Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Muhammad Salman VS Respondent: Naveed Anjum and others
Court Name: Supreme Court of Pakistan Judge(s): Mushir Alam, Syed Mansoor Ali Shah, Munib Akhtar Title: Muhammad Salman vs Naveed Anjum and others Case No.:Civil Appeals Nos. 1498 and 1499 of 2018 and Civil Petitions Nos. 972-L and
JUDGMENT
Reported As: 2021 SCMR 1675, 2022 SCMR 42 Result: Petition allowed Judgment
JUDGMENT MUNIB AKHTAR, J. The four cases (being two appeals and two leave petitions) before us relate to an election dispute arising out of the General Election of 2018 in respect of a seat in the Punjab Assembly, PP-217 (Multan-VII). All of these cases have been filed by Mr. Muhammad Salman who was the winning candidate (and who is herein after referred to as "the appellant"). The issues at hand involve, inter alia, a consideration of section 9 of the Elections Act, 2017 ("2017 Act") and the powers and 'jurisdiction of the Election Commission of Pakistan ("Commission") in terms thereof, as well as, more generally, under clause (3) of Article 218 of the Constitution. 2. It appears that after the appellant was declared the winner one Mr. Shoaib Akmal Qureshi ("Mr. Qureshi") filed a petition before the Commission under Article 218(3) read with sections 4, 8 and 9 of the 2017 Act, alleging that the appellant was underage (being less than 25 years old) on the date of the filing of his nomination papers. It was claimed that the record had been manipulated to show that he was eligible to contest the election. Certain other allegations were also made, and it was prayed that his election be set aside under two paragraphs of clause (1) of Article 62 of the Constitution. In the petition, Mr. Qureshi identified himself as being resident in, and a registered voter of, the constituency. At around the same time, one Mr. Naveed Anjum ("Mr. Anjum"), who also identified himself as a registered voter of the constituency, filed a constitutional petition in the Lahore High Court (W.P. 11388/2018) on 07.08.2018 making substantially the same allegations against the appellant. It was stated in the petition that the Commission had been approached under sections 8 and 9 of the 2017 Act, but no action was forthcoming. It was prayed that the
---
## Page 2
appellant's election be set aside. On this petition, an order was made on 08.08.2018 in the presence of counsel for Mr. Anjum and the Commission (though in the absence of the appellant who was respondent No. 4 therein) that the petition filed by Mr. Anjum before the Commission be heard and decided. 3. The Commission clubbed the two matters and after notice to the appellant and others and hearing the parties, made the impugned order dated 01.10.2018. The petitions were allowed and the election of the appellant was set aside. The operative part of the impugned order was in the following terms (emphasis supplied): "16. In the light of the entire discussion above, the Commission holds that the respondent Muhammad Salman, on the date of filing nomination papers on 6.6.2018 was not eligible to contest election being below the age of 25. That his date of birth throughout shown as 28.1.1994, was correct and the one now changed to 1.2.1993, is a result of manipulations and interpolations. The election of Muhammad Salman returned candidate from PP-217 Multan-VIZ is hereby declared void, under section 9 of the Election Act, 2017 and all enabling provisions of the Constitution and the law. His notification as returned candidate is withdrawn and it is hereby directed that re- election be conducted in the whole constituency PP-217 Multan VII." 4. The appellant thereupon filed two constitutional petitions in the Lahore High Court. Writ Petition 14893/2018 was filed on or about 11.10.2018, and was in relation to the petition filed before the Commission by Mr. Qureshi. Writ Petition 16234/2018 was filed on or about 27.10.2018 and was in relation to the petition that had been filed by Mr. Anjum. In both the appellant assailed the aforesaid order of the Commission dated 01.10.2018. The learned High Court heard the petitions together, and by judgment dated 26.02.2019 dismissed them. Against this judgment the appellant has filed the two leave petitions now before us. Along with filing petitions before the High Court, the appellant also filed two appeals, under section 9(5) of the 2017 Act, directly in this Court assailing the order of the Commission. As before, one appeal related to the petition filed by Mr. Qureshi and the other to the one filed by Mr. Anjum. These are the two appeals that are before us. Learned counsel for the appellant explained that this two-track approach was taken only out of abundant caution, since (as we will see) the principal part of the appellant's case is that the Commission had no jurisdiction under section 9 to declare the appellant's election as void, and hence it was unclear whether an appeal lay under subsection (5) thereof. Be that as it may, all four matters now fall to be decided. 5. Before proceeding further, we may note that both before the Commission and the High Court, the matter was contested also by Mr. Makhdoom Shah Mehmood Qureshi ("Mr. Makhdoom Qureshi"), who had been one of the candidates in the constituency (and who had, of course, lost the election, although garnering the next highest number of votes). Indeed, one of the objections taken by learned counsel for the appellant was that both Mr. Anjum and Mr. Qureshi were nothing but men of straw, being merely nominees of Mr. Makhdoom Qureshi. In the event, the principal submissions before us for the private respondents were made by learned counsel who Appeared for the latter. 6. It will presently become clear that along with the provisions of the 2017 Act, we will also have to consider certain provisions of (one of) the predecessor statutes, the Representation of the People Act, 1976 ("1976 Act", commonly referred to as "ROPA"). In particular, section 103AA thereof, which was the provision corresponding to section 9 of the 2017 Act, will have to be looked at. It will be convenient to set out at the outset (to the extent material) some of the provisions from the two statutes in tabular form: 2017 Act 1976 Act
---
## Page 3
9. Power of the 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 enquiry as it may deem necessary, the Commission is satisfied that by reason of grave illegalities or such violations of the provisions of this Act or the Rules as have materially affected the result of the poll at one or more polling stations or in the whole constituency including implementation of an agreement restraining women from casting their votes, it shall make a declaration accordingly and call upon the voters in the concerned polling station or stations or in the whole constituency as the case may be, to recast their votes in the manner provided for bye-elections. Explanation. --If the turnout of women voters is less than ten percent of the total votes polled in a constituency, the Commission may presume that the women voters have been restrained through an agreement from casting their votes and may declare, polling at one or more polling stations or election in the whole constituency, void. ... (3) Notwithstanding the publication of the name of a returned candidate under section 98, 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 the decision of an Election Tribunal on an to the decision of an Election Tribunal on an election petition, if any. (4) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be an Election Tribunal to which an election103AA. 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) Notwithstanding 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 sub section (1), the Commission shall be deemed to be a Tribunal to which an election petition has Been presented and shall, notwithstanding anything contained in Chapter VII, regulate its own procedure....
---
## Page 4
petition has been presented and shall, notwithstanding anything contained in Chapter IX, regulate its own procedure.... 4. Power to issue directions.---(1) The Commission shall have the power to issue such directions or orders as may be necessary for the performance of its functions and duties, including an order for doing complete justice in any matter pending before it and an order for the purpose of securing the attendance of any person or the discovery or production of any document. (3) Anything required to be done for carrying out the purposes of this Act, for which no provision or no sufficient provision exists, shall be done by such authority and in such manner as the Commission may direct.104. Directions of Commission in certain matters.---Anything required to be done for carrying out the purpose of this Act, for which no provision or no sufficient provision exists shall be done by such authority and in such manner as the Commission may direct. We may note that subsection (1) of section 4 of the 2017 Act corresponds to section 6(1) of the Election Commission Order, 2002 ("2002 Order"). This Order, along with the 1976 Act and a number of other statutes relating to elections, of course stand repealed by section 241 of the 2017 Act. The present statute now deals with all matters relating to elections to both the Houses of Parliament and the Provincial Assemblies. 7. Learned counsel for the appellant, after stating the facts substantially as above, and referring to the litigation in the forums below, submitted that there was a substantial difference between section 9 on the one hand, and section 103AA on the other. It was submitted that while the latter had specifically conferred jurisdiction on the Commission to declare the poll in any constituency to be void and call for a bye-election in terms of section 108, the former expressly limited its powers to calling upon the voters of the affected polling stations (or even, in appropriate cases, the whole of the constituency) to "recast their votes in the manner provided for bye-elections". Learned counsel submitted that the reference to bye-elections in section 9 was only procedural, i.e., it specified that the manner in which the votes were to be recast and nothing more. Learned counsel submitted that Parliament, which was of course fully aware of the state of the earlier legislation, had deliberately restated the language of section 9 and eschewed the use of the term "void". Thus, the impugned order made by the Commission, which purported to void the appellant's election, was beyond jurisdiction and had to be set aside on this ground alone. Learned counsel further submitted that the earlier case law (considered below) in relation to section 103AA could not be directly applied to the provisions of the 2017 Act. As regards the judgment of the High Court, it was submitted that it essentially turned on the observation by the learned Single Judge that since the appellant had a right of direct appeal to this Court under section 9(5), a writ petition was not maintainable. It was contended that the impugned judgment did not really stand in the appellant's way as long as the fate of the impugned order of the Commission was decided. It was prayed that it be set aside as being beyond jurisdiction. 8. Learned counsel who appeared for Mr. Makhdoom Qureshi submitted that the Commission had a constitutional duty to hold elections freely, fairly and honestly and to guard against corrupt practices. This was so set out in clause (3) of Article 218 and this provision had to be construed and
---
## Page 5
applied in a broad manner in order to enable the Commission to fulfill its constitutional mandate. It was submitted that this provision was comprehensive enough to empower the Commission to annul the election in any constituency in appropriate circumstances. Learned counsel also referred to Article 222 of the Constitution, which lists the various kinds of electoral laws that Parliament can enact. Learned counsel strongly emphasized the last part of this Article, which states that "no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Commission under this Part". It was submitted that in order to ensure that section 9 of the 2017 Act was consistent with the constitutionally ordained powers of the Commission, its subsection (1) had to be so construed that the election to a constituency could be declared void in terms thereof. Learned counsel also submitted that the constitutional powers of the Commission were distinct from those that were vested in the election tribunals set up to decide election disputes, as contemplated by Article 225. It was submitted that the recasting of votes referred to in section 9(1) did not substantively change the law from the earlier position. It was reiterated that the position under, and hence interpretation of, both section 9 and section 103AA remained the same. Learned counsel referred to various judgments of this Court, as well as a decision of the Indian Supreme Court, in support of his submissions. It was submitted that the impugned order was very much within jurisdiction and learned counsel prayed that the appeals and leave petitions be dismissed. 9. Learned counsel who appeared for Mr. Qureshi in one of the appeals (C.A. 1499/2018) submitted that section 9 had to be read and applied liberally. Its clear purpose, unchanged from before, was to allow the Commission to summarily deal with the sort of election disputes as came within its scope, and at the earliest stage. It was submitted that the law was now settled that in case a returned candidate had made misdeclarations or falsely stated material particulars in the nomination papers, then he should not be allowed to hold office. The matter of the right/eligibility of such a person to be a member of the concerned legislature had to be dealt with swiftly and hence a broad and liberal interpretation had to be accorded to section 9. It was submitted that the Commission was fully empowered to act in this regard under section 9 and that the impugned order was within jurisdiction. Certain decisions of this Court were relied upon. It was prayed that the appeals and leave petitions be dismissed. 10. The learned AAG, who appeared in Court notice, submitted that the impugned order was within jurisdiction. It was submitted that s. 9 could not be given a narrow or pedantic reading. The learned AAG also referred to certain decisions of this Court, and drew particular attention to a passage from one of those cases, which is considered below. 11. Learned counsel who appeared for Mr. Qureshi in one of the leave petitions (C.P. 972-L/2019) submitted that the constitutional provisions, being principally the various clauses of Article 218, were an interlocking whole which had autonomous effect independently of any statutory provisions. In this regard reference was also made to Article 222 of the Constitution. It was submitted that the Commission had full powers and ample jurisdiction directly conferred by these constitutional provisions to declare, in appropriate circumstances, any election void. As regards section 9, it was submitted that, in substance, it was no different from section 103AA and had to be given similar effect. The provision was to be construed and applied broadly. Various judgments of this Court were also cited. It was prayed that the appeals and leave petitions be dismissed. 12. Learned counsel for Mr. Anjum adopted the submissions made by other learned counsel appearing for the private respondents as also the learned AAG. 13. We have considered the submissions by learned counsel, the record as produced before us and the case law cited. We begin by noting that the matters proceeded (with the consent of learned counsel) purely on the legal plane and in jurisdictional terms, i.e., whether the Commission had the jurisdiction to declare the election of a returned candidate void under section 9 of the 2017 Act and/or more generally under Article 218(3) of the Constitution. They are being so decided.
---
## Page 6
14. It happens from time to time that the legislature, having earlier enacted a law on a particular subject matter, decides to take a fresh look at the same and place new legislation on the statute book. This is what has happened with electoral laws. By 2017, the 1976 Act, and certain allied laws such as the Electoral Rolls Act, 1974, the Delimitation of Constituencies Act, 1974 and the Senate (Election) Act, 1975 had been on the statute book for well-nigh four decades. They had been amended from time to time (indeed, the last amendment to the 1976 Act was done in 2017) and had also been considered many times by the courts, including this Court, and thus accumulated a significant body of case law. It appears that Parliament decided to take a fresh look with the view of producing omnibus legislation that dealt comprehensively with matters relating to elections to the National Assembly and the Senate, as well as the Provincial Assemblies. The result was the 2017 Act, whereby the existing body of statute law was repealed and replaced with new legislation. 15. When the provisions of the 2017 Act are compared with the corresponding provisions of earlier legislation, we find that the former contains language that is sometimes exactly the same as before, and sometimes has been altered. Obviously, the legislature, when enacting fresh legislation, is presumed to know the previous state of the law, including the case law that gives the inevitable judicial gloss to statutory language. Considered against this background it is our view that where a provision in the 2017 Act uses modified language when compared with the corresponding earlier provision, it ought to be presumed, at least in the first instance, that the legislative intent was to alter the law. Of course, it may be that in the end the Court concludes that the change in language has no modifying effect, and the law remains exactly the same as before. But this is not a conclusion to be drawn lightly. If it is sought to be shown that the law remains the same as before the onus must lie on the person making this claim. And depending on the nature of the change this may be a heavy burden to. Discharge, (Of course, even where the language is exactly the same as before, it may take on a new color and have a different effect than before, in the overall context of the new statute.) This, in our view, is the correct approach to take when, in interpreting and applying the 2017 Act, one of the parties before the Court seeks to have recourse to the earlier legislation, and make out a case that the law has not been changed. 16. Now, the language of section 9, when compared with that of section 103AA has clearly been altered in part and left unchanged in some respects. Focusing for the time being on the first subsections in the two provisions, we find that section 103AA stipulated two conditions in which the Commission could exercise its jurisdiction, being either (i) grave illegalities, or (ii) violation of the provisions of the 1976 Act or the rules. Section 9 specifies three conditions. We will come to the third condition later. Looking at the first two, it is clear that the language used is the same as before, but with the additional requirement that the result of the poll at one or more polling stations or in the whole constituency must have been "materially affected". Whether this additional requirement applies only to the second of the conditions or to both is a matter that does not require determination here. But it would seem that the additional words used are intended to alter the situation in which the Commission can exercise its jurisdiction. What is crucial for present purposes is what it is that the Commission can do if either of the conditions is fulfilled. Under section 103AA, it could declare the poll in the constituency to be void. A judicial gloss put on these words was that the poll for the whole constituency need not be voided: a declaration could even be made in respect of one or more polling stations (see, e.g., Ch. Muhammad Ashraf Warraich and another v. Muhammad Nasir Cheema and others 2016 SCMR 998 (para 23) and Aftab Shaban Mirani and others v. Muhammad Ibrahim and others PLD 2008 SC 779, 817). The relevance of this gloss will become clear presently. Under section 9 however, the language used is different. The Commission can now "call upon the voters in the concerned polling station or stations or in the whole constituency as the case may be to recast their votes in the manner provided for bye-elections". Is it the legislative intent to alter the law by this change in language? In our view, the answer must be
---
## Page 7
in the affirmative. There is a difference between the voters being asked simply to recast their votes on the one hand, and the election to be declared void on the other. Learned counsel for the appellant was, in our view, correct in submitting that under section 9 everything (and especially, for present purposes, the list of candidates) remains the same. Voters simply get another chance of choosing the person who is to represent them, but from the same slate as before. Under section 103AA the entire election (subject to the judicial gloss just mentioned) was, as it were, scrapped and the whole exercise done afresh. Obviously, if the matter were limited to one or more polling stations, the practical result under both section 103AA (on account of the judicial gloss) and section 9 (on account of the statutory language) would be more or less the same. However, if the poll in the entire constituency, was to be redone then there would be a fundamentally different position, as just indicated. In our view, this clearly shows that Parliament intended to bring about a change when it used the modified language. To hold that the law has been left unaltered would be to defeat the legislative intent. 17. The conclusion just arrived at is bolstered when one looks at the third condition in which the jurisdiction under section 9 can now also be invoked. It is that there be an agreement (which has been implemented) to restrain women from casting their votes. This condition is new and was not to be found in section 103AA (unless, tangentially, it could have been regarded as constituting a "grave illegality", on which point we need not express an opinion). What is of relevance for present purposes is not the condition itself (which could not have arisen in the facts and circumstances before us) but rather what the Examination to subsection (1) has to say about it. 18. The manner in which an "explanation" found in a statutory provision is to be interpreted is well understood. In this Court, it was observed as follows in Naveed Textile Mills Ltd. v. Assistant Collector (Appraising) Custom House Karachi and others PLD 1985 X 92 (at pg. 96; emphasis supplied): "We have heard the learned counsel at length. We are in agreement with him that the ordinary function of an explanation is to clarify, to facilitate the proper understanding of a provision, to serve as a guide, as held in the case of Muhammad Hussain Patel [PLD 1981 SC 1]. Nevertheless, it does not exhaust or complete the function and the purpose of an explanation. In the Privy Council case of Krishna Ayyangar: In re ([1920] ILR 43 Mad. 550), it was held that "The construction of the Explanation must depend upon its terms, and no theory of the purpose can be entertained unless it is to be inferred from the language". In another case from Indian Jurisdiction, State of Bombay v. United Motors (AIR 1953 SC 252), the Explanation was found to contain a legal fiction, to provide a simpler and workable test…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.