MANZOOR HUSSAIN Versus SHAHID ALI

JUSTICE QAZI EHSANULLAH QURESHI (CHAIRMAN).--- We intend to dispose of both C.P.L.A. No.44 of 2006 and C.P.L.A. No.46 of 2006 through this single judgment as the controversy on the legal points is one and the same.

1. The captioned petition has been initiated by the petitioner, Shahid Ali impugning the Local Government Election results held on 13-10-2004 for NA-3 Gilgit-3 Ward-4.

2. According to the petitioner he had scored highest vote i.e. 1312 against contesting candidates 6 to 13, while respondent No.6 came runner up with 1308 votes. The result as prepared by the Presiding Officer on the date of polling is given below:--

Petitioner

1312

Respondent No.6

1308

Respondent No.7

1193

Respondent No.8

811

3. But in the latter stage, during the consolidation of the result and re-counting fifty-six (56) votes were excluded from. the count, which were polled in favour of the petitioner, on the plea, that the excluded ballot-papers. does not contain the official mark on the back of the ballot-papers, as such, the result was changed and the petitioners success was converted into defeat declaring him as runner up in the following order:-- "

Respondent No.6

1270

Petitioner

1244

Respondent No.7

1193

Respondent No.8

811

Respondent No.9

761 votes

4. In view of the above exercise, the ballot-papers of two polling stations namely Chamogarh and Khaltaro (Haramosh) were excluded in totality, thereby the result of two polling stations shown as zero, and that the total number of voters in the above two villages were completely disfranchised.

5. That the entire exercise on the part of the respondent No.3 was illegal, ab inito, void and without lawful authority under Rules, 37, 44 and 46 of NA, L.G. Election Rules, which had affected the result materially.

6. Last but not the least, the petitioner also alleged that more than hundred (100) votes have been registered in the electoral roll of several Areas, enabling the votes to cost double and triple votes, in favour of candidates of their choice:

7. Lastly prayed that declaration of results by respondent No.3 be termed as void, and that petitioner be declared as returned candidate of District Council Ward-4 NA-3 Gilgit.

8. In alternate requested that the respondents 1 to 3 be directed to hold fresh election in the two Polling Stations Khaltaro, and Chamogarh, as their rights of vote was refused contrary to rules and procedure.

9. The petitioner aggrieved as such moved the Election Tribunal, District Gilgit, for redressal, written statement invited, issues framed, pro and contra evidence recorded. Ultimately the Election Tribunal finally decided the case and held.

Quote

(a) Re-checking and re-counting of all ballot-papers of all polling stations of suit seat will be conducted in this Court on or some subsequent date to be fixed by this Court. Results of re-counting and re-checking will be prepared in the Court.

(b) After consolidating and compiling results of re-checking and re-counting in Court, a schedule will be issued for re-polling in Polling Stations of Khaltaro and such polling will be conducted in supervision of this Tribunal.

(c) In the light of consolidated results and re-checking and re-counting as well as re-polling judgment will follow.

10. The respondent No.6 not satisfied with the said order of the Election Tribunal preferred a revision petition before the Chief Court Northern Areas Gilgit on the ground:-

"(i) That the learned Election Tribunal has declared Khaltaro polling station for re-polling prior to the process of recounting/ rechecking of ballot-papers of all polling stations.

(ii) That the learned Election Tribunal has illegally conferred the powers exclusively owned by the Election Authorities to Election Tribunal by holding that re-polling will be held under supervision of Election Tribunal."

11. The Chief Court after. hearing the counsel for the parties reached to the conclusion, that Northern Areas Local Government Rules, 1979 (Amended up to 1991) provides no appeal or revision before the Chief Court, and dismissed the same for lack of jurisdiction hence this petition before us on the grounds:--

(a) That impugned judgment/order of the learned Chief Court is contrary to law and facts as such not maintainable.

(b) That the learned Chief Court is failed to appreciate the issues involved in the matter.

(c) That under the election laws C.P.C. is applicable for the trial, before the Election Tribunal, hence revision also lies against the orders passed by the Election Tribunal, but the Chief Court has not exercised the powers vested in him.

12. That Chief Court had already entertained a revision petition of similar nature titled Muhammad Hanif v. Election Commissioner and others, which was challenged before this apex Court, wherein this Court has maintained as such, in the circumstances there are two judgments of Chief Court on the same subject-matter which are in conflict with each other.

13. The learned counsel for the petitioner mainly formulated the following points for consideration:--

(i) Thal according to the Northern Areas Local Government Elections Rules, there is no specific provision about the revision petition rather it is silent and there is also no bar expressly provided for the purpose.

(ii) But there is also one precedent, whereby the Honourable Northern Areas Chief Court, have entertained and decided the revision petition.No.26 of 2006 dated 30-9-2006.

(iii) There is also one precedent of this august Court, C.A. No.14 of 2006 titled Muhammad Hanif v. Election Commissioner and others whereupon appeal against the orders passed by the Honourable Northern Areas Chief Court, Gilgit, in its revisional jurisdiction, has been upheld by this Court.

(iv) That in the other parts of the country, the aggrieved party, in Election disputes of Local Government seeks remedy by way of writ petition. In view of above legal position and precedents, if the Honourable Northern Areas Chief Court lacks revisional jurisdiction in the cases of Local Government Elections Rules, 1979, against the orders passed by the Election Tribunal then he could have treated the revision petition as writ petition.

14. Learned counsel for the respondent No.1 opposed the contentions addressed by the learned counsel for the petitioner with full force and argued:---

(a) That there is great difference between the rules of the N.A. Local Government and the N.A. Council Rules, because Council Rules, 1975 and Local Government Rules provide a different remedy for the parties contesting election.

(b) That the N.A. Local Council rules now re-designated as N.A. Legislative Council and in case of N.A. Legislative Council, the petition is to be filed, before the Election Commissioner i.e. (Deputy Commissioner) who forward the same to Election Tribunal, whereas in Local Government Elections Rules, the election petition is presented before the Election Tribunal directly.

(c) That the appeal/revision is the creation of statute, which is very significant, parties has no choice to file appeal/revision on his own under the Rules and it is evident from the N.A. Council Rules that only one appeal is provided in case of N.A. Council, under section 100 of the C.P.C. against the order of Election Tribunal.

(d) That due to technical fault as to anon-affixing of seal code is a negligence and inefficiency on the part of the Polling Officer. Indulgence in this respect by Returning Officer, was quite uncalled for and unwarranted under the law.

(e) That in fact the Election Tribunal has passed interim/ interlocutory order and there is no final judgment as yet. The aggrieved party could agitate the point in the subsequent stage before an appropriate forum, if any, that it can be adjudged from the naked eye that the petitioner has filed this petition with mala fide intentions, just to drag the petitioner in litigation for nothing and to delay the matter more and more, so that the tenure is completed and the petition in hand becomes infructuous.

(f) That it is established law that no one could suffer due to fault of polling staff and no one can be penalized for the negligence committed by the election conducting authorities.

15. We have given anxious consideration to the legal as well as factual points raised by the learned counsel for the parties and also concentrated on the case-laws relied upon.

16. What we have gathered from the judgment/order, passed by the Tribunal, he was perhaps confused while passing judgment in question dated 9-6-2006. Because on the one hand, he orders for rechecking and recounting of ballot-papers and call for ballot-papers parcels from the authority, where the record is under custody and in the same breath, issues orders for re-poll. How astonishing, it is, that before coming, to the conclusion as to whether the excluded votes were validly and rightly excluded from the count, the conclusion drawn for the fresh election which to our mind is un-understandable, it was something premature, which opinion was to be expressed in the later stage after recounting, if necessitated, it is otherwise not called for, as it amounts to final judgment. The legal course was to find out and ascertain first the legality and justification of votes excluded, thereafter the fresh poll could be ordered, only, if the Court was of the opinion that fifty-six votes were rightly excluded from the count and voters of two polling stations were disfranchised in toto, as number shown nil, which act was in violation to fundamental rights as guaranteed under the law no one can be deprived of his precious right of vote and to elect a person of his choice.

17. That to emphasize further order of the Election Tribunal in respect of recounting appears to be legal and justifiable. For the reasons, that if there is serious allegation by the candidate that several valid votes were excluded Chen it is incumbent upon the Election Tribunal to satisfy the parties in order to insure the transparency of election but the prior decision of re-poll in no stretch of imagination can be termed as legal order:---

On this very point our detailed judgment is already in the field titled Muhammad Sharif v. Aftab Haider and others Civil Appeal No.22 of 2006 decided on 5-9-2006 reported in CLC March part, 2007.

18. Secondly adverting to the direction that re-poll will be conducted under the supervision of Election Tribunal, was also irrational approach against the rules even tantamounts to exceeding the limits, not permitted under the Local Government Rules, 1979 and to invoke jurisdiction not vested in him. Judges are supposed to deliver justice strictly under the law of the land.

19. Thirdly as far as legal proposition of revision in Local Government Elections Rules is concerned, however, it will be pertinent to mention at this juncture that superior Courts are Court of equity and command vast and ample powers under 19A the Northern Areas Council Legal Framework Order, 1994 to dispense justice. No doubt the revision petition does not tic and that the Chief Court has no jurisdiction to entertain, but it is a set principle of law that revision can be converted into appeal and appeal can be treated as revision. Similarly revision can be converted into writ in the larger interest of justice, so no one shall be ousted to seek justice and deprived of his valuable rights, mere on technicalities.

20. As to the reference by the learned counsel for the petitioner that Chief Court had entertained Civil Revision No.26 of 2006 Manzoor Hussain v. Shahid Ali and others so this petition should have also been entertained on the same footings, keeping in view the past precedent, we in this respect disagree on the point that one wrong cannot make two wrongs correct, if something is illegal and without jurisdiction, it cannot be repeated as such, and no departure can be made from the procedure and rules sanctioned by law.

21. Two conl7icting judgments of same Court by two single benches, (sic) also something exceptionable. Propriety demands that if a single Judge of one Court differs with the opinion of other single Bench of the same Court, the matter shall be referred to Chairman/Chief Justice, for constitution of larger Bench, and, the decision of majority in this respect would prevail.

C.P.L.A. No.46 of 2006

22. In this case the petitioner through petition C.P.L.A. No.46 of 2006 challenged the judgment/order passed by the Chief Court, dated 13-11-2006 whereby the learned Court held that revision petition does not lie, before the Chief Court against the judgment/order passed by Election Tribunal, as there exist no provision regarding appeal or revision in election matters. Since common question of law is involved, it is also disposed of accordingly in view of guiding principles indicted above.

23. In the wake of above discussion, we are unanimous that the illegalities, infirmities and anomalies what we have highlighted above should be dealt with in accordance with law and principles set out by the superior Courts of the country.

24. Resultantly both the petitions C.P.L.A. No.44 of 2006 and C.P.L.A. No.46 of 2006 are disposed of accordingly and the Election Tribunal is directed to decide in the manner/guideline vide paras.l7 to 18 herein given above. Since it is an election matter and pending disposal from quite long time, Election Tribunal is directed to decide the matter expeditiously, preferably within one month from the receipt of record.

Office is directed to send back the record forthwith after completion of codal formalities; parties arc also directed to appear before the Election Tribunal on 7-5-2007.

(Sd) Justice Qazi Ehsanullah Qureshi,

Chairman.

(Sd.) Syed Tahir Ali Shah

Member-II

ALTAF HUSSAIN, J .--- I had the opportunity to go through the judgment recorded by the Honourable Chairman and I have a different view regarding the extraordinary jurisdiction of Chief Court in respect of orders/judgments passed by Election Tribunals constituted under the Northern Areas Local Government Rules, 1979, therefore, I record my separate observations.

The learned single Judge of Chief Court disposed of the two revision petitions through his single judgment/order which is impugned before this Court. The learned Judge has held that since the Northern Areas Local Government Elections Rules, 1979 do not provide a forum to challenge the orders passed or judgments made by an Election Tribunal, hence the Chief Court has no jurisdiction to entertain the revision petitions against the order/judgment passed by the Election Tribunal.

The learned counsel for petitioners contended that the learned Election Tribunal has exercised jurisdiction not vested in it by statute. Through his order, dated 9-6-2006 the learned Election Tribunal has unlawfully and without jurisdiction assumed the powers of the Election Authority. The learned Election Tribunal has gone outside the jurisdiction conferred on it by law. An Election Tribunal has no legal authority or jurisdiction to give an election schedule or supervise the election process, which is within the exclusive sphere of Election Commission. The learned counsel further contended that in the Civil Revision Petition No.43 of 2006 the order of Election Tribunal was challenged before the Chief Court inter alia on the ground that the learned Election Tribunal had entertained the election petition which was clearly barred by limitation as well as it was against the mandatory provisions of Rule 55 of Northern Area Local Government Rules, 1979. The order passed by the learned Election Tribunal is tantamount to a final judgment. The learned Judge of the Chief Court has erroneously rejected the revision petitions on sole ground that it lacks revisional jurisdiction. These should have been converted into writ petitions and decided on merits. Moreover, another learned Judge of same Court in an identical case (Muhammad Hanif v. Election Commissioner and others in Civil Appeal No. 14 of 2006) had entertained the revision petition and decided the same on merits. It was challenged by the opposite party before this Court, which was decided without adverting to the point of revisional jurisdiction of the Chief Court.

The learned counsel for the respondents supported the impugned judgment of the Chief Court and contended that interlocutory orders passed by an Election Tribunal cannot be challenged even through a writ petition. Be that as it is.

The Northern Areas Local Government Rules, 1979 do not provide an appeal or revision against the orders/judgments passed by an Election Tribunal. However, it does not lay an embargo on the Chief Court in exercise of its extraordinary jurisdiction under section 19-A of Northern Areas Council Legal Frame Work Order, 1994 to correct a gross illegality or an order passed by an Election Tribunal without ,jurisdiction. The learned Chief Court should have decided the matter on merits by converting the revision petitions into writ petitions.

In such-like cases where a Tribunal has acted without jurisdiction or taken an action legally not allowed, such actions amount to usurpation of power as such is an act without ,jurisdiction and lawful authority, therefore, the superior Courts of Pakistan have invariably exercised their constitutional jurisdiction to declare it a nullity.

For the foregoing reasons I accept the appeals, set aside the impugned judgment of learned Chief Court and the cases are remanded to the Chief Court to be decided on merits converting them into writ petition and after hearing the parties.

(Sd). Altaf Hussain,

Member-I

ORDER OF THE COURT

Majority judgment prevails.

No order as to cost. File be consigned to record.

(Sd.) Chairman

(Sd.) Member-I

(Sd.) Member-II

S.A.K./22/Glt. Order accordingly.