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Petitioner: Dr. RAJA AAMER ZAMAN VS Respondent: OMAR AYUB KHAN, etc.
Court Name: Supreme Court of Pakistan Judge(s): Jawwad S. Khawaja, Gulzar Ahmed, Sh. Azmat Saeed Title: Dr. RAJA AAMER ZAMAN vs OMAR AYUB KHAN, etc. Case No.: Civil Review Petition No. 94 of 2014Civil Appeal No. 31 of 2014 Date of Judgment:2015-06-19 Reported As: 2015 P.S.C. 1189, PLJ 2015 SC 955, 2015 SCMR 1303 Result: Petition allowed
JUDGMENT
JUDGMENT Jawwad S. Khawaja, J.--This petition seeks review of our judgment dated 7.3.2014 whereby Civil Appeal No. 31 of 2014 filed by the petitioner, was dismissed. The facts relevant for the adjudication of this review petition have been set out in the said judgment and, therefore, need not be reproduced except to the extent necessary for the present judgment. Furthermore, only points of law, relating to the interpretation of Sections 67 and 70 of the Representation of Peoples Act, 1976 ("ROPA") are to be addressed in view of the limited scope of review jurisdiction. 2. The facts to the extent relevant are straightforward and can now be stated to facilitate the discussion which follows. The petitioner and Respondent No. 1 are the principal protagonists in this case. In the general elections held on 11.5.2013 for the constituency NA-19 (Haripur), the petitioner was declared as the returned candidate on the basis that he had secured 1,16,979 votes as against 1,14,807 votes in favour of the respondent. A recount was ordered whereafter the petitioner remained the candidate with . The highest number of votes polled although the difference of 2172 votes stood reduced to 1304 as a result of the recount. The respondent filed an election petition which was decided by the Election Tribunal vide order dated 31.12.2013. The Tribunal instead of declaring the election to be void as a whole, directed re-poll in seven polling stations only while holding that the petitioner was not responsible for any corrupt or illegal practice. This is the limited point of law in contention before us because according to the petitioner the Election Tribunal could not have directed a partial re-poll. The respondent, however, asserts that it was within the competence of the Election Tribunal to order partial re-poll in respect of seven polling stations. 3. Through our order of 3.2.2015 in this petition, the reason for issuing notice to the respondents has been given. The contention of learned counsel for the petitioner has been noted viz. "the [Election]
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Tribunal has the power to declare election as a whole void, but it, under no circumstances has the power to declare election void in respect of a few polling stations". It is for this reason it was considered , necessary to "hear this case in detail". 4. On 7.5.2015 we had framed three questions of law and interpretation of statutes on which the hearing of the review petition was focused. These questions are reproduced as under:- "(i) Whether under the law set out in Sections 67 to 70 of the ROPA, it was permissible for an Election Tribunal to pass an order for re-poll in only 7 out of 437 polling stations ? (ii) Whether the provisions of Sections 103 and 103-AA of 'the ROPA, which empower the Election Commission are in pari materia with the provisions of Sections 67 to 70 of the ROPA and, therefore, if through precedent, the Election Commission is seen as being empowered to order a partial re- poll in some polling stations, whether Sections 67 to 70 of the ROPA can be similarly interpreted to authorize the Election Tribunal to order a partial re-poll? (iii) Whether the Election Tribunal is empowered by any of the provisions in Sections 67 to 70 of the ROPA to order a partial re-poll ?" 5. Learned counsel for the petitioner has drawn our attention to our judgment under review and in particular the precedent cited therein titled Ehsanullah Reki vs. Abdul Qadir Baloch (2010 SCMR 1271). The ratio of the said precedent is the basis on which the points of law i.e. Interpretation of Sections 67 and 70 of ROPA, has been made. The relevant portion of the cited case on which reliance has been placed, has been reproduced in our judgment. The learned counsel agued that this precedent in fact goes against the conclusion arrived at in the judgment and according to him, has been erroneously made the basis of the judgment. The relevant extract from the cited case can usefully be reproduced at this stage to enable us to-examine if indeed the contention of learned counsel for the petitioner is well founded. Paragraphs 32 and 33 of the precedent case which are the basis of the judgment under review are reproduced as under:- "32. We are mindful that the allegations levelled with regard to malpractices at some of the polling stations were such that it was difficult to identify the culprits and one obvious course to follow was to direct fresh polls of the entire constituency. However, we note that there were in all 220 polling stations and the dispute subject matter of this appeal is relatable to. 11 polling stations only and with regard to four polling stations the appellant had alleged that in the recount carried out by P.W.1 on the direction of the Election Commission of Pakistan, the former had interpolated in the record, but this could not be proved. The objection of the appellant with regard to the report submitted by C.W.1, the Provincial Election Commissioner after the recount was duly addressed by this Court in remanding the case to the Tribunal. Parties were allowed to cross-examine him. However, nothing adverse was brought in evidence which could discredit the testimony of C.W.1 and no mala fide was either alleged or could be inferred. We further note that notwithstanding the above even if all the rejected votes in all the eleven polling stations (although appellant had specific objection with regard to four only) are cast in favour of the appellant, the respondent still wins by a margin of 188 votes as is borne out from the break up given in Paras 25 and 26 above. 33. In .The afore-referred circumstances, we do not deem it proper to annul the entire election and instead concur with the finding of the Election Tribunal to declare the respondent as a Returned Candidate". 6. From the above extract it is evident that the cited case is quite distinguishable on facts and as a consequence, does not constitute precedent in the present case. The ratio, however, is supportive of the stance of the petitioner. The important point of distinctim between the case of Ehsanullah Reki supra and the present matter is that in the cited case, regardless of the number of votes polled at the 11 disputed polling stations, the result of the election was not affected, while in the present case, the Election Tribunal as well as the judgment in appeal (now under review) have concluded that the result of the seven disputed polling stations had materially affected the
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outcome of the election. It is an express stipulation of Section 70 of ROPA that the election as a whole is to be declared void, if "the result of the election has been materially affected by reason of failure of any person to comply with the provisions of the Act [ROPA] or the rules". In the present case both conditions of the statute viz. Failure to comply with the provisions of ROPA and the second necessary condition that such failure should also have materially affected the result of the election, have been met. Since both statutory requirements exist concurrently in the present case, the election as a whole stands vitiated. 7. We will shortly be considering the words "as a whole" but in our humble opinion, the ratio in the case of Ehsanullah Reki supra supports the contention of the learned counsel for the petitioner rather than the stance of the respondent. The votes at the disputed polling stations would be decisive of the outcome of the election, which is why the case of Ehsanullah Reki supra is distinguishable. The only way the election in the present case could have been saved from being annulled is if the outcome of the election were to remain unaffected even if all votes at the disputed stations were treated as cast in favour of the loosing candidate. It is this "materiality test" which has been duly noted in Paragraph 29 of the judgment under review. The case of Morgan and others v. Simpson and another [(1974) 3 All ER, 722] has been referred to wherein it has been held that "if there was breach of the rules or mistake in holding the polls, and it did affect the result, then the election is vitiated". The case of Muhammad Ali v. Maulana Muhammad Zakria (PLD 1966 Journal 167) has also been cited to hold that if "it is not possible to assess as to what should have been the result of the election had the provisions of the law been correctly followed, the result of the election stood materially affected". 8. If the ratio of the afore cited cases is applied to the facts of the present case, it is clear that the number of votes in the seven disputed polling stations and the difference in votes polled by the two main contestants at such stations is such that it is not possible to assess the outcome of the election. Thus in the judgment of 7.3.2014, it has rightly been observed "it is obvious that non compliance of the law in seven polling stations had materially affected the result of the "entire election". This clearly demonstrates that even as per the judgment sought to be reviewed, the election in the constituency became contaminated as a whole. The question, therefore, which needs to be answered is as to whether despite such finding it was open to the Election Tribunal to conclude that the election was only partially void to the extent of seven polling stations. Section 70 of ROPA, for ease of reference is reproduced as under: -- "70. Ground for declaring election as a whole void.--The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of --- (a) the failure of any person to comply with the provisions of the Act or the rules; or (b) the prevalence of extensive corrupt or illegal practice at. The election". 9. With great respect we are of the humble view that the ratio in the cases of Ehsanullah Reki, Morgan and others and Muhammad; All supra appears to have escaped the notice of the Bench, and as a consequence the same has not been correctly appreciated and applied to the law and to facts of the present case. Therefore, even on the authorities referred to and relied upon in the judgment under review, the conclusion which must follow is that the election stood vitiated as a whole, because of being materially affected on account of failure to ' comply with the provisions of ROPA. Furthermore, after concluding (rightly) that non compliance of the law in seven polling stations had materially affected the "entire election", it was not possible to allow for a partial annulment of the election. 10. The learned counsel for the respondent placed a great deal of emphasis on the provisions relating to the Election Commission under Sections 103 and 103AA of ROPA as interpreted by this Court, with the object of contending that the Election Tribunal also has power to order a partial re-
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poll at some polling stations. For reasons now considered by us, the powers of the Election Commission under Sections 103 and 103AA ibid are materially different from the provisions of Sections 67 and 70 of the ROPA and, therefore, any interpretation of Sections 103 and 103AA cannot be applied to Sections 67 and 70 of ROPA. The provisions are in fact quite different, both in letter and in spirit. 11. The most significant aspect of distinction between the powers of an Election Tribunal under Sections 67 and 7.0 as opposed to the powers to the Election Commission in Sections 103 and 103AA ROPA is constitutional. While the Election Commission has powers vested iri it under Article 218 of the Constitution requiring it to ensure that the election is conducted honestly, justly, fairly, and in accordance with law, the powers of the Election Tribunal are derived from Article 225 of the Constitution which stipulates that "[n]o 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-e-Shoora (Parliament). The Act of Parliament referred to is the ROPA. 12. There is thus a qualitative difference between the powers enjoyed by and invested in the two forums. The Election Commission is mandated to conduct elections honestly, justly, fairly and in accordance with law. It follows, therefore, that where it comes to the notice of the Election Commission that the election being conducted is not in accordance with the mandate of the Constitution and the law i.e. ROPA, the Election Commission may act by removing impediments in the conduct of just and fair elections. It may well be as per ratio in the case of Lt. Gen. (R) Sallahuddin Tirimzi Vs. Election Commission of Pakistan (PLD 2008 SC 735), that for a particular reason such as natural calamity, violence, terrorism etc., effecting a few polling stations, the Election Commission has the power to order a re-poll in such polling stations which have been affected by such events. Section 103 simply states that the Commission may "stop the polls at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices ...". Moreover, clause (c) of Section 103 provides ample power to the Election Commission to "issue such instructions and exercise such powers and make such consequential orders, as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly, and in accordance with the provisions of this Act [ROPA] and the rules". This power under Section 103 ibid is of sufficient amplitude to enable the Election Commission to order a re-poll only in some and not all polling stations in a constituency. The Election Tribunal is not invested with any such discretion. The wording of Section 70 quite clearly requires that the Tribunal "shall declare the election as a whole to be void" if the dual conditions of Section 70 are met, as in the present case. 13. Secondly Section 103AA stipulates that "... 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 violations of the provisions of this Act [ROPA] or the rules, the poll in any constituency ought to be declared void, the Commission may make a declaration accordingly and ... Call upon the constituency to elect a member in the manner, provided for in Section 108". This is an enabling provision which empowers the Election Commission to call upon a constituency to elect a member. This power does not detract, in any manner, from the powers under Section 103 and in particular clause (c) thereof to pass orders in respect of some, but not all polling stations. Moreover, when the provisions of Sections 103 and 103AA. Are examined, it becomes abundantly clear that the Commission has been granted administrative and policing functions for the purpose of conducting elections honestly, fairly, justly and in accordance with law. These administrative powers are not judicial in nature and are exercisable without any deep probe of facts as may be ascertainable on "the face of the record" or after a "summary inquiry" if deemed necessary by the Commission. These powers once exercised by the Commission are also subject to judicial review
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as administrative acts because the same are by definition, based on a summary inquiry or in certain cases, even without such inquiry. The powers of the Election Tribunal on the other hand are based on Article 225 of the Constitution and are of a judicial and adjudicatory nature subject only to an appeal, in accordance with the provisions of ROPA and the rules. 14. As for the interpretation of the above noted statutory provisions, learned counsel for the respondent cited a number of judgments from our own and from Indian jurisdictions and also referred to principles of interpretation of statutes in support of his plea that the interpretation of Sections 103 and 103AA in the ease of Aftab Shahban Mirani u. Muhammad Ibrahim (PLD 2008 SC 779) can be treated as precedent for applying the same interpretative principle to Sections 67 and 70 of ROPA. This submission, in our opinion, is misconceived. Firstly, because of the nature of the powers of the Election Commission which are derived from Section 218 of the Constitution as discussed above. This is in contradistinction to the powers of the Election Tribunal which are derived under Article 225 of the Constitution. Secondly, even the wording of Sections 103 and 103AA is significantly different from the wording of Sections 67 and 70 of ROPA. Since in the present case the result of the election has been materially affected as a result of the failure by polling staff to comply with the provisions of ROPA, there is no option left with the Tribunal but to declare the election as a whole to be void. The words "as a whole" do not appear in Sections 103 and 103AA and as such there is no justification for treating these provisions as being in pari materia with Sections 67 and 70 of ROPA. The Election Commission has a wide range of powers and discretion which, we say with great respect, is not available to an Election Tribunal because of the language employed in Section 70 of ROPA. The Election Tribunal cannot go beyond the powers granted by ROPA because it is constrained by Article 225 ibid to act only "in such manner as may be determined by Act of Majlis-e- Shoora (Parliament)". 15. The case of Aftab Shahban Mirani supra is thus clearly distinguishable and has no application in the present matter. Firstly because it relates to the Election Commission and its powers under ROPA and not to the powers of an Election Tribunal. Secondly, it is the plain reading of Section 103 read with Section 103AA of ROPA which was adopted and followed by the Court. It was clear on the facts of the cited case that in exercise of powers under Sections 103 and 103AA of ROPA, the Election Commission was well within its jurisdiction to direct a re-poll only at 17 disputed polling stations. Thirdly, an important distinction is to be drawn from the fact that the case of Aftab Shahban Mirani supra arose out of a writ petition to challenge the administrative orders of the Election Commission by way of judicial review. The circumstances of the present case are materially different from those of the case of Aftab Shahbad Mirani for the reasons which have already been explained above and which demonstrate that none of the circumstances in the cited precedent are available in the present case. Moreover, the provisions of Sections 67 and 70 of ROPA were neither subject matter of the said case nor were the same interpreted. 16. The learned counsel for the respondent also cited the case of Mohinder Singh vs. Chief Election Commissioner (AIR 1978 SC 851) decided by the Supreme Court of India wherein it was held that a partial re-poll could be ordered by the Election Court. We have examined the Indian ROPA and note that it is significantly different from the Pakistani statute and in particular it does not limit or mandatorily require the Election Court to declare the election as a whole to be void. This, however, is mandatory where the conditions of Section 70 ROPA, reproduced above are met. Under Section 100 of the Indian ROPA it is open to the Election Court to declare the election of the returned candidate to be vaid. The words "as a whole" are conspicuously missing from the Indian statute. The case of Mohinder Singh vs. Chief Election Commissioner supra, therefore, does not have even persuasive value in the present case. Likewise the case of AC. Jose vs. Sivan Pillai (AIR 1984 SC 921) is also not apt for the same reason.
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17. The matter now before us, therefore, appears to be one of first impression for this Court. Finally, we may mention that learned counsel for the respondent referred to a number of cases involving interpretation of statutes. These cases and the treatise on statutory interpretation by F A R Bennion in fact, state quite clearly that where the wording of a statute does not admit of any ambiguity, Courts do not have the power to travel beyond such wording in search of some illusory meaning which may have been "intended" by Parliament. In the case before us we say with great respect, there appears to be no reason why the words "as a whole" should be ignored or made' redundant. One salutary rule for interpretation of statutes is that redundancy is not to be imputed to the legislature. If the statute requires the election as a whole to be declared void, it is not possible to hold that this includes the jurisdiction to declare the election at a few polling stations to be void. This is particularly so when the finding recorded in our judgment is categorical that the entire election has been materially effected. Moreover, when the law mandates the doing of a certain thing in a certain way such thing has to be done in the way mandated by law and in no other way. 18. We may also add that the submission of learned counsel for the respondent that no prejudice has been caused to the petitioner on account of re-poll at seven stations, is not legally tenable. We have already noted above that even according to the finding of the Election. Tribunal and of this Court in the judgment under review, the election as a whole stood contaminated when it became evident that the voting at the said polling stations had materially affected the outcome of the election. The prejudice, therefore, to the petitioner is evident. We may once again state that the Tribunal had concluded with clarity that "it is a clear cut case where the result of election can be said to have been materially affected on account of illegality in process of election on the part of the polling staff'. A similar view, as noted above, has been recorded in the judgment sought to be reviewed. Furthermore, the failure to properly apply the law would also, by definition, be prejudicial not only to the petitioner but also to the entire electorate of the constituency because, as a consequence they would not be able to elect a Parliamentarian in a bye election, in accordance with law. This and the above discussed aspects of the case appear to have escaped the attention of the Bench while rendering the judgment under .Review. 19. In view of the foregoing discussion, we allow this review petition and hold that the election as a whole stood vitiated. Civil Appeal No. 31 of 2014 is thus allowed. The Election Commission shall, therefore, hold a bye, election for the constituency NA-19 (Haripur) in accordance with law. Sd/- Jawwad S. Khawaja, J. Sd/- Gulzar Ahmad, J. Sd/- Sh. Azmat Saeed, J. I have add note of dissent. Sh. Azmat Saeed, J.--Through the instant Civil Review Petition under Article 188 of the Constitution of the Islamic Republic of Pakistan, 1973, the Petitioner has called into question the judgment of this Court dated 07.03.2014, whereby an Appeal filed by the Petitioner, was dismissed. 2. The brief facts necessary for adjudication of the lis at hand are that the Petitioner and the Respondents contested the elections for the National Assembly from Constituency NA-19, Haripur, KPK, held on 11.05.2013. And after a recount, directed by the Election Commission of Pakistan (ECP), the Petitioner was declared, as the Returned Candidate. Respondent No. 1 filed an Election Petition before the Election Tribunal, which was partially allowed vide judgment dated 31.12.2013, and the ECP was directed to hold re-polling at seven Polling Stations. The Petitioner challenged the said judgment in an Appeal before this Court, which was dismissed vide judgment dated 07,03.2014, now sought to be reviewed through the instant Civil Review Petition.
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3. A finding was returned by the Election Tribunal and maintained by this Court that there had been a failure to comply with the mandatory requirements of the Representation of the People Act, 1976 (ROPA) at the said seven Polling Stations and such failure in view of the close contest inter se the Petitioner and Respondent No. 1 had materially affected the result of the election. At the very outset, learned counsel for the Petitioner submitted that such findings are not disputed. However, it is the case of the Petitioner that upon an Election Petition Med before it, the Election Tribunal can only pass one of the several possible orders set forth in Section 67 of ROPA, subject to the conditions mentioned in the succeeding Sections and in the eventuality, the Election Tribunal reaches the…
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