2003 PLP 3021 (YLR)

Comments were filed on behalf of the Election Commission whereby it was stated that the said notification was issued as the seat had fallen vacant.

6. Meanwhile on 16‑6‑2003 an application under Order XXXIX, rules 1 and 2, C.P.C. read with section 64 of the Representation of the People Act, 1976 was moved on behalf of the petitioner and it was insisted that interim order to the extent of suspending the operation of Notification, dated 3‑5‑2003 be passed. Learned Additional Advocate General opposed the grant of interim relief and raised objections regarding the maintainability of the petition. The petition was accordingly fixed for further orders and hearing of application under Order XXXIX, rules 1 and 2, C.P.C.

7. The arguments of learned counsel for the petitioner and the learned Additional Advocate‑General were heard on the point of maintainability and grant of interim relief.

8. It was contended by learned counsel for the petitioner that since the respondent who was declared successful had expired and that all the remaining respondents were already made ex parte, the petitioner was entitled to be declared as successful having secured highest number of votes in the polls. It was next contended that even otherwise the elections of the returned candidate was liable to be declared void as corrupt and illegal practices were committed by him during the elections. It was argued that since the petition was verified on oath and was duly supported by affidavit and the relevant documents and further that nothing was produced in rebuttal the contents of petition be deemed to be true. The circumstances warranted declaring petitioner to be the returned candidate. It was further contended that the Notification issued by the Election Commission of Pakistan whereby a schedule of bye‑elections was notified was violative of law. It was, therefore, argued that if due to constraints of time petition could not be decided/disposed of the operation of impugned notification be suspended and consequently the bye‑elections in the Constituency scheduled to be held on 23rd June, 2003 be stayed. It was however, admitted by learned counsel for the petitioner that the petitioner was also contesting the bye‑elections, but it was emphasized that the petitioner has filed the nomination forms and was contesting the election under protest.

9. Conversely it was argued by learned Additional Advocate‑General that election campaign was in full swing in which the petitioner was also fully participating. He opposed the submission regarding staying of the election process. It was further contended that the petition was lacking in the required particulars as provided under section 55 of the Representation of the People Act. The allegations were vague and were not supported by proof. It was next argued that the petition was not maintainable and that no prima facie case was made out. This was a fit case in which injunction should be refused.

10. Arguments rendered .by learned counsel for the petitioner and learned Additional Advocate‑General have been given anxious consideration and the material placed on record has been examined.

11. In order to appreciate the contention raised by the learned counsel for the petitioner it appears appropriate to examine the relevant provisions of law. The grounds for declaring election of returned candidate void have been enumerated in section 68, while grounds for declaring a person other than a returned candidate elected are specified in section 69 and the grounds for declaring elections as a whole void find mention under section 70 of the Representation of the People Act, 1976. It seems beneficial to reproduce hereunder the provisions of above mentioned sections:‑‑

68. Grounds for declaring election of returned candidate void.‑‑‑ (1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that‑‑‑ (a) the nomination of the returned candidate was invalid; or (b) the returned candidate was not, on the nomination day, qualified for or was disqualified from, being elected as a member. (c) the election of the returned candidate has been produced or induced by any corrupt or illegal practice; or (d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent. (2) The election of a returned candidate shall not be declared void on the ground‑‑‑ (a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by, or with the consent or connivance of that candidate or his election agent anti that the candidate and the election agent took all reasonable precaution to prevent its commission; or (b) that any of the other contesting candidates was, on the nomination day not qualified for or was disqualified from, being elected as a member.

69. Ground for declaring a person other than a returned candidate elected.‑‑ The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other congesting candidate was entitled to be declared elected.

70. Ground for declaring election as a whole void.‑‑‑The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of‑‑ (a) the failure of any person to comply with the provisions of the Act or the rules; or (b) the prevalence of extensive corrupt or illegal practice at the election.

12. The petitioner in the prayer clause (i) has made a prayer seeking declaration that the election of respondent No.1 as Member of National Assembly is void. In prayer clause (ii) declaration is sought to the effect that the petitioner having secured highest votes amongst lawfully contesting candidates be declared as elected and duly returned candidate. Alternatively it is prayed that the entire elections be declared as void and fresh election be ordered.

13. So far as declaring the petitioner or for that matter any other contesting candidate to have been duly elected as contained under the provision of section 69 (ibid) the Tribunal before making any such declaration "shall declare election of the returned candidate to be void" and for declaring election of the returned candidate void as provided under section 68 the Tribunal has to satisfy itself that (a) the Nomination of the returned candidate was invalid, or (b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from being elected as a Member, or (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice, or (d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the consent and connivance of the candidate or his election agent.

14. Perusal of the contents of petition clearly shows that the petitioner was seeking declaration of the election of returned candidate void on the basis that election of returned candidate was procured by corrupt and illegal practice. It was so emphasized by Mr. Muhammad Junaid Farooqi, Advocate for the petitioner, in his arguments. It hardly needs to be emphasized that in the election disputes, the burden to prove illegal and corrupt practice lies heavily on the petitioner. The allegations of irregularities, illegalities and corrupt practices are to be established like a criminal charge, beyond a shadow of doubt. It is well‑settled law that the petitioner who challenges the election of a returned candidate in order to prove the charges is required under the law to state full particulars of corrupt practice or any other illegality committed by the returned candidate during the process of elections. In the case of Muhammad Saeed v. Election Petitions Tribunal PLD 1975'SC (Pak.) 91, it was held "that where an election is sought to be set aside on the ground of commission of corrupt practice, the party challenging its validity must specify in the petition the corrupt practice committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practice. "

15. Perusal of the contents of petition and precise statement of facts it seems that the required particulars are badly lacking. The allegations of illegal acts are absolutely vague, unspecific and imaginary. No date, time and place of the commission of such practice or act has been incorporated. No names of the persons who allegedly committed such illegal acts find mention in the petition. It is alleged in para. 2 of the petition that party leaders openly appealed to public in election meetings and corner meetings that the voters belonging to Muhajir community were duty bound to vote for none except Muhajir candidate. This was widely publicized by means of banners, pamphlets and posters. Though number of annexures have been filed alongwith the petition but no any poster or pamphlet to that effect as alleged has been annexed with the petition. A series of complaints are claimed to have been made to different authorities in writing but not a single document contains any allegation. There are number of allegations against the conduct of the Returning Officer with regard to change of polling stations and polling staff as according to the allegations Returning Officer declined to oblige the petitioner in the appointment of polling staff. Again there are vague allegations in para. 7 with regard to the corrupt practices committed at polling stations falling within Union Councils Nos.6, 7 and 8, but no specific polling station has been mentioned where the illegal acts were committed. In support of the petition, the petitioner apart from his own affidavit filed affidavits of as many as eleven other witnesses but none of them made any specific allegation in his affidavit. No document of whatsoever nature has been annexed with the petition to show that any of the bogus votes was challenged by any of the polling agent of the petitioner, even no copy of any application or complaint allegedly moved by the petitioner with regard to rigging or casting of bogus/fictitious votes has been placed on record. Even Kamal Ahmed Farooqui who claimed to be the election agent of the petitioner simply stated in his affidavit that the contents of the petition were true and correct. Said witness chose not to divulge any specific illegality or corrupt practice. Affidavit of not a single voter was filed to substantiate the allegation that the voters/supporters of the petitioner were prevented by respondent No. 1 for that matter any one on his behalf from exercising his right to vote. It seems that the petitioner had been struggling for re‑counting of the votes as apparent from his application dated October 22, 2002 addressed to the Election Commission of Pakistan and annexed with the petition as Annexure "S‑12". The Election Commission of Pakistan is in its order 30‑10‑2002 was pleased to observe as under:‑‑ "It appears that the application was mainly moved for re‑counting of votes but subsequently the petitioner changed his designs and did not allow the Returning Officer to carry out re counting process. He made certain demands which were not in the competence of Returning Officer and on his refusal he created havoc for disturbing re‑counting process."

16. C.P. No. 1874 of 2002 whereby decision of the Election Commission of Pakistan was challenged appears to have been withdrawn as not pressed by the petitioner. Perusal of the entire petition reveals that no allegation of whatsoever nature was. levelled against the returned candidate. There are unspecific allegations contained in the annexures, most of which relate to the requests made by the petitioner from time to time for change of polling stations. The petitioner in order to strengthen and improve his case has even annexed with the petition copies of certain complaints which were not in fact made by the petitioner himself. For example applications marked "N/4", "N/5", "N/6" and "N/7" were purportedly submitted by one Shamrez Khan. Surprisingly enough no affidavit of Shamrez Khan was filed in support of allegations: Affidavit in evidence filed by the petitioner only says that in order to avoid unnecessary repetition the contents of his petition be deemed to be his affidavit in evidence. How far this affidavit in evidence would strengthen the case of the petitioner does not require to be discussed.

17. The facts as narrated hereinabove make it abundantly clear that the petition is devoid of full particulars of illegal practice or illegal acts as envisaged under section 55 of the Act. Obviously miserable failure on the part of the petitioner to show as to how the election was procured by means of illegal practice has rendered this petition to be causeless, as it does not furnish cause or action. Since the material facts have not been pleaded and no material has been placed on record no meaningful purpose will be served to allow the petitioner to lead further evidence.

18. As provided under section 63 of the Representation of the People Act, 1976, the Tribunal shall'‑dismiss an election petition during trial if (a) the provisions of sections 54 and 55 have not been complied with; or (b) it the petitioner fails to make the further deposit required under subsection (4) of section

62. Section 55 ibid provides that, every election 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 as full a statement as possible 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.

19. Apart from above, Tribunal possesses all the powers of Civil Court trying a suit under the Code of Civil Procedure 1908 and shall be deemed to be a Civil Court within the meaning of sections 476, 480 and 482 of the Code of Criminal Procedure 1898, as contemplated under section 64 of the Representation of the People. Act, 1976. In an ordinary civil litigation the Court readily exercises the powers to reject a plaint if it does not disclose any cause of action. Powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent Court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. Such being the position in regard to matters pertaining to ordinary civil litigation, there is greater reason for taking the same view in regard to matter pertaining to elections. Thus, there is no escape from the conclusion that an Election Petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under Code of Civil Procedure. So also appropriate orders under C.P.C. can be passed if the mandatory requirements enjoined by the provisions of Act to incorporate the material facts in the election petition are not complied with. More particularly in the instant matter the schedule of bye‑elections has already been notified whereby the elections in the Constituency are scheduled to be held on 23rd instant. In pursuance of the above notification, admittedly the petitioner accepted nomination to his candidature for the said election and had been associated with the election process since then. The process of election is in full swing. Undoubtedly the petitioner .is, participating and zealously contesting the election and is running his election campaign vigorously. The petitioner has thus acquiesced in, and thereby disentitled himself, for grant of injunction, on this ground apart from various other grounds. The petitioner is estopped by his conduct. Even otherwise it is unjust, unfair and unwise rather against equity to abruptly disrupt the process of election, which is entering in concluding phase: In the peculiar circumstances, this is a fit case to follow the principles laid down by Honourable Supreme Court in Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC

166. In the mentioned case their Lordships upheld the denial of relief to the writ petitioners by the High Court and declined to disturb/disrupt the schedule of general elections with a view to afford an opportunity to the people of Pakistan to choose their representatives, while approving the first part of the maxim, "fiat justitia" (let justice be done) and discarding the rest namely "ruat coelum" (though the heavens should fall), it was observed by their Lordships that "justice should be done, in such a manner that the, heavens should not fall". In the circumstances, as discussed hereinabove I have arrived at an irresistible conclusion that the petition is liable to be dismissed under section 63 of the Representation of the People Act, 1976. The same is accordingly dismissed alongwith stay application with no order as to costs. M.B.A./5/Elec. Petition dismissed.