P L D 1983 Lahore 540 (PLP)

ABDUL SHAKURUL SALAM, J.

Muhannmad Fazil, petitioner was elected as a Member from Ward No. 1 of the Municipal Committee, Gujrat in an election held on 25-9-1979. On 25-10-1979, Ch. Nazir Ahmad Respondent No. I another contestant for the said office filed an election petition under section 24 of the Punjab Local Government Ordinance, 1979 before the Election Tribunal. Some time he seems to have filed a petition under section 21-A of said Ordinance before the Election Authority. On 2-4-1980, he filed a petition under section 29 of the said Ordinance before the Commissioner, Rawalpindi Division, Rawalpindi.

2. The latter petition was, dismissed by the Commissioner on 7-1-1981, When the election petition under section 24 of the Ordinance came up for final hearing before the Election Tribunal, it recorded that "on 11-11-1981 Ch. Nazir Ahmad petitioner and Muhammad Fazil compromised. In this statement recorded on that day, learned counsel for the petitioner stated that the petitioner does not seek any relief against Muhammad Fazil and Waris Khan respondents. He, therefore, does not press his petition against them". The learned Election Tribunal held that "As the petitioner does not claim any relief against Muhammad Fazil respondent and has withdrawn his petition the same is, therefore, dismissed against him i.e. Muhammad Fazil respondent." The order is dated 15-11-1981.

3. During the course of proceedings of the application under section 21-A of the aforesaid Ordinance before the Election Authority, according to the learned counsel for the petitioner, the petitioner did not in view of the compromise file a written statement. An order for ex parte proceedings was passed against him on 18-10-1980. His application for setting aside the same was rejected for non-prosecution on 11-5-1981. Application for restoration was dismissed on 2-8-1982. The petitioner put in an application on 27-3-1982 for allowing him to join the proceedings and `to allow the recording of his statement'. The learned Election Authority dismissed his application to the extent of allowing the petitioner to have a statement recorded but he was allowed to join the proceeding and argue the matter on the material available on record. In view of the fact that no written statement had been filed, exparte proceedings were allowed to be taken, and no evidence had been produced in' rebuttal, the petition was accepted and the petitioner was disqualified to contest election for a period of four years. This is vide order dated 27-3-1992. This order is challenged through this Constitutional petition.

4. Learned counsel for the petitioner has contended that the default was on account of the compromise entered into by the petitioner's rival contesting candidate with the petitioner and as that gentleman Ch. Nazir Ahmad had declined to claim any relief against the petitioner as would appear from his statement before the Election Tribunal, he cannot be deemed to be an `aggrieved person' under section 21-A(3) of the Ordinance to maintain the petition before the Election Authority in which the impugned order adverse to the petitioner has been passed and the same was liable to be dismissed. Learned counsel has also contended that even if ex parte proceedings were not to be set aside, the petitioner was entitled to have his statement recorded and if that had been allowed, he would have said and produced the order of Election Tribunal dated 15-I1-1981 mentioning the compromise. Learned counsel has referred to Ghulam Muhammad and others v. Mst. Irshad Begum and others (P L D 1964 (W. P.) Lah. 782) ; Habib Ismail Bajwa v. Khawaja Ghulana Mohy-udr Din? (P L D 1970 Lah. 428); Azizullah Khan and 4 others v; Arshad Hussain and 2 others (P L D 1975 Lah. 879) and Ghulam Murtaza v. Muhammad Ilyas and 3 others (P L D 1980 Lah. 495).

5. The learned Assistant Advocate-General appearing on Court's order dated 24-10-1982 has submitted that even if it be that the rival candidate Ch. Nazir Ahmad did not challenge the election of the petitioner, nonetheless it would be open to the Election Authority to proceed with the trial in view of the proviso to subsection (4) of section 21-A of the aforesaid Ordinance.

6. In view of the order proposed to be passed we do not think it advisable to decide as to whether the petition filed by Ch. Nazir Ahmad under section 21-A of the aforesaid Ordinance before the Election Authority could be processed on 27-3-1982 when he had earlier compromised with the petitioner and refused to seek any relief against his election, as mentioned in the order of the Election Tribunal dated 15-11-1981. Petitioner was being proceeded ex parte.. Case was fixed for arguments for 24-10-1981. But no arguments were heard on that date. Before arguments or Judgment, petitioner appeared and asked for his statement to be recorded. On precedent an principle there could have been no objection. Only delay in decision could urged but that need not come about. Statement could be recorded-that doe not take too long and could be controlled in the circumstances, arguments heard and judgment handed down. Justice must always appear to have been done as well, alongwith being actually done. In all the circumstances of the case we do not think that the learned Authority acted with lawful authority in declining to record the statement of the petitioner and thus depriving itself to see his side of the case and relying solely on the testimony otherwise taken ex parte. In this view of the matter, the impugned order is declared to be without lawful authority and of no legal effect. The matter is remitted to the Election Authority for fresh decision after allowing the petitioner to have hi say and recording his statement in accordance with law. In the circumstances, there will be no order as to costs. Case remanded.