' FAZAL KARIM, J.---This is a petition under Article 199 of the Constitution; by it the returned candidate, Abdul Sami, seeks to have the judgment of the learned Civil Judge 1st Class, Haroonabad in his capacity of Election Tribunal, dated 6-2-1988, declared to be without lawful authority and of no legal effect. By that judgment the learned Election Tribunal had declared "the election of the disputed seat as a whole to he void" and the Punjab Local Councils Election Authority was asked to hold fresh elections.
2. The petitioner, Abdul Sami, and the respondent, Abdul Ghaffar, were candidates at the election to the electoral unit, Ward No, 7, Chak No, 76/4-R, Tehsil Haroonabad, District Bahawalpur held on 30- 11-1987 under the Punjab Local Government Ordinance, 1979. At that election the petitioner secured 307 votes and the respondent secured 205 votes and the petitioner was declared successful. Abdul Ghaffar, respondent No, 1, instituted an election petition challenging the election of the petitioner on the ground, to quote from the judgment of the learned Election Tribunal that "the respondent No, 1 committed gross irregularities and fictitious and double votes were cast in favour of the respondent (Abdul Sami). It is further alleged by the petitioner (Abdul Ghaffar) that the ballot papers of Serial No, 301901 to 302000 were fictitiously cast in favour of the respondent No, 1".
2-A. The petitioner contested the election petition by filing a written reply denying these allegations.
3. Two issues giving effect to the parties pleadings were formulated, the crucial issue being "whether the respondent has committed gross irregularities and malpractices in the disputed Local Bodies Election of the disputed seat"?
4. In support of his case the respondent, Abdul Ghaffar, examined himself and called two witnesses, Nawab Din and Farzand Ali, P.W.
3. In rebuttal the petitioner himself entered into the witness-box and called one witness, Abdul Rashid, R.W.
2. The learned Election Tribunal examined Mr. Aftab Qadir, Project Assistant, Local Government, Haroonabad, as Court witness; he stated with reference to the election record that ballot paper books Nos. 03020 to 03037 (18 in number) bearing Serial Nos. 301901 to 303700 were issued to the Presiding Officer and that out of them ballot papers book No, 03020 containing Serial Nos.301901 to 303700 or their counter-foils were not available on the record. The "outer slip" of that ballot paper book was, however, available with him.
5. In coming to the conclusion that he did, the learned Tribunal observed that it was "crystal clear from the record that the counterfoil of book No, 03020 containing Serial Nos. Of ballot papers No, 301901 to 302000 was missing on the record". Referring to the evidence of the petitioner's witness, the learned Tribunal went on to say that "there was a fight between the contesting parties and their supporters during the polling hours and the polling was stopped for some time"; and "that the respondent, Abdul Ghaffar, was not present at the time of restart of the polling which continued in the absence of the petitioner". It was evident, so held the learned Tribunal, that the Presiding Officer did not report the fact that the counter-foil of book No 03020 was "missing from the record" and there is no explanation on behalf of the respondent. The election proceedings had been, according to the Tribunal, stopped by the Presiding Officer for temporary period and the petitioner had gone to Police Station for reporting the matter to the Police but the polling was restarted in the absence of the petitioner." There was no counting of the votes in the presence of the Polling Agents of the contesting parties. Thus, the learned Tribunal was led to hold that "the Presiding Officer concerned did not obey the instructions issued by the Honourable Punjab Local Councils Election Authority to the Presiding Officers." In short the findings recorded by the learned Tribunal was that "the missing of the counter-foil of book No, 03020 containing ballot papers of Serial No, 301901 to 302000 is also a proof that there were gross irregularities and malpractices during the election of the disputed seat and the concerned Presiding Officer did not report the matter to the Police or to the Returning Officer, IIaroonabad" and that "it is presumed that gross irregularities and malpractices were committed in connivance of the polling staff of the disputed seat".
6. The jurisdiction of this Court under Article 199, sub-Article 1(ii) is the jurisdiction to declare "that any act done or proceeding taken has been done or taken without lawful authority and is of no legal effect." An act is without lawful authority, if the person doing it had no authority to do it under the law under which he purported to act; it is an act ultra vires or without or in excess of jurisdiction.
The first question that must be asked, therefore, is what was the nature and extent of the authority vesting in the learned Tribunal. It is obvious that the answer to this question must turn upon the terms of the law under which the learned Tribunal was acting namely, the Punjab Local Councils Ordinance, 1979 and the rules made thereunder.
7. By rule 8 of the Election Petition Rules, 1979, made by the Election Authority in exercise of the powers conferred by section 25 of the Punjab Local Government Ordinance, 1979 (to be referred to as the Ordinance) "every election petition shall be tried, as nearly as may be, in accordance with the procedure for the trial of suits under the Code of Civil Procedure, 1908; and "subject to the provisions of the Ordinance, the Election Rules and these rules, the Evidence Act, 1872 (I of 1872) shall apply to the trial of an election petition". (As the Evidence Act, 1872 stands repealed by the Qanun-i-Shahadat, 1984, for the expression "the Evidence Act, 1872 (I of 1872)" in this rule the expression "Qanun-i-Shahadat, 1984" has to be read). Rule 10 of the Election Petition Rules, 1979 provides that "the Tribunal shall have all the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908". Rule 12 of the said Rules enumerates the kinds of orders that the Tribunal is competent to make. Rule 13 provides for the grounds for declaring the election of a returned candidate void. So far as relevant, it empowers the Tribunal to declare the election of a returned candidate to be void "if it is satisfied" that the election of the returned candidate has been procured or induced by any corrupt or illegal practice or a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his authorised agent. Sub-rule (2) of rule 13 prohibits the declaring of the election of a returned candidate to be void by such peremptory language as "shall not be declared void" on the ground that any corrupt of illegal practice has been committed "if the Tribunal is satisfied that it was not committed by or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precautions to prevent its commission". Rule 15 of the Rules says that "the Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of, (a) the failure of any person to comply with the provisions of the Ordinance or the Election Rules; or (h) the prevalence of extensive corrupt or illegal practice at the election".
8. It was thus a necessary condition precedent to the power of the learned Tribunal to declare the election of the petitioner void on the ground that any corrupt or illegal practice had been committed, that the Tribunal was satisfied that such corrupt or illegal practice was committed by or with his consent or connivance of his election agent.
9. The expression "corrupt practice" is defined in Rule 72 of the Election Rules, 1979; by it a person is guilty of corrupt practice if he is guilty of bribery, personation or undue influence or makes or publishes a false statement or calls upon or persuades any person to vote or to refrain from voting, for any candidate on the ground that he belongs to a particular religion, community, etc., knowingly, in order to support or oppose a candidate; or lets, lends, employs, hires, borrows or uses any vehicle or vessel for the purpose of conveying voters to or from the polling station; or causes or attempts to cause any person present and waiting to vote at the polling station to depart without voting or contravenes the provisions of Rule 68 namely, his election expenses exceed the sum mentioned therein. The expression "illegal practice" is defined in rule 73 of the Election Rules, 1979; a person is guilty of illegal practice if he obtains or procures the assistance of any officer or official of the Government to further or hinder the election of a candidate; votes or applies for a ballot paper for voting at an election knowing that he is not qualified for voting; votes or applies for a ballot paper for voting more than once; votes or applies for a ballot paper for voting in more than one polling station; or removes a ballot paper or a ballot box from a Polling Station or destroys, damages or tampers with a ballot box used at a Polling Station.
10. Also it is obvious that the satisfaction of the Tribunal has to be based upon objective evidence.
As has been seen above, the Tribunal has all the powers of a Civil Court to try a suit under the provisions of the Code of Civil Procedure, 1908 and the election petition has to be tried as nearly as may be in accordance with the procedure laid down for the trial of the suits under the Code of Civil Procedure, 1908 and the rules of evidence as contained in the Qanun-i-Shahadat, 1984. The findings of the Tribunal must, therefore, he based upon evidence oral and documentary produced by the parties. In other words the satisfaction of the Tribunal has to be objective and not subjective.
It is well-settled that to find facts based on no evidence is an error of law and that an order passed on no evidence is an order without lawful authority. (See Raheem Shah's case PLD 1973 SC 24). As was said by due Paroq in Bean v. Doncaster Amalgamated Colleries Ltd. 1944 2 All ER 284 "....To come to a conclusion where there is no evidence to support it is to make an error in law".
11. Equally well-established is the principle that to hold a man guilty of a corrupt or illegal practice, the standard of proof required is that applicable in criminal cases: the charge must he proved beyond a reasonable doubt before the man is held guilty of a corrupt or illegal practice and before the extreme step of declaring his election void is taken.
12. Here the findings recorded by the learned Tribunal were that the ballot paper book No, 03020 was missing; that a fight between the contesting parties and their supporters had taken place during the polling and the polling was stopped; that the respondent, Abdul Ghaffar was not present when the polling was restarted; that the Polling Officer had not reported the fact, that the counterfoil of ballot book No, 03020 was missing, to the Returning Officer and that "it is presumed" that these irregularities and malpractices were committed in connivance with the polling staff.
13. It is plain that in so holding, the learned Tribunal had found that corrupt and illegal practice as defined in the Election Rules, 1979 had been committed yet, the learned Tribunal did not hold, as he should have to declare the election of the petitioner void, that the alleged corrupt or illegal practice was committed by or with the consent of the petitioner or his election agent. The evidence at best was that at the time the election record was produced by. Mr. Aftab Qadir, C.W., the ballot paper book No, 03020 was not part of the record; but from that fact, it was a big step to hold that it was the petitioner who was responsible for the missing of that record. There was no evidence that the ballot papers of ballot paper book No, 03020 had actually been used and if so, they were used in the petitioner's favour. As to the alleged stopping of the poll due to a fight between the parties, the best evidence was the election record and the order of the Presiding Officer stopping the poll, if any. Rule 28 of the Election Rules, 1979, provides that if at any time the poll at any polling station is interrupted or obstructed by riot or open violence, the Presiding Officer may, by recording the reason thereof, stop the poll and inform the Returning Officer accordingly. Thus, the duty to inform the Returning Officer arises only if the Presiding Officer stops the poll by an order in writing. Here no such order was produced, nor was there any evidence that it was made. Assuming that there was a temporary stopping of the poll and assuming further that Rule 28 of the Election Rules, 1979, applies to such temporary stopping of the poll, the learned Tribunal did not mention the provision of law which required the presence of the candidates at the restarting of the poll. In any case, the learned Tribunal had not its attention called. To rule 26 of the Election Rules, 1979 which provides that "where any act or thing is authorised by these rules to be done in the presence of the candidates, an election agent or a polling agent, the failure of such person to attend at the time and place appointed for the purpose shall not invalidate any act or thing otherwise validly done".
14. It remains to consider the provisions of Rule 15 of the Election Petition Rules, 1979, which empower the Tribunal to declare the election as a whole to be void. That power, as has been noticed above, was subject to the condition of the Tribunal being satisfied that the result of the election had been materially affected by the failure of any person to comply with the provisions of the Ordinance or the rules or by the prevalence of extensive corrupt or illegal practice; the evidence only was that there was a fighting between the parties and that had resulted in the temporary stopping of the poll. The learned Tribunal assumed and assumed without any basis in fact that the ballot paper book No,03020 had been removed during the poll. Consequently failure to comply with the provisions of the Ordinance or the rules was not established. In any case, the Tribunal was not competent to declare the election void, without a finding that the result of the election had been materially affected.
15. That the findings arrived at by the learned Tribunal had no evidence to support it should be clear from the learned Tribunal's own observation namely that "it is persumed that gross irregularities and malpractices were committed in connivance with the polling staff of the disputed seat".
16. For these reasons we accept the petition and declare that the Election Tribunal's judgment dated 6-2-1988 is without lawful authority and of no legal effect. The parties are left to bear their own costs.