KUNWAR KHALID YOUNUS Versus FEDERATION OF PAKISTAN

SABIHUDDIN AHMED, J.‑‑‑ The petitioner was a candidate for the National Assembly Constituency No.N.A.245, Karachi VII and according to the result of the count prepared by the Returning Officer had passed the highest number of votes (51,696 votes). His nearest opponent, the respondent No.3 was stated to have secured 41,947 votes. According to the petitioner, he had also filed his returns of election expenses, but his name was not published in the Gazette dated 20th October, 2002, or even thereafter in terms of section 42(4) of the Representation of the People Act, 1976 (hereinafter referred to as the 'Act'). Aggrieved thereby the petitioner moved this Court for appropriate directions. When this petition came up for hearing on 25‑10‑2002. we issued notices to the respondents and the Attorney‑General for Pakistan to assist us on 29‑10‑2002. It was contended that the failure to notify the petitioner would also affect the result of the seats reserved for women and non‑Muslims and we, therefore, restrained the respondent No.2 from holding such elections till the next date.

2. On the aforesaid date we were informed by Syed Hassan Muhammad, the Secretary of respondent No.2 that the result had been withheld in view of an application filed by the respondent No.3 (who was not initially impleaded as a party to the petition). Mr Junaid Farooqui, Advocate, who was present in Court (apparently to watch the interest of the respondent No.3) confirmed the same and trade an oral request for joining the said respondent as a party to the petition. The learned Attorney‑General for Pakistan contended that the petition be taken up for regular hearing today as the interim order was forestalling the. electoral process, which was neither desirable nor warranted under the law. Accordingly we admitted the petition and by consent of all present, fixed it for regular hearing today. The request of the respondent No.3 on oral motion was allowed and all the respondents were enabled to tile their comments/counter‑affidavit by today. such counter- affidavit, however, has only been filed on behalf of the respondent No.3.

3. It appeared from the counter‑affidavit of the respondent No.3 that a large number of allegations relating to rigging of the electoral process have been made in the application submitted to the respondent No.2. It is, inter alia, alleged that the workers of M.Q.M. (Altaf Group), to which the petitioner belongs threatened the polling staff. harassed voters and managed to cast bogus votes in favour of the petitioner in a number of Polling Stations. When this application came up for hearing before the respondent No.2, the following order was passed on l9‑10-2002:‑‑

"The applicant alleges grave irregularities committed by supporters of opponent at different polling stations of Constituency No.NA‑245 Karachi V.H.. including issuance of threats to the Presiding Officers and staff, snatching of books of ballots and resort to other illegal acts. He prays for re‑polling in the polling stations mentioned in his application.

2. Notice to Mr. Kunwar Khalid Younus, returned candidate.

3. In the meanwhile notification of returned candidates shall not be issued."

4. Mr. K.M. Nadeem, learned counsel for the petitioner questioned the validity of the aforesaid order on a number of grounds. In the first place emphasized that though the petitioner was required to be served with notice no such notice has been served on him till date and he was not apprised of the reasons for withholding the result till the same was divulged on 29‑10‑2002. It is pertinent to mention that the contents of the memo. of petition have not been rebutted by the respondent No.2 through a counter -affidavit though an opportunity to do so was granted. Learned Counsel further argued that an ad interim order was passed for an indefinite duration to the detriment of the petitioner without hearing him.

5. Mr.Aftab Ahmad Shaikh, Advocate, who also addressed us on behalf of the petitioner argued that the assumption of jurisdiction on the part of the respondent No.2 was itself invalid inasmuch as section 103‑AA contemplates that the powers of the Commission conferred thereunder can only he exercised only "if from facts apparent on the face of the record and after summary inquiry the Commission is satisfied that by reason of grave illegalities or violation of the provisions of the Act or the Rules, the poll of any constituency ought to be declared void". He contended that the expression "apparent on the face of the record" could only mean "facts which were discernible from the record itself"' without requiring any further evidence. to he taken. The nature of the allegations contained in the application submitted by the respondent No.3. according to the learned counsel, were such that they could only be established through evidence which may be produced in a regular trial before an Election Tribunal. He relied upon the following observations of the Honourable Supreme Court in Mohtarma Benazir Bhutto v. President of Pakistan (PLD 2000 SC 77):

"Before an error can be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must he so manifest so clear that no Court could permit such an error to remain on the record. It may be an error of fact or law, but it must be an error which is self‑evident and floating on the surface and does not require any elaborate discussion or process of ratiocination. '

6. Mr. Nadeem Azhar Siddiqui. learned Dy. A.‑G. representing the respondent No.l and Syed Hassan Muhammad. Secretary of the respondent No.2. supported the order of the respondent No.2. but did not address us on the legal question involved. Mr. Raja Haq Nawaz learned counsel for the respondent No.3. however, argued that the illegalities mentioned in the application moved by the respondent No.3 could certainly be inquired into by respondent No.2 under section 103‑AA of the Representation of the People Act. He argued that the above provision had been added in the Act in 1991 and was intended to provide expeditious relief instead of forcing a candidate to file an election petition. which might take a long time to be decided. He further stated that the illegalities committed were so grave that the entire electoral process was nullified and in such circumstances the Commission could exercise such powers. He referred to the case of Hafeezullah Cheema reported in PLD 1977 Journal 164 where the Election Commission took sun motu notice of complaints of malpractices and declared the election of a sitting Minister void under the then section 103‑B of the Act holding, that the sanctity of ballot box was blatantly polluted. Learned counsel further contended that the power to pass an ad interim order passed was a necessary corollary of the power to grant final relief and the jurisdiction of this Court to interfere was extremely limited.

7. Mr. Makhdoom Ali Khan the learned Attorney‑General of Pakistan, clarified that he was not representing any party but was only appearing on Court notice. In the first instance he contended that the expression "summary inquiry" contained in section 103‑AA was only referable to such inquiry which could be conducted without recording elaborate evidence through the authority conducting the inquiry was not debarred from recording evidence. He compared this provision with section 14(5) of the Act to contend that if a candidate could be found to be disqualified through a summary inquiry the Returning Officer or the Appellate Tribunal could reject his nomination paper, but in case such disqualification could only be proved through elaborate inquiry upon recording of evidence the only remedy available was an election petition under section 52. The learned Attorney‑General further argued that irrespective of the powers of the Commission under section 103‑AA, right of an aggrieved person to question the election of a returned candidate by an Election Tribunal stood protected.

8. Adverting to the question of passing of an ad interim order, the learned Attorney‑General pointed out that in view of the stipulation in the present Electoral Law contemplating indirect election for seat reserved for women and non‑Muslims the failure of the respondent No.2. to notify the election for the petitioner would inevitably affect the interest of his party and to this extent the interim order could be treated as a final order against the party to which the petitioner belongs. Moreover, he contended with some emphasis that it was a settled principle of electoral law that interim injunction were not to be granted in election matters. In this context he referred to the pronouncements of the Honourable Supreme Court in Masroor Ahsan v. Muhammad Tariq Chaudhry (1991 SCMR 668), Wasim Sajjad v. Mukhtar Hussain Shah (1986 SCMR 48) and of the Lahore High Court in Shaikh Abdul Hameed v Punjab Local Council Authority (1984 CLC 993).

9. Having carefully heard all learned counsel and gone through the record we are clearly of the opinion that section 42(4) of the Representation of the People Act, casts a mandatory duty upon Election Commission to publish the name of the returned candidate on the basis of the consolidated result communicated by the Returning Officer. We agree with Mr.K.M. Nadeem that the proviso to the aforesaid section is the only provision which E enable the Commission not to do so i.e. when the petitioner fails to submit tile return of election expenses in accordance with section 50 of the Act. It is nobody's case that the petitioner failed to do so. We also agree with the learned Attorney‑General of Pakistan that this is a ministerial duty to be performed by the Commission which can be enforced by this Court in Constitutional jurisdiction. It may be pertinent to refer to the pronouncement Of the Honourable Supreme Court in the Presiding Officer v. Sadruddin Ansari PLD 1967 SC 569. where it was held that duty to declare a result is a ministerial duty, which could he enforced by mandamus. In the case of Aahad Yousuf (1986 CLC 1284). Mr. Justice (R) Sajjad Ahmad Jan, acting as Chief Election Commissioner held that the electoral process stood completed after the declaration of result by the Returning Officer and issuance of a notification by the Commission was a mere formality. It was further observed to observe that it was erroneous impression that the result of the election could be stalled or defeated by the Election Commission by refusing to publish the name of the returned candidate in the Official Gazette.

10. We are also conscious of the well‑settled principle of Election Law that allegations of irregularities or corrupt practices must be affirmatively established like a criminal charge and any benefit of doubt must go to the returned candidate. Indeed the respondent No.2 could not be assumed to be vested with the jurisdiction to deviate from this well‑settled principle by choosing not to notify a candidate securing the highest number of votes as "returned candidate". We are, therefore, satisfied that the obligation to issue an appropriate notification exists irrespective of any power that the respondent No.2 may have to pass under section 103‑AA to declare an election void upon finding of grave illegalities or violation of law. We are C fortified in this view by the provisions of subsection (2) of section 103‑AA, pointed out by the learned Attorney‑General, which stipulates that the powers under the aforesaid section can be exercised notwithstanding the publication of the name of a returned candidate under section 42(4). Moreover, the above subsection requires that the powers under section 103 AA can be exercised up to the expiry of 60 days after such publication. Obviously, it cannot be implied that the respondent No.2 can assume to itself such power for an indefinite duration by failing to cause publication of the name of a returned candidate under section 42(4). Keeping this context in view we are unable to agree with Mr.Raja Haq Nawaz Khan that the expression "notwithstanding anything contained in this Act" appearing in the opening words of subsection (1) of section 103‑AA will also override the provisions of section 42(4). A harmonious construction of the relevant provisions would indicate that these words are only referable to the provisions of Chapter VII, which enable Election Tribunals to declare the election void. They have no bearing on the ministerial duty cast on the Commission to notify the names of returned candidates.

11. We also found some force in the contention of Mr.Aftab Ahmad Shaikh to the effect that the powers under section 103‑AA could only be exercised upon the existence of certain laid down pre‑conditions and only those cases could be taken up for consideration where the illegalities or violations of law were apparent on the face of the record and decision could be arrived at merely through a summary inquiry. He contended that in the instant case the nature of the allegations contained in the application submitted by the respondent No.3, was such which could only be established after recording evidence in some detail. The arguments on the legal proposition was indirectly supported by the learned Attorney‑General when he attempted to distinguish a summary inquiry from a full‑fledged inquiry or trial requiring elaborate appraisal on evidence. Indeed the expression, error, apparent on the face of the record has been incorporated in the context of the review jurisdiction of Courts and powers to interfere with awards under the Arbitration Act, and we do not recall any precedent where it has been held that an elaborate inquiry can be undertaken to discover such error. Nevertheless as suggested by the learned Attorney‑General since the respondent No.2 is ceased of the matter, we would in deference to the stature of such body refrain from expressing a final opinion.

12. In any event we are of the considered opinion and we say so with profound respect that the passing of an ad‑interim order was uncalled for in the circumstances. While we are inclined to agree with Mr.Raja Haq Nawaz to the extent that the power to grant interim relief is a necessary concomitant of the power to grant final relief but it needs to be kept in view that such power or discretion is required to be exercised on sound judicial principles. E It is well‑settled that in election matters such power is very sparingly exercised in exceptional circumstances particularly against a returned candidate. In this context we entirely agree with the learned Attorney- General that passing of such order would not only be detrimental to the interest of the returned candidate, but would also deprive the electorate from being represented in a legislative body. At this stage it may be appropriate to reproduce the observations of A.S. Salam, J. In Mansoor Ahsan v. Muhammad Tariq Chaudhry, where an interim order restraining a returned candidate from taking oath of office passed by the Lahore High Court was vacated by the Honourable Supreme Court:

"As regards the interim injunction impugned, I am of the view that it is to be vacated. My reasons are that interim injunctions are not issued against elected members of the highest legislative bodies as that not only deprives the member but the constituency goes un represented. Non‑grant affects nobody. The basic principle governing grant of interim injunction is balance of convenience. Secondly, without full adjudication interference in the composition, of National Legislative Houses is contrary to democratic norms, which are the basis of the Constitution.

In the concurring opinion Rustam S.Sindhwa, J., held as follows:‑‑

"Supporting the observations of my learned brother Abdul Shakurul Salam, J., I would hold that Courts should be somewhat reluctant in freely issuing stay orders preventing members of superior Legislatures from performing their functions, till a more closer, if not full, adjudication is made, which would exclude all possibilities of such an order being set aside, both on legal or factual grounds. It is of the utmost importance that members of elective bodies should be, allowed to fully perform their functions, so that the interests of their constituencies are protected and do not suffer, and "till the full adjudication of the case."

10. In the instant case, as rightly pointed out by the learned Attorney General, that the interim order passed by the respondent No.2, is also likely to have a material and irreversible bearing on the election to seats reserved for women and non‑Muslims. Moreover the grievance trade out by Mr. K.M.Nadeem cannot be lightly brushed aside. Indeed passing of an interim order of such importance merely on the basis of an allegation without hearing the petitioner, does not appear to be consistent with the principle relating. to grant of temporary injunction. It is also significant that while passing the same the respondent No.2 did not fix a date of hearing and the expression "in the meanwhile" seems to indicate that the ad interim order was to operate till the entire controversy was resolved.

For these reasons we have allowed the petition by the short order announced today.

H.B.T./K‑70/K

Petition allowed.