2015 C L C 1053
[Balochistan]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J
MUNEER AHMED ----Petitioner
versus
DISTRICT AND SESSIONS JUDGE, LASBELLA AT HUB and others ----Respondents
Constitutional Petitions Nos.138 and 141 of 2015, decided on 2nd March, 2015.
(a) Balochistan Local Government Act (V of 2010) ---
----S. 37 ---Constitution of Pakistan, Art.199 ---Constitutional petition ---Local bodies' elections ---
Election Tribunal appointed commission, and on receipt of r eport passed order that vote of
returned candidate might be considered and not excluded, while matter was still pending for final
adjudication ---Validity ---Impugned order had been passed without notice and behind the back of
the parties which was contrary to law and in violation of judicial norms ---Petitioner was an
"aggrieved person" ---Executive orders would carry independent and far -reaching consequences,
legal repercussion and implications ---Order which was void and without jurisdiction could not be
allowed to occupy the field as illegality could not be allowed to be perpetuated ---Impugned
orders were executive in nature but having far -reaching consequences and impact ---Status of co -
petitioners could not be disturbed without adopting and observing a legal process recognized by
law---Both the impugned orders were illegal, unjustified, unwarranted, without lawful authority
and void ab initio which were set aside ---Constitutional petitions were accepted, in
circumstances.
Khadim Hussain and 12 others v. Gu l Hassan Tiwano and 3 others 2014 MLD 574;
Shamsul Haq and 8 others v. Mst. Ghoti and 8 others 1991 SCMR 1135; 2011 CLC 1303; 2009
MLD 1059; 2005 CLC 11 and PLD 2000 Kar. 74 rel.
(b) Civil Procedure Code (V of 1908) ---
----O. I, R.10 ---Balochistan Loca l Government Act (V of 2010), S.37 ---Constitution of Pakistan,
Art.199 ---Constitutional petition ---Interveners ---Impleadment as a party ---Scope ---Impugned
order would directly affect the interveners which had been passed in their absence without
hearing th em---Interveners were not party before the Election Tribunal who were necessary
party ---No legal hitch, bar or impediment existed in making interveners as party ---Application
for impleadment as a party was accepted and interveners were made party to the co nstitutional
petition who would be treated as co -petitioners.
(c) Administration of justice ---
----Basic purpose and object of the court was to do substantial justice between the parties and to
achieve the object ---Technicalities were to be avoided/over looked unless same would offer
insurmountable hurdles.
(d) Administration of justice ---
----Order which was void and without jurisdiction could not be allowed to occupy the field as
illegality could not be allowed to be perpetuated.
Amanullah Kanrani for Petitioners.
Muhammad Haroon Kasi for Respondents Nos.1 and 2.
Baz Muhammad Kakar f or Respondent No.3.
Shai Haq Baloch, A.A. -G.
Date of hearing: 24th February, 2015.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, C.J. --- By this common judgment, we propose
to dispose of Constitutional Petitions Nos. 138 and 141 of 2015, as common question of facts
and law is involved in both the petitions.
Facts of C.P. No.138 of 2015:
2. The facts, relevant for the disposal of instant petition are that the petitioner was a
candidate as Councilor from Municipal Committee, Tehsil Gaddani, District Lasbel a and
contested the election on 7 -12-2013 having symbol of Zebra, whereas the respondent No.5 also
contested the election for the same position having the symbol of Rabbit. It was averred that on
the day of polling, the petitioner obtained 116 votes but th e respondent No.3 by declaring his 7
valid votes rejected and casting one vote forcibly in favour of respondent No.5 paved his way to
success. On 20 -12-2014 the petitioner filed an application before Election Tribunal/District and
Sessions Judge, Lasbela a t Hub who vide order dated 30 -12-2014 observed that "fate of this vote
is subject to recounting of votes of instant constituency/ward and decision of the case in hand"
and in pursuance whereof a commission comprising of Additional District Judge, Lasbela a t Hub
was constituted. On receipt of report of the Local Commission, objections were filed by the
petitioner and matter was still pending for final adjudication, when the learned Tribunal issued
letter dated 26 -1-2015 and informed the Returning Officer tha t vote of respondent No.4 may be
considered. It was further stated in the petition that the procedure adopted by the Tribunal is
against the norms of natural justice because till disposal of the petition he was not supposed to
issue such an order on admini strative side rather the same was required to be decided judiciously
after hearing the parties. Following relief has been claimed in instant petition:
"In view of above, it is, accordingly prayed that this Hon'ble High Court may graciously
be pleased to hold that executive order dated 26 -1-2015 passed by respondent No.1 is contrary to
Constitution, law, prescribed rules and norms of natural justice and with no legal effect,
therefore, order dated 26 -1-2015 to be set aside with any other relief in the int erest of justice."
Facts of C.P. No.141 of 2015:
3. The brief facts, as gleaned in the instant petition are that the petitioner contested the
Election of Local Council from Ward -4 Ganjdad Municipal Committee Gadani District Lasbela
wherein the petitioner lost the election with close margin. Subsequently, the petitioner filed the
Election petition under the provisions of section 37 of Balochistan Local Councils Election Act,
2010 before the District and Sessions Judge/ Election Tribunal, Lasbela at Hub. It was averred in
the petition that during pendency of the election petition an application for excluding vote of
returned candidate from the count was filed which was accordingly allowed vide order dated 30 -
12-2014 by the learned Election Tribunal . Thereafter, election of 'Peasants' and 'Workers' against
the said constituency was held on 31 -12-2014 and vote of respondent No.3 namely Moula
Bakhsh was excluded from the count. The result was announced and accordingly communicated
to the Election Commi ssion by respondent No.2. The Election Commission issued the Gazette
Notification on 15 -1-2015 in this regard and among those Ganj Bakhsh son of Dildar and Shedi
Khan son of Qadro were elected as Peasant and Worker respectively. Thereafter, schedule for th e
election of Chairman and Vice -Chairman was announced by the Election Commission of
Pakistan (ECP). The respondent No.3 challenged the election of Chairman on the ground that his
vote was excluded from the count in the election of reserved Seats held on 3 1-12-2014,
therefore, the election may be postponed or vote of newly elected returned candidate Ganj
Bakhsh and Shadi Khan may be excluded from the count, however, this Court vide order dated
27-1-2015 rejected the plea of respondent No.3. It was further a verred in the petition that the
order passed by this Court has not been challenged before the Hon'ble Supreme Court of
Pakistan and the respondent No.1 has issued the impugned letter dated 17 -2-2015. Lastly, the
petitioner prayed for following relief: ---
" Keeping in view of above submission, it is respectfully prayed that the impugned
Notification dated 17 -2-2015 issued by respondent No.1 is contrary to law and without
jurisdiction as well as contemptuous deserve to be declared ab initio void and with n o legal effect
in the interest of justice.
OR
Any other order which this honourable Court deem fit and proper in the circumstances of
the case be passed in favour of petitioner in the interest of justice."
An application under Order I, Rule 10, C. P.C. was filed by Shadi Khan and Ganj Bakhsh,
with the request either they be joined as petitioners or their application may be treated as separate
Constitutional Petition.
4. Learned counsel for the petitioner in C.P. No.138 of 2015 submitted that upon receipt of
report from Local Commissioner the learned Tribunal issued letter dated 24 -1-2015 without
notice to parties and hearing them. A couple of objections were raised by the petitioner upon the
report of Local Commissioner. According to learned counse l for the petitioner the orders dated
26-1-2015 and 17 -2-2015 are void in view of principle of Audi Alteram Partem. Virtually the
case of the petitioner stands decided and order dated 24 -1-2015 followed by executive
orders/letters dated 26 -1-2015 and 17 -2-2015 would adversely affect the election of "Peasant"
and "Worker" which is a closed and past chapter. The order impugned is in violation of judgment
passed by this Court.
Addressing arguments on C.P. No.141 of 2015 the learned counsel for the petitione rs
submitted that the impugned order has been passed without lawful authority. The respondent
No.1 practically has attempted to get denotified the duly elected members. Respondent No.1
does not figure in the process of election anywhere nor is competent to have issued such sort of
letters or orders. He maintained that the application under Order I, Rule 10, C.P.C. filed by the
intervenors may be granted or be treated as separate constitutional petition as they have been
condemned unheard by learned Tribunal and respondent No.l. According to learned counsel for
the petitioners in any case the orders/letters being void and without jurisdiction and lawful
authority are not sustainable and tenable.
The learned counsel for the private respondent vehemently opp osed the submissions by
maintaining that both the petitions are not competent because the petitioner is not an aggrieved
person and the alleged affectees have, not challenged the order. Both the executive orders arise
out of a judicial order dated 24 -1-2015 and that order is still intact. Moreover, the same is an
interlocutory order cannot be challenged through the constitutional petition. Similarly, the nature
of controversy does not allow the intervenors to be impleaded as party. Furthermore, the
interven ors are not party in the election petition and the basic order has been passed in the said
proceedings. However, if suppose, the intervenors are denotified they can file election petition.
Even otherwise, the intervenors may utilize the independent remedy by filing a constitutional
petition.
Mr. Amanullah Kanrani, learned counsel for the petitioner while exercising his right to
reply stated that one Faqir Muhammad though not was a party in the proceedings before the
Election Tribunal but was made party i n the connected C.P. No.138 of 2015 who did not take
Oath nor can be treated an elected member and on that analogy the intervenors can be made
party or their application may be treated as a constitutional petition.
5. We have considered the contentions s o put forth by the learned counsel for the parties
and have gone through the available record. At first instance we would deal with the application
filed by the intervenors. The intervenors cannot be denied to be heard, the impugned orders
directly affect them, admittedly, both the orders have been passed in their absence without
hearing them as they were not party before the election Tribunal. The intervenors are necessary
party and we see no legal hitch, bar or impediment in making them party, even Mr. Ba z
Muhammad Kakar, Advocate also concedes that they can file an independent writ petition. So in
such circumstances, we are inclined to allow the application under Order I, Rule 10, C.P.C. and
the intervenors are made party and hereby treated as co -petition ers.
6. Now adverting to the preliminary objections regarding non -maintainability of the
petitions raised by Mr. Baz Muhammad Kakar, learned counsel for private respondent. No doubt,
the order dated 24 -1-2015 has not specifically been challenged but lett er dated 26 -1-2015 does
not contain any reference to order dated 24 -1-2015 and appears to be an independent order.
Moreover, the order dated 24 -1-2015 has been passed without notice and behind back of the
parties which is contrary to law and in flagrant vi olation of judicial norms. For the sake of
argument if the executive orders arise out of order dated 24 -1-2015 as they carry legal
repercussion and implications and the petitioner No.1 being a party in the election appeal is an
aggrieved person. Assuming t hat order dated 24 -1-2015 has not been challenged and both the
executive orders arise out of order dated 24 -1-2015 but this situation by itself does not hit the
competency of the petition for the reason that the executive orders carry independent and far -
reaching consequences, legal repercussion and implications. Similarly, the co -petitioners Ganj
Bakhsh and Shadi Khan are directly affected and have been made party so the objection
pertaining to incompetency of petition for want of having been filed by un -aggrieved person
losses its significance and is no more available. We do not subscribe to Mr. Baz Muhammad
Kakar, Advocate that the petitions are not maintainable in the present form for the simple reason
that irrespective of the nature of orders the effect and consequence that follow thereof are final
and fatal. The basic purpose and object of the Court is to do substantial justice between the
parties and to achieve the object technicalities are to be avoided/overlooked unless the same offer
insurmountable hurdles. Moreover, the law stands settled that notwithstanding the nature of the
proceedings particularly while sitting in constitutional jurisdiction an order which is void and
without jurisdiction cannot be allowed to occupy the field as illegality canno t be allowed to be
perpetuated. In this regard we are fortified with the dictum laid down in the judgment titled as
`Khadim Hussain and 12 others v. Gul Hassan Tiwano and 3 others' reported in 2014 MLD
(Sindh) 574 (relevant at page -580), wherein it has bee n held as under:
"13. ..
In the case of Muhammad Ayaz alias Cheena and others v. The State, PLD 2004 Karachi
652, the learned Division Bench of this Court was pleased to hold that there can be no cavil to
the proposition that an order/judgment without jurisdiction is void and nullity in law, and that an
order/judgment without jurisdiction being void ab initio cannot be clothed with legality merely
because it has been upheld in appeal or revision by inadvertence.
14. It is, therefore, concluded that the impugned judgment and decree, being void ab initio,
cannot be allowed to remain in field The objection raised by the learned counsel for the
respondents that this Court has no jurisdiction to decide this appeal as the appeal should have
been file d by the appellants before the District Judge, has no force in view of the cases discussed
above. It is a settled law that this Court has inherent and constitutional powers to remedy/correct
the wrongs committed by subordinate courts by passing judgments/o rders which are void or
without jurisdiction. It is also a settled law that this Court in its inherent jurisdiction can convert
an Appeal, Constitutional Petition or Revision to any other remedy, as held by the learned
Division Bench of this Court in the c ase of Syed Ghazanfar Hussain through Legal Heirs and
others v. Nooruddin and others, 2011 CLC 1303. In the present case, since the entire proceedings
before the Senior Civil Judge were coram non judice, the appellants did not have the remedy for
filing th e appeal before the District Judge, as in the case of defamation filed under the Ordinance,
the appeal lies before the High Court. Even otherwise, this Court has inherent powers to exercise
its extraordinary constitutional jurisdiction in case of order or judgments which are void ab
initio."
Similarly, in the case titled as 'Shamsul Haq and 8 others v. Mst. Ghoti and 8 others'
reported in 1991 SCMR 1135 (relevant at page -1139), it was observed as under:
"Learned counsel then reiterated the argument th at the High Court was not right in
converting the Revision Petition, into a Writ Petition at a point of time when the Revision was no
more competent. There is no force in this point either. Recently it has been held by this Court in
a number of cases that there is no limit and bar on the High Court to convert a revision into a
writ petition. This essentially is a question of exercise of discretion."
Further, in this regard reliance can be placed on 2011 CLC (Karachi) 1303, 2009 MLD (
Karachi) 1059, 2005 CLC (Lahore) 11 and PLD 2000 Karachi 74.
7. Prior to embarking upon factual controversy let both the executive orders i.e. 26 -1-2015
and 17 -2-2015 be reproduced:
"Letter dated 26 -1-2015.
From:
The Election Tribunal/District and Sessions Judge,
Lasbela at Hub,
To:
The Assistant Commissioner/
Returning Officer, Hub.
No.166 Dated. 26 -1-15.
Subject: Election Petition No.3/2013 titled Muneer Ahmed v. Moula Bakhsh and others.
With reference to subject cited above it is stated that in the light of report of Local
Commission, order dated 30 -12-2014 of this Tribunal passed in the subject titled appeal, to the
extent of exclusion of vote of respondent No.5 for the special reserved seats is hereby recalled.
You are, therefore, required to pr oceed the matter in accordance with law."
Letter dated 17 -2-2015.
I am directed to refer your letter No.277 -280/RO/AC/HUB/15 dated the 27th January,
2015 on the subject cited above and to say that under the light of order 26 -1-2015 passed by
Hon'ble Election Tribunal/District and Sessions Judge Lasbela the revised form -XXII -B Peasant
and Worker of Municipal Committee Gaddani may be issued, in case of equality of vote between
the candidates the provision of Rule 42 of Balochistan Local Government Rules , 2013 may be
followed and position may be intimated to this office at the earliest."
8. Admittedly, both the impugned orders are executive in nature but having far -reaching
consequence and impact of undertaking an exercise of an election process culmina ting in implied
denotifying the elected Members, who were neither party before the election Tribunal nor any
order affecting the status and election of the co -petitioners could be passed by either of the
respondents, except through an election appeal, agai nst them where they are party or through any
other legal process where they are before the competent forum. It is pertinent to observe that
while disposing of C.Ps. Nos.67 and 76 of 2015 specific observations regarding their status have
been made, relevant portion of the said judgment is reproduced:
"So far as, C.P. No.67 of 2015 is concerned, the same too is not competent, because an
appeal has already been filed before the Election Tribunal, which is still subjudice. We are afraid
that the prayer made by the learned counsel for the petitioners that votes of respondents Nos.4
and 5 may not be counted in favour of either party cannot be acceded to, because the petitioners
have already approached to the Election Tribunal, unless and until the notification declaring a
returned candidate is set aside he/they, cannot be restrained from casting his/their vote.
9. Needless to observe that respondents Nos.4 and 5 in the said petition were Ganj Bakhsh
and Shadi Khan i.e. the co -petitioners who had been notified by the Election Commission as
returned candidates.
10. A bare perusal of the reproduced observations leave no room for doubt that without
adopting and observing a legal process recognized by law the status of the co -petitioners cannot
be disturbed. We do not feel hesitation in holding that both the executive orders are absolutely
illegal, unjustified, unwarranted, without lawful authority and void ab initio, therefore, cannot be
allowed to occupy the field because an illegality cannot be perpetuated parti cularly when both
the orders are apparently in violation of the orders passed by this Court, with the result, both the
petitions are accepted and the executive letters/orders dated 26 -1-2015 and 17 -2-2015 are hereby
set aside. The parties to bear their own costs.
AG/45/Bal. Petitions allowed.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,
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