1985 PLP 1298 (MLD)

FAZL-I-MAHMOOD, J.--This writ petition calls in question the order of Election Tribunal, Kharian, dated 1-3-1984 whereby he accepted the election petition filed by Muhammad Fazal, respondent No. 2 and declared the election as a whole void on the finding that both the candidates were not qualified to become members of the Union Council.

2. The brief facts are that petitioner Muhammad Fazil and Sardar Khan, respondent were rival candidates for election against special interest seat of Peasant for Union Council, Haji Muhammad, Tehsil Kharian. The election was held on 29-10-1983. Sardar Khan, petitioner secured six votes whereas respondent No. 2 got four votes. The petitioner was accordingly declared as a returned candidate.

3. Respondent No. 2 thereafter filed an election petition in which a preliminary issue was framed to the effect whether returned candidate was disqualified on the day of nomination to be member of the Union Council for special seat. The onus probandi was placed on the plaintiff. The election Tribunal recorded the findings that in so far as respondent No. 2, Sardar Khan, election petitioner was concerned, he was proved to be not a Peasant by virtue of the copy of Jamabandi as he was owner of more than 8i: Kanals of land whereas the law provided that a person should not be owner of more than 40 Kanals during the period of five years preceding the year in which the election is held. In so far as present petitioner, returned candidate, Muhammad Fazil was concerned, he came to the conclusion that he was not a peasant as there was not an iota of evidence to prove his personal cultivation. It was concluded that he was neither a landless tenant nor was owner of five acres of land or less during the period of five years preceding the year in which election was held.

4. Now coming to the matter of relief, the Election Tribunal declared the election to the special interest seat as a whole void as both the candidates were not qualified to become members of the Union Council. However, in the next breath, he partially allowed the petition and declared the election of returned candidate as void and further dis?allowed the prayer of the election petitioner for declaring him as an elected candidate.

5. The learned counsel appearing in support of this writ petition has argued that the order sheet on the record of Election Tribunal shows that no opportunity was provided to the petitioner to substantiate his pleas try recording of evidence to show that he was indeed cultivating the land of his 90 years old father who on account of infirmity was incapacitated to carry out self-cultivation. It is further submitted that the issue as framed was laconic. Instead of framing the issue in terms whether the returned candidate was qualified on the day of nomination to be member of the Union Council, disqualification was passed into service. According to the learned counsel, the qualification 'or dis?qualification have a technical connotation under the Election Laws and since the onus was on the election petitioner, therefore, the returned candidate whose writ petition was seriously prejudiced in the matter.

6. On behalf of respondent No. 2, Qazi M. Salim, Advocate, concedes that there has been no fair trial of the petitioner and that the case may be remanded to the Election Tribunal for giving to the petitioner an opportunity to lead evidence to substantiate his pleas.

7. We find that apart from the concession made, the order passed by the Election Tribunal is in violation of the Election Petitions Rules. Reference may be made to rule 15 of the Election Petitions Rules which reads as under:-- "

15. Ground for declaring election as a whole void.--The Tribunal shall declare the election as a whole to be void if it is satisfied that the r3sult of the election has been materially affected by reasons of-- (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 at the election. A perusal of the order of Election Tribunal clearly shows that none of the two grounds which are relevant for the purpose of declaring the election as a whole void are found to exist. The declaration, therefore, granted by the Election Tribunal suffers from serious legal infirmity and falls outside the scope of law. Moreover, a perusal of rule 13(2) shows that election of a returned candidate shall not be declared void on the ground that any of the other contesting candidates was, on the nomination day, not qualified for or was disqualified from being elected as a member. Contrary to the letter and spirit of law, the Election Tribunal has declared the election of returned candidate to be void on the ground that the contesting candidate i.e. Muhammad Fazil was disqualified from being elected as a member. There has thus been infraction of the said mandate of the rules and the declaration granted by the Election Tribunal, therefore, would be void as the ground which has been pressed into service was not available to him. 8.???????? We also find substance in the contention of the petitioner that no opportunity was afforded to him to substantiate his plea of being a peasant on the ground of his being a landless tenant who was cultivating the land of his father. It is true that entries in Khasra Girdawaris are relevant piece of evidence, but they have never been treated to be conclusive and it is always open to the parties to prove the fact of cultivation on the basis of other evidence, if properly adduced before a forum which is required to decide the question on the basis of quality of evidence produced. In these circumstances, we would accept this writ petition, set aside the impugned order and remand the case to Election Tribunal for re-decision after proper framing of the issues and giving to the parties proper opportunity to lead evidence orai as well as documentary. In view of the fact that respondent has conceded the writ petition, there shall be no order as to costs. H . B . T .???????? Writ accepted.