1. ' This writ petition from an order of learned Election Tribunal, Rawalpindi, dated 30th April, 1992, declaring the election as a whole to be void and confining re-poll to a male Polling Station at Tahli Mohri and, in case, rules did not permit for a piecemeal exercise or the 'contestants' agreed to the arrangement directing a fresh poll in the Constituency, raises some interesting points of nicety.
2. ' Factual matrix which gave rise to the petition shall soon unfold itself in immediately succeeding few lines. Petitioner alongwith respondent No,2, Raja Muhammad Younas, Waqar Hussain Kiani and Muhammad Shehzad contested an election for the membership of Cantonment Board, Rawalpindi, from its Ward No,4 on 28-12-1991. Petitioner polled 2,562 valid votes against his immediate closest rival respondent No,2, who secured 2,406 valid votes. Raja Muhammad Younas got 1169 votes and Waqar Hussain Kiani only 220 votes. Muhammad Shehzad did not lay hand on any vote. As the petitioner emerged victorious by a majority vote, he was declared elected by the Returning Officer.
3. Dissatisfied with the result of the election, respondent No,2 called it in question in an Election- petition before learned District Judge of Rawalpindi. Election-petition was presented on 6-1-1992.
4. Alongwith the Election-petition, respondent No,2 filed an application for a temporary injunction for restraining the petitioner from acting as an elected member of the Cantonment Board. On 7-1- 1992, in an ex parte order learned District Judge stopped the petitioner from taking his oath of Office, and, also prohibited his functioning as an elected member of the Cantonment Board. Upon being served, petitioner entered appearance in Courton 12-1-1992 and filed his written statement to the Election-petition as well as a written reply to the application for temporary injunction. Other respondents also gave their replies. On 21-1-1992, petitioner submitted a separate application for recalling the interim order of stay operating against his functioning as member of the Cantonment Board. As the matter was not proceeding to the satisfaction of the petitioner, and application for temporary injunction was not being decided finally with expedition, petitioner approached this Court in Writ Petition No,279 of 1992 for an appropriate relief and direction. On 7-4-1992, writ petition was disposed of in limine hearing by calling upon learned District Judge to decide the application for temporary injunction finally by or before 30-4-1992. Prayer contained in the writ petition that this Court itself should decide the question of interim relief was not acceded to. After the decision by the High Court, petitioner moved an application on 12-4-1992 for anelerated hearing of the application for temporary injunction. Eventually, arguments were heard on 23-4-1992, and, concluded on same day. Finally, on 30-4-1992, learned District Judge disposed of the main Election-petition resulting in a fresh poll in the Constituency on the lines given below as:- "Re-election, I am afraid, for the reasons aforesaid, and in the circumstances of this case, will have to be restricted to Tahli Mohri male Polling Station, and votes freshly secured by both the candidates will be taken into account, alongwith the votes already cast and counted at the other Polling Stations of the Constituency, namely, Lalkurti, Tariqabad, (ii) Jhawra Kamalabad, (iii) Octroi Post No,22, and female Polling Station, Tahli Mohri. I order accordingly.
18. Before parting with the judgment, I wish to make it clear that the aforesaid finding or observation will not operate as a bar to the holding of election all over again, if the contestants agree to this arrangement, or if the relevant Rules do not permit the renewed exercise to be undertaken in a piecemeal manner. In absence of these considerations, the orders about re- polling to be held at only male Polling Station, Tahli Mohri, will hold good."
5. ' Aggrieved of the decision by the learned Election Tribunal and the manner of its hearing, petitioner has sought remedy from this Court in a petition for a judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan. The petition and the arguments advanced at the hearing by the learned counsel for the petitioner raised following four points for consideration by this Court: (i) Without putting the parties to notice and hearing arguments on merits of the Election-petition, learned District Judge could not have finally decided the election dispute by merely hearing arguments on the application for interim relief in course of its trial; (ii) Without inqiury' into the disputed questions of fact and circumstances raised on pleadings, settlement of issues between the parties and taking of evidence from them on points at issue, learned Election Tribunal could not have gone on merits for a final pronouncement upon tham; (iii) Learned District Judge wrongly assumed correctness of disputed facts for applying to them the Cantonments (Elections and Election Petitions) Rules, 1979; (iv) Rule 47-A of the above Rules gives finality to the decision of the Returning Officer on the validity of ballot-papers and his decision was not susceptible to a further review in the Election-petition by the Election Tribunal, and, finally after declaring the election to be void as a whole, it could not be restricted to a single male Polling Station and holding of fresh poll in the entire constituency left to the arrangement between the 'contestants' or the will of the Authorities.
6. ' To support him, learned counsel referred to the definition of the term `inquiry' in Law Lexicon and referred to number of pronouncements for elucidating different facets of his arguments. Learned counsel read out several portions of the impugned judgment to make out the point that the arguments were merely heard on the application for temporary injunction, and, not on the merits of the main case. Learned counsel unequivocally expressed at Bar that he had all along the impression, which was equally shared by his colleagues associated with him in the case .That only an application for temporary injunction was fixed for arguments. It was clearly stated by him that neither the petitioner nor his counsel were ever put to notice for addressing arguments on merits of the main case. Some affidavits were also put on file in support of this view-point. Mirza Anwar Baig Advocate, learned counsel for the petitioner stated that if the Court desired, he was prepared to put his own affidavit on file.
7. ' On behalf of respondent No,2, defence was led by his learned counsel Ch. Mushtaq Ahmad Khan, Advocate. Mr. Babar Awan Advocate, who conducted the case on behalf of respondent No,2 before the Election Tribunal, though present on one date of hearing in Court, did not address arguments.
8. Ch. Mushtaq Ahmad Khan Advocate submitted that the order-sheet and the impugned order demonstrably showed that not only the application for temporary injunction, by the Election- petition itself was fixed for arguments and upon his instructions, arguments on merits regarding both the matters were addressed to the Court by his side. It was also argued that fixing of the case for arguments by the Court shall suffice the requirement of law and failing to address arguments by either party shall not be much material. Learned counsel put reliance on judgments to contend that in view of 'inquiry' contemplated by the 'Rules', the approach of the learned Election Tribunal to, the case and manner of its handling was not open to any serious exception. Mr. Mansoor Ahmad Advocate, learned counsel for respondents No,7 and 8 adopted the argumeitts of Mirza Anwar Baig Advocate and also submitted that arguments on merits of the Election-petition were not addressed by him. Section 15-D of the Cantonments Act, 1924 (Act No,II of 1924) deals with subject of "Conduct of Elections". It provides that "all elections to a Board shall be organized and conducted in accordance with the rules made under this Act and such rules may provide for all matters connected therewith or incidental thereto, including the time of holding the elections, by-elections, corrupt or illegal practices and other election offences and penalties therefor and the submission, trial and disposal of election petitions." Rules framed on the subject are known as the Cantonments (Elections and Election Petitions) Rules, 1979. Rules 65 to 83 relate to Election Petitions and disputes related thereto. Of them, Rules 68, 75 and 79 are relevant for the present purpose. Since arguments of the learned counsel turn on construction of these rules, which shall also have bearing on the ultimate decision, it shall be profitable to make a reference to them. They run as follows:- "R.68. Inquiry of the election.--Where a petition has been presented under rule 66 and the security has been deposited under rule 67, the District Judge (or the officer appointed in accordance with rule 66), or any judicial officer subordinate to him but not below such rank as the Provincial Government may by notification prescribe in this behalf to whom the District Judge may transfer the petition, shall after notice to all candidates at the election (other than such of them as may be petitioners), "hold such enquiry as he deems necessary." (emphasis supplied).
9. R.75. Trial of petition and power of enquiry officer.---(1) The enquiry shall be held in a place to which the public have free access, and notice of the time and place of the enquiry shall be given to the parties not less than seven days before the first day of enquiry.
(2) The enquiry officer shall have all the powers of a Civil Court trying a suit under the Civil Procedure Code, 1908 (Act V of 1908), and shall be deemed to be a Civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).
(3) Subject to the provisions of the National and Provincial Assemblies (Elections) Ordinance, 1970 (XIII of 1970), the provision of the Evidence Act, 1872 (I of 1872) shall apply for the trial of an election petition.
(4) Notwithstanding anything contained in any other law for the time being in force, no document shall be inadmissible in evidence on the ground that it is not duly stamped or registered.
(5) No witness shall be excused from answering any question as to any matter in issue in any enquiry upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind. Provided that--
(i) no person who has voted at an election shall be required to state for whom he has voted; and a witness who in the opinion of the enquiry officer, has answered truly all questions which he has been required to answer shall be entitled to receive a certificate of indemnity and such certificate may be pleaded by such person in any Court and shall charge under Chapter IX-A of the Pakistan Penal Code (Act XLV of 1860) arising out of the matter to which such certificate relates, nor shall any answer be admissible in evidence against him in any suit or other proceedings.
(6) Nothing contained in sub-rule (5) shall be deemed to relieve a person receiving a certificate of indemnity from any disqualification in connection with an election imposed by any law or rule having the force of law.
(7) Any appearance, application or act made or done before the enquiry officer may be by the party in person or by a pleader duly appointed to act on his behalf: Provided that any such appearance shall, if the enquiry officer so directs, be made by the party in person. R.79. Decision of the enquiry officer.--(1) The enquiry officer 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) The decision of the enquiry officer on an election petition shall be final.
10. ' Unlike Rule 8 of Punjab Local Councils (Election Petitions) Rules, 1979), which provides that "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 (Act V of 1908)....Rule 68 of the Cantonments (Elections and Election Petitions) Rules, 1979, provided that the District Judge or a transferee judge from him shall "hold such inquiry as he deems necessary." Succeeding Rule 75 provides, that the Inquiry Officer shall have all the powers of a Civil Court trying a suit under the Civil Procedure Code and the inquiry shall be held in a place to which the public have a right of free ingress. Rule 79 dealing with various kinds of decisions of the Inquiry Officer, states that the decision shall be made after the conclusion of the trial of an election petition. Election Rules do not contain any specific reference to written statement, settlement of issues, manner, mode and scope of inquiry by the Inquiry Officer for arriving at a decision by him. Nonetheless, an inquiry touching important rights of the parties could not be visualized without a proper and real defence, which would include in it, to submit a written statement of defence, lead evidence, and, oral or written address of arguments to the Enquiry Officer. These were the minimum essentials of a fair hearing by any Tribunal based on a wider rule of natural justice that no person shall be condemned unheard. An `inquiry' in an action is not limited to what a person can see with his own eyes. It signifies a judicial inquiry with witnesses and hearing of parties or their counsel on merits. To 'enquire' means to make investigation, or to examine systematically in detail. Webster's New Twentieth Century Dictionary (Unabridged) defines inquiry:--(1) the act of inquiring; a seeking for information by asking questions; interrogation, (2) search for truth, information, or knowledge; an investigation; examination into facts or principles;
(3) a question; a query. Dealing with the case of a trial of Election-petition under section 60 of Electoral College Act, 1964, in Abdul Hamid. v. Malik Karam Dad, P.C.S., Election Tribunal, Rawalpindi and 2 other PLD 1966 (W.P.) Lahore 16, a Division Bench of this Court on the mode of inquiry and its modicum observed at page 27 that "at the same time this does not mean that Tribunals can act arbitrarily and capriciously. The Tribunals especially in cases where they are required to adjudicate upon the civil rights of the parties are under an obligation to act judicially and are bound to follow the fundamental rules of evidence and fairplay which are embodied in the principles of natural justice. They are required to give an opportunity to the party affected, make some kind of enquiry, give a hearing and to collate evidene, if any, considering all the facts and circumstances bearing on the merits of the controversy before any decision is given by them. These are the essential elements of a judicial approach to the dispute. Prescribed forms of procedure are not necessary to be followed provided in coming to the conclusions these well-recognised norms and principles of judicial approach are observed by the Tribunal. This is the view taken in the last mentioned Full Bench case of the Corporation of the City of Lahore. In Sayad Shah v. Khuda Bakhsh (2) a Division Bench has held "that the proceedings held in contravention of the elementary principles of natural justice or of fundamental principles of judicial proceedings are no proceedings at all in the eye of Law.
11. In the present case although the provisions of the Evidence Act and the Code of Civil Procedure are not applicable to the enquiry by the Election Tribunal, nonetheless it is charged with the paramount duty to act judicially; to give notice of the election petition to all the interested parties; to hear them at trial of the election petition; it has to hold an enquiry and to record the evidence of the witnesses produced before it; it has got to give its decision concerning the civil rights of the parties in the light of the law. Therefore, in this case the main question to be seen is that has the Election Tribunal acted judicially and followed the fundamental rules of fairplay and evidence embodied in the principles of natural justice which it was bound to observe in the course of the trial of the election petition". Thereafter their Lordships dealt with the facts of the case.
12. ' In the same volume, another case of Abdul Shakoor v. Abdul Latif and others PLD 1966 (W.P.)
13. Lahore 187 on the same subject by a Division Bench of this Court is reported. It also dealt with the requirements of section 60 of the Electoral College Act, 1964. At page 192 of the report, in paragraph No,10, their Lordships of the Division Bench expressed them as:- "On merits of the case, learned counsel for the petitioner contended that because of rule 36 (1) of the Electoral College Rules, 1964, which made the proceedings before it summary, the Election Tribunal under a mistaken notion considered itself free to decide the election petition without affording any opportunity to the parties to adduce evidence in support of their respective cases. In this behalf, learned counsel strongly relied upon the petitioner's affidavit and what purports to be the record of proceedings before the Election Tribunal. The record of the proceedings leaves no manner of doubt that the Election Tribunal thought itself justified to decide the election petition merely on the allegations contained therein, and the arguments addressed by the parties counsel.
14. It appears that upon the election petition being received by the Tribunal notices were issued to the parties on 6-3-1965 for their appearance on 20-3-1965. The latter date was, however, declared a public holiday and the case was adjourned to be taken at Lahore on 4-5-1965. On this date, the parties with their counsel appeared and the record of the election was perused. Argument in the case was also heard and the case was adjourned to 5-5-1965 for orders. The record does not show that the parties were even asked or afforded opportunity to produce evidence. The case was then thrice adjourned for one reason or the other, without order being pronounced. Eventually, on 1-6- 1965, the Tribunal pronounced the order declaring the election to be void as a whole. Learned counsel for the contesting respondent did not dispute the fact that the case before the Election Tribunal was not adjourned for the evidence of parties but contended that the parties never chose or requested for adjournment for the production of evidence. It is impossible to believe that the petitioner who had won the election by majority of 104 votes should not have availed of any opportunity to produce evidence in support of the validity of his election, should an opportunity been allowed to him. We are inclined to believe the petitioner's affidavit supported as it is by the record of proceedings before the Election Tribunal that no opportunity was allowed to him to file his written statement in answer to the allegations in the election petition or adduce evidence to refute such allegations. This constituted a clear violation of section 60 (2) of the Act. It has recently been held in Muhammad Akram v. Captain CA. Saeed (1) that section 60 of the Act is mandatory in its requirement. Notwithstanding the fact that rule 36 of the Electoral Rules, 1964, inter alia, makes the proceedings before the Tribunal summary, it is a fundamental requirement of the section, that reasonable opportunity should be afforded to the parties to adduce evidence. Refusal to summon witnesses or to adjourn the case for that purpose is tantamount to a denial of reasonable opportunity to produce evidence and vitiates the entire proceedings before the Tribunal. The same view was taken by another Bench in Writ Petition No,434 of 1955. Indeed, learned counsel for the contesting respondent did not question the proposition of law laid down in these two recent precedents, but remained content with the suggestion that the petitioner himself chose not to file his written statement or to produce evidence and remained content with his counsel's argument before the Tribunal. As observed above, this suggestion does not deserve any serious notice." _ ' There is yet another case on the subject reported as Dil Muhammad v. Election Tribunal, Sialkot and others PLD 1966 (W.P.) Lahore 669, by another Division Bench of this Court in the same direction.
15. From the above, it is clear that the Election Tribunal or the Inquiry Officer was obliged to hold an inquiry into the allegations contained in the Election petition and afford the parties an opportunity of real defence for substantiating their divergent view-points, if need be, by leading evidence.
16. Therefore, the election case could not be disposed of merely on the strength of the Election- petition by applying Election Laws to it. Parties were not agreed on facts. There was a wide gap of difference between them. So, mere application of legal principles to them did not suffice. The difference was required to be bridged by necessary proof, in absence whereof, learned Tribunal could not have assumed that there was no dispute on facts. Respondent No,2 had pleaded that his valid votes numbering 468 had been wrongly excluded from the count because of absence of official mark on them. Objection to the exclusion by the petitioner was two dimensional. It was stated in the written statement that these ballot-papers were clandestinely and surreptitiously inserted in the ballot-box by respondent No,2 with the active collusion of the Polling Officer, and, therefore, the official mark on them was absent. Precise objection was that those were fake and ungenuine ballot-papers. Their legal issuance from the competent source and travel in the ballot- box were both questioned. Therefore, it could not be taken to be a mere omission of official mark on them, either advertently or inadvertently. Regardless of truth or otherwise of the defence statement and its plausibility, petitioner was entitled to a right of hearing for substantiating his defence and without evidence, he could not do the needful. Parties appeared to be at issue on questions of fact and law also. Therefore, an inquiry by the learned Tribunal was necessary and mere hearing of arguments assuming that those were addressed would not suffice the requirement of law. Emphasis of learned counsel for respondent No,2, on the kind of inquiry by a Rent Controller under the Rent Control Laws envisaged by their Lordships of the Supreme Court in case of Khadim Mohy-ud-Din v. Rehmat Ali PLD 1965 Supreme Court 459 was not apt. Scope and object of two laws were widely different. An inquiry under Rent Ordinance by a Rent Controller is intended to achieve a different object, whereas inquiry in an election-dispute fosters purity and fairness of elections, so dear to the democratic Institutions. Dealing with an election case in Narendra Madivalapa Kheni v. Manikrao Patil and others AIR 1977 Supreme Court 2171, the Supreme Court of India observed:- "Processual proprieties are designed to ensure fairplay in adjudications and while such prescriptions are not rigid punctilios, their observance serves to help the Judge do effective justice between parties and the disputants have faith in the intelligent impartiality and full opportunity so necessary for the success of the rule of law. In election proceedings where the whole community is silently present and the controversy is sensitive and feelings suspicious, the principles of procedural rectitude apply a fortiori. The Judge is the guardian of processual justice and must remember that judgment on judgment belongs, in the long run, to the people. We state this stern proposition here not merely because a forensic stitch in time saves cassational nine but because Courts are on continuous trial in a democracy'.
17. Therefore, without investigation into the disputed questions of fact, and, affording a reasonable opportunity of defence including a right to lead evidence, learned Election Tribunal could not have gone on to examine merits of the Election petition for its final decision. Its decision is, therefore, defective on this score, and, this ground alone is sufficient for setting aside of it. This brings me to the second point about non-hearing of arguments on merits of the Election-petition by the learned Election Tribunal. Mirza Anwar Baig Advocate, learned counsel for the petitioner stated at -Bar that he had neither notice for hearing of arguments on merits of the main case nor had he addressed arguments on the main case. His version was that only application for temporary injunction was argued, and, at no stage of hearing, the learned Election Tribunal put him to notice for adverting to arguments on merits of the case. Learned counsel submitted that he was prepared to submit his personal affidavit on this point. Ch. Mushtaq Ahmad Advocate, learned counsel for respondent No,2 countered the submission by reference to recorded dates of hearing by the Election Tribunal, and, submitted that there were clear indications on record that the main case was fixed for arguments also. Ch. Mushtaq Ahmad Khan Advocate did not conduct the proceedings on behalf of respondent No,2 before the learned Election Tribunal. Mr. Babar Awan was his Advocate there. He did not turn up for disputing the statement of Mirza Anwar Baig Advocate. Independent of it, impugned decision itself was indicative of the fact that full-dressed arguments on the main case were not addressed to the learned Election Tribunal. In Abdullah and another v. Mian Tafazzul Hussain and another PLD 1961 B.J. 58, a Division Bench of this Court took the view that the Code of Civil Procedure did not contemplate hearing of arguments by the Court as absolutely necessary because all that can be said on the language used in Order XVIII, Rule 2, is that if the parties or their counsel want to address arguments, the Court has to give them an opportunity to do so. In Haji Ibrahim v. Ismail and 9 others PLD 1976 Karachi 1075, the Court took the view that hearing of parties or their counsel was necessary before making a judicial order. Hearing of arguments from the parties or their learned counsel who are trained in the legal discipline effectively assists the Court to discover truth which is necessary for administration of justice. It is part of and is an important facet of the law of hearing contained in rules of natural justice. Without making inquiry and hearing of arguments, decision is denuded of real fragrance of a judgment and is reduced to imperfection.
18. Having dealt with the above two points, I shall now advert to the last point, whether re-poll could be confined to a single male Polling Station at Tahli Mohri or fresh balloting left to the arrangement between the 'contestants' and interpretation of rules to the Authorities. Rule 12 of Punjab Local Councils (Election Petitions) Rules, 1979, relating to kinds of decisions by the Tribunal is pari materia with Rule 79 of the Cantoninents (Elections and Election Petitions) Rules, 1979. Both the rules, were similarly worded. In Muhammad Hanif Shah v. The Election Tribunal, etc. 1985 M LD 374 a Bench of this Court considered rule 12 of Election Petitions Rules, 1979 (Punjab) for holding that order by the Election Tribunal for re-poll at some Polling Stations was not warranted under it. Since the decision of the learned Election Tribunal is being set aside on the above two points, it is unnecessary for me to express finally on this point. Learned counsel for respondent No,2 submitted that in the peculiar circumstances of a particular case, a partial re-poll may be the only requirement of law and not fresh re-poll at all the Polling Stations because term 'whole' includes 'part' also. The argument has the merit of clear ingenuity, and, on its face appeared attractive because in a given case, an illegality may attach itself to a single Polling Station or two, without any infirmity in regard to the other Polling Stations. But as I have said above, final opinion on this point is' unnecessary. Be that as it may, it was for the learned Election Tribunal to decide, whether the re-poll was required for the whole Ward or a part of it, and, this decision could not be abdicated either to the contesting candidates or the Cantonment Authorities. Further, since the decision was being quashed on other points, it shall be unnecessary to examine and express on the effect of absence of official mark on questioned ballot-papers as also that the decision of the Returning Officer for rejecting ballot- papers was final rendering it immune from scrutiny by the Tribunal.
19. Having regard to the aforesaid, writ petition is allowed; impugned decision of learned Election Tribunal is set aside and is declared to have been made without lawful authority. Result of it would be that the matter shall go back to it for its reconsideration and decision afresh in accordance with law and the observations made above. There shall be no order as to costs in this Court. Parties shall appear before the Tribunal below on 31-5-1992.
20. Records be returned.