2011 PLP 1641 (CLC)

JAMAL KHAN MANDOKHAIL, J.

Election of the Balochistan Bar Council for the year 2010-15 was held on 28th September, 2010. The petitioner and the respondent No.2 contested the election from the constituency namely Group-II. According to the official result, both the candidates (the petitioner and respondent No.2) secured 41 votes each, as such, the Returning Officer decided the matter by drawing lots in accordance with rule 26 of The Pakistan Legal Practitioners and Bar Councils Rules, 1976. The respondent No.2 won the toss and was declared successful candidate.

2. Learned counsel for the petitioner stated that at the time of official counting, the petitioner raised an objection before the Returning Officer, that one of the votes was cast by a government servant, who does not come within the definition of a voter. Similarly, second objection was that on a ballot paper, one of the voter had put a tick mark ( ) against the name of respondent No.1, instead of putting a cross (X). The counsel argued that both the votes were void, which ought to have been discarded, but the Returning Officer did not consider the objection so raised and counted both the votes in favour of the respondent No.2, thus infringed the right of the petitioner. After receiving a notice, the respondents filed their respective rejoinders to the petition. The counsel for respondents No.2 mainly contended that the election petition has incompletely been filed, therefore it is liable to be returned. He further stated that without the request of the Bar Council, the creation of the Tribunal is illegal, therefore, it has no jurisdiction. On merits too, the petition has been contested. I have heard the learned counsel for the parties and have perused the record. Before going to dilate upon the merits of the case, I would like to address the legal objection regarding the jurisdiction of the Tribunal. An Election Tribunal has been defined in sub-clause (c) Rule-3, Part-1, Chapter-II of The Balochistan Legal Practitioners and Bar Council Rules, 1976 which is reproduced hereinbelow:

(c) "Election Tribunal" means:

(i) in relation to election to a Provincial Bar Council and its Vice-Chairman, a Judge of the High Court nominated by the Chief Justice of the High Court concerned; and (ii) in relation to the Elections to the Pakistan Bar Council and its Vice-Chairman, a Judge of the Supreme Court nominated by the Chief Justice of Pakistan. According to the above provision of law, in relation to an ' election dispute of a Provincial Bar Council, the Chief Justice of the concerned High Court has to nominate a Judge of the High Court as an Election Tribunal. Since the tribunal has been assigned the jurisdiction to hear an election dispute, therefore, it means that after announcement of an election schedule, every dispute arising out of an election of that period, would be triable by the Election Tribunal. Hence, at any time, either after the announcement of an election schedule or the moment, an election petition is received in accordance with Rule-61, the Hon'ble Chief Justice has to constitute a Tribunal accordingly, however, in case, the Tribunal is not constituted the concerned Bar Council can request the Hon'ble Chief Justice of the Province for the needful to be done. In the Pakistan Legal Practitioners and Bar Councils Act, or rules, no request of a Bar Council is required for the constitution of an Election Tribunal, therefore, the objection has no force in it. The procedure for presentation of an election petition, has been prescribed by rule 61 to 63, which are reproduced hereinbelow:--

61. An objection to the election under paragraph (h) of sub-rule (1) of Rule 5 or under paragraph (h) of sub-rule (1) of rule 30, may be filed by a candidate, by letter signed and delivered to the Chairman of the Bar Council who shall refer such objection to the Election Tribunal concerned for disposal within fifteen days of the date fixed for filing objections. The objection shall be accompanied by a deposit of Rs.100.

62. The letter shall state clearly the grounds upon which the validity of the election is challenged.

63. The objection to the validity of an election of a member shall be heard by the Election Tribunal concerned. According to these rules, the Objector has to file written objections before the Chairman Bar Council through a letter, duly signed by a candidate, clearly stating the grounds upon which a validity of an election is challenged. The Chairman then must refer the objection to the Election Tribunal concern for its disposal, within fifteen days. It is a settled principle of law that when a statute provides an act to be done in a particulate manner, then it has to be done accordingly and deviation form the procedure vitiates the entire proceedings. Admittedly the petitioner has directly approached the Tribunal through instant petition, without filing an objection through a letter before the Chairman Balochistan Bar Council, for its onward transmission to the Tribunal, therefore, the proper procedure as provided by law, has not been followed. As far as the contention of the petitioner that the objection was raised before the Returning Officer is concerned, he has approached the wrong forum. The Returning Officer has no jurisdiction election dispute, therefore, he has rightly declined to entertain the matter. It is however, necessary to mention here that the Returning Officer was also an ex-officer/Chairman Balochistan Bar Council, was under a legal obligation to have transmitted the objection to the Election Tribunal: By not following the procedure, referred to above, the Chairman has also acted illegally. Thus, in view of what has been stated and discussed hereinabove, it is held that the petition has wrongly been filed before the Tribunal, without resorting to the provision of rules 61 to

63. The petition is hereby returned back to the petitioner for its proper presentation within fortnight, after announcement of the judgment. M.H./47/Q Order accordingly.