2017 PLP 2019 (YLR)

IKRAMULLAH KHAN, J.

Through this single judgment, we intend to dispose of instant Writ Petition No.394-P/2016, connected Writ Petition No.472-P/2016, titled "Muhammad Fahim v. Misbahud Din and others" and Writ Petition No.486- P/ 2016, titled, "Waheed Hayat v. Pir Qasim Shah etc." as identical proposition of law is involved in all the three petitions filed under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 (Constitution).

2. In essence, not only the petitioners but also respondents were contesting candidates, in recently held Local Government election in the year 2015. Petitioners were declared Returned Candidates, however, the result was made impugned by respondent No.1 in each petition herein, before the learned Election Tribunal by filing their respective election petitions.

3. During course of trial of the concerned election petitions, petitioners in each petitions herein filed their respective applications in order to dismiss the election petitions for the sole reasons that the provisions of Rule 46 of the Election Rules, 2014 had not been followed by respondents and as such election petitions were not maintainable and liable to be dismissed.

4. The learned Election Tribunal after hearing all set of parties, rendered his consolidated impugned judgment dated 7.1.2016, whereby all the applications in terms of Rule 51 of Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules (L.G. Rules), 2014 were dismissed, hence the instant writ petition along with connected petitions have been filed by petitioners in terms of Article 199 of the Constitution.

5. Learned counsel for petitioners made their respective submissions before this Court that the Election Petitions filed by respondents were not signed and verified by the respondents in terms of Rule 6 of Order XV, C.P.C., as mandated under Rules 46(3) and 50(b) of the L.G. Rules and as such liable to be dismissed in view of Rule 51 of the L.G. Rules, but the learned Election Tribunal erred in law to dismiss the application of the petitioners without application of mind in violation of the dictum laid down by the apex Court in this regard.

6. Learned counsel for respondents argued that as the learned Election Tribunal had already framed the required and relevant issues, arising out of pleadings of the parties, while trial is also in progress, therefore, justice and propriety demands that Election Tribunal be allowed to decide the cases on the basis of the evidence and merits in accordance with law.

7. We have heard learned counsel for the parties in light of law and have also given anxious consideration to the contentions of learned counsel in light of available record.

8. In order to appreciate arguments of learned counsel, we would like to reproduce the relevant provisions of law on basis of which, these petitions have been filed against the impugned judgment. Rules 45 and 46 of Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules, 2014, reads as under:-- "

45. Parties to the petition.

The petitioner shall join all contesting candidates as respondents to his election petition and shall serve personally or by registered post on each respondent a copy of his petition." "

46. Contents of petition.

(1) Every election petition shall contain:-- a) A precise statement of the material facts on which the petitioner relies. b) Full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including the full as possible a statement of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and c) The relief claimed by the petitioner;

2. A petitioner may claim as relief any of the following declarations, namely:-- a) That the election of the returned candidate is void and that the petitioner or some other person has been duly elected, or b) That the election as a whole is void.

3. Every election petition and every annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings."

9. While in case of default of the above mentioned provisions of law, the consequences provided under Rule 51, are reads as:--

51. Dismissal of petition during trial

The Tribunal may dismiss an election petition if:- a) The provisions of rules 45 and 46 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. " Learned counsel for petitioners mainly relied upon the principle of law, enumerated therein, "Engineer Iqbal Zafar Jhagra's case (2000 SCMR 250) and Syed Iftikhar Hussain's case (1997 CLC 1724) in order to dismiss the Election Petitions filed by respondents before the learned Election Tribunal.

10. It is pertinent to be mentioned herein that the principle enunciated by the superior Courts in the above mentioned cases, were in respect of Representation of Peoples Act, 1976. The contention of learned counsel for petitioners that the provisions of law envisaged under section 73(3) of ibid Act is paramour of Rule 46 of the L.G. Rules, is misconceived. In case, provisions of both the laws put in juxtaposition then the legislator in its wisdom in Section 63 of the Representation of the Peoples Act, 1976 has used the word 'shall' which reads as:-

63. Dismissal of petition during trial.-The Tribunal shall dismiss an election petition, if (a) the provisions of section 54 or section 55 have not been complied with; or (b) if the petitioner fails to make the further deposit required under subsection (4) of section 62.

11. While in Rule 51 ibid the word used is "may" which clearly conferred discretion upon the Election Tribunal exercising its jurisdiction under L.G. Rules, to dismiss or not, keeping in view the peculiar facts and circumstances of the case. The language and command used in section 63 of Representation of Peoples Act 1976, is mandatory in character whereas the mandate of Rule 51 of ibid rules is directory in essence. In Niaz Muhammad Khan's case (PLD 1974 SC 134) similar proposition of law has already been resolved. The Hon'ble Lahore Court in Ch. Riffat Hussain's case (PLD 1980 Lahore 626) is interpreted in detail, the impact of word "shall" and "may" whenever used in legislation, and it has been declared that rules made, be interpreted harmonically to advance the remedy and to avoid technical frustration.

12. It is settled principle of law, that where the language of an enactment is clear and unambiguous, the words of that statute to be given their ordinary and dictionary meanings and recourse to external consideration, whatsoever, be permissible only when language of statute is not specific, precise or ambiguous.

13. It could not be presumed that while enacting the Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules, 2014, the legislators were not aware of the provisions contained in Section 63 of the Representation of People Act, 1976 and despite the word used as "shall" in section 63 ibid, in L.G. Rules, the word "may" is inserted.

14. It is also very much clear from the bare perusal of Rule 5 read with rule 52 of the L.G. Rules, that the Election Tribunal has been invested with power as envisaged thereunder any provision of C.P.C. and as such in given facts and circumstances of each case, the Election Tribunal may ratify and allow a party to amend its pleadings in term of Rule 17 of Order VI of C.P.C., which reads as:-

17. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

15. Insofar as the cases in hand are concerned, it could not be said that respondents had not at all did omission in verification of their respective election petitions, however, instead of adhering to the exact mode of verification mentioned in Order VI of Rule 15, C.P.C., a composite kind of verification is done but clearly and in unambiguous manner, the intention of the petitioners therein were mentioned that the whole petition is verified on oath. The provisions contained in Rule 15 of Order VI, C.P.C., do not and in no sense, describe that pleadings shall be paragraphed almost but the intention is that the stance of knowledge and verification be numbered separately. If any petitioner verify the whole contents of a petition on his own satisfaction and knowledge, then it would be absurd to conform with the exact provision of law envisaged under Rule 15 ibid.

16. It is also settled principle of law that no one shall be condemned for any act or omission of a Court or authority, so not drawing the exact oath by any Oath Commissioner or Notary Public, under the provisions of Rule 15 ibid, deponent shall not be held responsible or be penalized for act or omission of others, who were bound to follow the law.

17. It be also noted that the law envisaged under Representation of the People Act, 1976, in order to dismiss the Election Petition, in term of Section 63 is meaningful as prior to institution and directly filing the election petition before the Election Tribunal, under the Representation of the People Act 1976, every petition has to be presented before an Inquiry Officer, while Election Petition under Rule is directly instituted before the concerned Tribunal therefore, legislator has intentionally used the word "may" instead of "shall" in order to ratify any error or mistake, if any, occasioned in filing the Election Petition and may direct the concerned party to amend his petition, while exercising the power borrowed and conferred upon by virtue of Rule 52 being a civil Court for the purpose.

18. The Election Tribunal constituted under any provision Local Government Act, 2013, has all the powers of a civil Court trying a suit under the Code of Civil Procedure, 1908 and this will include the power and indeed the duty to allow any party thereto, correct any error, amend and remove any defect in the concern Election Petition including omission to sign or verify pleadings, for the purpose of furthering the cause and end of justice and avoiding technicalities.

19. It is settled principle of law, that technicalities be ignored in strive of just cause of furtherance of justice. Provisions of law stated not be so interpreted so, which instead of furtherance of justice, thwart or frustrate the same.

20. For the reasons given hereinabove, we are of the confirm view that the Election Tribunal has vast power and jurisdiction to remedied any defect during course of trial, if any either in signing the petition or in verification procedure and not bound at all to dismiss the election petition for such omission as mentioned in Rule 45 or 46, hence all these petitions are dismissed accordingly. ZC/107/P Petitions dismissed.