Ibad-Ur-Rehman Lodhi, J.--Through this Constitutional petition, the petitioners have called in question the order passed by the Election Tribunal especially constituted under Rule 3(c)(i) of Pakistan Legal Practitioners & Bar Councils Rules, 1976 (hereinafter to be referred as Rules) to probe into objection petition filed by some voters, from Polling Booths No, 19, 24, 37, 39 and 42 of different Polling Stations of Lahore Division established for the purposes of conduct of elections of Punjab Bar Council on 22.11.2014. In the objection petition, the objectors complained that their votes were excluded from the final count and in such manner, they have been disfranchised. Theobjection petitioners have also sought a finding against order dated 27.11.2014 passed by the Returning Officer of the said election with a request to include their votes/ballots in the final count.
The learned Tribunal by means of impugned judgment dated 28.07.2016 proceeded to allow the objection petition. The order of the Returning Officer dated 27.11.2014 and the subsequent final notification intimating the result of the election issued on 12.12.2014 to the extent of GROUP OF DISTRICT-VIII Lahore Division were declared as annulled with a direction that ballot papers of Polling Stations/Booths No, 19, 24, 37, 39 and 42 not having the seal or signatures of the Polling Officer, but issued by the Returning Officer, shall be counted and after inclusion of such ballot papers in Mal count, final result be prepared and successful candidates be notified accordingly.
2. At the start of hearing, learned counsel for the objection petitioners/respondents herein was asked to show the competence and maintainability of objection petition under Rule 5(1)(h) read with Rule 61 of the Rules, to which, learned counsel after some hesitation responded that maintainability and competence of the objection petition was never questioned by the present petitioners before the Tribunal or even before this Court in the present Constitutional petition, therefore, a relief, which was never prayed for, cannot be granted or even considered. In support of his such contentions, learned counsel for the objection petitioners by placing reliance on cases titled "Ali Muhammad through Legal Heirs and others versus Chief Settlement Commissioner and others" (2001 SCM R 1822) and "Akhtar Abbas and others versus Nayyar Hussain" (1982 SCM R 549) has held that High Court, while exercising powers under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 does not enjoy suo motu jurisdiction to grant relief to a party, which was never claimed.
To resolve controversy, as to whether the objection petition filed on behalf of the "voters" was competent and maintainable in view of Rules referred to hereinabove and further that whether this Court would be competent to ask for such questions from the objection petitioners, we have minutely gone through the record.
In order to dispose of the objection petition, the learned Tribunal framed a number of issues. We are concerned at the moment with Issues No, 12 and 13, which are reproduced herein below:--
12. Whether the present objection petition is not maintainable in its present form? OP-Ghulam Sarwar Nahang
13. Whether the objectors are barred to file this objection petition and also to raise objections referred in the grounds of objection petition? OP-Ghulam Sarwar Nahang The learned Tribunal, while answering such issues, has held that Rule 5(1)(h) read with Rule 61 of the Rules provides a remedy to the "aggrieved persons" by way of filing an objection petition before the Tribunal, therefore, it cannot be said that objection petition before the Tribunal was not maintainable.
For ready reference, Rules 5(1)(h) and 61 are reproduced as under:-- 5(1)(h) The Returning Officer shall publish a programme of the election of Members of the Provincial Bar Council (and the Islamabad Bar Council) in the official gazette specifying, the date by which objections to the validity of election of a member shall be filed.
61. An objection to the election under Paragraph (h).of sub-rule (1) of Rule 5 or under Paragraph (h) of sub-rule (1) of Rule 30, may be filed by any candidate at the election or by any five voters to contest the validity of the election of a candidate, by letter signed and delivered to the Chairman of the Bar Council who shall refer such objection tc the Election Tribunal concerned for disposal within fifteen days of the date fixed for filing objections. The objection shall be accompanied by a deposit of Rs,20,000/-.
The joint reading of both these Rules do create a picture that the Returning Officer shall publish a programme of the election of the members of Provincial Bar Council by providing inter alia a date by A which objections to the validity of election of a member shall be filed and that such objections may be filed by any "Candidate at the election" or by any live voters to contest the validity of th3 election of a candidate.
It is thus, clear that objection petition within the meaning of above referred Rules is a remedy available only to a candidate at the election and in case of any five voters, an objection petition would only be competent if the validity of the election of a candidate is called in question.
The learned Tribunal has imported the category of "aggrieved persons" for the purposes of maintaining an objection petition under the referred Rules, which class of persons is not provided in the relevant Rules, rather only "a candidate" or at least "live voters" are made competent to call in question the validity of the election of a candidate.
In the present case, no candidate at the election has ever filed any objection petition and the voters, who have filed the objection petition, have never prayed for a relief, which is available to the voters by calling in question the validity of election of a candidate. The objectors in this particular case have in fact voiced against their alleged dis-franchisation and for inclusion of their votes into final count and in fact validity of any election of a candidate in particular sense has never been called in question by the objectors.
3. So far as contention of learned counsel for the objectors to the effect that High Court does not enjoy jurisdiction under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 to extend a relief, which was never prayed for in explicit terms, is concerned, suffice it to say that the provisions of The Code of Civil Procedure 1908 are applicable, while this Court is hearing a Constitutional petition.
The provisions of Order VII Rule 7, C.P.C., which are being referred in response to the contentions as noted hereinabove are reproduced herein below: "Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.
This Court, thus, is of the view that while deciding a Constitutional petition, it is empowered to grant an effective or ancillary relief, even if not prayed for.
We are fortified in support of such contention with the case of "Haji Ibrahim versus S. Rehmatullah (Represented by Legal Heirs)" (1985 SCM R 241), wherein the Hon'ble Supreme Court of Pakistan has held as under: "in our considered opinion a discretion is vested in this behalf in the Courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice."
Similarly, in case titled "Samar Gul versus Central Government and others" (PLD 1986 Supreme Court 35), the Hon'ble Supreme Court of Pakistan has observed in the following manner: "Therefore, we have no hesitation to hold that no prejudice has been caused to the respondents on account of couching the relief in the declaratory form. It is well-settled that a Court is empowered to grant such relief as the justice of the case may demand and for purposes of determining the relief asked for, the whole of the plaint must be looked into, so that the substance rather than the form should be examined. The argument advanced on behalf of the respondents is accordingly without substance that no prayer for redemption of the mortgage was made by the appellant in his suit."
The Hon'ble Supreme Court of Pakistan in case titled "Javaid Iqbal versus Abdul Aziz and another"
(PLD 2006 Supreme Court 66) has held as under: "13. On its part, in the exercise of its revisional jurisdiction, Lahore High Court was perfectly justified in observing that the suit could not fail merely for the reason that some relief which was available and not been claimed. Honourable Judge of the High Court is perfectly justified in observing that the suit could not have been dismissed on account of any defect in form. In view of the assertion of the respondents that they had passed on total sale consideration and obtained possession in part performance of sale, they would be entitled to full protection of their possession within the contemplation of Section 53-A of the Transfer of Property Act, 1882. In our considered opinion, both the Courts below failed to take into account the legal impact and effect of the provisions contained in Section 53-A of the Transfer of Property Act and the provisions of Code of Civil Procedure, 1908 providing sufficient mechanism for doing complete justice to the parties. Evidently and essentially, this was a fit case for exercise of jurisdiction under Order VI, Rule 17, Order VII, Rule 7 and Section 151, C.P.C., rather than attaching much importance to the defective drafting of the plaint and the prayer clause. The view taken by the High Court in exercise of its revisional jurisdiction, in our considered opinion, does not suffer from any inherent legal infirmity misreading of record, misconception of law or error of jurisdiction. To the contrary the judgment of the High Court in the peculiar facts and circumstances of the case, on the face of the record, appears to be just, fair, equitable and expedient to achieve the ends of justice and to defeat the mischief. The order of remand is, therefore, fully justified and not open to any exception."
In another case titled "Syed Phool Badshah and others versus ADBP through Manager, Peshawar Branch and others" (2012 SCM R 1688), the Hon'ble Supreme Court of Pakistan has provided illuminated principle by observing as under: "7. The provisions of Order VII, Rule 7 of the Civil Procedure Code empowers the Court to grant an effective or ancillary relief even if not prayed, as the plaint as whole is to be looked into in order to determine relief for which plaintiff is entitled, however, no relief can be granted upon the facts and documents not disclosed in the pleading."
Despite the fact that Issues No, 12 and 13 relating to maintainability of objection petition and locus standi of the objectors were specifically framed, but while answering such issues, the learned Tribunal has proceeded to a wrong direction by extending the competence of filing objection petition to aggrieved persons, which was never the intention of the legislation on the point. No aggrieved person has ever been made competent to file objection petition calling in question the validity of election of a candidate and further that no objection petition is available in the scheme of law on the subject providing remedy to the voters in the election to ask for inclusion of their votes in the final count, which for any reason were not included by the election staff in the final count. The learned Tribunal in our considered view has not dealt with the objection petition in the manner, in which it should have been addressed and the objection petition, which was neither competent nor maintainable, was finally allowed.
4. In view of above discussion, we have reached to an irresistible conclusion that objection petition filed under Rule 5(1)(h) read with Rule 61 of the Rules by the voters asking for inclusion of their votes/ballots in the final count was not competent and not maintainable. As such, the order impugned herein passed by the learned Tribunal is not sustainable and by setting aside the same, we declare the objection petition filed by the respondents as incompetent and not maintainable.
5. This Constitutional petition is allowed in the above lines.