IHSANUL HAQ CHAUDHARY, J.--Through this Constitutional petition, the petitioner wants redress of certain grievances against the respondents in respect of bye-election to NA-120, Khanewal. The main grievances of the petitioner are: (i)Firstly, respondent No.l has illegally changed the scheme of the Polling Staff in violation of the provisions of Section 9(2) of the Representation of the People Act, 1976; (ii)Secondly, that respondents Nos. 2 and 3 are not issuing National Identity Cards to the voters of this constituency in order to deprive them of their right of vote and rig the elections at the last moment; and (iii)Thirdly, that in spite of the repeated complaints, respondent No.4 has failed .To perform its constitutional obligation to hold fair, impartial and just elections.
2.The petition came up for hearing before us on 18-2-1989 when pre-admission notices were issued to the respondents for 19-2-1989. We heard the parties at some length and decided to admit the petition for regular hearing. The same was adjourned to 20th of February, 1989, on the request of the respondents, who wanted adjournment for one day for filing written statements and addressing full-fledged arguments. Needless to add that only respondent No.l filed the written statement on 20-2-1989. We announced the operative portion of the order on 20-2-1989 and now proceed to record the reasons therefor.
3.We have heard the learned counsel for the petitioner, who has reiterated the points already raised by him at the limine stage. On the other hand, respondent No.l admitted that he has changed the. Election scheme on 1-2-1989, but his plea was that it was done on the instructions received by him from the Officiating District Judge, vide memo dated 11-2-1989. Now, before proceeding any further, we would like to .Refer to the provisions of section 9(1) and (2) of the Representation of the People Act, 1976, which reads as under:- "9. Presidin Officers and Pollin Officers..--(1) A Returning Officer shal appoint or each polling station a Presiding Officer and such number of Assistant Presiding Officers and Polling Officers to assist the Presiding Officer as the Returning Officer may consider necessary.
Provided that a person who is, or has at any time been, in the employment of any candidate shall not be appointed as a Presiding Officer, Assistant Presiding Officer or Polling Officer.
(2)A list of such Presiding Officers and Polling Officers shall be submitted to the (District Returning Officer) at least fifteen days before the polling day for its approval and no change in the personnel shall be made except with the approval of the Commission." The other relevant provisions are contained in Articles 218 and 219 of the Constitution of the Islamic Republic of Pakistan. These are reproduced below:- " Art. 218. Election Commission.--(1) For the purpose of each general election to the National Assembly and to a Provincial Assembly, an Election Commission shall be constituted in accordance with this Article.
(2)The Election Commission shall consist of-- (a)the Commissioner, who shall be Chairman of the Commission; and (b)two members, each of whom shall be a Judge of a High Court, appointed by the President after-consultation with the Chief Justice of the High Court concerned and with the Commissioner.
(3) It shall be the duty of the Election Commission constituted in relation to an election to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.
Art. 219. Duties of Commissioner.--The Commissioner shall be charged with the duty of- (a)preparing electoral rolls for election to the National Assembly and the Provincial Assemblies, and revising such rolls annually; (b)organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly; and (c)appointing Election Tribunals."
4. Now, we refer to the memo of the District Returning Officer conveyed to respondent No.l. The same is attached as annexure 'A' with the written statement of respondent No.l and reads as under:- "I hereby convey to you telephonic message received from Ch. Abdul Aziz Sahib,. TheProvincial Election Commissioner for guidance and compliance. He has told me that the Election Commission of Pakistan has desired that the Polling Personnel be not taken from the Provincial Departments as a whole and instead the polling personnel, to be employed on the day of election, be taken, as far as possible, from both the Provincial as well as Central Departments on equal basis. Needless to emphasize that this policy would be in the fitness of things and would remove doubts/ apprehensions from the minds of the contesting candidates. This would also display fairness on the part of the election authority. 1n the light of the above direction, you are advised to revise the list of polling personnel in accordance with the policy of the Election Commission of Pakistan. You are also advised. To contact the Provincial Election Commissioner on telephone and sort out the detail of this new task.
(AKHTAR MAHMOOD KHAN)
OFFICIATING DISTRICT JUDGE/ DISTRICT RETURNING OFFICER, MULTAN."
The allegations of the petitioner are that respondent No.l is not acting impartially and even earlier he prepared the wrong list of the candidates wherein the 'name of the petitioner was not mentioned alphabetically but that order was set aside by respondent No.4. These allegations are beside the point. At the moment we are only concerned with the scheme of the election prepared by respondent No.l and approved by District Returning Officer and to see as to whether it could be legally modified and, if so, at what stage and in what manner?
5. It is admitted that the original scheme of the election staff was prepared by respondent No.l on 2-2-1989 and the same was approved by the District Returning Officer on 4th of February, 1989.
6. The preparation of the list of the election staff, its approva and modification has been dealt with by section 9 of the Representation of the People Act, 1976. According to this section, the following steps are to be taken by the Returning Officer:- (1)The Returning Officer appoints Presiding Officers, Assistant Presiding Officers and Polling Officers for each polling station; A (2)The Returning Officer has to submit the list so prepared t the District Returning Officer for his approval at least 1 days before the polling day; and (3)No change in the personnel can be made except with the approval of the Commission.
7.Now coming to the case in hand, respondent No.l prepared the list of the polling staff from the employees of the Federal, Government. Provincial Government as well as the Statutory Bodies etc. The list was submitted to the District Returning Officer for approval, which wasaccorded on 4th of February, 1989. Thereafter, the appointment letters were said to have been delivered and necessary training imparted to the staff. This way, the chapter as to the appointments of Polling Staff for the bye-election was closed.
8. The trouble started when respondent No.1 received memo dated 11th February, 1989, reproduced above, from the Officiating District Judge, Multan. Respondent No.l, who, after receipt of the memo, proceeded to change, rather substitute 467 of the members of election staff. Admittedly, respondent No.l, after making the so-called changes, did not seek approval of the Commission. The absence of the Commission's approval renders the changed list invalid.
9.It is admitted position both by respondent No.l and respondent No.4 that 467 officials were changed from the approve,' list including 40 Presiding Officers, 140 Assistant Presiding Officers and 287 Polling Officers but without the approval of the Election Commission. Rather, it was not possible because we have been informed by the learned counsel for respondent No.4 that the Chief Election Commissioner, at the relevant time, was away to perform 'Umra'.
10. Respondent No.l as well as respondent No.4 have tried to justify this action by referring to the provisions of section 104 of the Representation of the People Act, 1976. The same reads as under:- "104. Directions of Commission in certain matters.--Anything required to be done or carrying out the purpose of this Act, for which no provision or no sufficient provision exists shall be done by such authority and in such manner as the Commission may direct."
It is clear from the bare reading of the section that these are residuary and inherent powers and can be pressed into service only in the absence of provision in the Act to cope with the situation.
This ispara materia to section 151, C . P . C . It is established law that in presence of a specific provision dealing with a point, the Court cannot proceed under section 151 of the C.P.C.
11. There is yet another aspect of the matter. It has been pointed out by the learned Additional Advocate--General that the organization and conduct of bye-elections is the responsibility of the Chief Election Commissioner and not of the Election Commission of Pakistan. He has referred to Article 219(b) of the Constitution of Pakistan, which we have reproduced in the earlier part of this judgment.
12. Respondent No.l prepared the list of the election staff in accordance with the prevalent policy of the Election Commission. The list was approved. This way, it was a past and closed transaction, which should not have been affected by ,the so-called subsequent. 'desire' communicated to respondent No.l. It was argued by respondent No.l that these instructions covered the approval. The argument is! Misconceived legally as well as factually because the instructions merely embodied the policy and guidelines prescribed for preparation of the list of the election staff., Therefore, the same cannot be equated with' the approval of the list. The list could not have been approved before its preparation and scrutiny. It amounts to putting cart before he horse. There is no merit in the argument. Respondent No.l his reply has clearly admitted that after the announcement of bye election, the polling personnel were appointed and orders regarding their appointments were issued. The said list was final and should have been kept intact.
13. Now, we take up the legal position of the memo. Instructions. It is clear from the memo. Dated 11th of February, 1989, attached as Anneuxre 'A' with the written statement of respondent No.l that the Election Commission of Pakistan has 'desired' that the polling personnel be take:: as far as possible from both the Provincial as well as Central Departments on equal basis. The instructions were purely permissive and not mandatory in nature. There is nothing on record to show that respondent No.l was asked to change his list accordingly. The memo. Annexure 'A' consists of two parts, one embodying the, 'desire' of the Election Commission of Pakistan while the other portion' contained the desire of either Mr. Abdul Aziz, the Provincial Election' Commissioner or of the so- called District Returning Officer, wherein it has lime-lighted the reasons and also advised respondent No.1 to revise the list. The latter part consists of paras. 2 and I. They Provincial Election Commissioner does not figure anywhere in the: hierarchy of the legal functionaries charged with the duties of I G conducting elections as is clear from Articles 218 and 219 of the Constitution of the Islamic Republic of Pakistan. Therefore, an instructions issued by him to respondent No.l are without lawful a1ithurity and of no legal effect. Similarly, the author of the letter, was not the District Returning Officer. Tie was only officiating at District and Sessions Judge in the temporary absence of the permanent, incumbent of the office, therefore, he could not have assumed the role of the District Returning Officer without there being any specific; order of his appointment and as such, he had no authority to issue or convey the said instructions to respondent No.l. Similarly, Mr. Rahim Nawaz Khan Durrani. The Deputy Provincial Election Commissioner (HQ), Lahore, who is respondent No.l, after receipt of l memo. Dated 11th of February, '993. Contacted on telephone could not authorise him to revise the list.
14. Respondents Nos.l and 4 have failed to place on record the copy of the instructions issued by respondent No.4. When we asked for the same, we were informed that these instructions were oral.
Therefore, it is riot possible to determine exactly as to what were the true contents and scope of those instructions. Even otherwise the bye--elections and conducted the Chief: Election commissioner and nor by the election commission of Pakistan There is a clear distinction, between provisions of Articles 2181 and 219 of theinstitution of the Islamic RepublicPakistan. Article: 218 deals with the constitution of the Commission and its functions,' while Article 219 deals with the duties of the Chief Election Commissioner. Therefore, .For bye-elections. The Commission could not have issued any instructions and the question of following those did not arise.
15. The so-called instructions are also liable to be ignored for the: same having teen issued orally The Commission not expected communicate is decisions verbally to 'he concerned staff. The "instructions" out to have be expressed in writing Moreover, the Commission, at the most expressed a `desire', which was converted into "instructions" by the ingenuity of the Officiating District and Sessions Judge. Furthermore, respondent No.l did not even comply with the same in letter and spirit as is clear from the appointments of the Presiding Officers, who were to control polling stations. This shift in the polling staff was not justified legally and generated doubts amongst the electorate. The position of the Presiding officers is given below:- Total number of Presiding OfficersFrom Central From Provincial Govt. Deptts Govt. Deptts.
Original list54103 Disputed list9463 This way, respondent No.l instead of striking the balance in accordance with the memo. Dated 11th February, 1989, proceeded toil maintain disparity. It is another matter that this time the scale title 'd towards the other side.
16. The respondents, in fact, did not dispute the legal proposition but tried to save the action on the ground of purely administrative convenience. Respondent No.l argued that now it would be quite difficult to appoint the election staff in accordance with the original list. On the other hand, learned counsel for the petitioner argued that if respondent No.l could contact various departments, obtain the lists of names, pick up the officials, issue their appointment orders and impart training to them in five days' time, then what was the difficulty in issuing appointment letters to only 467 officials in one or two days. Agreeing with the said submissions, we hold that there is no ground to uphold the illegal action of respondent No.l in changing the finally approved list. When law provides a thing to be, done in a particular manner, then it ought to be done in that manner or not at all. This time- honoured principle was flagrantly violated by respondent No.l, who tamely followed the instructions contained in the illegal memorandum referred to above.
17. We are not in a position, of course, to accept the allegations of the petitioner as to express mala fides on the part of respondent No.l in undoing the approved list of election staff. However, his act in changing the list was arbitrary and could be termed as mala fidin law. We may observe that respondent No.l should not have only acted fairly and used negative language t demonstrate imperativeness of the provision. The expression "no change in personnel shall be made, except with the approval of the Chief Election Commissioner" is clearly a mandatory provision of law mean to secure the finality of the approved list. A limited scope was left for bringing about some change necessitated either impartially but his acts should have also vividly l reflected the element of fairness.
18. We have given our anxious considerations as to the true scope of subsection (2) of section 9 of the Representation of the People Act, 1976, specially the last part as to the change of the approved list. The Legislature has consciously by non-availability of the concerned officials or for some other valid reason like illness, death etc. In this case. The total number of the officials appointed t conduct the election was 1804, out of which 467 were removed/replaced by respondent No.l. They were neither disqualified to perform their functions according to the provision of section 9 ibid, nor there was anything necessitating their exclusion/ replacement. It is to be! Remembered that the District Returning Officer is the official, who has been made mainly responsible for managing the election-show. The manner in which respondent No.l has proceeded, if permitted then the District Returning Officer can always be by-passed. Respondent No.l has to have the list approved either from the District Returning Officer or the Chief Election Commissioner but he in his wisdom did not deem it proper to get the blessings of either of the two as far as the fresh list was concerned. The same, therefore, cannot be allowed to hold the field. The change envisaged was to be initiated at the bottom level by the Returning Officer himself keeping in view his genuine requirements for conducting the elections. But in this case, the change was not at his instance. He merely did the biddings of others without caring to observe the legal requirements. At any rate, the changed list could not be given effect to except with the approval of the Election Commission.
19. The other grievance of the petitioner was that a large number of National Identity Cards had been handed over by respondent No.3 to unauthorised person and that respondents Nos.2 and 3 were with--holding a large number of identity cards to rig the elections. We examined Mr. Shafqat Chathha, Assistant Registrar, Khanewal. He stated that 257 cards, which were prepared during the general elections were lying undistributed and that the same were handed over to one Fayyaz Chathha, a social worker, for distribution to the concer-ed persons. He submitted that he handed over the same to the ,- ,.Id person with the approval of respondent No.3 and after preparing a list.
However, when the public complained that they were not getting identity cards, he wrote the letter (Annexure 'A' with the petition) to the said Fayyaz Chathha, for return of the identity cards. The said Fayyaz Chathha accordingly returned 165 cards and stated that the remaining 92 cards had been distributed by him. Thereafter, we recorded the statement of Muhammad Akbar, respondent No.3, District Registrar, who stated that since the cards were liable to be cancelled after 90 days, therefore, he thought of getting the same distributed. He accepted the responsibility of permitting Shafqat Chathha for handing over the cards to Fayyaz Chathha, an unauthorised person.
20. Now coming to the next allegation, it was stated by respondent No.2 that 18282 cards were lying ready for distribution, which were prepared during the period from 30-1-1989 to 11-2-1989, while respondent No.3 stated that 11000 cards were lying ready with him, which were prepared during the period from 16-1-1989 to 2-2-1989. The petitioner was alleging mala fides, while respondents Nos.2 and 3 were pleading efficient performance of their duty in order to enable the maximum number of the electorate to .Cast their votes. The motive attributed by the petitioner in the preparation of the large number of identity cards to rig the elections, would really be disproved if the cards were delivered to the concerned persons. The learned counsel for respondents Nos.2 and 3 made an offer to the learned counsel for the petitioner that he could suggest any mode of distribution which would satisfy him as to the bona fides of his clients.
21. We questioned as to what would be re-action of the parties if the cards were distributed under the supervision of the Civil Judges? Would this satisfy them or not? The learned counsel for respondents Nos. 2 and 3 did not hesitate for a moment to accept, rather welcomed the suggestion from the Bench. On the other hand, the learned counsel for the petitioner still felt apprehensive and prayed that all the identity cards issued should be scrutinised and further distribution should be made through the Returning Officer. Respondent No.l took up the stand that time left was too short and it was not possible for him to scrutinise the cards already issued or to undertake the distribution of about 30000 cards. The learned counsel for the petitioner when faced with this situation, ultimately, stated that in case the fresh cards were distributed through mobile teams supervised by the Civil Judges, then he would not press his prayer as to the distribution of cards through the Returning Officer. Respondents Nos.l and 4 also had no objection to this. They claimed that their sole object was to hold the elections in a fair and impartial manner.
22. The result was that we directed that the cards lying ready with respondents Nos.2 and 3 should be distributed through the mobile teams each supervised by a Civil Judge. The Civil Judges were to be nominated by the District & Sessions Judge, Multan and Khanewal, districts. We are not ordering any penal action against respondent No.3 but direct the department to initiate disciplinary proceedings against him as well as Shafqat Chathha for delivering the identity cards to unauthorised person.
23. Resultantly, we accept this petition as per the operative order already issued. The parties are, however, left to bear their own costs.