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Petitioner: ALI GOHAR KHAN MAHAR VS Respondent: ELECTION COMMISSION OF PAKISTAN through Secretary and 2 others
Court Name: Sindh High Court Judge(s): Syed Muhammad Farooq Shah, Munib Akhtar, Syed Hassan Azhar Rizvi Title:ALI GOHAR KHAN MAHAR vs ELECTION COMMISSION OF PAKISTAN through
Secretary and 2 others Case No.: Constitutional Petition No,3248 of 2013 Date of Judgment:2014-01-03 Reported As: 2014 CLC 776 Result: Petition dismissed Judgment ORDER ' MUNIB AKHTAR, J.--- This petition arises out of the election to a National Assembly seat, NA-200, in the General Election of 2013. Both the petitioner and the respondent No,2 were contesting candidates and polled, respectively, the highest and second highest number of votes. The petitioner was accordingly declared the returned candidate by the Election Commission of Pakistan ("ECP", the respondent No,1). 2. Being aggrieved by the electoral result, the respondent No,2 has filed an election petition under section 52 of the Representation of the People Act, 1976 ("1976 Act"), before the concerned Election Tribunal ("Tribunal") constituted under section 57. The election petition is still pending adjudication. The petitioner is of course, the main contestant to the election petition. (For convenience, and in order to avoid confusion, 'the petitioner will hereinafter be referred to as the "returned candidate", and the respondent No,2 as the "contesting candidate".) The returned candidate filed an application under section 63 of the 1976 Act in terms of clause (a) thereof, seeking to have the election on the ground that it was not compliant with sections 54 and 55. By means of an order dated 1-8-2013, the. Tribunal was pleased to dismiss this application. The contesting candidate had filed a long list of witnesses along with his election petition, but in the event examined only two. He filed an application under section 64 of the 1976 Act read with section 151, C.P.C., seeking to have the ballot papers and counter-foils of the votes cast at 59 specified polling stations sent to NADRA for verification of the thumb-impressions, the allegation being that bogus votes had been cast at those polling stations in favour of the returned candidate. By another order, also dated 1-8-2013, the Tribunal was pleased to allow this application, directing that the "Photo Electoral Roll of the 59
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Polling Stations be immediately called from Returning Officer concerned and same be referred to NADRA for verification of thumb-impressions of the voters who cast their votes at these 59 Polling Stations". 3. The returned candidate has challenged the aforesaid orders by this petition under Article 199 of the Constitution. Both the impugned orders are interlocutory in nature since neither finally disposes of the election petition. The first question that naturally arises is whether the present petition is maintainable. Does the High Court have jurisdiction to consider the impugned orders in view of Article 225 of the Constitution, and the various judgments of the Supreme Court on the issue? Since a number of decisions will have to be considered, it will be convenient to set out in one place the manner in which the decisions are cited in this judgment:--- {{TABLE}} Judgment How cited Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396 (4-Member Bench) Javaid Hashmi Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others 1994 SCM R 1299 (5-Member Bench) Ghulam Mustafa Jatoi Muhammad Arif Hussain v. Rao Sikandar lqbal and others PLD 2008 SC 429 (3-Member Bench) Muhammad Arif Hussain Nayyar Hussain Bukhari v. District Returning Officer and others PLD 2008 SC 487 (3-Member Bench) Nayyar Hussain Bukhari Muhammad Husain Babar v. Election Commission of Pakistan and others PLD 2008 SC 495 (3- Member Bench) Muhammad Husain Babar Lt. -Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 (5-Member Bench) Salahuddin Tirmizi {{TABLE}} Aftab Shahban Mirani v. Muhammad Ibrahim and others PLD 2008 SC 779 (5-Member Bench) Aftab Shahban Mirani Federation of Pakistan v. Nawaz Sharif PLD 2009 (5-Member Bench) Muhammad SC 644 Muhammad Nawaz Sharif {{TABLE}} ' Article 225 of the Constitution provides as follows:--- "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 Mailis-e- Shoora (Parliament)." 5. Learned counsel for the returned candidate submitted that Article 225 could be regarded as falling into two "parts". The first part comprised the words "No election to a House or a Provincial Assembly shall be called in question". Learned counsel submitted that this part established the scope of the exclusion created by Article 225. The second part (the remainder of the Article) established how the election was to be challenged. Learned counsel submitted that the bar created by the first part did not apply to a returned candidate. This was so for the obvious reason that 'no successful candidate would challenge his own election. Thus, the bar did not at all apply to the present petitioner. The present petition was therefore maintainable under Article 199 of the Constitution. 6. Learned counsel further submitted that though Article 225 was an express bar, it was not absolute. The various decisions of the Supreme Court recognized that in certain circumstances, the High Courts could exercise jurisdiction under Article 199 even in election matters that might otherwise be regarded as falling within the ambit of Article 225. In this regard, learned counsel relied in particular, and most strongly, on Nayyar Hussain Bukhari. Reliance was also placed on Ghulam Mustafa Jatoi, Muhammad Arif Hussain and Muhammad Husain Babar. 7. Learned counsel submitted that it was clear from the relevant passage in Ghulam Mustafa Jatoi (considered below) and other cases, that a distinction had been drawn between disputes during the process of the election, and those which arose after the process was complete. In respect of disputes arising during the process of election there were several remedies available under the
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1976 Act at various stages. However, during the post-election stage, there was essentially only one remedy available, namely the filing of an election petition under section 52. It was contended on this basis that the threshold of the bar or exclusion contained in Article 225 ought to be regarded as being higher in respect of disputes arising during the election process as compared with disputes in the post-election stage. Even on this basis, the present petition was maintainable and the impugned orders amenable to challenge in this Court under Article 199. 8. Learned counsel also placed reliance on certain observations in Jamal Shah v. Election Commission of Pakistan PLD 1966 SC 1, and the observations of Nasim Hasan Shah, J. (as he then was) in his dissenting judgment in Javaid Hashmi. Learned counsel emphasized that no alternate remedy was available to the. Petitioner (i,e,, the returned candidate) against the impugned orders. An appeal to the Supreme Court under section 67(3) of the 1976 Act lay against a "final" decision, i,e,, only against a decision which came within the ambit of subsection (1). The impugned orders clearly did not fall within the subsection. It was contended that the present petition was therefore maintainable. 9. Learned counsel for the contesting candidate submitted that the petition was not maintainable. He submitted that once an election petition had been filed, then the bar contained in Article 225 became absolute and the High Court could not entertain a petition under Article 199. Learned counsel further contended that even though an appeal ordinarily lay to the Supreme Court under section 67(3) only against a "final" decision, an appeal could also be preferred if the order of the election tribunal suffered from a jurisdictional error. In this regard, reliance was placed on Abdul Ghani and another v. Election Tribunal and others 1999 SCM R 1. Thus, an alternate remedy was available against the impugned orders, since the returned candidate contended that the impugned orders suffered from jurisdictional errors. However, learned counsel emphasized that this submission was on the legal plane and in the present case, the impugned orders did not suffer from any illegality or jurisdictional error. It was contended on this basis that the present petition was not maintainable, and ought to be dismissed as such. 10. Learned counsel for the respective parties also made full and detailed submissions on the legality (or otherwise) of the impugned orders, i,e,, on the merits of the dispute. However, without intending any disrespect and for reasons that will presently become clear, we are not recording those submissions, and will confine ourselves to a consideration of whether this petition is maintainable. We may note that written submissions were also filed by both sides. 11. We have carefully considered the issue of maintainability in light of the submissions made by learned counsel. Before proceeding further, one point may be noted. The 1976 Act uses the term "Election Tribunal" in three distinct senses, even though there is an (exhaustive) meaning given to "Tribunal" in section 2(xxv). As is well-known, once the nomination papers of prospective candidates have been accepted or rejected by the Returning Officer, there is a right of appeal against such decision under section 14(5) to an appellate forum. This appellate body, which comprises of nominated High Court judges appointed by the Chief Election Commissioner ("CEC") (with the President's approval) is referred to as a "Tribunal" in the subsection, and is commonly known as an "Election Tribunal". The second sense is that of a Tribunal constituted under section 57 to hear election petitions presented under section 52. This is the (exact) sense in which the term is defined in section 2(xxv) and of course the Tribunal whose orders are impugned before us is of this nature. The third sense relates to the ECP itself. Section 103AA provides that the ECP may, in the circumstances specified in subsection (1), declare the "poll in any constituency" to be void, and may exercise the jurisdiction so conferred (subject to a certain time limitation) notwithstanding that there has been a declaration of a returned candidate for that constituency (subsection (2)). Subsection (3) provides that when the ECP exercises jurisdiction under subsection (1), it "shall be deemed to be a Tribunal to which an election petition has been presented". The nature and effect
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of the deeming provision contained in section 103AA has been considered in some detail in Aftab Shahban Mirani. 12. We begin with Javaid Hashmi. The dispute arose out of a bye-election to a National Assembly seat from the Punjab, NA 120. At that time (1989) the Federal Government and the Provincial Government were formed by different political parties/groups, which were seriously at odds. Mr. Hashmi was the candidate of the coalition that formed the Provincial Government. After the election schedule was announced, the Returning Officer, as required under the 1976 Act, prepared the list of the polling staff, which was approved, again as required by statute. Thereafter, a complaint was made by the Federal Government to the ECP that the polling staff nominated came predominantly from agencies and departments controlled by the Provincial Government. An apprehension was, expressed that in such circumstances, the fairness and transparency of the election could come into question and it was requested that the position be "balanced" and polling staff also nominated from other entities, bodies and departments. The ECP issued certain directions in this regard, with the result that the Returning Officer changed a large number of the polling staff from the earlier, approved list. Mr. Javaid Hashmi felt aggrieved by this change, and challenged it in the Lahore High Court by a petition under Article 199. At the same time, he also challenged the issuance of several thousand identity cards by the concerned federal authority in a manner that was alleged to favour the supporters of the opposing candidate. The Lahore High Court restored the originally approved polling staff, declaring the changes subsequently made to be unlawful. At the same time, certain directions were given regarding the distribution of the newly-issued identity cards. Being aggrieved by the aforesaid decision, the ECP appealed to the Supreme Court as did the federal authority that was charged with the duty of issuing and distributing identity cards. The two petitions (for leave to appeal) were listed together and heard by a 4-Member. Bench. The leave petition as regards the identity cards was unanimously dismissed, and it raised no issues as are, relevant for present purposes. The appeal by the ECP, which is directly relevant, was allowed by a learned majority (Muhammad Haleem, CJ and Shafiur Rehman and Ali Hussain Qizalbash, JJ.). Nasim Hasan Shah, J. Dissented, and would have dismissed the leave petition filed by the ECP. 13. The majority judgment (authored by the learned Chief Justice) examined in great detail the meaning of the word "election" after reviewing (inter alia) a number of authorities, both Pakistani and Indian. It was held that as used in Article 225, it had to be broadly construed, and applied as meaning "the entire process consisting of several steps taken for its completion which have a bearing on the result of the process" (pg. 416). This process went up to the stage of the declaration of the returned candidate. Thus, the stage after such declaration was the post-election stage. It was held as follows in the majority judgment (pg.417):--- "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 Court as otherwise Article 225 of the Constitution would be deprived of its meaning and content." ' It was further observed as follows (pg. 422): "Here I may point out that the exercise of power under Article 199 cannot be placed on any higher footing than that emanating from Article 225 of the Constitution; and that while the power under Article 199 exercisable by the High Court is "subject to .The Constitution" whereas there is no such limitation in Article 225. This Article by its language creates an independent jurisdiction for the decision of election disputes under the law and its contents, therefore, should be given the fullest meaning irrespective of anything contained in any other Article. More particularly so as it is an essential part of parliamentary jurisdiction which under the law entrusts election disputes for
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decisions to the Election Tribunal and in appeal to the Supreme Court whose decision is final both on questions of law and fact," ' With regard to the jurisdiction of the Supreme Court under section 67(3) of the 1976 Act, as compared to the manner in which jurisdiction is to be exercised by the High Courts under Article 199, it was observed as follows (pg. 423):--- "The Supreme Court can in the exercise of its appellate power correct all legal errors or defects or disabilities and its powers are wider in scope than the powers exercised by the High Court under Article 199 to correct the defects of the kind mentioned above." ' It was concluded as follows (idem., emphasis supplied): "Accordingly what is intended to be achieved by the exercise of the power under Article 199 is achieved by the exercise of the appellate power by the Supreme Court in an appeal against the decision of the Tribunal not at an intermediate stage but only after the election is over. There is, therefore, no scope of any interference by the High Court under Article 199 of the Constitution to interfere with the process of election at an intermediate stage or question the correctness of the decision of the Election Tribunal on any ground whatsoever upon an election petition filed to question the validity of the election. ' As regards the case before it, the majority judgment held as follows (pg. 427):--- 'The relief claimed in the petition admittedly impugns the change of the polling personnel as without lawful authority which the' High Court could not in the exercise of extraordinary jurisdiction grant it having regard to Article 225 of the Constitution and the [1976] Act." 14. In his dissenting judgment, Nasim Hasan Shah, J. Stated the question before the Court as follows (pg..429):--- "The question which arises in these cases and it is of fundamental importance, is whether the provisions of Article 225 prevail against the provisions of Article 199 to the extent that a blanket cover is provided to all litigative challenges in respect of every kind of order passed in the course of the election process because the provisions of Article 199 are subject to the Constitution, including Article 225?" ' The question was answered as follows (idem.): "I cannot, speaking with utmost respect, agree with the view that since Article 225 by its mandate creates an independent jurisdiction (an Election Tribunal) for redress of grievances in regard to election disputes and the Constitution intends that all questions of law and facts must be decided by it, in the exercise of that jurisdiction; redress of every grievance relevant to an election dispute must perforce be sought by an election petition, after the process of election is over. In my humble opinion such width and amplitude cannot be read into the provisions of Article 225. I am, on the other hand, of the opinion that any decision or order made by a functionary charged with the conduct of elections which is made in excess of his authority, being coram non judice, would still be subject to the control of the High Court in exercise of its jurisdiction under Article 199. The legislature expects every statutory authority to act within the limits of the law and if any such authority steps out of these limits or refuses to function as the law requires him to function and he proceeds to make an order not within the limits of the law; such an order can be declared under Article 199 of the Constitution as without lawful authority and to be of no legal effect." ' His Lordship recognized the need for completing the election process expeditiously so that the constitution of the relevant House/Assembly could be "speedily and distinctly known", and acknowledged the concern that "interference by the High Court at the intermediate stage can interrupt this process" (pg. 429). He however, pointed out that the exercise of jurisdiction under Article 199 was discretionary, and expressed the view that the High Court could "... Be expected in the sound exercise of its discretion not to interfere at the intermediate stage unless it is absolutely essential to do so in the interest of justice, maintenance of purity of elections, supremacy of law
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and to prevent arbitrariness. The High Court mindful of its duty in this respect can legitimately be expected to desist from interfering in the election process, unless it is entirely imperative...." (idem.) ' Referring to Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26, his Lordship concluded as follows (pp. 429-30; emphasis supplied): "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.... Accordingly, 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. Undoubtedly, it doing so the High Court will exercise its jurisdiction with extreme circumspection, in full consciousness of the normal rule that it should not interfere with the process of the elections at an intermediate stage, but leave it to the Tribunal to correct all errors committed after the election is over." 15. The next case that requires consideration is Ghulam Mustafa Jatoi.. The dispute arose in relation to NA-158 in the General Election of 1993. Mr, Ghulam Mustafa Jatoi was a candidate for this seat, and his nomination papers were accepted by the Returning Officer. No appeal was filed against this acceptance, and the period fixed for filing appeals to the appellate body (i,e,, the "Election Tribunal" under section 14(5)) expired. Thereafter, the Returning Officer of his own motion and without giving any opportunity of hearing, rejected Mr. Jatoi's nomination papers on the ground that he was disqualified from contesting the election. Being aggrieved by this order, Mr. Jatoi filed a petition in this Court under Article 199. The petition was however dismissed as not maintainable by reason of Javaid Hashmi, and Mr.. Jatoi appealed to the Supreme Court. A 5-Member Bench, after a detailed review of the relevant legislation and the authorities (including of course, most importantly Javaid Hashmi itself) concluded as follows (pg. 1321; emphasis supplied): "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. The majority view in the case of Election Commission of Pakistan v. Javaid Hashmi (supra) is not applicable. We may clarify, that we do not intend to overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed hereinabove." ' Since Mr. Jatoi had no legal remedy available (the time for filing an appeal against the rejection of nomination papers had already expired) and the impugned order was patently illegal (no opportunity of hearing had been granted) and the effect was to "defranchise" him (he could not contest the election), the appeal was allowed and the impugned order set aside. 16. In our respectful view, a number of points arise from the cited passage. The Supreme Court emphasized that it was not overruling Javaid Hashmi (as could have happened, since Ghulam Mustafa Jatoi was heard by a larger Bench). In our respectful view, the cited passage can be regarded as. Being, and establishing, an exception to the general rule laid down in Javaid Hashmi. The exception was carefully and narrowly crafted. It appears to comprise of the following elements: (a) the impugned order had to be that of an election functionary; (b) the aggrieved person had to have no legal remedy available against the order, whether during the process of election or after it had been completed; and (c) the impugned order had to be patently illegal/without jurisdiction and it had to have the effect of "defranchising" the petitioner. If these elements were found to exist, then a petition under Article 199 could be maintainable. Insofar as the second element is
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concerned, in our respectful view, the "process of 'election" must be regarded (in light of Javaid Hashmi) as having been completed when a declaration is made of the returned candidate. The stage thereafter would be the "post-election" phase. As is obvious, the present petition and the orders impugned before us fall in the second or "post-election" phase. Insofar as the first element is concerned, a question could arise as to who can be regarded as an "election functionary"? Finally, and most importantly in our respectful view, is the question that arises in relation to the third element: is the "and" between "patently illegal/without jurisdiction" and "the effect of which is to defranchise a candidate" to be read conjunctively or disjunctively? It will be appreciated that if the "and" is read as such (i,e,, conjunctively), then the scope of the exception is narrower than if it is read disjunctively (i,e,, effectively as an "or"). In our respectful view, the subsequent decisions of the Supreme Court, considered below, must be examined while keeping the foregoing points in mind. 17. The next judgments to be considered are a series of five decisions, all given in 2008. It is not without interest to note that although decided by…
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