P L D 1966 (W (PLP)

ANWARUL HAQ, J.‑The petitioner, Muhammad Shafi as well as respondent No. 2, Dost Muhammad, contested the last election to the Electoral College of Pakistan from Electoral Unit No. 396 in the Bahawalnagar District. The petitioner obtained 177 votes whereas the respondent No. 2 polled 159 votes, with the result that the petitioner was declared elected. Respondent No. 2 thereupon filed an election petition challenging the election of the petitioner on several grounds. The learned Election Tribunal accepted this petition by its order dated the 4th of December 1965, holding that it was proved that the present petitioner and his party men had persuaded a rival candidate Muhammad Nawaz to withdraw from the contest by exercising undue influence over him in the name of their baradari, that this amounted to a corrupt practice and as a result thereof the election had become void and it was not necessary to prove that the result of the election had been materially affected thereby. On this view of the matter, he declared the election void.

2. On behalf of the petitioner, Malik Muhammad Sharif has challenged the correctness and legality of the order of the Election Tribunal on the following grounds: (a) That the ground on which the Election Tribunal has proceeded to declare the election void was not taken in the Election Petition filed by respondent No. 2 and accordingly the Tribunal had no jurisdiction to consider the same. (b) That even otherwise the facts found by the Election Tribunal to have been proved with regard to the withdrawal of the rival candidate Muhammad Nawaz do not constitute a corrupt practice within the meaning of the term as defined in section 61 of the Electoral College Act, 1964 (hereinafter referred to as the Act). (c) That the election could not have been declared void without recording ‑a finding in‑ terms of rule 36(1‑A) to the effect that the result of the Election had been materially affected by the corrupt practice as alleged but no such finding has been recorded by the Election Tribunal in this case.

3. On behalf of the contesting respondent Messrs Ijaz Hussain Batalvi and Mr. M. A. Zullah have raised a preliminary objection to the effect that in view of the dictum of their Lordships of the Supreme Court in the well‑known case of Jamal Shah (P L D 1966 S C 1), the High Court has no jurisdiction to examine the order of the Election Tribunal which is final as laid in sub section (3) of section 60 of the Act. We do not see any substance in this preliminary objection, for the reason that in the case relied upon by the learned counsel for the respondent their Lordships of the Supreme Court have made it clear that jurisdiction of the High Court under Article 98 of the Constitution is not ousted with regard to orders made by Tribunals created under sub‑constitutional instruments. We may in this connection usefully reproduce here the observations appearing in the judgment of his Lordships the Chief Justice on page 26 of the report to the following effect:‑ "Proceeding on that basis, it is plain that Article 171, requires, with respect to election disputes, that their determination should be in accordance with the law specially made for that purpose, and not determination only, but final determination, that is to say, determination once for all. To emphasise and place beyond doubt that the jurisdiction thus being created was exclusive in an absolute sense, words were added to Article 171 which have already been quoted, and which produce the effect that no dispute arising out of an election shall be decided otherwise than under the law specially made for the purpose in accordance with the subsection, not shall the validity of such an election be called in question except in accordance with the provisions of the aforesaid law, in this case the National and Provincial Assemblies (Elections) Act of 1964. It must be remembered that a requirement of finality of determination contained in the Constitution is to be placed on a wholly different and certainly at a much higher level than provisions in sub‑Constitutional statutes giving finality to the determination of Tribunals constituted there-under. In the latter case, a High Court acting under Article 98 could indeed invoke its superior authority to impose upon such statutory Tribunal, 'despite the finality given to its determination, the requirement that its actions should be within its jurisdiction, that they could not be in defeat of that jurisdiction and that such action should be shown to have been performed with lawful authority. In the absence of a valid provision barring such interference, the High Court acting under Article 98 would, I conceive, have the authority to interpret the relevant statutes, in respect of the limitation upon jurisdiction, the obligation to exercise the jurisdiction and the scope of the authority conferred by such statute."

4. Turning now to the merits of the case as presented on behalf of the petitioner, we would first take up the question whether it was open to the Election Tribunal to embark upon a consideration of a corrupt practice which was not alleged and described in the Election Petition itself. In this petition, the respondent challenged the petitioner's Election on the following grounds:‑ (1) That certain voters, whose names were given in the petition, were below 21 years of age on the qualifying date and thus not entitled to be enrolled as voters and accordingly their votes caste in favour of the present petitioner could not be counted. (2) That the present petitioner "exerted undue influence on Muhammad Nawaz (as detailed below) to withdraw his candidature and pressing upon him and his voters to vote in his favour. The undue influence exerted by the respondent was in the shape of a fraudulent device that the petitioner and the other candidate have also withdrawn from candidature from the Electoral College Unit No.

396. It was with this contrivance that the respondent got the aforesaid Muhammad Nawaz to withdraw from his candidature on the withdrawal date. In fact, the petitioner never withdrew his candidature". (3) That certain voters, named in the petition, cast their votes twice, first in the Electoral Unit No. 431 on the 1st of November 1964 and again in the Electoral Unit now in question, namely, No. 396 on the 6th of November 1964. (4) That the polling station was situated hardly at a distance of about 15 yards from the dera of the respondent (i.e., the present petitioner) and he entertained the voters with tea and other eatables during the polling hours and also kept the voters under arrest in his dera and did not allow them to go freely.

5. The Election Tribunal found that the first ground was not proved and it did not deal with the other grounds as mentioned above. From this it will be seen that there was no mentioned of the withdrawal of Muhammad Nawaz having been procured by the present petitioner on account of exercising undue influence in the name of baradari, etc., on the contrary, the only undue influence attributed to the petitioner was in the shape of a misrepresentation to the effect that the respondent had also withdrawn from the contest. In other words, the allegation was merely to the effect that Muhammad Nawaz was deceived into withdrawing from the contest on the ground that respondent No. 2 had also left the field. It is clear that this allegation is completely different in character from .the allegation that an appeal was made to Muhammad Nawaz in the name of the baradari to withdraw from the contest. It may be stated that the present petitioner is Khokhar Rajput by caste whereas respondent No. 2 is an Awan, and the allegation is that the third candidate Muhammad Nawaz was also a Rajput and the appeal made to him was that he should withdraw so as not to divide the votes of Rajputs between him and the present petitioner.

6. In support of his contention that the Election Tribunal had no jurisdiction to examine the allegation of a corrupt practice, not mentioned in the Election Petition, Mr. Muhammad Sharif has referred us to P L D 1957 S C 91 in which it was laid down that:‑ "Principles governing trial of Election Petitions are: "Where an election is sought to be set aside on the ground of commission of corrupt practices, the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices; that no fresh charge or instance of a corrupt practice can be added at the trial, that the burden of proof of corrupt practices is on the petitioner; that the evidence in proof of such practices must be restricted to the charges or instances mentioned in the petition and the particulars ; 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, the commissioners before finding a corrupt practice proved must exclude all reasonable hypotheses which are consistent with that corrupt practice having not been committed."

7. It was submitted by Mr. Ijaz Hussain Batalvi, the learned counsel for the respondent that it the case before the Supreme Court the Rules under which the Election Petition in question had been filed were different and more elaborate than the provisions which apply in the instant case and, therefore, the dictum is not fully attracted; and that in any case the candidate concerned, i.e., Muhammad Nawaz had appeared as a witness before the Election Petition and had alleged that he was made to withdraw in the name of the baradari and the present petitioner had not objected to this evidence being led, and therefore, the objection now raised should not be allowed.

8. It is true that the Rules which were being considered by their Lordships of the Supreme Court in the case of Muhammad Saeed and others were different and more elaborate than those which applied in the present case, but the principles enunciated were general principles deducible from the law laid down in England and from the position that an Election Tribunal is a tribunal of special jurisdiction and not general jurisdiction as is the case with ordinary Civil Courts. Further, rule 35 of the Electoral College Rules, 1964, which lays down the manner o filing Election Petitions in sub‑rule (5) says that: "An election petition shall set forth clearly the grounds on which the petition is filed and the relief sought." It would follow from this rule as well as the general principles governing the disposal of election petitions and the jurisdiction of Election Tribunals, that it is necessary for a petitioner to clearly indicate the grounds on which he is challenging the election of a returned candidate. In order to substantiate his allegations of corrupt practices, the petitioner has to lead evidence in support thereof and the returned candidate has to be afforded an opportunity to rebut that evidence, if he so desires. It is for this reason that it is necessary to give full particulars of the alleged corrupt practice in the election petition, as otherwise the returned candidate is likely to be prejudiced. One can, of course. envisage an irregularity or contravention of the relevant statute appearing on the face of the election record which is made available to the Election Tribunal, and in that case it may perhaps be permissible for the Election Tribunal to take note of such irregularity without there being mention thereof in the election petition; but that would be on the basis that the matter is apparent on the face of the record and does not require recording of evidence in support or rebuttal thereof. This cannot, however, be said about an allegation of a corrupt practice which has to be proved or disproved by the parties concerned by leading evidence.

9. For the reasons given above, we are of the view that as the election petition filed by the respondent did not contain the allegation of corrupt practice as found by the Election Tribunal, the Tribunal has exceeded its jurisdiction in proceeding to examine the same and admitting evidence in regard thereto. The mere fact that Muhammad Nawaz appeared before the Election Tribunal and gave evidence to the effect that he was made to withdraw in the name of the baradari does not mean that this is a fact appearing on the face of the record and can be decided one way or the other without giving prior notice to the present petitioner and affording him an opportunity to lead evidence in rebuttal.

10. Even otherwise, we find that there is merit in the contention put forward by Mr. Muhammad Sharif, the learned counsel for the petitioner that the facts as found by the Tribunal do not constitute a corrupt practice within the meaning of that term as defined in sections 61 and 65 of the Act. Section 611 which defines a corrupt practice has several parts and it seems to us that in the present context only clauses (1)(2)(c) and (3) are relevant. Clause (1) lays down that a person is guilty of corrupt practice if he is guilty of bribery, personation or undue influence. Clause (2)(c) deals with making or publishing a false statement regarding the withdrawal of a candidate and clause (3) says that a person is guilty of corrupt practice if he calls upon or persuades any person to vote or refrain from voting for any candidate on c the ground that he belongs to a particular religion, community, race, caste, sect or tribe. The term "undue influence" is defined in section 65 of the Act and none of the clauses of that section appears to be attracted in the present context. It appears that the allegation regarding the withdrawal of Muhammad Nawaz as mentioned in the election petition of the respondent was perhaps intended to bring the case within the purview of clause (2)(c) of section 61, namely, that the withdrawal of Muhammad Nawaz was procured by making a false statement but the allegation was not pressed or proved in this form before the Election Tribunal. Clause (3) of' section 61 deals with the case of a voter who may be either persuaded to vote or to refrain from voting for any candidate on the ground of relationship, caste or tribe, etc., but it does not concern itself with the question of procuring the withdrawal of a candidate from the election by making any such appeal. It is clear, therefore, that the facts as found by the Election Tribunal do not fall even under clause (3) of section 61 of the Act. While construing these penal provisions, the Court cannot extend their scope by analogy, so as to cover situations or acts which have not been included therein by the Legislature. We cannot, therefore, hold by analogy that the alleged act of the petitioner in persuading Muhammad Nawaz to withdraw from the contest on the ground of baradari should be deemed to be a corrupt practice as defined in section 61 of the Act.

11. One other provision to which reference may be made is section 62 of the Act which defines an illegal practice. We find that the act alleged against the petitioner does not fall within any of the clauses of this section as well.

12. After an examination of the relevant provisions as contained in sections 61, 62 and 65 of the Act, we have, therefore, come to the conclusion that the Election Tribunal has erred in law in holding that the petitioner was guilty of a corrupt practice by prevailing upon Muhammad Nawaz to withdraw from the contest in the name of Rajput Bradari. On this view of the matter the election of the petitioner could not be set aside on this ground.

13. The last contention which needs examination is that even if the Election Tribunal had the jurisdiction to examine the allegation as disclosed in the evidence of Muhammad Nawaz before the Election Tribunal, and that even if the allegation did amount to a corrupt practice within the meaning of the law, the election could not be declared void without the Election Tribunal recording a finding that the result of the election had been materially affected in terms of rule 36(1‑A). From the concluding portion of the order passed by the Election Tribunal, it is clear that the Tribunal did not consider it necessary to determine whether the result had indeed been materially affected or not. This portion may be reproduced here with advantage:‑ "The learned counsel for the petitioner (i.e., respondent in the present writ petition) has stressed that the result of committing a corrupt practice is that the election becomes void and that it is not necessary even to prove that the result of the election was materially affected thereby. He has quoted 1954 Supreme Court of India Madras Law Journal page 711 in support of this argument. The commission of the corrupt practice mentioned above stands proved from the above discussion of evidence led by both the parties. But for the commission of this corrupt practice, the result of the election might have been otherwise. I accordingly declare the election void."

14. Whatever the dictum in the case from the Indian jurisdiction, cited by the learned Election Tribunal, it is clear that in the present case the matter is governed by the express terms of rule 36(1‑A), which runs as under:‑ "The Tribunal shall declare the election of the returned candidate or the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with, or the contravention of, any provision of the Act or these rules." "From the language employed in this rule it is clear that mere contravention of any provision. of the Act or the Rules would not vitiate an election; it is necessary to prove that the failure or the contravention complained of has materially affected the result of the election. In the present case it should have been possible to show that the result had in fact been materially affected by producing evidence as to the number of votes belonging to each of the major communities represented by the contesting candidates, and to show how the withdrawal of Muhammad Nawaz from the field had affected or was likely to affect in all probability the disposal of these votes. No attempt was, however, made to even prove on record the number of votes belonging to the ‑major communities residing in this electoral unit. It was, therefore, difficult to come to any conclusion, even tentatively, as to how the withdrawal of Muhammad Nawaz in the name of bradari had affected the distribution of the votes between the present petitioner and the respondent, Dost Muhammad.

15. Mr. Ijaz Hussain Batalvi drew our attention to the fact that at least three persons namely, Sarwar Khan, Muhammad Hussain and Farid Ali had appeared before the Election Tribunal to say that they were approached by the present petitioner and his men to vote on the basis of bradari. Even if it be accepted that they were indeed approached as stated by them and that they, were in fact influenced by considerations of bradari while exercising their votes, on account of a request or representation having been made in this behalf by the petitioner or his party‑men, the fact remains that they were only three persons whereas the difference between the petitioner and respondent No. 2 was of 18 votes. These witnesses did not depose anything about the number of other voters who had been similarly approached or influenced. On account of these three votes alone, therefore, the result of the election could not be said to have been materially affected.

16. As a result of the foregoing discussion, we are of the view that the order passed by the Election Tribunal on the 4th of December 1965, declaring the election to be void is without lawful authority and of no legal effect. We declare accordingly. The petition, therefore, succeeds, but the parties are left to bear their own costs.

17. As a necessary consequence the petitioner continues to be the duly elected candidate from this unit.

18. In view of the urgency of the matter we had announced a short order on the 25th of March 1966 and this judgment is intended to give our detailed reasons for the order already announced. S. Q. Petition accepted.