JAWAD HASSAN, J.---Through this single judgment we intend to decide the instant petition as well as W.P. No,2192/2014 and W.P. No,3393/2014, as all the petitions are outcome of the impugned order dated 20.01.2014.
2. The Petitioners have called in question the legality of single order dated 20.01.2014 (the "Impugned Order") rendered in the Election Petition No,150/2013 and the Election Petition No,317/2013 by the Election Commission of Pakistan (the "Commission"), whereby the Objection Applications filed by the Petitioners were dismissed.
3. Learned counsel for the Petitioners submitted that the Impugned Order is against the law and facts and liable to be set aside on the grounds that the Commission has not exercised its jurisdiction vested in it; that the objections were dismissed by the Commission without going through the record of the case; that it was mandatory requirement of the law that the copy of the election petition, affidavit and documents relied upon along with notice be served upon the Petitioners through registered post or personally but the said condition/ requirement has not been fulfilled, as such the Impugned Order is liable to be set aside. Learned counsel for the Petitioners has placed reliance on the case titled Inayatullah v. Syed Khursheed Ahmed Shah and others (2014 SCM R 1477).
4. On the other hand, learned counsel for the Respondents Nos,1 and 2 in the respective petitions (the Respondents Nos,1 and 2") have vehemently opposed the arguments advanced by the learned counsel for the Petitioners and prayed for dismissal of the petitions with cost.
5. We have heard the arguments of both the learned counsel for the parties and perused the record.
6. From the perusal of record it reveals that the Respondents Nos,1 and 2 respectively filed the Election Petitions before the Commission against the Petitioners under Section 52 of the Representative of the People Act, 1976 (the "ROPA"). The Petitioners filed their objections therein under Section 56 of the ROPA through objection applications mainly stating that the notice was not in accordance with the mandatory provisions of the Election Petition Rules, 1985 (the "Rules") and notification dated 16th March 1985 which require the Election Petitioners to deliver a copy of the petition along with all the affidavits of the witnesses and documents relied upon to the present Petitioners personally or through registered post. In addition, the Petitioners/Applicants stated that the notices sent to them were not accompanied by a copy of the Election Petition and any other documents and thus the Election Petitions were liable to be dismissed by the Commission for non- compliance of the Rules and the subsection (1) of section 56 of the ROPA. However, on the other hand, the Respondents Nos,1 and 2 filed reply to the objection applications denying therein the alleged non-compliance and submitted that the copies of the petition with a notice of the counsel, were properly served upon the present Petitioners through registered post as well as the delivery of complete paper book including petition and all the annexures etc. by hand at the notified addresses of the present Petitioners.
7. On the one hand, the present Petitioners denied the receiving of copies of the petitions as well as allied documents whereas on the other hand, the Respondents Nos,1 and 2, have claimed provision of said copies of the petitions and documents to the present Petitioners. In this view of the situation, a question of fact arises. The Commission shall forth with dismiss the Election Petition under section 56(1) of the ROPA, if it finds that the provisions of sections 52, 53 and 54 of the ROPA have A not been complied with but can also refer the matter for trial the Election Tribunal under section 56(2) of the ROPA if the Election Petition is not dismissed under section 56(1) of the ROPA. For the sake of brevity the said section 56 of the ROPA is reproduced herein below and is as follows:-- "56. Procedure on receipt of petition by the Commissioner.--- (1) If the Commissioner finds that any provision of section 52, section 53 or section 54 has not been complied with, the petition shall be dismissed forthwith.
(2) If an election petition is not dismissed under subsection (1), the Commissioner shall refer it for trial to a Tribunal."
8. Any disputed question of fact is to be heard and determined by the Election Tribunal at the first instance, if the Election Petition is not dismissed by the Commission. We, therefore, agree with the findings of the Commission who in the Impugned Order has held that in normal course of events, the Commission can resort to dismissal of election petition if the legal requisites are not complied with on the face of the record but when there is disputed question of facts the matter should be left to the decision of the Election Tribunal under section 63 of the ROPA..
9. For the sake of brevity, the said Section 63 of the ROPA is reproduced below and is as follows:-- "63. Dismissal of petition during trial.---The Tribunal shall dismiss an election petition, if--
(a) the provisions of section 54 or section 55 have not been complied with; or
(b) if the petitioner fails to make the further deposit required under subsection (4) of section 62."
(Underlining is ours)
10. It is unequivocal from the above sections that if an Election Petition is not dismissed under subsection (1) of section 56 of ROPA, the Commission shall refer it for trial to a Tribunal under section 56(2) of the ROPA, as such the Commission has rightly held in the Impugned Order that as the objection raised by the Petitioners has no merit, therefore, is dismissed and the same can be taken up under Section 63 of ROPA before the Election Tribunal, if so desired. The case law cited by the learned counsel for the Petitioners is not relevant at this stage as each and every case has its own facts and circumstances, therefore, distinguishable from the case in hand and cannot be relied upon. Even otherwise no prejudice is caused to the Petitioners as their objection can be heard by the Election Tribunal in the first instance before proceeding with the trial. In view of what has been discussed above, the instant petition as well as the above mentioned petitions, are hereby disposed of accordingly.