1. ' MUHAMMAD YOUNUS BHATTI, (MEMBER).---We accepted the instant appeal through a short order dated 1-9-1994 and hereunder are the reasons therefor.
2. ' While accepting the Appeal No, 57/94 of Mr. Muhammad Saifullah Cheema this Committee through an order dated 2-6-994, upheld and maintained the order of Election Board Gojra Bar Association dated 20-1-1994. The said Election Board had decided for the re-poll in view of the offer of Mr. Muhammad Akhtar Kahoja, a candidate for the Presidential seat and acceptance thereof by Mr. Muhammad Saifullah Cheema another candidate, as both of them had polled equal number of votes i,e,, 26 each in the Elections of the Bar held on 12-1-1994. The word re-election however occurred due to typographical mistake instead of re-polling in paragraphs 15 and 16 of the order dated 2-6-1994 of this Committee.
3. ' The Acting/Vice President of the said Bar was informed accordingly who constituted a fresh Election Board as required. The Board announced the following election schedule:- {{TABLE}} Filing of Nomination Papers 4-8-1994 Scrutiny of Nomination Papers 7-8-1994 Withdrawal of Nomination Papers 8-8-1994 Polling 11-8-1994 ' The appellant as well as the respondents Nos. 1 and 2 filed their nomination papers on 4-8-1994.
4. However, the appellant not only mentioned re- polling in the column of elections but also made a separate application to the Board for holding re-polling instead of re-election.
5. ' The nomination papers of the appellant were rejected on 7-8-1994 by the Election Board on the sole ground that neither Mr. Saifullah Cheema nor his proposer or seconder had attended the scrutiny proceedings. Vide order dated 8-8-1994, the Election Board declared Mr. Muhammad Akhtar Kahoja, Advocate as unopposed President as the 3rd candidate namely Mr. Muhammad Afzal had withdrawn his nomination papers.
6. ' The order of the Election Board dated 8-8-1994 was challenged by means of an Election Petition by the appellant but the learned Executive Committee of the Punjab Bar Council by an order dated 11-8-1994 showed its inability to decide the petition, nevertheless it dismissed the same with the observation: "The petitioner, if so desired might approach the Pakistan Bar Council for redress of his grievances and clarification of order dated 2-6-1994 passed by its Appeal Committee."
7. ' The instant appeal has been filed against such order.
8. ' After hearing both the parties we are of the view that the appeal must succeed for the reasons set out hereinafter:-- ' Through a decision dated 2-6-1994 of this Committee, the order of the Election Board of the Gojra Bar Association dated 20-1-1994 had been upheld and maintained whereby re-polling had been directed. By a typographical mistake, however, in the last 2 paragraphs of the order the word 're- election' occurred instead of 're-polling'. The appellant through a written application pointed out to the Election Board that in fact repelling was desired as against the re-election being scheduled by the Board. But neither the appellant nor the Election Board approached this Committee for seeking guidance in the matter, which resulted into impugned orders. The matter was quite, simple as the order dated 2-6-1994 was mainly based on the offer admittedly made before the Election Board by Mr. Muhammad Akhtar Kahoja for re-polling and acceptance thereof by Mr. Saifullah Cheema, therefore, there was no occasion for this Committee to have ordered the re-election. More particularly when the order of the Election Board dated 20-1-1994 had been upheld which in turn contained a direction for re-polling.
9. In any case now the nomination papers of the appellant have been rejected by the Election Board merely on the ground that neither the candidate, Mr. Saifullah Cheema nor his proposer or seconder had appeared at A the time of scrutiny before the Election Board. This could hardly be considered a valid ground for rejection of nomination papers in view of the provisions contained in Rule 56 of the Memorandum of Association 1991 which reads thus: "The Election Board shall accept the nomination papers if these were found to be in order. The Election Board shall paste on the Notice Board, the list of valid nomination papers."
10. ' Moreover, the order of the Election Board is not sustainable for another reason that the scrutiny of the nomination papers had admittedly been held in the Chamber of the learned Chairman of the Election Board instead of the Bar Room. The appellant has sworn an affidavit (appended with the memo. Of appeal) that he reached the Bar Room at the appointed time and waited there for half an hour but none of the members of the Election Board turned up for scrutiny of the nomination papers. This statement has neither been challenged nor countered by any affidavit. On the contrary, the learned Chairman Election Board has taken the stand that the nomination papers were received by him in his chamber therefore he was quite right in scrutinizing the same at the same place. He was of the view that for this reason there was no necessity of mentioning the place of scrutiny of nomination papers either, in the Notice displayed at the Notice Board of the Bar Room. According to him the venue was understood inasmuch as the practice of receiving and scrutinizing the nomination papers in the chamber of the Chairman Election Board is prevalent in the Bar since its inception as it did not have a Bar Room until two three years before.
11. ' We are afraid we cannot legitimize the practice of the Election Boards in receiving the nomination papers in the chambers of the Chairmen of such Boards. Bar Room is a common place open for all the members/lawyers and meant for such activities. The Election Board should have received and scrutinized the nomination papers in the Bar Room instead of any chamber, more particularly when the Notices regarding the election schedule and other allied matters were being pasted on the notice board of the Bar Room.
12. ' On behalf of the respondent No,1 an objection was raised as to the maintainability of Election Petition as also this appeal. According to the learned counsel for the respondent, there is no provision in the Legal Practitioners and Bar Councils Act or the Rules framed thereunder providing for an Election Petition or an appeal against the rejection of nomination papers. Since no Rule has been violated hence the provisions of Rule 65 (e) of the Memorandum of Association are not attracted in the facts and circumstances of the instant case. The argument however overlooks the contents of Election Petition which is directed against the order dated 8-8-1994 of the Election Board declaring the respondent No,1 as an unopposed President of the Bar, which order certainly could be called in question under Rule 64 of the aforesaid Memorandum. This disposes of the preliminary objection.
13. Since there have been serious objections about the conduct of members of the Election Board, we, in order to ensure free, fair and impartial elections, have constituted a fresh Election Board with the consent of parties which shall comprise of:--
(1) Chaudhry Muhammad Aslam (Chairman)
(2) Mian Tariq (Member)
(3) Mr. Yousuf Zia (Member)
14. ' For what has been stated above and in view of our earlier order dated 2-6-1994 passed in Appeal No,57/94, we would direct that the re-polling for the post of President Gojra Bar Association shall now be held on Thursday the 15th of September, 1994 on the basis of the list of voters used in the elections of the Bar held on 12-1-1994. It is further directed that the contest shall only be amongst those who contested in the aforementioned elections.