NASIR A. ZAHID, J.-This petition under Article 9 of the Provisional Constitution Order, 1981, has been filed by the petitioner Mirza Muqueen Baig, challenging the judgment dated 24-8-1981 of the Election Tribunal, Hyderabad, allowing Election Petition No. 44 of 1979, filed by respondent No. 3 and setting aside the election of the petitioner and ordering fresh election. In this constitutional petition respondent No. 1 is the Provincial Election Authority, respondent No. 2 is the Election Tribunal and respondents Nos. 3 to 11 are private respondents, who alongwith the petitioner had contested election of Municipal Councilor, Municipal Corporation, Hyderabad, held on 25-9-1979 for Unit No. 16, U. C. 11, Fort Area, Hyderabad. In this petition respondent No. 12 is the Senior Civil Judge, Hyderabad, who was the Returning Officer, respondent No. 13, is Mst. Feroza, the Presiding Officer for the female polling station and respondent No. 14 is the Presiding Officer of the male polling station with respondents , Nos. 15 and 16. As Assistant Presiding Officer of the male polling station. In the aforesaid election, the petitioner obtained 687 votes with respondent; No. 9 obtaining 399 votes, respondent No. 6, 371 votes and respondent No. 3, 270 votes. Other respondents who had contested the said election obtained lesser number of votes. The petitioner having polled the highest number of votes was declared elected. Respondent No. 3, Farooq Shahid, who had obtained 270 votes, filed an application before the District and Sessions. Judge, Hyderabad on 1-10-1979 asking for disqualification of the petitioner as a candidate on the ground that he had used the influence of a political party. In the said application to the District and Sessions Judge, Hyderabad, the provision of law under which the said application was moved was not given but the subject was given as follows :- "Political Parties influence and rigging of election in Unit No. 16 M. C. H. (Union Committee No. 11), Hyderabad, Sind."
It was contended on behalf of the petitioner that the aforesaid applica--tion dated 1-10-1979 of respondent No. 3, addressed to the District Judge, Hyderabad, is an application under section 37-A of the Sind Local Govern--ment Ordinance. 1979, which position has not been admitted by the counsel appearing for represented respondents. However, it is an admitted position that the said application is still pending consideration before the District Judge, Hyderabad . . . . -_ . , .
2. On 25-11-1979, respondent No. 3 (Farooq Shahid) filed an Election Petition under rule 65 of the Sind Local Council (Election) Rules, 1979 making all the parties to this petition (except the Provincial Election Authority and the Election Tribunal) as respondents. Written statements were filed by private parties i.e. Those, who had contested the elections. The Election Tribunal Hyderabad, directed the parties to file their affidavits-of-evidence by way of examination-in-chief. Respondent No. 3 filed affidavits of 7 persons including himself but, out of these 7 persons, 3 persons were not offered for cross-examination. Respondent No. 11 also filed -his own affidavit and offered himself for cross-examination. None of the other respondents filed their affidavits-of-evidence. Petitioner filed his own affidavit and affidavits of 3 witnesses in support of his case and these 4 persons offered themselves for cross-examination. Respondents Nos. 6 to 10 had filed their written statements but did not take part in the proceedings.
3. The Election Tribunal framed 9 issues which are as follows :- Issue No. L-Whether the petition is not maintainable?
Issue No. 2.-Whether respondent No. 1 contested the election as official candidate of the P. P. P. And ail election campaign was launched by him in the name of his political party, party's demise Chairman, party's present Chairman and in the name of "Miss Baynazir Bhutto"?
Issue No. 3.-Whether respondent No. 1 by arrangements got Mst. Ferozabano and others staff posted at the Polling Station of his own choice? In consequence material illegalities were committed at the Polling Station effecting the election as whole?
Issue No. 4.-Whether the Returning Officer and other polling staff acted as partisans detrimental to the interests of all the candidates except respondent No. 1 ?
Issue No. S.-Whether there has been election, and casting of the votes in legal valid and proper manner ?
Issue No. 6.-Did the respondent No. 1 file a false declaration in respect of election expenses ? .
Issue No. 7.-Did the respondent No. 1 violate any rules of election?
Issue No. 8.-Is the election illegal, void and without lawful authority?
Issue No. 9.-What order?
The Election Tribunal Hyderabad, in his judgment dated 24-8-1981 took Issues Nos. 2, 3, 4, 5 and 8 together and decided the same in the affirmative, Then he took Issues Nos. 6 and 7 together and held that the petitioner bad filed a false return about the election expenses and had violated rule 61 "` of the 1979 Election Rules, and then holding the Election Petition of respondent No. 3 -to be maintainable, decided Issue No. 1 in favour of respondent No. 3. On the basis of his findings on the issues, the Tribunal declared the election held on 25-9-1975 as illegal, null and void and set aside the same and ordered fresh election in the constituency. It is against this judgment dated 24-8- 1981 of the' Election Tribunal, the present constitutional petition has been filed by the petitioner.
4. We have heard at length the arguments of Mr. Nasim Faruqui, learned counsel for the petitioner, Mr. A. Q. Halepota, learned counsel for respondent No. 3 and Mr. Aftab Ahmed Shaikh, learned counsel for respondents Nos. 4, 6 to 10. Other respondents were not represented before us. Mr. Nasim Faruqui, learned counsel for the petitioner, bad contended that as per the Election Petition filed by respondent No. 3, election of the petitioner was challenged on account of the following 3 grounds :-
(i) The petitioner was disqualified in view of section 37-A of the 1979 Ordinance;
(ii) The petitioner had filed a false return of election expenses; (i.e) The petitioner was guilty of corrupt and illegal practices.
Messrs A. Q. Halepota and Aftab Ahmed Shaikh, learned counsel for the represented respondents, agreed with Mr. Nasim Faruqui on the point that allegations against the petitioner fell into the aforesaid three categories, and this also appears from the election petition itself. In the circumstances; arguments were addressed by all the learned counsel on the aforesaid three points. '
5. As regards the first point i.e. Disqualification of the petitioner in view of section 37-A of the 1979 Ordinance, it would be necessary to make a reference to the aforesaid section which is in the following terms :- "Secti 37-A.-(I) Notwithstanding any other provisions of this Ordinance, no person contesting an election under this Ordinance shall for the purpose of such election directly or indirectly-
(a) give out himself as a candidate or nominee of political party, or display or carry any insignia, flag or any such other thing indicating his association with or affiliation to such party;
(b) seek vote or. Support on party basis or in terms of the manifesto of any political party or by attributing party affiliation to his opponent;
(c) claim or receive any financial or other assistance from any political party.
(2) If the Election Authority after such inquiry as it deems .Fit is satisfied that any person is acting or has been elected in contravention of the provisions of subsection (1) it shall order that such person shall cease to be a candidate for such election or, as the case may be, to be member, and shall stand disqualified for being elected as a member for a period of four years: Provided that no such order shall be passed without affording the person concerned, an opportunity of being heard.
(3) The Election Authority may require any Judicial Officer of the rank of a District Judge or Additional District Judge to conduct an enquiry under subsection (2) and pass such Orders as he deems fit."
Subsection (1) of section 37-A places an embargo regarding association or connection with a political party and subsection (2) lays down that if the Election Authority is satisfied after holding inquiry that a person is acting or has been elected in contravention of subsection (1), it shall order that such person shall cease to be a candidate or to be a member and shall stand disqualified for a period of 4 years. Subsection (3) authorises the Election Authority to require any Judicial Officer of the rank of a District Judge or Additional District Judge to conduct an inquiry under subsection (2) and pass orders. Under the authority conferred by sub--section (3) of section 37-A, the Provincial Election Authority issued the following notification dated 16-9-1979, which was published in part 1, of the Sind Government Gazette on 17-9-1979 :- "In exercise of the powers conferred by subsection (3) of section 37-A of the Sind Local Government Ordinance, 1979, the Election Authority is pleased to require all District Judges in the Province to conduct inquiry in the cases under subsection (2) of the aforesaid section arising within their respective jurisdiction and pass such orders as they deem fit."
It was canvassed by Mr, Nasim Faruqui, learned counsel for the petitioner, that any allegation or charge which was covered by subsection (1) of section 37-A of the Ordinance, was within the exclusive jurisdiction of the Election Authority or its delegatee. The precise contention in this behalf was that the allegation or charge relating to the association with or help of a political party against the petitioner can only be competently inquired into and necessary orders passed by the authority mentioned in section 37-A and not by the Election Tribunal hearing an election petition under the 1979 Rules. It was further contended that the designated authority under section 37-A is the Provincial Election Authority and, pursuant; to the aforesaid notification dated 16-9-1979 of the Provincial Election,. Authority issued under the powers conferred by subsection (3), all District Judges in the Province of Sind are also competent to conduct the inquiry and to pass orders.
According to Mr. Nasim Faruqui, the Election Tribunal in this case was not competent to hold any inquiry or pass any order in respect of any charge or allegation covered by subsection (1) of section 37-A. It was further contended that respondent No. 3 himself has filed the application under section 37-A on 1-10-1979 before the District Judge, Hydrabad, which is competently being inquired into by the District Judge, in view of the notification dated I6-9-1979 of the Provincial Election Authority and by moving the said application under section 37-A before the District Judge, Hyderabad, respondent No. 3 has himself taken up the position that the charge relating to association with or help by a political party cannot be competently raised before and decided by the Election Tribunal.
6. Mr. A. Q. Halepota, learned counsel for respondent No. 3, referred to section 37 of the 1979 Ordinance, which relates to qualifications and disqualifications of persons for election as members and drew our attention specially to section 37(2) (f ), which provides for disqualification under "any law" According to Mr. Halepota the words "any law" in section 37 (2) (f) would cover subsection (1) of section 37-A also. It was the contention of Mr. Halepota that there was no bar under the law for taking up the objection relating to a political party in an election petition and the election petition of respondent No. 3 containing charges relating to the association of the petitioner to a political party as well as charges relating to return of election expenses and illegal and corrupt practices could be inquired into and a decision given by the Election Tribunal, which in this case was Mr. Abdul Hamid Baloch, who was the Special Judge Anti-Corrup--tion, Hyderabad, a Judicial Officer of the rank of a District Judge. It was urged that the Election Petition was filed before the Election Authority, which referred the petition for decision to Mr. Abdul Hamid Baloch not only as the Election Tribunal but also as the delegatee under subsection (3) of section 37-A of the 1979 Ordinance.
Referring to the application dated 1-10-1979, filed by respondent No. 3, before the District Judge, Hyderabad, the contention of Mr. Halepota was that the same may not be treated as an application under section 37-A but merely as a miscellaneous applica--tion. According to learned counsel, even if the said application dated 1-10-1979, was treated as an application under section 37-A, the District Judge, Hyderabad, could not competently entertain the said application or pass any orders thereon-as it had not been referred by the Election Authority to the District Judge.
According to Mr. Halepota for a District Judge or Additional District Judge to be competent to hold the inquiry under subsection (3), it is necessary that the application trust be specifically referred by the Election Authority, which in this case was not so as the application had been filed directly by the respondent No. 3 before the District Judge and not before the Election Authority.
Mr. Halepota also referred to rule 65 of the Election Rules, 1979. Sub-rule (1) of rule 65 is to the effect that no election shall be called in question except by an election petition made by a candidate for that election. According to learned counsel. The election of the petitioner could only be called in question by respondent No. 3 or other candidates who had taken part in the election through an election petition and not by any other mode. It was contended that rule 65 was the only rule under which his client could challenge the election of the petitioner. As regards the authority empowered to take action under section 37-A, the contention of Mr. Halepota was that those powers could only be exercised suo motu by the Election Authority or its delegatee. The contention, therefore, was that as section 37-A referred to a disqualification and as the respondent the petitioner election petition, it was competent for the Election Tribunal to decide the charge or allegation relating to a political party against the petitioner. In support of the contention that respondent No. 3 could not take any other proceedings except by way of an election petition under rule 65 for challenging the election of the petitioner, learned counsel, referred to the following 3 cases decided by the Supreme Court of Pakistan' :-
(a) Ata Muhammad Qureshi v. The Settlement Commissioner PLD 1971 SC61.
(b) Niaz Muhammad Khan v. Fazal Ragib PLD 1974 S. C 134.
(c) Habibur Rahman v. West Pakistan Public Service Commission PLD 1973 SC 144.
Learned counsel for respondent No. 3, referred to the following passage from the aforesaid three judgments of the Supreme Court of Pakistan :-
(a) Page 70 of PLD 1971, SC 61 "It is well settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and when as merely directory? It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may be considered as a directory provision. Nonethe--less, it appears that in several reported English cases, it has been held that an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language."
(b)Page 138 of PLD 1974 SC 134 "It is true that no universal rule can be laid down for the construction of statutes as to whether mandatory enactment's shall be considered directory only or obligatory, with an implied nullification for disobe--dience. It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule however, a statute is understood to be directory when it contains matter merely of directions, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision."
(c) Page 158 of PLD 1973 SC 144 "It is now well settled that, to use Maxwell's words, Maxwell on the Interpretation of Statutes (1962 Edition), page 369 "where the prescriptions of a statute relate to the performance of a public duty, and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, yet not promote the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and Government of those on whom the duty is imposed, or, in other words, as directory only . . . . ". Even if there has been a departure from the strict letter of the rule embodied in the relevant paragraph, the respondents had no control over the method of assessm ent adopted by the Public Service Commission for evaluating their merit, and it would indeed work undue hardship and injustice to them if the recommendations of the Commission were to be set at naught owing to the failure of the Commission to perform its duty properly. In such circumstances, the rule has to be regarded as merely directory, and its non- observance cannot by itself invalidate the recommendations of the Commission."
7. Mr. Aftab Ahmed Shaikh, learned counsel for respondents Nos. 4, 6 to 10, referred to section 105 of the 1979 Ordinance, which lays down that all rules made under the Ordinance shall be deemed to form part of the Ordi--nance and then referred to rule 67 of the 1979 Election Rules. According to Mr. Aftab Shaikh, as per rule 67 (1) (b), every Election Petition must contain full particulars of corrupt or illegal practice or other illegal act alleged to have been committed and the words "other illegal act", it was contended, includes the allegation or charge covered by subsection (1) of section 37, and accord--ingly it was necessary under the law for respondent No. 3 to include in his election petition facts and references about the alleged association of the petitioner with the political party concerned. It was then contended by Mr. Aftab Shaikh that under the rule 67(2) the only relief that could be claimed by a petitioner was that the election of the returned candidate be declared as void and that the petitioner or some other person was duly elected or that the election was void as a whole. According to Mr. Aftab Shaikh this was the limited relief that could be granted by the Election Tribunal on an election petition filed under section 67 and this provision was separate and indepen--dent of the provision contained in section 37-A of the Ordinance, where the Election Authority or the delegatee under subsection (3) was required to dis--qualify the person concerned for a period of 4 years if the charge under section 37-A was proved to the satisfaction of Election Authority or its delegatee. According to learned counsel, independent proceeding could be taken relating to the charge of association with of help by a political party under section 37-A for which the person could be disqualified for 4 years and also by an election petition containing a similar charge but where only the limited relief in terms of rule 67(2) could be granted. According to Mr. Aftab Shaikh even if the application dated 1-10-1979 of the respondent No. 3 filed before the District Judge is treated as an application under section 37-A the same is competent, and the charge relating to political party in the Election Petition was also competently taken and could be inquired into by the Election Tribunal. Mr. Aftab Shaikh adopted the arguments of Mr. Halepota to the effect that even if the charge relating to a political party could be inquired into only by the Election Authority or its delegatee under subsection (3), the Election Tribunal in this case (Mr. Abdul Hamid Baloch) being a person who could competently take cognizance under subsection (3), if delegated the power, should be deemed to have been delegated this power when the Election Authority referred the Election Petition to him for decision as the Election Petition contained allegations relating to section 37-A also.
8. We are not inclined to agree with Mr. Halepota, learned counsel for respondent No. 3, that the application dated 1-10-1979, filed by respondent No. 3 before the District Judge Hyderabad, may 'a' not be considered as an application under section 37-A but that it is only miscellaneous" applica-- tion. On a query from us, learned counsel for respondent No. 3 was unable to point out any other provision of the 1979 Ordinance, or the Rules made there-- under or for that matter any provision of any other law under which the sat application was mane by respondent No. 3. In view of the notification date 16-9-1979 of the Provincial Election Authority, referred to in para. 5 above all the District Judges of the Province of Sind have been delegated the power by the Provincial Election Authority to conduct inquiries in the cases under subsection (2) of section 37-A and pass orders thereon. We are of the view that it was on account of the provision's of . Section 37-A and the said 9 notification dated 16-9-1979 of the Provincial, Election Authority that respondent No. 3 filed the application dated 1-10-1979 before the District Judge, Hyderabad. In the said application, respondent No. 3 has made allegation about the association of the petitioner with a political party and then in para. 10 of the said application he has asked that the petitioner be disqualified for using political party influence and entire election be cancelled and re-elec--tion ordered. The prayer in the said application is contained in para. 11 thereof which reads as follows :- "It is, therefore, requested drat your honour may be pleased to issue order for disqualification of candidate Mirza Muhammad Muqim Baig."
The contents of the application dated 1-10-1979, the prayer for disqualification made therein, the- heading of the application and the tact that it was addressed to the District and Sessions Judge, Hyderabad, leave no roam for any doubt that the application dated I-10=1979 of respondent No. 3 was an application asking the District Judge to take action pursuant to subsection (2) and sub-- section (3) of section 37-A of the 1979 Ordinance.
As regards the contention of Mr. Halepota that the said application could not be treated as an application under section 37-A as the same was addressed to the District Judge, Hyderabad and not to the Election Authority and there was no reference of the said application by the Election Authority to the District .Nudge, Hyderabad, suffice it is to mention that, under subsection (3) of section 37-A, the Election Authority is empowered to require any Judicial Officer of the rank of a District Judge or Additional District Judge to conduct an inquiry under subsection (2) and pass orders thereon, and, pursuant to this power, all District Judges have been given the powers to conduct inquiries and pass orders by the notification dated I6-9-1979 issued by the Provincial Election Authority. In the face of the language of subsection (3) of section 37-A and the notification dated i6-9-1979 issued by the Provincial Election Authority, in our view, it is not necessary that first the application for an inquiry be made to the Provincial Election Authority who should then refer the matter to the District Judge but the District Judges in Sind are empowered to take action under subsection (2) and subsection (3) of section 37-A without specific orders in a particular case till the said Notification dated 16-9-1979 remains in force.
9. The other contention of Mr. Halepota as well as that of Mr. Aftab Shaikh was that the Election Tribunal in this case (Mr. Abdul Hamid Baloch) was a Judicial Officer of the rank of a District Judge and as such he was competent to exercise powers under section 37-A if he was referred a case by the Provincial Election Authority and that in this case as the Election Petition had levelled a charge regarding the association of the petitioner with a political party, when the Election Authority referred the Election Petition to Mr. Abdul Hamid Baloch, it consciously exercised powers under subsection (3) of section 37-A also.We are not inclined to accept this argument. Firstly we are of the view that in this case as far as the Election Petition is concerned there is no order of the Election Authority whereby it could be said that the Election Authority by a conscious action on its part referred this Election Petition for decision by Mr. Abdul Hamid Baloch in his twin capacities as an Election Tribunal and as a judicial officer of the rank of a District Judge pursuant to subsection (3) of section 37-A. In our view the election petition was referred for trial by the Provincial Election :Authority to the Election Tribunal as Election Tribunal only under rule 68(2) and there was on reference under-Section 37-A as contended by learned counsel for the respon--dents. There is further flaw in this contention of learned counsel for the respondents and is that the application of respondent No. 3 was already pending with the District Judge, Hyderabad, when the Election Petition was filed on 25-11-1979 and we have already held that the application dated 1-10-1979 is an application under section 37-A and the District Judge, Hydera--bad, while considering it is exercising powers subsection (3) of section 37-A and as such there cannot be two references i.e. One to the District Judge, Hydera--bad and second one relating to the same charge against the petitioner to another officer i.e. Mr. Abdul Hamid Baloch.
10. We also find it difficult to accept the argument that independent provisions exist in the 1975 Ordinance and the Rules framed thereunder in respect of the charge relating to the association to or assistance by a political. Party and that two different actions can be taken and reliefs sought by approaching two different authorities. If this contention is accepted it would lead to an obviously absurd result and f. e. That there can then be two different or contradictory decisions on the same point by two different authorities acting under the 1979 Ordinance. If the contention is accepted the charge relating to a political party would then be competently inquired into and the limited relief granted underrule 67(2) of the 1979 Election Rules by the Election Tribunal and on the other hand on the same facts and in respect of the same charge the Election Authority or its delegatee under subsection (3) of section 37-A may pass a contradictory order. Section 37-A is a specific provision introduced in the 1979 Ordinance and it relates to a charge or allegation relating to the association of a candidate or elected member to a political party and in respect thereof the Authority mentioned therein has been authorised to take action and to disqualify the concerned persons for a period of 4 years. The statutory provision of section 37-A starts with the words "Notwithstanding any other provisions of this Ordinance". In the circumstance a, we are of the view that where a charge or allegation is made against candidate or an elected member relating to his connection or association with political party as described in subsection (1) of section 37-A, the only authority competent to inquire into this charge and to pass orders is the authority mentioned in section 37.A, and the Election Tribunal, which is not acting under section 37-A, is not competent to inquire into such a charge and pas any orders in relation thereto.
11. As regards the language of rule 65 of the 1979 Election Rules, which lays down that no election shall be called in question except by an Election Petition made by a candidate for that election, Mr. Halepota had sought support from the passages from the three Supreme Court judgments reported in PLD 1971 SC61, PLD 1974 SC 134 and PLD 197 3SC 144 (referred in para. 6 above). We may observe that the aforesaid passages from the judgments of the Supreme Court of Pakistan do not help the contention of the learned counsel for the respondent No. 3, rule 65 no doubt lays down that no election shall be called in question except by as election petition but then there is the specific provision of section 37-A. An automatic consequence of the order of the Election Authority or its delegates under section 37-A disqualifying an elected member would be the setting aside of the election results.
The provisions of the 1979 Ordinance and the Rules made thereunder should be read as a whole and if these are read as a whole the obvious interpretation would be that in case of a charge falling under section 37-A the only competent authority to inquire into the same is the Election Authority or its delegatee under subsection (3) and for other charges an Election Petition a under rule 65 can be filed. There might have been weight in the contention of Mr. Halepota in view of the judgments of the Supreme Court relied upon him if rule 65 had stood alone. However, section 37-A is there and its existence cannot be ignored. Even otherwise, in case of any conflict between a section of the Ordinance and a Rule framed thereunder, the former shall prevail. As a result the contention of Mr. Nasim Faruqui on the first point is accepted and we hold that the Election Tribunal Hyderabad in this case was not competent to inquiry into and take a decision on Issue No. 2 relating to the charge against the petitioner in connection with his association with a political party. We have avoided to make any comments on the material on record as regards the allegation against the petitioner relating to his associa--tion with or help by a political party as we are conscious that competent proceedings are pending before the District Judge, Hyderabad and it is for that forum to hold the inquiry and pass orders under section 37-A of the 1979 Ordinance.
12. The second point, on which arguments were addressed before us by the learned counsel, relates to Issues Nos. 6 and 7 framed by the Election Tribunal and these issues relate to the filing of a false declaration by the petitioner in respect of election expenses. The Election Tribunal came to the conclusion that the petitioner had filed false return of expenses and thereby violated rule 61 of the Election Rules 1979. The case against the petitioner on these two issues is based on two 'Exhibits, i.e. Exhs. 13/27 and 13/28 and if these two Exhibits are ignored or discarded, the charge against the petitioner on these issues would fail. These two Exhibits are the delivery orders of the firm Farooq & Co., Decoration Service, Market Road, Hyderabad. Exhibit 13/27 is dated 12-9-1979 and it shows that certain furniture and other items were sent to the petitioner on hire basis and the total amount payable in respect of hire charges for the various items mentioned in Exh. 13/27 is Rs.1,339. Exh. 13/28 is another delivery order dated 26-9-1979 of the same firm and on the top it shows the balance of Rs.1,339 brought forward vide delivery order dated 12-9-1979 (Exh. 13/27) and then there are shown certain shortages and damages for which an extra amount of Rs.92 is charged and Rs.125 is shown as cartage making the total of both Exh. 13/27 and 13/28 as Rs.1.556. Although the total of these bills came to Rs.1,55E the Election Tribunal has taken the two amounts of Rs.1,339 and Rs.1,556 as separate amounts and has taken their total as Rs.2,895. This is how the Election Tribunal has referred to these two Exhs. 13 /27 and 13/28 :- "On this issue, the petitioner has examined Muhammad timer (Exh. 20), proprietor Farooq & Co. He has produced two bills in the name of Mirza Muqeem Baig through his son as Exhs. 21 and 22 (Exhs.
13/27 and 13/28). He has further deposed that he knows Mirza Muqeem Baig and his son Wasim Baig and amount of the bill Exh. 27 is Rs 1,339 and the amount of bill Exh. 28 is Rs.1,556 totaling Rs.2,895 which was paid by Mirza Muqeem Baig and the bills are in the name of Mirza Muqeem Baig."
It is obvious that even if the two delivery-orders-cum-bills are taken as correct, the total of these two bills does not come to Rs.2,895 but the total is Rs.1,556 only, as in Exh. 13/28, the first entry is Rs.1,339 which is the balance brought forward from Exh. 13/27. This would show that the Election Tribunal has not applied its mind at all to these two Exhibits, on which the case against the petitioner on Issues Nos. 6 and 7 is based. It may be noticed that the total of these figures as given in the two Exhibits and the finding of the Election Tribunal that the total was Rs.2,895 assumes great impor--tance in view of rule 62(3) of the 1979 Election Rules which fixes the upper limit of Rs.2,000 on election expenses of a contesting candidate, excluding the personal expenditure incurred by such candidate.
13. Further we are not satisfied at all about the genuineness of these two Exhibits in view of the novel and extraordinary technique adopted by respondent No. 3 for the production of these two documents. On page 143 of this Court's file there is a photostat copy of the application dated 6-11- 1979 of respondent No. 3 addressed to the Superintendent Police, Hyderabad, in which he refers to the election in question and the declaration of the petitioner as the successful candidate and then goes on to state that he intends to file an Election Petition and that he had come to know that the petitioner had filed a false return of expenditure and that the petitioner in collusion with Farooq & Co., had prepared false bills which original bill were lying in the receipt book of Farooq & Co. In these circumstances it was prayed by respondent No. 3 that Inspector of Police. C. I. A. Be directed to seize the receipt book for the month of September, 1979, and kept it safe for production in Court of law and to grant him photostat copy of the entry of receipt. Photostat copy of this application dated 6-11-1979 shows that the S.P. Is supposed to have made an endorsement thereon addressed to the S.H.O. Market "for necessary action accordingly". It is in the evidence of Sultan Shah, Additional S.H.O., Market Police Station, Hyderabad, that it is on the basis of this application dated 6-11-1979 and the orders of the S. P. Thereon that the Police procured the originals of the aforesaid two Exhibits and kepi photostat copies in their custody and also supplied photostat copies to respondent No. 3 and then returned the originals to Farooq & Co. The method adopted by respondent No. 3 for procuring evidence for himself to be used by him against the petitioner in the Election Petition proposed to be filed later, in our view, casts grave doubts on the genuineness of these docu--ments. Mr. A. Q. Halepota, learned counsel for respondent No. 3, had contended that filing of a false return was also a criminal offence under the election laws and the Police, therefore, had ample powers to seize these docu--ments for use later on in the criminal trial against the petitioner. We are not impressed by this argument as, in our view, the application dated 6-11-1979 of respondent No. 3 speaks for itself. The purpose of the applica--tion was to obtain the documents for use in the Election Petition to be filed later on by respondent No. 3. On a query from the Court, learned counsel for respondent No. 3 had contended that the purpose of making the application was to bring to the notice of the Police the fact that a criminal offence had been committed by the petitioner and to hold an enquiry. As observed earlier, this was clearly not the purpose of the application in question.
Further if the purpose was as alleged by respondent No. 3, the application should not normally have been addressed to the S. P. But to the S.H.O. Of the concerned Police Station. The fact than the application was addressed directly to the S.P. And then immediately the documents were supposed to have been recovered by the Police itself and respondent No. 3 granted photo-copies forthwith puts a question mark on the authenticity of these Exhibits.
14. Even otherwise the aforesaid two exhibits are on their face doubtful in character. Exhibit 13/27 is dated 12-9-1979 and, therefore, it signifies that the same was prepared on that day. However, a perusal of Exh. 13/27 shows that practically most of the entries have been made in this document after 12-9-1979. Entries have been made on this document on 19-9-1979, 24-9-1979 and 26-9-1979 and even as late as 13-10-1979. The entry of 13-10-1979 is as follows:-- "Advance paid Rs.1,560 on 13-10-1979. "
Exhibit 13/28 is purported to have been made on 26-9-1979, the date on which the furniture and other items are supposed to have been returned to the decoration firm. This shows that against the total amount of Rs.1,556, due, Farooq & Co. Had received an advance of Rs.1,500, .Leaving the balance of Rs.56. Generally and we might observe, in almost all cases, advance is supposed to be a payment made before the settlement of account. If the furniture and other items were delivered to the petitioner on 12-9-1979 or on any date or dates prior to 26-9-19 7 9, and if any advance was paid, the advance payment would have been made prior to 26-9-1979. There is no explanation for this entry of the advance having been paid on 13-10-1979, much after 26-9-1979. Then there are over writings and corrections at several places on both these two Exhibits and Muhammad Umar, Proprietor of Farooq & Co. In his cross-examination even admitted that some additions were made in these Exhibits at the instance of respondent No. 3. If certain additions had been made in these exhibits at the instance of respondent No. 3, these two exhibits become further doubtful. Then there' are printed insertions in these two exhibits about "customer, signatures" but admittedly signatures of the petitioner are nut appended on either of these two exhibits. The petitioner has denied that he had taken the said furniture and other items on hire from Farooq & Co. In our view, these two Exhibits have not been proved and being of patently doubtful character could not be relied upon by the Election Tribunal for basing its findings on Issues Nos. 6 and 7. The Election Tribunal did not even consider these documents on their face value. In this respect we have already noticed that the Election Tribunal treated these two exhibits as separate and made a total of the two entries of Rs.1,339, and Rs.1,556, whereas the figure of Rs.1,339, in Exh. 13/28 was merely the amount brought forward from Exh. 13/27. We have already observed that if these two exhibits are discarded the case against the petitioner on point No. 2 fails and we hold accordingly. Apart from these two points, Mr. A. Q. Halepota had taken us through the oral testimony of respondent No. 3 and other witnesses on Issues Nos. 6 and 7 but as pointed out, in the absence of Exhs. 13/27 and 13/28, ibis oral testimony is of no significance and cannot sustain the charge against the petitioner on this count.
15. The third point on which arguments were addressed by learned counsel for the parties related to the commission of corrupt and illegal practices by the petitioner as alleged by respondent No. 3 and is covered by Issues Nos. 3, 4 and 5 as framed by the Election Tribunal. In fact these three issues were taken up together by the Tribunal with Issue No. 2 relating to the association with a political party. On this point respondent No. 3 in his Election Petition filed before the Election Tribunal had leveled specific charges. A perusal of the facts and grounds enumerated in the memo of the Election Petition shows that the illegal and corrupt practices were committed by or at the instigation or instance of the petitioner or to help him in the elections. The case of respondent No. 3 against the petitioner can be compartmentalized as under :-
(a) Petitioner, on account of his influence and position, got appointed election stag of his own choice who were openly canvassing for him and helped him in the election;
(b) Petitioner specially manoeuvred to get respondent Nn. 13 (Mst. Feroza) appointed as Presiding Officer, female Polling Station in place of one Mst. Nasim Noorani who had been appointed initially;
(c) lanbaz Force and P. Q. Razakars posted on election duty supported the petitioner had worked against the respondent No. 3 and other candidates. Commandar Zahoor of Janbaz Force and other Officers were personal friends of the petitioner;
(d) The respondent No. 3 having come to know in advance that polling staff and security forces favourable to the petitioner had been posted can election duty, sent a telegram on 23-9-1979 to the authorities concerned informing that posting of such staff would harm the interest of the respondent No. 3 and on the other hand help tire petition. He also sent an application' to the Returning Officer;
(e) At the opening of the poll, the Presiding Officer was requested to show the empty boxes and then seal them but this was refused;
(f) Applications were made at 10-00 a. m., 11-00 a. m. And 12-30 p. In. On the election day informing the Presiding Officer that security and polling staff was openly favouring the petitioner and convassing for him and only voters brought by the petitioner were being allowed to vote and others were discouraged;
(g) Lawlessness and violation of Rules was so great that all candidates jointly protested but on refusal of the Presiding Officer to accept the objection a telegram was sent to that effect signed by all the candidates including the petitioner;
(h) Telegrams and representations were sent to election authorities and other concerned officers in connection with the illegalities and corrupt practices.
16. The allegations against the petitioner as contained in the election petition were sought to be proved by respondent No. 3 through certain documents and by his own oral testimony, evidence given by some of the other candidates and by P. W. Wahid Bux (election agent of respondent No. 3), P. W. Yaqoob (election agent of respondent No. 4) and Head Constable Muhammad Sharif.
17. We consider it pertinent to refer here to the material documentary evidence on record which is relevant for Issues Nos. 3, 4 and 5 framed by that Election Tribunal. The election, as observed earlier, had taken place on 25-9-1979 and, therefore, first we deal with the documentary evidence which is on record. Unto and including 25-9-1;979. First is the application dated 23-9-1979 of respondent No. 3 addressed to the Returning Officer and a reference about which has been made in para. 15(d) of this judgment. This application is reproduced here:- Exhibit 13/1 "To, The Returning Officer, Unit No. 16 Union Committee No. 11; Ward `E', Hyderabad.
Subject: Request for transfer of Assistant P.O. Mr. Ishaq.
Respected Sir, It is respectfully submitted as under:---
1. That I have filled form for contesting election as Municipal Councilor from Unit No. 16, Union Committee No. 11, Ward `E', Hyderabad.
2. That I have come to know that one Mr. Ishaq son of Muhammad Asghar who has got some personal grudge against me is post-.d as Assistant P.O. For the same ward and it is apprehended that he shall harm me and create trouble for me in contesting and casting votes.
It is, therefore, prayed that your honour may be pleased to transfer Mr. Ishaq son of Muhammad Asghar posted as Assistant Presiding Officer for Unit No. 16, U. C. No. 11, Ward `E' Hyderabad, on the ground of personal grudge with me and having his residence in the same mohallah where he though being a Government servant is working against me.
Thanking you.
Yours obediently, Farooq K.Shahid Candidate Unit No. 16, U. C. No. 11, Ward `E', Hyderabad."
Then there is the telegram (reference para. 10 of the Election Petition and para. 15(d) of this judgment) dated 23-9-1979 of respondent No. 3 addressed to the Election Commissioner, Sind, Karachi, which reads a3 follows: - Exhibit Exhibit 13/2 .
"Election Commissioner Sind, Karachi.
Contesting election as Municipal Councilor from Union .Committee 11 Unit 16 Ward "E", Hyderabad.
Ishaq son of Muhammad Asghar resident of same locality and Government employee is appointed as Assistant Presiding Officer for same unit. He bears personal grudge against me. Being Government employee is tampering my voters and well wishers. Pray for departmental action and immediate transfer from my unit failing shall suffer loss.
Farooq K. Shahid, Candidate Ward "E" Hyderabad,"
Another telegram dated 23-9-1979 addressed to other authorities (reference para. 10 of Election Petition) by respondent No. 3 is as allows:-- Exhibit 13/3 "District & Sessions Judge, Hyderabad.
Deputy Commissioner, Hyderabad.
Contesting election as Municipal Councilor from Union Committee 11, Unit 16 Ward `E', Hyderabad.
Ishaq son of Muhammad Asghar resident of same locality and Government employee is appointed as Assistant Presiding Officer for same unit. He bears personal grudge against me. Being Government employee is tampering my voters and well wishers. Pray for departmental action and immediate transfer from my unit failing shall suffer loss: Farooq K. Shahid.
Candidate, Ward `E', Hyderabad."
Three other telegrams all sent on 23-9-1979 by respondent No. 3 to different authorities are also reproduced hence:- Exhibit 13/4 "Election Commissioner Sind, Karachi.
Farooq K. Shahid, Candidate, U. C. 11, Unit 16, Fort Area, Hyderabad."
Exhibit 13,15 "District & Sessions Judge, Hyderabad.
Deputy Commissioner, Hyderabad.
Farooq K. Shahid, Candidate, U. C. 11, Unit 16, Fort Area, Hyderabad,"
Exhibit 13/6 "Deputy Commissioner, Hyderabad.
Deputy Inspector General Police, Hyderabad.
Superintendent Police, Hyderabad.
Station House Officer, City Police Station, Hyderabad.
Contesting election as Municipal Councilor from' Unit 16, Union Committee 11, Ward `E', Fort, Hyderabad. Janbaz Force and P. Q. R. Staff residing in Fort Area, Hyderabad are tampering and misguiding my voters and well-wishers. Severe apprehension of breach of peace and tampering.
Pray not to appoint Janbaz Force and P. Q. R. Employees residing in Fort Area, Hyderabad, in our unit. Prayer in interest of justice and fair election.
Farooq K. Shahid, Candidate.
Unit 16, Union Committee 11, Fort Area, 'Hyderabad."
18. A perusal of the six documents of 23-9-79 i.e. Two days before the elections, and reproduced in the previous paragraph, would show that except for one cable in which general allegation is made about the posting of Janbaz Force and P. Q. R. Employees, all the other documents refer only to the personal grudge of Assistant Presiding Officer Ishaq (respondent No. 15 herein) against respondent No. 3. In none of the 6 documents dated 23-9-1979 there is any allegation against the petitioner. In fact the petitioner is not mentioned or referred to directly or even indirectly in these cables and application of 23-9-1979.
19. On 25-9-1979 there is one telegram on record which was dispatched at 11-30 a.m. The time and despatch of this telegram was admitted by all the three counsels before us. This telegram reads as follows:- Exhibit 13/8 "Returning Officer, Hyderabad.
Deputy Commissioner, Hyderabad.
Deputy Martial Law Administrator, Hyderabad.
Sub-Divisional Magistrate, Hyderabad.
Presiding Officer Mst. Feroza of Union Committee 11, Unit 16 Ward `E', Hyderabad, highly abusing Lady voters compelling lady voters to affix stamp to candidate of her choice (.) On refusal torning slips (.) Kindly cancel Lady Polling (.) Serious objection (.) Behaviour with our agents quite objectionable (.) Refusing to accept objection application (.)
Munawarali Abbasi.
Zaher Naginwala Faooq K. Shahd .
Abdul Majid.
Mirza Muqeem Beg.
Abdul.
Hamid. Abdul Rashid. Nasim.
Candidates Fort Area, Hyderabad.
The point of significance of this telegram is that apart from 7 other candidates, petitioner is also a ' signatory to this document. This is an admitted fact.
Exh. 13/7 dated 25-9-1979 is an objection filed before the Presiding officer on a printed form that irregularities were being committed at the female booth. This objection is signed by four candidates including respondent No. 3 and the petitioner.
20. After the elections there are two telegrams dated 26-9-1979 addressed to different authorities (Exhs. 13/12 and Exh. 13/13) but the text is the same and which is as follows Exhibit 13/12 "Sub-Martial Law Administrator, Hyderabad.
Deputy Commissioner, Hyderabad.
District & Sessions Judge, Hyderabad.
Returning Officer Unit 16, Hyderabad.
Deputy Inspector=General Police, Hyderabad.
Abdul Rashid Allahdin Abdul Majid S. M. Zaheer Naseem.
Farooq. K. Shahid Candidates."
21. The documentary evidence referred to above in paras. 17 and 19 does not support the case of respondent No. 3 at all on Issues Nos. 3, 4 and 5. The entire case of respondent No. 3 in his Election Petition has been that everything illegal and irregular was done by or at the instance of the petitioner or to assist him. But in the aforesaid documents no charge is levelled against the petitioner. According to the Election Petition, respondent No. 3 was aware of the posting of the election staff of the choice of the petitioner before the elections took place. Similar is the allegation about the security forces and that the staff and the forces were openly canvassing for the petitioner. Specific allegation was made about the appoint--ment of Mst. Feroza (respondent No. 13 herein) in place of Mst. Nasim Noorani at the instance of the petitioner. But strangely enough none of the various aforesaid allegations find any mention in any of the aforesaid exhibits mentioned in paras. 17 and 19 above. We have particularly noted the fact that respondent chose to communicate in writing certain allegation to the authorities concerned through telegrams and the application (Exh. 13/1). If he was aware at the times he sent these communications to the authori-- ties about any illegal or irregular activities or involvement of the petitioner --and if the allegations in the Election Petition are to be accepted as correct then respondent No. 3 was aware of material illegalities and irregularities on the part of the petitioner-it is natural to expect that the same would have been reported in such written communications. Allegations in the afore--said exhibits are made against the posting of Ishaq but not about Mst. Feroza. No allegation, whatsoever is made against the petitioner. Another fact that has struck us is that on the day of election at 11-30 a.m. i.e. a few hours after the polling commenced, a joint telegram (Exh. 13/8) is sent to several authorities in which allegations are made about Mst. Feroza and the female polling booth. This telegram, as observed earlier is signed by respondent No. 3 and also by the petitioner. If respondent No. 3 was blaming and making very serious charges against the petitioner, he would firstly not allow the petitioner to be a party to the said telegram, and secondly in that telegram specific allegations against the petitioner would have been made. But this is not so as is apparent from Exh. 13/8. It only goes to show that respondent No. 3 had no grievance to report against the petitioner. The charges leveled by the petitioner and summarized in para. 15 above stand contradicted by exhibits referred to in paras. 17 and 19 above by necessary implication. The Election Tribunal has not applied its mind to this aspect of the case at all. On the contrary the Tribunal has held that the aforesaid exhibits (and documents relating to the association of the petitioner with a political party) prove the allegations contained in the Election Petition as true. This finding on Issues Nos. 3, 4 and 5 was not possible on the basis of the aforesaid exhibits, as observed earlier. These exhibits point out that till 25-9-1979 i.e. Till after the polling was completed, respondent No. 3 had no complaint or grievance against the petitioner in so far as matters covered by Issues Nos. 3, 4 and 5.
22. As regards the oral evidence, apart from Head Constable Muhammad Sharif; all other witnesses on Issues Nos. 3, 4 and 5 are either candidates who had taken part in the elections or their polling agents. The candidates were signatories to one or more telegrams sent to the authorities but none of them made any allegations therein against the petitioner. Their oral testimony making allegations against the petitioner on Issues Nos. 3, 4 and 5 is of no value. It is pertinent to note that none of the electors who were deprived from casting their votes or pressurized to cast votes in favour of the petitioner have been examined. The only other witnesses, as observed earlier, is Head Constable Muhammad Sharif (Exb. 15). He had stated in his affidavit, dated 13-4-1980 that he was incharge for maintaining law and order situation on the day of the election and he saw irregularities being committed. In his cross-examination, however, he admitted that he made no written report to S. H. O. Or any authority. No reliance can be placed on the oral testimony of this witness also.
23. We are accordingly of the view that on the basis of the evidence on record, the Election Tribunal could not come to the finding against the petitioner on Issues Nos. 3, 4 and 5, and its findings as given in the judgment dated 24-8-1981 cannot be sustained.
24. Messrs A. Q. Halepota and Aftab Shaikh had attempted to argue that as the petitioner was a signatory to the joint telegram (Exh. 13/8), he is hound by the contents thereof. This contention does not take the case of respondent No. 3 very far as the mere allegadon in Exb: 1318 does not prove that illegalities or irregularities were committed at the female polling station.
25. An argument was raised by Mr. Halepota that the Election Tribunal under the 1979 Ordinance and Rules was not bound by the Evidence Act which law was not applicable to the proceedings before the Tribunal A contrary argument was made by Mr. Nasim Farooqui, learned counsel for the petitioner. In this case we are not required to decide this question as on the first point we have found the decision to be without jurisdiction and on the other two points to be contrary to the- evidence on the record.
26. We may refer here to an argument advanced by Mr. A. Q. Halepota to the effect that even if this Court comes to the conclusion that the Election Tribunal had taken a wrong or erroneous view and that another view was possible, exercising the extraordinary constitutional jurisdiction, this Court will not interfere and set aside the impugned Order. It was urged that the Election Tribunal had jurisdiction and was competent under the applicable law to set aside the election, and in the circumstances, the impugned order was immune from attack under the constitutional jurisdiction of this Court. Learned counsel, in aid of the contention in this behalf, referred to the following passage from the judgments of our Supreme Court and the Supreme Court of India :-
(i) Badrul Haq Khan v, Election Tribunal Dacca PLD 1963 SC 704.
"I have to say a few words with respect to the applicability of Article 98 of the present Constitution to ,judicial acts. When is a judicial act without lawful authority? If in the procedure that proceeds the ultimate order there be non-compliance with legal provisions will that itself render the ultimate order an order without lawful authority? It would be difficult for any person to put forward that every irregularity will have that effect. It is contended, however, in this case, that inadmissible evidence had been admitted by the Tribunal. I would be prepared to concede that the admission of inadmissible evidence would be an act which is without lawful authority, but that is not the act which is being challenged. The act which is being challenged is the ultimate order and the admission of in admissible evidence does rot make the ultimate order without lawful authority unless it appears that tote inadmissible evidence affected the ultimate order. In the present case it is not even correct that any inadmissible evidence was admitted, but in any case there was good and sufficient evidence, apart from the inadmissible evidence, which had been accepted by the Tribunal and on the basis of which the Tribunal could have recorded a finding.
There was an objection as to onus and it is possible that improper allocation of onus may affect the ultimate decision in case so as to render it without lawful authority. But in the present case there is only a verbal defect in the words used in the judgment and the intention of the Tribunal was not to place the onus of disproving his guilt or, the respondent. The Tribunal found that evidence had been led which made out a prima facie case and it is only on account of the presence of such evidence that the onus was held to lie henceforth on the respondent.
The order of the Tribunal was attacked as without lawful authority also on the ground that it misinterpreted the provisions of the Representation of the People Act and held the simple appearance of the respondent's name on the contractors' list to be a sufficient disqualification, It is urged that this was a clear error of law and such an error would make the decision `without lawful authority'. The proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. I do not see any difference in a case where the question of law decided is a matter on which two opinions can easily be held and a case where the decision on a question of law appears to be clearly erroneous. It would not make difference that on logical reasoning the interpretation of law by the Tribunal could not be supported. Unless a case of mala fides or a mere colourable exercise of jurisdiction could be made out the decision would not be without lawful authority. If an order can be without legal authority because of a clearly wrong determination of a question of law, it should be without legal authority even in case of a clearly wrong determination of a question of fact. There is no reason for any distinction in this connection between a decision on a question of law and a decision on a question of fact. So if we were to accept the proposition that clearly erroneous decisions are without lawful authority the Court acting under Article 98 would constitute itself a Court of appeal for matters of fact as well as matter of law."
(ii) Hari Vishnu Kamath v. Ahmad Ishaque PLD.1956 SC (Ind.) 1.
From page 12: "The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction.
One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous."
(i.e) Jamal Shah v. Second Election Tribunal West Pakistan 1968 SCMR 1144.
From page 1150: "Article 171 of the (1962) Constitution places election disputes within the exclusive and final jurisdiction of the designated authority and the High Court, therefore, while exercising its power under Article 98 must keep in view the above provisions of the Constitution."
(iv) Ghulam Nabi v. Muhammad,4fzal Khan 1970 SCMR 68.
From page 68: "merely because another view of the evidence is possible, would furnish no ground for interference in writ jurisdiction."
On the other hand, Mr. Nasim A. Farooqui, learned counsel for the petitioner, placed reliance on the following two judgments of the Supreme Court of Pakistan, :-
(a) Commissioner v. Sher Muhammad 1972 SCMR 395.
Raliance was placed on the following passage at page 397 :--- "It is correct that ordinarily, the High Court is not entitled to investigate disputed questions of fact in the exercise of its writ jurisdiction, but it is well settled that a finding of fact can be interfered with if it is based on no evidence, or a misreading of evidence, or ignoring of material evidence, or taking into consideration inadmissible evidence. It seems that in the present case the learned Judge formed the view that the Commissioner, Multan Division, had arrived at his finding regarding the ineligibility of the respondent by ignoring a material piece of evidence covering a period of more than 13 months. This would be a justifiable reason for interfering with the finding recorded by the learned Commissioner."
(b) Chief Land Commissioner v. Nazar Hussain 1975 SCMR 352.
Reliance was placed by learned counsel for the petitioner on the following passages at page 354: Learned counsel appearing in support of this petition has also contended that the High Court had no jurisdiction to interfere with the order of the Chief Land Commissioner in the writ jurisdiction. The High Court had, it is contended, exceeded its own jurisdiction by treating the matter as if it was an appeal before it. No grounds for the issuance of certiorari existed. A mere erroneous decision, it is said, could not be struck down in the certiorari jurisdiction.
We are unable to agree the High Court had misconceived the scope of its own jurisdiction under Article 98 of the Constitution of 1962. Under the provisions of that Constitution, the High Court could interfere with the order of the Chief Land Commissioner, if they were based on misreading of evidence or suffered from any error of law apparent on in the face of the record. As indicated earlier, the High Court was fully conscious of the limits of its own jurisdiction and had, therefore, been careful enough to indicate specifically the grounds for its interference. No just exception can be taken to the order of the High Court. It has in detail brought out the misreading of the evidence, the non-consideration of the material evidence, the erroneous assumption of facts made by the Chief Land Commissioner and the patent error of law committed by him."
Learned counsel for the petitioner placed great reliance on a Division Bench judgment of the Baluchistan High Court reported in Nasreen Fatima Awan v. Bolan Medical College (PLD 1978 Quetta 17). Counsel specially drew our attention to the following passages in paras. 27, 28 and 29 of this judgment:- "The next point that deserves consideration is whether the impugned orders are liable to be interfered with by this Court in exercise of powers under Article .100 of the Constitution. We are conscious of the legal position that this Court does not normally undertake appraisal of evidence nor does it readily displace findings of fact. A traditional slowness of the High Court to disturb findings of fact has become a succinct rule governing the exercise of powers in these cases..
However, it would be laying too broad a proposition, if it is stated that this Court cannot at all interfere with the decision on facts recorded by' administrative tribunals. A wealth of case-law is available on the point. There have been instance when the High Courts have traveled into the realm of facts in exercise of its constitu--tional jurisdiction. The High Courts have interfered when findings based on insufficient evidence, misreading of evidence, non-considera--tion of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power --and unreasonable view is on evidence, has been taken. It cannot be said that every finding of executive tribunal is beyond the scope of interference of the High Court because if that were so, the concept of certiorari would virtually become redundant and meaningless.
We do not wish to be misunderstood as meaning that the High Court in such cases will convert itself into a Court of appeal and determine the minutest confabulations in the evidence, but the High Court has to be satisfied that reasonably correct conclusion has been recorded and the decision does not suffer from perversity. To adopt any other view would neither be according to dictates of law not founded in principles of justice and an attempt to find an apology for such refrain would only be in vain.
Arbitrary decisions are never considered wholesome in our system of law. One of the dominant tests of a decision being arbitrary is whether it proceeds on any substantial reason or exhibits lack of application of mind. Such manner of exercise of jurisdiction has very often been equated or called by a synonym of abuse of jurisdic--tion. Such abuse manifests itself by making it patent that the authority that had this lie before it either overlooked the evidence brought before it or by reason of preconceived notions misdirected itself to arrive at such conclusions. Which are either perverse or could not be substantiated on the basis of available evidence. Such arbitrariness or abuse of jurisdiction may very often become patent by an ad hoc observation indicating a desire to overlook the available evidence coupled with a longing for evidence which in the imagination of the authority should have been produced. Very often a cloak is provided for arbitrary decision by mention of the words that some better evidence or the best evidence has not been produced but the fact of the matter may well be that the available evidence is overlooked. This in our humble opinion is arbitrariness of the worst type when a tribunal dealing with the rights' of the citizen overlooks what is placed before it to the form of evidence and supplements its desire to overlook the evidence by finding a fault with the petitioner that the best evidence has not been produced."
27. We feel no hesitancy in holding that in the facts and circumstances of the instant case and in view of our conclusions on the three points, this Court is competent and has jurisdiction in these constitutional proceedings to set aside the impugned order of the Election Tribunal. On the question of the charge relating to political parties, we have held that the Election Tribunal had no jurisdiction in that regard. On the other two points our decision is that the Election Tribunal could not reach the conclusion that it has reached and its findings thereon cannot be sustained. It is not a case of an erroneous decision or of a case where another view was possible. According to us, on the basis of the evidence on record, the Election Tribunal could not come to the conclusion that the charges against the petitioner had been established. The decision on the two points is contrary to the evidence in the record. We have not been persuaded by learned counsel for the respondent No. 3 that the impugned order is immune from attack in these proceedings.
28. As a result, it is declared that the impugned judgment dated 24-8-1981 of the Election Tribunal, Hyderabad, in Election Petition No. 44 of 1979 has been made without lawful authority and is of no legal effect and the same is quashed. It may be noted here that pursuant to the impugned judgment dated 24-8-1981 of the Election Tribunal, Hyderabad, certain actions and proceedings have been taken by the authorities concerned for holding a fresh election. In this petition C. M. A.
1813/81 had been filed by the petitioner for seeking stay of the operation of the impugned judgment dated 24-8-1981. However, we had not granted interim relief as we had decided to bear the stay application alongwith the main petition at a very early date. The effect of our judgment quashing the impugned judgment dated 24-8-1981 is that all actions and proceedings taken pursuant to the judgment dated 24-8-1981 of the Election Tribunal, Hyderabad, are of no legal effect. There shall be no order as to costs.