FAKHRUDDIN H. SH AIKH, J.-After hearing arguments of the learned counsel for the parties and the learned Additional Advocate-General on 6-4-1' 982, we had by a short order, for the reasons to be recorded later, dismissed this Constitution Petition. Following are the reasons for the said decision :-
2. Petitioner Shabbir Khan has by this Constitution Petition challenged the order dated 11-11-1981 of the Special Judge, Anti-Corruptioncum-Election Tribunal, Hyderabad, whereby the learned Tribunal had accepted the Election Petition of Respondent No, 1, Amir Bux and declared the election of Unit No, MCTA-5 of Municipal Committee, Tando Allahyar, as null and void and directed fresh elections to be held for this Unit.
3. The facts of the case which have led to the filing of the election petition and the present Constitutional Petition are briefly stated as under :- ' The local elections for Municipality, Tando Allahyar Unit No, 5 were originally held on 25-9-1979 in which inter alia the petitioner and Respondent No, I had taken part as contesting candidates.
During the course of the elections there were disturbances due to which the election was stopped on 25-9-1979 and a fresh date was fixed i.e, 6.10-1979 for the election. On the last mentioned date the election was held and the petitioner. Who was allotted the symbol of Elephant, had secured 326 votes, while Respondent No, 1 whose symbol was Horse, had secured 189 votes. Respondents Nos. 2 and 3 were also contesting candidates. But they had secured few votes which are not worth mentioning and they have contested this petition either due to the poor result relating to them in the election. Respondent No, 4 was the Returning Officer for this election while Respondent No, 6 is the Election Authority. After conclusion of the election the petitioner was declared successful candidate for the above constituency. On or about 18-12-1979 Respondent No, 1 Amir Bux filed election petition under rule 67 of the Sind Local Council (Election) Rules, 1979 (hereinafter referred to as 'the Rules'). This petition was first presented to the Election Authority according to the said Rule. The said Authority, after being satisfied about its maintainability forwarded it to the Election Tribunal namely, respondent No, 5 for disposal according to law.
4. In his election petition respondent No, 1 had raised several allegations regarding extensive bogus voting and illegal and corrupt practices having been perpetrated by the petitioner or his agents/representatives. The learned Election Tribunal entertained the election petition and issued notice to the petitioner, who figured as Respondent No, 1 in the Election Petition. The petitioner filed his written statement before the learned Tribunal and refuted the allegations. On the basis of the petition and the written statement filed by the contesting parties before the Tribunal, the latter framed following issues in the matter :-
(1) Whether the petition is maintainable according to law ?
(2) Whether on 6.10-1979 in second polls for the constituency male and female voters from other Mohallahs were brought in hired Suzuki vans by the Respondent No, 1 who cast bogus votes. If so to what effect ?
(3) Whether, the Presiding Officer refused to accept the objection raised to such bogus casting of votes and also refused to accept tender votes when real voters approached him. If so, to what effect ?
(4) Whether votes were also cast for persons who were either dead for instance at S. No, 1232, 1248, 1261, 1262, 1267, 1268, 1283 and 1343 or abroad but challenges were not accepted by the Presiding Officer. If so what is its effect ?
(5) Whether Malik Ihsan an active Member of a political party and sympathiser of respondent No, 1 namely Shabbir Khan brought imposters as well and canvassed to them that petitioner was a Socialist/Kafir and be defeated by even casting bogus votes against him being the same not a sin but service to Islam. If so to what effect ?
(6) Whether the respondent No, 1 viz. Shabbir Khan solicited votes posing himself to be nominee of P.P.P. By canvassing and showing to the voters and distributing amongst them photostat copies of minutes of the proceedings of P.P.P. Meeting in which he was nominated as General Secretary. If so what is its effect ?
(7) Whether the Presiding Officer allowed unauthorised persons working for respondent No, 1 namely, Shabbir Khan to enter in ladies booth while neither the agents of the Petitioner were allowed to go outside the booths and contact the Petitioner to apprise him the position of inside and seek instruction nor the Petitioner was allowed to enter the booth for instruction or giving money to his agents for challenging the votes. If so what is its effect ?
(8) Whether the disorder, illegalities and high-handedness committed by Respondent No, 1 Shabbir Khan were placed before the Returning Officer with final application by the Petitioner by cotting the polls but no action was taken promptly by the Returning Officer. If so what is its effect ?
(9) Whether after bycott by the petitioner respondent No, 1 in complicity with the Presiding Officer stamped the ballot papers in his favour, If so what is its effect ?
(10) Whether preliminary count was conducted in absence of petitioner or his agent or at the time of consideration of results the petitioner was given no notice. If so what is its effect ?
(11) Whether the printed ballot papers were in contravention of rules. If so what is its effect ?
(12) What should the order be ?
' In support of the above issues respondent Amir Bux filed affidavits of several witnesses including himself. The witnesses whose affidavits were filed by respondent Amir Bux in support of the above issues were; Haji Muhammad Bux, Hakeem Muhammad Siddiq, All Haider, Loung, Noor Muhammad, Taj Malook and All Muhammad. In rebuttal the petitioner Shabbir Khan filed only his own affidavit and also submitted himself for cross-examination. He had filed affidavits of two other persons also namely, Ihsanul Haq and Noor Muhammad but refused to produce them for cross-examination on the plea that he wanted to give up or waive the evidence of these witnesses. In view of this statement of the petitioner the affidavits of Ihsanul Haq and Noor Muhammad were not considered by the learned Tribunal.
5. On the basis of the evidence filed by the parties in the form of affidavits, the learned Tribunal decided Issues Nos. 1, 2, 3, 4, 7, 8, 9, 10 and 11 in favour of Respondent No, 1 and consequently declared the election as a whole to be void and directed fresh elections for the constituency. So far as Issues Nos. 5 and 6 are concerned, the learned Tribunal held that by virtue of section 37-A of the Sind Local Government Ordinance, 1979, he was not competent to decide the same. The allegations contained in these issues could be agitated only before the authority specified under section 37-A or a delegatee of that authority.
6. Learned counsel for the petitioner has challenged the order of the learned Tribunal on the following grounds : -
(i) That the question of maintainability of the petition could not have been decided by the learned Election Tribunal for the reasons that under rule 68 (1) this question fell exclusively within the jurisdiction of Election Authority.
(ii) That the evidence on record does not disclose that illegal or corrupt practices as contemplated by the Rules and the law were committed; and
(iii) Lastly that the record does not show that even if the allegations of illegal and corrupt practices said to have been committed during the election are taken for granted, the same would have materially affected the result of the election.
7. So far as the first objection is concerned, the learned counsel had relied on rule 68 (1) of the Rules and argued that it was the duty of the Election Authority to have scrutinised the election petition and got satisfied that the petition fulfilled all the requirements as laid down by rules 65, 66 and 67 of the Rules. He has particularly referred to rule 67 and urged that the requirement as contemplated by this Rule has not been complied with and as such the Election Authority should have dismissed the petition under rule 68 (1) and should not have referred it to the Tribunal at all.
Rule 67 of the Rules may be quoted here which runs as under :- "67.-(l) Every election petition shall contain-
(a) a precise statement of the material facts on which the petitioner relies ;
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and plat of the commission of such practice or act; and
(c) the relief claimed by the petitioner.
(2) A petitioner may claim as relief any of the following declarations namely :-
(a) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected ; or
(b) that the election as a whole is void.
(3) Every election petition and every schedule or annexes to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings."
' It is argued that the petition does not contain precise statement of material facts and the particulars of corrupt or illegal practice or other illegal act etc., and that this mandatory requirement having not been fulfilled, the Election Authority should not have referred the matter to the Tribunal but should have exercised its power under rule 68 (1) by dismissing the petition himself. It is further urged that even if the petition was referred to the Tribunal, and an issue was framed regarding maintainability of the petition by the Tribunal, then the Tribunal was not competent to decide this issue which fell exclusively within the purview of the Election Authority. In support of this contention he has relied on an unreported judgment of the Supreme Court in C.P.S.L.A. No, K-48 of 1981 in the case of Choudhary Abdul Majeed v. Muhammad Han if and others, decided on 11-4-1981. In this case the order of the Election Tribunal was challenged inter alia on the ground that the election petition was not maintainable. The Election Tribunal had, however, decided the question in favour of maintainability. While dealing with this question the Supreme Court in the above case observed as under :- "He, therefore, contends that it was not open to the Election Tribunal to go into the question of maintainability of the petition as that objection had to be considered and decided by the Election Authority; and if the Election Authority did not dismiss the petition for this reason, the Election Tribunal had no jurisdiction to review that decision. A bare reading of this Rule leads us to conclude that this submission has substance. It was for the Election Authority to consider whether the election petition was or was not properly constituted in accordance with rule 66 but once it held that it was so properly constituted then in terms of sub-rule (2) it was obligatory to refer it for trial to the Election Tribunal."
' In view of the above observations of the Supreme Court it is urged that the Tribunal has wrongly assumed jurisdiction in deciding issue No, 1 and as such the case should be remanded to the Election Authority for deciding the question of maintainability. The learned counsel has gone to the extent of arguing that even this Court cannot go into the question of the maintainability of the election petition and has no alternative except to remand the case to the Election Authority to decide this question under rule 68 of the Rules.
8. There can be no cavil with the Rule laid down by the Supreme Court in the above quoted case.
The question, however, is whether any case in which a plea of non-maintainability of election petition is taken should invariably be remanded to the Election Authority for decision even if the plea might be frivolous or without any substance. So far as the Election Tribunal is concerned, there can be no doubt about hi limitation in respect of taking cognizance of question of maintainability of an election petition. But if even this Court is asked to remand the case to the Election Authority simply because such a plea has been taken white falls within the exclusive jurisdiction of the Election Authority, then is would be very easy to get every Constitution Petition disposed of by short order namely, that the case should be remanded to the Election Authority because the question of maintainability of election petition involved, which question can be decided only by the said Authority. The objection of the learned counsel for the petitioner is misconceived.
9. The learned counsel for the petitioner has argued before this Court as to how the petition is non- maintainable by referring to the provisions of rules 65, 66 and 67. The purpose of referring to those rules was to underline the circumstances which would render the petition as non-maintainable. If this Court had no jurisdiction to decide the question of maintainability of the election petition before the Election Tribunal, then reference to the relevant rules, as done by the learned counsel, was not at all necessary. He would have simply argued that as a plea has been raised regarding non-maintainability of the election petition, hence this Court, without going into further questions, stay its hands and remand the case to the Election Authority to decide this question. We are unable to accept this submission. Even in the Supreme Court case relied upon by the learned counsel, the course suggested by the learned counsel was not approved and the case was not remanded to the Election Authority in spite of the fact that the issue of non-maintainability of the election petition was involved. On the contrary, it appears from the judgment of the Supreme Court that since the Election Authority had taken a decision to refer the case to the Tribunal under rule 67 (2), it must be presumed that the Election Authority was satisfied that the petition was maintainable. It was for this reason that the judgment of the High Court was set aside to the extent to which it related to the question of non-maintainability of the election petition. The order of remand of the High Court was maintained by the Supreme Court only to the extent to which it related to the issues other than that of maintainability of the election petition.
10. A perusal of the election petition would show that all the requirements of rules 65, 66 and 67 have been complied with by respondent No,
1. The question of maintainability is to be decided on the basis of the averments made in the election petition alone. It was rightly pointed our by Mr. M. N.
A. Farooqui, learned counsel for the petitioner that rule 6 of the Rules is analogous to Order VII, rule 11, C. P. C., which envisages rejection of a plaint on certain grounds. As the power under Order VII, rule 11, C. P. C. Is exercised by the Civil Court simply by persual of the plaint alone, hence in the case of an election petition the question of maintainability should also be presumed to have been decided simply by perusal of the election petition. In the present case the. Election Authority had entertained the election petition and did not dismiss it under rule 68 (1). The presumption is that the authority was satisfied that all the legal requirements were fulfilled, that is why it was transmitted to the Election Tribunal under rule 68 (2). We, therefore, hold that there is no substance in the argument that the petition is non-maintainable or that the election petition should be remanded to the Election Authority for deciding the question of maintainability after hearing both the parties. Much emphasis has been laid by the learned counsel for the petitioner that he was entitled to be heard by the Election Authority before it took a decision under rule 68 (1) or (2). This argument at the face of it is fallacious for the simple reason that he himself has drawn an analogy between the provisions of rule 68 of the Rules and Order VII, rule II, C. P. C. It is nowhere provided in the C.P.C. That the Court should hear the defendant before entertaining a suit or before considering the question of rejecting or not rejecting the plaint under Order VII, rule 11, C. P. C. Even from. The Supreme Court case relied upon by the learned counsel it does not transpire that the opposite party against whom an election petition is sought to be filed, is entitled to be heard by the Election Authority before it takes a decision regarding referring it to Election Tribunal for disposal,
11. The next contention of the learned counsel for the petitioner is that there was no evidence on record to enable the learned Tribunal to reach the conclusion to which he did and to invalidate the entire election. According to him the allegations upon which an election can be set aside have not been satisfactorily proved by respondent No, 1.
12. It may be stated that according to the election petition of respondent Amir Bux, one Malik Ehsanul Hag, an active member of Jamaat-eIslami had been convassing for the petitioner and had been branding Amir Bux as a "Kafir" and asking the people not to vote for him because it would be a sin to vote for a "Kafir". Other allegations in the petition are on large scale bogus voting was carried on ; that imposters were brought to vote by falsely personating for persons, who were dead or were out of the country ; that unauthorised persons were allowed to work for the petitioner and to convass within the polling station in contravention of the Rules and that even the Presiding Officer in complicity with the petitioner started stamping ballot papers in favour of the petitioner. It is further alleged that due to this conduct of the Presiding Officer, respondent No, 1 had boycotted the election at 2-00 p.m.
13. It may be stated that the grounds on which an election will be set aside by a Tribunal are mentioned in rule 67 (b) of the Rules which lays down corrupt and illegal practice or illegal act committed during the polling as some of the grounds for invalidating the election. The terms `illegal practice', 'corrupt practice' or 'illegal act' have not been defined by the Rules. In this connection reference may be made to section 39 of the Sind Local Govt. Ordinance, 1979, which provides that election offences and illegal and corrupt practies and penalty therefor shall, for the purpose of this Ordinance and the Rules be the same as specified in the law referred to in subsection (2) and be dealt with in accordance with that law. The law referred to in subsection (2) of section 39 is the one relating to the elections of the Provincial Assembly viz. The Representation of the People's Act, 1976 (hereinafter referred to as the 'act of 1976). Hence in order to appreciate the implication of the terms 'corrupt practices' etc., reference shall have to be made to the Act of 1976. Section 70 of the Act of 1976 provides that the Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reasons of --
(a) the failure of any person to comply with the provisions of this Act or the Rules ; or
(b) the prevalence of extensive corrupt or illegal practice at the election.
' Section 78 of the Act of 1976 defines 'corrupt practice'. It is reproduced hereunder for a proper appreciation of the term :- "78. Corrupt practice -A person is guilty of corrupt practice if he-,
(1) contravenes the provisions of section 49.
(2) is guilty of bribery, personation or undue influence ;
(3) makes or publishes a false statement.
(a) concerning the personal character of a cand idate or any of his relation calculated to adversely affect the election of such candidate or for the purpose of promoting or procuring the election of another candidate, unless he proves that he had reasonable grounds for believing, and did believe, the statement to be true ;
(b) relating to the symbol of a candidate whether or not such symbol has been allocated to such candidate ; or
(c) regarding the withdrawal of a candidate ;
(4) Calls upon or persuades any person to vote, or to refrain from voting, for any candidate on the ground that he belongs to a particular religion, province, community, race, caste, bradri, sect or tribe ;
(5) knowingly, in order to support or oppose a candidate. Lets, lends. Employs, hires, borrows or uses any vehicle or vessel for the purposes of conveying to or from the polling station any elector except himself and members of his immediate family ; or
(6) Causes or attempts to cause any person present and waiting to vote at the polling station to depart without voting."
' The term 'corrupt practice' has been defined in section 78 and illegal practice' in section 83 of the Act of 1976. It will be advantageous to reproduce section 83 as well for a better appreciation of the term 'illegal practice' which runs as under :- "83. Illegal practice.- (1) A person is guilty of illegal practice if he-
(a) fails to comply with the provisions of section 50 ;
(b) obtains or procures or attempts to obtain or procure, the assistance of any person in the service of Pakistan to further or hinder the election of a candidate ;
(c) votes or applies for a ballot-paper for voting at an election knowing that be is not qualified for, or is disqualified from, voting ;
(d) votes or applies for a ballot paper for voting more than once in the same polling station ;
(e) votes or applies for a ballot paper for voting in more than one polling station for the same election ;
(f) removes a ballot-paper from a polling station during the poll ; or
(g) knowingly induces or procures any person to do any of the aforesaid acts.
(2) Any person guilty of illegal practice shall be punishable with fine which may extend to two thousand rupees."
' The various acts constituting corrupt and illegal practices are reflected in Issues Nos. 2, 3, 4 and 8 to 11, framed by the learned Tribunal to which reference has been made already. In support of these issues there are affidavits of Respondent Amir Bux and his witnesses namely, Hakeem Muhammad Siddique, All Haider, Loung, Noor Muhammad. Taj All Muhammad and Haji Muha mmad Bux. The substance of the evidence of the above witnesses is that- (a)large scale bogus voting was carried on ; (b)Malik Ehsanul Haque was openly branding respondent No, 1 as `Kafir' and preventing the voters from voting in favour of Respondent No, 1 ;
(c) certain persons personated and voted for those who were either dead or were out of country ; (d)convassing was allowed by the Presiding Officer within the polling station in contravention of the Rules ;
(e) Respondent No, 1 and his agents were not allowed to exercise their right of challenging the votes freely, and ( f ) the Presiding Officer was openly favouring the petitioner.
14. In rebuttal there is affidavit of the petitioner Shabbir Khan alone, who has denied the above allegations. The most important witness. Who could have rebutted the allegations of Respondent No, 1, was Malik Ehsanul Haque against whom several allegations were made by Respondent No, 1.
Although the petitioner had filed the affidavit of this witness in his evidence, but he refused to produce him for cross-examination and also gave a statement giving up this witness, hence his evidence should be deemed to have been expunged from the record. The other witnesses whose affidavits were filed by the petitioner to rebut the allegations levelled against him in the election petition were Noor Muhammad and Mateen Ahmed. Even these witnesses were not produced for cross-examination and were given up, hence on the record there is the bare word of the petitioner in rebuttal of the evidence of as many as seven witnesses produced by Respondent No,
1. In these circumstances it cannot be said that the learned Tribunal was wrong in reaching the conclusion which he D did on the basis of evidence on record. We are unable to held that the finding of the learned Tribunal on the various issues referred to above, in view of the evidence of record, was perverse or was based on misreading of evidence. In writ jurisdiction this Court is only required to see whether there were reasonable grounds for the Election Tribunal to arrive at the finding of fact on the basis of the material before him.
15. Mr. N. A. Farooqui, learned counsel for the petitioner has in support of his submission relied on the decision of the Division Bench of this Court in the case of Mirza Muqueem Beg v. Election.
Authority, Hyderabad and 15 others (1). The learned Judges of the Division Bench had set aside the order of the Election Tribunal with the following observations :- "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
(1) 1972 SCMR 395 ' 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 on the record."
' In taking the above view the learned Judges had relied on two decisions of the Supreme Court i.e, in the case of Commissioner v. Sher Muhammad (1) and 'Chief Land Commissioner v. Nazar Hussain (1). In the first case (Commissioner v. Sher Muhammad) it was held by the Supreme Court that : "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."
' In the other case of Chief Land Commissioner v. Nazar Hussain following observations of the Supreme Court were referred to "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."'
' .As already held by us the above decisions are not applicable to the present case because we have held that this is not a case of no evidence or
(1) 1975 SCMR 352 ' misreading of evidence or of taking into consideration inadmissible evidence.
16. On the other hand Mr. Abdul Qadir Halepota learned counsel for Respondent No, 1 has referred to several cases which relate to the powers of the High Court in relation to the discretion to be exercised in writ jurisdiction. The cases are: Badrul Haq Khan v. Election Tribunal (1), Hari Vishnu Kamath v. Ahmad Ishaque (2), Jamal Shah v. Second Election Tribunal West Pakistan (3) and Ghulam Nabi v. Muhammad Afzal Khan (4) In the case of Badrul Haq Khan ,v. Election Tribunal, Dacca the implication of Article-98 of the Constitution of 1962 was under consideration. The above article related to the writ jurisdiction of the High Court and corresponded to Article 199 of the Constitution of 1973. The learned Judges of the Supreme Court defined the scope of Article 98 in the foilowing words :- "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 inadmissible evidence does not make the ultimate order without lawful authority unless it appears that the 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."
' In the case of Hari Vishnu Kamath v. Ahmad Ishaque, the Supreme Court of India held that : "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."
' In the case of Jamal Shah v. Second Election Tribunal West Pakistan, it was observed by the Supreme Court that: "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."
' In the case of Ghulam Nabi v. Muhammad Afzal Khan it was held by the
(1) PLD 1963 SC 764 .(2) PLD 1956 SC I
(3) 1968 SCM R 1144 (4) 1970 SCM R 68 ' Supreme Court, while considering the scope of powers of the High Court to interfere with the findings of facts of Tribunal, that- "merely . Because another view of the evidence is possible, would furnish no ground for interference in writ jurisdiction."
In our view the rules laid down in the above cases are directly applicable to the facts of the present case.
17. The last contention raised by the learned counsel for the petitionet is that even if the allegations levelled by respondent No, 1 in his election petition are taken to be true, it cannot be said that the result of the election had been materially affected thereby because the petitioner had secured almost double the number of votes polled by respondent No,
1. We are unable to agree with the learned counsel that even if the allegations made by the petitioner before the Election Tribunal were correct, the result of the election would not have been materially affected. It may be emphasized that Respondent Amir Bux has challenged the election as a whole and not the election of petitioner alone, It is also on record that Respondent No, 1 had boycotted the election at about 2.00 p. m. Due to the alleged attitude of the Presiding Officer. It is is also admitted that the first Presiding Officer was got changed and another man appointed at the instance of the petitioner. If it is true that bogus voting had taken place on a large scale and several persons from other localities were brought who personated for the persons who were dead or who were out of country and voted for them, then it is inconceiveable that the result to the election would not have been materially affected.
18. The learned Election Tribunal has come to a categorical finding on Issues Nos. 2, 3, 4 that the result of the election has been materially affected as a result of the alleged illegal and corrupt practices.
' In view of the above state of evidence and the legal position, we do not feel inclined to exercise our discretionary powers by interfering with the findings of facts of the learned Election Tribunal.
The petition consequently fails and is dismissed with no order as to costs.