2011 PLP 1360 (MLD)

MUHAMMAD NOOR MESKANZAI, J.

Through this judgment I propose to decide Election Petition No.37 of 2008 filed by petitioner. The petitioner has called in question the candidature of the respondents Nos.1 and 2 as returned candidate on the seats reserved for minorities. It is the case of petitioner that the elections for the Provincial Assembly and National Assembly were held for all constituencies of Pakistan on 18-2-2008. The petitioner and respondents Nos.1 to 14 were candidates for the seats reserved for Non-Muslim of the Balochistan Provincial Assembly. Petitioner and respondent No.1 were the candidates of PML (Q), whereas respondent No.2 was the candidate of Muthahida Majlis-e-Amal (MMA). The petitioner was at Serial No.1 of the priority list, whereas respondent No.1 was at Serial No.2, which was sent to the Provincial Election Commissioner, Balochistan. On the basis of priority lists submitted by all political parties, Form-V was prepared, according to which the name of petitioner stood at Serial No.1. Finally after completion of elections the respondents Nos.1, 2 and 10 were shown to be returned candidates. The petitioner further averred in the petition that after scrutiny of the priority lists submitted by the political parties, Form-V was prepared, according to which the name of petitioner was at Serial No.1. Petitioner further submitted that the said Form-V cannot be changed, but the respondent No.1 with the connivance of officials of Provincial Election Commission illegally changed the priority list of the candidates. Resultantly the name of respondent No.1 was mentioned at serial No.1 and placed the name of petitioner at Serial No.4. The petitioner, in his petition further alleged that the Provincial Election Commissioner after the scrutiny was bound to cause the list, to be published forthwith, for the information of the public at large. But unfortunately the said provisions were (subsequently) violated and the petitioner approached the Chief Election Commission. However, the said application was not entertained. As a result of such acts of officials of Provincial Election Commissioner the respondents Nos.1 and 2 were declared as returned candidates, which is highly illegal as well as against the spirit of Article-8(F) of the Conduct of General Elections Orders, 2002 read with section 47(A) of the Representation of People Act, 1976. The petitioner also alleged that the above violation materially affected the results of the election in the said constituency, which is required to be declared as of no legal effect. Finally, the petitioner prayed for the following relief: "It is, respectfully prayed that this petition may very graciously be accepted, as a consequence thereof, to declare the election of the respondents Nos.1 and 2 being void, illegal as well as in excess of authority after declaring so the petitioner be declared as returned candidate for the reserved seat of minorities, on the basis of priorities, list initially submitted by Pakistan Muslim League (Quaid-e-Azam) on the basis of list of contesting candidates/Form-V and necessary Notification may be directed to be issued. Any other relief, in the circumstances of the case, may also be awarded, in the interest of justice." The petition was contested on merits as well. It was averred in written statement that petitioner has never been at Serial No.1 of the priority list submitted by the P.M.L (Q). The respondents Nos.1 and 2, while filing written statement raised the following legal objections:-- (A) That the petition has not got verified on oath before an authorized person, as such for want of the same, the petition is not maintainable. That without prejudice to the above, even otherwise the petition is based on misinterpretation of law, hence not maintainable. After filing of written statement following issues were framed on 14-11-2008:-- (i)???????? Whether name of petitioner was at Serial No.1 (first priority) in the list submitted by Pakistan Muslim League (Qaid-e-Azam) ? (ii)??????? Whether the officials of Provincial. Election Commission with connivance of respondent No. 1 changed priority list by showing name of respondent No.1 at Serial No.1 of priority list? (iii)?????? Whether petitioner was deprived of being elected on account of mal-practie and corrupt practise of respondent No.1 and officials of Provincial Election. Commission materially affecting result of election? (iv)?????? Relief? The petition was dismissed on 24-4-2009 for non-payment of costs imposed upon the petitioner on 20-3-2009. However, the matter was remanded back by the Hon'ble apex Court. After the remand of the case petitioner produced following two witnesses:-- P. W.

1. Jet Amal son of Human Dass, who owned the contents of his affidavit produced as Exh.P/1-A. P. W.2 Muhammad Haroon Kasi, Law Officer/Representative of Provincial Election Commissioner, Balochistan. He produced certified copy of Form-B, the list of contesting candidates for election to the Provincial Assembly of Balochistan for seats reserved for the Non-Muslim as Exh.P/2-A. He also produced Gazette Notification dated 6th March, 2008 as Exh.P/2-B. The statement of petitioner was recorded on 30-12-2010. He owned the contents of his affidavit produced as Exh.P/3-A and acknowledged his signature on the same. On 30-12-2010 arguments of the parties were heard. The learned counsel for the petitioner contended that in fact the name of petitioner was at Serial No.1 of the priority list but the official respondents with connivance of respondent No.1 changed the list and notified the respondent No.1 as returned candidate. He stated that this view finds support from Form-V prepared by the official respondent. The learned counsel for private respondent opposed the contentions so put forth by the learned counsel for petitioner. It was submitted that petitioner was never placed at Serial No.1 of the priority list. Form-V is not the priority list but list of contesting candidates prepared by the official respondent. Petitioner has failed to prove his case by production of confidence inspiring evidence. There is no priority list available with petitioner supporting the contention and stance of petitioner. I have heard the learned counsel for the parties. I propose to decide the issues in the light of evidence available on record and the arguments forwarded by the learned counsel. Issue No.1. Whether name of petitioner was at Serial No.1 (first priority) in the list submitted by Pakistan Muslim League (Qaid-e-Azam) ? Issue No.1 is very much important and the whole case revolves around this issue. Petitioner produced two P.Ws., beside recorded his own statement. As far as the statement of P.W.1. is concerned. This statement does not lend support to the case of petitioner. The statement of P.W.2 instead supporting the petitioner has dismettled the edifice of petitioner's case. P.W.2. has produced the priority list issued by the President Pakistan Muslim League (Q) which places the respondent No.1 at the top of the priority list. For the sake of convenience the priority list provided to Election Commissioner is hereby reproduced:-- To The Provincial Election Commissioner, Balochistan, Quetta. Subject: ?????????? PRIORITY LIST OF CANDIDATES ON RESERVED SEATS FOR WOMEN AND NON-MUSLIMS IN BALOCHISTAN PROVINCE. Pursuant to Provision of section 47A of the Representation of the People Act, 1975, the list of P.M..L (Q) candidates for the seats reserved in the Provincial Assembly Balochistan for Women is in order of priority appended as follows: WOMEN (1)? Mrs. Parveen Magsi w/o Nawab Zulfiqar Magsi. (2)? Miss Rahila Hameed Khan Durrani d/o Abdul Hameed Durrani. (3)? Dr. Ruquiya Saeed Hashmi w/o Saeed Ahmed Hashmi. (4)? Mrs. Rubina Irfan w/o Irfan Karim. (5)? Ms. Sobia Khan Kibzai w/o Allauddin Kibzai. (6)? Mrs. Samia Baloch w/o Khudadad Khan. (7)? Mrs. Nuzhat Iftikhar w/o Dr. Syed Iftikhar Hussain. (8)? Ms. Shazia Naz Baloch d/o Ghulam Yasin Baloch. (9)? Ms. Naghmana Sardar d/o Sardar Mira Khan. (10)??????????? Ms. Jamila Sultana w/o Muhammad Akbar. NON-MUSLIMS (1)? Mr. Basant Lail Gulshan. (2)? Mr. Ambroz John Francis. (3)? Mr. Tara Chand Lasi. (4)? Mr. Umesh Kumar. (JAM MUHAMMAD YOUSAF) President PML Balochistan In given circumstances there is no cavil with fact that the petitioner is not at Serial No.1 of the priority list, issued by the President PML (Q). This fact further finds support from the statement of P.W.2 who has exhibited the priority list as Exh.P/2-A. It was admitted by P.W.2 that the respondent No.1 is at serial No.1. It is also admitted that petitioner is not at Serial No.1 of the list. For ready keference relevant portion of statement is reproduced hereunder:- "The name of petitioner appears at Serial No.4 of the Priority List of Candidates for Non-Muslims in Balochistan Province. Exh. P/2-B has been submitted by the President PML Balochistan." Petitioner too, in his statement has admitted that the copy of priority list was not handed over/delivered to him: Petitioner was not provided with the copy of priority list, how petitioner could claim to be at Serial No.1 of the list, which petitioner has not seen. Admittedly the party President did not provide the copy of priority list to petitioner, but petitioner filed nomination papers. Legally a candidate is required to annex the copy of list along with nomination paper as required by the relevant law. In this behalf section 47(4) is reproduced herein below:-- (4) Every candidate contesting election on a seat reserved for women or non-Muslims shall, along with the nomination papers and other relevant documents, submit to the Returning Officer appointed by the Election Commission in this behalf-- (a)? a copy of the party list of the candidate's political party for such seats; (b)? declarations and statements as required by law or rules in support of the nomination; and (c)? the fee required under any law for the time being in force for filing nomination papers.) In view of aforementioned state of affairs it is crystal clear that the nomination papers were filed in violation of section 47A subsection (4). The learned counsel for the petitioner mainly relied upon Form-V as his client i.e. the petitioner was at Serial No.1 in the Form-V. According to learned counsel since his client was at Serial No.1 of the priority list, therefore, he was placed at Serial No.1 in the Form-V. I have given my due consideration to this aspect of case, but I have not been able to persuade myself to subscribe the view for a couple of reasons. Firstly a list is prepared at the strength of section 14 of Senate (Elections) Act, 1975, contents whereof are reproduced hereunder;-- "

14. Publication of the list of candidates.

The Returning Officer shall, after the scrutiny of nomination papers, prepare and publish in the prescribed manner a list of candidates who have been validly nominated. (2) In case an appeal against rejection of a nomination paper is accepted by the Commissioner, the list of validly nominated candidates shall be revised accordingly." The list of validly nominated candidates is required to be drawn up in Form-IV by the Returning Officer, after the completion of process as contemplated by section 13 of the Act. Secondly the list of contesting candidates is to be prepared as required by section 15 subsection (4) of Senate (Election) Act, 1975 and to be drawn up in Form-V. Admittedly petitioner has been placed at Serial No.1 in the Form-V but it does not mean that petitioner was at the Serial No.1 of the priority list. The petitioner fell in error, misunderstood the factual position and legal proposition. Rule 7 Sub-Rule 2 of Senate (Election) Rules requires the Commissioner to prepare Form-V by entering the names in Urdu in the alphabetical order. For ready reference Rule 7(2) is reproduced herein below:-- "(2) The names on the list shall be entered in Urdu, in the alphabetical order [??] indicating against the name of each contesting candidate. The symbol allocated to him." Similarly the column (2) of Form-V requires the same thing with exactitude. Contents of Form-V are reproduced herein under: FORM V [See rule 7(1)J List of Contesting Candidates "National Assembly Election to the ____________ Provincial Assembly of the Punjab Sindh the North-West Frontier Province Balochistan. From ????????????????**Constituency. Serial No. Name of the contesting candidates in the Urdu alphabetical order Address of the contesting candidates Symbol allocated 1 2 3 4 1 2 3 4 Etc. Notice is hereby given that the poll shall be taken between the hours of ????..:????? ??????????? ??????.?????????? on ??????????? (date)? ????????????.??????????? ??????????? Place ?????????????..???????? ??????????? Date ?????????????.. Returning Officer. *Strike off the words not applicable. **Insert the No. and name of the constituency. The cumulative effect of section 15 subsection (4) of Senate (Election) Act, 1975, Rule 7(2) of Senate (Election) Rules, 1975 and Form-V is to prepare a list of contesting candidates by incorporating the names in alphabetical order determined according to the Urdu language. There were three candidates of PML (Q) and the name of all the three candidates start with:-- Alif i.e.????????????? Amish Kumar ??????????????????????? Eng. Basant Lal Gulshan ??????????????????????? Amroz Jan Raranz??????????????? Needless to observe that the name of respondent No.1 in the priority list is at Serial No.1, but as the name of respondent No.1 starts with B', therefore, the name of petitioner was placed at Serial No.1 despite the fact that his name is at Serial No.4 of the priority list. Respondent No.1 while filing the nomination papers might have filled up the nomination papers with the name of Engineer Basant Lal. Applying the analogy contemplated by Rule 7(2) and Column 2 of Form-V to the case of petitioner and keeping in view the alphabetical order determined according to Urdu language, the petitioner cannot claim to be at Serial No.1 of priority list merely because of having his name at Serial No.1 of the Form-V. In the light of above discussion and keeping in view the statement of petitioner and P.Ws., the material available on record particularly the priority list filed by PML (Q) Issue No.1 is resolved in negative and against the petitioner. Since the main and important issue has been resolved against petitioner, which is sufficient to decide the entire fate of petition, therefore, the rest of the issues need not be dilated upon. With the result petition is dismissed with no order as to costs. These are the reasons for my short order of even date. S.A.K./35/Q??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.