P L D 2005 Karachi 501 (PLP)

Respondent No.1 Ghulam Murtuza and respondent No.2 Abdul Wahab filed Election Petition bearing No.45 of 2001, asserting therein that, applicants herein with respondents Mehfooz Ali and Muhammad Khalid Shaikh had contested direct elections for Taluka Nazim and Naib Nazim for Tehsil Council Tando Adam, District Sanghar held on 2-8-2001, under Sindh Local Government Election Rules; respondents Nos. 1 and 2 herein and the applicants herein had secured highest votes than respondents Nos.3 and 4 herein in the said contest, as asserted by respondents Nos. 1 and 2 in the said Election petition, but failed to secure majority of the total votes of the Electoral College; hence the runner up election was held on 8-8-2001 under Rules 57 and 58 of the Election Rules wherein petitioners herein were declared elected as Nazim and Naib Nazim respectively for the said Tehsil Council. In short, the respondents Nos. 1 and 2 herein prayed in the said election petition for the following reliefs: "(i) That the election of the respondents 1 and 2 be declared as void and that the petitioners may be declared as having been duly elected. (ii) That the counting of the votes of the respondents 1 and 2, which have been counted in favour of the respondents, be made afresh and the result be announced." The Petitioners herein filed an application under Order VII, rule 11, C.P.C., praying therein to reject the plaint/memo. of the said election petition, on the grounds that their names were published in the official Gazette on 16-8-2001 declaring them as successful in the said contest/election, and further that under Rule 71(2) of the said Election Rules, an election petition could be filed within 30 days of the publication of the results/names of the successful candidates in the official Gazette (as returned candidates), whereas the respondents Nos.1 and 2 herein filed the said election petition on 28-9-2001 viz. after expiry of the period of limitation. Learned Tribunal dismissed the said application vide order dated 5-1-2004 which is impugned through this Civil Revision Application; it was observed in the order that Gazette Notification dated 16-8-2001 was not received by the petitioners officially and it was not shown that the Gazette Notification was available with the Election Commission office or with the relevant authorities in Sanghar District, that the said election petition was filed with an application under section 14 of the Limitation Act was heard, and was allowed at the time of admission thereof, and the delay in filing of the election petition was condoned. Heard Mr. Ghulam Qadar Jatoi, Advocate for the applicants and Mr. Jhamat Jethanand Advocate for respondent No.2 while Mr. Siddiq Mirza Advocate for respondent No.1 did not appear to argue this Civil Revision Application. However, case of the said two respondents appears to be identical to each others. It may be stated that though the provisions of Civil Procedure Code have not been specifically made applicable for the purpose of trial of election petitions by the Election Tribunals, duly notified by the Election Commission of Pakistan, yet for the purpose of such proceedings, as and when necessary, the Election Tribunal can take benefits of Civil Procedure Code for effectual adjudication of the election petitions; so also, the applicants herein had moved the above stated application for rejection of the memo. of election petition under Order 7, Rule 11, C.P.C., and therefore the present Civil Revision Application appears to have been competently filed by the present applicants under section 115, C.P.C., as already held vide order dated 4-3-2004 passed in this Revision Application. So far as question as to whether or not the election petition filed by the respondents Nos. 1 and 2 before the Election Tribunal was in time, suffice it to say that the relevant provisions of Qanun-e-Shahadat, 1984 are to be referred to, more particularly Article 92 of the said Order, which reads as under:-- "

92. Presumption as to genuineness of documents kept under any law: The Court shall pressure the genuineness of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody." The said aspect of the case having not been discussed by the learned Tribunal, the order impugned herein, together with the order passed by it for condoning the delay in filing of the election petition are hereby set aside, and the application under Order VII, Rule 11, C.P.C shall be deemed to be pending before the learned Tribunal, with a direction to it to re-hear the parties afresh on the said application and to decide the same afresh according to law. H.B.T./M-226/K Order accordingly. ***