P L D 1962 (W (PLP)

SHABIR AHMAD, J.-Habib Ullah, Khushi Muhammad, Bakhatwar, Muhammad Siddiq and Abdul Majid, residents of Jhang City, contested election to Ward No. 23 of the Union Council 7-G, Jhang City, a three-member constituency, in the end of June 1959, and on the 6th of January 1960, when the results were declared, Habib Ullah, Khushi Muhammad and Muhammad Siddiq were declared to have been elected. The votes polled by the candidates were as under:- Habib Ullah 367 Muhammad Siddiq 309 Khushi Muhammad 225 Bakhtawar. 200 Addul Majid 195 Some time after the declaration of the results, Bakhtawar pre sented an election petition alleging that Khushi Muhammad's election was void as it had been procured by means prohibited by the relevant law and should be set aside. Mian Muzaffar ud-Din, an officer of the Provincial Civil Service, who had been appointed Election Tribunal, by his order dated the' 18th of November 1960, set aside the entire election of Ward No. 23, Union Council No. 7-G., Jhang City, on the ground that material corrupt practices were committed by the contesting candidates, including Bakhtawar and Khushi Muhammad. On the 3rd of January 1961, the present writ petition was presented by Habib Ullah and Khushi Muhammad, shown as petitioners Nos. 1 and 2 respectively fn the writ petition, against the Election Tribunal, Jhang, Bakhtawar, Muhammad Siddiq and Abdul Majid, who were shown as respondents Nos. 1, 2, 3 and 4, respectively. The writ petition prayed for a direction which would make ineffective the order passed by Mian Muzaffar-ud-Din on the 18th of November 1960, a certified copy of which was attached to the writ petition as Annexure `A'.

2. On a notice of the petition being issued to the four respondents, Bakhtawar, respondent No. 2, put in a written statement wherein it was said that the two petitioners were not entitled to the relief they bad claimed. The other respon dents, though served, did not put in any written statements, but while Muhammad Siddiq, respondent No. 3, and Abdul Majid, respondent No. 4, were not even represented at the hearing, the Election Tribunal, respondent No. 1, was represented by Mr. S. M. Zafar, Advocate, who appeared on being instructed to do so by the Advocate-General, West Pakistan. At the hearing of the writ petition, arguments were addressed by Sheikh Aftab Husain, Advocate, on behalf of the tyro petitioners, by Mr. S. M. Zafar, Advocate, on behalf of the Election Tribunal, respondent No. 1, and by Mr. Muhammad Asghar Khadim Advocate, on behalf of Bakhtawar, respondent No. 2.

3. Mr. Aftab Husain raised the following two main contentions: - (1) That as Bakhtawar, respondent No. 2, bad not said a single word against Habib Ullah, petitioner No. 1, and Muhammad Siddiq, respondent No. 3, in his election petition, the Election Tribunal was incompetent to set aside the election as a whole and could not have granted a relief beyond that which was claimed by Bakhtawar, respondent No. 2, and (2) that even if in spite of the fact that the person who had put in the election petition had not prayed for setting aside of the whole election, the Election Tribunal was competent to pass that order, the order could not have been passed in the circumstances of this case because the contestants at the election, other than Khushi Muhammad, petitioner No. 2, had not been given an opportunity to show to the Election Tribunal that the facts or circumstances detailed by the Election Tribunal to exist did not exist or that if those facts and circumstances existed, no case had been made out for setting aside the whole election.

4. The reply which Mr. S. M. Zafar and Mr. Khadim gave to the above contentions of Mr. Aftab Husain was that it was open to the Election Tribunal to set aside the entire election though the election petition did not contain a prayer to that effect and that the fact that some persons likely to be affected by the order of the Election Tribunal had not been given an opportunity to show cause against the order proposed to be passed against them, could not invalidate the order of the Election Tribunal.

5. I will first of all deal with the first of the two contentions raised by Mr. Aftab Husain, of which a mention has been made in paragraph

3. On behalf of the respondents, who contested this writ petition, reliance was placed by learned counsel appearing for each on some provisions of the West Pakistan Basic Democracies Election Rules, 1959, which on being made by the Governor of West Pakistan, appeared in the Extraordinary issue of the West Pakistan Government Gazette dated the 13th of November 1959, as Notification No. PEA-59/940-ER, and which will be referred to in this order as the Rules. Reliance was placed on provisions contained in Chapter V of the Rules which comprise of rules 55 to 62 and also on the definition of "corrupt practice" which is given in rule 63 of the Rules. In part, the argument of the parties revolved round sub-rule (5) of rule 55 which reads as follows :- "In the election petition, the petitioner may claim any of the following declarations- (a) that the election of the returned candidate is void, or (b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected ; or (c) that the election as a whole is void." Sub-rule (4) of rule 58 which is couched in the following terms :-- "(4) Every election petition shall be tried as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Act V of 1908) to the trial of suits Provided that- (a) unless it is satisfied that there is a special reason for taking down the evidence of any witness in writing, the Election Tribunal may make a memorandum of the substance of the evidence of each witness as his examination proceeds ; and (b) the Tribunal may refuse to examine a witness if it considers that his evidence is not material or that he is called on frivolous grounds or for the purpose of delaying the proceedings," as well as sub-rule (1) of rule 61 of which the provisions are as below :- "(1) At the conclusion of the trial of an election petition, the Election Tribunal shall make an order- (a) dismissing the election petition ; or (b) declaring the election of the returned candidate to be void; or (c) declaring the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected ; or (d) declaring election as a whole to be void." Learned counsel for the respondents contended that under clause (d) of sub-rule (1) of rule 61, it was open to the Election Tribunal to declare the whole election to be void and as the power to do so vested in the Election Tribunal, no occasion for exercise of writ jurisdiction by this Court arose. Mr. Aftab Husain, learned counsel for the petitioner, replied that the fact that sub-rule (1) of rule 61 gave the Election Tribunal the power to declare an election as a whole to be void, did not authorise the Election Tribunal to pass such an order in a case in which the person who bad presented the election petition bad not made that prayer. He supported this argument by referring to sub-rule (4) of rule 58, which has been reproduced above, and contended that before the Election Tribunal could declare void the election of a person whose election the person who had presented the election petition wanted to have declared void, an issue with regard to the question whether or not circumstances existed which would justify the declaration of the election to be void had to be framed and added that the framing of an issue was incumbent when the whole election and not only the election of the candidates whose election had been challenged in the election petition was intended to be declared to be void.

6. I am clear in my mind that the contention of the learned counsel for the petitioners that the election of a candidate whose election had not been challenged by the person who had put in an election petition could be set aside only if the Tribunal gave that person an opportunity of showing cause against the order proposed to be passed against him has great force as it has the support not only of the provisions contained in sub-rule (4) of rule 58, but also of what is sometimes called the principles of natural justice which are stated to be to the effect that no person should be condemned unheard. In this regard, reliance of learned counsel for the respondents on sub-rule (5) of rule 55 was mis placed because that sub-rule, which has been reproduced in the preceding paragraph, only says that the person who put,, in an election petition may claim that the election as a whole was void. From the words used in sub-rule (5) of rule 55 of the Rules, it is not possible to draw the inference that an election could be declared void as a whole even though a person who had put in the election petition had not made a prayer to that effect. If it had been intended to give the Election Tribunal unlimited powers in this regard which, according to learned counsel for the respondents had been done, this would have been made clear by the maker of the Rules by employing unambiguous language to that effect, Neither of the provisions of the Rules relied upon by the learned counsel for the respondents, nor any other provision existing in the Rules even suggests that the Election Tribunal may pass any order with regard to an election, that the Tribunal deems fit, and indeed the fact that the Code of Civil Procedure has, as far as possible, been made applicable to the proceedings before the Election Tribunal would indicate that the framing of Issues with regard to a matter about which it was intended to pass an order was essential. Learned counsel for the respondents relied on a decision given by a Division Bench of this Court in Salah Muhammad v. Muhammad Roz and others (P L D 1962 Lah. 68). The leading judgment in the case which was written by me and concurred in by my learned brother Anwarul Haq was merely to the effect that if in an election petition it was pleaded that the candidate who had been declared to have been returned was disqualified from being a member at the time when the result was declared, it was not necessary to hold a new election even if the election had been contested by more than two candidates. The reason for that deci sion was that sub-rule (3) of rule 55 makes it necessary that all candidates in an election attacked by means of an election petition were to be impleaded as parties. If in such case a candidate on whom a copy of the election petition must be served under the Rules does not chose to controvert the claim of one of the candidates that he shall be deemed to have been elected in place of the person who had wrongly declared to have been elected, it follows that the other candidate or candidates do not raise any objection to the grant of such a relief. In a case like that it would be open to the Election Tribunal to hold that the omission of the candidates likely to be affected by the decision to question the right of the person who had put in an election petition to be declared a3 elected candidate, was an admission that that relief could be granted, It is obvious that the facts dealt with in the decision relied upon by the learned counsel for the respondents were entirely different those that arise in the present case and, therefore, that decision ,a an be of no assistance to the respondents. Consequently, I am of the view that the order of the Election Tribunal declaring the whole election to be void was, in the circumstances obtaining in this case, beyond the competence of the Election Tribunal to pass and must, therefore, be certified to be ineffective.

7. Learned counsel for respondent No. 2 urged that even if the Election Tribunal was not competent to declare the whole election to be void, an order should not be passed which enures to the benefit of Muhammad Siddiq, respondent No. 3, who, according to him, was not entitled to any relief because he had not questioned the right of the Election Tribunal to declare the whole election to be void. It appears to me that this conten tion is without force. If the order passed by the Election Tribunal or part thereof was beyond the jurisdiction of the Tribunal, it shall have to be deemed not to have been passed and it would not be necessary for any one to have that order declared to be ineffective before treating it to be so. That this is the position of orders passed by a Tribunal which has no jurisdiction to pass them is hardly open to question, and if Muhammad Siddiq, respondent No. 3, did not question the order of the Election Tribunal, he cannot be deprived of the benefit of the finding that the order of the Election Tribunal was without jurisdiction. I am not denying that if the order of the Election Tribunal had been declared to be wrong, as distinguished from its being without jurisdiction, Muhammad Siddiq, respondent No. 3, could not have been entitled to the benefit of the order, but this result does follow when the impugned order has been declared to be without jurisdiction, the result of which findings has to be that the order is not binding on any one. I have, therefore, no hesitation in holding that Muhammad Siddiq, respondent No. 3, is entitled to the benefit of the order.

8. I will now take up another contention raised by learned counsel for the petitioners. He contended that even on the finding of the Election Tribunal the election of Khushi Muhammad, petitioner No. 2, could not have been declared to be void. This argument which cannot be brushed aside cannot be accepted in this case. The reason for this view, one part of which may appear irreconcilable with another part, is that, though the findings of the Election Tribunal with regard to Khushi Muhammad having been guilty of corrupt practices are not as precise and clear as they might have been, the reading of the order of the Election Tribunal as a whole leaves no room for doubt that the finding was that Khushi Muhammad had indulged in corrupt practices. Learned counsel for the petitioners con tended that the evidence before the Election Tribunal did not justify the finding against Khushi Muhammad, petitioner No.

2. This argument of learned counsel for the petitioners has to be ignored on the short ground that the question whether or not the evidence before a Tribunal of special jurisdiction justified the finding of fact given by the Tribunal is not a matter which can be made the subject of a writ petition. Whether or not the evidence justified the order is for a Tribunal which can hear appeals or revision petitions against the order of the tribunal which gave that finding to decide and cannot be gone Into by a Court which possesses no other power than that of issuing writs. However, I am not to be understood to be saying that the findings of fact given by a Tribunal of exclusive jurisdiction are sacrosanct before a Tribunal which has merely the power to issue a writ and not to hear an appeal or a petition for revision against the order which has been attacked because I am clear in my mind that if the Tribunal of exclusive jurisdiction has given a finding of fact on the assumption that a piece of evidence exists, while it does not, or has kept out of consideration a piece of evidence which could not have been kept out of consideration or has misread any material part of the evidence, the order of the Tribunal of exclusive jurisdiction will stand on no better footing than an order without jurisdiction and occasion for issue of a writ would arise. In view of what I have said above, I would accept the petition to the extent of certifying that the order of the Election Tribunal declaring the whole election to be void was without jurisdiction, but would maintain the order of the Election Tribunal in so far as it sets aside the election of Khushi Muhammad, petitioner No.

2. As the success of neither of the parties has been complete, I would leave all of them to bear their own costs. K. B. A. Petition partly accepted.