' This is an election petition under section 52 of the Representation of People Act, 1976.
2. The facts giving rise to this petition arc that an election was held in respect of Constituency No P.S. 10 Jacobabad 1, wherein the petitioner, Respondent No, 1 Karo Khan Mari and Respondent No, 2 Mir Shah Ali Khan Dombki had contested. Gazette of Pakistan Notification No, F.2(67) 1988 Cord, dated 26-11-1988 declared Mir Shah Ali Khan Dombki, Respondent No, 2 as Returned Candidate at the said election. Dis-satisfied with 0-e said result the petitioner has filed the above petition and prayed as under:-- "(i) To declare that the election of Constituency P.S. 10, Jacobabad-I as a whole void in view of the fact that provisions of the Act and Rules have not been complied with and prevalence of extensive corrupt or illegal practice at the election was caused.
(ii) Or in the alternative after setting 'aside the election of the Respondent No, 2, declare the Petitioner as elected;
(iii) Any other relief that this Hon'ble Court may deem fit and proper in the circumstances of the case.
(iv) And cost be allowed."
3. Respondent No, 2 Mir Shah Ali Khan Dombki was represented by Mr. Zaki Muhammad, Advocate, while there was no appearance for Respondents Nos. 1 and 3. Respondent No, 2 filed written- statement which was taken on record and the case was adjourned for framing of issues. On 17-5- 1990 issues were framed and the case was adjourned to 25-6-1990 for recording of evidence thereon. On 25-6-1990 it was stated by Mr. Zaheeruddin Khan, Advocate for the petitioner that Respondents Nos. 1 and 2 both have expired, which fact was also confirmed by Mr. Zaki Muhammad. He then made an application under section 75 of the Representation of People Act, 1976 praying that the petition be decided ex parte and after ascertaining the facts mentioned in paras.k7 to 13 and 16 and on finding violation of the provisions of various sections of the Representation of People Act it may be hold that there had been rigging at the said election at the hands of the Returned Candidate.
4. Notices of the above petition were issued to the Advocate of Respondent No, 2 as well as Dy.
Attorney General. Mr. Zaki Muhammad, Advocate for Respondent No, 2 and for Ghalib Hussain filed objections to the application and pointed out that after the death of Respondent No, 2 Mir Shah Ali Khan Dombki, the seat was declared vacant and the schedule for bye-election to the said seat has been notified, according to which elections are going to be held on 11-10-1990. The date of nomination was 7-7-1990. On this date nomination papers have been filed by various candidates including the petitioner Sardar Saleem Jan Khan Mazari. Hence this petition has become infructuous on account of the death of Mir Shah Ali Khan Dombki, the Returned Candidate, as well as on account of the petitioner having filed nomination papers at the bye-election.
5. Mr. Zaheeruddin Khan has contended that the death of the Respondents would not result in the abatement of the petition and the Tribunal is hound to decide the petition ex parte without any further hearing or after giving such person as it may think fit, an opportunity of being heard. In this connection he relied upon section 75 of the Representation of People Act, 1976 which reads as under:-- "75. Death or withdrawal of respondent.--If, before the conclusion of the trial of an election petition, a respondent dies or gives notice in the prescribed form that he does not intend to contest the petition, and no respondent remains to contest the petition, the Tribunal shall, without any further hearing, or after giving such person as it may think fit an opportunity of being heard, decide the case ex parte."
' He then relied upon the decision in Election Petition No, 38 of 1988 of the Election Tribunal Punjab, presided over by Mr. Justice Muhammad Ilyas of Lahore High Court. In this case one of the respondents Capt. (Retd.) Sanaullah, who was a non-Muslim, had died and it was held, that section 75 of the Representation of People Act was applicable to the case and the petition can be decided notwithstanding the death of Capt. (Rctd.) Sanaullah who was one of the Respondents mentioned therein.
6. The case of Capt. (Reid.) Sanaullah referred to above is distinguishable from the present case in that the trial of the Election Petition had concluded and the case was at the stage of judgment which was yet to be announced, whereas in the present case the trial is not over. Only issues have been framed, but no evidence has been recorded as yet. In fact the Trial has not started as yet.
7. After giving my thoughtful consideration to the facts and circumstances of the case, I have decided to dispose the petition on the following grounds, inter alia, for having become infructuous:--
(1) That the petitioner in prayer clause No, 1 seeks to declare the election of the Constituency in dispute as void as a whole on the ground of extensive corrupt and illegal practices, the natural consequences of which will be re-election, which purpose has been achieved by the death of returned candidate.
(2) The second alternative prayer is that after setting aside the election of respondent No,2 the petitioner be declared as elected. This is not possible because the petitioner was not the only candidate against Respondent No,2 the Returned Candidate. Hence even if the election of respondent No, 2 the Returned Candidate is set aside, the petitioner cannot claim the right to be declared elected in preference to respondent No,2 who was also one of the candidates and had lost election as against respondent No, 2.
(3) Besides this the petitioner had polled only 429 votes as against 9058 votes polled by the respondent No,
2. It would be most unfair to declare a candidate, who has got only 429 votes at his credit, as a Returned Candidate from a Constituency where 9487 votes were cast.
(4) Section 108 of the Representation of the People Act provides that when a seat of a member becomes vacant, the Commission shall by Notification in the official gazette, call upon the Constituency concerned to elect a person to fill the seat for such Constituency. This provision of section 108 of the Representation of the People Act is mandatory. No stay has been granted against the said election. The petitioner has not even applied for any stay. The petitioner has on the contrary submitted himself to the said bye-election and has filled in nomination form. He has thereby impliedly accepted the fact that the seat has become vacant. Under these circumstances it will not be in the interest of justice, equity and fair play to allow the petition, and to declare the petitioner as elected.