' SAAD SAOOD JAN, J.--In the general elections to the National Assembly held on 25-2-1985 the appellant as well as respondents Nos.1 to 6 were candidates from constituency No,3, Rawalpindi City. Respondent No,1 received the highest number of votes and was declared elected. The appellant filed an election petition before the Chief Election Commissioner which was in due course entrusted to the Election Tribunal, comprising a Judge of the Lahore High Court, for trial. The election petition was seriously contested by only respondent No,1. Respondent No,5 died during the pendency of the petition. The other respondents, that is, respondents Nos. 2 to '4 and 6, either declined to take part in the proceedings or just absented themselves. However that may be, the learned Tribunal framed as many as 4 issues on the pleadings of the parties. One of the issues was to the effect whether the contesting respondents were involved in corrupt and illegal practices. The appellant after examining 15 witnesses concluded his evidence on 26-10-1987. The learned Tribunal then adjourned the proceedings for recording the evidence of respondent No,1. On 29-5-1988, while the proceedings were pending and the statement of respondent No,1 had been partly recorded, the President dissolved the National Assembly. Upon this, the learned Tribunal dismissed the petition with the following observations:-- "Since the National Assembly has been dissolved by an order of the President of Pakistan.
Therefore, I feel the instant petition has become infructuous. The relief sought by the petitioner (that is, the appellant) cannot be granted to him. In these circumstances, the petition has become infructuous which is, accordingly, disposed of."
2. From the order of the learned Tribunal, the appellant has preferred this appeal under section 67(3), Representation of the People Act, 1976.
3. In support of this appeal it was contended by the appellant who appeared in person that one of the reliefs which he had sought before the Tribunal was that respondent No,1 should be declared ineligible to contest any election for a period of 5 years on account of the corrupt and illegal practices committed by him during the election. This relief could still be granted to him even though the National Assembly had been dissolved and fresh elections held in the meanwhile. This being the position, the learned Election Tribunal erred in holding that with the dissolution of the National Assembly the petition had become infructuous. In support of this contention he relied upon the decision of the Indian Supreme Court in Dhartipakar v. Rajiv Gandhi AIR 1987 SC 1577. In that case also the Assembly was dissolved during the pendency of the election petition and fresh elections had been held as a result of which the person against whom the petition was filed had been re-elected. The question arose whether in view of the changed circumstances the trial of the election petition could still be continued. The Indian Supreme Court decided this question in the affirmative with the following observations:-- "Section 98 read with S.99 indicates that once the machinery of the Act is moved by means of an election petition, charges of corrupt practice, if any, raised against the returned candidate must be investigated. On conclusion of the trial if the Court finds that a returned candidate or any of his election agents is guilty of commission of corrupt practice he or his election agent, as the case may be, would be guilty of electoral offence incurring disqualification from contesting any subsequent election for a period of six years."
4. The learned counsel appearing for respondent No,1 did not contest the proposition that if a corrupt or illegal practice was alleged in an election petition against a returned candidate, the dissolution of the Assembly and the subsequent fresh elections would not make the petition infructuous and the Election Tribunal could still proceed with the trial of the petition in order to find out if the allegations of corrupt and illegal practice had any substance in them, for, in the event it was found that the said allegations stood established against the person concerned he would incur a disqualification from contesting the future election or elections for a period of 5 years. He, however, argued that the appeal preferred by the appellant was incompetent as it was not covered by the provision of Section 67. In support of his argument he relied upon a decision of this Court reported as Mien Zahid Sarfraz v. Nadir Pervaiz Khan 1987 SCM R 1107. He also contended that even if all the allegations made in the election petition were accepted on their face value, still no case of illegal or corrupt practice was made out.
4-A. There can be little doubt that proceedings in an election petition do not come to an end with the dissolution of the Assembly in a case where allegations of corrupt and illegal practices against the returned candidate have been made. It may be mentioned that a person who has been found guilty of a corrupt or illegal practice under any law for the time being in force, is disqualified from being elected or chosen or being a member of the National Assembly unless a period of five years has elapsed from the date on which the order holding him guilty takes effect. See Article 63(1)(i) of the Constitution and Section 99(1)(i) of the Representation of the People Act. Thus, despite the dissolution of the Assembly, the Election Tribunal can still inquire into the question whether a person has committed a corrupt or illegal practice for that will have a bearing on his competency to participate in a future election or elections. The learned Tribunal was therefore, not right in holding that the petition had become infructuous with the dissolution of the, National Assembly, particularly when the appellant had specifically sought the relief that respondent No,1 should be disqualified from taking part in any election for a period of 5 years.
5. We also find no merit in the contention raised on behalf of respondent No,1 that this appeal did not properly lie under section 67, Representation of the People Act. The said Section reads as follows:-- "(1) Tribunal may, upon the conclusion of the trial of an election petition, make an order--
(a) dismissing the petition;
(b) declaring the election of the returned candidate to be void;
(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or
(d) declaring the election as a whole to be void; (2)
(3) Any person aggrieved by a decision of the Tribunal may, within thirty days of the announcement of the decision, appeal to the Supreme Court and the decision of the Supreme Court on such appeal shall be final.
' The burden of the argument of the learned counsel for respondent No,1 was on the expression "upon the conclusion of the trial of an election petition". He argued that an appeal under subsection (3) would lie only if the trial had been concluded by the Tribunal; since in this case the trial had not yet been concluded but the petition was disposed of on the ground of its having become infructuous, the present appeal was not competent. This argument is clearly misconceived. The learned Tribunal had put an end to the trial, even though prematurely, and now no proceedings were pending before it. Thus as far it was concerned the trial stood concluded. The order from which the appeal has been preferred was clearly a final one and well within the purview of Section 67(3). The case of Zahid Sarfraz, ibid, upon which the learned counsel relied is easily distinguishable as in that case the appeal was preferred to this Court from an interim order to challenge the finding of the Election Tribunal on a preliminary issue. We would therefore, repel the objection with regard to the competency of the appeal.
6. We are also unable to accept the contention that the allegatons made in the petition do not prima facie make out a case of any corrupt or illegal practice. In this context, we would refer to some of the allegations made against respondent No,1 in paragraph 8 of this petition. In this paragraph, the appellant inter alia alleged that respondent No,1 had exceeded the limit of the election expenses as laid down in section 49, took the assistance of persons in the service of Pakistan to further his election, provided transport to the electors for going to polling stations and indulged in bogus polling. These allegations do constitute corrupt and illegal practice within the meaning of sections 78 and 83 of the Representation of the People Act.
7. In the end the learned counsel for respondent No,1 contended that instead of remanding the case to the Election Tribunal this Court should itself examine the record to find out whether he had in fact committed any corrupt or illegal practice. It is difficult to accept this request. Apart from the fact that if the request is allowed it will deprive the appellant of the right of appeal, the record is not yet complete inasmuch as evidence of respondent No,1 is still being recorded.
8. For the reasons stated above, we would accept this appeal, 'aside aside the order of the Election Tribunal and remand the case to it for disposal in accordance with law. There will be no order as to costs.