' RUSTAM S. SIDHWA, J.-This is a constitutional petition filed by Abdul Aziz, petitioner, calling in question the order of the Election Tribunal, Okara, dated 29-11-1983, dismissing his application for temporary injunction and his election petition under rule 9 of the Punjab Local Councils (Election Petitions) Rules, 1979.
2. The brief facts of the case are that Abdul Aziz, petitioner, and Abdul Rehman, respondent No, 1, contested the election for Ward No, 13 of Town Committee Hujra Shah Muqim, Tehsil Dipalpur, District Okara. The respondent was declared elected. Accordingly, the petitioner filed an election petition assailing the election of the respondent. Along with the petition, the petitioner also filed an application for temporary injunction to restrain the respondent from performing his functions as a member of the Town Committee. The respondent filed his written statement to both the election petition and the application for temporary injunction. In the written statement to the main writ petition, the respondent took up certain preliminary objections, namely, that the petitioner had not deposited Rs, 500 as security or filed his election petition accompanied by a receipt showing the said deposit made, that Annexures "A to D" attached with the election petition had neither been signed nor verified by the petitioner and that a copy of the petition was not delivered to the respondent either personally or by registered post, as laid down in the rules, and that the petition should, therefore, be dismissed under rule 9 of the Punjab Local Councils (Election Petitions) Rules, 1979. After hearing the arguments on the temporary injunction application and the above-said preliminary objections, the Election Tribunal rejected the prayer for interim relief and also dismissed the election petition for wilful violation of the rules. Being aggrieved by the said order, the petitioner filed a constitutional petition in this Court, which is now before us for disposal.
3. On behalf of the petitioner it is submitted that the Election Tribunal should have framed a proper issue and enabled the petitioner to lead proper evidence in reply to the preliminary objections raised against him, before dismissing the petitioner's election petition. It is next submitted that under rule 9 of the Election Petitions Rules, 1979, the Tribunal "may" dismiss an election petition, if it finds that inter alia the provisions of the rules have not been complied with, but it is not bound by any compulsive language which mandatorily compels it to do so. It is further submitted that the Tribunal permitted technicalities to intrude into the matter and that rule 9 should have been interpreted, not to thwart the right of the petitioner to a fair trial, but to aid and support the same. It is urged that any approach which gives effect to the form and not to the substance of the law, defeats substantive rights and is defective to that extent. In this connection Imtiaz Ahmad v. Ghulam Ali and others (1), Sh. Muhammad Hussain v. Fazal lqbal and others (2) and Mst. Aftaba v. Raza Khan (3) have been referred. It is also contended that a copy of the election petition, even if served after the date of first hearing, could have been permitted by the Election Tribunal. In this connection Ch. Muhammad Hussain v. Muhammad Nawaz (4) has been referred. It is also contended that a contesting candidate, inadvertently not impleaded as respondent, could also have been permitted to be impleaded later. In this connection Ch. Muhammad Amin v. Mushtaq Amin (5) has been referred.
On the question of non-payment of the deposit, it is submitted that the learned counsel for the petitioner thought that the petitioner, who had earlier deposited Rs, 300, had actually paid that amount as a deposit required to be made under rule 3(4) of the Election Petitions Rules. In any case, the petitioner had filed an application on 21- 11-1983 to deposit the security, which should have been allowed. As regards non-delivery of the copy of the petition to the respondent, it is submitted that omission was due to an oversight and that the same being merely a procedural defect, the same could have been permitted to be corrected and there was no need for a major penalty in that regard. As regards the omission on the part of the petitioner to sign and verify the annexures to the petition it is stated this was also through oversight, which could have been permitted to be corrected in the same manner, without visiting the petitioner with any major penalty. In these circumstances, it is submitted that the Election Tribunal did not exercise the discretion vested in it judicially, but rather arbitrarily and on technicalities.
4. On behalf of the respondent it is submitted that the petitioner acted rashly and negligently in not depositing the security in time, in not attaching the receipt relating to the deposit with the election petition, in not serving a copy of the petition to the respondent either personally or by registered post and in not signing and verifying the annexures to the petition, all of which clearly show, that the petitioner contumaciously violated the provisions of rules 3(4), 4 and 5(3) of the Elections Petitions Rules. It is further submitted that the Tribunal, after permitting both the parties to address arguments in the matter and judiciously applying its mind to
(1) PLD 1963 SC 382 (2) PLD 1963 Lah. 501
(3) 1984 SCMR 906 (4) PLD 1968 Jour. 95
(5) PLD 1980 Lab. 784 the case, dismissed the petitioner's election petition, which exercise of discretion should not be upset by this Court in its constitutional jurisdiction. It is lastly submitted, on the principles laid down by tais Court in the case of Muhammad Hussain v. The Election Tribunal W. P. No, 596 of 1984 decided by this Court on 28-10-1984 and Akbar All v. Muhammad Ibrahim Sardar (1), that where an Election Tribunal has exercised judiciously a power conferred on it by law, its decision should not be upset.
5. We have given our anxious consideration to this case. In respect of procedural provisions which invite penalty for their violation, the law is that it should not be too technically applied, if its blind application would thwart, rather than help, justice. All technicalities should normally be avoided, unless it is essential to comply with them on grounds of public policy. The provisions which provide penalties should not be channellized into traps and, to use the words of Mr. Manzoor Qadir, C. J. A in Muhammad Hussain's case no provision should be dealt with, as if a game of chess is being played, in which the consequences are related only to the moves and the playing of the game is the end itself. Procedural provisions should be interpreted as being relatable to a fair trial of the case and all moves within its compass should be treated as subservient to the purpose. If any authority is required for this view, Imtiaz Ahmad's case, and Muhammad Hussain's case may be referred with advantage.
6. Rules 3, 4 and 5 of the Election Petitions Rules provide for certain] matters, to be complied with by a person filing an election petition. Those rules provide that an election petition must contain :-
(a) The names of all the contesting candidates in the electoral unit concerned and any other or others against whom any allegation of any corrupt or illegal practice is made, as respondents. See rule 4.
(b) A precise statement of the material facts on which the petitioner relies. See rule 5(1)(a).
(c) Full particulars of the corrupt or illegal practice or illegal act complained of, including as full a statement as possible of the names of the parties who are alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act. See rule 5(1)(b).
(d) The relief claimed. See rule 5(1)(c).
(e) In claiming the relief, the petitioner must specify whether he wants - (0 The election of the returned candidate to be declared void. See rule 5(2)(a) ; or
(ii) The above relief with the condition that he or some other person should be ordered as duly elected. See rule 5(2)(b), or
(iii) The election to be declared void as a whole. See rule 5(2)(c).
( f ) The signature of the petitioner and verification in the manner as laid down in the C. P. Code for the verification of pleadings. See rule 5(3).
(g) A note showing that copies of the petition have been delivered to the respondents personally or by registered post. See rule 4.
(1) 1984 CLC 1464 ' The petition must be accompanied by - Schedules and Annexures, if referred to in the petition, duly signed and verified in the manner as laid down in the C. P. Code. See rule 5(3).
(h)a receipt showing deposit of Rs, 500 with any branch of the National Bank of Pakistan in favour of the Election Authority, as security for the costs of the petition. See rule 3(4).
' The petition must be presented to the Tribunal -
(i) By the petitioner or his authorised agent personally. See rule 3(2)(a), or
(j) By the petitioner through registered post. See rule 3(2)(b). The petitioner must avail his remedy before the Tribunal -
(1) within thirty days next after the publication of the result in the official Gazette. See rule 3(1).
' The requirement of (A) is to ensure that all necessary and proper parties are before the Tribunal at the very earliest instance, to enable it effectually and completing adjudicate upon and settle all the disputed questions which may arise out of the petition ; that of (b), (c) and (d) are to ensure that the full facts showing the corrupt or illegal practice or illegal act are clearly and concisely set forth, with necessary particulars and details, so that both the Tribunal and the contesting parties may know the case of the petitioner at a glance and further time is not wasted in seeking further and better particulars to clarify certain matters ; that of (e), is to particularize the relief that can be claimed by the petitioner, so as not to leave him to claim those not generally available in election cases ; that of ( f ) and (h) are to make available to the Tribunal the means by which it can assess and give weight to different facts stated in the petition and in the documents furnished by the petitioner, on the strength of the oath or affirmation by which the party has taken responsibility ; that of (g) is to ensure early service on the opposite parties for the speedy disposal of any application that may have been made for interim relief ; that of (i) is to guarantee to the opposite party his costs, should the petition fail ; that of ( j) and (k) are to lay down the circumstances which the law will treat as ensuring a proper institution of the petition ; and that of (1), is to lay down the period of time up to which the petitioner may avail his remedy. If there are requirements which can be considered as so sensitively compulsive import, the violation of which should be visited with serious penalty, the non-impleading necessary parties, the absence of the particulars showing a cause of action, the absence of the petitioner's signature on and verification of the petition, the improper presentation of the petition and the filing of the petition after the prescribed period of limitation, i,e, violation of rules 4, 5(1)(b), 5(3), 3(2) and 3(1), may fairly be treated as falling in that category. Others are less so. All do not stand on equal footing. Though on c grounds of public policy, to ensure a quick and speedy disposal of the case, rules 3, 4 and 5 have been placed at a technically sensitive level, the non-compliance of which may be visited with a major penalty, the discretion of the Tribunal to deal with each case according to its own particular facts, has been left intact. The word "may" in rule 9 shows that the Tribunal has the power to deal with each ty,se of violation, according to its particular import, and to also decide, in accordance with the facts and circumstances of each case. Whether the non-compliance can be permitted to be cured, or must be visited with dismissal of the petition. In certain cases where a contesting candidate has not been impleaded at the initial stage or where a copy of the petition has not been delivered to the respondent in advance or at the time of the filing of the petition, the omission has been permitted to be cured. See Ch. Mohammad Amin v. Mushtaq Ahmad (1) and Ch. Muhammad Hussain v. Muhammad. Nawaz (2). It is, therefore, obvious that a party accused of the violation of any of these provisions can show cause, sufficient to the satisfaction of the Tribunal, to enable the Tribunal to permit the petitioner to cure the omission. In cases to be dealt with under rule 9 of the Election Petitions Rules, in order that discretion should not only be properly exercised, but appear to have been properly exercised, an Election Tribunal should preferably frame issues in the matter and permit the parties to lead evidence thereon, before dismissing a petition on the ground of non-compliance of the rules. This would enable a petitioner, in case he has sufficient reasons to urge in defence, to properly so present the same and not find himself deprived of an opportunity in that respect.
7. Under rule 8 of the Election Petitions Rules, every election petition is to be tried "as nearly as may be, in accordance with the procedure for the trial of suits under the Code of Civil Procedure, 1908". The strict application of the procedure relating to the trial of suits is, therefore, not mandatory. Rule 9 of the Election Petitions Rules is captioned "Dismissal of petition during trial", i,e, during any stage of proceedings. The summary disposal of the case, for grounds given in this rule, is not entirely excluded. In the instance case, the petitioner did not file a replication, but participated in having the matter decided through arguments, without filing an application to have any issue framed. The summary procedure 13 adopted by the Tribunal is, therefore, not in violation of the law. NG exception can now be taken to the said procedure.
8. We now turn to the violation of the rules, in respect of which the petitioner's election petition was dismissed. It cannot be denied that the petitioner, when he filed his election petition against the respondent, did not attach with the petition a copy of the receipt showing that he had deposited the security of Rs, 500. Likewise, the petitioner did not deliver a copy of the petition to the respondent either personally or by registered post, in advance or at the time when he filed the petition. Further, he did not sign and verify in the manner as laid down in the Code of Civil Procedure, 1908, annexures filed by him with his petition. As regards the omission to deposit the security, the petitioner, in para. 13 of his election petition, stated that he had deposited the sum of Rs, 300 in the National Bank of Pakistan, in accordance with the provisions of rules 3(4) of the Election Petitions Rules, the receipt whereof he had attached with the petition. This assertion was palpably false in that no sum was deposited under the said provision of law nor any receipt was attached by the petitioner with the petition. As regards the omission to deliver a copy of the petition to the respondent and to sign and verify the annexures to the petition, oversight alone was pleaded. In these circumstances, there cannot be any doubt that the matter was attended crudely and negligently and there was a gross violation of rules 3(4), 4 and 5(3) of the Election Petition Rules, for which neither good nor sufficient cause was shown for each non-compliance. This was sufficient to permit
(1) PLD 1980 Lab. 784 (2) PLD 1968 Jour. 95 the Election Tribunal to exercise its discretion against the petitioner, which it did. In the impugned order, the Election Tribunal has discussed the arguments of both the parties, before giving its finding. The Election Tribunal having exercised its discretion, as conferred on it by law, on proper judicial principles, it is not proper that this Court should interfere in the matter in its constitutional jurisdiction. In any case, the order of the Election Tribunal is not without lawful authority.
7. For the foregoing reasons, there being no merit in this petition, the same is dismissed. Parties are left to bear their own costs.
Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.