1986 PLP 753 (CLC)

AJMAL MIAN, J.‑--‑This petition is directed against the order, dated 27‑5‑1984 passed by the learned IInd Additional District Judge, Karachi, acting as the Election Tribunal under the Sind Local Government Ordinance, 1979 unseating the petitioner on the grounds that the petitioner was a candidate of the Jamiat Ulma Pakistan and had got votes on their support, he had purchased the votes by paying Rs. 100 to each family and had collected National Identity Cards of the voters during the night of 28‑29th September, 1983 and he had failed to file statement of expenditure and had incurred more amount on the election campaign contravening the election rules. The learned Tribunal has also ordered re‑election of the unit in question.

2. The brief facts leading to the filing of the above petition are that the petitioner and six others contested for K . M. C. No. 102 and U.C. No. 116 on 2‑10‑1983. The petitioner was declared successful. Respondent No. 2 who had secured next highest votes filed Election Petition No. 175 of 1983 on a number of grounds including the grounds which found favour with the learned Election Tribunal. It may be mentioned that in the above election petition apart from the petitioner, who was arraigned as respondent No. 7 the other contesting candidates were also impleaded including present respondent No. 9 Merajuddin and respondent No. 12 Badaruddin, who supported the election petition. The election petition was resisted inter alia by the present petitioner, who filed written statement denying the various allegations contained in the petition apart from raising the pleas that the election petition was time‑barred, the petition was not verified as provided under Order VI, rule 15 and the annexures filed with the petition were not verified at all in any manner. The learned Election Tribunal framed the following four issues: (1) Whether the petition is time‑barred under rule 69 of Sind Local Government Election Rules? (2) Whether the petition is not maintainable as framed? (3) Whether the malpractices as alleged did occur? If so what is its effect? (4) What should the order be?

3. Respondent No. 2 filed his affidavit in evidence Exh.l and affidavits of his witnesses, namely, Shahabuddin Exh.2, Abrar Ahmad Exh.3, Shahid Hussain Exh.4 and Junaid Ahmad Exh.5. The above witnesses were cross‑examined by the Advocate for the petitioner. On the other hand the petitioner filed his own affidavit Exh.6 and the affidavits of Alauddin Qureshi Exh.7, Abdul Jalil, Sharif Ahmad, Nazar Hussain, Zaheer Ali, Zafaruddin and Syed Nazar Hashmi. However, he made himself and Alauddin Qureshi only available for cross‑examination by the counsel for respondent No.2, consequently, the affidavits of the other above witnesses, who were not made available for cross-examination were ignored by the learned Election Tribunal. Respondent No. 9 Merajuddin who was respondent No. 8 in the election petition filed his affidavit in evidence as Exh.8 and affidavit of his Chief Polling Agent Mohammad Aqeel as Exh.11. Present respondent No. 12 Badaruddin who was respondent No. 11 in the election petition filed his affidavit in evidence as Exh.12. The above respondents and their witnesses were also cross‑examined by the learned counsel for the petitioner as they had supported the election petition.

4. The learned Election Tribunal after hearing learned counsel for the parties allowed the above election petition by the aforesaid order, dated 27‑5‑1984 in the above terms. The petitioner being aggrieved by the above order has filed the present petition.

5. Mr. Raja Qureshi assisted by Mr. Sibghatullah Hamid, learned counsel for the petitioner has contended as follows:-- (i) that the election petition was time barred. (ii) that since the annexures were not verified as per rules, the petition was liable to be dismissed. (iii) that the Election Tribunal was not competent to hold inquiry in respect of the allegation that the petitioner was a candidate of Jamiat‑Ulma‑Pakistan and had got votes with their support. (iv) that since the trial of the charge of illegal and corrupt practice is of a quasi‑criminal nature, the learned Election Tribunal should not have accepted the evidence produced against the petitioner which comprised of defeated candidates and the deserters whose position was akin to an accomplice. (v) that since the learned Election Tribunal has not recorded the finding that the alleged proved illegal and corrupt practices have materially affected the election result the petitioner should not have been non‑seated.

6. On the other hand Mr. Nasim Farooqi assisted by Mr. Syed Jamil as urged as follows: (i) that the election petition was filed within 60 days from the date of the gazette notifying the result and, therefore, it was within time as per sub‑rule (2) of rule‑ 65 of the Sind Local Council (Election) Rules 1979. (ii) that the requirement for verification of the annexures was of a directory nature and therefore, the non‑verification could not have entailed the dismissal of the election petition. (iii) that the finding of the Election Tribunal cannot be disturbed in a constitutional writ petition unless it is found to be based on no evidence or misreading of evidence. (iv) that the evidence on record was sufficient to justify the conclusions arrived at by the learned Election Tribunal. (v) that there is no requirement that the Election Tribunal should record the finding that the illegal and corrupt practices have affected the result.

7. Adverting to the first contention of the learned counsel for the parties, it may be observed that sub‑rule (2) of rule 65 of the Sind Local Council (Election) Rules 1979 (hereinafter referred to as the rules) provides that an election petition shall be presented to the Election Authority within sixty days of the publication in the official Gazette the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited in a scheduled bank in favour of the Election Authority as security for the costs of the petition a sum of rupees five hundred. In the present case the result was published in the official Gazette on 11‑10‑1983, whereas the election petition was presented on 11‑12‑1983. However, it was urged by Mr. Raja Qureshi that factually the result was known when the Returning Officer notified the result immediately after the election on 2‑10‑1983. In our view, we cannot read into sub‑rule (2) of rule 65, 60 days from the date of the result notified by the Returning Officer in place of the words "60 days of the publication in the official Gazette". Mr. Raja Qureshi has referred to the case of Muhammad Hanif v. Ghulam Hyder Shah and 2 others reported in P L D 1982 Kar. 957, in which a Division Bench of this Court held that the cause of action accrues to an aggrieved party immediately on declaration of result by public notice under rule 43 and, therefore, he is entitled to file election petition without waiting any further as the publication in the official Gazette was merely procedural. In the above‑cited case the petition was filed before the publication of the notification in the official Gazette and the petition was opposed by the respondent inter alia on the ground that it was premature and therefore, should be dismissed. The Election Authority did not dismiss the same, which was upheld by the High Court by the above judgment. In this regard, it may be observed that originally cause of action accrues to an aggrieved candidate upon the issuance of a public notice under rule 43 but it stands matured upon the publication of the notification in the official Gazette. The above case does not lay down that if a petition is filed within 60 days from the date of the official Gazette, the same will be time‑barred. We are inclined to hold that an aggrieved party is entitled to file an election petition either immediately on the issuance of a public notice under rule 43 or he may wait till the result is notified in the official Gazette. The outer limit for the purpose of limitation for filing an election petition is 60 days from the date of publication of the notification in official Gazette. We are, therefore, of the view that the finding recorded by the learned Election Tribunal on this point that the election petition was within time is in accordance with law.

8. As regards the second contention of Mr. Raja Qureshi that the petition was not verified as per rules and the annexures were not verified, it may be pertinent to refer to the case of Ch. Saeed Ahmad v. M.S. Abid and 2 others reported in 1982 C L C 1393, in which a Division Bench of this Court held that Election Tribunal was not competent to dismiss the election petition referred to it by the Election Authority for non‑compliance of rules 66 and 67 of the Rules. It may be observed that sub‑rule (3) of rule 67 provides the manner of verification of the election petition and of schedule or annexe annexed thereto. It may be pointed out that the above judgment of the Division Bench was in consonance with the judgment of the Supreme Court, dated 11‑4‑1981 passed in C.P.S.L.A. No. K‑48 of 1981. Factually the above judgment has been followed subsequently in a number of cases. We, therefore, see no reason to take a different view. Consequently, the finding of the learned Election Tribunal that the election petition was not liable to be dismissed on that account is also in accordance with law.

9. Reverting to Mr. Raja Qureshi's third contention that the Election Tribunal was not competent to investigate into the question that the petitioner was a candidate of a political party and because of its support obtained votes, it may be observed that he had referred to an unreported judgment of a Division Bench of this Court, dated 23‑2‑1982 given in Constitutional Petition No. 1095 of 1981 Muhammad Hussain Brohi v. Election Tribunal (Special Judge) Anti‑Corruption, Karachi and others), in which it was held that the election tribunal had no power to adjudicate upon the ground covered by section 37‑A of the Sind Local Government Ordinance, 1979. The reliance was placed on the case of Mirza Muqeem Baig v. Election Authority Hyderabad and 15 others now reported in 1982 C L C

291. Mr. Nasim Farooqi learned counsel for the respondent No. 1 has candidly conceded that the law on the point in question obtaining at present is that an Election Tribunal cannot go into the question covered by section 37‑A of the Ordinance as the appeal filed against the above reported judgment in the Supreme Court had been dismissed by the Honourable Supreme Court on the ground that it had become infructuous. In this view of the matter, the finding of the learned Tribunal that the petitioner was a candidate of damiat‑Ulma‑Pakistan and had got votes with their support cannot be sustained on account of want of jurisdiction.

10. As regards the fourth contention of Mr. Raja Qureshi that the trial of the charge of illegal and corrupt practices is of quasi‑criminal nature and therefore, the learned Election Tribunal should not have accepted the evidence produced against the petitioner, which comprised of defeated candidates or deserters who stand on the footings of an accomplice, it may be observed that he has referred to the cases of (i) Sri Raj Raj Deb v. Sri Gangadhar Mohapatra and others A I R 1964 Orissa 1 and (ii) Krishna Kumar v. Krishna Gopal A I R 1964 Raj.

21. In the first case a Division Bench of the Orissa High Court while hearing an appeal under the Representation of the People Act, 1951 section 123 observed that the charges of corrupt practices required same standard of proof as is required in criminal cases and that the candidate's polling agents who allegedly participated in the illegal and corrupt practices stand in the position of accomplice and, therefore, their testimony against the candidate should not be accepted without adequate corroboration. Whereas in the second case a Division Bench of the Rajasthan High Court while hearing an appeal under Representation of People Act, 1951 observed that proceedings for getting election declared void on the ground of corrupt practices are quasi‑criminal in nature and that the standard of proof is similar to that in criminal cases. Mr. Nasim Farooqi has fairly invited our attention to the case of Muhammad Saeed and 4 others v. Election Petitions Tribunal West Pakistan and others reported in P L D 1957 S C (Pak.) 91, in which the Honourable Supreme Court of Pakistan held that the full particulars of corrupt practices should be given by the petitioner in an election petition and that each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial and that where the evidence is wholly circumstantial before recording finding of a corrupt practice all reasonable hypothesis which are consistent with that corrupt practice having not been committed must be excluded. Mr. Nasim Farooqi has also invited our attention to the case of Zulfikar Ali Bhutto v. The State reported in P L D 1979 S C 53, in which the majority view was that an accomplice is a competent witness and the conviction on his evidence is not illegal merely for proceeding upon uncorroborated testimony of an accomplice but section 133 read with section 114, illus. (b), Evidence Act, 1872, however, renders evidence of accomplice unworthy of credit unless corroborated in material particulars which is a rule essentially of caution.

11. Before taking up the merits of the two remaining proved charges, it may be appropriate to refer to the cases relied upon by Mr. Nasim Farooqi as to the jurisdiction of this Court in a constitutional petition against an order passed by an Election Tribunal or any Tribunal constituted under special law. Mr. Nasim Farooqi has referred to the following cases: (i) Farid Ahmad v. Ghiasuddin Chowdhary reported in 1968 SCMR 88, in which the honourable Supreme Court of Pakistan while granting leave in a petition against the judgment of the High Court of then East Pakistan Dacca observed that the consistent view of the Supreme Court was that the finding of, fact of a Tribunal in writ jurisdiction cannot be questioned merely on the ground that a different view could be taken on the same evidence or that there was error of law unless errors are so patent and flagrant that no reasonable body or person could arrive at such conclusion. (ii) Mian Jamal Shah v. The Second Election Tribunal, West Pakistan through its Chairman and another, reported in 1972 SCMR

496. In the above case the honourable Supreme Court while dismissing the appeal against the judgment of the Peshawar High Court passed in a writ petition against the order of an Election Tribunal observed that the Election Tribunal was alone competent authority to adjudicate upon the question of corrupt practice, illegal practice or illegal acts and also on the question of exclusion of objectionable votes. (iii) Irshad Khan v. Abdul Majeed and 3 others reported in 1983 S C M R 64, in which a Division Bench of the Supreme Court while declining leave against the judgment of the Lahore High Court, dismissing the constitutional petition against the decision of the Election Tribunal on the ground that the finding of facts arrived at by the Election Tribunal were conclusive observed that the learned counsel for the petitioner failed to show that the Election Tribunal had misread the evidence but in reality the learned counsel for the petitioner wanted to seek reappraisal of the evidence which was not justified in constitutional writ jurisdiction. (iv) Muhammad Sharif and another v. Muhammad Afzal Sohail etc. reported in P L D 1981 S C

246. In the above case a Division Bench of the Supreme Court while declining leave against the judgment of the Lahore High Court passed in constitutional petition observed that Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and that mere fact that another conclusion was possible on the basis of the evidence adduced does not make it a case for interference in exercise of constitutional jurisdiction. It may be pointed out that the tendency of filing writ petition in High Court against the orders passed by appellate Courts was deprecated. It may also be stated that in the above case a writ petition was filed against the appellate order passed in a rent case under the West Pakistan Urban Rent Restriction Ordinance., 1959 on the question of personal requirement which was dismissed by .the High Court. (v) Muhammad Saeed and 4 others v. Election Petitions Tribunal West Pakistan and others P L D 1957 S C (Pak.)

91. This case has already been referred to hereinabove but it may be appropriate to quote the observation of the honourable Supreme Court on the question of Supreme Court jurisdiction against an order of an Election Tribunal which reads as follows: "Coming to the question whether we should interfere with the Tribunal's Report. I may state at the very outset that the supervisory jurisdiction of the Supreme Court under Article 160 is a restricted jurisdiction and an appeal to invoke it will not succeed where a special tribunal, like the Election Petitions Tribunal, has functioned within the spirit and the intention of the statute that created it and while so functioning has made a real and honest endeavour to judge facts on the merits of the evidence and to apply the law to them. A finding of fact thus arrived at, however, erroneous, will not be scrutinized or reviewed by this Court, and even if an error of law be committed by the Tribunal that will not be considered to be a sufficient ground for interference unless the law so misunderstood or misapplied raises some general question of fundamental importance to the proper functioning of the tribunal or the decision of the case. But if the tribunal has made no honest effort to arrive at a correct conclusion or has come to a decision which no reasonable body could ever have come to or has, on no evidence, recorded findings which have deprived persons of important constitutional rights the exercise of which is the very basis on which the whole constitutional fabric rests, this Court will be acting in betrayal of the Constitution if on any such case being made out it did not interfere with the verdict of the tribunal."

12. From the above‑cited cases, 'it is evident that this Court cannot interfere while exercising constitutional jurisdiction with an order passed by a tribunal competent to adjudicate upon the question of fact unless it is shown that the finding is perverse or is based on no evidence or is based on misreading of evidence. Even if we would to treat the trial of the illegal and corrupt practices as quasi‑criminal nature still in exercise of constitutional jurisdiction, we cannot interfere unless we find that the evidence was such' which could not have been relied upon in any view of the matter. This lead us to the question, whether the evidence on record is such which warrants the conclusions of the learned Election Tribunal on the two remaining grounds namely, that during the night of 28‑29th September, 1983 the petitioner had purchased votes by paying Rs. 100 to each of the family and that the respondent failed to file statement of expenditure and incurred much more amount on the election campaign contravening the election rules. It may be observed that on the above first ground apart from the evidence of respondent No. 2 there is ocular evidence of Shahabuddin, Junaid, Merajuddin and Badaruddin. It may be stated that Shahabuddin and Junaid had also filed their nomination papers for the same Unit but had withdrawn the same before the date of the election in favour of the petitioner. It may be pointed out that the petitioner had denied the factum that' the above two candidates had withdrawn their candidature in his favour but this fact stands proved from the applications of withdrawal, which have been exhibited as Exhs. 6/2 and 6/3 in the record of the tribunal and which indicate that factually the above two persons had withdrawn in favour of the petitioner. There is ample evidence on record to show that the above two persons were working for the petitioner in the above election wholeheartedly. This factum is also indicated from the photographs Exhs. A/1, A/2, A/3, A/4, A/5, A/6 and A/7 which are the photos of an election meeting held in connection with the petitioner's election and in which Shahabuddin is sitting next on the dais with 'the petitioner. This fact has also been admitted by the petitioner's only witness Alauddin in his cross‑examination. The petitioner in his cross‑examination has stated that he had no enmity with the above two persons, namely Shahabuddin and Junaid. The latter in their cross‑examination have deposed that after the petitioner had won the election they had developed differences with the petitioner on the question of casting pf vote for the Mayorship. It has been contended by Mr. Raja Qureshi that these two witnesses are deserters and, therefore, cannot be relied upon. It may be stated that the petitioner in rebuttal to respondent No. 2's evidence on the above charge has relied upon his affidavit in evidence alone as Alauddin has not controverted the above charge in his affidavit in evidence. It may again be pointed out that the petitioner in addition to his affidavit in evidence of six persons and of Alauddin had also filed affidavits in evidence referred to hereinabove in para. 3 but did not make them available for cross‑examination and, therefore, the above affidavits have not been considered by the Election Tribunal. It may be observed that the above charge is of such a nature that there cannot be any documentary evidence on the same nor any recipient of Rs.100 would come and depose in the witness box that factually he had received Rs.100 for casting his vote. In this view of the matter there could have been only oral evidence. The statement of Shahabuddin on the above point is corroborated by Badaruddin, who as per his statement in the cross‑examination retired from the election in favour of the petitioner. Junaid has not stated any thing on the above charge, whereas Merajuddin in his cross‑examination has stated that the payment was not made in his presence. It is true that the above evidence is not sufficient to sustain the above charge in a criminal Court. If we would have been exercising appellate or revisional jurisdiction, probably we would have quashed the conviction. But the question in issue is whether we can do so while exercising constitutional jurisdiction in view of the various pronouncements of the Hon'ble Supreme Court referred to hereinabove in para.

11. In our view the constitutional writ jurisdiction of this Court cannot be equated with its appellate or revisional jurisdiction particularly on the question of fact. It may be observed that a finding of fact of a competent tribunal cannot be interfered with by this Court in exercise of constitutional writ jurisdiction on the grouped that the evidence before the tribunal was not sufficient or the quality of evidence was not of the type which a Court of law would have accepted in similar circumstances of the case. It may be observed that even if we were to hold that the above charge does not stand proved, it will not affect our decision as the remaining charge referred to hereinabove can be sustained. 13(a).‑Adverting to the question of excess expenses it may be observed that sub‑rule (3) of rule 62 provides that the election expenses of a contesting candidate shall not exceed two thousand rupees, excluding the‑personal expenditure incurred by such candidate; whereas rule 61 defines the words "election expenses" as means any expenditure incurred or payment made, whether by way of gift, loan, advance, deposit or otherwise, for the arrangement, conduct or benefit of, or in connection with, or incidental to, the election of a candidate including the expenditure on account of issuing circulars or publications or otherwise presenting to the electors, the candidate or his views, aims or objects but does not include the deposit made under rule 18 or 54 of the rules. The petitioner had filed return of election expenses on Form XVII prescribed under rule 63(1) of the rules showing the total expenses of Rs.672 i.e. Rs.410 paid on 26‑9‑1983 to S.M. Printing Press Frere Road and Rs.262 to Messrs Ansari Decoration paid on 29‑9‑1983. The Cash Memos of the above two items have been exhibited as Exhs.6/6 and 6/7. It may be advantageous to reproduce the particulars of the above two Cash Memos., which read as follows: Cash Memo of S.M. Printing Press Exh. 6/6.

Qty PARTICULARS AMOUNT Rupees Paisa

CLIENT: 3000 Pamphletes one colour 250 00 3000 Voter Card one colour. 160 00

Total 410 00

(1)) The particulars as to the excess expenses are contained in paras. 10 and 11 of the election petition, namely, that the petitioner had employed different methods and ways of publicity of his candidature-ship through pamphlets, banners, play cards and hand‑bills and had incurred an amount exceeding Rs. 7,

000. The petitioner opened and operated and established six election offices in the locality and the vicinity from the date of his nomination till 29‑9‑1983 and thereon an approximate amount of Rs. 8,000 as expenses was incurred on furniture, electricity, decoration and entertainment. It has also been averred that on the day of polling the petitioner erected a big Shamiyana with the accommodation of about 500 chairs separating the hall for Buffe and lunch for his workers, associates, friends including the prominent figures of defunct‑political parties namely Jamiat Ulma Pakistan and a handsome amount was spent on it, and the petitioner arranged/ managed and provided hired vehicles in order to provide I conveyance to his voters from their residence to the polling stations. The details of the vehicles is given in para. 11 of the election petition. On the above charge the evidence from the side of respondent No. 2 comprised of ocular and documentary. Ocular evidence consists of the affidavits of Shahabuddin, Junaid, Merajuddin and Badaruddin; whereas from the side of the petitioner his own affidavit on the above point. Petitioner's witness Alauddin in his cross‑examination has stated that it was not within his knowledge what election expenses the petitioner had incurred. The petitioner had produced the above two Cash Memos. Exhs. 6/6 and 6/7 but in his cross‑examination has denied the same by stating that the above cash memos. were forged. In this regard, it may .be stated that Shahabuddin produced Annexures D, E and F alongwith his affidavit in evidence. Annexure D is a receipt of Rs. 150 from one Abdul Rauf Painter paid to him as his charges for writing on account of "Office ur dewar ki likhai ka lia" Annexure E is a cash memo. No. 775 of Arif Arts Sign Painter, Cinema Slides and Designers, C‑14/1 Liaquat Road, Malir Tanki, near Allied Bank, Karachi in the name of petitioner for a sum of Rs. 800 as the writing charges of 40 banners of 2 yards each and Annexure F is a receipt of Rs. 525 for the cost of 21 play cards alongwith painting and service of one A.G. Baloch, Staff Quarters, G.G.S.S., Malir Colony near Ice Factory. It may be observed that if the above three amounts are added to the amount of return filed by the petitioner, the total would come to Rs.2,

147. The petitioner's learned counsel has not cross‑examined on the above three documents though they were part of the affidavit filed by Shahabuddin. However, it was contended by Mr. Sibghatullah that exhibition of a document is different from proving of the contents of the document. In furtherance of the above submission he has relied upon the case of Hasta Ismail v. Emperor, reported in A I R 1937 Lah. 593, in which a Division Bench of the Lahore High Court held that a mere certified copy of a police report does not prove itself in the sense that its contents do not require further proof before being used and that in the absence of any legal proof of such document it is improper for a judge to allow it. It was further held that mere production of a document is not tantamount to proof especially when the production is by a person who is neither the writer of the document nor the person on whose behalf the document has been written. On the other hand Mr. Nasim Farooqi has relied upon the case of P.C. Purushothama Reddiar v. S. Perumal reported in A I R 1972 SC 608 in which the Supreme Court of India inter alia held that once a document is properly admitted the contents of that document are also admitted in evidence though those contents may not be conclusive evidence. Be that as it may, we are inclined to hold that the petitioner was expected to challenge the veracity or the genuineness in the cross-examination of Shahabuddin if his case was that the above documents were manoeuvred and manipulated. Annexure E is corroborated by Exh. 2/1 which was produced by the petitioner's counsel in the cross-examination of Shahabuddin. Exh. 2/1 is a pamphlet issued by Shahabuddin immediately after the election in which inter alia it has been stated that he got 40 banners prepared at the cost of 35 ‑ 40 rupees for a banner for writing, etc. It may also be stated that the petitioner in the above two cash memos. Exh. 6/6 and 6/7 has not shown any expenses on account of the preparation of the banners. In his cross‑examination he has stated that he got three banners prepared. It is evident that the accounts of expenses filed by the petitioner do not reflect the correct position as admittedly this item is missing. The conclusion arrived by the learned Election Tribunal that the petitioner has incurred more than the prescribed expenses is based on the above evidence on record. Respondent No. 2 in his affidavit of evidence has reiterated more or less the contents of the election petition on the above charge. Shahabuddin in his affidavit of evidence has estimated petitioner's publicity expenses as Rs.7,000, decoration Rs.10,000, transport Rs.5,000 and the alleged expenses incurred by petitioner on his alleged six election offices for 15 days at Rs.100 per day per office amounting to Rs.9,

000. Abrar Ahmad had stated in his affidavit that he was actively engaged in the election campaign of the petitioner and was paid by him various sums on the various dates mentioned in para. 3 of his affidavit amounting to Rs.830. Junaid Ahmad in his affidavit of evidence has stated that he was authorised to manage the function of election office of the petitioner in Sheds Nos. 1 and

2. According to him two vehicles were being used for election campaign for about 15 days which were used for transporting the petitioner's supporters from one place to another in connection with the election meetings and for enhancing slogans in his favour. He has stated that four more vehicles were engaged on the day of the election and that petitioner had paid not less than Rs.2,000 to Tayebi Petrol Pump, Malir in connection with the purchase of the petrol. He has further stated that Rs.100 per day per election office were spent by the petitioner for 15 days. Merajuddin in his affidavit in evidence has stated that petitioner according to his estimate had not spent less than Rs.35,000 on his election campaign, transport and running of six election offices and for providing lunch, etc. Badaruddin in his affidavit in evidence has stated that the petitioner had paid a sum of Rs.1,400 to the owner of Tayebi Petrol Pump, Malir City in connection with the purchase of petrol and oil and a sum of Rs.650 to Messrs Faiz Raza Printing Press Shop No. 81, Ghousia Market, E Area, Malir Karachi for getting the voters card printed. (c) The evidence of the above witnesses has been attacked by the learned counsel for the petitioner on the same ground as the evidence on the first charge referred to hereinabove. It will suffice to observe that the question of assessment of the evidence or its evidentiary value was within the jurisdiction of the Election Tribunal and this Court while hearing a constitutional petition cannot constitute itself as a court of Appeal and cannot hold that the quality of the evidence was such that it should not have been accepted by the Election Tribunal. It may also be observed that upon the evidence on record it is evident that the petitioner has not filed the correct expenses return. The conclusion that the petitioner had incurred expenses more than Rs.2,000 is based on some evidence on record and, therefore, it is not a case of no evidence or misreading of the evidence. The petitioner admittedly has not shown any expenses on a number of items, namely for running the election office/offices or on vehicles or on banners, etc. (d) At this stage it may be pertinent to refer to the following other cases cited by Mr. Nasim Farooqi on the point in issue. (i) Shabbir Khan v. Amir Bux and 5 others 1982 C L C 2583, in which a Division Bench of this Court maintained the order of the Election Tribunal. In the above case the petitioner's evidence against the evidence of seven witnesses produced by the respondent was held to be not sufficient in rebuttal by the Election Tribunal. It was held by the High Court that the conclusion arrived by the Election Tribunal is neither perverse nor based on misreading of evidence, and cannot be said to be without lawful authority. (ii) P. C. Purushothama Reddiar v. S. Peruma A I R 1972 S C

608. The above case has already been referred to hereinabove while dealing with the question of admissibility of a document. In the above case it was held by the Indian Supreme Court that in election cases, though the oral evidence has to be appreciated with great deal of care, the Courts should not reject the oral evidence which is highly probable and is corroborated by unimpeachable documentary evidence. It was held that it is not open to a party to object to the admissibility of documents which are marked as exhibits without any objection from such party. (iii) Kanwar Lal Gupta v. Amarnath Chawla and others A I R 1975 SC 308, in which inter alia question was how much expenses the respondent successful candidate of the Indian National Parliament on his public meetings during election campaign had incurred the Supreme Court of India in this regard observed as follows:‑‑-- "No evidence was led on behalf of the petitioner to show the actual expenses incurred by the first respondent in regard to any of these public meetings. Indeed, the petitioner could not possibly lead any such evidence, because what expenses were actually incurred would be a matter within the special knowledge of the first respondent. But that does not mean that on the material on record the Court cannot arrive at a reasonable estimate of the expenses incurred by the first respondent. It is now well settled by the decision of this Court in (1971) 2 SCR 118 A I R 1971 S C 1925." In the above case it was further held that this limit on the expenditure cannot be evaded by the candidate by not spending any money of his own but leaving it to the political party or his friends and supporters to spend an amount far in excess of the limit. (iv) Balwant Singh v. Prakash Chand and others A I R 1976 S C 1187. In the above case the Indian Supreme Court while hearing an appeal against the judgment of the Allahabad High Court setting aside the election of the appellant as a member of the U.P. Legislative Assembly on tile ground of corrupt practice observed that It is not always possible for an election petitioner to adduce direct evidence to prove that a particular vehicle was hired or procured by the candidate or his agent or by any other person with the consent of the candidate or his, election agent, but this can be inferred from the proved circumstances where such inference is justifiable.

14. It was further contended by Messrs Raja Qureshi and Sibghatullah Hamid that Exh. 2/1 i.e. the pamphlet issued by Shahabuddin immediately after the election indicates that according to his averments in the above pamphlet the expenses were incurred by him and the other supporters of the petitioner and, therefore, the petitioner cannot be held responsible, particularly, in view of sub‑rule (2) of rule 62 of the Election Rules, which provides that no person other than the candidate shall incur any election expenses of such candidate but other person may spend a specified amount upon authorization by a contesting candidate in writing. In our view, the above sub‑rule cannot be pressed into service if the expenses are incurred by the persons who were campaigning and managing the election on behalf of the candidate if the expenses were incurred with his knowledge. Otherwise, it will be easy for a candidate to defeat the maximum limit of the expenses by allowing his supporters to spend the money on the election campaign, etc. It may again be observed that rule 61 gives the definition of the words "election expenses" very wide as to include any expenditure by way of gift, loan, advance, deposit or otherwise. In this regard reference may again be made to the above Indian Supreme Court case reported in A I R 1975 S C 308, in which it has been held that the limit on the expenditure cannot be evaded by the candidate by not spending any money of his own but leaving it to the political party or his friends and supporters to spend the amount far in excess of the limit. In the above judgment the object of providing maximum limit has also been highlighted. Reference may also be made to the case of Nani Gopal Swami v. Abdul Hamid Choudhry and another, reported in A I R 1959 Assam 200, in which a Division Bench of the Assam High Court while hearing an appeal under the Representation of People Act, 1951 observed that for the purposes of the Act, the expression "agent" has a much wider connotation than it is ordinarily understood and anybody who acts in furtherance of the prospects of the candidate's election may be said to be an agent of the candidate concerned, provided he does so with the consent of the candidate, and his consent may not be necessarily an express consent in writing but it may be gathered and implied from the circumstances of the case.

15. In the present case as observed hereinabove Shahabuddin was working for the petitioner with his consent and knowledge inasmuch as he had withdrawn his candidature in favour of the petitioner. This fact has been proved inter alia from the above photos and the admission on the part of the petitioner's witness AlauddiR. Even if we were to hold that the expenses referred to in Exh. 2/1 were factually incurred by Shahabuddin and other supporters of the petitioner, the same can be treated as a gift, from them and therefore would be covered by the definition of "election expenses" in terms of rule 61.

16. Adverting to the last contention of Mr. Raja Qureshi that since that Tribunal has not recorded the finding that the result of the election was materially affected by the alleged illegal and corrupt practices, the petitioner could not have been non‑seated, it may be observed that he has referred to the case of Abdus Sattar Rana v. S.M. Zaidi and another reported in P L D 1968 S C 331 and the case of Hakim Ali and others v. Deputy Commissioner/ Election Tribunal reported in P L D 1982 S C

172. In the first case the honourable Supreme Court of Pakistan held that under rule 36(1‑A) of the Electoral College Rules, 1964, the condition precedent for declaring an election as a whole to be void or the election of a successful candidate to be void, is that the irregularity or malpractice found, should have materially affected the result of the election. Whereas in the second case a Division Bench of the Supreme Court while remanding the case to the Election Tribunal held that in view of rule 15 of the, Punjab Local Council (Election Petition) Rules, 1979 the Election Tribunal should not have declared the election void as a whole without recording a positive finding that irregularities committed during the election had materially affected the result. On the other hand Mr. Nasim Farooqi has referred to the above cited case of Indian Supreme Court reported in A I R 1976 S C 1187, in which inter alia it was held that the argument that the High Court committed an irregularity in setting aside appellant's election without finding that the result of the election had been materially affected thereby, was misconceived as under section 100(1)(v) of the Representation of People Act, 1951 there was no requirement to record any such finding in case the above provision was applicable in respect of corrupt practices.

17. Mr. Raja Qureshi has not pointed out any provision either in the rules or in the Ordinance parallel to the provisions which were the subject‑matters of the above two Supreme Court cases cited and, therefore, the above cases are not applicable to the instant case. There is no provision either in the rules or in the Ordinance providing that an election can be set aside only on recording of a finding that on account of illegal and corrupt practices, the result of the election was materially affected.

18. For the foregoing reasons we do not find any substance in this petition and, therefore, it is dismissed with no order as to costs. A.A. Petition dismissed.