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Petitioner: MUHAMMAD RAZA HAYAT HIRAJ & others VS Respondent: ELECTION COMMISSION OF JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Nasir-ul-Mulk, Gulzar Ahmed, Amir Hani Muslim Title:MUHAMMAD RAZA HAYAT HIRAJ & others vs ELECTION COMMISSION OF
JUDGMENT
Reported As: PLJ 2015 SC 335 Result: Appeal allowed Judgment JUDGMENT Nasir-UI-Mulk, C.J.--These connected Civil Appeals/ Civil Petitions arise out of various orders and judgments passed by the Lahore High Court and Peshawar High Court in Writ Petitions against interim/interlocutory orders of the Election Tribunals. As common questions of law were involved, the said appeals/petitions were clubbed and heard together. Leave to appeal was first granted on 08.05.2014 in Civil Appeal Nos. 727 of 2014 etc in the following terms: "After hearing the Arguments of learned ASCs for the parties in these connected civil petitions, leave to appeal is granted, inter alia, to examine the following contentions: (i) Whether Article 225 of the Constitution of the Islamic Republic of Pakistan, 1973 ousts the jurisdiction of High Courts under Article 199 of the Constitution with regard to post election disputes? (ii) Whether bar contained in Article 225 of the Constitution is absolute? (iii) Whether jurisdiction under Article 199 of the Constitution may be exercised against interlocutory orders passed by the Election Tribunal during the process of trial? (iv) Whether where it is shown that determination of an Election Tribunal is erroneous on the point of law, arbitrary result of non-reading of material on record, High Court can exercise its jurisdiction under Article 199 of the Constitution? (v) Whether constitution petition under Article 199 of the Constitution before the High Court is competent against an action of the Election Tribunal, found in violation of the law laid down by this Court?"
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2. The appellant in Civil Appeal No, 727 of 2014 was a returned candidate for National Assembly from the constituency NA-156 Khanewal-I, against whom an election petition was filed before the Election Tribunal, Multan. The appellant filed an application under Section 63 of Representation of the :Peoples Act, 1976 (hereinafter to be referred to as "the Act") for dismissal of the election petition due to alleged failure of the election petitioner to verify the election petition in accordance with provisions of Section 55 (3) of the Act read with Order VI Rule 15 of CPC. The said application was dismissed as being without merit by Election Tribunal vide order dated 23-09-2013 which was challenged through Writ Petition No, 11666. The Multan Bench of Lahore High Court, through a consolidated judgment dated 28.02.2014, dismissed the said Constitution Petition. 2. Civil Appeal No: 729 of 2014 is related to the above mentioned appeal, where Writ Petition No, 1078 was also dismissed by the High Court vide its order dated 28.02.2014, filed against the orders of the Election Tribunal which had dismissed the application of the petitioner to treat issues of jurisdiction as preliminary in the proceedings of the election petition. 3. In Civil Appeal No, 728 of 2014 the appellant was a returned candidate for National Assembly from the constituency NA-55 Rawalpindi, against whom an election petition was filed before the Election Tribunal, Rawalpindi, The appellant also filed application for rejection of the election petition under Section 63 of Act (for similar reasons as in C.A. 727 of 2014 above), which was dismissed vide order of the Election Tribunal dated 11.11.2013. A subsequent application on the same subject was also dismissed vide Election Tribunal's order dated 21.01.2014, which was challenged before the High Court through Writ Petition No, 204 of 2014. The said Writ Petition was also dismissed through order dated 24.03.2014. 4. The appellant in Civil Appeal No, 730 of 2014 was a returned candidate for National Assembly from the constituency NA-149 Multan-II, against whom an election petition was filed, for the rejection of which an application under Section 63 of the Act was filed (for similar reasons as in C.A. 727 of 2014 above). The dismissal of the said application through order of the election tribunal dated 26.09.2013 was challenged through Writ Petition No, 11960, which was also dismissed on 29.02.2014. Meanwhile, the appellant had resigned from the seat of the National Assembly and by- election has been held and another candidate has been elected. This appeal has become infructuous. 5. The appellant in Civil Appeal No, 777 of 2014 was a returned candidate for National Assembly from the constituency NA-118 Lahore-I, Lahore against whom an election petition was filed before the Election Tribunal, Lahore, which vide its order dated 18.11.2013 directed the .Thumb impression of the voters to be verified by National Database and Registration Authority (NADRA). The said order was impugned before the Lahore High Court through Writ Petition No, 30569 of 2013, which was dismissed vide order dated 12.03.2014. 6. The appellant in Civil Appeal No, 788 of 2014 was a returned candidate for National Assembly from the constituency NA-192 Rahim Yar Khan, against whom Respondent No, 1 filed Constitution Petition No, 2968, calling into question the fairness of the process adopted for the consolidation of the election results. The said Petition was dismissed by order of the High Court dated 23.05.2013 as Article 225 ousts the jurisdiction of Courts in election matters, after which an election petition was filed before the Election Tribunal, Bahawalpur. Election Tribunal vide its Order dated 14.05.2014 ordered the recounting of all the polled ballot papers and appointed a commission for the purpose. The said order was impugned before the Lahore High Court, Bahawalpur Bench by Writ Petition No, 3666 of 2014, which was also dismissed vide order dated 19.05.2014. 7. The appellant in Civil Appeal No, 273-L of 2014 was a returned candidate for National Assembly from the constituency NA-128 Lahore XI, Lahore against whom an election petition was filed before the Election Tribunal, Lahore, which first vide its order dated 26.03.2014 directed the verification of thumb impressions at a particular polling booth by the NADRA and then through its order dated
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13.06.2014 directed the inspection of election record of the whole constituency. The said orders were impugned before the Lahore High Court through Writ Petition No, 19172 of 2014 which was dismissed vide order dated 30.06.2014. 8. The petitioner in Civil Petition No, 1244 of 2014 had challenged the elections for the National Assembly constituency of NA-40 (Tribal Area-V) through an election petition after losing the same. Election Tribunal, Abbottabad, raising concern over the fairness of the elections allowed the application of the petitioner through order dated 27.03.2014 for verification of the votes through finger print/thumb impression method employed by the NADRA. The said order was assailed by the appellant before Peshawar High Court in Writ Petition No, 1086-P of 2014. High Court vide its order dated 13.05.2014 continued the earlier granted stay order for continuation of the status quo, which was assailed before us in the said Civil Petition. 9. The petitioner in Civil Petition No, 1619-L of 2014 was a returned candidate for National Assembly from constituency NA-118 Lahore I, Lahore against whom an election petition was filed before the Election Tribunal, Lahore, which first vide its order dated 11.08.2014 closed the right of evidence of the appellant, after he had proceeded abroad on a conference, delaying the election tribunal proceedings. The said Order was impugned before the High Court vide Writ Petition No, 22801 of 2014 which was dismissed vide Order dated 18.08.2014. 10. The petitioner in Civil Petition No, 909 of 2014 had filed Writ Petition No, 2753 of 2013 in the above mentioned Election Matter impugning the order of the Election Tribunal dated 11.11.2013 dismissing the application by the petitioner for dismissal of the election petition as it was defective under the Act (for not getting the election petition verified on oath) and also for allowing the application of the petitioners in the election petition to produce documents under Order XIII R. 2 of the Code of Civil Procedure. The said Constitution Petition was dismissed 24.03.2014. 11. All the above cases arise from judgment, of the Lahore High Court except Civil Petition No, 1244 of 2014, wherein the petitioner had impugned interlocutory order passed by the Peshawar High Court in exercise of its powers under Article 199 of the Constitution, suspending the proceedings before the Election Tribunals. 12. The question in essence in all these matters is the maintainability of Constitution Petition under Article 199 of the Constitution against interlocutory orders passed by an Election Tribunal, hearing the election petition. These matters pertain to the General Elections held in 2013. The only impugned judgment before us is that of the Lahore High Court dated 28.02.2014 of a three Member Bench. The matter was first heard by a Division Bench of the High Court and in view of split opinion it was referred to the Chief Justice of the High Court for placing the same before a larger Bench. Accordingly, a three Member Bench was constituted, which held that Writ Petitions against interlocutory order of the Election Tribunal were not maintainable. The Court determined from the entire case law developed on the subject that Section 63 of the Act does not envisage a dismissal of the petition in case of its failure to comply partially with the provisions of Section 55 of the Act. Further, that petition will only be dismissed under Section 63 if it as a whole fails to comply with the provisions of Section 55 of the Act or if the petition is not attested or verified on oath. The Court referred to Article '222 (d) and (e) of the Constitution and observed that all matters related to the conduct of elections, election petitions and offences in connection with elections shall be provided for by parliament through law. That Article 225 starts with a negative phrase precluding any other forum from taking cognizance of disputes related to the election to the legislature and provides for a special procedure to be adopted for contesting elections and the special procedure has been provided for in the form of the Act. That the Act provides a particular scheme for resolving election disputes and the legislative intent behind choosing such a mechanism was an expeditious resolution of election disputes whereas intervention under Article 199 against interlocutory order could possibly delay the trial of the election petition. It was however, stated that a High Court could
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possibly interfere with interlocutory orders only in exceptional circumstances where such order is illegal and the aggrieved person becomes remediless against the order which disqualifies and disenfranchises him. In response to the argument based on due process it was held that since the remedy of appeal has been provided under Section 67 of the Act, the said Act does, not contravene Article 10-A; that Constitution Petitions before High Court against interlocutory orders will lead to fragmentary decisions and hence, should be avoided. 13. Mr. Ibad-ur-Rehman, J. Who was a Member of the Division Bench that gave a split opinion had held that such Constitution Petitions were maintainable. The Honourable Judge distinguished the case of Ghulam Mustafa Jatoi v. Additional District & Sessions Judge etc. (1994 SCMR 1299 ) by holding that the High Court could exercise jurisdiction against patently illegal orders by election functionary, whereas Election Tribunal was not an election functionary. 14. The above question also came up before the High Court of Sindh in the case of Ali Gohar Khan Mahar v. Election Commission of Pakistan (2014 CLC 776) and the High Court of Balochistan in the case of Dur Muhammad Khan Nasar v. Muhammad Shafiq Tareen (PLD 2014 Balochistan 152). Though these judgments have not been impugned before us yet the same were referred by the learned counsel during hearing of these matters. Reasoning given in those judgments is helpful in deciding the issue. In Ali Gohar Khan Mahar's case (supra) the judgment was handed down by a Division Bench of the High Court and authored by Mr. Munib Aklitar, J. Whereas Dur Muhammad Khan Nasar's case (ibid) was authored by Qazi Faez Isa, CJ. (as he then was). Both the Courts came to the same conclusion as the Lahore High Court, that Constitution Petitions against interlocutory order by the Election Tribunals are not maintainable. 15. In order to appreciate the arguments of the learned counsel in their proper perspective, it will be appropriate to reproduce Article 225 of the Constitution as the controversy relates to its interpretation in determining whether the High Court's jurisdiction under Article 199 of the Constitution is ousted in post-election disputes. It reads: "225. No 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)." 16. Mian Abbas Ahmad, ASC, learned counsel appearing for the appellants in Civil Appeal Nos. 727 and 729 of 2014 submitted that the powers contained in Article 225 of the Constitution pertain only to the filing of the election petition and would not cover the manner in which the same is to be decided in accordance with the Act of Parliament. With reference to the facts of his case, it was contended that Election Tribunal was obliged under Section 63 of the Act to dismiss the Election Petition for failure of the election petitioner to verify the same in accordance with the provisions of Section 55(3) of the Act. That this must be disposed of as a preliminary issue and in case a returned candidate succeeds in establishing nonconformity with the provision of Section 55(3) of the Act, the matter be decided at the preliminary stage so that the parties are not unnecessarily burdened with the production and recording of evidence. That this process will be in accord with the spirit of election laws requiring speedy disposal of the election petitions. The learned counsel argued that the High Court must thus issue writ of mandamus directing the Election Tribunal to exercise its jurisdiction if the same is unjustifiably declined. In support of his contention the learned counsel relied upon Mian Jamal Shah v. The Member Election Commission etc. (PLD 1966 SC 1), Muhammad Baran v. Member (Settlement and Rehabilitation) Board of Revenue (PLD 1991 SC 691), Mian Arif Iftikhar v. Election Tribunal, West Pakistan and others (PLD 1968 Lahore 1387), Ghulam Mustafa Jatoi v. Additional District & Sessions Judge etc. (supra) and Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan etc. (PLD 2005 SC 52). 17. Mr. Farooq H. Naek, Sr. ASC, appearing for the appellant in Civil Appeal No, 778 of 2014 submitted that for the purposes of determining the bar under Article 225 of the Constitution the same can be
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split into two parts; the first relating to the calling into question of an election and the second relating to the manner in which the Tribunal is to decide the election petition. It was contended that the Constitutional bar relates to only first part in that the election can only be questioned by way of an election petition before the Election Tribunal. That once the petition is filed, the bar is no longer attracted and the same is to be processed and decided in accordance with the Act of Parliament, namely, the Act. The learned counsel further contended that Article 225 of the Constitution relates to the remedy available to the losing candidate and thus the bar cannot be applied to the returned candidate, leaving him without remedy against an adverse interlocutory order passed by the. Election Tribunal. It was contended that Section 67 of the Act does not provide adequate remedy for challenging an interlocutory order. Learned counsel for the petitioner, in this context, relied upon the cases of Mehboob Ali Malik v. The Province of West Pakistan and another (PLD 1963 (W.P.) Lahore 575) and Khan Asfandyar Wali and others v. Federation of Pakistan (PLD. 2001 SC 607 at 877 paragraph 178). 18. Referring to Ghulam Mustafa Jatoi v. Additional District & Sessions Judge/Returning Officer (supra), Syed Nayyar Hussain Bukhari v. District Returning Officer, Na-49, Islamabad (PLD 2008 SC 487) and Muhammad Hussain Babar v. Election Commission of Pakistan, Through Secretary (PLD 2008 SC 495) the learned counsel submitted that although the case law relates to orders passed while the election was in progress and not to the post-election period, however, the principle laid down therein do not completely oust jurisdiction of the High Court under Article 199 of the Constitution where an interlocutory order is patently illegal, without jurisdiction and Tram non judice. It was contended that the principles laid down shall also be applicable to interlocutory order passed by the Election Tribunal. In this context reliance was placed on Hari Vishnu Kamath v. Ahmad Ishaque and others [AIR 1955 SC 233 (Paragraph No, 6)]. 19. Ch. Aaniir Rehman, ASC, appearing for the petitioner in Civil Petition No, 1619-L of 2014, referred to the case of Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813) to submit that the High Court can exercise its jurisdiction in exceptional circumstances. 20. Qazi Muhammad Anwar, Sr. ASC, representing Respondent-1 in Civil Petition No, 1244 of 2014, submitted that the High Court's intervention was justified when the Election Tribunal allowed the application of the election petitioner for verification of the thumb impression on the ballot papers after the arguments in the case had ,been addressed and judgment had been reserved. The learned counsel cited in support of his contention the cases of Muhammad Asim Kurd alias Gailoo v. Nawabzada Mir Lashkari Khan Raisani (1999 SCMR 689) and Muhammad Saeed v. Election Petitions Tribunal, WP and others (PLD 1957 SC 91 at 112). He contended that in exceptional circumstances the High Court is empowered to exercise its Constitutional jurisdiction against an interlocutory order of the Election Tribunal. 21. Sardar Muhammad Aslam, ASC, representing Respondent No, 3 in Civil Appeal Nos. 727 and 729 of 2014, opposed the above contentions and submitted that the interlocutory order passed by the Election Tribunal ultimately merges into the final judgment and thus the same can be assailed in appeal under Section 67 of the Act. He placed reliance upon Malik Muhammad Usman Achakzai v. Election Tribunal Balochistan Quetta (PLD 2010 SC 943), Muhammad Asim Kurd alias Gailoo v. Nawabzada Mir Lashkari Khan Raisani (1998 SCMR 1597), Sheila B. Charles v. Election Tribunal and others (1997 SCMR 941), Upadhaya Hargovind Devshker v. Dhirendrasinh Virbhadrasinhji Solanki (AIR 1988 SC 915 ) and Mohinder Singh Gill and another v. The Chief Election Commissioner (AIR 1978 SC 851). 22. The same arguments were reiterated by Mr. Ahmed Awais, ASC, representing Respondent-1 in Civil Appeal Nos. 777 & 273-L of 2014 and Civil Petition No, 1619-L of 2014 and made further reference to the case of Election Commission of Pakistan v. Javaid Hashmi and others (PLD 1989 SC 396) and Ghulam Mustafa Jatoi v. Additional District & Sessions Judge etc. (supra).
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23. Mr. Kamran Murtaza, ASC, appearing for the petitioner in Civil Petition No, 1244 of 2014, contended that allowing the interlocutory orders of the Tribunal to be challenged before the High Court would cause delay in the disposal of the election petition as it had happened in his case, where the Election Tribunal's order of allowing the application to -get the thumb impression on the ballot-papers verified had been suspended by the order of the High Court since March, 2014. 24. Mr. M. Ilyas Sheikh, Sr. ASC, representing Respondent-2 in Civil Appeal No, 728 of 2014 and Civil Petition No, 909 of 2014, reiterated the above arguments and in support thereof cited Hari Vishnu Kamath v. Ahmad Ishaque and others (supra) and K Venkatachalam v. A. Swamickan and another (AIR 1999 SC 1723 ). 25. Khawaja Ahmad Hussain, learned Deputy Attorney General for Pakistan, submitted that the High Court's jurisdiction should not be entirely ousted and a narrow window be left for intervention by it. He submitted that the principle laid down for intervention in Chulam Mustafa Jatoi's case (supra) should be applied to the orders passed during the post-election period. 26. Since the learned counsel during their submissions have made reference to Sections 55(3), 63 and 67 of the Act, these need to be reproduced: "55 (3). Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings." "63. Dismissal of petition durinz trial.--The Tribunal shall dismiss an election petition, if-- (a) The provisions of Section 54 or Section 55 have not been complied with; or (b) If the petitioner fails to make the further deposit required under sub-section (4) of Section 62." "67. Decision of the Tribunal.--(1) The Tribunal, may upon the conclusion of the trial of an election petition, make an order.-- (a) Dismissing the petition; (b) Declaring the election of the returned candidate to be void; (c) Declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or (d) Declaring the election as a whole to be void. (1A) The Election Tribunal shall proceed with the trial of the election petition on day to day basis and no adjournment shall be granted to any party for more than seven days and that too on payment of costs as the Tribunal may determine and the decision thereof shall be taken within four months from its receipt: Provided that where a *petition is not decided within four months, further adjournment sought by any party shall be granted only on payment of special cost of ten thousand rupees per adjournment and adjournment shall not be granted for more than three days: Provided further that if the Tribunal itself adjourns it shall record reasons for such adjournment: Provided also that where delay in the proceedings is occasioned by any act or omission of a returned candidate or any other person acting on his behalf, the Tribunal itself or on application of the aggrieved party, shall after issuance the show-cause notice to the returned candidate, within fifteen days from the date of show-cause notice, may order that the returned candidate has ceased to perform the functions of his office either till the conclusion of the proceedings or for such period as the Tribunal may direct (2) Save as provided in sub-section (3), the decision of a Tribunal on an election petition shall be final. (3) Any person aggrieved by a decision of the Tribunal may, within thirty days of the announcement of the decision, appeal to the Supreme Court, which shall be decided within thirty days and the decision of the Supreme Court on such appeal shall final.
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Explanation.--In this sub-section, "decision of the Tribunal" shall not be deemed to include an order made by the Commission in the exercise of its powers under Section 103AA." 27. As earlier observed, three High Courts; Lahore, Sindh and Balochistain have declared that interlocutory orders passed by the Election Tribunal are not liable to be challenged before the High Court in its Constitutional jurisdiction. Though the judgment of the Lahore High Court is impugned in these appeals yet the decision therein would also decide the fate of the judgments delivered by the other two High Courts. Reference thus inevitably is to be made to the reasons and analysis of the case law by all the three Courts in deciding the question before us. There is no dispute that the case law developed so far is on the High Courts' jurisdiction to interfere at intermediary stage during election process before its conclusion. The question of High Courts' power to intervene in interlocutory orders passed by Election Tribunals during pendency of election petitions has squarely conie before this Court for the first time. Having said that, the underlying principle laid down in the judgments cited at the bar and discussed in the three judgments of the High Courts are relevant and provide a base on which to proceed with the resolution of the controversy in the appeals. 28. It is not necessary to mention the entire case law developed broadly on the subject. Reference is made to only those judgments that have close relevance to the issue before us. Though there are judgments of this Court prior to 1989 dealing one way or the other with the question of intervention…
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