1. ' IBADAT YAR KHAN, J.-Petitioner Rab Nawaz and respondent No, 2 Ali Khan contested for a seat in the District Council, Karachi from Constituency No, DC-13. Petitioner was declared elected on the strength of majority of votes secured at the poll against the respondent. His name was notified by the Election Authority in the official Gazette, dated 11-10-1983 in pursuance of section 28 of the Sind Local Government Ordinance, 1979.
2. The respondent No, 2 was dissatisfied with the results and he preferred an election petition before the Provincial Election Authority under section 319 of the Sind Local Government Ordinance, 1979 read with Rule 65 of the Rules framed under the Ordinance. This petition was referred to and heard by respondent No, 1 as Election Tribunal duly constituted by the Election Authority. The petitioner appeared before the Tribunal, filed his written statement, issues were framed, evidence was recorded and finally the Election Tribunal by order, dated 12-7-1984 allowed the petition, declared the election to be void. The present petitioner (respondent in the Election Petition) was unseated and respondent herein was declared to have been duly elected member from the Constituency. The Tribunal has confined his decision to only one issue in the case. On other issues the view expressed by the Tribunal is as follows :- "Issues Nos. 2, 3, 4 and 5.-On all these issues the evidence adduced by the petitioner is common.
2. The petitioner has only relied on the evidence of himself and his two witnesses namely Soomar and Muhammad Akbar. However, their evidence is neither sufficient nor satisfactory to arrive at a positive finding in respect of the aforesaid issues and the petitioner ought to have examined either the election staff or should have got produced the material documents. Even otherwise, in view of my finding on issue No, 1 that the respondent was disqualified from being a candidate for the above election, it is not necessary to discuss these issues in detail.
3. Issues Nos. 6 and 7. -In view of my finding in issue No, 1, I hold that the declaration of the respondent as a returned candidate from Constituency No, DC-13 was void and is set aside and the petitioner is declared as unopposed returned candidate from the above constituency."
4. ' The only issue that had survived for decision related to the disqualification of the petitioner on account of his being President and member of the Executive Committee of the Pakistan People Party of Achar Goth, Dhabeji, Karachi, Section 37, subsection (3) of the Sind Local Government Ordinance. 1979, under which this disqualification is suffered is reproduced hereunder :- "Section 37(3) .-No person shall be eligible to be elected as, and to be a member if he has at any time on or after 20th December, 1971, been a member of an Executive Committee by whatever name called, or an office bearer of a political party at local, district, provincial or national level, provided that nothing herein contained shall apply to a person who is a member of the Federal or Provincial Cabinet or of Federal or Provincial Council or of any Council, immediately before the coming into force of the Sind Local Government (Second Amendment) Ordinance, 1983."
5. ' The petitioner feels aggrieved against this finding and has filed this Constitutional Petition praying that the order, dated 12-7-1984 be declared to have been passed without lawful authority and "the petitioner be declared a winner of DC-13 Constituency".
6. ' In this petition several grievances are raised and several allegations are made against the Tribunal but the learned counsel for the petitioner has addressed us on one and only one point namely, that the scope of inquiry before the Election Tribunal is limited, or shall we say the scope of election petition before the Tribunal is not unlimited. It is contended that the charge of disability alleged against the petitioner by virtue of subsection (3) of section 37 of Ordinance XII of 1979 fell to be determined at the stage of scrutiny of the nomination papers. Once that stage had passed petitioner's candidacy attained immunity against any attack on account of this disability and no further attack could be made against the petitioner on account of the alleged disqualification.
7. According to the learned counsel petitioner's nomination paper was cleared and accepted by the Returning Officer and if the respondent No, 2 had any grievance, he could file an appeal against this decision of the Returning Officer. The alleged affiliation of the petitioner with Pakistan Peoples Party could not form a basis of an election petition nor could such a disqualification be inquired or re-agitated before the Election Tribunal. Learned counsel heavily relies on sub-rules (5), (6) and
(8) of Rule 19 in support of his argument and claims finality for an order passed under these rules by the appellate authority at the scrutiny stage. Learned counsel draws support from the language of sub-rule (8) of Rule 19, "the order passed under sub-rule (5) or (6) shall be final" and contends that this finality cannot be disturbed by reopening or reagitating the same controversy before the Election Tribunal in an election petition. These contentions of the learned counsel have been highlighted in para. 10 and paras. 11-a and 11-c of this Constitutional petition, which are reproduced below for ready reference :- "10. That the learned respondent No, 1 ignored this fact that at the time of submitting nomination paper, the Returning Officer has scrutinized all the papers in detail and enquired about this fact in the locality that any candidate is the office-bearer of any political party or not. He also checked whether there is any violation of section 37 of the Sind Local Ordinance, 1979 or not, then the petitioner was allowed to go for the candidacy, therefore, Election Tribunal as an Appellate Authority cannot take this issue at appellate stage.
8. 11-a. That the impugned order is in excess of jurisdiction of the Election Tribunal inasmuch as the question of disqualification on account of alleged political affiliation could not lawfully be dealt with and adjudicated by the learned Election Tribunal which was constituted to hear and decide only the petition filed under rule 65 of the Sind Local Councils (Election) Rules, 1979.
9. 1I-c.. That the order of acceptance of nomination paper passed by the Returning Officer, being an appealable order and the appellate authority also vested with the jurisdiction of reviewing the said order suo motu within the stipulated period of time, the said order could not lawfully be agitated before the Election Tribunal much after the expiry of the said stipulated period and as such the order of Returning Officer accepting the petitioner's nomination paper could not be challenged before the Election Tribunal."
10. ' As stated above, the learned counsel for the petitioner has not advanced any argument on any other issue except the jurisdictional issue elaborated in the preceding paras. And we have focussed our attention only on this argument of the learned counsel. The argument on first glance looks very attractive. But if this argument is accepted, it would mean that election disputes and remedies provided in the law to resolve them are compartmentalised. Some relating to qualifications and disqualifications, which pertain to a pre-poll period to be disposed of at the scrutiny stage, and others which relate to a post-scrutiny stage. They are to be adjudicated by the Election Tribunals, constituted by the Election Commission to hear election petitions after the election results have been announced and officially notified in the Gazette. Broadly speaking these would include "corrupt or illegal practice or other illegal act" alleged to have been committed by the returned candidate or illegalities and irregularities committed by any contesting candidate or even official agencies conducting the polls.
11. ' A closer look on the election laws would reveal that the only forum provided for final adjudication of election disputes, is the Election Tribunal. At this stage reference to some provisions is necessary.
12. Chapter V of the Ordinance XII of 1979 consisting of sections 33 to 39-deals with Elections.
13. Subsection (1) of section 39 of the Ordinance provides :- "All elections under this Ordinance shall be organised and conducted in accordance with the rules which may amongst other provide for bye-elections, and the submission to and disposal of election petitions by the Election Authority."
14. Section 39(2) refers to the creation of a Tribunal. This Tribunal is clothed with powers to try the election petitions "as nearly as possible in accordance with the procedure laid down in the law relating to the elections B of the Provincial Assembly." Subsection (3) of this section invests the Tribunal with powers of a civil Court under the C. P. C. And certain sections of the Cr. P. C.
15. ' It is significant that after providing the special forum for adjudicationc of election disputes under section 39, the jurisdiction of normal Court& has been barred by section 39-A which runs as under :- "No Court shall entertain any proceedings nor shall it make any order or grant any injunction in relation to any action taken, proceedings held or order made by any authority or officer in connection with elections to the councils and matters connected therewith."
16. Ignoring such side ways as delimitation of constituencies, the enumeration of electoral roll and disputes regarding inclusion of names in the roll or such controversies as identity of a voter/impersonation etc. At the time of polling, the main broadway through which the electoral process runs its course, has two important landmarks; first when disputes of serious D nature touching the eligibility or disqualification of candidates are examined and second when the success of the elected candidate is challenged by his rivals by way of an election petition before an Election Tribunal. These stages are the 'scrutiny' conducted by the Returning Officer and the hearing of the petition before the Election Tribunal.
17. ' It is convassed before us that decision taken at the scrutiny stage is final and the same dispute cannot be reagitated before the Election Tribunal.
18. To revert to the statutory provisions, it is to be noted that after the E nomination papers have been filed by the contesting candidates, according to the procedure prescribed by rules 17 and 18, the Returning Officer, in presence of and after providing full opportunity to all contentin candidates to examine the nomination papers filed by others, and eithe suo motu or after hearing the objections filed against the nominations, either accepts or rejects each paper. This is called scrutiny. Not only the nomination paper is scrutinised but even the nomination as such is subjected to scrutiny inasmuch as the Returning Officer is competent to even look into the facts whether a candidate is prima facie eligible to be cleared for the contest. The qualifications and disqualifications of a candidate have been fully enumerated in section 37 of the Ordinance and at the time of scrutiny candidate has to satisfy the Returning Officer that he possess all the qualifications and does not suffer from any disqualification and as such is eligible to run in the election. In order to fully comprehend the situation, it would be helpful to quote this rule 19 in full :- "19. (1) The candidates, their election agents, proposers and seconders, and one other person authorized in this behalf by each candidate and the person who made a representation against the nomination paper, may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under rule 17.
(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under sub-rule (1), examine the nomination papers and decide any objection raised by any such person to any nomination.
(3) The Returning Officer, may, either of his own motion or upon any objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that :-
(a) the candidate is not qualified to be elected as a member;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(c) any provision of rule 17 or rule 18 has not been complied with ; Or
(d) the signature of the proposer or the seconder is not genuine; ' Provided that :-
(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper;
(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith;
(iii) the Returning Officer shall not enquire into the correctness or validity of aay entry in the electoral roll.
(4) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it, and shall, in the case of rejection record reasons therefor.
(5) An appeal against the decision under sub-rule (4) shall lie to the Commissioner of the Division or the District Magistrate of the District as may be authorised in this behalf by the Election Authority and shall be filed and disposed of by date specified in the Election Programme.
(6) The appellate authority may, suo motu revise the decision within the period specified in the Election Programme for filing and disposal of appeal under sub-rule (5).
(7) An appeal shall be disposed of either summarily or after such summary enquiry as the appellate Authority may consider necessary.
(8) The orders passed under sub-rule (5) or (6) shall be final."
19. The reading of the rule would show that the Returning Officer is initially enjoined with the duty to subject each nomination paper to his critical examination. For this purpose he is also authorised to initiate and undertake an enquiry whether any candidate or any other person offers any assistance or not. If assistance is offered by rivals in the form of objection well and good but even if no such objections are filed the Returning Officer is not relieved of his obligation to undertake this enquiry if he deems it necessary. But it should be fully realised and this is most important that in either case the enquiry is summary. This decision rendered by the Returning Officer who is not a Court, with or without the assistance of anyone else, may be left undisturbed as happened in the present case or it may be reviewed by the Commissioner of the Division, or the District Magistrate as the case may be. This revision is possible in two ways. On the appeal filed against the decision of the Returning Officer by the aggrieved party in terms of sub-rule (5) or even suo motu. Then comes F sub-rule (7) which is significant and pustulates :- "(7) An appeal shall be disposed of either summarily or after such summary enquiry as the appellate authority may consider necessary."
20. ' Again it is to be noted that whether the appeal is disposed of without any enquiry or after enquiry the mode of disposal remains summary.
21. ' Looking to the whole process involved it cannot be said that the decision of the appellate authority though termed final is a substitute for a judicial verdict rendered after thorough enquiry on appreciation of all the evidence that the parties may wish to offer in a trial regulated by recognised procedure. As such, the decision at the scrutiny level is final till such time that the dispute is taken to the Tribunal where, after a regular hearing it should be disposed of by a forum clothed with all the powers of a regular Court.
22. ' The case of the petitioner is even worse. In his case the matter did not even reach the appellate stage before the Commissioner and consequently no decision was ever given by the Commissioner which could be termed final in terms of sub-rule (8) of Rule 19. The learned counsel for the petitioner faced with this situation advances another argument. He contends that as the respondent did not file an appeal against the acceptance of petitioner's nomination paper by the Returning Officer, remedy which was available to the respondent by virtue of sub-rule (5), hey lost the right of filing an election petition.
23. ' With what reasonings the learned counsel can sustain this argument is not clear. Nor can any such bar to the right of the respondent to file an election petition be spelled out from the bunch of rules applicable to "eleclion disputes" under Chapter VII of the Sind Local Councils (Election) Rules, 1979. This contention has no force and is rejected.
24. ' In this connection reference may be made to the views expressed in text books and a few decided cases :- Shaukat Mahmood in his book "Election Laws for 1970" at page 24 under the note "Election petition and appeal" writes :- "Availing of the right of appeal under section 14(5) of the Act is no in the least a condition precedent for the right of making an election petition. The right of appeal provided by section 14(5) is quite independent of the right of making an election petition and a candidate may avail himself of both these remedies. The right of appeal is availed of before an election and the right to move an election petition can be availed of after the election. Hence a person cannot be deprived of his right to file an election petition under section 58 of the Act merely because he had failed to avail himself of the right of appeal under section 14(5) of this Ordinance."
25. ' The learned author at page 23 of the same book has commented a follows :- "In view of section 65 an enquiry before the Election Tribunal must embrace all matters as to qualification and disqualification mentioned in section 14. It cannot be limited to the particular ground of disqualification which was taken before the Returning Officer.
26. ' The Election Tribunal has jurisdiction to decide all questions which can be raised under that section. The fact that a particular ground which could have been raised was not, in fact raised before the Returning Officer does not put an end to his jurisdiction to decide it and the question which he could have decided if it had been raised, could be decided by the Tribunal, when raised.
27. ' The proceeding of an election petition is not an appeal from the order of the Returning Officer rejecting the nomination papers of a candidate, nor is the controversy or investigation before the Election Tribunal confined to the pleas and the evidence before the Returning Officer."
28. ' Indian Authors Veda Vyasa Premnath Chadha in their book "The Law of Elections and Election Petitions", 1957 Edn. After review of election cases decided by Indian Tribunal has commented as follows at pages 100-N and 100-0 :- "It is open to a party to urge before the Election Tribunal new grounds for supporting the rejection of a nomination, which were not raised before or considered by, the Returning Officer."
29. ' The learned author continuing the discussion writes further at page 100-0 :- "The validity of the nomination paper of a candidate is a matter which concerns not merely the petitioner but also other candidates as well, as other members of the electorate who are interested in exercising or abstaining from exercising their right of franchise. It is, therefore, open to a party to challenge the validity of a nomination before the Tribunal even on grounds not taken before the Returning Office or to challenge the validity even where no objection was raised at the time of the nomination.
30. ' The right of objection to the validity of a nomination paper cannot be waived, nor is any estoppel created against a candidate by his not raising any objection at the time of nomination to the act of the Returning Officer."
31. ' Then comes the important passage which in our opinion is applicable with full force to the case on hand because the provisions of the Indian law are similar to the provisions of Representative of the People Act, 1977 :- "As the decision of a Returning Officer accepting or rejecting a nomination paper is only a summary one, the Tribunal has power to allow the parties to adduce fresh evidence and urge new grounds and to come to a decision on the legality of the order of rejection or acceptance upon all the materials placed before it. The view that the order of the Returning Officer should not be set aside unless it is perverse is incorrect."
32. ' More instructive discussion of the nature of proceedings before the Returning Officer is to be found in the book "Law of Elections and Election Petitions" Volume I, 3rd. Edition, 1962 by H. S. Doabia. At page 90 of the book the learned author under caption "Jurisdiction of the Returning Officer during Scrutiny" has said :- "The Returning Officer is both a ministerial and judicial officer. His decision is not final. He can take an objection to the nomination I paper, although it was not urged by any candidate."
1. PLD 1967 Pesh. 41 : ' In this case the nomination paper of a candidate was rejected by the Returning Officer at the time of the scrutiny, on the ground that the age of the candidate as shown in the electoral-Roll was 21 years and as such he was not qualified to be elected. The candidate filed an election petition against this decision without availing the remedy of an appeal against the decision of the Returning Officer under section 23(5) of the Electoral College Act (Act IV of 1964). Section 23 is substantially the same as rule 19 of the Sind Local Councils (Electoral) Rules, 1979. The Election Tribunal rejected the petition, "as he thought that it would not be advisable to interfere with the order of rejection of nomination paper in that it was open to the petitioner to prefer an appeal against the order of the Returning Officer." Against the above decision petitioner filed a writ petition.
33. Questioning the order of the Election Tribunal, a division bench of the Peshawar High Court held :- "9. It will be plain even from a cursory reading of the language of section 58 that availing of the right of appeal under section 23(5) of the Act is not in the least a condition precedent for the right of making election petition. The right of appeal provided by section 23(5) is quite independent of the right of making election petition and a candidate may avail himself of both these remedies.
34. The right of appeal is availed before election and the right to move election petition can be availed after the election. Judged in the light of the above discussion, the interpretation placed by the Tribunal that the failure of the petitioner to avail himself of the right of appeal would forfeit his right to move election petition is wholly untenable and the rejection of the petition on that ground clearly amounts to a refusal to entertain election petition. We accordingly assent the writ petition and remit the case to the ' Election Tribunal for decision of the election petition according to law after taking such evidence as the parties may wish to produce."
2. AIR 1964 Punj.
35. 231.
36. The scope of election petition came to be examined by a Division Bench of the Punjab High Court in India. As the provision relating to scrutiny and Election Petition are substantially the same as in the present case, it would not be out of place to reproduce the opinion of the learned Judges of that Court. At page 234 of the report one of the member of the Division Bench observed "Section 36 of the Act of 1951 unequivocally lays down that the Returning Officer has only to hold such summary enquiry as he thinks necessary. The statute does not lay down anywhere that the Election Tribunal trying the issue relating to improper rejection of a nomination paper in an election petition is bound to confine itself only to the material available to the Returning Officer at the time of scrutiny. Keeping in view the paramount importance of the election of the representatives of the people to our Legislatures the right to seek election could hardly have been intended by the Parliament to depend on summary enquiry of the Returning Officer as contemplated by section 36.
37. ' The matter luckily is not res integra'. I need only refer to a recent decision of the Supreme Court in N. T. Veluswa mi Thevar v. Raja Nainar AIR 1959 SC 422, which in clearest possible terms lays down that the right given to a party to challenge by an election petition the propriety of an order of a Returning Officer rejecting a nomination paper would be illusory if the Tribunal were to base its decision only on the restricted material placed before the Returning Officer at the time of scrutiny ; the election petition, according to the ratio of this decision, is not in the nature of an appeal to the Tribunal from the decision of the Returning Officer but is an original proceeding in which the parties are entitled to have the issues arising therein fully tried by adducing whatever evidence they want, subject only to such limitations as are found in the statute. A contention similar to the one now raised by the appellant was expressly negatived by the Supreme Court. I have therefore, no hesitation in holding that the Tribunal was well within its power in considering the question of the propriety and legality of the order of rejection of Gajju Ram's nomination papers on the evidence produced in the course of the trial of election petition."
3. AIR 1959 SC 422.
38. ' It would be instructive to quote few passages from the above noted case to have an understanding of the two stages at which the enquiry at the time of scrutiny by the Returning Officer and later by the Election Tribunal in an election petition is held. At page 426, Column II it was observed :- "The jurisdiction which a Tribunal exercises in hearing an election petition even when it raises a question under section 100(1)(c) is not in the nature of an appeal against the decision of the Returning Officer. An election petition is an original proceeding instituted by the presentation of a petition under section 81 of the Act. The respondents have a right to file written statements by way of reply to it ; issues have to be framed, and subject to the provisions of the Act, the provisions of the Civil Procedure Code regulate the trial of the petition. All the parties have the right to adduce the evidence and that is of the essence of an original proceeding as contrasted with a proceeding by way of appeal. That being the character of the proceedings, the rule applicable is that which governs the trial of all original proceedings ; that is, it is open to a party to put forward all grounds in support of or negation of the claim, subject only to such limitations as may be found in the Act.The enquiry which a Returning Officer has to make under section 36 is summary in character.
39. He may make 'such summary enquiry, if any, as he thinks necessary', he can act suo motu. Such being the nature of the enquiry, the right which is given to a party under section 100(1)(c) and section 100(1)(d)(i) to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory, if the Tribunal is to base its decision only on the materials placed before the Returning Officer."
4. AIR 1965 Pb.
40. 431.
41. ' There is another case from Indian jurisdiction. It is reported as Gurbakhshish Singh v. Ranjit Singh (1). In this case nomination paper of the appellant before the High Court was rejected by the Returning Officer at the scrutiny stage on the ground that he was a Government contractor and as such disqualified to contest the election. An election petition was filed by a voter challenging the validity of election of the returned candidate. The Election Tribunal after hearing the parties came to the conclusion that there was no evidence to the prove that the candidate concerned suffered the disqualificat on found by Returning Officer. The rejection of nomination paper was held to be improper.
42. ' An appeal was filed against the decision of the Tribunal and it was argued before the Division Bench of the High Court that once the nomination paper was rejected by the Returning Officer, this decision could not be reversed by the Tribunal unless it was conclusively proved that the decision of Returning Officer was factually wrong and the petitioner had never suffered the disqualification.
43. The Division Bench of the Punjab High Court disposed of the contention in the following passage :- "(4) I am wholly unable to accede to this contention. It is settled beyond the pale of controversy that the proceeding in an election petition is not an appeal from the order of the Returning Officer rejecting nomination papers of a candidate; nor is the controversy or investigation before the Election Tribunal confined to the pleas and the evidence before the Returning Officer. As observed by the Supreme Court in N. T. Veluswami Thevar v. G. Raja Nainar, AIR 1959 SC 422, the enquiry which a Returning Officer has to make under section 36 of the Representation of the People Act, 1951, is summary in character and he may make 'such summary enquiry, if any, as he thinks necessary' ; he can even act suo motu. Such being the nature of the enquiry, the right which is given to a party under section 100 (1)(c) and section 100(1)(d)(i) to challenge the propriety of the order of rejection of a nomination paper would become illusory, if the
(1) AIR 1965 Pb. 431 Election Tribunal is to base its decision only on the material placed before the Returning Officer.
44. This decision has been followed in this Court in Bansi Rain Naru Ram v. Jit Ram Gehru Ram, AIR 1964 Punj. 231 and more recently in Printam Singh v. S. Ranjit Singh, F. A.
0. No, I. E. Of 1964, dated 14-7-1964 ; AIR 1965 Pb.
45. 39.
46. ' Learned counsel for the petitioner has heavily relied on a case decided by a Division Bench of this Court and reported as 1982 CLC 291. The learned counsel feels that this case supports his contention that decision of the Returning Officer or the appellate authority at the scrutiny stage is final and the same issue cannot be raised for determination before the Election Tribunal. There seems to be a confusion Of thought in the mind of the learned counsel when he employs the reasonings of that case for purpose of the case on hand. That decision was rendered by the D. B. In totally different context. The provision examined in that case was section 37-A of the Sind Local Councils (Election) Rules, 1979. It was held in that case that this provision is comprehensive and self-contained in all respects. It deals with the disqualification and prescribes a special forum for investigation of this particular disqualification. Not only this, but a penalty is provided if the candidate violates the bar contained in this provision. On a close reading of section 37-A, it would be clear that it disallows contesting candidates from- convassing support in the name of a political party or projecting their image at the polls by wearing a mantle of a political party. The scheme of things underlying this special provision is to discourage party politics and severe the links of the candidates from the political parties for the purposes of and at the time of election. The convassing for getting votes is an activity which reaches at peak during the campaign and continues till the poll is over. To suppress the mischief before it defeats the object of legislation, immediate cognizance is taken and the "offender" is called up to face an enquiry forthwith or after election, as the case may be and as a result the candidate be disqualified for a period of four years. Subsections (2) and (3) of section 37-A postulate "(2) If the Election Authority after such inquiry as it deems fit is satisfied that any person is acting or has been elected in contravention of the provisions of subsection (1), it shall order that such person shall cease to be a candidate for such election or, as the case may be to be member, and shall stand disqualified for being elected as a member for a period of four years : ' Provided that no such order shall be passed without affording the person concerned, an opportunity of being heard.
(3) The Election Authority may require any Judicial Officer of the rank of a District Judge or Additional District Judge to conduct an enquiry under subsection (2) and pass such orders as he deems fit."
47. ' The facts of that case are distinguishable from the present case. In our view it is debatable whether in spite of the forum provided in subsection (3) of section 37-A, a contesting candidate would be debarred from raising this issue in an election petition and whether the Election Tribunal would be precluded from entertaining this grievance for adjudication if urged by a rival candidate.
48. As stated above this point does not arise in the present case. We are not called upon to say anything further on this question.
49. The upshot of the above discussion is that in our opinion the contention of the learned counsel that the decision of the Returning Officer at the time of scrutiny was final and the Tribunal was not competent and had no jurisdiction to independently examine the disqualifications of the petitioner in the Election Petition is not well-founded and is misconceived. The order passed by the Tribunal cannot, therefore, be called to have been passed without lawful authority.
50. ' The Election Tribunal has found that the petitioner had remained President of Pakistan Peoples Party from Halqa No, 1 Salar Goth and as such was disqualified from contesting the election. This finding is based on appraisal of evidence produced before the Election Tribunal. We have neither the material nor the mandate to re-valuate or re-appraise the quality and quantity of the evidence on which the finding is based. Nor indeed has the learned counsel been able to show that this finding is without any evidence or is the result of misreading of the evidence or is in any way illegal.
51. We, therefore, cannot reverse or reject this finding.
52. ' The only question that remains to be settled is what should be the final order. Admittedly it is not a case of rejection of a nomination paper in which someone has been prevented from participating in the electoral contest, nor a case in which any other candidate, except the petitioner and respondent, had also participated. This is a case of a direct and clean fight between petitioner and respondent. Now after the disqualification and consequent unseating of the petitioner, his votes have been released. But as there was no third contender for the seat, there can be no question of these votes being shared between the respondent and that third contender. The respondent alone remains in the field and he has secured votes next to the petitioner.
53. ' On the above considerations I was inclined not to interfere with the findings of the Election Tribunal, but after reading the opinion of my brother Mr. Justice Naimuddin which is supported by legal precedents, I would not insist that the decision to declare the respondent No, 2 as successful which was inspired more than anything else by anxiety to avoid a reelection and create another shake up in the constituency, should be adhered to. I must say that the reasonings in the precedents apart fresh election is also justifiable on the concept that the opinion of the electorates, who are most important party in an election process, should always be honoured and must be given preference over all other considerations. If the opinion expressed by them at the time of the first poll has been negatived on account of legal technicalities, there is no harm if they are given another opportunity to have a chance of exercising their franchise in the changed situation. In the circumstances I would concur with the view expressed in the opinion of my brother on the Bench and would modify the order of the Election Tribunal to the extent that the constituency would be declared vacant to be filled in by the Election Authority according to law.
54. ' NAIMUDDIN, J.-I have had the advantage of reading the judgment proposed to be delivered by my learned brother. I agree that the question of disqualification of a candidate could be decided by the Election Tribunal notwithstanding the finality attached to it under rule 19 of the Sind Local Councils (Election) Rules, 1979, and in a very recent judgment a Division Bench of Baluchistan High Court consisting of Ajmal Mian, Acting Chief Justice and Mir Hazar Khan Khoso, J., in the case of Sardar Khan v. Haji Abdul Ghaffar and 3 others (1), has taken the same
(1) PLD 1985 Quetta 167 view as taken by my learned brother and I may quote the relevant observations from the judgment :- "The object of the above provision seems to be that at the stage of filing of the nomination paper, decision given on the question of disqualification of a candidate by the authority provided under rule 18 would not be questioned in any Court. However, this does not lead to infer that this question cannot be reagitated before a forum provided by the 'Ordinance' read with the 'Rules', i,e,, the Election Tribunal. The object of setting up an Election Tribunal is to provide a forum to the parties concerned other than a Court of law to agitate on the questions which were decided by the Returning Officer or by the Appellate Authority at the stage of the election. It was vehemently urged by Mr. Aslam Chishti, learned counsel for the respondents Nos. 1 and 2 that the word 'Court' employee in the above subsection (2) of section 21 of the 'Ordinance' does not cover an Election Tribunal provided for under the 'Ordinance' read with the 'Rules'. We are inclined to subscribe to the submission that the words any Court 'used in subsection (2) of section 21 of the 'Ordinance' would not cover an Election Tribunal provided for in the 'Ordinance' read with `Rules'."
55. 2.However, in my opinion, respondent 2 could not have been declared elected in place of the petitioner. No doubt under rule 67 of the Rules the Tribunal after conclusion of an election petition dismiss the same or declare the election of the returning candidate to be void and the petitioner or any other candidate to have been duly elected or declare the election as a whole to be void. I may herein below quote the relevant rule.
56. (1).-Every election petition shall contain-
(a) a precise statement of the material facts on which the petitioner relies ;
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of such practice or act ; and
(c) the relief claimed by the petitioner.
57. (2).-A petitioner may claim as relief any of the following declaration namely-
(a) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected ; or
(b) that the election as a whole is void.
58. (3).-Every election petition and every schedule or annexe to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for verification of pleadings.
59. 3.However, the question is on what principle respondent No, 2 could have been declared successful It is well-settled that the votes given for a candidate who is disqualified could be deemed to have been cast away where the disqualification was so notorious that the electors could be presumed to be aware of it. In the present case no objection was raised at the nomination stage by the respondent 2 and the nomination paper of the petitioner was accepted against which no appeal was filed though now provided in section 19 of the Sind Local Councils (Election) Rules, 1979.
60. ' If the petitioner was disqualified and the disqualification was notorious then respondent 2 would have certainly raised objection to that effect. He had admittedly secured majority of votes. Now, if he has been found to be disqualified the choice of minority votes could not be imposed on the majority votes unless it was proved that the disqualification was so notorious that it was known to the voters who vote for the petitioner and consequently they threw away their votes. Now, if the disqualification of the petitioner was not known to respondent 2 then how it could be said that it was known to other voters. No evidence appears to have been led to that effect by respondent 2.
61. There is no discussion in the impugned order on this point. In my opinion the majority voters could not be deprived of their right to choose at fresh election from amongst the qualified candidates.
62. On the facts and in circumstances of this case in my view it was incumbent upon the Tribunal to have declared the election as a whole void so that fresh election could be held.
4. In support of my view I may here refer to the principles stated in paragraph 549, Volume XIV, 3rd Edn. Of Halsbury's Laws of England, which read as follows :-- "549.. Votes given to a disqualified candidate.-Votes given for a candidate who is disqualified may in certain circumstances be regarded as not given at all or thrown away and for so deciding a scrutiny is not necessary.- The disqualification must be founded on some positive and definite fact existing and established at the time of the poll so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being on alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may b unseated by reason of his disqualification the votes given to him will not be thrown away so as to give the seat to the candidate with the next highest number of votes. For the votes given for a candidate to be thrown away the voters must before voting either have had or be deemed to have had notice of the facts creating the candidates disqualification. It is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification. Votes given without such notice are good.
63. If after deducting the votes given after such notice from the total number of votes given for the disqualified candidate he remains in a majority, the majority candidate cannot be seated and there must be a fresh election."
5. The above stated principles were quoted with approval by the Supreme Court of Pakistan in the case of Rashid Ahmed Rahmani v. Mirza Barkat All and others (1). In the case the name of Barkat Ali was included in the (1) PLD 1968 SC 301 final electoral roll in violation of sub-rule (3) of rule 22 of the Electoral College Rules, 1964. The Supreme Court while upholding the order of the Election Tribunal modified it and declared the election as a whole void and directed that there should be a fresh election to the Electoral College from the concerned ward. I may here quote the relevant observation here :- "In the instant case the voters could have had no notice of the fact that inclusion of Barkat Ali's name in the final electoral roll was in violation of sub-rule (3) of rule 22. Hence, they cannot be disfranchised for no fault on their part. Votes given by them without notice of the above disqualification ought to be treated as good votes. As Barkat Ali had majority votes, the minority candidate cannot be declared elected.
64. ' For the reasons stated above, we must hold that by reason of failure of the Registration Officer to act in accordance with the provisions of the Rules, the result of the election has been materially affected and hence the election should be declared as a whole void."
65. ' Reference was made with approval to the judgment of Lahore High Court in the case of Sanaullah v. Election Tribunal Gujrat and others (1), wherein on a similar question the Court had ordered fresh election and the Supreme Court observed that the Court had rightly ordered fresh election.
6. I am also fortified in my view by the decision of the Supreme Court in Syed Saeed Hassan v. Pyar Ali and 7 others (2), wherein at page 35 of the report it was observed by Muhammad Afzal Cheema, J., who wrote the opinion of the Court, as follows :- "The well-known principle in substance is that votes given for a candidate who is disqualified could be deemed to have been cast away only where the disqualification was so notorious that the electors could be presumed to be aware of it. It must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the reasonable inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien infant or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. Lf, however, the disqualification is not notorious and depends on legal arguments or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes. "
7. Reference may also be made to Cosling v. Valey and another (3) wherein it was observed by Lord Denman, C. J., as follows :- "Whether the majority of electors votes for a disqualified person in ignorance of the fact of disqualification, the election may be void or voidable, for in the later case, may be capable of being made good, according to the nature of the disqulification ; the objection
(I) PLD 1966 Lab. 97 (2) PLD 1976 SC 6 (3) (1847) 7 Q B 406 may require ulterior proceedings to be taken before competent Tribunal, in order to be made available ; or it may be such as t place the elected candidate on the same footing as if he never had existed and the votes for him were a nullity. But in no such case are the electors who vote for him deprived of their votes if the fact becomes known and is declared while the election, is still in complete. They may instantly proceed to another nomination, and vote for another candidate. If it be disclosed afterwards, the part elected may be ousted and the election declared void ; but the candidate in the minority will not be deemed ipso facto elected. Bu where an elector before voting received due notice that a particular candidate is disqualified, and yet will do nothing but tender his vote for him, he must be taken voluntarily to abstain from exercising his franchise, and therefore, however, strongly he may in fact dissent and in however strong terms he may disclosed his dissent h must be taken in law to assent to the election of the opposing an qualified candidate, for he will not take the only course by which it can be resisted, that is the helping to the election of some other person. He is present as an elector ; .His presence counts as such to make-up the requisite number of elections where a certain number is necessary but he attends only as an elector to perform the duty which is cast on him by the franchise, he enjoys as elector ; he can speak only in a particular language ; can do only certain acts, an other language means nothing any other act is merely null. His duty is to assist in making an election. If he dissents from the choice of A, who is qualified he must say so by voting for some other also qualified he has no right to employ his franchise merely in preventing an election and so defeating the object for which he is empowered and bound to attend. And this is a wise and just rule in th law. It is necessary that an election should be duly made and at th lawful time ; the electoral meeting is held for that purpose only and but for this rule the interest of the public and the purpose o the meeting might both be defeated by the perverseness or the corruption of election of electors who may seek some unfair advantage by postponement. If then the elector will not oppose the election of A in the only legal way he throws away his vote by directing it where it has no legal force ; and so doing be voluntarily leaves unopposed i. e. Assents to the voices of other electors. Where the disqualification depends upon a fact which may be unknown to the elector, he is entitled to notice ; for without that the inference of assent could not be fairly drawn nor would the consequences as to the vote be just.
66. But if the disqualification be of a sort whereof notice is to be presumed, none need expressly be given no one can doubt that. If an elector would nominate and vote only for a woman to fill the office of Mayor or burgess in Parliament his vote would be thrown away ; there the fact would be notorious and every man would be presumed to know that law upon that fact."
67. ' The above passage was approved by the Supreme Court in Lal Muhammad v. Muhammad Usman and others (1).
8. Reference may also be made to the case of Muhammad Ashraf v. Muhammad Ajaib (2) wherein the successful candidate was found to be
(1) 1975 SCMR 409 (2) PLD 1980 Lah. 311 disqualified being a depot-holder and owner of land exceeding 40 Kanals and wherein it was held that this fact by its very nature not being matter of notorious could not have been assumed to have been within the knowledge of the voters unless established. Accordingly, the petitioner who had secured second highest votes and was declared elected by the Tribunal, was found by the High Court not entitled to be declared elected. The same course was followed by a Division Bench of this Court in Abdul Jabbar Siddiqui v. Returning Officer Hyderabad Municipal Corporation City and IIIrd Additional Sessions Judge, Hyderabad and 4 others (1). In this case the petitioner had secured highest votes but the Returning Officer refused to treat him as a candidate on the ground that no election symbol was allocated to him and declared the candidate who had obtained the second highest votes as successful. A constitutional petition was filed by the petitioner and the same was allowed and it was held that the above disqualification was not known to voters and, therefore, fresh elections were the appropriate course. I may here quote the relevant passage which appears at page 347 of the report and reads as follows :- "We are of the view that technically symbol was not allocated to the petitioner but it was made known to the electors of Unit No, 14 before they cast their votes that the symbol 'Shama' was duly allocated to the petitioner and it was claimed by the respondent No, 2 that the symbol was not allocated to the petitioner (a claim which the petitioner disputed) and that the respondent No, 1 refused to treat him as a candidate.
68. ' Accordingly, applying the decision of the Honourable Supreme Court in the cases of Rashid Ahmad Rehmani v. Mirza Barkat Ali and 2 others PLD 1968 SC 301 and Lal Muhammad v.
69. Muhammad Usman and others 1975 SCMR 409 by which we are bound, and having reached the decision that it appears that technically no symbol was allocated to the petitioner. In the instant ease the voters cannot be disfrancnised for no fault on their part. Votes were given by them without notice about technically non-allocation of symbol to the petitioner. As the petitioner had majority votes ; respondent No, 2 who had secured less votes should not have been declared elected.
70. ' For the reasons stated above we declare the election of the above unit as being without lawful authority and of no legal effect. We also order fresh election."
9. In this connection reference may also be made to the case of Sardar Khan (supra). In this case the petitioner entered into an agreement of lease to collect octroi for the period from 1-7-1983 to 30-6-1984, and therefore, was disqualified. It was held in that case that this was a fact of the nature which could not have been known to the voters or which could not have acquired notoriety as to attract doctrine of 'thrown away votes' and accordingly, it was held that the Election Tribunal should not have declared the other candidate as elected and it should have ordered fresh election.
10. For the aforesaid reasons I would declare that the order impugned in this Constitutional petition to the extent that it declares respondent No, 2 as successful is without lawful authority and is, therefore, of no legal effect and
(1) PLD 1985 Kar. 339 direct respondent 1 to declare the seat vacant to be filled in by the Election Authority in accordance with law.