Mirza Javed Akhtar Vs Khurshid Alam Khan etc

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IN THE PESH4,WAR HIGH coujPLncwa))

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WRIT PETITION NO2 -017

* t73R/cJ / MIRZA JAVED AKHTAR (RETURNED ('ANDTh4j COUNCIL) UNION COUNCIL NO. 08 FAQIR ABA)'5' rM4r o

FAQIR ABAD NO.2 NEAR AL-FAROOQ BAKERS PESHA CITY.

---------------------------PETITIONER.

VERSUS

KHURSHD ALAM KHAN S/O MIR ALAM KHAN RIO HOUSE

NO. T-1474 SAEED ABAD NO.2 .DALAZAK ROAD PESHA WAR

cITY.

AKHUNDZADA ZAHID ULLAH ShAH (CANDIDATE) UNION

COUNCIL NO. 08, FAQIR ABAD PESHA WAR RIO FAQIR

ABAD NO.2 NEAR AL- FAROOQ BAKERS PESHA WAR CITY

PESHA WAR.

ZOHAID KHA WAS (CA NDIDA TE) UNION COUNCIL NO. 08,

FAQIR ABAD PESHA WAR RIO NA JVAZ ABAD FAQIR ABAD

NO.2 PESHA WAR CITY PESHA WAR.

USMAN SALEEM (CA NDIDA TI?) UNION COUNCIL NO. 085

FAQIR ABAD PESHA WAR RIO ITEHAD PULL ROAD XAWAZ

ABAD FA QIR ABAD NO.2 PESHA WAR CITY PESHA WAR.

CHIEF ELECTION COMMISSIONER, ELECTION

COMMISSION OF PAKISTAN ISLAMA BAD.

PRO VINCIAL ELECTION COMMISSIONER KHYBER

PA KHTUNKH WA PESHA WAR.

C°fl REGIONAL ELECTION COMMISSIONER, PESHA WAR, ceMCdtO beTre KHYBER PA KHTUNKH WA.

EXAW4ER . DISTRICT RETURNING OFFI(JER UNION COUNCIL NO.81

FAQIRABADPESHAWAR.

i FEB 2u 'o DISTRICT & SESSIONS JUDGEIELECTION TRIBUNAL d. nO' PESHA WAR. - peshaW3TW9 .

uth jjed tin RESPONDENTS.

WRIT PETITION UNDER ARTICLE 199 OF

CONSITITUTION OF ISLAMIC REPUBLIC OF

V PAKISTAN 1973 FOR DECLARING THE

ORDER/JUDGMENT OF RESPONDENT NO.9 DATEp

19/07/2017 AS ILLEGAL NULL & VOID, AGAINST.

THE LA W.

PRAYER:-

ON ACCEPTANCE OF THIS WRIT PETITION

THE ORDERIJUI)GMENT OF RESPONDENT

NO.9 DATED 19/07/20,17. MAY KINDLY• BE

DECLARED AS .NULL AND VOID, AGAINST

THE LAW, BASED ON MISREADING OF

RECORD AND THE PETITIONER PETITION

FOR DISMISSAL OF ELECTION PETITION OF

RESPONDENT NO.1 BEING NON

MAINTAINABLE MAY KINDLY BE ACCEPTED

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-1- 7SHAkyf

JUDGMENT SHEET

I I 'i f-i___._--• ..J tC IN THE PESIHAwAR HIGH CO át( tp;M J?

JUDICIAL I) EPARTM EN T.

20 BAO

!tutPt!Ik!ISa1 241hi August, 2017 Date of hearing:

Petitioner(s): (Mirza. Javed Akhtar) by Mr. Sawar Khan, Advocate

Respondent(s): (Khurshid Alam Khan) by Mr. Arshad .Jawal Qu reshi, Advocate.

SYED MUHAMMAD ATTIQUE SHAH, J.-

Mirza Javed Akhtar, petitioner herein, through the instant constitutional petition, has qucstioned the order dated 1.9.07.2017 of the learned District & Sessions Judge, Pcshawar/Elcction Tribunal herein, whereby, his application.

[lied under Sections 52, 55(3) & 63(A) of the Representation of the People Act, 1976 for the dismissal of election petition d to be Tru of, Khurshid Alum Khan, respondent herein, has EXAMINER dismissed. 01 FEB

Bench

2.lIricf facts of the case arc that the petitioner aiongwith respondents No.1 to 4 contested election of District Council Member Union Council-08, Faqir Abad, Peshawar and he was declared as returned candidate. Respondeni: flied an election petition under Rule 44 of the Khyber Pakhtunkhwa

Local Councils (Conduct of Elections) Rules, 2014, before the Election Tribunal. The petitioner filed an application under Order 7 Ruic 11 CPC read with Rule 51 of the KPK Local Councils (Conduct of Elections) Rules, 2014 for rcjectionldisrnissal of the election petition, which was contested by respondent by filing his written reply thereto.

The learned Election Tribunal after hearing both the parties, dismissed the said application vide order dated 06.01.2016.

'l'hereafter, the present petitioner filed his written statement.

The learned Election Tribunal framed issues out of the pleadings of parties and rceorded the statements of six witnesses. Later, the respondent filed an application for recounting of votes, which was not opposed by the petitioner, thercfore, the same was allowed by the Election Tribunal vide order dated 28.01. .2017. Later, the result of the recount was

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submitted by the learned Local Commissioner vide his report S dated 10.02.2017. Flowever, on 17.07.2017 once again the petitioner filed another application under sections 52, 54, t 55(3) & 63(A) of Representation of the People Act, 1976, for

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dismissal of election petition being non-maintainable due to non compliance of above referred mandatory provisions. The said application was contested by respondent by submitting his written reply. However, after hearing the arguments of both the parties, the said applibation was dismissed by the learned Election Tribunal vide order dated 19.07.201.7, which a

is impugned before this Couit by the petitioner through instant writ petition.

The gist of the arguments of learned counsel for petitioner is that when the election petition of the respondent was filed without fulfillment of all coda] formalities / prescribed mode and manner as documents, annexed therewith, were not signed either by the respondent himself or his counsel, then, it should have been dismissed initially by the learned Election Tribunal but instead of that, the application of petitioner for dismissal of election petition was dismissed without any legal justification and proper reason, therefore, the impugned order is liable to he set aside On the other hand, the main thrust of the

arguments of learned counsel for respondent is that, the earlier application of the petitioner, filed under Order VII Rule 11 of the CPC read with rule 51 of KP Local Councils (Conduct of Election) Rules, 2014 for the rejection / dismissal of election petition of the respondent, after proper hearing and appreciating the entire record in its true perspective had already been, dismissed by the learned Election Tribunal vide order dated 06.01 .20 16, which order attained finality as the same was never been challenged before this Court. 'l'herefore, his subsequent application with the same relief has rightly been dismissed by the learned Election Tribunal through the

impugned order as there was i'xo occasion and reason for the petitioner to again 'file a 'frivolous application, he strenuously urged That the intention of the petitioner behind the subsequent application is nothing but just to proloiig the us, pending before the learned Election 'l'ribunal, as such, the present writ petition is liable to be dismissed.

We have gone through the record carefully and considered the submissions made at the bar by the learned counsel for the parties.

Perusal of the reord reveals that earlier petitioner filed an application under order \1I Rule 11 CPC read with Ru'e 51 of the Khybcr Pakhtunkhwa Local Councils (Conduct of Elections) Rules, 2014 for rejection/dismissal of election petition, which was contested by the respondent. Later, the learned Election l'ribunal vide its order dated 06.01.2016, dismissed the said application, which order attained finality, a the same was never been challenged by the petitioner before k t7'Vofl

this Court. Now, once again the petitioner filed another application under Sections 52, 54, 55(3) and 63(A) of Reprbscntation of People Act, 1976 for the dismissal of the said ejection petition. The respondent submitted his reply to the said application. After hearing arguments of the parties, the, learned Election 1'ribunal vide its order dated 19.07.2017 dismissed the said application.

7.It is important to mention herc, that the present matter is governed under the provisions of Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules 2014 and Chapter VII of the Rules ibid deals with 1.1ection Dispute. Whereas, section 46 of the Rules ibid relates to the contents of the petition For the sake of convenience, the contents of Rule 46 are reproduced below:- '46. Contents of petition. ---(1) Every election petition shall contain-

(a)a precise statement of the material facts on which the petitioner relies;

(h)flill particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full as possible a statement of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and p/ace of the commission of such practice or act; and (c,) the relief claimed by the petitioner: Explanation.

In this rule and in the ftil/owing provis ions of this chaptei, "corrupt, illegal practice or illegal act" means a "corrupt practice" or an 'illegal practice" or "illegal act" within the. meaning of the Act. D - o 4 petitioner may claim as relief any of the foliowng declarations, namely, -

(a)that the election of the returned MA candidate is void and that the petitioner or some other person has been duly elected, or (h) that the election as a whole is void Every election petition and every annexure to that petition shall he signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, fbr the verification of pleadings."

Whereas, Rule 51 of the Rules ibid provides for dismissal of petition during trial, which is reproduced as under:-

Si. Dismissal of pd/ion during triaL The Tribunal may dismiss an election petition f

(a)the provisions of rules 45 and 46 have not been complied with; or

(h)the allegations contained therein are vague or do not disclose the commission of any

corrupt practice, material irregularity, or

other illegal act.

No doubt, sub-rule 3 of Rule 46 provides, that every election petition and every annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the CPC for verification of the pleadings. Whereas, Rule 51 of the Rules ibid provides, that the 1'ribunal may dismiss an election petition, if the provisions of Rule 45 and 46 have not been o complied with. however, here, it is important to note that o

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provisions of Rule 51 are neither mandatory nor entailing cc penal provision, rather the non-compliance of the provi -a tLLJ - o

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of Rules 45 and 46 has been left open for discretion of Tribunal. It is also important to note that whenever question of exercise of discretion arises, then that discretion is always exercised for advancement of justice and not otherwise.

J'hercfore, the petitioner's prayer for dismissal of the Election Petition for non-compliance of the provisions of Rules 45 and 46 has no legal supports as law favours adjudication of lis on

merits and not on the ground of technicalities. Moreover, it is sealed proposition of law that technicalities should not defeat the ends of justice. It is also noteworthy, that the petitioner has relied on the provisions of the Representation of People Act, 1976, however, the said provisions are not attracted to the present proceedings, which arc exclusively governed under the Khybcr Pakhttmkhwa Local Councils (Conduct of Elections) Rules, 2014. Moreover, it is also worth mentioning, that the provisions of Representation of People Act, 1976 arc exclusively dealing with the general elections to the National Assembly and the Provincial Assemblies under the Constitution and to the Bye-elections to the seats in those Assemblies falling vacant after the general elections. For the sake of convenience, section 3 ofthe Act ibid is reproduced as under:

"3. it shall apply to the general

elections to the National Assembly and

Provincial Assemblies to he held under

the Constitution and to the Bye-Elections

to be held to the seats in those Assemblies

failing vacant after the general

elections."

From the above referred provisions of section 3 of the Act ibid, it has become crystal clear, that the provisions of the Representation of People Act, 1976 arc not applicable at all to the proceedings in hand, which arc exclusively governed

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under the Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules, 2014. In this view of the matter, the impugned order dated 19.07.2017 of the learned 'l'ribunal is based on proper appreciation of the facts and circumstances of the case and the law applicable thereto, which does not warrant interference by this Court in its Constitutional jurisdiction. Moreover, the present writ petition has been filed under the constitutional jurisdiction of this Court, •which is discretionary and equitable in nature, which is based on well known principle of equity, that he who seeks equity must do equity. As in the present case, the petitioner has not approached this Court with clean hands, which fact is very much evident from reeod of the case, that the petitioner has been creating hurdles in the disposal of the main Us by submitting frivolous applications, therefore, on this ground too, the petitioner is not entitled to claim discretionary and equitable relief from this Court. 'I'hus, in the present circumstances, the Endings of the learned Election Tribunal are held to be legal, based on cogent and proper reasons, hence the same are, maintained, whereas, the present writ petition being bereft of merits, hence dismissed.

Announced.

24. 08. 2017 JUDGE

R.

EXAMINER

01 FEBRIO

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(Fayaz) awar Md. Bench zed Unde e: 75 Evid Ordns: ~7

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