' DORAB PATEL, J.-This is an election appeal, and the appellant and the respondent, other than the second respondent, were candidates for the elections to the National Assembly from Constituency No, NW 131 Karachi-4. As the appellant was declared the returned candidate, the first respondent filed an election petition against him. The appellant contested it whilst the fourth respondent admitted that the entire election should be set aside. The Election Tribunal allowed the petition by its order dated 12th May 1975. Hence this appeal, and both the first respondent and the fourth, respondent have filed cross objections.
2. The appeal has been argued at very great length by all the learned counsel, but a very strange feature of the arguments was that, at one stage or the other, all the learned counsel pressed for the remand of the case to the Election Tribunal with the prayer that, pending the remand, their candidates should be permitted to sit in the National Assembly, and, as this plea on the part of the appellant seemed strange, I would examine it first.
3. Lengthy evidence was recorded before the Election Tribunal, to which I will refer as the Tribunal, and the case was fixed for arguments in February this year. As this was during the pendency of a session of the National Assembly, the appellant's learned counsel filed an application before the Tribunal that it was not competent to proceed with the hearing of the first respondent's petition during the pendency of the Assembly session. The Tribunal dismissed this application and proceeded to hear arguments; therefore, although the entire evidence had been recorded, Mr. Khalid M. Ishaque's submission was that the impugned order was coram non judice, because the Tribunal had heard arguments in violation of the mandatory provisions of subsection (I) of section 4 of the Privileges of Members of National Assembly (Exemption from Preventive Detention and Personal Appearance) Act, 1963 (hereinafter called the said Act). Subsection (1) of section 4 reads:- "(4) Proceedings in Civil Court etc.-(1) Notwithstanding anything to the contrary contained in any law in force for the time being, no Civil or Revenue Court, and no Election Tribunal, shall proceed, during a session and for a period of fourteen days before and fourteen days after the session, with any matter before it in which a Member is a party, unless the privilege conferred by section 3 is waived, by application made in writing to the Court or Tribunal, as the case may be, by the Member concerned with the matter, and, where more members than one are so concerned, by all of them."
' As it is nobody's case that the appellant had waived his privilege in writing, Mr. Khalid M. Ishaq submitted that the Tribunal was not competent even to hear arguments in the first respondent's election petition. We, therefore, observed that the presence of the appellant at the time of argument was completely unnecessary, hut, according to Mr. Khalid M. Ishaq, the Tribunal as well as Civil and Revenue Courts were totally debarred from proceeding with any matter involving a Member of the National Assembly during the pendency of a session of the National Assembly. To say the least, the consequences of accepting the submission would be far reaching, but, as the prohibition imposed by the provision is with reference to the privilege conferred by section 3 of the said Act, it is necessary to examine this section :- "(3) The Privileges, etc.-(1) No Member shall be detained under any law relating to preventive detention, nor shall any Member be required to appear in person in any Civil or Revenue Court, or before any Election Tribunal, during a session, and for a period of fourteen days before and fourteen days after the session."
' The privilege under the section is attracted only when a Member of the National Assembly is required to appear in person, but, as I observed, the appellant's presence was not necessary at the stage of the case when, according to Mr. Khalid M. Ishaq, the Tribunal acted coram no judice, and, as learned counsel submitted that the Courts could not curtail the privileges of the Legislature, let me examine the submission by reference to an election A petition. After all, the Legislature is interested in the speedy disposal of election petitions, but, as its sessions necessarily tend to get longer and longer with the burden of modern legislation, the result of accepting Mr. Khalid M.
Ishaq's submission would be infinite delays in the hearing of election petitions. But this reacts adversely on the composition of the Legislature; therefore I would be reluctant to accept the submission advanced in the absence of very clear language in that respect. And, on the other hand, Mr. M. A. Pesh Imam submitted that as the Legislature had not given any immunity whatsoever to its Members with regard to criminal proceedings, howsoever petty, it could not be argued that the privilege had been extended to the luxury of hearing arguments in a matter in which a Member was involved. The submission illustrates the far-reaching consequences of accepting Mr. Khalid M. Ishaq's submission, but the question before us is only of construing the meaning of the words "be required to appear in person". As the Legislature was aware that a Member's presence might often not be necessary even in a case filed by him, would it have used the words quoted if it had intended to give that I would describe as a blanket immunity to Members? And further the words quoted were not unknown to the Legislature. Apart from the fact that they were to be found in the election laws, in my humble opinion, they are copied from rule 3 of Order V of the Civil Procedure Code. Order V deals with the issue of summons, and the first rule in it states that when a suit has been instituted "a summons may be issued" to the defendant to appear and answer the claim Rule 2 is not relevant, but rule 3 reads: "Where the Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person. . .."
' As the words "to appear in person" have been reproduced in section 3 of the said Act, I find it difficult to accept Mr. Khalid M. Ishag's submission, the more so, as the learned counsel was compelled to admit that the same expression had been used in the election laws for many decades. However, learned counsel's submission is supported by the observations of a Division Bench of the West Pakistan High Court in Mian Muhammad Sharif v. Member, Election Commission, Lahore and others (1) to whicu learned counsel drew or attention.
4. The facts in Muhammad Sharif's case are similar to those in the instant case. The Election Tribunal had heard a case during the pendency of a session of the Provincial Assembly of West Pakistan; Muhammad Sharif, who was aggrieved by the Election Tribunal's order, unseating him, had filed a constitutional petition against the Tribunal's order. But Muhammad Sharif's constitutional petition was dismissed on the {{FOOT NOTE}}
(1) PLD 1968 Lah. 219 {{FOOT NOTE}} ' ground that he had not taken his seat in the Provincial Assembly; therefore the learned Judges of the Division Bench were not called upon to decide whether the Election Tribunal's proceedings had become illegal, because the Tribunal had continued to hear the case during the pendency of a session of the Local Assembly. When we pointed this out to learned counsel, he referred us to the observations of the learned Judges in paras. 7 to 9 of the judgment. But I find that in para. 7, the learned Judges have merely stated the contentions raised by the petitioner, and one of these contentions was that the impugned order was illegal, because the Tribunal had continued to hear the case during a session of the Provincial Assembly despite the mandatory provisions of section 5(1) of the Provincial Assembly of West Pakistan Privileges Act, 1964. The provisions of this statute are in pari materia with those of the said Act, and, with reference to the contention that the Tribunal had acted in contravention of section 5(1) of the Provincial Assembly of West Pakistan Privileges Act, the learned Judges observed in para. 9: "(9) The bar in the way of the Election Tribunal, the Commission or a Court in proceeding during the prohibited period with a matter against a Member of the house in subsection (1) of section 5, is in the nature of an order of stay of proceedings by operations of law, and if in spite of it, proceedings are held, they are no proceedings in the eye of law, for it is settled law that if proceedings are taken by an inferior Court in violation of a stay order made by a superior Court, the proceedings, taken are null and void. The same conclusion is reached, if we take for example the case of a decree passed against a member during the prohibited period. Will not a member be able to have it set aside as void, or obtain a declaration that the decree is a nullity? We are, therefore, inclined to hold that if the petitioner was a member of the Provincial Assembly, then the proceedings of the learned member were null and void, although he raised no objection to the taking of the proceedings, and though he was present before the learned member on the 14th of June 1965, and on his behalf an undertaking was given on the 8th of June 1965 that he will not take an oath as a member."
' Whilst these observations support Mr. Khalid M. Ishaq's submission to the hilt, with the utmost respect, I have to point out that the learned Judges have not given any reasons for the view taken by them of the privilege conferred by section 4, and it does not appear from the judgment that any arguments were addressed on the scope of a member's privilege. However, if paragraph 9 had contained the ratio of the case, we would have been inclined to accept Mr. Khalid M. Ishaq's submission that it was binding on us. But their Lordships expressly pointed out in the next paragraph that the petitioner had not become a member of the Provincial Assembly, and, as the privilege conferred by the Provincial Assembly of West Pakistan Privileges Act could have been claimed only by a member of the Provincial Assembly, it is clear that the observations in paragraph 9 of the judgment are obiter, and I am not aware of any case in which a Division Bench of a High Court has c been held to be bound by the obiter of another Division Bench of that High Court.
5. I would also quote here a passage from Halsbury's Laws of England (Third Edition). In paragraph 1683 of the 22nd Volume, it is stated: "1683. Dicta.-Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand (usually termed dicta) have no binding authority on another Court, though they may have some merely persuasive efficacy (c)".
' Mr. Khalid M. Ishaq, however, relied on passage in the corpus juris and other American Publications, but none of the passage was on the precise point before us namely is a Court bound by the obiter of an equal Court.
6. Learned counsel then attentpted, on the basis of a passage in Allen's - "Law in the Making," to draw a distinction between obiter dicta and mere dicta and submitted that, as the observations in the case cited were obiter dicta and not simply dicta, they were binding on us. Allen in the fifth Edition of his famous treatise observes at page 242: "Judicial opinions are known as obiter dicta, or simply dicta, and it is extremely difficult to establish any standard of their relative weight.
It is certainly a mistake to regard all dicta as equally otiose and therefore equally negligible. Much depends on the source of the dictum, the circumstances in which it was expressed, and the degree of deliberation which accompanied it."
' Thus, the learned author's statement is much more qualified than learned counsel's submission. In any case, as the learned author has based his distinction on a judgment of the Court of Appeal, and I will now examine that judgment.
7. In Slack v. Leeds Industrial Co-operative Society (1), Sterndale, M. R., observed at page 451:- "Dicta are of different kinds and of varying degrees of weight. Sometimes they may be called almost casual expressions of opinion upon a point which has not been raised in the case, and is not really present to the Judge's mind. Such dicta, though entitled to the respect due to the speaker, may fairly be dis-regarded by Judges before whom the point has been raised and argued in a way to bring it under much fuller consideration. Some dicta, however; are of a different kind; they are, although not necessary for the decision of the case, deliberate expressions of opinion given after consideration upon a point clearly brought and argued before the Court. It is open, no doubt, to other Judges to give decisions contrary to such dicta, but much greater weight attaches to them than to the former class".
' I agree with Mr. Khalid M. Ishaq that the dicta, relied upon by him, fall under the second type of dicta referred to by the Master of the Rolls in the passage quoted; therefore they command the highest respect, and it is with the utmost reluctance that I have decided to take a contrary view, but, as I explained, this is because the attention of the learned Judges of the Lahore Seat of the High Court was not drawn to the provisions of section 4 of the Provincial Assembly of West Pakistan Privileges Act, 1964. And further even in Slack's case, after drawing the distinction between the two types of cases, the Master of the Rolls referred to judgments of the Court of Appeal, in which the dicta were considered dicta. He, therefore, followed them, but even this was with the observation, which is to be found as page 452: "I think the decision in Martin v. Price (1894) 1 Ch. 276 shows that it is open to us to decide the question contrary to those dicta, and the question is whether we ought to do so. I am of opinion that we {{FOOT NOTE}}
(1) (1923) 1 Ch. 431 {{FOOT NOTE}} ' ought not, and that if opinions of such sight given after such careful consideration more than thirty years ago, often mentioned and considered during that time and never disapproved, are to be overruled, it should only be done by the final tribunal of appeal and not by a Court of co- ordinate jurisdiction ".
' It was not Mr. Khalid M. Ishaq's case that the obiter in Muhammad Sharif's case had even been considered in any other case; therefore, on the principles laid down by the Master of Rolls, it is clear that the obiter in Muhammad Sharif's case is what Mr. Khalid M. Ishaq described as mere dicta, and, for the reasons given by me, I would not follow it.
8. I now turn to the other arguments advanced, and I would first point out that the margin between the appellant and the first respondent was a very narrow margin. Further, the appellant had succeeded on the basis of the postal ballot votes in his favour cast on or after 4th December 1970.
But, according to the Tribunal, they should have been cast before this date; therefore the Tribunal rejected them. Mr. Khalid M. Ishaq submitted that the view of the Tribunal was contrary to the express provisions of section 37 of the National and Provincial Assemblies (Elections) Ordinance, 1970 (hereinafter called the said Ordinance), and we had examined his submissions in the order passed by us on the appellant's injunction application. For the reasons which I have given in that order, Mr. M. A. Pesh Imam stated that E the votes cast before the consolidation date were valid and that the Tribunal had erred in rejecting the votes cast after 4th December 1970; accordingly I will not burden the record by repeating the arguments advanced in support of this submission by Mr. Khalid M. Ishaq, and I hold that the Tribunal had acted illegally in rejecting the votes cast in the appellant's favour on the ground that they had been cast after 3rd December 1970.
9. Now, according to Mr. Khalid M. Ishaq, if the votes, thus rejected, were allowed to be counted in favour of the appellant, the appellant would succeed, because the margin of votes between the appellant and the first respondent was very narrow; therefore, without prejudice to his contention, that the case should be remanded for arguments, Mr. Khalid M. Ishaq submitted that, as the Tribunal had illegally rejected the postal ballot votes cast after 3rd December 1970, that finding should be set aside and the appeal allowed. We were astonished by the submission, because the first respondent had pressed his petition on several grounds, and merely because one of those grounds was erroneous, I do not see bow we can allow the appeal. The question is of the validity of the other grounds relied upon by the first respondent in support of his election petition, and it is necessary to examine each of those objections.
10. The first respondent had filed forty-five applications under section 37 of the National and Provincial Assemblies Election Ordinance (hereinafter called the said Ordinance) for recounts at various polling stations on account of alleged breaches of the law mentioned in those applications.
This objection was vehemently pressed, and the forty-five applications of the first respondent were duly brought on the record and exhibited. And, as they had been filed before the Returning Officer, the first respondent examined this Returning Officer, Mr. Moosvi, on his forty-five applications. As the appellant's learned counsel was late on the day when Mr. Moosvi was examined about these applications, the Tribunal compelled the first respondent to examine Mr. Moosvi without these applications until the appellant's learned counsel chose to turn up at his own time. I am constrained to express my regret at the manner in which the Tribunal acted, because justice must not only be done but must be seen to be done. However, despite this obvious handicap, Mr. Moosvi was able to recollect the irrigularities at three Polling Stations 5, 30 and 70, and I would now examine his evidence about these three polling stations.
11. The application for a recount at Polling Station No, 5 was on the ground that "the envelopes were not in order, and further this was agreed that the ballot papers will be counted property". Mr. Khalid M. Ishaq criticised this application as vague, but an application for a recount cannot possibly be0 equated with an election petition. Obviously Mr. Moosvi also did not think so, because he said in his evidence. "I would have ordered recoun of Polling Station No, 5, if I had given time." I have quoted the words o the witness as they are to be found in the copy of his deposition. Then as .To the other two polling stations, the witness said: "In respect of Polling Station No, 70, I had on opening the envelope containing the statement of count and the envelope containing the votes (excluded ballot papers from the count) found the discrepancy like this "that instead of 39 ballot papers I had actually counted 32 ballot papers in the envelope though the statement mentioned that those doubtful votes excluded from the count were 39 in number. I had actually made such a note on Form XIV of statement of count presented to me by the President Officer of Polling Station 70. It is true that at Polling Station 30 the number of votes polled shown therein is 1401, but in the statement of count given to me by the Presiding Officer this number is shown to be 1405...The record sent to me by the Presiding Officer of Polling Station 30 showed that on the envelope containing the excluded ballot papers it was written that it contained 31 ballot papers but when I opened it I had found only 17 ballot papers therein. I had made such a note, but I did not order recount. I had sat in my chair for 36 hours continuously in connection with the preparation of consolidated list and the parties and their agents were all there with me. I had promised to recount in respect of Polling Station 5, but after sitting at chair after 36 hours I have no life left in myself and I could not venture upon recounting or sitting for any further time."
12. This evidence is sufficient to prove that there were irregularities in the counting of votes at three polling stations which required further investigations, and an application for a recount is only an application for further investigations. However, remedies have to be prosecuted according to the law, and as the first respondent did not file an application for a recount at Polling Station No, 70, Mr. Moosvi's evidence is of no avail to his case; therefore Mr. Pesh Imam pressed only for a recount at Polling Stations 5 and 30, but Mr. Khalid M. Ishaq submitted that, as the Tribunal had, in the exercise of its discretion, rejected these applications, we could not interfere with that decision, because no question of law was involved in it. Mr. Khalid M. Ishaq also submitted that an application for a recount could not be allowed unless the applicant proved that he would be declared the successful candidate if his application for a recount was allowed.
13. I would now examine Mr. Khalid M. Ishaq's arguments, and, as the question is of construing the Returning Officer's powers, I may point out that they are set out in subsection 5 of section 37 of the said Ordinance. This subsection reads: "The Returning Officer shall not recount the valid ballot papers in respect of any polling station unless, (i) the count by the Presiding: Officer is challenged in writing by a contesting candidate or his election agent and the Returning Officer is satisfied about the reasonableness of the challenge; or (b) he is directed so to do by the Commission".
' On the plain language of the subsection, a recount must be carried out by Returning Officer if he is directed to do so by the Commission, or, if he "satisfied about the reasonableness of the challenge."
The satisfactio contemplated by this provision is an objective satisfaction; therefore Returning Officer cannot reject an application for a recount arbitrarily, and, in the instant case, Mr. Moosvi admitted in his evidence that he had decided, as the Returning Officer, to allow the application for a recount at Pollin Station No,
5. He then said that he was not able to carry out his decision, because he was tired. Mr. Pesh Imam challenged this failure to carry ou the recount as mala fide, and Mr. Moosvi's failure to do his duty was for a reason extraneous to the said Ordinance, but, as the Tribunal had bee enthusiastic in its approval of Mr. Moosvi's orders, it should have taken a recount of the votes at Polling. Station No, 5, because that was Mr. Moosvi's order, which he had failed to carry out. The Tribunal's reasons for not doing so were that it would have allowed the recount "but for the fact that the petitioner had not in his evidence stated anything regarding Polling Station No, 5, nor was Mr. Moosvi questioned regarding the alleged irregularities in respect of Polling Station No, 5." Mr. Khalid M. Ishaq sought to defend the first reason given by the Tribunal on the plea that the first respondent had to prove that his application for a recount was necessary.
That is correct. But the appellant had not dared to cross-examine Mr. Moosvi about his statement that he had decided to allow a recount at Polling Station No, 5; therefore the first respondent had proved to the hilt the necessity of a recount at this polling station, and he was not required to repeat in his evidence what had been proved by the person most competent to give evidence on the question, namely, the Returning Officer. Next, as to the Tribunal's second reason, it was nobody's case that Mr. Moosvi was an eye-witness of the irregularities at Polling Station No, 5, and, as he admitted that the application for a recount was justified, I am unable to understand the observation of the Tribunal that the witness had not been questioned "regarding the alleged irregularities in respect of Polling Station No, 5". I regret to say that the inferences drawn by the Tribunal are whimsical, and I would allow a recount at Polling Station No, 5.
14. I now turn to Mr. Khalid M. Ishaq's submission that an application for a recount can be allowed only if the applicant can prove that the result of the recount would make him the successful candidate. In my humble opinion, if this had been the criterion for the Returning' Officer's satisfaction under section 37 (5), the Legislature would have enacted accordingly, but it did not.
Secondly, the submission, if accepted, would lead to absurd and arbitrary consequences, and I would illustrate this by reference to the instant case. There were 106 polling stations, and the appellant claims a majority of about 50 votes. Now, I will assume, for the purpose of examining Mr. Khalid M. Ishaq's submission, that there were errors in counting in favour of the appellant and against the first respondent, so that, on a proper count, the first respondent, and not the appellant, would have been the successful candidate. Further I will examine two possibilities: An error of 106 votes consisting of an error in the counting of one vote at each of the 106 polling stations and an- error of only 51 votes at one polling station only. Obviously, the first' respondent would have a larger majority under the first possibility then, under the second, but, if we accept Mr. Khalid M. Ishaq's construction of section 37(5) of the said Ordinance, only the application for a recount under the second possibility could have been allowed and, no doubt, the first respondent would then have been declared the successful candidate. However, the first respondent's applications for a recount under the first possibility were not fit to be allowed, according to Mr Khalid M. Ishaq, because the first respondent was necessarily not in a position to prove that he would have been successful if any single one of those applications had been allowed. Now, the first respondent's majority was larger under the first possibility, yet, if we accept the submission advanced, he would not even have been entitled to a recount. Thus, the results of accepting the submission would be both absurd and arbitrary and put a premium on illegal and corrupt practices, but fortunately there is nothing whatever in the language of section 37(5) to support the peculiar construction sought to be placed upon it by learned counsel.
15. Mr. Khalid M. Ishaq then stated that his argument was supported by a judgment of the Indian Supreme Court in Sharma v. Dove Chandra and others (1), the learned counsel relied on the observations in paragraphs 5, 6 and 9 of the judgment. But the question before the Indian Supreme Court was of setting aside an election, while the question under section 37(5) of the said Ordinance is of the conditions under which a recount should be allowed. As the circumstances relevant to the question of setting aside an election are totally different from the circumstances relevant to the question of a recount, the judgment cited is irrelevant. However, it will be relevant to Mr. Pesh Imam's further submission that the election petition of the first respondent should also have been allowed by the Tribunal on the ground that certain votes had been illegally counted in the appellant's favour. I will presently consider this submission, but I am satisfied that the Tribunal dismissed the first respondent's application for a recount at Polling Station No, 5 illegally, and its decision is set aside.
16. As Mr. Khalid M. Ishaq was aware of these difficulties, he had further submitted that we could not interfere with the Tribunal's decision, except on the same grounds on which the appellant could press his appeal under section 64 of the said Ordinance. As an appeal under section 64 lies only on the grounds enumerated in section 100 of the Civil Procedure Code, the further submission was that the first respondent could not challenge any finding against him except on a question of law ; therefore the first respondent could not challenge the Tribunal's decisions against him. But, as the first respondent's petition had been allowed, he had no means of challenging the findings against him. It is true he has filed cross-objections, but Mr. Khalid M. Ishaq had taken objection to these cross-objections on the ground that they were barred by Order XLI, rule 22 of the Code of Civil Procedure. When we reminded Mr. Khalid M. Ishaq of the submission advanced earlier by him, he referred us to a judgment of a learned Single Judge of the Nagpur High Court in Kesheo son of Bhika and others v. Tukaram son of Puna (2). Whilst this judgment supports learned counsel's submission, in Lala Gauri Sanker Lal and others v. Janki Pershad and others (3), the Privy Council observed in a second appeal with reference to the rights of the respondents (who were defendants in the trial Court) in the appeal before them : "It was decided against {{FOOT NOTE}}
(1) AIR 1954 SC 513 (2) AIR 1951 Nag. 8
(3) I L R 17 Cal. 809 {{FOOT NOTE}} ' the defendants but the decree being entirely in their favour it was not necessary for them to file a notice of objection under section 561 of the Code of Civil Procedure. They could support the decree on the ground that the second issue ought to have been decided in their favour". Unfortunately, the attention of the learned Single Judge of the Nagpur High Court was not drawn to this judgment, which was directly on the point under consideration before him. Instead, he purported to follows other judgments of the Judicial Committee in which their Lordships had only discussed the rights of the appellant in a second appeal. But, as the Judicial Committee did not have occasion, in any of the cases referred to by the learned Single Judge, to examine the nature of the respondent's right to contest a second appeal, in my humble opinion, the learned Single Judge erred in holding that his view was supported by the judgments relied upon by him. And, on the other hand, the observations of the Judicial Committee in Lala Gaurl Sanker Lars case were directly on the point before the learned Judge and are inconsistent with the view taken by him. It is, therefore, not surprising that a Division Bench of the same High Court took a contrary view, five years later, in Mt.
Nagi w/o Ramlu and others v. Smt. Rajkunwar Saheba w/o Dharamrao Bhujangrao and others (1). I am not impressed by Mr. Khalid M. Ishaq's submissions, and I would turn to the meagre reasons given by the Tribunal for rejecting all the applications of the first respondent for recounts.
17. At the outset, I have to observe that, though the question was of great importance, the Tribunal has given hardly any reasons for its wholesale rejection of the first respondent's applications. What it has done is to summaries the facts of the forty-five applications, and then expresses its whole hearted approval of Mr. Moosvi's orders rejecting all these applications. But, in the course of the narration, the Tribunal has picked up a few applications at random and given reasons for dismissing them - therefore I would first examine those few applications, which were dismissed by the Tribunal after an examination, however cursory, of the first respondent's contentions.
18. The very first application of the first respondent was for recount at Polling Station No, 106 on the ground that "the envelopes are without seal and the figures of the ballot papers do not agree with the figures given by the polling agent". Mr. Moosvi's order is almos illegible, but as far as I can decipher it, it reads : "The statement of th count and one for the returning kept in different envelopes are found open". The Tribunal's observations on this order are "In that application the allegation was that at P. S. 106, the envelopes were without seal and the figures of the ballot papers did not agree with the figures given, by the polling agent. Hence it was requested that recounting be done. It is, however, significant that the Returning Officer while admitting that the envelopes were found open, did not apply his mind to the further allegation that the figure of the ballot papers did not agree with the figure given by the polling agent". I can only construe these observations to mean that, in the Tribunal's opinion, there were irregularities, which required investigation ; therefore it should have ordered a recount. But, instead of doing so, the Tribunal continued its narration of the facts and then dismissed all the applications with the sweeping observation that the was no justification for interfering with Mr. Moosvi's orders. In m humble opinion, the conclusion thus given by the Tribunal is {{FOOT NOTE}}
(1) AIR 1956 Nag. 138 {{FOOT NOTE}} with its own observation about Polling Station No, 106, and I would set aside its decision and allow a recount at this polling station.
19. The Tribunal also examined, though very briefly, the applications about Polling Stations 4, 8 and
9. The ground for a recount at Polling Station No, 4 was that "there was a difference in the statement recorded on the envelope and the contents". Mr. Moosvi in his order stated that he had examined the contents of the envelope "which I counted and gave the correct figure and obtained the signature of candidate and agent". The burden was on the first respondent to prove that this order was illegol, and as Mr. Moosvi was not cross-examined on this order, the first respondent's evidence, by itself, is not, in the circumstances, sufficient to prove that this application was wrongly rejected. Then, as to the application for a recount at Polling Station No, 8, it was pressed on the ground that there was a difference of the votes counted and the certified copy of the statement.
But Mr. Moosvi rejected this application with a reasoned order. Yet no evidence was led to show that this order was wrong, nor did Mr. M. A. Pesh Imam advance any arguments to show that the order, rejecting the application for a recount at Polling Station No, 8, was illegal ; therefore I would hold that this application was rightly dismissed by the Tribunal. Next, as to the application for a recount at Polling Station No, 9, the ground was "there is a difference of 11 votes between the votes of (the appellant) and of (the first respondent). 11 valid papers were treated invalid". Mr. Moosvi rejected this application with the observation that the objection taken by the first respondent was not sound. The first respondent neither examined Mr. Moosvi about his order, nor did he examine his polling agent, who had filed this application; therefore the first respondent is not in a position to prove that this application was fit to be allowed, Accordingly, I would agree with the Tribunal's decision rejecting this application, though not for the reasons given by the Tribunal.
20. Another application for a recount, which the Tribunal examined and rejected was the application for a recount at Polling Station No, 5 but, as I have explained earlier, 1 would allow this application in view of Mr. Moosvi's evidence. Then, as far as I can see, the Tribunal has examined three other applications and rejected them. The application for a recount at Polling Station No, 17 was on the ground that there was "a difference on the figure of the envelope and the ballots". This was an irregularity, which obviously required examination, but Mr. Moosvi had not passed any order on this application ; therefore it became the Tribunal's duty to examine the objection. Instead of doing so, it has observed : "I have no data to determine as to whether such a difference was actually there. The petitioner's side has given a list of the polling stations at which there were discrepancies. But in that list Polling Station No, 17 is not there." I find it difficult to understand these observations. The data to determine, "whether such a difference was actually there", was the record of the polling station at which a recount was sought. And I would repeat here that the discrepancy between the statutory statement on the envelope and the number of ballot papers inside it was sufficient ground for believing that there was perhaps a mistake on the part of the polling staff ; therefore the first respondent had clearly brought his case within the ambit of section 37(5) of the said Ordinance. But the Tribunal dismissed the application on the further ground that some list did not contain reference to Polling Station No,
17. On or enquiries, we were inform that the Tribunal had asked for a statement from the first respondent's learned counsel of a list of the alleged discrepancies at the various polling stations, and this list did not show that there was any such discrepancy at Polling Station No,
17. Obviously, the list, thus supplied by counsel, was only a convenient method of submitting arguments. The oral submission was substituted by a written submission, but as counsel can also make mistakes, there was nothing sacrosanct about this list, and, in view of the proved discrepancy between the statement on the envelope and the number of ballot papers inside it, the Tribunal should have allowed a recount at this polling station.
Accordingly I set aside its decision and order a recount of the votes cast at Polling Station No, 17.
21. The only two other applications examined by the Tribunal were the applications for recounts at Polling Stations 27 and 89. The ground, on which the recount was sought at the former, was that there was "a difference of votes in the statement of count and stated by the (illegible) polling agent". Mr. Moosvi has made what is described as a note on the application and also inscribed what is stated to be an order. I can only read the order to mean that the ground, on which the recount was sought, was correct, but the application is disposed of with the words "Nothing can be done. File". I am not able to understand these words, because only a recount could have shown whether anything could be done or not, and all that was sought to be done was an investigation into the effect of the irregularity. But Mr. Moosvi's note on the application reads : "This application is given when the envelope is closed". I confess my inability to understand the meaning of this note, nor was Mr Khalid M. Ishaq able to throw any light on it. But the Tribunal rejected the application with the observation : "On the application it was remarked that the application was given when the envelope was closed and nothing could be done in the matter. I do not find any wrong with this order". I confess my inability to understand the Tribunal's view, and Mr. Khalid M. Ishaq's only assistance on the point was that we could not interfere with the Tribunal's order, whether it was right or wrong. That submission I have rejected, and I would, therefore, set aside the Tribunal's order and allow a recount at Polling Station No,
27. Then, as to the application for a recount at Polling Station No, 89, it was also sought by two other candidates, and the ground was that "the envelopes are not sealed". Mr. Moosvi's order merely reads : "It is true that the packets are not sealed, but they are pasted already". Does this order mean that the application was dismissed? I do not think so, because, if so, Mr. Moosvi would have used the laconic expression used by him in dismissing the applications, namely, the word "file". Nor can I see how Mr. Moosvi, as the Returning Officer, could have dismissed an application, which alleged a violation of the mandatory provisions of section 36 of the said Ordinance, the more so, in view of his finding that this allegation was correct. How then did the Tribunal reject even this application. It ha merely observed : "There was, however, no indication of any tampering, and, if any, the unsealing may be due to inodvertence, or, non- availabilit of sealing material. Hence on that account alone recount was no justified" Mr. M. A. Pesh Imam submitted that this reasoning was perverse, and though the expression used is strong, I regret to say that I agree with it. The law directed the sealing of packets, and that for the very obvious reason that seals cannot be tampered with as easily as envelopes which have merely been pasted. Accordingly, setting side the Tribunal's decision, I order a recount at this polling station also.
22. I now turn to the applications, which were rejected by the Tribunal without any reasoning, and as the applications are not even --numbered, I would examine them in the order in which they are pinned -together. The first application was for a recount at Polling Station No, 106, and I have discussed and allowed this application. The nex application was for a recount at Polling Station No. 1, and, because Mr. Mossvi's order on it was that it concerned the Election Commission, Mr. M. A.
Pesh Imam submitted that the Tribunal should have allowed it and held a ,recount. But no.Grounds were given for the recount, and, as a recount can only be allowed if the applicant makes out reasonable cause for it, on this short ground alone, the application merited dismissal. I would, therefore, not interfere with the Tribunal's order rejecting this application. The next application was for a recount at Polling Station No, 2 on the ground that the statements of count were not signed, and that the ballot papers of rthe appellants were "not correct". There is nothing in Mr. Moosvi's order to show that he had accepted the allegations on which this application was based as correct. Accordingly, as the first respondent challenged the dismissal of the application, he had to lead evidence to prove that the allegations, on which the application was pressed, were correct. As there is no such evidence, the application was rightly dismissed. The next application is for a recount at Polling Station No, 3 on the ground that the entire documents were not in one bag. Mr. Moosvi has stated in his order that the allegation was correct, but that it was a matter for the Election Commission, or, for the Election Tribunal to decide. Clearly, therefore, there was an irregularity, but whether that irregularity was material, or, immaterial could only have been shown after an investigation, a recount. Yet the Tribunal rejected the application without giving any reasons for its view. I set aside its decision and direct a recount at this polling station.
23. The next two applications were for recounts at Polling Stations Nos. 4 and 5 and have been considered by me. Then comes the application for a recount at Polling Station No, 7 on the ground that some ballot papers had not been granted. Mr. Moosvi's order on it is ambiguous ; therefore, the first respondent had to prove that the allegation contained in the application was correct. When we invited Mr. M. A. Pesh Imam to refer us to such evidence, as we could not find it, learned counsel stated that he dropped the application. This was proper. The next two applications are for recounts at Polling Stations 8 and 9 and have been examined by me. The application for a recount at Polling Station No, 15 was totally vague and was rejected by Mr. Moosvi. Accordingly, as the first respondent did not produce any evidence to show that the ground, on which the recount was sought, was correct, the Tribunal's decision, rejecting the application, was correct. Mr. Khalid M.
Ishaq then submitted that the applications, which were not supported by evidence, were not fit to be examined. I would agree with the submission, subject to the observation that the first respondent was not required to prove that the ground, on which the recount was sought, was correct in all those cases in which the ground had been admitted by Mr. Moosvi to be correct. We, therefore observed that only those applications for a recount required examination by us which were supported by evidence, or by the order of Mr. Moosvi, and, as Mr. M. A. Pesh Imam conceded the position, I would only examine ,such applications.
24. The application for a recount at Polling Station No, 25 was on the ground that the tendered votes had been treated as challenged votes, and it would appear from Mr. Moosvi's order that this objection was correct. The first respondent's case is, therefore, supported by a judgment of a Division Bench of the West Pakistan High Court in Pil Muhammad v. Election Tribuhal, Sialkot and others (1), yet the Tribunal rejected the application. Accordingly, I order a recount at this Polling Station.
25. I cannot find any other application in which Mr. Moosvi has accepted as correct the ground on which a recount was sought, and, in any case, we were not referred to any such application. I would, therefore, now turn to the applications supported by evidence, and there are for such applications. The application for a recount at Polling Station No, 30, was on the ground that "the contents of the envelope and the votes do not agree. Besides this, the total given by the Polling agent did not agree with the record". This clumsily drafted application is fully supported by Mr. Moosvi's evidence, which was ignored by the Tribunal. Finally, the application for a recount at Polling Station No, 20 is supported by-the first respondent's evidence, and, as he was not cross- examined on it by the appellant, despite a lengthy cross-examination, I would allow both, these applications.
26. Two applications were filed by the first respondent himself and are supported by his evidence, one of which sought a recount" because of the wrong propaganda that some illiterate persons have fixed the stamp on the back of the ballot papers" As the first respondent had dropped, objections other than objections to the proper counting of votes, Mr. M. A. Pesh Imam dropped this application, which would fail, because it was, completely vague and did not specify the polling station at which these irregularities occurred. The second application was for a recount at Polling.
Station No, 59 on the ground that as "the officer's stamp had not been fixed properly, the candidate should not suffer for the fault of the election staff". Unfortunately, a candidate has to suffer for the breach of the mandatory provisions of law, and the application has to be rejected in view of section 31 of the said ordinance, therefore I would not interfere with the: Tribunal's decision.
27. The result of this discusson is that the applications for recounts at Polling Stations 3, 5, 17, 20, 2 27, 30, 89 and 106 are allowed, and Mr. M. A. Pesh Imam submitted that, in view of the order of the Supreme Court, the recount had to be done by the Tribunal. The relevant order has not been produced, but 1 have no doubt that the proper course, would be to remand the case to the Tribunal for the recounts at these Stations, and this conclusion is relevant, to the next set of objections under section 27 of the said Ordinance on which the first respondent had pressed his election petition.
28. Both Mr. Khalid M. Ishaq and Mr. M. A. Pesh Imam stated that the elections had turned on the postal ballot votes ; therefore I would point out that, according to Mr. Moosvi, 342 applications had been filed for postal ballots and all these had been issued, but only 235 persons had cast their votes by postal ballots. The relevant file has been produced and proved, but, before I examine Mr. M. A. Pesh Imam's submissions. I would first set out the relevant provisions of section 27, which read : "27. (1) The following persons may cast their votes by postal ballot in such manner as may be prescribed, namely :
(a) A person referred to in clause (2) or clause (3) or clause (4) of Article 12 of the Electoral Rolls Order, 1969, and {{FOOT NOTE}}
(1) PLD 1966 Lah. 669 {{FOOT NOTE}} b) A person appointed by the Returning Officer for the performance of any duty in connection with an election at a polling station other' than the one at which be is entitled to cast his vote.
(2) An elector who, being entitled to do so, intends to cast his vote by postal ballot shall,-
(a) in the case of a person referred to in clause (a) of subsection (1), within ten days from the date of the publication of the notification under section 11, and
(b) in the case of a person referred to in clause (b) of that subsection, as soon as may be after his appointment, apply to the Returning Officer of the constituency in which he is an elector for a ballot paper for voting by postal ballot ; and every such application shall specify the name of the elector, his address and his serial number in the electoral roll."
' Only two classes of citizens had the right to vote by postal ballot ; the persons referred to in Article 12 of the Electoral Rolls Order, 1969, and persons performing duties in connection with elections, and, as to the first category, there was no dispute about persons in Government service and their wives. As there was a dispute about for vote cast by prisoners, I may point out that clause (4) of Article 12 of the Electoral Rolls Order, 1969, reads : "12. .......................................................................................................................................
(4) A person who is detained in prison or other legal custody at any place in Pakistan shall be deemed to be resident in the electoral area in which he would have been resident if he had not been so detained."
' Now, under clause (a) of subsection (2) of section 27, these for prisoners bad to apply to cast their votes by postal ballots by the 25th of October, and here 1 may point out that both the learned counsel admitted that this was the relevant date within the meaning of the clause. And although Mr. M. A. Pesh Imam submitted that this was also the last date for election staff seeking a postal ballot, the submission is contrary to clause (b). Such staff had to apply to cast their votes by postal ballots "as soon as may be" after their appointment ; therefore belated applications would be tarred, and, in any case, it is very clear that the right of voting by postal ballot was limited to persons performing duties in connection with elections and was not extended to any members of their family. With these observations, I now turn to Mr. M. A. Pesh Imam's arguments.
29. Mr. M. A. Pesh Imam submitted that postal ballot papers had been illegally issued to the for prisoners whose names are shown in the application at page 435 of the file containing the applications for postal ballot papers. The submission is correct. The application at page 435 is from the central Jail and is dated 6th December 1970. , This was near six weeks after the prescribed date, namely, 25th October 1970 yet page 435 of the file shows that postal ballot papers had been issued to the for prisoners, who had thus applied to vote by postal ballots. Mr. Khalid M. Ishaq's only answer to this patent illegality was that it was not material, and he relied on the, Judgment of the Indian Supreme Court in Sharma's cane, which I have discussed earlier in paragraph 15. The judgment fully supports Mr. Khalido 'M. Lshaq's submission, but Mr. M. A. Pesh Imam's objections were not limited to these for votes only. Thus, he referred us to page 169 of the file, according to which a postal ballot paper was issued to a lady, who claimed to he the wife of a member of the election satff. The issue of a postal ballot paper to this lady was patently illegal. On going through the file, we have found several other illegalities. Thus, for example, postal ballot papers had been issued to the two persons whose application is at page 65 of the file, but only one of these two applicants was employed in the elections, yet he applied for and obtained postal ballot papers for himself and his wife. Similarly, the application for postal ballot papers at page 195 of the file was by a member of the election staff, one Mr. Haider Hussain, and two members of his family. It passes my comprehension how the application of the two members of Mr. Hussain's family was allowed, and I regret to have to say that a closer examination of the file may reveal more illegalities.
30. Mr. M. A. Pesh Imam then submitted a list of more than a hundred persons who had applied for postal ballot papers on or after the 4th December 1910, and the submission was that all the ballot papers issued to these persons had been illegally issued, because they had applied after the date prescribed in clause (b) of subsection (2) of section 27 of the said Ordinance, and initially, as I explained, learned counsel's submission was that these applications had to be filed by the 25th of October. But, as submitted by Mr. Khalid M. Ishaq the date, 25th October, was relevant only to those persons whose application fell under clause (a). This clause did not apply to election staff, who had to apply for their ballot papers "as soon as may be" after their appointments. Confronted with this difficulty, Mr. M. A. Pesh Imam, referred us to the evidence on the point, which I will now examine.
31. Mr. Moosvi was questioned about the date of his appointment and the date of appointment of election staff generally. The date of the appointment of the witness is not relevant, but what he said about the appointments of the election staff is relevant, and the witness said that "the appointments must have been made on 15th October 1970, as that was the day fixed by the Commission". Now, the members of the election staff were required to apply for postal ballot papers "as soon as may be" ; therefore, if a person appointed on the 15th October, applied for his ballot paper in December, it cannot possibly be contended that the ballot paper had been issued to him legally. This evidence is prima facie fatal to the votes cast by persons who had applied for ballot papers in December, yet, to my astonishment, the witness was not cross-examined on this evidence by the appellant. Further, although the appelant examined Mr. Moosvi as his own witness, he did not question him on the statement which I have quoted. Mr. Kausar was another witness examined by the first respondent, who categorically stated that all polling staff had been appointed fifteen days before the election, but this witness also was not cross-examined by the appellant. Mr. Abdur Rahim Jan, Assistant Returning Officer, was the third witness examined by the first respondent on this question, and he said "Our appointment was made three to for months before the election, but I do not exactly remember the date, or, month". The witness then went on to state that he could not recall anything. But in cross-examination to the appellant, he said : "The appointments of Presiding and Polling Officers had been changing up to the last stage. Those who were on election or official duty had an opportunity of casting their votes by postal ballot papers.
Different instructions were being issued by the Election Commission from time to time". The admissions of this witness in cross-examination lend some support to Mr. Khalid M. Lshaq's argument that members of the election -staff could have applied for postal ballot papers as late as the 5th or 6th of December. Mr. Khaiid M. Ishaq also relied on the evidence of the Assistant Election Commissioner, Mr. Muhammad Farooq, who was examined by the appellant. This witness stated in his examination-in-chief to the appellant : "The postal ballot papers were meant to be issued for election staff as well. Some changes were made in that staff up to the last minute . . .
Postal ballot papers were ordered to issue for persons who got appointment orders on 6th or 7th December. I produced the copy of instructions issued in connection with postal ballot papers as Exh. 186-A". Now, Exh. 186-A had been issued for the provincial elections, and not the national elections, and, in any case, the witness admitted in cross-examination that Exh. 186-A was not intended to overrule previous instructions. He further admitted in cross-examination that the list of "polling personnel" was available. Accordingly, the evidence of the witness was adjourned for about two weeks to enable him to file the list, which would have shown whether there had been changes in the polling staff up to the 6th or 7th December, as claimed by him. Now, it happended that the examination of the witness was resumed after nearly for weeks, yet, despite all this time, the witness said in cross-examination : I could not lay my hands on the list of the polling personnel in spite of my best efforts. They may be with the R. 0 The entire original record is with R.
0. He was to maintain registers regarding postal ballot papers". Mr. Khalid M. Ishaq admitted that the letters "R.
0." meant the Returning Officer. But no list of polling personnel had been produced by the Returning Officer either ; therefore the Tribunal's comment on this evidence was : "All these things prove that the postal ballot papers bad been from the outset not dealt with legally by the Returning Officer, Assistant Returning Officer, or, their staff. Hence none of these ought to have been counted towards the valid vote of any candidate". On the evidence, which I have examined, I would agree with these observations, and they are fatal to Mr. Khalid M. Ishaq's submissions, the more so, as he had even submitted that we could not set aside the Tribunal's view even when it was erroneous. However, after the observations quoted, the Tribunal further stated : "But it may be urged that for the faults of the election staff a candidate cannot suffer. Hence I am examining each individual postal ballot paper to find out whether it could be counted as valid vote towards the votes of a particular candidate". The Tribunal then examined the ballot papers and rejected all those cast after 4th December. But reverting to its observations, Mr. Khalid M. Ishaq contended that the observation, that a candidate should not suffer for the faults of the election staff, meant that the Tribunal had condoned the irregularities in the issue of the postal ballot papers. In the first place, no Tribunal could condone any breach of the mandatory provisions of law and the provisions of section 27 are, in my humble opinion, mandatory. Secondly, I cannot accept the construction sought to be placed by learned counsel on the Tribunal's observation. At the most, it seems to me that the Tribunal was unable to make up its mind, but it does not mean that it had rejected Mr. M. A. Pesh Imam's challenge to the legality of the postal ballot papers.
32. Mr. Khalid M. Ishaq then referred us to Exh. 186-A, on the basis of which the appellant's witness had sought to justify the grant of ballot papers even to persons whose applications were patently barred by time. As Exh. 186-A refers to the provincial elections, I observed that it was totaly irrelevant to the date for applying for postal ballot papers for the national elections. Learned counsel then referred us to the first two paragraphs in the 'instructions, which read : "Persons appointed as Presiding and Polling Officers are entitled under section 27 to cast their vote by postal ballot. In some cases those appointments were made at a late stage. For this or some other reason persons so appointed for the conduct of National Assembly Poll did not get an opportunity for availing of this facility in time.
' As regard police personnel and Qaumi Razakars appointed for duty in connection with the elections, since there was no specific provision, the Commission issued a direction under section 92-A that they may be permitted to cast their vote by postal ballot."
' The second paragraph contains an express direction about the postal ballot: papers to be issued to police personnel and Qaumi Razakars, and learned counsel thought that some of the applicants in the file (Exh. 104) might be police personnel and Qaumi Razakars. But learned counsel did not even attempt to refer us to any such application, persumbly because the insructions (Exh. 186-A) had been issued for the provincial elections, whilst the question in this appeal is of elections to the National Assembly. Learned counsel then feebly submitted that a direction similar to that contained in Exh. 186-A must have been given for the elections to the National Assembly, but, although we gave him time for producing these alleged instructions, he did not produce them. And, on the other hand, the first paragraph in Exh. 186-A, which I quoted, implies that the election staff had been debarred from voting in the elections for the National Assembly because of the failure to issue appropriate instructions in time. Therefore, far from supporting learned counsel's submission the instructions (Exh. 186-A) go against it.
33. The Tribunal has also noticed the irregularities in the maintenance of the registers for the postal ballot votes, and Mr. M. A. Pesh Imam naturally relied on these observations. I will presently revert to this aspect of the case, but I would first refer to other irregularities in the issue of postal ballot papers, to which Mr. M. A. Pesh Imam referred us. Chapter X of the Report of the election Commission issued on 11th July 1972, contains the instructions under section 92 of the said Ordinance, and, according to paragraph 7, an application for a postal ballot "had to specify, besides the voters' names, the name of the electoral area, his address and his serial number in the electoral roll". According to Mr. M. A. Pesh Imam, postal ballots had been issued in breach of this direction, and I also find that postal ballots had been issued to persons who had given only their own names without any other particulars. What guarantee is there that ballot papers granted on such vague applications had not been collected by importers? There are also applications on which the signature for the application and the signature for the receipt of the ballot paper seem to differ. There are also cases in which more than one ballot paper has been issued on a single application, as submitted by Mr. M. A. Pesh Imam. Additionally, on going through the file (Exh. 104), I found several applications in which the applicants have applied for a postal ballot by merely stating that they were entitled to it under subsection (3) of section 27 of the said Ordinance. As the applications lack the particulars for identifying the applicant, I cannot help expressing my anxiety about the issue of ballot papers on such applications. I, therefore, agree with Mr. M. A. Pesh Imam that the issue of the posta ballot papers in riddled with irregularities. It is, of course, not known whether the persons, who had thus illegally obtained postal ballot papers, bad voted for the appellant, or, for the first respondent, or, for some other candidate.
34. Mr. Khalid M. Ishaq attempted to get out of this difficulty by contending that the first respondent was barred from pressing these objections, because he had not pleaded them in his election petition, and because he had R dropped these objections vide the Tribunal's order of 30th September, 1974. Taking the second objection first, the Tribunal's order of 30th September 1974, reads : "At this stage, Mr. Pesh Imam states that he would not press anything except that which relates to the counting of votes and rejection of ballot papers by the Returning Officer". Now, the first respondent had based his cause of action in his election petition both on alleged mal- practices on the part of the appellant and on irregularities and mistakes in the counting of votes, and Mr. M. A. Pesh Imam's submission was that his concession had reference only to the allegations of mal-practices against the appellant. I agree with the submission but I am constrained to express my surpirse at the assumption made by both the learned counsel that the first respondent, as the petitioner in an election petition, was entitled at his sweet will and choice to drop allegations, which, if true, might lead to the conclusion that the entire elections were fit to be set aside. I will presently examine this assumption.
35. I now turn to Mr. Khalid M. Ishaq's contention that the first respondent is debarred by his pleadings from challenging the postal ballot votes, except on the ground that the votes cast after 3rd December 1970 could not be counted. According to the appellant's memorandum of appeal, the relevant objection was pleaded by the first respondent in para. 30 of his petition, which reads : "30. That it was not disclosed by the Returning Officer that he has also received postal ballot papers he had not maintained the proper records of the same and even the inspection of the postal papers was not allowed to the petitioner and illegally included all the postal ballot papers without looking into their validity and no objection made by the petitioner was considered in this respect."
' The appellant's reply to these allegations in para. 23 of his written statement was that the first respondent's allegations "in para. 30 are unwarranted and unjustified". Although the averment by the first respondent was vague, the appellant's denial was even vaguer. And further the first respondent had categorically stated that inspection of the postal ballot papers had not been allowed to him, and that proper records had not been maintained. Although these are allegations of facts, they were not denied by the appellant. Similarly, the allegation of the first respondent that his objections had not been examined by the Returning Officer was also not denied. Therefore the Tribunal was free to hold under Order VIII, rule 5 that the first respondent's allegation, that proper records had not been maintained of the postal ballot votes, was correct. It has accepted this view, but on the considerable evidence produced by the first respondent. And I would emphasise that the appellant had the opportunity of cross-examination and utilised that opportunity on certain points only. He also produced evidence to rebut the first respondent's case on the objections which clearly fell within the ambit of paragraph 30 of his petition. But it is true, as submitted by Mr. Khalid M. Ishaq, that the allegations in the paragraph are vague. However, the appellant had never objected that the evidence produced by the first respondent was beyond the pleadings, and as he took the chance of obtaining a decision in his favour should he be permitted now to contend that this Court must reject the evidence about gross irregularities in as election, merely because of lack of proper pleadings? I was disturbed by the submission because of the public interest in the maintenance of purity in elections, and, on going through the law, I found a judgment of a Division Bench of the West Pakistan High Court in Haji Muhammad Rafique v. Additional Commissioner and Election Tribunal, Hyderabad Division and others (1) on this question.
36. The facts in Muhammad Refique's case are similar to those in the instant case. It would appear that the Election Tribunal had decided an objection which had not been pleaded, but on which the parties had led evidence. Relying on judgments of the Supreme Court, the contention of the petitioner was that the Tribunal had erred in permitting the respondent to put up in evidence a case which had not been set out in his pleadings. In repelling this submission, Anwarul Hach J.
Pointed out that the judgments of the Supreme Court, on which the petitioner relied, related to charges of corrupt practices. His Lordship, who was then a judge of the West Pakistan High Court, then observed at page 439 : ' We consider that these observations cannot apply strictly to a question of law which, although not mentioned in the election petition, arises on the face of the record made available to the Election Tribunal, and is raised by the petitioner during the course of proceedings before the Tribunal.
However, in the case of allegations of corrupt practices, evidence has to be led by the parties, and therefore, a respondent may be seriously prejudiced if the Tribunal proceeds to enquire into an allegation not included in the election petition or the particulars accompanying it. These considerations do not, however, arise when the additional question raised is simply one of law with reference to facts patent on the record.
' There is also another aspect of the matter. The present petitioner did not object to this question being considered by the Tribunal ; on the contrary, the Tribunal's order shows that the question was fully debated on merits by the learned counsel appearing for the petitioner. In other words, the petitioner submitted to the jurisdiction of the Tribunal when it proceeded to consider this particular question, and for this reason we are not inclined to permit the petitioner to raise this objection for the first time in the High Court. Accordingly we see no substance in the first contention raised on behalf of the petitioner."
' As the first respondent had dropped his allegations of corrupt pratices and mala practices against the appellant, as he had led evidence on his objections and as the appellant had not taken any objection on the ground of pleadings and had, on the contrary, produced some evidence in rebuttal, these observations are fully applicable to the instant case. Mr. Khalid M. Ishaq then pointed out that the judgment in the case cited had been set aside by the Supreme Court in Civil Appeal No, K. 17/1967. It is true that their Lordships had set aside the judgment of the High Court, but that was on a different point, and the observations, which I have quoted, were not set aside.
36. But the further question is whether the observations in this case are inconsistent with the judgment of the Supreme Court in S. M. Ayub v. Syed Yusaf Shah and others (2), as submitted by Mr. Khalid M. Ishaq. So, I may first point out that Ayub's case turned on the construction of the National and Provincial Assemblies (Elections) Act of 1964, the relevant provisions of which are in pari materia with sections 50, 52, 60 and 61 of the said Ordinance {{FOOT NOTE}}
(1) PLD 1966 Kar. 434 (2) PLD 1967 SC 486 {{FOOT NOTE}} ' on which Mr. Khalid M. Ishaq based his arguments on the point under' consideration. Next, as to the facts, the appellant Ayub, had filed an election petition against the respondent, which was heard and allowed by the Election Tribunal, West Pakistan, Lahore. The appellant's election, petition was pressed on the ground of corrupt and illegal practices by the respondent, but, as the petition did not give full particulars of all the allegations of corrupt and illegal practices, the respondent had sought its dismissal under section 59 of the 1964 Act (which corresponds to section 60 of the said Ordidance). The Election Tribunal had rejected the respondent's plea on the ground that the case turned on allegations which had been properly pleaded ; accordingly, on the facts, it had allowed the petition ; therefore the respondent had filed a writ petition, which was allowed by the West Pakistan High Court on the ground that, as the provisions of section 59 of the 1964 Act were mandatory, the petition had to be dismissed, because it did not contain proper particulars of all the allegations on which it was based. Based. The appellant went in appeal against this judgment to their Lordships, and S. A. Rahman, J. (as he then was), who pronounced the judgment of the Court, examined the relevant provisions of the National and Provincial Assemblies (Elections) Act and observed at page 491 : . . . It clearly follows that, if by evidence it is established that a single corrupt or illegal practice had been resorted to, by or on behalf of a candidate or with his connivance, it would be sufficient for declaring his election to be void. The position is not that, if several allegations of this character are made in a petition, then it must fail, unless all those allegations are established as a composite whole. The various allegations do not apparently constitute an integral package such as would lose its integrity by the failure of one of its parts. The relief sought in such cases can be granted on a single transaction covered by clause (c) of subsection (1) of section 72, and the mere fact that some of the allegations made in the petition are defective, should, not stand in the way of adjudication of other allegations, properly made and substantiated with full particulars in a petition. The law does not appear to display a perfectionist attitude in this behalf and it seems to us, with reason. The law of pleadings has never been strictly construed and rigorously applied in all its technicalities, to this country as plaints anc petitions drafted specially in the Mofussil, suffer from various minor defects. A very strict view, on the technical plane, of such pleadings, without regard to the substance of the matter, would defeat the ends of justice. Unless, therefore, the language of the law is intractable and clearly provides for dismissal of a petition for a technical defect, the Courts should not astute to ascribe to the Legislature a desire to be hyper-technical, so as to smother genuine litigation."
' Mr. Khalid M. Ishaq submitted that the view taken by this Court in Muhammad Rafiq's case must be deemed to have been overruled by these observations. On the other hand, Mr. M. A. Pesh Imam submitted that the facts in Muhammad Rafiq's case were very different, and, as thir Lordships did not have occasion to examine, whether the appellant could have been permitted to rely on a question of law, which had not been pleaded, learned counsel's further submission was that the observations in Muhammad Rafiq'scase was still good law.
38. It is not necessary for us to decide this controversy between the learned counsel, as S. A.
Rahman, J. Has expressly pointed out that the ,Election Tribunal had the power to permit an amendment of the election petition, because the Civil Procedure Code was applicable to election petitions. As the Civil Procedure Code is applicable to election petitions, I have no doubt that this Court can, in an appeal permit or order an amendment of the pleadings, provided the party concerned can bring his case within Order VI, rule 17 of the C. P. Code, and the first respondent has sought permission "to alter the grounds of appeal in this Court". The proper prayer of the first respondent should have been for permission to amend his election, and Mr. M. A. Pesh Imam made an oral request that the first respondent should be permitted to amend his election petition as well as what learned counsel erroneously described as cross objections. I say erroneous because the petition was decided in the first respondent's favour. Now, as he could have amended the petition before the Tribunal, Mr. Khalid M. Ishaque submitted that Mr. M. A. Pesh Imam's request was not fit to be allowed, whilst Mr. M. A. Pesh Imam submitted that the appellate Courts have often permitted amendment of pleadings. I agree with Mr. Khalid M. Ishaq that the first respondent should have amended his petition before the Election Tribunal as soon as he became aware of the relevant facts; but the provisions of the Civil Procedure Code are of an ameliorative and not of a penal nature, and it is not as if the first respondent is seeking to set up a new case in this appeal. He had expressly stated in paragraph 30 of the petition that there had been many illegalities in the counting of the post ballot votes. He had then stated that proper records had not been kept an - that he had also not been given inspection of the records. If these allegations be true, the first respondent was not at fault in not supplying particulars I his petition of the illegalities in the counting of the postal ballot votes, and, as Mr. Khalid M. Ishaq appeared suddenly to have discovered the sanctity of pleadings, I have to point out that the allegations that the record was no available and that the first respondent had not been able to obtain inspection of the record are allegations of fact which had to be denied by the appellant, if they were not true, but the appellant did not deny them, therefore, he is deemed to have admitted them. However, in view of the public interest in Election Petition, I would not go on a technical view of pleadings, but as submitted by Mr. M. A. Pesh Imam, the first respondent's case is supported to the hilt by the evidence of the witnesses he examined.
39. The first respondent had summoned the record through the Returning Officer and on 23rd October 1973, one Mr. Muhammad All Kausar was examined by the Tribunal. This witness stated that he had been deputed by the Returning Officer "to bring the relevant record in this case called for by the Tribunal". However, as the witness had come with hardly any documents, the Court prepared a list of the documents required and directed him to produce them. The witness was apparently not able to carry out this direction and as he asked for a week's time to search for the record, the Tribunal gave him two seeks time for this purpose and adjourned the case to the 6th November. Then, on the 6th November, the case had to be adjourned again, because the witness had not brought all the documents he had undertaken to bring. Thus the case was adjourned for the third time to the 8th November, and on that day the witness said : "I could not bring the declaration forms, envelopes in which we may have sent the ballot paper cover in Form IX. Cover in Form X, certificates of postage and the Registers having the despatch and receipt entries as I could not locate them. I have ransacked the record concerning postal ballot papers in city Court record as well as in the T.
0. But I could not get any other record beyond what 1 could produce on the three hearings for which I have come to this Court in this connection." If the relevant record could not be produced, despite the orders of the Tribunal, it is clear that the first respondent could not possibly have obtained inspection of the record earlier. Mr. Khalid M. Ishaq then submitted that the first respondent should have supplied particulars of the alleged illegalities on the basis of the record produced by the witness Mr. Muhammad Ali Kauser. But when should the amendment application have been filed?
On the 6th November or on the 8th November when Mr. Kauser had produced some more documents? It is also to be noted that, according to the witness, the relevant records were with the Returning Officer, therefore, the first respondent was entitled to defer his application for the amendment of his petition until the Returning Officer was examined. Mr. Moosvi was examined on 10-11-1973 at very great length, and he was not able to produce the records because, according to him, Mr. Kauser was incharge of the same, therefore it was clear by 10-11-1973 that some records were untraceable, and in my humble opinion, this was the stage at which the first respondent should have moved an application under Order VI. Rule 17 for the amendment of his petition in order to supply the particulars which he had been able to obtain through inspection of the records produced. He did not do so, and no doubt he was negligent is not doing so. But Mr. Mossvi was examined at length on the basis of the record, yet the appellant's learned Counsel did not take any objection to this evidence and, as I will presently show, this was not the only occasion on which the appellant's learned Counsel was also negligent. All the parties appear to have been negligent and bearing in mind the public interest in elections as well as the fact that the case has to be remanded, in any event, to the Tribunal, I would permit the first respondent to amend his petition, even though this may lead to some delay.
40. I now turn to the cross objections filed by the 4th respondent. The appellant and he were the only respondents who had filed written statements before the Tribunal, and whilst the appellant challenged the allegations made against him in the election petition, the fourth respondent supported these allegations, and, in view of the mal practices alleged against the appellant, he further prayed that the entire elections be set aside as void. Not content with tiling his written statement, he also filed a recrimination application in December 1973 in which, as in the written statement, he sought a declaration that the entire elections should be declared void, and, in November 1974, he filed an application for the amendment of the issues. The issue which he thus sought to frame had reference to his contention that the entire elections should be declared void on account of the corrupt/illegal practices resorted to in the elections by the appellant. The issue reads :- "Whether corrupt/illegal practices has been committed by any of the candidates, his election agent/worker or by the Returning Officer etc. If so, what is its effect?"
' The Tribunal rejected this application on the ground that it had already dismissed the 4th respondent's recrimination application. But meanwhile it had permitted the 4th respondent to give evidence in support of this issue. Thus, for example, one Mr. Afsar Ali, who was examined by the 4th respondent, said in his evidence : "Petitioner (the 1st respondent before us) had delivered speeches creating hatred against rival parties." Although this evidence was damaging both to the appellant and to the first respondent, their learned Counsel did not cross-examine the witness. Mr. Khalid M.
Ishaq, therefore, pointed out that the next witness examined by the 4th respondent, one Mr. Jalil Ahmed, had not supported the 4th respondent's ,case. That is true, but the 4th respondent had expressly stated in his evidence that "both petitioner and respondent were spreading religious bigotry against me. . . . They had got false results announced. Canvassing was allowed by candidates on 7-12-1970 and the workers were going on to houses of people for vote." We observed that the witness had not been cross-examined on this evidence, although it was very damaging to the case of the appellant as well as to the first respondent before us. Only Mr. Khalid M. Ishaque ventured to make a reply, and it was that the evidence of the witness was recorded subject to the appellant's objection therefore the question will be of the validity of this objection. However, the fourth respondent had also examined one Mr. Safir Hussan whose evidence is very relevant, and as it is short, I would quote it.
"Examination-in-chief.
' To Mr. Fida-e-Mehdi Shah ' I was worker for this respondent during the last national assembly elections of 1970. Some voters had told me that voters were being transported in conveyances of respondent No, 2 and the petitioner (Mr. Faruqui objects that this is hearsay. Admitted subject to further evidence if led). I was further told that canvassing was being carried on by the workers of these two contestants even within the prohibited boundary on the day of poll i,e, 7-12-1970.
' Cross to Mr. Faruqui for respondent No, 2.
' I cannot give the names of any of those who repported the matter to me. No cross to Mr. Salim for the petitioner."
' Thus, apart from the objection about hearsay evidence, the appellant did not take any objection to the further statement of the witness that the appellant had been carrying on canvassing within the prohibited boundary "on the day of poll", nor did he dare to cross-examine the witness on this statement; therefore Mr. Nasiruddin submitted that the 4th respondent's cross objections should be allowed, that the appeal should be dismissed and that the entire elections should be set aside as void.
' Now the Tribunal did not even examine the evidence produced by the 4th respondent, and the principal reason for this is contained in its order of 8-1-1975 dismissing the 4th respondent's application for an amendment of the issues. In dismissing the application, it observed : "It is a case of contest between petitioner and respondent No,
2. There is no recrimination petition allowed. By the Tribunal. So to say in that case only the disputed points raised by the petitioner are required to be adjudicated upon . . . . Thus the evidence of serious illegalities was ignored because in the view of the Tribunal the 4th respondent had failed to file a proper recrimination application, and I may explain here that it had dismissed the 4th respondent's recrimination application because the recrimination was not against the first respondent but against the appellant. It is true that the relief sought was that the entire elections should be set aside, and this relief was pressed against the first respondent also. However, as Mr. Nasiruddin did not attempt to argue that the application fell under section 63 of the said Ordinance, I need not examine this aspect of the case. But learned counsel relied on the written statement which had been filed by the fourth respondent, and, as I observed earlier, in his written statement the fourth respondent had fully supported the allegations contained in the petition against the appellant. But section 59 of the said Ordinance prescribes that subject "to the provisions of this Ordinance and the rules, every election petition shall be tried as nearly as may be, in accordance with the procedure for trial of suits under the Code-of Civil Procedure, 1908". There is nothing in the Ordinance to debar a respondent from filing a written statement nor were we referred to any such provision by Mr. Khalid M. Ishaq, clearly, therefore, the fourth respondent was entitled to press the case against the appellant on the basis of his written statement, and, as issues have to be framed to cover the points disputed in the pleadings, this means that the Tribunal erred grieviously in dismissing the fourth respondent's application for the addition of the issue, which I quoted in paragraph 40.
' O. Mr. Khalid M. Ishaq made such of the fact that the first respondent had dropped all the allegations made by him against the appellant in his petition, except the allegations which related to the counting of votes. But even if I assume that the first respondent could, in an election petition, drop allegations at his sweet will and pleasure, how could this concession bind the fourth respondent? And how could this concession, so to say, undo the written statement filed by the respondent? As that written statement had not been withdrawn and as evidence was led to show that the entire elections should be declared void it was the Tribunal's duty to examine the fourth respondent's objections, because they arose out of his written statement.
42. I am also not able to accept the contention, or rather the" assumption made both by Mr. Khalid M. Ishaq and Mr. M. A. Pesh Imam, that the first respondent could, as of right, drop any of the points raised by him in his election petition. Even in a suit, the Court may not permit u a party to withdraw his claim or a part of his claim, and, in my humbl opinion, this principle is applicable with greater force to election petitions because of the public interest in elections. As the learned counsel over looked this aspect of the law, I cannot do better than to quote here a passage from Halsbury's Laws of England. Halsbury observes in the 14th Vol., 3rd Edn., p. 283 : "The Court cannot consent to any agreement for the withdrawal of a petition, which would have the effect of excluding that full disclosure of the facts which it is one of the objects of the law to provide for or of preventing that thorough investigation, which the Court is bound to make of all the charges relied on by the petitioner.
502. Application by Director of Public Prosecutions to restore petition.-In giving leave for the withdrawal of a petition, the election Court or High Court may make the leave subject to cause being shown by the Director of Public Prosecutions, if desirable, to restore the petition, and the Court may, accordingly, in granting the leave reserve to the Director of Public Prosecutions liberty apply to the Court within a specified time."
' I am aware that these observations relate to the withdrawal of a petition, whilst the question before us is, whether the first respondent was entitled to withdraw some of the allegations made by him against the appellant in his election petition. The withdrawal of some of the allegations in an election petition necessarily means that the petitioner wants to withdraw a part of his claim, and I can see no difference between the withdrawal o a petition and the withdrawal of a part of it; therefore, in my humb opinion, Halsbury's observations are fully applicable to the instant case, an the Tribunal should have examined, whether, on the facts and circumstance of the case, the first respondent was justified in withdrawing his allegations of mal-practices against the appellant. It did not do so, and, as it refused even to examine the question merely because of the concession made by the first respondent's learned counsel, I hold that it acted illegally.
43. I am fortified in my opinion by a judgment of the Indian Supreme Court in Inamati Mallappa Basappa v. Desai Basayaraj Ayyappa and others (1). There, the question before the Court was similar to that before us, and Bhagwati, J., who pronounced the judgment of their Lordships, observed at page 74 : "If the withdrawal of a petition cannot be permitted and any person who might have been a petitioner is entitled to continue the proceedings, on a parity of reasoning. The withdrawal of a part of the claim also could not be permitted without allowing another person who might have been a petitioner an opportunity of proceeding with that part of the claim by substituting himself in place and stead of the petitioner who withdraws or abandons the same. If the Constituency as a whole is interested in the petition presented before the Election Tribunal no such withdrawal or abandonment of a part of the claim could ever be permitted without giving an opportunity to any person who might have been a petitioner to continue the proceedings and pursue the petition to its logical conclusion."
' I am in respectful agreement with these observations which coincide with my own view on the subject; so, the question now is, whether the first respondent had made out a case for withdrawing the allegations of malpractices against the appellant, and, in view of the evidence produced by the fourth respondent, I am satisfied that the Tribunal's order was erroneous.
44. In this view of the matter, it would be necessary to decide the issue proposed by the fourth respondent, and Mr. Nasiruddin relied on the fact that neither the appellant nor the first respondent had cross-examined the fourth respondent and his witnesses on the grave allegations made by them. Whilst Mr. M. A. Pesh Imam did not advance any submissions on this question, Mr. Khalid M.
Ishaq's only reply was that the appellant was not required to cross-examine witnesses whose evidence was not even admissible. But, according to learned counsel, the evidence of the fourth respondent and of his witnesses was not admissible, because the Tribunal had rejected that respondent's recrimination application. As the Tribunal's view was patently erroneous, the fourth respondent is entitled to rely on the evidence produced by him, and Mr. Nasiruddin submitted that it was sufficient to decide the issue raised by the fourth respondent, but that we could remand the case if we deemed proper in the interest of justice.
45. It is pleasant to record the very fair stand taken by Mr. Nasiruddin, because election cases appear to generate heat rather than light. I have, therefore, given anxious thought to the question, whether we should ourselves decide the issue raised by the fourth respondent, or to remand it to the Tribunal, so as to give a further opportunity to the appellant to cross-examine the fourth respondent and his witnesses. As I have referred earlier in some detail to this evidence, I would not burden the record by repeating it, and it is sufficient to state that some of the evidence produced by the fourth respondent was definitely damaging to the appellant; therefore Mr. Khalid M. Ishaq pointed out that it had been recorded {{FOOT NOTE}}
(1) AIR 1958 SC 698 {{FOOT NOTE}} ' subject to the appellant's objection about its admissibility. This statement is not quite correct.
Thus, no objection had been taken to Mr. Afsar Ali's evidence and that of Mr. Jab! Ahmed. It is true that Mr. Jalil Ahmed's evidence did not go against the appellant. But this was not material to the question of its admissibility. Then, as to the fourth respondent's evidence, an objection has been recorded only to his statement that the appellant and the first respondent had been "spreading religious bigotry against me". But no objection has been recorded as to the other evidence of the fourth respondent. Similarly, as to Mr. Safir Hassan's evidence, the appellant had only objected to a statement by the witness that the appellant had supplied transport to some of his voters. But no objection was taken to the further statement of the witness that canvassing had been carried on "even within the prohibited boundary on the day of poll". Thus, in the first place, objection was not taken to all the evidence produced against the appellant. Secondly, the proper course for the appellant was to record his objections, and then to cross-examine the witness without prejudice to his objections, and it seems to me that the reason for the appellant's failure to follow the proper procedure was his misguided reliance on the Tribunal's order, rejecting the recrimination application of the fourth respondent, and its order, rejecting his application for an additional issue.
But, even without the knowledge of law, the appellant should have known that the Tribunal's orders could be erroneous, and that, in any event, they could be challenged in an appeal, And further the fourth respondent had not withdrawn his written statement; therefore Mr. Nasiruddin submitted that the appellant's case was conducted in an unfortunate manner. However, the question is of what is to be done now. Should the appellant suffer because of what I can only describe as a doctrinaire approach? In my humble opinion, the answer to the question must be in the negative, because the provisions of the Civil Procedure Code are of an ameliorative nature. I am disturbed by the possibility that the remand of the case might lead to the concoction of evidence. But, having pondered over the matter and bearing in mind the public interest in elections, I would remand the case on terms, including terms as to pleadings, and I would clarify that the issue raised by the fourth respondent covers the question, whether the enure elections should be declared void.
5. As the case has to be remanded to the Tribunal, the only other point for determination is of interim arrangements pending the final decision of the Tribunal. By or order of 17th June 1975, pending the hearing of this appeal, we had permitted the first respondent to take his seat in the National Assembly, subject to any further orders we might pass. Mr. Khalid M. Ishaq, therefore, submitted that this order should be recalled, in view of the judgment of the Supreme Court in Rashid Ahmad Bahrnani v. Mirza Barkat Ali and others (1). Our attention had not been drawn to this judgment when we heard the interim application. Be that as it may, the facts in the case cited, as in the instant case, were that the election of the returned candidate was challenged "by reason of the failure of the Returning Officer to act in accordance with the provisions of the rules", and, their Lordships held that, as the disqualification of the returned candidate was not of a notorious nature, they set aside the entire election as void. The judgment is not directly on the question of what should be done pending the remand of the case, but, by parity of reasoning, it lends support to Mr. Khalid M. Ishaq's submission that the first respondent should not be {{FOOT NOTE}}
(1) PLD 1968 SC 301 {{FOOT NOTE}} allowed to sit in the National Assembly pending the decision of the case. Secondly, on the arguments of both Mr. Khalid M. Ishaq and Mr. M. A. Pesh Imam, it is clear that, subject to the question of a recount, the elections turn on the postal ballot votes. But, as I observed earlier, the issue of all the postal ballot papers was riddled with irregularities. Thirdly, as I would order a recount at several polling stations, it means that the parties are back to the stage of section 37 of the said Ordinance; therefore, on this ground, it would not be proper to allow the first respondent to sit in the National Assembly. Accordingly, I would restrain the first respondent from sitting in the National Assembly until his election petition is finally disposed of by the Tribunal.
47. In the result, the Tribunal's decision is set aside, and it is directed to recount the votes cast at Polling Stations 3, 5, 17, 20, 25, 27, 30, 89 and 106. The first respondent is also permitted to amend his election petition by supplying particulars of all the illegalities and irregularities, on which he relies, in the issue of and the counting of postal ballot votes. The other parties would, no doubt, be entitled to make consequential amendments in their pleadings, and to produce further evidence, if so desired, the Tribunal should ensure that unnecessary delay is not caused by these amendments.
Finally, the Tribunal is directed to decide the issue raised by the fourth respondent in his application of 26th November 1974, and I clarify that the parties are permitted to produce additional evidence on this issue. But this indulgence to the appellant can only be granted, as I observed, on terms, including terms as to pleadings-This is because the allegations of malpractices, relied upon by the fourth respondent, were contained in the election petition, but, according to Mr. Nasiruddin, they were dropped collusively. I would refrain from deciding this contention lest it might prejudice the case of the parties; therefore I would only observe that, in the circumstances, the fourth respondent must be and is given permission to amend his written statement by supplying particuiars of the mal-practices by the appellant and by the first respondent, if he so wishes. I would further direct the Tribunal to dispose of the case within two months by proceeding from day to day, if necessary, and meanwhile the seat for Constituency No, NW 131 of Karachi-4 shall be kept vacant. The appeal is disposed of in these terms without any order as to costs.