' In these proceedings on 4-10-2003 following eight issues were framed:-- (1)Whether a stranger who is not party to the Elections can invoke the jurisdiction of this Tribunal by approaching' it under section 56-A of the Senate Act, 1975?
(2)Whether, the provisions of section 56-A of the Senate Act; 1975, prescribes time frame for Making an application 'by a stranger?
3. Whether the provisions of section 56-A of the Senate Act, 1975, contemplate a pre-existing lis before the Election Tribunal in order to take cognizance on an application and or ,information by stranger?
4, Whether on the date of filing of nomination the respondent No.1 was qualified to contest the Senate Elections?
5, Whether the entertaining of Application of the petitioner by the Chief Election Commissioner and subsequent reference ' to the tribunal to proceed with the matter is without jurisdiction?
6. Whether the respondent No.1 has concealed the fact of his being `defaulter' on the date of filing of his nomination papers for the Senate?
' Whether on the date of filing of nomination papers the respondent No. 1 . Was 'defaulter' within the meaning of section 11 of the Senate Act, 1975?
' What should the order be?"
2. On 5-6-2004 Mr. Abdul Hafeez Pirzada, the learned counsel for the respondent No.1 has submitted that the preliminary issue in regard to the maintainability of the petition be decided first before recording evidence of the parties. He had brought to my notice, the order dated 4-10-2003 of this Tribunal, in which it was observed that the preliminary issues in regard to the maintainability of the petition would be decided first and both the learned counsel were directed to advance their arguments on Issues Nos.1, 2 and 3, which were legal issues any finding on them did not require evidence. Therefore, the ' evidence in these proceedings was deferred till decision on the issues Nos.1 to 3. Today, both the learned counsel pursuant to the aforesaid arrangement have argued the matter on the Issues Nos.1 to 3, which in fact pertained to the maintainability of these proceedings.
3. The brief facts as they appear from record are that the petitioner who was not a contesting candidate, had made an application dated 16-4-2003 under section 56-A(1) of the Senate (Elections) Act, 1975 (hereinafter referred to as "the Senate Act") before the Election Commission of Pakistan on 17-4-2003 though his counsel, Mr. Omar Soomro, challenging the office of the respondent No.1 as Member Senate, inter alia, on the ground that the respondent No.1 was not qualified to contest the election of the Senate held in 2003 on the date of filing of his nomination papers, as he was a 'Bank Defaulter' of over Rs.150 Crores. The record further reveals that along with the aforesaid application the petitioner has mailed copy of the paid Challan of Rs.1,000 to the Commission.
4. Pursuant to a Notification No.F-12(1)/2003-Law(4) dated 18-4-2003 of the Election Commission of Pakistan, under section 38 of the Senate Act this Tribunal was appointed for the trial and disposal of Election Petitions relating to Senate Election in respect of Sindh Province. On 9-5-2003, the said Application of the petitioner was assigned/referred to this Tribunal under the order of the Chief Election Commissioner of Pakistan by numbering the said application of the petitioner as an election petition for trial and disposal in accordance with law.
5. On receipt of the said application, which was numbered as Election Petition No.1 of 2003, by the Election Commission, this Tribunal issued notices. The respondent No.1, who is the Returned Candidate, is represented by Mr. Abdul Hafeez Pirzada. The other respondents who were impleaded as respondent though served did not contest the proceedings.
6. Mr. Abdul Hafeez Pirzada informed this Tribunal that the respondent No.1 has challenged the authority of the commission for entertaining the application of the petitioner culminating into these proceedings in a Constitution petition before a Division Bench of this Court and, he requested this Tribunal to stay its hands from proceeding with the matter till the disposal of the said Constitution petition. The counsel for the respondent No.1 was provided reasonable time to obtain stay in the said Constitution petition. It appears that no restraining order was passed by the Division Bench of this Court, as a result, this Tribunal continued its proceedings. The respondent No.1 filed his objections and the written statement, in which he has raised preliminary objections to the maintainability of these proceedings. The Constitution petition filed by the respondent No.1 was withdrawn by the respondent No.
1. It was, however, agreed between the parties that the preliminary issue pertaining to maintainability of the Election Petition would be decided first before recording of evidence and in the light of the aforesaid understanding, the issues were framed, which also covered the preliminary objections of the maintainability of the petition.
7. With this background, arguments of both the learned counsel were heard on the preliminary issues of maintainability of the petition.
8. It is contended by Mr. Abdul Hafeez Pitzada, learned counsel for the respondent No.1 that the respondent No.1 belongs to a prominent family of Karachi, engaged in the business for Commerce and Industry. The respondent No.1 was given a ticket by the Pakistan Muslim League (Quaid-e- Azam) to contest elections held on 24-2-2003 for a general seat from Sindh Province to the Senate of Pakistan. The respondent No.1 participated in the election of Senate, held under the system of proportional representation and was duly elected. The respondent No.1 took oath as a Senator after he was notified as the Returned Candidate on 3-3-2003 by the Election Commission of Pakistan. He submits that election of the respondent No.1 was not called into question on any ground either by the contesting candidate or by any other person through any Election Petition in terms of section 34 of the Senate Act.
9. The learned counsel for the respondent No.1 further contended that the petitioner has filed an incompetent Application under section 56-A(1) of the Senate Act on 17-4-2003 before the Secretary, Election Commission of Pakistan, which was erroneously referred to this Tribunal under the orders of the Chief Election Commissioner for trial and disposal. According to the learned counsel, the very application of the petitioner referred to this Tribunal has been wrongly numbered as Election Petition No.1 of 2003 by the Election Commission. He contended that the Honourable Chief Election Commissioner without application of mind, has erroneously entertained the application of the, petitioner and has exceeded his authority by referring the said application to this Tribunal for trial and disposal.
10. He next contended that it was only this Tribunal which had the jurisdiction to entertain an application under section 56-A(1) of the Senate Act when an election petition against the said Returned Candidate was pending adjudication. He submitted that an application under section 56-A(1) of the Senate Act cannot be entertained even by a Tribunal, in absence of an Election Petition pending before such Tribunal.
11. The learned counsel submitted that Article 225 of the Constitution is couched in negative language and provides that 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 the Act of the Majlis-e-Shoora (Parliament). He submitted that in the face of Article 225 of the Constitution, no election either of the Provincial Assembly or of the National Assembly or of the Senate could be called in question, except by approaching an Election Tribunal. In this regard he has submitted that in the case of Election Commission of Pakistan v. Javaid Hashmi reported in PLD 1989 SC 396, the Honourable Supreme Court while interpreting Article 225 of the Constitution has held that an election could be challenged only by way of an Election Petition.
While observing this, the Honourable Supreme Court had emphasized that such election can only be called in question in the manner and mode as the law provides and not otherwise. The learned counsel for the respondent No.1 further contended that assigning the present proceedings to this Tribunal in terms of section 37(2) of the Senate Act is beyond the jurisdiction of the Election Commission of Pakistan,
12. He next contended' that most of the provisions of Representation of the People Act, 1976 are para materia to the provisions of the Senate (Election) Act, 1975. He submitted .That section 2(1)(f) of the Senate Act defines 'Election Petition" . As "an. Election Petition made under section 34 of the Senate (Election) Act, 1975". According to the learned counsel, section 34 of the Senate Act provides that an Election Petition shall be presented to the Commissioner within forty-five days of the publication of the result of the election in the official Gazette and shall be accompanied by a receipt showing that the petitioner has deposited a sum of two thousand rupees at any branch of the National Bank ,of Pakistan or at a .Government Trensury or ,Sub-Treasury in favour of the. Commissioner as security for the costs of_the petition.
13. He submitted the 'section 29(2) of the Limitation Act provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period was prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law. He submitted that section 29(2)(a) of the Limitation Act excludes application of section 5 of the. Limitation Act whereas under section 29(2)(b) the remaining provisions of Limitation Act are excluded.
14. He submitted that provisions of section 34 of the Senate (Election) Act prescribes a period of forty-five days for filing of an Election Petition after the publication of the name of the Returned Candidate by the Commission in the official Gazette. He contended that since the time of forty-five days is mentioned in the Special Statute (Senate Act) the provisions of section 29(2)(a) of the Limitation Act would be attracted which would exclude the application of section 5 of the Limitation Act. The thrust of argument of the learned counsel was than such period of forty-five days as prescribed was not condonable.
15. The next contention of Mr. Abdul Hafeez Pirzada was that section 31 of the Senate Act does not restrict any person from filing of an Election Petition under section 34 of the Senate Act whereas under section 52 of the Representation ,of the People Act, 1976, it is specifically provided that an Election Petition can only be made by a candidate who has'contested the election. He submitted that by virtue of the amendment under Ordinance No. L of 2002 promulgated on 9-9-2002, section 56-A(1) Was inserted in the Senate Act. He submitted that section 56-A(1) of the Senate Act provides that if a Tribunal, on the basis of any material coming to its knowledge from any source or an information laid before it, is of the' opinion that a Returned Candidate was a defaulter of loan, taxes, Government dues or utility charges, or has submitted a: false or incorrect declaration regarding payment of loans, taxes, Government dues or utility _charges, or has submitted a false or incorrect statement of assets and liabilities of his own, spouse and dependents, under section 11, it may, on its own 'tuition or othewise, call upon any such candidate to show cause why his election should not be' declared -void and, if is satisfied that such candidate is a defaulter or has submitted false or incorrect declaration as aforesaid; it may, without prejudice to any order that may be, or has been made on an Election Petition, or any other punishment, penalty or liability which such candidate may have incurred under this Act or under any other law for the time being in force, - make an order to declare the election' of a Returned Candidate void or any other candidate contesting election to be declared elected. He submitted that in order to invoke section-56-A(1) of the Senate Act, the Tribunal is required to have a 'Hs' before, it and only in such, proceedings an application of the nature -can be made and or entertained by the Tribunal.
16. He further submitted that scope of an Election Petition under section 34 of the Senate Act is different than the scope of an application made_ under section 56-A(1) of the Senate ,Act. The Application under section 56-A(1) cannot be processed by the Election Commission nor could it be referred to this Tribunal as has been done in the case in hand. He submitted that the powers of the Election Commission to assign an Eleetion Petition to a Tribunal are contained under section 37 of the Senate Act and according to Mr. Pirzada such powers do not authorize the Commission to entertain an application under section 56-A(1) of the Senate Act and assign it to this Tribunal.
17. Mr. Abdul Hafeez Pirzada further submitted that on receipt of an Election Petition made under section 34, the Election Commission of Pakistan shall examine the limitation period for filing of the Election Petition as contained under section 34 of the Senate Act besides the copy of the challan of deposit, of fee. After examining this aspect, the Election Commission under subsection (2) of section 37 of the Senate (Election) Act shall assign such Election Petition to a Tribunal constituted under section 38 of the Senate Act for trial and its disposal according to law. He, submitted that in the present proceedings the Commission, which is defined under section 2(ccc) of the. Senate Act, was not authorized to entertain the application of the petition. He submitted that admittedly the case of the petitioner is that lie has made an application under section 56-A(1) challenging the qualification of the respondent No.1, as Member Senate, on the ground of Bank defaulter, therefore, the present proceedings, which are offshoot of the said application are liable to be dismissed.
18. As against this, Mr. S. Afsar Ali Abidi, the learned counsel for the petitioner submitted that on 17- 4-2003 the petitioner made application under section 56-A(1) before the Commission as no Tribunal under section 38 of the Senate Act was constituted by the Election Commission of Pakistan. He submitted that section 56-A(1) of the Senate Act is not subservient to' section 34 of the Senate Act and is an independent provision, which could be invoked independently by approaching the Commission.
19. He submitted that. There are two types of illegalities in election disputes, one is an illegality in the process of election whereas the other is pre-election disqualification. He submitted that in the case of Javed Hashmi the-issue before the Honourable Supreme Court was confined to dispute between the two rival candidates and therefore, the principle laid down in the said case by the Honourable Supreme Court would not extend to cover the present case. He.Next contended that in the case of Muhammad Tariq Chaudhry v. Masroor Ahsan reported in PLD 1991 Lah. 200 at 212 it has been held hat qualification of a Returned Candidate can be challenged through writ of quo warranto. He next contended that in the case of Khuda Bux Nizamani v. Election Tribunal reported in 2003 M LD 607 at 612 a Division Bench of this Court has held that even an election appeal can be treated as an information. He submitted that section 78 of the Senate Act provides disqualification of a candidate and under sub-clauses (o) and (p) of subsection (1) of section 78, if a. Person is a 'defaulter' he is disqualified from contesting elections and or to be elected for the seat of Senate.
He further submitted that section 56-A(1) of the Senate Act does not provide that such application could only be made before a Tribunal in a pending Election Petition. He therefore, submitted that the present Election Petition in the given circumstances was maintainable and the objections raised by the respondent No.1 on the maintainability of this petition were liable to be overruled.
20. I have heard both the learned counsel and have perused the record. There are two points for determination.. (i) The first point is whether. The Commission can entertain an application under section 56-A(1) of the Senate Act made by a party, and assign it to a Tribunal for trial in terms of section 37(2) of the Senate Act by numbering it as Election petition. (ii) The second point is whether an application assigned by the Commission under the order of the honourable Chief Election Commissioner to this Tribunal, constituted under section 38 of the Senate Act, can be tried and disposed of in terms of the procedure notified in Notification No.F.1(6)85-Cord. Dated 16th March, 1985 issued by the Election, Commission of Pakistan in exercise of powers conferred upon them under section 43 of the Senate Act.
21. Before dealing with the first point, for the sake of convenience, section 56-A(1) of the Senate Act is reproduced hereunder:-- "56-A. Additional powers of the Tribunal.----(1) If a Tribunal is, on the basis of any material coming to, its knowledge from any source or an information laid before it, of the opinion that a returned candidate was a defaulter of loan, taxes, Government dues or utility chargers, or has submitted a false or incorrect declaration regarding payment of loans, taxes, Government dues or utility charges, or has submitted a false or incorrect statement of assets and liabilities of his own, spouse and dependents, under section 11, it may, on its own motion or otherwise, call upon any such candidate to show cause why his election should not be declared void and if it is satisfied that such candidate is a defaulter or has submitted false or incorrect declaration as aforesaid, it may, without prejudice to any order that may be, or has been, made on an election petition, or any other punishment, penalty -or liability which such candidate may have incurred under this Act or under any other law for the time being in force, make an order:--
(i) declaring the election of the returned candidate,to be void; and
(ii) declaring the election of the returned candidate to be void and any other contesting, candidate to have been duly elected."
(Emphasis added)
The heading of section 56A clearly suggests the purpose of insertion of this section. This section has been inserted to give additional powers to a Tribunal. The language of section 56A(1) is unambiguous. In the opening line of this section, the word 'Tribunal' has been used. Therefore, an application under section 56A(1) against a Returned Candidate challenging his election on the grounds mentioned therein could only be made to a Tribunal and the word 'Tribunal' used in the section cannot be substituted by the word 'Commission' or `Commissioner' to give jurisdiction to the Election Commission or Chief Election Commissioner.
22. The , word 'Tribunal' means a Tribunal constituted under section 38 of the Senate Act and cannot be synonymous to the word `Commission' and or the word 'Commissioner' as defined in the Senate Act. The argument of the learned counsel for the petitioner that an application under section 56A(1) can be made to the Commission if a Tribunal is not in existence does not appeal to reasons. The Commission can only entertain an Election Petition in terms of section 34 of the Senate Act, subject to such requirements provided under sections 35 and 36 of the Senate Act.
However, an application under section 56A(1) cannot be equated as an Election Petition, which would ex facie be against the language of section 56A(1) of the Senate Act.
23. Admittedly, the petitioner has not filed an Election Petition though there was no bar under the Senate Act, restraining the petitioner from filing an Election Petition. Instead, the -petitioner invoked section 56A(1) of the Senate Act by making an application to the Commission. The explanation furnished fore making such an application to the Commission was that the Tribunal on the date' of making of the application was not in existence and therefore, the petitioner was justified in making such an application.
24. With profound respect this could hardly be a justifiable ground to allow a party to approach the Commission with an Application under section 56A(1) of the Senate Act. On the well-known principle that `where there is wrong, there is remedy for the wrong'. The petitioner could have filed an Election Petition, as the provisions of Senate Act do not restrict any person from filing an Election Petition or the Petitioner could always have approached the High Court in exercise of its Constitutional jurisdiction by challenging the election of the respondent No.1 in quo warranto, if the petitioner was of the opinion that there was no remedy besides the fact that such 'disqualification' was otherwise, provided in terms of Article 63 of the Constitution.
25. The non-constitution a Tribunal on the date when the application under section 56A(1) of the Senate Act was made by the petitioner was no ground to make such application to a forum, which in law, did not have jurisdiction either to entertain such application or to assign it to this Tribunal under section 37(2) of the Senate Act for its trial. The Election Commission of Pakistan can only take cognizance, if a party makes an Election Petition and the Proposed Election Petition is in conformity with the procedure and requirements made under the provisions of the Senate Act. Subsection (2) , of section 37 of the Senate Act authorizes the Commission to assign the matter to an Election Tribunal constituted under section 38 for trial and disposal of a petition. If the argurnent advanced by the learned counsel for the petitioner is accepted, it would mean that we would be substituting the word Commission by the word Tribunal used in section 56A(1) of the Senate Act. Under the settled norms of the principles of interpretation the Courts are required to interpret the law as it appears on the statute book.. While interpreting section 56A(1) the word `Commission' (Ind or 'Commissioner cannot be read' in place of word 'Tribunal' used therein to confer powers on the Election. Commission as has been argued by Mr. S. Afsar Ali Abidi. I am clear in my mind that legislature never intended to confer powers on the Commission to entertain an application of a person under section 56A(1) of the Act otherwise; -it could have used.The word 'Commission' in place of 'Tribunal: in the section.
26. The second and most important question is that the very section 56A(1) mentions the word 'Election Petition' which implies 'that the application under section 56A(1) can only be entertained by a Tribunal either on its own or on an application made by some party if such Tribunal is hearing an Election Petition against such Returned Candidate. In other words the condition precedent for entertaining an application under section 56A(1) of the Senate Act for a Tribunal is that the Tribunal must be seized of an Election Petition and only then an application under section 56A(1) could be entertained. As against this, scope of section 34 of the Senate. Act is much wider, inasmuch as the Tribunal during the hearing of an Election Petition can entertain, any application against such Returned Candidate. Even if made by a stranger and pass appropriate orders on such application, after hearing the parties. Such' application can be entertained by the Tribunal without, complying with the procedure provided by the Notification No.F.1(6)185-Cord. Dated 16th March, 1985 issued by the Election Commission of Pakistan in exercise of the powers conferred upon them by section 43 of the Senate Act for trial and disposal of air Election Petition. Section 56A(1) has self-contained procedure in comparison to the procedure as laid down for a Tribunal in the referred notification.
Therefore, examining section 56A from this angle would also suggest that application under section 56A would be dealt with differently by the Tribunal than trying an Election Petition.
27. I may also observe here that an application under section 56A(1) can be made at any time during the pendency of an Election Petition before a Tribunal and the limitation of forty-five days as provided by section 34 of the Senate Act would not extend to such an application. The wisdom of legislature to introduce such a provision in tho Senate Act appears to allow any person, who may not be a candidate in an election, to approach a 'Tribunal' hearing an Election Petition of a Returned Candidate and lay information of his disqualification as contained in section 56A(1) of the Senate Act. The Tribunal may give a finding on such application though a petitioner in the said Election Petition did not urge such ground or such ground might have lost sight of by the petitioner or has surfaced after the elections were over. In fact, this section provides further scrutiny of a Returned Candidate by conferring right on a stranger, even after the election to approach a Tribunal, during the pendency of an Election Petition, with an application laying information to the Tribunal of the alleged disqualification of such Returned Candidate. But the legislature never intended to equate such an application with an Election Petition under section 34 of the Senate Act, the scope of which is completely different as discussed hereinabove.
28. In the light of the above discussions, I am of the considered view that in order to entertain an application under section 56A of the Senate Act there must be a Tribunal in terms of section 38 of the. Senate Act, which is seized of an Election Petition and in such proceedings the election of the Returned Candidate, against whom the application for the alleged disqualification was made and such application had been made by a stranger. In absence of any of these three ingredients, an application under section 56A(1) would not *lie. The Commission, however, cannot entertain any such application, as it would be in conflict with the language of section 56A of the Senate Act.
29. For the aforesaid reasons the Commission was not competent to entertain the application of the petitioner under section 56A of the Senate Act nor could the same be assigned to this Tribunal under section 37(2) of the Senate Act for trial and disposal in terms of the procedure laid down in the referred Notification of the Election Commission of Pakistan issued in exercise of powers conferred under section 43 of the Senate Act. I, therefore, dismiss this petition maintaining the preliminary objections of the respondent No. 1.