2011 C L C 1641
[Bar Council Election Tribunal, Quetta]
Before Jamal Khan Mandokhail, J
SHAKEEL AHMED BALOCH ----Petitioner
Versus
RETURNING OFFICER and another ----Respondents
Election Petition No.1 of 2011, decided o n 30th May, 2011.
(a) Pakistan Legal Practitioners and Bar Councils Rules, 1976 ---
----Rr. 3(c) & 61 ---Election Tribunal ---Formation and jurisdiction ---Request to constitute
Election Tribunal ---Scope ---In relation to an election dispute of a Provincial Bar Council, the
Chief Justice of concerned High Court has to nominate a Judge of, High Court as an Election
Tribunal ---As the Tribunal has been assigned jurisdiction to hear election dispute, therefore,
after announcement of election schedule, every disp ute arising out of election of that period is
triable by the Election Tribunal ---At any time, either after announcement of an election
schedule or the moment an election petition is received in accordance with Rule 61 of
Pakistan Legal Practitioners an4 Ba r Councils Rules, 1976, the Chief Justice has to constitute
a Tribunal accordingly, however, in case the Tribunal is not constituted, concerned Bar
Council can request the Chief Justice for needful to be done ---In Pakistan Legal Practitioners
and Bar Counc ils Act, 1973 or Legal Practitioners and Bar Councils Rules, 1976, no request
of a Bar Council is required for constitution of an Election Tribunal.
(b) Administration of justice ---
----Procedure, deviation from ---Effect ---When a statute provides an act to be done in a
particular manner, then it has to be done accordingly and deviation from the procedure
vitiates the entire proceedings.
(c) Pakistan Legal Practitioners and Bar Councils Rules, 1976 ---
----Rr. 3(c), 26, 61, 62 & 63 ---Election petit ion---Maintainability ---Objections, non filing of -
Direct filing of election petition ---Both candidates secured equal votes and Returning Officer
decided the matter. by drawing lots in accordance with Rule 26 of Pakistan Legal
Practitioners and Bar Councils Rules, 1976, resultantly respondent won the toss and he was
declared successful candidate ---Petitioner assailed election on the ground of illegalities
committed during election --Validity ---Petitioner had directly approached Election Tribunal,
without fili ng objection through a letter before Chairman Provincial Bar Council, for its
onward transmission to Election Tribunal, therefore, proper procedure as provided by law
was not followed ---By not following the procedure, the Chairman of Provincial Bar Council
had also acted illegally and petition was wrongly filed before Election Tribunal without
resorting to the provisions of Rules 61 to 63 of Pakistan Legal Practitioners and Bar Councils
Rules, 1976 ---Election petition was returned for proper presentation.
H. Shakil Ahmed for Petitioner.
Salahuddin Mengal, Returning Officer/Advocate -General for Respondent No.1.
Kamran Murtaza for Respondent No.2.
Date of hearing: 20th December, 2010.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. --- Election of the Balo chistan Bar Council for the year
2010 -15 was held on 28th September, 2010. The petitioner and the respondent No.2 contested
the election from the constituency namely Group -II. According to the official result, both the
candidates (the petitioner and respon dent No.2) secured 41 votes each, as such, the Returning
Officer decided the matter by drawing lots in accordance with rule 26 of The Pakistan Legal
Practitioners and Bar Councils Rules, 1976. The respondent No.2 won the toss and was
declared successful ca ndidate.
2. Learned counsel for the petitioner stated that at the time of official counting, the petitioner
raised an objection before the Returning Officer, that one of the votes was cast by a
government servant, who does not come within the definition of a voter. Similarly, second
objection was that on a ballot paper, one of the voter had put a tick mark ( ) against the name
of respondent No.1, instead of putting a cross (X). The counsel argued that both the votes
were void, which ought to have been dis carded, but the Returning Officer did not consider
the objection so raised and counted both the votes in favour of the respondent No.2, thus
infringed the right of the petitioner.
After receiving a notice, the respondents filed their respective rejoinder s to the petition. The
counsel for respondents No.2 mainly contended that the election petition has incompletely
been filed, therefore it is liable to be returned. He further stated that without the request of the
Bar Council, the creation of the Tribunal is illegal, therefore, it has no jurisdiction. On merits
too, the petition has been contested.
I have heard the learned counsel for the parties and have perused the record. Before going to
dilate upon the merits of the case, I would like to address the l egal objection regarding the
jurisdiction of the Tribunal. An Election Tribunal has been defined in sub -clause (c) Rule -3,
Part-1, Chapter -II of The Balochistan Legal Practitioners and Bar Council Rules, 1976 which
is reproduced hereinbelow: ---
(c) "Elec tion Tribunal" means: ---
(i) in relation to election to a Provincial Bar Council and its Vice -Chairman, a Judge
of the High Court nominated by the Chief Justice of the High Court concerned;
and
(ii) in relation to the Elections to the Pakistan Bar Coun cil and its Vice -Chairman, a
Judge of the Supreme Court nominated by the Chief Justice of Pakistan.
According to the above provision of law, in relation to an ' election dispute of a Provincial
Bar Council, the Chief Justice of the concerned High Court h as to nominate a Judge of the
High Court as an Election Tribunal. Since the tribunal has been assigned the jurisdiction to
hear an election dispute, therefore, it means that after announcement of an election schedule,
every dispute arising out of an electi on of that period, would be triable by the Election
Tribunal. Hence, at any time, either after the announcement of an election schedule or the
moment, an election petition is received in accordance with Rule -61, the Hon'ble Chief
Justice has to constitute a Tribunal accordingly, however, in case, the Tribunal is not
constituted the concerned Bar Council can request the Hon'ble Chief Justice of the Province
for the needful to be done. In the Pakistan Legal Practitioners and Bar Councils Act, or rules,
no req uest of a Bar Council is required for the constitution of an Election Tribunal, therefore,
the objection has no force in it.
The procedure for presentation of an election petition, has been prescribed by rule 61 to 63,
which are reproduced hereinbelow: --
61. An objection to the election under paragraph (h) of sub -rule (1) of Rule 5 or under
paragraph (h) of sub -rule (1) of rule 30, may be filed by a candidate, by letter signed
and delivered to the Chairman of the Bar Council who shall refer such objecti on to the
Election Tribunal concerned for disposal within fifteen days of the date fixed for
filing objections. The objection shall be accompanied by a deposit of Rs.100.
62. The letter shall state clearly the grounds upon which the validity of the elect ion is
challenged.
63. The objection to the validity of an election of a member shall be heard by the
Election Tribunal concerned.
According to these rules, the Objector has to file written objections before the Chairman Bar
Council through a letter, d uly signed by a candidate, clearly stating the grounds upon which a
validity of an election is challenged. The Chairman then must refer the objection to the
Election Tribunal concern for its disposal, within fifteen days. It is a settled principle of law
that when a statute provides an act to be done in a particulate manner, then it has to be done
accordingly and deviation form the procedure vitiates the entire proceedings. Admittedly the
petitioner has directly approached the Tribunal through instant petit ion, without filing an
objection through a letter before the Chairman Balochistan Bar Council, for its onward
transmission to the Tribunal, therefore, the proper procedure as provided by law, has not been
followed.
As far as the contention of the petitio ner that the objection was raised before the Returning
Officer is concerned, he has approached the wrong forum. The Returning Officer has no
jurisdiction election dispute, therefore, he has rightly declined to entertain the matter. It is
however, necessary to mention here that the Returning Officer was also an ex -
officer/Chairman Balochistan Bar Council, was under a legal obligation to have transmitted
the objection to the Election Tribunal:
By not following the procedure, referred to above, the Chairman has also acted illegally.
Thus, in view of what has been stated and discussed hereinabove, it is held that the petition
has wrongly been filed before the Tribunal, without resorting to the provision of rules 61 to
63. The petition is hereby returned back t o the petitioner for its proper presentation within
fortnight, after announcement of the judgment.
M.H./47/Q Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.