P L D 1969 Karachi 662 (PLP)

(a) National and Provincial Assemblies (Elections) Act (VII of 1904), S. 72(2) read with S. 2(3)‑Defeated candidate securing next highest number of votes‑‑Not entitled, as of right, to be declared successful upon successful canlidate's being unseated by Election Tribunal ‑ Such declaration subject to satisfaction of Tribunal‑Tribunal can declare any "contesting candidate" elected without giving preference to defeated candidate securing highest number of votes, if it finds him so entitled. Hobbs v. Morey (1904) 1 K: B 74; Pritchard v. Mayor etc. of Bangor (1888) 13 A C 241; Sahih Mia Chowdhury v. S. M. Mir, Election Tribunal, Chittagong and others P L D 1966 Dacca 439; Stnaullah v. Election Tribunal, Gujrat P L D 1966 Lah. 97; Vashist Narain Sherma v. Dev. Chandra and others A I R 1954 S C 513; Jagdish Chandra Josh! v. Parkash Yarain 4 E L R 2115; Amanullah and another v. Election Tribunal, Gujranwala P L D 1961 Lath. 907; Sanaullah v. Election Tribunal, Gujr.zt 1' L D 1956 L'th. 97 dad Shafnsul Hasnain v. Mir Ghulam All P L D 1953 Kar. 588 rel. (b) Penal Code (XLV of 1860), S. 463 and Contract Act (IX of 1872), S. 17‑Forgery‑Fraud ‑ Essential ingredient ‑ Bad intention‑Mere interpolation, authorised or unauthorised‑‑No proof of forgery or fraud ‑ No fraud or forgery without bad intention. (c) Civil Procedure Code (V of 1908), O. VI, rr. 4 & 17 Pleadings‑Forgery, plea of Cannot betaken into consideration unless its particulars set out‑Words and phrases‑"Shall". Forgery is a plea which, like fraud and misrepresentation, cannot be taken into consideration unless its particulars are set out. The reason is that in civil law forgery is a category of fraud and is a graver charge than misrepresentation; therefore, it is a rule of commonsense and fairplay that the charge of forgery should not be allowed to be levelled against anybody unless precise information is supplied to the person against whom it is levelled, in order to enable him to understand with reasonable accuracy those facts which are intended to be proved against him. Precision demands this, and this is uniformly recognised to be a general principle of the law of pleadings. The word "shall" in Order VI, rule 4, C. P. C. should be noted. Since the object of the rule is precision, it follows from it that if the particulars which are supplied are not proved, then a different set cannot be allowed to be proved nor taken into consideration, unless the pleadings are allowed to be amended as contemplated by Order VI, rule 17, C. P. C. and a fresh chance of defence is granted. Abdool Hoosein Zenail Abadin v. Charles Agnew (1887) 14 I A 111 ; Gunga Narain Gupta v. Tiluckram Chowdhry (1888) 15 I A 119; Purushottam Daji Mandlik v. Paundurang Chintaman Diwalkar I L R 39 Bom. 149 ; Ullah & Sons v. Rawalpindi Club Ltd. A I R 1935 Lah. 222 and Dr. Indramani Pyarelal Gupta v. W. R. Natu A I R 1956 Bom. 518 rel. (d) Civil Procedure Code (V of 1908), O. VI, r. 2‑Pleadings Incomplete plea‑More objectionable than imprecise plea‑May be fatal to cause of action‑Such plea cannot be made whole by leading evidence of its missing parts. Brook v. Adam Press Ltd. (1936) 1 K B 712 ; Siddik Mahomed Shah v. Mst. Saran and others A I R 1930 P C 57 (1); Adusumilli Gopalakrishnayya Garu v. Province of Madras P L D 1947 P C 180 and Sir Gilbert Stone & S. R. Iyer's Pleadings, 1942 Edn., p. 116 rel. (e) Electoral College Act (IV of 1964), Chap. IV and National and Provincial Assemblies (Elections) Act (VII of 1964), Ss. 12 (2)(a)(i), 14(3)(a), (d)(iii) & 53 ‑ Electoral roll ‑ Basic document to determine qualification of candidate for election to Assemblies‑Dispute as to validity of entries‑To be settled accord ing to provisions of Chap. IV, Electoral College Act, 1964‑Tribu nal not competent to determine whether or not name of contesting candidate validly appeared in electoral roll. All doubts and disputes about the entries which are made in the electoral roll are to be settled according to the provisions of Chapter IV of the Electoral Act and the electoral roll is also the basic document for determining one of the qualifications of the members of the Legislatures because Article 103 (1) (a) of the Constitution requires that their names should appear on the electo ral roll. After the restriction which has been unambiguously and categorically placed by section 14(3)(a) read with (d) (iii) of the Act, on the scope of enquiry for determining the qualification of a candidate, it cannot be enlarged by an Election Tribunal even if it treats the scope of the enquiry as secondary and the qualifi cation of the candidate as basic and constitutional. This should be more so, when as in the necessary consequence of such enlarge ment would be destruction of finality of the electoral roll as well as of alt restrictive provisions. If statutory restrictions lose their force on the ground that the qualification of a candidate is basic and constitutional, then all statutory prohibitions against the institution of suits (see section 84 of the Electoral College Act, 1964 and section 112 of the National and Provincial Assemblies (Elections) Act, 1964) should also be treated as of no effect when the question of the qualification of a candidate arises. The Election Tribunal had no legal authority to decide that the name of the successful candidate did not validly appear on the electoral roll, and that he was not qualified to be elected as a Member of the National Assembly in terms of Article 103(1)(a)(i) of the Constitution and section 12 (2)(a)(t) of the National and Provincial Assemblies (Elections) Act, 1964. Ghulam Abbas v. The Additional Commissioner and Election Tri bunal, Rhairpur Mirs P L D 1965 Kar. 625; Muhammad Tuf'ail v. Muhammad Salim P L D 1967 Kar. 1t~4 and Abdur Rashid v. Khawaja Mahrnood Sadiq, Additional Commissioner (Revenue) and Election Tribunal, Sargodha Division P L D 1966 Lah. 216 distin guished. Jarnal Shah v. Election Commission P L D 1966 S C 1 ref. (f) National and Provincial Assemblies (Elections) Act (VII of 1964), Ss. 62 & 71‑Word "trial"‑Whether connotes proceeding up to stage of closing of evidence and arguments or includes al! proceedings tip to final determination‑Depends upon context in which expression is used‑ Word "trial" in S. 62 includes all proceedings up to stage of final order. Murugappa Thevan and others v. Emperor A I R 1936 Mad. 163 and Rex v. Grant (1951) L. R 1 K B 500 ref. (g) National and Provincial Assemblies (Elections) Act (VII 1964), S. 62‑Transfer of case‑Evidence and arguments completed before Tribunal and Tribunal reserving judgment‑Chief' Election Commissioner at such stage transferring case to another Tribunal without notice to parties‑Order of Chief Election Commissioner, it circumstances, held, without lawful authority. Held, the Chief Election Commissioner should have given notice to the parties of his intention to transfer the case, and should have given them opportunity to show cause there‑against, because his proposed order for transfer was likely to, and did indeed, subject the parties to further delays and expenses of litigation. Further, the ground given for the transfer of the case, that is, the speedy disposal of the case, was illusory as well as unreasonable, as both the parties had practically closed their case before the first Tribunal, whose decision would have come in due course but for the order of transfer. The Chief Election Commissioner ; failed to apply his mind to the question whether transfer was at all necessary in the circumstances of the case, and if he did apply his mind, then the reason given by him for transfer was illusory, in which case his order would be characterised as arbitrary exercise of power. In either case, the order of transfer cannot be upheld, as it should be deemed to have been made without lawful authority. (h) National and Provincial Assemblies (Elections) Act (VII of 1964), Ss. 62, proviso, 66 & 68‑Summoning of witnesses by transferee Tribunal‑Transferee Tribunal competent to call for further evidence on behalf of party closing its case before first Tribunal‑Civil Procedure Code (V of 1908), O. XXI, r. 14 and O. XVII, r.

15. Held, it is not possible to agree with the view that the proviso to section 62 impliedly excludes the power of the Tribunal, to which an election petition is transferred, to call further evidence for a party which had closed its case before the first Tribunal. The power to recall witnesses already examined is, perhaps, expressly contained in the proviso as it might have been thought exabundanti cautela desirable to include express provision to this effect, in view of the provision contained in the first part of section 62, which states that the Tribunal to which the election petition is transferred shall proceed with the trial of the petition from the stage at which it was transferred. But inclusion of this express power cannot be taken to exclude the power, which is possessed by every civil Court, to call further evidence on behalf of the party which had closed its case before the first Tribunal. Rukhal Dass Mundal v. Pratab Chunder Hazrali (1869) 12 S W R 455; Lowe v. Dorling & Son 1906 L R 2 K B 772 ; Narsinghdas v. Mangal Dubev 1883 1 L R 5 All. 163 and Ali and another v. Crown P L D 1952 F C 71 eel. Petition No. 539 of 1967 Petition No. lk2 of 1968 JUDGMENT QADI‑ERUDDIN AHMAD, J.‑Petition No. 539 of 1967 was filed at Karachi, and Petition No. 182 of 1968 was originally file at Lahore. Both of them invoke the jurisdiction of this Court an terms of Article 99 of the Constitution. The latter petition was transferred by my Lord, the Chief Justice, to Karachi with the direction that it should be heard, along with the petition that was pending at Karachi, by this Bench. Both of them arise from the same order of the Election Tribunal, dated the 6th of November 1967, by which Mir Ghaus Bakhsh Bizanjo was unseated and the bye‑election held on the 26th of May 1967, to the National Assembly of Pakistan from Consti tuency No. N. W. 4 Karachi‑cum‑Lasbela was declared to be void. Mir Ghaus Bakhsh Bizanjo, who was the successful candidate at the election, and Hafiz Muhammad Habibullah, who secured the second highest number of votes, have filed these petitions to challenge the order of the Election Tribunal from different angles. The object of Mir Ghaus Bakhsh Bizanjo is to retain the seat, and the object of Hafiz Muhammad Habibullah is to get himself declared elected in the place of Mir Ghaus Bakhsh Bizanjo.

2. The facts which form the background are that there were four candidates for election to the above‑mentioned seat of the National Assembly of Pakistan which was to be filled up by a bye‑election. Two of them were the present petitioners and the third was Major Muhammad Ashfaq Qureshi. These three contested the election because the fourth candidate, namely, Moulvi Muhammad Sharif withdrew his candidature. All the three contesting candidates claimed to be qualified for filling the seat according to section 12 of the National and Provincial Assemblies (Elections) Act, 1964, hereinafter called the Elections Act. One of the requirements under it, is that the name of the candidate should "appear" on the "electoral roll for any electoral unit." The election is to be held in accordance with the provisions of the Elections Act, but on the basis of the electoral roll which is prepared in accordance with the Electoral College Act, 1964, hereinafter called the Electoral Act. This is the scheme of the Constitution as laid down in Chapter 2 of Part VII read with Chapter 1 of Part V of it. Article 156 of Chapter 2 of Part VII of the Constitution requires that a law be enacted for the preparation and maintenance of the electoral roll, and Article 103 of Chapter 1 of Part V of the Constitution lays down that the qualification of a member of an Assembly is that :‑ . "(a) his name appears‑ (i) in the case of the National Assembly on the electoral roll for any electoral unit (ii) in the case of the Assembly of a Province on the electoral roll for an electoral unit in the Province; and (b) he is not less than 25 years of age." The electoral units are created in terms of Article 155 of Chapter 2 of Fart VII of the Constitution by dividing a Province, in accordance with a statute, into such units. The Electoral Act has been enacted for purposes of this Article as well as Article

156. That statute deals with the creation of electoral units as well as preparation and maintenance of the electoral roll, so that a list of electors may be available in order to elect the members 9f Legislatures. In that Act, there is nothing about the election of the members of Legislatures. For the election of the members of Legislatures, the Elections Act has been enacted, and fulfils the requirements of Articles 103 and 168 of the Constitution. This is the statute which deals with the election of the members of Legislatures. Thus the preparation and maintenance of electoral rolls has been separated from election of the members of Legislatures by enacting the two statutes, namely the Elections Act and the Electoral Act. The functions of the two statutes are entirely different.

3. In the case before us, we are concerned with the electoral unit of the Union Council, Nal, Tehsil Khuzdar, District Kalat. The draft electoral roll of this unit was prepared under subsections (1) and (2) of section 8 of the Electoral Act, on the 11th of August 1964. Two of its copies are P. Ws. 2/3 to 2/6. The final electoral roll was prepared under subsections (3) and (4) of section 8 of the same Act on the 15th of September 1964. Some of its copies are P. Ws. 2/7 to 2/11 and P. W. 3/1. A separate list was prepared for the purpose of maintaining the rolls in terms of subsection (7) of section 8 read with rule 8 and Form III of the Electoral Act. It is Exh. P. W. 2/1 and is dated the 30th of September 1964. It has been referred to by the witnesses as the "Voters Register."

4. The first election which Mir Ghaus Bakhsh Bizanjo fought on the basis of the above‑mentioned electoral roll was held on the 21st of March 1965. It was a contest for the National Assembly. Thereafter, he contested again on the basis of the same eloctoral roll, a Provincial bye‑election from Karachi‑cum‑Lasbella in August 1965. Subsequently, he obtained a certificate from the Nazim of Khuzdar dated the 7th of May 1966, Annexture D, to the effect that his name was registered in the electoral roll. The purpose was to contest the bye election from which these petitions have arisen. The last date for submission of nomination papers was the 8th of May 1966. He was nominated as a candidate. On the 9th of May 1966, scrutiny of the nomination papers took place at which an objection was raised on behalf of Moulvi Muhammad Sharif, to the validity of his nomination paper" inter alia on the ground that he was not a registered voter (Hafiz Muhammad Habibullah) the petitioner (in Petition No. 182 of 1968) also objected (to his nomination) on the ground (s) that . . . (he) . . . had failed to produce an Electoral List showing his name as a registered voter, and that the certificate dated 7‑5‑1966, issued by one K. M. Jan Muhammad Nazim, Jhalwan Khuzdar to the effect that . . . (his name) . . . was registered in the list of electoral roll of Nat Union Jhalwan, at serial No. 215‑A in the electoral roll, Unit No. 234, Sardari Shahar, was invalid and did not prove his qualification to contest the election." But "in the presence of all the voters this objection was . . . overruled". On the 11th of May 1966 one Abdul Jalil made an application for a copy of the electoral roll which was supplied to him on the 12th of May 1966 and was later produced by Hafiz Muhammad Habibullah before tae Election Tribunal as Exh. P.

1. The name of Mir Ghaus Bakhsh Bizanjo appears in this copy at Serial No. 225, but has been re‑numbered as 215‑A.

5. Pools were held in respect of three candidates, as explained above, on the 26th of May 1966, and the result was declared under subsection (1) of section 41 of the Elections Act, on the 27th of May 1966, as follows :‑ "Mir Ghaus Bakhsh Bizanjo ... 348 votes. Hafiz Muhammad Habibullah ... 125 votes. Major Muhammad Ashfaque Qureshi ... 4 votes." Under subsection (3) of section 41 of that Act, the name of Mir Ghaus Bakhsh Bizanjo was published in the official Gazette as that of the returned candidate.

6. Hafiz Mohammad Habibullah challenged the validity of the election by submitting Election Petition No. N. W. 1 of 1966 under section 56 of the Elections Act to Mr. G. Moinuddin, the Chief Election Commissioner. He allocated it to Election Tribunal No. 1, which was presided over by Mr. Justice Masud Ahmed, who recorded evidence of the parties, heard arguments and then in January 1967, reserved judgment. Mir Ghaus Bakhsh Bizanjo was then arrested, and the election petition was transferred to Election Tribunal No.

2. The reason for the transfer, according to the Chief Election Commissioner, was that it was "in the interest of speedy disposal". Mir Ghaus Bakhsh Bizanjo challenged that order by making an application (C. M. No. 3722 of 1967) to the High Court of West Pakistan at Lahore. He alleged in it as follows :‑ " ..the order Annexure `A' (transferring the election petition) is mala fide, because respondent No. 1 (Mr. G. Moinuddin) by transferring the said Election Petition, has shaken the faith of the petitioner in Tribunal No.

2. It appears that respondent No. 1 (Mr. G. Moinuddin) for ulterior motives which can only be inferred, did not give the chance to the Election Tribunal No. 1 to pronounce the judgment. The judgment in the said petition had been reserved in the month of January 1967, and it can be easily inferred that this order (A) was passed two months after that. Perhaps, when respondent No. 1 (Mr. G. Moinuddin) came to know that the judgment was going against the interested parties, he abused his powers under the National and Provincial Assemblies (Elections) Act, 1964, and transferred the said petition to Election Tribunal No. 2, assigning reasons which are frivolous. The intention behind this action was clearly mala fide." " . . . the mala fides of respondent No. 1 Mr. G. Moinuddin are also clear from the fact that he did not stop his high handedness by transferring the petition only, but also unseated the petitioner from the National Assembly of Pakistan on account of his conviction in a Criminal Case, revision against which is still pending fin this Hon'ble Court." Mr. Justice Wahiduddin Ahmed, the Chief Justice and Mr. Justice Fazle Ghani heard the application of mala fides‑ "seems to be not without foundation" but directed the applicant‑‑ "to move the present Chief Election Commissioner for the review of the order of his predecessor . . . in case the petitioner is unable to get redress of his grievances, he can again move this Court." Mir Ghaus Bakhsh Bizanjo then moved Mr. Justice S. A. Rahman, a Judge of the Supreme Court, who had succeeded Mr. G. Moinuddin as the Chief Election Commissioner. He ordered as follows: "I have not been persuaded that my predecessor's order was actuated by any grounds which can be described as mala fide capricious or frivolous." Mir Ghaus Bakhsh Bizanjo acquiesced in the decision by not moving the High Court against it, and participated in the proceedings which thereafter took place before Tribunal No. 2.

7. The Tribunal recalled three witnesses of Hafiz Muhammad Habibullah, and recorded their evidence on the 30th and 31st of July 1967, and also made an order declining to summon two witnesses, named by Mir Ghaus Bakhsh Bizanjo, on the ground that under section 62 of the Elections Act, the Tribunal could recall those witnesses only which were examined before the case was transferred to it. Mir Ghaus Bakhsh Bizanjo made two more applications, one on 7‑9‑1967, for summoning certain documents and recalling one of the three previous examined witnesses again, and the other on 12‑9‑1967, for producing a few certified copies. The first was dismissed owing to delay in making it, and the other was placed on record along with the copies which accompanied it.

8. The Tribunal delivered its judgment on 6‑11‑1967, after eleven months of the transfer of the case to it. The transfer did not prove conducive to speedy disposal. The Tribunal unseated Mir Ghaus Bakhsh Bizanjo on the ground that he was not qualified to be a member of the National Assembly, because his name, according to the Tribunal, appeared on the electoral roll as a result of "unauthorised interpo lation," but the Tribunal has not found him to be guilty of any corrupt or illegal practice. Hafiz Muhammad Habibullah has not been declared elected because the votes given to Mir Ghaus Bakhsh Bizanjo have been held to have been "thrown away," or wasted with the result that the majority view of the electors cannot be ascertained. The votes have been held to be wasted because, according to the Tribunal, the lack of qualification of Mir Ghaus Bakhsh Bizanjo was neither notorious nor obvious, but depended on legal arguments, complicated facts and inferences, which could not be known to two electors.

9. As mentioned in the beginning of this judgment Hafiz Muhammad Habibullah has on the one hand challenged the conclusion that he could not be declared as elected, and Mir Ghaus Bakhsh Bizanjo has, on the other hand, challenged the decision that the election was void and that, therefore, he be unseated. Petition No. 182 of 1968 of Hafiz Muhammad Habibullah can be disposed of shortly, because a defeated candidate, even if he secures the highest number of votes amongst the defeated candidates, has no right to be declared elected merely because the successful candidate has been unseated. Such a declaration is dependent, in terms of subsection (2) of section 72 of the Elections Act, on the satisfaction of the Tribunal that he‑ "Was entitled to be declared elected." The word. "entitled" is important. The Tribunal has pointed out that Hafiz Mohammad Habibullah is not so entitled because the majority of the votes that were cast at the election were given to Mir Ghaus Bakhsh Bizanjo, in ignorance of his lack of qualification. In other words, it is not possible to conclude that the majority of the electors would have chosen Hafiz Mohammad Habibullah, and not the third candidate. Mr. Khaild Ishaq criticised this view by referring to the second proviso to subsection (1) of section 72 of the Elections Act, which runs as under:‑ "Provided further that the election of a returned candidate shall not be declared void only on the ground that one or more of the other contesting candidates were, on the nomina tion day, not qualified for, or were disqualified from, being elected to the seat in question." He argued that on parity of the above reasoning, the highest number of votes secured by the next best candidate should not be questionable. But this argument excludes from considera tion the legal importance of the difference that arises from the situation that the above provision was not made with respect to defeated candidates. On the contrary, subsection (2) of section 72 of the Elections Act makes the declaration of a defeated candidate as duly elected, dependent on the deci sion of the Tribunal that he is so entitled. No preference given to the defeated candidate who has secured the highest t number of votes. Any "contesting candidate" can be declared elected under the provision, provided that the Tribunal finds him entitled to it. The expression "contesting candidate" is defined in section 2(8) of the Act, and means‑‑ "a candidate who has been validly nominated and has not withdrawn his candidature." Thus the Tribunal had to see, after declaring the election of the returned candidate void, which of the contesting candidates, if any, was entitled to be declared elected. The reason for which the Tribunal has declined to declare Hafiz Mohammad Habibullah elected, is amply supported by authority. The Tribunal has, in support of the proposition, referred to: (1) Hobbs v. Morey (1904) 1 K B 74 (2) Pritchard v. Mayor etc. of Bangor (1888) 13 A C 241 (3) Sahib Mia Chowdhury v. S. M. Mir, Election Tribunal, Chittagong and others P L D 1966 Dacca 439. (4) Sanaullah v. Election Tribunal, Gujrat P L D 1966 Lab. 97. (5) Vashist Narain Sherma v. Dev. Chandra and others A I R 1954 S C 513. (6) Judgesh Chandra Joshi v. Parkash Narain 4 E L R 205 and (7) Amanullah and another v. Election Tribunal, Gujranwala P L D 1961 Lab. 907 We may add to this long list one more judgment reported in Shamsul Hasnain v. Mir Ghulam Ali (P L D 1963 Kar. 588) in which the petitioner was not declared as elected, and this view was confirmed by the Supreme Court by refusing to grant leave to appeal against it. (See C. P. S. L. A. No. 118/63 unreported.) Their Lordships have observed as follows:‑ "As the learned Tribunal pointed out, to declare the petitioner to be elected in place of Mir Ghulam Ali Talpur, would be practically to dis‑enfranchise a majority of the voters of the constituency."

10. Taking up now Petition No. 539 of 1967 of Mir Ghaus Bakhsh Bizanjo, we would first note the contentions that were raised by Mr. A. K. Brohi, on behalf of the petitioner. He advanced the following four arguments (1) The findings of the Tribunal do not decide the real issue of the case, because the principal considerations have been allowed to be obscured by attaching importance to inconsequential considerations and by deciding non‑existent pleas. (2) The Tribunal has unauthorisedly gone into the question of the correctness and validity of the entries which appear in the electoral roll. (3) The Tribunal had no jurisdiction to hear the Election Petition, because the order of the Election Commissioner transferring the case to it was illegal and void. (4) The Tribunal has not allowed fair and reasonable hearing to Mir Ghaus Bakhsh Bizanjo by refusing to summon Abdul Hamid Bizanjo, in whose handwriting the electoral roll is, and Shamshad Ahmed, Supervisor, as defence witnesses, and by refusing to recall Muhammad Yasin to elicit information about the reasons for closing the electoral roll by noting the total number of voters and drawing lines." II. The third and fourth contentions can be disposed of shortly because Mir Ghaus Bakhsh Bizanjo acquiesced in the transfer of the case to the Second Tribunal, as explained above in paragraph 6 of this judgment ; because his request to summon Abdul Hamid Bizanjo and Shamshad Ahmed as new witnesses was rightly rejected in view of the provisions of section 62 of the Elections Act, and because the request to recall Muhammad Yasin for the second time was rightly rejected in view of the two opportunities which Mir Ghaus Bakhsh Bizanjo had already had to cross‑examine him.

12. The most important contentions of counsel are number one and two. We can sub‑divide the first contention into three parts as follows "(i) The Tribunal has not duly examined the possibility that the name of Mir Ghaus Bakhsh Bizanjo was validly inserted in the electoral roll because it has not paid due attention to the fact that not a single copy of the electoral roll has been shown to exist which does not contain his name ; that there is no evidence that the entry of Mir Ghaus Bakhsh Bizanjo's name is not in the handwriting of the proper officer, and that the possibility of unauthorised interpolation by non‑officials has been eliminated by the admissions of the officers to the effect that the documents were in their custody, were never allowed to be inspected without supervision, and were kept under lock and key. The plea of Hafiz Muhammad Habibullah was that the name of Mir Ghaus Bakhsh Bizanjo was interpolated on or about 7‑5‑1966, but Mir Bakhsh Bizanjo had earlier than that fought tuo elections on the basis of the same electoral roll in 1965. These considerations have been allowed to be erroneously over‑shadowed by the unwarranted regard that was shown to the evidence of the officers who had taken an illogical stand, who were themselves charged by Mir Ghaus Bakhsh Bizanjo with complicity in machinations to defeat him and whose evidence was supported before the Tribunal by weak, if not entirely, illegal, considerations. (ii) The plea of Hafiz Muhammad Habibullah was that the name of Mir Ghaus Bakhsh Bizanjo was unauthorisedly interpolated in the electoral roll on or about 7‑5‑1966 ; therefore, he was not qualified to contest the election, but the Tribunal has treated the allegation of lack of qualification as the basic plea and the facts which were alleged to prove the inter polation as immaterial. In other words, the Tribunal has decided the case on a plea which was different from the one which was raised by Hafiz Muhammad Habibullah. (iii) There can be no plea of lack of qualification without an allegation of its material facts, because lack of qualification can be the result of more reasons than one. It was necessary to particularise its nature satisfactorily. Moreover, if the plea was sought to be completed simply by saying that his name did not appear in the electoral roll, then mere production of a copy of the electoral roll could effectively falsify it, because his name does appear on it. Thus there was, and could be, no plea of lack of qualification without an allegation of the facts which could prove that his name existed on the electoral roll by reason of unauthorised interpolation. Since the facts which were pleaded to prove that the interpolation was unauthorised have not been proved and the Tribunal has disregarded them, there was no plea before it of lack of qualification."

13. Taking up the first part of Mr. Brohi's first argument, I find that according to Muhammad Yasin, the electoral roll is in the handwriting of his assistant Abdul Hameed Bizanjo, who has not been produced to state that the interpolations are not in his handwriting, nor has the Tribunal found that the interpolations were a forgery which was committed on the 7th or the 8th of May 1966, by the persons named by Hafiz Muhammad Habibullah in paragraph 3 of his election petition. In fact, the Tribunal has given no decision about the time and place of the alleged forgery, nor about the method by which and the agency through which it might be said to have been committed. Some importance has been attached by it to the absence of objections and of applications for amendment and correction of the lists, but this does not by itself seem to be of real significance, because the officers who wrote the lists might have themselves bona fidely corrected them. The latter conclusion is highly probable because it is nobody's case that Mir Ghaus Bakhsh Bizanjo did not have the basic qualifications to "have his name .brought on the electoral roll". The Tribunal has impliedly held that unauthorised interpolation was made after the 30th of September 1965, merely on the ground that the lists were closed by writing the total number of voters and drawing lines on that date, and because the officers who wrote the figures and drew the lines have said that the interpolation did not exist at that time, but it is difficult to rely too much on those figures and lines because they have not been proved to have been written and made to satisfy any legal or instructional requirements. The totals and the lines on which reliance has been placed, can themselves be treated as unauthorised interpolations amounting to tampering with highly disputable and jealously regarded documents. It was suggested before the Tribunal on behalf of Mir Ghaus Bakhsh Bizanjo that such totals and diagonal lines were not written and drawn on the electoral rolls of other units, but this argument was rejected by the Tribunal, vide its order dated the 12th of September 1967, with the observation that‑ "the question whether total had been worked out in the case of other Union Councils is not really material in this case." With great respect, this view of the Tribunal does not appear to have the support of soundest logic. Mir Ghaus Bakhsh Bizanjo contradicted the evidence that the total number of voters and double lines could be found on every copy of the final list by relying on the copy, Exh. P/1, which was produced by Hafiz Muhammad Habibullah, but the Tribunal attached no value to it by saying "The absence of a double line and of the total in list (Exh. P/1) may well be due to omission or to the fact that this being a spare copy of the list, it was not, marked with a total or double lines, as the final lists were. We are not inclined to accept the contention that the double line and the total were put on the other lists by the Registration Officer subsequently at the instance of the petitioner. Our reasons are that (1) Mr. Shafique (P. W. 3), who is an Extra Assistant Commissioner and a responsible otticer, has deposed that the total existed on the lists. (ii) We also find the total marked on the other lists.' (iii) .These totals had also to be worked out for the purpose of elections of Union Councils. (iv) We find in Exh. P. W. 2/A in register Exh. P. W. 2/1, the totals of various villages mentioned by the Registration Officer. It also bears the rubber stamp signatures of Nazim Khuzdar. (v) This entry was made on the 30th of September, and is not open to any suspicion." "under the pressure of higher authorities." The above contention was pressed on behalf of a party who was in detention almost since the election. The officers have produced the documents from their own custody, with un authorised interpolations made by themselves and have deposed that these documents were prepared under their supervision, that they had been in their custody and that no outsider could have access to them. To put it differently, according to them, the circumstances were such as to make unauthorised interpolations impracticable, but they were made, but this amounts to defeating commonsense, irrespective of what may be said of the trustworthiness of the witnesses and the trustworthiness of the totals and the lines. The reason which has been assigned by the Tribunal to the commission of the alleged unauthorised interpolations is significant. It has observed as follows :‑ "He (Mfr Ghaus Bakhsh Bizanjo) may have possessed the basic qualification for his name to be brought on the electoral roll, but it appears that he was not vigilant enough to ensure, when electoral rolls were being prepared, that he was registered as a voter. Later, when he wanted to seek election to the Provincial Assembly in 1965, the need must have been felt for his name to be brought on the electoral roll. Then it may have been thought that the surer way to manage it was to arrange its introduction into the existing electoral roll, even though by way of interpolation rattler than by applying to the Revising Authority or the Chief Election Commissioner, before whom serious objection may be taken by interested parties. That the name of the respondent No. 1 was introduced into electoral roll by way of unauthorised interpolation, is proved beyond doubt." Thus, according to the Tribunal, forgery had to be resorted to in order to remove the consequence of an omission because that was the "surer way to manage it". If this is the reason, then let it be recalled that the consequence of the omission was noted by Mir Ghaus Bakhsh Bizanjo, firstly, at the time at which he fought the first election in March 1965 ; secondly, when he fought the second election in August 1965. On those occasions his opponents raised no objection that there was forgery and the polling officers, presiding officers and returning officers were able to countenance the hard fact that he was contesting the elections as a candidate. It is unreasonable to .presume that this could happen if his name was not properly on the electoral roll at that time. Even Hafiz Muhammad Habibullah has not alleged that Mir Ghaus Bakhsh Bizanjo's name did not duly appear on the electoral roll in 1

965. He has pleaded in paragraph 3 of his election petition that his name was forged "on or about 7‑5‑66" by sending two men to Khuzdar by air. But according to the Tribunal, the forgery was not committed in 1966 but earlier than that at some time after the 30th of September 1964. The reason of the Tribunal for arriving at this conclusion is that the officers have stated that they had written the totals and drawn the lines on 30‑9‑64, when according to them, his name was not on the electoral roll. The case set up by the officers in their evidence was thus different from the case pleaded by .Hafiz Muhammad Habibullah and the Tribunal could not give its decision on the basis of the new case because it had no authority to change the date and the facts constituting forgery as pleaded by Hafiz Muhammad Habibullah ; much less could it proceed to hold, without any particulars, that forgery was committed at some other time than "on or about 7‑5‑66" and by other method than by sending the two named persons by air. The Tribunal was aware of this legal difficulty but did not consider it unsurmount able because, according to it, what really mattered was lack of qualification of Mir Ghaus Bakhsh Bizanjo to contest the election, and not the particulars of forgery. This aspect will be dealt with presently, under the second and third parts of the first argument, but I may add here that nobody had in this election alleged forgery earlier than the election petition and nobody had objected to the existence of Mir Ghaus Bakhsh Bizanjo's name on the electoral roll for the election of 1966, although according to the Tribunal, his name was entered on it after the 30th of September 1964. Can it not be said that the allegation of forgery has been made for getting rid of the consequence of the last mentioned omission? And can it not be said that the omission was intentional because even now it is nobody's case that he was not entitled to have his name on it?

14. Before leaving off this discussion I should mention that mere fact of interpolation and even of unauthorised interpolation does not amount to the proof of forgery or fraud because the main ingredient of forgery under the Criminal Law is dishonest or fraudulent intention‑See section 463, P. P. C., 1860 and the main ingredient of fraud under the Civil Law is the intention to deceive or to induce a person b L misrepresentation to enter into a contract on a false belief‑See section 17 of the Contract Act, 1872. Thus there can be neither fraud nor forgery without the proof of a bad intention. In this case the Tribunal has held that Mir Ghaus Bakhsh Bizanjo committed forgery or fraud after the 30th of September 1904, with the intention of getting rid of the effect of his omission which was made by him earlier by failing to take steps to get his name entered. He resorted to forgery, according to the Tribunal because it was the "surer way" of bringing his name on the record. Forgery was, however, not the only way, because corrections or amendments were permissible particularly in view of the fact that no doubt has ever been thrown on his right to get his name entered on the electoral roll. There is no proof that he committed forgery or caused forgery to be committed between September 1964 and March 1965. On the contrary, at least one of the officers (Muhammad Yasin, P. W. 2), has indirectly admitted that Mir Ghaus Bakhsh Bizanjo was ‑qualified to be an elector. In these circumstances, is it improbable that the officers should have themselves corrected the electoral roll? Moreover, if the correction or interpolation vas legally objectionable but appeared on the roll in 1966, after two elections were fought an its basis in 1965, then whose duty was it to take action in regard to its removal? Could Mir Ghaus Bakhsh Bizanjo be expected to apply for the removal of the existing entry of his name and then to apply for its re‑entry? Could the two year old existence of the name of the electoral roll, be regarded as forgery or fraud intended to deceive anybody at the election of 1966, particularly when no officer and none of the candidates ever tried to get it corrected under any provision of Chapter IV of the Electoral Act? Is it not possible that the officers treated it as genuine and the candidates thought it to be a shrewd move on their part to raise no objection, because to object was the surer way of removing all doubts against his qualifications? In my opinion there is nothing on the record to prove that forgery was made between September 1964, and March 1965 ; the timing of the objection is itself of a suspicious nature ; nothing more than a doubt has been created about the origin of the entry and about its effect on the election of 1966. The benefit of doubt goes to Mir Ghaus Bakhsh Bizanjo and not to the objector for purposes of the election petition‑See Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan (P L D 1957 S C (Pa.)91).

15. In order to explain the second and third parts of the first argument, we reproduce paragraph 3 of the Election Petition of Hafiz Muhammad Habibullah and underline* those parts of its which support them? "

3. The respondent No. 1 was not such a registered voter. On or about 7‑5‑66, Mr. Akbar Masti Khan chartered a plane for Khuzdar and Messrs Ahmed Gabole and Mir Hamal Khan were commissioned to get the necessary electoral poll prepared and to bring it back to Karachi. Copy of the Bill of Aero Club is filed and marked "A". The name of the respondent No. 1 was not on the electoral roll and consequently an unauthorised interpolation was made in the electoral list and the electoral list itself ex facie indicates the interpolation. The electoral roll is prepared in alphabetical order. When the electoral roll was originally prepared respondent No. 1's name did not appear on the roll. Had his name been in the rolls of voters it would have appeared at a point after No.

215. When the respondent No. 1's name was found missing, his name was added to the already completed list and given the number 225, it was then realized that the list was in alphabetical order and the name of respondent No. 1 at 225 would appear plainly as an addition. To cover up this obvious discrepancy this number was subsequently cut of and name renumbered as 215‑A. (Copy of the Electoral Roll is filed herewith and marked as "B"). On 9‑5‑66 at the time of scrutiny an objection was raised by Mr. Aqeel Ahmad, counsel for the candidate Moulvi Muhammad Sharif who bad subsequently retired from the election), that Mir Ghaus Bakhsh belonged to the Tribal Area and had not produced the electoral list showing his name as a registered voter. 7 his objection was overruled ; in spite of the fact that no electoral list was produced as seemed plainly necessary in the language of the statute. Copy of the order is filed and marked "C". The Returning Officer however, chose illegally and without jurisdiction to rely on a certificate dated 7‑5‑66 issued by Mr. K. M. Jan Muhammad, Nazim Jhalawan, Khuzdar to the effect that the name of Mir Ghaus Bakhsh son of Mir Safar Khan Bizanjo was registered in the list of Electoral Roll of Nal Union Council (Jhalawan) at serial number 215‑A, in the electoral roll Unit No. 234 (Sardari Shaer) Copy of the certificate is filed and marked "D". Respondent No. 1 was on the date of filing of the Nomination Papers not a person qualified to contest for the membership of the National Assembly."

16. The plain meaning of the above paragraph is that the name of Mir Ghaus Bakhsh Bizanjo was not on the electoral roll in 1964 when it was prepared ; therefore, a plane was chartered and two men were sent in May 1966, to get his name unauthorisedly inserted in it. This was allegedly done, but then it was found that the alphabatic' order bad been upset ; therefore, that entry was scored off, and the name was re‑entered. An irregularity about the production of the electoral list was brought to the notice of the Returning Officer at the time of scrutiny, but he overruled it relying on a certificate which was issued in favour of Mir Ghaus Bakhsh Bizanjo by Nazim Jhalawan, Khuzdar. In reality, Mir Ghaus Bakhsh Bizanjo was not qualified to contest the election because his name did not in law exist on the electoral roll). In reply to these pleas, it was contended on behalf of Mir Ghaus Bakhsh Bizanjo before the Tribunal that since Mir Ghaus Bakhsh Bizanjo had contested two elections on the basis of the same electoral roll in 1965, there could be no question of making the forgery in 1966. Thus the bottom of the plea of forgery was knocked off, but the Tribunal has not taken this view because, according to it, the real plea of Hafiz Muhammad Habibullah was not that an illegal or corrupt practice was committed but that Mir Ghaus Bakhsh Bizanjo lacked a necessary qualification to be a candidate ; therefore, there was no need of furnishing particulars in terms of section 59 (I) (b) of the National and Provincial Assemblies (Elections) Act, 1964. The allegation of lack of qualification was, according to the Tribunal by itself a complete plea in terms of section 72 (1) (b) of the Act. The Tribunal's observations are as follows: "The particulars as specified in the paragraph (No. 3) were that as the name of respondent No. 1 was not on the electoral roll, he was not qualified to seek election to the National Assembly. This being essentially what he meant to allege ; he has no doubt further suggested and it can be inferred that when he says that a plane was chartered to prepare and bring the necessary electoral roll to Karachi, he means that the forgery was committed then. This may be so, but in substance, it is immaterial whether the respondent's name was forged on the electoral roll on the 7th or 8th May or on an earlier date. what does matter is whether his name was brought on the electoral roll in due process of law or by an illegal and unauthorised act. When the petitioner has alleged that the respondent was not qualified to seek election to the National Assembly, it is a specific ground stated in clause (b) of sub section (1) of section 72 of the National and Provincial Assemblies (Elections) Act, which is open to him, and on proof of which the Tribunal shall declare the election of the returned candidate to be void. There is no new case and no vagueness or uncertainty about the allegation made in the paragraph, and it cannot be said that the respondent did not have notice of the allegation made." Further: "When the petitioner has alleged that the respondent was not qualified to seek election to the National Assembly, it is a specific ground stated in clause (b) of subsection (1) of section 72 of the National and Provincial Assemblies (Elections) Act, 1964 . . . . There is . . . . . . no vagueness or uncertainty about the allegation . . . . . ."

17. Thus the Tribunal has held that it was a good plea simply to say that the candidate was not qualified to seek election. But a candidate is required by law (see Article 63 of the Constitution and section 12(2)(a), (b) and (c) of the Elections Act) to have at least two qualifications one of age and the other of the presence of his name on the electoral roll ; therefore, it is necessary while alleging lack of qualification to specify which of them is missing, otherwise the plea is incomplete. If it were completed simply by adding that the name of the candidate does not appear on that electoral roll, then the mere production of a copy of the electoral roll on which the name appears, even if by reason of forgery, will be a complete reply to it. This is why Hafiz Muhammad Habibullah alleged forgery in paragraph 3 of his election petition. Now forgery is a plea which, like fraud and misrepresentation, cannot be taken into consideration unless its particulars are se out. The reason is that in civil law forgery is a categroy of fraud and is a graver charge than misrepresentation ; therefore, it is a rule of commonsense and fairplay that the charge of forgery should not be allowed to be levelled against anybody unless 1 precise information is supplied to the person against whom it is levelled, in order to enable him to understand with reasonable accuracy those facts which are intended to be proved against him. Precision demands this, and this is uniformally recognised to be a general principle of the law of pleadings. Civil Procedure Code embodies it in Order VI, rule 4 as follows: "In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading." The word "shall" should be noted. Since the object of the rule is precision, it follows from it that if the particulars which are supplied are not proved, then a different set cannot be allowed to be proved nor taken into consideration (see Abdool Hoosein Zenia Abadin v. Charles Agnew ((1887) 141 A 111) ; Gunga Narain Gupta v. Tiluckram Chowdhry ((1888) 15 I A 119) ; Purushottam Daji Mandlik v. Pandurang Chintaman Diwalkar (I L R 39 Bom. 149) ; Ullah & Sons v. Rawalpindi Club Ltd. (A I R 1935 Lah. 222) and Dr. Indramani Pyarelal Gupta v. W. R. Natu (A I R 1956 Born. 518) unless the pleadings are allowed to be amended as contemplated by Order VI, rule 17,C. P. C. and a fresh chance of defence is granted. Thus Hafiz Muhammad Habibullah having failed to prove the forgery that was pleaded by him in paragraph 3 of his Election Petition he could not be allowed to substitute another forgery for it.

18. The Election Tribunal has got over the above objection by treating the plea of forgery as separate from the plea of lack of qualification and by treating the plea of lack of qualifications as the basic plea. But the plea of lack of qualification is incapable of standing by itself, because, as explained above, it is an incomplete averment to say that somebody lacks the qualification to contest an election. Such a plea is impregnated with the question: "What qualification and how?" In other words, the plea of lack of qualification stands in need of the disclosure of material facts for becoming a complete plea. There is a clear distinction between preciseness and completeness, though in practice they may overlap. A plea which is incomplete is not whole, though a complete plea can be imprecise. The principle that a plea should be complete is expressed in Order VI, rule 2, C. P. C. as follows "Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleadings relies for his claim. or defence, as the case maybe" The words underlined by us should be noted. It may also be noted that an incomplete plea is much more objectionable than an imprecise plea, because, as pointed out by Scot, L. J. In Brook v. Adam Press Ltd. ((1936) 1 K B 712): "The word `material' means necessary for the purpose of formulating a complete cause of action." Incompleteness of a plea may be fatal to it, because it cannot be made whole by leading evidence of its missing parts. Siddiklh Mahomed Shah v. Mst. Saran and others (A I R 1930 P C 57(1)) and Adusumilli Gopalakrishnayya Garu v. Province of Madras (AIR 1947 P C 132) Sir Gilbert Stone and S. R. Iyer, authors of the valuable book called "Pleadings," have brought out the distinction at page 116 (1942 Edition) as follows: "If a material fact is omitted it may cost a party his whole case." In the present case the plea of lack of qualification was sought to be made whole by pleading forgery and the plea of forgery was sought to be made precise by pleading that on or about the 7th of May 1966, two men named in the Election Petition were sent by air to commit forgery. Those particulars have not been proved ; therefore, another kind of forgery cannot be substituted. Since, as pleaded, forgery has not been proved and cannot be proved apart from the plea, the plea of lack of qualification has become incomplete. I accordingly uphold the first contention.

19. The second contention is as important, if not more, as the first one, though the problem with which it deals is less complicated. It can be explained by mentioning that two statutes are relevant, one for the preparation of electoral roll, and the other for the election of the members of the Legislature. One of them is the Electoral Act, which deals with (i) the creation of electoral units, (ii) preparation of the electoral roll for electing members of the electoral College and (iii) election of members of the Electoral College for electing members of the Legislatures. All claims and objections relating to the preparation of the electoral roll are to be dealt with in accord ance with Chapter IV and the relevant rules made under section 86 of the Act. Proceedings of the election of the members of the Electoral College are kept separate from the preparation of the electoral roll : See section 23 (3) (iii) which is as follows :‑‑ "the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll." This is the statute which fulfils the requirements of Articles I 55‑163 of the Constitution. The other statute namely, Elections Act, deals with the election of members of the Legislature. It was enacted to fulfil the requirements of Article 168 of the Constitu tion. In this statute also preparation of the electoral roll is kept separate from election‑See section 14 (3) (iii) which is as follows: "the Returning officer shall not enquire into the correctness or validity of any entry in the electoral roll for an electoral unit prepared under the Electoral College Act, 1964 (IV of 1964) on in the elector's list." All doubts and disputes about the entries which are made in the electoral roll are thus to be settled according to the provisions of Chapter IV of the Electoral Act and the electoral roll is also the basic document for determining one of the qualifications of the members of the Legislatures because Article 103(1)(a) of the Constitution (reproduced above in paragraph 2) above requires that their names should appear on the electoral roll. There was a possibility here that election proceedings may become mixed up with objections to enrolment ; therefore, care has been taken to keep the two procedures separate firstly by enacting in the above quoted provision that the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll and secondly by restricting the qualification of membership of the Legislatures to mere appearance of a person's name on the electoral roll. The word "appear" is significant and should be distinguished from such expressions as "entered" or "enrolled" which might imply that a name be regularly and duly entered or enrolled. The word "appear" restricts the qualification to mere presence of the candidate's name on the electoral roll. According to the English Oxford Dictionary the word means: "To be plainly set forth in a document; . . . . To occur; . . to seem, as distinguished from `to be' ; to be in outward show or to the superficial observer." According to the Websters Dictionary the word means: "To become clear to the apprehension of the mind, . . . . . to seem . . . . . to look." The use of this word in Article 103 is appropriate because in principle it is not right to keep doubts about the regularity of enrolment open for ever. Such doubts can be effectively removed under Chapter IV of the Electoral Act in which a suitable procedure and machinery have been provided for this purpose. It is wrong to use the procedure and machinery, which is provided to remove doubts about enrolment. But the Election Tribunal has gone into the correctness and validity of the appear ance of Mir Ghaus Bakhsh Bizanjo's name on the electoral roll for three main reasons Firstly, the Electoral Act deals with the enrolment of electors and not with their qualifications as candidates ; there fore, inquiries and decisions made under that Act should not be considered final for the candidature of a person at an election. Secondly, the word "appear" should be understood to mean "legally appear" otherwise there will be no distinction between genuine and forged entries. Roliapce bas been placgd in this respect on Ghulam Abbas v. The Additional Commissioner P L D 1965 Kar. 625 and Election Tribunal Khairpur Mirs. Thirdly, the minimum age of an elector is different from the minimum age of a candidate; therefore, appearance of the name of a person as an elector on the electoral roll is no proof of his qualification as a candidate from the point of view of his age. This view has been supported by referring to Muhammad Tufail v. Muhammad Salim P L D 1967 Kar. 104 and Abdur Rashid v. Khaivaja Mahood Sadiq, Additional Commissioner (Revenue) and Election Tribunal, Sargodha Division P L D 1966 Lah. 216.

20. In the above reasoning it is presumed, that appearance alone of a candidate's name on the electoral roll is not one of his qualifications. But that is not correct. A candidate is required by clause (i) of Article 103 of the Constitution (which has been reproduced above in paragraph 2), to have two qualifications. Firstly, that his name should "appear" on the electoral roll, secondly, that he should not be less than 25 years of age, although an elector can be 21 years of age under Article 157(a) of the Constitution. In the case now before us there is no dispute about age, therefore, the question of the second qualification does not arise. About the first qualification we know that a name is brought on the electoral roll under the provisions of the Electoral Act, and all doubts in respect of the correctness and legality of such entry are to be removed in terms of that Act; therefore, if a name "appears" on the electoral roll then the first qualification of a candidate as laid down in Article 103(i) of the Constitution, is fulfilled. It is true that "appears" does not mean deceptively made to appear, but this difference is not the same as exists between a legally correct entry and legally wrong entry. Far from it. It is the one that exists between genuine and counterfeit, between real and spurious and between true and false. Mere appearance of a name is independent of the soundness or unsoundness of the processes by which it may have come into existence, but apart from that there can be deception and fraud in the appearance. A false appearance is like an illusion in contrast with a genuine appearance. But in this case it is not possible to say that the officers have not made the entry; therefore, the entry is not false in that sense. If there was a legal flaw in the process of making the entry then it is foreign to considerations of appearances. The Tribunal could disregard the entry on adequate proof of forgery, which in civil law is a form of fraud, and is only partly related to appearances because intention is an essential ingredient of forgery and fraud and is not related to appearances. In the case now before us, there is no proof of an intention to deceive. Moreover, the facts pleaded in paragraph 3 of the Election Petition to establish forgery have not been proved, but it is one thing to use the idea of forgery and quite another to plead and prove it Yet the Tribunal has disregarded the entry of Mir Ghaus Bakhsh Bizanjo's name on the electoral roll. If only the ink was different and the alphabetic order and serial number were wrong, without the insinuation of forgery and fraud, there could obviously be no objection to the validity of the entry. In fact objection has not been taken to these blemishes. They have been us d on the one hand by Hafiz Muhammad Habibullah, only as signs of perpetration of forgery on the electoral roll and, on the other hand by the Election Tribunal, as signs of perpetration of forgery and fraud in respect of "basic provisions" of the Electoral Act and the Constitution. They do not prove forgery or fraud‑See Jamal Shah v. Election Commis sion (P L D 1966 S C 1).

21. The three judgments to which reference has been made by the Tribunal, do not, in our opinion, support the Tribunal's view. Ghulam Abbas v. Additional Commissioner Khairpur is against it. Abdur Rashid v. Mahmood Sadiq and Muhammad Tufail v. Mohammad Salim are not relevant, because they deal with the qualification of appearance of name in the electoral roll. The Lahore judgment deals with the powers of an Election Tribunal appointed under the Electoral College Act, whereas in this case the Election Tribunal was appointed under the National and Provincial Assemblies Act. The judgment of the Full Bench does got even deal with the powers of an Election Tribunal, because the question which was before it related to the powers of a Returning Officer appointed under the Electoral College Act. The majority view, however, contains an obiter dictum as follows: "Although in the present case we are not directly dealing with the question of powers of an Election Tribunal, yet we may be permitted to observe that under rule 36 (1‑A) the Tribunal has been given the power to 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 contravention of, any provision of the Act or the Rules. Now, the requirement as to the age of a candidate is laid down in section 21 "of the Act read with Article 158(1) of the Constitution and accordingly if a candidate is in fact below 25 years of age, it is clearly a case of a contravention of one of the basic provisions of the Act and the Constitution, with the result that the Election Tribunal would have the power to declare the election void by reason of the fact that one of the contesting candidates was not qualified for being elected as a member of the Electoral College. Further, section 53 of the Act deals with disqualifications, but the requirement of the minimum age of 25 years is not in the nature of disqualification, but merely an essential qualification." In the above passage, equal emphasis has been laid on compliance of "the basic provisions" of the Electoral Act, as well as the Constitution, in order to support the conclusion that the prohibition contained in section 23(3)(iii) of the Electoral Act, could be disregarded. As I am at liberty to disagree with the obiter dictum, 1 wish to state in all humility, that after the restriction which has been unambiguously and categorically placed by section 14(3)(a) (read with (d) (iii) of the Act), on the scope of enquiry for determining the qualification of a candidate, (1) P L D 1966 S C 1 it cannot be enlarged by an Election Tribunal even if it treats the scope of the enquiry as secondary and the qualification of the candidate as basic and constitutional. This should be more so when as in the present case, the necessary consequence of such enlargement would be destruction of finality of the electoral roll as well as of all restrictive provisions. If statutory restriction lose their force on the ground that the qualification of a candidate is basic and constitutional, then all statutory prohibi tions against the institution of suits (See section 84 of the Electoral Act, 1964 and section 112 of the Elections Act) should also be treated as of no effect when the question of the qualification of a candidate arises.

22. The conclusion of the foregoing discussion is that the Election Tribunal had no legal authority to decide that the name of Mir Ghaus Bakhsh Bizanjo did not validly appear on the electoral roll, and that he was not qualified to be elected as a K Member of the National Assembly in terms of Article 103(1)(a)(f) of the Constitution and section 12 (2) (a) (i) of the National and Provincial Assemblies (Elections) Act, 1964, and that its decision dated 6‑11‑1967 is of no legal effect.

23. In final result, I dismiss the Petition No. 182 of 1.968 of Hafiz Muhammad Habibullah and accept Petition No. 539 of 1967 of Mir Ghaus Bakhsh Bizanjo, as explained above. NOORUL ARFIN, J.‑I agree with my learned brother, Qadeeruddin Ahmed, J., that the petition of Mir Ghaus Bux Bizanjo be accepted and that of Hafiz Muhammad Habibullah be dismissed. But I would like to give some further reasons for coming to this conclusion.

2. The case, in my opinion, has to be considered from three aspects, that is:‑ (i) Whether Mr. Bizanjo's name appeared in the electoral roll of the Union Council, Nal Tehsil Khuzdar, District Kalat due to some interpolations and accordingly he should be deemed to be disqualified to election to the National Assembly from Constituency No. NW‑4, Karachi‑cum‑Lasbella? (ii) Whether the Election Tribunal No 2 had jurisdiction to hear the election petition filed by Hafiz Muhammad Habibullah, this question itself being dependent on the validity and propriety of the order by which the Chief Election Commissioner transferred the petition from Election Tribunal No. 1 to the Election Tribunal No. 2? (iii) Whether the Election Tribunal No. 2 acted correctly in refusing the application of Mr. Bizanjo for examination of two witnesses on his behalf, namely, Abdul Hameed Bizanjo and Shamshad Ahmed, and the further application of Mr. Bizanjo to recall P. W. 2 Muhammad Yasin, and to summon from the Assistant Director of Basic Democracies, Kalat, preliminary and final electoral lists of various units adjoining the Union Council, Nal ?

3. The first aspect has been dealt with in detail by my learned brother, and I cannot usefully add anything to what he has stated in his opinion. I would therefore confine myself to the question of the transfer of the election petition from Tribunal No. I to Tribunal No. 2, and the orders of this latter Tribunal in rejecting Mr. Bizanjo's application to summon further evidence on his behalf, and to recall P. W. Muhammad Yasin.

4. The power of the Election Commission to transfer an election petition from one tribunal to another is contained in section 62 of the National and Provincial Assemblies (Elections) Act (VII of 1964). This section reads as follows: "The Commissioner, either of his own motion or on an application made in this behalf by any of the parties, may, at any stage, transfer an election petition from one Tribunal to another Tribunal in the Province, and the Tribunal to which the election petition is transferred shall proceed with the trial of the petition from the stage at which it was transferred: Provided that the Tribunal to which an election petition is so transferred may, if it thinks fit, recall and examine any of the witnesses already examined." Mr. A. K. Brohi, the learned Advocate for Mr. Ghaus Bux Bizanjo, deals with this question in three ways:‑ (i) that the power to transfer an election petition cannot be exercised after the close of the evidence and the arguments before the Tribunal in which the election petition had been pending; (ii) that this power cannot be exercised without first giving notice of the proposed transfer to the affected parties; (iii) that in the circumstances of the present case it should be held that the order of transfer was arbitrary and was made without the Election Commission applying its mind as to the necessity of transfer at all.

5. With regard to the first contention, it was pointed out that the evidence and arguments of parties were closed on 6‑2‑1967 before the first Election Tribunal, and the case was posted for judgment. But before judgment could be given, Mr. G. Mueenuddin, the Chief Election Commissioner, transferred the election petition to the Election Tribunal No. 2, the ground given for this order being that the transfer was necessary in the interest of "speedy disposal of the case". According to Mr. Brohi, an election petition can be transferred from one tribunal to another only if the petition is pending at the stage of "trial", the expression "trial" being constructed as including proceedings up to the close of evidence and arguments of the parties. This contention is based on the following words of section 62(1) of Act VII of 1964: " and the tribunal to which the election petition is so transferred shall proceed with the trial of the petition from the stage at which it was transferred," and on section 71 of the Act, which provides that the tribunal may, "upon the conclusion of the trial of an election petition", make any of the orders enumerated in clauses (a), (b), (c) and (d), these orders being dismissal of the petition; declaring the election of the returned candidate to be void; declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate have been duly elected; or declaring the election as a whole to be void. It is said that under section 71, the decision of the tribunal is to follow the conclusion of the "trial", and of necessity the meaning of this expression has to be confined to proceedings upto the stage of the close of evidence and arguments of the parties, as far as section 71 of the Act is concerned, and if so, then the same meaning has to be given to the word "Trial" in section 62 of the Act. Now, the word "trial" has been used in various enactments sometimes in a narrow sense, that is to connote proceedings up to the stage of the closing of the evidence and arguments, but sometimes this expression is used to include all the proceedings from the time when parties are called to try their case up to the time of its final determination. For the first view reference may be made to Murugappu Thevan and others v. Emperor (A I R 1936 Mad. 163) The second view is supported by the English decision, Rex v. Grant ((1951) L R 1 K B 500). In my opinion, the answar to the question whether the word "trial" should be used in the narrow or in the broad sense, would depend upon the context in which this expression is used. As regards Act VII of 1964, I find it difficult to accept the view that this word is used in a narrow sense in section

62. However, I do not think that it is necessary to decide this point in the present case, for the question of the validity of the transfer of the election petition in these proceedings can be decided with reference to the two .further points which Mr. Brohi urged in this connection, that is, that the order of transfer is arbitrary and is invalid, having been made without notice to the parties, and without the Chief Election Commissioner applying his mind to the necessity of transfer at all.

6. I have stated that the parties closed their evidence and arguments before the Election Tribunal No. 1 on 6‑2‑1967. What then remained to be done was only the pronouncement of the Tribunal's judgment. But before this could be done, the El.ction Commission transferred the case to the Tribunal No. 2 for the purpose of the "speedy disposal of the case". This object was not achieved, as the second Tribunal found it necessary to re‑call three witnesses of Hafiz Muhammad Habibullah, and could not give its award before 6th November 1967. According to Mr. Bizanjo, the order of transfer was mala fide, having been made when it became known that the decision of the first Tribunal was going to be against Hafiz Muhammad Habibullah. 1t was on this ground that Mr. Bizanjo challenged the order of transfer in a petition under Article 98 of the Constitution before the Lahore Bench of this Court. Division Bench there took the view that the allegation as to mala fides "seems to be not without founda tion". Nevertheless, the Court directed Mr. Bizanjo "to move the present Chief Election Commissioner for the review of the order of his predecessor". This application for review was made, but was rejected. It was urged on behalf of Hafiz Muhammad Habibullah that Mr. Bizanjo should again have come to the High Court against the order on his application for review, and that since he did not do so, but participated in the proceedings before the Tribunal No. 2, he should be deemed to have acquiesced in the transfer of the case from the Election Tribunal No. 1 to the Election Tribunal No.

2. Ordinarily, this argument would have carried weight, but in the circumstances of the present case, I cannot apply the rule of acquiescence, particularly in view of the fact that throughout the relevant period, Mr. Bizanjo was in detention in jail. I think Mr. Bizanjo had no option but to proceed with his case before the Tribunal No. 2.

7. The order of transfer of the election petition to the second Tribunal was made by the Chief Election Commissioner for the purpose of the "Speedy disposal of the case". Can this ground be treated with even semblance of seriousness in the circumstances of the present case? The parties had closed their evidence and arguments on 6‑2‑1967 before the first Tribunal, which had only to pronounce its decision. One view may be that this fact was not known to the Chief Election Commissioner, in which case the order is open to attack on the ground that it was made without inquiry into, or without the Chief Election Commissioner applying his mind to, the actual state of affairs. But if the Chief Election Commissioner knew that evidence and arguments had concluded before the first Tribunal, and only the order of the Tribunal remained to be delivered, then he should also have known that the transfer of the case to a new tribunal would not result in speedy decision, as it would be necessary for this tribunal, if not to bear the evidence again, then, at least, to hear the arguments of the parties on the various points at issue between them. Such a re‑hearing, instead of attaining speedy disposal of the case, would rather delay the decision, and in fact the decision was delayed, as the award of the Tribunal No. 2 could not be given before the 6th November 1967, that is, nearly 10 months after the parties closed their case before the first Tribunal. In these circumstances, I am of the view that the Chief Election Commissioner should have given notice to the parties of his intention to transfer the case, and should have given them opportunity to show cause there against, because his proposed order for transfer was likely to, and did indeed, subject the parties to further delays and expenses of litigation. Further, the ground given for the transfer of the case, that is, the speedy disposal of the case, was illusory as well as unreasonable, as both the. parties had practically closed their case before the first Tribunal, whose decision would have come in due course but for the order of transfer. The Chief Election Commissioner, it is evident, failed to apply his mind to the question whether transfer was at all necessary in the circumstances of the case, and if he did apply his mind, then the reason given by him for transfer is illusory, in which case his order would be characterised as arbitrary exercise of power. In either case, the order of transfer cannot be upheld, as it should be deemed to have been made with out lawful authority. In this view of the matter, the Election Tribunal No. 2 had no jurisdiction to hear the election petition of Hafiz Muhammad Habibullah, and, therefore, its order accepting the election petition of Hafiz Muhammad Habibullah was made without lawful authority.

8. Another aspect of the case is the refusal of the Tribunal No. 2 to summon evidence for which Mir Bizanjo made two applications. The Tribunal recalled three witnesses of Hafiz Muhammad Habibullab, they being P. W. Muhammad Siddiq, Record Keeper in the office of the Assistant Director of Basic Democracies, P. W. Muhammad Yasin, Registration Officer, and P. W. Muhammad Shafi, Nazim Jhalwan Khuzdar. These witnesses were recalled under the proviso to section 62 of Act VII of 1964. Section 62, it will be noted, provides that the Tribunal to which the election petition is transferred shall pro ceed with the trial of the petition from the stage at which it is transferred, but an exception to this rule is contained in the proviso, which permits the Tribunal, to which the election petition is transferred, to recall and examine any of the witnesses already examined. Mr. Bizanjo made an application to summon two witnesses, who had not been examined by the Tribunal No. 1 namely, Abdul Hamid Bizanjo, the enumerator who had prepared the preliminary electoral lists and Shamshad Ahmad, the Super visor, who had checked those lists. This application was rejected on the ground that section 62, read with its proviso, did not permit Tribunal to summon any evidence. In the present case, the evidence and arguments of the parties had closed before the order of transfer was made by the Chief Election Commissioner, and therefore, the view taken was that the Tribunal No. 2 could only give judgment in the case except for the exception contained in the proviso which empowered this Tribunal to recall and re‑examine any of the witnesses previously examined. The question is whether the proviso to section 62 places any bar on the Tribunal to which an election petition is transferred to call further evidence, suo moto or at the request of any of the parties to the proceedings, in cases where evidence had closed before the First Tribunal. Now, under sections 66 and 68 of Act VII of 1964, the procedure of the Election Tribunal is regu lated by the Code of Civil Procedure, 1908. Section 66 provides that the every election petition shall be tried as nearly as be in accordance with the procedure for the trial of suits under the Code of Civil Procedure. Section 68 (1) states that the Tribunal shall have all the powers of a civil Court trying a suit under the Code of Civil Procedure. If the election petition had been tried before the civil Court as a suit under the Code of Civil Procedure, then it cannot be doubted that the civil Court would have had power to permit any of the parties to recall further evidence, even though its case had been closed. (See Rakhal Dass Mundal v. Pratab Chander Hazrali ((1869) 12 S W R 455)). Further; under Order XVI, rule 14, Cr. P. C. the civil Court is empowered to call any person as witness if it thinks it necessary to examine him, and this power can be exercised by the Court either on its own motion or on the application of any of the parties to the proceedings. The first part‑9f section 62 may be compared with Order XVIII, rule 15, C. P. C., under which a successor Judge may proceed with the suit from the stage at which his predecessor left it. Order XVIII, rule 17, permits the Court to recall any witness who has been examined already. Thus section 62 and the Pro viso thereto, in effect, are reproduction of the principles contained in Order XVIII, rules 15 and 17, C. P. C. But it has never been doubted that in cases which are proceeded with under these rules, the civil Court has power to permit a party to call further evidence after it has closed its case. It is said that section 62 departs from the rules contained in the Code of Civil Procedure, in that by providing in the proviso that the tribunal may recall any of the witnesses already examined, there is an implied exclusion of power to call further evidence at the request of a party if it had already closed its case before the first Tribunal. It is no doubt true that in construing the statutes the rule has often been applied that express provisions excludes further implication. But to use the words of Farewell L. J., in Love v. Dorling & Son ((1906) L R 2 K B 772), it is not enough that the express and the tacit should merely be incongruous; it must further be clear that they cannot reasonably be intended to co‑exist. Can it be said that the power given to the tribunal by the proviso to section 62 to recall and examine witnesses previously examined, cannot co‑exist with the power to call further and additional evidence? In my view, not only that these two powers can reasonably co‑exist, but there is not even any incongruity between the two powers. Moreover, in the present case we are dealing with a procedural rule. In view of the provisions of sections 66 and 68 (1) of Act VII of 1964, the election tribunal is, for all practical purposes, a civil Court, and accordingly rules of pro cedure on which the civil Courts act would be attracted to the trial of petitions before the election tribunals. The civil Courts act on the following rule laid down by Mahmood, J., in Narsingdas v. Mangal Dubey (I L R 5 All. 163) "Courts are not to act upon the principle that every pro cedure is to be taken as prohibited unless it is expressly provided for by the Code but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibitions cannot be presumed." It is not therefore possible to agree with the view that the Proviso to section 62 impliedly excludes the power of the tribunal, which an election petition is transferred, to call further evidence for a party which had closed its case before the first tribunal. The power to recall witnesses already examined is, per haps, expressly contained in the Proviso as it might have been thought exobundanti cautela desirable to include express provision to this effect, in view of the provision contained in the first part of section 62, which states that the tribunal the which the election petition is transferred shall proceed with the trial of the petition from the stage at which it was transferred. But inclusion of this express power cannot be taken to exclude the power, which is possessed by every civil Court to call further evidence on behalf of the party which had closed its case before the first tribunal.

9. The point under consideration may be approached from another angle, that is, with reference to the powers of the first tribunal. If the view is taken that the election petition was pending at the stage of "trial" before the first Tribunal, even though evidence and arguments have closed, then could this tribunal summon further evidence, either on its own motion or on the application of any of the parties to the proceedings ? It cannot be maintained that the first tribunal was not possessed of such power, but if this power is conceded in favour of the first tribunal, then the tribunal to which the petition is transferred cannot be denied the like power. The Tribunal No. 1 can be held not to have possessed such power in the present case, only if it is held that the election petition was not pending before it at the stage of "trial" when the order of transfer was made. But then, if the trial had closed, there was no power at all in the Chief Election Commissioner to transfer the petition to the Tribunal No. 2.

10. The decision of the tribunal accepting the election petition of Hafiz Muhammad Habibullah mainly rested on the alleged interpolations in the electoral rolls, including the prelimi nary as well as the final lists. An allegation of this nature is, in effect, an allegation of forgery. To satisfy itself if there were interpolations in the electoral rolls, the second Tribunal considered it necessary to recall three witnesses of Hafiz Muhammad Habibullah, who had already given their statements before the first Tribunal. These witnesses are P. Ws. Muhammad Siddiq, Muhammad Yasin and Muhammad Sharif, and it is on their evidence that the Tribunal came to the finding that the name of Mr. Bizanjo had been brought in the electoral rolls through interpolations. But these three witnesses had stated that the preliminary electoral list was made by Abdul Hamid Bizanjo and was checked by the Supervisor, Shamshad Ahmad. The preliminary list included the name of Mr. Ghaus Bakhsh Bizanjo who, to rebutt the evidence of these witnesses, made an application to the second Tribunal to summon Abdul Hamid Bizanjo and Shamshad Ahmad. This application, as noted, was rejected for the reason discussed above. The effect of this order was that whereas Hafiz Muhammad Habibullah got an opportunity to improve his case, Mr. Ghaus Bakhsh Bizanjo was not allowed to call as witness even those persons who were in the best position to give evidence on the question whether the inclusion of Mr. Bizanjo's name in the electoral rolls was the result of interpola tions or of forgeries. The way I look at this aspect of the case is, that the second Tribunal reopened the case, but only for the purpose of recalling Hafiz Muhammad Habibullah's witnesses in support of the allegation of forgeries in the electoral lists, but refused to give any opportunities to Mr. Bizanjo to rebut the evidence of these witnesses. In this the tribunal acted in violation of the rules of natural justice. I am supported in this view by the decision of the Federal Court in Ali and another v. Crown (P L D 1952 F C 71). In this case, some prosecution witnesses were recalled and examined at the appellate stage, but the request of defence counsel for opportunity to rebutt this evidence was rejected. In the view of their Lordships, this procedure violated the principles of natural justice. I do see that this decision was given with reference to trials under the Criminal Procedure Code. But in my view, the rule laid down by their Lordships would apply equally to all cases where either evidence is recalled or further evidence is taken, and the opposite‑party considers it necessary to meet this new evidence.

11. This takes me to another order of the Tribunal No. 2, made on 12‑9‑1967, whereby Mr. Bizanjo's application to recall P. W. Muhammad Yasin and to summon electoral rolls for units adjoin ing the Union Council, Nal, was rejected. Hafiz Muhammad Habibullah's case before the Tribunal was that Mr. Bizanjo's name was included in the electoral lists after the same had been closed by drawing diognal lines and writing total number of voters at the end of the lists. The main evidence on this point was Muhammmad Yasin, who was examined afresh before the second Tribunal when Mr. Bizanjo was in detention in jail. The contention put forth on behalf of Mr. Bizanjo was that on investigation it had been discovered that Muhammad Yasin had not closed electoral lists of the various adjoining units either by drawing diognal lines or by writing total number of voters at the end, and in this connection copies of some electoral lists also were produced before the tribunal who, however, refused to recall either Muhammad Yasin or to summon these electoral lists on the ground that the application has been made at a belated stage. Again, in my view, the Tribunal acted in breach of the rules of natural justice. A serious allegation of forgery had been made by Hafiz Muhammad Habibullah, which allegation if true, would subject Mr. Bizanjo to a charge of criminal offence. The Tribunal had the power to recall P. W. Muhammad Yasin, and also to summon the electoral lists of the units adjoining Union Council, Nal and it should have exercised its power in view of the serious nature of the charge against Mr. Bizanjo. The reason given by tribunal for its order, that the application in this behalf as made at a late stage is not satisfactory, if it is kept in view that the decision of the Tribunal was given nearly two months after rejection of Mr. Bizanjo's application.

12. Thus, I am of the view that the orders of the Tribunal in rejecting Mr. Ghaus Bakhsh Bizanjo's application to summon Abdul Hamid Bizanjo and Shamshad Ahmad, as witnesses on his behalf, and to recall P. W. Muhammad Yasin and to call for electoral lists of unit adjoining Union Council, Nal, cannot at all be supported in law. The rejection of the first application is based on misconstruction of the provisions of section

62. Moreover, the Tribunal's action in recalling three witnesses of Hafiz Muhammad Habibullah, who supported the allegation of forgery, but refusing to give opportunity to Mr. Bizanjo to rebut this evidence, is a violation of the rules of natural justice. In my view these defects vitiate the Tribunal's decision by which the election of Mr. Bizanjo to the National Assembly was declared to be void. I would, therefore, quash this decision, which in my opinion was made without lawful authority. The conclusion embodied in paragraph 23 above was announced on 17‑3‑1969, and our judgments (fated 17‑3‑1969 and 22‑3‑1969 contain the reasons which have led to that conclusion. A. E. Petition accepted.