2011 M L D 1386
[Election Tribunal Balochistan]
Before Muhammad Noor Meskhanzai, J
Dr. NOOR JEHAN P ANEZAI ---Petitioner
Versus
ZUBAIDA JALAL and 8 others -Respondents
Election Petition No.12 of 2008, decided on 31st December, 2010.
Representation of the People Act (LXXXV of 1976) ---
----Ss. 47-A & 52 ---Conduct of General Election Order (Chief E xecutive's Order No. 7
of 2002), S. 8 -F---Election petition ---National Assembly, election of -Seats reserved for
women of a Province ---Priority List of candidates for such seats provided by Party
President to Chief Election Commissioner (CEC) placing respon dent at Serial No.1,
while petitioner at Serial No. 2 ---Failure of respondent in election contested on general
seat as independent candidate ---Subsequent letter of Party President written to CEC
after last date fixed for filing of Priority List placing pet itioner at Serial No. 1 of
Priority List of, his party ---Declaration of respondent as returned candidate by GEC ---
Validity ---Respondent had neither resigned nor changed loyalty nor violated party
policy nor withdrawn from ,her candidature nor was restraine d/prohibited by Party
President from contesting election nor was disqualified by a competent court of law---
No legal power vested in Party President to change, alter, substitute,, amend or file a
fresh Priority List after last date fixed by CEC for filing of Priority List ---Neither any
constitutional bar existed nor provisions of Representation of the People Act, 1976
restrained any citizen from contesting election simultaneously for reserved set and
general seat ---Respondent was at Serial No. 1 of Priority List of her party on last date
fixed for filing of Priority List ---Election Tribunal dismissed election petition in
circumstances.
Khalil Tahir Sindhu v Election Commission Punjab, Lahore/Returning Officer for
minority reserved seats and 3 others PLD 2008 Lah. 196 ref.
Kamran Murtaza for Petitioner.
Muhammad Riaz Ahmed for Respondent No.1.
Date of hearing: 18th December, 2010.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J .---Through this judgment, I propose to decide
Election Petition No.12 of 2008 filed by petitioner. The petitioner has called in question
the candidature of the respondent No.1 as returned candidate on the seat reserved for
women.
Facts, in brief, are that the elections for the Provincial Assembly and National
Assembly were held f or all constituencies of Pakistan on 18 -2-2008. The petitioner and
respondent No.1 were candidates for the reserved women seats from Balochistan for
National Assembly on the ticket of PML (Q), through letter dated 26 -11-2007.
However, the respondent No.1, later on, contested the election on the General Seat for
National Assembly from the constituency of NA -272 Kech -cum-Gwadar as an
independent candidate and she was allotted "the symbol of elephant. The respondent
No.1 lost the election and Yaqoob Bazenio of Balochistan National Party (Awami) was
declared as returned candidate from the said constituency. The President Pakistan
Muslim League, through letter dated 17 -1-2008 requested the Chief Election
Commissioner of Pakistan for removal of the name of Zubaida Jalal from Balochistan
for reserved women seats for National Assembly as she has forgone her nomination on
the reserve seat for National Assembly. The President Pakistan Muslim League met the
authorities of Election Commission of Pakistan along with an ap plication to remove the
name of respondent No.1 immediately and declare the petitioner as returned candidate
on the reserve sets of women for National Assembly for Balochistan. The authorities of
Election Commission did not pay any heed to the said request and also did not entertain
the said application, which the party president wanted to submit on the ground that there
is no remedy with the Election Commission authorities as per law and the party should
seek their remedy through the competent Court of law . It is further averred in the
petition that the Election Commission authorities with mala fide intention and against
law and facts declared respondent No.1 as returned candidate on the reserved women
seats from Balochistan for the National. Assembly and h ave also issued the necessary
notification in this regard. Hence the instant petition has been filed.
The respondent No.1, while filing written statement raised the .following legal
objections: --
(A) That the petition is not maintainable and liable to be dismissed for non
joining of necessary parties.
(B) That the petition is also liable to be dismissed on the ground that the
petitioner has filed three election petitions in the following manner: --
(i) First petition Dr. Noor Jehan v. Zubaida Jalal and two others.
The said petition was not verified on oath and non -compliance of the mandatory
provisions as contemplated under section 55(3) of the Representation of the
Peoples Act, 1976 wherein it has been mentioned that "every complaint, petition
and every schedule or annex that petition shall be signed by the petitioner and
verified in the manner laid down in the Code of Civil Procedure, 1908, about the
verification of the pleadings"
(ii) second petition filed as Dr. Noor Jehan v. Zubaida Jalal and ten others total
(eleven respondents).
The said petition was also not verified according to the provisions of section
55(3) of the Representation of Peoples Act, 1976.
(iii) Third petition filed as Dr. Noor Jehan v. Zubaida Jalal and eight others tota l
(nine respondents).
The said petition has also not been verified and attested, violating the mandatory
provisions of section 55(3) along with all other enabling sections of the
Representation of the Peoples Act, 1976. It is pertinent to mention here th at the
copy supplied to the replying respondent by the counsel of the petitioner has not
been signed and affidavit has not been sworn before the Oath Commissioner but
before the Notary Public who from the perusal of the seal would indicate that the
Affidav it has been sworn before the Notary Public and not before the Oath
Commissioner. The seal of the Notary Public is without any date, violating the
provisions of Order VI Rule 15(3) of .C.P.C. which reads as under
"The verification shall be signed by the p erson making it shall state the date on
which and place at which it was signed.
Mere perusal of the alleged verification would show that the place of verification
has not been mentioned, as such, the petition is not maintainable and liable to be
dismisse d.
After filing of written statement following issues were framed: --
(1) Whether necessary parties to the proceedings have not been joined? If so, to
what effect?
(2) Whether the petitioner has failed to follow the requirement of section 55 of the
Representation of the Peoples Act, 1976? If so, to what effect?
(3) Whether three consecutive petitions were filed? If so, whether the present
petition is competent in law?
(4) Whether the requirements for filing of the petition have been fulfilled? If n ot, to
what effect?
(5) Whether the respondent No.1 has violated the party discipline and having
tendered resignation of the party? If so, whether the respondent could contest
the election on the seat of said party?
(6) Whether the petitioner is entitl ed to be elected being at Serial No.2, instead of
respondent No. 1? in case, if respondent No.1 has resigned from the party
membership? And whether the party can substitute the name after filing the
same?
(7) Whether the petitioner is entitled to the rel ief claimed?
Petition was dismissed on 20 -3-2009 for failure of petitioner to produce evidence.
However, on appeal filed by the petitioner the honorable Supreme Court of Pakistan
remanded the case vide order dated 4 -1-2010. The relevant portion of order dated 4 -1-
2010, passed by the Honorable Supreme Court of Pakistan is reproduced hereunder:
"The appeal is accepted, the impugned order dated 20 -3-2009 is set aside and the
case is remanded back to the High Court/ Election Tribunal for continuing the
proc eedings in the relevant petition. Notice of appearance to both the parties
shall be issued by the High Court itself. "
Thereafter various opportunities vide orders dated 14 -5-2010, 5 -6-2010, 11 -6-2010, 14 -7-
2010, 23 -7-2010, 30 -7-2010, 6 -8-2010, 13 -8-2010 , 20-8-2010, 23 -8-2010, were afforded to
petitioner but she failed to produce her evidence. Finally on 3 -9-2010 the right of petitioner to
produce her evidence was closed and the statement of petitioner was recorded in support of
petition.
The respondent No.1 did not produce defence witness, however, opted to record her own
statement, which was recorded on 5 -11-2010.
Mr. Kaman Murtaza. Advocate, learned counsel for the petitioner submitted that party
president provided the priority list to the Chief Ele ction Commissioner for reserved seat of
women on 26-11-2007 as contemplated by section 8 -F of the Conduct of General Election
Order, 2002 read with section 47 -A of the Representation of the Peoples Act, 1976.
According to first list respondent No.1 was at Serial No.1 and petitioner was at SerialNo.2
of the list and this list was provided on 26-11-2007. A letter to Chief Election
Commissioner was written on 17-1-2008 by the President of Muslim League and
petitioner was placed at Serial No.1. There is no cons titutional bar restraining the party
president to substitute his preferences. Respondent No.1 violated the party policy and
participated in general election, therefore, the party president changed the preference and
after the letter dated 17 -1-2008 respond ent No.1 no more remained the candidate for the
Pakistan Muslim League. Since respondent has admitted in her statement before this Court
and that party president has addressed letter dated 17 -1-2008 to Chief Election
Commissioner, therefore, no further pro of is required as fact admitted need not be proved. As
far as objection with regard to verification is concerned, since petitioner has appeared and
recorded her statement, therefore, the matter may be decided on merit instead of
technicalities.
Mr. Riaz Ahmed Advocate, learned counsel for respondent No.1 controverted the
arguments put forth by the learned counsel for petitioner and submitted that legally
petition is not maintainable. He maintained that petitioner has filed three petitions which are
availa ble at pages 17, 27, 78 of the petition and it is yet be ascertained that petitioner owns
which one. Moreover, the petition is not verified as required by law i.e. the provisions of
Representation of the Peoples Act, 1976, therefore, petition deserves dism issal. Neither the
party president nor the petitioner or any person raised objection on the nomination at the
time of scrutiny.
The list filed by the party president on 26 -11-2007 was the final list. Legally no amendment
or change or fresh list is entert ainable after the last date fixed by the Chief Election
Commissioner of Pakistan for the filing of priority list. As 26 -11-2007 was the last date for
the purpose, the letter dated 17 -1-2008 carries no legal weight and rightly ignored by the
Chief Election Commissioner. Petition filed by the petitioner is barred by time. Petitioner
has failed to substantiate her version through positive evidence. Respondent No.1 has
neither violated the party policy nor has resigned or left the party. She is still a member o f
the party, therefore, petition is liable to be dismissed. To substantiate his view point he placed
reliance on PLD 2008 Lah. page 196.
I have heard the learned counsel for the parties and have gone through the record. The'
perusal of record reflects th at on 7 -11-2008 issues were framed. Petitioner was afforded
various opportunities but she failed to produce a single witness, similarly there is no
defence witness as well. The only evidence available on record is the statement of parties. In
such wake of circumstances my findings are as under: --
Issues Nos.1, 2, 3 and 4 . These issues pertain to preliminary objection. Since this case has
been remanded by the honourable Supreme Court of Pakistan, therefore, I proceed to
decide the case on merit, hence Issu es Nos.1, 2, 3 and 4 being technical in nature, are
dropped.
Issue No.5 . This issue can be classified in two parts; first, violation of party policy. As far as
the violation of party policy is concerned, respondent No.1 has contested the general election
as independent candidate. There is no constitutional bar nor the provisions of Representation
of Peoples Act, 1976 restrain a citizen of Pakistan to contest election simultaneously for
reserved seat and the general seat. The party manifesto has not been p roduced nor there is any
assertion to such effect in the petition or in the statement of petitioner, therefore, the first part
of issue fails as such is decided in negative. As far as the later part i.e. the resignation is
concerned, since neither petition contains any allegation of resignation nor in the
statement, the petitioner has stated so. In Para No.4 of petition the allegation of changing
the loyalties has been levelled. In the petition it has not been stated that the party president
restrained or p rohibited respondent No.1 from contesting the elections but she did not abide
or obey respondent No.1 has categorically stated in her written statement and the statement
recorded before me that she has neither resigned nor left the party or violated the pa rty
policy. Under such circumstances the latter part of Issue No.5 has not been proved. So
petitioner failed to prove Issue No.5 which is decided in negative.
Issue No.6 . The onus of this issue was upon petitioner. Petitioner has referred to a letter dat ed
17-1-2008 written by the party president to Chief Election Commissioner of Pakistan,
wherein the petitioner has been given the first priority. This letter has been admitted to have
been written by the party president in the written statement filed by th e respondent No.1. In
the Court statement respondent admits that said letter has been addressed to Chief Election
Commissioner of Pakistan. However, the respondent states that she has not tendered
resignation, she has not withdrawn from her candidature, sh e is still member of the party. She
has not violated the party policy. Under such circumstances whether the party president can
amend or file fresh list after the last date fixed by the. Chief Election Commissioner? In my
humble opinion not at all. The sch eme of section 8 -F read with section 47 -A of
Representation of the People Act, 1976 is quite clear. For the sake of convenience section 47 -
A is reproduced hereunder: -
47A. Party lists for reserved seats, etc. ... (1) For the purpose of election to
seats r eserved for women and non -Muslims in the National Assembly and
Provincial Assemblies, the political parties contesting election for such seats
shall, within the period fixed by the Election Commission for submission of
nomination papers, file separate list s of their candidates in order of priority for
seats reserved for women and non -Muslim with the Chief Election
Commissioner or, as he may direct, with the Provincial Election Commissioner,
who shall forthwith cause such lists to be published for informatio n of the public
at large.
Clause (2) provides for disqualification of candidates during scrutiny of nomination and this
is not the case here. The second consideration provided by the clause (2) is for filling of any
vacant seat. Meaning thereby either by death or resignation, none of these conditions is
attracted in the present case so far. As far as letter dated 17 -1-2008 is concerned I am of the
firm opinion no legal power is vested in the president of party to change, alter, substitute,
amend or file a fresh priority list, after the last date fixed by the Chief Election Commissioner
for filing of priority list. By holding the view I am fortified by the dictum laid down in PLD
2008 Lah. page 196, title as "Khalil, Tahir Sindhu v. Election Commission Punj ab,
Lahore/Returning Officer for minority reserved seats and 3 others" relevant at page '199,
which is reproduced hereunder: --
(7). A reading of clause (2) shows that there is no provisions for amendment of
the list at any later time and the political pa rties have been 'cautioned that the list
may contain as many names of additional candidates keeping, in view the fact
that some candidates may be disqualified during the scrutiny of the nomination
papers or a seat falling vacant for any reason during the t erm of the Provincial
Assembly. Clause (3) provides the manner in which a seat so falling vacant for
any reason is to be filed and this is to be filed in by the next person in order' of
precedent from the party's list. Clause (4) makes it incumbent upon a candidate
contesting election on such a seat to file a copy of the party's list of the
candidates for such seats. We have already noted above that the admitted list is
Annexure 'C' which does not contain the name of the petitioner. We do not find
any provi sion authorizing a political party to amend the list at any time after its
filing. It will be seen that the political party has to file the list within time fixed
for filing of the nomination papers i.e. in the present case up to 26 -11-2007.
Annexure 'D' t o the written statement bears the date 1 -12-2007 i.e. at a point of
time after the one fixed for submission of nomination papers. We have already
noted above that a party has to prepare and file the list keeping in view the
eventuality that a candidate's n omination papers may become liable to rejection
during the process of scrutiny and reading clauses (2) and (3) together in the
event if the papers are rejected or the seat itself falls vacant then the next person
in order of precedent from the party's list stands automatically substituted.
Admittedly the last date for tiling the priority list by the parties was 26 -11-2007 and on that
date respondent No.1 was at the Serial No.1 of the priority list of Pakistan Muslim League
(Q). Subsequent letter dated' 17 4-2008 is of no avail, particularly when the respondent No.1
has not tendered her resignation nor otherwise has been disqualified by a competent court of
law.
Issue No.7. Since material issues have been decided against the petitioner, therefore,
petition er is not entitled for ally relief.
In the light of above discussion I see no merit in the petition, which is dismissed. The parties
to bear their own costs.
S.A.K./32/Q Election 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,
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