2013 PLP 494 (CLC)

JAMAL KHAN MANDOKHAIL, J.

Senate elections were held on 2nd March, 2012, wherein, the petitioner was a candidate against a reserved seat from Balochistan. At the end of the poll, the Returning Officer announced the result declaring the respondent No.1 as a successful candidate. The petitioner, feeling aggrieved from counting of the votes, challenged the result through this petition and prayed for recounting of the votes. The respondents Nos.1 and 3 filed their rejoinder, contesting the petition and raising some legal objections, including the maintainability of the petition, in view of section 31(2) and section 32(6) of the Senate (Elections) Act, 1975 (hereinafter called as "the Act"). Upon the preliminary legal objection regarding the maintainability of the petition, the following issue was framed and the matter was fixed for arguments to resolve this issue:

"Whether the Tribunal has no jurisdiction to entertain the petition in view of section 31(2) and section 32(6) of the Senate (Election) Act, 1975?"

2. Learned counsel for the respondents stated that under the Act, any candidate aggrieved from a result of a count votes, can prefer an appeal before the Election Commissioner under section 32 of the Act. He further stated that under section 31(2) of the Act, there is a bar on filing of an election petition before the Tribunal, therefore, the present petition is incompetent, as such, is liable to be rejected.

3. Controverting the contention of the learned counsel for the respondents, the learned counsel for the petitioner stated that pursuant to section 34 of the Act, the petition is competent before the Election Tribunal and that Article 225 of the Constitution of the Islamic Republic of Pakistan exclusively grants jurisdiction to an Election Tribunal to determine an election dispute through an election petition, therefore, the present petition has been competently filed. The learned counsel in supports of his contention relied upon the cases of Syed Mukhtar Hussain Shah v. Waseem Sajjad, reported in (1986 PLD SC 178) and Syed Murad Ali Shah v. Chief Election Commissioner of Pakistan, reported in (1995 MLD 1326).

4. After hearing the counsel for the parties, the only question for determination at this stage is to see whether the election petition in respect of the counting of the votes can be filed before the Tribunal. The Senate is a creation of the Constitution and Article 53 provides the mode of election to the Senate to be conducted under the Senate (Elections) Act, 1975, and the Senate (Election) Rules 1995 enacted thereunder. The Election Commission of Pakistan is required to supervise the senate elections. Section 24 of the Act prescribes the procedure at the close of a poll and completion of a count. If any dispute with regard to the result declared by the Returning Officer arises, a remedy for its resolution has been provided in section 31 of the Act, which is reproduced as under:

"S.31. Election not to be questioned except by Election Petition or appeal.

(1) Save as provided in section 32, no election shall be called in question except by an Election Petition under section 34. (2) No question that can be settled in an appeal under section 32 shall be raised by an Election Petition or before any court or authority whatsoever, nor shall any question that can be raised by an Election Petition be raised before any court or authority other than an Election Tribunal." The above referred section puts a bar on filing of an election petition before any court or authority, other than an Election Tribunal with regard to re-counting of the votes in the election of Senate. To the contrary, Article 225 of the Constitution of the Islamic Republic of Pakistan assigns power only to an Election Tribunal through an election petition in respect of an election dispute. The Article 225 of the Constitution is reproduced hereinbelow:

"Election Dispute.

No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of [Majlis-e-Shoora (Parliament)].' Here a question arises as to whether a disagreement upon a result of a count of votes and a request for its re-counting comes within the definition of an election dispute? In the Act, as well as, in the Constitution, the word "an election dispute" has not been defined, however, the Concise Oxford English Dictionary defines only the word dispute as under:

"Dispute. 1. argue about (something). Question the truth or validity of (a statement or alleged fact). (2) compete for. (3) resist. A disagreement or argument."

5. In the light of the definition of a dispute, a disagreement or questioning the validity of a result of a count of votes prepared by a Returning Officer, is an "election dispute", which requires resolution. The Act and the Constitution provides two different forums, therefore, a question arises as to which forum has the jurisdiction to entertain and decide the dispute. It is a well-settled principle that the Constitution is supreme, therefore, no legislation and any of its provision should be inconsistent with any provision of the Constitution. If any provision of any Act is found inconsistent with any provision of the Constitution; in that case, the Constitution having an overriding effect, must prevail. Article 225 of the Constitution starts with a negative word and the phrase "except by an Election Petition" has purposely been used to show the intention of the legislature in this Article, which clearly oust the jurisdiction of any forum other than an Election Tribunal. When the Constitution specifically bars a jurisdiction of any forum and directs the resolution of any election dispute through Election Petition before Election Tribunal, then a restriction imposed upon filing of Election Petition by section 31(2) of the Act is inconsistent with Article 225 of the Constitution, therefore, the bar contained in this section of the Act in no way oust the jurisdiction of the Tribunal. Under such circumstances, the forum provided by the Constitution alone has the jurisdiction to adjudicate the election dispute, because the Constitution will prevail to the extent of the conflict. The Hon'ble Supreme Court of Pakistan in the case of "Mukhtar Hussain Shah v. Wasim Sajjad, reported in (PLD 1986 Supreme Court 178) has held as under:

"The upshot of these statutory provisions is that the challenge to an Election is possible only by an Election Petition and further that such Election Petition has to be disposed of by an Election Tribunal appointed by the Commissioner (section 57 of the Act LXXXV of 1976 and section 38 of the Act). On no hypothesis can the Commissioner pre-empt the powers and the functions of the Election Tribunal nor do the powers and jurisdiction of the Election Tribunal get affected in dealing with an election disputer, by what the Commissioner has done in the matter of counting the jurisdiction of the Election Tribunal neither Order II, rule 2, C.P.C. nor section

11. C.P.C. can be invoked by the appellant for shutting out an Election Petition." Similarly in the case of Murad Ali Shah v. Chief Election Commissioner reported in (1995 MLD 1356), the Supreme Court of Pakistan has held as under:

"The decision was based on the principle that where there is conflict between the Constitution and subordinate law, the Constitution shall always prevail to the extent of conflict. On the strength of this rule, the provisions of Article 225 of the Constitution shall prevail over any other subordinate legislation providing a different forum for challenging election to a House of Parliament. Thus, section 32 of the Senate Act, which has provided appeal to the Election Commissioner against the count of votes is not remedy envisaged by Article 225 of the Constitution for challenging the elections of a returned candidate. "

6. The Election Commissioner is an Administrative Head of the Commission, having power of an appeal with regard to re-counting of the votes under the Act. Such power of the Commissioner is not a substitute of Tribunal rather it is equivalent to the power assigned to the Returning Officer under subsection (6) of section 39 of the Representation of the People Act, 1976. An aggrieved candidate may avail such remedy and of-course his decision in the administrative capacity is final, however, it can be challenged before the Tribunal. Hence, availing and non-availing of a remedy under section 32 of the Act does not debar a candidate from filing of an Election Petition, nor it excludes the jurisdiction of an Election Tribunal.

7. Thus, in view of what has been stated and discussed hereinabove, the objection so raised by the respondent No.1 is over-ruled and it is held that this Election Tribunal has the jurisdiction to hear and try the Election Petition accordingly. MH/15/Q Order accordingly.