1998 PLP 1304 (CLC)

WAJIHUDDIN AHMED, J.‑‑‑Since there are common questions of fact and law involved in these petitions such are disposed of through this common order. As to facts, the Election .Commission of .Pakistan, pursuant to section 11 of the Representation of the People Act, 1976, issued, inter alia, a notification, dated 16‑12‑1996, which was published in the Gazette of Pakistan Extra‑ordinary, dated 17‑12‑1996. According to such notification, whereby the constituencies were generally called upon to elect representatives, successive dates of filing of nomination papers, scrutiny thereof, appeals against rejection/acceptance etc., were notified. The crucial date for our purpose is the last date for filing of nomination papers, viz. 21‑12‑1996. It is the case of the petitioners (prospective candidates) before us that all of them were present before the relevant Returning Officers on 21‑12‑1996 before the expiry of the appointed time namely, 3 p.m. on that date but because such time expired on account of rush of work their nomination papers were not entertained. It would seem that the petitioners under‑took an earlier round of litigation and filed Constitutional Petitions here, some of which were rejected, the matters going to Supreme Court of Pakistan. There, we are informed, orders were passed to the effect that the Returning Officers were to entertain the relevant nomination papers, which being done, the nominations could either be rejected or accepted, giving rise, in course of time, to due appeals before the pre‑elections Tribunal set up under the aforesaid enactment of 1976. It is maintained that upon being thus, entertained the nomination papers were rejected as beyond time and the petitioners approached the Election Tribunal, which through a common order, dated 9‑1‑1997, dismissed the appeals. Here, it may be relevant to point that the Tribunal, on the factual plane, found 'that all candidates or other concerned persons, who were physically present before the Returning Officers on the appointed day, before the afflux of the appointed time, were favourably dealt with inasmuch as their nomination papers were entertained even beyond the time fixed. In the circumstances, we do not think that such a factual conclusion is open for further scrutiny at this level of the proceedings and at this stage. Even so, several questions of fact and law have been thrown up for examination. It has been argued before us that in terms of section 11 of Representation of the People Act, 1976, the aforesaid notification, dated 16‑12‑1996 does not qualify as a valid one. Relevantly, section 11(1)(a) runs thus: "

11. Notification for election.‑‑‑‑(1) As soon as the President makes an announcement of the date or dates on which the polls shall be taken, the Election Commission shall, by notification in the Official Gazette call upon a constituency to elect a representative or representatives and appoint‑‑‑ (a) the last date for making nominations, which shall be fifth day after the date of publication of the notification or, if that day is a public holiday the next succeeding day which is not public holiday;" (emphasis supplied) To be precise, contention is that the period of five days allowed by section 17(1)(a) is to be a clear period and the count is to common after excluding the date of publication of the relevant notification in the Official Gazette. Proceeding on that basis, the last date for filing of nomination papers would come to be 22‑12‑1996 and not 21‑12‑1996, as notified by the Commission. We may add here that such question though raised before, it was left undecided by the Election Tribunal, (comprising of our learned brothers Kamal Mansoor Alam and Ali Muhammad Baloch, JJ.) in its aforesaid order, dated 6‑1‑1997 and the reasons for so doing appear in the following passage, which we reproduce for the sake of ready reference: "We called for the notification from the Election Commission Office and the notification placed before us shows that it was issued on 16‑12‑1996 but it was published in the Gazette of Pakistan on 17th December, 1996. If the fifth day provided for the receipt of nomination paper under the aforesaid clause (a) is to be reckoned excluding 17th it would appear to end on 22‑12‑1996. However, in respect of both these objections, it may not be possible for this Tribunal to express any opinion for the simple reason that this Tribunal has a very limited jurisdiction confined only to deal with appeals filed by candidates against the decision of the Returning Officers rejecting or, as the case may be, accepting the nomination paper of the candidates.' It will therefore, perhaps not be proper for us to examine the action of the Election Commission. Even otherwise, with the short time at our disposal, we have to decide around 113 appeals by 7‑1‑1997, it will not be possible to undertake detailed examination of the questions being agitated with regard to the scope of the powers of the Election Commission in issuing the notification under section

11. As such, we leave these questions to be taken up by the appellants before the proper forum in appropriate proceedings." In order to entertain the argument in the exercise of Constitutional jurisdiction of this Court, we have been referred to Ghulam Mustafa Jatoi v. Additional District and Sessions Judge, 1994 SCMR 1299, where if not the same at least a similar question pertaining to the submission of a nomination paper was allowed to be agitated in the Constitutional jurisdiction of the superior Courts. Thus, there appears to be no apparent preclusion to examine such a question here, more so when the Tribunal has declined to determine the same and, additionally, when no appeal lay against the order of the Tribunal, spelling finality thereof. Mr. Khalid Javed, for some of the petitioners, as to the concept of publication of a notification, has drawn our attention to Province of East Pakistan v. Hasan Askary, PLD 1971 SC 82, where a comprehensive discussion has taken place as to the various requirements touching the publication of notification and it has been found that even where the relevant law does not expressly stipulate the notification to be gazetted, its gazetting is implicit by virtue of the provisions in the General Clauses Act and, besides, mere publication as well may not in itself be sufficient compliance of law, unless it be further shown that the publication was effected in the manner usually adopted for such a purpose. A similar view was expressed by the same Court in Muhammad Suleman v. Abdul Ghani, PLD 1978 SC

190. Needless to add the subsection (1) in section 11 (supra) pointedly requires the notification to be gazetted, making the legislative intent more than amply manifest. We have also been invited to opine on the connotations of word "after", occurring in the reproduced portion of section 11 (ibid) and in context Manjuli v. Civil Judge, AIR 1970 Bombay 1 and Jitender Tyagi v. Delhi Administration and another, (1989) 4 Supreme Court Cases 653, have been referred, which appear to be pertinent. It is plain that where an act is required to be done within a specified period after a given event or "after" the prescribed date or time of such event, the point of time from which the period is to be reckoned or to commence, is not to be counted and the period or as many days involved mean, unless otherwise provided, clear time. This is a rule based on common sense and good reason and has also been adopted in the law pertaining to limitation. Thus, section 12(1) of the Limitation Act, 1908, expressly provides that where limitation is prescribed to commence under such enactment from a particular day, such day would not be taken into reckoning. Besides, in a central statute in order to exclude the first in a series of days or any other period of time, it has been postulated in section 9 of the General Clauses Act, 1989, that the use of the word "from" would be deemed as sufficient. It should hardly brook any argument that for excluding such a first day the word "from" is much weaker than the word "after", used in section 11 in question, section 9 in the General Clauses Act, 1897, is as under:‑‑‑ "

9. Commencement and termination of time.‑‑‑(1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word 'from', and, for the purpose of including the last in a series of days or any other period time, to use the word 'to'. (2) This section applied also to all Central Acts made after the third day of January, 1868; and to all Regulations made on or after the fourteenth day of January, 1887." Placed in this legislative and legal background, it would appear that the relevant date is the date of the gazetted notification viz. 17‑12‑1996 and not the date of its issue i.e. 16‑12‑1996. On such premise, if the period of 5 days in clause (a) of subsection (1) of section 11 of the 1976 statute is to be counted, the count is to be related back to that period "after" the date of the gazetted notification. That being so, December 17, 1996, would be excluded and the 5th day would culminate on 22‑12‑1996 and not 21‑12‑1996, as notified. Correspondingly, the argument of the learned counsel for the petitioners is well founded and acceptable on any standard of reasoning. As against this, the learned Standing Counsel has referred to section 11‑A in the Representation of the People Act, 1976, and has urged that the Election Commission is fully competent to alter the election schedule and the various dates comprised therein which being so that power may be deemed to have been exercised in the issuance and promulgation of the above notification. This appears to be far‑fetched because for something to be altered that thing must pre‑exist and there was no pre‑existing notification either on December 16, 1996 or December 17, 1996 to be altered in terms of section 11‑A. Another objection of the learned Standing Counsel is that the above argument was not advanced by the petitioners in the earlier round of litigation when the previous Constitutional Petitions were filed and when the matter was taken up to the Supreme Court. It is contended that such constituted acquiescence on the part of the petitioners and they stand estopped from raising the plea at this stage. We are unable to agree. The bar, if any, could have applied if in terms of Order II, Rule 2, C.P.C. all the available causes of action were not joined in the previous proceedings and one or more causes, having been left out, were agitated later on. For obvious reasons, the cause of action at this stage is not the same as "at" the stage of the previous Constitutional Petitions. At that time, all that the petitioners were seeking was no more than entertainment of their nomination papers. For that relief whatever was found necessary was pleaded and that apparently was enough as the petitions succeeded in the ultimate analysis. They are, as at present, aggrieved not on account of non‑entertainment of their nomination papers but in relation to rejection thereof and surely this is a different stage and a different cause of action. The petitioners can, therefore, take any legal plea available to them at this juncture of the proceedings. What is more, this very question was expressly taken in the appeal before the Tribunal but the Tribunal, as quoted by us, declined to interfere on the grounds and reasons, which we have already stated. Yet another aspect of the matter focused by the learned counsel for the petitioners, pertains to the giving of the follow‑up notices at the level of the Returning Officers. It has been argued before us that requisite notices were only pasted on the notice boards in the offices of the Returning Officers and no publication in the constituencies, as prescribed by section 11(3) of the Representative of the People Act, 1976, actually took place. This being so, argument in that the various ingredients of the time schedule did not lawfully and effectively come into play. However, the question does not appear to have been discussed in the referred order of the Tribunal even though the learned counsel for the petitioners say that such a question was explicitly raised. We are afraid that such is a question involving examination and proof of facts, which at such a late stage and in the circumstances, we feel, would be counter‑productive to go into and, therefore, we refrain from expressing ourselves on the matter one way or the other in these proceedings. The petitioners have next argued that there are certain inconsistencies in the instructions issued by the Election Commission to the various functionaries upon whom has been cast the duty and to whom have been assigned the functions of conducting the forthcoming national elections. Relevantly, it is pointed that under the title "Time and place of inviting nominations" in paragraph 12 of the Manual of Instructions, the time of receipt of nomination papers is stipulated to be "between 9 a.m. and 3 p.m. daily". As against this, the same Manual in the applicable proforma of the notice envisages the time restriction to be between "9 O' Clock in the morning and 4 O'clock in the afternoon on all working days from..." It seems to us that the inconsistency or the contradiction, as the case may be, has occurred because in the previous Manual of Instructions issued pertaining to the last elections, the prescribed .period of time was between 9 a.m. and 4 p.m., which evidently was altered in so far as paragraph 12 (ibid.), is concerned but a corresponding modification did not take place in the pro forma of the notice in question. Be that as it may and irrespective of the reasons for the discrepancy, the fact remains that such a development may have worked hardship in relation to all or at least some of the petitioners, thereby and in effect a disenfranchising the affectees, which is a very serious matter. This inconsistency, accordingly, cannot be ignored and necessary relief appears to be "warranted". In the ultimate analysis, as pointed out by Mr, G. M. Saleem, we must advert to the relevant Constitutional provision, which is Article 218(3) and which is as under:‑‑‑ "

218. Election Commission.‑‑‑(1) (2) ..................................................... (3) It shall be the duty of the Election Commission constituted in relation to an election to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against. " The above reproduced clause in the Article clearly shows that it is the duty of the Election Commission, inter alia, to organize and conduct the election as also to make arrangements in order to ensure that "the election is conducted ....in accordance with law". It seems to us that if the foregoing requirements were not satisfied by the Election Commission, it did not, at least in relation to the petitioners, duly fulfil its obligations under the quoted clause in Article 218 of the Constitution. That in itself in no trifling matter. While we are in agreement with the petitioners that they or any of them may have been hit on account of the various infirmities pointed out above and could be entitled to the protection of law, we must, at the same time, emphasis that if a substantial period of time is prescribed for doing of an act and that period runs into several days, there can hardly be any justification for a person who wait till the last date to do the needful and then attempt to take advantage of a development occurring on such date, which development, obviously, could have been warded off, if the available time in its entirety had been fully utilized, Thus, if there were no infirmities involved as above, the mere fact that a nomination paper was presented at 3‑5 p.m. on the last day i.e., five minutes beyond the time prescribed should have been fatal. This arises because a last minute development should not, normally, be allowed to wipe off earlier in action, without cogent and lawful reasons. The principle, however, does not apply here, because there are obvious defects in the procedure adopted and the petitioners, as a result, may not only have been hit but possibly even been disenfranchised. In circumstances, where we have heard these petitions on an understanding from the learned counsel that the same can be heard, admitted and disposed of at the same time, we are inclined to allow the petitions by recalling the orders of rejection of the petitioner's nomination papers and requiring the Returning Officers to examine the same within 24 hours of the communication of this order and, that being done, passing appropriate orders in consonance with the applicable law. We may add here that while, for obvious reasons, the remaining time schedule in the notification cannot be adhered to in material particulars yet that should not deter the relevant Officers from expeditiously proceeding with these matters in conformity with the spirit of the provision in section 15(2) of the Representation of People Act, 1976, that provision contemplating an emergent situation of the same character, following upon the allowing of an appeal, in circumstances where, in the meantime, the relevant periods may have elapsed by afflux of time. In so doing the concerned Officer(s) would act expeditiously and without loss of time and ensure, wherever necessary, that the names of the concerned candidates are duly and well in time brought on the ballots. In these terms but with no order as to costs, the petitions are allowed. A.A./B‑28/K Petition accepted