' The petitioner, Riaz Mahmood Khan Mazari submitted his nomination papers for contesting election to the office of Member, District Council from Ward No, 5, D. G. Khan on 12th of September 1979. Respondent No, 5, Mureed Hussain Shah also submitted his nomination papers from the same ward. They both objected to the maintainability of the nomination papers of each other. The nomination papers of respondent No, 5 were, however, accepted by the Returning Officer while the nomination papers of the petitioner were rejected on the ground of being under the age of 25 years.
2. This order of the Returning Officer was challenged in appeal before the Appellate Authority/Deputy Commissioner, D. G. Khan, who accepted the same and held the nomination papers of the petitioner to be valid on 18th of September 1979. This order passed in appeal was challenged by respondent No, 5 in Writ Petition No, 5081 of 1979 in the High Court, which was accepted by my learned brother Dilawar Mahmood, J., on 23-8-1979 setting aside the order of the Appellate Authority. A petition for Special Leave to Appeal No, 758 of 1979 was filed before the Supreme Court against the order of the High Court. Interim relief was granted to the petitioner on his application by suspending the operation of the order passed by the High Court and with a direction that the election scheduled for 5th of September 1979, be held accordingly. The election was held on the aforesaid date and the petitioner was declared as elected member. His election as such was thereafter notified. The appeal filed by the petitioner before the Supreme Court was accepted on 19th of September 1979. Operative part of the judgment of the Supreme Court is as follows :- "For these reasons we would accept this appeal, set aside the appellate order of the Deputy Commissioner as well as the order made by the learned Judge in the writ petition in the High Court, and remit the case to the Appellate Authority for determining the correct age of the appellant and then decide whether he is eligible to contest the election in question or not. If the appellant is found to be eligible, then it shall be necessary for the Election Authority to hold fresh polling between the appellant and the respondent, who are the only contesting candidates. In case the appellant is found to be below the prescribed age on the nomination date, then the respondent would naturally stand elected unopposed, there being no other candidate in the field.
' In the circumstances, the parties are left to bear their own costs."
' It is admitted that record of the case was sent back to the Appellate Authority/Deputy Commissioner, D. G. Khan, for deciding the case in accordance with the observations made by the Supreme Court, who fixed the next date of hearing being 17th of December 1979. Before the Appellate Authority could start hearing the case respondent No, 5 submitted an application on 8th of December 1979, before the Election Authority, Punjab, seeking constitution of the Election Authority itself as Appellate, Authority to hear the appeal filed by the petitioner against the rejection of his nomination papers. The Election Authority consequently stayed the proceedings in the appeal pending before the Deputy Commissioner, D. G. Khan. Paragraph 4 of the impugned order passed by the Election Authority indicates that during the course of arguments the learned counsel for both the parties agreed that the matter involved in the appeal could be better resolved by a Judicial Officer of an outside district who may be constituted as an Appellate Authority to hear the case. As a consequence of that the Election Authority did not adjudicate upon the points raised by the learned counsel for the respective parties. In para. 6 of the impugned order it is mentioned by the Election Authority that District Judge, Muzaffargarh was likely to be appointed as Appellate Authority to hear the appeal, being nearer to D. G. Khan. However, both the parties submitted that District Multan being more convenient for the parties as well as for their counsel, District Judge Multan may be appointed as Appellate Authority to dispose of the appeal. The order appointing the District Judge, Multan as Appellate Authority was accordingly passed on the basis of the consent of the parties. The appeal was consequently heard by Mr. Salahud Din Zafar, District Judge, Multan as Appellate Authority in this case who rejected the same by his order dated 19-2-1980, holding that since the petitioner Riaz Mahmood Khan Mazari had not attained the age of 25 years on 12-9-1979, therefore, he was not qualified under the law to contest election to the Local Council.
3. The vires of this order as well as that passed by the Election Authority have been challenged through the present petition. The learned counsel for the petitioner has raised the following contentions :-
(i) The Supreme Court by its order dated 19-9-1979, remanded the case to the Deputy Commissioner, D. G. Khan who was acting as Appellate Authority because of his office and as such no other Officer, executive or judicial, as the case may be, could be appointed to act as Appellate Authority for the purpose of hearing the appeal.
(ii) The notification issued by the Election Authority appointing the District Judge, Multan, as Appellate Authority in this case does not indicate that his appointment as such was by the consent of the parties. The notification has only been issued under section 17 of the Ordinance read with rule 16 of the Election Rules framed under the Ordinance. Since the notification does not indicate that the appointment was by consent, therefore, we cannot presume by going behind the notification that it was as such.
(iii) Rule 16 being in conflict with section 16 of the Ordinance cannot be relied upon for the purpose of appointing a Judicial Officer to act as Appellate Authority.
(iv) The Deputy Commissioner of a district being a statutory functionary as an Appellate Authority cannot be superseded by any other officer for the purpose of being appointed as Appellate Authority. The Election Authority has no jurisdiction to act against the statutory provisions in this behalf.
(v) Even otherwise circumstances of the case do not warrant appointment of any Officer as Appellate Authority when the statutory functionary, Deputy Commissioner, D. G. Khan, is very much available and is performing his functions as such.
(vi) The Election Authority has no power under any of the provisions as contained in the Punjab Local Councils Ordinance to transfer appeal pending before an Appellate Authority to another.
Section 25 of the Punjab Local Councils Ordinance empowers the Election Authority to transfer election petitions pending before an Election Tribunal to another. Such specific power has not been granted to the authority in case of election appeals filed against the orders of Returning Officers.
(vii) if it is assumed for arguments sake that such power vests in the Election Authority the same can be exercised in the light of the provision as contained in section 16 of the Ordinance by appointing some officer from the executive side and not from the judicial side.
(viii) The Election Authority had no jurisdiction whatsoever under section 17 read with rule 16 of the Rules to appoint another Officer to act as Appellate Authority. Objection with regard to its jurisdiction was raised in the written statement filed before the Authority. The petitioner himself did not approach the Election Authority, he was rather summoned on the application of respondent No,
5. He was not a willing party in submitting to the jurisdiction of respondent No,
1. Since the Election Authority was determined to appoint another officer to act as Appellate Authority, therefore, he agreed under compulsion for the appointment of the District Judge, Multan as Appellate Authority in this case.
(ix) The consent or compromise arrived at between the parties does not confer jurisdiction upon a Court/Authority to decide the matter.
(x) Since respondent No, 5 has failed to discharge the burden of proving that the petitioner was not of the age of 25 years at the relevant time, therefore, the Appellate Authority was not justified in rejecting the evidence produced by the petitioner. The burden to prove that the petitioner was not of the age of 25 years lay on respondent No, 5 and if he failed to prove, the appeal filed by the petitioner could not be rejected.
(xi) The Appellate Authority also failed to appreciate the medical evidence produced on record by the petitioner according to which it is established that he is more than 25 years of age.
' Section 17 of the Punjab Local Government Ordinance provides that the Election Authority may issue such instructions and exercise such powers including the power to review an order passed by an officer under the Ordinance or the rules, and make such consequential order as may in its opinion be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with provisions of the Ordinance and the rules. Rule 16 of the Rules provides that a candidate whose nomination paper or papers have been rejected may file an appeal within two days next following the date of rejection before the Deputy Commissioner of the district or any other officer authorised by the Election Authority in this behalf. The question which arises for consideration is whether the Election Authority is competent to appoint or authorise any officer other than the Deputy Commissioner of the district to act as Appellate Authority in the given circumstances of a case. It has been argued by the learned counsel for the petitioner that such power cannot be exercised if the Deputy Commissioner is otherwise available in the district and is performing his functions as Appellate Authority. According to him if the office of the Deputy Commissioner has fallen vacant and nobody is holding that office at the relevant time then another officer may be authorised to act as Appellate Authority and even in that case requirements of section 16 of the Ordinance requiring all the executive authorities in the province and all the local authorities under the administrative control of the Government to assist the Election Authority in performance of its functions, cannot be ignored. According to the learned counsel, in that event an Officer from the Executive side has to be appointed and not from the judicial side.
' There is no doubt that the Deputy Commissioner of every District has been appointed by the statute to act as Appellate Authority in hearing appeals filed against the rejection of nomination papers by the Returning Officers. However, power has been granted under rule 16 framed under the.
Ordinance by the same authority which issued the Ordinance authorising the Election Authority to appoint an Officer other than the Deputy Commissioner to hear appeals in the given circumstances. In the present case an application was made by respondent No, 5 to the Election Authority to consstitute itself as Appellate Authority to hear the appeal on the ground that since the Deputy Commissioner, D. G. Khan had already decided in favour of the petitioner, therefore, he might have a biased view against respondent No, 5 and further the petitioner belonged to a very influential family of Tumandars and his father being a very influential politician of the district the petitioner had genuine apprehension that it might not be possible for the local administration to act freely. I am of the, view that so far as the provision contained in rule 16 is concerned it does empower the Election Authority to authorise an Officer other than the Deputy Commissioner to act as Appellate Authority, as to what circumstances precisely should determine the appointment of another Officer, the best Judge to decide in that behalf will be the Election Authority. As borne out from the order passed by the Election Authority and as admitted by the learned counsel for the petitioner both parties agreed during the arguments before the Election Authority that the District Judge, Multan may be appointed as Appellate Authority to decide the appeal. Even if that consent had not been given the Election Authority was competent to appoint another Officer to act as Appellate Authority, under the law. In that event it may not be possible for this Court to substitute the reasons and finding of the Election Authority for its own. The reasons given by respondent No, 5 for the appointment of another Officer to act as Appellate Authority cannot be said to be altogether ingenuine. The aforesaid reasons have been adverted to by the Election Authority in its order but since the parties gave consent to the appointment of District Judge as Appellate Authority, therefore, the Election Authority could not decide about the genuineness or otherwise of these reasons. As held above, the Election Authority having jurisdiction under rule 16 to appoint another Officer to act as Appellate Authority, the petitioner after having consented to the appointment of District Judge, Multan, as Appellate Authority is now estopped by his conduct to agitate against that appointment. Further the petitioner submitted to the jurisdiction of District Judge, Multan, as Appellate Authority knowing full well that he had given consent to his appointment as such. He never raised any objection with regard to his jurisdiction to decide the matter. He stood by and allowed respondent No, 1 to proceed with the matter, probably under the impression that he will decide the case in his favour. He has now no locus standi to challenge the validity of the orders passed by the Election Authority as well as the District Judge, Multan as Appellate Authority.
4. The contention that even in the event of having jurisdiction under rule 16 of the Rules the Appellate Authority could not appoint a Judicial Officer to act as Appellate Authority has no force.
The bare reading of rule 16 would show that the Election Authority has been given wide powers in that behalf. The words used are that appeal may be filed before the Deputy Commissioner of the District or any other Officer, authorised by the Election Authority. 'Any other Officer' means Officer from the Executive or the Judicial side as the case may be. It is really strange that the petitioner has opposed the appointment of a senior Judicial Officer of the Province to decide his case and prefers an Officer from the Executive side for this purpose. It means that the apprehensions expressed by respondent No, 5 in his application that the petitioner will exercise undue influence upon the local administration, are not altogether devoid of force, There is no doubt that section 16 of the Ordinance requires the executive and local authorities in the Province to render assistance to the Election Authority in performance of its functions but that does not mean that under rule 16 an Officer from the Judicial side cannot be appointed to act as Appellate Authority. If this had been the intention of the Legislature then the word 'any' had not been used and instead it would have been provided that an Officer from the Executive Side may be appointed. Since any Officer other than the Deputy Commissioner of a district can be appointed by the Election Authority to act as Appellate Authority, therefore, the objection raised in this behalf is hereby repelled.
5. It is not a case of transfer of appeal pending before the Appellate Authority to another Appellate Authority. It is a case of appointment of another Appellate Authority to whom a particular appeal filed against the order of Returning Officer may be entrusted. It is true that in the event of such an appointment appeal already pending before a particular Appellate Authority will have to be withdrawn and entrusted to another Appellate Authority constituted for this purpose under rule 16 but that, however, would not amount to transfer of case. It would amount to constituting another Appellate Authority for the purpose of hearing a particular case.
6. Learned, counsel for the petitioner has also tried to argue the case on merits by pointing out that since the evidence produced by the objector i,e, respondent No, 5, has been disbelieved by the Appellate Authority, therefore, his objection having no force, appeal filed by the petitioner should have been accepted. I am afraid this contention has no force. Under the law it was for the petitioner to prove that he was of 25 years of age at the relevant time, otherwise he being ineligible was not competent to submit his nomination papers. By filing his nomination papers, before the Returning Officer, he asserted that his age being 25 years, he was eligible to contest election. There is no doubt that an objection was raised with regard to his age but the fact remains that it is for the petitioner to prove under the law that he being of 25 years of age at the relevant time was eligible to submit his nomination papers, as such even if the evidence produced by the objector has not been relied upon, evidence produced by the petitioner before the Appellate Authority has been rightly appraised. I am afraid the evidence so appraised cannot be re-appraised by this Court in the present proceedings as held in Sadiq Hussain Qureshi v. Federation of Pakistan, Rawalpindi and 2 others (1). The Disqualification Tribunal in that case had decided the matter against the petitioner on the basis of evidence produced before it. It was held that in writ jurisdiction, High Court would confine itself to determine whether the tribunal concerned possessed jurisdiction to go into question before it and whether in doing so it transgressed limits of its lawful authority. It was observed that High Court did not sit as Court of appeal and decide whether evidence sufficed for upholding the conclusions arrived at, the disqualification tribunal had authority to decide certain questions of law and facts and it would not be open to the High Court to re-appraise evidence and give finding on rightness or otherwise of tribunal's decision.
7. In this view of the matter the conclusion arrived at by the Appellate Authority based upon due appraisal of the evidence, cannot be interfered with by re-appraisal of the evidence.
(1) PLD 1979 Lab 1
8. As a result of the above discussion the petition having no force is hereby dismissed in limine.