1. ZAFFAR HUSSAIN MIRZA, J.--This is an appeal against an order of the Chief Election Commissioner dated 30th April, 1985, dismissing the election petition f1.Ed by the present appellant in respect of National Assembly Constituency N.A. Mansehra-I, under subsection
(1) of section 56 of the Representation of the People Act, 1976 (hereinafter referred to as the Act) for non-compliance of sections 52, 53 and 54 of the said Act. The appellant who appears in person submits that this appeal is competent under subsection (3) of section 67 of the said Act. As an appeal under the said provisions of law can be filed within 30 days of the announcement of the decision of the Tribunal, the office has raised an objection that the petition is barred by 140 days.
2. We, therefore, called upon the appellant to explain the delay and in reply he submitted that he has made an application for condonation of delay in which he has explained the circumstances, the substance of which is that he had been carrying on correspondence with the office of the Chief Election Commissioner for ascertaining the decision of his election petition to which finally he was informed by letter .Dated 10th June, 1985, that after an interview of the appellant with the Chief Election Commissioner, his case was re-examined, and the Chief Election Commissioner has dismissed the same under section 56 (1) of the Act. This letter also states that the decision had already been conveyed to . The appellant by means of Commission's' letter dated 30th April, 1985 which holds good. We need not pursue the question of limitation any further, as we have come to the conclusion that the appeal filed by the appellant is not competent in law.
3. The facts are that the appellant had filed his nomination for the aforesaid constituency which was scrutinized by the Returning Officer and was rejected by him vide his order dated 21st January, 1985, on the following grounds:- "(i)that the names of three proposers were not 'borne by the electoral roll of village Tanda, situate in con0tituency No. N.A. 15; (ii)that some of the proposers had not given their National Identity Card numbers though they were required to do so, as is clear from the nomination form; and (iii)that the nomination was not made on the printed form, required to be obtained from the office of Returning Officer on payment of requisite fee."
4. Being aggrieved the appellant filed an appeal under subsection (5) of section 14 of the Act which was heard by a learned Judge of the Peshawar Nigh Court at Abbottabad and dismissed by order dated 23rd January, 1985, holding that the nomination paper of the appellant suffered from serious deficiency which was not rectified by him though opportunity was afforded to him. Thereafter the election was held between the remaining validly nominated candidates in respect of the constituency in question. On 20th April, 1985, the appellant submitted an application which he calls his election petition (copy of which is at page 37 of the printed record) in which he sought to challenge the election in respect of the constituency and prayed for a fresh election to be held.
5. The relevant sections of the Act which require consideration in this case may be set out as -under:- "Section 52. Election petition.- (1) No election shall be called in question except by an election petition made by a candidate for that election (hereafter in this Chapter referred to as the petitioner)- Proviso omitted.
(2) An election petition shall be presented to the Commissioner within forty-five days of the publication in the official Gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or Sub-Treasury in favour of the Commissioner, under the prescribed head of account, as security for the costs of the petition, a sum of one thousand rupees.
6. Section 53. Presentation of petition.- (1) An election petition shall be presented by a petitioner and shall be deemed to have been presented--
(a) when it is delivered in person to the Secretary to the Commission or to such other officer may be appointed by the Commission in that behalf,-
(i) by the petitioner; or
(ii) by a person authorised in writing in this behalf by the petitioner; or (b)When delivered by registered post to the Secretary to the Commission or to such other officer as aforesaid.
(2) An election petition, if sent by registered post, shall be deemed to have been presented in time if it is posted within the period specified in subsection (2) of section 52.
7. Section 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.
8. 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 VT.T1.
9. Section 56. Procedure on receipt of petition by the Commissioner.- (1) If the Commissioner finds that any provision of section 52, section 53 or section 54 has not been complied with, the petition shall be dismissed forthwith.
(2) If an election petition is not dismissed under subsection (1), the Commissioner shall refer it for trial to a Tribunal.
10. Section 67. Decision of the Tribunal.-- (1) The Tribunal may, upon the conclusion o the trial of an election petition, make an order--
(a) dismissing the petition;
(b) declaring the election of the returned candidate to be void;
(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or
(d) declaring the election as a whole to be void.
(2) Save as provided in subsection (3), the decision of a Tribunal on an election petition shall be final.
(3) Any person aggrieved by a decision of the tribunal may, within Thirty days of the announcement of the decision, appeal to the Supreme Court and the decision of the Supreme Court on such appeal shall be final.
11. Explanation.-- In this subsection, "decision of the Tribunal" shall not be deemed to include an order made by the Commission in the exercise of its Assemblies (Elections) Order, 1977."
12. Now we have perused the election petition of the appellant and it appears to us that it is not addressed to the Election Commission nor was it sent to the Secretary to the Election Commission as required by section 53 (b) of the Act, although admittedly it was sent by post. Also it appears that no compliance was made of section 54 of the Act. However, that is not the question for decision for us at this stage. A plain reading of subsection (3) of section 67 shows that appeal to this Court lies from the decision of the 'Tribunal' which term has been defined in section 2 clause
(xv) which means an Election Tribunal appointed under section 57 for trial of the election petition.
13. According to section 57 the Chief Election Commissioner has been empowered to appoint Election Tribunals as may be necessary for the trial of election petitions under this Act. The procedure provided in section 56 clearly contemplates two stages for the purpose of dealing with an election petition presented under section 52. In the first place under subsection (1) the Chief Election Commissioner, has to examine the petition and if he finds that any provisions of sections 52 to 54 has not been complied with, he is required to dismiss the same forthwith. The second stage is reached under subsection (2) only when the petition is not dismissed under subsection (1), in which case the Chief Election Commissioner is obliged to refer it for trial to a Tribunal. Reading these provisions together it is very plain that .The Chief Election Commissioner while dismissing the petition under subsection (1) of section 56 does not act as the Tribunal and hence his decision cannot be called the decision of the Tribunal. Subsection (3) of section 67 envisages an appeal from the decision of the Tribunal when the election petition is not dismissed under subsection (1) and is referred to the Election Tribunal for trial under section 56. When the appellant was confronted with this legal position, he sought to place- reliance on Article 13 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977. This provision deals with the power of the Commission to declare a poll void if in its opinion grave irregularities or violation of the provisions of the Act or the rules has been made and notify in the official Gazette calling upon the constituency to elect a member fresh. This power is exerciseable at any time before the name of the returned candidate has been published under subsection (4) of section 42 of the Act, or within 120 days of such publication. Additionally the power contemplated in Article 13 appears to us to be an extraordinary power vesting in the Commission to declare the poll held in respect of a constituency in an election if in its opinion the conditions as already mentioned exist in respect of the poll. Of particular significance is the procedure for exercise of this power as provided in Article 13, namely, "from facts apparent on the face of the record or after such summary inquiry as it deems necessary." In contrast the power of the Election Tribunal to set aside an election of a returned candidate can be exercised only after a trial as envisaged by subsection (1) of section 67.
14. The law has, however, not left the matter to doubt or ambiguity by providing in Explanation to subsection (3) of section 67 of the Act, that the "decision of the Tribunal", against which the right of appeal has been created under the said provisions, 'shall not be deemed to include an order made by the Commission in the exercise of its power under Article 13 of the Order of 1977. We may further add that Article 13 deals with irregularities and violation of law in the conduct of the poll which is only a part of the whole election process in respect of an election to a constituency for elections to the National Assembly. It is well-settled that the term election "embraces the whole procedure from the nomination of the candidates to the declaration of the result by the Returning Officer including the poll." The legislature in its wisdom, has provided an extraordinary power to the Election Commission to be exercised in a summary manner under Article 13 in order to ensure the conduct of the election justly, fairly and in accordance with law, and has, therefore, not provided for an appeal against an order of the nature passed thereunder. On the other hand the decision of an Election Tribunal is the result of the exercise of a judicial determination as the finding and definite result of examining a question. This distinction has been lucidly explained in a recent judgment of this Court in 1987 SCM R 1107, Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan and others, in the following manner:- "This fact of conclusion of the trial or concluding the trial by that order and the order conforming to what is enumerated in subsection (1) of section 67 limits the scope of the expression a "decision" as contained in subsection (3) of section 67 of the Act. The reference to Article 13 in the explanation is intelligible because it is under a deeming clause, clause (4) of Article 13, that an order passed under Article 13 has been given the character and status of an order passed by a Tribunal trying an election petition. The deeming effect of clause (4) of Article 13 has been totally avoided by another deeming clause contained in the explanation appended at the end of section 67 of the Act."
15. We have perused the copy of the election petition placed on the record by the appellant (page 37) and find that the only ground on which the appellant sought to challenge the election in respect of the constituency, was that his plea that his nomination paper was illegally rejected. There is nothing in this petition alleging any irregularity or violation of the provisions of the Act or rules in respect of the poll. Clearly, therefore, the petition does not fall within the ambit of Article 13 of Order, 1977, and accordingly it was rightly treated as an election petition under section 52 of the Act. As we have observed earlier The Chief Election Commissioner while dismissing an election petition under subsection (1) of section 56 does not act as the Tribunal nor is such order of dismissal an order within the contemplation of subsection (1) of section 67. As appeal is provided under subsection (3) of the said section only against a decision of the Tribunal, this appeal is patently incompetent.
16. In the result this appeal is dismissed as such.