1984 PLP 1544 (CLC)

‑‑Ss. 17, 21 & 24‑Punjab Local Councils (Election Petition) Rules, 1979, r. 34‑Punjab Local Councils (Election Petition) Rules, 1979, r. 13 (b)‑Provisional Constitution Order (1 of 1981), Art. 9‑Cons titutional jurisdiction not appellate jurisdiction‑Evidence having been adjudged and findings recorded by Election Tribunal, held, cannot be re‑appraised by High Court in Constitutional jurisdic tion‑No interference can be made on findings of fact in constitu tional jurisdiction. ‑‑Ss. 17, 21 & 24‑Punjab Local Councils (Election) Rules. 1979, r. 34‑Punjab Local Councils (Election Petitions) Rules, 1979, rr. 13 (b) & 15‑Handbook for Presiding Officer for Elections to Local Councils in the Punjab, 1983, Instruction No. 69‑Provisional Constitution Order (1 of 1981), Art. 9‑Instruction No. 69 (2) (b) (d) of Handbook for Presiding Officer for Election to Local Council in Punjab, 1983 laying down that number of National Identity Card of voter shall be entered, on counter‑foil of ballot‑paper‑Non -insertion of identity card numbers on counter‑foils of ballot-papers‑Effect on election‑Presiding Officer is required to satisfy himself about identity of voter and issue him a ballot‑paper‑Pre siding Officer, for this purpose, may require production of National Identity Card‑Presiding Officer, if otherwise satisfied about identity of voter he may not require production of national identity card and may issue him a ballot‑paper‑ Omission to follow instructions as prescribed in Instruction No. 69 by concerned officer- No penalty having been prescribed, non‑compliance with such instructions, held, an irregularity‑‑Voters or candidates cannot be punished for no fault of theirs, for action or omission of another over whom they had no control‑Election, if held, sub stantially in accordance with Statutes or Rules and is not sham or traversity of an election by ballot, such election cannot be avoided for mere irregularities or non‑compliance of directory provisions- Election, held further, can be avoided if there was noncompliance of provisions of Ordinance, Rules and not Instructions. Morgan and others v. Simpson and another 1974 3 All E R 723 and Ghulam Ghous v. Muhammad Rafiq, etc. P L D 1982 Kar. 872 ref. ‑‑S. 17‑Provisional Constitution Order (1 of 1981), Art. 9 Evidence Act (I of 1872), Ss. 80 & 81‑Disqualification of a can didate on ground of allegation of his being member of a defunct political party‑Allegation supported by news items and photostat copies of statements from newspapers‑Held, documentary evidence produced in form of newspapers and photostat copies cannot be relied upon as legally same cannot form part of evidence ‑Unless it is proved that news item was correct same cannot form part of evidence‑News item alone, in absence of corroborative evidence cannot be considered to be proper evidence in respect of a parti cular fact‑Person whose statement in respect of candidates' being member of defunct political party relied, not produced in person before Tribunal‑Such statement, without showing that maker of statement was not available or could not be produced, his earlier statement was not admissible nor could be relied upon. ‑‑Ss. 17, 21 & 24‑Provisional Constitution Order (1 of 1981). Art. 9‑Disqualification of candidate on allegation of his being member of defunct political party ‑ Election Tribunal coming to conclusion that allegation was not proved against candidate- High Court in constitutional jurisdiction can neither re‑appraise evidence nor interfere in finding of fact‑No evidence available to tarnish elected member, he having been chosen by electorate could not be unseated from his elected office. JUDGMENT ABDUL SHAKURUL SALAM, J.‑The petitioner contested election to the Lahore Municipal Corporation from Unit No. 72, Lahore held on 28th September, 1983. He secured 1,062 votes. Respondent No. 2 got 1912 votes. Thus the petitioner lost by 850 votes. He firstly filed a petition under section 17 of the Punjab Local Government Ordinance, 1979 before the Election Authority on the plea that the respondent No. 2 was a member of defunct political party and thus disqualified. The petition was, however, withdrawn on 4th October, 1983. He then filed an election petition under section 24 of the aforesaid Ordinance. Three relevant issues to the effect that "whether respondent No. 2 Khalid Mahmood was disqualified to contest the election as alleged in these petitions ? If so, with what effect ? Whether respondent No. 2 Khalid Mahmood has mis-conducted himself during the election ? If so with what effect ? ; and whether the election of respondent No. 2 Khalid Mahmood is the result of corruption and illegalities committed in the conduct of election ? If so, with what effect" ? were tried by the learned Election Tribunal. Considering the evidence of the parties on the issues the learned Additional District Judge/Election Tribunal, Lahore, vide order dated 28th March, 1984, found the same having not been proved and dismissed the election petition. Hence this Constitutional petition.

2. Learned counsel for the petitioner has vehemently contended that to ensure compliance of rule 34 of the Election Rules, 1979 providing for voting procedure, Instruction No. 69 was issued by the Election Authority in exercise of powers under section 17 of the Punjab Local Government Ordinance, 1979 which lays down in clause (d) that number of the National Identity Cards shall be entered on the counterfoil and this was not done as deposed to by the P. W. 3 Sarwar Khan, Reader to A. C. Saddar, Lahore, therefore, the election as a whole has to be declared as void under rule 15 of the Election Petition Rules, 1979. He, secondly, contended that the respondent No. 2, the successful candidate was disqualified under section 21, sub -subsection (h) of the Punjab Local Government Ordinance, 1979 for the reason that he was a General Secretary of the defunct‑Pakistan Peoples Party and he having not obtained permission of the Government to be a candidate for which the onus was wrongly placed on the petitioner, the respondent No. 2's election could not be upheld by the learned Election Tribunal as it has done. He referred to section 13 (b) of the Election Petitions Rules, 1979 to contend that the returned candidate was, on the nomination day, disqualified to be elected for the aforesaid reason and, therefore, his election should have been set aside.

3. We have heard the learned counsel for the petitioner at length and perused the record with his assistance. All the contentions raised were considered under the issues aforequoted and the learned Election Tribunal after weighing the evidence led by the parties has come to the conclusion that none of those had been proved on the record. The evidence having been adjudged and findings recorded by the learned Election Tribunal cannot be re‑appraised in these proceedings as we are not hear ing an appeal against the order of the learned Election Tribunal and in exercise of extraordinary Constitutional jurisdiction, no interference cats be made on findings of fact. (a) the failure of any person to comply with the provisions of the Ordinance or the Election Rules ; or (b) the prevalence of extensive corrupt or illegal practice." "The following voting procedure prescribed under rule 34 shall be followed :‑ (1) Where a voter presents himself at the polling station to vote, the Presiding Officer/ Assistant Presiding Officer shall, after satisfy ing himself about the identity of the voter, issue to him a ballot paper. For this purpose a voter may be required to produce his National Identity Card issued to him under the Registration Act, 1973 (Federal Act LVI of 1973), (2) Before ballot‑paper is issued‑ (a) the voter might show a chit containing his name and the electoral roll number, issued to him by any of the candidates, to a polling officer who will verify his name and electoral roll number from the copy of the relevant electoral roll with him. He will then call out the number and name of the voter as entered in the electoral roll. (b) The serial number on the counterfoil of the ballot‑paper to be issued to the voter shall be entered on the electoral roll against the number and name of the voter. (c) The voter shall then be required to receive a personal mark made with indelible ink on the thumb finger. While doing so the Pol ling Officer will make sure that the voter does not have such a mark already on thumb/finger. (d) The number and the name of the electoral unit, the name of the local council, the serial number of the voter on the electoral roll, the name of the village etc. and the number of the National Identity Card shall be entered on the counterfoil by the Presiding Officer/Assistant Presiding Officer who shall obtain thumb impres sion of the voter on the counter‑foil of ballot‑paper and also put his signatures on the counterfoil. (e) The number and name of the electoral unit and the name of local council shall be entered on the ballot‑paper which shall also be signed by the Presiding Officer/Assistant Presiding Officer. (f) The voter on receiving the ballot‑paper shall forthwith enter the room or compartment in which the ballot‑boxes are placed and shall secretly place his ballot‑paper in the ballot‑box bearing the name and symbol of the candidate for whom he wishes to vote and immediately thereafter leave such room or compartment." "Where a voter presents himself at the polling station to vote, the Presiding Officer/Assistant Presiding Officer shall, after satisfying himself about the identity of the voter, issue to him a ballot‑paper. For this purpose a voter may be required to produce‑his National Identity Card issued to him under the National Registra tion Act, 1973." In other words, the Presiding Officer is required to satisfy himself about the identity of the voter and to issue him a ballot‑paper. For this purpose he may require the production of national identity card. If he is otherwise satisfied about the identity of the voter he may not require production of national identity card and may issue him a ballot‑paper. It is true that in sub‑clause (2) (b) of the aforesaid instruction No. 69, it is provided that serial number on the counterfoils of the ballot‑papers to be issued to the voters shall be entered on the electoral roll against the number and the name of the voter and under (d) the number and the name of the electoral unit, the name of the Local Council, the Serial Number of the voter on the electoral roll, the name of the village etc. and the number of the national identity card shall be entered on the counterfoils by the Presiding Officer/ Assistant Presiding Officer. Now, if any of these things is not done or omitted by the Presiding Officer, no penalty is provided for. In such a situation, non‑compliance will only be an irregularity. Voters or candidates cannot be punished for no fault of theirs for action or omission of another over whom they had no control. If it were so, an official either willingly or unwillingly by his inefficiency, incompetence or indolence may deprive the voters of their franchise or successful candidate of an elected office. Therefore, it has always been the law that if elections have been held sub stantially in accordance‑with the statute or the rules and are not sham or traversity of an election by ballot, these are not to be avoided for mere irregularities or non‑compliance of directory provisions. Reference may be made to a Court of Appeal decision in Morgan and others v. Simpson and another ((1974) 3 All E R 723) and to a learned Division Bench judgment of the Sind High Court in Ghulam Ghous v. Muhammad Rafiq, etc. (P L D 1982 Kar. 872). As regards the contention of the learned counsel for the petitioner that the respon dent No. 1 was disqualified to be a candidate for having been. General Secretary of the defunct political party i.e. Pakistan Peoples; Party, it has to be seen that the learned Election Tribunal has weighed the evidence led by the parties on the point. The learned Election Tribunal upheld the contention of the respondent No. 2 that "the documentary evidence produced by the petitioner in the form of newspapers and Photostat copies, cannot be relied upon as legally the same cannot form part of the evidence." He observed that "unless it is proved that news item is correct, it cannot form part of evidence. News item alone in the absence of cor roborative evidence cannot be considered to be proper evidence in respect of a particular fact." The learned Election Tribunal was quite right. If news items were to be relied upon for recording a finding, many a people may be condemned on account of adverse comments made by their opponents in the newspapers. So also many people can be convicted on the reports in the newspapers about commission of crimes. Copy of a state ment made by one Azizur Rehman produced as Exh. P. 8 to which the learned counsel for the petitioner makes reference was not relied upon by the Election Tribunal for the reason that the said Azizur Rehman was not produced in the proceedings before him to depose against the respondent No. 2 "nor his statement shows that that respondent No. 2 was office bearer of People Party on or after 20th December, 1971, so as to disqualify him ". Without showing that the maker of the statement was not available or could not be produced his earlier statement was not admis sible nor could be relied upon. The learned Election Tribunal was quit right in not relying upon the same. Now if on the basis of the evidence produced before it, the learned Election Tribunal has come to the conclusion that the issue was not proved against the respondent No. 2, we can neither reappraise the evidence nor interfere in the finding of fact in exercise of Constitutional jurisdiction. The learned Election Tribunal also came to the conclusion that "there is no evidence worth mentioning to prove that any corrupt or illegal practice was committed with the consent or connivance of respondent No. 2 or his election agent or that respondent No. 2 and his election agents had failed to take any reason able precaution to prevent its commission." If there be no evidence tow tarnish the respondent No. 2, he having been chosen by the electorate cannot be unseated from his elected office on the motion of the petitioner when the latter bad fought well and squarely against the respondent No. 2 having got 1,062 votes as against respondent's by a good of his electorate.

4. In view of what has been stated above, there is no force in this petition and the same is, accordingly dismissed in limine. M.Z.M Petition dismissed.