P L D 1966 (W (PLP)

4. The learned Election Tribunal, in a brief order accepted the election petition and set aside the petitioner's election on the sole ground that 99 ballot papers which bore initials of some person other than the Presiding Officer were wrongly included in the count. He opined that the disparity between the numbers of ballot papers marked on the Electoral Roll under section 40 (2) (b) of the Act, as having issued to the electors and the number of ballot papers found in the ballot boxes of the three contesting candidates showed "that at least 99 ballot papers were not legally issued in this unit and that some foul play was committed in the election." It might be mentioned here, that of the above 99 ballot papers, 66 were cast in favour of the petitioner and 33 in favour of respondent No.

1. On these findings, the learned Tribunal set aside the election as a whole.

5. Aggrieved by the above order, the petitioner has filed this writ petition. The main grounds on which he questions the impugned order are that the learned Election Tribunal did not afford him any opportunity, whatever, as required by section 60(2) of the Act, to produce evidence to disprove the allegations made in the election petition; and that all the three contesting candidates after the close of poll having acknowledged in writing that the poll had been held in a fair and free manner rendered the election petition by respondent No. 1 incompetent. The petitioner, however, admitted that 99 ballot papers instead of being signed by the Presiding Officer, Mr. Aftab Ahmad Sheikh, were signed by Mr. Inam‑ud‑Din, Polling Officer, but it was pleaded that was done under an authorization signed by the Returning Officer under section 18 (3) of the Act, owing to the temporary absence of the Presiding Officer from the Polling Station. And finally that even if 66 ballot papers cast in the Petitioner's favour which did not bear the initials of the Presiding Officer were excluded from the count; the petitioner still had a clear majority of valid votes polled and there was no lawful ground for setting aside the election as a whole. Accordingly, it was prayed that the Tribunals order be declared as "without lawful authority and of no legal effect".

6. Respondent No. I alone appeared to canvass the validity of the impugned order. At the commencement of the argument in the case, learned counsel appearing for him raised the following two preliminary objections, namely‑ (1) that no specific relief has been claimed in the writ petition and this makes the petition incompetent; and (2) that bye‑election in pursuance of the impugned order having already taken place, the writ petition becomes infructuous. In support of the first objection, learned counsel relied upon Manzur Ahmad v. Ch. Muhammad Ishaq (P L D 1964 S C 17), Pakistan v. K. All Afzal and another (P L D 1960 S C 1) and Raj Narain Singh v. Atma Ram Gobind and another (A I R 1954 All. 319). In the first mentioned case before the Supreme Court, certain Forest Officers, instituted a writ petition in which the prayer was‑ "that a writ of mandamus be issued to the respondent (the Provincial Government) not to jeopardize the petitioners' prospects for higher appointment." In that case, the Peshawar Bench, issued a writ in the form of direction to the Government‑ "that if and when the vacancy of the Conservator of Forests ‑ in the Region which was previously known as N.‑W. F. P. arises, then it must, in the first instance, be given to the person who prior to the 10th of August 1965, was serving in that Province, subject of course to the efficiency and capability of that officer." Their Lordships of the Supreme Court observed that a more loosely worded prayer for a writ was difficult to imagine. And as to the writ actually issued by the High Court, their Lordships observed that the direction or writ issued by the High Court ‑had no concern whatsoever with the subject‑matter of the petition". The second case before the Supreme Court arose out of writ petition filed by a former Joint Secretary to the National Assembly, whose service was terminated because of the abolition of his post. He filed a petition in the High Court for "a writ of mandamus or any other appropriate writ" requiring the Government of Pakistan to allow the petitioner in that case to continue in office as Joint Secretary, National Assembly, for a further period of two years. However, writ actually issued in the case by the High Court restrained the Government 'from interfering with the rights of the petitioner as an employee for the remaining period of his service and, therefore, in place of mandamus a writ of prohibition in substance was issued against the Government. The Supreme Court recalled the writ issued by the High Court because the writ or direction actually issued was not in accordance with the prayer made. Their Lordships observed that the petitioner in the High Court had prayed for a writ of mandamus and in its stead a writ of prohibition in substance was issued against the Government. In Allahabad case, writ was sought against the Speaker of the State Legislature, concerning the proceedings in the House involving a question concerning the privilege of a Member of the House. The writ was refused because proceedings in House are absolutely immune from judicial scrutiny, both under Indian Constitution and on the precedent of the British Parliament.

7. It is thus clear that the cases relied upon by learned counsel for the contesting respondent proceeded entirely on different facts and do not support the first objection against the competency of the writ petition. However, it must be conceded, that in certain respects the writ petition is an inartistically drawn, up document: it ends abruptly without a formal prayer clause. But it is wrong to suggest that no relief is claimed. Paragraph 4 of the writ petition if read in a free and liberal manner should set at rest all doubts on the point. It reads "It is submitted that the order of the Election Tribunal is contrary to law and facts, has been passed without lawful authority and, therefore, of no legal effect, inter alia, on the following grounds . . . . . ." This paragraph when read in the context of other averments in the petition leaves no manner of doubt as to the nature of relief sought by the petitioner. The relief claimed is clearly referable to clause (2)(a)(ii) of Article 98 of the Constitution. Article 98 of the Constitution omits all references to ancient prerogative writs issued by the Court of Queen's Bench in England, namely, writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Therefore, for the purpose of any relief claimable under Article 98 of the Constitution, it is scarcely necessary to ask relief with) reference to any specified writ known to common law. Learned counsel for the contesting respondent did not contend, that upon the facts alleged in the writ petition no relief under Article 98 was possible. His contention simply was that relief was not claimed in appropriate terms. As pointed out already whether any relief is claimed or not must be judged from a reading of the petition as a whole.

8. There is no force in the second preliminary objection) either. It is not controverted that the impugned order is the foundation for the bye‑election, which has since been held. But the very basis on which the bye‑election has been held in this case is under question in these proceedings. If, therefore, the impugned order is found to be "without lawful authority and of no legal effect" within the meaning of Article 98(2) (a) (ii) or the Constitution, then all consequential proceedings including the bye‑election will cease to have effect automatically. It ca scarcely be controverted that the bye‑election is entirely a distinct proceeding though it is a necessary consequence of the proceedings before the Tribunal resulting in the impugned order. Upon the holding of the bye‑election, the impugned order has not in any manner merged in the proceedings for the bye‑election. Each proceedings remain distinctly separate. Even the parties to the election petition may be different from the parties, to the consequential bye‑election. Therefore, a bye‑election can in no sense be treated to be in the nature of proceedings in appeal. It is upon the hearing of an appeal, than the order appealed against merges in the appellate order this is not the case before us. Therefore, we are of the opinion that notwithstanding the bye‑election, the impugned order still remains subject to judicial scrutiny and will stand or fall on it,1 own merits unaffected by the supervening event of the bye‑election. A converse view would not only perpetuate an illegality butt would also rob the expression "of no legal effect" in Article 98(2) (a) (ii) of the Constitution of its full content and true meaning. The case of Syed Shah Nawaz v. The Speaker National Assembly (Writ Petition No. 673 of 1964) provides a near parallel. In that case the Speaker of the National Assembly purported to accept under Article 107 (a) of the Constitution, resignation of Syed Shah Nawaz, a sitting member of the National Assembly. The latter filed a writ petition, in which, the acceptance of resignation was held invalid, notwithstanding the fact that bye‑election to fill the vacancy purported to have been thus caused, was held in the meantime.

10. On merits of the case, learned counsel for the petitioner contended, that because of rule 36 (1) of the Electoral College Rules, 1964, which made .the proceedings before it summary, the Election Tribunal under a mistaken notion considered itself free to decide the election petition without affording any opportunity to the parties to adduce evidence in support of their respective cases. . In this behalf, learned counsel strongly relied upon the petitioner's affidavit and what purports to be the record of proceedings before the Election Tribunal. The record of the proceedings leaves no manner of doubt that the Election Tribunal thought itself justified to decide the election petition merely on the allegations contained therein, and the argument addressed by the parties counsel. It appears that upon the election petition being received by the Tribunal notices were issued to the parties on 6‑3‑1965 for their appearance on 20‑3‑1965. The latter date was, however, declared a public holiday and the case was adjourned to be taken at Lahore on 4‑5‑1965. On this date, the parties with their counsel appeared and the record of the election was persued. Argument in the case was also heard and the case was adjourned to 5‑5‑1965 for orders. The record does not show that the parties were ever asked or afforded opportunity to produce evidence. The case was then thrice adjourned for one reason or the other, without order being pronounced. Eventually, on 1‑6‑1965, the Tribunal pronounced the order declaring the election to be void as a whole. Learned counsel for the contesting respondent did not dispute the fact that the case before the Election Tribunal was not adjourned for the evidence of parties but contended that the parties never chose or requested for adjournment for the production of evidence. It is impossible to believe that the petitioner who had won the election by majority of 104 votes should not have availed of any opportunity to produce evidence in support of the validity of his election, should an opportunity been allowed to him. We incline to believe the petitioner's affidavit supported as it is by the record of proceedings before the Election Tribunal that no opportunity was allowed to him to file his written statement in answer to the allegations in the election petition or adduce evidence to refute such allegations. This constituted a clear violation of section 60(2) of the Act. It has recently been held in Muhammad Akram v. Captain C. .4. Saeed (P L D 1965 Lah. 703) that section 60 of the Act is mandatory in its requirement. Notwithstanding the fact that rule 36 of the Electoral Rules, 1964, inter alia, makes the proceedings before the Tribunal summary, it is a fundamental requirement of the section, that reasonable opportunity should be afforded to the parties to adduce evidence. Refusal to summon witnesses or to adjourn. the case for that purpose is tantamount to a denial of reasonable opportunity to produce evidence and vitiates the entire proceedings before the Tribunal. The same view was taken by another Bench in Writ Petition No. 434 of 1965. Indeed, learned counsel for the contesting respondent did not question the proposition of law laid down in these two recent precedents, but remained content with the suggestion that the petitioner himself chose not to file his written statement or to produce evidence and remained content with his counsel's argument before the Tribunal. As observed above, this suggestion does not deserve any serious notice.

11. There is yet another remarkable circumstances in the case. The impugned order leaves no manner of doubt that the principal reason which influenced the Election Tribunal to declare the election as wholly void was, that of the total number of ballot. papers issued and cast, no less than 99 ballot papers bore the initials of some person other than the Presiding Officer (Mr. Aftab Ahmad Sheikh) and this coupled with the disparity in the number of the ballot papers issued and the tick marked on the electoral roll was described by the Tribunal as "foul play" sufficient to vitiate the election. The learned Election Tribunal reached the above conclusion after it had "perused" the record. But curiously enough, Memo. No.

33. A/Vt. 4, dated 2‑11‑1964 (Annex. 'A') by which the Returning Officer (Mr. G. H. Shad) had authorized Mr. Inam‑ud‑Din, the Polling Officer to perform the duties of Presiding Officer, if he did not return in time from Toba Tek Singh, where he had proceeded the preceding evening presumably on an official business was entirely overlooked although it formed part of the election record. The petitioner has filed affidavit to show that Mr. Aftab Ahmad Sheikh having gone to Toba Tek Singh the preceding evening did not reach the polling station till after a few hours of the commencement of the poll and during his temporary absence, Mr. Inam‑ud‑Din, acted as the Presiding Officer, under the authority of the Returning Officer, given under section 18 (3) of the Act. Petitioner's learned counsel stressed that it was Mr. Inam‑ud‑Din, Polling Officer who actually initialled 99 ballot papers during the first few hours of polling during the temporary absence of the Presiding Officer. We have no hesitation to accept this version.

12. Learned counsel for the petitioner also relied upon an acknowledgment in writing (Annex `B') signed by the three rival candidates to vouch the fact that the election in dispute was conducted in a free and fair manner and that none of the candidates had any complaint or grievance against the Polling Staff. It was contended that this acknowledgment rendered the election petition by the contesting respondent incompetent. With this contention, however, we cannot agree. On no discoverable) principle can this acknowledgment be regarded as conclusive on the facts stated therein nor can it otherwise impair the statutory right of the contesting respondent to file the election petition. At best the acknowledgment will be a piece of evidence in the case and it will be open to the contesting respondent to rebut it by evidence to the contrary.

13. Accordingly, we find as a fact that the Tribunal did not afford any opportunity to the parties to adduce any evidence in the case and was content to decide the case on what he described as the "perusal" of the record. And even this "perusal" was wanting in due care for the learned Election Tribunal failed to notice a material document which indisputably had a vital bearing on the case. This brings the case within the dicta laid down in Muhammad Akram's case and Writ Petition No. 434 of 1965 referred to earlier.

14. For the foregoing reasons, we hold that the inquiry by the Tribunal (respondent No. 3) in the election petition filed by the contesting respondent has been in direct contravention of the, mandatory provisions of section 60(2) of the Act amounting to z colourable exercise of jurisdiction in accordance with law. We, therefore, accept the writ petition, set aside the impugned order dated the 1st of June 1965, by the Election. Tribunal (respondent No. 3) and declare it to be without lawful authority and of no legal effect. We further direct that the case shall be remitted to the Election Tribunal of competent jurisdiction to hear the election petition filed by the contesting respondent in accordance with law. In the circumstances of the case, we make no order as to costs. K. B. A. Petition accepted.