1993 PLP 460 (CLC)

This Constitutional petition has been filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1974, to impeach the order dated 9th of June,1992 passed by the Election Tribunal for Local Council Elections, Kotli (hereinafter to be called as Election Tribunal).

2. The facts culminating into the present writ petition, briefly stated are that petitioner as well as respondent No.2 contested elections to a seat for Union Council Kotli Ward Thorechi. Petitioner secured 1,402 votes whereas respondent got 1,798 votes. Consequently respondent No.2 was declared successful by the Returning Officer within the meaning of relevant Election Rules and accordingly a Notification to that effect was issued by the Collector. District Kotli on 2nd of December, 1991. The petitioner feeling aggrieved filed an election petition before the Election Tribunal on the ground that respondent No.2 illegally got control of Polling Station No.142 and through two persons, namely, Imtiaz and Ashraaf got 971 votes out of 1,042 votes polled in his favour. He further alleged that the Presiding Officer was kept by him in illegal confinement and much before the start of the election, he himself and through the above‑named two persons stamped the ballot‑papers and got them polled in his favour. The Election Tribunal after taking necessary proceedings, finally vide impugned order, dismissed the election petition. The petitioner having no other remedy invoked the Constitutional jurisdiction of this Court through the present writ petition. 3. 1 have heard the learned counsel for the parties and have gone through the record of the case made available with this writ petition.

4. Ch. Muhammad Azam Khan, the learned counsel‑for the petitioner raised the following grounds in support of, the petition:‑‑ (i) That the elections were not conducted at Polling Station No.142 in accordance with the rules. The Election Tribunal by ignoring this fact has committed an error; and (ii) That the Election Tribunal without any jurisdiction has ignored the statements of Altaf Hussain, the Assistant Presiding Officer, Muhammad Khan, who acted as Polling Officer and Muhammad Banaris Khan, Assistant Polling Officer who in their statements clearly stated that polling was not conducted in according with the rules at the abovementioned polling station. The learned counsel in these circumstances, prayed that in view of the statements of the aforesaid witnesses, besides the statement of the petitioner, the election of respondent Nq.2 be declared void and further that the fresh polling be ordered at the aforesaid polling station.

5. As against this, Raja Muhammad Siddique Khan, Advocate and Mr. Muhammad Akram Mughal, the learned Additional Advocate‑General, counsel for the respondents argued that the evidence produced on the file of the Election Tribunal was beyond the scope of the pleadings of the election petition. Therefore, this evidence was rightly ignored by the Election Tribunal. It was further argued that the Presiding Officer was produced by the petitioner in evidence who has clearly deposed that the elections were conducted by him in accordance with law. The learned counsel for the respondents also read out the statements of the witnesses which have been appended by the petitioner along with the writ petition to point out the material contradictions appearing in their statements. 6. 1 have considered the respective submissions of the learned counsel for the parties.

7. I agree that the evidence produced in this case before the Election Tribunal by the petitioner is diagonally opposed to the contents of his election petition. In election petition he has clearly mentioned that the Presiding Officer was kept in illegal confinement by respondent No.2 and before the commencement of the elections, he alongwith the aforesaid two persons, affixed stamps on the ballot‑papers and polled the same in his favour whereas the evidence which he has brought on the record was to the effect that on the day of elections a meeting was convened by the Presiding Officer wherein he told the other polling staff that as respondent No.2 had majority votes in this ward, therefore, for the peaceful elections, no hurdle should be created in his way for the smooth casting of the votes. All the witnesses have given in their statements different commencing and ending time of the election. According to these witnesses, some 30 to 40 persons cast votes in favour of respondent No.2 whereas nobody was present on behalf of the petitioner. This evidence is beyond the charge which was levelled in the election petition. The Election Tribunal in the circumstances has rightly ignored this evidence as it would have amounted to condemning the respondent No.2 for an act which does not form the basis for a charge or about which he was not called upon to explain his position. That would have violated the celebrated principle of `audi alteram partem'. An evidence brought beyond the scope of the pleadings cannot be taken into consideration, even though out of the same, some case is made out or some charge is proved. In view of the material contradictions appearing in the evidence, the Election Tribunal had no option but to dismiss the election petition.

8. In view of the above observations, finding no force in this writ petition, the same stands dismissed with costs. AA./540/H.CA. Petition dismissed.