' KHAWAJA MUHAMMAD SAEED, J.---The above-noted appeal filed under subsection (3) of section 63 of the Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 (hereinafter referred to as Ordinance), is directed against the order passed by the Election Tribunal on November 30, 1993 whereby, while declaring the election of the appellant from LA-26- Muzaffarabad-IV, as void, the re-election has been ordered.
2. Admitted facts are that general elections for the Azad Jammu and Kashmir Legislative Assembly were held on November 29, 1991. Raja Abdul Qaiyyum Khan (hereinafter referred to as appellant) and Choudhary Latif Akbar (henceforth referred to as the respondent) as the nominees of the Azad Jammu and Kashmir Muslim Conference and the Pakistan People's Party respectively contested the elections. Besides the appellant and the respondent Muhammad Yusuf Awan and one Abdul Qaiyyum who is arrayed as respondents also contested the elections from the same constituency.
The appellant obtained 21,896 votes as against the respondent who got 14,471 votes Respondent Muhammad Yusuf Awan and Abdul Qaiyyum obtained 396 and 216 votes respectively. Both these respondents despite service failed to appear before the Election Tribunal as well as before this Court as such were proceeded against ex parte.
3. The appellant having won the elections by a majority of 7,428 votes was declared duly elected and a Notification to this effect was issued on July 6, 1991.
4. The respondent challenged the legality of the election of the appellant by filing an election petition under section 49 of the Ordinance before the Chief Election Commissioner on August 19, 1991 which was later on entrusted to the Election Tribunal for hearing and disposal. In para. 3 of the election petition from sub paras. {{URDU TEXT}} the charges of illegal and corrupt practice at about 29 polling stations were levelled against the appellant, his election agents, the polling staff and the Muslim Conference, the Political Party of Azad Jammu and Kashmir to which the appellant is affiliated and the ruling party of Pakistan, particularly the Ministry of Kashmir Affairs and the Minister Incharge of the said Ministry at the relevant time. In the light of the allegations the respondent prayed that election of the appellant having been procured by using illegal and corrupt practice be declared void and fresh election be ordered.
5. The appellant denied all the allegations levelled in the election petition and also raised certain preliminary objections regarding the non-maintainability of the petition in the written statement which was filed by him on March 3, 1992.
6. Keeping in view the pleadings of the parties, the learned Election Tribunal on April 19, 1992, framed the following issues in the presence of the learned counsel for the parties:---
(1) Whether the petition is barred by limitation? O.P.R.
(2) Whether the petition has been drafted keeping in view the relevant provisions of Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 as amended up-to-date and the Azad Jammu and Kashmir Legislative Assembly (Election) Rules, 1970 as amended, if not with what effect? O.P.R.
(3) Whether the petition is incompetent for not impleading the polling staff and the workers of All Jammu and Kashmir Muslim Conference? O.P.R.
(4) Whether no allegations of any nature were levelled against respondent No,1 by the petitioner and for that reason the present petition is liable to dismissal? O.P.R. .
(5) Whether the petitioner manoeuvred reports from the Returning Officer and the Presiding Officer after announcement of the result of election by prevailing upon them and was guilty of fabrication and concoction of official record, if so, with what effect? O.P.R.
(6) Where other the allegations in para. 3 of the petition are borne out by the record of the ease and other evidence? O.P.R.
(7) If the allegations as contained in para. 3 of the petition are proved, then has the result of the election been materially affected, if so, with what effect? O.P.R.
(8) Relief.
7. The respondent besides himself produced 23 other witnesses. He also produced documentary evidence from P/1 to P/27 out of which P/1 to P/5 and P/24 to P/27 were filed along with election petition whereas the remaining documents were tendered in evidence during the course of his statement. The nature and relevancy of these documents shall be discussed in the latter part of this order.
8. In rebuttal, the appellant examined 14 persons as his witnesses and got his own statement recorded. The learned Election Tribunal vide order under appeal dated November 30, 1993, decided all the issues against the appellant and came to the conclusion that extensive corrupt and illegal practice had been committed in the abovementioned constituency and in consequence thereof declared the election of the appellant void and ordered fresh elections in accordance with law.
9. In the background of these facts, the present appeal has been filed before this Court.
10. Raja Muhammad Hanif Khan, the learned counsel for the appellant during the course of his arguments, mooted before this Court the finding recorded by the Election Tribunal on issues numbers 2, 3, 4, 5, 6, 7 and 8 and argued that the election petition does not conform to the relevant provisions of the Ordinance as no specific allegation of corrupt and illegal practice was attributed to the appellant in the Election Petition. Even the names of those persons who committed corrupt and illegal practice were not mentioned in the petition. The failure of the respondent to implead those workers, supporters and officials of the election machinery as answering respondents who according to him, had committed illegal and corrupt practice during the course of election was sufficient to dismiss his election petition as all those persons were necessary party. He further argued that decision of Election Tribunal about issues numbers 2, 3, 4, 5, 6 and 7 was against the evidence on record as such the finding of the Election Tribunal suffers from misreading and non- reading of the evidence. The conclusion drawn by the Election Tribunal is not based any evidence on record. Alternatively his argument was that in the light of the evidence two interpretations were possible and one favourable to the returned candidate i,e, the appellant, should have been preferred but in the present case the Election Tribunal has done otherwise. He further argued that a strict proof was required to prove the charges of corrupt and illegal practice as the proceedings were quasi-criminal in nature. He further argued that the burden of proving the corrupt and illegal practice was upon the respondent who had alleged the same in his election petition. But the respondent has failed to establish the same by leading impartial and independent witnesses, that the appellant as a returned candidate himself or by his election agents or through any other person by his connivance was guilty of committing illegal and corrupt practice alleged against him. In this view of the matter, the finding of the Election Tribunal is factually wrong and against the spirit of law on the subject:
(1) AIR 1975 SC 1718/2299.
(2) AIR 1975 SC 403/972.
(3) AIR 1974 SC 47.
(4) PLD 1976 SC 6.
(5) PLD 1957 SC 91.
(6) PLD 1973 SC 160.
(7) 1973 CLC 929.
(8) 1986 M LD 2245.
(9) AIR 1985 SC 887.
(10) PLD 1968 Dacca 332.
(11) PLD 1985 Journal 283.
11. In rebuttal the learned counsel for the respondent Choudhary Muhammad Ibrahim Zia vehemently opposed the arguments of the learned counsel for the appellant. According to him the authorities relied on by the learned counsel for the appellant from Indian jurisdiction had no application on the facts of the present case as all these authorities have been given under a different law. According to the learned counsel for the respondent the authorities from Indian jurisprudence have been given under the Act known as "Representative of Peoples Act of 1950" where the term "proved" has been used. In this view of the matter the authorities from Indian jurisprudence are distinguishable and have nothing common with the facts of the case under consideration. He further emphasized that issue No,2 was not pressed by the learned counsel for the appellant before the Election Tribunal as such by his conduct he is estopped to raise the same in appeal before this Court. He further argued that it has not been shown that as to why the Election petition does not conform to the relevant provisions of the Ordinance. The only point which has been repeatedly argued in this regard before this Court is that allegation of illegal and corrupt practice had not been attributed to the appellant in the election petition which fact is not correct.
He further argued that the right of appeal before this Court has been made available under subsection (3) of section 63 of the Ordinance which reads as under:--- "63(3). Any person aggrieved by a decision of the Tribunal may, within thirty days of the announcement of the decision, appeal to the High Court on any of the grounds enumerated in section 100 of the Code of Civil Procedure, 1908 (Act V of 1908) and the decision of the High Court on such appeal shall be final. Every such appeal shall be heard by a Division Bench of two Judges of the High Court."
' Therefore, the appeal before this Court can only lie on the grounds mentioned in section 100, C.P.C.
Which do not envisage a second appeal against a finding of fact, whereas all the points which have been raised by the learned Counsel for the appellant before this Court, relate to the finding of fact. His precise argument was that this Court cannot disturb the decision of the Election Tribunal on questions of fact even if it comes to the conclusion that an erroneous finding of fact has been recorded by the Election Tribunal. He relied:
(1) PLD 1975 Azad J&K 32, 20,
(2) PLD 1963 SC 191,
(3) PLD 1983 SC (AJ&K) 120,
(4) 1992 SCMR 298,
(5) PLD 1975 Pesh. 124,
(6) AIR 1975 SC 1909,
(7) PLD 1978 AJ&K 146.
12. We have taken into consideration the respective submissions of the learned counsel for the parties and have also gone through, the record of the case. We have also perused the authorities cited at the Bar. We are sorry to mention that some of the case-law cited by the learned counsel for the parties, has got no relevancy' to the facts of the instant case.
13. Before dealing with the points raised by the learned counsel for the parties during the course of their arguments, it appears necessary to resolve the controversy as to whether the petition filed by the respondent before the Election Tribunal does conform to the relevant provisions of the Ordinance, or not for the proper perception of the controversy involved, it is imperative to have a reference to para. 3 of the election petition in which the blame of corrupt and illegal practice was levelled by the respondent. Para. 3 of the election petition reads as under:- {{URDU TEXT}} {{URDU TEXT}}
14. We will take up issues numbers 2, 3 and 4 together as these are interconnected.
15. I For the resolution of controversy listed in these issues, the relevant provisions are contained in sections 50 and 51 of the Ordinance. Subsection (1) of section 49 of the Ordinance envisages that, no election shall be called in question except by way of an election petition made by a candidate in that election. Sections 50 and 51 are in these terms:--- "50. The petitioner shall join as respondent to his election petition --
(a) all contesting candidates; and
(b) any other candidate against whom any allegation, if any, of any corrupt or illegal practice is made and shall serve personally or by registered post on each such respondent a copy of his petition.
51. Every election petition shall contain --
(a) a precise statement of the material facts on which the petitioner relies;
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a 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; and
(c) the relief claimed by the petitioner.
(2) A petitioner may claim as relief any of the following declarations namely --
(a) that the election of the returned candidate is void;
(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected;
(c) that the election as a whole is void.
(3) Every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings."
' In section 51, the term "candidate" has been used. This term has been defined in subsection (2) of section 2 of the Ordinance in the following words:- "Candidate means a person proposed as a candidate for the election as a member."
Keeping in view the above-referred definition of the term "candidate" the only conclusion which can be drawn is that law does not require that respondent should have impleaded as respondents the agents of returned candidate (appellant) or the polling staff through, whom corrupt and illegal practice was allegedly committed by him. The requirement of law was that the respondent should have impleaded as answering respondents the candidates who contested the election and particularly the appellant against whom blame of corrupt and illegal practice was levelled by him.
15. The nature of allegations has already been stated by us in para. (13) of this order wherein the corrupt and illegal practice committed by the appellant have been specifically mentioned by the respondent. We hold that the appellant under the above-referred scheme of law was not required to array in the line of respondents the supporters of the appellant or the officials of the election machinery through whom the corrupt and illegal practice was allegedly committed. The objection in this regard is without merit. In these circumstances, we don't find that finding of Election Tribunal on these issues can be said to be unjustified.
16. Issues numbers 5 and 6 in our view are interlinked as such these can be conveniently disposed of together.
17. Before recording finding on these issues in the light of the evidence available on the record, it appears necessary to mention here that in para. 3 of election petition the blame of corrupt and illegal practice was levelled by respondent against the appellant with respect to following polling stations:- 1, 2, 4, 13, 15, 17, 19, 20, 22, 26, 27, 28, 43, 46, 47, 48, 54, 59, 64, 65, 70, 71, 72, 9, 16, 40, 45, 34 and 76.
' But he produced his oral evidence about the following 20 polling stations and the Election Tribunal also recorded its finding about these polling stations, namely:-
(1) Polling Station No, 2 Khatkair-Pain.
(2) Polling Station No, 8 Padhot.
(3) Polling Station No, 9 Mohra.
(4) Polling Station No, 16 Pinha.
(5) Polling Station No, 17 Pajja-Sharif.
(6) Polling Station No, 20 Poth-Salch-Gali.
(7) Polling Station No, 22 Narrat.
(8) Polling Station No, 26 Kot.
(9) Polling Station No, 27 Koomi.
(10) Polling Station No, 34 Cappa Batt.
(11) Polling Station No, 40 Kumhar-Bundi.
(12) Polling Station No, 42 Chamkutli-Azaim-Khan.
(13) Polling Station No, 43 Chotla.
(14) Polling Station No, 44 Narran.
(15) Polling Station No, 45 Akhhriyala.
(16) Polling Station No, 64 Chattar-Kalas.
(17) Polling Station No, 71 Kot.
(18) Polling Station No, 72 Sanoarian.
(19) Polling Station No, 76 Rajpothi.
(20) Polling Station No, 1 Katkair-Bala.
' Out of these polling stations, the Election Tribunal held that the allegations of corrupt and illegal practice with regard to Polling Station No,2 (Katkair-Pain), Polling Station No,8 (Padhot), Polling Station No,17 (Pajja-Sharif), Polling Station No,27 (Koomi) and Polling Station No,45 (Akhhriyala) and Polling Station No,71 (Kot) do not stand proved from the evidence on the simple ground that official witnesses who were summoned on the request of the respondent have not supported his version.
The respondent perhaps could not imagine that it was not possible for the officials to depose against the appellant who in the meantime, was taken in the Cabinet as Forest Minister. The learned counsel for the respondent made a request during his arguments that under Order 41, Rule 33, C.P.C. Very wide discretion is given to the appellate Court to pass any such order or decree that ought to have been passed, notwithstanding that the appeal is against a part of the decree or the contesting party has not filed an appeal or cross-objections. He therefore, requested that he may be heard against the finding of the learned Election Tribunal,
18. The general rule is that unless there is an appeal or cross-objections against the order or decree, the same shall not be varied or set aside. No reasonable ground has been disclosed as to why right of appeal was not availed of by respondent against the findings which were recorded against him as to B why did he fail to avail of chance to file cross-objections. In these circumstances, the prayer made by the learned counsel for the respondent is declined.
19. Before recording finding on these issues in the light of the remaining 12 polling stations, it appears necessary to decide the moot point about the standard of evidence in election disputes.
According to the learned counsel for the appellant the proceedings in election disputes are quasi- criminal, therefore, the allegation of corrupt and illegal practice must be proved affirmatively beyond reasonable doubt by producing independent witnesses. In the present case, the respondent has produced his polling agents and workers in support of the allegations. These witnesses were interested as such their testimony should not have been relied upon by the Election Tribunal. He further argued that fair opportunity was not provided to the appellant to lead his evidence on these two issues.
20. For the proper perception of the points raised in respect of the standard of evidence, it is imperative to have a reference to the relevant provisions under which the case-law referred by the learned counsel for the appellant has been laid down. The authorities from Indian jurisdiction have been given under the Act known as "Representation of the Peoples Act, 1950". Subsection (i) of section 99 of the Act being relevant is reproduced here:--- "99 (i). a finding whether any corrupt practice has or has not been proved to have committed at the election, and the nature of that practice;" ' whereas all the authorities from Pakistan jurisdiction have been given in the light of sections 67 and 68 of the Representation . Of Peoples Act, 1976. Section 68 for the purpose of controversy involved being relevant is reproduced below:--- "68. Ground for declaring election of returned candidate void.---(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that---
(a) the nomination of the returned candidate was invalid; or
(b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or
(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent.
(2) The election of a returned candidate shall not be declared void on the ground---
(a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by, or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission; or
(b) that any of the other contesting candidates was, on the nomination day, not qualified for or was disqualified from being elected as a member."
21. Under the Representation of Peoples Act, 1950, the order is to be made where the charge of corrupt and illegal practice committed during the course of election is proved by the person challenging the same whereas under the Representation of the Peoples Act, 1976 of Pakistan the Tribunal shall declare the election of the candidates to be void if it is satisfied that election of the returned candidate has been procured by using illegal and corrupt practice.
22. In Azad Kashmir under section 64 of the Ordinance, the Tribunal shall declare the election of the returned candidate to be void only if it is satisfied that-- "64 (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidates or his election agent."
23. Before the case-law cited from Pakistan jurisdiction is taken into consideration it appears convenient to discuss the following authorities which have been referred by the learned counsel for the appellant from Indian jurisdiction on the question of standard of evidence required in an election dispute, where the blame of corrupt and illegal practice was levelled against a returned candidate.
24. "Chaitanya Kumar Adatiya v. Smt. Sushila Dixit and others" (AIR 1975 SC 1718). The facts of the case were that respondent was declared elected to Madhya elector in the constituency filed an election petition before the High Court to have the election of respondent No,1 as returned candidate declared void alleging therein that he had committed various corrupt practices. Certain irregularities in counting the votes and non-compliance with certain provisions of the Conduct of the Election Rules, 1961, were also pleaded. The main allegation on which the corrupt practice was based was that returned candidate paid a sum of Rs,100 to Ramayan Mandal an Agricultural organization of a village. The petitioner in that case, produced some evidence. In rebuttal the returned candidate examined one Rameshwar Perashad who stated that this amount was received on the orders of the State Government. In the light of the evidence the High Court came to the conclusion that the amount in question was a discretionary grant which was made over by the returned candidate in December 1971 when she was a Minister In charge of Education Department.
In the peculiar facts of the case, while upholding the decision of the High Court whereby the election petition was dismissed it was observed as under:--- " The law requires that a corrupt practice involving bribery must be fully established. The evidence must show clearly that the promise or gift directly or indirectly was made to an elector to vote or refrain from voting at an election.
' The High Court found that the evidence on the point was neither reliable nor sufficient to prove that the grant was made with the motive of inducing the villagers to vote for the first respondent.
We don't find that on the evidence this finding can be said to be unjustified."
25. The second authority which was relied by the learned counsel for the appellant on this point is "Smt. Indira Nehru Gandhi v. Shri Raj Narain" (AIR 1975 SC 2299). In this case it was observed that grounds raised in the election petition must be proved strictly to deseat the elected representative and further that no amount of evidence brought on record could be looked into on a case not set up in the election petition.
26. The third authority is "Sri Harasingh Charan Mohanty v. Surendra Mohanty" (AIR 1974 SC 47). The facts of this case were that election of the returned candidate was challenged by a voter of the constituency. He challenged the election of the returned candidate on the grounds that the election was won by making appeal to the religious sentiments of the people of the constituency and also by making false promises to eradicate unemployment and poverty from the country and the imputation against the personal character and conduct of a contesting candidate. It was not pleaded in the petition that the returned candidate had levelled false charge of misappropriation against a rival candidate. However, he led evidence in support of this fact which was not considered.
27. It was opined in the light of the evidence adduced by the appellant who had challenged the election of the returned candidate before the High Court that the appellant had pleaded that corrupt practice was committed by an agent other than the election agent. Therefore, he was duty bound to prove that it was committed by him with the consent and approval of the returned candidate. On facts the Court further observed that allegation of corrupt practice as pleaded in the election petition should have been proved by leading cogent evidence. Mere conjectures and probabilities cannot take the place of proof.
28. The Supreme Court confirmed the view taken by the High Court that evidence of corrupt and illegal practice should have been proved beyond reasonable doubts against the returned candidate by a person who was not a candidate in the election. The Supreme Court in the circumstances of the case confirmed the view of the High Court whereby the benefit of doubt was allowed in favour of the returned candidate by the High Court. It was further ordered that when any corrupt and illegal practice is attributed to a person other than an election agent, then it must be proved that it was committed with the consent of the candidate.
29. After going through these authorities, we have come to the conclusion that in India the analogy of criminal trial holds good in election disputes. In these authorities it has been laid down that the allegation of corrupt and illegal practice must be proved strictly and the benefit of any doubt must go to the returned candidate.
30. Before we revert to case-law which has been referred to by the learned counsel for the appellant from Pakistan Jurisdiction it would not be out of place to mention here that sub-clauses
(c) and (d) of subsection (i) of section 68 of the Representation of Peoples Act, 1976, are the same as sub-clauses (c) and (d) of section 64 of the Ordinance applicable in the present case. Under both the above-referred sections, the Tribunal is competent to declare the election of a returned candidate to be void if it is satisfied on the ground which have been mentioned in sub-clauses (c) and (d) of both the enactments. So, the term "satisfied" has great significance. It is pertinent to note here that the term "satisfied" has not been explained in section 2 of the Ordinance. In these circumstances, as the term "satisfied" used in the Ordinance has not been defined in the Ordinance itself, therefore, in the light of the well-established general principle of Interpretation of Statute we have to revert to the ordinary dictionary meaning. According to Corpus Juris Secundum, the term "satisfied" means:--- "Satisfied". It has been said that 'satisfied' is a word of considerable expansiveness and means a great many things, and is of two general and diffusive significance to be used as a substitute for the familiar phrase 'beyond a reasonable doubt'."
' In Words and Phrases the term "satisfied" has been defined as under:--- "Satisfaction is defined as the act of satisfying; the state of being satisfied; and "satisfy" is defined as free from doubt, suspense, or uncertainty; to give assurance to; to set at rest the mind of; to convince,"
31. In "Syed Saeed Hassan v. Pyar All and 7 others" PLD 1976 SC 6, Mr. Justice Muhammad Afzal Cheema who spoke for the Court, explained the term "satisfaction" in the following words:--- "For a proper and reasonable interpretation of the provision, one has to closely examine in the first instance the connotation and implication of the two key expressions 'satisfaction' and 'entitlement'. `Satisfaction' is by no means a term of art and appears to have been used in its ordinary dictionary sense. 'Satisfaction' is the existence of a state of mental persuasion much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well-settled judicial principles and is a firm state of mind admitting of no doubt or indecision or exclamation. To be 'satisfied' with a state of things to be honestly convinced in one's own mind. According to Black's Law Dictionary apart from the 'legal satisfaction' which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. In Corpus Juris Sccundum 'satisfy' has been held to be synonymous with, `convince beyond a reasonable doubt' and 'satisfaction' has been explained as a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary 'to satisfy' means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince."
32. After going through the reports of the following cases:---
(1) "Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan,
(2) Mehr Muhammad Arif Khan,
(3) Ghulam Haider and
(4) West Pakistan Government and others" PLD 1957 SC 91.
(2) "Saeed Hassan v. Pyar Ali and 7 others" PLD 1976 SC 6.
(3) "Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others" PLD 1973 SC 160.
(4) "Mian Shah Jehan v. Haji Lal Karim" 1993 CLC 929 and
(5) "Abrar Mohiuddin Ahmed v. Zuhair Akram Nadeem" 1986 M LD 2245, ' we have come to the conclusion that Pakistani view is that in election disputes the burden of proving that the election of a returned candidate is liable to be set aside on the plea of his being responsible, either directly or through his agents and supporters for corrupt practice at the election, lies heavily on the petitioner to establish his case beyond any reasonable doubt. So, apparently both the terms "proved" under Indian Representation of Peoples Act, 1950 and "satisfaction" under Pakistani Representation of Peoples Act, 1976 have been interpreted and applied in similar sense by the superior Courts of India and Pakistan. We are also of the view that finding of corrupt and illegal practice against a returned candidate cannot be based merely on high probabilities that may be inferred from evidence on record in the given case but it must rest firmly on the evidence adduced by the person who has alleged these charges.
33. After deciding the question of standard of evidence required in election disputes, we take up the next point which was raised by the learned counsel for the respondent to the effect that keeping in view the bar contained by section 100, C.P.C. The finding of fact cannot be challenged before this Court. He relied on PLD 1975 Azad J&K 32, PLD 1963 SC 191, PLD 1983 SC (AJ&K) 120 and 1992 SCM R 2298 in support of his contention.
34. We have gone through the reports of the above-referred case-law. All these authorities have been laid down in civil matters though not in election disputes but the principle of law resolved is that finding of fact cannot be allowed to be challenged in second appeal in view of the bar contained in section 100, C.P.C., even if erroneous or different conclusion is otherwise possible.
35. On the other hand, Raja Muhammad Hanif Khan, the learned counsel for the appellant argued that right of appeal has been provided to an aggrieved party under subsection (3) of section 63 of the Ordinance. According to him, if the finding is opposed to evidence brought on record and based on surmises, then the finding of fact has got no sanctity. According to the learned counsel for the appellant, the Election Tribunal in the present case, has misinterpreted the evidence.
According to him, even though no proper evidence was adduced by the respondent even then the Tribunal drew unjustified inferences of facts in his favour. The scope of appeal in election matters was discussed in "Sher Bahadur Khan alias Malik Bahadur Khan v. Abdul Samad Khan and 14 others" PLD 1975 Pesh.
124. Mr. Justice Shah Nawaz Khan, J. Who spoke for the Court at page 127 observed as under:--- "This appeal has been submitted under section 64(3) of the National and Provincial Assemblies (Election) Ordinance, 1970, wherein it is provided that--- any person aggrieved by a decision of the Tribunal, may within 30 days of the announcement of the decision, appeal to the High Court on any of the grounds enumerated in section 100 of the Code of Civil Procedure, 1908'.
8. Section 100 of the Code of Civil Procedure makes provision for second appeal from a decree passed in appeal by a Court subordinate to the High Court. Such appeal, is, however, permissible on the following grounds only---
(a) that the decision (appealed against) is contrary to law or to some usage, having the force of law;
(b) that the decision (appealed against) has failed to determine some material issue of law or usage, having the force of law; and
(c) a substantial error or defect (committed therein) in the procedure provided by the Civil Procedure Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
9. In this appeal, as would appear from the perusal of the memo. Of appeal, the main, rather the only ground taken for attack on the finding of the learned Election Tribunal is on the question of fact whether or not, the respondent No,1 committed corrupt practices and exercised undue influence for securing votes as alleged in sub-paras. (ii) to (xxvi) of paragraph 1 and paragraph No,3 of the election petition. The grounds on which appeal under section 100, C.P.C. Is maintainable do not appear to be attracting any attention in this case. The petitioner tendered in the witness-box several witnesses to prove the factum of corrupt and illegal practices. Whether those witnesses have spoken the truth or not is also a question of fact and does not involve any question of law or some usage having the force of law. Mischief of section 65 and or section 67 of the Ordinance would be attractable only if the allegations of fact are proved. Right of appeal in the instant case is neither natural nor inherent, but it has been expressly given by the statute. An appeal under section 100 of the Code of Civil Procedure shall lie only on the grounds mentioned therein and section 101 thereof enacts that no second appeal shall lie except on the grounds mentioned in section 100.
Scope of appeal under section 100, C.P.C. Being limited to particular grounds of appeal, the conditions mentioned therein must, therefore, be strictly fulfilled before an appeal as such can be maintained."
35. It is pertinent to mention here that section 63(3) of the National and Provincial Assemblies (Election) Ordinance, 1970 is identical with subsection (3) of section 63 of the Ordinance applicable in Azad Kashmir. In the light of the above discussion, we agree with the learned counsel for the respondent that scope of interference in appeal in Azad Kashmir would be co-extensive with and subject to the limitations contained in section 100, C.P.C.
36. In this case, besides the allegation of misreading and non-reading of material evidence on the part of Election Tribunal, it was argued that the Tribunal fell in error in drawing unjustified inferences against the appellant. It was further argued that no inference can be drawn in election disputes against a returned candidate. The learned counsel for the appellant in support of his contention relied on AIR 1985 SC 887. He further argued that the following witnesses appeared on behalf of the respondents:--- {{TABLE}} (1)Raja Ali Bahadur Khan P.W. 5, (2)Ali Akbar Khan, P.W. 6, (3)Muhammad Ishaque Khan,P.W. 7, (4)Raja Muhammad Yusuf, P.W. 9, (5)Sardar Qasim Ali Khan, P.W. 10, (6)Muhammad Latif Khan, P.W. 11, (7)Muhammad Nazir Khan,P.W. 12 (8)Bagh Hussain Khan, P.W. 13, (9)Mozzammal Khan, P.W. 14. {{TABLE}} ' All these witnesses were election agents of the respondent as such were interested witnesses.
Therefore, without independent corroboration, they should not have been relied upon.
37. Before proceeding further at this stage, we will like to meet the arguments of the learned counsel for the appellant that in election disputes no adverse inference can be drawn against a successful candidate. He in support of his contention, as said earlier, relied on AIR 1985 SC 887. We have gone through the report of this case. There is no need to discuss the facts of this case as these are distinguishable from the facts of the present case. An inference was drawn against the returned candidate in this case on the ground that one Diwan Singh P.W.16 was suspended by the District Education Officer by an order, dated November 23, 1982 and subsequently transferred to Narnaul situated at 200 miles away from his original place which was his home town. The High Court which was seized with the election petition, observed that it was in his (appellant's) interest to see that this witness did not come on record. It was observed that: "I am clearly of the view that respondent No,1 somehow or the other secured the order of suspension and transfer of Diwan Singh P.W.16."
' The Supreme Court about this presumption recorded its disagreement in the following words:--- "We are wholly unable to appreciate this reasoning of the learned Judge. We do not see how the appellant was obliged to explain the circumstances under which P.W.16 came to be suspended and transferred to Narnaul by the District Education Officer's Order dated 23-11-1982 after the Commissioner appointed by the Court approached him and obtained a register from him or how the adverse inference could be drawn against the appellant by the learned Judge merely because the appellant was unable to explain how P.W.16 came to be suspended and transferred by the District Education Officer's order dated 23-11-1982 after a register had been obtained from him by the Commissioner appointed by the Court and it came to be known that P.W.16 may be examined as a witness in this election petition. We think that there is no justification whatsoever to draw any such adverse inference against the appellant."
38. From the perusal of the report of this authority, the Supreme Court of India had not specifically held that adverse inference cannot be drawn against a returned candidate. In the peculiar circumstance of the case, the Supreme Court. Rightly recorded its disagreement with the High Court. Therefore, we overrule the point and hold that even in election disputes a legal inference arising out of the facts of the case, can be drawn against any contesting party including the returned candidate. Holding otherwise would mean discriminatory application of law.
39. His second objection was that respondent, besides himself had produced his election agents in support of the charges levelled by him in respect of various polling stations.
40. We will like to dispose of this objection also here at this stage. In support of his contention the learned counsel for the appellant relied on PLD 1968 Dacca 332, PLD 1985 Journal 283. According to him, the election petition was required to be dismissed on this ground that polling agents were produced by the respondent in support of his statement. We have also gone through the reports of these cases. These cases have nothing common with the facts of the present case. In PLD 1968 Dacca 332 ex parte proceedings were taken against the returned candidate and final decision was based on solitary statement of the petitioner. In the peculiar circumstances of this case, it was held that proceedings before the Election Tribunal were judicial in nature. Therefore, the finding should be based on legal evidence. In the peculiar circumstances of that case, the Court observed that statements of Presiding Officer and Returning Officer should have been recorded for resolving the disputes.
41. The facts of the second authority are also distinguishable from the facts of the present case. In this case, the guiding principle was laid down about the interested witnesses by holding that such witnesses are not necessarily false witnesses. However, if facts are brought on record to prove that any witness has personal interest or stake in matter then the Court must be on guard. The evidence of such witness must be subjected to close scrutiny by the Court and if it is found that partisan and biased witnesses have given false statements in material particulars then the evidence of such witnesses must be rejected. In this authority, it is nowhere laid down that in all election disputes, the evidence of a polling agent must be rejected by treating him as an interested witness.
42. It will not be out of place to mention here that parties are allowed to appoint election agents under section 20 of the Ordinance. Under the scheme of law, the election agents are appointed to ensure free, transparent and fair elections. Unless and until it is proved that some election agent had motive to cause damage to contesting party, his evidence cannot be rejected merely on the ground that he being an election agent was an interested witness. On the other hand, he having a direct and first hand knowledge of the events, is in fact the primary witness.
43. After discussing the basic moot points, now, first of all, we take up three polling stations one by one where no vote was polled in favour of the respondent.
44. First of all we will take up Polling Station No,22 (Narrat). Ali Akbar P.W.6 was the polling agent of the respondent at this polling station. He deposed that on the day of elections, when early in the morning he reached at the polling station, apart from the polling staff, he saw 5/6 persons present at the polling station who all belonged to Muslim Conference. These persons were casting bogus votes. They did not allow any voter to cast vote. According to this witness, when he lodged protest against this illegal practice, he was turned out by the polling staff and the supporters of the appellant. According to this witness, he was not even allowed to cast his own vote.
45. In rebuttal, the appellant produced one Rahim Dad R.W.2. He admitted that at the time when he entered into the polling station in order to cast his vote, he found the polling agent of the parties sitting there. He denied that he was the polling agent of the appellant. He in reply to another question, admitted that Ali Akbar was present at the polling station. The reply appears to be important is reproduced here for further discussion:- {{URDU TEXT}} ' This witness has admitted in his statement that he saw Ali Akbar present at the polling station. Ali Akbar in his statement has claimed to be the registered voter and eligible to cast his vote at this polling station. This claim was not challenged by the appellant in cross-examination. In these circumstances, at least, the respondent should have obtained one vote if the evidence given by Rahim Dad was correct that every thing was in order, and voters were polling their votes according to their free will. All Akbar was not cross-examined on material aspect of this statement where he had categorically stated that even he was not allowed to cast his own vote. On the other hand, Rahim Dad R.W.2 does not appear to be a truthful witness. This witness has not owned the suggestion that Ali Akbar was pushed out of polling station. But at the same time, despite the fact that suggestion cannot take the place of substantive evidence unless same are proved by some evidence or appear true from attending circumstances. The suggestion appears true in the present case because as noticed earlier, if every thing at this polling station was in order, the respondent whose polling agent was seen by this witness sitting in the polling station should have at least obtained one vote of his polling agent who was admittedly a registered voter at this polling station. In the light of the above discussion, we hold that the election tribunal was justified in recording finding about this polling station against the appellant.
46. Now we proceed to take up Polling Station No,43 (Chotla). Raja Muhammad Yusuf appeared for the respondent in support of the charge which was levelled against the appellant whereas in rebuttal the appellant produced Raja Asif Majeed as his witness. Raja Muhammad Yusuf P.W.9 stated that he was neither allowed to place the ballot box of the respondent nor allowed to cast his vote. He was polling agent of the respondent. Raja Asif Majeed who appeared on behalf of the appellant deposed that he cast his vote at this polling station at 2-30 p.m. In reply to a question he replied that: {{URDU TEXT}} ' Impliedly he accepted that the respondent had somebody as his polling agent at this polling station. In reply to another question he said that:- {{URDU TEXT}} ' Again impliedly he accepted that the people of other tribes though in minority are residing in his village. The fact that no vote was polled in favour of the respondent is sufficient to hold that the statement of this witness is not true, therefore, we hold that this witness was rightly disbelieved by the Tribunal. We, therefore, uphold the finding of the Tribunal about this polling station.
47. Even at Polling Station No,44 (Narrat) no vote was polled in favour of respondent. Respondent produced one Bagh Hussain P.W.13 as his witness who deposed that he was the polling agent of the respondent for this polling station. According to this witness, about four persons belonging to opposite-party were casting bogus votes. He has further deposed in his statement that these persons had the support of the polling staff including the Presiding Officer. He has further stated that this illegal practice was adopted till last.
48. The learned counsel for the appellant, argued that this witness has not blamed the appellant or his supporters specifically. According to him apart from the appellant two other candidates, namely, Muhammad Yusuf Awan and Muhammad Abdul Qaiyyum Khan had contested the elections. In these circumstances, he argued that inference should have not been drawn that the witness had blamed the appellant or his supporters for any illegal practice.
49. We are sorry we cannot agree with the learned counsel for the appellant. The statement of this witness was recorded by the Election Tribunal where only the appellant was opposite-party as other two respondents had failed to appear and contest the election petition despite service.
Moreover, to a defeated candidate or his election agent, the opposite-party is the winning candidate and his supports.
50. Few questions were put to this witness in cross-examination. In reply to one question he replied that:--- {{URDU TEXT}} ' The status of this witness as polling agent of the respondent has not been disputed. In these circumstances, at least the vote of this polling agent should have been obtained by the respondent. No witness was produced by the appellant about this polling station in rebuttal.
Therefore, the Election Tribunal rightly resolved the dispute about this polling station against the appellant.
51. Now we take up Polling Station No,1 (Katkair Bala) and Polling Station No,76 (Rajpothi), where more votes were polled than the total number of registered votes. The allegation of the respondent was that at these two polling stations, extensive corrupt practice at the hands of polling staff, polling agents and supporters of the appellant took place on the direction of the appellant so much so that they with the connivance of the polling staff polled more votes than the total number of registered votes. In support of this allegation the respondent relied on P.W.1/3 wherein the total number of votes at Polling Station Katkair Bala were 824. According to him, with the connivance of polling staff, 830 votes were polled at this polling station. Again according to the respondent, the total registered voters at Rajpothi polling station were 724 whereas 749 voters allegedly polled their votes at this polling station.
52. We have examined P.W.1/3 and have come to the conclusion that the allegation made by the respondent in his election petition and supported by him in his statement before the Election Tribunal are correct. Under section 30 of the Ordinance, it has been laid down that where an elector presents himself at the polling station to vote, before the ballot paper is issued to him, the Presiding Officer shall satisfy himself about the identification of the voter. For the purpose of identification the Presiding Officer shall check the electoral roll whether the number and name of the elector is entered in it and shall also mark the number and name of the voter on the electoral roll to indicate that ballot paper has been issued to him. He shall also obtain the thumb-impression of the elector on the counter-file. At these polling stations we wonder how more votes were polled than the total number of registered votes. In his statement made before the Election Tribunal, the appellant has not said anything material about these polling stations. The appellant has not pleaded any fact in his written statement to destroy the effects of the blame of the respondent, as pleaded by him in his election petition. In these circumstances, we are convinced that the Election Tribunal has not committed any error while recording its finding against the appellant about these two polling stations. The trend of the votes polled, manifests the hold of a party at the polling station and the liability has, therefore, accordingly to be determined and fixed.
53. Now we will like to discuss four polling stations together where no polling took place on November 29, 1990. Polling Station No,9 (Mohra), Polling Station No,16 (Pinda), Polling Station No,40 (Kumhar-Bandi) and Polling Station No,42 (Chamkutli-Azim-Khan). According to the respondent, the supporters and agents of the appellant created law and order situation on account of which the polling staff could not proceed with the election process as required by law. The respondent has blamed the appellant for creating law and order situation. According to him, the workers and supporters of the appellant resorted to violence which terrified the voters. He has also quoted an instance that at Polling Station No,40 (Kumhar-Bandi) a boy of six years was killed as a result of firing of the supporters of the appellant. According to the respondent, the firing was effected with fire-arms which were provided by the appellant to his supporters. He has further claimed that he had the support of more than 90 per cent. Of voters at these polling stations but in order to terrify the voters from casting their votes in favour of the respondent, the appellant resorted to violence and created such a situation that polling staff and law-enforcing agency became helpless and could not ensure peaceful atmosphere for the voters to cast their votes without fear or hindrance.
This allegation was repeated by him even in his statement before the Election Tribunal in the following words:- {{URDU TEXT}}
54. The appellant besides making an evasive denial in his written statement about this allegation, stealthy while making statement about it before the Election Tribunal. In examination-in-chief he deposed that:--- {{URDU TEXT}} ' However, during the course of his cross-examination, he denied that any firing took place at any such polling station but when he was asked as to whether a case has been registered against his supporters for the murder of a boy who was killed at polling station (Kumhar-Bandi), he replied that the case might have been registered against them. He claimed that all the inhabitants of village Kumhar-Bandi were supporters of Muslim Conference. From this reply the Election Tribunal has drawn the conclusion that the appellant has in fact admitted the case of the respondent.
55. The respondent, during the course of his detailed statement about the abovementioned polling stations had also relied on two documents, i,e, Exh.PW-1/24 and PW-1/25. It appears that these documents were exhibited by the Election Tribunal without objection from other side. But were not relied by the Election Tribunal like other documents exhibited as PW-1/6 and onwards on the short ground that these documents could not be treated as certified copies of the original within the meaning of section 76 of the Evidence Act.
56. The learned counsel for the appellant, Raja Muhammad Hand Khan, during his arguments before us, vehemently argued that these documents were subsequently fabricated with the connivance of the Returning Officer who was close relative of Choudhary Abdul Majeed --- a colleague Member of the Cabinet with the respondent during the regime of previous Government and was appointed by the Government in which the contesting respondent was Finance Minister.
The learned counsel went to the extent in saying that these documents are not a part of the record or in the file of the Returning Officer.
57. Chaudhary Muhammad Ibrahim Zia, the learned counsel for the respondent, categorically denied the allegation and made a statement at the Bar that if these documents are not found on record, then the appeal of the appellant be accepted outright on this sole ground.
58. In the light of the abovementioned contentions of the learned counsel for the parties, we summoned the record with respect to LA-26-MuzaffarabadIV from the Office of the Returning Officer. We have gone through the record. All these documents have been obtained from the record of the Returning Officer by the respondent where original record is available. All these documents were issued to the respondent on his application but unfortunately even though photostat copies of these documents were provided to him yet the public officer who issued them, failed to certify them in the terms of section 76 of the Evidence Act. The only word which is written on all these copies is "attested" and thereunder is affixed the seal of the Returning Officer who had also signed them. Some questions were asked by the learned counsel for the appellant from the respondent during the course of his statement before the learned Election Tribunal.
59. In reply to a suggestion made by the learned counsel for the appellant, the respondent replied as under:- {{URDU TEXT}}
60. From the suggestion it appears that the learned counsel for the appellant had objection only about the documents exhibited as PW-1/11 to PW-1/16. In our opinion it was the duty of the official who issued these documents to the respondent to certify as to from which record and on whose application the said copies of the documents were issued by him. We arc convinced that certificate is not required to be in some particular form. The certificate should be given in the words that it was the copy of the original which was supplied to a particular person on his request. We are not taking these documents into consideration for this simple reason that we are judging the finding of the Election Tribunal in appeal on the material which was taken into consideration by the learned Election Tribunal. However, it will not be out of place to mention here that the allegation that these documents were subsequently fabricated with the connivance of the Returning Officer by the respondent is not justified. The Election Tribunal in view of the clear-cut allegation levelled by the respondent in his election petition and supported by him through elaborate statement as compared to the evasive denial of the appellant in his written statement and his vague statement about only two polling stations, had no alternative but to hold that the appellant, his election agents and supporters were responsible for creating such a situation in which about 3,184 voters were deprived of their right of franchise in favour of their representative even in the ending years of twentieth century. We endorse the finding of the learned Election Tribunal even about these four polling stations.
61. We shall now discuss the merits of the case of the appellant about Polling Station No,20 (Poth- Saleh-Gali) where, out of 6% polled votes, the respondent had been shown to have obtained one vote only as compared to the appellant who had been shown to have secured 686 votes.
Respondents Nos.2 and 3 had obtained two and one vote respectively whereas six votes were rejected. The respondent in support of the allegation produced one Muhammad Nazir P.W.12 who deposed that he was the polling agent of the respondent at this polling station. He reached at the polling station at 7-30 in the morning. Some male voters had reached the polling station by then but still no female voter had come at the polling station when the opposite-party picked up a quarrel with the polling staff as well as with the witness. The voters were forced to run away from the polling station without polling their votes. He was also compelled to leave the polling station.
Thereafter, the supporters of the appellant proceeded with ex parte polling.
62. In rebuttal, the appellant produced one Mumtaz Alam P.W.10 who introduced himself as election agent of the appellant before the Election Tribunal but it is astonishing that this witness was not able to disclose the name of the election agent of the respondent. The case of the respondent was put to him through a suggestion which was replied by him as under:--- {{URDU TEXT}}
63. The learned Election Tribunal recorded its impression about these witnesses as under:--- "Although, Muhammad Nazir P.W. Happened to be polling agent of the petitioner and in a sense may be described as an interested witness, his statement rings true and fits in with the circumstances of the case. I, therefore, feel inclined to accept the version of the matter given by him. The statement of Mumtaz Alam P.W.10 appears to be an incorrect one and can, in no way, minimise the value of the statement of Nazir Khan P.W. It will not be out of place to point out here, that in the elections held in 1990, the petitioner, at this polling station, secured as many as 78 votes."
' The Election Tribunal has recorded its observations about the demeanor of witnesses while discussing the evidence of the parties even about other polling stations. The learned-counsel for the respondent submitted that opinion of the Election Tribunal which has recorded the statements of these witnesses and noticed their demeanour must be respected. He placed reliance on AIR 1975 SC 1909 and PLD 1978 Azad J&K 146. It is not necessary to discuss these authorities in this order because it is our firm view that while deciding disputes on oral evidence, the opinion of the Courts which have recorded the statements of the witnesses and noticed their demeanour must be treated almost conclusive, because of the reason that the Presiding Officers of the Courts in view of the nature of their duty actively participated in the proceedings with full consciousness. The Presiding Officer of the Election Tribunal was a retired Judge of Peshawar High Court whose integrity and honesty cannot be doubted. In our view he has scrutinized the record of the case made available before him by the parties in a fair and impartial manner, as such we endorse his point of view which he has expressed about this polling station.
64. We also endorse the view of the learned Election Tribunal that the "voter's list issued in 1991 elections was the same which was utilized in 1990 elections. Therefore, during this period, quite a number of voters must have died as a result of which the total number of voters must have considerably decreased. And even out of remaining lot, quite a handsome number of voters would have not come to the polling station to cast their votes. It would, thus follow that bogus and false polling also took place at this polling station. The heavy number of votes (686) polled in favour of respondent No,1 point out to the fact that bogus and false voting took place at the instance of respondent No,1 and his supporters which was admittedly beneficial to respondent No,1".
65. We have taken into consideration the decision recorded by the learned Election Tribunal about Polling Station No,64 (Chattar Kalas). At this polling station total registered votes were 502. In election under challenge, the appellant, in the light of the admitted documents Exh.PW-1/3 got 488 votes, whereas the contesting respondent secured 5 votes. One ballot paper was rejected on technical ground. The Election Tribunal has rightly calculated 98.43 percentage of polled votes at this polling station. This much percentage has not been achieved even in most developed countries where literacy rate is more than 90 per cent. Admittedly the voters' list of 1990 elections was utilized in the elections held on June 29, 1991. The possibility cannot be ruled out that some of the male voters might have gone out of Azad Kashmir for earning their livelihood and some voters might have died during this period, as such we own the observations made by the Election Tribunal that the appellant who obtained 488 votes managed to cast votes of dead persons as well as the votes of those persons who were not present on the day of polls.
66. Now we are left with only one polling station i,e, Polling Station No,72 (Sanbarian). The respondent in support of his allegation produced one Muhammad Ishaque Khan as P.W.7 who has introduced himself as polling agent of the respondent before the Election Tribunal. According to him, the votes were not polled by the voters but were actually polled by a group of the persons belonging to Muslim Conference. According to this witness, some 50 to 55 voters polled their votes in favour of the respondent when a group of the persons of Muslim Conference created hindrance and did not allow this witness and other supporters of the respondent to cast their votes in favour of the respondent. No person was produced in rebuttal by the appellant. Thus, the statement of this witness stands unrebutted. According to PW-1/4 the respondent in 1990 elections had obtained 409 votes whereas the appellant got 78 votes only. But in the election in dispute, at this polling station out of 797 votes, the respondent had taken 57 votes as compared to the appellant who had been shown to have obtained 740 votes. The allegation of corrupt and illegal practice which was pleaded by the fespondent in his election petition and was supported by him through his statement and through the statement of Muhammad Ishaque Khan (witness) rings true and fits in the circumstances of the case as observed by the Election Tribunal. The appellant has failed to establish that fmding of the Tribunal about this polling station was defective.
' When all the above facts are put in juxtaposition, the irresistible conclusion is that the election as a result of which the appellant returned was not fair and lacks transparency in totality. The difference between the votes of the parties loses its significance when election as a whole is not found fair, impartial and transparent.
67. The last point raised by the learned counsel for the appellant was that the appellant was not afforded with an adequate opportunity to lead his evidence. In our view, the election disputes must be decided as early as possible. The parties should not be permitted to drag on and cause unnecessary delay. A positive order was passed by the Election Tribunal on September 19, 1993 directing the appellant to produce his whole evidence on the next date of hearing. No justification for not producing the evidence on the date fixed for recording it was shown by the appellant before the learned I Election Tribunal. Thus, the Election Tribunal had justification to refuse the appellant further opportunity to lead evidence. The parties cannot claim equal number of opportunities as of right. In judicial proceedings the adjournments for producing evidence are allowed in the light of the tenor of the proceedings by keeping in view the nature of the evidence likely to be adduced. In our view, the learned Election Tribunal has committed no error in law in refusing to adjourn the case further for leading the evidence of the appellant. Our interference, therefore, would not be justified at this stage.
68. In the light of what has been discussed in the foregoing paragraphs, finding no force in this appeal, the same stands dismissed.