1968 SCMR 109 (PLP)

MUHAMMAD YAQUB ALI, J--In the last general election to the Electoral College held on 2nd November 1964, Ghulam Muhammad, respondent, secured 178 votes as against 168 votes by Walayat Khan, petitioner, and was declared duly elected from Unit No. 221, District Lyallpur. Dissatisfied with the result the petitioner filed an election petition inter alia on the grounds that 12 voters who appeared before the Presiding Officer were not given ballot papers by him and turned out of the polling station because other persons had already voted in their place and that oath on Holy Quran was given to six of the electors to vote for the respondent which amounted to exercise of undue influence over them. The Tribunal acting on the affidavits of certain voters set aside the election of the respondent, but the High Court at the instance of the respondent in writ jurisdiction set aside that order and directed the Tribunal to record proper evidence in the case and dispose of the election petition in accordance with law. During the fresh trial of the election petition the petitioner examined the 12 voters who claimed that they were not issued ballot papers by the Presiding Officer as other persons had already voted in their place. Three other voters deposed that the respondent had given them an oath on the Holy Quran to vote for him but for which they would have voted for the petitioner. Relying on this evidence the Tribunal deducted 15 votes from the count of the respondent on the finding that the 12 genuine voters who appeared before it would have voted for the petitioner as they had offered themselves as witnesses on his behalf and that three voters were subjected to undue influence but for which they would have voted for the petitioner. Consequent upon it the votes polled by the respondent were reduced from 178 to 163 and the petitioner who had secured 168 votes was declared as duly elected in his place. The High Court in a fresh writ petition filed by the respon dent has set aside the order of the Tribunal as there was no evidence in support of the finding that 12 bogus voters had cast their votes in favour of the respondent. Consequently if these 12 votes were added back to the respondent's count he still had a lead of 9 votes over the petitioner. The petitioner seeks leave to appeal on the grounds:-- (I) that the Tribunal had in arriving at the conclusion that the 12 bogus voters voted for the respondent acted in exercise of its exclusive jurisdiction under Art. 171 of the Constitution: and (II) that although only 3 voters appeared in support of the allegation that undue influence was exercised by the respondent, there was no knowing how many other voters were similarly precluded from exercising their right of vote freely. There is no merit in either of the contentions. It is correct to say that under Article 171 a Tribunal is a court of exclusive jurisdiction of facts as well as of question of law, but it does not mean that a finding of fact based on no evidence is immune from review by the High Court under Article 98 of the Constitution. Enough has already been said by this Court on this subject, but it may be added that such a finding is not a decision rendered under the law specified iby Article 171 and therefore is liable to be quashed under Article

98. The second ground is also without merit. Only six persons I were named in the election petition on whom undue influence was said to have been exercised by giving them oath only on Holy Quran. There was no allegation of large scale administration of oath to the electors by or at the instance of the respondent nor any evidence was led to prove it. The Tribunal had also deleted only 3 votes from the count of the respondent under this head and did not consider that the election as a whole was rendered void by the exercise of undue influence. No exception can, therefore, be taken to the order of the High Court setting aside the order of the Tribunal and upholding the election of the respondent. We refuse leave to appeal and dismiss the petition. Petition dismissed.