P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑Salah Muhammad contested an election to a Basic Democracy of Tehsil and District Jhelum and was declared elected as he obtained 216 votes as against 183 and 38 obtained by his opponents, Muhammad Roz and Abdullah Khan. Muhammad Roz filed an election petition which was heard by Sheikh Muhammad Tufail, P. C. S., Sub‑Divisional Magistrate, Pind Dadan Khan, who had been appointed the Election Tribunal to hear the petition. The election petition presented by Muhammad Roz was accepted on the ground that as the petitioner had been dismissed in 1933 from assistant teachership in a school run by the District Board, Jhelum, he was, by reason of Article 5 (a) of the Elective Bodies (Disquali fication) Order, 1959, (President's Order No. 13 of 1959) as well as by reason of clause (f ) of paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order, 1959, (President's Order No. 18 of 1959), disqualified from becoming a member of any Basic Democracy. In addition the Election Tribunal declared that Muhammad Roz, who had presented the election petition, had been elected a member. Having no remedy by any other means Salah Muhammad presented the present writ petition with a view to having the order of the Election Tribunal made ineffective, and impleaded Muhammad Roz, Abdullah Khan, Sheikh Muhammad Tufail, P. C. S. Sub‑Divisional Magistrate, Pind Dadan Khan, District Jhelum, and the West Pakistan Government, through Secretary, Social Welfare Department, as respondents Nos. 1, 2, 3 and 4, respectively. The petition was resisted by respondents Nos. 1 and 4, the former of whom was represented at the hearing by Sheikh Muhammad Shall, Advocate, and the latter by Mr. Fazle‑e‑Ghani, Advocate, while Raja Said Akbar Khan, Advocate, appeared for the petitioner.

2. In the petition it was asserted that the petitioner had not been dismissed from the service of the District Board, Jhelum, that in any case clause (a) of Article 5 of the Elective Bodies (Disqualification) Order, 1959, and clause (f ) of paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order, 1959, had no application, and that even if the order of the Election Tribunal with regard to the petitioner were correct, the order that Muhammad Roz, respondent No. 1, was to be deemed to have been elected was wrong. All these three contentions were challenged by learned counsel for respondent No. 1 as well as by learned counsel for respondent No. 4.

3. With regard to the contention of learned counsel for the petitioner that his client had not been dismissed from the service of the District Board, Jhelum, and that the finding of the Election Tribunal was based on material which could not be considered to be reliable evidence, I need only say that as the question of fact whether or not the petitioner had been dismissed from the service of the District Board, Jhelum, was within the exclusive jurisdiction of the Election Tribunal, occasion exercise of writ jurisdiction with a view to setting aside that finding can arise only on very limited grounds. The circumstances in which a finding of fact given by a Tribunal of exclusive jurisdiction in a matter may be rendered ineffective by this Court in the exercise of its writ jurisdiction would be either that the finding has been given on the basis of no evidence at all, or that the evidence has been so completely misread that the finding cannot be said to be based on evidence. Neither of these two grounds exists in the present case and I would, therefore, proceed on the assump tion that the finding of the Election Tribunal that the petitioner had been dismissed from the service of the District Board, Jhelum, in 1933 was correct.

4. The next contention of learned counsel for the petitioner was that even if the petitioner had been dismissed from the services of the District Board, the dismissal did not act as a disqualification for two reasons, one being that the dismissal was not from the service of one of the bodies mentioned in clause (a) of Article 5 of the Elective Bodies (Dis qualification) Order, 1959, read with clause (f ) of para graph 2 of Part II of the Second Schedule to the Basic Democracies Order, and the other being that the order of dismissal, If any, having been passed long before the Elective Bodies (Disqualification) Order came into force, it did not fall within the ambit of the Elective Bodies (Disqualification) Order, 1959, nor that of clause (f ) of paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order.

5. With regard to the first of the above‑mentioned two grounds, learned counsel for the petitioner urged that a District Board set up under the Punjab District Boards Act, 1883 (Act XX of 1883) could not be deemed to be a public statutory corporation for the purposes of Article 5 of the Elective Bodies (Disqualification) Order, 1959. This Article reads as under:‑ "Disqualification of certain persons.‑(1) Notwithstanding any thing contained in this Order, or in any other law, a person shall stand disqualified until the thirty-first day of December 1966, for being a member or a candidate for the membership of any elective body,‑ (a) if he is dismissed, removed or made to retire from the service of Government or of a public statutory corporation, on a charge other than that of inefficiency ; or (b) if an order under section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952), or a similar order under any other law relating to the prevention of acts prejudicial to the Defence, or the External Affairs, or the security of Pakistan or any part thereof, or to the maintenance of supplies and services essential to the community, or the maintenance of public order, has ever been made against him ; or (c) if he was found guilty by the Federal Court, a High Court or a Tribunal under the Public and Representative Offices (Disqualification) Act, 1949 ; or (d) if he has been convicted of any offence and sentenced to a term of imprisonment for more than two years or to transpor tation for any term." According to learned counsel for the petitioner, a District Board could not be deemed to be a public statutory corporation contemplated by clause (a) of the above‑reproduced Article 5 of the Elective Bodies (Disqualification) Order, 1959, and corpora tions contemplated by the Article were those which owed their existence to a statute such as universities, etc., and that the bodies like District Boards, Municipal Committees or Municipal Corporations set up for the purposes of Local Self‑Government could not be deemed to be public statutory corporations. In support of this contention, learned counsel for the petitioner relied on the language used In clause (d) of paragraph 2 of Part 11 of the Second Schedule to the Basic Democracies Order, 1959. The relevant part of this clause reads as follows: ‑ "A person shall be disqualified for being a member or a candidate for the membership of a Local Council: * * * * * * * * * * * (d) if he is a whole‑time salaried official In the service of Government or of a public statutory corporation, a Local Council, or a Local Body or other local authority." The argument was that though for the purposes of this clause a Local Council would mean one of the Basic Democracies set up under the Basic Democracies Order, 1959, a "local body" and a "local authority" would be a body like a District Board, a Municipal Committee or a Municipal Corporation, and that if the expression "public statutory corporation" could include a District Board, a Municipal Committee or a Municipal Corporation, it was not necessary to mention "a local authority" or "local body" in the clause. It appears to me that this contention of learned counsel for the petitioner cannot be accepted because he is seeking to interpret a statute in the light of the language used in another statute. Clause (f) of para graph 2 of Part II of the Second Schedule to the Basic Democracies Order enjoins that a person shall be disqualified for being a member or a candidate for membership of a Local Council If he is for the time being disqualified for membership of an elective body under the Elective Bodies (Disqualification) Order, 1959, or under any other law for the time being in force. The plain meaning of clause (f ) of paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order, 1959, is that if the case of a person falls within Article 5 of the Elective Bodies (Disqualification) Order, 1959, he stands disqualified from becoming a member or a candidate for the membership of a Local Council till the 31st December 1966. One has, therefore, to focus attention on Article 5 of the Elective Bodies (Disqualification) Order, 1959, because if the provisions of that Article are satisfied, clause (f ) of paragraph 2 of Part II of the Second Schedule to the Basic Democracies Order, 1959, would auto matically come into operation, and a person disqualified under Article 5 of the President's Order 13 of 1959 shall be disqualified under clause (f ) of paragraph 2 of Part II of the Second Schedule to President's Order No. 18 of 1959. In order to determine the meaning of the expression "public statutory corporation" occurring in the Elective Bodies (Disqualification) Order, 1959, one has to look to the Order itself, though any other law which deals with a similar or allied subject may be referred to for determining the intention of the law‑maker when using that expression. This reference to the language used in another law would, under the laws of common‑sense and the well‑accepted principles of interpretation of statutes, be allowable only if the language which has to be interpreted is, in the context, open to more meaning than one.

6. As Article 5 (a) of the Elective Bodies (Disqualification) Order, 1959, (President's Order No. 13 of 1959), stands, the expression "public statutory corporation" would include all E District Boards, Municipal Corporations and other similar bodies as well as bodies like Universities. This would become clear from the provisions of the Public Conduct (Public Statutory Corporations) (Scrutiny) Ordinance, 1959, (Ordinance XLI of 1959) promulgated by the President of Pakistan on the 23rd of July 1959. This Ordinance applied the provisions of the Public Conduct (Scrutiny) Ordinance, 1959, (Ordinance III of 1959), which was promulgated by the President of Pakistan on the 21st of January 1959, to committees entrusted with the task of scrutinizing the cases of employees of the public statutory corporations with a view to seeing whether they should continue in service. On the basis of the above‑mentioned Ordinance XLI of 1959 scrutiny committees were to be set up to look into the cases of persons employed by District Boards, Municipal Committees, Municipal Corporations, and other similar bodies, and this was made clear by means of a letter that issued from the Secretary of Establish ment Division, Government of Pakistan. The effect of the Public Conduct (Public Statutory Corporations) (Scrutiny) Ordinance, 1959, taken in conjunction with the Public Conduct (Scrutiny) Ordinance, 1959, was considered by this very Bench in Mirza Muhammad Ali v. The Commissioner, Lahore Division and others (P L D 1960 Lah. 641) the judgment in which case disposed of writ petitions presented by servants of municipal bodies and some others. Now, the Elective Bodies (Disqualification) Order, 1959, was issued by the President of Pakistan on the 6th of August 1959, while the Public Conduct (Scrutiny) Ordinance, 1959, and the Public Conduct (Public Statutory Corporations) (Scrutiny) Ordinance, 1959, were promulgated by him on the 21st of January 1959 and the 23rd of July 1959; respectively. The Elective Bodies (Disqualification) Order, 1959, which is commonly known as EBDO was meant to weed out politicians who had been proved guilty of misconduct while the two Ordinances were aimed at weeding out employees of Government and public statutory corporations from service. It is clear that the Order and the two Ordinances dealt with similar subjects and it would, therefore, be permissible to find out the meaning of the expression "public statutory corporations" which occurred in . the Elective Bodies (Disqualification) Order, 1959, by a reference to the Public Conduct (Public Statutory Corporations) (Scrutiny) Ordinance, 1959. Servants of local bodies, like District Boards and Municipal Corporations, were for the purposes of Ordinance XLI of 1959 included in the expression "servants of public statutory corporations" and I fail to see why the same meaning should not be attached to that expression when it occurs in the Elective Bodies (Disqualification) Order, 1959. Consequently, I would hold that the case of the petitioner is that of a person dismissed from service of a public statutory corporation for the purposes of Article 5 of the Elective Bodies (Disqualification) Order, 1959.

7. I will now take up the contention of learned counsel for the petitioner that even if the petitioner had been dismissed from the service of the District Board, Jhelum, in 1933, his case was not covered by clause (a) of Article 5 of the Elective Bodies (Disqualification) Order, 1959, with the result that the order of the Election Tribunal (respondent No. 3) declaring the petitioner not to have been validly elected as a member must be held to be void. Learned counsel for the petitioner said that as the word "is" had been used In clause (a) of Article 5 while the words "has ever been" "was" and "has been" were used in clauses (b), (c) and (d), respectively, it becomes clear that the order of dismissal contemplated by clause (a) of Article 5 of the Elective Bodies (Disqualification) Order, 1959, was one which was passed after the Order was issued. It is true that if the words "has been dismissed" had been used in place of "is dismissed" there would have been no room for the contention that clause (a) of Article 5 of the Elective Bodies (Disqualification) Order, 1959, did not cover all cases of dismissal from any of the services mentioned in the clause and one has, therefore, to determine whether the clause, as it stands, covers the cases of those persons only against whom an order of dismissal has been passed after the Elective Bodies (Disqualifi cation) Order was issued, or would also include cases of persons against whom orders of dismissal had been passed before the coming into force of the President's Order No. 13 of 1959.

8. Besides the language used in the Article, learned counsel for the petitioner relied on the fact that the Constitution of the Islamic Republic of Pakistan, which was enforced on the 23rd of March 1956 and abrogated on the night of the 7th of October 1958, and has since been known as the late Constitution which expression occurred in the Laws (Continuance in Force) Order, 1958, by means of clause (g) of paragraph 4 of its Fourth Schedule, confined disqualification of a person from being a member of the National and Provincial Assemblies on the score of his having been dismissed from service to a maximum term of five years which period could be cut down by the President of Pakistan or the Governor of the relevant Province, and urged that when issuing the Elective Bodies (Disqualification) Order, 1959, the President of Pakistan could not have intended that dismissal from service even though it had taken place before the Order was issued should be a bar to a person being elected to an elective body till the 31st of December 1966, the date mentioned in Article 5 of the Order, because dismissal from service would in that event be treated more disabling than it had been treated ire the late Constitution. It appears to me that the reference to the provisions of the late Constitution in this regard was misplaced. A law‑maker is not bound by the views of his predecessor with regard to a matter because if he were so bound, amendments in law would be rarely necessary. One has, therefore, to find out the intention of the law‑maker with regard to the law under consideration, and in this connection the fact that Public Conduct (Scrutiny) Ordinance, 1959, and the Public Conduct (Public Statutory Corporations) (Scrutiny) Ordinance, 1959, were promulgated near about the time at which the Elective Bodies (Disqualification) Order, 1959, was issued has its relevancy. Orders with regard to persons who were removed from Government service because or screening were passed before the Elective Bodies (Disqualification) Order, 1959 was issued, and as some of the orders had been passed because the officer was or had the reputation of being corrupt it is inconceivable that the law‑maker intended that servants of Government or those of public statutory corporations who had been dismissed fear serious misconduct under a law passed by himself should not included fn the list of persons who were to be deemed to be disqualified from being members of an elective body by reason of the fact that they had been dismissed from service. It is no doubt true that if the petitioner had sought an election even to the highest legislature created by the late Constitution he would not have been considered disqualified but if the law which applies to the case of the petitioner creates a disqualification from being elected any time between the date of the passing of the order of his dismissal and the 31st of December 1966, the disqualification will enure to the prejudice of the petitioner notwithstanding the fact that it would not have so enured under an immediately previous law on the subject. It has to be remembered that justice in a Court of law means the administration of the law of that land and no canons of abstract justice can be invoked for the purposes of interpreting the language used in a law.

9. The use of the expressions "has ever been" "was" and "has been" in clauses (b), (c) and (d) respectively of Article 5 of the Elective Bodies (Disqualification) Order, 1959, is not as helpful to the petitioner as his learned counsel seemed to suggest. In clause (c) the expression "was" had to be used because the reference was to orders passed under the Public and Representative Offices (Disqualification) Act, 1949 which was deleted from the statute book some years ago. As regards the expression "has ever been" which occurs in clause (b) the fact that not only orders passed under the Act named in the clause but also orders h under other similar Acts, which Acts may no longer be in force, were to attract the clause the use of the expression "has ever been" was necessary. It appears clear that the intention with regard to the disqualifying provisions of orders of dismissal, and orders of conviction dealt with in clauses (a) and (d) of Article 5 of the Elective Bodies (Disqualification) Order, 1959, was the same but the fact that the expression "is" was used in clause (a) while the expression "has been" was used in clause (d) does not prove that clause (a) applied to orders passed after the issue of the Elective Bodies (Disqualification) Order and clause (d) applied to orders passed at any time, be that time before or after the law came into force. It would, perhaps, have been better if the same expression "is" or "has been" had been used in in clauses (a) and (d), but as the expressions do not materially differ from each other, the difference in the choice of the expression is not very material. Having given the matter my most anxious consideration, I have arrived at the conclusion that clause (a) of Article 5 of the Elective Bodies (Disqualification) Order, 1959, covers cases of persons who were dismissed from service either before this Order was passed or at any time before the 31st of December 1966. It follows, therefore, that the order of the Election Tribunal holding that the petitioner could not be considered to be a member of the relevant Basic Democracy because he had in 1933 been dismissed from the service of the District Board, Jhelum is open to no valid objection.

10. The next question urged by learned counsel for the peti tioner was that even if the petitioner had been rightly unseated by the Election Tribunal the order of that officer to the effect that Muhammad Roz, respondent No. 1, shall be deemed to have been elected at the election which was contested by him and the petitioner as well as by Abdullah Khan, respondent No. 2, could not have been passed, and the whole election should have been set aside, and the choice of the member left to the electors. In this connection learned counsel for the petitioner relied on the West Pakistan Basic Democracies Election Rules, 1959 (to be referred to hereinafter as the Rules) which appeared in the West Pakistan Gazette, Extraordinary, dated the 13th of November 1959, as Notification No. PEA‑59/940‑ER, on being made by the Governor of the Province in exercise of the powers conferred on him by clause (a) of Article 72 and clause (2) of Article 89 of the Basic Democracies Order, 1959 read with Entry No. 1 of the Sixth schedule thereto. To support his contention that it was only fn cases in which rule 60 of the Rules was applicable that a seat claimed by a candidate who had been declared unsuccessful could be given to him, learned counsel relied on a judgment delivered by my brother S. A. Mahmood, J. in Muhammad Akbar v. Muhammad Akram and others (P L D‑1961 Lah, 491) which judgment was concurred in by me. The case relied upon has no resemblance to the instant case and the decision given in that case could not be considered to be a decision on any point which though it arose in that case does not arise in the instant case. It is a well‑established principle that a judicial decision is to be taken to have been meant primarily for the facts on consideration of which it was given. In the case relied upon by the learned counsel for the petitioner the defeated candidate had claimed a seat in his election petition and the Election Tribunal had granted him that without coming to the conclusion that if the votes that should have been excluded from the account of the successful candidate were excluded the candidate who had been unsuccessful would have been declared successful. As in the case cited, namely Muhammad Akbar v. Muhammad Akram and others, the candidate declared successful would not have been declared unsuccessful even if the votes declared to be invalid by the Election Tribunal bad not been counted in his favour, the order passed by S. A. Mahmood, J. and myself was that the unsuccessful candidate could not have been declared to have been successful at the election. The case that arises here is entirely different because from the beginning, the successful candidate was disqualified from being a member or a candidate for membership. One has, therefore, to deter mine on the consideration of the relevant law whether the seat which fell vacant on the petitioner having been declared debarred by the Election Tribunal from being a member could be held by that Tribunal to have gone to respondent No. 2.

11. It was urged by learned counsel for the petitioner that if Muhammad Roz is declared to be a successful candidate, the result would be that the electors who had been given by law the right to choose their representative would be deprived of that right because the verdict of the voters had been against him. If the matter is looked at in the light of general principles this con tention has weight because one cannot say to whom the votes which had been polled for the petitioner would have gone if the petitioner had not been a candidate. However, the matter cannot be disposed of on consideration of general principles and has to be determined according to the law applicable thereto. An elec tion petition to challenge an election under the Basic Democracies Order, 1959, (President's Order No. 18 of 1959) is, as far as the Province of West Pakistan is concerned, to be dealt with in accordance with the provisions of the Rules. Chapter V of the Rules, which is comprised of rules 55 to 62, deals with election petition. Rule 55 consists of 10 clauses of which the 5th reads as under :‑ "(5) In the election petition, the petitioner may claim any of the following declarations‑ (a) that the election of the returned candidate is void ; or (b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected ; or (c) that the election as a whole is void." Another provision which is relevant for the present purpose is rule 59 of the Rules. This rule is comprised of clauses (a) to (h) of which the first two clauses read as under: ‑ "

59. Ground for declaring an election void.‑The Election Tribunal shall declare an election to be void if it is satisfied that :‑ (a) the nomination of the returned candidate was invalid ; (b) on the nomination day the returned candidate was not qualified for, or was disqualified from, being elected for the ward ; The language in which the opening part of rule 59 preceding it clause (a) is worded is open to the construction that the whole election is to be declared void if any of the clauses of the rule is attracted, but when one considers the other clauses of the rule as well as clause (5) of rule 55 of the Rules, it becomes clear that the question whether the whole election or the election of the returned candidate is to be declared to be void is to be determined according to the clause which is found to be applicable. Mr. Fazl‑e‑Ghani, Advocate, who appeared for the West Pakistan Government (respondent No. 4) contended that the provisions contained in clause (5) of rule 55 of the Rules would indicate that it was left to the Tribunal to determine what order whether that the whole election was void or that the election of the returned candidate was void, was necessary. If this contention were accept ed it would have to be presumed that the rule‑making authority had departed from the fundamental principle, namely, that the meaning of laws and rules should be ascertainable and unless this departure were absolutely patent I would be reluctant to presume that it existed. To meet the contention of learned counsel for the petitioner to the effect that the order of the Election Tribunal that Muhammad Roz (respondent No. 1) had succeeded at the election would result in depriving the electors of their right to choose the person they liked, Mr. Fazl‑e‑Ghani, learned counsel for respondent No. 4 made a reference to rule 48 of the Rules which is to the effect that if two candidates had secured the same number of votes a lot would be drawn and the candidate success ful at the drawing of the lot shall be declared to have won the election. I am of the view that what is said in rule 48 of the Rules is not a convincing reply to the objection raised by the learned counsel for the petitioner. The rule will come into play only when two candidates had polled equal number of votes, and it is obvious that the electors had already given their verdict to the effect that one candidate was believed by them to be as good as the other and no question of the electors being deprived of the person of their choice can arise where rule 48 of the Rules is applicable.

12. The fact, however, that the reply which was sought to be given to the contention of the learned counsel for the petitioner regarding the incorrectness of the order of the Election Tribunal declaring Muhammad Roz (respondent No. 1) to be a successful candidate, is not convincing, does not prove that the contention is correct and it still remains to determine whether it is tenable. Now clause (3) of rule 55 of the Rules enjoins that where an elec tion petition is presented by a person who has been a contesting candidate he shall join as respondents to his ‑petition all the other contesting candidates and that a copy of the election petition shall be served upon each respondent. It follows, therefore, that all candidates have to be parties to an election petition in which one of the contesting candidates challenges the election. It can hardly be doubted that it would be open to any of the respondents to challenge the assertion of the person who had challenged the election that he is entitled to be declared a successful candidate and if he does not succeed in his objection one fails to see on what reasonable ground the person who had challenged the election and had shown that on a correct counting of votes he should have been declared successful should be refused that relief. It is hardly open to question that because of the provisions contained in sub‑clause (b) of clause (5) of rule 55 of the Rules, a person who challenged an election though he was not a candidate can say in the petition that a person found to have received the largest number of valid votes should be held to have been elected and I can find no justification for the view that the same result cannot follow when a contesting candidate claims a seat which had been found by the returning officer to have gone to the returned candi date in spite of the fact that all persons who could possibly contest the claim of the person who had challenged the result of the election as declared by the returning officer are parties in the proceedings the Election Tribunal had been empowered to take.

13. The language employed in rule 60 of the Rules gives considerable support to what I have said in the last paragraph and in fact appears to me to clinch the matter. This rule reads as under "

60. Striking of or addition of votes.‑If in an election petition a seat is claimed for any candidate, the votes may be struck off or added to the accounts of the persons concerned in the manner hereinafter provided‑ (a) If it is proved that the candidate or any authorised agent on his behalf has been guilty of bribery or undue influence in respect of any person who voted at the election there shall be struck off one vote for every person who voted at the election and is proved to have been so bribed or unduly influenced ; (b) if any person guilty of a corrupt practice, or of illegal payment, employment or hiring, voted at the election his vote shall be void ; (c) if any person disqualified from voting voted in the election his vote shall be void; (d) if any person was issued a tendered ballot‑paper or a challenged ballot‑paper, and he was entitled to a ballot‑paper, his vote shall be added to the votes cast in favour of the candi date in whose favour such person intended to vote." It is noticeable that that part of the rule which precedes clause (a) talks of striking off and adding of votes in the accounts of the persons concerned, and see no reason for holding that the persons envisaged are only the persons who challenged the election and the returned candidate. If a contesting candidate who though he had not challenged the election by means of an election petition things that he is entitled to the seat it is open to him to put forward that claim and it would then be the duty of the Election Tribunal to determine whether the person who had challenged the election is entitled to be declared to have been successful on the ground that he had got the largest number of votes polled for candidates who could contest the election. However, if there is absence of such an assertion on behalf of any candidate but the one who put In the election petition a presumption can be raise that the claim of the person who challenged the election was correct. The presumption I have mentioned can be raised under the Code of Civil Procedure (Act V of 1908) which statute has been made applicable to the trial of election petitions by means of clause (4) of rule 58 of the Rules. In the present case one of the issues framed by the Election Tribunal was whether Muhammad Roz (respondent No. 1 in this petition) was entitled to the seat which had been declared by the returning officer to have gone to Salah Muhammad (petitioner in this petition) and it was open to Abdullah Khan (respondent No. 2 In this petition) to assert that he and not Muhammad Roz had polled the largest number of votes. Abdullah Khan respondent No. 2 did not care to lead any evidence with regard to himself being entitled to the seat about which the election petition had been put In nor has he cared to appear at the hearing of the present petition with the result that' as between the parties to the election petition the decision of the Election Tribunal has to be presumed to be correct. It is in the matters mentioned in this paragraph that the present case differs from Muhammad Akbar v. Muhammad Akram and others, on which the learned counsel for the petitioner placed so much reliance.

14. The argument raised by the learned counsel for the peti tioner that if Muhammad Roz respondent No. 1 were to be allowed to retain the seat the electors would be deprived of their right to choose the person they wanted to represent them may now be dealt with. After the election results have been declared by the return ing officer the contest, if any, has to be before the Election Tribunal and the matter is to be decided according to the rules applicable and not on any general consideration. If the petitioner and respondent No. 1 had been the only two candidates and the petitioner had been unseated by the Election Tribunal and respon dent No. 1 had been held by the Election Tribunal to have won the election, the order would not have been open to any objection and as in the present case Abdullah Khan respondent No. 2 had not at any stage of the contest claimed that he was entitled to the seat the position in law remains precisely the same as it would be if the returned candidate and the candidate who challenged the election by means of an election petition were the only two contestants at the election and considerations of a general nature on which the learned counsel for the petitioner relied have no relevancy. It is clear that the petitioner is trying to have the order of the Election Tribunal in favour of Muhammad Roz, respondent No. 1, set aside on grounds that have no place in the relevant law and cannot, therefore, be acted upon.

15. In view of what I have said above, I would dismiss the petition but because questions of law raised had not been the subject of any reported decision, I would leave the parties to bear their own costs. ANWARUL HAQ, J.‑I agree. K. B. A. Petition dismissed.