other decision, during pendency and proceedings of election petition, is appealable. Similarly, no other remedy in the statute is provided to meet out the situation arising during pendency of election petition. It is the basic principle of law that no one should be left remediless. But the case law available with us has created some confusions, specially the judgments of this Court, referred to by the learned counsel for the respondents. The recent judgment of this Court of Abbottabad Bench, rendered in the case of Mian Ziaur Rehman v. Syed Ahmad Hussain Shah and others in Writ Petition No,73d-A of 2013. It was held that since the Election Tribunal having the exclusive jurisdiction is proceeding with the matter and this Court having no appellate or revisional or supervisory jurisdiction, hence, writ petition is not maintainable by placing reliance on the case of Aurangzaib v. Election Commission (PLD 2010 SC 35), while in the case of Attiqur Rehman v. Election Tribunal in Writ Petition 1001 of 2010, the Election Tribunal during the trial has summoned the official witnesses in the. Case. The returned candidate, respondent in the case, challenged that order. This writ petition was dismissed on the ground that being against interlocutory / interim order, not maintainable and the impugned order didn't suffer from any legal infirmity or jurisdictional defect. Both the cases above are distinguishable as in the former one, issue in hand has never been discussed while the ratio of the latter case is that there was no illegality or jurisdictional defect in the impugned order. In other words, Had it been so, then the Court would have assumed the jurisdiction. Yet in another judgment dated 1-3-2007 of this Court rendered in Writ Petition No,12 of 2007 in the case of Ilyas Ahmad Bilour v. Election Tribunal, it was held that writ petition against interim order was not maintainable and certain case law of the apex Court was referred to by explaining that the same were the final .Findings in appeal against the decision of election petition on merits and not against the interlocutory orders. So, in the given situation, the arguments of the learned counsel for the respondents that legally this Bench has to follow the earlier judgments of this Court or in case of contrary view, matter has to be referred to a third judge as laid down by the apex Court in the cases of The Province of East Pakistan v. Dr. Azizul Islam (PLD 1963 SC 296) and Multiline Associates v. Ardeshir Cowasjee (1995 SCM R 362), will have no force at all. ' We have also no hesitation in our minds that the election of a returned candidate can only be questioned by way of an election petition before the Election Tribunal, notified under the Act ibid…
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