SHAFIUR RAHMAN, J.-- The petitioner, who was unsuccessful in contesting the election to Municipal Corporation, Gujranwala in September, 1983, seeks leave to appeal against the judgment of the Lahore High Court, dated 6-7-1987 whereby the judgment of the Election Tribunal declaring him to be elected, was declared to be without lawful authority and the matter was remanded to the Election Tribunal for re-deciding the same in accordance with law.
2. At the election, respondent No. 1 polled 1245 votes and the petitioner polled 849 votes. The other candidates polling lesser votes, are not in contest now. The petitioner filed an election petition challenging the election of respondent No.1 on various grounds, but then these two made a statement before the Election Tribunal which was recorded and the Tribunal passed an order in terms thereof on 25-7-1985. The relevart portion of it is as hereunder:- "Today I also recorded the statements of Muhammad Iqbal who waived all the other objections except the counting of the votes. Muhammad Abbas respondent who is the returned candidate has also conceded the counting only. The other three respondents have also no objection to the counting. So in view of the statements of the parties, the present petition is allowed only to the extent of fresh counting. The record on the aspect be summoned."
On 3-11-1986 when the record was produced for recounting the Election Tribunal itself noted with regard to polling station No. 91 of Kotli Rustam as hereunder:- "The other envelope contains invalid ballot-papers and the final contains the ballot-papers about polling station No. 91 of Kotli Rustam. These envelopes have not been found in a separate bag. At this stage Abbas respondent has also appeared in person. The seals of envelopes containing spoiled ballot-papers papers have been found broken. Seals about the envelope containing the ballot-papers of Roshan Din three in number have been found intact. Seal of envelope containing ballot-papers of Ahmad Din has also been found partly broken. Seals containing ballot-papers of Muhammad Iqbal have been found broken and envelope is also found opened. Seals of envelope containing ballot-paper of Muhammad Abbas have been found broken and torn on both the sides.
The envelope of Muhammad Iqbal mentions the total number of packets containing the ballot- papers as 136. The envelope containing the ballot-papers of Muhammad Abbas mentions the total number of packets contained as 440. "
According to the official record prepared at the time of initial counting and duly signed, Muhammad Abbas, respondent No. 1 had received 440 votes and the petitioner had received 136 votes. In the recount that followed before the Election Tribunal, the position was found to be that 200 votes were in favour of respondent No. 1 and 376 votes were in favour of the petitioner thereby providing decisive lead to the petitioner.
3. The objections taken by respondent No. 1 to the tampering of the record and its perversity and his request to produce witnesses to establish it was declined by the Election Tribunal and it proceeded to enforce the compromise literally and gave effect to the recount and declared the petitioner to be elected instead of respondent, No.1,
4. The High Court held as follows:- "However, subsequently on being discovered that the election, record had been undisputedly tampered with, by whomsoever' it was done, the parties when arriving at the agreement in oblivion of this situation, acted under a common mistake of fact. It was, therefore, absolutely unnecessary to hold an idle ceremony of recounting on the basis of the record whose authenticity itself was very much in dispute. All exercise of jurisdiction and adjudications are meant to dispense justice between the parties on discovery of truth. The learned Additional District Judge fell into a serious legal error in pronouncing the judgment based on the record which was tampered with and shorn of authenticity, it is true that normally parties ought not to be allowed to resile from their commitments or compromise or agreement of that nature. In the facts of the present case once it had been established that the parties had agreed for recounting relying on official record carrying the presumption of regularity of official acts which stood denuded of that presumption as a result of tampering of seals and rendered unreliable, it was open for the parties to object and it was the duty of the Election Tribunal to entertain this objection and duly apply its conscious mind to changed circumstances and its consequences."
The High Court with these observations concluded that the Election Tribunal fell into a patent error of law in ignoring these vital aspects and setting aside its order, the proceedings were remanded for trying the election petition in accordance with law.
5. Mr. Muhammad Anwar Bhinder, Advocate, the learned counsel for the petitioner, contended before us that the parties had consented to a particular mode of disposal of the election petition and the Election Tribunal had sanctified it. In that background the Election Tribunal was justified in literally enforcing that compromise and not allowing the party to approbate and reprobate to suit its own convenience and achieve the end in sight. The other ground taken up is that the Election Tribunal had the exclusive jurisdiction to decide this question and in the absence of any jurisdictional defect, it should not have interfered in the finding of the Tribunal. It has also been contended that the High Court has dealt with the whole matter as a Court of Appeal. Finally, it has been said that the statement of Siddiq Javed has been misread and there was no evidence of tampering with the record.
6. The observation made by the Election Tribunal and reproduced above, itself shows that the important piece of evidence namely the packets containing the ballot-papers had been tampered with. The nature of tampering as noted by the Tribunal was not accidental or inadvertent but deliberate and purposive. It left no manner of doubt about the nature of tampering. The persons responsible for it and its effect on the proceedings should have been located and determined as was required by the respondent by calling in witnesses or the compromise should have been taken to be incapable of being implemented in substance for the purposes of adjudication. The High Court has brought the parties to the position which existed immediately before the compromise and that appears to be eminently a just and proper order because it may be somewhat arduous for the Election Tribunal itself to go into this question as to who committed tampering and to what extent. A judicial or quasi-judicial determination, to inspire confidence and to command respect must be based on record or material beyond suspicion and reproach.
7. The petition has no merit and leave to appeal is refused.