P L D 1965 (W (PLP)

The petitioner Haider Khan was convicted under Art. 73 (2) (wrongly described as section) of the National and Provincial Assemblies (First Election) Order, 1962, and sentenced to pay a fine of Rs. 50, or in default to undergo one month's S. I. for his failure to file a return of election expenses as required by Art. 54 of the said Order.

2. The petitioner admits that he had appointed an election agent and that the return, as required by Art. 54, was not submitted within the prescribed period i.e. by the 22nd of May 1962. The learned counsel for the petitioner, however, argued that on the true interpretation of Art. 54 where election agent had been appointed, no duty whatsoever was cast on the candidate himself to file the return of the election expenses, and that it was the duty of the agent to file the return, and that in the event of the failure of the election agent to file the return by the specified date, he alone and not the candidate would incur liability for punishment under Art. 73 of the Order, for being guilty of "an illegal practice".

3. Mr. Sher Bahadur Khan, Additional Advocate-General, on the other hand, argued that on the correct interpretation of Art. 54, where election agent was appointed, the election agent was under statutory obligation to file within 15 days next following the day on which the result of the election is declared by the Returning Officer to file "true return, containing as respects that candidate a statement of all payments made by the election agent together with all the bills and receipts," as contemplated by Art. 54 (1), but under Art. 54 (3), the candidate himself was under statutory obligation when he employs an election agent to support the return "by affidavits sworn by the candidate and the election agent severally". In other words, it was argued that if the return had not been filed by the agent within the prescribed period, the agent and the candidate both would be guilty of "an illegal practice" within the meaning of Art. 54 (4), and attracted the punishment prescribed by Art. 73.

4. Since the decision of the cases hinges on the interpretation of Art. 54, it would be convenient to read the material provisions of the said Art., namely, sub-Articles (3) and (4), which are in the following terms "54. . . . . . . . . . . . . . . . . . . (3) The return submitted under clause (1) shall be supported, if the candidate is his own election agent, by an affidavit sworn by him, and if he employs an election agent by affidavits sworn by the candidate and the election agent severally. (4) whoever contravenes the provisions of this Article shall be guilty of an illegal practice."

5. It will be manifest from reading the language of Art. 54 that a statutory duty is cast on the candidate when he employs an election agent, (1) to see that the return is filed by the election agent within the prescribed period, and (2) as required by sub- Article (3) the return under sub-Article (2) shall be supported "by affidavits sworn by the candidate and the election agent severally". In other words, where agent is employed, the return must be supported by affidavits of the election agent as also of the candidate, and when the return is supported by the agen alone or by the candidate alone, there is violation of the requirements of sub-Article (3), which constitutes an offence of "illegal practice" which is punishable under Art.

73. In the instance case it is admitted that the election agent employed by the petitioner had not filed the return as required by Art. 54 (1), and therefore, there has been infringement of sub-Article (1) which would render both the petitioner and the election agent liable for punishment under Art. 73 for "illegal practice." The petitioner is also guilty of infringement of Art. 54, in that the return had no been filed within the prescribed period, and lastly there has been an infringement of Art. 54, in that the return, as required by Art. 54 (3) was not supported by the affidavit of the petitioner and, therefore, the petitioner had rendered himself liable for punishment of the offence of "illegal practice" within the meaning of Art. 50. (3). The fact that the election agent too had committed the same offence namely, "illegal practice" but had not been prosecuted, would not absolve the petitioner of his liability.

6. It follows from the above discussion that the conviction of the petitioner is well-founded. The revision petition is; therefore, dismissed as unmeritorious. K. B. A. Petition dismissed.