This petition under Sections 139, 142 of the Elections Act, 2017 ("the Act") calls in question the election in Electoral Constituency NA-135, Okara-1 in General Election, 2024. The petitioner is aggrieved of notification dated 16.02.2024, whereby respondent No.1 was declared as the Returned Candidate.
2. Learned counsel for the petitioner contends that once notices have been issued to the respondents and they have submitted their replies, the Election Tribunal ("the Tribunal") lacks the power to reject the petition in terms of Section 145(1) of the Act. In this regard, learned counsel for the petitioner has also referred to Rules 140 and 141 of the Election Rules, 2017 ("the Rules") and Sections 154 and 155 of the Act. Elaborating his arguments, he submits that the Tribunal must keep in sight the marked distinction between the terms "dismissal" and "rejection" of the petition, as used in Section 155(1) of the Act. He avers that the term rejection does not debar a litigant from re- filing the petition, whereas, against the dismissal of the petition, only the remedy of appeal is available. He argues that under the Act, an appeal is provided in terms of Section 155 of the Act, wherein the term used is "decision" and not "rejection" or "dismissal". However, when Section 154 of the Act is perused, it clearly depicts that an appeal before the Supreme Court of Pakistan is available against a decision--a term which envisages dismissal of the petition or a declaration, but does not contemplate rejection of the petition.
3. Conversely, learned counsel for the respondent-ECP, Returned Candidate/respondent No.1, as also the learned Law Officers, submit that the arguments advanced by the petitioner's side are misconceived, inasmuch as there is no estoppel against the law and the term decision includes both rejection and dismissal, against which the right of appeal is available. In support of their contentions, reliance has been placed on the reported judgment dated 21.12.2020 passed in Election Petition No.11/2018 titled Tahir Hussain Khan v. Pirzada Muhammad Jahangir Bhutta, etc. (2020 LHC 3593) as well as cases reported as Col. (R) Muhammad Shabir Awan v. Raja Saghir Ahmed and 4 others (PLD 2023 Lahore 458); and Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan and others (1987 SCMR 1107). Learned counsel for the Returned Candidate/respondent No.1 prays for the rejection of the petition on the ground of defective verification in the light of case reported as Lt. Col. (Retd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others (2015 SCMR 1585).
4. Arguments heard, record perused.
5. The first limb of the argument raised by the petitioner that once notices have been issued to the respondents, the Tribunal is denuded of the power to reject the petition though ingeniously contrived, fails to gather enough force to be convincing or persuasive. In the first place, a judicial forum vested with the power to decide a lis remains seized of the matter until it decides it conclusively. To impose the doctrine of fait accompli upon the issuance of notice by the Tribunal flies in the face of the established principle that no one should be prejudiced by the act of the Court. It is against propriety and public policy to suggest that a forum, once made aware of a procedural oversight, cannot rectify it.
6. Similarly, the argument does not hold water on another plane. Such an interpretation would be antithetical to the well-established judicial characteristic that a forum vested with judicial power must have inherent authority to nip unmeritorious litigation in the bud. The power of the Tribunal to summarily reject the petition cannot be considered extinguished merely upon the issuance of notice. In case of Tahir Hussain Khan supra similar plea was taken up and it has been held that such an interpretation of law would neutralize other provisions of the Act, which confer and vest rights in the succeeding candidate and the Tribunal's power cannot be circumscribed by the time frame preceding the issuance of notice. Hence, the Tribunal can adjudge the maintainability of the petition even after the issuance of notice vis--vis adherence to statutory provisions.
7. As regards the second limb of the argument that appeal is provided against a decision, which includes dismissal but not rejection, this also appears to have been conjured out of thin air. Section 154 of the Act reads as under: "154. Decision of the Election Tribunal.--(1) The Election Tribunal may, upon the conclusion of the trial of an election petition, make an order--
(a) dismissing the petition;
(b) declaring--
(i) the election of the returned candidate to be void and directing that fresh poll be held in one or more polling stations;
(ii) the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been elected; or
(iii) the election as a whole to be void and directing that fresh election be held in the entire constituency.
(2) Save as provided in section 155, the decision of an Election Tribunal on an election petition shall be final."
The term decision is one of broad connotation and includes the adjudication of a lis. The larger connotation of the term decision as used in Section 155 of the Act cannot be diminished by a narrow interpretation. It is worth noting that Section 145 of the Act empowers the Tribunal to summarily reject the election petition on account of non-conformity.
8. The word decision has not been defined in the Act.
As per Stroud's Judicial Dictionary (Third Edition), decision is a popular and not a technical word, and means little more than a concluded opinion. It does not, by itself, amount to a judgment or order. According to the New Webster's Encyclopaedic Dictionary, decision means the act of deciding, determination (as of a question or doubt), final judgment or opinion in a case which has been under deliberation or discussion; arbitrament; or the quality of being decided in character-- unwavering firmness. The Supreme Court, in the case reported as Hafiz Abdul Waheed v. Asma Jehangir and another (PLD 2004 SC 219) when faced with the argument that various terms such as judgment, decision, order, and sentence had been used in Chapter 3-A of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") but only decision of the Federal Shariat Court was rendered binding, rejected such a narrow construction and observed that the term decision had not been defined in the Constitution and was used generically. The Supreme Court held that the expression decision in Article 203GG includes the judgment, order, or sentence (if any) passed by the Federal Shariat Court.
9. In order to properly contextualize the petitioner's argument, it would be apt to observe that while Section 145(1) of the Act empowers the Tribunal to summarily reject the election petition for non- conformity and non-compliance with Sections 142, 143 or 144 of the Act, if the election petition is found to be in compliance with said provisions; the Tribunal would proceed with the trial of the petition in accordance with the procedure laid down in the subsequent provisions. Section 154 of the Act spells out various kinds of orders the Tribunal could pass at the conclusion of the trial, however, these orders have also been collectively referred to as decisions, as is evident from the heading of Section 154 of the Act. Here, it is significant to state that while a heading is not conclusive in interpreting a provision of law, it can nevertheless serve as a guiding tool. The heading of Section 154 of the Act sheds light and aids interpretation, indicating that various orders the Tribunal may pass are encompassed within the term decision and may be used interchangeably therewith. Rejection of the petition is one such type of order the Tribunal may pass, while taking up the objection of maintainability, prior to conclusion of trial.
10. Perusal of Section 155 of the Act reveals that an appeal may be filed against any final decision of the Tribunal. It is of greater significance to note the use of the phrase final decision while providing for the right of appeal. In this context, it must be noted that while Section 154 of the Act sets out the kinds of orders that can be passed at the conclusion of trial, Section 155 of the Act provides for appeals. It reads as under: "155. Appeal against decision of Election Tribunal.--(1) Any person aggrieved by the final decision of the Election Tribunal in respect of an election petition challenging election to an Assembly or Senate may, within thirty days of the date of the decision, appeal to the Supreme Court.
(2) Any person aggrieved by the final decision of the Election Tribunal in respect of an election petition challenging election to a local government, may, within thirty days of the date of the decision, appeal to the High Court having jurisdiction and the decision of the High Court on such appeal shall be final.
(3) An appeal under sub-sections (1) and (2) shall be decided within one hundred and eighty days: Provided that an injunctive order if passed shall stand vacated automatically if the appeal is not decided by the High Court or the Supreme Court, as the case may be, within one hundred and eighty days."
The legislature has not framed Section 155 of the Act to state that an appeal may only lie against a decision made under Section 154; rather, it broadly states that an appeal may be filed against any decision. Hence, the phrase final decision must be construed to include all decisions that conclusively determine the rights of the parties--i.e., final as opposed to interim or partial decisions --rather than being limited by distinctions between dismissal and rejection. While no appeal is provided against an interim decision, both dismissal and rejection fall within the fold of final decisions and can be appealed. Therefore, the argument of learned counsel for the petitioner fails to persuade.
11. Having held that the Tribunal is vested with the power to summarily reject the petition even if notices are issued to the respondents and adverting to the objection of Returned Candidate/respondent No.1 regarding defective verification of the petition, I have examined the verification appended to the instant election petition and find it deficient and non-compliant when assessed in the context of Order VI Rule 15 of the Code of Civil Procedure, 1908 ("CPC"), and the principles laid down by the Supreme Court in case of Lt. Col. (Retd.) Ghazanfar Abbas Shah supra.
Although the petition recites that verification has been made on oath and bears an attestation stamp of the Oath Commissioner, the same lacks essential material particulars of a certificate required from the Oath Commissioner. There is no clear affirmation or endorsement that the petitioner appeared in person before the Oath Commissioner; was properly identified; and that the oath was duly administered. The absence of express language to this effect renders the process substantively deficient as held in case of Lt. Col. (Retd.) Ghazanfar Abbas Shah supra. Mere mention of identification by an individual, even if an Advocate, without any details of how and on what basis such identification was made, fails to satisfy the mandatory requirements of Section 144(4) of the Act read with Order VI Rule 15, CPC. As such, the verification, in its present form, cannot be treated as valid and proper for the purposes of an election petition. The affidavit of the petitioner accompanying the election petition has also been examined and is found to suffer from similar legal infirmities. The certification on the affidavit mirrors the defects noted in the verification of the petition -- it is neither in the prescribed format nor does it satisfy the essential requirement of confirming due administration of oath in the presence of the Oath Commissioner. Consequently, the affidavit too is noncompliant with statutory and procedural mandates.
12. In view of the above discussion, this petition is summarily rejected in terms of sub-Section (1) of Section 145 of the Act, being non complaint and suffering from want of due and proper verification.