' JUSTICE HAMID FAROOQ DURRANI, (ELECTION TRIBUNAL)--- The parties to the present petition contested the General Elections, 2002 for the Provincial Assembly of North-West Frontier Province from the Constituency PF-53, Mansehra-1. The respondent No,1 Shujah Salam Khan was declared as a returned candidate and a .Notification to that effect was duly published in the official Gazette by the Election Commission of Pakistan.
2. It was before the holding of election for the said Constituency that the Election Commission of Pakistan issued Notification on 26-3-2002 for general information under section 10(1) of the Delimitation of Constituency Act, 1974 regarding inter alia, the delimitation of Constituency PF-53.
Objections to the said delimitation were filed by different persons, not including the petitioner, which were disposed of by the learned Member Election Commission of Pakistan on 14-6-2002 through a single judgment. On 18-6-2002, the learned Member Election Commission of Pakistan, apparently taking suo Motu notice, reviewed his judgment, dated 14-6-2002 whereby the delimitation Notification dated 26-3-2002 was maintained. A notification to the above effect was issued by the Election Commission of Pakistan on 28-6-2002. The said order of review and the ensuing notification were challenged before the Peshawar High Court through different writ petitions which were disposed of by virtue of a single judgment in Writ Petition No,756 of 2002 on 28-8-2002. Through the said judgment the matter was remanded to the learned Member Election Commission of Pakistan N.-W.F.P. To pass a speaking order after affording opportunity to all the concerned. In the post-remand proceedings re-demarcation of the delimitation of various Constituencies, including PF-53, was ordered. In pursuance whereof the delimitation of PF-53 was partially modified through Notification dated 3-9-2002. The said findings of the learned Member Election Commission of Pakistan were again challenged through Writ Petition No,999 of 2002 filed in the Peshawar High Court, Peshawar with the prayer for restoration of delimitation dated 28-6-2002.
On 1-10-2002 the matter was yet again remanded to the learned Member Election Commission of Pakistan N.W.F.P. With the direction to rectify the impugned delimitation in accordance with the previous order of the Court dated 28-8-2002. The said order included the controversy regarding Constituencies PF-53, 54 and 55.
3. The judgment/order of the Peshawar High Court, Peshawar was assailed before the august Supreme Court of Pakistan in Civil Petition No,1664 of 2002. On 8-10-2002, the august Supreme Court was pleased to suspend the order of Peshawar High Court, Peshawar dated 1-10-2002 and observed that order of Member Election Commission, dated 3-9-2002 shall hold the field as reportedly the election to the disputed constituencies was being held on 10-10-2002 in accordance with the delimitation determined through the order, dated 3-9-2002. A notification in that respect was accordingly issued by the Election Commission of Pakistan on 8-10-2002. It was on 5-11-2002 that the august Supreme Court converted the petition into appeal and allowed the same. It was observed that since the election had taken place, therefore, under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 52 of the Representation of the People Act, 1976 and the rule laid down in case of Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396, the parties aggrieved of the election results, if so advised, may avail the remedy of election petition before the notified Election Tribunal on all available grounds including the one taken in the writ petition and the Election Tribunal shall proceed to decided all the questions on merits and accordance with law without being influenced by any observation or comment made by the learned High Court or the member of Election Tribunal.
4. In the above stated backdrop, the petitioner has challenged the election results for the Constituency-53 Mansehra-1, through the petition in hand, mainly on the grounds touching the delimitation of the said Constituency. It was, inter alia, stated therein that the Peshawar High Court, Peshawar never changed the delimitation regarding PF-53, 54 and 55 and the same attained finality on 28-6-2002. The orders by the learned Member Election Commission of Pakistan N.-W.F.P.
Were in misconception of the findings Of Peshawar High Court, therefore, the election to the constituency in question held as a result of the impugned delimitation were without justification and' lawful authority. It was prayed through the petition that the Notification dated 8-10-2002 issued by the Commission and the election to the Constituency-PF-53 Mansehra-1, held in pursuance to the impugned delimitation, were of no legal effect. It was further prayed that the said elections be declared void as a whole on account of non-compliance of provisions of law, ranking the same as an illegal practice. It is pertinent to mention here that the rule laid down in the case cited above PLD 1989 SC 396 dealt with the impugned change of the polling personnel, an act allegedly performed without lawful authority under the Representation of the People Act, 1976.
5. The matter was taken up for hearing in the first instance on 28-1-2003 by my learned predecessor and notices to the respondents were ordered for 25-3-2003, on which date respondents Nos.5 to 8 were placed ex parte. The petition came up for filing of written statement on 28-4-2003 when the learned counsel for respondent No,1 requested for further time to do the needful and ultimately on 9-6-2003 the requisite written statement was filed on behalf of respondent No,1 only. Along with the written statement, an application for rejection of the election petition was also filed by respondent No,1, basing the same upon the provisions of section 63 of the Representation of the People Act, 1976. (hereinafter referred to as the Act). A reply to the said application was filed by the petitioner while the matter thereafter kept on adjourning till 15-12-2003 when issues, emerging out of the pleadings of the parties, were framed and the proceedings were posted to 13-1-2004 for recording the evidence of the petitioner. The matter thereafter was again successively deferred on the request of either of the parties seeking adjournments. On 20-6-2005, -my learned predecessor was pleased to observe that the maintainability of the election petition was a point of debate because the primary relief sought therein was against the delimitation of the constituency which was carried out by the Election Commission itself, therefore, the Election Tribunal nominated, established and notified by the Election Commission whether could give a judgment against the Election Commission itself particularly when the Election Commission was not a party to the election petition. The matter was adjourned for hearing arguments pro and contra to the preliminary objections raised through the application C.M. No,136 of 2004, for rejection of election petition and also in the reply to the Election Petition, filed on behalf of respondent No, 1.
The election petition was, however, dismissed for non-prosecution on 30-1-2006 due to nonappearance of the petitioner despite his service.
6. The matter was entrusted to this Tribunal through Notification dated 9-10-2006 issued by the Election Commission of Pakistan. On 7-11-2006, the application (C.M. No,30 of 2006) for restoration of election petition was accepted with the consent of learned counsel for the respondent and the matter was posted to 13-11-2006 for hearing arguments regarding the preliminary objection contained in application (C.M. No,136 of 2004), for rejection of petition under section 63 of the Act.
7. Learned counsel for the applicant/respondent No,1 argued that the report regarding initial delimitation of the Constituency PF-53, Mansehra-1 was issued on 26-3-2002 under section 10 of the Delimitation of Constituencies Act, 1974. The petitioner was required to file objections regarding the said delimitation within 30 days of issuance of notification under the relevant law but the same were never filed by the petitioner and the objections regarding the delimitation, as noted in the election petition, were in fact initiated in the first instance by one Babar Nasim Khan who is not a party to the present proceedings. The petitioner having missed the occasion at the relevant time, was barred to question the elections on the said count through the election petition in hand. That all the objections taken by the petitioner in the election petition pertained to an event before the holding of General Elections, therefore, could not be made basis for declaration of the said election void, as a whole. It was added that no ground whatsoever was given in the election petition which could fall within the ambit of relevant provisions of the Act as provided in section 70 thereof.
Referring to the prayer made in the petition, the learned counsel contended that the same also did not qualify for favourable consideration under the said provisions.
' Apart from the above, the learned counsel also referred to the contents of the petition and maintained that the same were not verified as required under the law, besides, no affidavit was ever filed in support of the petition. It was further pointed out that the documents attached with the election petition and relied upon by the petitioner were not Certified which fact was also in derogation of the relevant law. It was further stated that the petitioner, at the time of filing the election petition, did not annex any list of witnesses containing gist of their respective statements, besides, the copies of, the petition and the documents attached thereto were never sent to the respondents. He was of the view that due to the stated defects in the election petition coupled with non-compliance of provisions of sections 54 and 55 of the Act, the election petition was liable for dismissal. To support his arguments the learned counsel relied on judgments reported as PLJ 1975 Pesh. 144, 1991 CLC 175, 1997 CLC 1132/1724, 1998 CLC 83, PLD 1971 SC 61/71, PLD 2002 Pesh. 34/50.
8. Learned counsel for respondent No,1/election petitioner, while controverting the arguments from the other side, contended that section 55(b) of the Act provided the questioning of election on the ground of an illegal act alleged to have been committed. In his view, the invalid delimitation also fell into the said category, therefore, the petition in hand was fully competent. It was further contended that the judgment of august Supreme Court in C.P. No,1664/2 delivered on 5-11-2002, specifically allowed the agitation of questions regarding delimitation of constituencies before this Tribunal in the post-election period: ' The learned counsel while referring to section 67 of the Act, contended that the Election Tribunal could pass a decision on an election petition only upon the conclusion of trial which may result in dismissing the petition, declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected or declaring the election as a whole to be void. It was further maintained by the learned counsel that the omissions in the election petition, as pointed out by the other side, were not fatal and the circumstances of the case did not attract the application of section 63 of the Act for dismissal of the election petition. It was also asserted that the provisions of the said section of law were not mandatory in nature, therefore, did not entail dismissal of the petition. M follow as a natural consequence. In support of his arguments the learned counsel for the election petitioner/respondent No,1 relied on judgments reported as PLD 1967 SC 486, 1995 CLC 156, 1991 CLC 175, 1994 MLD 2293.
9. The requirement, as contained in section 55 of the Act pertaining to the contents of election petition, include a precise statement of the material facts on which the petition relies full particulars of corrupt or illegal practice or illegal act alleged to have been committed distinctly giving the names of the parties alleged to have committed such corrupt or illegal practice or illegal act, with the date and place of commission of such practice or act and the relief claimed by the petitioner. Besides, the election petition and every schedule or annex to the petition is required to be signed by the petitioner and also verified in the manner laid down in the Code of Civil Procedure, 1908 for verification of the pleadings. It is further seen that in case the provisions of section 54 or section 55 are not complied with the Tribunal shall dismiss the election petition.
10. It is in this view of the matter that the election petition in hand is to be examined firstly for the purpose of test/scrutiny as required under the law. The perusal of the election petition is clearly suggestive of the fact that the same, though signed by the petitioner and- one of his counsel, did not bear the requisite verification in terms of rule 15 of Order VI, C.P.C. The person signing the verification did not mention the place of signing the same, besides, the specific paragraphs of the petition were not verified of his own knowledge by the petitioner nor any distinction regarding the contents of the petition being verified upon information received by the petitioner and believed by him to be true was indicated. It is also noted that the election petitioner did not care to file a list of the witnesses including the gist of their respective statements at the time of filing of the petition. It is further noted that the Annexures filed with the petition were also not verified as required by the provisions of section 55(3) of the Act. Besides, the petitioner also remained at loss in not impleading Election Commission/Member, Election Commission as a respondent though all the grounds taken in the petition related directly to the delimitation carried out by the Commission.
11. Here, it shall be very beneficial to seek guidance from the judgment reported in case of S.M. Ayub reported as PLD 1967 SC 486. In the said case an election petition was filed before the Election Tribunal, West Pakistan, Lahore. The main grounds of objection thereto were that though allegations of corrupt or illegal practices had been made in the petition, yet for want of proper particulars, as required by section 59 of National and Provincial Assemblies (Elections) Act, 1964, the petition was liable to dismissal. Another ground of objection was that the Annexures to the petition were neither signed nor verified in accordance with subsection (3) of section 59 of the said Act. A summary dismissal of the petition was claimed due to the said grounds. It is worth-noting here that the relevant provisions of the National and Provincial Assemblies (Elections) Act, 1964 are almost similar in meaning and import to the corresponding provisions contained in the Representation of the People Act, 1976.
' The Election Tribunal, in the said case, held that some of the paragraphs of the petition were liable to be struck out, as they contained indefinite and vague allegations not supported by full particulars of the corrupt or illegal practices alleged therein. There were, however, other paragraphs which complied with the requirements of subsection (1) or section 59 of the said Act and it was found that the petition could be proceeded with on their basis. In respect of the second objection it was decided that the papers attached to the main petition were not really covered by the terms "schedule or annex", as used in subsection(3) of section 59 of the said Act and, therefore, the omission to sign or verify them did not affect the competency of the petition.
' While deciding the Constitution petition questioning the said order of Election Tribunal, the learned Judges of High Court held that the provisions of section 59 of the said Act were mandatory and noncompliance therewith entailed the penalty of dismissal of the petition under section 65 of the said Act. Even if, a particular defect was found in the petition, falling within the mischief of section 59 the petition was liable to dismissal as a whole under section 67 of the said Act.
' The august Supreme Court, when seized with the matter in Appeal No,43 of 1967 against the judgment of the High Court of West Pakistan, Peshawar Bench, as mentioned above, inter alia held that section 67 did not, in terms, say that the petition shall be dismissed even if there be a partial failure to comply with the provisions of section 59, ex facie section 67 of the said Act would seem to be designed to cover a case where the petition as a whole made allegations of a vague and indefinite character, without being supported by full particulars of the corrupt or illegal practice alleged. It was further held that "the extreme view which Found favour in the High Court as to the construction of section 67, is erroneous. There is nothing in the Act to give countenance to the contention that even a single defect in the petition, in respect of one paragraph, would justify its being thrown out as a whole. This construction would amount to reading in section 67 words that do not exist therein. The true construction of the section seems to be that, if the petition, taken as a whole, fails to comply with the provisions of section 59 it shall be dismissed as revealing no cause of action". (underlining is added).
12. In the matter in hand it is conveniently gathered that the petition, as a whole, did not depict any cause of action against the respondents therein. It can further be noted that the provisions, as contained in B section 55 of the Representation of the People Act, 1976, have not been complied with in totality, therefore, the judgment cited above would not come to the rescue of the election petitioner.
13. Adverting to the grounds for acceptance of the election petition, as mentioned therein, it would be useful to resort firstly to the provisions contained in Chapter VIII of the Act. This part of the statute provides definition of "corrupt practice, bribery, impersonation and undue influence" besides, caters for canvassing the terms "illegal practice". The contents of section 83 of the Act provide the following:-- "Illegal practice.--- (1) A person is guilty of illegal practice if he---
(a) fails to comply with the provision of section 50;
(b) obtains or procures or attempts to obtain or procure, the assistance of any person in the service of Pakistan to further or hinder the election of a candidate;
(c) votes or applies for a ballot-paper for voting at election knowing that he is not qualified for or is disqualified from voting;
(d) votes or applies for a ballot-paper for voting more than once in the same polling station;
(e) votes or applies for a ballot-paper for voting in more than one polling station for the same election;
(f) removes a ballot-paper from a polling station during the poll; or
(g) knowingly indulges or procures any person to do any of the aforesaid acts.
(2) Any person guilty of illegal practice shall be punishable with fine which may extend to two thousand rupees."
' The forenoted provisions are to be read in conjunction with the contents of section 70 of the Act which relate to the grounds for declaring the election as a whole void. As the prayer made in the election petition requires the declaring of election, as a whole void, it will be necessary to reproduce here section 70 of the Act:-- "Ground for declaring election as a whole void.-- The Tribunal shall declare the election as a whole to be void if it 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 Act or the rules; or
(b) the prevalence of extensive corrupt or illegal practice at the election." (underlining is added)
' It would not be out of place to mention here that the impugned delimitation of Constituency PF- 53, Mansehra-I was the result of an act performed by the Election Commission under the provisions of "Delimitation of Constituencies Act, 1974 (Act XXXIV of 1974)" and not under the "Representation of the People Act, 1976 (LXXXV of 1976)". Further, in cases falling under clause (b) of section 70 (ibid), "extensive" corrupt or illegal practice at the election is to be proved in order to obtain a declaration rendering the election void as a whole. The said requirement is also found in section 68 of the Act but in softened terms as one of the grounds the declaring the election of only returned candidate void, is that the election of the returned candidate was procured or induced by any "corrupt or illegal practice".
14. Examined in the light of above mentioned provisions of law and the comparison thereof, the grounds in the election petition do not divulge any extensive corrupt or illegal practice or illegal acts against any of the respondents including the returned candidate/respondent No,1 nor the same indicate that the result of election was materially affected by reason of the failure of any person to comply with the provisions of. The Representation of the People Act, 1976 or the rules. The said grounds are, therefore, inadequate to warrant the declaring of impugned election void as a whole.
15. There can be no cavil with the proposition that where noncompliance of certain provisions of law is followed by express penal consequences, the said provisions are mandatory in nature.
Reliance in this regard can, inter alia, be placed on judgment reported as Maulana Noor-ul-Haq v.
Ibrahim Khalil 2000 SCMR 1305. In the circumstances, Were would be no choice for this Tribunal except to dismiss the petition in hand as non-compliance of the provisions of section 55 would entail dismissal of election petition, as a natural corollary under section 63 of the Act.
16. For what has been discussed above it follows, inter alia, that the election petition in hand suffers from infirmities and defects attracting its failure. The same is accordingly dismissed.