P L D 1968 Karachi 397 (PLP)

NAZEER AHMAD MAAMOOD, J.‑This is a petition under Article 98 of the Constitution of the Islamic Republic of Pakistan wherein the order dated 11‑1‑1966 of Mr. Izhar‑ul‑Haq, C. S. P., Deputy Commissioner and Election Tribunal Sukkur, dismissing the election petition of the Petitioner, has been called into question as being without lawful authority and as being of no legal effect. The impugned order arose in the following circumstances.

2. The Petitioner Muhammad Yamin, contested the election to electoral college from Unit No. 409, Garibabad with three other candidates, namely, Muhammad Yusuf respondent No. 4,. Jamshed Husain and Abdul Latif. Muhammad Yusuf respon dent No. 4 was declared successful as having secured 273 votes as against 79 votes of Muhammad Yamin petitioner, 81 of Jamshed Husain and 30 of ' Abdul Latif. The petitioner by an election petition challenged the success of Muhammad Yusuf before the Election Tribunal. From the order of the Election Tribunal it transpires that the following main contentions were raised by the Petitioner before the Tribunal. (1) The number of total votes polled was 463 while the total, number of voters was only 449. (2) That the polling was stopped at 12‑00 noon. (3) That the vote of one dead woman and the votes of" three Government servants who were away on duty were cast. (by impersonation). (4) That the votes cast in favour of the petitioner have continuous serial numbers which have given rise to suspicion of bogus voting. As regards the contention No. 1 the learned Tribunal held that' according to the voters' list which the Tribunal had seen the total number of votes was 463 but 6 votes had been erased although this erasure did not bear any signature. This point was further disposed of by the Tribunal in the following words: "In any case even if it be admitted that these six votes were bogus and were cast in favour of Respondent No. 3 (Respondent No. 4 in the present petition) it does not materially affect the result because the Respondent No. 3 (Respondent No. 4 in the present petition) bad got 273 votes while the petitioner had got only 79 votes. As regards the second point the Tribunal contented itself with referring to the statement of the Presiding Officer that the polling had stopped at 3‑00 p.m. As regards the third point the learned Tribunal observed that the petitioner had not done anything beyond filing an affidavit and had not produced the actual voters and further observed that even if it be admitted that these four bogus votes were cast in favour of the Respondent No. 3 (Respondent No. 4 in. the present petition) it did not materially affect the result and as regards point No. 4, the Tribunal observed that there were no serial numbers on the ballot papers and in view of the above findings the Tribunal dismissed the petition with costs of Rs. 100.

3. When this Petition came up in kutcha peshi before the Division Bench comprising Mr. Justice Qadeeruddin Ahmad and Mr. Justice Nurul Arfin on 16th of February 1966, the learned Judges directed respondent. No. 1, the Election Tribunal to submit a report containing parawise comments on the present Petition and in particular on the allegations contained in the affidavit of the petitioner produced on that day to the effect that the observation of the Election Tribunal that the Presiding Officer had stated that the polling was stopped at 3‑OOa.m., was neither based on any state ment on oath of the Presiding Officer nor was an opportunity given to the petitioner or his counsel or the counsel of other contestants to cross‑examine the Presiding Officer; nor were the document and record put by the Election Tribunal to the Presiding Officer for clarification. The other documents referred to in the affidavit, it transpires from the above‑mentioned order of the learned Judges, according to the counsel are the applications made to the Presiding Officer containing the allegation that the polling bad been stopped at 12‑00 noon. Photostat copies of two such appli cations have been produced on record. They contain remarks alleged to be made in the handwriting of Presiding Officer himself in which he has not denied the allegation that the polling had been stopped at 12 O'clock. When this matter again came up before that Division Bench, on 24‑3‑66 the report of the Election; Tribunal had been received. This report was accompanied by Annexure 'C', which according to the learned Judges was, "apparently the report of the Presiding Officer which was sub mitted to the Election Tribunal". The learned Judges thereupon observed as follows:‑

"The main reason for calling a report was to find out as to whether evidence of the Presiding Officer was recorded by the Tribunal or not so that the objection that the Petitioner was not given an opportunity to cross‑examine him be ascertained. The position taken by respondent No. 1 is that the nature of the enquiry in election petitions is summary. He means apparently to say that owing to this nature it was not necessary for him to cross‑examine the Presiding Officer as a witness but that he could act on his report without giving an opportunity to the present petitioner to cross‑examine him. This is a stand which needs further examination. Moreover, the statement contained in the report of the Presiding Officer to the Election Tribunal as well as the answer to Paragraph 7 of the Petition given by Respondent No. 1 make it necessary that further investigation should be made as to whether the election continued up to 3‑00 O'clock or not." On this day Muhammad Yamin Petitioner's petition was admitted by the learned Judges and notice was issued to the respondents, and Respondents Nos. 1 and 2, namely, the Election Tribunal and Returning Officer were directed to produce the original record at the time of the hearing of this petition.

4. We have examined the record produced pursuant to the above‑mentioned order. The statement Annexure `C' of the Presiding Officer, copy whereof is significantly undated does not figure anywhere in the record of the proceedings of the Election Tribunal produced before us. It would seem that the statement Annexure 'C' of the Presiding Officer was, for the first time, submitted to the Deputy Commissioner, Sukkur (the Election Tribunal) after a report had been requisitioned from Respondent No. 1 by the learned Judges of this Court and that 'apparently is the reason why no specific reference was made by the Election Tribunal to this written statement of the Presiding Officer, Mr. Qamar Ansari in its impugned order. The reference in the impugned order apparently is to some oral statement made by the Presiding Officer to the Election Tribunal. There is nothing on this record to indicate that the Presiding Officer was called upon to furnish a written statement or an affidavit or the petitioner or his counsel or the counsel of his contestants were afforded any opportunity to cross‑examine the Presiding Officer. It appears to us that the Election Tribunal had proceeded to the decision of the Election Petition in a most capricious and arbitrary manner. It did not conduct even the semblance of an inquiry or a summary inquiry. In view of the fact that the petitioner had furnished affidavits in support of his allegations on different points, it was necessary that the Presiding Officer should at leas be called upon to make a statement on oath before the Tribunal or at least furnish an affidavit. When an allegation was being made supported by an affidavit to the effect that the polling was closed by the Presiding Officer at 12 O'clock an was accompanied by photostat copies of applications bearing endorsements in the handwriting of the Presiding Officer to the effect that the allegations made in the applications would be verified, surely, if the Election Tribunal was holding an inquiry even of a summary nature the photostat copies of the application did require being put to the Presiding Officer. We find from the record produced at the instance of respondent No. 1 before us that photostat copies of the original applications bearing the aforesaid endorsements purporting to be in the handwriting of the Presiding Officer are in the record. Furthermore, it is signi ficant that in the copy of the written statement (Annexure C) which, as already remarked by us, has evidently been submitted by the Presiding Officer to the Election Tribunal after a report had been requisitioned from Respondent No. I, by the High Court the Presiding Officer's position is not this that he con tinued the poll till 3 O'clock. On the other hand his position therein is that he `started the counting of votes after 1‑00 p.m. on 9‑11‑1964 when all the votes had been cast and no voter was left at the polling station'. He does not say that the counting of the votes took place after 3‑00 p.m., which means that the Presiding Officer's position was that the polling had concluded by 1‑00 p.m. If indeed the written statement (Annexure `C') had been made to the Election Tribunal in connection with the election petition proceedings the Tribunal could not have in its order referred to the Presiding Officer as stating that the polling had stopped at 3‑00 p.m. We refuse to believe that if indeed the allegation made in the application (Annexure 'C') of Lutuf Ali the agent of Jamshed Hussain candidate, inter alia to the effect that the Presiding Officer was having the counting of the votes done at 12 O'clock were wrong, the Presiding Officer would have made the endorsement "complaint of Lutuf Ali Agent of Jamshed will be verified" He could have straightaway made an endorsement to the effect that the allegation was wrong. The above‑mentioned application of Lutuf Ali agent of Jamshed Hussain, among other things, mentions that the reckless irregu larities of the Presiding Officer had been reported to the authorities by telegrams. The record produce before us shows that such telegrams were received by the different authorities to whom they were addressed The copies of the telegrams filed by the petitioner along with his petition correspond with the copies of telegrams contained in the record produced before us. We do not think that we are called upon to record a finding to the effect that the polling in this case was concluded as' alleged by the petitioner at 12 O'clock but we do feel satisfied that such an allegation made by the petitioner supported, as it was, by affidavits and above‑mentioned documents did under law require being enquired into and we feel constrained to observe that no such inquiry was made by the Election Tribunal.

5. We feel that another circumstance, emerging from our examination of the record, had rendered the conduct of the election as of no value. It appears to us to be quite patent. from the record, despite comments of the Election Tribunal in it report to the contrary, that although the voting strength of the unit was 449, actually 463 votes were declared as having been polled. Excess of.14 votes as against 449 registered votes of the unit appear to us to be symptomatic of an entire disregard of all law and rules governing the conduct of elections. This circumstance cannot be disposed of summarily, as has been done by the Election Tribunal with the remark that even if the excess votes were counted in favour of the petitioner, the result' of the election could not be materially affected because the candi date who had been declared successful had obtained 273' votes against 79 of the petitioner. When as a result of the conduct of the election on such an extraordinary phenomenon as that of 14 votes being polled in excess of the entire voting strength of the unit, takes place it cannot be said with any amount of certainty that the extent of the irregularity in the conduct of the election was confined only to 14 votes: The circumstance, in our opinion, indicates that the election was conducted in a most reckless and wanton manner so as to admit of the produc tion of such an extraordinary phenomenon. In the present case there were 14 excess votes. Even if there were one excess vote, in our opinion, it would have imported such an uncertainty as regards the genuineness of the election proceedings that we would have felt that the result of the election was materially affected. The learned Election Tribunal in its report has explained that actually the voting strength of the unit was 463 votes' and all the 463 votes had been cast and that the photostat copies of the voting list produced by the petitioner showed that 6 votes of females and 14 votes of the males were scored off but the scoring was not attested by the Registration Officer. Hence this scoring was unauthenticated. He has in this connection also referred to Annexure 'A' `of his report which purports to be a letter from the Chairman, Municipal Committee, Sukkur dated 18‑2‑1966 which is to the effect that no objection application of Muhammad Yamin was filed with the Registration Officer Ward No. 506, Sukkur regarding the cancellation of 14 votes in the preliminary list. The reference to the letter of Chairman, Municipal Committee is presumably made in reply to the allegation of the petitioner in his petition that when preliminary list of voters was published the petitioner objected to the presence of 14 names in the list and after due inquiry these names were scored off from the list and that the total number of votes for Unit No. 409 was 449 of which 283 were males and 66 females. It is significant however. that the letter of the Chairman, Municipal Committee, Sukkur relates to Registration Officer, Ward No.

506. There is nothing on the record to show that Registration of voters of Unit No. 409 was the concern of Registration, Officer Ward No.

506. Furthermore, the self‑same Chairman, Municipal Committee in para. 2 of his letter (copy Annexure 'A'? has stated that the information pertaining to Paras. 2, 3, 4, 5, 6 and 7 could be had from the City Magistrate and the then Returning Officer, 5ukkur. And the Returning Officer, Sukkur has clearly admitted in his written statement that the final electoral list supplied to the Presiding Officer contained only 449 names whereas the ballot papers cast were 463, viz. 14 in excess. Apart from that, in the report regarding the results of the elections,, attested copy whereof is one of the documents produced before us at the instance of Respondent No. 1, as regards Unit No. 409, the voters' strength is mentioned by the Returning Officer as 449, and the votes cast are shown as. 463‑Furthermore, from this very record it transpires that by letter dated 16‑2‑1965 Mr. Barj6es Qadir, Returning Officer (Respondent) sent information on Proforma A to the Deputy Commissioner, Sukkur showing in Part B of the Proforma that in the' Electoral Unit No. 409 number of voters were 449 and number of votes cast wits 463 and percentage of votes cast was the extraordinary percentage of 103 per cent. with such material before the Election Tribunal can it be said that there was any basis whatever for the Election Tribunal for making the following observations in the impugned order: "As regards the first point (that the number of total votes polled was 463 while the total number of voters was 449) I have seen the list. According to this list the total number of votes is 463 but 6 votes have been erased although this erasure does not bear any signatures. In any case even if it be admitted that these 6 votes were bogus and were cast in favour of the respondent No. 3, it does not materially affect the result because the respondent No. 3 had got 273 votes while .the petitioner had got only 79 votes." Or can it be said that in the face of above‑mentioned material, the Election Tribunal could legitimately make the comment in his report sent up pursuant to the order of the High Court. "The difference is due to the fact that 8 votes of male and 6 votes of female are scored off as is evident from the photostat copies produced by the petitioner but the scoring is not attested by the Registration Officer, hence unauthenticated. Moreover: the Regis tration Officer is reported not to have received any objection petition from the petitioner for exclusion of the 14 voters." In view of the fact that the Presiding Officer was neither examined on oath by the Election Tribunal nor an opportunity given to the Petitioner or his counsel or counsel of any of the contes tants to cross‑examine the Presiding Officer; nor were the documents produced by the Petitioner on record put by the Election Tribunal to the Presiding. Officer for classification, we are of opinion that the Election Tribunal conducted no inquiry worth the name before he dismissed the election petition of the Petitioner. This is no 'determination' of 'election dispute' envisaged in Article 171 of the constitution. For 'determination of a dispute' presupposes a proper application of mind to the material before a Tribunal and a proper hearing whether summary or otherwise before the decision is given. We do not think therefore, that we cannot pronounce upon the validity of the impugned order made by the Election Tribunal.

6. Learned counsel for the respondents has contended that the Supreme Court in Jamal Shah v. Election Commission (PLD1965SC1) had held that Article 171 of the Constitution debarred the High Courts in the exercise of heir jurisdiction under Article 98 of the Constitution from declaring the orders of Election Tribunals as without lawful authority or as being of no legal effect. It is significant that in that very judgment three of the Judges of the Supreme Court, that is to say, the majority of the Judges expressed in different ways the view that the orders of Election Tribunals were not altogether sacrosanct and in the exercise of their jurisdiction under Article 93 of the Constitution the High Courts, under certain circumstances could scrutinize theta. Mr. Justice S. A. Rahman while concurring in the decision of the appeal of Jamal Shah appellant made the following observations:‑-- "If in a particular case, it is found either that an authority functioning under section 53 of the National and Provincial Assemblies Act, 1964 or an Election Tribunal appointed under that Act has either failed to exercise jurisdiction vested in it or clearly exceeded that jurisdiction or if the order in question is found to be tainted with male fides, the, aggrieved party may be entitled to invoke the provisions of Article 98 of the Constitution to obtain appropriate relief, of course within the limited scope of the power given by that Article in view of the exclusive jurisdiction of the authorities concerned. In such an eventuality the impugned order could not be said to fall within the four corners of the exclusive law and would not therefore be immune from challenge, if it is brought up for examination by the High Court at the appro priate stage." Mr. Justice Fazle‑Akbar also appended his additional observation to the judgment in the following words: "I would only add that ordinarily the Court in exercise of its writ jurisdiction would decline to interfere in cases of Election. It, however, cannot be said that the writ jurisdiction of the Court cannot be at all attracted in such cases. As pointed out by this Court in the case Imtiaz Ahmad v. Ghulam Ali and others, actions of the Election Authorities can always be called in question if they are characterised as being done mala fide or in bad faith." Mr. Justice B. Z. Kaikaus also in the course of a lengthy note delivered himself, inter alia, of the following obser vations:‑

"While I would not be prepared to accept that the High Court has jurisdiction under Article 98 to correct‑all errors of law relating to the merits of a dispute before a Tribunal, I should not be understood as holding that a failure on the part of the Tribunal to properly apply its mind to a question of law arising before it is beyond the scope of Article

98. There may be error apparent on the face of the record which may be due to an oversight; or the tribunal may not have properly applied its mind to an aspect of the matter before it. There is a duty cast on every judicial tribunal to properly apply its mind to questions of fact and of law. If there be any failure in the proper application of the mind the High Court can always quash the order and direct that the case be decided afresh in accordance with law." ' But apart from the fact that the majority of the Judges of the Supreme Court in the judgment delivered in Jamal Shah's case had held that the orders of the Election Tribunals were not in all circumstances immune from scrutiny by the High Court in the exercise of its jurisdiction under Article 98 of the Constitution, in a later judgment Akbar Ali v. Raziur Rehman and others (P L D 1966 S C 492) Supreme Court has referring to the judgment in Jamal Shah's case clarified that the decision in Jamal Shah's case is not to the effect that an untenable interpretation of law by the Commission which may amount to excess of jurisdiction or failure to exercise jurisdiction is not susceptible of interference by the High Court. This appeal before the Supreme Court had arisen from the circumstance that the High Court in the exercise of its jurisdic tion under Article 98 of the Constitution had set aside the order of the Presiding Officer excluding from count 11 votes of the respondent, and also the order of the Tribunal dismissing the election petition preferred from that order, as without lawful Authority. Akbar Ali appellant before the Supreme Court had contested the election to the electoral college with Raziur Rehman respondent and at the close of the poll when the Presiding Officer opened the respective boxers of the rival candi dates he found that the appellant had secured 326 votes, and the respondent had secured 330 votes. Thereafter, he excluded from the count 6 ballot papers of the appellant and 12 ballot papers of the respondent as invalid and in the result declared the appellant as duly elected. One of the ballot papers of the respondent was excluded on the ground that it did not bear the official mark anti initials of the Presiding Officer as required by section 40 of the Electoral College Act, 1964 and out of the remaining 11 ballot papers he excluded 5 ballot papers of the respondent‑for the reason that they did not bear the initials of the Presiding Officer and 6 on the ground that they were spoilt within the purview of section 43 of the Act. The res pondent filed an election petition against the order of the Presiding Officer declaring the appellant as successful but his election petition was dismissed. The respondent then made a petition under Article 98 of the Constitution to the High Court against the order of the Election Tribunal and the High Court, West Pakistan, Lahore Bench after examining the disputed ballot papers and referring to the relevant provisions of the Electoral College Act, concluded that the Presiding Officer could under section 45 (1) reject only those ballot papers which did not bear the official mark and that since the 5 of the 6 disputed ballot papers did bear that mark, the Presiding Officer had in excluding them from the count acted without lawful authority, with regard to the 6 ballot papers which were cancelled by the Presiding Officer, the learned Judges sent for them and found that they did not bear any other mark disfiguring them or otherwise making it possible to identify the voters who had cast those ballot papers. The High Court held that the grounds on which these ballot papers had been excluded from count were entirely imaginary. The learned Judges of the High Court expressed the view that "when on the preliminary count it was found that the Petitioner had secured a majority of votes polled, respondent No. 3 in his wantonness cancelled Petitioner's 6 ballot papers to ensure majority for respondent No. 1". For these reasons the writ petition of the respondent was accepted and the impugned orders of the Presiding Officer and the Tribunal set aside and the Election Tribunal, the Presiding Officer and the Returning Officer who had been made respondents Nos. 2, 3 and 4 respectively in the Writ Petition of the Respondent were further directed by the High Court to declare the petitioner to be duly elected to the Electoral College of Pakistan from the electoral unit in question. On appeal by Akbar Ali appellant, the Supreme Court upheld the orders of the High Court and dismissed Akbar Ali's appeal. In the course of the above‑mentioned judgment Akbar Ale v. Razi‑ur'‑Rehman and others, the Supreme Court noticed the conduct of the inquiry by the Election Tribunal in the following words: "It is surprising that although the Presiding Officer put in appearance, he neither filed a written statement nor a counter‑affidavit traversing the aforesaid allega tions made against him." Identical is the position in the present case, although allegations of serious nature were made against the Presiding Officer as regards his wantonness in conducting the election supported by affidavits and other documents, the Presiding Officer although he put in appearance, neither filed a written statement nor a counter‑affidavit controverting the allegations made against him. The Supreme Court after holding that the Presiding Officer had acted wantonly in cancelling 6 ballot papers of the respondent which were free from any defect to attract the application of section 43 of the Electoral College Act, further observed: "The reasoning by the Tribunal that the ballot papers hall been cancelled before they were cast was not only a convenient surmise but fully belied by intrinsic evidence found in the fact that if they had been cancelled, they would have been returned to the Presiding Officer and not allowed to remain in custody of the voters and that an entry to that effect would have been made in form XIV against item 6 (A). If any election authority or Tribunal acts in this fashion whether under the National and Provincial Assemblies' Act or the Electoral College Act the decision in Mian Jamal Shah's'cafe would not be an authority for the view that their decisions are sacrosanct and may not be called in question in the High Court."

7. It appears to us that the observations made in the above judgment of the Supreme Court are applicable to the conduct of the election by the Presiding Officer and the manner the election petition of the Petitioner was disposed of by the Election Tribunal. The Presiding Officer appears to us to have conducted the election proceedings in a wanton and reckless manner and the Election Tribunal does not seem to us to have 'determined' the election dispute in the manner contemplated by law and the relevant rules. The Election Tribunal appears to us to have disposed of the election petition regardless of the elementary requirements of an inquiry.

8. In the above view of the matter we accept this petition and setting aside the order of the Presiding Officer respondent No. 3 declaring Muhammad Yusuf respondent as elected and the order dated 11‑1‑1966 of the Election Tribunal, Sukkur as being without lawful authority and of no legal effect, we direct the respondent Nos. 1 to 3 to hold re‑election to the electoral college from Unit No.

409. In the circumstances of the case we make no order as to costs. K.B.A. Petition accepted.