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Petitioner: Agha GHULAM ALI VS Respondent: ELECTION COMMISSION and others
Court Name: Sindh High Court Judge(s): Syed Abdur Rahman, Haziqul Khairi Title: Agha GHULAM ALI vs ELECTION COMMISSION and others Case No.: Civil Petition No.15 of 1991 Date of Judgment:1991-06-12 Reported As: PLD 1991 Karachi 396 Result: Petition dismissed
JUDGMENT
JUDGMENT HAZIQUL KHAIRI, J.----By this petition the petitioner Agha Ghulam All has, impugned the order dated 27-12-1990 of respondent No. 1, namely, Election Commission of Pakistan declaring the election of PS-14, Jacobabad-V as void with direction that election be held of provincial assembly in the said constituency in the manner provided for in section 108 of the Representation of the People Act, 1976. The petitioner who is a Zamindar of Garhi Khairo, District Jacobabad is stated to be a sitting member of the Provincial Assembly of Sindh having been elected from PS-14 Jacobabad-V. Other contesting candidates from the said constituency are respondents Nos. 3 to 10 whereas respondent No. 2 is the Returning Officer of the said constituency. 2.The poll in the said constituency was conducted on 27-10-1990. A complaint was made by the petitioner's main rival, namely, Ghulam Muhammad Shahliani, respondent No. 3, under section 103- AA of the Representation of the People Act, 1976, before the Election Commission of Pakistan respondent No. 1 alleging malpractices and unlawful interference by the authorities. This complaint was disposed of by a consent order dated 19-11-1990 whereby rolling was ordered to be held at Rasoolabad, Amirabad, Piyrao Umrani, Jaffarabad and Allahabad polling stations. 3.On 27-11-1990 the respondent No.3 sent the following telegram to the respondent No. 1 and other authorities:-- "THERE IS EVERY POSSIBILITY OF BLOODSHED AT POLLING STATIONS JAFFARABAD/PIARO UMRANI AND AMEERABAD, RASOOLABAD AND ALLAHABAD OF PS-14 JACOBABAD-V TO BE HELD ON 29-9- 1990 DECLARED AS SENSITIVE POLLS. KINDLY ARRANGE FOR FULL MILITARY/RANGERS AND POLICE AND DUTY MAGISTRATE IN ORDER TO HOLD POLLINGS IN A PEACEFUL MANNER WITH FULL SECURITY TO VOTERS/AGENTS AND SUPPORTERS OF THE CANDIDATE. THIS APPREHENSION IS DUE TO HARSH
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ATTITUDE OF MY RIVAL CANDIDATE AS AGHA GHULAM ALI BULEDI AS HE IS VISITING DIFFERENT POLLS ALONG WITH VERY DANGEROUS PERSONS WITH FULL ARMS AND AMMUNITION." 4.On the date of repolling, a complaint in writing being P/2 was sent by respondent No.3 to respondents Nos.1 and 2 alleging grave illegalities and corrupt practices by the administration with the active connivance and concurrence in Jaffarabad, Piyaro Umrani and Allahabad Polling Stations. Ballot boxes were alleged to be filled with ballot papers and the polling agents of respondent No.3 were illegally detained during the course of night. By another telegram respondent No.3 alleged rigging by the petitioner with the active help and assistance of Deputy Commissioner and S.P. Jacobabad and his workers were threatened not to report the matter to the Police Station, Jacobabad. One day before the repolling, the police blocked the main Jacobabad Garhi Khairo Road leading to five polling stations and then workers of respondent No.3 were forcibly stopped from going there. The petitioner's supporters were seen stamping the ballot papers at polling stations of Jaffarabad and Piyaro Umrani. Two other complaints, one at 4-15 p.m. The same day and the other on 29-11-1990 were sent to the respondents Nos.1 and 2 containing among others, serious allegations against the authorities conducting the election at Amirabad, Piyaro Umrani and Jafarabad polling stations in the said PS-14 Jacobabad-V. Another protest being P/9 was lodged with the Returning Officer PS-14 against the consolidation of results of election of repolling. Similar complaint and protest was made by respondent No.4 another candidate containing similiar allegations against the petitioner and the authorities. On the basis of complaints, D.S.P. Aslam Soomro of Garhi Khairo Sub-Division and Mukhtiarkar Noor Muhammad Soomro of Taluka Garhi Khairo were said to have been removed by the orders of the Election Commissioner. On 3-12-1990, Mr. Abdul Hafeez Pirzada, Advocate for respondent No.3 sent a letter to the Chief Election Commissioner and other authorities reiterating the allegations made by the respondent No.3 against the petitioner and the authorities concerned and further stating that at three polling stations almost 100 per cent. Of the registered votes had been cast in favour of the petitioner, Agha Ghulam Ali his tally of votes being in excess of 6,000. In the remaining two polling stations, less than 10 per cent. Votes were allowed to be cast. 5.In the repoll of the said five polling stations, the petitioner secured 6,330 votes while respondent No.3 could secure only 43 votes. After the consolidation of the entire result, the petitioner secured 17507 valid votes while the respondent No.3 secured only 14,509 votes. On the basis of the said result, the petitioner was declared elected by respondent No. 1 vide Notification dated 4-12-1990 being Annexure 'A' to the petition. 6.It is pertinent to note that on the date of Notification viz. 4-12-1990, the respondent No.3 filed a "Petition" before respondent No.1 under Article 218(3) of the Constitu. Tion of the Islamic Republic of Pakistan read with section 103 of the Representation of the People Act, 1976 in which the impugned order dated 27-12-1990 was passed by the respondent No.1. This petition contained more or less the same grounds as raised by respondent No.3 in his letters, telegrams and notices etc. It was accordingly prayed by the respondent No.3 that the Election Commission of Pakistan, respondent No.1 will be pleased to issue directions to the authorities concerned for preparing the final consolidated results so as to inclucde the results of Polling Stations Nos. 26 and 46 as per statement of count issued by the Presiding Officers and may be further pleased to direct the issuance of necessary notification declaring the applicant as elected from PS-14 Jacobabad-V to the Provincial Assembly of Sindh or in the alternate this Hon'ble Commission may be pleased to hold an inquiry into the massive rigging as per facts stated above which have a direct and material bearing on the results and thereafter be pleased to declare as void the poll in the said constituency and call upon the constitutency to elect a member in the manner provided in section 108.
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7.Learned counsel for the petitioner Mr. Sharaf Faridi assailed the order dated 27-12-1990 on the following grounds: (1) The only remedy available to an aggrieved candidate was to challenge the election by an Election Petition under Article 225 of the Constitution of the Islamic Republic of Pakistan read with section 52(1) of the Representation of the People Act, 1976. Even otherwise section 103-AA of the Representation of the People Act, 1976 and Article 13 of President's (Post-Proclamation) Order No.5/77 is an invalid piece of legislation being repugnant to Article 225 of the Constitution of Islamic Republic of Pakistan. (2) Respondent No.1 had become functions officio on 4-12-1990 when the petitioner was declared elected vide notification under subsection (4) of section 42 of the Representation of the People Act, 1976 and no order could have been passed by them after the date of notification. (3) Respondent No.3, had failed to comply with the provisions of sections 52 and 54 of the Act of 1976 and therefore the only course open to respondent No.1 was to dismiss the complaint of respondent No.3. In not doing so, respondent No.1 failed to exercise jurisdiction vested in it under section 56 of the Representation of the People Act, 1976. (4) Respondent No. 1 vide their order dated 19-11-1990 had accepted the result of all the polling stations except the said five polling stations and, therefore, in repelling therein, it could not have passed a subsequent order dated 27-12-1990 declaring the results of the entire constituency PS 14, Jacobabad-V as void. (5) There was neither any positive evidence nor other material on record on the basis of which respondent No.1 could have declared the entire elections in the constituency as void. (6) Even if gross illegality was committed at three polling stations out of 53 polling stations the proper course for respondent No.1 was to order fresh elections in those polling stations only. 8.In The first instance, it was maintained by Mr. Sharaf Faridi that the provisions contained in section 103-AA of the Representation of the People Act, 1976 providing for delcaration of election disputes by the Election Commission, as void by itself is repugnant to and violative of Article 225 of the Constitution and section 52 of the Representation of the People Act, 1976 (hereinafter called the 'Act'). Elucidating his contention, it was asserted by him that there is a clear bar to challenging the election to a House or a Provincial Assembly except by way of election petition within the meaning of section 2 (xxv) of the Act read with section 52 of the Act to be presented to a Tribunal appointed under section 57(1) of the Act and preferred under sections 52 and 55 thereof. Presently there was neither any election petition nor any appointed tribunal under section 57 of the Act, nor the election petition was presented in a manner prescribed under sections 52, 53 and 55 thereof. It will be useful to reproduce here Article 225 of the Constitution and relevant sections of the Act as follows:- -- "Article 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-eShoora (Parliament)." Section 2(xi): "2. (xi) "election petition" means 'an election petition made under section 52.? "52. Election petition.--(1) 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). (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 cost of the petition, a sum of one thousand rupees."
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"53.Presentation of petition: -(1) An election petition shall be presentated 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,- (i) by the petitioner, or (ii) by a person authorised in writing in this behalf by the petitioner; or (b) 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." "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 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) He 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." "57. Appointment of Tribunal.--(1) For the trial of election petitions under this Act, the Commissioner shall appoint as many Election Tribunals as may be necessary (2) An Election Tribunal shall consist of a person who has been, or is or at the time of his retirement as a District and Sessions Judge, was qualified to be, a Judge of a High Court." It will also be worth while to refer to section 103-AA and section 108 of the Representation of the People Act, 1976 which are under attack by the petitioner and also section 27 thereof which read as follows:-- "27. Stopping of the poll.--(1) The Presiding Officer of a polling station shall stop the poll and inform the Returning Officer that he has done so if-- (a) the poll at the polling station is, at any time, so interrupted or obstructed for, reasons beyond the control of the Presiding Officer that it cannot be resumed during the polling hours fixed under section 26; or (by any ballot box used at the polling station is unlawfully taken out of the custody of the Presiding Officer, or is accidentally or intentionally destroyed, or is lost or is damaged or tampered with to such an extent that the result of the poll at the polling station cannot be ascertained. (2) Where poll has been stopped under subsection (1) the Returning Officer shall immediately report the circumstances to the Commission and the Commission shall direct a fresh poll at that polling station, unless it is satisfied that the result of the election has been determined by the polling that has already taken place at that polling station, taken with the result of the polling at other polling stations, in the same constituency. (3) ------------------------ (4) ------
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"103-AA. Power of Commission to declare a poll void.---(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of the record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission may make a declaration accordingly and, by notification in the official Gazette, call upon that constituency to elect a member in the manner provided for in section 108. (2) Notwithsanding the publication of the name of a returned candidate under subsection (4) of section 42, the Commission may exercise the powers conferred on it by subsection (1) before the expiration of sixty days after such publication, and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribunal. (3) While exercising the powers conferred on it by subsection (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chaper VII, regulate its own procedure." "108. Bye-elections, etc.---(1) When the seat of a member becomes vacant, the Commissioner shall, by notification in the official Gazette call upon the constituency before such date as may be specified in the notification, and thereupon the provisions of this Act and the rules shall apply, as far as may be to the election to fill such seat: Provided that, notwithstanding anything contained in subsection (1) of section 11, the days for the several stages of an election shall be such as may be specified in the aforesaid notification. (2) For the purpose of holding an election to fill a casual vacancy in an Assembly, and, during the period when a Commission does not stand constituted for the purpose of section 107, reference in this Act to the Commission shall be construed as reference to the Commissioner." 9.In support of his contention, learned counsel placed reliance on Election Commission of Pakistan v. Javed Hashmi, PLD 1989 SC 396, in which the scope of Article 199 vis-a-vis Article 225 of the Constitution was examined by our Supreme Court and it was held:-- "In enacting Article 225 in the Constitution the purpose of 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 mean of an election petition. It is also of utmost consideration that in the case of two attacks on matter connected with the election proceedings there is likelihood of there being two inconsistent decisions; one given by the High 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 Tribunal 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." What emanates from Javed Hashmi's case is that the only mode of challenging an election is by an election petition contemplated under Article 225 of the Constitution and even a Constitutional petition under Article 199 challenging any stage of the election is barred. Earlier in Col. (Rtd.) S. Mukhtar Hussain Shah v Wasim Sajjad and 30 others PLD 1986 SC 178-187 in which while examining the vires of section 38 of the Senate (Election) Act, 1975 vis-a-vis section 57 of the Representation of the People Act, 1976 it was held by our Supreme Court:- "The upshot of these statutory provisions is that the challenge to an Election is possible only by an Election Petition and further that such Election Petition has to be disposed of by an Election Tribunal
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appointed by the Commission (section 57 of Act LXXXV of 1976 and section 38 of the Act). On no hypothesis can the Commissioner pre-empt the powers and functions of the Election Tribunal nor do the power and jurisdiction of the Election Tribunal get affected in dealing with an election dispute by what the Commissioner had done in the matter of counting or in deciding an appeal under section 32 of the Act." ' It will be convenient and efficacious here to further examine the meaning and scope of the word "challenge" in the context of section 103-AA. There appears to be a number of distinguishing features between grievances lodged under section 103-AA of the Act on one hand and provided for under Article 225 of the Constitution read with section 52 of the Act on the other. The proceedings under section 103-AA can be invoked suo motu by the Election Commission or by a candidate at any time specified therein on account of illegalities or violations of the Act or rules. If these are proved by facts on the face of record in a summary manner, the Election Commissioner may declare poll in the constituency as void and further order repolling there. An Election Petition under section 52 of the Act read with Article 225 of the Constitution is only maintainable after completion of election process as was held by the Supreme Court of Pakistan in Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396. The decision of the Election Tribunal is appealable under section 67 of the Act, but the decision of the Election Commission is not, by virtue of the proviso, namely the "Explanation" to said section. However, if the Commission fails to dispose of a case before the expiration of sixty days after notification in the official Gazette, the election of the returned candidate under section 103-AA shall be deemed to have become final, subject to a decision of a Tribunal. What follows more importantly in that subsection (2) of section 103-AA itself refers to two parallel forums for trial of the same grievance, one envisaging summary trial by the Election Commission and the other, a regular trial in manner provided under sections 52, 53, 54, 55 and 62 by an Election Tr:bunal appointed under section 57 of the Act. In other words it is open to an aggrieved candidate to make a complaint or file an application under section 103-AA of the Act and at the same time present an election petition under section 53 of the Act and pursue his remedies before both of them. Again the Election Commission is seized of the matter before the expiration of sixty days after notification in the official Gazette but an Election Tribunal shall hear an election petition only if presented to the Commission within forty-five days of the publication thereof and is bound to decide it. There may also arise a situation where the Election Commission acting under section 103-AA may give a different decision from what is adjudicated upon by a Tribunal appointed under section 57 of the Act, the effect of which would be the setting aside the summary findings of the Commission under section 103-AA. No constitutional or statutory duty is cast upon the Election Commission to give its verdict in respect of every grievance referred to it under section 103-AA of the Act. If, however, for some reason or the other the Commission does not finally dispose it of within the prescribed period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribun41. What further emerges from the discussion is that an election petition emanates from a statutory right of a candidate to challenge the election results requiring judicial pronouncement which is not so in case of proceedings under section 103- AA of the Act. While agreeing with Mr. Sharaf Faridi that an election can only be challenged by an election petition under Article 225 of the Constitution read with section 52 of the Act, we are clear in our minds that by whatever name a grievance or cause under section 103-AA of the Act may be called, it is not an election petition within the meaning of Article 225 of the Constitution or section 2(xi) read with section 52 of the Representation of the People Act, 1976 and the proceedings before the Election Commissioner are not in the nature of a 'challenge' ensuring judgment on the merits and further giving right to appeal. Thus the objection of the petitioner that section 103-AA of the Act is repugnant to Article 225 of the Constitution is not valid. Further sections 52, 53 and 54 of the Act
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are inapplicable to proceedings under section 103-AA which are made applicable to election petitions only. Next, it was contended by Mr. Sharaf Faidi, that the Election Commission, respondent No.1 had become functus officio on 4-12-1990 when the petitioner Was declared elected vide notification under subsection (4) of section 42 of the Representation of the People Act, 1976 thus the impugned order dated 27-12-1990 is patently illegal and without jurisdiction. In support reliance was placed on Muhammad Nazeer Hakeem v. Said Muhammad reported in PLD 1962 (W.P.) Lahore 421, in which it was held:-- "If election is a single process from the date of publication of the electoral roll to the date on which the result of the election is declared, like a chain with a number of links, then a date "preceding the election" will be a date preceding the first link in the chain and not a date preceding the last link, for a date preceding the last link would be a date preceding the declaration of the result, and all other links in the chain of election would "precede" such date. In that case we would be defining the term "election" as 'the publication of the result of the election'." Next case was Muhammad Afzal v. Mairajuddin, reported in PLD 1967 Lahore 689 where it was held: "It is well settled that election is a continuous process consisting of a series of acts required to be done in different stages in accordance with the schedule contained in the notification to be published in the official Gazette fixing and filing of nomination papers. Scrutiny of nomination papers, withdrawal and retirement of candidates, actual fact and counting of votes and declaration of result etc." In Y.B. Chowan v. K.T. Mangal Mutry, AIR 1958 Born. 395, a Division Bench was also of the view that an election is one continuous process but the final stage is of the poll. But in Election Commission of Pakistan v. Javed Hashmi, reported in PLD 1989 SC 396, while considering the meaning of the word "election " in Article 225 of the Constitution, the Supreme…
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