1974 PLP 497 (SCMR)

MUHAMMAD GUL, J.‑This appeal by special leave is from the judgment of a Division Bench of the former High Court of West Pakistan at Lahore, dated 16‑4‑1969, and arises out of an election dispute in the circumstances set out below. In an election contest to the National Assembly during the first general elections under the 1962 Constitution, from Constituency No. NW/6‑1963, in Gujrat District, the appellant herein was declared elected by defeating among others, respondent No.

2. Respondent No. 2 filed an Election Petition under section 50 of the National and Provincial Assemblies (Elections) Act, 1964 (Act VII of 1964), alleging serious irregularities and corrupt practices against certain officials, the appellant and his agents. The reliefs claimed were‑-- (i) that the election of the appellant is void; and (ii) that respondent be declared elected. The appellant also filed Recriminatory Petition under section 70 of the Act. The Election Petition and the Recriminatory Petition were heard together by the Election Tribunal, respondent No. 1 herein. In the Election Petition filed by respondent No. 2 the evidence was recorded in about two years time. Then began the recording of the evidence in the Recriminatory Petition by the appellant herein. On 15‑3‑1969, the Election Tribunal ordered that since both the petitions had to be disposed of together, arguments would be heard after the conclusion of the evidence in the Recriminatory Petition. In the proceedings in the Recriminatory Petition, the appellant filed a list of 381 witnesses of which he examined

86. In the meantime, Martial Law was proclaimed on the 25th March 1969 and by the Proclamation of the Chief Martial Law Administrator, the 1962 Constitution was abrogated and the National and Provincial Assemblies were dissolved. In view of this cataclastic jolt to the political life and the representative institutions in country, respondent No. 2 raised an objection before the Election Tribunal that the National Assembly having been dissolved he could not be declared elected to the seat and as such the Recriminatory Petition filed by the appellant herein could not be proceeded with. The Election Tribunal by order dated 28‑3‑1969 gave effect to the plea and held that the cause of action for filing the Recriminatory Petition had disappeared and it has become infructuous. With regard to the Election Petition, the Election Tribunal, however, ruled that the Act VII of 1964 having been preserved by the Proclamation of the 25th March 1969, and the Provisional Constitution Order, the proceedings in the Election Petition by the respondent No. 2 will continue. The case was accordingly adjourned to 2‑4‑1969 for arguments. Aggrieved by the order of the Election Tribunal, the appellant filed a writ petition which was dismissed in limine. The learned Judges of the Division Bench upheld the view taken by the Election Tribunal and the reasons upon which it was based. Leave was granted because the points involved in the case were of first impression bearing considerable public importance which needed fuller examination in this Court. As pointed out earlier, the principal reason, which had weighed with the Election Tribunal and the learned Judges of the High Court to hold that while the Recriminatory Petition filed by the appellant had become infruc tuous, but the Election Petition filed by respondent No. 2 against the election of the appellant continued, was that Act VII of 1964 was preserved in force by the Proclamation of Martial Law as also the Provisional Con stitution Order and under these instruments the Election Tribunal also continued to function This reason, however, no longer holds good. Act VII of 1964 has been repealed by subsection (2) of section 97 of the National and Provincial Assemblies (Elections) Ordinance, 1970 (Ordinance XIII of 1970), which came into force on the 10th July 1970, and the Election Tribunal was also dissolved much earlier. It cannot be gainsaid that respondent No. 2 by means of Election Petition was seeking to enforce what was essentially a right created by a special statute and the 1962 Constitution which no longer' hold the field. Apart from that the appellant cannot claim any relief against respondent No. 2 any more than the latter can claim against the former. However that may be, since leave to appeal was granted in this case, the controversy in the instant appeal stands settled by the judgment of this Court in Shahidultah's case ((1969) 2 P S C R 234) in which following the statement of law in Halsbury's Laws of England, Third Edition, Volume 14, page 286, that "a e parliamentary petition drops by the fact that parliament is dissolved while the petition is pending", and the dictum in Carter and another v. Mills ((1874) 2 L R 9 C P 117) on almost similar facts, it was held inter alia, that the National Assembly having been dissolved a petition to its election comes to an end for all purposes and, therefore, all pending petitions whether recriminatory or otherwise must be dropped as having become infructuous. The above legal position arising in this appeal is not controverted by the learned counsel of the parties, and it was frankly conceded by the appellant's learned counsel that because of the above judgment of this Court, this appeal has become infructuous. The appeal accordingly is dismissed as such. Parties are left to bear their own costs. Appeal dismissed.