JUDGMENT IHSAN-UL-HAQ CHAUDHARY, J. - The petitioner Was one of the candidates, who filed nomination papers in 1993 general elections for Provincial Assembly seat constituency No. PP-90 Gujranwala-XIV. Respondents No. I6 and 17 raised objections, that the petitioner is not a e person qualified to contest the election in view of provisions of Articles 61 and 62 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be called as Constitution of 1973). It was alleged that he was one of the Directors of defunct Pasoan Cooperative Finance Corporation Limited and in view of Section 18 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 there was presumption that the property held by a Director had been acquired by misappropriating the funds of the society. The Returning Officer rejected the objections vide order dated 2.9.1993 and accepted the nomination papers of the petitioner. This order was challenged by respondents No. I6 and 17 through Election Appeals No. 18 of 1993 and 40 of 1993. The appeals came up for hearing before Election Tribunal consisting of three learned Judges of this Court constituted by the Chief Electioin Commissioner of Pakistan under Section 14(5) of the Representation of the People Act, 1976 (hereinafter to be referred as Act of 1976), which held that the petitioner being Directo/ of the Co-opearative Society could not be termed as an Ameen etc. The resul. Was that the appeals were accepted and nomination papers Of the petitioner were ^ejected. The petitioner aggrieved by the decision filed W.P.Nos.12447/93 and 12448/93, which were dismissed by a Division Bench' of this Court in limine. The petitioner thereafter filed CPSLA Nos.452 and 453 of 1993 in the Hon'ble Supreme Court of Pakistan. The same came up for hearing on 2nd and 3rd of October, 1993 and the petitions were dismissed vide judgment dated 3.10.1993 and leave was refused. Thereafter elections were held on 9.10.1993.
The petitioner has filed this petition praying therein that the election be declared as void and fresh election be directed to be held. The petition was initially entrusted to my learned brother Rashid Aziz Khan, J. And when my learned brother became Member of the Election Commission of Pakistan the learned Chief. Election Commissioner constituted this Tribunal and transferred this election petition for trial vide order dated 9.12.1996. In the meanwhile, the Provincial Assembly elected as a result of general elections held on 9.10.1993 was dissolved, therefore, the parties were asked to address arguments as to the competency of the petition.
2. The learned counsel for the petitioner argued that the petitioner has been branded as 'Ghair Ameen' for all times to come, therefore, he would insist that the petition be decided on merits. It is added that two CPSLAs filed by the petitioner were dismissed by the Hon'ble Supreme Court and one of the considerations was that the petitioner can pursue his remedy before the Election Tribunal. The judgment is reported as Babu Muhammad Munir Vs, Appellate Tribunal of the Election Commission and others (1993 SCM R 2348). It is argued that the election has been challenged on the ground of corrupt practices, therefore, the petition has to be decided on merits irrespective of the fact that the assembly stands dissolved. The learned counsel in support of his arguments placed reliance on Habibul Wahab Alkhairi Vs. Sheikh Rashid Ahmad and 5 others (PLD 1989 SC 760).
3. On the other hand, Syed Jamshed Ali, learned Advocate for the respondent No. 1 argued that this Tribunal enjoyed limited powers and it can only grant one of the declarations as provided under Section 55(2) of the Act of 1976 read with Sections 67 and 70. It was added that the Act 1976 catered for two types of Tribunals; one under Section 14(5) to hear appeals against the rejection or acceptance of the nomination papers of a candidate. While the other Ti-ibunal is constituted under Section 57 of the Act 1976 to adjudicate the election petitions whereby the election, had been challenged. ^ Therefore, both the Tribunals are constituted for quite different purposes and at different stages of election process.
It was argued that the election petition was not competent as the petitioner was not one of the candidates, who contested the elections and in any case same- had become- infructuous with the dissolution of the Provincial Assembly as the petitioner has only pleaded that his nomination papers were wrongly rejected.
4. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions c of law and precedents. The perusal of the election petition reveals that the petitioner has challenged from beginning to end rejection of his nomination papers on the ground that he was disqualified in view of the provisions of Articles 61 and 62 of the Constitution of 1973 to contest elections. There is not a word about the conduct Of the elections and naturally because petitioner was not one of the candidates, who went to the polls while prayer clause of the election petition reads as unden- "For reasons mentioned above it is respectfully submitted that the election to PP-90 Gujranwala held on 9-10-93 be declared as a whole to be void and fresh elections be directed to be held to elect a candidate from the constituency in accordance with law. It is further submitted that costs of this petition may also kindly be awarded."'
The assembly, which came into existence as a result of 1993 elections, having been dissolved by the Governor of Punjab, therefore, now above relief cannot be given to petitioner.
5. This is not all. The learned counsel for the respondent No. 1 has rightly pointed out that this is a Tribunal of limited jurisdiction and according to Section 55(2) of Act 1976, petitioner can claim in an election petition any of the following dedarations:-
(a) that the election of the returned candidate is void; \
(b) that the election of the returned candidate is void and that the petitioner or some other candidate has been duly elected; or The petitioner has prayed that the election was void. The declaration which now the petitioner wants after the petition has become infructuous cannot be legally granted. Moreover, the liability of the petitioner viz Pasban Cooperative Society is to be adjudicated in other forum of exclusive jurisdiction, therefore, the declaration now sought cannot be legally given by this Tribunal. In other words the petitioner is asking for the relief, which is C.C.537 beyond the scope of Sections 55(2), 67 and 70 of the Act 1976, therefore, cannot be granted, this being a Tribunal of limited jurisdiction and not a Court of general jurisdiction, This is not all. Whether the petitioner has incurred any liability as Director of the Pasban' Cooperative Society is primarily a question, which is to be decided under the Undesirable Cooperative Societies (Dissolution) Act and not in an election petition? The other ground was that the election is liable to be set aside on the ground of corrupt practices. This ground has not been pleaded in the election petition, therefore, this point cannot be raised at this stage. The election petition only deals with the rejection of the nomination papers of the petitioner and question of qualification of the petitioner , to contest the same. A ground not pleaded in the election petition cannot be allowed to be canvassed.
6. It is clear from the scheme of the Act 1976 that it provides for Election Tribunals at two junctures of election process. The first one is constituted under Section 14(5) to hear the appeals against the decision of Returning Officer accepting or rejecting nomination papers. This Tribunal is to decide the appeals in a summaiy manner and within the specified period otherwise the appeals are to be deemed to have been rejected. Thereafter, the election process continues up to declaration of the result. Then comes into play Chapter VII dealing with the election disputes. The election can be challenged only by election petition by a candidate under the provisions of Section 52 of Act, 1976, which reads as under:- "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)"
Section 53 deals with the presentation while Section 55 deals with the contents. The other important provision is Section 54, which deals with the parties to the petition and provides that the petitioner shall join all contesting respondents and any other candidate against whom any allegation of any corrupt or illegal practice is made as respondent. Section 56 provides for procedure on the receipt of the election petition by the Commissioner and then comes Section 57 which requires the Commissioner to appoint Election Tribunals for the trial of election petitions under this Act. Section 58 deals with the powers of transfer. The other relevant provision is contained in Section 64(1), which provides that Tribunal shall have all the powers of Civil Court trying a suit under Civil Procedure Code of 1908. It is, therefore, dear from Section 52 of Act, 1976 that election could be challenged through an election petition by a candidate.
The learned counsel for the petitioner when confronted with this legal position argued that this election petition has been filed in pursuance of the observation of the Hon'ble Supreme Court and in this behalf relied on the following portion of the judgment:- "4. We would not like to express our opinion on the question, whether there was any material before the Tribunal to record the above finding as the petitioner may have to agitate the above point in the form of an elect!' >n petition after the election."
The judgment of the Hon'ble Supreme Court when read as-whole then it becomes patently clear that CPSLAs of the petitioners were dismissed and leave was refused on merits. In this behalf I may refer to the following portion of the judgment of the Hon'ble Supreme Court: - "4. Without relying upon the above judgment, we are of the view that these are not fit cases for grant of leave inter alia for the reason that the Tribunal found that the petitioner was not qualified to be elected or chosen as he did not possess the qualification contained in clause (f) of Article 62 of the Constitution read with clause (f) of Section 99 of the Act being Ghair Ameen. It is an admitted position that the society, of which the petitioner was one of the Directors, defaulted in repaying the deposits of the depositors. However, Mr.Muhammad Akram Sheikh has invited out attention to some of the papers filed through Paper Book No. II today to show, that factually the Chairman of the Society had submitted a . Scheme to the Cooperative Judge under the Act for refunding of the deposits by disposing of the various assets mentioned in the application, which has been approved on 5.7.1993 by the learned Cooperative Judge."
7. The remedy of appeal against 'the acceptance of nomination papers was availed while respondents No. I6 and 17 filed appeals under Section 14 of the Act, 1976, which were accepted and nomination papers of petitioner were rejected, therefore, same matter could not be agitated once again through election petition under Section 52 by a Tribunal under Section 57 of the Act, 1976. The scope of the two Tribunals is quite distinct In short, the Tribunal constituted under Section 14(5) deals with the appeals against the orders of Returning Officers rejecting or accepting the nomination papers. This way it covers pre-polling stage up to acceptance or rejection of nomination papers while the Tribunal under Section 57 is constituted for adjudication of election disputes.
The leave has been refused by the Hon'ble Supreme Court on merits and decision of the Election Tribunal consisted of three learned Judges of this Court confirmed, therefore, the same matter cannot be allowed to be agitated through an election petition under Section 52 of Act, 1976.
8. The matter may be considered from yet another angle that the election of the returned candidate in some cases could be set aside being void on the ground that his nomination was invalid or he was not qualified or was disqualified from being elected as a member in view of the provisions of Section 68 of Act, 1976. This would, of coarse, be subject to any decision by a Tribunal constituted under Section 1 0^ of Act, 1976. But conversely the petitioner cannot urge it as a ground (hat he was qualified to contest the election and pray for setting aside the election of returned candidate as void. This ground is not available in an election petition as is clear from provisions of Sections 67, 68, 69 and 70 of Act, 1976.
9. The upshot of the above discussion is that this election petition is dismissed both as infructuous as well as incompetent.