1986 PLP 675 (MLD)

MUHAMMAD MUNIR KHAN, J.‑‑This is a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan whereby Muhammad Shaft, petitioner, wants this Court to declare the judgment, dated 29‑11‑1979 passed by the Election Tribunal Muzaffargarh, respondent No.1, to be without lawful authority and of no legal effect.

2. The facts leading up to this petition in brief are that Muhammad Shafi, petitioner, Asmatullah, Muhammad Yousuf and Bashir Ahmad, respondents contested the election for the seat electoral Unit 163, Leiah. Asmatullah, respondent No.3 was declared as elected. The petitioner filed Election Petition before the Deputy Commissioner/ Election Tribunal, Muzaffargarh who dismissed it on 29‑7‑1979. Hence this petition.

3. Learned counsel for the petitioner submits that although specific and clear allegations of corrupt practice were levelled against respondent No.3 and Presiding Officer, respondent No.2 yet the learned Tribunal has dismissed the application without framing the issues and giving the petitioner an opportunity to substantiate the allegations.

4. As against 'this the learned counsel for the private respondents have defended the judgment of the Election Tribunal, respondent No.1 on the ground that tinder Rule 9 of the Election Petitions Rules, 1979, the Tribunal was competent to dismiss the petition even without issues and evidence if it was satisfied that the allegations were vague and did not disclose commission of any corrupt practice, material irregularity or the illegal act.

5. We have considered the arguments advanced by the learned counsel for the parties with care. We find that in para.2 of the petition it was stated by Muhammad Shafi, petitioner that:‑‑ To our mind these allegations do amount to a corrupt practice and under Rules 13 (c) (d) and Rule 15(a) and (b) are good grounds for declaring the election as whole void or for declaring the election of the returned candidates void. To our' mind if the allegations contained in the petition election are accepted true the same do not suffer from any infirmity envisaged by Rule 9 of the Election Petitions Rules, 1979 and as such respondent No.1, Deputy Commissioner Election Tribunal should have followed Rule a Of Rules 1979 which reads as follows:"

8. Procedure before Tribunal:‑‑ (1) Subject to the previsions of the Ordinance, Election Rules and these Rules every election petition shall be tried, as nearly as may be in accordance with the procedure for the trial of suit under the Code of Civil Procedure, 1908".

6. Since the learned Deputy Commissioner/ Election Tribunal has not framed the issues and have not allowed the petitioner to substantiate the allegations of corrupt practice we are inclined to accept this petition and declare that the impugned order being arbitrary and having flouted the relevant rules, has been passed with lawful authority.

7. Resultantly, the impugned order is set aside, the case is sent back to the Deputy Commissioner/Election Tribunal, respondent No‑1 to proceed with and decide the case in accordance with law. The parties are, however, left to bear their own costs. H.B.T. Writ issued.