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Petitioner: RIAZ HUSSAIN VS Respondent: ELECTION TRIBUNAL
1988 C L C 682
1988 C L C 682
[Lahore]
Before Abaid Ullah Khan and Fazl‑i‑Mahmood, JJ
Haji RIAZ HUSSAIN‑‑Petitioner
versus
ELECTION TRIBUNAL and others‑‑Respondents
Writ Petition No. 507 of 1984, decided on 23rd December, 1985
(a) Punjab Local Government Ordinance (VI of 1979)‑‑
‑‑‑Preamble‑‑Constitution of Pakistan (1973), Art.199‑‑Review, power of‑‑Punjab Local Government Ordinance neither expressly nor by inference has bestowed any power of review on Election Tribunal‑ Election Tribunals were constituted persona designata and have to act within four corners of law creating them‑‑Dismissal of review petition by Election Tribunal for want of jurisdiction could not be taken exception ‑ to, in constitutional jurisdiction of High Court.‑ [Review].
Muzaffar Ali v. Muhammad Shafi P L D 1981 SC 94; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi P L D 1970 SC 1; Abdul Rehman Bajwa v. Sultan and 9 others P L D 1981 SC 522; Badrul Haque Khan v. The Election Tribunal, Dacca P L D 1963 SC 704; Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236; Rahim Shah v. Chief Election Commissioner P L D 1973 SC 24; Muhammad Hussain Munir v. Sikandar P L D 1974 SC 139; Zulfikar Khan Awan v. Secretary, Industries and Mineral Development, Government of Punjab, Lahore and 8 others 1974 SCMR 530; Begum Wazir Ahmad Industrial Home v. Niaz Begum P L D 1976 SC 214; Messrs Conforce Ltd. v. Syed Ali Shah etc. P L D 1977 SC 599 and Anisminic Ltd. v. Foreign Compensation Commission and others (1969) 2 AC 147 ref.
(b) Qanun‑e‑Shahadat (10 of 1984)‑‑
‑‑‑Art. 129‑‑Punjab Local Government Ordinance (VI of 1979), S.24‑ Official acts‑‑Presumption relating to‑‑Rebuttal of presumption‑ Requirement‑‑Official acts, held, would be presumed to have been performed in a regular manner‑‑Person raising objection to such presumption would be required to discharge his onus on basis of material which could be obtained by him and not by just a bald assertion.
The Province of East Pakistan v. Dr. Azizul Islam P L D 1963 SC 296 and Majid Ali Naqvi v. Additional District Judge and Ex‑Officio Settlement and Rehabilitation Commissioner, Tharparkar and another 1970 SCMR 375 rel.
(c) Practice and procedure‑‑
‑‑‑ Date for mere announcement of judgment, held, was not a date of hearing.
(d) Punjab Local Government Ordinance (VI of 1979)‑
‑‑‑S. 25‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction for setting aside ex parte order passed by Election Tribunal‑‑Scope of‑‑Where inference and findings of Election Tribunal relating to setting aside of ex parte order against petitioner were recorded on appreciation of material, such findings, held, could not be deemed to be without jurisdiction‑‑Election Tribunal was competent to form its own view on appreciation of evidence‑‑High Court would not convert itself into a Court of appeal and substitute its own view for that of Tribunal in exercise of constitutional jurisdiction.
(e) Punjab Local Government Ordinance (VI of 1979)‑‑
‑‑‑S. 25‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Setting aside of ex parte proceedings by Election Tribunal‑‑Bona fid‑2s of plea, a main requisite‑‑Sequence of events and conduct of petitioner as exhibited on record showed that he never reconciled with his failure to have the proceedings before Election Tribunal stayed or to have such proceedings transferred to some other Tribunal and thus exhibited unusual behaviour to prolong the same‑‑High Court in its discretionary jurisdiction, held, was not to allow to party, a premium on its own acts of omission and commission designed through machinations so as to take advantage thereof at subsequent stages before higher forum by making same a ground for avoidance of proceedings and order of Tribunal‑‑High Court found no scope to come to aid of petitioner in constitutional jurisdiction in circumstances.
(f) Constitution of Pakistan (1973)‑‑
‑‑‑Art. 199‑‑Punjab Local Government Ordinance (VI of 1979), S.25‑ Constitutional jurisdiction, exercise of‑‑Factual controversy before Election Tribunal‑‑Merit of decision not challenged‑‑Effect‑‑Where merit of decision, factual aspect whereof, going to the root of matter was not challenged, merely taking shelter behind technicalities, held, would be of little avail or persuasive value in exercise of discretionary jurisdiction of High Court.
Mian Zafar Yasin with Muhammad Younas Bhatti and Shamas‑ud Din Mahmood for Petitioner.
Nemo for Respondents Nos. 1, 3 and 4. Muhammad Akram Sheikh with Asghar Hamid for Respondent No. 2
Date of hearing: 7th May, 1984
JUDGMENT FAZL‑I‑MAHMOOD, J.‑‑This writ petition calls in question the order of the District Judge/Election Tribunal, Sahiwal dated the 26th April, 1984, whereby he accepted the election petition of respondent No.2, set aside the election of the petitioner and declared the contesting candidate to have been duly elected.
2. The petitioner and respondent No.2 contested election to Zillah Council seat from Halqa No.11 in District Sahiwal held under the Punjab Local Government Ordinance, 1979. The election of the petitioner was challenged by respondent No.2 as a factual matter alleging that during the consolidation of the result of women polling station it had transpired that as a result of the Court supplied by the Presiding Officer at Government Girls Primary School, Harappa polling station it had been incorrectly shown that respondent No.2 had secured 219 votes and the writ petitioner had secured 336 votes as against 219 and 294 valid votes actually polled and counted by respondent No.4. It was thus claimed that there was a clerical mistake inasmuch as the figure of 90 valid votes in respect of ward No.11 was also erroneously repeated in respect of ward No.12 instead of the actual number of valid votes. It was further the case of respondent No.2 before the Election Tribunal that he had taken steps for the redress of this error and on the 1st October, 1980 he appeared before the Returning Officer on the same allegation and informed him regarding his grievance. The Returning Officer, however, refused to interfere. This was followed by the institution of the election petition.
3. The petitioner filed his written statement to the election petition on the 18th November, 1983. The Election Tribunal on the 15th January, 1984 framed issues, which inter alia, included the material issue‑
"Whether respondent No.l secured 294 votes and not 336 in Polling Station at Government Girls Primary School Harappa for wards No.9,10,11 and 12?"
The case was then adjourned for evidence on this issue to the 15th February, 1984.
4. The petitioner on the 15th February, 1984, under his own signatures, submitted an application before the Election Tribunal alleging that his learned counsel had colluded with his rival candidate and that the petitioner had filed an application before the Punjab Local Councils Election Authority for the transfer of the case from the Election Tribunal seized of the matter as he did not want the election petition to be tried by the learned District Judge/Election Tribunal. It was prayed that the District Judge/Election Tribunal should not try the election petition. The Election Tribunal, on the same day, also recorded the statement of the petitioner and thereafter, vide his interim order, observed that the petitioner had given up his counsel and despite the fact there was no order for staying the proceedings, in order to give facility to the petitioner to engage his counsel the case was being adjourned for the 22nd February, 1984. It was also recorded that seven witnesses were in attendance on behalf of the election petitioner/ respondent No.2 herein and they be bound down for the next date. The expenses in that behalf were to be borne by the writ petitioner.
5. On the 22nd February, 1984, as the learned District Judge/ Election Tribunal was on leave, the matter was taken up by the duty District Judge, Sahiwal, before whom a request was made by Rana Muhammad Ali, Advocate, appearing on behalf of counsel for the writ petitioner for adjournment of the case on the ground of indisposition of the petitioner. A telegram in that behalf was also relied upon. The case was ordered to come up on the 23rd February, 1984, for proper orders. On this date, the Election Tribunal, after noticing the fact that a medical certificate had been sent by the petitioner, observed that he was absent anti so was his counsel, Irshad Hussain who had appeared on his behalf had no power of attorney. The writ petitioner was ordered to be proceeded against ex parte and it was directed that the evidence of the election petitioner, Muhammad Arshad Khan, be recorded. The proceedings of the 23rd February, 1984 further show that statements of the AWs Were recorded and the election petitioner closed his evidence. The bag had been resealed and handed over to the District Nazir. Eight envelopes had been put in a sealed bag and kept in his office for safe custody. It was observed that there was an order of the Punjab Election Authority staying the announcement of the final order and since the transfer application had been fixed for hearing for the 12th March, 1984, the election petition was being adjourned to the 15th March, 1984 for proper orders.
6. On the 15th March, 1984, the writ petitioner, Haji Riaz Hussain, himself moved an application for setting aside the ex parte order dated the 23rd February, 1984 on the grounds that on the previous date of hearing he was seriously ill and therefore could not appear and that he had sent a medical certificate through his brother Irshad Hussain who appeared and moved an application together with the medical certificate but the Tribunal did not adjourn the case and ordered ex parte proceedings. It was urged in the application that if the ex parte order dated the 23rd February, 1984 was not set aside, the petitioner would suffer irreparable loss and justice may not be done. It was pleaded that by setting aside the ex parte order there was no likelihood of any injury being caused to the opposite side and that the election petition be disposed of on merits.
7. The Election Tribunal called for a reply to this application which was filed on the 15th April, 1984. Arguments of the parties were heard on this application. The case was then adjourned to come up on the 17th April, 1984 for orders. The proceedings of the adjourned date (copy whereof is Annex. XIII) show that the Tribunal announced the orders in the matter of setting aside the ex parte order. The case was then fixed for arguments and order on the 21st April, 1984. The Election Tribunal while dismissing this application for setting aside the ex parte order observed that the application filed by the petitioner was not supported by any affidavit which was being contested by the opposite side. The petitioner had failed to put up appearance nor produced an Advocate or a recognized agent. His brother who had put in appearance on the 23rd February, 1984 had no authority to appear on behalf of the writ petitioner and as such proper order had been passed in proceeding ex parte against him. The order could not be announced because of the stay order issued by the Election Authority against pronouncement of the final order. It was also observed by the Election Tribunal that this very aspect of the matter had been agitated by the petitioner before the Punjab Election Authority which had observed that it did not see anything wrong with the order dated the‑23rd February, 1984 because the writ petitioner having absented himself on the 22nd February was obliged to appear on his own on the adjourned date which was the 23rd February, 1984 and since the petitioner had admittedly not done so, ex parte order against him may not be open to question. The Election Tribunal was of the view that apart from the fact that the application was not supported by any affidavit, if the writ petitioner was incapacitated could engage a counsel or a recognized agent to appear on his behalf. It was further observed that on a previous occasion i.e. the 5th February, 1984, even the witnesses of respondent No.2 to the writ petition, Muhammad Arshad Khan, were in attendance and they had been bound down for the next date i.e. the 22nd February, 1984 at the request of the petitioner. There had intervened a long interval of seventeen days and during this time the petitioner could engage a counsel of his choice. The opinion formed by the Election Tribunal was that it appeared that the petitioner wanted to prolong the matter. The application to set aside the ex parte proceedings, it was held, had no merit and was dismissed.
8. As already mentioned in the preceding paragraph, the main case had been fixed for arguments and orders on the 21st April, 1984. The proceedings of this date as contained in Annex. XVI show that the election petitioner was present whereas the writ petitioner, who was respondent to the election petition, was absent. The case was ordered to be put up after waiting. The second interim order recites that the election petitioner was present with his counsel while the writ petitioner was absent. The arguments of the counsel for the election petitioner were heard and the case was to come up for orders later in the day. The third interim order then recites that the counsel for the writ petitioner had turned up. The name of the counsel for the election petitioner be called out so that he could also be present. The fourth interim order of the same day then recites‑‑"Case has been called. The counsel for both the parties are present. The counsel for the respondent has moved an application for producing evidence. Arguments on this application have been heard. The case to come up for orders on the 24th April, 1984."
9. Next in sequence it may be observed that the writ petitioner on the 24th April, 1984 moved an application under rules 8 and 10 of the Election Petition Rules, 1979 read with Order XLVII rule 1 and section 151 CPC for review of the orders dated the 23rd February and the 17th April, 1984. The writ petitioner who moved this application in person had requested for producing his counsel. He was allowed to produce his counsel on the 25th April, 1984 so that preliminary arguments could be heard on review application.
10. On the 24th April, 1984, the Election Tribunal announced orders dismissing the application of the writ petitioner for adducing evidence. The Election Tribunal was of the view that the stage of the proceedings when the application was moved was that the evidence of the election petitioner had been recorded and final order was to be announced which could not be done because of a stay order issued by the Punjab Election Authority. It was held that the petitioner therefore could not ask for producing his evidence as of right. The Election Tribunal was further of the view that the writ petitioner committed another default in appearance when the Election Tribunal had heard the arguments in the main election petition on the 21st April, 1984 and the case was fixed for announcement of orders but before that could be announced the writ petitioner had made the application under disposal for allowing production of evidence. It was held that he could not be permitted to do so as a matter of right because he had joined the proceedings at a stage when he had lost the right to produce evidence. The case then appears to have been fixed for the 25th April, 1984 as evidenced by Annex. XIX to this writ petition. The proceedings of that date show the election petitioner and his counsel were present while the writ petitioner was present in person, who had submitted an application that his counsel was at Multan and he had to appear in two writ petition and further that he would produce his counsel on the 26th April, 1984 which happened to be Thursday when the preliminary arguments on the review application would be heard.
11. On the 26th April 1984, the Election Tribunal dismissed the review application under rules 8 and 10 of the Election Petition Rules, 1979 read with Order XLVII rule 1 and section 151 C P C as incompetent and warranting no review. The Election Tribunal also announced orders in the main election petition on the same day. The Election Tribunal while accepting the election petition of respondent No.2 to this writ petition, after appraisal of the evidence on the record, held that it was clear from the evidence produced by the election petitioner that due to inadvertence the Presiding Officer committed a mistake by repeating the number of votes in respect of ward No.11 which Haji Riaz Hussain, writ petitioner had secured while writing the result of ward No.12 and because of this mistake there was wrong calculation of votes secured by said Haji Riaz Hussain. The Election Tribunal recorded the finding that in fact the election petitioner/ respondent No.2 to the writ petition had secured 7217 votes in Halqa No.11 from all the polling stations and the votes secured by the writ petitioner who was respondent No.l to the election petition were 7199. It was held that this was a mistake committed by the Presiding Officer with the result that the writ petitioner was declared successful whereas the election petitioner had secured more votes. It was further held that from the evidence on the record the case of the election petitioner was established. All the issues were thus decided in favour of the election petitioner. The ex parte evidence relied upon by the Election Tribunal was of Muhammad Nawaz, Assistant District Nazir who produced the election record including the bags for polling station Government Primary Girls School Harappa in respect of female wards No.9, 10,11 and 12, that of Mrs. B. Malik, Presiding Officer and lastly of respondent No. 2 to this writ petition, Muhammad Arshad Khan, who was the election petitioner. The Election Tribunal, thus declared the election of the writ petitioner from Halqa No.11 Zillah Council, Sahiwal as void and respondent No.2 to this writ petition was declared as duly elected to be a member of the Zillah Council from the said Halqa. It was further held that the allegations levelled through the recrimination petition were not established which had been refuted by the election petitioner. The recrimination petition was also thus dismissed.
12. The sequence of events would not be complete without mentioning the fact that it came to our notice that the petitioner had earlier filed two writ petitions before this Court during the pendency of the election petition. These writ petitions are No.456 of 1984 and No.484 of 1984. We sent for the files of these cases and perused the same. It may be observed that writ petition No.456 of 1984 was instituted by the petitioner on the 19th April, 1984 as is evident from the endorsement thereon. The petitioner through this petition had challenged the orders of Election Tribunal dated the 17th April 1984 refusing to set aside the ex parte order dated the 23rd February, 1984 and fixing the main election petition for arguments and orders on the 21st April, 1984. This writ petition came up for hearing before a Division Bench on the 21st April, 1984 and the interim order of the Court shows that since the case had come up for hearing at 11‑30 a.m., the learned counsel for the petitioner sought adjournment to verify if some final order had been passed by the learned Tribunal by then. The writ petition was then adjourned to the 22nd April, 1984 on which date the learned counsel for the petitioner did not press the petition at that stage and sought withdrawal of the same to approach the High Court afresh. The writ petition was disposed of accordingly.
The second writ petition No.484 of 1984 was instituted before this Court on the 26th April, 1984 as is witnessed by the office endorsement on the file of this case. This petition was filed on the ground that the order of the Election Tribunal dated the 17th April, 1984 dismissing the application for setting aside the ex parte proceedings and the order of the Election Tribunal dated the 24th April, 1984 refusing permission to adduce evidence were illegal, void, without lawful authority and of no legal effect. However, this writ petition when it came up for hearing before the High Court on the 28th April, 1984 was also withdrawn.
13. The petitioner then filed the present writ petition which was admitted to a regular hearing by a Division Bench to consider the submission that though the main case was not fixed for hearing on the 26th April, 1984, the Election Tribunal had disposed of the main case without hearing the arguments by the parties. Respondent No.2 has filed his written statement.
14. We must observe at the very outset that writ petition is devoted to throw challenge to the procedural aspects and the technicalities of law. There was no ground taken as to the merits of the actual valid votes secured by the two rival candidates nor the factual findings of the Tribunal as to the count of votes had been assailed. No challenge was thrown to these findings even at the hearing. The main brunt of the attack of the petitioner was confined to the order dated the 26th April, 1984, dismissing the review application and the announcement of orders in the main election petition without hearing arguments of the parties on a day which was not a date of hearing fixed in the main case. The petitioner also challenged the validity of the orders dated the 23rd February, 17th April and 24th April, 1984.
15. We would like to deal with the first ground urged by the learned counsel for the petitioner in so far as it relates to refusal of the Election Tribunal to review his earlier order dated the 23rd February, 1984 proceeding ex parte against the petitioner and the order dated 17th April, 1984 dismissing the application to set aside the ex parte order. The learned counsel for the petitioner relied on the provisions of Rules 8 and 10 of the Punjab Local Councils (Election Petition) Rules, 1979 to justify his stand that the Election Tribunal possessed the power of review. The plea taken was that by virtue of Rule 8 ibid, it had been provided that subject to the provisions of the Punjab Local Government Ordinance, the Election Rules and the Election Petition Rules, every election petition is to be tried as nearly as may be in accordance with the procedure for trial of suits under the Code of Civil Procedure, 1908. Thereafter, Rule 10 ibid provided that the Election Tribunal shall have all the powers of Civil Court trying a suit under the Code of Civil Procedure and shall be deemed to be Civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898. The learned counsel for the petitioner was of the view that on a combined reading of the two rules, it emerged obvious that the procedure of the C.P.C. having been made applicable and the Tribunal also having been invested with all the powers of Civil Court trying a suit under the Code of Civil Procedure, it would also be invested with the power of reviewing its orders. This argument was considered by the Election Tribunal and it was held that review petition was not competent before an Election Tribunal since review was creation of a statute and where ro power of review was provided in the statute under which the proceedings were being taken, a review would be incompetent. The argument was also in the alternative repelled on the view that the mere fact that the Court had taken a wrong view on a point urged by the party did not furnish a ground for interference in review jurisdiction.
16. Now, we would like to examine these questions at our own level. A reference needs to be made to section 24 of the Punjab Local Government Ordinance, 1979 which read as under:‑
"(1) No election shall be called in question except by election petition.
(2) A candidate may make an election petition before the Election Tribunal challenging the election at which he was a candidate.
(3) The decision of the Tribunal on an election petition shall be final."
Thereafter, subsection (1) of section 25 ibid provides for appointing of an officer to be an Election Tribunal for such area as may be specified in the notification by the Election Authority. Under subsection (4) of the said section, the Election Authority may frame rules to provide for the manner in which an election petition is to be presented and heard by the Election Tribunal and also specifying the factors and the basis which shall be taken into consideration for the disposal of election petition. It emerges clear on a careful reading of the Punjab Local Government Ordinance and the afore‑referred provisions that there is no power of review conferred specifically either by the parent statute or by the Election Petition Rules. Rule 8 relied upon by the learned counsel relates to the procedure to be followed. This argument…
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