1. ' This election petition is filed by Mrs. Lilavati Harchandani against respondent No,2 Mrs. Monica Kamran Dost who is declared elected (hereinafter to be referred as elected member) and respondent No,1, who acted as Returning Officer (hereinafter to be referred as such). Election in question with two contestants only relates to a single seat of Provincial Assembly of Sind reserved for non-Muslim women, held on 13-3-1985 at Karachi. Method of voting was to be on the basis of proportional representation by means of a single transferable vote by Electoral College comprising eight non-Muslim members of the Provincial Assembly of Sind already elected.
2. ' According to the petitioner after the voting when the result of the Court was first declared, petitioner had secured five votes and elected member three votes and such announcement was also made but subsequently on the objection of elected member two votes in favour of petitioner were declared invalid as not properly marked. Consequently both candidates were declared to have secured three votes each. Returning Officer then drew lot and on picking up name of Mrs. Monica Kamran Dost first, declared, her as winner. Petitioner has taken strong objection to this and contended that acting on the process of elimination as contemplated under the relevant rules, name picked out first in the lot should have been excluded and the remaining name of petitioner should have been declared as winner. Elected member and Returning Officer both contested petition and filed written statements. In view of the pleadings of parties, the following five issues were framed: -
(1) Whether petition is liable to be dismissed for non-compliance of sections 54 and 55 of representation of People Act 1976?
(2) Whether lot was not drawn by respondent No,1 in accordance with law?
(3) Whether petitioner objected to the manner of drawing of lot by respondent No,1? If not, its effects?
(4) Whether petitioner is estopped from challenging the manner of drawing of lot by respondent No,1?
(5) Whether petition is maintainable without disclosure of any grounds enumerated in section 68 of Representation of People Act, 1976?
3. ' Before the tribunal, petitioner examined herself and her election agent Mr. P.K. Shahani. Elected member examined herself. Returning Officer was examined by the Tribunal and he produced the relevant record. I have heard Mr. Imam All Kazi counsel for the petitioner and Mr. Khalid Ishaq for the elected member. Mr. Kazi submitted that petitioner has no objection with drawing of lot, her chief grievance is that it was not done according to law and in the result she is deprived from being declared as elected.
4. ' So far issue No,1 is concerned, my finding is that this petition is not liable to be dismissed as there is no non-compliance of provisions of sections 54 and 55 of Representation of People Act, 1976 (hereinafter to be referred as the said Act). Section 54 requires joining of all candidates and any other candidate as respondents against whom is made allegation of corrupt or illegal practice.
5. Both. "corrupt practice" and "illegal practice" are defined in Chapter VIII showing definite and specific offences like bribery, personation, undue influence, interference with voting or offences committed at the Polling . Stations. Offences specified under both these "Practices" have been made punishable. In the instant case, cause of action has accrued not on account of corrupt or illegal practice but on account of "illegal act" as contemplated in section 55, which is available in addition to "corrupt and illegal practices" to file election petition. Grievance of the petitioner is that an illegal act has been committed by the Returning Officer, who has violated th rules by declaring the person elected, whose name should have been excluded. This is very clearly so stated in the contents of the petition. This petition is, therefore, maintainable.
6. ' Issues Nos. 2,3 and 4 pertain to the drawing of lot and are inter-related as such. I take them up together for convenience and expediency. In fact the manner of drawing of lot is the subject matter of controversy between the parties. First, it is to be seen as to what are the legal provisions with regard to the drawing of lot and what procedure is prescribed and then I shall go into evidence.
7. ' Houses of Parliament and Provincial Assemblies (Election) Order, 1977 also known as President's (Post Proclamation) Order 5 of 1977 has been amended by President's Order 16 of 1985 to add clause (3-A) in Article 4 and (3-A) in Article 6 to provide, for filling up seat reserved for minority (Quadianis) in the National Assembly and Provincial Assemblies (respectively by non-Muslim women to be elected on the basis of proportional representation by means of a single transferable vote by the electoral College consisting of non-Muslim members of that assembly. Most important fact noticeable is that method of voting is particularly prescribed in the Presidential Order to be on the basis of proportional representation by means of single transferable vote by the electoral College duly specified. This basis is further mentioned in the Representation of the People Act, 1976 in Chapter V which pertains to the election to seats reserved for women to be read further in conjunction with Chapter III of the Representation, of the People (Conduct of Election) Rules, 1977 (both to be referred hereinafter as the said Act and rules respectively). Comprehensive Procedure with regard to voting on the basis of proportional representation by means of a single transferable vote is prescribed in Chapter III of the said rules. Salient features of this procedure are that according to rule 59, each voter shall have one transferable vote irrespective of number of seats to be filled and the ballot paper shall be in such form as commission shall specify. According to rule 60, voter is required to put figure I opposite the name of candidate for whom he wishes to vote in the first instance and figures 2,3 and 4 and so on in order of preference, opposite names of other candidates. As per rule 64(3) a ballot-paper shall be invalid on which figure I is not marked or marked incorrectly. Rule 66 provides procedure where one seat is to be filled. Formula is also specified that every valid ballot paper shall be deemed to be of value of 1 at each count and the quota sufficient to secure return of the candidate shall be determined by adding values credited to all candidates, dividing the total by 2 and adding 1 to the quotient ignoring the remainder, if any, and the resulting number would be the quota. It is further provided therein that if at the end of any count, no candidate is found to be entitled to be declared elected, the Returning. Officer shall exclude from the Poll the candidate, who upto that stage had been credited with the lowest value.
8. Sub-rule (5) of Rule 66 is very important and provides that if two or more candidates: are lowest on the Poll and each has the same value of votes at all counts the Returning Officer shall decide, by lot, which of them shall be excluded.
9. ' In the instant case, it appears from the record, that no other except the procedure mentioned above in detail as contemplated in Chapter III of the said rule, was applied from beginning to the end except the last part of drawing the lot in which the name of the candidate picked up was declared successful instead of being excluded. In the Written Statement Returning Officer has admitted in para. 5 that the result was declared in accordance with procedure laid down under Rules 64 and 66 of the said rules. It was further stated in subsequent paras. That two votes were rejected in accordance with Rule 64 (3)(a) and since both candidates received equal number of votes, lot was drawn and in the result petitioner was excluded and Mrs. Monica Kamran Dost was declared elected. Last part of the statement is vague in nature and it is not statetd specifically that in the lot name of Mrs. Monica Kamran Dost was picked up and she was declared elected and this was not done in accordance with Rule 66(5) which requires that the name picked out was to' be excluded. This is so stated in spite of the fact that in para. 8 of the written statement the last line is that proceedings prescribed under Rules 64 and 66 were fully observed. Strangely enough in para. 10 of the written statement it is stated that Mrs. Monica Kamran. Dost was declared elected as per Rules 66 and 92 of the said rules and further assertion was made in para. 11 that lot was drawn by the consent of the parties including election agent of the petitioner. Now Rule 92 is not part of Chapter III but is included in Chapter IV relating to the election to the seats reserved for non- Muslims and provides that in case of equality of votes, the returning officer shall draw a lot and the candidate on whom the lot falls shall be deemed to have received number of votes entitling him to be declared elected. Chapter IV does not apply for the reason that under it elections to the seat reserved for non-Muslims are to be conducted on the basis of direct and free vote to be exercised by electors who are non-Muslims and not on the principle of proportional representation by means of single transferable vote. Rule 92 of Chapter IV of the said rules has therefore, no application at all in the instant ease.
10. ' In the written statement filed by elected member stand is taken that lot was drawn as per terms of Rule 66(5) of the said rules and no mention is made about Rule 92. Petitioner in her affidavit of evidence stated that returning officer drew lot and declared Mrs. Monica Kamran as elected in terms of Rule 92. She produced copy of application dated 20-3-1985 addressed to the member Election Commission or Pakistan by her. Mr. Khalid Ishaq objected on the ground that it has been produced from the record of Election Commission. Objection is overruled on the grounds firstly, that application is ordinary carbon copy produced from the record of petitioner probably and secondly, returning officer has admitted receipt of this application in the office of Election Commission. First application sent by her to the member Election Commission is dated 13-3-1985. This application was filed on the same day when election was held and clearly indicates that petitioner was under the impression that election was held according to the procedure applicable for seats reserved for non-Muslims. Learned member on this application sent for comments, which were given by the returning officer and produced by him before the tribunal during his evidence. According to these comments which are dated 13-3-1985 votes were invalidated under Rule 64(3)(a). Petitioner has also produced photo copy of result of the count, which is on form XXII in which formula for counting of votes as envisaged in Rule 66 is mentioned.
11. ' Petitioner also examined her' election agent P.K. Shahani who deposed that he objected that two ballot papers bearing tick marks were valid but the returning officer overruled his objection and declared Mrs. Monica as Winner in the lots in terms of Rule 92. He also stated that he adopted other facts on grounds stated in the election petition as part of his affidavit but this witness was not cross-examined at all by Mr. Khalid Ishaq, which shows that his statement was not called in question.
12. ' Elected member in her affidavit of evidence has claimed that lot was drawn in terms of rule 66(5) and having won in the lot, she was rightly declared as elected. Mr. M.H. Zaidi, Provincial Election Commissioner, Sind, deposed that he was returning officer and tendered in evidence his written statement, which is duly verified on solemn affirmation with fresh full reiteration. Stand taken therein is that election was held under Rules 64 and 66 and Mrs. Monica Kamran was declared elected in the lot as per rules 66 and 92 and further manner of drawing lot was consented to by the parties including election agent of the petitioner. In the evidence he produced ballot papers Exh.
13. R/4 to R/9. He further stated that Mr. P.K. Shahani drew lot and the first chit picked out contained name of Mrs. Monica Kamran Dost, who was declared elected. He further stated that he announced the procedure that the first name picked out would be winner and name on the second slip would be declared as excluded. This was consented to by the parteis and nobody raised objection to the manner of drawing lots. On the question of consent, it can be said that consent was not obtained in writing and there is no evidence in support of that contention that it was done even orally. Consent was not even suggested to the petitioner and her election agent in their cross-examination, Consent is not mentioned in the sheet of form XXII, which is result of the count. Consent is not mentioned in the comments of the returning officer made on the same day of election i.e. 13-3- 1985 on the first application of petitioner addressed to the member Election Commission. Had this assertion about consent been correct, it would have manifested itself in the documents mentioned above which were prepared at the relevant time or immediately after that. Story about consent appears to be a after thought. In fact my assessment of evidence is that the Returning Officer had followed Chapter III of the rules, which is the correct procedure but in the end perhaps inadvertently made a mistake by announcing result of the lot, in the manner which was not permitted by rule 66(5) and then attempted to take refuge firstly behind rule 92 of Chapter IV, which is not applicable and finally, adopted defence o consent of parties to the manner of drawing of lots, which also could not be proved.
14. ' In this context Mr. Imam Ali Kazi, counsel for petitioner submitted that perusal of rules 65 and 66 in Chapter III clearly shows without any ambiguity that voting has to be done and lot has to be drawn in that particular manner prescribed therein firmly based on the process of elimination. It was further urged that if law requires anything to be done in a particular form then that has to be done in that form and no other form. In support of the proposition reliance has been placed on the cases of (1) Chairman, Evacuee Trust Property, Lahore v. Muhammad Din and another PLD 1971 Lah. 217,
(2) Ghulam Abbas v. Additional Commissioner and Election Tribunal Khairpur Mirs and others PLD 1965 Kar. 625, (3) E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536 and (4) Electric Equipment Manufacturing Co. v. Government of Punjab and another PLD 1979 Lah.
416. From the aforementioned rulings, the first two and the last expound maxim "Expressio unius alterius exclusio" which means that express mention of one thing implies exclusion of another. In the case of Evans mentioned above at No,3, maxim "Expressum facit cessare taciturn" is highlighted, which means, that if a doing of a particular thing is made lawful doing of something in conflict of that would be unlawful.
15. ' On the other hand Mr. Khalid Ishaq counsel for elected member argued that if a rule is made but no penalty is provided for it's non-compliance then such rule would be treated as directory in nature and not mandatory in spite of the fact that word "shall" is used therein and it's non- compliance would amount to irregularity but not an illegality. In support of the proposition, reliance is placed on a string of authorities namely (1) Major Shujait Ali v. Mst. Suraya Begum PLD 1978 SC (A J & K) 118; (2) Dr. Habibur Rehman v. West Pakistan Public Service Commission and others PLD 1973 SC 144; (3) Niaz Muhammad Khan v. Fazal Raqib PLD 1974 SC 134; (4) Atta Muhammad Qureshi v. Settlement 'Commissioner and others PLD 1971 SC 61 and (5) Munawar Khan v. Jaffar All and others 1982 CLC 1060.
16. ' In the case of Shujait Ali mentioned at No,1 above, Supreme Court of Azad Jammu and Kashmir has held that it is too wide a proposition to say that failure to follow prescribed mode must in every case render exercise of jurisdiction invalid and illegal. Emphasis was placed on the elements essential for foundation of jurisdiction which are distinguishable from mode in which jurisdiction is to be exercised. The case related to the interpretation of provisions of Mirpur Town Allotment of Land Act of 1966. In the case at No,2 mentioned above Dr. Habibur Rahman filed Constitutional petitions in the High Court contending that Public Service Commission acted without lawful authority in departing from instructions by the Government relating to the method of evaluation of merits of candidates but the petitions were dismissed and in appeals Supreme Court of Pakistan held that even if there has been a departure, the respondents had no control over the method of assessm ent adopted by the Commission evaluating their merit and it would work undue hardship and injustice to them if recommendations of Commission were to be set at naught owing to the failure of Commission to perform its duty properly. In such circumstances the rule had to be regarded as directory as its non-observance could not by itself, invalidate the recommendation of Commission. In the case of Niaz Muhammad Khan mentioned at No,3 above the Supreme Court has held that if order requiring cash deposit or security as contemplated under section 23(1) of N.- W.F.P. Pre-emption Act, 1950 is not complied with then result would be rejection of plaint and in such circumstances the provision would be deemed as mandatory because disobedience entails serious legal consequence amounting to the invalidity of the act done in disobedience of provision.
17. In the case of Atta Muhammad Qureshi mentioned, at No,9 above it is held that before considering the question of neglect of requirement, the test is to see whether the enactment is absolute or directory. Last case mentioned at No,5 above is not relevant because it relates to Punjab Local Council (Election) Rules, 1969 and lot was drawn by tossing of coin with consent of parties.
18. I entirely agree with the contention of Mr. Khalid Ishaq and legal position enunciated in the case law cited by him in support thereof. Each case has to be considered separately in view of its peculiar fact and the law governing it. It is to be seen whether enactment is absolut or directory and non-compliance of requirement would entail any lega consequence or not. In the instant case, my finding is that requiremen of Rule 66(5) is mandatory for the reason very briefly stated even at the cost of repetition that President's (Post-Proclamation) Order 5 o 1977 as subsequently amended mandatorily requires holding of election in respect of unfilled seats reserved for minority to be filled b non-Muslim women on the basis of proportional representation by means of single transferable vote. To achieve this object and for the manne in which this special kind of election is to be held, elaborate procedure is already prescribed in Chapter III of the said rules, which is alread in use for election to the seats reserved for women. Mode of drawing lot in rule 66(5) is specifically prescribed therein based on process of elimination which is integral part of proportional representation by means of single transferable vote. Now if this procedure is not followed, it would amount to violation of law as contemplated under section 70(a) of the Representation of People Act, 1976, which provides that election as a whole shall be declared void, if tribunal is satisfied that there has been failure of any person to comply with provisions of this Act on rules. So consequence for non-compliance is provided by way of remedy in the shape of declaration of election as void.
19. Consequently I answer issues Nos. 2,3 and 4 by holding that lot was not drawn in accordance with law, violation of mandatory provision of rule cannot be approved on the ground that the petitioner raised no objection or he is estopped from challenging the same on the ground of consent.
20. ' The last issue is whether the petition is maintainable without disclosure of any ground enumerated in section 68 of the said Act. In, this context argument of Mr. Khalid Ishaq was that prayer in the petition is that election of elected member be declared void and in her place petitioner be declared elected and such relief is contemplated under section 68 of the said Act, which is not available to the petitioner for the reason that in the instant case, election is called in question not on the grounds mentioned in section 68 but on the ground that an illegal act was committed by not following rule 66 in totality. Perusal of section 68 of the Act shows that election of returned candidate can be declared void on the grounds that his nomination was invalid or he was not qualified to be elected or his election was procured or induced by any corrupt or illegal practice. This section does not provide but section 70 of the said Act clearly provides that whole election can be declared void if there is failure of any person to comply with provisions of this Act or rules. Petitioner has also prayed in the memorandum of petition for any other relief that may be considered as just and fair. So in this case only relief which can be allowed is contemplated by section 70 of the Act, which is declaration of the whole election as void. My finding on this issue is that petition is maintainable.
21. For the facts and reasons mentioned above I hold that the Returning Officer has failed to comply with mandatory provisions of rule 66 of the said rules in totality as such I declare the whole election as void and further direct that fresh election be held at the earliest following procedure laid down in Chapter III of the said rules, which relates to the elections to the seats reserved for women.
22. Election set aside.