P L D 1966 (W (PLP)

Ataullah Qureshi for Respondent No.

1. Nemo for Respondents Nos. 2, 3 and

4. Date of hearing: 13th January 1966. S. A. MAHMOOD, J.‑Ghulam Ali petitioner and Shafqat Ali, Barkat and Hidayat Ali, respondents Nos. 1 to 3, contested the election to the Electoral College from Electoral Unit No. 2199, Chak No. 51/J.B., Tehsil and District Lyallpur. Ghulam Alt petitioner having secured 245 votes was declared elected. His election was challenged by Shafqat Ali respondent No. 1, by an election petition on the ground that as Ghulam Ali had seconded the nomination paper of Barkat Ali and had subscribed to his own nomination paper, his nomination paper could not have been accepted, and in coming to this conclusion relied on the proviso to subsection (4) of section 21 of Electoral College Act. Ghulam Ali impugns the validity of the order of the Tribunal, dated the 1st of June 1965 under Article 98 of the Con stitution of Islamic Republic of Pakistan as illegal, void, without jurisdiction and of no legal effect.

2. In order to decide the question which falls for determina tion in this case, it is necessary to cite the facts briefly. They are that the petitioner seconded the nomination paper of Barkat Ali, while his own nomination paper was proposed by Ghulam Rasool and seconded by Barkat Ali. He himself furnished a certificate under subsection (2) of section 21 that he had consented to his nomination and was not subject to any disqualification for being, or being elected, as a member of the Electoral College.

3. The proviso under which the election of the petitioner has been set aside and Shafqat Ali has been declared elected reads as follows:‑ "Provided that no person shall subscribe more than one nomination paper either as proposer or as seconder, and if any person subscribes more than one nomination paper, all such nomination papers after the first received by the Returning Officer shall be void." This proviso merely provides a bar to a person subscribing to more than one nomination paper either of a proposer or seconder, There are no words of limitation in this proviso that a person, who is a candidate, cannot propose or second another candidate and‑if he has done so, the nomination paper nominating him shall be invalid. Subsection (2) of section 21 provides for nomi nation to be made in prescribed form and signed by the proposer and seconder. They, therefore, subscribe to the nomination paper, and not the candidate, who merely furnishes the requisite certificate, which accompanies the nomination paper. Th A certificate is not even endorsed on the nomination paper. but accompanies the nomination paper and, therefore, there is no difficulty in holding that a candidate does not subscribe to his own nomination paper. The Tribunal in coming to the conclusion that he had subscribed to his own nomination paper clearly erred in the exercise of the jurisdiction and deprived the petitioner of a valuable right, which he had acquired, namely, his being an elected member of the Electoral College.

4. The learned counsel for the respondents contended that there is a bar in the election law to a candidate proposing or seconding another candidate, but he was unable to refer us to any specific provision in the Electoral College Act and, therefore, had to confine himself to the contention that a candidate also subscribes to his nomination paper and if he had earlier seconded a nomination paper, his own nomination paper becomes invalid. This contention is not borne out by section 21 and its proviso.

5. The learned counsel for the respondent raised a most substantial question, namely, that the Election Tribunal having decided the matter finally and having jurisdiction to decide the question of law and fact correctly as well as incorrectly, this Court has no jurisdiction to interfere with its order in view of Mian Jamal Shah v. Election Commission (P L D 1966 S C 1).

6. W e have already held in Writ Petition No. 803 of 1965 Dil Muhammad v. Muhammad Din and others decided op 1‑3‑66, that decision by the Election Tribunal under section 60 (2) of the Electoral College Act read with rule 36 (a‑A) of the Electoral College Rules has not the finality which attaches to a decision of e the Election Commission or the Commissioner and the Election Tribunal under the National and Provincial Assemblies (Elections) Act, 1964. As the case of Mian Jamal Shah was decided under the National and Provincial Assemblies (Elections) Act, 1964, the observations of the learned Judges of the Supreme Court are not fully applicable to the facts of this case. We venture to hold that we have jurisdiction to interfere in the order of the Election Tribunal as the learned Judges of the Supreme Court declined to C grant leave to appeal against the decision of a Division Bench of this Court in Muhammad Akram v. Captain C. A. Steed, Deputy Commissioner and Election, Gujrat (P L D 1965 Lah. 703) by which the order of the Election Tribunal was declared as without lawful authority and set aside.

7. In this case we find that the petitioner, who had been duly elected by the voters of the Electoral Unit, has been unseated on a wholly mistaken interpretation of section 21 (4) of the Elec toral College Act. The petitioner has thus been deprived of d valuable right. The Election Tribunal in coming to its conclusion exceeded its jurisdiction or at least acted with gross irregularity n in the exercise of its jurisdiction. We, therefore, set aside the order of the Election Tribunal as without lawful authority and of no legal effect and remit the case to it for fresh decision.

8. In the result, we accept this writ petition with cost's against the respondent. K. M. A. Petition accepted.