1. MUZAMIL AKHTAR SHABIR, J.---This constitutional petition is directed against the order dated 22.11.2016 passed by the Election Tribunal, Sahiwal Division, Sahiwal, (`Election Tribunal') whereby the application filed by the respondents Nos.2 and 3 for amendment of the election petition by impleading two new sets of respondents, namely, Anees-ul-Mehdi along with Javaid Iqbal and Rustam Qurban along with Muhammad Amin, who were contesting candidates for the post of Chairman and Vice-Chairman of the Union Council was allowed and the application filed by the petitioners for dismissal of the election petition for the reason of non-impleading necessary parties was dismissed.
2. 2.The brief facts of the case are that the petitioners, respondent Nos.2 to 9 and four other persons contested election held on 31.10.2015, for the office of Chairman and Vice-Chairman of Union Council-122, District Okara. The petitioners were declared as returned candidates through result notified in the official gazette on 21.12.2015. On 18.01.2016, the Respondents Nos. 2 and 3 challenged the afore-mentioned notification by filing election petition before the Election Tribunal. The petitioners contested the said petition by filing written reply on 11.04.2016. On 07.05.2016 respondents Nos.2 and 3 filed an application before Election Tribunal to seek amendment of pleadings by impleading the afore-referred four persons (two sets of contesting candidates) as respondents in the petition. On 19.05.2016, the petitioners filed an application for dismissal of the election petition and on 27.05.2016 filed reply to the application for amendment filed by respondents Nos.2 and 3. The Election Tribunal vide order dated 22.11.2016 dismissed the application filed by the petitioners for dismissal of the election petition and allowed the application filed by respondents Nos.2 and 3 for impleading additional respondents. The petitioners have called in question the order dated 22.11.2016 through this constitutional petition.
3. 3.This Court issued notices to the respondents for 18.01.2017 on which date despite service respondents Nos.2 to 9 did not appear in the Court, therefore, this Court on the said date proceeded ex parte against the said respondents. However, subsequently counsel for the respondents Nos.2 and 3 appeared in the Court, who has been heard. With the consent of learned counsel for both the parties, the petition is admitted to regular hearing and is being decided as an admitted case.
4. 4.The learned counsel for the petitioners has argued that according to Section 38 of the Punjab Local Government Act, 2013 and Rule 63 of the Punjab Local Government (Conduct of Elections)
5. Rules, 2013 ("Rules, 2013") all the contesting candidates were required to be impleaded as parties to contest the election petition and as the respondents did not implead the afore referred four candidates in the array of the parties, therefore, election petition was liable to be rejected / dismissed on this ground. He further contended that Election Tribunal was not justified to allow the respondents Nos.2 and 3 to implead the afore-referred four persons as respondents in this petition.
6. Relies upon the judgment reported as Haji Khawand Bux Ghulam Muhammad Jahejo v. Sharjeel Inam Memon and 23 others (PLD 2016 Sindh 92) and Jaleel Ahmed v. Election Commission of Pakistan through Chief Election Commissioner and 8 others (2017 YLR 557) to argue that failure to implead necessary parties to the election petition (i.e. contesting candidates) is fatal to the election petition and the application for amendment has been filed as an afterthought and warranted to be declined.
7. 5.The learned counsel for the respondents Nos.2 and 3 has supported the decision of the case and argued that the relevant law does not provide that the election petition is mandatorily to be dismissed during trial for the defect of non-impleading of contesting candidates and the judgments relied upon by the petitioners are not applicable to the present case.
8. 6.The question for determination before this Court is whether the election petition is liable to be dismissed during trial for non-impleading of contesting candidates.
9. 7.The case of Haji Khawand Bux Ghulam Muhammad Jahejo v. Sharjeel Inam Memon and 23 others (PLD 2016 Sindh 92) relates to the General Elections of 2013, wherein Representation of People Act, 1976 ('ROPA') was under consideration and the court held that non joining of a contesting candidate was fatal to the election petition. In the said case the controversy revolved around sections 54(a) and 63 of the Representation of Peoples Act, 1976. The relevant sections are reproduced below: "54. Parties to the petition. ---The petitioner shall join as respondents to his election petition
(a) all contesting candidates; and
(b) any other candidate against whom any allegation of any corrupt or illegal practice is made and shall serve personally or by registered post on each such respondent a copy of the petition.
10. Explanation. - In this section and in the following provisions of this chapter, "corrupt or illegal practice" means a "corrupt practice" or an "illegal practice" within the meaning of Chapter VIII.
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."
11. In the afore-referred case as per section 54(a), the election petitioners was required to implead all the contesting candidates as parties to the petition and section 63 provided that the Tribunal shall dismiss the election petition for non-compliance of provision of section 54. The court held the said provision to be mandatory and dismissed the election petition for its non-compliance.
8. The case of Jaleel Ahmed (supra) relates to Local Government Elections held in the province of Sindh under the Sindh Local Councils (Election) Rules, 2015 and deals with rules 61 and 64, thereof, which are reproduced below: "61. The Petitioner shall join as respondents to his election petition-- (a)all contesting candidates; and (b)any other person against whom any allegation, if any, of corrupt or illegal practice is made and shall serve personally or by courier service or registered post on each such respondent a copy of his petition.
64. If the Tribunal is satisfied that all or any of the preceding provisions have not been complied with, the petition shall be dismissed forthwith and submit its report to the Election Commission."
12. In the said case the relevant portion of the judgment is reproduced below: "In the case reported as Zia Ur Rehman v. Syed Ahmed Hussain (2014 SCMR 1015), wherein the Hon'ble apex Court has held that when the law prescribes a certain format of an Election Petition and its verification on oath and entails a penal consequences of its non-compliance. It is a mandatory provision. If an objection is raised with regard to maintainability of such a petition for noncompliance of a mandatory provision, the Court/Tribunal should decide that preliminary objection. Because if that objection is sustained then the Court is left with no option but to dismiss the petition."
13. In the said case the election petition was dismissed because of non-compliance of mandatory provision of verification of the petition as required by rule 62(3) of the Sindh Local Councils (Election) Rules, 2015. In the said case the relevant law provided that non-impleading of necessary parties and failure of verification of election petition would result in its dismissal.
14. 9.Although both the afore-referred cases relate to Election laws but the same do not relate to the dispute under consideration in the present election petition under the Punjab Local Government Act, 2013 and rules framed thereunder, rather the afore referred Act of 1976 refers to the election for the Provincial and National Assemblies and Sindh Local Councils (Election) Rules relates to local Government Elections in province of Sindh.
15. The present dispute relates to the Punjab Local Government Act, 2013 and Rules framed thereunder.
16. Section 38 of Punjab Local Government Act, 2013 is reproduced below: "38. Election petition.---(1) Subject to this Act, an election to an office of a Local Government shall not be called in question except by an election petition.
(2) A candidate may, in the prescribed manner, file an election petition before the Election Tribunal challenging an election under this Act."
17. Rule 63(1) of the Rules, 2013 is reproduced below:-- "63(1). Parties to the petition.---(1) The petitioner shall join all contesting candidates as respondents to his election petition and shall serve personally or by registered post (acknowledgment due) on each respondent a copy of his petition. .............................."
18. 10.As per section 38 an election can only be called in question by filing an election petition by a candidate in the prescribed manner before the Election Tribunal. Rule 63 provides that the petitioner is required to join all contesting candidates to the election petition and serve personally or by registered post on each respondent a copy of his petition. However, no consequence has been provided for the noncompliance of the afore-referred provision and the same does not make the election petition as liable to be dismissed as is provided in ROPA, 1976 or the Sindh Local Government (Conduct of Elections) Rules, 2015. The rule 70 of the Rules, 2013 applicable in Punjab provides for dismissal of the petition during trial which is re-produced below:
70. Dismissal of petition during trial. ---The Tribunal may dismiss an election petition if--- (a)The provisions of rules 67 and 68 have not been complied with; or (b)The allegation contained therein are vague or do not disclose the commission of any corrupt practice, material irregularity or any other illegal act"
19. 11.In the afore referred rules, the grounds for dismissal of election petition are that provisions of Rules 67 and 68 are not complied with or the allegations contained in the petition are vague or do not disclose the commission of any corrupt practice, material irregularity or any other illegality.
20. Rule 67 provides for appearance of parties before the Tribunal including appearance as a consequence of order passed by the Tribunal and rule 68 provides for procedure before Tribunal.
21. Both the afore-referred rules do not relate to the parties to be impleaded in the election petition. No other ground has been mentioned in the rule 70 providing for dismissal of the petition during trial.
22. Usually a provision prescribing some legal consequences for non-compliance of a provision is treated as mandatory as mentioned in the case reported as Zia ur Rehman v. Syed Ahmed Hussain (2014 SCMR 2015). However, in the present case no consequence is provided for not impleading contesting candidates as parties to the petition, therefore, the same can be treated as a directory provision.
23. 12.The learned counsel for the petitioners has argued that as the provision of the ROPA and Local Government laws applicable in Sindh are similar to the Rules, 2013 therefore, on the basis of the said laws and interpretation given in the judgments cited above, the provision of section 63 is to be treated as mandatory. What is not given in this rule cannot be read into the said rule by this Court by referring to the provisions of ROPA, 1976, and laws applicable in Province of Sindh as it would amount to doing violence to the provisions of law as provided in the Local Government Act, 2013 as well as Rules, 2013. Reliance in this regard may be placed on Zahid lqbal v. Hafiz Muhammad Adnan and others (2016 SCMR 430) wherein it has been laid down as under: "It is, not the function of the Court to read into any provision and or words that are not part of the statute, unless imported or made applicable specifically as has been done under the Sindh Local Government Act, 2013, wherein section 36(j) clearly imports disqualification "under any law" it reads "he is for the time being disqualified or chosen as a member of the Provincial Assembly under any law for the time being in force." It is neither the duty nor the function of the Court to read into or delete any word cold or provisions in an enactment, unless specifically adopted or imported by reference. Courts do not legislate but interpret statute according to their ordinary and plain meaning and do not import and or supply word or provisions from "any other law", no matter how laudable and desirable it may appear to be. In this view of the matter, disqualification prescribed under "any law" or even in "The Constitution" unless as noted above are specifically made applicable or adopted by reference, specially penal and or castigatory provisions contained in "any law" cannot be imported, read into or inflicted on a person who put forth his candidature to be elected as a Member or to hold an elected office of Punjab Local Government but his qualification and or disqualification for any office of the Punjab Local Government is to be adjudged strictly under the provisions of "the Act, 2013" only."
24. In view of the principle laid down in the afore referred judgments of the Supreme Court, it is held that the provisions of rule 63 are not mandatory but directory.
25. 13.Keeping in view what has been discussed above, ground to dismiss the election petition during trial on the basis of not impleading contesting candidates is not made out. Consequently it is observed that the Election Tribunal has rightly dismissed the application filed by the petitioners for dismissal of the afore-referred petition. However, it is observed that the learned Election Tribunal is not precluded from determining on merits of the case, the effect of not impleading parties to the Election petition at the time of final disposal of the election petition by keeping in view the contents of the Election petition and the evidence and material available on the record, which shall be decided without being influenced by any of the observations made in this decision.
26. 14.As regard to the amendment of the election petition by adding additional parties allowed by the Election Tribunal, reference may be made to Rule 68(5) which provides as under: "68. Procedure before Tribunal.-- (1)..........
27. (2)
28. (3)
29. (4)
30. (5)The Tribunal may, at any time, on such terms and on payment of such costs as it may direct, allow a petition to be amended in such a manner as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions in controversy, provided that no new ground of challenge to the election is permitted to be raised."
31. 15.According to the afore referred rule, the Election Tribunal is competent to allow amendment of the petition subject to the terms and conditions it thinks fit provided no new ground of challenge to the election is sought to be added by the petitioner. The Election Tribunal has imposed cost of Rs.10,000/- upon respondents Nos. 2 and 3 for allowing them to make the afore-referred contesting candidates as respondents in this petition. The permission to amend the petition was discretionary with the Election Tribunal which discretion has been exercised by it on the basis of material available before it. This Court in constitutional petition does not ordinarily interfere in the discretionary orders passed by the Court/Tribunal of competent jurisdiction unless the same suffer from illegality, perversity or erroneous exercise of jurisdiction.
32. 16.No illegality, infirmity, perversity or erroneous exercise of jurisdiction has been pointed out in the orders passed by Election Tribunal therefore, no ground for interference is made out.
33. 17.For what has been discussed above, this petition being devoid of any merit is dismissed.