P L D 2017 Peshawar 111 (PLP)

QALANDAR ALI KHAN J.--This writ petition by Jehangir Khan, petitioner, is directed against order of the learned Election Tribunal/District Judge, Abbottabad, dated 02.05.2016, whereby, application of respondent No.1, Muhammad Asif Awan, for dismissal of election petition/appeal under section 44 of the Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules, 2013 (hereinafter referred to as the Election Rules, 2013) was accepted and election petition/appeal of the petitioner was dismissed.

2. In his election petition/appeal, the petitioner had challenged the Local Government Elections 2015, for UC Phalkot, Abbottabad, with particular reference to corrupt practices/illegal practices in Polling Station No.216 GHS Phalkot Union Council by the rival candidates in collusion with the polling staff. The petition/appeal was resisted by respondent No.1 who raised several objections in his reply and refuted allegations of the petitioner. The pleadings of the parties were reduced to as many as nine issues; and the petitioner also produced Haseen-ul-Wahab, Presiding Officer Polling Station GHS No.216 Phalkot Union Council. His examination-in-chief was recorded but cross-examination was reserved on the request of counsel for the respondent. Thereafter, the respondent moved application for dismissal of the election petition/appeal under sections 45 and 46(3) read with section 51 of the Election Rules, 2013, which was replied to by the petitioner; but the application was accepted and election petition/appeal was dismissed vide impugned order of the learned Election Tribunal/District Judge, Abbottabad dated 02.05.2016, inter alia, on the grounds that only affidavit of the election petition was signed and duly attested by the Notary Public, whereas the annexures were only signed by the petitioner but not attested by Oath Commissioner/Notary Public. The learned Election Tribunal, therefore, held that the election petition did not meet the requirement of verification as prescribed by Order-VI Rule 15, C.P.C. which rendered the petition non-compliant with the provisions of Rule 46(3) of the Election Rules, 2013 and section 55(3) of the Representation of the People Act, 1976, (hereinafter referred to as the Act of 1976) entailing its dismissal in terms of Rule 51 (a) of the Election Rules, 2013 and section 63(a) of the Act of 1976; hence the writ petition by the petitioner.

3. The writ petition came up before the Honourable Single Bench of this Court, which accepted the writ petition and set aside the impugned order of the learned Election Tribunal, and remanded the case to the Election Tribunal to proceed further in the matter in accordance with law. The Election Tribunal was further directed that petitioner may be allowed to amend his petition, if so advised with regard to verification of attested copies of official documents in terms of Order VI, Rule 17, C.P.C. Respondent No.1 assailed the judgment/order of the Honourable SB dated 01.07.2016 through Civil Petition No.2505/2016 before the august apex Court, which was converted into appeal and allowed by setting aside the impugned judgment and the case was sent back to a Division Bench of this Court for decision afresh in accordance with law, vide judgment/ order dated 05.10.2016.

4. Arguments of learned counsel for the parties heard, and record perused.

5. It seems the learned Election Tribunal was driven to the conclusion of holding the election petition/appeal not maintainable for want of verification as laid down in Order-VI, Rule 15, C.P.C. on the basis of the mandatory provisions of section 63 of the Act of 1976, entailing dismissal of an election petition in case of non-compliance with provisions of section 54 and section 55 of the Act of 1976, relating to parties to the petition and contents of the petition as well as its verification in accordance with the provisions of C.P.C. for verification of the pleadings. It may not be out of place to reproduce section 63 of the Act of 1976 for ready reference: "Dismissal of petition during trial.- The tribunal shall dismiss an election petition, if (a) the provisions of section 54 or section 55 have not been complied with; or (b) if the petitioner fails to make the further deposit required under subsection (4) of section 62."

6. The learned Election Tribunal, however, lost sight of the fact that the Election Rules, 2013, contained a distinct provision under section 51 which was neither mandatory nor entailing any penal provision, rather dismissal of election petition during trial on the ground of non-compliance with the provisions of Rules 45 and 46 relating to parties to the petition and contents of petition as well as its verification in the like manner as provided for in sections 54 and 55 of the Act of 1976, was left at the discretion of the Tribunal. For ready reference, the provision of Section 51 of the Election Rules, 2013 is also reproduced as under: "Dismissal of petition during trial.-- The Tribunal may dismiss an election petition if (a) the provisions of rules 45 and 46 have not been complied with; or (b) the allegations contained therein are vague or do not disclose the commission of any corrupt practice, material irregularity, or other illegal act."

7. In such a situation, when it was never made incumbent on the learned Election Tribunal to dismiss the election petition under section 51 of the Election Rules, 2013, and the matter was left to his discretion, the learned Election Tribunal should have exercised the discretion in order to advance the requirements of law and justice by deciding the election petition on merits on the basis of evidence/material brought before it, instead of summarily disposing of the election petition on technical grounds, which could even, otherwise, be avoided by exercising the discretionary power of allowing the petitioner to amend the petition under Order-VI, Rule 17, C.P.C., as aptly observed in the judgment/order dated 01.07.2016 of the Honourable Single Bench.

8. In any case, the election petition was duly verified and affidavit of the petitioner attested by Notary Public in accordance with the provisions of Order-VI, Rule 15, C.P.C. The annexures attached to the election petition, which comprised copies of the official record, were also signed/attested by the petitioner, therefore, dismissal of the election petition on the sole ground of failure on the part of the petitioner to verify the annexures as well in the manner laid down in the Code of Civil Procedure, 1908, amounted to taking a stringent view of the relevant legal provisions for summary disposal of the petition, which not only runs counter to the letter and spirit of section 51 of Election Rules, 2013 but also militates against the demands of justice, moreso, when the learned Election Tribunal had already framed issues in the light of pleadings of the parties and even examination-in-chief of Presiding Officer was recorded which appeared not to the liking of respondent No.1. Notwithstanding discretionary provision contained in section 51 of the Election Rules, 2013, unlike the mandatory provision entailing penal provision as well under section 63 of the Act of 1976, even defects/lapses under the Act of 1976 were not regarded of any material consequence, warranting dismissal of election petition on such ground simpliciter, in the light of judgments of the august apex Court reported as 2010 SCMR 1877, 2016 SCMR 750 and 2016 SCMR 430.

9. As a sequel to the foregoing discussion, the writ petition is accepted and impugned order of learned Election Tribunal/District Judge, Abbottabad, dated 02.05.2016, is set aside. Consequently, the election petition is sent back/remanded to the learned Election Tribunal to proceed with the same in accordance with law from the stage where the petition was dismissed vide the impugned order dated 2-5-2016. ZC/39/P Case remanded.