Wajid Ali Shah Vs Election Commission of Pakistan through its, Secretary , Islamabad & 13 Others.

JUDGEMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(udicial Departmentl

W.P.No.73-B/2022.

Waiid Ali Shah s/o Haji Noor Ali Khan r/o Nurar Tehsil & District Bannu... Petitioner, Versus Election Commission of Pakistan through its Secretary Islamabad and L3 .....,........,.......Respondents,

Date ofhearing: 10.02.2022

For petitioner: - Mr. Sawal Nazir Khan, Advocate.

For respondents: M/s Saif-ur-Rehman Khattak, Additional Advocate General, Mohsin Kamran Siddique Advocate and Khawaia Samran lehangir, Law oflicer.

IUDGEMENT

MUHAMMAD NAEEM ANWAR I.- Through instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has sought the following relicft - "lt is, therefore, most humbly prayed that on acceptance of instant writ petition, this Hon'ble Court may very graciously be pleased to:

1)Set aside the impugned judgment/ order dated 10.01.2022 passed by learned Election Commission of Pakistan, in case title lkram Ullah Khan Vs Provincial Election Commission Khyber Pakhtunkhwa & others, to the extent of reiection of nomination papers of the Petitioner and declare the same to this extent as unlawful, corum-non-judice, void ab-initio, hence ineffective upon the rights ofthe petitioner.

2)Declare the impugned revised Form-)fiI dated 27.01.202L, issued by the respondent No.S/Returning Officer No.222, in compliance of the impugned judgment/ order dated 10.0L2022, of the learned Election Commission of Pakistan; as il,egal, arbitrary, fanciful, corum-non-judice, void ab-initio having no sanctity in the eye of law, thus ineffective upon the rights of the petitioner.

3)Direct the official respondents to restore the final consolidation of result prepared in Form-XXI, issued by the Respondent No.S/Returning 0fficer N0.222 on

23.12.202L.

4)Thus, consequently direct the official Respondents to declare the Petitioner as returned candidate as General Councilor from village Council Nurar-I, Tehsil Miryan District Bannu, and issue notification to this effect and publish his name in the official gazette.

5l Grant any other remedy deem it fit in the circumstances, in favour ofthe petitioner.

02.Facts forming the background of the instant petition are that on 19.12.2021 Election of Local Bodies has taken place in southern region of Khyber Pakhtunkhwa for seats of all categories. The vote of petitioner was transferred from his native village i.e., village Nurarr, Tehsil & District Bannu, to village Mumbati Barakazi, which was challenged by him before this Court in W.P No.783-B/2021, however, the same was dismissed. It was averred that he being eligible and qualified submitted his nomination papers for the seat of General Councilor from village Council Nurar-|, which were accepted by t respondent No.05 and no obiection was raised either by contesting candidate or by anyone else including the respondent No.06. Similarly, on the acceptance of his Nomination Papers none has filed any appeal. Election symbol of "human eye" was allocated to the petitioner, on the basis of which the petitioner took part in the election and won the same by obtaining second highest number of votes i.e., 308 and in this respect respondent No.05 issued Form XIX on 20.L2.202L.Thereafter the petitioner approached time and again for obtaining copy of his nomination papers but the respondent N0.05 was not ready to produce the same, to this effect he also submitted an application under Right to Information Act,2014. The respondent No.06 submitted an application/complaint for recounting, the same was acceded to and recounting took place and thereafter final consolidation of result was carried

out, result whereof was issued under Form )CYI by the respondent N0.05 on 23.72.2021. Respondent N0.06 being dissaiisfied and aggrieved of the aforementioned recount and Form XXl, approached to the Election Commission of Pakistan, by way of filing petition N0.23 (80)/2021-Law, titled as " Ikram Ullah Khon Vs. Provincial Election Commissioner & others", with specific prayer of recount of valid ballot papers. The Election Commission of Pakistan after hearing the parties, passed irnpugned judgment and order dated 10.01.2022, whereby nomination papers ofthe petitioner were rejected while his prayer for recounting of votes was turned down and in compliance of the impugned judgment/order, respondent N0.05 issued impugned revised Form XXI on27.0l.202l,hence the instant writ petition.

03, Arguments heard; record perused.

04.Admittedly, Tribunal in accordance with the provisions of Local Government Act, 2013 has not yet been appointed in consonance with rule 2(P) of Khyber Pakhtunkhwa Local Government (Conduct of Election) Rules, W 202L. The only question before this Court is as to whether Election Commission of Pakistan/respondent N0.01 could disqualify a successful candidate after conduct of poll. It is undisputed that earlier the petitioner has filed a writ petition N0.783-B/2OZl by challenging the transfer of Village Council Nurarr to Village Council Mumbati Barakazi, District Bannu, being ineffective upon his right and prayed that respondent (official) be directed to re transfer his vote to his constituency. Earlier he has filed W.P No. 773-B of 202L for retransfer of his vote but this Court directed him to approach to the Election Authorities and his petition was disposed of. He moved the application to the District Election Commission but his application was turned down. After dismissal of his application, he filed W.P. No. 783-8 of 2021 before this Court however, his petition along with other petitions through

consolidated iudgment was dismissed on l7 .1L.2021. It is reflected from record that when the petitioner filed his W.P. No. 783-8 of 202L an ad interim order was issued by this Court directing the respondent not to reiect his nomination papers till date however, on the date fixed not only the ad interim order was not extended but his petition too was dismissed. Despite dismissal of the writ petition his nomination papers were accepted and his name was included in the list of validly nominated candidate in term of rule 20 of the rules of z|zllKhvber Pahhnnkhwa Locol Gwernnem @

ElectionlRules. 20271. The impugned order is solely based upon the dismissal of petitione/s writ petition.

05, The powers of Election Commission in accordance with rule 9 of Khyber Pakhtunkhwa Local Government (Conduct of Election) Rules 2021 are that if, from facts apparent on the face of the record and after such enquiry as it may deem necessary the Commission is satisfied that by reason of grave illegalities or such violations of the provisions of the Act, Elections Act and these rules, as have materially affected the result of the poll at one or more polling stations or in the whole constituency or council including implementation of an agreement restraining women from casting their votes, it shall make a declaration accordingly and call upon the voters in the concerned polling station or stations or in the whole constituency as the case may be, to recast their votes in the manner provided for bye-election. It was also provided in sub-rule 3 that in addition to the powers provided under sub- rule-l, the Election Commission may before expiration ofsixty days after such publication, and, where the Commission does not finally dispose of the case within the period, the election of returned candidate shall be deemed to have become final subiect to the decision of an Election Tribunal or on election petition, ifany. Whereas sub-rule-4 provides that while exercising the powers

conferred under sub-rule- 1, the commission shall be deemed to be an Election Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter-Vll, regulate its own procedure.

06, It is indisputable that the election of the whole constituency has not been declared as illegal, similarly, repolling has also not been directed which was of course the mandate under sub-rule-l of rule-9. Likewise, the procedure provided for the bye-election has also not been adopted by respondent No.l. Insofar as the provisions of sub-rule-4 of the ibid rules is concerned, to the extent of powers of the Election Commission within the meaning of the powers of the Election Tribunal but these powers are subject to the provision of rule 9(1), whereby the Election Commission will order the re-election in the entire constituency on the basis of illegalities committed or violations ofthe provisions ofthe Act. The powers ofthe Election Commission as provided under rule 9(1) by no stretch of imagination could be equated W with the powers of Election Tribunal vested with all the matters of post- election disputes.

07, Furthermore, powers ofthe Election Tribunal have been provided in Chapter-Vll of the bid rules where the Election Tribunal may make the decision on election petition within the purview of rule 64 that upon the conclusion ofthe trial ofan election petition, the tribunal may make an order-

(a)Dismissing the petition;

(b)Declaring- (D The election of the returned candidate to be void and directing that fresh poll be held in one or more polling stations (iD The election of the returned candidate to be void and the petitioner or any other contesting candidate to have been elected; or (iiD The election as a whole to be void and directing that fresh election be held in the entire constituency.

Rule 64(1J @)(ii) as reproduced is the sole jurisdiction ofthe Election Tribunal which by no mean could be exercised by the Election Commission for declaring the election of returned candidate to be void and that the petitioner or any other contesting candidate to have been elected.

08, Furthermore, the determination as to whether the returned candidate was disqualified or his nomination papers were invalid could only be made by the Election Tribunal in term of rule 66 of the ibid rules, which for convenience is reproduced as under: -

66.Grounds for declaring election of returned candidate void. --(1) The Election Tribunal shall declare the election ofthe returned candidate to be void if-

(a)the nomination of the returned candidate was invalid; or tb) the returned candidate was not, on the nomination day, qualified for, orwas disqualified from, being election as a chairman or Mayor or member; or G) the election of the returned candidate has been procured or included by any corrupt or illegal practice; or

(d)a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance

N (Z)

ofthe candidate or his authorized agent. If the commission of corrupt tir illegal practice is proved at a polling station, the Election Tribunal may, while declaring election of the returned candidate void, direct re-poll at the polling station.

(3)The election of a returned candidate shall not be declared void on the ground-

(a)that any corrupt or illegal practice has been committed, if the Election Tribunal is satisfied that it was not committed by or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precautions to pr:event its commission; or

(b)that any of the other contesting candidates was, on the nomination day, not qualified for or was disqualified from, being elected as a chairman or Mayor or member.

09.In view ofthe controversy involved in this petition, the questions for determination, before this Court are: -

1.Whether the Election Commission was competent to declare respondent No.6 as a returned candidate?

2.Whether powers of Election Tribunal could be exercised within ttre purview of Chapter-Vll of Khyber Pakhtunkhwa Local Government (Conduct of Election) Rules 2021 by the Election Commission of Pakistan?

3.Whether Election Commission could extend its powers while granting the relief to respondent N0.6, because he has not prayed for declaring him as a returned candidate?

4.Whether qualifications of a candidate after polls could be determined by the Election Commiision?

10.We have gone through the provisions of section 9 of the Election Act,20l7 and rule 9 of the Khyber Pakhtunkhwa Local Government (Conduct of Election) Rules, 2021 which are one and the same. Insofar as the question of qualification, disqualification or eligibility of a candidate after poll, is concerned, the Hon'ble Supreme Court in the case of "Muhammad Salman Vs, Naveed Anjum and others" (2021 SCMR 1575).has held that: -

"We begin with an obvious point: neither of the sections expressly or explicitly conferred (or confers) any such jurisdiction. If at all it exists, ithas therefore to be read into the provisions, and discovered collaterally or by implication. Now, the question of whether a candidate is qualified or disqualified goes to his status, i.e., ability to contest the election. Both the sections however are primarily (though not exclusively) diretted towards what happens on the polling day, i.e., towards the process ofthe actual conduct of the election itself. 0bviously, this remains unaffected by the status (qualified/disqualified) of the candidates. Section 9(1) even otherwise makes this clear, in two ways. Firstly, by adding the test of materiality: the "result of the poll" should have been affected, Even if (and secondly) the test applies only to second condition (a point on which we form no definite opinion), the last part of the subsection, which allows only for a recasting ofvotes to be ordered, makes it clear that the slate of candidates remains the same, Although section 103AA was worded in a more open-ended manner, empowering the Commission tb decide whether the poll in the constituency (ox by way of iudicial gloss, any one or more polling stations) ought to be declared void, the purpose behind the section was still the same. It remained essentially focused on the day of the election itselfl The facts and circumstances in which

almost all the reported cases came to be decided also testi8/, and poing to this conclusion."

42.It is also to be remembered that in the entire process leading up to the day ofthe election, the question ofwhether the candidate was qualified or disqualified has already been scrutinlzed. This scrutiny, of the nomination papers, is done by the Returning Officers. However, they are not the only ones allowed by Iaw to scrutinize the nomination papers. They are also open to obiections by others. Under the L976 Act this right was of a somewhat restricted nature: see section t4(L). Under section 52 of the 2017 Act the right has been extended to any voter of the constituency. There is a right of appeal to an appellate forum comprising of High Court iudges. Under the L976 Acl this right of appeal was restricted to candidates only, whereas the Z0l7 Act has expanded it to include the obiector as well. After this appellate forum there can be (though not of course as of right) constitutional petitions under Article 199 and even petitions to this Court under Article 185(3). ln other words, the question of qualification/disqualification is thoroughly tested by a dedicated procedure before the day of the election. And of course, after the election a losing candidate can always file a petition before the election tribunal and again bring the question into issue."

Lt. This controversy was put to rest by the Hon'ble Supreme Court in the case (supra). Even otherwise, the nomination papers of the petitioner could be scrutinized in view of rule 18 and after the scrutiny when the nomination papers were accepted even then the order of acceptance of nomination paper could be assailed under rule 19 but neither the papers N were reiected nor any appeal was filed rather the list ofvalidly nominated candidates was published in consonance with rule 20. Now when the list was published then it was for the voters of'the constituency to elect a member for them and after the completion of entire process when a person is elected then the candidature of the candidate could not be scrutinized by the Election Commission. This was the sole domain of Election Tribunal. The Election Commission though has got power but restricted to the extent of rule 9(1) of the rule of 2021.

12, In addition to above, it is well seftled law that when a thing is required to be done in a particular manner it must be made in that manner

and not otherwise. Reliance can be placed on the principle enunciated in case titled " Qamar laved vs. Gul lahan" (2005 MLD 1329), "Syed Bashir Hussain vs. Abdul Waheed' (2013 MLD 1675), "SN6PL VS. OGRA' (PLD 2073 Lahore 289), " Cantonment Board Clifi,on vs. Sultan Ahmad Siililique" Wfi_CLCfl[2),"Muhammad Akram lavid vs. Bashir Ahmail Sasuk' (2u5_tl,Lull),"Hassan Bakhsh vs. Sultan' (2016 MLD fi|n. The Hon'ble Supreme Court in the case of "Aimtjhgh-Ex-Seppy)tt fiE Inspe*or General. Frontier Corps Khyher Pakhtunkhwa and anothef' (2040.Sf.I[B-ZlZl) has held that:

"Where a law requires doing ofsomething in a particular manner it has to be done in the same manner and not otherwise. Reliance in this respect is placed upon the cases of Muhammad HanifAbbasi v. lmran Khan Niazi (PLD 2018 SC 189), Shahida Bibi v. Habib Bank Limited (PLD 2016 SC 995) and Human Rights Cases Nos.466B of 2006 and others (PLD 2010 SC 759).'

13.It is very strange that while determining the qualification respondent No.1 has not considered the powers as provided in the rules.

The impugned order is mainly based upon the decision rendered by this Court in writ petition No.777-8 of 2021 which too was dismissed on 17.11.202L much earlier to the polling day but neither the nomination papers of petitioner were rejected nor any appeal under the law was filed Though the learned counsel for petitioner contended that in accordance with the definition of electoral roll as provided in the Election Acl of 2017 the petitioner was entitled to contest the election from the his constituency despite transfer of vote but as this matters pertain to the eligibility to contest the election and this matter can at the best be adjudged by the Election Tribunal, where each of the party would be provided an oppoftunity to submit his respective contehtion/obiection where the qualification/disqualification ofthe petitioner will properly be determined,

we do not discuss this legal aspect because for this Court is to decide the legal aspect ofthe impugned order. i

14.Learned counsel for respondent No.l in support of his submission referred rule 9(4) and contended that the Commission could exercise all the powers of Election Tribunal but we are not conyinced with these arguments because in exercising such powers the Commission will have to see the illegalities or violation of the provisions of the Act which have affected the result of the polls either at one ol more polling stations or in the whole constituency and in such case the Commission shall order for repoll but the impugned order does not reflect any such observation.

15.Therefore, for the reasons discussed above this petition stands allowed and we hold that: -

a) Election Commission was not competent to declare respondent No.6 as returned candidate.

b) Election Commission was not empowered to disqualify a candidate after completion of election process; and cJ Election Commission could not exercise all the powers as provided in rules 62 & 55 of the rules of 2021 as the powers conferred upon the Election Commission under rule 9 ofthe rules of 2027 are restricted within the ambit of rule 9(1).

Consequently, the impugned order of the Election Commission of Pakistan is hereby set aside.

Announced.

Iison.

IUDGE

IUDGE

faD Hon'blc Mr.Justice sahrbzada Asadullah & Hon'ble Mr. Jushce Muhammad NaeemAnwar

46a,"r=*gt,

:iiiW'