' This election petition has been filed by Mr. Sanaullah Khan Gandapur, Advocate, D.I. Khan with the prayers that the election of the respondent Muhammad Iqbal Khan Kundi, Advocate, D.I. Khan as a member N.-W.F.P. Bar Council against the sole seat for D.I. Khan may be set aside and he may be declared to be elected as a member in his place.
2. The election giving rise to the petition was held on 30-11-1993 in accordance with the following programme which was published by the Returning Officer/Advocate-General, N.-W.F.P. In the Official Gazette on 5th October, 1993 under Rule 5 of the Legal Practitioners and Bar Councils Rules, 1976:-- "(1) The date for receipt of proposal for election (Rule 5)...6-11-1993 by 2 P.m.
(2) The date on which list of proposals will be put up on Notice Board (Rule 7)...8-11-1993
(3) The date for the scrutiny of such proposals (Rule 8)...14-11-1993
(4) The date for withdrawal of proposals (Rule 9)...16-11-1993
(5) Declaration of result of the unopposed candidates (Rule 10) (1)...18-11-1993
(6) Date on which final list of contesting candidates shall be posted on Notice Board (Rule 10)
(2)...18-11-1993
(7) The date on which voting shall take place (Rule 23)...30-11-1993
(8) Counting of votes by Polling Officer (Rule 25)(1)...30-11-1993
(9) The date for counting the ballot papers received from the Polling Officer, by Returning Officer...7-12-1993
(10) The date for declaration of result (Rule 26)...9-12-1993
(11) The date by which objections to the validity of election of the Members shall be filed 23-12- 1993."
3. The essential facts in brief are that pursuant to the above election programme the petitioner delivered his nomination papers at the office of the Returning Officer on 28-10-1993 at 11-05 a.m.
But Mr. Muhammad Iqbal Khan Kundi and two other Advocates, respondents Nos.2 and 3 herein, got their nomination papers transmitted through the Senior Civil Judge, D.I. Khan which were delivered at the Office of the Returning Officer on 7-11-1993 at 9-00 a.m. By the Secretary, N.-W.F.P.
Bar Council. The petitioner submitted a written objection before the Returning Officer for rejection of the nomination papers received and forwarded by the Senior Civil Judge, D.I. Khan but it was turned down on 16-11-1993 and the said nomination papers were accepted. Taking exception, the petitioner filed a writ petition in this Court but it was dismissed on 29-11-1993 for the reason that the disputes arising out of elections are to be resolved by an Election Tribunal. He then took the matter in appeal before the Supreme Court which was disposed of on 30-11-1996 with a direction to the Election Tribunal to expedite the disposal of the election petition. In the meantime the petitioner contested the election as a result of which Mr. Muhammad Iqbal Khan Kundi was declared elected.
Feeling aggrieved he filed the present election petition challenging the validity of the election of Mr. Muhammad Iqbal Khan Kundi on the grounds that the Senior Civil Judge, D.I. Khan was not authorised to receive and forward the nomination papers to the Returning Officer, the nomination papers of the respondents were wrongly accepted by the Returning Officer as the same were not delivered at his office on the appointed date and time and he had no authority to condone the delay and validate unentertainable nomination papers, the Returning Officer ought to have rejected the nomination papers of the respondents and declared him elected unopposed being the only validly nominated candidate in the filed and that the election of Mr. Muhammad Iqbal Khan Kundi being invalid was liable to be set aside and he was entitled to be declared elected as member N.-W.F.P. Bar Council.
4. The election petition was resisted by respondent No,1 on several legal and factual pleas. The defence, in the main, was that the petitioner having participated in the election was estopped from filing an election petition, the Senior Civil Judge, D.I. Khan had forwarded the nomination papers on 6-11-1993 before 2-00 p.m. And the same were accepted by the Returning Officer on correct premises and the Returning Officer had not committed any irregularity whatsoever.
5. The averments of the parties were embodied in the following issues:--
(1) Whether the petitioner is estopped from bringing the election petition?
(2) Whether the election petition is hit by the principle of res judicata?
(3) Whether the election petition is bad for non-joinder of necessary parties?
(4) Whether the Senior Civil Judge, D.I. Khan was competent to receive the Nomination Papers filed by respondents Nos. 1 to 3, if so, with what effect?
(5) Whether the nomination papers were received by the Returning Officer after the prescribed date and time, if so, with what effect?
(6) Whether the nomination paper of respondent No,1 was wrongly accepted by the Returning Officer, if so, with what effect?
(7) Whether the election of respondent No,1 as member of N.-W.F.P. Bar Council is liable to be set aside being void ab initio?
(8) Whether the petitioner is entitled to be declared elected as member in place of respondent No,1?
(9) Relief.
6. Before adverting to the issues it will be pertinent to point out that the evidence of the petitioner consists of hig own statement and that of Mr. Abdul Jabbar Khan, Secretary N.W.F.P. Bar Council while the evidence of respondent No,1 consists of his solitary statement.
Issue No,1:
7. This issue was not pressed by the learned counsel for the respondent in view of two authorities cited by the learned counsel for the petitioner in support of the proposition that estoppel does not flow from participation in the election. The first authority is reported as Syed Zafar Ali Shah v. Hamid Khan and 46 others (1992 CLC 665) wherein it was held that a contesting candidate is not estopped from formally challenging elections at a subsequent stage in accordance with law and within time. The second authority is Dil Muhammad v. Election Tribunal and others (PLD 1966 (W.P.)
Lahore 669) which settled the question of estoppel in these terms that a contesting candidate is entitled to have his petition disposed of on merits and he cannot be penalised for participating in the election, This issue is, therefore, decided against respondent No, 1 .
Issues No,2 and 3:
8. These issues were also not pressed by the learned counsel for respondent No,1 and are decided accordingly.
Issue No,4:
9. The appointment of Polling Officers is made under Rule 15 of the Legal Practitioners and Bar Councils Rules. 1976, hereinafter called for the sake of brevity as the rules, which provides that the Returning Officer shall for the purpose of conducting the election appoint such number of polling officers to assist him as he may consider necessary. The Senior Civil Judge, D.I. Khan, Mrs. Zarqaish Sani, was appointed as a polling officer vide order dated 12-10-1993 of the Peshawar High Court which was issued with reference to Letter No,736/N.-W.F.P./BC dated 12-10-1993 of the Returning Officer. A polling officer is not empowered under the Rules to receive nomination papers. There is also nothing on the record from which it could be gathered that the Returning Officer had authorised the Senior Civil Judge, D.I. Khan under Rule 6 of the Rules to receive the nomination papers. It thus goes without saying that the Senior Civil Judge, D.I. Khan was not competent to receive the nomination papers of respondents Nos. 1 to 3 and forward the same to the Secretary, N.-W.F.P. Bar Council. It would have been more appropriate if she had examined the rule position and returned the nomination papers to respondents Nos.1 to 3 in the light of the explicit provisions of Rule 5(b) and Rule 6 of the Rules under which nomination papers are to be delivered at the office of the Returning Officer. This issue is, therefore, decided accordingly in favour of the petitioner.
Issue No,5:
10. It is evident from the programme for the election highlighted above that the date for receipt of proposal for election, nomination papers, was 6-11-1993 by 2-00 p.m. The nomination papers of respondents Nos.1 to 3 were admittedly not delivered at the office of the Returning Officer on 6-11- 1993 by 2-00 p.m. But were presented before the Senior Civil Judge on 6-11-1993 who had forwarded the same to the Secretary, N.-W.F.P. Bar Council, Peshawar with the following note:- "The following persons presented me their nomination papers for the proposed election:
(1) Muhammad Aslam Khan.
(2) Iqbal Kundi.
(3) Gohar Zaman Kundi.
' I send you these documents through special messenger. Please acknowledge the receipt."
' According to the endorsements of the Secretary, N.-W.F.P. Bar Council for the Returning Officer on the reverse of the nomination papers (copies Exh.P.W.1/5 to Exh.P.W.1/7) the nomination papers were received at the office of the Returning Officer on 7-11-1993 at 9-00 a.m. The statement of Abdul Jabbar Khan, Secretary, N.W.F.P. Bar Council (P.W.2) also shows that he had brought the matter to the notice of the Returning Officer on the said date and time. The nomination papers of respondents Nos.1 to 3 were indeed received by the Returning Officer after the prescribed date and time, therefore, there can be no cavil with the proposition that the same ought to have been kept out of consideration or rejected on that score at the time of scrutiny of the proposals. This issue is, therefore, decided accordingly. jssue No,6:
11. As mentioned earlier the nomination paper of respondent No,1 having been received at the office of the Returning Officer beyond the prescribed date and time was liable to be rejected at the time of scrutiny of the nomination papers which was held on 14-11-1993. However, it was accepted by the Returning Officer on 16-11-1993 in the wake of rejection of the objection raised by the petitioner for the reasons; firstly, that the schedule for the elections did not mention the person and the place to whom the proposals were to be submitted, secondly, the Senior Civil Judge, D.I. Khan being a Polling Officer was a person involved in the conduct of the elections, therefore, the proposed candidates were justified in assuming that the proposals could be filed with her and she had received the proposals in good faith, thirdly, the proposals ought not to be kept out of contest on a mere technical ground and, lastly, the democratic spirit and process also demanded that there should be a contest. The same points were raised by the learned counsel for respondent No,1 during his arguments and reliance was placed on Emmanual Masih v. The Punjab Local Councils Election Authority etc. (1985 SCMR 729) wherein it was observed that main purpose of election laws is to ensure that the elections are held in the country and democratic process is allowed to take its course and the legal provisions should be so construed as not to create any impediments in the holding of the elections and to ensure their conclusion, once the process has begun. The learned counsel for the petitioner met the points by reiterating the assertions made in the petition.
12. I do not find sufficient force in the reasons reflected in the detailed order dated 16-11-1993 of the Returning Officer and the arguments addressed by the learned counsel for respondent No, 1 . Rule 5 of the Rules, under which the programme for the election is published by the Returning Officer, does not envisage that the place and the person to whom the proposals are to be submitted should be mentioned in the programme. The omission is understandable because it is mentioned in.Rule 5(b) as well as Rule 6 of the Rules in most unequivocal words that the proposals for election are to be delivered at the office of the Returning Officer. A Polling Officer is only required to conduct the poll in accordance with the Rules and it is nowhere mentioned in Rules 17, 18, 19 and 20, which deal with the duties and powers of the polling officers, that a polling officer may receive the nomination papers and send the same to the Returning Officer. The non-filing of the nomination papers of respondents Nos.1 to 3 at the office of the Returning Officer was not a mere technical flaw but violation of certain explicit mandatory provisions of the Rules which ultimately affected the result of the election. Needless to mention that filing of nomination papers is regulated by the Rules and not the whims and pleasure of the candidates or their proposers. The democratic spirit promoting a contest was not attracted in this case in view of the mandatory provision contained in Rule 10(1) of the Rules that if the number of valid proposals from the District does not exceed the number of the members to be elected from that district, the Returning Officer shall declare the proposed candidates to be elected. The authority cited by the learned counsel for respondent No,1 does not apply to the present case because the Rules had neither created any impediment in the holding of the election nor had thwarted its conclusion. Besides, it is by now firmly settled that a thing required by law to be done in a particular manner must be done in that manner or not at all.
It was held in Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore and 2 others (PLD 1971 SC 61) that neglect of plain requirement of an absolute statutory enactment prescribing how something is to be done would invalidate thing being done in some other manner, Reference in this context may also be made to Muhammad Ashraf v. Ziarat Gul (PLD 1994 Peshawar 48) in which it was observed that a thing ordered to be done in a particular manner must be done in that manner or not at all and doing something in conflict with that would be unlawful. The order of the Returning Officer accepting the nomination paper of respondent No,1 is thus not sustainable. This issue is, therefore, decided accordingly in favour of the petitioner.
Issues No,7 and 8:
13. These issues being interlinked can be conveniently considered together. The questions raised in these issues are to be resolved in the light of the findings on Issues Nos.4 to 6 as well as Rules 64 and 66 of the Rules which read as under:-- "64. The election shall be set aside if the Tribunal finds that an irregularity which has materially affected the result of the election or an illegality has been committed.
66. If the election of any member is held void, the candidate who would have been elected if the candidate whose election is declared to be void was excluded altogether from consideration while ascertaining the persons to be elected, shall be declared to be elected."
14. On the strength of the findings on Issues Nos.4 to 6 above it can be safely held that the election of respondent No,1 involves an illegality as well as an irregularity which had materially affected the result of the election. The illegality is traceable to the contravention and overlooking of the express and mandatory provisions of Rule 5(b) and Rule 6 of the Rules in regard to the place and date of filing of the nomination paper and the irregular which had materially affected the result of the election stems from the acceptance of the nomination paper of respondent No,1 because if it had not been accepted the petitioner being the only validly nominated candidate would have been declared elected unopposed under Rule 10(1) of the Rules. The election of respondent No,1 is thus liable to be set aside and the petitioner is entitled to be declared elected as a member, N.-W.F.P.
Bar Council in his place in view of the provisions of Rule 66 of the Rules. Issues Nos.7 and 8 are, therefore, decided in favour of the petitioner.
15. In the result, this election petition is accepted, the election of the respondent Mr. Muhammad Iqbal Khan Kundi is set aside and the petitioner is declared to be elected as a member, N,-W.F.P.
Bar Council. Parties to bear their own costs.