' This judgment will dispose of instant Election Petitions (E.P. No,12 of 1997) and E.P. No,17 of 1997, E.P.
No,44 of 1997, E.P. No,51 of 1997 and E.P. No,58 of 1997 as identical and common questions of law and facts are involved therein. All of it have apparently been drafted and tailored under the cloak of section 52 of Representation of the People Act, 1976.
2. On the basis of adult franchise, General Elections were held on 3rd February, 1997 simultaneously for various seats of National Assembly of Pakistan and Provincial Assemblies of all the Provinces.
Elections were contested by numerous candidates, out of whom, Nawab Salah-ud-Din Ahmad Abbasi, Sahibzada Muhammad Usman Khan Abbasi, Syed Ahmad Mahmood, Ch. Muhammad Jafar Iqbal and Ch. Masud Ahmad respondents in aforesaid petitions emerged victorious in their respective constituencies. Their success has been challenged and assailed in above enumerated Election Petitions, forwarded to this Tribunal, by Election Commission of Pakistan.
3. Plethora of undemocratic practices and chain of foul plays have been ascribed to returned candidates, whose eligibility even to contest the elections has been criticised by fleshing out their disqualifications, they allegedly suffered at very inception of Election Process. Anomalies counted therein allegedly permeated whole body politic and thereby besmirched the entire exercise, which, was to be transparent and immaculate. Even at the time of filing of nomination papers, Returning Officers were duly apprised of lacunas and lapses and their attention was drawn toward it, but, bemoaning in this context, proved to be cry iii the wilderness, and concomitantly such candidates promenaded into the corridors of power allegedly by trampling over prescribed norms of circumspection, they were expected to display in their campaign.
4. Gist of aberrations, gathered from these five petitions is that all the declared/returned candidates could not be taken as to be sagacious, righteous and Ameen in terms of relevant provisions of law, because of their outstanding liabilities, default in the payment of loans, taxes, Government dues, utility charges or for having submitted false and incorrect declarations regarding payment thereof and of furnishing affidavits with regard thereto. An active and wilful concealment of assets also stands attributed to them. Keeping in view similarity of allegations in the realm of law and facts, all these Election Petitions are being disposed of together.
5. Successful and returned respondents have vehemently withstood abovementioned onslaughts by answering that a loose string of hollow allegations has been woven crudely and for that purpose such contrivances have been brought on surface, which cannot even be dreamed of. It has been maintained that infirmities ascribed to them are devoid and bereft of any substance.
According to them, all the petitioners, like defeated persons, are now licking their wounds.
6. Preliminary objections have also been raised. Out of it, question of maintainability of the petitions particularly in wake of lapse of Ordinance XVIII of 1997 has been pressed and the proposition has been hotly contested.
7. Learned counsel for the successful and returned respondents have strenuously argued, that the Election Petitions being perfunctory on various counts are not tenable and liable to be thrown out summarily without having recourse to lengthy exercise and unnecessarily saddling the parties with prospective prolonged agony and ordeal of the trial. It has been canvassed that the material, out of which, the petitioners want to make capital, has already been sifted and scanned before different competent forums. Further, it has been maintained that these pleas have not only evaporated by operation of law like lapse of provisions of section 76-A introduced by Ordinance XVIII of 1997, but also, lost its significance because of non-compliance of prescribed formalities under section 55 of the Act. Reliance has been placed on Inayat Ullah Khan v. Haji Ghafoor Jadoon and others 1992 MLD 2540, Malik Iqbal Ahmed Khan Langhrial v. Rai Ahmad Nawaz 1990 CLC 595, Peter John Salhotra v. Returning Officer 1995 CLC 394,Ch. Fateh Jang v. Dr. Sheela B. Charles 1995 CLC 923, Election Commission of Pakistan v. Javed Hashmi and others PLD 1989 SC 396, Ch. Fateh Jang v. The Punjab Election Commissioner, Lahore and others 1995 CLC 923, Muhammad Azad Gul v. Said Munir Said and 11 others 1997 CLC 1132, Mian Manzar Ali Ranjha v. Mian Ahmad Sher and another 1997 CLC 2020, Ch. Muhammad Abdullah Virk v. Rana Nazir Ahmad and others 1997 CLC 1599 and Kh. Muhammad Awan v. Alim Adil and 19 others 1998 CLC 272.
8. Conversely, it has been asserted by learned counsel for the Election Petitioners that technical knock out is no more justifiable; the parties to a controversy must be afforded opportunity to exhaust evidence in their store and that proper culmination is not possible without framing issues.
Also it has been stressed that the parties would be prejudiced if any summary procedure is adopted. It has been further impressed that treading on the circumference is not warranted; diving deep into thick of fight is sine qua non for arriving at a safe conclusion about real causes of defeat which, fell to the lot of the Election Petitioners. Also it has been remarked that illegalities do not die with the passage of time but remain alive like a dormant volcano. Framing of an issue, may be preliminary, about non-maintainability has been urged. Mubarik Shah v. The State 1990 PCr.LJ 1796, Sher Muhammad alias Shera v. The State PLD 1990 Kar. 271, Federation of Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad and others v. United Mills Ltd., Karachi PLD 1977 SC 397, Muhammad Arif and another v. The State and another 1993 SCMR 1583, Kundal Khan v. Agha Jan PLD 1990 Pesh. 21, Zia Ullah Khan and another v. Government of Punjab and others PLD 1989 Lah. 554 and Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 have been cited in support of contentions.
9. Following illuminating observations made in Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426 furnish guideline for proper trial of an Election Petition:-- "The perusal of section 62, before the aforementioned amendment and after amendment together with the procedure prescribed by the Election Commission clearly shows that fpr the trial of Election Petition the Legislature intended to do away with lengthy procedure prescribed under the Code of Civil Procedure, 1908 (Act V of 1908). Reading section 62 as amended and section 54 of the Act, the possible harmonious interpretation thereof would be, that the Election Tribunal shall have all the powers of a Civil Court under the Code of Civil Procedure except for the trial of Election Petitions, where the Election Tribunal shall follow the procedure prescribed by the Election Commission. It means that framing of issues emanating from the pleadings of the parties is not mandatory requirement of law."
10. As enjoined therein, technicalities can be dispensed with particularly when there already exists speaking evidence to adjudicate upon the controversial points between the parties. Where no fresh avenue is likely to be explored, framing of issue is not inevitable.
11. Pleas taken by the petitioners in instant petitions have not emerged for the first time, as they have been harping on similar string and tune since long. I fail to find any new disqualification, which, was not ascribed or agitated in the past before forums of competent jurisdiction. So-called disqualifications were critically analysed and minutely dissected upon. In these Election Petitions, there is clear repetition or let me say that a dead horse is being flogged. In these circumstances, I am not inclined to push the parties into long tunnel of anguish, quagmire, Cul-De-Sac and vortex of litigation especially when there is sufficient material to arrive at a just conclusion.
12. Grounds of attack as enunciated in these five Election Petitions are similar which were agitated in futility in the past. These pleas could be of any utility if suo motu jurisdiction under section 76-A of Act, 1976 as added by Ordinance XVIII of 1997 was to be assumed. At the first glance, kernel of allegations squarely falls within the orbit of section 76-A, no matter it has been given a new name of section 52 of the Act. Ordinance XVIII of 1997 has lapsed, therefore, this Court stands divested of suo motu jurisdiction as held in Ch. Muhammad Abdullah Virk v. Rana Nazir Ahmad and others 1997 CLC 1599 and Mian Manzar Ali Ranjha v. Mian Ahmad Sher and another 1997 CLC 2020. Further, exercise in wake thereof is bound to end in smoke.
13. Another glaring lapse cannot be overlooked and glossed over. Same has the effect of last nail in the coffin of the Election Petitions. All the petitioners have miserably failed to fulfil the requirements of section 55 of the Act under which it was incumbent upon them to give compendium of evidence of the witnesses to be examined. The Election Petitioners have also not cared to file affidavits of such witnesses. Language of provisions of section 55 is not only couched in mandatory form, but also of punitive nature, as held in Muhammad Azad Gul v. Said Munir Said and 11 others 1997 CLC 1132.
14. In the Election Petitions, no allegation as postulated by relevant provisions of Representation of the People Act has been levelled. Violation thereof and section 55 in particular of said Act, necessarily, entails outright dismissal thereof, as observed in Peter John Salhotra v. Returning Officer 1995 C CLC 394.
15. Viewed from any angle, all five Election Petitions are not maintainable and cannot be proceeded with because of lapse of Ordinance XVIII of 1997. Same merit rejection and are hereby dismissed.
Election .