2007 PLP 1776 (SCMR)

M. JAVED BUTTAR, J.

Election Petition No.76 of 2002, instituted by the appellant was dismissed by the Election Tribunal, Sindh vide the impugned judgment, dated 13-9-2005 hence this appeal.

2. We have heard the learned counsel for the parties and have also seen the available record.

3. Election petition was dismissed, inter alia, on the ground that admittedly all the contesting candidates, in violation of section 54 of the Representation of the People Act, 1976, who were 84 in number, were not joined as respondents in the election petition. It was argued by the .learned counsel for the appellant that since the dispute was in regard to the reserved seats for non-Muslims, the election for which was held on the basis of proportionate representation, therefore, after the elections the dispute of the appellant was only with tyre 9 candidates nominated by the political parties who were declared as returned candidates and not with others who were in the lists of candidates provided by the political parties in accordance with the provisions of Article 8-F of the Conduct of General Elections Order, 2002, hence the rest were unnecessary.

4. Clause (a) of section 54 of the Representation of the People Act No.1XXXV of 1976 mandates an election petitioner to join all the contesting candidates as respondents to the election .petition. Section 2(v) of the said Act defines "candidate" as a person proposed as a candidate for, or seeking election as a member. Section 2(viii) defines "contesting candidate" who is a validly nominated candidate who has not withdrawn his candidature. Above mentioned shows that the argument of the learned counsel for the appellant has no force. The law does not create an exception in favour of an election petitioner permitting him not to join all the contesting candidates within the meaning of section 2(viii) of the above Act, who had not withdrawn their candidature, as respondents to his election petition, in case the dispute was in regard to the seats reserved was non-Muslims. Hence the election petition was liable to be dismissed under section 63 of the above Act due to the non-compliance of the mandatory provision of section 54(a) of the said Act. It is settled law that a direction is mandatory if its disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision. Reference in this regard can be made to Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC

134. The petitioner deliberately did not implead. all the 84 contesting candidates who had participated in the election considering them as unnecessary party and impleaded only the returned 9 candidates. This was fatal to the election petition. The directions contained in section 54(a) of the Representation of the People Act, 1976 are' followed by the penal provisions of section 63 of the said Act. In Mrs. Syeda Zahida Zaidi v. Hafiz Muhammad Taqi and others 1986 CLC 2066, it was held that the provisions of section 54 read with section 63 of the above Act are to be interpreted strictly as they are mandatory in nature. In Naeem Hussain Chattha v. Tawakkal Ullah and another 1997 CLC 192, it was held that non-joinder of contesting candidate would entail dismissal of election petition. In Khawaja Muhammad Awan v. Alim Adil and 19 others 1998 CLC 272, it was held that language of section 63 of the Representation of the People Act, 1976 leaves no scope for the Tribunal to exercise its discretion in favour of a party who has not complied with the provision of sections 54 and 55 of Act of 1976. In Ali Ahmad Khan v. Muhammad Qasim Khan and others PLD 1985 Jour.

277. It was held that all contesting candidates had to be joined as party in the petition otherwise, it would amount to non-compliance with the provision of section 63(a) of the above Act, resulting in dismissal of the election petition. In Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600, it has been held by this Court that the provisions of sections 54 and 55 of the above Act are mandatory because they are followed by the penal consequences under section 63(a) of the Act that makes it mandatory for the Tribunal to dismiss election petition if the provisions of sections 54 and 55 have not been complied with. In Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 an election matter it has been held by this Court that even if the defect is not pointed out by the respondents, the Court is always empowered to ensure that the law under which proceedings have been initiated before it is complied with fully particularly in the cases where non-compliance of mandatory provision prescribes a penalty. In view of the above mentioned, we find no force in this appeal which is dismissed with costs throughout. M.H./A-53/SC Appeal dismissed.