1994 PLP 198 (CLC)

5. Hence these petitions.

6. Syed Sharif Hussain Bukhari, Advocate for the petitioner has pleaded lack of jurisdiction with the Election Tribunal, Gujrat to accept the applications of returned candidates and to the consequential dismissal of the election petitions without concluding their trial according to law. His argument is that the dismissal of election petition before the conclusion of trial is regulated under rule 9 of the Election Petitions Rules and as there was no violation of rules 3, 4 and 5 of the said Rules, the order dated 18‑i1‑1992 is rendered without jurisdiction. It was also argued that although failure on the part of the candidates to submit their statements of election expenses under rule 69 of the Election Rules is tantamount to the commission of an illegal practice, as provided under sub‑rule (7) of Rule 73 of the said Rules, still the Election Tribunal is not possessed of any jurisdiction to dismiss the election petition without finalising the trial of election petition/s before it.

7. Ch. Rafique Ahmed Bajwa, Advocate appearing on behalf of the returned candidates has argued for the dismissal of these petitions contending that the effect of failure on the part of the petitioner to submit statement of election expenses is tantamount to commission of illegal practice and therefore the dismissal of the election petitions by the Election Tribunal does not suffer from any infirmity in law. He has relied upon subsection (5) of section 21 of the Ordinance to contend that having been found guilty of illegal practice by the Tribunal, the petitioner is `disqualified for a period of 5 years from being elected as, and from being, a member of a Local Council'. The impugned orders are. legal and cannot be interfered with for the additional reason that no useful purpose will be served by concluding the trial of the election petitions in that even if the returned candidates are de seated, the petitioner will not be qualified to contest the future elections.

8. While exercising his right of reply the learned counsel for the petitioner has reiterated his contention that the election petitions could not be dismissed during trial and argued that the order dated 18‑11‑1992 cannot be equated with a decision under rule 12 of the Election Petitions Rules. He also argued that subsection (5) of section 21 has no relevance whatsoever to the question involved in relation to the jurisdiction of the Election Tribunal to dismiss the election petition during trial for the reasons other than those mentioned in rule 9 of the Election Petitions Rules. The precedents relied upon by the Election Tribunal in support of its findings are of no avail to the returned candidates. 9. 1 have considered the respective arguments advanced by the learned counsel for the parties and also perused the reports of Q. Qureshi v. Sardar Ranjhey Khan Farooq (1980 CLC 1457) and Qazi Inayat Ullah v. Election Tribunal (1990 CLC 738), referred to by the Election Tribunal in the impugned judgments. These precedents do not advance the case of the returned candidates in any measure whatsoever. None of them is an authority for the proposition that the Election Tribunal has the jurisdiction to dismiss an election petition during its trial on grounds other than those which find mention in Rule 9 of the Election Petitions Rules. Ch. Rafiq Ahmad Bajwa was quite right in not pressing these cases in support of his plea that the Election Tribunal was possessed of the jurisdiction to take up the applications of the returned candidates and dismiss the election petitions before it, without concluding their trial.

10. The only question resolution of which will result in the decision of these petitions, revolves around the point of jurisdiction of Election Tribunal to resolve an election petition at an intermediary stage invoking the principles enshrined in rule 11 of Order VII, C.P.C. and the general allegations against an election petitioner by the returned candidates that having failed to submit the requisite statement of election expenses he is not entitled to continue with the prosecution of his election petitions against them. 10‑A. It may be observed at the very outset that neither any violation of Rules 3, 4 and 5 of the Election Petitions Rules was alleged by the returned candidates nor they were under any obligation to submit a recriminatory petition under rule 11 of the Election Petitions Rules. The striking off issues by the Election Tribunal concerned on 2‑9‑1992 preceded the submission of applications by the returned candidates. There was no issue regarding the effect of the alleged failure on the part of the petitioner to submit the statement of election expenses under sub‑rule (2) of rule 69 of the Election Rules. It is not the case of the returned candidates that this point was required to be resolved at any intermediary stage of the trial of the election petitions. Under rule 9 of the Election Petitions Rules the Tribunal has the jurisdiction to dismiss an application if‑‑ "(a) the provisions of rules 3, 4 and 5 have not been complied with; or (b) the allegations contained therein are vague or do not disclose the commission of any corrupt practice, material irregularity, or other illegal act; or (c) the petitioner fails to make the further deposit required under sub rule (5) of rule 3." It is not denied on behalf of the returned candidates that the dismissal of an election petition during its trial has to show a direct nexus with the afore quoted clauses of rule

9. Rule 12 of the Election Petitions Rules deals with the decision of the election petitions by the Election Tribunal and is couched in the following words: "

12. Decision of the Tribunal.‑‑The Tribunal may upon conclusion of the trial of an election petition make an order‑‑ (a) dismissing the petition; (b) declaring the election of the returned candidate to be void; (c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or (d) declaring the election as a whole to be void." The position that emerges is that the Election Tribunal proceeded with the dismissal of the election petitions without concluding their trial. It tantamounts to exercising a jurisdiction not vested in the Tribunal, to say the least.

11. Moreover, the mere fact that failure on the part of a contesting candidate to submit his statement of election expenses within 30 days of the declaration of the result of the poll does attract the wrath of sub‑rule (7) of Rule 73 of the Election Rules in that being an illegal practice it has been made punishable with fine which may extend to 500 rupees, has not been shown to have any nexus whatsoever with the jurisdiction of the Election Tribunal to defer the finalization of the election petition before it and proceed with the dismissal of the election petitions on that account. Rules 88 and 89 of the Election Rules deal respectively, with the limitation for prosecution for corrupt or illegal practice or an offence under Rule 73 and with the making of a complaint in writing by the Returning Officer as a prerequisite for a Court to take cognizance of an offence under sub‑rule (7) of Rule

73. It is not the case of the returned candidates that either prosecution was launched against the petitioner or he was convicted for the offence of "illegal practice", under these Rules. That being the position, the argument on behalf of the returned candidates that the petitioner stands disqualified for a period of five years from being elected as, and from being, a member of a Local Council in terms of sub section (5) of section 21 of the Ordinance, is of no avail to them. I am not inclined to agree with the learned counsel for the returned candidates that the conclusion of the trial of election petitions by the Election Tribunal and the eventuality of their being de seated as a result of the same will not be of any avail to the petitioner as he is disqualified to contest the future elections.

12. The observations made by the Election Tribunal towards the end of para. 6 of the impugned order, to the effect that petitioner's involvement in "illegal practice" will take away his right to proceed further with his election petition/s, cannot be countenanced on any discoverable principle. It has already been observed above that the Election Tribunal has exceeded its jurisdiction in proceeding with the applications of the returned candidates and by dismissing the Election petitions before it. The clear division of the sum total of the powers of the election Tribunal in relation to the dismissal of an election petition before it, both during trial and after conclusion of trial, under the Election Petitions Rules has the effect of precluding it to resort to any other methodology to achieve the result either during trial or after concluding the trial. The reliance placed in this behalf by the learned counsel for the petitioner on the rule "Expressio unius est exclusio alterius" (The express mention of one thing implies the exclusion of another), is well based. The Election Tribunal was bound to conclude the trial of the election petition/s of the petitioner and the impugned orders dated 18‑11‑1992, purportedly achieving the result in terms of clause (a) of rule 12 of Election Petitions Rules at an intermediary stage, cannot but be held to have been done otherwise than in the authorised manner. Refer Muhammad Anwar Khan v. Additional District Judge, Rawalpindi etc. (PLD 1978 Lahore 716) and Chairman, Evacuee Trust Property, West Pakistan, Lahore v. Muhammad Din and another (PLD 1971 Lahore 217).

13. For all that has gone before, these petitions are allowed and the case is remitted to the Election Tribunal, Gujrat for concluding the trial of election petitions titled 'Hakim Ali v. Zafar Iqbal etc.', 'Hakim Ali v. Azmatullah etc.' and `Hakim Ali v. Abdul Ghani etc.', in accordance with law. There shall be no order as to costs. AA./H‑91/L Petitions accepted.