Malik MUHAMMAD USMAN ACHAKZAI vs ELECTION TRIBUNAL BALOCHSITAN, QUETTA

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, C J.---This appeal by leave of the Court is directed against the judgment dated 14th May, 2009 passed by High Court of Balochistan, Quetta.

2. At the outset, learned counsel appearing for the appellant requested that permission be accorded to him to withdraw this appeal with the observation that the question agitated by the appellant before the Election Tribunal, regarding the status of the Sanad of the respondent shall be available to him for agitating the same, if needed, after final decision of the election petition pending on the file of Election Tribunal. Other side has expressed no objection.

3. Request is allowed. Appeal is dismissed as withdrawn in above terms.

4. While hearing this appeal and the other connected matters, we have observed with concern that the Election Petitions, pending before the Election Tribunals/High Courts are not being disposed of within the time, stipulated in proviso to section 67 of the Representation of the People Act, 1976 i,e, four months. It has also been noted that some times, such matters become infructuous because of the fresh elections of the Provincial Assembly or the Parliament, as the case may be, for the reason that they remain pending on the files of Election Tribunal or the High Court in writ petitions for a longer period without decision. The challenge thrown to the elections of the individual by the rival candidate is required to be disposed of as early as could be possible but within the stipulated period of four months, so that the real representative of the public may represent them in the Assembly and due to delay in decision of such matters, the representation made by a person, who was not duly elected, in fact negates the principle of democratic system of Government. There is wisdom in fixing the period for decision of such cases, namely, that there should be no uncertainty for the persons, who have been elected or who have challenged the election before the Tribunal or the Court and after expeditious disposal of the same, they should consume all their energies for the welfare of the people to whom they represent, instead of wasting the time in pursuing the matters before the Courts. Thus, we direct the Chief Justices of the High Courts to chalk out a programme by assigning the work to the learned Judges for disposal of cases expeditiously without any further delay, in case the same have not been decided within the period of four months.

5. It is also important to note that on 2nd November, 2009, the Representation of the People Act, 1976 has been amended by means of Act IV of 2009, whereby section 167 has been amended to the following effect:--

2. Amendment of section 67, Act (LXXXV of 1976).In the Representation of the People Act, 1976 (LXXXV of 1976), in section 67, in subsection (1A),---

(i) After the words "day to day basis" the words "and no adjournment shall be given to any party for more than seven days and that too on payment of costs as the Tribunal may determine" shall be inserted;

(ii) for the proviso, the following provisos shall be substituted, namely:-- "Provided further that where delay in the proceedings is occasioned by any Act or omission of a returned candidate or any other person acting on his behalf, the Tribunal itself, or on application of the aggrieved party shall after issuance of show-cause notice to the returned candidate, within fifteen days from the date of show-cause notice may order that the returned candidate has ceased to perform the functions of his office either till the conclusion of the proceedings or for such period as the Tribunal may direct.";

(iii) before the proviso amended as aforesaid, the following new provisos shall be inserted, namely:-- "Provided that where a petition is riot decided within four months, further adjournment sought by any party shall be given only on payment of special cost of ten thousand rupees per adjournment and adjournment shall not be given for more than three days: ' Provided further that if the Tribunal itself adjourns it shall record reasons for such adjournment: "; and

(iv) in subsection (3), after the word "Court", occurring for the first time, the words "which shall be decided within thirty days" shall be inserted."

6. The attention of the learned Chief Justices of the High Courts is also drawn towards the above provisions, so the same may be followed strictly.

7. In the instant case as well, the Election Tribunal Balochistan, before whom case is pending, is directed to decide the same within the period of four months, preferably.