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Election Petition No.34 of 1985, decided on 22nd January, 1987.
---S.52--Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977), Ss.2 (d) & 12--Word "house", connotation of--Section 12 to be strictly construed--Bar against double membership illustrated.
Subsection (1) of section 12 will show that there is complete prohibition for a candidate to seek election to a seat in both the Houses or to a seat of Assemblies of two or more Provinces or more than one seat in the same House or Provincial Assembly. The word "House" is defined in section 2 (d) to mean a House of Parliament. Parliament is not defined in the Order but according to Article 50 of the Constitution of Islamic Republic of Pakistan Majlis-e-Shura is known as Parliament which consists of the President and two Houses to be known respectively as the National Assembly and the Senate. It is therefore, clear that the bar contained under section 12 of the Order is against a person from being a candidate for election, to a seat of National Assembly and the Senate at the same time, or to a seat in more than one Provincial Assemblies at the same time or to more than one seat in the same House or a Provincial Assembly at the same time. Subsection (2) of section 12 will however, show that there in no bar for seeking election simultaneously both to any one of the Houses of the Parliament and to a Provincial Assembly but in the event of election of candidate both to a seat in a House and to a seat in a Provincial Assembly he has to resign, one of its seats within a period of 15 days of the declaration of the result of the second such seat and if he did not so resign the seat to which he has been elected earlier and in case he has been elected to both the seats on the same days the seat from which he filed his nomination earlier shall become vacant at the expiration of the period of 15 days. It is therefore, quite clear that whereas a person could be a candidate for election both to a House of the Parliament and to seat of Provincial Assembly simultaneously, he could not be a candidate for election, to more than one seat in the same House or in the same Provincial Assembly or to a seat in more than one Assemblies simultaneously or to a seat in both the Houses of the Parliament at one and the same time.
It is quite clear that section 12 of the Order relates to disqualification of a candidate in seeking election to more than one seat in the, same House or a Provincial Assembly or to a seat in both the Houses or to a seat in more than one Assemblies of the Provinces at the spare time. It is also clear that contravention of the provisions of subsection (1) of section 12 of the Order, renders a candidate disqualified from seeking any election to a House or to an Assembly of the Provinces for a period of 5 years. There is, therefore, no doubt that section 12 of the Order is to be strictly construed.
--- Ss. 2 (fv) & 12 (1)--Representation of the People Act. (LXXXV of 1976), S.2 (iv)--Phrase, "be a candidate for election"--Meaning, scope and object of enacting S.12 stated.--[Words and phrases].
The word 'candidate' is not defined in Order 5 of 1977. However, by virtue of section 2 (e) of the Order, the definition of words and expressions not given in the Order but given in several other Acts and Orders have been adopted for the purposes of the Order. The words "candidate" is defined in section 2 (iv) of the Representation of the People Act, 1976.
A careful reading of the said definition of "candidate" will show that it means a person who has been proposed as a candidate for or who is seeking election as a member. No doubt in view of the above definition mere filing of a nomination by a person for a seat of the House or Assembly in the provinces may make him a candidate but this is not sufficient to incur the disqualification prescribed in section 12 (3) of the Order. Keeping in view the object of legislation, the only reasonable interpretation of section 12 of the Order would be that a person who after filing his nomination for more than one seat of a 'House' or an Assembly or a seat in both the Houses or for a seat in more than one Assemblies of the Provinces remains- in the field and goes through the whole process of election, will incur the disqualification prescribed under this section. A person who after filing his nomination papers for a seat of a House or an Assembly, withdraws his nomination before the commencement of election cannot be legitimately included in the expression "be a candidate for election". The real object of legislature in enacting section 12 of the Order appears to be to prevent persons from holding double membership in the Houses and Assemblies and not to punish or disqualify persons who only filed nomination papers for more than one seat but subsequently withdrew the same and actually contested election for only one seat of the House or an Assembly.
---S.52--Establishment of polling stations contrary to instructions of Election Commission riot proved--No evidence produced to prove that returned candidate was responsible for establishment of such polling stations--Most of disputed polling stations were already notified during Local Bodies Election and referendum--Instructions of Election Commission with regard to establishment of polling stations, held, were not statutory rules but only directions issued for internal guidance of staff connected with process of holding of elections--Petitioner, however, failed to establish in what manner violation of such instructions had affected result of his election adversely.
---S.52--Wrong entry of name in electoral list--No protest lodged for correction of name--Petitioner's name printed in ballot paper in accordance with his nomination paper- -Petitioner having made no protest for correction of his name, held, would have no cause of complaint--Plea of difference of electoral list supplied to him and to election staff was not proved for lack of evidence--Petition being devoid of merit was dismissed by Election Tribunal.
Nasim Farooqui for Petitioner.
Imam Ali Kazi for Respondents.
Date of hearing: 10th December, 1986.
- The petitioner has challenged the election of respondent No.1 to the National Assembly Seat No.164, Larkana, in the general elections of 1985. The petitioner and respondents Nos.l to 3 contested the election to the above seat of National Assembly and obtained 28,092, 32,179, 9,928 and 1,110 votes respectively. The petition is contested only by Respondent No.1 and Respondent No.4 who have submitted their respective written statements denying the various allegations of petitioner. The petitioner has challenged the election of respondent No.1 on the following grounds:-
1. That the respondent No.1 having filed two nomination papers for two different seats of National Assembly, namely N.A. 164 and N.A. 166, had incurred a disqualification under section 12 (3) of Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 and was thus disqualified from being or being elected as a Member of House or a Provincial Assembly for a period of two years. (I will hereinafter refer this Presidential Order as "the Order" only for the sake of convenience).
2. That the polling stations at Aqil, Mitho Khoro, Gud Mnhrabpur, village Ali Jatoi, Bakapur, Masoohib, were established by the Authorities. contrary to the instructions issued in this behalf which materially affected the results of the election.
3. That polling staff appointed at the above polling stations was partial and under the influence of respondent No.1 and at several polling stations respondent No.1 manipulated the result of election in collusion with the polling staff which affected the results of election materially.
4. That the name of petitioner who is popularly know in his constituency as 'Abdul Ghafoor Bhurghari' was shown in the ballot paper as only 'Abdul Ghafoor' which caused serious disadvantage to the petitioner as several voters who knew the petitioner by the name 'Bhurghari' could not vote for him on account of incomplete description of his name and lastly the list supplied to the petitioner in respect of polling stations at Larkana was different from the list which was available with the Presiding Officers.
All the above allegations of petitioners are denied by respondents Nos. l and 4 who contended that the election held in the National Assembly Constituency No. N.A. 164 were absolutely fair and impartial. The following consent issues were framed:-
"(1) Whether the respondent No.1 was qualified to contest tile election in view of his filing nomination papers from two constituencies viz. N.A. 164 and N.A. 166. '
(2) Whether the Tribunal lacks jurisdiction in view of the judgments of the Election (Appellate Authority).
(3) Whether the election stands vitiated by the alleged illegalities and malpractices.
(4) Is the petition as framed maintainable
(5) What should be the order."
The petitioner in support of his allegations examined only himself and although he made application for examining 3 other witnesses which was allowed but later on he gave up these witnesses and closed his side. Respondent No.1 appeared as his witness and closed his side. In addition to the above evidence the Returning Officers of National Assembly Seats Nos. N. A .166 and N.A. 164 were examined as Court witnesses. My findings on the issues in the light of the above evidence are as follows:
The main ground of attack advanced by the petitioner against the election of respondent No. 1 to N.A. Seat No. 164, Larkana, is reflected in issue No.1. It is contended that in view of the provisions of section 12 of the Order, the respondent No.1 was disqualified from being elected as a Member of the House or a Provincial Assembly for a period of 5 years as he had filed his nomination papers for election to two seats of the National Assembly, namely N.A. 166 and N.A. 164. It is accordingly contended that the election of petitioner from N.A. 164 was void and is liable to be declared as such and as the disqualification of respondent No.1 was a notorious one, the petitioner is entitled to be declared elected in his place. The respondent No.1 on the other hand contended that no doubt he had filed his nominations from the two seats of National Assembly namely N.A. 164 and N. A. 166 but he withdrew his nomination from N.A. 166 before the date of withdrawal and as such no disqualification was incurred by him. It is an admitted position that respondent No.1 filed his nomination paper both from N.A. 166 and N.A. 164 but subsequently he withdrew his nomination from N.A.166 and contested election only for National Assembly Seat No. N.A. 164 Larkana. There is disagreement between the parties with regard to the date of withdrawal of nomination by respondent No.1 from N.A. 166. According to petitioner this date was manipulated by respondent No.1 as 20-1-1985 as shown in the certified copy of Annexure P.4 while according to other documents it was either 21st or 22nd of January, 1985. From the documents on record and the oral evidence of Returning Officer of N.A. 166 it is quite clear that respondent No.1 submitted his nomination paper for the N.A. Seat No.166on 20th January, 1985 at 3-50 p.m. and as such (there appears to be an obvious mistake in the certified copy in showing the date of acceptance of withdrawal as on 20-1-1985 at 8-30 a.m.) The original letter of respondent No.1 addressed to Returning Officer N.A. 166 withdrawing his nomination is produced in evidence by the Returning Officer which shows that the withdrawal was accepted by the Returning Officer at 8-30 a.m. on 21st January, 1985 and not on 20th January, 1985 as shown in the certified copy. The order of the Returning Officer of N.A.164 under which the nomination of respondent No.1 was rejected also shows that respondent No.1 admitted before him at the time of scrutiny of his nomination paper of N.A. 164 that he had also filed his nomination from N.A. 166 but it was contended that the same was withdrawn. From the above discussion it is quite clear that respondent No.1 had filed his nomination from N.A. 166 on 20-1-1985 which he withdrew on 21-1-1985. The above discrepancy in the date of withdrawal is otherwise of little significance in the case as the legal contention on behalf of the petitioner is that by mere filing of nomination papers by the respondent No. 1 for two seats of National Assembly the disqualification prescribed by section 12(3) of the Order of 1977 was incurred and he was debarred from being or being elected as Member of National Assembly. Before proceeding further it may be mentioned here that against the order of rejection of his nomination paper from N.A. 164, respondent No. 1 preferred an appeal before the Appellate Authority being Election Appeal No. 2 of 1985 which was allowed and the order of the Returning Officer N.A. 164 was set aside with the result the respondent No. 1 was allowed to contest the election from N.A. 164. Although, it was-initially contended by the learned counsel for respondent No. 1 that on account of the order passed by the Appellate Authority reversing the order of Returning Officer of N.A. 164 and accepting the nomination of the respondent No. 1 from that constituency the matter stood concluded finally and same could not be agitated again in this petition and issue No. 2 was also framed in this behalf but at the hearing of this petition, it was conceded that in spite of the decision of the Appellate Authority accepting the nomination of respondent No. 1 and allowing him to contest the election from N.A. 164, the Tribunal is not debarred from going into the question of validity of the election of respondent No. 1 on the ground that he was disqualified from contesting election as a result of filing of nomination papers for two different seats of the National Assembly. I will, therefore, now examine the effect of filing of nomination papers by respondent No. 1 for two National Assembly Seats namely Nos. 164 and 166 and subsequent withdrawal of nomination from N.A.
166. In order to appreciate the contention of the learned counsel for the parties it will be necessary to examine carefully the provision of section 12 of the order which reads as follows:--
No person shall, at the same time, be a candidate for election to a seat in both Houses, or the Assemblies of two or more Provinces, or to more than one seat in the same House or Provincial Assembly.
(2) If a person is elected to a seat in a House and a seat in a Provincial Assembly, he shall, within a period of fifteen days after the declaration of the result for the second such seat, resign one of his seats and, if he does not so resign, the seat to which he has been elected earlier, or if he has been elected to both the seats on the same day, the seat for election to which his nomination was filed earlier shall become vacant at the expiration of the said period.
(3) If any person contravenes the provisions of clause (1), he shall be disqualified for a period of five years from being, or being elected as, a Member of a House or a Provincial Assembly."
A careful reading of subsection (1) of section 12 will show that there is complete prohibition for a candidate to seek election to a seat in both the Houses or to a seat of Assemblies of two or more Provinces or more than one seat in the same House or Provincial Assembly. The word "House" is defined in section 2(d) to mean a House of Parliament. Parliament is not defined in the Order but according to Article 50 of the Constitution of Islamic Republic of Pakistan Majlis-e-Shura is known as Parliament which consists of the President and two Houses to be known respectively as the National Assembly and the Senate. It is therefore, clear that the bar contained under section 12 of the Order is against a person from being a candidate for election, to a seat of National Assembly and the Senate at the same time, or to a seat in more than one Provincial Assemblies at the same time or to more than one seat in the same House or a Provincial Assembly at the same time. A reading of subsection (2) of section 12 will however, show that there is ho bar for seeking election simultaneously both to any one of A the Houses of the Parliament and to a Provincial Assembly but in the event of election of a candidate both to a seat in a House and to a seat in a Provincial Assembly he has to resign one of its seats within a period of 15 days of the declaration of the result of the second such seat and if he did not so resign the seat to which he has been elected earlier and in case he has been elected to both the seats on the same day the seat from which he filed his nomination earlier shall become vacant at the expiration of the period of 15 days. It is, therefore, quite clear that whereas a person would be a candidate for election both to a House of the Parliament and to a seat of Provincial Assembly simultaneously, he could not be a candidate for election, to more than one seat in the same House or in the same Provincial Assembly or to al seat in more than one Assemblies simultaneously or to a seat in both the Houses of the Parliament at one and the same time. The question, which therefore, arises for consideration in the present case is whether respondent No. 1, merely by filing his nomination papers for more than one seat of National Assembly became disqualified under section 12 of the Order and as Such his election to one of such seats is liable to be declared as void. It is quite clear that section 12 of the Order relates to disqualification of a candidate in seeking election to more than one seat in the same House or a Provincial Assembly or to a seat in both the Houses or to a seat in more than one Assemblies of the Provinces at the same time. It is also clear that contravention of the provisions of subsection (1) of section 12 of the Order, renders a candidate disqualified from seeking any election to a House or to an Assembly of the Provinces for a period of 5 years. There is, therefore, no doubt that section 12 of the Order is to be strictly :construed. To determine the import and scope of subsection (1) of section 12 of the Order, in my humble opinion, it will be necessary to discover the true and correct meaning of the expression "be a candidate for election" used in the said subsection. The word 'candidate' is not defined in the order. However, by virtue of section 2(e) of the Order, the definition of words and expressions not given in the Order but given in several other Acts and Orders have been adopted for the proposes of the Order. The word "candidate" is defined in section 2(iv) of the Representation of the People Act, 1976 (Act LXXXV of 1926) as follows:--
"(iv) "candidate" means a person proposed as a candidate for, or seeking election as a member;"
A careful reading of the definition of "candidate" reproduced)' above will show that it means a person who has been proposed as a'' candidate for or who is seeking election as a member. No doubt in view of the above definition mere filing of a nomination by a person for a seat of the House or an Assembly in the Province-s may make him a candidate but in my humble view this is not sufficient to incur the disqualification prescribed in section 12(3) of the Order. In my opinion, keeping in view the object of legislation, the only reasonable interpretation of section 12 of the Order would be that a person who after filing his nomination for more than one seat of a 'House' or an Assembly or a seat in both the Houses or for a seat in more than one, Assemblies of the Provinces remains in the field and goes through the whole process of election, will incur the disqualification prescribed under) this section. A person who after filing his nomination papers for a seat of House or an Assembly, withdraws his nomination before the commencement of election cannot be legitimately included in the expression "be a candidate for election". The real object of legislators in enacting section 12 of the Order; in my opinion appears to be to prevent persons' from holding double membership in the Houses and Assemblies and not) to punish or disqualify persons who only file nomination for more than one seat but subsequently withdraw the same and actually contest election' for only one seat of the House or an Assembly. In the present case, respondent No. 1, though filed his nomination for two seats of National, Assembly (N. A. 164 and 166) but before the date of withdrawal of nomination, withdrew his nomination from N.A. 166 and contested election only from one constituency of National Assembly namely N.A. 164. He therefore, did not incur the disqualification prescribed under section 12(3) of the Order. In view of the above discussion Issue No. 1 is answered in the affirmative while Issue No. 2 is decided in the negative.
The burden of proving this issue is on the petitioner. The petitioner in his evidence alleged that number of polling stations in the constituency were established contrary to the instructions of Election Commission of Pakistan which gave undue advantage to respondent.
Besides, the fact that there is no evidence on record to show that respondent No. 1 was in any way responsible for establishment of these polling stations, respondent No. 4, who was the Returning Office of the constituency was examined in -the case as a Court witness and he denied these allegations. On the contrary, from his evidence it is quite clear that most of these polling stations were also notified as polling stations during Local Bodies Election and referendum. The instructions relied by the petitioner in this behalf are not statutory rules but are only directions issued by the Commissioner for the intern guidance of staff connected with the process of holding of election. The petitioner has not been able to establish, in what manner the alleged violation of these instructions affected the result of his election adversely. It is significant that not a single voter from the constituency came forward to complain of any inconvenience caused to him or to voters generally on account of establishment of these polling stations or to support other allegations of the petitioner in this behalf. The petitioner also alleged that the polling staff on the above polling station was appointed at the behest of respondent No. 1 and they were biased against the petitioner. Once again there is no evidence to support this allegation of petitioner. Respondent No. 4 the Returning Officer of the constituency denied this allegation and stated that the polling staff was appointed according to rules and they were not biased against the petitioner. The petitioner also complained that he is known in his constituency as 'Burghari' while his name in the ballot paper was shown as only "Abdul Ghafoor son of Abdul Jalil" which misled number of voters. In his cross-examination the petitioner admitted that his name appears in the list as Abdul Ghafoor son of Abdul Jalil. He also admitted that in his nomination paper he mentioned his name only as Abdul Ghafoor son of Abdul Jalil. The petitioner did not lodge any protest before the -Election Commission, for correction of his name. Respondent No. 4 in his evidence stated that the name of petitioner was printed on the ballot paper according to the disclosure made by the petitioner on his nomination paper. No voter from the above constituency came forward to support this allegation of petitioner. In these circumstances, the petitioner has no cause of complaint in this behalf. The last allegation of petitioner in the case is that the list supplied to him for Larkana was different from the one which was available with the polling staff. Again this allegation has nothing to do with respondent No. 1. Apart from it, the petitioner in his evidence was unable to explain the alleged difference between the list supplied to him and the one which was with the - polling staff. In view of the above discussion I hold that the petitioner has failed to prove issue No. 3.
In view of my finding on Issue No. 3 it is quite unnecessary to decide this issue. -
As a result of my decision on Issues Nos. 1 to 3, the petition is dismissed but there will be no order as to costs.
A.A./5/E Petition dismissed.
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