1. SALAHUDDIN AHMED, J.-This petition for special leave to appeal arises out of an order of the Election Tribunal" refusing to dismiss an election, petition under section 60 of the National and Provincial Assemblies (Elections) Ordinance XIII of 1970, hereinafter called the Ordinance. A Division Bench of the High Court of Sind & Baluchistan has held that although there is no appeal from this order passed before the conclusion of the trial, an appeal lies to the High Court under section 64(3) of the said Ordinance from an order passed thereunder.
2. The petitioner and respondents Nos. 1 and 3 to 10 contested the National Assembly Seat known as NW 131-Karachi IV, and the petitioner was declared elected on the 10th of December, 1970.
3. Respondent No. 1 by an application under section 37(5)(6) of the Ordinance challenged the validity of the election before the Election Commission on the grounds of illegal and corrupt practices, but the application was dismissed.
4. The respondent failed to get the order of dismissal set aside first before the High Court and then before this Court. Thereafter he filed an election petition before the Election Tribunal for a declaration that the election of the petitioner was void and that the respondent was duly elected.
5. Before, however, the trial of the election petition commenced, the, petitioner applied for dismissal of the petition on the ground that the provisions of section 52 had not been complied with inasmuch as all the vague for want of particulars, and that neither the petition nor its annexures had been properly verified. The Election Tribunal having heard both the parties dismissed the application on the 2nd October 1973. The petitioner felt aggrieved by this order and he approached the High Court of Sind & Baluchistan with an appeal purported to be under section 68(3) of the Ordinance. The High Court, however, dismissed the appeal on the ground 'that no appeal was maintainable against the impugned order.
6. Mr. S. M. Zafar, learned Advocate appearing on behalf of the petitioner, has strenuously contended before us that under section 60 of the said Ordinance it was obligatory upon the Tribunal to dismiss the election petition if the provisions of section 52 of the Ordinance had not been complied with, and that the order of the Election Tribunal refusing to dismiss the election petition under section 60 was subject to appeal under section 64(3) of the Ordinance.
7. Sections 60 and 64 of the said Ordinance are as follows:- "60. Dismissal of petition during trial.-(1) The Tribunal shall dismiss an election petition, if-
(a) the provisions of section 51 or section 52 have not been complied with; or"
(b) the petitioner fails to make the further deposit required under sub--section (4) of section 59--- ---------------------------..
64. Decision of the Tribunal.-(1) The 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) Save as provided in subsection (3), the decision of a Tribunal on an election petition shall be final.
(3) Any person aggrieved by a decision of the Tribunal may, within thirty days of the announcement of the decision, appeal to the High t M,( Court on any of the grounds enumerated in section 100 of the Code of Civil Procedure, 1908 and the decision of the High Court on such appeal shall be final, and shall not be subject to appeal to the Supreme Court. Every such appeal shall be heard by a Division Bench of two Judges of the High Court."
8. Appeal is a creature of statute. Under section 64(3) a person aggrieved by the decision of the Tribunal was given the right of appeal to the High Court on any one of the grounds mentioned in section 100 of the Code of Civil Procedure. It may have been noticed from the facts mentioned above that the election petition still awaits trial. The Tribunal has already framed issues on questions including the allegations of corrupt and illegal practices. The Election Tribunal white dismissing the petitioner's aforesaid application observed that the election petition was not vague.
9. The Tribunal found that the election petition and their annexures were duly signed and verified.
10. The observations in the case of Muhammad Shahidullah v. Election Tribunal (PLD 1969 Dacca 240) that some of the charges had been found by the Tribunal to be prima facie vague, and therefore they should never have been allowed to go in for trial and that the inclusion had led to the reception of evidence which was likely to have created a prejudice against the returned candidate, do not apply to the present case. Firstly because the Tribunal has found that the petition read as a whole does not show that the allegations are vague. Secondly the trial is yet to be taken place and the petitioner can still object to a vague going in for trial.
11. It is profitable at this stage to reproduce here the observations of this Court in the case of S. M.
12. Ayub v. Yousuf Shah (PLD 1967 SC 486) on some provisions of the National and Provincial Assemblies (Elections) Act (VII of 1964). They are as follows:--- "The true construction of this section seems to be that, if the petition, taken as a whole, fails to comply with the provisions of section 59, it shall be dismissed as revealing no cause of action.
13. The law of pleadings has never been strictly construed and rigorously applied in all its technicalities, to this country as plaints and petitions drafted, specially in the mofussil, suffer from various minor defects. A very strict view, on the technical plane, of such pleadings, without regard to the substance of the matter, would defeat the ends of justice. Unless, therefore, the language of the law is intractable and clearly provides for dismissal of a petition for a technical defect, the Courts should not be astute to ascribe to the Legislature a desire to be hyper-technical, so as to smother genuine litigation.
14. Subsection (3) of section 66 of the Act (corresponding to section 59 of the said Ordinance) empowers the Tribunal, at any time, upon such terms and on payment of such costs as it may direct, to allow a petition to be amended in such manner, as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions at issue. The learned Judges thought that this provision was controlled by section 67 of the Act (corresponding to section 60 of the said Ordinance) which imposes the penalty of dismissal on an election petition, if it fails to comply in part with the provisions of section 5) of the Act (corresponding to section 52 of the said Ordinance). Having taken this view of section 67, the corollary drawn by them would seem to follow that no amendment of the petition could be allowed under subsection (3) of section 66 (corresponding to section 59 of the said Ordinance), if this would have the effect of avoiding a penalty imposable under section 67. Learned counsel for the respondents, however, conceded that if the assumed construction of section 67 be not correct, then the argument that the provisions of section 66 were controlled by section 67, would not b.- available. It is of some significance that the words `subject to the provisions of the Act' occur specifically in subsections (1) and (2) of section 66 but they are not repeated in subsection (3) thereof."
15. It may be noted here that under section 59 of the Ordinance, the election petition is triable as nearly as may be in accordance with the procedure for the trial of suit under the Code of Civil Procedure and that the Tribunal is authorised at any time upon such terms and on payment of such fees as it may direct, to allow a petition to be amended in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions at issue, so however that no new ground of challenge to the election is permitted to be raised. In the present case it appears that the Election Tribunal was satisfied that prima facie the provisions of section 52 of the Ordinance had been complied with. Nevertheless, issues have already been framed on the allegations of corrupt and illegal practices and the petitioner is not precluded from challenging at trial that the sail allegations are vague or that they have not been proved.
16. There is no substance in the petition and it is accordingly dismissed.