' MUNIB AKHTAR, J.---This election petition arises out of the General Election of 2013, for the Sindh Assembly constituency of PS 50 (Hyderabad-VI). The respondent No.1 was declared the returned candidate. The petitioner was one of the contesting candidates. The petition is filed under Section 52 of the Representation of the People Act, 1976 ("1976 Act") challenging the election.
2. There were a number of candidates in the electoral fray and, as required by Section 54 of the 1976 Act, the petitioner impleaded all those persons who were (at least according to the petitioner) the contesting candidates. In addition to the respondent No.1 there are 23 others so joined as respondents. The respondent No.1 took a preliminary objection to the maintainability of the petition on the ground that all the contesting candidates had not been joined as respondents and that therefore the petition was liable to be dismissed under Section 63. The objection was by way of an application (C.M.A. 82/2013). The respondent No. 1 's case was that there had in all been 30 contesting candidates, and thus the petitioner had failed to implead six of them. The petitioner's response was that the six candidates not impleaded had retired (or withdrawn; the two terms are here used synonymously) from the electoral fray before the polling date (as no result had been declared for them by the Returning Officer) and therefore did not have to be joined as respondents.
The application was heard by an Election Tribunal (as then constituted) and allowed by order dated 22.11.2013. It was held that all 30 of the candidates ought to have been joined as respondents.
This not having been done, a mandatory requirement had not been complied with. The election petition was accordingly dismissed.
3. Aggrieved by the aforesaid order, the petitioner preferred an appeal to the Supreme Court. The appeal was disposed off by order dated 19.02.2015, which was in the following terms: "With consent of the learned counsel for the parties, for the purposes of resolution of the issue(s) whether the candidates who filed the nomination papers but were not arrayed as a party to the election petition filed by the appellant on the ground that they had withdrawn/retired from the election, and thus were not contesting candidates in terms of the provisions of Section 2(viii) read with Sections 16 and 17 of the Representation of People Act, 1976 and whether the election petition could be summarily dismissed per Sections 54 and 63 of the law ibid, without holding the inquiry into the factual aspect of the withdrawal of certain candidates who were not impleaded as a party by appellant, the matter is remanded to the Tribunal. The Tribunal should treat this to be a preliminary issue(s) and decide this aspect within fifteen days of the first appearance of the parties before it. The parties are directed to appear before the Tribunal on 3.3.2015. In case the Tribunal comes to the conclusion that the election petition is bad for non-implemented of the contesting candidates, obviously it shall be dismissed summarily, but if the view is otherwise, it should be decided on merits. The appeal stands disposed of in terms of the above."
4. By the time the matter came back from the Supreme Court and the Election Commission completed attendant procedural formalities, I had been notified as the Election Tribunal for Sindh for matters arising out of the General Election of 2013. The following preliminary issue was framed on 29.08.2015: "Whether those candidates who were not impleaded as Respondents to the Election Petition by the Petitioner were "contesting candidates" within the meaning of Section 2(viii) read with the other relevant provisions including in particular Section 17 in the facts and circumstances of the present case?"
' Only the petitioner produced evidence for purposes of the above issue, appearing as his own witness and filing his affidavit-in-evidence along with various documents. No objection was taken to any of the documents, which were duly exhibited. Learned counsel for respondent No.1 was given an opportunity of cross-examining the petitioner, but did not avail the same.
5. Learned counsel for respondent No. 1 submitted that the objection in terms of the above issue was limited to only one of candidates who had not been impleaded, one Mr. Imdad Ali. Referring to Section 17(1) of the 1976 Act (for which see below), learned counsel submitted that the election to the constituency was held on 11.5.2013. Emphasizing the word "before" as used in Section 17(1), learned counsel submitted that the four day period envisaged therein started from 07.05.2013. In other words, the last date for retiring from the election was 06.05.2015. However, the record (as produced by the petitioner) showed that Mr. Imdad Ali had given his notice of retirement to the Returning Officer on 07.05.2013. Although it had been accepted on the same day that was not relevant. A valid notice of retirement could only have been given up to 06.05.2013. On any date thereafter, it was ineffective. Thus, Mr. Imdad Ali had not, in law, withdrawn from the election and hence continued to be a contesting candidate. Since he had admittedly not been impleaded as a respondent, a mandatory requirement had not been fulfilled and the petition was liable to be dismissed.
6. Learned counsel for the petitioner submitted that on its true and proper reading, Section 17(1) applied such that (in the present facts and circumstances) the four day period therein contemplated started on 08.05.2013. Thus, the notice of retirement was delivered to the Returning Officer one day prior to the relevant date and was fully effective in law. On this basis it was contended that Mr. Imdad Ali had ceased to be a contesting candidate and had therefore rightly not been impleaded as a respondent. The petition was maintainable.
7. During the course of submissions by learned counsel, Section 17 as a whole came under consideration and I invited submissions (in addition to the above) also with reference to its subsections (3) and (4). Learned counsel for the respondent No. 1 submitted, and this in effftt became his alternative submission, that the requirements of subsection (3) had to be complied with and, absent such compliance, a notice of retirement did not become effective even if it otherwise complied with subsection (1). (Learned counsel emphasized that this submission was entirely without prejudice to his primary submission, noted above.) Learned counsel submitted that subsection (3) had two "limbs", which required separate and distinct acts of the Returning Officer, and the latter had to comply with both "limbs". It was for the petitioner to show affirmatively that the requirements of subsection (3) had been complied with. This, the petitioner had failed to do. It was not even stated in his affidavit in evidence (let alone proved) that the subsection had been complied with. Even on this basis therefore Mr. Imdad Ali continued in law to remain a contesting candidate and since he had not been impleaded, the petition was liable to be dismissed. Learned counsel for the petitioner on the other hand relied on subsection (4), and also Article 129 of the Qanun-e-Shahadat Order, 1984 ("QSO"). It was submitted that the Election Tribunal 'could, and in the facts and circumstances of the present case ought to, presume that the Returning Officer has complied with subsection (3). Reliance was placed in particular on illustration (e) to Article 129.
Furthermore, learned counsel submitted, the record clearly showed that the Returning Officer had sent, for publication, a copy of his confirmation of the retirement notice to the Deputy Director Information Hyderabad (Exhibit P-1/N). Thus, the deeming provision of subsection (4) (read with Article 129) became effective and Mr. Imdad Ali had ceased to be a contesting candidate.
8. I have heard learned counsel as above, examined the record and considered the relevant provisions. It is common ground that it is a mandatory requirement that all contesting candidates have to be joined as respondents to an election petition, and a failure to do so is fatal. Furthermore, as Section 62(2) of the 1976 Act makes clear, the QSO is directly applicable to proceedings before an Election Tribunal. The provisions of the 1976 Act and Article 129 of the QSO, as presently relevant, are set out below. As to the 1976 Act: "2. Definitions.-In this Act unless there is anything repugnant in the subject or context,- ...
(viii) "contesting candidate" means a validly nominated candidate who has not withdrawn his candidature; ..
17. Retirement from election, etc.-(1) A contesting candidate may retire from the contest by a notice in writing signed by him and delivered to the Returning Officer on any day not later than four days before the polling day either by such candidate in person or by an agent authorised in this behalf in writing by such candidate.
(2) No person who has given a notice of retirement under subsection (1) shall be allowed to cancel the notice.
(3) The Returning Officer shall upon receiving a notice of retirement under subsection (1) cause a copy thereof to be affixed at some conspicuous place in his office and also to be published in such manner as he may think fit.
(4) A person in respect of whom a notice of retirement has been published under subsection (3), shall be deemed to have withdrawn his candidature under section 16."
As to Article 129 of the QSO: "129. Court may presume existence of certain facts:-The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations ' The Court may presume.-
(e) that judicial and official acts have been regularly performed;
9. I begin by considering the principal point, which relates to determining the correct meaning of subsection (1) of Section 17. The rival submissions are set out in paras 5 and 6 above. As is clear from the same, the question is whether the polling day itself is to be counted for purposes of determining the four day period contemplated in subsection (1)? If the answer is in the negative, then the preliminary issue must be decided in favour of the respondent No. 1, with the result that the election petition must be dismissed. If the answer is in the affirmative, then the issue must (subject to a consideration of the alternative submission) be determined in favour of the petitioner. Having considered the point, I am of the view that the question ought to be answered in the negative. I agree with learned counsel for respondent No.1 that use of the word "before" in the subsection establishes that the polling day is to be excluded from the count. In other words, the last day of the four day period is the day before the polling day, and the first day of the said period is to be computed accordingly. Applying this to the facts and circumstances of the present case, since the polling day was 11.05.2013, the last day of the four day period was the 10th of May. Thus, the first day of the said period was &7.05.2013 and a candidate could validly give notice of retirement only up to a day prim' to the latter date. In other words, the notice had to be given no later than 06.05.2013.
Since the admitted position is that Mr. Imdad Ali gave his notice on 07.05.2013, the same was beyond the limit prescribed by subsection (1). The notice was ineffective in law, and Mr. Imdad Ali continued to remain a contesting candidate regardless of the purported "acceptance" of the notice by the Returning Officer. The preliminary issue must therefore be answered in favour of the respondent No. 1 and against the petitioner. It follows that since Mr. Imdad Ali ought mandatorily to have been joined as a respondent to the present petition and this was not done, the deficiency is fatal. The petition must accordingly be dismissed.
10. The finding just recorded is of course dis positive. However, I must also consider the alternative submission, in relation to subsections (3) and (4). This is so for two reasons. Firstly, as noted above, submissions were invited, and made, on Section 17 as a whole. It appears that this section has not, specifically and in its entirety, been considered before. Certainly, no case law on this section was cited before me by learned counsel for the parties. This in itself is reason enough to consider the alternative submission. The second reason will become clear subsequently.
11. In order to properly appreciate Section 17 as a whole, some reference must be made to Section 16, which does not however need to be set out. The latter section enables a validly nominated candidate (i.e., a candidate who has successfully traversed the scrutiny process set out in Section 14) to withdraw by or before a date to be stipulated in this regard, which is part of the schedule of dates to be notified by the Election Commission in terms of Section 11 (see clause (ee) of subsection (1) thereof). Once this date is crossed, then the remaining validly nominated candidates become the contesting candidates (see Section 16(4)). Ballot papers are printed accordingly. These are the candidates who will, or at least are expected to, contest the election.
Section 17 thus serves as a sort of exception. It allows a contesting candidate to retire from the electoral fray up to a later date, notwithstanding that the ballot papers may have been printed and (as it were) battle joined, and even though the candidate may, prior to this withdrawal, have been campaigning vigorously in the constituency. As is obvious, if at all such a statutory concession is to be granted to contesting candidates, the interests of the electors must be duly protected in order to ensure that their votes are not wasted. It would not do, e.g., for an elector to cast his vote for a candidate on polling day only to discover, belatedly, that the latter had retired from the electoral fray. The statutory concession granted by Section 17 cannot therefore be open ended and left to the sweet will" of the contesting candidates, allowing them, for instance, to retire (announced or unannounced) from the election even on the very eve of the polling day. It is important that a mechanism be created as would enable the electors to be informed that the candidate concerned will no longer be contesting the election. The concession must therefore be channelized and placed within well laid out confines. At the same time, it would not be desirable to lay down such a rigorous and detailed procedure (or conditions) for informing electors that it (or they) cannot realistically be complied with or met. A balance therefore has to be struck, and it is this balance that is worked out in the various subsections of Section 17. One point must however be emphasized.
In interpreting and applying Section 17, it is the interest of the electors that must be regarded as paramount. After all, the contesting candidates did have an opportunity to bow out earlier, in terms of Section 16. If they did not, they in effect held themselves out to be candidates who were seriously contesting the election. If the statute is at all to give them the concession of retiring even at a late stage, it is not they who are then the law's concern; it is the electorate.
12. The first question that needs to be addressed, in allowing the concession of late retirement, is of course the last date by which it can be exercised. This is answered in subsection (1), in the manner already indicated above. The only further point that may be made is that it is not for the Returning Officer to "accept" or "reject" any such notice, as long as it is given in a timely manner and 'by either the candidate or his duly authorized agent. That this is so is made clear by the consequence, set out in subsection (2), of a validly given notice. The second question that immediately follows and (for the reasons just stated) is even more important. Is, how are the electors to be informed of the retirement? Subsections (3) and (4) are directed towards addressing this question. The first point to be made is that, in my view, it must be shown that there has been compliance with either of the two subsections. If this is not done, then Section 17 does not apply even though subsection (1) may have been complied with. In other words, in such a situation, the contesting candidate will continue, in law, to remain such. Secondly, the onus of establishing that there has been compliance of either subsection (3) or (4) clearly must lie on the person asserting that the concerned candidate retired and was no longer a contesting candidate. That person, in an election petition, will invariably be (as here) the petitioner.
13. Subsection (3) provides for what the Returning Officer is to do if he receives a valid notice of retirement. As pointed out by learned counsel for the respondent No.1, it has two "limbs". The first "limb" requires a specifically identified act, while the second is more general in nature. However, I agree with learned counsel for the respondent No. 1 that (subject to what is stated below as regards subsection (4)) both "limbs" must be complied with. This is made clear by the words "and also" that join the two. The first "limb" is clear enough: a copy of the notice of retirement is to be affixed by the Returning Officer "at some conspicuous place in his office". The second "limb" confers a broad discretion: the Returning Officer must also "publish" the notice "in such manner as he may think fit". Of course, this discretion must be exercised in accordance with the well established principles that govern the exercise of any statutory discretion. In my view, the word "publish" is to be construed and applied broadly, in the sense of informing the electors that the concerned candidate has retired. However, it should also be kept in mind that, given the specific terms in which the first "limb" is cast, what is required under the second "limb" must be distinct from the former. For example, a Returning Officer cannot, while affixing a copy of the notice of retirement on a notice- board outside his office (which would comply with the first "limb") affix another copy on the wall of the compound in which the office is situated, in purported compliance of the second "limb". Other than that, it is essentially for the Returning Officer to decide the manner in which the notice is to be "published". He may do so by, e.g., that most traditional of methods, the beat of drum, or (this being the 21st century) by causing a copy of the notice to appear on the official website of the Election Commission, or any other manner as he thinks fit, subject to what has been said above.
14. Subsection (4) is the deeming provision. The principles to be kept in mind when applying deeming clauses are too well-known to require elaboration. The important point to note is that the deeming provision is limited only to the second "limb" of subsection (3). It does not apply in relation to the first. By virtue of this subsection, if it is proved that the Returning Officer has "published" the notice of retirement that would suffice, for then the clause would come into play and the concerned candidate would be deemed to have withdrawn. In such a situation, it would be immaterial whether compliance of the first "limb" was proved or not. However, the reverse does not hold. If it were only proved that the Returning Officer had affixed a copy of the notice at some conspicuous place in his office, then only one of the "limbs" of subsection (3) would be established and in this situation, as explained above, Section 17 would not apply. The concerned candidate would continue, in law, to be a contesting candidate.
15. As noted above, learned counsel for the petitioner submitted that the presumption in Article 129 of the QSO should apply, more or less automatically, in respect of both "limbs" of subsection (3).
With respect, I am unable to agree. If that were so, it would essentially render the subsection redundant. The reason is that on learned counsel's submission, as soon as it is proved that a notice of retirement complying with subsection (1) has been given, by virtue of Article 129 the requirements of subsection (3) would have to be presumed to have been met. This cannot be correct. The fact that a proper notice of retirement has been given cannot, of itself and without anything more, trigger a presumption that the Returning Officer has done all that is required of him in terms of subsection (3). However, for reasons shortly to be stated, a distinction ought to be drawn between the first and second "limbs" of the subsection for purposes of Article 129. The first "limb" is a specifically identified act. I can see no reason why there should be any presumption that the Returning Officer has done this act. It must be established by the evidence. Here, I may also take up the submission by learned counsel for respondent No. 1 that the party asserting that the concerned candidate had retired must affirmatively aver (and prove) that the requirements of subsection (3) have been met. With respect, I am unable to agree. All that is necessary is for the evidence to show that this is so. No specific averment is required.
16. Now, the admitted position in the present case is that the evidence does not show whether the Returning Officer complied with the first "limb" of subsection (3). This therefore leaves the petitioner only with the deeming provision of subsection (4), i.e., the second "limb" of subsection (3). Does the evidence show that the Returning Officer published the notice in such manner as he thought fit?
Before addressing this question, it will be appropriate to dilate upon the distinction that in my view ought to be drawn between the first and second "limbs" of subsection (3) for purposes of Article
129. In my view, insofar as the second "limb" is concerned, and precisely because there is a deeming provision in relation thereto in subsection (4) a presumption can, in appropriate circumstances, be made under Article 129 that the notice has been published. However, whether such presumption can should be made will depend on the facts and circumstances of each case and, in particular, the manner in which the Returning Officer chooses to have the notice published.
In my view, if it is proved that the Returning Officer has put in motion the manner chosen by him, and the mode of publication involves officialdom (i.e., an act of or by some other official) then in appropriate cases it may be presumed under Article 129 that the notice has been published. In such a situation there would be compliance with the second "limb" and hence the deeming provision would come into play. The point just made may be illustrated by considering the two examples given above in para 13. Thus, if it is proved that the Returning Officer has chosen to publish the notice by beat of drum, it would in my view by inappropriate to apply the presumption under Article 129. In this situation, it would have to be proved that, in fact, the notice was so published. On the other hand, if it is proved that the Returning Officer has chosen to publish the notice by having it put up on the official website of the Election Commission, and it is also proved that he made a request in this regard of the latter, then it may be safe to apply the presumption under Article 129. This would be so because the chosen mode involves an .Act of or by the Election Commission. In other words, if the manner chosen for publication is such that it requires an act of or by officialdom, then it may be presumed that the act will likely to have been done. In such a situation, all that will be necessary is for the petitioner to prove that the Returning Officer, in fact, set the chosen mode in motion. However, it is to be emphasized that each case, and hence the appropriateness or otherwise of applying the presumption, will inevitably turn on its own facts.
17. In the present case, what the record shows (in Exhibit P-1/N) is that the mode chosen by the Returning Officer was publication by and through the Information Department of the Government of Sindh and that, as noted above, this mode was set in motion by forwarding a copy of the confirmation of the notice of retirement to the Deputy Director Information Hyderabad. This much having been proved, in my view it would have been quite appropriate for me to presume that the relevant fact (i.e., the publication of the notice of retirement) was likely to have happened. On such presumption I would have concluded that there had been compliance with the second "limb" of subsection (3), which would have brought the deeming provision of subsection (4) into operation.
18. It will be seen from the foregoing that if my conclusion on the principal point had been different, i.e., I had concluded that the notice of retirement was validly given by Mr. Imdad Ali in terms of subsection (1), I would then have had to consider the alternate submission, and there my conclusion would have been that the deeming provision of subsection (4) would have applied.
Thus, I would then have concluded that both the principal point and the alternative submission, and hence the preliminary issue, should be decided in favour of the petitioner. Of course, my actual conclusion on the principal point is different, and dis-positive, and in view of that finding I do not (and cannot) give any formal finding on the alternative submission. But it is important for me to record my views thereon since, in my respectful view (and this is the second reason referred to in para. 10 above), it may be advantageous that, should there be an appeal against my decision, my views on both the principal point and the alternative submission are before the Supreme Court.
19. In view of what has been stated above and my conclusions on the principal point, I hold that the preliminary issue must be decided in favour of the respondent No. 1 and against the petitioner. It follows that the petitioner failed to join as respondent a person who was, in law a contesting candidate. This failure to comply with a mandatory requirement being fatal, the election petition necessarily fails and is hereby dismissed.