1. SHAFIUR RAHMAN, J.-- The appellant who successfully contested the local body election yet was disqualified seeks leave to appeal against the judgment of the Lahore High Court dated 21-2-1984 whereby his constitutional petition was dismissed without examining the merits of his case on the short ground that he had an adequate alternate remedy equally efficacious in law which he had not availed of. He was left to avail of that remedy as disputed questions of fact were sought to be resolved.
2. By an order of this Court dated 21-3-1984, after examining the nature of the dispute and the stages through which it had passed, the petition was converted into an appeal for considering, inter alia, the question whether in the presence of the reference made by the appellate authority to the Punjab Election Authority for a direction whether in the peculiar circumstances of the case, a fresh poll should be held, the Returning Officer could have without waiting for a decision on the said reference declared respondent No.3 who admittedly obtained lesser number of votes, to be an, elected candidate.
3. The elections were scheduled to be held for Town Committee Ghakkar, Tehsil Wazirabad, District Gujranwala. The momination papers were required to be filed on 31st of August, 1983. From Ward No.7 there were four candidates, Muhammad Aslam respondent No.4 filed his nomination paper on that date at 9 a.m. He was proposed by one Soofi Rehmat Ali son of Haji Khuda Bakhsh, a voter whose name appeared in the list of voters at serial No.443 in Ward No.7.At 12.45 p.m. The same day, the nomination papers of the appellant were filed. It showed that the same Soofi Rehmat Ali son of Haji Khuda Bakhsh seconded the nomination of the appellant. On 8th of September, 1983 when the nomination papers came up for scrutiny this fact was pointed out on which the Returning Officer passed the following order:- "Soofi Rehmat Ali voter No.443 seconder in the instant case has already proposed Muhammad Aslam, candidate. Papers of the former were received at 12.45 p.m. And those of latter at 9 a.m. On the same day. Hence this one is rejected".
4. The appellant preferred an appeal against the rejection of his nomination paper by the Returning Officer. It was heard by the Deputy Commissioner--the appellate authority, Gujranwala. He recorded the following order-- "The person, who is alleged to have signed the to nomination papers, is also present in this Court.
5. He has been heard. Lie swears on the Holy Quran that he has only signed the nomination paper of the appellant whereas his name has been forged on the nomination paper of Muhammad Aslam.
6. At the appellate stage it is not possible to hold a detailed inquiry to determine the veracity of these conflicting statements, I have no option but to go on the statement of Soofi Rehmat Ali. I, therefore, accept this appeal, set aside the order of the Returning Officer and declare Abdul Hameed, appellant, to be a validly nominated candidate in Ward No.7 of Town Committee. Ghakkar, Tehsil Wazirabad, District Gujranwala".
7. The consequence of this order on the nomination paper of Muhammad Aslam was left undetermined by the appellate order but a direction was given to that respondent to seek clarification or remedy from the Provincial Election Authority.
8. It appears that both Muhammad Aslam and Abdul Hamid approached the Punjab Local Council Election Authority for relief against the appellate order of the Deputy Commissioner passed on 12th of September, 1983. The Election Authority took note of the nature of the controversy and observed as follows:- "This cannot be decided in a summary manner, especially when there are only to days left for the poll. We are therefore of the view that both the petitioners and respondent No.3 be allowed to contest the election and the dispute between the parties be remitted to the Appellate Authority for decision afresh in accordance with law. Both the parties present have no objection to such a course".
9. The Election Authority directed the parties to appear before the Appellate Authority on 9th of October, 1983 for further proceedings; directed the Appellate Authority to allow the parties to lead evidence and meanwhile both the appellant as well as Muhammad Aslam were allowed to contest the election but the election result was not to be declared if any of these to persons emerged successful at the election pending the decision on the disputed question.
10. The elections were actually held on 28th of September, 1983. The rival candidate Muhammad Aslam did not bring his ballot-box to the Polling Station as required under Rule 30 of the Election Rules and the contest was confined to the appellant and Mian Zahoor Ahmed respondent No. 3.
11. The former secured 247 votes and the latter 202 votes.
12. On remand the Deputy Commissioner as the Appellate Authority sent the nomination papers alongwith specimen signatures of Soofi Rehmat Ali to a handwriting expert. His report was to the effect that Soofi Rehmat Ali had in fact signed both the nomination papers. On 20th of November, 1983 the Appellate Authority held the nomination paper of the appellant invalid and that of Muhammad Aslam which was presented earlier as valid. However, taking note of the development that had taken place in the meanwhile, he observed as follows:- "However, an interesting situation has arisen because the elections have been held in this Ward on 28-9-1983 under the directions of the Punjab Local Councils Election Authority in which Abdul Hamid appellant participated but Muhammad Aslam did not take part. Abdul Hamid cannot be declared as elected from Ward No-7 Ghakkar. The matter is, therefore, referred to the Punjab Local Councils Election Authority, Lahore for further direction about the holding of a repolling or not ".
13. The appellant invoked the constitutional jurisdiction of the High Court for challenging the order of 20th November, 1983 on numerous grounds to be taken note of later in the judgment. While this petition was pending, the Election Authority on the reference which was made by the Appellate Authority replied on 10th of January, 1984 as follows:- "The Election Authority has directed that the Returning Officer should declare the result of election in dispute in accordance with the decision made by the Deputy Commissioner/ Appellate Authority in Appeal before it in pursuance of the remand order dated 26-9-1983 passed by the Election Authority in petition No.197 of 1983. In fact that order is clear on the subject and there appeared no basis for making a reference to the Election Authority".
14. Acting on this direction of the Election Authority on 23rd of January, 1984 Mian Zahoor Ahmed respondent No.3 was returned as successful candidate from Ward No.7, Town Committee, Ghakkar, and he took oath of office on 25th of January, 1984.
15. The main grounds on which the constitutional petition of the appellant was filed were that the appellate order dated 12th of September, 1983 was final and not liable to interference even by the Election Authority; that the interference by order dated 28-9-1983 was without lawful authority notwithstanding that the appellant was himself a petitioner before the Election Authority and had submitted to the remand order.
16. As regards the second order of the Appellate Authority dated 20th of November, 1983 it was stated that it was passed without recording of evidence; without affording proper hearing to the parties making the report of the handwriting expert the basis of the entire decision and ignoring the statement made on solemn affirmation by Soofi Rehmat Ali whose signatures were in dispute.
17. A preliminary objection was taken that the questions raised in the constitutional petition could be raised by an Election petition before the Tribunal and that was an adequate efficacious remedy available which had not been availed of.
18. The High Court held that the appellant could not question the order of the Election Authority because he himself was the petitioner and had submitted to the remand order in a more positive manner by agreeing to rather that by mere presence as respondent in proceedings initiated by someone else. He was not permitted to question that. As regards the availability and efficacy of the alternate relief, the objection has been noted in the following words in the judgment of the High Court-- "In this sequence, learned counsel drew our attention to Rule 13 of the Election Petitions Rules, 1979, but having realised that this case does not fall within the ambit of aforesaid Rules, he turned over to Rules 14 and 15 of the aforesaid Rules, which deal with the ground for declaring a person other than a returned candidate elected and ground for declaring election as a whole void respectively.
19. Learned counsel further contended that there was no error of law or any other jurisdictional defect in the impugned order"
20. It was dealt with by the High Court as follows:- Admittedly, the remedy of election petition is available to the petitioner before the Election Tribunal.
21. This fact has not been denied by the learned counsel for the petitioner although he submitted that the peculiar facts of this case demand that this petition be decided on merits instead of directing the petitioner to go to the Election Tribunal".
22. The learned Judges upheld the preliminary objection; did not examine the merits of the case and dismissed the constitutional petition of the appellant.
23. There are to peculiar and outstanding features of the proceedings brought before the High Court for judicial review. The first is that the Election Authority while permitting Muhammad Aslam and the appellant to contest the election as validly nominated candidates, had directed the appellate authority to decide afresh their dispute in accordance with the law making it at the same the clear that the dispute could not be decided in a summary manner. The other feature is that Muhammad Aslam whose candidature had thrown up the dispute withdrew from the contest at the crucial stage as he failed to place his ballot-box.
24. The appellate authority did not at on the words of the remand order inasmuch as it held no inquiry into the controverted question of fact. What it did was to refer the to nomination papers to the handwriting expert and on receipt of the opinion of the expert gave effect to it. The appellate authority did not examine the parties concerned or their witnesses nor formed an independent opinion of its own about the document before it on which the expert's opinion had been obtained.
25. The value to be placed and the setting in which the handwriting expert's opinion has to be considered appear with clarity in the following passage lifted from M. Monir Law of Evidence Vol. l (page 621)-- "of all kinds of evidence admitted in a Court, this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence. In view of this infirmity of expert testimony, it is settled practice of Courts not to base a finding merely on expert opinion.
26. Conclusion based on mere comparison of handwriting must at best be indecisive, and yield) to the positive evidence in the case".
27. The same view has been expressed by this Court in Syed Shabbir Hussain v. The State 1968 SCMR 1126 in the following words-- "The evidence of the handwriting expert is neither the only nor the best method of proving the handwriting or signature of a person. It is at best only opinion evidence."
28. The enquiry made by the Appellate Authority and the conclusion reached was legally defective in more than one respect.
29. After recording the conclusion that the appellant's nomination paper was invalid, the Appellate Authority sought direction from the Election Authority on a report eliminating the appellant as a contesting candidate. The Election Authority did not advert to that specific inquiry nor did the Appellate Authority or the Returning Officer reconsider the matter of a repoll. Where the disqualification of the appellant was) neither apparent nor notorious, the majority of voters of that constituency should not have been deprived of their votes nor a candidate enjoying the confidence of only a minority should have been allowed to represent the constituency.
30. This state of affairs brings us to the relief. It would be out of the and out of place to call upon the Appellate Authority to redecide the issue, or to direct the Election Authority to consider the question of repoll. We also endorse the view that the stage to which the events have brought the parties, recourse to the Election Tribunal is more appropriate but then the question is should the candidate obtaining the majority of votes have recourse to it or the candidate obtaining lesser votes.
31. It has been pointed out by this Court in the case of Murree Brewery v. Pakistan PLD 1972 SC 279 that the "rule that High, Court will not entertain a writ petition when other appropriate remedy is available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction". On the facts already noted it was a case where the jurisdiction should have been exercised to relieve the parties of the illegalities and infirmities appearing on the face of the record, without of course deciding the factual controversy itself In addition, we would at this stage invoke our own power and jurisdiction under Article 187(1)of the Constitution to do complete justice. The result is that the appeal is allowed. The orders of he appellate authority dated 20th November, 1983 and one declaring and notifying the respondent No.3 (Mian Zahooor Ahmad ) as duly elected are held to be without lawful authority and of no legal effect. As a consequence thereof and with a view to mould the relief to suit the changed situation, we direct the respondent No.6 (Election Authority) to declare and notify the appellant as the duly elected candidate from Ward No.7. This shall be without prejudice to the right of any of the respondents to challenge the election before Election Tribunal on any ground available to it under the law. No order as to costs.