Anwar Zaheer Jamali, J.--By this Constitutional petition, petitioners Yousaf Munir Shaikh, Muhammad Abid Ali Umang and Nisar Ahmed Panhwar, who were respectively candidates from PS-127 Karachi-39, NA-240, Karachi-2 and NA-246 Karachi-8 in the bye-elections held on 12.5.2004, have challenged the order dated 9.6.2004 passed by Respondent No, 1, and have prayed for the following reliefs:-- A. That this Honourable Court may be pleased to declare that the impugned order dated 9.6.2004 is bad in law, arbitrary, unjust, mala fide and of no legal effect.
B. That this Honourable Court may be pleased to hold that Petitioner No, 1 having secured highest number of votes in Constituency P.S. 127, Karachi-39, Petitioner No, 2 having secured highest number of votes in N.A. 240, Karachi-2 and Petitioner No, 3 having secured highest number of votes in N.A. 246, Karachi-8 are entitled to be declared as returned/elected members of the Sindh Provincial and National Assembly of Pakistan.
C. That this Honourable Court may be pleased to direct Respondent No, 1 to declare by public notice the Petitioner No, 1 from P.S. 127, Karachi-39, Petitioner No, 2 from .N.A. 240, Karachi-2 and Petitioner No, 3 from N.A. 246, Karachi-8 as returned/elected candidates.
D. That this Honourable Court may be pleased to grant permanent injunction restraining Respondent No, 1 from giving effect to and from taking steps pursuant to Notification No: F.
8(16)/2004-Cord, dated 9.6.2004.
E. Any other/further additional relief/relieve which this Honourable Court deems fit proper and exercise in the . circumstances of the case.
2. Briefly stated, the case of the petitioners is that in the bye-elections of their respective constituencies at Karachi held on 12.5.2004 they were the returned candidates, having secured following votes as against their nearest rival candidates:-- Sr No,Constit- uency No,Name of the Candidate/ petitionerVotes securedName of nearest rival Candidate and votes secured PS-127 Karachi- 39Yousuf Munir Shaikh41089Muhammad Umar Jat 25430 NA-240 Karachi-2Muhammad Abid Ali Umang46453Qari Muhammad Usman 26053 NA-246 Karachi-8Nisar Ahmed Panhwar47685 16895Rashid Naseem It was obligatory upon Respondent No, 1 to have declared their results accordingly in terms of Section 42 of the Representation of People Act, 1976 (hereinafter referred to as the Act of 1976) but instead of doing so the election result were initially kept in abeyance by Respondent No, 1, vide order, dated 13.5.2004, thereby further authorising one of its members, Justice Muhammad Sadiq Leghari to hold summary enquiry. Thereafter purportedly exercising its powers under Section 103- AA of the Act of 1976 Respondent No, 1 declared the whole election process in their respective constituencies null and void and directed holding of fresh bye-elections, in an arbitrary manner. To impugn such order of Respondent No, 1 some of the grounds urged in the petition read as under--
(i) That the impugned order has been passed by the Respondent No, 1 in purported exercise of Section 103-AA of the Representation of the People Act, 1976 which empowers the Respondent No, 1 to declare the poll in any constituency void in case the Respondent No, 1 is satisfied that grave illegalities or violations of the provisions of the Representation of the People Act, 1976 or the rules framed thereunder have been committed. It is submitted that such powers by. the Respondent No, 1 can only be exercised if from the facts apparent on the face of the record and after such summary inquiry as the Respondent No, 1 may deem necessary come to the conclusion that grave illegalities or violations of the provisions of the Representation of the People Act, 1976 or rules framed thereunder have been committed. It is further submitted that as is evident from the reports of the relevant District Returning Officers and Returning Officers the poll in the 3 Constituencies were held in a free, fair and transparent manner and as such the alleged gross illegalities or violations of the provisions of the Act or the rules were not apparent on the face of record;
(ii) That Section 103-AA of the Representation of the People Act, 1976 does not confer unbridled and unfettered powers on the Respondent No, 1 to declare the poll void but exercise of such power by the Respondent No, 1 is subject to existence of, grave illegalities or violation of the provisions of the Act or the Rules apparent on the face of the record and holding of such summary enquiry as the Respondent No, 1 may deem necessary. It is submitted that while passing the impugned order the reports of the Returning Officers and the Law 'Enforcement Agencies were available before the Respondent No, 1' and from such reports no illegality or violation of the provisions of Act or Rules is apparent on the face of the record.. Furthermore, no other material on record by way of summary inquiry was brought before the Respondent No, 1 which may suggest or prove that grave illegalities or violations of the provisions of the Act or Rules were committed by the petitioners. Such being the position the order, dated 9.6.2004 passed by the Respondent No, .1 is based on surmises and conjectures.
(iii)That Section 27 of the Representation of the People Act, 1976 empowers a Presiding Officer for a Polling Station to stop the poll and inform the Returning Officer that he has done so if the 'poll at the Polling Station at any time, so interrupted or, obstructed for a reason beyond the control of the Presiding Officer that it cannot be resumed during the polling hours fixed under Section 26 or any ballot box used at the Polling Station is unlawfully taken out of the custody of the Presiding Officer or lost or damaged or tampered with to such an extent that a result of the poll at the Polling Station cannot be ascertained. It is submitted that during the entire electoral process of 12.5.2004 polling was stopped temporarily for a short period only on one Polling Station i,e, Polling Station No, 94 in P.S. No, 127, Karachi-39 and on this Polling Station also polling resumed after a short interval and continued in a peaceful and orderly manner till the closing hours of the polling. There was no incident of removal of ballot box or tampering or stuffing with the same at any of Polling Stations.
Such orderly, fair, transparent and peaceful conduct of poll on 12.5.2004 amply demonstrated that insofar as the conduct of election is concerned the same was done in any orderly' peaceful and transparent manner and as such the Respondent No, 1 had/have no justification to declare the poll null and void.
(iv) That the impugned order of declaring the poll null and void has been based by the Respondent No, 1 on the complaints which were made by the parties regarding alleged grave illegalities. It is submitted that the complaints mad by the parties on the election day cannot be made basis for declaring the poll null and void as the complaints made by the parties requires probe, investigation and evidence which can only be done by the Election Tribunal in an Election Petition under Section 52 of the Representation of the People Act, 1976. It may be added that indeed none of the losing candidate appeared before the Respondent No, 1 to substantiate the allegations contained in the complaints made before the Respondent No, 1 in respect of process of election held on 12.5.2004.
(v) That the Respondent No, 1 has gravely erred in holding that there was indiscriminate firing in the said constituencies which resulted in interference with the free exercise of right of franchise of the electorate during bye-election in the said 3 Constituencies. It is submitted that incident of firing in N.A. Constituency No, 240 is restricted and as reported was a hit and run incident, as is evident from the police reports, at one Polling Station situated in Anjam Colony, Baldia, Karachi and as per the consolidation of result count 6215 votes were cast as against total registered 10521 votes at this Polling Station. In any event the ends of justice would have met if re-polling on this Polling Station would have been ordered. It is submitted that on account of disturbance/violence at one Polling Station alone the entire result cannot be declared null and void.
(vi)That from the tenor of the impugned order dated 9.6.2004 it became crystal clear that the incidents of firing at some places weighed with the Respondent No, 1 in declaring the poll in the 3 constituencies as null and void. It is submitted that firing incidents in P.S. Constituency No, 127, Karachi-39, took place outside only one Polling Station i,e, Polling Station No, 94 situated in Jafer-e- Tayar Society, where no casualty took place and few persons were injured as a result of firing and as a result of injuries caused with hard and blunt objects. In N.A. Constituency No, 240, Karachi-2 the incident of firing took place outside the Polling Station situated in Anjam Colony and in N.A. 246, Karachi-8 incident of firing took place outside 3 different Polling Stations as is, evident from the police report which has been incorporated in the impugned order itself at page 5. It is submitted that on account of incidents of firing polling was not disturbed or stopped and it continued till the scheduled time of closing of polling, as is evident from the report of the Rangers. Such being the position the order of 'declaring the poll, null and void is bad in law, arbitrary, mala fide and of no legal effect.
(vii) That there were 158 Polling Stations in N.A. 240, -197 Polling Stations in N.A. 246 and 130 Polling Stations in P.S. 127 and in N.A. 240 firing incidents took place outside 3 Polling Stations, in N.A. 246 firing incident took place outside one Polling Station and in P.S. 127 firing and disturbance took place outside one Polling Station as is apparent from the police reports which is available at page 5 of the impugned order. Such being the position the entire poll does not stand vitiated and the poll cannot be declared as null and void merely on account of disturbance at some Polling Stations (16 out of 495 Polling Stations) and as such the order of Respondent No, 1 is bad in law, arbitrary and unjust and of no legal effect. At best the Respondent No, 1 could have passed an order for holing of fresh polls only on such Polling Stations where such disturbance had taken place.
3. On service of notice of this petition, appearance has been made by Mr. Makhdoom Ali Khan, Attorney-General of Pakistan, Mr. Anwar Mansoor Khan, Advocate-General, Sindh, both on Court notice, counsel named above on behalf of some of the respondents, while other respondents have chosen to remain absent.
4. Reply on behalf of Respondent No, 1 has been filed wherein it has been stated that in view of the interim order passed by this Court in this petition on 22.6.2004 further process of fresh elections in these constituencies in pursuance of the notification dated 9.6.2004 has been stayed. As to the other allegations made in the petition it has been asserted that the impugned order, dated 9.6.2004 has been passed in conformity with the provisions of Section 103-AA read with Section 104 of the Act of 1976 and Article 6 of the Election Commission Order, 2002 after proper application of mind and considering all the facts and circumstances of the case in a bona fide manner, therefore, the petition is liable to be dismissed. Other respondents have not submitted any comments/reply to this petition.
5. Mr. Abul Inam, Advocate representing petitioners in this case reiterated the facts stated in the petition and strongly contended, that the impugned order passed by Respondent No, 1 is a glaring instance of arbitrary and mala fide exercise of power by Respondent No, 1 contrary to the material available on record before it, and ignoring the relevant material without any cogent or valid justifications. He made specific reference to three reports submitted by the respective Returning Officers/Assistant Returning Officers of P.S. 127, N.A. 240 and N.A. 246 to show that none of these Officers, who were in charge of the whole election process at the relevant time had reported any illegality, irregularity, rigging or such other incidents at any Polling Station except interruption of polling on two Polling Stations for some short period which could have materially affected the election results of the petitioners who are the returned candidates. In the same context he also made reference to Paragraph 4 of the impugned order, wherein the reports submitted by Tariq Jamil, D.I.-G.P. Operations, Haji Abdul Razzaque, I.N.S.P. Sharfabad P.S. Investigation Zone III Karachi, Ashfaq Hussain, I.N.S.P. Liaquatabad P.S., Bashir Khan Sub-Inspector Gulberg P.S. Investigation Zone III Karachi, Muhammad Riaz Sub-Inspector, Liaquatabad P.S. Investigation Zone III, Karachi, Niaz Ahmed Khoso, Senior Superintendent of Police Investigation Zone IV, C.C.P., Karachi, have been reproduced to show that in these reports also, except some incidents of violence outside few.
Polling Stations, resulting in some casualties, no allegations of rigging, bogus voting or any other illegality, materially affecting election results were reported. He, therefore, contended that the impugned order passed by Respondent No, 1 is based on surmises and conjectures which do not find support from any material available before the Respondent No,
1. Referring to the provisions of Section 103-AA of the Act of 1976 learned counsel further contended that if there was any illegality or irregularity ' in the -process of bye-elections held on 12.5.2004 then proper/appropriate remedy was available to the aggrieved parties by way of Election petitions before the Election Tribunal, after the notification under Section 42 of the Act of 1976 was issued by Respondent No,
1. He also urged that the scope of summary enquiry contemplated under Section 103-AA 'of the Act of 1976 cannot be stretched in an arbitrary manner to the extent that contrary to the reports and other material available before Respondent No, 1, which were received from independent sources, on the pretext of restoring the confidence of general public on Respondent No, 1, by a stroke of pen the whole election results could be declared void. Mr. Abul Inam contended that the authenticity of the results compiled by Returning Officers of their respective constituencies were not in dispute, thus, the Respondent No, 1 had no option but to declare such results in terms of Section 42 of the Act of 1976 leaving it open for the losing candidates to agitate any further grievance in respect thereof before the Election Tribunal established under Section 57 of the Act of 1976 for this purpose. To add force to his contention he relied upon the case of Kunwar Khalid Younus v. Federation of Pakistan PLD 2003 Kar. 209 wherein a Division Bench of this Court has held that Section 42(4) of the Act of 1976 casts a mandatory duty upon Election Commission to publish the name of returned candidates, on the basis of the consolidated result communicated by the Returning Officer, irrespective of any power that the Election Commission may exercise under Section 103-AA to declare an election void upon finding of grave illegalities or violation of law.
6. Continuing with his arguments Mr. Abul Inam submitted that nullifying the whole election results of three constituencies PS-127, NA-240 and NA-246 by impugned order mainly on the pretext of instances of indiscriminate firing resulting in several casualties and for restoring the confidence of public on Election Commission of Pakistan, the Respondent No, 1 has laid down a very dangerous precedent to give benefit to a party who himself may be instrumental/responsible for creating such law and order situation or loss of precious lives of innocent citizens, which has otherwise no nexus to the smooth election process, as confirmed by the Returning Officers in their respective reports. Critically examining the impugned order he urged that the material available, with Respondent No, 1 at the time of passing of impugned order could be categorized in three parts (a) enquiry reports submitted by the Home Secretary and Law Enforcing Agencies on the directions of Commission; (b) reports submitted by the Returning Officers on the directions of the Commission and (c) complaints in the shape of telegrams and letters directly received by the Commission.
From these reports, first two reports have supported the claim of the petitioners, inasmuch as there were no such incidents of violence which could materially affect the results of the three constituencies, while the third part of the material, telegrams and complaints were wholly unsupported from any corner as even the complainants themselves have not responded to join the enquiry proceedings before the Commission. In the same context he also made reference to the proceedings before one of the members of the Commission, Mr. Justice Muhammad Sadiq Leghari, who was authorized to hold enquiry in terms of the order, dated 13.5.2004, to show that he had expressed his inability to hold detailed enquiry due to the factors, including profile of the matter, the absence of MMA candidates and the expressions made by some circles through media. Learned counsel also made comparative analysis of remedies provided under Sections 52 and 103-AA of the Act of 1976 to show that the former provision of law is the one where full-fledged enquiry is to be conducted through Election Tribunal to examine all grievances through Election Petitions in an appropriate and judicious manner while under the latter provision of law only summary procedure is prescribed in the cases where grave illegalities or violations of law and rules of such nature are apparent on the face of record which could form valid basis to nullify whole election results in a summary manner. To amplify the concept of "apparent on the face of record" learned counsel placed reliance on the following cases:--
(a) Messrs Joint Venture KG/KIST v: Federation of Pakistan PLD 1996 SC 108.
(b) Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741;
(c) Mohtarama Benazir Bhutto v. President of Pakistan PLD 2000 SC 77.
Relevant observations from these cases adverted to by the learned counsel are reproduced as under:-- PLD 1996 SC 108 (119)
"We may mention here that the Court while examining the validity of an award does not act as a Court of appeal. Therefore, a Court hearing the objection to the award cannot undertake reappraisal of evidence recorded by the Arbitrator in order to discover the error or infirmity in the award. The error or. .infirmity in the award which rendered the award invalid must appear on the face of the award and should' be discoverable by reading the award itself. Where reasons recorded by the Arbitrator are challenged as perverse, the perversity in the reasoning has to be established with reference to the material considered by the Arbitrator in the award."
PLD 1979 SC 741 (768)
"43.From what has beer; said in the preceding paragraphs it follows that in order that an error may be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self-evident and floating on the surface, and does not require any elaborate discussion or process of ratiocination."
PLD 2000 SC 77 (81)
"Before an error can be a ground for review it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self-evident and floating on the surface and does not require any elaborate discussion or process of ratiocination."
7. Mr. Abul Inam also placed reliance on the following passages from the case of Abdul Hamid Khan Achakzi v. Election Commissioner of Pakistan, Islamabad and 24 others 1989 CLC 1833 to fortify his submissions with reference to the extent of jurisdiction of Respondent No 1/Election Commission of Pakistan in invoking its powers conferred under Section 103-AA of the Act, which reads thus: "It may be seen that Section 27(1)(b) expressly caters for special situation wherein ballot boxes used at the polling station, are unlawfully taken away from the custody of the Presiding Officer and are destroyed, lost, damaged, or tampered with whereupon result of such polling station cannot 'be ascertained. Evidently the Returning Officer is obliged to communicate such happening to Election Commission who shall dLect fresh polls unless satisfied that result of the election in the said constituency is appropriately determinable on the basis of voting already held in the remaining polling stations. Anyhow powers of 'Election Commission' for directing fresh polls in a particular polling station and procedure for counting are specified in sub-sections (3) and (4) of Section 27. Whereas Section 103-AA describes general supervisory and all pervading authority of `Election Commission' for declaring election of the whole constituency as void on being satisfied about existence of grave illegalities or serious violations of the provisions of 'The Representation Act' or 'Election Rules' in the conduct of polls in any constituency. In the instant case report was made by the Returning. Officer to the Election .Commission about unauthorised forcible removal of the ballot boxes concerning two polling stations i,e, 43 and 44 by a group of persons admittedly other than the petitioner. There was absolutely no grievance placed by either party before the `Election Commission' about any violation in the remaining 55 polling stations. We are quite clear that when express provision concerning exercise of authority by a form providing specific mode of redress to an aggrieved party exists then it would be inexpedient to invoke general or supervisory provisions of the statute. Similarly basic object of providing variety of jurisdiction to a forum is necessarily for rectifying mischief or violation through least disturbance, inconvenience or expenses. No doubt Election Commission is vested with jurisdiction to declare void, results of the entire constituency within the purview of Section 103-AA but in our view such authority is exercisable only when other express provisions of law are not suitable to cater for the given situation.
Additionally it appears imperative that preconditions contained in the general provision should be fully satisfied before making direction about extreme action or disturbing the whole electorate of the constituency. Section 103-AA obviously regulates jurisdiction of the Commission, only when grave illegalities are reported to have been committed in the 'Constituency' as distinguished from 'Polling Station' Section 2(vii). of 'The Representation Act' defines constituency as delimited under the Delimitation of Constituencies Act, 1974. Whereas 'Polling Stations' is a fraction unit, established by the District Returning Officer in every constituency for facilitating holding of elections as contemplated under Section 8 of said enactment. Admittedly in Constituency PB-9 Pishin IV, fifty- seven (57) polling stations were established through Gazette Notification No, 199 Quetta 22.10.1988.
Therefore, Election Commission while considering factum of rigging, malpractice, illegal practices, or violation of law or rules was obliged to see whether alleged illegalities or improprieties were reported in The Constituency' or considerable portion thereof, or merely in one or two specified polling stations. The Election Commission was further bound to consider whether final result of the Constituency was otherwise determinable on the basis of polls conducted in the remaining majority of the polling stations. We are inclined to observe that relevant facts for assumption of jurisdiction have riot been kept in view by Election Commission No, 1 while passing the impugned order, besides provisions of Section 27(1)(b) and other factual aspects were completely ignored. In this context it would be proper to mention here ,that ignored. In this context it would be proper to mention here that Constituency PB-9 Pishin IV comprising of 57 polling stations has 95,907 voters.
Whereas voting strength of polling stations has 95,907 voters. Whereas voting strength of polling stations 43 and 44 combined together consists of 2,782 persons. Apparently, when matter came up for hearing before the Election Commission there was no complaint in respect of remaining 55 polling stations consisting of approximately 93,125 votes: The result count pertaining to fifty-five polling stations forwarded by the Returning Officer to the Election Commission, in accordance with Section 42 and the Rule 28 showed 17,843 votes having been polled in favour of petitioner as well as rival candidates (private respondents) thus, indicating almost ratio of 19.05% persons who participated in the election from 55 polling stations of said Constituency."
8. Relying upon the above case, learned counsel contended that Respondent No, 1 in passing the impugned order, dated 9.6.2004 miserably failed to make distinction between disturbances at one or two Polling Stations in the constituency, not much affecting the overall result of the constituency or disturbance as a whole, and in this regard availability of powers with the Presiding Officer of the Polling Station and the concerned Returning Officer under Section 27 of the Act of 1976, were also overlooked. He concluded that examining the, impugned order from any angle, factual or legal, same is not sustainable in law.
9. Mr. Aftab Ahmed Shaikh, learned counsel for Petitioner No, 2 adopted the arguments of Mr. Abul Inam, Advocate and urged that to meet the ends of justice impugned order and consequent notification dated 9.6.2004 be declared void and of no legal effect.
Mr. Makhdoom Ali Khan, Attorney-General of Pakistan, who has appeared on Court notice, did not support the impugned order passed by Respondent No,
1. He contended that in relation to election disputes two types of remedies are available to aggrieved persons, one under Section 52 of the Act and the other under Section 103-AA of the Act. Dilating upon the scope of summary enquiry contemplated under Section 103-AA of the Act he made reference to the case of Raja Muhammad Afzal u. Ch. Muhammad Ali Altaf Hussain 1986 SCM R 1736 and urged that even in the cases of summary enquiry provisions of Qanun-e-Shahadat Order were strictly applicable to prove any allegation and for that principles of natural justice also cannot be violated. He emphasized that the language of Section 103-AA of the Act of 1976 is very significant and interference by Respondent No, 1 in exercise of such powers can only be justified within its strictly defined parameters, and this remedy cannot be considered as bar to the other general remedy available under Section 52 of the Act of 1976. He submitted that if the two provisions of law are placed in juxtaposition then it will be noticed that the powers under Section 103-AA of the Act of 1976 could only be exercised by Respondent No, 1 in exceptional cases of grave illegalities or violation of Act and the .rules, which are apparent on the face of material available before the Commission. Referring to the impugned order he further contended that whole discussion made in the impugned order is of general in nature, without reference to any provision of Act or rules which were purportedly violated during the process of election or any instance of grave illegality which has materially affected the election results. Referring specifically to the observations of Respondent No, 1 contained in impugned order that "the interference related to a part or any section of electorate, big or small or majority of the electoral is wholly immaterial learned counsel contended that such view is contrary to the settled law relating to elections as enunciated in the case of Abdul Hameed Khan Achakzai (supra)
(relevant portion produced above) and the case of Haji Behram Khan v. Abdul Hameed Achakzai PLD 1990 SC 352 whereby such judgment of the High Court was upheld by the Honourable Supreme Court of Pakistan with the following observations:-- "We agree with the High Court that in a case whereas serious violation of law or any statutory rules is established by a group of miscreants or by the supporters of a losing candidate in one or two polling stations, the election of the whole constituency may not be set aside if on the strength of the votes cast in other polling stations and the available record a clear result is determinable. In this case, Respondent No, 1 had obtained 5,122 votes and the next highest number of votes obtained were by the petitioner Haji Behram Khan namely 2,625 votes. Admittedly, the three ballot boxes which were not recovered contained only 1,785 votes and even if all of them had been cast in favour of Haji Behram Khan (petitioner herein) he would still have lost. In these circumstances, to declare the election of the whole constituency as void on account of the misdoings or a hooliganism perpetrated by the supporters of other candidates would be to encourage candidates who felt that they are losing getting the whole election. annulled and frustrating the wishes of the electorate.
This Court will not easily countenance such a aversion of the electoral process."
11.In the end Mr. Makhdoom Ali Khan discussed the import of word "satisfied" used in Section 103-AA of the Act of 1976 and contended that, such satisfaction of Respondent No, 1 should not be arbitrary or capricious but it should be based on sound material available with the Commission. To fortify this view he referred the case of Syed Saeed Hassan v. Pyar Ali and others (PLD 1976 SC 6) and the case of Mehmood Khan v. Election Commission of Pakistail2003 YLR 1413.
12.Mr. Anwar Mansoor Khan, Advocate-General, Sindh, who is on Court notice, also did not support the impugned order passed by Respondent No, 1 and adopted the arguments of learned Attorney- General of Pakistan. In addition to that, he placed on record notes of his written arguments wherein he, from his point of view, critically analyzed shortcomings of the impugned order and further dilated upon the scope of phrases "(fact apparent on the face of record" "grave illegalities" and import of word 'satisfied" available under Section 103-AA of the Act of 1976. In addition to some of the cases referred above, he made reference to the following cases:--
(1) Bartha Ram v. Lala Mehar Lal Bheet and another 1995 SCM R 684; (2)Mian Muhammad Jahangir and others v. Government of Punjab through Secretary, Housing and Physical Planning, Lahore and others 1999 SCM R 2051; &gar v. Muhammad Rafique and others 2003 SCM R 1401; (3)Abdul Hafeez Pirzada v. Agha Ghulam Ali Buledi and others 1991 CLC 2093; (5)Syed Muhammad Khalil-ur-Rehman Chishti v. Shamshad Khan and others 1993 M LD 1225; (5)Faiz Ali Shah v. The State PLD 1989 SC (AJ&K) 61; (6)Mian Khurshid Mahmood Kasur v. Returning Officer and 9 others 1994 CLC 296.
13.Mr. Muhammad Junaid Farooqi, Advocate for Respondents Nos, 15 and 27 in his reply submissions firstly, challenged the maintainability of the petition with reference to the status of Respondent No, 1 as Tribunal in view of the language of Section 103-AA(3) of the Act of 1976.
However, on perusal of explanation note to Section 67(3) of the Act,. (substituted vide Act IX o 1991 dated 18.6.1991) he did not press this point. Learned counsel next contended that as the whole material available with the Commission/Respondent No, 1 is not available before this Court therefore, findings of fact recorded in the impugned order of Respondent No, 1 cannot be examined properly by this Court. To fortify this view he placed reliance upon Sarfraz Ahmed Khan v. District Judge, Multan 2003 CLC 44 and Dr. Ruqia Shaukat v. Additional District and Sessions Judge and others 2003 CLC 1310. In these cases which respectively related to ejectment proceedings under rent laws and guardianship dispute, the view taken by the Courts was that the exercise of reappraising the evidence in order to come to its own conclusion should not be undertaken by the High Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution. Learned counsel also made reference to photostat copies of the complaints, which were placed on record by him on 15.7.2004 alongwith statement, to show that the incidents of violence were of such nature that same have affected the over all turn out of voters and the final result of elections. He also submitted that the Election Commission of Pakistan has acted in a bona fide manner, therefore, due to some procedural lapse in the proceedings the impugned order shall not be disturbed/set aside but at the most the matter can be remanded to Respondent No, 1 for fresh summary proceedings to afford full opportunity to the petitioners and other parties to put up their case.
14.Mr. Shahadat Awan, Advocate for Respondent No, 13 also strongly supported the impugned order, dated 9.6.2004 passed' by Respondent No,
1. He confined his submissions with reference to illegalities and the acts of violence committed within the constituency of PS-127 from where Respondent No, 13 was a candidate. He made reference to certain observations of Respondent No, 1 contained at Pages 6, 30 and 33 of the impugned order to fortify his submission in this regard.
Learned counsel also made reference to page 7 of Annexure "E" in the same context to fortify his submissions and placed reliance on the judgment relating to complaint of malpractices in constituency NA-57 Sargodha-V PLD 1977 Journal 164. In this case powers of Election Commission available under Sections 103 and 103(B) were discussed in detail with reference to the concept of "grave illegalities or violation of the law or the rules and after detailed discussion on relevant facts, polls were declared void.
15.Mr. Muhammad Khalid, Advocate for Respondent No, 28 also supported the impugned order and submitted that by virtue of Section 105 of the Act the jurisdiction of this Court to entertain this petition is barred. However, he was unable to cite any case-law in support of his submission that how a sub-Constitutional legislation can curtail the Constitution a jurisdiction of this Court under Article 199 of the Constitution. Learne counsel however, did not controvert that except some complaints, which also remained unpursued, no other material was available with the Respondent No, 1 to declare the election result void.
16.Mr. Mehboob Anwar, representative on behalf of Respondent No, 1 did not advance any arguments, except that whatever has been state by Respondent No, 1 in its comments that may be taken into consideration for disposal of this petition:
17. We have carefully considered the arguments advanced by the learned counsel minutely perused the material placed on record, including the record produced by the representative of Respondent No, 3 on our directions and also perused the case-law cited at the bar.
18. There is no divergence of view in the arguments advanced by learned counsel for parties to this extent that the normal remedy available to an aggrieved candidate against election results is provided under Section 52 of the Act and such election petition is to be presented before the Tribunal constituted under Section 57 of the Act which is, inter alia, empowered to declare the election of returned candidates void on any of the ground stated in Section 68 of the Act and in addition to such remedy Respondent No, 1 has also been conferred with power under Section 103- AA of the Act of 1976 to declare a poll void but such power is subject to various conditions spelled out from the language of the said provision of law. To examine this aspect vis-a-vis the scope of Section 103-AA to the Act of 1976 it will be advantageous to reproduce the same as under: "103-AA. 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 enquiry 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. sub-section (4) of Section 42, the Commission may exercise the powers conferred on it by sub-section (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."
19. It is well-settled principle of interpretation of statutes that a provision of law is to be given its literal meaning as evident from its language, each and every word used by the Legislature has its own import/significance, and no word is to be deemed redundaint. Keeping in view this guiding principle when the provision of Section 103-AA of the Act of 1976 is perused it reveals that this remedy is available in addition and notwithstanding to any other remedy available under the Act of 1976, for invoking jurisdiction, facts apparent on the face of record are to be taken into consideration by way of holding summary enquiry as deemed fit by the Commission, and in case on holding of such summary enquiry the Commission is satisfied that grave illegalities or violation of the provisions of the Act or the Rules were committed only then Commission can declare the polls in the constituency void.
20. As against this, Section 52 of the Act, of 1976 provides general provision for challenging the election of any returned candidate on various grounds given in Section 68 of the Act, while Section 27 of the Act of 1976 deals with the situation of stopping of polling on one or more polling stations on the grounds provided therein, and holding of fresh poll on those polling stations under the orders of Commission and issue of such notification.
21. A review of some of the cases cited at the bar (shows that in the case of Mian Muhammad Jahangir (Supra) the import of words "error apparent on the face of record" was considered and it was observed that it refers to an error so manifest and, so clear that no Court shall permit such an error to remain on record. In the case of Baqar (supra) reference was made to the case of Master Construction Ltd. AIR 1966 SC 1047 and it was held that an error apparent on the face of record or an accidental slip or omission should be. an error apparent on the first sight and omission should be an accidental slip or omission made by the Court. Such an error, for its discovery, should not depend on elaborate arguments on questions of fact and law. In addition to it, as has been rightly argued by the learned Attorney-General the "satisfaction" of Respondent No, l as contemplated under Section. 103-AA of the Act of 1976 cannot be arbitrary or fanciful but it should be in line of the view expressed by the Honourable Supreme Court of Pakistan in case of Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 (relevant page 30) which reads thus: "Firstly, the petitioner or any of the respondents should claim the seat, and secondly, the Tribunal should be satisfied as to his entitlement, to be so declared elected, which in turn would depend on several considerations including recriminatory petition and the evidence led in support of the allegation contained therein. For a proper and reasonable interpretation of the provision, one has 'to closely examine in the first instance the connotation and implication of the two key expressions 'satisfaction' and 'entitlement'. `Satisfaction' is by no means a term of art and appears to have been used in its ordinary dictionary sense. 'Satisfaction' is the existence of a state of mental persuasion much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived a in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well-settled judicial principles and is a firm state of kind admitting of no doubt or indecision or oscillation. To be 'satisfied' with a state of things is to be honestly convinced in one's own kind.
According to Black's Law Dictionary apart from the 'legal satisfaction' which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. In Corpus Juris Secundum 'satisfy' has been held to be synonymous with, 'convince' beyond a reasonable doubt and `satisfaction' has been explained as a state of mind, which connotes a sense of certainty and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary 'to satisfy' means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince."
22. Reverting to the facts of the instant petition it will be seen that the whole material available with the Commission at the time of invoking its jurisdiction under Section 103-AA of the Act of 1976 consisted of three parts; the first one related to the report of Home Secretary Government of Sindh and other Law Enforcing Agencies (reproduced in the impugned order at typed pages 3 to 15).
Second part consisted of reports submitted by the Returning Officers/Assistant Returning Officers of different constituencies (reproduced/referred at Pages 18, 19, 21, 22, 24 25, 26 and 29 of the impugned order) and third part consisted of the complaints in the form of telegrams/letters etc. directly received by the Commission, which were replied by the petitioners through their respective counter-affidavits, which remained unchallenged/uncontroverted. The reports submitted by . the Home Secretary, Government of Sindh and other Law Enforcing Agencies as well as the reports submitted by the Returning Officers and Assistant Returning Officers available before the Commission were quite exhaustive and had revealed that adequate safety measures were taken through Law Enforcing Agencies to ensure completion of bye-election process in a smooth and peaceful manner with the result that out of total 701 polling stations for four constituencies, including NA-243, polling continued on 686 polling stations throughout the polling time without any disturbance or interruption, while there were some disturbances and incidents of indiscriminate firing outside some polling stations and that for a short period polling was Stopped on two polling stations, but it was again resumed and concluded as per schedule. It is significant to mention here that to meet such situation, if it at all prevailed, the Polling Officers had authority under Section 27 of the Act to- stop polling ,at the polling station and inform the Returning Officer, who in turn shall report the matter to the Commission and the Commission can direct fresh poll at such polling stations, but such authority was not invoked by the Polling Officers. Admittedly, the reports submitted by the Law Enforcing Agencies and Home Department, Government of Sindh so also by the Returning Officers/Assistant Returning Officers were the reports from independent sources, therefore, in our view rejection of such reports by Respondent No, 1 for no cogent reasons and without any further enquiry was arbitrary and unjustified. In addition to this the Respondent No, 1 also brushed aside the affidavits filed by the petitioners before it without assigning any reason whatsoever. As against it, the complaints received by the Commission which were neither corroborated by any other reliable material nor even supported by the complainants, as they failed to respond and appear before the Commission to support it, were accepted by Respondent No, 1 as gospel truth for no valid reason. Thus, in our view there was no material available with the Respondent No, 1, what to speak of facts apparent on the face of record to show that grave illegalities were committed or any violation of the provisions of the Act or the Rules, materially affecting the election results, was made to, justify the conclusion drawn by Respondent No, 1 to declare the election results of the three constituencies as void.
23. Another important aspect of the .case surfaced from the case record is that-for all the four constituencies, i,e, PS-127 Karachi-39; NA-240 Karachi-2; NA-243 Karachi-5 and NA-246 Karachi-8 reports submitted by Additional Chief Secretary (Home) with several reports of Law Enforcing Agencies and reports of Returning/Assistant Returning Officers were same, except that there was no casualty which the constituency of NA-243 Karachi-5 and for this difference alone polling/election result of this constituency was not disturbed. Indeed, murder of any innocent person is considered as heinous crime in every civilized society, what to speak of loss of nine precious lives and injuries to 29 others, as has happened in Karachi on 12.5.2004. Such incidents of violence are highly deplorable and it is the duty of the State to bring the accused involved in such heinous crimes before the Court of law for justice, but at the same time on such pretext innocent person (s) cannot be hanged or punished on the pretext of restoring the confidence of general public on Law Enforcing Agencies about their efficiency or to show performance of any judicial system. It is well-settled principle of criminal jurisprudence that any number of accused may escape unpunished, for lack of sufficient evidence or for the reason that prosecution failed to prove the guilt beyond. reasonable doubt, but no innocent person should be convict or punished for what he has not done. Similarly in the present petition n law abiding citizen can keep himself oblivious of the tragic incidents indiscriminate firing which took place at Karachi on 12.5.2004 and result in loss of several human lives, but unless it is shown and proved that such incidents have any material bearing on the election results or the petitioners/returned candidates were responsible for it the same cannot be made basis to declare the whole bye-election result/process void.
24. We also find much force in the arguments of learned counsel for the petitioners that after one of the learned Members of the Election 'Commission Mr. Justice Sadiq Leghari, has expressed his inability to hold enquiry, except calling of reports from the Home Department Government of Sindh, Law Enforcement Agencies and the Returning Officers, no other proceedings were taken by the Commission to find out the truthfulness of the allegations made in the complaint, which have been accepted by. the Respondent No, 1 on its face value as true and correct. In this regard it is also pertinent that even the complainants had not appeared before Respondent No, 1 to participate in the proceedings or to produce before the Tribunal any evidence to substantiate their allegations contained in the complaint. In our view, in the above circumstances, the Respondent No, 1 misdirected itself in placing reliance on such anonymous complaints.
25. From what has been discussed above we have come to an irresistible conclusion that before the Respondent No, 1 no case for invoking jurisdiction under Section 103-AA of the Act was made out as the requirements such provision of law were lacking in the instant case, and the exercise of jurisdiction by Respondent No, 1 in passing the impugned order, dated 9.6.2004 was arbitrary, without jurisdiction- and of no legal effect. Consequently, we allow this petition in the following terms:--
(a) The impugned order dated 9.6.2004 being arbitrary, unjust and illegal, and consequent Notification No, F. 8(16)/2004 cord of even date are declared to be without lawful authority and of no legal effect;
(b) the Respondent No, 1 shall declare the result of PS-127 Karachi\-39, NA-240 Karachi-2 and NA- 246 Karachi-8 in terms of Section 42 of the Act without delay as per the result submitted by the Returning Officers.
26. Before parting with this judgment we deem it proper to mention here that we have refrained from discussing in detail allegations relating to factual controversies as to the holding of election by Respondent No, 1 on 12.5.2004 so that no prejudice is caused to a party, who may be interested in pursuing the matter under Section 52 of the Act before the Election Tribunal.
Original record summoned from the office of Respondent No, 1 be returned immediately.