Z. C. VALIANI, J.----The Petitioner above-named being aggrieved by the judgment dated 5th April, 1980 passed by Mr. Makhdoom Saifuddin Siddiqui, Special Judge Anti-Corruption and Election Tribunal, Karachi, while discharging his function, as Election Tribunal .Appointed under the arrangement of Provincial Election Authority, Sind, in an Election Petition No. 411 of 1979, whereby the learned Tribunal decided the said Election Petition against the present Petitioner, by declaring respondent No. 4 as successful candidate, has filed this Petition, inter. Alia, on the following facts and grounds:-
2. That the Petitioner above-named, was declared as successful candidate in. The election for K. M.
C. Unit No. 39 U. C.-88, Mehmood--abad, Karachi, for Local Bodies Election held on 25th September, 1979. That on 29th September, 1979 when official counting was made, it was officially announced that the Petitioner had won the election and he was declared officially as returned candidate having secured 416 votes and respondent No. 4 according to the official results had secured 413 votes. The official Gazetee notification in this connection was also issued.
3. That respondent No. 4, who had lost the election against the petitioner, had filed Election Petition No. 411 of 1979, before respondent No. 1, which was subsequently assigned to respondent No. 2, for trial, Respondent No. 4, while making all the contesting candidates, Returning Officer and Presiding Officers of the Polling Station as party, had omitted to include the names of one Mr. Muhammad Imran Wasti, as respondent in the said Petition, although he had Also contested election from the same constituency.
4. That the Petitioner on being served with the notice of the above lection Petition, from the Election Tribunal, filed his written statement and subsequently got the said written statement amended and raised two 1preliminary objections, regarding the maintainability of the said Election petition as follows:------
(a) The Petition was not maintainable inasmuch as the provi--sion of Rules 66(a) had been violated by not joining Mr. Muhammad Imran Wasti, as a respondent to the Election Petition.
(b) That Election Petition was not maintainable inasmuch as the Petition and the schedules and annexures were not verified in the manner laid down in the Code of Civil Procedure, 1908, which was also a violation of Rule 67(3) of the Sind Local Councils (Election) Rules, 1979.
That before respondent No. 4 had moved application for amendment of his written statement, the Election Tribunal had framed the following issues .-------
(1) Whether respondent No. 2 was a political man having affiliation with Pakistan Peoples Party ? If so what is the effect ?
(ii) Whether respondent No. 2 adopted unfair means, committed corrupt and illegal practices at his Election. If so, what is the effect ?
(i.e) Whether the Presiding Officer failed to comply with the provisions of Rule 40 (3) and (14) of the Sind Locals Councils (Election) Rules, 1979 ? If so, what is the effect ?
(iv) Whether the initial counting and re-counting by respondent No. 1 was illegal inasmuch as seals of packets were broken and the number of votes taken out from the packet did not tally with endorsement on the envelope. If so, what is the effect?
(v) Whether the votes have been rejected and not counted to disadvantage of the Petitioner ? If so, what is the effect ?
(vi) Whether the result of the election has been materially affected by the illegalities and non- compliance with the provisions of Statute ? If so, what is the effect ?
(vii) To what relief, if any is the petitioner entitled ?
5. After framing of the above issues, it was agreed by the parties, that, they would lead the evidence by way of affidavits and respondent No. 4 filed his affidavits in evidence. But before the witnesses could be cross-examined, on the basis of their affidavits, respondent No. 4 moved an application for amendment of his written statement, by which he wanted to raise the above- mentioned preliminary objections, to the maintainability of the Election Petition in question. It seems, that respondent No. 4, was allowed to amend his written statement and consequently the above-mentioned two preliminary objections were brought on record. However, since the Election Tribunal - did not frame any preliminary issues, on the basis of the above two objections, the advocate for respondent No. 4, moved an application for making the said issues as Preliminary Issues, as according to him, the judgment on the said issues would be sufficient to dispose of the whole Election Petition. Learned Tribunal, with the consent of both the parties, decided to treat above--mentioned two objections as Preliminary issues alongwith issues Nos. 4 and 5. Since the parties, according to the learned Tribunal, did not wish to lead any evidence on these four issues, the petition was fixed for hearing of the said issues, on the basis of the documents on record.
6. That respondent No. 4, before the hearing of the above four preliminary issues, had filed a counter-affidavit, in which, he stated that Muhammad Imran Wasti had withdrawn and retired from the election and in support of his contention, he had produced the pamphlet of 1st September, 1979 issued by Muhammad Imran Wasti, showing that he was not contesting the election and had withdrawn and retired from the election.
Respondent No. 4 had also relied on Form (XI) produced by respondent No. 2, showing that Muhammad Imran Wasti had secured no votes at all, in order to establish, that he even did not cast his own vote in his favour, as he had withdrawn from the election.
7. The Election Tribunal after hearing the learned advocates of the parties, proceeded to decide the two preliminary objections at the outset viz. Namely :-----
(a) Whether the petition is not maintainable due to failure of petitioner to sign and verify the Election Petition and the schedules and annexures to that petition, and
(b) whether the petitioner has failed to implead Syed Imran Ahmed, the contesting candidate and as such the petition is not maintainable in view of Rule 66 (a) of the Sind Local Councils (Election)
Rules, 1979.
While dealing with the above two preliminary objections, the learned Election Tribunal observed, that the petition in question was signed and verified by the petitioner. The learned Tribunal further observed that alleged violation of sub-rule (3) of rule 67, was to be considered by Election Authority under rule 68 and since the Election Authority did not dismiss the Election Petition in question, on account of alleged violation of sub-rule (3) of rule 67 and had referred the petition for trial to the Tribunal, the Tribunal did not have jurisdiction to consider this alleged violation. However, the learned Tribunal observed that the petition was duly signed and verified by respondent No. 4 and apart from this, respondent No. 4 had filed a separate affidavit in support of his petition and as such there was no force in this contention of the petitioner, by relying on case Toor Gul v. Mumtaz Begum (PLD1972SC9).
8. The learned Election Tribunal, thereafter, took up the considera--tion of the preliminary objection in respect of non-joining of Syed Imran Ahmed as respondent in the said petition. The learned Tribunal, while discussing this preliminary objection, for the reasons given in its judgments came to the conclusion, that Syed Imran Ahmed had retired from the election and as such it was not necessary to join him as co-respondent and further observed that no prejudice has been caused to the petitioner on account of said non-joining of Syed Imran Ahmed as co-respondent. The learned Tribunal further observed, that this objection could have only been considered by the Election Authority, under rule 6zs and since the Election Authority did not dismiss the Election Petition on this ground which was patent and forwarded the said petition for trial to the Tribunal, it was not for Election Tribunal to dismiss the petition on this ground. The Election Tribunal, further before parting with this two preliminary objections, observed "whichever way the objection is looked at both from the legal plank or factual aspects, the decision must go against respondent No. 2 (petitioner) consequently, I hold that Election Petition cannot be dismissed on this ground as well."
9. The Election Tribunal, after having disposed of the above two preliminary objections as mentioned hereinabove proceeded to deal with issues Nos. 4 and 5 as preliminary, issues, on account of the alleged consent of the parties. While discussing issue No. 4, the learned Election Tribunal observed that the burden of proof in respect of this issue was on respondent No. 4 and since respondent No. 4 has led no evidence to prove the said issue, the learned Election Tribunal held, that the said issue was not proved by respondent No. 4.
Thereafter the learned Election Tribunal proceeded to decide issue No. 5 and in doing so observed, that the entire election record was made available to both the parties and the parties and their counsel inspected the same in the presence of the election authorities and inspection notes were prepared by the authority, on the basis of the submissions of both the parties and the said inspection notes were duly signed by the Election Authority and the learned counsel of the parties and the said notes are the part of the record of election petition. According to the learned Tribunal, the said inspection notes which are; admitted and authentic documents on record, give true picture of the notes secured by each party and can be used for deciding the issue. On the basis of these notes; the learned Election Tribunal came to the conclusion, that respondent No. 4 had secured in all 416 votes as against the petitioner, who had secured 404 votes, on the basis of the reasonings given in its judgment and consequently, the Election Tribunal allowed the election petition and set aside the official count of the Returning Officer and declared respondent No. 4 as the wining candidate by its judgment dated 5th April, 19150.
Being aggrieved by the above judgment dated 5th April, 1980 of the learned Election Tribunal, the petitioner above-named has filed this petition, on the grounds mentioned in the memo. Of the above petition.
The learned advocate for the petitioner on the basis of the above facts and the grounds mentioned in the above petition submitted before us as under :----
(a) That the petitioner was not presssing his Preliminary objection relating to non-verification of the election petition, schedules and annexures, before this Court ;
(b) That the decision of the Election Tribunal, that it had no jurisdiction to consider objection regarding non-compliance with Rule 66 (a) of the Sind Local Councils (Election) Rules, 1979, amounts to non-exercise of the jurisdiction vested in the Election Tribunal.
(c) That the observations of the learned Election Tribunal, that non---joining of Syed Imran Wasti as co-respondent has not prejudiced the petitioner's case is also unwarranted and has nothing to do with the, compliance of Rule 66 (a) of the Sind Local Councils (Election) Rules, 1979 which is mandatory and once such non-com--pliance is proved, the Election Tribunal ought to have dismissed the election petition on this ground alone.
(d) The decision of the Election Tribunal, to treat issues Nos. 4 and 5 as Preliminary Issues was against the principle of law and reflects the mala fides of respondent No. 2, in disposing of the election petition against the petitioner. In this connection the learned advocate for the Petitioner, relied upon case reported in Tahir Shah v. Kanda and others (PLD 1949 Lah. 10) and submitted, that the said issues could not been disposed of as Preliminary Issues, without recording evidence specially as the petitioner denies, that he gave any consent for trial of these issues as preliminary issues and/or without recording of evidence.
We have carefully considered the arguments advanced by both the learned counsel of the parties and have taken into consideration the provisions of Rules 66 and 68 of the Sind Local Councils (Election Rules, 1979 as well a s section 39 of the Sind Local Government Ordinance, 1979 as well as section 63 of the Representatives of Peoples Act, 1976. In our opinion the contentions of the learned advocate for the petitioner, that the petitioner could not have raised objection for non-compliance of Rule 66 before the Election Authority as he had no locus standi to appear before the said authority, has great force. In our opinion, the petitioner has a legal right to raise all the objections to the maintainability of the Election petition, including those relating to non-compliance of Rule 66 and once such objection is taken before the Election Tribunal, the Election Tribunal is competent to hear such objection and decide the same on merits. This power of the Election Tribunal in our opinion is inherent. However, in view of section 39(2) and (3) of the Sind Local Government Ordinance, 1979 the provisions and the procedure laid down in Representatives of Peoples, Act, 1976 as nearly as possible, has been made applicable to the Election Tribunal. According to section 63
(a) of the said Act, the Election Tribunal is empowered to dismiss the election petition in case of non-compliance with provisions of section 54 or 55 of the said Act, we would like to quote here the provision of section 54 of the said Act which reads as follows :---- "Section 54. Parties to the petition.-The petitioner shall join as respondents to election petition :----
(a) all contesting candidates ; and
(b) any other candidate against whom any allegation of any corrupt of illegal practice is made, and shall serve personally or by registered post on each respondent a copy of the petition."
The wording of the above section 54 is more or less the same gas of Rule 66 of the Sind Local Councils (Election) Rules, 1979 which reads as under :---- "Rule 60.-The Petitioner shall join as respondent to his election petition-
(a) all contesting candidates ; and
(b) any other candidates against whom any allegation of any corrupt or illegal practice is made, and shall serve personally or by registered post on each such respondent a copy ofhis petition."
The close study of section 39(2) and (3) of the Sind Local Government Ordinance, 1979 clearly shows, that the Legislature has made applicable the law and procedure laid down by Representatives of Peoples Act, 1976 to the Election Tribunal, to the election tribunals under the Sind Local Council (Election) Rules, 1979 and as such the Election Tribunal even on the basis of the above-mentioned provisions of the Representatives of Peoples Act, 1976 is fully competent to consider the objection raised under Rule 66 of the Sind Local Councils (Election) Rules, 1979 and dispose of such objection in accordance with Rule 68(1), which empowers the Election Authority to dismiss the election petition for non-compliance with Rule 66 of the Sind Local Councils,(Election)
Rules, 1979." It is clear from the judgment of the learned Tribunal, that on account of its conclusion, that it had no power to dismiss the election petition for non--compliance of Rule 66, the Election Tribunal has not seriously considered this objection of the petitioner, which required the said tribunal to consider and decide whether Rule 66 of the Sind Locale Councils (Election) Rules, 1979 is mandatory or directive only.
The second contention of the learned advocate for the petitioner that the observation of the learned Election Tribunal, that non-joining of Syed Imran Wasti as co-respondent, has not prejudiced the petitioner's case has nothing to do with compliance of Rule 66 (a) of the Sind Local Councils (Election) Rules, 1979, if the said rule is held to be mandatory, We find great force in this contention also and since the learned Election Tribunal has not considered the scope of Rule 66 (a) from this angle, these observations were uncalled for without deciding the scope of Rule 66 (a) in the first instance.
The third contention of the learned advocate for the petitioner that issues Nos. 4 and 5 could not have been treated as preliminary issues and further the said issues could not have been disposed of without recording evidence has also great force. In this connection the learned advocate for the petitioner has relied upon case of Tahir Shah v. Kanda and others which clearly supports the contentions of the learned advocate, as disposal of these preliminary issues would touch the merits of the case and would involve the direct decision of a question which is integral part of the merits of the case. Further the learned Tribunal in his own judgment has rejected issue No. 4 simply on the ground, that no evidence at all was led. Furthermore 'the learned advocate for the petitioner has urged before us, that Exh. R/V produced by respondent No. 4 with his counter-affidavit does not show that the petitioner before this Court had given his consent to the said application although the learned Tribunal in its order on the said application has mentioned to the consent of the advocate of the petitioner. Similarly, according to the learned advocate for the petitioner, decision on issue No. 5 also required some evidence to be recorded. In view of this, the learned advocate for the petitioner submitted, that the question of petitioner having consented to trial of issues Nos. 4 and 5 as preliminary issues is un-imaginable. The learned advocate for the petitioner further submitted, that issues Nos. 3 and 6 irrespective of the decision on issues Nos. 4 and 5 could have materially affected disposal of the election petition, but the said issues were not decided at all by the learned Election Tribunal. The learned advocate for the respondent on the other hand has urged before us, that the petitioner could not go back on the consent given by him through his advocate before the Election Tribunal for trying issues Nos. 4 and 5 as preliminary issues. In this connection the learned advocate for the respondent relied on the order of the learned Election Tribunal given on the application Annexure ''R/V" by the Election Tribunal.
We have carefully considered the above-mentioned submissions of both the learned counsel for the parties and are of the opinion that issue No. 4 could not have been disposed of without recording of evidence as even held by the Tribunal in its judgment. Further decision on these preliminary issues Nos. 4 and 5 would obviously affect the decision of the Tribunal on the other issues, which were before it and as such the said issues could not have been treated as preliminary issues in isolation of the other issues framed by it and as such the parties to lead evidence on all the issues and thereafter alone should have proceeded to decide all the issues including so-called preliminary issues Nos.4 and 5.
However, the learned Tribunal shall first dispose of preliminary objections on merits and thereafter if necessary shall proceed to decide all the issues including two so-called preliminary issues, after granting opportunity to both the sides to adduce evidence and after hearing both of them.