1. FAZAL ELAHI KHAN, J-Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, Abdul Manan son of Hashim Khan resident of Landi Daudzai has called in question the judgment and order of Election Tribunal (Local Councils), Peshawar respondent No.l herein dated 16-10-1988, whereby he accepted the Election Petition against the election of the petitioner to the local Council and instead declared Muhammad Munir respondent No.2 elected the said local council. The petitioner enlisted as voter in Ward No.3 Daudzai contested election to the Local Council i.e. Union Council Mian Gojar. Respondent No.2 was also a contesting candidate for the said election. In the election held on 30---11-1987 petitioner was declared successful having secured the maximum number of votes by securing 196 votes as compared to 195 votes polled in favour of respondent 14o.2. An Election Tribunal was appointed under section 39 of the N.-W.F.P Local Government Ordinance, 1979 read with Rule 42 of the N.-W.F.P. Local Council Rules, 1979 in which the election of the petitioner was questioned mainly on the ground that certain abnormal had cast their votes and several others, enlisted in two wards. The election petition was contested by the petitioner herein by filing his written statement where after the parties led their evidence.
2. The learned Tribunal after considering the evidence of the parties found that three voters namely Ali Rehman, Mr. Naved Rehman and Mr. Izharullah were minors at the time of the polling and they being related to the petitioner herein might have cast their votes in his favour, and on that assumption held that by deducting the three votes, respondent No.2 herein would be having maximum number of valid votes as compared to that of the petitioner. Accordingly he accepted the election petition and declared the election of the petitioner void. It was further held that for the reason stated above the election was induced by corrupt and illegal practice. Accordingly Mr. Muhammad Munir was declared elected from Ward No.3 referred to above by having secured 195 valid votes as against 194 that of the petitioner herein.
2. It was contended by the learned counsel for the petitioner that the order of the learned Tribunal is based on no evidence and it was based on presumption, surmises and conjectures. It was further contended that the learned Tribunal committed illegality and material irregularity in ignoring the pleadings of the parties and the questions raised therein and based his order on extraneous matter. The petitioner had neither alleged that minors polled their votes nor was it his case that those votes were polled in favour of the petitioner. The learned Tribunal neither framed an issue nor recorded any evidence that the minors did cast their votes and that too in favour of the petitioner.
3. On the other hand, the learned counsel for the respondent herein argued that the Election Tribunal having found that the result was manipulated by corrupt and illegal practices, which is a question of fact determined under section 39-II of the N.-W.F.P. (Local Council Election) Rules, 1974, no exception could be taken to it. He further argued that it has been proved on the file that the three voters mentioned above did cast their votes and the inference drawn from the evidence that they being related to the petitioner herein cast these votes in his favour is unquestionable in writ jurisdiction.
4. 3After hearing the learned counsel for the parties at length and going I through the evidence on the record we are of the view that the learned Election Tribunal acted illegally in the exercise of its jurisdiction and that his order --without lawful authority. Sub-rules (5) and (6) of Rule 44 of the N.- W.F.P. (Local Council Election) Rules, 1979 relevant in the context of the present dispute read as follows:- "(5)An Election Petition shall set forth clearly the grounds on which the petition is filed and relief sought.
5. (6)The petitioner may claim any of the following declarations:- (a)that the election of the returned candidate is void; or (b)that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or
(c) That the election as a whole is void.
6. Rule 44 (b) pertaining to the contents of petition further provides as under:-
(i) Every election petition shall contain:-
(a) the precise statement of material evidence on which the petitioner relies;
(b) full particulars of any corrupt or illegal act, practice, or other illegal act alleged to have been committed, including as full statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and date and place of the commission of such practice or act------. Rule 44(d) also provides that every election petition shall be tried as nearly as may be, in accordance with the procedure for the trial of the suits under the Code of Civil Procedure but subject to the provisions of the Ordinance and these rules. The corrupt and illegal practice specifically attributed to the petitioner as given in para.3 of the Election Petition, in substance, is that respondent No.l has polled Vote No.785 of an insane voter in his favour and that of Jehangir Khan Vote No.790; that respondent No.l polled several votes, mentioned therein, of the voters enlisted as voters in Ward Landi Daudzai as well as in Ward Mian Gojar and polled their votes illegally in both these wards. It was also stated that Vote No.500 of Ghulam Rasul was polled though the voter was admitted in hospital at that time. These were the particulars given in the petition of corrupt practice on which basis a case was set up that if these votes polled in favour of respondent No.l, are excluded the petitioner therein would be having maximum number of votes as compared to elected candidate. The allegations made in the election petition were denied by the contesting respondent m his written statement. The parties led their evidence before the Tribunal.
4. The petitioner appeared as his own witness and confined his evidence to the fact that Azharullah son of Abdul Majid. Naved son of Abdur Rehman and Rehmanullah son of Ahmad were minors but they cast their votes in favour of respondent No.l and on that score prayed that. The election of respondent No.l be declared null and void. In cross-examination he was confronted with the contents of his election petition in which no such assertion was made though he admitted that the election petition was drafted on his instructions by his counsel. He further admitted that he did not raise any objection to the polling of the said votes in writing. Salahuddin Presiding Officer and Mumtaz Ali Head Master Government High School Mian Gojar appeared on his behalf of whom the statement of the former is of no help to the petitioner in the context of the present dispute while that of the latter is relevant to the extent that he produced a certificate showing the dates of birth of the aforementioned three voters recorded in the school record. No evidence whatsoever was led in support of the allegation made in the election petition. Even it was not proved that the three voters, stated to be minors, did poll their votes what to say of these being polled in favour of the respondent. So much so that even in his own statement no reference was made that voters Nos.785 and 790 were insane person and that several persons (mentioned in sub-para (3) of paras.3 of the election petition) were enlisted voters in Ward Landi Daudzai and Ward Mian Gojar and that they exercised their rights to vote in both wards. It is astonishing where from the learned Tribunal gathered that the three minors cast their votes in favour of the respondent. When a Tribunal is entrusted with the determination of a dispute in its judicial or quasi-judicial capacity it is required of it to apply its judicial mind to the merits of the case and base his decision on legal evidence and sound judicial principles. Presumption and conjectures are avoided especially when the election of an elected candidate is challenged on the ground of illegal and corrupt practices.
7. The allegation being of penal nature required strict positive proof. The benefit of any doubt in such cases must go to the elected candidate and not to the defeated one. This is the principle laid down by the Supreme Court of Pakistan in Khan Muhammad Yousuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160. Their Lordships observed that "the law of election requires strict proof of the disqualification of a candidate as a corrupt practice and a finding with regard to disqualification must be based on positive evidence and not inferentially on mere surmises."
8. The learned Tribunal apart from ignoring the pleadings of the parties and the material facts stated therein illegally allowed the petitioner to lead evidence on a question of fact not raised in the petition. Even otherwise if such evidence has been recorded the learned Tribunal should have confined its finding to the facts alleged and the case set up in the pleadings. Such being the case we have no doubt m our mind that the learned Tribunal acted illegally and with material irregularity in the conduct of the election petition which rendered the impugned order without lawful authority. We would, therefore, allow the writ petition and declare the order of the Election Tribunal illegal, without lawful authority and of no legal effect. Consequently the petitioner's declaration as elected candidate to Ward No.3 stands restored. In the circumstances of the case the parties are left to bear their own costs.