' MAZHAR ALAM KHAN MIANKHEL, C.J.--- The following three Election Appeals bearing Nos.03/2014, 04/2014 and 05/2014 filed by Qaisar Jamal Khan, Air Marshal (R) S.Qaiser Hussain and Nasir Khan, appellants, though pertaining to three different constituencies but were clubbed together for considering the common preliminary objection regarding question of limitation raised by the respondent side. The particulars of all the three appeals are as under:-
1. Election Appeal No.03/2014 (Qaisar Jamal Khan v. Haji Abid Afridi etc.)- Constituency No.NA-47, Tribal Area-XII.
2. Election Appeal No.04/2014 (Air Marshal (R) S.Qaiser Hussain v. Sajid Hussain etc.) -- Constituency NA-37, Kurram Agency, FATA.
3. Election Appeal No.05/2014 (Nasir Khan v. Hameedullah Jan etc.) -- Constituency NA-46 (Tribal Area-XI).
We, therefore, propose to decide the same through this single judgment in Election Appeal No.03/2014.
2. Brief facts of the case are that the appellants and the respondents contested the elections to the National Assembly of Pakistan from various Constituencies of FATA. The returned candidature-ship of the respondents No.1 was challenged by the appellants by filing Election Petitions before the Election Commission of Pakistan, which were entrusted to the Election Tribunal constituted under the Representation of the People Act, 1976. In Election Petitions Nos.4 and 5 of 2012, the respondents raised preliminary objection with regard to its maintainability, which found favour with the Election Tribunal and the election petitions were dismissed under Section 63 of the Representation of the People Act, 1976, on the ground of non-compliance of the provisions of Section 55 of the Act, ibid, while Election Petition No.3 was accepted and fresh election was ordered in the entire constituency.
The appellants, feeling aggrieved, filed appeals before the august Supreme Court of Pakistan but the same were returned in original to the appellants vide orders dated 18.06.2014, 29.05.2014 and 24.06.2014 respectively for its presentation before this Court in view of the Notification No.F.6(53)- F.I/76 dated 9th January, 1977, issued by the President, vide which the Representation of the People Act, 1976 was made applicable to the Federally Administered Tribal Areas but with certain modifications.
3. Mr.Aitezaz Ahsan, learned counsel for respondent No.1 in Election Appeal No.03/2014 contended that re-election was ordered by the Election Tribunal vide order dated 05.05,2014, which order was assailed in appeal on 12.05.2014 before the Hon'ble Supreme Court, in which on 15th of May, 2014, the august Supreme Court granted a stay order and on 14th of June, 2014, the appellant moved a Civil Misc. Application for placing on file the detailed order of the Election Tribunal. He argued that on 18th June, 2014, the appeal was withdrawn and was filed in this Court on 19.06.2014 and on that day the appeal was barred by time because for filing such like appeals the time limitation as provided in the Act was thirty (30) days which had already expired on 16th of June, 2014. He argued that the apex Court only allowed to withdraw the appeal and did not pass any orders for transfer of the same to this Court and that the appeal before this Court was filed on 19th of June, 2014 and if the time limitation is reckoned from 5th of May, 2014, then it is barred by 14 days. He submitted that under Article-247 of the Constitution of Islamic Republic of Pakistan, 1973, vide Notification No.F.6(63-F.I)/76 dated 19.01.1977, Section 67(3) was amended wherein the same period of limitation of 30 days is prescribed, hence, the appeal filed before this Court was time barred and the only issue is whether the delay can be condoned; that the condonation of delay is possible under Section 5 of the Limitation Act but the Limitation Act is subject to Section 29, subsection (2) whereof excludes the applicability of Section 5, hence the delay cannot be condoned and the appellant cannot say that there was a bona fide mistake because it is the unanimous view of the superior Courts that where the limitation is provided by special law, then there should be no condonation.
4. Mr. Ghulam Mohyuddin Malik, learned counsel for respondent No.1 in Election Appeal No.04/2014, submitted that the, election petition of Air Marshal (R) Qaiser Hussain was dismissed on 02.09.2013 by the Election Tribunal and the appeal before the apex Court was filed within time i.e. On 30.09.2013. The august Supreme Court of Pakistan ordered the return of the appeal vide order dated 29.05.2014 and the appeal alongwith other relevant papers was handed over to the appellant on 03.06.2014, which was filed before this Court on 06.06.2014; that there is thus three days delay in filing of the appeal before this Court, which ought to have been filed immediately after getting the copies from the apex Court; that the appeal is also not maintainable because the same was filed before a wrong forum, as Section 67 (3) of the Representation of the People Act, 1976 was substituted vide Notification dated 09th January, 1977, where under appellate powers were given to the High Court; that it was because of this objection that the august Supreme Court of Pakistan returned the appeal to the appellant for presentation before this Court. According to the learned counsel, the appellant at first instance consumed sufficient time before a wrong forum and when the appeal was returned to him, the same was also not filed immediately but after two days, which are sufficient grounds for holding that the appeal is barred by time. According to him, Section-5 of the Limitation Act, 1908 is hardly applicable to the present case as the instant case would be covered under Section-14 of the Limitation Act. The learned counsel submitted that in this case there are two questions of limitations, firstly, from the date of dismissal of the election petition and then from the date of return of the appeal. In C.Ms. Nos.7 and 8 of 2014, there is no specific ground for condonation of delay, thus, the appeal being barred by time is liable to be dismissed:
5. Mr. Farooq H. Naik, learned counsel for respondent No.1 in Election Appeal No.05/2014, submitted that the Election Petition of appellant was dismissed by the Election Tribunal vide judgment dated 25.03.2014 and the appeal there against was filed before the apex Court on 5.4.2014; that on the application of appellant, the appeal was returned to him vide order dated 24.06.2014 which was filed before this Court on 27.06.2014 along with an application for condonation of delay; that the reason advanced in the application for condonation of delay is that it was under the direction of the Election Tribunal that the appeal should be filed before the august Supreme Court within 30 days; that nothing has been mentioned therein as to how and when they came to know about the said notification; that the notification dated 9th January, 1977 provides limitation for filing of appeal before the High Court as 30 days. He referred to Section 29 of the Limitation Act and submitted that by virtue of subsection (2) the provisions of special law would be applicable, thus this section excludes the applicability of Section 5 of the Limitation Act. Further averred that under Article-156 of the Limitation Act, 90 days has been prescribed for appeal before the High Court under the Code of Civil Procedure, 1908 but the C.P.C. Is not applicable to an election appeal in view of the dictums laid down by the superior Courts and as such time for filing appeal provided in the special law has to be made applicable; that after the exclusion of Section 5 of the Limitation Act, Section 14 of the said Act would also be not applicable because this section is only applicable to suits and applications. The learned counsel thus concluded that the appeal of the appellant is hopelessly barred by time and the stance that they have been misled by the learned Election Tribunal is not a valid reason for condonation of delay coupled with the fact that ignorance from law is no excuse, as valuable rights have accrued in favour of respondent No. 1.
6. Qazi Muhammad Anwar, learned counsel for the appellants in Appeal No.03 and 05/2014 submitted that the Election Tribunal dismissed his petitions through a short order on 05.05.2014, application for the certified copy was filed on the same day, the short order was supplied on 09.05.2014 and the appeal before the Supreme Court was filed on 12.05.2014. The august Supreme Court was pleased to suspend the operation of the impugned judgment on 15.05.2014, meaning thereby that only after 09 days the impugned order of the Tribunal was suspended, which was never vacated even till return of the appeal; that the appeal was returned on 18th June, 2014, which was filed before this Court on 19th June, 2014 i.e. The next very day. Further contended that although the Representation of the People Act, 1976 is a special law wherein period of 30 days is provided for filing the appeal but in the notification dated 09,01.1977, the limitation is also the same, thus, there is no difference in the period except that the only forum has been changed. The learned counsel stated that he is not invoking Section 5 of the Limitation Act but when a superior Court has suspended the effect of the judgment, in that case, the question of limitation would not arise and that for an omission or mistake of the Court, the party can not be made a sufferer. The learned counsel while concluding his arguments submitted that even prior to the year 2013, the notification in question was not available in the Law Books available in the market and was only published by the Election Commission of Pakistan itself and that the appeal before the august Supreme Court was filed with due care, diligence and in good faith which was also entertained by the apex Court by suspending the impugned order.
7. Mr. Abdul Samad Khan, learned counsel for the appellant in Election Appeal No.04 submitted that Section-5 deals with condonation of delay whereas Section 14 deals with exclusion of time; that in Section 5, it is the discretion of the Court to condone a delay while in Section-14 it is mandatory requirement of law and not discretion because the word "shall" has been used therein. The learned counsel contended that the appeal was returned on 24.06.2014, which was filed before this Court on the same date without any sort of delay. The learned counsel thus concluded that at least he is entitled to exclusion of time within the meaning of Section-14 of the Limitation Act, 1908. The learned counsel for the parties in support of their arguments placed reliance on various judgments of the superior Courts.
8. Arguments heard and record perused.
9. In the cases in hand, it is not disputed that the appellants engaged prominent lawyers to prefer appeals against the impugned orders and these appeals were filed in the apex Court in accordance with the advice of their lawyers. It is also on the record that the respondents themselves also lodged caveat in apex Court and that the Hon'ble Supreme Court of Pakistan also entertained those appeals after hearing the lawyers for both the parties and also kept the appeals for all these days and that too by suspending the judgments/orders of the Election Tribunals. If these appeals could get entries in the wrong court /forum, then it is difficult to understand as to why the appellants should suffer obviously due to the act of the Court when they with their due diligence have acted in a proper way and that too, well within the time prescribed by the law. The appellants being laymen with their bona fide intention did whatever was possible at their end, under the law. The act of filing of these appeals before the apex Court by the prominent lawyers of the country can in no way be termed as an ill advice of the counsel as the same were accordingly entertained by the office. Had these been returned by the office well in time, then any default thereafter on the part of appellants necessarily would have damaged them. The law of the land is very much settled by now that no one should suffer due to the act of the Court. While keeping in mind the facts and circumstances of the cases, we are absolutely clear in our mind that it was not the negligent act of the appellants nor it can at this stage be termed as an ill advice of the lawyers but it was only and only act of the Court for which they cannot be left to suffer.
10. We have categorically held that the appellants have acted very diligently by filing appeals before the apex Court and because of the act of Court, their appeals were wrongly entertained by the office of apex Court, so for that purpose they have not to suffer but these appeals (after return) are filed under a provision of special law and Section 29(2) of the Limitation Act, 1908 excludes the application of Section 5 of the Act, 1908 for condonation of delay and it was also argued by the respondent side that Section 14 of the Act of 1908 deals with the suits only, so these being appeals, time could not be excluded under Section 14 ibid. So, proceeding with the matter further, reproduction of Section 14 of the Limitation Act, 1908 has become necessary, which reads as under:- "14 Exclusion of time of proceeding bona fide in court without jurisdiction.--- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature; is unable to entertain it.
' Explanation I: In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted.
' Explanation II: For the purpose of this section, a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding.
' Explanation III: For the purposes of this section misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
' A look at the above provision of law would make it clear that initially it starts and deals with the suit but subsection (1) also refers to prosecution of other proceedings with due diligence either in the Court of first instance or in a Court of appeal, the time spent before wrong forum has to be excluded and explanation-II of the above said provisions explains prosecuting a proceeding. The word "applicant" has been defined in Section 2(1) of the Act as under:--
(I) "applicant" includes any person from or through whom an application derives his right to apply."
In this context, if the dictionary meaning of application is kept in view, then it would become clear that it includes a petition also.
' The word 'application' has been defined in the Black's Law Dictionary as under:- ' A putting to, placing before, preferring a request or petition to or before a person. The act of making a request for something.
' Similarly the definition of the word 'petition' in the same dictionary is as under:-- A written address, embodying an application or prayer from the person or persons preferring it, to the power, body, or person.
Thus, virtually, there is no difference between a petition and application. In the context of law, a petition is a formal application in writing, made to a court for judicial action for something that lies in its jurisdiction. For other purposes, a petition is a written application addressed to a superior, or to a person or body in authority, soliciting some favour, right or mercy for redressal of some wrong or grievance. This Court is, therefore, of the view that Explanation-II to Section 14 of the Limitation Act would cover the instant appeals for the purpose of exclusion of time of proceedings before the apex Court. It would also not be out of place to refer to the case of Haji Kadir Bux v. Province of Sindh and another (1982 SCM R 582), wherein their lordships has laid down the principle of construction of statutes of limitation in the following words:- "Purpose and construction of statutes of limitation---Nothing prevents Pakistan Courts from adopting beneficial construction as against literal whenever a controversy arises."
' In the case of Ghulam Ali v. Akbar alias Akoor and another (PLD 1991 Supreme Court 957) their lordships of the august Supreme Court of Pakistan has interpreted Section 14 of the Limitation Act as under:- "Section 14 of the Limitation Act envisages that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecution in good faith in a Court, which, from defect of jurisdiction or other cause of like nature is unable to entertain it. When both these Sections 5 and 14 of the Limitation Act are read in juxtaposition with each other, it would appear clear that only that delay is condonable which had occurred in spite of the fact that the plaintiff had prosecuted his case with due diligence. So the question will arise whether in exercise of due diligence mistake was discoverable or not. In other words, if mistake is such that it is expected to be discovered in exercise of due diligence, then it would not be condoned but if it was on account of some such circumstances that in the exercise of due diligence, the mistake could not be discovered only then it would be condonable."
11. It was even also not denied by the learned counsel for the respondents that the alleged Notification of 9th January, 1977 whereby subsection (3) of Section 67 of the Act was substituted did not find mention even in the books published by the Election Commission of Pakistan until the recent book published wherein the said Notification was mentioned for the first time. That is the reason that even in the previous elections, no appeal before this Court was filed from FATA. The learned counsel Mr. Qazi Mohammad Anwar, who throughout figures in Election disputes, was specifically asked regarding the previous practice but he could not mention even a single case. It was for the first time, when the Notification in question was brought into the notice of their lordships of the august Supreme Court of Pakistan and resultantly the appeals were returned to the appellants for presentation before this Court. The same was the reason that the office of the apex Court entertained said appeals without any objection as under Section 67 of the Representation of the People Act, 1976, appeals against the decision of Election Tribunal have to be filed before the Supreme Court of Pakistan. From the above facts, it can be said that the appellants were- prosecuting their appeals before the apex Court in good faith. Over and above, in one of the impugned orders, the Election Tribunal itself has advised the appellants to file appeals against the decision before the apex Court. Honourable the apex Court in the case of Karachi Electric Supply Corporation Ltd v. Lawari and 4 others, (PLD 2000 Supreme Court 94), held as under:- "Diligence is a state of human conduct. What should be the standard for assessing the behaviour of an appellant to style him as diligent. Because of fluidity of the notion of diligence, it is difficult to set up a precise yardstick. Whether or not litigant has acted diligently and with care, would differ from case to case. Speaking broadly, a person may be said to have acted diligently, when he has informed, himself of all relevant factors taken all obvious steps and precautions, characterized by a degree of effort, as in a given situation, a reasonable person would do."
12. The above principle enunciated by the apex Court in the above cited authority, in our view, is applicable on all fours to the facts and circumstances of instant appeals, making the appellants entitled to exclusion of time spent by them before a wrong forum under Section 14) of the Limitation Act.
13. For the foregoing reasons, we are of the view that Section 14 of the Limitation Act is applicable to the proceedings under the Representation of the People Act in respect of an appeal provided under Section 67(3) and the time spent in the apex Court will have to be excluded for the reasons stated above about the due diligence. If we exclude the time, there can be no doubt that the appeals are within the period of 30 days prescribed by the Act.
The objection raised by the respondents is thus overruled and the office is directed to fix these appeals separately for regular hearing on a convenient date.