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Petitioner: TARIQ HUSSAIN VS Respondent: SUBHAN ALI and 6 others
Court Name: Sindh High Court Judge(s): Muhammad Faisal Kamal Alam Title: TARIQ HUSSAIN vs SUBHAN ALI and 6 others Case No.: Election Appeal No. 41 of 2016 Date of Judgment:2018-09-17 Reported As: 2019 CLC 1592 Result: Case remanded
JUDGMENT
JUDGMENT MUHAMMAD FAISAL KAMAL ALAM, J.----The Appellant has challenged the Judgment dated 09.12.2016, passed in Election Petition No.02 2015, filed by the present Appellant to challenge the election of Respondent No.1 (Subhan Ali) as a Returned Candidate to the seat of General Member Ward No. 6, Town Committee 16-Setharja, District Khairpur . 2. Upon service of notice, the Election Petition was contested. Issues were framed. Parties led their evidence and the learned Election Tribunal after hearing the learned counsel for the parties passed the above impugned Judgment. The present Appellant was also one of the contesting candidates for the above General Member seat besides private Respondents. 3. The main grievance of the Appellant is, which is mentioned in the present Appeal as well as in the Election Petition, that Respondent No.1 through pre-poll rigging and by resorting to corrupt practices as envisaged in the Sindh Local Government Act, 2013 ("SLGA"), managed to secure his success for the Local Bodies Elections, 2015, otherwise the present Appellant would have won the Elections. It is further averred that Polling Staff appointed at the Polling Station were closely related to the PPP backed candidate and were close relatives of Mr. Imdad Ali Rind. In Subparagraph-G of paragraph-5 of the Election Petition, it has been specifically stated that Returning Officer, the then Assistant Commissioner , Taluka Mirwah, used to reside in the 'Otaq' (Guest Room) of PPP Taluka President, Ghulam Abbas Kubar , who is the brother-in-law of Respondent No. 1. The said Ghulam Abbas Kubar , has been impleaded as Respondent No.7 in the Election Petition as well as in the present Appeal. It is pleaded in paragraph-7 of the Election Petition that Polling Staff at the instance of Respondent No.1 (successful candidate) robbed the ballot papers from the voters and did stamping in favour of Respondent No.1. In paragraph- 10 of the Election Petition, it is stated that entire government machinery from Patwari to Mukhtiarkar and Police Constable to Station House Officer (S.H.O .), were involved in committing illegalities so that Respondent No.1 could
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win the elections. It is further stated that S.H.O. was the front man of the sitting MPA of Ruling Party . It has further contended that the present Appellant has challenged the candidature of Respondent No.1 also on the ground that he had concealed his assets while submitting a declaration with the Nomination Paper and when it was objected to during scrutiny , the objection filed by Respondent No.4 was overruled. It is further contended that Respondent No.1 is a defaulter in paying taxes. 4. The Returned Candidate (Respondent No.1) and 7 contested the matter by filing their common Written Statement and they have vehemently denied the allegations put forth by the Appellant. 5. It is the stance of learned counsel for Respondent No.1 that the latter secured highest number of votes on the basis of his election manifesto, therefore, he was declared as returned candidate. It is further mentioned in Written Statement of Respondent No. 1 so also argued by his counsel, that Respondent No.1 enjoys a good reputation in his locality / constituency . The allegation about rigging and employing other corrupt practices has also been categorically refuted. In the Written Statement it was specifically denied that Gover nment Primary School (GPS) Ali Sher Kuber was used as an election office of Respondent No.1, because it cannot be used as such, being a public property . It is also specifically refuted by Respondents Nos.1 and 7 that any vote of the petitioner was spoiled or the officials 'helped' the Respondent No. 1 in winning the elections through illegal means. With regard to the concealment of assets, Respondent No.1 in paragraph-1 1 of his Written State ment has averred that against acceptance of his nomination paper , the present Respondent No.4 (Shakil Ahmed) filed an Appeal No.215 of 2015, but the same was dismissed vide order dated 29.09.2015 passed by the learned District Judge, Khairpur , who was the designated Appellate Authority . It is further stated that Respondent No.1 has disclosed all his assets without concealing anything. 6. Following Issues were framed by the Election Tribunal. 1. Whether the election petition of the petitioner is maintainable according to law? 2. Whether the respondent No.1 was not qualified to contest the election? 3. Whether the respondent No.1 has procured result of the election in his favour through corrupt and illegal practice? 4. Whether relief if any the petitioner is entitled for? 5. What should the judgment be? 7. Contesting parties led the evidence in support of their respective claims. 8. Learned Election Tribunal has also dismissed the Election Petition of present Appellant on the ground of maintainability as the Appellant did not implead those persons / officials against whom, he has levelled specific allegations, in terms of Rule 61 of Sindh Local Councils (Election) Rules, 2015 (the " Election Rules "). 9. The Issue of maintainability of Election Petition and of this Election Appeal for non-impleading those persons against whom specific allegations are levelled, is pivotal and should be considered first. 10. Secondly , it is to be examined that whether Respondent No.1 concealed his assets and filed a false declaration. 11. Mr. Nisar Ahmed Bhanbhro, learned counsel representing the Appellant, has vehemently argued that Rule 61 of the Elections Rules has not been violated by the present Appellant when he filed the Election Petition, because the main grievance of present Appellant is against Respondents Nos.1 and 7, who by committing illegalities and corrupt practice, as envisaged in Section 55 of SLGA, including organized rigging through exercise of undue influence, obtained favourable result in the said elections. It is further contended that Respondent No.1 dishonestly filed his declaration of assets and this is an act, which is unpardonable in view of various judicial pronouncements. Learned counsel has further argued that learned Election Tribunal erred in holding that the Election Petition filed by present Appellant was hit by Rule 64 of the Election Rules, because, Rule 61 of the Elections Rules about impleading persons (against whom allegations are made) is not applicable to the facts of present case, for the reason that by following the said Rule 61 of the Election Rules, admittedly , all the contesting candidates have been impleaded as parties and under sub-Rule(b), since main allegations are against present Respondents Nos.1 and 7, therefore, non-impleading of Officials, that is, S.H.O., Patwari and Returning Officer, is not fatal. It is his
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(Appellant's) stance that all the compliances as mentioned in afore-referred Election Rules have been complied with. 12. On the other hand, Mr. Kalandar Bakhsh Phulpoto, learned counsel representing contesting Respondent No.1 (the Returned Candidate) has controverted the arguments of Appellant's side. It is his main defence that there is no requirement under the scheme of SLGA that contesting candidate should file declaration about his assets at the time of filing nomination paper (form), but this requirement is mentioned in Section 23 of SLGA, which is admittedly applicable when a person is duly elected and has taken oath of his Office in terms of Section 22 of SLGA. It is further submitted that the disqualification mentioned in section 36 of SLGA is not applicable to the case of present Respondent No.1 and the Election Petition of present Appellant was rightly dismissed through the impugned Judgment. 13. Mr. Muhammad Aslam Jatoi, Assis tant Attorney General and Mr. Ali Mutahir Shar, State Counsel, have supported the impugned judgment by arguing that it has been passed after appreciation of evidence and after application of judicial mind as the relevant provisions of SLGA and the Election Rules are properly considered and applied, therefore, the impugned decision is unexceptionable. 14. It would be advantageous to reproduce relevant provisions of Sections 22 and 23 of SLGA and the Rules 60 to 64 of the said Elections Rules herein under: "Section 22. Oath of Office:- (1) A member shall, before taking his seat in a Council make and subscribe to an oath in such form as may be prescribed. (2) ................... (3) ................ Section 23. Declaration of Assets:- (1)...................................... Member of the Council shall within thirty days of making oath file a declaration of his or her assets and liabilities before such authority ..." Rule 60. (1) No election shall be called in question except by an election petition made by a candidate or panel for that election, hereinafter in this Chapter referred to as the "petitioner". (2) An election petition shall be presented to the Tribunal within forty five days of the publication in the official Gazette, the names of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited in a Scheduled Bank in favour of the Election Commission, a fee of rupees two thousand. (3) An election petition shall be presented by a petitioner in the manner prescribed by the Election Commission and shall be deemed to have been presented- (a) when it is delivered in person to T ribunal as may be appointed by the Election Commission; or (b) when delivered by courier service or registered post to the T ribunal appointed by the Election Commission. 61. The Petitioner shall join as respondents to his election petition - (a). all contesting candidates; and (b). any other person against whom any allegation, if any, of corrupt or illegal practice is made and shall serve personally or by courier service or registered post on each such respondent a copy of his petition. 62. (1) Every election petition shall contain- (a) a precise statement of the material facts on which the Petitioner relies; (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and (c) the relief claimed by the petitioner . (3). Every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. 63. (1). For the trial of election petitions under these rules, the Election Commission shall appoint as many Election Tribunals as may be necessary . (2). A Tribunal shall consist of a person who is or has been a District and Sessions Judge or Additional District and Sessions Judge.
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64. If the Tribunal is satisfied that all or any of the preceding provisions have not been complied with, the petition shall be dismissed forthwith and submit its report to the Election Commission." (Under lined to add emphasis). 15. Rule 64 of the Election Rules provides a consequence that in case the Election Petition is not instituted / filed while complying the Rules 60, 61 and 62, then said Election Petition is liable to be dismissed. This Court in number of its earlier decisions has already interpreted and held that since Rule 64 provides a consequence, therefore, it is mandatory to follow Rules 60, 61 and 62 of the Elections Rules while filing an Election Petition under SLGA. A reported decision of this Court in Ameen Case (ibid) is relevant and applicable here, besides, in the Judgment handed down in number of appeals, Election Appeal No.3 of 2017 being the leading one having title Jam Javed Ahmed Khan Dahar v. Haji Muhammad Akbar and 14 others , this Court has elaborated the nature and effect of these statutory rules. It would be advantageous to reproduce the said discussion herein under_ "19. After thoughtfully considering this legal aspect, it was held that like a statute, if the statutory rules also provide a consequence, then they should also be interpreted as mandatory . Relevant portion of the referred unreported Judgment is mentioned herein under: "11. I have given a thoughtful consideration to the above proposition of law. Undoubtedly , afore-referred Election Rules have been framed under the statute; SLGA, 2013. Going through different treatises on the Interpretation of Statutes , the position, which emerges is that if the Rules are framed under an enabling clause of a main statute then such Rules become Statutory Rules and are to be considered part and parcel of the Statute; consequently , such Statutory Rules then deserve to be governed by same principle of interpretation which is applicable to the Enactment itself. Meaning thereby that if a Rule provides a penalty or punishment for its non-compliance, then that Rule shall be interpreted as a mandatory Rule. It is also necessary to give referen ce of well-known commentaries on the above point of law (i) Understanding Statutes 'Canons of Construction' by Mr. S. M. Zafar , Secon d Edition (2002), relevant pages-783 and 784 , and the relevant paragraphs whereof are reproduced hereunder: - ".................... Statutory rules stand on a different footing. Though a byelaw must not be repugnant to the statute or the general law, byelaws and rules made under a rule-making power conferred by a statute do not stand on the same footing as rules are part and parcel of the statute . Parliament or Legislature instead of incorporating them into the statute itself ordinarily authorizes Government to carry out the details of the policy laid down by the Legislature by framing rules under the statute and once the rules are framed, they are incorporated in the statute itself, and become part of the statute and the rules must be governed by the same rules as the statute itself. Hence, a statutory rule cannot be challenged as unreasonable." "Mandatory and Directory rules : A rule is mandatory if violation thereof entails any penalty or punishment . If non-compliance of a rule entails no penalty , rule is directory . Act done in disregard of a mandatory provision of law or rule is only invalid and unlawful. Such is not the case where only some rule of directory nature has been violated ." (Underling is to add emphasis) and (ii) NS Bindra's, Interpretation of Statutes, Ninth Edition, the relevant paragraph whereof is reproduced hereunder: - "The right to hold an election, to stand in an election, and to be elected thereto as commissioner , are all rights which spring under the statute. There is no common law right which is involved. Therefore, the provisions of the Act and the rules made there under must be strictly followed in constituting the municipality and in regulating the functions thereof. Similarly , a disqualify ing or disabling provision of law, for instance election rules, must be subject to strict construction ." (Underling is to add emphasis) 12. Secondly , the Honourable Supreme Court of Pakistan in one of its reported Judgments, viz. PLD 1985 SC 282 (Shah Muhammad v. Election Tribunal, Urban Local Council, Christian and others ), after taking into account various case laws, has interpreted the provisions of Punjab Local Council (Election) Rules, 1979 to be mandatory in nature and held as under: -
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"................... Thus there is no escape from the conclusion that the law requires that every ballot-paper must be signed by the Presiding Officer, and when the ballot-boxes are opened for the purpose of counting the ballot- papers, all these ballot-papers which do not bear the signatures of the Presiding Officer must be excluded. These provisions are express and categorical and there is no scope for considering these provisions to be of a directory nature ." (Underlining is to add emphasis)" 13. Thirdly , even in the above mentioned reported case of Zia-ur -Rehman v. Syed Ahmed Hussain and others (2014 SCMR 1015 ), the Honourable Supreme Court in paragraph-7 has held, that when the law prescribed certain form for Election Petition and its verification on oath and entails a penal conseque nce for its non-compliance, the provision is to be interpreted as mandatory . It is also a settled Rule that the term "Law" is of wide import and it does include the Statutory Rules . Fourthly , the relevant law in the instant case is the SLGA, 2013 and its section 46 pertains to Election Petitions. It would be advantageous to reproduce section 46 of SLGA, 2013 as under:- "46. Election petition.- (1) Subject to this Act, an election to an office of a council shall not be called in question except by an election petition. (2) A candidate may, in the prescribed manner, file an election petition before the Election Tribunal challenging an election under this Act." 14. From the above, it is not difficult to ascertain the mandate of law, that is, the governing statute SLGA, which enjoins that Election Petitions are to be filed in the "Prescribed Manner". This term 'Prescribed' is mentioned in the definition clause of the said SLGA, 2013; Section 2 (lii), which means Prescribed by Rules . It means that the Election Petitions are to be filed as mentioned in the relevant Election Rules, which have already been referred to in the preceding paragraphs. If the main Statute SLGA, 2013 had contained the provisions about verification of Petitions / Pleadings without a consequence or penalty , then the arguments of learned counsel for the Appellants would have been sustained, that if the main Statute is not providing a penal consequence then the Rules governing the same subject cannot travel beyond the express statutory provisions. But here the undisputed factual and legal position is altogether different. It is basically the Election Rules, which regulate the proceedings at the Election Tribunals and the Rule 65 in an unequivocal term has provided a penalty / penal consequence of dismissal of petition if the same is not filed in compliance of Rules 60 to 63 of the Elections Rules, 2015 . The above legal position with regard to the status of Statutory Rules is further reinforced by another learned Division Bench Judgment of this Court reported in PLD 1984 Karachi 426 (Shahenshah Humayun Co-operative Housing Society Ltd., and 2 others v. House Building Finance Corporation and another ), wherein, it has been held, inter alia, that if the rule-making authority validly frames / makes Regulations then such Regula tions which are intra vires, be regarded as part of the enactment itself. In a subsequent decision of this Court reported in PLD 1992 Karachi Page-302 (Saeeduddin v. Third Senior Civil Judge, East, Karachi ), the above principle relating to the mandatory nature of the statutory rules has been reiterated." 20. In view of the above, since Rule 64 of the Elections Rules is mandatory in nature, therefore, non-compliance of Rule 61 by not impleading the above named SHO against whom specific allegations were levelled, the Election Petition No.13 of 2015 suffered from a non-curable defect and is not maintainable. Despite giving an adverse observation about the impugned order in the foregoing paragraphs, the present Appeal cannot be accepted, in view of the above discussion, therefore, the present Appeal No.09 of 2016 is also dismissed." 16. Thus, nature of the afore-referred Rules is mandatory and effect of its non-com pliance is adverse; dismissal of election petition. Now reverting to the arguments of the Appellant's side in this regard. The reported decision of the Honourable Supreme Court handed down in the Muree Case (supra ), has been examined, which is relied upon by Appellant side to support the arguments that non-impleading of officials against whom allegations are made, is not fatal; Rule 61 [ibid]. In the above cited case, the returned candidate, who was elected on the reserved seat for Labourer was held to be disqualified. The said returned candidate / respondent No.5 (of the reported case) was found to be a well-to-do person, hailing from a well-known political family of Sindh. The Honourable Apex Court overturned the decision of the learned Division Bench of this Court, which has ruled that an Appeal against the rejection of nomination form can only be filed by a person whose nomination form has been rejected and not anyone else. In the reported case, the Honourable Supreme Court has explained the scope of Rules 18 and 51 of
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the above referred Election Rules. which pertained to the pre-election disputes. In the reported case, the returned candidate / respondent No.5 after loosin g the election of General Member seat, submitted nomination papers to contest the elections on the reserved seat as 'labourer' and his nomination was accepted and he consequently got elected on the reserved seat. In the intervening period, the petitioner (of the reported case) filed the Appeal challenging the acceptance of the nomination papers by the Returning Officer, but the objection of Petitioner was overruled. A bare reading of Rules 18 and 51 of the Elections Rules makes it abundantly clear that in the latter Rule, (Rule 51) only a candidate whose nomination paper is rejected can file an Appeal, whereas , in the former Rule (Rule 18), there is no such requirement, as to who may file an Appeal. In the preceding background facts, the reported decision was pronounced by the Hon'ble Apex Court. The above reported decision is entirely on a different premise and point of law and in my considered view, it is not applicable to the undisputed facts of present case relating to an election dispute , which is to be adjudicated upon by an Election Tribunal under the relevant provisions of the Elections Rules, particularly , by adhering to the Rules 60 to 64, which are mandatory in natur e, as already held in number of decisio ns, mentioned in the foregoing paragraphs. 17. The Appellant's side has failed to justify that why those Officials, against whom specific allegations were levelled and who are easily ascertainabl e, were not impleaded as Respondents as enjoined by Rule 61 of the Elections Rules. 18. Not only this, the evidence adduced by the parties has also been taken into the account. The Appellant's side did not examine the Presiding Officer, namely , Manzoor Hussain Rind, of one of the Polling Stations and he was given up on the ground that the said Officer was won over by Respondent No.1; the Statement of the learned counsel dated 21.01.2016, is at page-21 1 of the Paper Book. Similarly , despite levelling specific allegations against Returning Officer, who was the then Assistant Commissioner , was not impleaded as one of the Respondents though there is no justification for not joining him as Respondent. If the officials were joined as Respondents. their version could have been easily available before the Election Tribunal, particularly about the allegations of corrupt practices, as put forth by the present Appellant. 19. In view of the above, the finding of the learned Election Tribunal, on Issue No.1, is unexceptionable and does not require any interference. Non-joinder / non-impleading of Officials, who were otherwise identifiable, is fatal to the case of the Appellant and since sub-Rule (b) of Rule 61 of the Election Rules was violated by the Appellant, therefore, his Election Petition was not maintainable and was correctly dismissed. 20. Adverting to the other ground that was strenuously argued by Appellant's counsel about concealment of assets by Respondent No. 1. It is argued that on this sole ground, Respondent No.1 shoul d have been disqualified and his election be declared as void. 21. It is further argued that the issue of concealment of assets should have been examined separately by the learned Tribunal below , even if the Election Petition of the present appellant was dismissed on the ground of maintainability . It is contended that since under Section 71 of the SLGA, the provisi ons of ROP A are also applicable therefore in term of Section 76-A of the ROP A, the Tribunal should have exercised its powers. The learned counsel for the Appellant has placed reliance on Rai Hassan case (supra ). Mr. Nisar Ahmed Bhanbhro, the learned counsel, argued that the requirement of disclosu re of assets and liabilities is to be strictly construed, as held by the Honourable Supreme Court in number of its decisions (which are mentioned in the opening part/title page of this decision). It is contended that that the rule laid down in the reported decisions is that non-disclosure of assets and financial liability entails adverse consequences of disqualification of a returned candidate. The other limb of the rule is that under Section 76A of ROP A, the Election…
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