2011 M L D 1360
[Election Tribunal Balochistan]
Before Muhammad Noor Meskanzai, J
UMESH KUMAR ---Petitioner
Versus
Engineer BASANT LAL GULSHAN and 9 others ---Respondents
Election Petition No.37 of 2008, decided on 26th January, 2011.
(a) Representation of the People Act (LXXXV of 1976) ---
----Ss. 47-A & 52 ---Conduct of General Election Order (Chief Executive's Order No. 7 of
2002), Art. 8 -F---Senate (Election Act (LI of 1975), Ss. 13, 14 & 15(4) ---Senate (Election)
Rules, 1975 R.7(2) ---Election petition ---Provincial Assembly, election of ---Seats reserved for
non-Muslims in a Province --Priority List of candidates for such seat provided to Election
Commissioner finding mention petitioner's name at Serial No. 4 while respondent's name at
Serial No.1 ---List of validly nominated candidates drawn up in Form -V by Returning Officer
finding mention petitioner's name at Serial No. 1---Declaration of respondent as returned
candidate even though his name finding mention at Serial No. 2 of Form -IV---Validity ---
Commissioner was legally required to prepare Form -V by entering names of contesting
candidates in Urdu in alphabetical order ---Names of all three candidates finding mention in
Priority List started with Urdu alphabet"(Alif)" ---Name of respondent in Priority List was at
Serial No. 1 for starting with Urdu a lphabet "( A l i f )"---Name of petitioner for starting with
Urdu alphabet "( Alif)" . had been placed at Serial No. 1 of Form -V despite fact that his name
already found mention in Priority List at Serial No. 4 ---Petitioner could not claim to be at Serial
No. 1 of Priority List merely because of having his name at Serial No.1 of Form -V---Election
petition was dismissed in circumstances.
(b) Representation of the People Act (LXXXV of 1976) ---
----Ss.47 -A(4)-- --National Assembly, election of ---Seats reserved for non -Muslims of a
Province ---Nomination papers, filing of ---Priority List of candidates issued by party President
neither provided to candidate nor annexed with nomination paper ----Effect ---Candidate for such
seat was legally required to annex Priority List with nomination paper.
Munir Agha for Petitioner.
Kamran Murtaza for Respondents.
Date of hearing: 31st December, 2010.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J .---Through this judgment I propose to decide
Election Petition No.37 of 2008 fi led by petitioner. The petitioner has called in question the
candidature of the respondents Nos.1 and 2 as returned candidate on the seats reserved for
minorities.
It is the case of petitioner that the elections for the Provincial Assembly and National
Assembly were held for all constituencies of Pakistan on 18 -2-2008. The petitioner and
respondents Nos.1 to 14 were candidates for the seats reserved for Non -Muslim of the
Balochistan Provincial Assembly. Petitioner and respondent No.1 were the candidates o f
PML (Q), whereas respondent No.2 was the candidate of Muthahida Majlis -e-Amal (MMA).
The petitioner was at Serial No.1 of the priority list, whereas respondent No.1 was at Serial
No.2, which was sent to the Provincial Election Commissioner, Balochistan. On the basis of
priority lists submitted by all political parties, Form -V was prepared, according to which the
name of petitioner stood at Serial No.1. Finally after completion of elections the respondents
Nos.1, 2 and 10 were shown to be returned candidat es. The petitioner further averred in the
petition that after scrutiny of the priority lists submitted by the political parties, Form -V was
prepared, according to which the name of petitioner was at Serial No.1. Petitioner further
submitted that the said F orm-V cannot be changed, but the respondent No.1 with the
connivance of officials of Provincial Election Commission illegally changed the priority list
of the candidates. Resultantly the name of respondent No.1 was mentioned at serial No.1 and
placed the n ame of petitioner at Serial No.4. The petitioner, in his petition further alleged that
the Provincial Election Commissioner after the scrutiny was bound to cause the list, to be
published forthwith, for the information of the public at large. But unfortuna tely the said
provisions were (subsequently) violated and the petitioner approached the Chief Election
Commission. However, the said application was not entertained. As a result of such acts
of officials of Provincial Election Commissioner the respondents Nos.1 and 2 were
declared as returned candidates, which is highly illegal as well as against the spirit of
Article -8(F) of the Conduct of General Elections Orders, 2002 read with section 47(A)
of the Representation of People Act, 1976. The petitioner also alleged that the above
violation materially affected the results of the election in the said constituency, which is
required to be declared as of no legal effect. Finally, the petitioner prayed for the
following relief:
"It is, respectfully prayed that t his petition may very graciously be accepted, as a
consequence thereof, to declare the election of the respondents Nos.1 and 2
being void, illegal as well as in excess of authority after declaring so the
petitioner be declared as returned candidate for the reserved seat of minorities,
on the basis of priorities, list initially submitted by Pakistan Muslim League
(Quaid -e-Azam) on the basis of list of contesting candidates/Form -V and
necessary Notification may be directed to be issued. Any other relief, in t he
circumstances of the case, may also be awarded, in the interest of justice."
The petition was contested on merits as well. It was averred in written statement that
petitioner has never been at Serial No.1 of the priority list submitted by the P.M.L (Q ).
The respondents Nos.1 and 2, while filing written statement raised the following legal
objections: --
(A) That the petition has not got verified on oath before an authorized person, as
such for want of the same, the petition is not maintainable.
That without prejudice to the above, even otherwise the petition is based on
misinterpretation of law, hence not maintainable.
After filing of written statement following issues were framed on 14 -11-2008: --
(i) Whether name of petitioner was at Serial No .1 (first priority) in the list
submitted by Pakistan Muslim League (Qaid -e-Azam) ?
(ii) Whether the officials of Provincial. Election Commission with connivance of
respondent No. 1 changed priority list by showing name of respondent No.1
at Serial No.1 of priority list?
(iii) Whether petitioner was deprived of being elected on account of mal -practie
and corrupt practise of respondent No.1 and officials of Provincial Election.
Commission materially affecting result of election?
(iv) Relief?
The peti tion was dismissed on 24 -4-2009 for non -payment of costs imposed upon the
petitioner on 20 -3-2009. However, the matter was remanded back by the Hon'ble apex
Court. After the remand of the case petitioner produced following two witnesses: --
P. W. 1. Jet A mal son of Human Dass, who owned the contents of his affidavit
produced as Exh.P/1 -A.
P. W.2 Muhammad Haroon Kasi, Law Officer/Representative of Provincial
Election Commissioner, Balochistan. He produced certified copy of Form -B, the
list of contesting c andidates for election to the Provincial Assembly of
Balochistan for seats reserved for the Non -Muslim as Exh.P/2 -A. He also
produced Gazette Notification dated 6th March, 2008 as Exh.P/2 -B.
The statement of petitioner was recorded on 30 -12-2010. He owne d the contents of his
affidavit produced as Exh.P/3 -A and acknowledged his signature on the same. On 30 -
12-2010 arguments of the parties were heard.
The learned counsel for the petitioner contended that in fact the name of petitioner was
at Serial No.1 o f the priority list but the official respondents with connivance of
respondent No.1 changed the list and notified the respondent No.1 as returned
candidate. He stated that this view finds support from Form -V prepared by the official
respondent.
The learn ed counsel for private respondent opposed the contentions so put forth by the
learned counsel for petitioner. It was submitted that petitioner was never placed at
Serial No.1 of the priority list. Form -V is not the priority list but list of contesting
cand idates prepared by the official respondent. Petitioner has failed to prove his case by
production of confidence inspiring evidence. There is no priority list available with
petitioner supporting the contention and stance of petitioner.
I have heard the l earned counsel for the parties. I propose to decide the issues in the
light of evidence available on record and the arguments forwarded by the learned
counsel.
Issue No.1.
Whether name of petitioner was at Serial No.1 (first priority) in the list
submi tted by Pakistan Muslim League (Qaid -e-Azam) ?
Issue No.1 is very much important and the whole case revolves around this issue.
Petitioner produced two P.Ws., beside recorded his own statement. As far as the
statement of P.W.1. is concerned. This stateme nt does not lend support to the case of
petitioner. The statement of P.W.2 instead supporting the petitioner has dismettled the edifice
of petitioner's case. P.W.2. has produced the priority list issued by the President Pakistan
Muslim League (Q) which pla ces the respondent No.1 at the top of the priority list. For
the sake of convenience the priority list provided to Election Commissioner is hereby
reproduced: --
To
The Provincial Election Commissioner, Balochistan, Quetta.
Subject: PRIORITY LIST OF CA NDIDATES ON RESERVED SEATS FOR
WOMEN AND NON -MUSLIMS IN BALOCHISTAN PROVINCE.
Pursuant to Provision of section 47A of the Representation of the People Act, 1975, the list of
P.M..L (Q) candidates for the seats reserved in the Provincial Assembly Balochis tan for Women
is in order of priority appended as follows:
WOMEN
(1) Mrs. Parveen Magsi w/o Nawab Zulfiqar Magsi.
(2) Miss Rahila Hameed Khan Durrani d/o Abdul Hameed Durrani.
(3) Dr. Ruquiya Saeed Hashmi w/o Saeed Ahmed Hashmi.
(4) Mrs. Rubina I rfan w/o Irfan Karim.
(5) Ms. Sobia Khan Kibzai w/o Allauddin Kibzai.
(6) Mrs. Samia Baloch w/o Khudadad Khan.
(7) Mrs. Nuzhat Iftikhar w/o Dr. Syed Iftikhar Hussain.
(8) Ms. Shazia Naz Baloch d/o Ghulam Yasin Baloch.
(9) Ms. Naghmana Sardar d/o Sardar Mira Khan.
(10) Ms. Jamila Sultana w/o Muhammad Akbar.
NON -MUSLIMS
(1) Mr. Basant Lail Gulshan.
(2) Mr. Ambroz John Francis.
(3) Mr. Tara Chand Lasi.
(4) Mr. Umesh Kumar.
(JAM MUHAMMAD YOUSAF)
President
PML Balochistan
In given circu mstances there is no cavil with fact that the petitioner is not at Serial No.1 of
the priority list, issued by the President PML (Q). This fact further finds support from the
statement of P.W.2 who has exhibited the priority list as Exh.P/2 -A. It was admit ted by
P.W.2 that the respondent No.1 is at serial No.1. It is also admitted that petitioner is not at
Serial No.1 of the list. For ready keference relevant portion of statement is reproduced
hereunder: -
"The name of petitioner appears at Serial No.4 of the Priority List of Candidates for Non -
Muslims in Balochistan Province. Exh. P/2 -B has been submitted by the President PML
Balochistan."
Petitioner too, in his statement has admitted that the copy of priority list was not handed
over/delivered to him: P etitioner was not provided with the copy of priority list, how
petitioner could claim to be at Serial No.1 of the list, which petitioner has not seen.
Admittedly the party President did not provide the copy of priority list to petitioner, but
petitioner fi led nomination papers. Legally a candidate is required to annex the copy of list
along with nomination paper as required by the relevant law. In this behalf section 47(4) is
reproduced herein below: --
(4) Every candidate contesting election on a seat res erved for women or non -Muslims
shall, along with the nomination papers and other relevant documents, submit to the
Returning Officer appointed by the Election Commission in this behalf --
(a) a copy of the party list of the candidate's political party for such seats;
(b) declarations and statements as required by law or rules in support of the
nomination; and
(c) the fee required under any law for the time being in force for filing nomination
papers.)
In view of aforementioned state of affairs it is crystal clear that the nomination papers were
filed in violation of section 47A subsection (4).
The learned counsel for the petitioner mainly relied upon Form -V as his client i.e. the
petitioner was at Serial No.1 in the Form -V. According to learned cou nsel since his client
was at Serial No.1 of the priority list, therefore, he was placed at Serial No.1 in the Form -V. I
have given my due consideration to this aspect of case, but I have not been able to persuade
myself to subscribe the view for a couple o f reasons. Firstly a list is prepared at the strength
of section 14 of Senate (Elections) Act, 1975, contents whereof are reproduced hereunder; --
"14. Publication of the list of candidates .---The Returning Officer shall, after the
scrutiny of nomination papers, prepare and publish in the prescribed manner a list of
candidates who have been validly nominated.
(2) In case an appeal against rejection of a nomination paper is accepted by the Commissioner,
the list of validly nominated candidates shall be re vised accordingly."
The list of validly nominated candidates is required to be drawn up in Form -IV by the
Returning Officer, after the completion of process as contemplated by section 13 of the
Act. Secondly the list of contesting candidates is to be pre pared as required by section
15 subsection (4) of Senate (Election) Act, 1975 and to be drawn up in Form -V.
Admittedly petitioner has been placed at Serial No.1 in the Form -V but it does not mean
that petitioner was at the Serial No.1 of the priority list. The petitioner fell in error,
misunderstood the factual position and legal proposition. Rule 7 Sub -Rule 2 of Senate
(Election) Rules requires the Commissioner to prepare Form -V by entering the names in
Urdu in the alphabetical order. For ready reference R ule 7(2) is reproduced herein
below: --
"(2) The names on the list shall be entered in Urdu, in the alphabetical order
[……] indicating against the name of each contesting candidate. The symbol
allocated to him."
Similarly the column (2) of Form -V requir es the same thing with exactitude. Contents of
Form -V are reproduced herein under:
FORM V
[See rule 7(1)J
List of Contesting Candidates
"National Assembly
Election to the ____________ Provincial Assembly of the Punjab Sindh the North -West
Frontie r Province Balochistan.
From …………………………………………**Constituency.
Serial No. Name of the contesting
candidates in the Urdu
alphabetical order Address of the
contesting
candidates Symbol
allocated
1 2 3 4
1 2 3 4 Etc.
Notice is hereby given that the poll shall be taken between the hours of …………..:
………………. on
(date) ……………………………….
Place …………………………………..
Date ………………………………….. Returning Officer.
*Strike off the words not applicable.
**Insert the No. and name of the constituency.
The cumulative effect of section 15 subsection (4) of Senate (Election) Act, 1975, Rule
7(2) of Senate (Election) Rules, 1975 and Form -V is to prepare a list of contesting
candidates by incorporating the names in alphabetical order determined according to th e
Urdu language. There were three candidates of PML (Q) and the name of all the three
candidates start with: --
Alif i.e. Amish Kumar
Eng. Basant Lal Gulshan
Amroz Jan Raranz
Needless to observe that the name of respondent No.1 in the priority list is at Serial
No.1, but as the name of respondent No.1 starts with B ' , therefore, the name of
petitioner was placed at Serial No.1 despite the fact that his name is at Serial No.4 of
the priority list. Respondent No.1 while filing the nomination papers might have filled
up the nomination papers with the name of Engineer Basant Lal.
Applying the analogy contemplated by Rule 7(2) and Column 2 of Form -V to the case
of petitioner and keeping in view the alphabetical order determined according to Urdu
language, the petitioner cannot claim to be at Serial No.1 of priority list merely because
of having his name at Serial No.1 of the Form -V. In the light of above discussion and
keeping in view the statement of petitioner and P.Ws., the material available on re cord
particularly the priority list filed by PML (Q) Issue No.1 is resolved in negative and
against the petitioner. Since the main and important issue has been resolved against
petitioner, which is sufficient to decide the entire fate of petition, therefor e, the rest of
the issues need not be dilated upon. With the result petition is dismissed with no order
as to costs.
These are the reasons for my short order of even date.
S.A.K./35/Q Petition dismissed.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.