P L D 1984 Lahore 502 (PLP)

MANZOOR HUSSAIN SIAL, J.‑Haji Muhammad Tariq petitioner and respondents Nos 2 to 7 contested election to the seat of Electoral Unit No. 71 of Lahore Municipal Corporation held on 28th September, 1983. As a result of poll the petitioner was declared elected.

2. Mian Shahbaz Ahmad, one of the rival candidates, alone challenged petitioner's election and filed election petition under section 24 of the Punjab Local Government Ordinance, 1979. The main ground of attack against the petitioner's election was that he was disqualified to contest election under section 21 of the Punjab Local Government ordinance, 1979 as amended by the Punjab Local Government (Second Amendment) Ordinance XV of 1983, because: ‑ (i) he was office‑bearer of the defunct‑Pakistan Peoples Party ; (ii) he was terrorist and convicted by the Martial Law Authorities for his subversive activities ; and (iii) he was not accorded permission by the Government to participate in the election. The other point raised in the election petition was that the polling arrangements in the electoral unit were inadequate to cater for the require ments of the electorate which materially affected the result of election.

3. The petitioner repudiated allegations of being office‑bearer of defunct Pakistan People's Party or that he was terrorist and indulged in activities pre‑judicial to the integrity or solidarity of Pakistan. He admitted his conviction but asserted that he incurred no disqualification to contest the election on that account. He also controverted the fact that polling arrangements in the Electoral Unit were inadequate. It was asserted that more than average percentage of votes were polled at the polling station. The learned Election Tribunal formulated several issues arising out of the pleadings of the parties. We, however, do not consider it necessary to reproduce all those issues here, as the contest before us, centred round issue No. 3 alone which is as follows: ‑ "(3) Whether the respondent No. 1 was not qualified on the nomination day to contest the election? If so with what effect? O. P. P.

4. The learned election Tribunal recorded evidence led by the parties and vide impugned order, dated 2b‑3‑1984 set aside petitioner's election holding that petitioner's conviction by the Martial Law Authorities showed that he indulged in subversive activities. He was refused permission by the Government to participate in the election and was held disqualified to contest election. The learned Election Tribunal further held that petitioner's disqualification was notorious enough to attract the principle of Throwing away votes by the Electorate. He pressed into service, the same principle, set aside his election and declared Mian Shahbaz Ahmad respondent elected in his place. The petitioner has assailed, before us the afore‑mentioned order of the Election Tribunal, by invoking Constitutional jurisdiction of this Court. Learned counsel for the petitioner has raised following contentions for consideration: ‑ (i) The Election Tribunal misread evidence and misconstrued relevant provisions of the Punjab Local Government Ordinance VI of 1979. (ii) The finding of the Tribunal that petitioner indulged in subversive activities, rendering him disqualified to contest election was based on no evidence. (iii) The petitioner in election petition failed to discharge onus of proving that petitioner was disqualified to contest election on the nomination day; (iv) That the principle of "throwing away votes" by the electorate was wrongly applied in the circumstances of the instant case. Reliance was placed on Raja Muhammad Afzal Khan v. Ch. Manzoor Elahi and 6 others L D 1975 Lab. 1276. (v) That the newspaper reports allegedly relied were inadmissible in evidence, without formal proof. Reliance was placed on Sultan Mahmood, Excise and Taxation Inspector v. Government of West Pakistan P L D 1964 S C 302 arid Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others P L D 1973 S C 160.

4. Malik Muhammad Qayum, Advocate representing Mian Shahbaz Ahmad respondent, on the other hand, contended that the petitioner was General Secretary of Pakistan Peoples Party and as borne out by newspaper reports, therefore, disqualified under clause (h) of section 21 of the Punjab Local Government Ordinance, 1979. In support of his submission he relied on Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976SC57), wherein it was held that newspaper report of contemporaneous events become admissible particularly when they relate to events of local interest and testimony of eye‑witnesses being readily not available. It was also submitted that once document is admitted in evidence and exhibited without objection its admissibility on the mode of its proof cannot be challenged later on. Reference was made to Mahboob Ali etc. v. Mst. Sharifan Bibi and others (P L D 1984 Lab. 287) and Shamsuddin v. Pakistan and another (P L D 1960 (W. P.) Kar. 231) in support of his submission. In these precedents it was held that objection to the mode of proof of document cannot be allowed to be raised later on when no such objection was taken at the time of the admission of such document into evidence. The next point argued by the learned counsel for respondent was that the petitioner himself applied to the Government whereby he conceded that he was office‑bearer of Pakistan Peoples Party and sought permission to contest election, but his representation was rejected. Reference in this behalf was made to the statement of Qamarul Haq (P. W. 1) who had deposed that petitioner's application was rejected. He also referred to the order of the Additional Commissioner and pointed out that the petitioner himself relied on newspapers reports showing that he had severed his affiliation with Pakis tan Peoples Party. It was argued that the petitioner was, therefore, estopped by his own conduct to agitate that he was not office‑bearer of defunct‑Pakistan People's Party. It was next contended that the petitioner having himself admitted that he was convicted by Martial Law Authorities on 12‑10‑1977 could not contest election being disqualified under clause (i) of section 21 of the Punjab Local Government Ordinance, 1979. Learned counsel lastly contended that Election Tribunal after appraising evidence on the record came to the conclusion that the petitioner was dis qualified to contest election, this Court in writ jurisdiction would not interfere in that finding even if different conclusion could possibly be derived from the same evidence. He relied on Jalal Shah and others v. The Custodian and others (P L D 1981 S C 262) and Irshad Khan v. Abdul Majeed and 3 others (1973 S C M R 64) in support of his conten tion, wherein it was held that finding of fact reached by the Tribunal and not interfered with, in writ jurisdiction by the High Court, could not be disturbed on reappraisal evidence, if there occurred no misreading of evidence.

5. We have heard learned counsel for the parties at some length and have also perused evidence on record with their assistance.

6. Before determining the question of petitioner's disqualification it may be borne in mind that the finding with regard to disqualification must be based on positive evidence and not on mere surmises. It is well‑settled that the provisions of penal Statute, tending to deprive valuable right of franchise are to be strictly construed and in case of doubt the benefit must go to the person against whom, the same is sought to be invoked. The main plank of respondent's case was that the petitioner was office‑bearer of defunct P. P. P. he was convicted by the Martial Law authorities and therefore, disqualified to contest election, under section 21(h)(i) of Punjab Local Government Ordi nance, 1979 as amended by Ordinance XV of 1983. In order to appreciate the contentions raised, reproduction of the provisions relevant to the extent is necessary: ‑ Section 21.‑"A person shall be disqualified to be a candidate or a member of Local Council‑ (a) (b) (c) (d) If he has been on conviction by a Court of competent jurisdiction for an offence involving moral turpitude or an offence under sections 181, 182, 295‑A, 295‑B and 298 of the Pakistan Penal Code, sentenced to imprisonment, unless a period of three years has elapsed from the expiration of such sentence." (e) (g) (h) If he has, at any time on or after the 20th December, 1971 been a member of any Executive Committee, by whatever name called, or an office‑bearer, of a political party at local, district, divisional, provi sional or national level. Explanation.‑The term `local level' in this clause includes mohallah, village and tehsil level Provided that . . .. Provided further that notwithstanding anything to the contrary contained in this clause, Government may, on its own motion or on a representa tion made to it, allow any person, by an order in writing, to be a candidate or a member of a local council." (i) if he is opposed to the ideology of Pakistan or is or has been, or is known to be, involved whether individually or as a member of a group of persons in activities, directly or indirectly, prejudicial to the interest, security, integrity or solidarity of Pakistan. Explanation.‑"Activities prejudicial to the security, integrity or solidarity of Pakistan" shall include sedition, sabotage, subversive or terrorist activities, harbouring elements engaged in such activities and instigation to students labour or any other section of people with a view to creating lawlessness and disorder."

7. Undoubtedly the onus to prove the issue highlighted above, lay on the petitioner in the election petition. In support of his case, he examined, four witnesses besides himself and closed his evidence on 15‑2 198.1. However, to prove the issue under consideration he produced Qamarul Haq, Assistant in the Local Government Department who on the basis of the record deposed that Haji Muhammad Tariq had submitted application to the Government and sought permission to contest election on the plea that he was social worker and that his nomination papers were rejected by the Returning Officer on the ground that he was worker of Pakistan Peoples Party. He further deposed that the Government of Punjab refused him permission to contest the election. In cross‑examination he admitted that the application also contained an averment that he was neither worker nor office‑bearer of any political party. The witness expressed his inability to disclose from the record as to whether Haji Muhammad Tariq was ever associated with any political party because it was confidential matter. The only other witness, who made somewhat relevant statement pertain ing to the issue under reterence was Mian Shahbaz Ahmad respondent himself. He deposed that nomination papers of Haji Muhammad Tariq were rejected because he was office‑bearer of Pakistan Peoples Party and was convicted and sentenced to imprisonment for a year and was also awarded stripes. He applied to the Governor for permission to contest election but the Governor rejected his application on the ground that he was representative of Pakistan Peoples Party and associated with "AI‑Zulfiqar". in cross‑examination he denied to have knowledge about the acceptance of Haji Muhammad Tariq's appeal against the rejection of his nomination papers. The witness, however, deposed that the petitioner was Secretary and member of Administrative Committee of Pakistan Peoples Party and convicted to 1977. He produced no documentary evidence to prove the averment relevant to the issue under discussion. Haji Muhammad Tariq, on the other hand, examined Ch. Qamar Din, a rival candidate who deposed that the petitioner had no connection with any political party and he was social worker. He was not cross- examined on that assertion by the respondent. The petitioner himself appeared in the witness‑box and categorically denied that he had connection with any political party or that he remained office‑bearer of that party prior to the date of election. He however, admitted that his nomination papers were rejected but on appeal he succeeded. He placed on record, copy of the appellate authority. He also admitted that he was convicted by Martial Law Authorities and sentenced to imprisonment for one year and ten lashes for raising slogans This is the entire evidence led by the parties for and against the issue under consideration. On the question, as to whether, the petitioner was office‑bearer of Pakis tan Peoples Party attracting the provisions of section 21 (h) of Ordinance VI of 1979, it will be seen that the respondent besides himself examined Qamarul Haq (P. W. I). It is significant to note that the latter said nothing about petitioner's affiliation with any political party or that he was office‑bearer thereof ;rather he admitted that the petitioner had mentioned in his applica tion addressed to the Government that he was social worker and had no connection with any political p arty. The solitary statement of the respondent, without corroboration can hardly be relied. On the other band petitioner, besides himself, examined Ch. Qamar Din, a rival candidate who deposed that the petitioner had no connection with any political party but acted only as a social worker. This witness was not cross‑examined on this point or on his veracity to make such deposition. His testimony had gone unchallenged, besides had provided sufficient corroboration to the petitioner's case that he was social worker and not office bearer of any political party. As to the factum of petitioner being General Secretary of defunct Pakistan Peoples Party as appeared in the newspapers, Malik Muhammad Qayum learned counsel for respondent, conceded that the newspapers were not produced in evidence before the Tribunal. Obviously, therefore, the same can neither be relied nor read into evidence. The arguments and authorities referred, regarding their admissibility or otherwise for this reason lost their probative value as observed earlier, there should be positive evidence of unquestion able reliability to sustain the disqualification of an elected representative of the people which is lacking in this case. It appears that the learned Elec tion Tribunal being conscious of this fact, gave no positive finding as to whether the petitioner was office‑bearer of any political party and probably for that reason did not invoke clause (h) of section 21 of Ordinance VI of 1979 for his disqualification. The second aspect of the issue and vehemently contested between the parties was, whether the petitioner on the day of his nomination, was dis qualified under clause (i) of section 21 of the Ordinance VI of 1979 to be a candidate for the election. The respondent has relied upon the conviction of the petitioner by Martial Law Authorities and his conduct in moving applica tion to the Government seeking permission to contest election and the order of rejecting his application by the Government. Before the election tribunal the respondent failed to produce copy of petitioner's conviction order, the copy of F. I. R. or charge framed thereon. The oral statement of the respondent alone is to they effect that he was convicted by the Martial Law authorities in 1977 and sentenced to one year imprisonment and awarded ten lashes. This is by itself cannot serve sound basis for holding that the petitioner indulged in subversive activities. Even if the statement of the petitioner on that account is pressed into service that would only prove that in the year 1977 he was con victed and sentenced to one year imprisonment and awarded ten lashes ford raising slogans. There is no evidence that he was convicted for an offence involving moral turpitude, nor evidence to prove, that he was terrorist or that his activities were prejudicial to integrity and solidarity of Pakistan. The newspaper reports in that behalf were neither produced nor admitted into evidence before the Election Tribunal as such no reliance could be placed, on them. The fact that the petitioner bad applied for permission to contest election and his application was rejected by the Government, created no bar for the petitioner to contest election. The proviso to clause (h) of section 21. of Ordinance, 1979 is only an enabling provision of law whereby the Government has retained power to permit a candidate to contest election despite he being disqualified under clause (h) of section 21 of Ordinance, 1979. This clause was erroneously interpreted by the learned Election Tribunal to hold that if permission was not accorded by the Government the candidate could not contest election. Moreover, neither the statement of P. W. I nor the applica tion moved by the petitioner proved that the petitioner had indulged in sub versive activities and had disqualified himself to contest election. The respondent failed to produce copy of the application moved by the petitioner and the order of the Government refusing him permission to contest election to show that the petitioner was refused permission as he indulged in subversive activities. Learned counsel for the petitioner himself placed on the file a copy of that application for our perusal which shows that the petitioner neither admitted therein that he was office‑bearer of the Pakistan Peoples Party nor that he was engaged in subversive activities. It was for the respon dent to have produced before the Election Tribunal documentary evidence to show that the petitioner was convicted by competent Court for offence involv ing moral turpitude. It is, therefore, clear that there was no evidence on the record of the election Tribunal to hold that the petitioner suffered disqualifica tion to contest Election on account of being engaged in Anti‑Sate or subver sive activities or that he had been convicted for offences involving moral turpitude. In the absence of any document or order on the file to show that petitioner indulged in subversive activities, it would be preposterous to hold him disqualified to contest election under clause (i) of section 21 of the Ordinance VI of 1979. We are, therefore, of the considered view that the impugned order passed by the Election Tribunal was based on no evidence and this Court is competent to exercise Constitutional jurisdiction in the matter, The authorities relied by the learned counsel for the respondent that this petition is not maintainable are distinguishable. This Court is competent to interfere in the orders of the, Tribunals if they are based on no evidence' or involve misreading of evidence. As regards the application of the principle of Throwing away votes by voters is concerned it is significant to note that there was no evidence before the Returning Officer to hold that the petitioner was a terrorist. He erroneously rejected his nomination papers but his order was set aside in appeal by the Additional Commissioner. As for the electorate, the petitioner's disqualification, if any, subsequently stood removed on the acceptance of his nomination papers and on his participation in the election. In these circumstances the alleged disqualification of the petitioner was not so notorious so as to hold that the electorate deliberately voted for candidate who suffered from patent disqualification. The learned Election Tribunal misdirected himself in applying the principle which in fact was inapplicable to the circumstances of the present case. The upshot of the above discussion is that this petition is allowed and the impugned order passed by the learned Election Tribunal is declared to be with out lawful authority and of no legal consequence. There shall be no order as to costs. M. Z. M. Petition allowed.