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Petitioner: Raja ABDUL QAYYUM VS Respondent: Ch. LATIF AKBAR
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Basharat Ahmed Sheikh, Sardar Said Muhammad Khan Title: Raja ABDUL QAYYUM vs Ch. LATIF AKBAR, ADVOCATE And 2 OTHER Case No.: Civil Appeal No. 34 of 1994 Appeal No. 99 of 1993 Date of Judgment:1994-06-29 Reported As: 1994 CLC 2041 Result: Appeal dismissed
JUDGMENT
JUDGMENT BASHARAT AHMAD SHAIKH, J.---In the general elections to the Legislative Assembly of Azad Jammu and Kashmir held on 29th June 1991, appellant Raja Abdul Qayyum and first respondent Ch. Latif Akbar, alongwith two other candidates, contested the seat reserved for Constituency known as LA-26 Muzaffarabad-4. According to the official results Raja Abdul Qayyum polled 21,896 votes while Ch. Latif Akbar polled 14,471 votes. Thus Raja Abdul Qayyum secured 7,425 votes more than his nearest rival mentioned above and was declared elected as member of the Legislative Assembly. First respondent Ch. Latif Akbar lodged an election petition before the Chief Election Commissioner and challenged the election of Raja Abdul Qayyum on various grounds. The Chief Election Commissioner entrusted the petition to a Tribunal consisting of a former Judge of the High Court. The hearing of the petition out of which the' present appeal arises commenced on 26th of November 1991. After obtaining the written statement the Tribunal framed issues and recorded evidence of the parties. However, the evidence of the appellant was closed when some more witnesses had yet to be examined. This action of the Tribunal was vehemently attacked by the appellant and we would be adverting to it at the proper stage. At the conclusion of the trial the Tribunal recorded the finding that the election of the returned candidate had been materially affected because, due to various reasons recorded by the Tribunal, 8,345 votes were not legally valid. As already mentioned the appellant's lead was of 7,425 votes. In pursuance of a right guaranteed by section 63 of the Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970, which will be referred to in this judgment as the Ordinance, the appellant filed an appeal before the High Court. It was heard by a Division Bench and was rejected
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on 7th of May 1994. Raja Abdul Qayyum was granted leave by this Court to examine various grounds raised by him. Initially a large number of grounds were urged and allegations were levelled in respect of many other polling stations but subsequently the dispute was confined to twenty polling stations. According to the findings of the Tribunal, allegations in respect of eight polling stations were not proved. Since there was no appeal from the side of the first respondent the dispute in respect of the other polling stations in which findings have been given against the. first respondent are no more live. Thus twelve polling stations, namely, 9, 16, 40, 42, 20, 22, 43, 44, 64, 72, 1 and 76 are under dispute. At polling stations 9, 16, 40 and 42, where the total number of votes was 3,184, no polling took place at all. At polling stations 20, 22, 43, 44, 64 and 72 the allegations of corrupt and illegal practice have been found as proved and total votes at these polling stations numbering 3,583 have been excluded from the appellants count. At the remaining two stations, 1 and 76, votes in excess of the total votes were polled. The Tribunal has excluded 1,578 votes relating to these polling stations from the tally of the appellant. As alluded to earlier, it was vehemently contended by the learned counsel for the appellant, Raja Muhammad Hanif Khan, that the Election Tribunal committed an illegality by closing the evidence of the appellant on 21st of October 1993 without legal justification. It was also contended by the learned counsel that adjournments for adducing evidence were generously granted to the first respondent but the appellant was treated discriminately. The learned counsel took us through the various orders. At that stage we asked the learned counsel for the first respondent; Ch. Ibrahim Zia, to give reply on this point. Without going into the question whether the order of closing evidence passed by the Election Tribunal on 21st of October was a proper exercise of jurisdiction or not, we felt that in order to do justice between the parties we should record the evidence of the persons whom the appellant wanted to produce as witnesses. There was no dispute as to who those persons were or about their number. We, therefore, announced the order to the parties that we have decided to record the statement of those witnesses at an early date. However, the appellant's counsel sought half an hour's adjournment in order to contact his client and then made a statement at the Bar that the appellant was only willing to produce his witnesses if the case was remanded to the Election Tribunal. This was an unacceptable condition. The learned counsel was vehemently contending that the appellant had not been given a fair trial by the Election Tribunal but wanted that the evidence should be recorded by the same Tribunal. The acceptance of this suggestion would have resulted in automatic revival of the appellant's membership which also meant that unspecified time, up to a year or so, was to be spent in recording evidence and re- hearing of arguments and then subsequent appeal to the High Court. Since we have to keep the scales of justice evenly balanced between the parties we were of the view that interest of justice could be advanced only if we had recorded the evidence ourselves. Now when the appellant has not availed of the opportunity, the matter rests there. A contention in the nature of preliminary objection was raised before the Election Tribunal that the election petition was not drawn up in accordance with section 51 of the Ordinance, which provision lays down the requirements which should be fulfilled while drafting an election petition. Raja Muhammad Hanif Khan contended before us that this point had been rejected by the Election Tribunal as well as the High Court without properly appreciating what the objection was. He explained that it was understood as if the objection about the maintainability of the petition was that those persons who were alleged in the petition to have indulged in corrupt practices were not arrayed as respondents in the petition but in fact the objection which had been raised was that those persons should have been named in the election petition. He submitted preliminaryobjection was raised in the written statement that the petitioner had not complied with theprovisions of the
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Ordinance while drafting and lodging the election petition. It was contended by the learned counsel that he had elaborated this objection by submitting that the names of the persons alleged to have committed corrupt and illegal practice should have been mentioned. In this respect he relied on clause (b) of section 51 of the Ordinance which is to the following effect:-- "51.--(1) Every election petition shall contain-- (a) xxx .xxxxxx , (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and (c) xxx .xxxxxx , It was contended that the word "parties" occurring in the above-quoted provision refers to persons against whom allegations have been levelled. Ch. Ibrahim Zia, the learned counsel for the first respondent, on the other hand contended that this objection was being raised for the first time during arguments in this Court and had not been raised at any earlier stage. This, according to the learned counsel, was the reason why-it was not discussed in the judgments of the High Court and the Election Tribunal. Ch. Ibrahim Zia alternatively contended that this objection had no merit because in section 51 of the Ordinance reference to "parties" is to parties to the Election Tribunal as visualised by section 50: This section lays down the persons who must be impleaded as parties in an election petition. As submitted by Raja Muhammad Hanif Khan the ground in which the objection was raised is preliminary objection No. (b) of the written statement which was in the following words:-- "(b)That the petitioner had not complied with the provisions of Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 as amended uptodate and the Azad Jammu and Kashmir Legislative Assembly Election Rules, 1970 as amended, while drawing and lodging the election petition, therefore, the same is liable to be dismissed without going into the merits." This ground does not itself specify the objection which was raised before us because it is couched in general terms. The Election Tribunal framed issue No. 2 in light of this objection which was to the following effect:-- "2.Whether the petition has been drafted keeping in view the relevant provisions of Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 as amended uptodate, and the Azad Jammu and Kashmir Legislative Assembly (Elections) Rules, 1970, as amended, if not with what effect?" In the judgment of the Election Tribunal it has been observed that this issue was not pressed. This observation of the Tribunal was not challenged before the High Court. This objection has not been dealt with in the judgment of the High Court. In such situation it is presumed that this point was not raised. However, before this Court the learned counsel has taken the plea, which is supported by an affidavit, that all points raised in the grounds of appeal filed in the High Court were duly argued. We have perused the grounds of appeal filed in the High Court but we find that this ground was not agitated. Again we find that it has not been included in the petition for leave to appeal. It has been raised for the first time during arguments in this Court without seeking permission. It obviously cannot be allowed in accordance with settled practice of this Court. Be that as it may, the interpretation being placed on clause (b) of section 51 reproduced above is not tenable. The word "parties" occurring in it plainly refers .to parties to the election petition. The legislature has not used the word "persons" and by no analogy the word "parties" can be construed to mean a person other than a party to the petition. In our view the learned counsel for the respondent, Ch. Muhammad Ibrahim Zia, has rightly relied on section 50 which precedes section 51. Section 50 runs as follows:--
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"50.The petitioner shall join as respondents to his election petition -- (a)all contesting candidates; and ' (b)any other candidate against whom any allegation, if any, of any corrupt or illegal practice is made and shall serve personally or by-registered post on each such respondent a copy of his petition." It lays down the persons who have to be arrayed as a party and then in section 51 reference in clause (b) is to the same persons about whom it has been enjoined by section 50 that they shall be added as parties. The contents of subsection (a) of section 50 show that it is enough that all "contesting candidates" should be arrayed as respondents in the election petition. But it is provided in clause (b) that any "other candidate" against whom an allegation is made has also to be arrayed as a party. The question as to who is the "other candidate" referred to in clause (b) can be answered by referring to the definition of "candidate' contained in clause (ii) of section 2 of the Ordinance which lays down that a candidate means "a person proposed as a candidate for election as a member". It is clear that the word "candidate" is comprehensive and includes not only contesting candidates who are referred to in clause (a) of section 50 but also a person who was proposed as a candidate but subsequently withdrew from the contest in pursuance of section 15 of the Ordinance or whose nomination papers were rejected under section 13 after scrutiny. Under that section scrutiny of nomination papers is conducted by the Returning Officer and all those persons who have been proposed for membership of the Assembly are referred to in subsection (1) of that section as "candidates;. It is provided therein that "the candidates, their election agents, proposers and seconders may attend the scrutiny of the nomination papers---------.". Sub section (3) gives the necessary power of rejecting a nomination paper and the person whose papers may be rejected is referred to as "a candidate". Section 50 provides that all ---contesting candidates" must be made party to the petition but if there is allegation of corrupt and illegal practice against "any other candidate" he shall also be a necessary party. It is in this context that the word "parties" has been used in clause (b), of section 51. The names of persons who are alleged to have committed corrupt and illegal practice need not be mentioned. The learned counsel for the appellant referred to quite a few cases on this point to which we may now advert. Parmatma Singh v. Sri Ram Lakhan Singh Yadav AIR 1975 Pat. 267. This judgment does not advance the case of the appellant as would be clear from the last paragraph of the judgment:-- "14. Thus on a careful consideration of the facts of this case and the decisions cited on behalf of both the parties, it crust be held that the election petitioner must be allowed to examine any witness to give specific evidence that he was prevented by force from casting vote, if the name of that voter is not mentioned in election petition or in the schedule of the election petition as one of the voters said to have been prevented by force from casting vote." (Underlining is ours) Chandrashekhar Singh v. Sarjoo Prasad Singh AIR 1961 Pat. 189. In this judgment Patna High Court held that an election petition which does not set out the names of voters who have been subjected to corrupt practice is bad on that ground. This was observed while interpreting clause (b) of section 83 (1) of the (Indian) Representation of People Act, 1951"(which is pari materia, with subsection (1) of section 51 of the Ordinance. This view of the Patna High Court has not appealed to us because, as discussed above, the requirement of clause (b) is that names of the parties may be given not all the voters. However, if the particulars of any corrupt practice fall short of the requirement of that clause it will be an infirmity which can be taken note of while discussing a particular allegation and is not sustainable as a preliminary Abrar Muhiuddin Ahmed v. Zuhair Akram Nadeem 1986 MLD 2245. ) 'Election Tribunal judgment. The learned counsel has relied on portions "d the judgment captioned as `C', `D' and `E' on pages 2249 to ?.251. In these 'portions the
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factual aspect of the case has been dealt with, but the question whether the election petition is liable to be dismissed on the short point which has been urged before us has not been dealt with. Sher Bahadur Khan v. Abdul Samad Khan (PLD 1975 Pesh. 134). In portion of the judgment relied upon by the learned counsel, namely, caption `E'. it was held that the petitioner had failed to give full particulars of corrupt practice as alleged by him in the petition and also failed to prove them. The judgment does not deal with any preliminary objection but this finding was given at the conclusion of the trial. It, therefore, does not support the appellant's case. Before proceeding further, it seems necessary that at this stage we should notice the relevant provisions of law which are applicable to the east and would have to be interpreted. Section 58 of the Ordinance lays downthe procedure for the trial of the election petitions. It lays down as follows:- - .58.--(l) Subject to the provisions of this Ordinance and the rules, _every election petition shall be tried, as nearly as may be, in accordance with the procedure for the trial of suits under the Code of Civil Procedure, 1908: Provided that the Tribunal may-- (a)make a memorandum of the substance of the evidence of each witness as his examination proceeds unless it considers that there is special reasons for taking down the evidence of any witness in full; and (b)refuse to examine a witness if it considers that his evidence is not material or that he has been called on a frivolous ground for the purpose of delaying the proceedings. (2)Subject to the provisions of this Ordinance, the Evidence Act, 1872, that apply for the trial of an election petition. (3)The Tribunal may, at any time, upon such terms and on payment of such fee it may direct, allow a petition to be amended in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions at issue, so however that no new ground of challenge to the election is permitted to be raised. (4)At any time during the trial of an election petition, the Tribunal may call upon the petitioner to deposit such further sum by way of security, in addition the sum deposited under section 49 as it may think fit." It is laid down in section 60 that the Tribunal has all the powers of a Civil Court trying a suit under the Code of Civil Procedure. Section 63 provides that at the conclusion of the trial of an election petition the Tribunal may 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. (2) xx xxx xxx (3) xx xxx xxx." There are two sections which deal with grounds for declaring election to be void. In section 64 are given the grounds on which the election of a returned candidate can be declared void while the grounds for declaring an election as a whole void are incorporated in section 66. Section 65 authorises the Election Tribunal, in given circumstances, to declare the election of a p returned candidate to be void and also to declare that any other contesting candidate has been duly elected. However, this power is restricted only to a situation in which election of a returned candidate is declared to be void under section 64 and does not extend to a situation where the election as a whole is declared as void under section 66. These three sections are:
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"64; -(1) The Tribunal shall declare the election' of the returned candidate to be void if it is satisfied that-- (a)deleted. (b)deleted. (c)the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or (d)a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent. (2)The election of a returned candidate shall apt be declared void on the ground-- (a)that any corrupt or illegal practice has been committed if the Tribunal is satisfied that it was not committed by, or with' the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission; or (b)that any of the other contesting candidates was on the nomination day, not qualified for, or was disqualified from being elected as a member. 66.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 this Ordinance or the rules; or (b)the prevalence of extensive corrupt or illegal practice at the election." Also relevant is section 65 which runs as follows: "65. The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if. it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected." Examination of sections 64, 65 and 66 shows that-- (a) the election of a returned candidate can be declared void under section 64 and, in the circumstances visualised by section 65, an election petitioner or any other contesting candidate can be declaredelected; (b)election can be declared void on account of corrupt or illegal practice under clause (c) of section 64, but it is not necessary to place any responsibility on a candidate, his agent etc. while under clause (d) the responsibility of corrupt or illegal practice must lie on the returned candidate or his election agent etc.; (c)under section 64 it is not necessary to prove that the result of the election has been materially affected by corrupt or illegal practice, while it is so in section 66; and (d)under section 66 election can be declared void on the basis of the failure of any person to comply with the provisions of the Ordinance or the rules; this can be done without there being any corrupt and illegal practice. Since a large number of cases from Pakistan jurisdiction have been cited from both the sides, the law in Pakistan may also be noticed. Provision in the Ordinance relating to procedure before the Tribunal is section 58 which has been reproduced above. Representation of People Act, 1976 was enacted in Pakistan to replace the National and Provincial Assemblies (Election) Ordinance, 1970. Section 62 of the Act deals with procedure before the Tribunal. When it was initially enacted section 62 contained the same provisions as is section 58 of the Ordinance that "subject to the provisions of this Act and the rules, every election petition shall be tried as nearly as may be in accordance with the procedure for the trial of the suits under the Code of Civil Procedure". It was also provided that, as is provided in clause (a) of subsection (1) of section 58 of the Ordinance, the Tribunal may make a memorandum of the substance of the evidence of each witness as his examination proceeds unless it considers that there is special reasons Poor taking down the evidence of any witness in full. However, section 62 had been substantially amended and it has been laid down that
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election petition shall be tried in accordance with the procedure laid down by the Election Commissioner. The provisions contained in sections 64 and 66 of the Ordinance (reproduced above) are verbatim the same as in sections 68 and 70 of the Representation of People Act. Similarly section 69 of the Act is the same as section 65 of the Ordinance. Since a large number of judgments from Indian jurisdiction have also been cited before us it becomes necessary to notice the Indian provisions also. In India the ground for declaring the election as void are mentioned in section 100 of the Representation of People Act, which is to the following effect:-- "100. Grounds for declaring election to be void.--(1) Subject to the provisions of subsection (2) if the High Court is of opinion-- (a)that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or (b)that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c)that any nomination has been improperly rejected; or (d)that the result of the election, in so far as it concerns a returned candidate, has been materially affected-- (i) , by the improper acceptance of any nomination, or. (ii),by any corrupt practice committed in the interests of 'the: returned candidate by an agent other than his election agent; or (iii)by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv)by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. (2)If in the opinion of the High Court a returned candidate has been guilty by an agent, other than his election agent, of any, corrupt practice but the High Court is satisfied-- (a)that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders and without the consent of the candidate or his election agent; ' (b)omitted (c)that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d)that in all other respects the election was free from any corrupt practice on the part of the candidate or…
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