S. IBNE ALI, J.---The brief facts giving rise to this Constitutional Petition are that Miraj Ahmad petitioner was a candidate for election to a seat in Ward No.354, Union Council Shaumali and so were respondents Nos.1, 7 and 8. The polling took place on 30-11-1987 and, after close of polling, the petitioner was found to have scored 133 votes as against 19 secured by respondent No.1. In consequence, the petitioner was declared successful candidate in the election by a Notification issued by Returning Officer, respondent N~.2. Not content therewith, respondent No.1. Called in question the election of the petitioner before Election Tribunal, respondent No.9, by filing a petition.
It is alleged by respondent No.1 that the petitioner, being an influential person, got bogus votes polled in collusion with respondents 2 to 6 and also brought about a change in a voters list in last days before election in such a way as to exclude the proposer and seconder of respondent No.1 and add them with others to list of another Ward, Hill Nos.1 and 2 just to deprive them of exercising their right of franchise. Respondent No.1 registered a protest with Presiding Officer, respondent No.6, but in vain. The petitioner controverted the above allegations, one and all, and so did respondents Nos. 2 and 4 in their respective written statements. In addition, petitioner raised several preliminary objections regarding the competency and maintainability of the Election Petition.
2. On the above facts and pleadings of the parties, as many as seven issues were framed. The contesting parties produced mostly oral evidence for and against their respective cases. Upon a consideration of the record of evidence, the Election Tribunal in the main, dealt with Issue No.2 and came to finding that after scrutiny of nomination papers, a change has been brought about in the Electoral list of the Ward in question against the Electoral Law, thereby vitiating the election in question. On the basis of this finding, he declared the election of petitioner void and directed to hold election afresh in the light of newly and finally prepared electoral list of Ward after calling nomination papers over again. This order was passed on 18-10-1989. The petitioner has challenged the validity of this order by way of the, present Constitutional writ petition.
3.We have heard the learned counsel for the parties and have also perused the record.
4. The learned counsel for the petitioner, at the very outset, has drawn out attention to Rule 44-B of the N.W.F.P. Local Councils Election Rules, 1979 which lays down as under:- "full particulars of any corrupt or illegal 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 the date and place of the commission of such practice or act:"
The learned counsel for the petitioner stressed the point that corrupt or illegal practice or illegal act is to be identified with all its various details and incidents and that the full particulars should include as full a statement as possible of the names of the persons who are alleged to have committed such practices or acts and the date and place of the commission of every such practice or act and these should form the contents of the allegations, if it is possible to do so, in the sense that they have come within the reach of the petitioner's knowledge. Elaborating his argument the learned counsel insists that no Election Tribunal will permit an inquiry on a vague and a general allegation which is not backed by any particular instance. In this context, it is pointed out that in the petition, it is not clearly stated how, when and in what manner bogus voting was resorted to and by whom and who were the persons utilized for the purpose. No list of delinquents is attached, nor is there any mention, if any, of such person, while voting, was challenged. No list of challenged votes is annexed either. Likewise, how and by whom and on what date and place, a change in electoral list was brought out. And what was original list and in what respect and particulars, it was tampered with. The Election Tribunal has not given Finding on this vital aspect of the case and instead recommended that whosoever made an alteration in the electoral list should be brought to book. This implies that neither Presiding Officer, nor Returning Officer concerned with election has a hand in the whole affair. The inference about change in electoral list is drawn from the mere circumstance that at the time of scrutiny, the nomination paper was accepted, meaning thereby that names of proposer and seconder of the respondent No.1 must have been contained in such list of the Ward. No such list is produced by the contesting respondent. The Returning Officer was examined as R.W.3, who stated positively that even at the time of scrutiny those names were not borne on the list. The non-- objection to the invalidity of nomination papers does not by itself lead to the existence of their names on electoral list of the Ward. The non-objection in this regard by itself does not constitute particulars of collusion between petitioner and respondents 2 to 6. The learned counsel for the petitioner therefore suggests that, in fact, an allegation of vague kind is still-born and no attempt on the part of respondent No.1 can be legally allowed to infuse life into it and to find flesh and blood for it in the shape of mere inference drawn from non-existent factual position. Reliance in this context is placed on PLD 1957 SC 91 and PLD 1973 SC 160.
5. A combined study of the precedents quoted above formulate and lay down principles governing trial of Election petition, firstly; where an election is sought to be set aside on ground of commission of corrupt practices, the party impeaching the validity must specify in the petition the corrupt practices, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices. Secondly; in giving full particulars, there must at least be a bare minimum of three particulars, one particular is the name of parties who committed the corrupt practice and the other two are dates and places of commission of the corrupt practice contained in the Election petition separately. Thirdly; if a petition consists of allegations of corrupt and illegal parctices, some of which are with and the others without particulars, only that part of the petition will be admissible for inquiry which contains allegations marked with particulars, the other part not providing any basis for a concrete inquiry, will not be taken into account. Fourthly-, the inquiry shall be directed to the specified allegations as backed by particulars which give a sufficient notice to the opposite side regarding the nature of the accusations made therein. Fifthly; the evidence in proof of such practices must be restricted to the charges or instances listed in the petition and the particulars and that each ingredient of a corrupt practice must be proved by clear, cogent and convincing evidence. Lastly; an election enquiry is in the nature of qasi-criminal trial and it is an elementary rule of law that the prosecution should make out its case by positive proof and not by mere conjectures and prosecution cannot succeed on an alternative case not put forth by it.
6. While going through the record of the case, we may remark that the learned Election Tribunal has not discussed evidence in the light of the law, enunciated above nor has given its finding on the preliminary issues encompassing discussion on the point of supply of particulars and legal effects of non-compliance therewith as required by rules of the game. Both items are inter--linked and require consideration together. Likewise the question whether new electoral list be prepared by election to Ward under reference shall have to be considered afresh in the light of Section 26 of the N.W.F.P. Local Government g Ordinance, 1979 read with Rules contained in Chapter 11 of the Rules, framed thereunder. These provisions set different stages for election and limit the functional jurisdiction of the Election Tribunal in matter of adjudicating upon delimitation and preparation of electoral list for local councils. It must be borne in mind that an Election petition is akin to a trial of a suit under Code of Civil Procedure, 1908 as is evident from Section 39-D of Ordinance IV of 1979 read with Rule 44-D of the rules quoted above. The trial of a suit, in common parlance, predicates framing of issues, production of evidence pro and contra and judicial finding on all the points on which the parties are at variance. Thus the Election Tribunal is charged with statutory duty to decide all questions of the nature involved in the present case. From the order sought to be impugned, it is clear enough that no decision whatever has been given by the Election Tribunal on other issues of great importance and vital to the discussion of the point contained in issue No.2.
7.In the cotext of what has gone before, we refrain from expressing our own opinion on the disputed questions beyond reiterating the guiding principles alluded to, and feel free to set aside order of the Election Tribunal and remand the case to it with the direction to gave its findings on all the issues afresh in the light of above observations after hearing both parties. No order as to costs. It will be desirable if the case is transferred to another Election Tribunal for decision.