' Through this Constitutional Petition, the petitioner has called in question the Notification No,Election-71-527/1987, dated 7-11-1987 issued by the Collector District Poonch declaring the non- petitioner No,1 as successful member of the Local Council Hornamara, and the decision of the Election Tribunal dated 24-9-1988 whereby the Election Petition filed by the petitioner against the said Notification was dismissed.
2. The facts of this case lie in a short compass and may be stated briefly as under:- The petitioner and respondent No,1 were the contesting candidates in the Local Council Elections held in 1987 from Union Council Hornamara Tehsil Rawalakote. At the end of the polls, respondent No,1 was declared successful. Later on, a notification was issued on 7-11-1987 by the Collector District Poonch whereby respondent No,1 was also shown as an elected Member of the Local Council Hornamara.
3. The Notification No,Election 71-527/1987, dated 7-11-1987 issued by Collector Poonch declaring respondent No,1 as elected member of the Local Council from Union Council Hornamara was challenged by the petitioner through the Election Petition before the Election Tribunal Poonch but this petition was dismissed by the said Election Tribunal on 24-9-1988. Thereafter, this Writ Petition was filed by the petitioner in the High Court which was admitted for regular hearing on the ground that 15 votes were carrying square marks on them. These votes were void votes, and therefore, they should have not been counted in favour of the respondent.
4. I have heard the learned counsel for the parties and have also gone through the record.
5. It was contended by Sardar Rafique Mahmood Khan, the learned Counsel for the petitioner that respondent No,1 could have never succeeded in the election against the petitioner if he had not indulged in corrupt and illegal practices during the polling of the Election. Elaborating his viewpoint, the learned Counsel submitted that 15 votes which were counted in favour of the respondent had square marks. Under rule 41(4) these votes were void votes but these bonus votes were wrongly counted by the Presiding Officer in favour of the contesting respondent. When this illegal act of the Polling Staff was brought to the notice of the Returning Officer, he failed to perform his duty which under law he was bound to perform. It was further contended by the learned Counsel that Election Tribunal also during proceedings, on inspection, found the square marks on these votes but failed to declare that these votes cannot be counted in favour of the respondent No,1. The respondent, who had margin of victory of nine votes only was declared successful on the basis- of these void votes. It was further contended by the learned Counsel for the petitioner that before issuing of Notification on 7-11-1987, the petitioner had moved an application before the Returning Officer alledging therein that some bogus votes were cast and counted in favour of the respondent No,1 as such he seeks recounting of all votes. But no appropriate action was taken by the Returning Officer on this application.
6. As against this, the learned counsel who appeared on behalf of the contesting respondent argued that this points was not raised in the Election Petition which was filed by the petitioner before the Election Tribunal Poonch as such, the point which was not raised either before the Presiding Officer or Returning Officer or before the Election Tribunal cannot be raised for the first time before the High Court in writ jurisdiction. In support of their contention the learned Counsel relied on the following authorities:- ' 1987 CLC 957 and 1986 SCM R 469(1621).
7. The first point which requires resolution is as to whether, the point of 15 square votes was raised by the petitioner in his election petition before the Election Tribunal or not. Copy of the Election Petition has been placed on the file of this Court with the writ petition as Annexure 'C'. From the perusal of this Election petition it appears that this point was not raised by the petitioner. Paras. 3, 4 and 5 of the Election Petition are material and relevant and the same are reproduced for the convenience of the reference:- {{URDU TEXT}}
8. From the perusal of the above it becomes crystal clear that the point of 15 square votes was not raised in the election petition by the petitioner. Under Rule 56(4)(b), it was obligatory for the petitioner to plead this point specifically in the Election Petition. It was also imparative for him even to mention names of those who had polled these votes in favour of the respondent. Under rules 59(3), Civil Procedure Code has been made applicable. Morever, it was also the requirement of the rules to verify the contents of the election petition as laid down by Rule 56(6) of the Azad Jammu and Kashmir Local Government Election Rules 1983. As the point with regard to 15 votes carrying square marks was not raised by the petitioner in his election petition, as such he cannot be permitted to raise this point in the writ petition. The mere remarks of the Election Tribunal made on the basis of the inspection are not sufficient to give right to the petitioner to raise this point for the first time in the High Court. It is settled proposition of law that a point which was not pleaded cannot be proved by C leading evidence because every party in civil litigant is bound in law to confine the pleadings and is not permitted to build up inconsistent case through evidence. Even if erroneously, inconsistent evidence was brought on the file, judgment could not be given on the basis of so led evidence.
9. There is another aspect of the case. In para. 2 of the writ petition, it was contended by the petitioner that at the time of counting of votes, 15 votes were bearing the square marks. In para. 3 of the writ petition, it was contended by the petitioner that he raised serious objection about these votes but in spite of protest these votes were counted in favour of respondent No,1. The contesting parties have refuted these allegations and respondent No,2 has also placed on file his affidavit.
Respondent No,2 has categorically refuted the contents of the writ petition. He contended in para. 2 of his written statement, that at the time of counting the ballot papers all the agents of the contesting candidates were present who signed the result. It is further mentioned in this paragraph that no square marks were found at the time of counting on any ballot paper.
10. This Writ Petition was on the file of my learned brother Mr.Justice Sher Zaman Chaudhry, J. And it was made over to me on 16-4-1990. Much before that date due to the conflicting pleadings of the party the learned Judge, on the application of the petitioner summoned the record of the Election Tribunal. It was from this record, that the learned Counsel for the respondents referred me the statement of Muhammad Haroon son of Muhammad Aziz who acted as election agent of the petitioner. According to this witness votes were counted at the end of the polls and the result was prepared by the Polling Staff in the presence of the agents of the contesting parties and same was signed by the agents. It means that no objection was raised on behalf of the petitioner about any votes till the result was finalized by the Polling Staff. The petitioner in support of his case produced before Election Tribunal, Muhammad Shakeel, Muhammad Raheem, Khadim Hussain, Muhammad Riaz, Muhammad Haroon as his witnesses, he also got his statement recorded. From these statements it has come on record, that there was no law and order situation. No votes was either tendered or challenged. Thus, from the perusal of these statements it is evident that abovementioned witnesses have not supported the case of the petitioner in the present form.
11. I have gone through the application which was moved by the petitioner before the Returning Officer for the recounting of the polled votes, a copy of the same has been placed on the file of this Court with writ petition as Annexure 'A'. Even in that application, the allegation of 15 square votes was not pleaded by the petitioner.
12. The High Court under Constitutional jurisdiction can interfere only if it is proved that Tribunal vested with exclusive jurisdiction has failed to exercise jurisdiction vested in it, or has exercised the same in capricious and in artificial fashion by misreading or non-reading material evidence going to the root of the case. No such case has been made out by the petitioner.
13. As held earlier the question of 15 square marks was not raised by the petitioner in the Election Petition before the Election Tribunal, as required by law. As such he has no right to raise this point for the first time in High Court through writ petition. It was held in 1986 SCM R 1621, that the petitioner could not be allowed, while invoking High Court's Constitutional jurisdiction, to raise a completely new point for the first time before it.
' The same view was expressed in 1986 SCM R 469.
As writ has been sought on a point, which was neither raised before Polling Staff nor before Returning Officer and not even through Election F Petition, before Election Tribunal, such a point was not available to be raised for ' the first time in High Court through writ petition. The writ petition, therefore, merits no consideration; the same is dismissed with costs.