2017 PLP 46 (CLCN)

MUHAMMAD YAWAR ALI J.

The petitioner Daniyal Aziz contested General Elections held in the year 2008 as a candidate for the National Assembly of Pakistan Constituency NA-116-Narowal-II. The Election Commission of Pakistan vide Notification No.F.2(4)/2008-Cord. Dated 1st March 2008 notified respondent No.1 Muhammad Tariq Anis as a returned candidate to the National Assembly of Pakistan. The petitioner being aggrieved filed an Election Petition dated 14.04.2008 under section 52 of the Representation of the People Act, 1976 wherein it was prayed as follows:- "It is therefore, most respectfully prayed that the impugned notification dated March 1st 2008 issued by the Election Commission of Pakistan may very kindly be set aside and poll of NA-116 may kindly be declared as void in the supreme interest of justice. It is further prayed that this petition may kindly be accepted by declaring Respondent No.1 being ineligible rather disqualified as a member of the National Assembly."

2. Respondents Nos.2 and 3 were proceeded against ex parte on 04.06.2008 and no one has entered appearance on their behalf till date as a result thereof this Election Petition was only contested by respondent No.1 Muhammad Tariq Anis.

3. It is common ground that the members of the National Assembly of Pakistan who were elected in the General Elections held in the year 2008 have completed their term. Both the parties agree that even if this petition is accepted fresh elections cannot be held so as to inure for the benefit of the petitioner.

4. The learned counsel for the contesting/respondent Muhammad Tariq Anis has urged with all the vehemence at his command that this petition has become infructuous and is liable to be dismissed on this ground alone. The learned counsel for the respondent while addressing arguments submitted that the Assembly which was elected in the year 2008 had outlived its life hence no live issue is left for this court to adjudicate upon. The learned counsel for the petitioner, on the other hand, has filed an application bearing Civil Misc. No.1/2015 in Election Petition No.229 of 2008 under sections 64, 100 of the Representation of the People Act 1976 read with Order VI, Rule 17 and section 151, C.P.C. and taken a strong exception to this argument by submitting that the matter is still alive and this court would not abstain in giving its own finding and deciding the Election Petition in accordance with law on the sole ground that the Assembly had outlived its life and that it was no more possible for the petitioner to be declared as a returned candidate.

5. The learned counsel for the contesting respondent has raised another objection with regard to the maintainability of this Election Petition by submitting that this Election Petition also fails on the ground that a contesting candidate namely Surraya Asghar Ali Chaudhary has not been impleaded as a party in this Election Petition.

6. The objection raised by the learned counsel for the contesting respondent Muhammad Tariq Anis that this Election Petition has become infructuous does not carry any weight. It is trite that this Court would not become functus officio and an Election Petition filed under section 52 of the Representation of the People Act, 1976 would not abate where the Assembly has run its full term, where there is a direct allegation that the returned candidate has indulged in corrupt and illegal practices by being privy to firing with automatic weapons in the polling stations, illegal removal of ballot boxes at gunpoint, kidnapping of the polling staff, obstructing the voters from reaching the polling station and illegal stamping of validly issued ballot papers. An illuminating judgment delivered by the august Supreme Court of Pakistan titled Habibul Wahab Alkhairi v. Sheikh Rashid Ahmad and 5 others (PLD 1989 Supreme Court 760) can be read with considerable advantage. The Apex Court while dealing with the issue in hand held as follows:- "Thus, despite the dissolution of the Assembly, the Election Tribunal can still inquire into the question whether a person has committed a corrupt or illegal practice for that will have a bearing on his competency to participate in a future election or elections." Following the ratio of the judgment referred to above if this Court comes to the conclusion that the contesting respondent Muhammad Tariq Anis had in fact indulged in the mal-practices as alleged by the learned counsel for the petitioner he could be disqualified from taking part in Elections to be held in the future. The upshot of the above discussion is that this Election Petition cannot forthwith be dismissed on the sole ground that the term of the National Assembly of Pakistan has expired. Civil Misc. No.1/2015 in Election Petition No.229 of 2008 stands disposed of in view of the finding recorded above.

7. The second objection raised by the learned counsel for the contesting respondent Muhammad Tariq Anis is required to be dealt with at some length. On 20.02.2008 the Returning Officer signed the RESULT OF THE COUNT which is as follows:- RESULT OF THE COUNT Election to the National Assembly From............NA-116-NAROWAL-II Sr. No. Name of contesting candidates Number of valid votes polled 1. 2. 3. 1 Surraya Asghar Ali Chaudhary 193 2 Ch. Muhammad Tariq Anees 45097 3 Daniyal Aziz 37138 4 Dr. Hafiz Shabbir Ahmed 22369

5. Gulzar Ahmed Chaudhary 9553 From the document referred to above it is clear that while the petitioner polled 37138 votes, the contesting respondent Ch. Muhammad Tariq Anis won after getting 45097 votes and the candidate Surraya Asghar Ali Chaudhary managed to secure 193 votes. The learned counsel for the petitioner has argued that Surraya Asghar Ali Chaudhary never contested the Elections as the contesting respondent Muhammad Tariq Anis while appearing as RW-26 himself stated that "Madam Surraya Asghar had retired from the Elections." The statement made by the contesting respondent Muhammad Tariq Anis referred to above is actually not correct as RESULT OF THE COUNT signed by the Returning Officer dated 20.02.2008 clearly shows that Surraya Asghar Ali Chaudhary was a candidate of National Assembly NA-116-Narowal-II and managed to secure 193 votes. It is trite that a presumption of correctness is attached to an official document. It is not the case of the petitioner that the RESULT OF THE COUNT signed by the Returning Officer dated 20.02.2008 which is on the record is a forged or a fabricated document. The procedure of withdrawal of a candidate from the Election has been clearly laid down in Section 16 of the Representation of the People Act 1976 which is reproduced below:- Withdrawal.-(1) Any validly nominated candidate may, by notice in writing signed by him and delivered to the Returning Officer on or before the withdrawal date either by the candidate himself or through an advocate duly authorized in writing by him, withdraw his candidature. Explanation.-Authorisation in favour of an advocate shall be attested by a competent authority, such as, Oath Commissioner or a Notary appointed under the Notaries Ordinance 1961 (XIX of 1961). (2) A notice of withdrawal under subsection (1) shall, in no circumstances, be open to recall or cancellation. (3) On receiving a notice of withdrawal under subsection (1) the Returning Officer shall if he is satisfied that the signature on the notice is that of the candidate, cause a copy of the notice to be affixed at a conspicuous place in his office. (4) The Returning Officer shall, (on) the withdrawal day, prepare and publish in the prescribed manner a list of contesting candidates which shall, if there are more than one contesting candidates, indicate their respective symbols and supply a copy of the list to each of them." The candidate Surraya Asghar Ali Chaudhary could only have withdrawn from the Election by issuing a notice in writing signed and delivered by her to the Returning Officer on or before the withdrawal date either herself or through her Advocate duly authorized by her as has been provided in section 16 of the Representation of the People Act, 1976. The learned counsel for the petitioner has not pointed out to any notice in writing issued either by the candidate Surraya Asghar Ali Chaudhary or her duly authorized counsel seeking her withdrawal as a candidate which was delivered to the Returning Officer on or before the withdrawal date. In any case RESULT OF THE COUNT dated 20.02.2008 signed by the Returning Officer is ample proof of the fact that Surraya Asghar Ali Chaudhary did not withdraw in time and managed to secure 193, votes. Any assertion to the contrary by the contesting respondent or by anyone else would be of no value in face of the document signed by the Returning Officer which depicts that Surraya Asghar Ali Chaudhary as a contesting candidate who polled 193 votes.

8. The petitioner while filing his Election Petition had no option but to join as respondents all the contesting candidates as is evident from a bare reading of section 54(a) of the Representation of the People Act 1976. The language of section 54(a) of the Representation of the People Act 1976 is very clear and does not admit to any ambiguity. It reads as follows:- "54.Parties to the petition.- The petitioner shall join as respondents to his election petition- (a) all contesting candidates; and (b) any other candidate against whom any allegation of any corrupt or illegal practice is made and shall serve personally or by registered post on each such respondent a copy of the petition." The definition of a contesting candidate has been provided in section 2(viii) of the Representation of the People Act 1976 and reads as follows:- 2(viii) "contesting candidate" means a validly nominated candidate who has not withdrawn his candidature.

9. In the instant case there can be no cavil to the fact that Surraya Asghar Ali Chaudhary had not withdrawn her candidature prior to the holding of the Elections. In the case of Naeem Hussain Chattha v. Tawakkal, Ullah and another (1997 CLC 192) it was held that a candidate who had not withdrawn his candidature and had secured a few hundred votes during the Elections which were held was for all intents and purposes a contesting candidate and thus a necessary party to the Election Petition. The view taken by the Election Tribunal in the case referred to above was fortified in the case of Engineer Jameel Ahmad Malik v. Ghulam Sarwar Khan and 6 others (2004 CLC 914) (Election Tribunal, Punjab). The learned Tribunal held in clear and unequivocal terms that where one of the contesting candidates was not impleaded as a respondent in the Election Petition, section 54(a) of the Representation of the People Act 1976 was violated which would necessarily entail the dismissal of the petition.

10. The judgments referred to above are in consonance with the law. If law requires a particular thing to be done in a particular manner it had to be done accordingly otherwise it would amount to non-compliance of the legislative intent and would carry penal consequences as has been held by the august Supreme Court of Pakistan in Zia ur Rehman v. Syed Ahmed Hussain and others (2014 SCMR 1015).

11. While agreeing with the ratio of the law laid down in Naeem Hussain Chattha v. Tawakkal Ullah and another (1997 CLC 192), Engineer Jameel Ahmad Malik v. Ghulam Sarwar Khan and 6 others (2004 CLC 914) (Election Tribunal, Punjab) and Zia ur Rehman v. Syed Ahmed Hussain and others (2014 SCMR 1015) and taking into consideration the full import and ramification of section 54(a) read with section 2(viii) of the Representation of the People Act 1976 I have no option but to conclude that non-joinder of a necessary party Surraya Asghar Ali Chaudhary in this case as a respondent would only lead to the dismissal of the Election Petition as envisaged by Section 63 of the Representation of the People Act 1976.

12. The petitioner has prayed for the setting aside of the impugned Notification dated 1st March 2008 issued by the Election Commission of Pakistan whereby the contesting respondent Muhammad Tariq Anis was declared as a returned candidate of NA-116-Narowal-II on the ground that the contesting respondent Muhammad Tariq Anis, his followers, supporters and cronies resorted to firing with automatic weapons at the polling stations, illegally removed ballot boxes at gunpoint, kidnapped some of the polling staff, obstructed the voters from reaching the polling station and by so doing violated the provisions of the Representation of the People Act 1976 and the law of the land. The learned counsel for the petitioner has referred to an order dated 23.02.2008 passed by the Returning Officer NA-116-Narowal-II wherein he submitted a report to the Chief Election Commissioner of Pakistan stating therein that official Notification of the returned candidates, NA-116- Narowal-II and some other candidates may not be issued as the returned candidates were prima facie guilty of having committed corrupt and illegal practices and violating the law. The petitioner Daniyal Aziz filed an application under Section 103AA of the Representation of the People Act 1976 for declaring the poll of the constituency NA-116-Narowal-II void on the ground that numerous offences were committed by the returned candidate. The application was rejected by the Election Commission of Pakistan after holding that "the allegations made therein are not supported by the facts apparent on the face of the record........." The petitioner including himself produced as many as 15 witnesses PW-1 Hafiz Basharat Ali son of Sain Ditta opted not to record his statement but tendered in evidence his affidavit highlighting various acts of malpractices attributed to the contesting respondent. The affidavit Ex.P.1 although attested by one Ch. Naveed Akhtar, Oath Commissioner, Shakargarh (Narowal) does not bear any date of attestation. Similar is the case of the prosecution witnesses PW-2 Haji Muhammad Sarwar son of Laal Din, PW-3, Zubair Alam son of Muhammad Alam, PW-4, Muhammad Ashfaq, Advocate son of Muhammad Iqbal, PW-7, Muhammad Javed son of Muhammad Din, PW-12, Abdul Raheem son of Bashir Ahmad, PW-13, Tanvir Ahmad son of Gulzar Ahmad, PW-14, Muhammad Hayat son of Ameer Ahmad as they also opted not to lead evidence and tendered in evidence their affidavits all of which did not bear any date of attestation. The possibility of the affidavits referred to above being concocted and prepared at some later unknown date cannot be ruled out. The other witnesses who appeared on behalf of the petitioner vehemently contended that the followers of the contesting respondent Muhammad Tariq Anis resorted to firing, snatching of ballot papers and causing injuries to the supporters of the petitioner in respect of which certain criminal cases were registered. The learned counsel for the petitioner has not been able to point out as to whether any of the FIRs which were statedly registered against the supporters of the contesting respondent Muhammad Tariq Anis culminated in a conviction. Indeed very strong and cogent evidence is needed to de-seat a returned candidate. PW-11, Muhammad Hussain Anjum, Senior School Teacher, Government High School, Sukhu Chak, Tehsil Shakargarh District Narowal stated that a number of armed persons reached at the polling station, broke the seals of the ballot boxes and also took away the ballot papers and that later another armed group of unknown people arrived there and on their query he told them all that had happened. While being cross-examined the witness candidly conceded that the petitioner Daniyal Aziz secured 350 votes while the contesting respondent Muhammad Tariq Anis managed to get only 30 votes from that polling station. The petitioner, Daniyal Aziz, PW-15 while being cross-examined stated as follows:- "It is correct that after the elections that I had submitted an application to the Chief Election Commissioner, but I do not remember the exact date of the said application. It is correct that the said application had been filed against as many as 10 persons while the present petition has been filed against three contesting candidates. I do not recall whether one Surayya Asghar Chaudhry was also a candidate from this constituency. It is correct that Surayya Asghar has not been impleaded as a respondent in this Election Petition..... It is correct that in para No.3 of my petition I have not mentioned either the names of any persons/miscreants who were with respondent No.1 on the Election Day nor I have mentioned therein the numbers of vehicles." An assertion made in the Election Petition that Muhammad Saleem had been beaten to death by Rana Irshad (a strong man) of the contesting respondent Muhammad Tariq Anis was negated by the petitioner who while being cross-examined stated as follows:- "It is correct that in the FIR mentioned in para No.5 of the petition i.e. FIR No.21/2008 of P.S.Kot Nainan, respondent No.1 was not one of the accused."

13. It is trite that in terms of section 68 of the Representation of the People Act 1976 even if any corrupt or illegal practice has been committed and if the Tribunal is satisfied that it was not committed by or with the consent or connivance of that candidate or his election agent, the Election of the returned candidate cannot be declared to be void. As the petitioner has not been able to prove beyond reasonable doubt that the contesting respondent Muhammad Tariq Anis or any of his election agents committed any corrupt or illegal practice and a contesting candidate Surraya Asghar Ali Chaudhary was not impleaded as a respondent in gross violation of section 54(a) of the Representation of the People Act, 1976, the petitioner is not entitled to the relief being sought.

14. For what has been stated above, this petition being without any merit fails and stands dismissed. MH/D-1/L Petition dismissed.