IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Election
Appeal No. S – 39 of 2016
[Mohib
Ali Phull v. Returning Officer and others]
Date of hearing : 15.05.2018
Date of decision
: 28.09.018
Appellant : Mohib
Ali Phull, through M/s. Mukesh Kumar G.
Karara and Sajjad Muhammad Zangejo, Advocates.
Respondents 1-13 : Mr.
Muhammad Aslam Jatoi, Assistant Attorney
General and Mr. Ali Mutahir Shar, State
Counsel.
Respondent No.14 : Asadullah
Shaikh, through Mr. Nisar Ahmed Bhanbhro,
Advocate.
Respondents 15-18 : Nemo.
J U D G M E N T
Muhammad
Faisal Kamal Alam, J:
Through this Appeal, the Appellant has questioned
the decision dated 08.12.2016 of the learned Election Tribunal passed in the Election Petition
No.17 of 2015, in which the decision of the Election Commission of
Pakistan
(ECP – Respondent No.12) about notifying the present Respondent No.14
as the returned candidate on the seat of General Councilor of Ward No.4,
Municipal Committee Gambat, District Khairpur, was challenged.
2. Undisputedly, the Appellant and private
Respondents contested the election held under the Sindh Local
Government Act, 2013 (“SLGA”).
3. The Official Respondents and private
Respondent No.14
(the returned candidate) contested the election petition by filing
Written Statements. Maintainability of the election petition was
questioned under Rule 61 of the Sindh Local Councils
(Election) Rules, 2013 / 2015 (the “Election
Rules”).
4. Parties led the evidence after the
learned Tribunal framed the following consent Issues_
5. What
should the judgment be?
5. Appellant is represented by M/s Mukesh
G. Karara and Sajjad Muhammad Zangejo,
Advocates. The legal team of the Appellants has argued that after decision
given in C. P. No. D – 1303 of 2016, only the issue of recounting of votes was
to be decided as the present Appellant withdrew his other prayers. It is
further submitted that the impugned Judgment has been delivered by not applying
the judicial mind appropriately and by non-reading and misreading of the
evidence, which was led by the parties. Mr. Karara has further argued that the
issue with regard to maintainability of the Election Petition was wrongly decided
and is contrary to record as well. Appellant’s learned counsel further argued
that under Rule 46 of the Election Rules, the Election Tribunal, inter alia, can make an order for the
inspection of ballot papers, which was rightly passed and the recounting was
done by the District Returning Officer (DRO) in which the present Appellant secured
more Votes than Respondent No.14.
6. The learned Law Officers of Federation
and Province,
namely, Mr. Muhammad Aslam Jatoi, Assistant Attorney General and Mr. Ali Mutahir
Shar, State Counsel, have supported the impugned judgment.
7. Mr. Nisar Ahmed Bhanbhro, Advocate,
while representing Respondent No.14 (returned candidate) has also supported the
impugned Judgment and controverted the stance of appellant’s side. Learned
counsel presses the issue of maintainability, inter alia, by referring to the testimony of present Appellant and
that of Respondent No.14.
8. Arguments heard and record perused.
9. A reported decision of the Honourable
Supreme Court given in the case of Zia Ur Rehman v. Syed
Ahmed Hussain and others [2014 SCMR page-1015], is relevant here and provides a
guidance, that in an election matter, the issue of maintainability should be
decided first. Thus, the issue of maintainability of present Election Appeal
and the Election Petition vis-à-vis Rules 60, 61 and 62 of the said Election
Rules have to be considered first. Relevant portion of the above decision is
reproduced herein under_
“. . . . . . . If
an objection is raised with regard to maintainability of such a petition for
non-compliance of a mandatory provision, the Court/Tribunal should decide that
preliminary objection. Because if that objection is sustained then the Court is
left with no option but to dismiss the petition. In view of this legislative intent,
we are minded to decide the appeals primarily on issue No.1.”
10. It is now an established point of law
that the afore-referred Election Rules are mandatory in nature as they provide an
adverse consequence, in the shape of dismissal of Election Petition. In a
reported decision of this Court handed down in the Case of Muhammad
Ameen and another v. Jawaid Ali and 5 others [2017
Y L R Note page-429],
this Issue has been discussed in detail and decided accordingly. Similarly the
decisions given in a bunch of Appeals, the leading one being Appeal No.03 of
2017 titled as Jam Javed Ahmed Khan Dahar versus Haji Muhammad Akbar and 14 others,
this Court has elaborated the nature and effect of these statutory rules. It
would be advantageous to reproduce the discussion herein under_
“19. After thoughtfully considering this
legal aspect, it was held that like a statute, if the statutory rules also
provide a consequence, then they should also be interpreted as mandatory.
Relevant portion of the referred unreported Judgment is mentioned herein under:
“11. I have given a thoughtful
consideration to the above proposition of law. Undoubtedly, afore-referred
Election Rules have been framed under the statute; SLGA 2013. Going through
different treatises on the Interpretation of Statutes, the position, which
emerges is that if the Rules are framed under an enabling clause of a main
statute then such Rules become Statutory Rules and are to be considered
part and parcel of the Statute; consequently, such Statutory Rules then deserve
to be governed by same principle of interpretation which is applicable to the
Enactment itself. Meaning thereby that if a Rule provides a penalty or
punishment for its non-compliance, then that Rule shall be interpreted as a
mandatory Rule. It is also necessary to give reference of well-known
commentaries on the above point of law (i)
Understanding Statutes ‘Cannons of Construction’ by Mr. S. M. Zafar, Second
Edition (2002), relevant pages-783 and 784, and the relevant paragraphs
whereof are reproduced hereunder: -
“. . . . . . . . . . Statutory rules
stand on a different footing. Though a byelaw must not be repugnant to the
statute or the general law, byelaws and rules made under a rule-making power
conferred by a statute do not stand on the same footing as rules are part
and parcel of the statute. Parliament or Legislature instead of
incorporating them into the statute itself ordinarily authorizes Government to
carry out the details of the policy laid down by the Legislature by framing rules
under the statute and once the rules are framed, they are incorporated in the
statute itself, and become part of the statute and the rules must be governed
by the same rules as the statute itself. Hence, a statutory rule cannot be
challenged as unreasonable.”
“Mandatory and Directory rules:
A rule is
mandatory if violation thereof entails any penalty or punishment. If non-compliance of a rule entails no
penalty, rule is directory. Act done in disregard of a mandatory provision of
law or rule is only invalid and unlawful. Such is not the case where only some
rule of directory nature has been violated.”
(Underling is
to add emphasis)
and
(ii) NS Bindra’s, Interpretation of Statutes, Ninth Edition, the relevant
paragraph whereof is reproduced hereunder: -
“ The
right to hold an election, to stand in an election, and to be elected thereto
as commissioner, are all rights which spring under the statute. There is no
common law right which is involved. Therefore, the provisions of the Act and
the rules made there under must be strictly followed in constituting the
municipality and in regulating the functions thereof. Similarly, a
disqualifying or disabling provision of law, for instance election rules, must
be subject to strict construction.”
(Underling is to add emphasis)
12. Secondly, the Honourable Supreme Court of
Pakistan in one of its reported Judgments, viz. P L D 1985 SC 282 (Shah
Muhammad Vs. Election Tribunal, Urban Local Council, Christian and others),
after taking into account various case laws, has interpreted the provisions of Punjab Local Council (Election) Rules,
1979 to be mandatory in nature and held as under: -
“. . .
. . . . . Thus there is no escape from the conclusion that the law requires
that every ballot-paper must be signed by the Presiding Officer, and when
the ballot-boxes are opened for the
purpose of counting the ballot-papers, all these ballot-papers which do not
bear the signatures of the Presiding Officer must be excluded. These
provisions are express and categorical and there is no scope for considering
these provisions to be of a directory nature.” (Underlining is to add
emphasis)”
13. Thirdly, even in the above
mentioned reported case of Zia-ur- Rehman Vs. Syed Ahmed Hussain and
others(2014 SCMR 1015), the Honourable Supreme Court in paragraph-7 has
held, that when the law prescribed certain form for Election Petition and its
verification on oath and entails a penal consequence for its noncompliance, the
provision is to be interpreted as mandatory. It is also a settled Rule that the
term “Law” is of wide import and it does include the Statutory Rules.
Fourthly, the relevant law in the instant case is the SLGA 2013 and its Section
46 pertains to Election Petitions. It would be advantageous to reproduce
Section 46 of SLGA 2013 as under: -
“46. Election
petition.- (1) Subject to this Act, an election to an office
of a council shall not be called in question except by an election petition.
(2) A
candidate may, in the prescribed manner, file an election petition before the
Election Tribunal challenging an election under this Act.”
14. From the above, it is not difficult to
ascertain the mandate of law, that is, the governing statute SLGA, which
enjoins that Election Petitions are to be filed in the “Prescribed Manner”. This term ‘Prescribed’ is mentioned in
the definition clause of the said SLGA 2013; Section 2 (lii), which means Prescribed
by Rules. It means that the Election Petitions are to be filed as mentioned
in the relevant Election Rules, which have already been referred to in the
preceding paragraphs. If the main Statute-SLGA 2013 had contained the
provisions about verification of Petitions / Pleadings without a consequence or
penalty, then the arguments of learned counsel for the Appellants would have
been sustained, that if the main Statute is not providing a penal consequence
then the Rules governing the same subject cannot travel beyond the express
statutory provisions. But here the undisputed factual and legal position is
altogether different. It is basically the Election Rules, which regulate the
proceedings at the Election Tribunals and the Rule 65 in an unequivocal term
has provided a penalty / penal consequence of dismissal of petition if the same
is not filed in compliance of Rules 60 to 63 of the Election Rules 2015.
The above legal position with regard to the status of Statutory Rules is
further reinforced by another learned Division Bench Judgment of this Court
reported in PLD 1984 Karachi 426 (Shahenshah Humayun Co-operative Housing
Society Ltd., and 2 others Vs. House Building Finance Corporation and another),
wherein, it has been held, inter alia, that if the rule-making
authority validly frames / makes Regulations then such Regulations which are intra vires, be regarded as part of the
enactment itself. In a subsequent decision of this Court reported in PLD 1992
Karachi Page-302 (Saeeduddin Versus Third
Senior Civil Judge, East, Karachi), the above principle relating to the
mandatory nature of the statutory rules has been reiterated.”
20. In view of the above, since Rule 64 of
the Election Rules is mandatory in nature, therefore, non-compliance of Rule 61
by not impleading the above named SHO against whom specific allegations were
levelled, the Election Petition No.13 of 2015 suffered from a non-curable
defect and is not maintainable. Despite giving an adverse observation about the
impugned order in the foregoing paragraphs, the present Appeal cannot be
accepted, in view of the above discussion, therefore, the present Appeal No.09
of 2016 is also dismissed.”
11. Under Rule 61 of the Election Rules, the
Petitioner, that is, the present Appellant has / had to implead any other
person against whom any allegation of corrupt or illegal practices was made;
and, secondly, the copy of the Election Petition was to be served on
Respondents, either personally, by courier service or registered post A.D.
12. In his Written Statement, Respondent
No.14 has raised the question of maintainability of the Election Petition on
the ground that the Election Rules have not been complied with. In his
Affidavit-in-Evidence followed by examination-in-chief, he has again
specifically raised the issue that the copy of the Election Petition was not
served upon the Respondents and those agents of Respondent No.14 were not
impleaded as respondents against whom allegations of corrupt practice were
levelled. The evidence of the parties on this particular point has been
assessed. The Appellant in his cross-examination has admitted that “It
is correct that I have not produced courier receipts or any other proof to show
that copy of petition and annexures to it were supplied to the respondents
prior to filing of election petition. Voluntarily says I supplied copies by
hands to respondent No.14 and Returning Officer. It is correct that I have
not obtained receipt from respondent No.14 and Returning Officer. It is
incorrect that I had not supplied copy of election petition to the respondent
No.14 by any mode of service.” [Underlying to add emphasis]
13. On the other hand though the Respondent
No.14 has deposed about the violation of the aforementioned Election Rules as
mentioned in preceding paragraphs of this decision, but the Appellant’s side
did not cross-examine the Respondent No.14 on this material aspect of the case.
The following portion of the testimony of the Respondent No.14 went
unchallenged during the evidence_
“2. That I say that the Election Petition is
not maintainable under the law, as the Petitioner before submitting the
election petition before this Honourable Tribunal has not served the copies of
election petition along with its annexures upon the Respondents and he has not
made agents of the Respondent No.14 as party in the petition against whom the
allegations of rigging are made as required under rule 61(b) of Sindh Local
Councils Election Rules 2015.”
14. It is a settled rule that if opponent is
not cross-examined on a material aspect of a case, then it may be inferred that
truth of such statement or that part of the evidence has been accepted; the relevant
citation is 1991 S C M R page-2300 [Mst.
Nur Jehan Begum v. Syed Mujtaba Ali Naqvi].
15. In a recent decision given in Election
Appeal No.29 of 2016 [Abdul Hakeem v.
Federation of Pakistan through Secretary Election Commission of Pakistan
Islamabad and 7 others],
it has been decided after taking into consideration other reported decision that
interpretation of the Rule 61 of the Election Rules is that a copy of the
Election Petition is to be served in the manner and mode mentioned in the said
Rule 61, upon the Respondents at that time when the Election Petition is
filed before the Election Tribunal. The relevant portion of the referred
decision is mentioned herein under_
“6. With
the assistance of the learned counsel for the parties the record and proceeding
of the present appeal and the Election Petition No.17 of 2016
has been examined. It is not disputed that when the Election Petition was
filed, the same was not served
either personally, through courier or registered post upon the Respondents, but
after the Court orders the same (Election Petition) was sent through registered
post. The decision reported in 2017 YLR 557-Jaleel Ahmed v. Election Commission
of Pakistan through Chief Election Commission and 8 others (of our Court) and
the decision handed down by Hon’ble Supreme Court and reported in 2014 SCMR 1477 (Inayatullah Versus Syed
Khursheed Shah), which was followed in another decision given by this Court in
an unreported case of Muhammad Zaman Versus Federation of Pakistan and
others-Election Appeal No.S-10 of 2016, the legal position that emerges
in this regard is, that Rule 61 (d) of the Election Rules (ibid) relating to the service of an Election
Petition on the Respondents has to be interpreted as a mandatory requirement,
which is to be fulfilled by Petitioner, who has to serve a copy of an Election
Petition upon the Respondents either personally or through courier service or
registered post, at that time when the Election Petition is filed before the
Election Tribunal. The counter arguments of the Appellant’s side that the
service of Election Petition was effected upon the Respondents once the notices
were issued by the Election Tribunal, thus has no force, and since the Rules
61, 62 and 63 are mandatory in nature in view of the Rule 64, which provides a
consequence of dismissal of Election Petition, if the afore mentioned Rules are
not complied with, therefore, the impugned order to this extent is not
erroneous.”
16. From the above, it is proven that the
copy of the Election Petition was not served upon the Respondents and
particularly Respondent No.14 (the contesting Respondent) as required under
Rule 61 of the Election Rules, which carries an adverse consequence (as stated above).
17. Referring to the other segment of Rule 61
about non-impleading of persons as Respondents; this aspect has also been
thrashed out in the Election Appeal No.41 of 2016 (Tariq Hussain Kubar v. Subhab Ali and others), in which it is held
that when a person against whom an allegation is levelled is ascertainable then
that person should be impleaded as Respondent as enjoined by Rule 61 of the
Election Rules; failing to do so results in dismissal of the Election Petition.
Hence, non-impleading of a
necessary party is fatal to the case of Petitioner. The present Appellant has
levelled a specific allegation against one of the polling agents (Ayaz Khuro) of Respondent No.14. It was alleged that the agents
including the above named Polling Agent illegally casted the votes in favour of
Respondent No.14. But this allegation was denied by the Respondent No.14 in his
Written Statement; whereas, in his cross-examination, the present Appellant has also
acknowledged the fact that though he has levelled specific allegations of
corrupt and illegal practice against one of the above named agents of
Respondent No.14, but he (the said Polling
Agent) was not impleaded as Respondent.
18. From the pleadings of the parties and
examination of the evidence with regard to the above Issue, the conclusion is
that the copies of the Election Petition were not served upon the Respondents,
particularly, contesting Respondent No.14, as required under Rule 61 of the
Election Rules so also those persons including above named Polling Agent, who was/were
easily ascertainable and identifiable, were not made as Respondents, otherwise
their version also would have come on record.
19. Upshot of the above is that Issue No.1
was rightly appreciated by learned Election Tribunal and its finding regarding the
maintainability of Election Petition is neither contrary to record nor violates
any provision of law and thus is unexceptionable. Since the Issue of
maintainability is decided against the present Appellant, therefore, it is not
necessary to examine and decide other Issues. Resultantly, present Election
Appeal is dismissed.
20. Parties to bear their own costs.
Judge
Sukkur,
Dated:
_____________