P L D 1966 (W (PLP)

"(1) Every contesting candidate shall bring his own ballot box which shall be of such material and design as may be specified by the Commissioner. (2) At least three days before the poll, every candidate shall produce his ballot box for inspection by the Returning Officer who shall, if he is satisfied that the ballot box is of the required specification, paste thereon a slip containing his initials and the date of inspection and return it to the candidate for delivery to the Presiding Officer at least one hour before the commencement of the poll. (3) A candidate who fails to produce his ballot box to the Returning Officer for inspection shall be deemed to have retired under section 26." Non‑compliance of section 36 of the Electoral College Act, amounts to retirement under section 26 of the same Act. Counsel for the petitioner, however, urges that no action was taken against the petitioner under section 26 of the Act by the Presiding Officer. If a candidate is deemed to have retired from election under section 36 (3) of the Electoral College Act, then the returning Officer is to notify such retirement, but in this case the retirement of the petitioner was not notified. We do note find ourselves in agreement with the contention of the learned counsel for the petitioner, because under section 36 sub‑section (3), there is no corresponding obligation imposed on the authorities concerned to notify the retirement under subsection (3) of section 36.

5. The learned counsel next urged that the petitioner was not afforded an opportunity of being heard in the matter nor he was given an opportunity to adduce evidence. The evidence, i.e., the statement of the Presiding Officer, on which the Tribunal has relied was not recorded and the petitioner was not given an opportunity to cross‑examine him (the Presiding Officer). The learned counsel referred to section 60 of the Electoral College Act, 1964, relating to the mode and method of the trial of the election petition, which lays down as under:‑-- "(1) A tribunal shall, upon receipt of an election petition, give notice thereof to all the contesting candidates at the election to which the petition relates. (2) Subject to any rules made in this behalf, the Tribunal shall, after giving the contesting candidates an opportunity of being heard and taking such evidence as may be produced before it, make such orders as it may think fit. (3) The decision of the Tribunal on an election petition shall be final."

6. The learned counsel contends that in view of section 60, subsection (2), mentioned above, the Election Tribunal was bound to record evidence and to give an opportunity to the party to be heard. The learned counsel, however, frankly conceded that the petitioner had neither made an application, in writing, nor had orally requested the Tribunal for examining the witnesses and thus the objection that the petitioner was afforded no opportunity to adduce evidence cannot be maintained. The second part of this objection that neither the Presiding Officer was examined by the Tribunal, nor the petitioner was given an opportunity to cross‑examine him (the Presiding Officer), is not tenable, because no witness was examined by the Tribunal, and so the question of cross‑examination does not arise.

7. Under section 36 of the Electoral College Act, duty is cast upon the candidate to bring his own ballot box, as may be specified by the Commissioner three days before the Poll and produce it for inspection by the Returning Officer, who when satisfied that the box is of the required specification, paste thereon a slip containing his initials and the date of inspection and return it to the candidate for delivery to the Presiding Officer, before the commencement of the poll. Subsection (3) of section 361 is mandatory and not directory because of the Penal clause, attached to it. The learned counsel contends that the Tribunal did not say in the impugned order that the result of the election was materially affected on account of the violation of section 36 of the Electoral College Act. In support of his contention, he referred to the Presidential Election (Second Amendment) Ordinance (Electoral College Rules, 1964) dated 16th December 1964, published in P L D 1965 (April) page 101 which is as under:‑ "S. R. O. 125 (R)‑In exercise of the powers conferred by section 86 of the Electoral College Act, 1964 (IV of 1964), the Central Government, after consultation with the Chief Election Commissioner, is pleased to make the following amendment in the Electoral College Rules, 1964, namely:‑ In the aforesaid Rules, in rule 36, after sub‑rule (1), the following new sub‑rule shall be inserted, namely:‑ "(1‑A) The Tribunal shall declare the election of the returned candidate or the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with, or the contravention of, any provision of the Act or these rules." Relying upon the above‑mentioned amendment, the learned counsel urged that the Election Tribunal could set aside the election only on the ground that the result had been materially affected, which was a condition precedent. He urged that the jurisdiction of the Tribunal was conditional, because it had to satisfy itself that the result of the election had been materially affected by non‑compliance of section 36 of the Electoral College Act, 1964, but this finding was not recorded by the Tribunal, and thus the condition was not complied with, and so it is a case of absence of jurisdiction. He referred to 1kram Bus Service and others v. Board of Revenue, West Pakistan, The Regional Transport Authority, Peshawar Region and Ittehad Transport Service Co. Ltd. (P L D 1963 S C 564). At page 567, last paragraph, it was observed as under:‑

"Under the scheme of the Motor Vehicles Act the filing of an application is a condition precedent to the vesting of jurisdiction in the Transport Authority to grant or refuse a stage‑carriage permit. Until such an application has been received under section 46 of the Act, the Regional Transport Authority does not acquire any jurisdiction to grant or to refuse a stage‑carriage permit. In the absence of any such application, therefore, it cannot be said that the Transport Authority acted within its jurisdiction, in the present case, by granting a permit to a non‑existing person who could not even have filed such an application. Its decision, therefore, was clearly within the rule laid down in the case of Tariq Transport Company, a decision made with a total absence of jurisdiction." In another case reported as Abdul Sattar and another v. Mst. Hamida Bibi (P L D 1950 Lah.370), at page 383 their Lordships observed as under :‑ "Every tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction, and where the jurisdiction of such tribunal is dependent upon the existence of certain facts or circumstances, it is its obvious duty to see that those facts and circumstances exist to invest it with jurisdiction. And where a tribunal derives its jurisdiction from the statute that creates it, and that statute also defines the conditions under which that tribunal can function, it goes without saying that before that tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen." The authorities relied upon by the learned counsel are not applicable. In the first cited case reported in P L D 1963 S C page 564, the form of application under the Scheme of Motor Vehicles Act was a condition precedent to the vesting of jurisdic tion in the Transport Authority to grant or refuse a stage- carriage permit. The second case reported in P L D 1950 Lah. 370, relates to acquisition of land under the Land Acquisition Act, and thus the Court functioning under the Act being a tribunal, had special jurisdiction and it was their duty that the reference was under the rules by the authorities competent to make the reference and that the reference related to the matter which could be referred to it under the Act. In the instant case, the tribunal had jurisdiction to decide the matter and to find out certain matters, namely, as to whether the ballot box was of the material and design, as specified by the Commissioner, that it was produced three days before the Poll by the candidate for inspection by the Presiding Officer and that the latter after satisfying himself that the ballot box was of the required specification, had pasted thereon a slip containing his initials and was delivered to the Presiding Officer at least one hour before the commencement of the Poll. These facts taken into considera tion, would show that the Tribunal had the jurisdiction to enquire into the matter, and thus the jurisdiction of the Tribunal was not conditional, depending upon a condition precedent.

8. Learned counsel for the respondent urged that it is the satisfaction of the Election Tribunal which is the sine qua non of setting aside the election. In support of this contention he relied upon Muqadar v. Mutabar and others (P L D 1965 Pesh. 229) their Lordships observed as under:‑

"It is the satisfaction of the Election Tribunal which is the sine qua non for setting aside the election. The Tribunal after recording the evidence felt satisfied that the result of the election was materially affected by the casting of five double votes . . . . .".

9. It is true that the Election Tribunal has not recorded the finding "that the result of the election has been materially affected by reason of non‑compliance of section 36 of the Electoral College Act, 1964," but the omission of these words does not show that it is a case of absence of jurisdiction. It is the satisfaction of the Election Tribunal, which is the sine qua non for setting aside the election, and if the Tribunal was satisfied that non‑compliance of provision of a particular section had affected the result of the election, the mere absence of the words quoted above, does not show that it is a case of absence of jurisdiction, because from the order of the Tribunal it is obvious that he was satisfied that the result of the election had been materially affected. Learned counsel referred to Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore, The Returning Officer, Constituency of the National Assembly of Pakistan No. NW‑H, Peshawar II and Khan Nasrullah Khan (PLD 1966SC1) that the High Court shall not interfere unless it is found that the Election Tribunal had either failed to exercise jurisdiction vested in it, or exceeded its jurisdiction, or if the order is attended with illegality or irregularity. It has not been established that the case falls under the above mentioned three exceptions, and therefore, Article 98 of the Constitution is not attracted. We, therefore, find no substance in this Petition and dismiss it with costs. S. Q. Petition dismissed.