ANWAAUL HAQ, J.-By means of this petition under Article 98 of the Constitution the petitioner Ch. Ghulam Rasul Tarar seeks to challenge the correctness and legality of an order made by the Election Tribunal on the 28th of March 1969, holding that the recriminatory petition filed by the petitioner under section 70 of the National and Provincial Assemblies (Election) Act, 1964, cannot proceed in view of the promul--gation of Martial Law on the 25th of March 1969, and the consequent dissolution of the National and the Provincial Assemblies in Pakistan. By the same order the Tribunal has further held that the election petition filed by the respondents Ch. Zahur Elahi and others to challenge the election of the petitioner to the National Assembly from a constituency in the Gujrat District could proceed even in the changed circumstances. The proceedings in the election petition had been going on for a long time and it was only on the 15th of March 196', that an order was made by the Election Tribunal for the recording of evidence in the recriminatory petition filed by the petitioner.
It is stated that he had cited 381 witnesses in this behalf out of whom 186 had been examined when the new situation arose.
2. It is contended by the learned counsel for the petitioner that irrespective of the new circumstances created by the pro--mulgation of Martial Law on the 25th of March 1969, and the consequent dissolution of the National Assembly, it was incumbent upon the Election Tribunal to continue proceedings in the recriminatory petition filed by the petitioner as in the election, petition the respondent Ch. Zahur Elahi had claimed the seat for himself, and that claim had not been withdrawn so fir. It is submitted that even if the claim had been specifically withdrawn, the recriminatory petition could have been continued for the reason that the respondent might offer himself as a candidate in the next election which may be held after the lifting of Martial Law. It appears to the learned counsel to be highly inequitable that whereas the respondent Ch. Zahur Elahi is in a position to press for the disqualification of the present petitioner. Yet the latter has been deprived of his right to do the same against Ch. Zahur Elahi by the refusal of the Election Tribunal to proceed with his recriminatory petition. It is contended that in any case the Election Tribunal should have passed a logical order, namely, of dismissing both the petitions, and should not have continued with the election petition instituted by the respondents.
3. We shall first take up that part of the order of the Election Tribunal which has the effect of dismissing the recrimi--natory petition filed by Ch. Ghulam Rasool Tarar. Section 70 of the National and Provincial Assemblies (Election) Act, 1964, lays down that "where in an election petition a declaration is claimed that a candidate other than the returned candidate has been duly elected, the returned candidate or any other party may produce evidence to prove that the election of such other candidate would have been declared void had he been the returned candidate and had a petition been presented calling his election in question'". It will be seen that this section is intended to provide a weapon in the hand of the returned candidate to prevent the defeated candidate from being declared elected in his place, by showing that the election of the defeated candidate would have been void by reason of certain illegalities or corrupt practices. Such a weapon is obviously intended by the Legislature to be used when the defeated candidate has claimed the seat in question, but if he were not to make any such claim in the election petition then no right would accrue to the returned candidate to file a recriminatory petition. Now, in the present case, it is true that the respondent Ch. Zahur Elahi had indeed claimed the seat for himself by having the election of the returned candidate declared void, yet in the situation which has now arisen since the proclamation of the 25th of March 1969, no question arises of allowing this relief to the respondent, as the National Assembly stands dissolved. In these circumstances, it would be merely a theoretical exercise to continue with the examination of the witnesses sought to be produced by the present petitioner to prove certain dis--qualifications on the part of respondent Ch. Zahur Elahi.
The contention that the petitioner has been placed in a disadvan--tageous position as compared to the respondent loses much of its force when it is remembered that the same would have been the case if the respondent had not claimed the seat for himself. It is conceded by the learned counsel for the petitioner that in that event the Act did not allow any chance to the petitioner to file a recriminatory petition. Precisely, the same situation has now arisen because of an external event supervening in the situation.
4. The learned counsel has drawn our attention to two English cases referred to at page 523 of Law and Practice of Elections and Election Petitions by bandit Nanak Chand and others (1937) Edn. The relevant observations are: "The question whether recriminatory evidence can be given after petitioner has abandoned his claim to the seat is one which is not free from doubt. The two English cases or, the subject apparently are in conflict. According to Aldridge v. Hurst ((1876) 1 C P D 410), if the petitioner abandons his claim to the seat, recriminatory evidence can nevertheless be given.
The reason for this, apparently, is that recriminatory charges are permitted in the interests of electors in order to prevent a successful petitioner obtaining the vacated seat for himself, if he has violated any of the provisions of the election law. In Joliet's case ((1888) 15 SCR 458), the petitioner was allowed to withdraw his claim for the seat and the Judge refused to pro--ceed upon the recriminatory charges."
5. The learned Authors of the book have then proceeded to observe that "if the petitioner abandons his claim, it is obvious, that he cannot be declared to have been duly elected and therefore, recrimination is rendered redundant and unneces--sary and no recriminatory evidence ought to be permitted. There is, however, another aspect of the case which must not be lost sight of i.e., is it open to the petitioner, at any time, when he finds the case against him to be black to abandon his claim to the seat and thus shut out recriminatory evidence against himself? The correct rule, it is submitted is this, that if the petitioner abandons his claim to the seat with the consent of the respondent then no recrimination ought to be allowed but if the petitioner at a late stage surreptitiously abandons his claim, the respondent ought to be allowed to recriminate in order to show that the petitioner has been guilty of corrupt practices and has incurred the necessary disqualification."
6. After hearing the learned counsel for the petitioner and perusing the above observations, we are of the opinion that the view adopted in Joliet's case appears to represent the correct rule which should be applied in matters of this kind. They avowed object of a recriminatory petition is obviously to deny) to the defeated candidate the seat which the returned candidate may be called upon to vacate as a result of the success of the election petition. If, therefore, the defeated candidate does not make any claim to the seat in question, or abandons the claim at a stage when it could not he said that he had no other alternative, or if a situation arises like the one which did arise under the Proclamation of the 25th of March 1969, then it is clear that no useful purpose whatsoever could be served by continuing with the recriminatory petition. The Tribunal, there--fore, was obviously right in holding that in view of the dissolution of the National Assembly of Pakistan, the relief of being declared elected to the seat in question was no longer open to the respondent Ch. Zahur Elahi, and such being the case, the very basis on which a recriminatory petition could be founded under section 70 of the Act had disappeared.
7. As regards the election petition filed by the respondent Ch. Zahur Elahi again t the present petitioner, we are of the view that tile Election Tribunal has rightly held that as the Act under which those proceedings are being taken has been saved, the petition can and should continue. The objection of the petition is more fundamental than the one underlying section 70 and therefore, there is no justification for discontinuing the proceedings which are nearing completion. We do not see any inequity involved in such a procedure, as the election petition could have been continued in any case without the recrimi--natory petition if the respondent had not made a claim to the seat in question and had merely confined his prayer to having the election of the returned candidate declared void.
8. For the foregoing reasons, the petition fails and is hereby dismissed in limine.