2005 PLP 340 (MLD)

6. The moot question involved in this appeal is reflected in Issue No.1 which deals with the status of a member to cast vote and the effect of no objection on the voters list. It is pertinent to mention here that the list of eligible voters of the Bar Association of Wazirabad was released on 15‑12‑2003, pursuant to the rule 45 of the Memorandum, of Association, 1981 and poling was held on 15‑1‑2004. No objection was raised by any side' on the said list and as a result polling was conducted on the basis of the same voters list. It will not be out of place to mention here that it is an admitted fact that the Vice‑President elect (sic) Mirza Zaheer Anjum Baig was elected as Finance Secretary in the year 2002 arid Joint Secretary in the year 2003. None of the members ever raised any objection on his two elections. For this year also his name along with two more members were included in the list of eligible voters but with no objection from any quarter till the results were announced.

7. It is to be noted that the terms "Eligible Voter" and "Member" have been defined separately in the Memorandum of Association, 1981. At the same time, an Advocate is permitted to become Member of more than one Bar Association vide Rule 7.10(a) of the Punjab Legal Practitioners and Bar Council Rules, 1974. It would be advantageous to quote these legal provisions which read as follows:‑‑ "... Rule 5(d) `Eligible Voter', means an Advocate whose name for the time being appears on the Roll of the Bar Association and has fulfilled the conditions laid down under Rule 7.10 of the Punjab Legal Practitioners and Bar Council Rules, 1974 and not debarred from use of library books or declared as a defaulter. Rule 5(e) `Member', means a member of the District/Sub Divisional Bar Association who is validly entitled to participate in the affairs of the Bar Association .... : " "... 7.10 No person shall practise as an Advocate unless, he is a member of a recognized Bar Association. 7.10(a) An Advocate may become member of more than one Bar Association. 7.10(b) An Advocate who is, or becomes member of more than one Bar Associations, shall (before 31st December) from the date of publication of this Rule. [(a) file one declaration each with one Bar Association in the District and a High Court Bar Association, where he proposes to exercise his right of vote; and (b) send copies of this declaration to the Bar Association of which he is a member] , However, the Punjab Bar Council, may for sufficient reasons, extend the said period. No Advocate shall file a fresh declaration before the expiry of three years from the said declaration. An Advocate who acts in violation of such declaration shall be guilty of professional misconduct: Provided further that the provision, as aforesaid, shall not apply to the membership of the Supreme Court Bar Association ...." It is apparent from the above quoted Rules that an Advocate is entitled to become Member of more than one Bar Associations but will be entitled for the right of vote in one District Bar Association and in one High Court Bar Association. The restrictions spelled out in the. A above Rules are that an Advocate cannot exercise his right of vote in two Districts and two High Courts Bar Associations. But he will be entitled for all other privileges and entitlement of these Bar Associations. It is settled law that the proceedings before an Election Tribunal is quasi‑civil and quasi criminal and any doubt arising therefrom must be extended to the returned candidate. (please see Syed Saeed Hassan v. Pyar Ali PLD 1976 SC 6). It was contended by the appellants that the findings of the learned E.C. Punjab is beyond the pleadings of the respondent No.1. Indeed, it is well‑settled that in order to prove allegations of corrupt practices, it must be specifically pleaded in the petition. But the most relevant aspect of this case is that respondent No.1 has admitted in his petition before E.C. Punjab that the List of eligible voters was published/displayed on 15‑12‑2003, and that he participated in the elections process without any objection. We would like to observe that once a final list of eligible voters is published/circulated/displayed 30, days before the polls, candidate or any eligible voter is entitled to raise objection before the Election Board which is competent under rule 46 of the Memorandum of Association to decide such objection. Now, the questions arise whether a candidate who has contested an election on a voter list without objection could take a turn and challenge the same after losing the elections and whether the rule of acquiescence or waiver would be attracted in election matters? In order to answer these questions, in our humble view, we have to draw a distinction between the. Election Rules, as to which are mandatory and which are directory in nature? So far Rule 7.10 of the Punjab Legal Practitioners and bar Council Rules, 1974, is concerned, it is mandatory and, an Advocate found violating these provisions would be guilty of professional misconduct to be tried before the concerned Disciplinary Committee of the Bar Council. However, it would be legally difficult to say that an election would be liable to be declared void on the basis that D Rule 7.10 (ibid) was violated. In this respect Rule 65 of the Memorandum of Association 1981, is referred which reads as follows:‑‑ " .

65. The election as a whole or the election of individual member shall be declared void under the following circumstances:‑‑ (a) It has been established that the candidate or with his connivance or consent someone or an eligible voter had paid on behalf of eligible voters or eligible voters of Association his annual or part of annual subscription or any amount due from such voter or voters: (b) The candidate or with this connivance or consent an Advocate or person not being on the Roll of Bar Association previously, is got admitted as eligible voter prior to the date of election on payment with an intent to secure vote. (c) The candidate or his proposer or seconder were not eligible voters on the relevant date. (d) The candidate or his proposer or seconder was debarred from the use of library books for reasons of loss or damage of books or for failure to return them in time fixed by Library sub Committee. (e) Where the election rules or any instructions or orders issued by the Punjab Bar Council have been violated ...." (Emphasis added) The burden lies on a petitioner to prove beyond reasonable doubt that a member has cast his vote in violation of Rule 7.10 of Rule, 1974, with active consent of the candidate or with his connivance. This was the case of respondent No.1 before learned E.C. Punjab. A returned candidate cannot be unseated for the wrong committed by another person. In this reference, I would like to refer the case of Yaha Bakhtiar v. The State PLD 1983 SC 291 which arises from conviction imposed by the Special Court for the offences under section 2(aa) of the Holders of Representative Offices (Punishment for Misconduct) Order, 1977. Following the relevant observations of Full Bench of Honourable Supreme Court:‑‑ ........ The learned Special Court appears to have based its finding on this part of the charge on the assumption, albeit unwarranted, that since Mr. Munawar Mirza was the election agent of the appellant he must have instigated rigging at the instance of his candidate. No doubt, as observed earlier, in election matters a candidate can be held responsible for the actions of his election agent and the election itself can be got annulled on this ground. But obviously acts of an Election Agent cannot make the candidate criminally liable unless it is shown through positive evidence on the record that the agent had acted on his directions or instructions to commit some illegal act..." The case of the petitioner before E.C. Punjab was totally silent on the point that it was either the returned candidate or any of his supporter or agent who got admit the aforesaid three (3) persons as eligible voters prior to the date of election with an intent to secure vote. In our considered view, in absence of any material to support such allegations a returned candidate is not liable to be unseated on the ground that of instant petition. It would be pertinent to refer a decision of Justice Nasim Hassan Shah (as his Lordship then was) in the case of Mian Allah Nawaz, Advocate v. Muhammad Asghar Ali Bhatti PLD 1977 Jour. 203 wherein his Lordship was hearing an election petition filed under rule 61 of the Bar Council (First Election) Rules, 1973. Some of the issues raised before the Election Tribunal of the Punjab Bar Council headed by Justice Dr. Nasim Hassan Shah were as follows:‑‑ "(i) Whether the election of the respondent can be called in question by this election petition when the petitioner had not raised any objection to the inclusion of the name of the respondent in the preliminary and the final Roll wherein the respondent's name was also shown in the list of Advocates of Bahawalpur? OPR (ii) Whether the failure of the petitioner to object to the nomination paper of the respondent filed from Bahawalpur District precludes him, from challenging the status of the respondent as an Advocate who practices generally at Bahawalpur? OPR" It was observed, inter alia, in the case of Mian Allahnawaz (ibid) that "the scheme of the act and the rules, therefore, shows that the question whether an Advocate is or is not practicing generally in a District is sought to be settled before the election takes place by the Advocate‑General of the Province concerned, if any objection in this behalf is raised and is decision thereon shall be final and that this is not a question which can be raised thereafter". This principle could be applied in the elections of the Bar Association as well. Once a candidate has contested an election without objecting on the electoral roll he may not be permitted to challenge the same after loosing his elections. Adverting to the question of waiver and acquiescence, reliance could be placed on the case of Ajmal Khan v. Mirza Khalid Beg alias Billa 1988 CLC 1992 wherein a learned Division Bench of .the Lahore High Court dismissed a writ petition challenging the elections of Union Council on the ground that the process of "coin toss" was adopted by consent of the contesting candidates and the same cannot be challenged subsequently, by the petitioner, who was deemed to have estopped by his words and conduct to agitate the said results. Another case is that of M. Suleman v. S. Zahid Qadri 1980 CLC 783 where a learned Single Judge of Lahore High Court, Mr. Justice Aamir Raza A. Khan, dismissed a writ petition challenging the delimitation of constituency on the ground that the petitioner has acquiesced in delimitation and after failing in his quest for the office of Chairman of the Town Committee, he has challenged the result. The entire pleadings of the respondent No.1 before E.C. Punjab, is silent on the point as to when he came to know that the three (3) Advocates were not eligible voters. He should have disclosed the approximate time as to when he came to know such fact. A presumption could be attached that the respondent No.1 was aware of such irregularities but still he contested the election and after loosing the same he is agitating such grounds. The Bar Councils are not meant to be manipulated or to become a tool in the hands of learned members of the Bar. We, therefore, do not see any merits in the impugned order which is accordingly set aside and the election of the Bar Association, Wazirabad held on 15‑1‑2004, is declared to be valid and lawful. H.B.T./1‑61/1 Appeal allowed accordingly.