1. ' SARDAR SAID MUHAMMAD KHAN, J.-This appeal, by leave, has been directed against the judgment of the High Court dated 11-5-1985, whereby accepting the writ petition filed by Ch. Abdul Majid, respondent, the order of the Chief Election Commissioner was held to have been passed without lawful authority.
2. ' The facts resulting in the present appeal are that respondents Nils, 1, 2 and 3 filed nomination papers for the election to the Azad Jammu and Kashmir Legislative Assembly from the Constituency LA-II, Mirpur II. An objection was raised by Ch. Muhammad Anwar, respondent, to the effect that Abdul Majid, respondent No, 1, who had filed his nomination papers as independent candidate, was in fact Vice-President of the Azad Jammu and Kashmir People's Party and as such was disqualified to contest the proposed elections in view of the provisions contained in sec ion 3 (e) (vi) and (vii) of the Azad Jammu and Kashmir Legislative Assembly (Election) (Amendment) Ordinance, 1985, because the People's Party was not registered as a political party under the provisions of the Azad Jammu and Kashmir Political Parties Ordinance. The objection raised by Ch. Muhammad Anwar was supported before the Returning Officers by producing the clippings of newspapers, wherein Abdul Majid, respondent, was described as Vice-President of the Azad Jammu and Kashmir People's Party. The case of the respondent, Abdul Majid, was that although he had been the Vice-President of the Azad Jammu and Kashmir People's Party; yet he tendered his resignation from the Vice-Presidentship and membership of the said party to the President.Of the party, Sardar Muhammad Ibrahim Khan, who accepted the same vide his letter dated 30-1-1985. The Returning Officer upheld the contention of Abdul Majeed and overruled the objection raised by Ch. Muhammad Anwar, respondent. Consequently, an appeal was preferred by Muhammad Anwar to the Chief Election Commissioner under section 13(5) of the Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970. The Chief Election Commissioner accepted the appeal holding that in view of the Press reports the letter dated 30-1-1985 indicating the acceptance of the resignation of Abdul Majid, respondent, had no probative value in the attending circumstances of the case; and that he was disqualified to contest the election Abdul Majid, respondent, feeling aggrieved by the order of the Chief Election Commissioner invoked the writ jurisdiction of the High Court praying for a writ of certiorari to the effect that the order of the Chief Election Commissioner was without lawful authority. The High Court accepted the writ petition filed by Abdul Majeed, respondent, on the ground that Press reports, which were relied upon by the Chief Election Commissioner, were inadmissible in evidence ; and thus the findings of the Chief Election Commissioner were held without lawful authority because the same were not based on any evidence.
3. ' It is against the aforesaid order of the High Court, passed in exercise of the writ jurisdiction, that the present appeal has been preferred to this Court.
4. ' Before dealing with the points raised at the Bar it would be expedient to reproduce the relevant provisions of the amending Ordinance under which the disqualification to contest the election is sought against respondent No, 1 :- "A person shall be disqualified for being elected or chosen and for being, a member, -
(e) if -
(vi) he is an office-bearer of a political party which is not eligible under the Political Parties Ordinance, 1979 to participate in an election to a seat in the Legislative Assembly or to nominate or put up a candidate at any such election ;
(vii) he is office-bearer of a political party which has not been registered, or the registration of which has been cancelled, under the Azad Jammu and Kashmir Political Parties Ordinance, 1979."
5. ' The disqualification listed in clause (vii) is relevant for the purpose of the case in hand.
6. ' It has been argued by Raja Muhammad Anwar, Advocate, appearing for the appellant, that the High Court has erred in holding that amending Ordinance was promulgated on 20-4-1985 and not on 9th April, 1985, as was contended by respondent No, 2 in the High Court. The learned counsel has argued that the wrong assumption of the fact with regard to the date of the promulgation of the amending Ordinance has misled the High Court to arrive at the conclusion that dates on which the scrutiny of the nomination papers, i. e. From 13th April to 16th April. Took place, the disqualification relevent to the instant case was not in existence. He has argued that this aspect of the matter has also influenced the learned Judges of the High Court in coining to the conclusion that the impugned order passed by the Chief Election Commissioner was without lawful authority.
7. ' In reply it has been contended by Mr. S. M. Zaffar, Advocate, appearing for respondent No, 1, that the High Court did not fall in error in observing that the aforesaid Ordinance was promulgated on 20th April, 1985, when the scrutiny of the nomination papers had already taken place. He maintained that in fact the Ordinance was promulgated on 20th of April and not on 9th April as contended by the learned counsel for the appellant. In support of his contention he has referred to the copy of the Ordinance XCV of 1985, which was promulgated on 20th April, 1985 and in which the disqualification in question has also been mentioned in section 3 (e) and (vii) of the amending Ordinance. The learned counsel for the appellant produced Gazette Notification, dated 9th April, 1985, according to which the Ordinance No, LXXXV of 1985, which contained the disqualification was promulgated on 9th April, 1985.
8. ' We have perused the Gazette Notifications of both the Ordinances ; namely, the Ordinance LXXXV of 1985 and the Ordinance XCV of 1985 ; we have also summoned the relevant record from the Law Department. It appears that subsequent to the amendment brought in the Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 ; through Ordinance No, LXXXV of 1985 dated 9-4-1985 some more amendments were brought in the Election Ordinance of 1970 ; and thus another Ordinance was issued on 20th April, 1985, which is Ordinance No, XCV of 1985. The amendment brought through previous Ordinance No, LXXXV, dated 9-4-1985 was also incorporated in the subsequent Ordinance No, XCV dated 20-4-1985 for the purpose of the consolidation of all the amendments; the fact is clearly mentioned in the Ordinance dated 20-4-1985. The High Court was misled because it failed to note the fact recorded in Ordinance No, XCV that the amendment in question was brought by the previous Ordinance No, LXXXV, which was promulgated on 9th April, 1985. Thus, there is no doubt that disqualification in question was in force on 9th April, 1985, and was present on the statute book when the scrutiny of the nomination papers took place. However, we are of the view that this mistake has not weighed with the High Court while giving findings on the material issues which were involved in the writ petition; especially so when it has been clearly recorded in the impugned judgment that as the disqualifications were enforced at the time when the Chief Election Commissioner passed the impugned order, the fact that the relevant Ordinance was promulgated on 20th April, 1985, was not material. Therefore, the contention of the learned counsel for the appellant that the mistake with regard to the date of the promulgation of The Ordinance in question has adversely affected the case of the appellant is not tenable.
9. ' Next, it has been urged by the learned counsel for the appellant that while deciding the writ petition the learned Judges of the High Court were influenced by the political considerations and thus impliedly imputed malice to the Legislature, i. e. The President who had issued the Ordinance. The learned counsel has argued that the Courts of law are to interpret the law as it stands on the statute book and should not take into consideration the extraneous matters such as the facts, political or otherwise, which motivated the Legislature to pass an Act or the President to issue an Ordinance. The learned counsel has referred to the case reported as lintiaz Ali v.
10. Ghulam Muhammad Butt and others (1) and Fauji Foundation and another v. Shamimur Rehman (2).
11. We have gone through the aforesaid authorities and we have no quarrel with the observations made therein that the Courts of law are to interpret the law as it stands on the statute book and should not attribute motive to the Legislature and infer malice therefrom. However, in the instant case, after closely perusing the judgment of the High Court, we are of the view were is nothing in paras. 5 and 9 of the judgment written by the d Chief Justice and referred to by the learned counsel for the appellant, which can be interpreted to mean that the learned Judges in the High Court attributed ulterior motives to the President in promulgating the Ordinance in question.
12. The general observation, made by the High Court, recorded in para. 9 of the judgment to the effect that supervisory duty entrusted to the High Court gains more importance in the present day ; particularly when the statutory rights of the citizens (PLD 1958 SC 228 (2) P LD 1983 SC 457 are controlled, restricted and abridged by every day's suitable legislation, cannot be interpreted to mean that the learned Judges attributed any motive to the law-giver ; nor the observation relating to the schedule of the election recorded in para. 5 of the judgment can be said to have been weighed with the High Court while passing the final verdict on the controversial issues which were involved in the case.
13. ' Next, it has been argued by the learned counsel for the appellant that in view of section 13(5) of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970, the order passed by the Chief diction Commissioner is final and no writ was competent against the same in view of finality attached to it by virtue of the aforesaid provision. He has relied on a case reported as Mian Jamal Shah v. The Member Election Commission and others (1), wherein it has been held that powers under Article 98 of 1962 Constitution of Pakistan are subject to the provisions contained in Article 171 of the said Constitution and the provisions contained in the latter Article should be given fullest meaning irrespective of anything contained in any other Article of the Constitution- It was opined that as the election disputes are to be "finally determined" by the Election Authorities under Article 171 of the Constitution, such "finality" should be placed on higher level as compared with similars requirements contained in sub-constitutional statutes. However, the High Court was held competent to invoke its superior authority under Article 98 in respect of "finality" of actions of the Tribunals constituted under the sub-constitutional statutes in order to impress upon it the requirement that its actions should be within its jurisdiction and must be performed according to law. It was further opined that in view of the provisions under Article 171 (a) of the Constitution of 1962, interference in the order passed by the Election Tribunal cannot be made on the ground of "error of law".
14. ' In reply it has been contended that the authority cited by the learned counsel for the appellant is not applicable to the case in hand because in the Azad Jammu and Kashmir Interim Constitution Act of 1974, there is no corresponding provision to Article 171 of 1962 Constitution of Pakistan, which attaches finality to the decision of the election authorities in matters of election disputes. The learned counsel has argued that finality attached to the order of and election authority by a sub-constitutional statute c innot be equated with finality attached by a subordinate legislation. He has argued that even the authority cited by the learned counsel for the appellant does not place an absolute restriction on the High Court to interfere in the order passed by the Chief Election Commissioner or the Election Tribunal. Mr. S. M. Zaffar, Advocate, cited some authorities to substantiate his point that even after the dictum of the Supreme Court in Jamal Shah's case, referred to by the counsel for the appellant, the superior Courts in Pakistan have interfered in the orders passed by the Election Tribunals where the circumstances of the cases so warranted The learned counsel has cited the following authorities in support of his view:- (1)Mian Jamal Shah v. The Second Election Tribunal, West Pakistan 1968 SCMR 1144; (2)Akbar Ali v. Razi-ur-Rehman Khawaja PLD 1966 SC 492; (3)Malik Muhammad Din v. Babu Fazal Karim and others PLD 1968 Lah. 544, and
(1) PLD 1966 SC 1
(4) Muhammad Shah idullah v. The Election Tribunal and others PLD 1966 Dacca 240.
15. ' In case reported as Vian Jamal Shah v. The Second Election Tribunal, West Pakistan (I), the dictum of the Supreme Court in Jamal Shah's case was considered and it was held that if an Election Tribunal while determining the validity or invalidity of elections, bases its findings on no evidence, the findings would be deemed to be without lawful authority and can be made subject of writ jurisdiction irrespective of the provisions contained in Article 171 of the Constitution of Pakistan.
16. ' In Akbar Ali v. Razi-ur-Rehman Khawaja (2), it was held that if an election authority or Tribunal acts in violation of clear provisions of law, the decision in Mian Jamal Shah's case would not be an authority for the view that their decisions are sacrosanct and cannot be called in question in the High Court by invoking writ jurisdiction under Article 98 of the Constitution.
17. ' In Malik Muhammad Din v. Baba Fazal Krim and others (3), it was held that provision in statute giving 'finality' to an order passed by the Tribunal constituted thereunder would not debar the High Court from exercising its power of writ jurisdiction to interpret the relevant statute in respect of limitation upon jurisdiction and scope and authority conferred by such statute.
18. ' In Muhammad Shahidullah v. The Election Tribunal and others (4), it was held that the finding of the Election Tribunal are open to challenge by invoking writ jurisdiction if it is shown that the Tribunal has rejected the evidence without any valid grounds.
19. ' The learned counsel has also referred to the Constitution of the Islamic Republic of Pakistan. 1973, by Muhammad Munir, which contains the commentaries On the various constitutional provisions: While dealing with Jamul Shah's case relied by the learned counsel for the appellant it was observed at page 485 of the book, as under:---:- "But the Court did not lay down that the High Court in no case can interfere, and observation in the opinion of the judges are to be found justifying interference, not only in cases of jurisdiction or failure to exercise jurisdiction but also in cases of bias, fraud malice and illegality in the exercise of 'jurisdiction. . .
20. ' In case where finality to a decision is attached, not by the Constitution, but by ordinary law, the High Court in appropriate cases could certainly interfere. Similarly in cases of jurisdiction or patent illegality, the High Court's power to interfere with the decision of an election Tribunal was undoubted.
21. After giving our due consideration to the arguments advanced at the Bar we have no hesitation in holding that the finality attached to the order of the Election Tribunal under section 13 (5) of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 cannot be equated with the finality attached by the Constitutional provisions contained in Article 171 of 1962 Constitution of Pakistan. The finality
(1) 1968 SCMR 1144 (2) PLD 1966 SC 492
(3) PLD 1968 Lah. 544 (4) PLD 1969 Daca 240 attached to an election dispute by a subordinate Legislature cannot' be placed on the same level as "finality" attached by a Constitutional provision. Thus, the authority cited ny the learned counsel for the appellant doe s not support the case of the appellant because in the instant case the "finality" attached to the order of the Chief Election Commissioner is under section 13 (5) of the Election Ordinance, 1970, which is a subordinate legislation and there is no corresponding provision in the Azad Jammu and Kashmir Interim Constitution Act, ;974, to the one contained in Article 171 of 1962 Constitution of Pakistan. It may be further observed that the writ jurisdiction of the superior Courts of Pakistan was successfully invoked in many cases in which the election disputes were involved even after the dictum given by the Supreme Court of Pakistan in Jamul Shahs case. In Mian Jamal Shah v. The Second Election Tribunal, West Pakistan which was referred to above, it was held by the Supreme Court that the dictum of the Supreme Court in Jumal Shah's case as does not debar the High Court to exercise its writ jurisdiction if an Election Tribunal while determining the validity or invalidity of election bases its findings on no evidence. In such a case the findings would be deemed to be without lawful authority and can be made subject of writ petition, irrespective of the provisions contained in Article 171 of the Constitution of Pakistan.
22. It follows from what has been stated that there is no force in the contention of the learned counsel for the appellant that as under section 13 (5) of the Azad Jammu and Kashmir Legislative Assembly (Elections)
23. Ordinance, 1970, the order of the Election Tribunal is final, the writ petition was incompetent.
24. ' The next point which needs determination is as to whether the order passed by the Chief Election Commissioner was immune from challenge in writ jurisdiction because the Election Commissioner had the jurisdiction to decide the matter rightly or wrongly. It has been contended by the learned counsel for the appellant that if a Tribunal of special jurisdiction has jurisdiction to decide a matter it is competent to decide the same rightly or wrongly and findings of such Tribunal cannot be assailed by invoking writ jurisdiction; because in such cases the order cannot be regarded to have been passed without lawful authority. The learned counsel has cited the following authorities in support of his contention:-
(1) Mir Alam Khan v. Mst. Afsar Jan and another PLD 1982 SC (A J & K) 107; and
(2) Muhammad Sharif and another v. Muhammad Afzal Sohail etc. PLD 1981 SC 246.
25. ' In Mir Muhammad Alam Khan v. Mst. Afsar Jan and another (1), it was held that the order of the Tribunal have exclusive jurisdiction cannot be interfered with because the order is wrong in view of the High Court. It was held that if a Tribunal has jurisdiction to decide a matter such Tribunal has to decide it rightly or wrongly. In the circumstances of the case it was held that as the Custodian was competent to decide whether the allotteed was a destitute or not, it was not proper for the High Court to interfere with the findings when the Custodian has rightly declared the person concerned as destitute in view of the definition given in the relevant Government order. In Muhammad Sharif and another v. Muhammad Afzal Sohall etc. (2), it
(1) PLD 1982 SC (A J & K) 107 (3) PLD 1981 S C246 was held that the High Court was not competent to reappraise the evidence for judging the correctness of the order passed by the Additional District Judge under the provisions of West Pakistan Rent Restriction Ordinance, 1959, in exercise of writ jurisdiction. It was opined that there is a distinction between the appellate and the writ jurisdiction and as such the order passed by the Tribunal having jurisdiction cannot be interfered with on the ground that a different conclusion was possible on the re-appeal of the evidence.
26. ' In reply it has been contended by the learned counsel for the respondent that apart from the case of lack of jurisdiction or excess of jurisdiction, the High Court is fully competent to disturb the findings given by a Tribunal of special jurisdiction if such findings are found patently wrong or the same are given in flagrant disregard of law; or the findings have been given by misreading of evidence or excluding the legal evidence from consideration or the same have been based on inadmissible evidence. In such cases, the learned counsel maintained, the High Court is fully competent to correct the error and the contention that if the Tribunal has jurisdiction to decide a matter, it can decide the matter rightly or wrongly would not hold good in such cases. The learned counsel maintained that the principle of deciding the matter "rightly or wrongly" would only come into play when a case requires a deep scrutiny of the evidence or the interpretation of a statutory provision is to be thoroughly probed into. The learned counsel has cited the following authorities in support of his contention:-
(1) Sworn Singh and another v, State of Punjab and others AIR 1976 SC 232;
(2) Muhammad Hanif v. Rehabilitation Department Azad Jammu and Kashmir PLD 1981 Azad J & K 91;
(3) Sardar Sher Muhammad v. Rao Bashir All Khan and another PLD 1962 Lab. 172;
(4) Habibullah Khan and another v. Election Tribunal, Jhang and others PLD 1962 Lah. 797;
(5) Noora v. Settlement and Rehabilitation Commissioner and another 1969 SC M R517;
(6) The Commissioner and another v. Mian Sher Muhammad 1972 SCMR 395;
(7) Hafiz Abdul Hakim and others v. Muhammad Anwar Khan and another PLD 1963 Lab. 63;
(8) Lt.-Col. A. H. Minhas v. Ghulam Ahmed and another 1974 SCMR 394, and
(9) Dost Muhammad Cotton Mills Ltd., Karachi v. Muhammad Abdul Ghani and others PLD 1975 Kar.
27. 342.
28. ' In Swan Singh and another v. The State of Punjab and others (1), it was held that in regard to a finding of a fact recorded by an inferior Tribunal, a writ of certiorari can be issued only if in recording such a finding the Tribunal has acted on evidence which is legally inadmissible or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such a case the error amounts to an error of law,
(6) AIR 1976 S C232 ' In Muhammad Hanif v. Rehabilitation Department, Azad Jammu and Kashmir (1), it was held that findings on question of fact given by a Tribunal of special jurisdiction on no evidence or suffering from misreading of evidence or arrived at by excluding an important piece of evidence from consideration, are open to challenge in writ jurisdiction vested in the High Court under Article 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
29. ' In Sardar Sher Muhammad v. Rao Bashir li Khan and another (2), it was held that if the Tribunal of special jurisdiction while giving its findings has into taken consideration a matter which could not be taken into consideration at all such findings are assailable by invoking writ jurisdiction.
30. ' In Habibullah Khan and another v. Election Tribunal, Jhang and others (3), it was held that in election dispute if the findings are based on evidence which does not exist or if the evidence is kept out of consideration which should have been taken into consideration or if the evidence is misread in material part, the finding may be upset in writ proceedings.
31. ' In Noora v. The Settiement and Rehabilitation Commissioner and another (4) it los been held that finding of fact which is unwarranted or based on deaf and manifest misreading of evidence can be reversed in exercise of writ jurisdiction.
32. ' In The Commissioner and another v. Mian Sher Muhammad (5), it has been held that the High Court can interfere with the finding of fact in exercise of writ jurisdiction if such findings are not based on any evidence or based on misreading of evidence, or in ignorance of material evidence, or on consideration of inadmissible evidence.
33. ' In Hafiz Abdul Hakim and others v. Muhammad Anwar Khan and another (6), it was held that question of fact arrived at by the tribunal of exclusive jurisdiction if found erroneous or contrary to record can be decided afresh by the High Court exercising writ jurisdiction on material plac,d before the High Court.
34. ' In Lt.-Col. A. H. Minhas v. Ghulam Ahmed and another (7), it was held that as the findings of fact involved a simple exercise of considering certain documents and obvious facts, it was within the jurisdiction of the High Court to arrive at its conclusion on the question of facts.
35. ' In Dost Muhammad Cotton Mills Ltd., Karachi v. Muhammad Abdul Ghani and another (8), it was held that if the relevant circumstances are not taken into consideration or an irrelevant fact having factually affected the decision of the Tribunal of special jurisdiction, the High Court is competent to discharge such findings in exercise of writ jurisdiction.
36. ' The learned counsel has also referred to book entitled "Constitutional Law of India", by Basu, which contains commentary on Constitutional Law on the basis of judicial pronouncements. He has referred to page 241 of the book. The relevant extract from the said book is reproduced as under:- "IV. Where a Tribunal acts in violation of the basis principles of natural justice it would be treated as a case of want or excess of jurisdiction,
(1) PLD 1981 A J & K91 (2) PLD 1962 Lab. 172
(3) PLD 1962 Lah. 797 (4) 1969 SCMR 517
(5) 1972 SCMR 395 (6) PLD 1963 Lab. 63
(7) 1974 SCMR 394 (8) PLD 1975 Kar. 342 because no quasi-judicial authority can be supposed to have jurisdiction to decide contrary to the requirements of natural justice. Such a decision would be without the authority of law, e. g. Where the Tribunal or quasi- judicial authority acts without any evidence at all, or on evidence which is legally inadmissible, or has refused admit admissible evidence, or on material not on the record, or on evidence collected at the back of the person affected."
37. ' We have given our due consideration to the question as to under what circumstances the finding given by a Tribunal of special jurisdiction can be assailed by invoking the writ jurisdiction of the High Court. It is correct that there is marked difference between the appellate and the writ jurisdiction of the High Court. The High Court while exercising the writ jurisdiction should not assume the role of a Court of appeal but all the same findings of the Tribunal of special jurisdiction are open to challenge in writ jurisdiction if the findings are patently wrong or based on inadmissible evidence or there is gross non-reading or misreading of evidence. In such cases the error would be "error of law" and the same can be rectified in exercise of writ jurisdiction. The view that a Tribunal which has the jurisdiction to decide a matter is competent to decide I rightly or wrongly would hold good only in case which involves deep scrutiny of the evidence or requires an extensive and deep probe into a statutory provision of law for its interpretation. None of the authorities cited by the learned counsel for the appellant supports the proposition that the findings of fact based on inadmissible evidence or gross misreading or non-reading of the evidence are immune from challenge in writ jurisdiction. Therefore, the contention that as the Chief Election Commissioner was the sole authority to decide the matter in controversy, the writ was not competent is not tenable because the findings of a Tribunal of special jurisdiction can be disturbed if the same suffer from any of the infirmities mentioned above.
38. ' Now, the next question which needs to be resolved is as to whether the news items, which appeared in "The Daily Nawa-i-Waqt Rawalpindi" and the "The Daily Jang Rawalpindi" on 25-2-1985, 4-3-1985, 16-4-1985 and 30-1-1985, in which the respondent No, 1, Ch. Abdul Majid was described as the Vice-President of the Azad Jammu and Kashmir People's Party, were admissible in evidence without ,their formal proof and were rightly relied upon by the Chief Election Commissioner or it was otherwise; as has been held by the High Court. The Chief Election Commissioner was of the view that the dictum of the Supreme Court of Pakistan given in a case reported as Islamic Republic of Pakistan v. Abdul Wall Khan (1) was fully attracted to the present case and as such the Press Reports were legally admissible as evidence against respondent No, 1, without any formal proof, especially so when the same was not contradicted by the respondent though any Press statement issued at the relevant time. On the other hand the High Court is of the opinion that the view taken in Wall Khan's case was necessitated by the circumstances of that case because direct evidence was not available in that case and rule regarding the inadmissibility of hearsay evidence was relaxed in special circumstance of that case. For convenience, the relevant extract from the judgment of Wall Khan's case is reproduced as under:- "Nevertheless, it cannot be denied that so far as newspaper reports of (1) PLD 1976 SC 57 contemporaneous events are concerned, they may be admissible, particularly where they happen to be events of local interest or of such a public nature as would be generally known throughout the community and testimony of an eye-witness is not readily available. The contemporary newspapers account may well be admitted in evidence in such circumstances as has often been done by Courts in the United States of America not because they are 'business recorts' or 'ancient documents' but because they may well be treated as a trustworthy contemporaneous account of events or happenings which took place a long time ago or in a foreign country which cannot easily be proved by direct ocular oral testimony.
39. ' It was further opined as under:- "On the basis of these observations, learned Attorney-General urges that in the present case too so far as incidents which took place in a foreign country or speeches which were made there by any of the leaders of the National Awami Party are concerned, this rule should apply and the exclusionary rule on the ground of hearsay should be relaxed as has invariably been done by the Courts in the United States of America, because witnesses required to prove such facts would ordinarily be inaccessible and certainly beyond the reach of this Court's subpoena.
40. ' We do not dispute the force of these contentions of the learned Attorney-General. We were ourselves conscious of these difficulties and it is for this reason that we have, as already indicated, decided to relax this rule in the cases of reports of incidents of events which took place in foreign countries or of reports of speeches or statements made there if they have not been contradicted. Similarly, articles, published in foreign newspapers will also on similar grounds of necessity be admissible in these proceedings."
41. It is evident from the above extract that it has nowhere been held by the Supreme Court that the Press reports are not hearsay evidence. In that case as the relevant events had taken place in a foreign country and the direct evidence was not available to prove the Press reports, the rule with regard to the inadmissibility of the Press report was relaxed. Now, the question arises as to whether there are any such circumstances in the instant case justifying the relaxation of the rule regarding the inadmissibility of the hearsay evidence. When the learned counsel for the appellant was asked as to whether there were any circumstances in the instant case justifying the relaxation of the rule with regard to the inadmissibility of the hearsay evidence, he submitted that as there was limited time with the Chief Election Commissioner for deciding the appeal, the rule regarding inadmissibility of hearsay evidence could be relaxed. We are afraid we cannot subscribe to the view of the learned counsel for the appellant; as has been held by the High Court the relevant news items appearing in the aforesaid newspapers could be conveniently proved by calling the relevant persons because the offices of the said two newspapers and that of the Chief Election Commissioner were located at Rawalpindi. The rule of evidence with regard to the exclusion of the hearsay evidence cannot be relaxed on flimsy grounds as one relied upon by the counsel for the appellant. The dictum of the Supreme Court in Wali Khan's case, referred to above, was given in altogether different circumstances. The learned counsel has also referred to two other cases reported as In re: Nawa-i-Waqt, Daily (Urdu), Lahore (1) and Sher Muhammad V. The Crown (2). Both these cases were under the provisions of the Press (Emergency Powers) Act, 1931, in which the security was demanded from the persons concerned under the provisions of the said Act as a penalty for publishing some objectionable news itmes and articles. A perusal of the provisions of the aforesaid Act would reveal that under section 26 of the said Act, the copy of a newspaper has been specially made admissible in evidence for the purpose of that Act. The High Court was empowered under section 27 of the said Act to frame rules for regulating the procedure of hearing of the applications. Under rule 10 of the Rules, framed by the High Court, the Government was entitled to controvert the truth of the news item by filing an affidavit. As no affidavits were filed in the aforesaid two cases, it was held that the contents of the news items and the articles would be presumed to be correct.
42. Evidently, the aforesaid two authorities have no application to the case in band because in the proceedings under the aforesaid Act the copies of the newspapers were specially made admissible in evidence whereas no such eventuality exists in the instant case.
43. ' The learned counsel for the respondent has cited a number of authorities in support of his contention that it is settled law that Press reports without formal proof are not admissible in evinence and as such no reliance can be placed upon the same. He has cited the following authorities in support of his contention:-
(1) Nisar Ali Khan v. Muhammad Ali Cum AIR 1929 Oudh 494,
(2) Messrs Hazari La! Bhanna Mal v. State of Himachal' Pradesh and others AIR 1953 Him. Pra. 41,
(3) Khilumal Topandas v. Arjundas Tulsidas AIR 1929 Raj. 280,
(4) Sangappa Andanappa v. Shivamurthiswany Siddappalyaswamy AIR 1961 Mys. 106,
(5) Harbhajan Singh v. The State of Punjab and another AIR 1961 Pb. 215,
(6) Bawa Sarup Singh v. The Crown AIR 1925 Lab. 299,
(7) Messrs Haji M. Zakaria & Co. v. The Province of Sind 1981 CLC 615, and
(8) Alim-ud-Din v. The State PLD 1982 Lab.
44. 141.
45. ' In Nisar Ali Khan v. Muhammad Ali Khan, it was held that a particular extract fram newspaper by itself is inadmissible in evidence. If the writer is called as witness, it can be used to corroborate or contradict his statement but by itself it is inadmissible in evidence.
46. ' In Messrs Hazari La! Bhanna La! v. State of Himachal Pradesh and others, it was held that a newspaper report as to proceedings of a Legislature is only hearsay evidence. Such resport is not one of the documents referred to in section 78(2) by which such proceedings may be proved.
47. ' In Khulumal Topandas v. Arjundas Tulsidas, it was held that a report of speeches made in the newspaper is not admissible in evidence to prove the speeches. The party must 'produce the person who had made the speech or the persons in whose presence such speeches were made or the
(1) AIR 1948 Lab. 161 (2) PLD 1949 Lah, 510 Reporter of the newspaper in whose presence the speeches were made and who had sent the report to be published in the Paper.
48. ' In Sangappa Andanappa v. Shivamurthiswamy Siddappalyaswamy, it was held that the newspaper report cannot be treated as substantive evidence. It is no evidence of facts stated therein unless the correspondent who made the report is examined. In Harbhajan Singh v. The State of Punjab and another, it was held that the presumption of genuineness attached under section 81 of the Evidence Act to a newspaper cannot be treated as proof of the facts reported, therein as a statement of a fact contained in a newspaper is merely hearsay and therefore, inadmissible in evidence in the absence of the maker of the statement appearing in the Court and deposing to have perceived the fact rep' orted.
49. ' In Bawa Sarup Singh v. The Crown, it was held that even if newspapers are held to be admissible in evidence without formal proof, the Paper itself is not the proof of its contents. It would merely amount to an anonymous statement.
50. ' In Messrs Haji M. Zakria & Co. V. The Province of Sind, it was held that mere production of newspaper without examining any witness does not prove contents of newspaper and copy of the newspaper was held to have been rightly rejected as being inadmissible in evidence.
51. ' In Alim-ud-Din v. The State, it was held that the newspaper reports may be admissible in evidence when testimony of an eye-witness was readily available. It was opined that as eye-witnesses were available in the case, no reliance could be placed on news item published in the newspaper. Reliance in this case was placed on Islamic Republic of Pakistan v. Abdul Wali Khan.
52. ' An identical view was taken by this Court in an unreported case entitled Sardar Muhammad Ibrahim Khan v.
53. Chief Secretary and others Civil Appeal No, 89 of 1979, decided on 27-7-1984.
54. It follows from what has been stated above that it is a well-settled principle of law that Press reports are inadmissible in evidence without formal proof. Therefore, the Press reports in the instant case being inadmissible in evidence were rightly excluded from consideration by the High Court.
55. ' Next, it has been contended by the learned counsel for the appellant that the High Court has decided the controversial issues as if the onus of proving the same was on the respondent. It has been argued that after the admission of respondent No,1 that he had been the Vice-President of the Azad Jammu and Kashmir People's Party, but he resigned on 30-1-1985, the onus shifted to respondent No, 1 to prove that he resigned on the said date.
56. ' In reply it has been contended that an admission cannot be relied upon partly; it should be accepted or rejected as a whole. Thus, according to the learned counsel for the respondent, if the admission of respondent No, 1 is to be considered it would mean that the part of his statement wherein he has stated that he resigned from the office of the Vice-President ship of the party on 30-1-1985 must be accepted. He has also controverted the argument that the High Court decided the controversial issue as if the onus of proving the factum of resignation was on the appellants. The learned counsel has argued that when both the parties have adduced documentary evidence in support of their respective contentions, the question of onus loses its weight and findings on a controversial issue are to be given after appreciating the evidence adduced by the parties side by side. The question of onus of proving controversial fact would be relevant only when the evidence of the parties is so evenly balanced that no decision is possible one way or the other.
57. We have given our due consideration to the point and we are of the opinion that this is settled law that where an admission amounts to confession or not is to be accepted or rejected as a whole and while considering an admission in civil cases no "pick and choose" is permissible. We are fortified in our view by a case reported as Khan Bahadur Khan v. Chief Secretary, Azad Government of Jammu and Kashmir (1), wherein the reliance was placed on Rahim Bakhsh v. Crown (2) and many other authorities.
58. So far as the question of onus of proof is concerned, it is settled principle of law that when both the sides have led evidence in support of their respective contentions, the question of onus loses weight and the findings should be given after the appraisal of the evidence on record according to the accepted principle of law. We are fortified in our view by a case reported as Mst. Khatun v. Mala and 5 others (3), wherein it was held that where the evidence has heen led on both the sides, the question of onus loses its weight. An identical view was expressed in case reported as Muhammad Bashir v. Mst. Rehmat Bibi (4).
59. ' In the instant case the perusal of the judgment of the High Court reveals that the learned Judges gave findings on the controversial issue after considering the evidence of the contending parties side by side and the question of onus did not weigh with them.
60. ' Next, it has been contended by the learned counsel for the appellant that the affidavit sworn by Sardar Muhammad Ibrahim Khan has no evidentiary value because there was a counter-affidavit by Muhammad Anwar, respondent, and as such it was imperative on respondent No, 1 to produce Sardar Muhammad Ibrahim Khan for cross-examination. He has cited The President v. Mr. Justice Shaukat Ali (5), in support of his contention, wherein it was held that when any party bona fide desires the production of a witness who has given evidence by affidavit for cross-examination, the Court may direct the production of such a witness. It was further observed that where the proceedings are not of interlocutory nature, the admission of evidence is subject to the proviso to Order XIX, rule I of the C. P. C., which says that if the opposite party controverts the allegations by filing a counter-affidavit or demands the attendance of the deponent for the cross-examination, the party relying on the affidavit must produce him in the witness-box and if it is not done the affidavit shall lose all its force as probative piece of evidence and cannot be acted upon. The learned Judge of the Supreme Court in the aforesaid case affirmed the view of the Lahore High Court given in case reported as Abdul Hamid v. Malik Karam Dad, P. C. S., Election Tribunal, Rawalpindi and 2 others (6), wherein it was held that if there is counter- affidavit by a party controverting
(1) P D 1983 SC (A J & K) 199 (2) PLD 1952 FC I
(3) 1974 SCMR 341 (4) 1970 SCMR 478
(5) PLD 1971 SC 585 (6) PLD 1966 Lab. 16 the allegations in the affidavit produced by his adversary, it is sufficient indication of his intention that he is not prepared to admit the facts set out in the affidavit and would require the deponent to appear in the witness-box for his cross-examination. In the instant case, although no prayer was made by Muhammad Anwar, respondent, that the deponent should be produced for cross-examination but all the same as there was a counter-affidavit by Muhammad Anwar, respondent, it was an indication K to the opposite party that it did not accept the contents of the affidavi as being true and as such the respondent No, 1 should have produced Sardar Muhammad Ibrahim Khan for cross-examination. Thus, findin ourselves in agreement with the dictum given in the above-referred two cases, we are of the view that the affidavit sworn by Sardar Muhammad Ibrahim Khan has no evidentiary value in view of the counter-affidavit and should have been excluded from the consideration.
61. ' Next, it has been argued by the learned counsel for the appellant that letter dated 30-1-1985, written by Sardar Muhammad Ibrahim Khan, indicating that the resignation of Abdul Majid, respondent, from Vice-Presidentship of the Party was accepted was not proved as required by section 67 of the Evidence Act and as such, it could not be relied upon. In reply it has been argued by Mr. S. M. Zaffar, Advocate, that no such objection was taken by Muhammad Anwar, respondent, or any other person at the time when the letter was produced. He has argued that objection with regard to the mode of proof of a fact or mode of the proof of a document, if not taken at the time when such evidence is led or document is produced, no objection can be taken afterwards. He has further contended that the findings of the Chief Election Commissioner are that in fact the letter in question was written and signed by Sardar Muhammad Ibrahim Khan. Even the case of Muhammad Anwar, as is evident from his application before the Returning Officer and the memo. Of appeal before the Chief Election Commissioner, was that in fact the letter was written and signed by Sardar Muhammad Ibrahim Khan but the same was sham and was intended to save the candidature of Abdul Majid, respondent. Therefore, according to the learned counsel, not only the objection is not tenable at this stage but the same is not available in view of the case set up by Muhammad Anwar, respondent, before the Returning Officer and the Chief Election Commissioner. The learned counsel has cited some authorities in support of his contention that the objection is not tenable at this stage:-
(1) Gopal Das and another v. Sri Thakurji and others AIR 1943 P C 83,
(2) Abdullah v. Abdul Karim PLD 1968 SC 140,
(3) Dogar Mal and others V. Sumam Ram and others AIR 1944 Lah. 58,
(4) Ayyavar Thevar v. Secretary of State AIR 1942 Mad. 528,
(5) Kalijiban Bhattacharjee and others v. Emperor AIR 1936 Cal. 316,
(6) Dil Muhammad and another v. Sain Das and others AIR 1927 Lah. 396, and
(7) Kedarnath v. G. R. Pradhan AIR 1937 Nag.
62. 13.
63. ' In Gopal Das and another v. Sri Thakurji and others, it was held that where the objection to the mode of proof of a document is not taken at the trial before the document is marked as an exhibit and admitted to the record, a party cannot be permitted to object the mode of proof of the document.
64. ' In Abdullah v. Abdul Karim, it was held that objection as to formal proof of document must be taken at an earliest stage and cannot be permitted to be taken for the first time in the appeal, as the document marked as an exhibit is admissible in evidence.
65. ' In Dogar Mal and others v. Sunam Ram and others, it was held that the mode of proof of a document is a question of procedure and is capable of being waived. When the objection as to manner of proof of a document such as that the entries in the account books could not be looked at without formal proof was not taken at the time when the document was sought to be proved in the lower Court and document was freely referred to by the parties and the Court, it is too late to raise it for the first time in second appeal.
66. ' In Ayyavar Thevar v. Secretary of State, it was held that consent of want of objection to the reception of evidence which is irrelevant cannot make the evidence relevant but consent or want of objection to the wrong manner in which relevant evidence was brought on record of the suit disentitled the party from objecting to such evidence subsequently.
67. ' In Kalijiban Bhattacharjee and others v. Emperor, it was held that an objection relating to the mode of proof of a document must be raised when the document is sought to be put in evidence and if raised at a later stage, it does not deserve serious consideration.
68. ' In Dil Muhammad and another v. Sain Das and others, it was held that where a party accepts the certificate of a thumb-impression expert without formal proof in the trial Court, he cannot be allowed in appeal to say that this evidence should be excluded for want of proof.
69. ' In Kedarnath v. G. R. Pradhan, it was held that when a document is tendered in evidence and no objection whatever is taken to it either to its being secondary evidence or as to its being tendered in circumstances that would justify its being received as secondary evidence, it is too late in appeal to take the point that it should not have been received.
70. It is evident from the above authorities that objection with regard to the mode of proving the fact or a document cannot be taken at subsequent stage if the same was not taken at the time when the relevant document was produced. Apart from this in view of the specific stand taken by Muhammad Anwar before the Returning Officer and in view of the findings of the Chief Election Commissioner that the letter was written and signed by Sardar Muhammad Ibrahim Khan, the appellant now cannot be permitted to raise objection to the admissibility of the aforesaid letter in evidence. It may be observed that the findings of the learned Chief Election Commissioner are that the letter has lost its probative value because the news items appearing in the Press describing respondent No, 1 as Vice President of the Azad Jammu and Kashmir People's Party were not contradicted by him; and not that the letter was not written by Sardar Muhammad Ibrahim Khan. The learned Chief Election Commissioner has given the finding that the scribe of the letter was genuine and it was addressed to the respondent No, 1, but he opined that in view of the Press reports, the letter appeared to have been fabricated to save the candidature of respondent No, 1.
71. ' The next point which needs determination is as to whether there is any evidence on the record to rebut the fact established by letter written by Sardar Muhammad Ibrahim Khan or to infer that the letter was fabricated to save the candidature of Abdul Majid, respondent. We have already held that the Press reports relied upon by the learned Chief Election Commissioner being inadmissible in evidence were rightly excluded by the High Court.
72. The affidavit sworn by Muhammad Anwar, respondent, was also correctly ruled out of the consideration by the High Court in view of the counter-affidavit tiled by Abdul Majid respondent. Thus, there is no other evidence to rebut the contents of letter written by Sardar Muhammad Ibrahim Khan or to infer that the said letter was fabricated to save the candidature of Abdul Majid, respondent, and that in fact Abdul Majid, respondent, had not resigned from the membership and the Vice-Presidentship of the party.
73. ' In the end it has been argued by the learned counsel for the appellant that if the findings of the Chief Election Commissioner were found based on inadmissible evidence, the proper course was to remand the case back to the Tribunal to give its findings after re-appraisal of rest of the evidence on the record and the High Court should have desisted from recording the findings itself. The learned counsel has cited Syed A:mat Ati v. The Chief Settlement and Rehabilitation Commissioner and others (1), wherein it was held that where the superior Courts call for the record of judicial or quasi-judicial authorities in writ jurisdiction Such Courts should not substitute its findings for the one record by the inferior authority or Tribunal. Thus, if it is felt that the question has been left undecided by such Tribunal or authority or a question has to be decided after taking afresh evidence, it is more appropriate to return the case to the authority concerned or to the Tribunal concerned for decision after quashing the order complained against.
74. It is evident from the aforesaid authority that the remand of the case is only desirable if any point is left undecided or it is necessary to taken further evidence in the case. Obviously, no such eventuality exists in the instant case. Therefore, the contention of the learned counsel that instead of giving findings itself the High Court should have remanded the case to the Chief Election Commissioner is not tenable. It may be observed here that the High Court was fully competent to give findings itself after excluding the inadmissible evidence and it was neither necessary not proper for the High Court to remand the case. We are fortified in our view by a case reported as Lt.-Col. Minhas v. Ghulam Ahmed and another, wherein it was held that as the findings of fact involved a simple exercise of considering certain documents and obvious facts, it was within the jurisdiction of the High Court to arrive at its conclusion on the questions of fact. Again in Dost Muhammad Cotton Mills Ltd., Karachi v. Muhammad Abdul Ghani and another, it was held that if the relevant circumstances are not taken into consideration or an irrelevant circumstance having factually affected the decision of the Tribunal of special jurisdiction, the High Court is competent to upset it in exercise of its writ jurisdiction.
75. The remand of a case should not be ordered unless it is necessitated by the circumstances of the case because such an order puts the parties to
(1) PLD 1964 SC 260 unnecessary inconvenience and oblige them to undergo further litigation and hardship. There is no reason why the High Court should not give the findings in writ jurisdiction itself if such findings are possible from the material on the record. Thus, in our view the High Court has rightly given the findings on the controversial points instead of remanding of the case.
76. ' The upshot of the above discussion is that finding no force in this appeal it is hereby dismissed. In view of the circumstances of the case no order is made as to the costs.
77. TUB END ALL PAKISTAN LEGAL DECISIONS SHARIAT COURT (A J & K) n