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Petitioner: BILAL AKBAR BHATTI VS Respondent: ELECTION TRIBUNAL, MULTAN and 15 others
Court Name: Lahore High Court Judge(s): Muhammad Qasim Khan, Shahid Waheed, Muhammad Ameer Bhatti Title: BILAL AKBAR BHATTI vs ELECTION TRIBUNAL, MULTAN and 15 others Case No.:Writ Petition No,11155 of 2013 Writ Petition No,11155/2013 W.P.No,12725/2013
JUDGMENT
Reported As: PLD 2015 Lahore 272 Result: Petition dismissed Judgment JUDGMENT ' MUHAMMAD QASIM KHAN, J.---Four constitution petitions i,e, (i) Writ Petition No,11155/2013 "Bilal Akbar Bhatti v. Election Tribunal and others", (ii) Writ Petition No,11666/2013 "Muhammad Raza Hayat Hiraj v. Election Commission of Pakistan and others", (iii) Writ Petition No,12725/2013 "Mehdi Abbas v. Election Tribunal and others" and (iv) Writ Petition No,11960/2013 "Makhdoom Javed Hussain Hashmi v. The Election Commission of Pakistan and others", were heard by a learned Division Bench of this Court comprising our learned brothers Ibad-ur-Rehan Lodhi and Mahmood Ahmad Bhatti. JJ. There being difference in opinion as to the decision of writ petitions, matters were placed before the Hon'ble Chief Justice of the Lahore High Court, Lahore and it was ordered that the matter be heard by one of us (Muhammad Qasim Khan, J.) as a Referee Judge. Similarly, two other writ petitions i,e, Writ Petition No,1078/2014 "Muhammad Raza Hayat Haraj v. Election Commission and others" and Writ Petition No,1430/2014 "Saeed Ahmad Khan v. Election Commission of Pakistan and others" were filed and as in all the writ petitions similar questions of law were involved, therefore, one of us (Muhammad Qasim Khan, J.) as a Referee Judge directed the office to club and place these matters before the Hon'ble Chief Justice, with a request for constitution of a larger Bench and the Hon'ble Chief Justice vide order dated 8-2-2014 constituted this Bench as a Referee Bench for decision of all these matters. During proceedings of this Bench, some other petitions (Writ Petition No, 13668/2013 "Muhammad Arshad Malik v. The Election Tribunal and others, Writ Petition No, 1078/2014 "Muhammad Raza Hayat Haraj v. Election Commission of Pakistan, and others Writ Petition No,1430/2014 "Saeed Ahmad Khan Nanais v. Election Commission of Pakistan, and others, Writ Petition No, 1512/2014 "Syed Hussain Jahanian Gardezi, and others v. Punjab Election Tribunal
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and others" and Writ Petition No,1594/2014 "Ch. Muhammad Hanif Jatt v. Election Tribunal and others), were also placed before us. 2. For clarity of issue, briefly the facts are that after issuance of notification of the returned candidates of their respective National and Provincial Assemblies, the opposing contesting candidates filed Election Petitions before the Election Commission as provided under section 52 of the Representation of Peoples Act, 1976 (hereinafter to be called as ROPA), and they were referred to the Election Tribunal for trial under section 56(2). During trial the petitioners filed application under Section 63 of the ROPA for dismissal of Election Petition on the ground that the same did not conform to the mandatory provisions of section 54 or 55 of the ROPA. The Election Tribunal dismissed the above said application. The interim order dismissing applications under section 63 of the ROPA filed by the writ petitioners has been assailed through the instant petitions. In one case interim order allowing an application under section 151, C.P.C. Filed by one respondent/ election petitioner for amendment in verification, has been questioned. 3. Perusal of ROPA and survey of the judgments cited by the learned counsel for the parties, evinces that under section 54 of the ROPA, the petitioner of Election Petition shall join as respondents to his Election Petition, all the contesting candidates and any other candidate against whom any allegation of corruption or illegal practice (that is corrupt practice or an illegal practice within the meaning of Chapter-VIII of ROPA) is made and serve personally or by registered post a copy of the petition; and that the contents of Election Petition and even "schedule" or "annexures" to that Petition shall be signed by him and verified in the manner laid down in Civil Procedure Code, 1908 (Act of 1908) for the verification of pleadings. The survey of the ROPA and the judgments pronounced by the apex Court from time to time in this regard vouchsafe following principles:- (i) that section 63 of the ROPA does not contain any direction that petition shall be dismissed, even if there be a partial failure to comply with the provisions of section 55, ex-facie section 63 of the ROPA would seem to be designed to cover the case where the petition as a whole made allegations of vague and indefinite character without being supported by full particulars of the corrupt or illegal practice. "S. M. Ayub v. Syed Yusaf Shah and others" (PLD 1967 Supreme Court 486). (ii) that section 62(3) of the ROPA evinces the anxiety of the legislature to provide for the adjudication of substantial disputes between the parties insofar as it amounts to amendment of a petition to bring out the real points at issue; "S. M. Ayub v. Syed Yusaf Shah and others " (PLD 1967 Supreme Court 486). (iii) that if the petition taken as a whole fails to comply with the provisions of section 55 of ROPA, it shall be dismissed as revealing no cause of action for the reason that policy of ROPA is to discourage Election Petition, even during trial, if genuine grounds for challenging an election does not exist. (iv) that by "schedule or annex" mentioned in section 55(3) of the ROPA is apparently meant such a schedule and annexures as either makes additional allegations of a substantive character against the opposite party, or at least furnishes better particulars C of the allegations made in the petition, so as to give them the status of substantive grounds of the petition itself. "S. M. Ayub v. Syed Yusaf Shah and others" (PLD 1967 Supreme Court 486). (v) that pleadings are to be verified on oath and the oath is to be administered by a person who is duly authorized in that behalf. Non-verification or non-attestation of oath by an authorized person is fatal. "Engr. Lqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others" (2000 SCMR 250). (vi) that Public documents do not require any verification. "Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others" (PLD 2004 SC 570). (vii) that Oath is to be practically administered. (viii) that requirement of Section 55 of the ROPA would be gone into by the Tribunal itself and not by the Chief Election Commissioner. Such objection can validly be raised before the Tribunal and
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Tribunal alone. "Sardarzada Zafar Abbas and others v. Syed Hassan, Murtaza and others" (PLD 2005 Supreme Court 600). (ix) that there is no material difference between verification on oath and of verification through affidavit. An affidavit is sworn statement while the verification is confirmation in law by oath in order to establish the truth, accuracy and reality of a statement of facts. Thus, there is practically no difference whatsoever by verifying a statement on oath and by verifying the same statement on affidavit. It also loses significance when such affidavit on oath is attested by the authority competent to administer oath; (x) that failure to give reference to the paragraphs of the pleadings as to what he happened to verify according to his own knowledge and what he happened to believe upon information received and believed to be true, is immaterial. "Moulvi Abdul Qadir and others v. Moulvi Abdul Wassay and others" (2010 SCMR 1877). (xi) that amendment to remove the defects in verification of Election Petition and its annexures on Oath or solemn affirmation before a person authorized to administer Oath can be allowed by the tribunal during the period of limitation prescribed for filing of Election Petition. PLD 2007 SC 362 (Malik Umar Aslam v. Sumera Malik). C.A. No,963 of 2013 decided on 26-09-2013 (Saeed Ahmad Qureshi v.. Haji Ehsan ud Din Qureshi). (xii) that non-verification of pleadings on Oath or solemn affirmation before a person not authorized to administer Oath would be deemed not duly verified on Oath. "Malik Umar Aslam v. Sumera Malik" (PLD 2007 SC 362). (xiii) that sections 62 and 63 of ROPA are independent of each other. IL "Malik Umar Aslam v. Sumera Malik" (PLD 2007 SC 362). (xiv) that if there are allegations that the returned candidate is a defaulter of loan, taxes, government dues or utility charges, or has submitted a false or incorrect declaration regarding payment of loans, taxes, government dues or utility charges, or has submitted a false or incorrect statement of assets and liabilities of his own, his spouse or his dependents under section 12, then such allegations are not required to be verified on Oath. (Section 76-A of the Representation of the People Act, 1967) 4. Learned counsel for the petitioners, after relying upon the above cited decisions of the Hon'ble Supreme Court of Pakistan whereby the above quoted principles were established, submit that the order passed by the learned Election Tribunal by dismissing the application of the petitioners filed under section 63 of ROPA is illegal; that this Court has ample jurisdiction to correct the illegality committed by the Election Tribunal; and that under Article 199(5) of the Constitution of the Islamic Republic of Pakistan, 1973, Tribunal falls within the definition of "Person" and thus this Court has jurisdiction to strike down the impugned order by issuing writ of certiorari as otherwise the petitioners would become remediless against the orders impugned in these petitions. On the other hand the learned counsel appearing on behalf of respondents vehemently opposed these petitions and submitted that instant petitions assailing the interim order of the Election Tribunal are not maintainable due to lack of jurisdiction and thus liable to be dismissed. 5. The learned Division Bench which had differed in opinion did not formulate any question to be resolved by the Referee Bench, thus, we, after examining the judgments of both the learned Members of the Division Bench, framed following questions of law to be resolved:-- (i) Whether Article 225 of the Constitution of the Islamic Republic of Pakistan, 1973 ousts the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with regard to post election disputes? (ii) Whether jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 may be exercised against interlocutory orders passed by the Election Tribunal during the process of trial?
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6. In order to provide the peg on which the above referred questions are, to be hung, it is necessary to survey the case-law on the subject. Badar ul Hague Khan v. The Election Tribunal, Dacca and others" (PLD 1963 SC 704). In this case against the order of the Election Tribunal a writ petition was filed and a Division Bench in constitutional jurisdiction set-aside the order of the Election Tribunal resulting in leave to appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court converted the same into Civil Appeal and held as under: - "The order of the Tribunal was attacked as without lawful authority also on the ground that it misinterpreted the provisions of the Representation of the People Act and held the simple appearance of the respondent's name on the contractors' list to be a sufficient disqualification. It is urged that this was a clear error of law and such an error would make the decision "without lawful authority". The proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. I do not see any difference in a case where the question of law decided is a matter on which two opinions can easily be held and a case where the decision on a question of law appears to be clearly erroneous. It would not make difference that on logical reasoning the interpretation of law by the Tribunal could not be supported. Unless a case of mala fides or a mere colourable exercise of jurisdiction could be made out the decision would not be without lawful authority. If an order can be without legal authority because of a clearly wrong determination of a question of law, it should be without legal authority even in case of a clearly wrong determination of a question of fact. There is no reason for any distinction in this connection between a decision on a question of law and a decision on a question of fact. So if we were to accept the proposition that clearly erroneous decisions are without lawful authority the Court acting under Article 98 would constitute itself a Court of appeal for matters of fact as well as matters of law. ' ORDER OF THE COURT ' We allow this appeal and direct that the writ issued by the High Court to quash the decision of the Election Tribunal should be recalled. We leave the parties to bear their own costs. (ii) In the landmark judgment handed down in the case of "Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and others" (PLD 1966 SC 1), the question of jurisdiction conferred upon the High Court by Article 98 of the Constitution of 1962 (corresponding Article 199 of the Constitution of Islamic Republic of Pakistan, 1973) in relation to the election disputes, for which the provision was made by Article 171 (Corresponding Article 225 of the Constitution of 1973) and the law made in compliance there with, was considered at length, and it was held as under:-- "The position has throughout been that election disputes had been totally excluded from the jurisdiction of the High Courts. The whole law relating to the conduct of elections and in particular to balloting, ie discrimination between valid and invalid votes, as well as in relation to corrupt practices and other illegalities such as could vitiate an election or entail the loss of franchise by individuals has remained throughout sealed territory qua the jurisdiction of the High Court. ' Further, it was held that:- ' I say this, not with reference to anything arising in this case directly, but for the reason that where the Parliamentary and judicial traditions are not indigenous, nor of any long standing but where the Constitution expressly provides for differentiation of functions between the three great organs of the State, it is a major consideration of great weight that its provisions should not be interpreted in a manner which enables one of those organs to interfere directly with matters which the Constitution has placed exclusively within the authority of another organ for "final determination". In direct contrast to the provision now obtaining in England that election disputes are referred to
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the High Court for determination under the special provisions referred to above, in our Constitution, Article 171 requires that such matters should go before specified authorities and Tribunals for "final determination." These authorities and Tribunals exercise in the relevant respect jurisdiction which does not and never did belong to the High Court, but is an essential part of Parliamentary jurisdiction, that has been by law entrusted to specified, authorities to operate. ' The apex Court also observed:- ' Anything in the nature of the exercise of a full scale appellate jurisdiction must, be rigorously avoided by the High Court, for that would be to override the requirement of the Constitution that the power under Article 98 should be exercised so as to give full effect to the terms of such a provision, as that contained in Article 171. (iii) "Nawab Syed Ram* Ali and others v. Chief Settlement Commissioner and others" (PLD 1973 SC 236). In this case, it has been held as under:-- "Finality given by Legislature to decision of certain Tribunal which also has jurisdiction to decide finally facts upon which its own jurisdiction founded-Decision, in such case, cannot be called into question in any collateral proceeding by another tribunal or body of limited jurisdiction. ' It is no doubt true that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to decider either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non-existent in the eye of law; that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction." (iv) "Muhammad Azam Faruqui v. Moulana Muhammad Shafi Okarvi and others" (1974 SCMR 471). In this case an order of the Election Tribunal refusing to dismiss election petition under section 60 of the National and Provincial Assemblies (Elections) Ordinance XIII of 1970, was challenged before the Division Bench, and ultimately in the cited case the apex Court held as under:-- ' In these facts and circumstances we agree with the learned Judges of the High Court that under section 64(3) of the Ordinance no appeal lay from the order of a Tribunal which was not an order passed under section 63(1) of the Ordinance upon the conclusion of the trial of an election petition. We may add that the said Ordinance does not contemplate piecemeal trial of an election petition. The objection of the petitioners under section 60 of the Ordinance could and should have been considered at the trial of the petition. It may be noted here that under section 59 of the Ordinance, the election petition is triable as nearly as may be in accordance with the procedure for the trial of suit under the Code of Civil Procedure and that the Tribunal is authorised at any time upon such terms and on payment of such fees as it may direct, to allow a petition to be amended in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions at issue, so however that no new ground of challenge to the election is permitted to be raised. 113 the present case it appears that the Election Tribunal was satisfied that prima facie the provisions of section 52 of the Ordinance had been complied with. Nevertheless, issues have already been framed on the allegations of corrupt and illegal practices and the petitioner is not precluded from challenging at trial that the sail allegations are vague or that they have not been proved. (v) "Mian Zahid Sarfraz v. Raja Nadir Per Vaiz Khan and others" (1987 SCMR 1107). In this case Election Tribunal turned down preliminary objection, this order was assailed under section 67(3) of the ROPA by way of an appeal. Preliminary objections were raised by learned counsel for respondents with regard to its competence as under section 67(3) of the ROPA, an appeal could be filed against the final order. The Hon'ble Supreme Court discussed general principles from Corpus Juris Secundum to the following effect:-
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"The general principle has been expressed in the following words in Volume 4 of Corpus Juris Secundum at pages 89, 238 and 244:- "As a general rule, a writ of error lies only from a final judgment or decree or an award in the nature of a final judgment. Such rule represents a policy of the law which is quite uniformly adhered to; but the rule is not inflexible, since it is held to be not jurisdictional with the reviewing ,Court, and the writ may be extended by statutes not only to final judgments but also to orders granting a new trial, or to a refusal to enter judgment for want of a sufficient affidavit of defense. It is the general rule, therefore, that an appeal, writ of error, exceptions, or other proceeding for review will not lie from or to an interlocutory or intermediate decision unless it is expressly permitted by statutes, rule, or constitutional provision. The policy behind, or the ground for, the statutes, rules of Court, and decisions embodying this principle is that litigation should not proceed piece-meal, that intermediate appeals would unduly delay the final disposition of litigation, and that a complete disposition of the matter in the trial Court may make an appeal moot." ' And ultimately, the Hon'ble Supreme Court upheld the preliminary objections with regard to competence of the appeal. (vi) "Mian Ghulam Dastigir Bari v. Rai Salah ud Din and 3 others" (PLD 1987 LAHORE 39). This is a case wherein, against an interim order passed by the Election Tribunal, writ petition was dismissed by this Court, with the following observations: "Election petition---Error in interlocutory orders---Assailing of such order---Calling in question of election is prohibited except through determination of Election Tribunal---Provision of right of appeal under S. 67(3), Act LXXXV of 1976, held, was manifestation of intention of law-maker that proceedings before Election Tribunal be continued uninterrupted---Error in interlocutory orders of Election Tribunal could be assailed in appeal against final order. ' Constitutional jurisdiction, exercise of---Prohibition contained in Art. 225 of Constitution that validity of elections could not be called in question except through the manner prescribed thereby is absolute Constitutional jurisdiction under Art. 199 being subject to other provisions of Constitution could not be exercised in derogation, of Art. 225 of Constitution of Pakistan (1973) Merely because interlocutory order is not appealable, would be no ground to render same to constitutional jurisdiction." (vi) "Bhagwandas v. The Returning Officer and others" (1990 SCMR 1228). In this case, the Hon'ble Supreme Court of Pakistan, held as under:- "It is to be noticed that the election petition is still pending before the learned Election Tribunal and has not yet been finally disposed of. In the case of Zahid Sarfraz v. Nadir Pervez Khan 1987 SCMR 1107, this Court examined the types of orders from which appeals can be preferred under section 67(3), Representation of the People Act. The view taken was that only such types of orders as were enumerated in section 67(1) of the Act were appealable before this Court. Clearly, the order from which the appellant has preferred these two appeals, is not the type of order which can by any means be treated as one falling under the said enumeration. These appeals are, therefore, incompetent and are hereby dismissed in limine. " (vii) (Muhammad Baran and others v. Member (Settlement and Rehabilitation), and others" PLD 1991 SC 691. This is a case wherein, number of writ petitions were filed after decision of the Single Bench, matter was assailed before the Hon'ble Supreme Court of Pakistan and it was observed:- "An order in the nature of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that he order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it causes a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked.
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(viii) "Muhammad Tariq Chaudhry, Member Senate of Pakistan Islamabad and Syed Masroor Ahsan and 3 others" (PLD 1991 ' Lahore 200). In this case the election of Member of Senate was assailed and this Court held as under:- "The opening clause of Article 199 of the Constitution provides "Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law" indicates that the provisions containing in this Article are controlled by other provisions of the Constitution. ' One of the main allegations against the successful candidate was that he filled in the nomination form and concealed having been indicted and convicted in criminal cases thereby earned disqualification to be member of the Senate, for his misconduct in the process of election---Filling up nomination paper for filing thereof being a step in the process of election, was only assailable by means of election petition as envisaged under Art.225 of the Constitution read with Ss.31 and 34, Senate (Election) Act, 1975---. Article 225, Constitution of Pakistan by its mandate had created am independent jurisdiction for resolution of the election disputes by the Election Tribunal after the election process was completed, jurisdiction of High Court under Art. 199 of the Constitution was not available because said jurisdiction was subject to provisions of the Constitution including Article 225. (ix) "Pir Sabir Shah v. Election Commission of Pakistan and others" (PLD 1994 Lahore 516). In this case a…
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