1983 PLP 2385 (CLC)

(3) Declare that the Respondent No. 3 is holding office of the President of the Karachi University Students Union without any .lawful authority. (4) Direct the Respondent No. 1 to hold elections to the ‑office of the Karachi University ‑Students Union afresh in accordance with law and the constitution of the Union. (5) Restrain the Respondent No. 3 from exercising any functions in respect of the office of the President of the Karachi University Students Union. (6) Grant such other relief as this Honourable Court deems appro priate in the circumstances of the case. (7) Award costs of the petition."

2. The brief facts leading to the filing of the writ petition are that the petitioner is a student of the Karachi .University, studying in M. A. Honours (Part III Final) in the department of Journalism of the University. He was a candidate for the office of the President of the University Union for the session 1981‑

82. It seems that the elections were held on 3rd December, 1981. It further seems that while the Election Officer/Return ing officers were counting the votes a group of armed persons came into the campus and disturbed the counting inasmuch as it has been alleged by the respondents that the ballot boxes were snatched away and they were burnt. It also seems that the counting of the votes could not be completed because of the above incident. However, respondent No. 1 without having the counting of votes declared respondent No. 3 a elected President of the Union on the basis of his personal assessment and the assessment of some of :ire members of the teaching staff. The petitioner being aggrieved by the above action has filed the present petition.

3. In support of the above petition Mr, Sabihuddin, learned counsel for the petitioner has urged that there is no provision in the Constitution of the Karachi University Students Union or under any other law empowering respondent No: 1 to declare an office‑beater of the Union on a basis other than the counting of votes. Messrs Khalid M. .Ishaque and Shafaat Hussain, learned counsel for the respondents have not been able to cite any provision of the University's Union Constitution or the law which entitled respondent‑No. 1 to take the impugned action. However, it has been vehemently urged by them that the petition is liable to be dismissed for the following reasons :‑ (i) That the petitioner has not approached this Court with clean hands. ; (ii) That a right of appeal is provided under Articles X section 2 (iv) of the Union's Constitution and, therefore, the above petition is not competent. Mr. Sabihuddin in reply to the above contentions has submitted that the petitioner has come to the Court with clean hands and that since the action of respondent No. 1 is without jurisdiction ex facie, the petitioner could file the above petition without invoking remedy in the form of appeal, particularly, when the election tribunal will comprise respondent No. 1 or his nominee and the two Deans of the Faculties of Science and Arts.

4. In furtherance of the above contentions Mr. Khalid M. Ishaqua has invited our attention to certain parts of the comments filed by the respondents in which it has been averred that the petitioner belongs to a students group known as the "U. S. M." and that the persons who caused the disturbances and snatched away the ballot boxes, and burnt them were wearing the badges of the U. S. M. and that they also at the gun point made the Vice Chancellor to write that all the candidates belonging to the U. S. M. group including the petitioner were elected. On the basis of the above averments, it has been vehemently urged by the learned counsel for the respondents that the petitioner has not approached this Court with clean hands. On the other hand Mr. Sabihuddin has invited our atten tion to the admission on the part of the respondents that petitioner was un‑armed and was present in one of the halls where the counting of votes was being conducted. He has further submitted that as a matter of fact there was fight among the students and, therefore, this Court in a writ jurisdiction cannot hold, who was responsible for the fight. He has also pointed out that the rustication order produced by the respondents indicates that some of the students who have been rusticated belonged to Jamiat‑i‑Tulba. Be that as it may, in our view there is not sufficient material before us to conclude whether the U. S. M. was responsible or Jamiat‑i‑Tulba for initiating the disturbances as nothing has been brought on record to indicate that any competent forum had held a regular inquiry and on the basis of the evidence and after hearing the affected persons concluded, which of the above groups was responsible for initiating the above disturbance. The parties have made allegations and counter allegation against each other, and, therefore this Court while exercising writ jurisdiction cannot constitute itself into a Court of inquiry to go into the above allegations. Furthermore, no specific illegal act has been attributed to the petitioner, and, therefore, it is very much doubtful that the petitioner can be made vicariously liable for illegal acts or omissions on the part of some of the alleged members of the U. S. M. particularly when under bye‑laws the elections are not held on party basis though factually there are students groups, which back the candidates of their groups. However, it is an admitted position that from the state of record available with respondents Nos. 1 and 2 it was not ascertainable who was winning the election. This fact has been admitted by respondent No. 2 the Chief Election Officer in para. 5 of his parawise comments, which reads as follows :‑ . "5.‑In reply to paras. 11, 12, 13 and14 of the petition it is stated that the election results could not be declared on the basis of actual counting of votes by this respondent. The rest does not concern respondent No.

2. However it is submitted that this respondent was asked to give a report on the elections results by respondent No.

1. This respondent based his report on the reports of the counting incharges. The reports from the counting incharges of the Faculty of Science and Arts showed that nothing definite could be said because the counting and the tabulation of results had been disrupted. Another report showed that the Faculty Representatives of the Science Faculty obtaining highest votes were supported by Islami Jamiat Tulba. I mentioned these facts in my report."

5. In this view of the matter respondent No. 1 was not justified in declaring respondent No. 3 as elected to the office of the President in time absence of any provision of law empowering him to do so. We may observe that the action on the part of the students or non‑students to cause disturbance cannot be approved of by this Court or by any forum. The tendency on the part of students to resort to violence is to be deprecated, it is open to the University Authorities to take legal action against the persons responsible for causing the aforesaid disturbance in accordance with law but the commission of the aforesaid illegal acts on the part of some persons/students does not furnish a ground to a statutory functionary like respondent No. 8 to commit an illegal act of the nature impugned in this petition, ';

6. As regards the second objection of Mr Khalid M. Ishaque that the petitioner should have filed an appeal as provided under Article X section 2 (iv), it may be observed that it is a well settled principle of law that if an action is without jurisdiction, an aggrieved person cannot be compelled to avail of remedy in the form of an appeal provided before the same forum, which is guilty of the commission of the impugned act without jurisdiction. In this regard reference may be made to the case of Syed Ali Abbas and others v. Vishan Singh and others (P L D 1967 S C 294), and the case of The Murree Brewery Co. Ltd. v. Pakistan through ,the Secretary of Government of Pakistan, Works Division and 2 others (P L D 1972 S C 279) and the case of Ali Muhammad v. Hussain Bakhsh and others (P L D 1976 S C 37), wherein inter alia it has been held that a party may invoke writ jurisdiction. without resorting to the remedy of an appeal or review/ revision in case impugned action is without jurisdiction. In the instant case it is an admitted position that the action of respondent No. 1 is without jurisdiction for the reason already recorded hereinabove in para.

5. Furthermore, under Art. X section 2 (iv) of the Constitution of Union, respondent No. 1 or his nominee and his two subordinates, namely, the two Deans of Faculties of Arts and Science constitute the election tribunal and therefore, it will not be just and proper to non suit the petitioner on the above ground. Respondent No. 1 may act as q judge in his own cause while sitting on the election tribunal.

7. The question, which falls for consideration, is what relief the peti tioner is entitled to. It has been contended by the learned counsel for the respondents that this Court cannot declare the election of all the other office‑bearers illegal as the other office‑bearers are not before this Court having not been impleaded as a party. Furthermore, it has also been submitted by the learned counsel for the respondents that the academic Fear has expired today and, therefore, it. will not be possible to hold elec tion for the year 1981‑

82. On the other hand it was submitted by Mr. Sabihuddin that the petitioner would be satisfied if the election of respondent No. 3 is declared illegal. His further submission was that so long as respondent No. 3 continues to hold office, the petitioner will have a cause of action notwithstanding that the academic year 1981‑82 has expired. We are inclined to hold that the petitioner will have cause of action so long as respondent holds office on the basis of the impugned action not with standing the expiry of the academic year. However, we are not inclined to grant general declarations of the nature prayed for in the petition.We, therefore, allow the petition to the extent that we declare that respondent No. 1's action of declaring respondent No. 3 as elected to the office of the President of the Karachi University Students Union on the basis other than counting of votes is illegal, without lawful authority and of no legal effect. It is further declared that respondent No. 3 is not entitled in law to hold the aforesaid office on the basis of the afore said illegal action. Respondents are restrained from acting upon the impugned action in respect of the President ship of the University Union. In the circumstances of the case, there will be no order as to costs. K. M. A. Constitutional petition accepted.