' MUFTAKHIRUDDIN, J.-This petition has been filed with a view to having the order of the election tribunal made ineffective. The petitioner had contested the elections to a ward named Sur Lakai in the Union Council Ahmad Darga Shirani Sub-Division of District Zhob and was declared elected as he had polled 51 votes as against 50 obtained by his opponent Malik Sher Jan the respondent No, 1 in this petition. The opponent Sher Jan filed an election petition which was heard by the learned District Judge, Quetta who had been appointed as Election Tribunal to hear the petition.
2. The election petition was filed on the grounds-
(a) that the polling was stopped 10 minutes earlier ;
(b) that respondent No, 1 was not allowed to cast his vote ;
(c) that two ladies (one a wife of a cousin of the respondent No, 1 and another his daughter) could not cast their votes due to the disturbance created by the petitioner and his supporters.
' It was alleged in the petition that these two ladies and the respondent No, 1 Malik Sher Jan were present in the premises of the polling station and had these three persons been allowed to cast their votes the result would have been different. The present petitioner in his written reply to the election petition had taken an objection that the petition suffered from non joinder of the Presiding Officer and the Returning Officer who according to him were the necessary parties because the allegations of the stoppage of election before the time fixed and not allowing the voters were made in the petition. The respondent No, 1 re-affirmed his objections and maintained that the allegations would be substantiated through the statements of Jaffar Khan, the Returning Officer and Azmatullak Presiding Officer. The list of witnesses which included their names was submitted.
The learned District Judge, however, framed the following issues :-
(1) Whether the respondent showed criminal force and threats to Presiding Officer to stop polling before scheduled time ?
(2) Whether the petitioner and his two ladies were present in Polling Station alongwith others, prior to closing of polling as provided in rule 39 and were not allowed to cast their votes ?
3. In support of the case set up by the respondent No, 1 he examined Jaffar Khan, the Returning Officer, Azmatullah Assistant Polling Officer and Muhammad Ismail, the Polling Officer and two other persons namely All Jan son of Mashak a son of the uncle of respondent Malik Sher Jan and Sharaf Din son of Parangai his Election agent. In rebuttal the petitioner alone had appeared as his own witness. The learned District Judge/Election Tribunal Quetta Division in his lengthy judgment only narrated the facts of the case, the evidence tendered by the parties and the arguments advanced 'before him by counsels of parties but did not discuss the same and in the last portion of the judgment hag expressed himself in these words "Considering the entire evidence brought on the record of this case and the facts admitted by the Presiding Officer and one of the Polling Officer, it is established that there was disturbance at the Polling Station and it was stopped before the schedule time. The petitioner and two lady voters were not allowed to cast their votes although they were present at the Polling Station. Hence I decide issues Nos. 1 and 2 in affirmative. Under rule 70 of Baluchistan Local Government (Election)
Rules, 1983, I find that the respondent is responsible for corrupt and illegal practice as the disturbance was caused by him and his supporters and on this ground the election was stopped before schedule time. The voters who were present in the Polling Station were not allowed to cast their votes. The election is declared as void with immediate effect.
' As there was a margin of one vote only between the two candidates, a fresh election be held. The petitioner is allowed with the cost of the petition.
' A copy of the order be sent to the Election Authorities for further necessary action."
4. Having no remedy by any other means, the petitioner Amir Khan has presented this petition and has praye, that "the impugned order of the learned Election tribunal may be declared to have been made without lawful authority and be consequently set aside, and also the Election Petition filed by the respondent No, 1 be dismissed".
5. Mr. Basharatullah, Advocate, the learned counsel for the petitioner has urged the following grounds before us
(a) that the finding of the election tribunal is apparently based on misreading and non-reading of the evidence;
(b) that since there was no evidence on record that the successful candidate (the petitioner) was in any way responsible for any disturbance and no corrupt and illegal practice having been found to have been committed the result of the election could not be declared void and re-election ordered.
(c) that the judgment of the election Tribunal is not a reasoned judgment and has completely ignored the arguments advanced on behalf of the present petitioner before him and has assigned no reason to repel the contentions raised on behalf of the present petitioner.
6. The respondent No, I has taken the stand before us that the petition involves disputed question of fact, therefore, the same cannot be allowed to be challenged by way of Constitutional Petition and it has been asserted that the malpractices were committed with the connivance and at the instance of the petitioner, and the finding thus recorded by the Election Tribunal cannot be interfered with.
7. Before we consider the submissions made by the learned counsel appearing for the petitioner it is necessary to dispose of the preliminary objection raised by the counsel for the respondent No, 1.
If the Tribunal has to determine between the rival entitlement or varying contentions on facts in support of entitlement, surely it has to act in accordance with the norms fixed for conduct of judicial tribunals and the High Court has to be satisfied that reasonably correct conclusion has been recorded and decision does not suffer from perversity. We are conscious of the slowness of the High Courts to interfere on question of facts but we are equally clear in our minds that it is by now well-settled by a series of the judicial pronouncements of the superio Courts that the superior Courts can examine the defects which are patent on the face of the record and there, have been instances where the High Court had travelled in the realm of facts in the exercise of its constitutional jurisdiction. The High Courts have interfered when finding is based on insufficient evidence, erroneous assumption of facts, patent error of law and unreasonable view on evidence has been taken. It cannot be said that every finding of the Tribunal is beyond the scope of interference of the High Court, because if it were so the entire concept of judicial control over quasi-judicial tribunals will undergo such a radical change as to destroy the very structure of writ jurisdiction. In Saleh Muhammad v. Muhammad Roz (1) a Division Bench of the Lahore High Court has held that occasion for exercise of writ jurisdiction with a view to setting aside finding on question of fact can arise only on very limited grounds. The circumstances in which a finding of fact given by a tribunal of exclusive jurisdiction in a matter may be rendered ineffective by the High Courts in the exercise of its writ jurisdiction would be either that the finding has been given on the basis of no evidence at all, or that the evidence have been completely misread, that the finding cannot be based on evidence. In N. M. Khan v. Chief Settlement an Rehabilitation Commissioner (2) it has been held that ordinarily a Court called upon to issue a writ has to accept as correct the finding of fact given by a tribunal of exclusive jurisdiction. This, however, does not mean that the findings of fact given by a tribunal of exclusive jurisoiction are sacrosanct under all circumstances.
If a tribunal of exclusive jurisdiction bad, when arriving at a finding of fact, misread the evidence or had considered evidence which could not have been considered at all, or had failed to consider evidence which it was bound to consider or should have considered, the finding of the Tribunal of exclusive jurisdiction ,cannot claim immunity from examination of Court which possesses power to issue a writ against orders of Tribunal of exclusive jurisdiction. In Habibullah Khan v. Election Tribunal (3) it has been held that if the Tribunal of exclusive jurisdiction has given a finding of fact on the assumption that a piece of evidence which could not have been kept out of consideration or has misread any material part of the evidence, the order of the Tribunal of exclusive jurisdiction will stand on no better footing than an order without jurisdiction and occasion for issue of a writ would arise. In Abdul Hakim v. Muhammad Anwar Khan (4) it has been laid down that normally, in exercise of jurisdiction conferred by Article 98 of the Constitution, the High Court does not go into disputed question of fact, but if on a certain point the finding on a question of fact arrived at by a Tribunal of exclusive jutisdiction is erroneous or is contrary to the record, there is nothing to prevent this Court from going into that question and deciding it afresh on the material paced before it. In Muhammad All v. Muhammad Bashir (5) it has been held {{FOOT NOTE}}
(1) PLD 1962 Lab. 68 (2) PLD 1962 Lab. 468
(3) PLD 1962 Lah. 797 (4) PLD 1963 Lab. 63
(5) PLD 1962 Lah. 230 {{FOOT NOTE}} ' by a Division Bench of Lahore High Court that the fact that the High Court does not go into disputed question of fact in writ proceedings does not mean that the High Court would refuse to exercise its writ jurisdiction simply for the reason that the respondent contests the facts stated by the petitioners. The High Court may go into such facts and determine the matter.
' Mr. Justice Abdul Kadir Shaikh (as he then was) has thoroughly thrashed out this point in Behram Kharsandyon v. Collector of Customs (I) and has observed :- . "The findings of a Special Tribunal, created by law, to determine question of fact cannot be interfered within the exercise of this extraordinary jurisdiction but where a fribunal or Authority travels beyond and in excess of its jurisdiction or powers or commits an error apparent on the face of the record, or acts on considerations totally irrelevant and outside the scope of law on which the causes before it are to be determined, the Superior Courts have the adequate power of supervision and correction under Article 98 of the Constitution. In such cases the High Court acts not as an Appellate Authority but in a supervisory capacity, in order to control the Tribunals and watch that they act within the scope of their authority or jurisdiction and to see that law is not disobeyed, outraged or violated by the creatures set up by the law itself."
' This very Bench of this High Court has expressed the same views in Lubna Hafeez v. Selection Conunittee (2). The objection of the counsel for the respondent No, 1 is, therefore, repelled.
8. Keeping in view the above principles we proceed to examine the case of the respondent No, 1 as set up by him in the election petition. It was being asserted that the present petitioner was responsible for the stoppage of election 10 minutes earlier and it was the petitioner who was responsible for the non-exercise of votes by the ladies and the respondent No, I himself could not cast the vote due to the Goonda Gardi of the petitioner and his supporters. The burden of proof for the allegation contained in the petition was on the petitioner (now respondent No, I before us). He decided to produce the Presiding Officer, Assistant Presiding Officer and the Polling Officer at Polling Stations Sur Lakai, District Zhob. These persons were admittedly present during the elections, they could, therefore, be the most natural witnesses for the occurrence during the period of polling and their evidence in respect of these facts cannot easily be brushed aside. It was the bad luck of the respondent No, 1 that all these witnesses did not support him, thus he has only himself to blame and nothing has been brought on record or any suggestion made before us that these witnesses had suppressed the truth or that they bore an animosity towards the party who had called them. In the absence of any such allegation of that kind, the respondent No I is not entitled to impeach their credit. The party having himself produced the witness cannot be allowed to turn out and say that they should not be,relied. A witness is not necessarily hostile if in speaking the truth as he knows it or sees, it, his testimony happens to be against the party calling him. It sometimes happens that a witness who is called by a party in the expectation that he would give evidence as to the existence of a particular fact either does not give the evidence which was expected of him or gives contrary evidence, in such a case the party calling the witness often wishes to get rid of the evidence of witnesses. For the party thus circumstanced, the following courses are open, all or any of which may be {{FOOT NOTE}}
(1) 1968 P Cr. L .1 229 (2) PLD 1983 Quetta 120 {{FOOT NOTE}} ' adopted by him. The party calling the witness may, .With the permission of the Court cross- examine him in the manner prescribed in sections 145 and 146, Evidence Act or the party calling the witness may with the permission o the Court impeach the credit of the witness by the evidence of the kind mentioned in section 155 of the Evidence Act. In the instant case no re-examination, nor any reason to declare these witnesses or permission to cross-examine them was made by the respondent No,
1. The witness Jaffar Khan, the Returning Officer of the Polling Station has said in his examination before the Election Tribunal :- "I was a Presiding Officer at Polling Station Sarlaki, District Zhob. I did not stop the polling before the scheduled time. Malik Sher Jan did not cast his vote. He did not come in the Polling Station during the entire time of the polling. After the time for polling was over, Sher Jan had brought two women from the window side and he asked to allow them to cast their votes but I refused on the ground that the time was over. There was no disturbance during the polling hours.
' Mr. Muhammad Akbar Khan, Advocate :- ' The Agents of both the parties were present upto the closing hours of the polling. After seeing the watch at 4-00 p. Tn. In presence of the agents of both the parties, I had announced that the polling was closed."
' P. W. 2 Azmatullah has stated that the polling was closed at 4-00 p. m. Malik Sher Jan did not exercise his vote on that day. After the polling was closed, Malik Sher Jan brought two women from the window side with chits. We had tallied the numbers of the chit with electoral roll which did not tally. They were not allowed to cast their votes as the numbers did not tally and secondly the time of polling was over. At the time of the closing of the Polling Station, agents for both the parties were present and upto 4-0 p.m. Malik Sher Jan did not come to cast his vote P. W. Muhammad Ismail has admitted that one Sharafuddin who is related to Malik Sher Jan had brought the two identity cards of the women. Those two women were standing outside the window of the Polling Station and they had not come inside the Polling Station. Thus, these witnesses have certainly disproved the allegations of the respondent No, 1 and the learned District Judge, Quetta has ignored this material evidence in coming to a finding of fact and thus according to us it is an error of law apparent on the face of the record. In PLD 1970 Dacca 763 it has been held that where the Court ignored the consideration of the evidence existing on record but drew its own conclusion by taking part of the evidence of the plaintiffs and of a plaintiff's witness and then arriving at a third conclusion on that basis, the conclusion thus drawn was held to be logically fallacious and not legally sustainable. The Supreme Court of Pakistan in Manzoor Ahmed's case (I) has held that ignoring the material evidence in coming to a finding of fact amounts to an error of law. There is no doubt left in our minds, therefore, that the Election Tribunal has not proceeded on substantial reason and has misdirected itself to arrive at a conclusion which could not be substantiated on the basis of the evidence on record. The available evidence on record is of P. W. 1, P. W. 2 and P. W. 3 (Annexures 'F' T-1' and 'F-2') and was produced by the respondent No, 1 himself before the Election Tribunal and has been totally overlooked. We are constrained to hold that the learned District Judge had acted illegally and with material irregularity in the exercise of his jurisdiction in discarding this evidence which was tendered by no other person than the respondent .No, 1 himself.
The other witnesses examined by the respondent No, 1 was P. W. 4 Mi Jan son of {{FOOT NOTE}}
(1) 1980 SCMR 952 {{FOOT NOTE}} ' Musbak. He is the son of the uncle of Malik Sher Jan as admitted by this witnesses himself. Even this witness has admitted that he was not inside the Polling Station. P. W. 5 Sharafuddin, the brother and the agent of Malik Sher Jan the respondent No, I had given totally different version. It is said by this witness that Jafar Khan took away the electoral roll from the polling officer. It was the stand of the petitioner that the two ladies who were not allowed to cast their votes, one was the wife and the other was the daughter of one Sadiq. This witness Snarafuddin had admitted that "the females named above are both wives of Sardak and I have given incorrect statement above". In the voters list one of wives of Sardar was shown as his daughter. Admittedly he is the brother of Sher Jan and election agent was naturally interested in respondent No,
1. His evidence, therefore, is not only biased in favour of respondent No, 1 but is highly doubtful and is insufficient to prove the facts alleged in the election petition and the evidence led before the Election Tribunal by the respondent No, 1 was definitely self-contradictory and on the basis thereof the finding on issues Nos. 1 and 2 cannot be legally arrived at against the present petitioner, and the petitioner cannot be held responsible for any disturbance at the polling nor he could be held guilty of any corrupt practice. It has been laid down in rule 70(2) of the Baluchistan Local Government (Election) Rules, 1983 that the election of a returned candidate shall not be declared void on the ground :- "(a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed, by or with the consent or connivance of that candidate or his election agent and 'that the candidate and the election agent took all reasonable precautions to prevent its commission."
' The election of the petitioner could not be declared void as there was no believable independent evidence on record that any malpractice was committed either by the present petitioner or with his connivance by any other person.
' For the above reasons we allow the petition and declare the order of the Election Tribunal, dated 21-11-1983 without lawful authority and set it aside and as a consequence thereof the election petition (Annexure 'A') filed by the respondent No, 1 before the Election Tribunal Quetta is dismissed with costs.