Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD KHAN VS Respondent: OBAIDULLAH JAN BABAT and others
Court Name: Supreme Court of Pakistan Judge(s): Khilji Arif Hussain, Anwar Zaheer Jamali, Sh. Azmat Saeed Title: MUHAMMAD KHAN vs OBAIDULLAH JAN BABAT and others Case No.: Civil Appeal No,384 of 2014 Date of Judgment:2016-03-02 Reported As: 2016 P.S.C. 846, PLD 2016 Supreme Court 492 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' SH. AZMAT SAEED, J.--This Civil Appeal under Section 67(3) of the Representation of People Act, 1976 (ROPA) is directed against the Order dated 07.02.2014, whereby an Election Petition bearing No,1 of 2013, filed by the present Appellant, was dismissed. 2. Brief facts necessary for adjudication of the us at hand are that the General Elections were scheduled for the 11th of May, 2013, including for the Provisional Assembly of the Province of Balochistan. The Appellant and the present Respondents filed their respective Nomination Papers to contest the Elections from Constituency PB-16 Loralai-II. It appears from the record that the Appellant filed two separate Nomination Papers to contest the said Elections, however, both were rejected by the Returning Officer vide Order dated 07.04.2013, holding the Appellant disqualified to contest the said Elections. Aggrieved, the Appellant filed two Appeals i.e, Election Appeals Nos.21 and 25 of 2013 before the learned Election Tribunal, which failed to find favour and were dismissed vide Order dated 17.04.2013. The said Order dated 17.04.2013, was challenged through Constitutional Petitions Nos.286 and 287 of 2013 before the learned High Court of Balochistan, which too were dismissed vide Order dated 19.04.2013. 3. The Appellant challenged the above-said Order dated 19.04.2013 of the learned High Court of Balochistan by invoking the appellate jurisdiction of this Court through two separate Civil Petitions for Leave to Appeals Nos.520 and 521 of 2013. 4. The aforesaid two Civil Petitions for Leave to Appeal came up for hearing before this Court on 25.04.2013 when CPLA No,521 of 2013 was not pressed and was disposed of; and leave to appeal was granted in CPLA No,520 of 2013. The said CPLA No,520 was accompanied by a Civil Misc.
---
## Page 2
Application bearing No,2348 of 2013, seeking interim relief thereupon, the following Order was passed: "Notice for a date during next month. Meanwhile operation of the impugned judgment shall remain suspended." 5. In the above backdrop, the Appellant was permitted to contest the elections along with the Respondents and after the poll Respondent No,1 was declared and notified as a Returned Candidate while the Appellant was runner up. 6. The Civil Appeal No,444 of 2013 arising out of Civil Petition for Leave to Appeal No,520 of 2013 wherein leave to appeal has been granted vide Order dated 25.04.2013 referred to above, came up for hearing before this Court on 06.11.2013. 7. In the meanwhile, the Appellant had already challenged the elections of Respondent No,1 through an Election Petition under Section 52 of the ROPA, which was pending adjudication before the learned Election Tribunal. On 20.12.2013, Respondent No,1 filed an application seeking dismissal of the Election Petition filed by the Appellant, inter alia, contending that the said Election Petition was not maintainable as the Appellant had no locus standi to maintain such Election Petition as he (the Appellant) was not a "validly nominated candidate" for the purposes of Section 52 of ROPA. The said contentions found favour with the learned Election Tribunal and the Election Petition filed by the Appellant was dismissed vide Order impugned dated 07.02.2014. 8. It is contended by Mr. Muhammad Akram Shaikh, learned Sr. ASC that the Appellant was not disqualified from contesting the elections as no Court of competent jurisdiction had returned a finding against the Appellant, in this behalf, hence his Nomination Papers could not have been legally rejected. In the above backdrop, after the illegal rejection of the two Nomination Papers filed by the Appellant, the matter was agitated right up to this Court by filing Civil Petitions for Leave .To Appeals Nos.520 and 521 of 2013. The Appellant, it is contended, had filed one Nomination Paper to contest the Elections as an Independent Candidate while the other Nomination Paper had been filed as a Candidate of a Political Party. Since the Appellant decided to contest the Elections on the ticket of a Political Party, the Civil Petition for Leave to Appeal arising from the Order rejecting the said Nomination Paper was not pressed. However, leave was granted in the Civil Petition pertaining to the matter of rejection of the Nomination Paper of the Appellant filed as a Candidate of a Political Party. Interim relief was granted by this Court to the Appellant to contest the Elections. The afore-said is evident from the Order of this Court dated 25.04.2013. Pursuant to the said Order, the Appellant contested the Elections. After the Elections had been held the Appellant withdrew the pending proceedings before this Court without prejudice to his rights as is apparent from the Order dated 06.11.2013, hence, by operation of law, the Appellant was clothed with the locus standi to file an Election Petition under Section 52 of ROPA, 1976 and such Election Petition could not be summarily rejected by the learned Election Tribunal vide Order impugned, which is, therefore, not sustainable in law. 9. In the alternative, it is further contended by the learned counsel for the Appellant that in section 2 of ROPA, 1976, the various terms employed in the said Statute have been defined. Such words and expressions defined in the said provision include candidate", validly nominatd candidate", contesting candidate" and "returned candidate". Such expressions have been defined in the Statutes in contradistinction to each other. In section 52 of ROPA, 1976 a "candidate" can file an Election Petition, and the expression "candidate" has been defined in Section 2 subsection (iv) as "means a person proposed as a candidate for, or seeking election as a member". The learned counsel also referred to Section 2 subsection (xxvi) of ROPA, 1976, wherein "validly nominated candidate" has been defined to "mean a candidate whose nomination has been accepted". Thus, even if it is presumed that the Appellant was not a "validly nominated candidate" in as much as his Nomination Papers were legally rejected, he the Appellant, in law could file an Election Petition in
---
## Page 3
terms of Section 52 of ROPA, 1976, as it is a settled law that the words and expressions used in a Statute or any provision thereof must necessarily be interpreted in conformity with the definitions given in the Interpretation Clause of such Statute. It is added, had the intention of the law been to limit the scope of Section 52 of ROPA, 1976, to the Election Petitions being filed only by validly nominated candidates or by the contesting candidates, it is such expression, which would had been employed in the said provision (Section 52 of ROPA, 1976). Therefore, the learned Election Tribunal has misconstrued, misinterpreted and misapplied the law by way of the impugned judgment, which is consequently not tenable in law and liable to be set aside. 10. The learned counsel further contended that the entire election process was tainted and both, the Appellant as well as the Contesting Respondents had expressed their dissatisfaction and separately sought verification of the thumb impressions on the counterfoils of the Ballot Papers through National Database and Registration Authority (NADRA). The learned counsel also pointed out that the number of rejected votes (900) exceeded the votes separating the Appellant from the Contesting Respondents in terms of notified result thereby denuding such result of credibility and authenticity. It was urged that the impugned judgment be set aside and the Election Petition filed by the Appellant be decided on merits. In support of his contentions, the learned counsel relied upon the judgments, reported as (1) Raja Aftab Ahmad. Khan v. Muhammad Ajmal and another (PLD 2010 SC 1066), (2) Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), (3) Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396), (4) Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others (1994 SCM R 1299), (5) Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCM R 1736) and (6) Naeem Hussain Chattha v. Tawakkal Ullah and another (1997 CLC 192). 11. The learned Sr. ASC for the Contesting Respondents controverted the contentions raised on behalf of the Appellant by contending that pursuant to the General Elections held in 2008, it was discovered that the Appellant had utilized fake and fraudulent educational testimonials and the Election Commission of Pakistan (ECP) concluded that the Appellant was disqualified and directed the initiation of criminal proceedings against him. In view of the afore-said determination of the ECP, both the Nomination Papers filed by the Appellant for the Elections of 2013 were rejected on the ground that the Appellant was disqualified from contesting the Elections. The Appellant invoked the jurisdiction of this Court through two separate Civil Petitions for Leave to Appeal i.e, CPLAs Nos.520 and 521 of 2013. One of such Petition was withdrawn as is evident from the Order of this Court datcd 25.04.2011. Thus, the Order of the Returning Officer holding the Appellant to be disqualified and rejecting his Nomination Papers in this behalf attained finality. Therefore, it was contended, both in fact and in law, the Appellant was disqualified from contesting the Elections in question held on the 11th of May, 2013. Furthermore, with reference to the Civil Petition for Leave to Appeal which was not withdrawn by the Appellant and interim Order was passed merely suspending the operation of the judgment impugned therein i.e, the judgment passed by the learned High Court, dismissing the Constitutional Petition filed by the Appellant. The legal consequence of such suspension would at best result in the revival of the Order of the Returning Officer rejecting the Nomination Papers of the Appellant. Thus, despite the Order of this Court dated 25.04.2013, purportedly granting interim relief, the Appellant was not entitled to contest the Elections and the ECP misconstrued the said Order by allowing the Appellant to participate in the electoral process. Consequently, the very candidature of the Appellant was non-est in the eye of law who, therefore, had no locus standi to file an Election Petition in terms of Section 52 of ROPA, 1976, as has been correctly held by the learned Election Tribunal by way of the impugned judgment. After the Elections were held and Respondent No,1 was declared and notified as a Returned Candidate, the Appellant withdrew his Civil Petition for Leave to Appeal without prejudice only to the matter pending before the ECP pertaining to the Elections of
---
## Page 4
2008, as is apparent from the Order dated 06.11.2013. As a consequence of such withdrawal, there can be no manner of doubt that the question of disqualification of the Appellant and rejection of his Nomination Papers became a past and closed transaction. Furthermore, had the Appellant wished to achieve the locus standi to file an Election Petition under Section 52 of ROPA, 1976, he should have pressed the Civil Petition for Leave to Appeal before this Court and sought its adjudication on merits. On account of the aforesaid withdrawal, the Appellant it was contended lost not only the nascent status to file an Election Petition under Section 52 of ROPA, 1976, but was also estopped in law from doing so and such Election Petition filed by the Appellant was not maintainable and rightly dismissed. 12. The learned counsel for the Respondents drew the attention of the Court to the various provisions of ROPA, 1976, in an effort 'to establish that during the electoral process a person seeking to contest the Elections attains various legal status separately and distinctly referred to in the various provisions of the law. A person who is proposed is referred to as a "candidate", if Nomination Papers filed are accepted he attains the status of a "validly nominated candidate", and if such validly nominated candidate does not withdraw or retire from elections, such person is referred to as a "contesting candidate". During the poll and thereafter, the only persons recognized by law and available in the field are "Contesting Candidates" while the others i.e, persons whose Nomination Papers have been rejected or have been withdrawn or who have retired from the Elections disappear from the scene and it is only such Contesting Candidates who can challenge the Elections by filing an Election Petition under Section 52 of ROPA, 1976, as has been held by way of the impugned judgment. It was added that all expressions defined in Section 2 of ROPA, 1976, when employed in the succeeding provisions can only be assigned the meaning given in Section 2 of ROPA, 1976, if there is nothing repugnant to the context in which such expressions are used in the other provisions of ROPA, 1976. Therefore, the expression "candidate" when used in Section 52 of ROPA, 1976, means a Contesting Candidate and not a Candidate whose Nomination Papers have been rejected and as a consequence thereof, has exited from the electoral process. To interpret Section 52 of ROPA, 1976, as is being canvassed by the learned counsel for the Appellant, it is contended, would offend against the scheme of the law and may also result in absurdity. The learned counsel further contended that each provision of law must be given a purposive rather than a literal interpretation as is the settled law and when examined purposively Section 52 of ROPA, 1976, offers only one interpretation i.e, that the Election Petition can only be filed by a Contesting Candidate. 13. The learned counsel further contended that this Court had already held that a person whose Nomination Papers have been rejected, has no remedy before an Election Tribunal, after the Elections. Furthermore, if the intention of the law had been to permit persons other than the Contesting Candidates to file Election Petitions after the Elections, express words, in this behalf, would have been employed as has been done in the Indian Representation of People Act, 1951. Consequently, the judgment of the learned Election Tribunal is in accordance with the law and should not be interfered with. In support of his contentions, the learned counsel referred to various treaties on Interpretation of Statutes and relied upon the judgments, reported as (1) Jaffar Khan v. Chief Election Commissioner, Pakistan and others [PLD 1965 (W.P.) Peshawar 245], (2) Ghulam Mustafa Jatoi V. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others (1994 SCM R 1299), (3) Raja Abdul Qayyum v. Ch. Latif Akbar, Advocate and 2 others (1994 CLC 2041), (4) Harbhajan Singh v. Press Council of India and others (AIR 2002 SC 1351), (5) Charan La! Sahu v. Shri Fakruddin All Ahmed and others (AIR 1975 SC 1288), (6) Amin La! v. Hunna Mal (AIR 1965 SC 1243) and (7) Kanai La! Sur v. Paramnidhi Sadhukhan (AIR 1957 SC 907). 14. Heard. Available record perused.
---
## Page 5
15. The real matter in issue which goes to the heart of the controversy involved in the instant case is regarding the person who can file and maintain an Election Petition under Section 52 (1) of ROPA, 1976, which reads as follows: "No election shall be called in question except by an election petition made by a candidate for that election (hereinafter in this Chapter referred to as the petitioner) (Emphasis supplied) ' The expression "candidate" has been defined in Section 2 subsection (iv) as follows: "means a person proposed as a candidate for, or seeking election as a member;" ' The said Section 2 also defines the expression "contesting candidate" in sub section (viii)' in the following terms: "means a validly nominated candidate who has not withdrawn his candidature;" ' A "validly nominated candidate" is defined in Section 2 subsection (xxvi) as follows: "means a candidate whose nomination has been accepted;" ' A "returned candidate" has been defined in Section 2 subsection (xxi) as follows: "means a candidate who has been declared elected as a member under this Act;" 16. In pith and substance, it is the case of the Appellant that in terms of Section 52 of ROPA, 1976, an Election can be called into question by a candidate. The expression "candidate" has been defined by Section 2 subsection (iv), reproduced hereinabove and an expression defined in a statute must be given only the said meaning. Had the intention of the Legislature been to the contrary any of the other defined terms i.e, "validly nominated candidate" or "contesting candidate" would have been employed in Section 52 of ROPA, 1976. 17. It may be noticed that the definitions enumerated in the various clauses of Section 2 of ROPA, 1976, are prefaced with the rider "In this Act unless there is anything repugnant in the subject or context". 18. With regard to construing the true import and effect of an Interpretation Clause in a Statutory Instrument, the Privy Council in its judgment, reported as Indian Immigration Trust Board of Natal v. Govindasamy (AIR 1920 Privy Council 114) held as follows: "Now, when the interpretation clause in a statute says that such and such an expression shall include so and so, a Court in construing a statute is bound to give effect to the direction unless it can be shown that the context of the particular passage where the expression is used shows clearly that the meaning is not in this place to be given effect to, or unless there can be alleged some general reasons of weight why the interpretation clause is to be denied its application...... ' In the judgment of this Court, reported as The Bank of Bahawalpur Ltd. Through its Manager v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others (PLD 1977 SC 164), in the minority view of Muhammad Afzal Cheema, J. By relying upon the aforesaid judgment of the Privy Council, it was observed as follows: "Although normally an expression if defined in a Statute has to be given the same meanings wherever it occurs therein, yet there is ample authority for the principle of interpretation that a definition of a term in a Statute is merely declaratory in nature and should not be unnecessarily inflicted where it does not fit in with the subject and context and might lead to anomalies and absurd results. Further strength is lent to this justifiable invocation of the above principle by the express qualification or exception with which section 2 was prefaced, namely, "unless there is something repugnant in the subject or context". From this, it is abundantly clear that the definition of "house" or of "possession" like any other definitions contained in section 2 would apply only where it is in consonance and fits in with the subject and the context and not otherwise. The repugnancy is only too obvious and incapable of resolution on any other reasonable hypothesis. ..." ' Subsequently, in a later judgment, the aforesaid minority view was endorsed and followed by this Court in the case, reported as Iftikhar Ahmad and others v. President, National Bank of Pakistan and others (PLD 1988 SC 53) in the following terms:
---
## Page 6
"10. It is difficult to subscribe to the view taken by the learned Judges in the High Courts. No doubt, the award given by the Wage Commission is not included in the definition of the term 'award' as given in section 2(ii) of the Ordinance, but then as the governing clause of section 2 itself states the definitions given therein are to be read subject to anything repugnant in the context in which the defined terms occur. Apart from that, as held by this Court in Bank of Bahawalpur v. Chief Settlement and Rehabilitation Commissioner PLD 1977 SC 164 that although normally an expression if defined in a Statute has to be given the same meaning wherever it occurs therein, yet there is ample authority for the principle of interpretation, that a definition of a term in a Statute is merely declaratory in nature and should not be unnecessarily inflicted where it does not fit in with the subject or context. ..." 19. The matter again came up for consideration before this Court in the case reported as Syed Muhammad Haider Zaidi and others v. Abdul Hafeez and others (1991 SCM R 1699), wherein it was held as follows: "18. We may observe that a definition clause in a statute is of a declaratory nature though normally the definitions provided for in the definition clauses are to be read into the provisions of the Act while interpreting the defined terms/words, but if the contents of the provisions of the Act indicate otherwise, the definition clause cannot override a main provision of the statute. In the present case, section 2 makes it explicit by providing that "unless there is anything repugnant in the subject or context"." ' In the aforesaid judgment, the following extracts from various Treatise on Interpretation Statutes were quoted with approval: Craies on Statute Law Seventh Edition: ' It is a sound rule of construction, said Cleasby B. In Courtauld v. Legh, (1869) L.R. 4 Ex. 126, 130. Lewise v. Cattle (1938) 2 K.B. 454, 457. R. v. Belfast JJ. (1947) N.I. 191) "to give the same meaning to the same words occurring in different parts of an Act of Parliament". The presumption that the same words are used in the same meaning is however very slight and it is proper, "if sufficient reasons can be assigned, to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act. (Per Turner L.J. In Re National Savings Bank (1866). L.R. 1 Ch. App. 547, 550). For instance, if, as Fry L.J. Said in Re Moody and Yates' Contract, (1885) 30 Ch. D. 344, 349) "a word is used inaccurately in one section of a statute, it must not be assumed to have been used inaccurately when it occurs in another section of the same statute". And, in fact, a word may be used in two different senses in the same section of an Act. (Maddox v. Storer (1963) 1 Q.B. 451). "It is obvious", said North J. In Re Smith, Green v. Smith, (1883) 24 Ch. D. 672, 678) "that the word 'property' is used in section 54 of the repealed Bankruptcy Act, 1869 in two totally different senses". The Court said, in Doe d. Angell v. Angell (1846) 9 Q.B. 328). "Considerable difficulty arises in the construction of the Real Property Limitation Act, 1833 by reason of the word 'rent' being used in two different senses throughout viz, in the sense of a rent charged upon land, and of rent reserved under a lease". Similarly, in R. v. Allen (1872) 1 C.C.R. 367, 374) the Court held, as to the word "marry" in section 57 of the Offences against the Person Act, 1861 (which enacts that "whosoever, being married, shall marry any other person during the life of the former husband or wife shall be guilty of felony") that "it is at once self-evident that the proposition that the same effect must be given to the term 'marry' in both parts of the sentence cannot possibly hold good." "Crawford on Interpretation of Laws 1940 Edition ' Strictly speaking, construction and interpretation are not the same (U.S. v. Wiltberger, 5 Wheat. (U.S.) 76, 5 L. Ed. 37), although the two terms are often used interchangeably (U.S. v. Keitzel, 211 U.S. 370, 53 L. Ed. 320, 29 S.Ct.123). Construction however, to be technically correct, is the drawing of conclusions with respect to subjects that are beyond the direct expression of the text, from elements known and given in the text (U.S. v. Farenholt, 206 U.S. 226, 51 L,Ed. 1036, 27 S. Ct.123; People
---
## Page 7
v. Comrs. Of Taxes, 95 N.Y. 554), while interpretation is the process of discovering the true meaning of the language used (Bloomer v. Todd, 3 Wash. T. 599, 19 Pac. 135, 1 L.R.A. 111). Thus, the Court will resort to interpretation when it endeavors to ascertain the meaning of a word found in a statute, which when considered with the other words in the statute, may reveal a meaning different from that is apparent when the word is considered abstractly or when given its usual meaning (Anderson v. City of Hattiesburg, 131 Miss. Miss. 216, 94 So. 163). But when the Court goes beyond the language of the statute and seeks the assistance of extrinsic aids in order to determine whether a given case falls within the statute, it resorts to construction (Union Trust Co. v. McGinty, 212 Mass. 205, 98 N.E. 679). The process to be used in any given case will depend upon the nature of the problem presented. And, as is apparent, both processes may be used in seeking the legislative intent in a given statute. If the legislative intent is not clear after the completion of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.