' MANZOOR HUSSAIN SIAL, J.---Jam Mashooq Ali, the appellant herein, through this appeal under section 67(3) of the Representation of the People Act, 1976 (hereinafter referred to as the Act) calls in question the validity of the judgment of the Election Tribunal, Sindh at Karachi, dated 1st October, 1995, whereby Election Petition No, 32/1993 filed by Shah Nawaz Junejo under section 52 of the Act, was accepted and the election as a whole was declared void, with a direction to the Election Commission of Pakistan to hold fresh election.
2. The facts in brief giving rise to this appeal are that the appellant, respondent No,1 and respondents Nos.3 to 20 contested the election to the seat of National Assembly N.A. 181 Sanghar-II.
The appellant secured 50531 votes. The respondent No,1, who was next below in number, obtained 45121 votes. The rest of the respondents, however, secured insignificant number of votes. The appellant having polled the highest number of votes among the contesting candidates was declared elected.
3. The respondent No,1 filed Election Petition before the Election Tribunal Sindh, challenging the election of the appellant mainly on the following grounds:--
(i) The appellant filed false declaration under section 12(2) of the Act to the effect that no loan amounting to One Million rupees or more remained unpaid for more than one year from the due date, and filed an undated undertaking to secure the dues if any outstanding against him before the 13th September, 1993. The appellant did not clear the loan despite his undertaking, therefore, he stood disqualified. The respondent No,1 sought himself to be declared as elected for having secured the second highest number of votes from the constituency.
(ii) Nearly 4379 votes were deleted from the Electoral Rolls by the Registration Officer, which could not be. Timely given effect to in the final list, with the result that bogus votes were cast at 17 polling stations of the constituency.
(iii) The Returning Officer did not issue postal ballot papers to electors and thereby deprived about 4000 voters to exercise their right of franchise.
(iv) Due to the influence of the appellant, many Presiding Officers rejected valid Votes of the respondent No,1 as also allowed casting of bogus votes in favor of the appellant.
(v) The Presiding Officers did not allow voters who had National I.D. Cards of 'C' and ' E' code numbers to cast their votes and in this way nearly 1000 voters were deprived to cast their votes.
4. The appellant, who was arrayed as respondent No,1 in the Election Petition filed written statement and controverted all the allegations made in the Election Petition. The appellant denied to have obtained loan or that he was liable to pay any amount. He denied to have resorted to illegal practices during election and allegations to that effect were refuted. The election was held fairly and none raised any objection regarding deletion of votes nor anybody appeared to complain before the Returning Officer that he was prevented to cast vote.
5. The Election Tribunal vide its judgment dated 1st October, 1995, absolved the appellant from the charge of filing false declaration under section 12(2) of the Act, nevertheless on other grounds held that provisions of section 70(a) of the Act were violated and the result of election materially affected. Resultantly, he declared the election as a whole void and directed the Election Commission to hold fresh election. Hence this appeal.
6. Mr. Fazl-i-Ghani Khan, Advocate, learned counsel for the appellant, contended that the learned Election Tribunal enjoyed all powers of Civil Court as envisaged under section 64 of the Act, therefore, it was incumbent upon the Election Tribunal to have adhered to the procedure prescribed for trial of the suits. It was contended that the Election Tribunal failed to follow that procedure, which is evident from the factum of non-framing of the issues arising out of the pleadings of the parties, which otherwise were essential for fair trial of the Election Petition. Learned counsel cited Muhammad Saeed and 4 others v. Election Petitions Tribunal West Pakistan etc. (PLD 1957 SC (Pak.) 91 (100) and Mian Sultan Ali Nanghiana v. Mian Nur Hussain (PLD 1949 Lah. 301) in support of his submissions. This Court in Muhammad Saeed's case held that:- "....Where an election is sought to be set aside on the ground of commission of corrupt practices, the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices; that no fresh charge or instance of a corrupt practice can be added at the trial, that the burden of proof of corrupt practices is on the petitioner; that the evidence in proof of such practices must be restricted to the charges or instances mentioned in the petition and the particulars; that each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial; and that where the evidence is wholly circumstantial, the commissioners before finding a corrupt practice proved must exclude all reasonable hypotheses which are consistent with that corrupt practice having not been committed".
7. In Mian Sultan Ali Nangana's case it was held: ...Civil Procedure Code embodies a very important part of this Court's functions in relation to all Courts and Tribunals which are required by law to observe the procedure laid down in the Civil Procedure Code. As has already been seen, the Election Petitions Commission is required by statutory rule to follow that procedure."
' It was further observed:-- "The mere fact that Election Petitions are exclusively tribal by the Commission does not affect this conclusion, for it can never be any part of this Court's intention to interfere with the making of any order by a tub Court of special jurisdiction, if the grounds on which the order 'proceeds have been exclusively assigned by law to such Tribunal."
8. Learned counsel for the appellant also submitted that the facts neither forming part of the pleadings nor set out in the issues framed no evidence could be led to prove those facts and cited M/s. Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Cooperative Bank Ltd. (1968 SCMR 804) for the proposition. In this case this Court observed:- " Choudhary Abdul Ghani, as the Managing Director, was not shown to have any authority to accept the hands on behalf of the appellant-Company and therefore, his oral acceptance would be meaningless in this context. To base the suit in the alternative, on his alleged acknowledgment of liability, would be to allow the plaintiff-Bank to improve its case, without having specifically pleaded in that sense or to have got an issue framed on the point. No evidence should have been allowed to be adduced on facts, which had not been raised in the pleadings or incorporated in the issues framed. Reference in this 9. Learned counsel for the appellant pointed out that the Election Petition connection may be made to Ham Chand v. Pearey Lal and others (AIR 1942 PC 64) and Kanda v. Waghu (AIR 1950 PC 68). In such a case no amendment should be allowed of the plaint so as to alter the basis of the suit. In the circumstances, we are unable to uphold the view of the learned Judges of the High Court that the oral acknowledgment of liability by Choudhary Abdul Ghani on behalf of the appellant-company, was sufficient to fix them with responsibility for payment, in the circumstances of this case."
9 Learned counsel for the appellant pointed out that the Election Petition contained only general and vague allegations and did not conform to the requirements of law as contemplated under section 55 of the Act: It was next submitted that there were specific instructions issued by the Election Commission to the Returning Officers not to issue postal ballot papers except on the prescribed application forms provided by the Election Commission. The Returning Officer was, therefore, not obliged to issue postal ballot papers to electors on Photostat application forms.
Learned counsel argued that none except a few primary school teachers appeared before the Election Tribunal complaining about the non-issuance of the postal ballot-papers.., earned counsel for the appellant next contended that the voters who had National Identity Cards of 'C' & ' E' code numbers were not denied their right to vote by the Presiding Officer of any Polling Station. The finding of the Election Tribunal to the itinerary by relying on the admission of the Returning Officer that he had received complaint that some of the Presiding Officers did not allow such voters to cast their votes, was wrong particularly when none appeared to testify that he had Identity Card of 'C' or 'E' series and that he Was not allowed to cast his vote. The next submission made by the learned counsel for the appellant was that the Electoral Roll provided to the Polling Officials on the polling day by reason of its validity and finality was not assailable. The general observation of the Election Tribunal that the result of the election was materially affected as proper list of voters containing deletions and additions could not be enforced in time was of no legal consequence when there was no evidence on the record to support the finding that the result of election for that reason was materially affected. Reliance was placed on Ghulam Abbas v. Additional Commissioner, Khairpur (PLD 1965 (W.P.) Karachi 625), Imtiaz Ali v. Ghulam Muhammad Butt (PLD 1958 SC (Pak.) 228), and Syed Aminuddin Chowdhury v. Election Tribunal, Chittagong (PLD 1968 SC 235).
10. Learned counsel for the appellant also contended that even if some of the votes cast by the electors are excluded for any valid, reasons from the total count, the margin of votes secured by the appellant as compared to number of votes obtained by the respondent No,1 being so- large that the result of the election was not materially affected, so as to declare the election as whole void.
11. Raja Muhammad Anwar, Senior Advocate, learned counsel for respondent No,1 in reply to the contentions raised by learned counsel for the appellant argued that by Ordinance XXIV of 1985 dated 17-3-1985, the provisions of section 62 of the Act stood amended for trial of Election Petitions in accordance with the procedure prescribed by the Election Commission. The entire argument of the learned counsel for appellant that issues were required to be framed by the Election Tribunal or that Election Petition was to b tried in accordance with the procedure prescribed in CaP.C. Falls to the ground.. He pointed out that the appellant raised no-objection, as to the non-framing of issues in the written statement or even at the trial of the Election Petition, he therefore cannot agitate it at this stage. Learned counsel relied on Fazal Muhammad Bhatti and others v. Mst Saeeda Akhtar and 2 others (1993 SCMR 2018) and contended that non-framing of issues is inconsequential where the evidence is led touching the substantial questions involved in the petition. He also relied on The Province of East Pakistan v. Major Nawab Kh. Hasan Askary and others (PLD 1971 SC 82 (91) to contend that if issues are not framed, but allegations in the plaint are challenged in the written statement and the Court allows evidence to be recorded, the decision recorded without framing the issues cannot be held to be illegal.
' As to the next contention of the learned counsel for the appellant, about the non-issuance of postal ballot papers, Raja Muhammad Anwar, Advocate submitted that the Returning Officer admitted in his statement that he received in time 2865 applications from electors on photostat application forms for issuing postal ballot papers, the *turning Officer was, therefore, under legal obligation to issue ballot papers to them when there was no statutory bar to issue, if applications were otherwise in order, as also because the requisite application forms were short in stock for no fault of the electors.
' On the question of prohibiting the electors having Identity Cards of 'C' and 'E' series from voting, learned counsel for the respondent submitted that it is established on the record that complaints were received by the Returning Officer against the Presiding Officers, disallowing the electors carrying 'C' & 'E' series of I.D. Cards to vote, and the Returning Officer had to issue . Instructions to the Presiding Officers late in the afternoon on the polling day for allowing them to vote. Learned counsel for respondent stated that it can well be imagined that before the instructions were issued to the Presiding Officers to allow them to cast their votes, large number of electors had left the polling stations.
12. Learned counsel for the respondent vehemently argued that it is proved from the record that the valid lists containing the deleted and added votes, pertaining to the constituency were received by the Returning Officer quite late at noon time on 6-10-1993. He in turn, provided the amended lists to Presiding Officers of various polling stations extending to area of over hundred miles and before these lists could be acted upon the process of the election had been materially affected.
' The last contention of the learned counsel for the appellant that margin of the votes secured by the appellant being nearly five thousand votes, the irregularities pointed out even if assumed to have taken place, did not materially affect the result of the election was challenged by learned counsel for respondent, by demonstrating that apart from the refusal to issue 2865 postal ballot papers to electors and not permitting number of voters of having 'C' & E' series of Identity Cards, the valid lists of electors containing large number of the deletion and addition of votes, which were not given effect to, for considerable time materially affected the result of the election.
13. We have heard learned counsel for the parties at some length and considered their submissions in the light of the documents on the file.
' The first contention of the learned counsel for appellant that the Election Tribunal enjoyed all powers of Civil Court, was required to follow the procedure for trial of the suits, by not framing issues arising out of the pleadings of the parties, the case of the appellant was greatly prejudiced, it may be seen that section 62 of the Act provides procedure for trial of Election Petitions. On 17th March 1985, it was amended by Ordinance XXIV of 1985. Before amendment subsection (1) of section 62 of the Act provided as under:-- ' Section 62, Procedure before Tribunal.--(1) Subject to the provisions of the Act and the rules, every Election Petition shall be tried as nearly as may be in accordance with the procedure for the trial of suits under the Code of Civil Procedure, 1908 (Act V of 1908).
' After amendment it reads:-- ' Section 62, Procedure before Tribunal.--Subject to the provisions of this Act and the rules, every Election Petition shall be tried in accordance with the procedure laid down by the Election Commission.
' Pursuant to the amended subsection (1) of section 62 of the. Act, the Election Commission prescribed following procedure for trial of the Election Petitions:-- "Every election petition shall be filed with the Secretary, Election Commission of Pakistan, Secretariat Block 'S', Islamabad, in triplicate and shall be accompanied by all such documents and affidavits of the witnesses as desired to be produced by the petitioner along with the receipt indicating that the copies of the petition and the attached documents and the affidavits' annexed to the petition have been supplied to the respondent.
(2) Every election petition shall be processed by the Secretary, Election Commission. In case the petition is not in accordance with the procedure laid down herein it shall not be entertained and the petition shall be informed accordingly. Notice of the date published through the press, radio and:; television shall be deemed to be a valid notice and no personal notice shall be necessary unless the tribunal feels necessary to do so.
(3) The respondent shall upon the receipt of notice of the petition from the petitioner within seven days file his written statesmen together with all documents relied upon by him and the affidavits of the witnesses as are desired to be produced in defense.
(4) The petitioner shall make available for cross-examination all witnesses whose affidavits are filed with the petition for cross-examination on the first date of hearing before the tribunal (and the trial of election petitions shall proceed on day to day basis).
(5) Where any party desires to summon any official witness he shall file with the petition a list of such witnesses justifying his production and also mention the documents, if any, which are required to be proved through such witness.
(6) No witness whose name is not mentioned in the petition shall be summoned or examined unless required by the Tribunal.
(7) Where the election petition claims as relief a declaration that the election of the returned candidate is void on the ground that the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member, the Tribunal may decide the question of such qualification or disqualification as a prequalification as a preliminary issue.
(8) The Tribunal may make a memorandum of the evidence of each witness as his examination proceeds unless it considers that there is special reason for taking down the evidence of any witness in full.
(9) The Tribunal may refuse to examine a witness if it considers that his evidence is not material or that he has been called on a frivolous or vexatious ground for the purpose of delaying the proceedings or defeating the ends of justice.
(10) The Tribunal may, pending the final disposal of the petition, grant such interim relief as it may deem fit."
The perusal of section 62, before the aforementioned amendment and after amendment together with the procedure prescribed by the Election Commission clearly shows that for the trial of Election Petitions the legislature intended to do away with lengthy procedure prescribed under the -Code of Civil. Procedure, 1908 (Act V of 1908). Reading section 62 as amended and section 64 of the Act, the possible harmonious interpretation thereof would be, that the Election Tribunal shall' have all the powers of a Civil Court under the Code of Civil A Procedure except for the trial of Election Petitions, where the Election Tribunal shall follow the procedure prescribed by the Election Commission. It means that framing of issues emanating from the pleadings of the parties is not mandatory requirement of law, the Election Tribunal, however, for the facility of the proper trial of the Election Petition and bringing the contesting parties to controversial points may strike issues for resolution of the dispute. Even otherwise learned counsel for the appellant has not been able to show as to how the case of the appellant was prejudiced by not framing the issues. The points raised in the Election Petition were duly controverted in the written statement and the evidence adduced by the parties was duly recorded by the Election Tribunal.
' In Fazal Muhammad Bhatti's case, referred to above, this Court had held that where evidence is recorded touching the substantial questions involved in the petition, non-framing of issues would be inconsequential. Similarly, in Major Nawab Kh. Hussain Askary's case it was held by. This Court that where the averments made in the plaint are challenged in the written statement and the evidence is recorded by the Court, the judgment announced without framing the issues, cannot be held to be illegal. Moreover, the appellant neither in the written statement, nor as the trial of the Election Petition ever raised objection about the non-framing of the issues. It appears preposterous to raise this objection for the first time at this stage. This objection, therefore, cannot be permitted to be raised, which has no legal efficacy either.
14. As to the question of the non-issuance of 2865 postal ballot papers to electors, admittedly the Returning Officer did receive applications in time but he declined to issue ballot papers as the applications were not on the prescribed forms, and the. Election Commission had not approved the proposal to issue postal ballots on Photostat application forms.
15. Section 29 of the Act provides, the persons who may cast their votes by postal ballots, they are required to apply to the Returning Officer of the constituency in which they are electors for issuance of ballot papers for voting by postal ballots. The applications should specify the names of the election, their addresses and their serial numbers in the Electoral Roll. The Returning Officer 'sifall immediately upon receipt of the applications would send by post the ballot papers in the manner provided under this section.
' Rule 11 of the Representation of the People (Conduct of Election) Rules, 1977, provides the Form VII of the postal ballot paper and particulars thereof.
' The elector, who intends to cast his vote by postal ballot, is required to make application to the concerned % Returning Officer. It appears that neither in the Act nor under the relevant Rules, particular form of application is prescribed. There may be some instruction issued by the Election Commission in this behalf. The applications moved by the electors for issuing postal ballots to them, which were admittedly received by the Returning Officer. In time, if otherwise in order, could not have been refused., especially because there was no statutory bar to issue postal ballot papers to those, who did not apply for postal ballots on particular application forms. The electors were, therefore, illegally prohibited from exercising their right of franchise although their applications were received by the Returning Officer in time.
16: As to the question that electors, who had Identity Cards of 'C' and 'E' 1D series were not allowed to cast their votes by Presiding officers, the Returning officer admitted in his deposition that he did receive complaints from the electors in that regard and he had issued instructions to the Presiding Officers to allow them to cast their votes. Admittedly these instructions were issued late in the afternoon. The contention of the learned counsel for the respondent that by the time the instructions reached, the Presiding Officers of the constituency spread over hundred miles, the electors must have left without exercising their right to cast their votes, is not without substance.
17. The main consideration which weighed for maintaining the impugned decision of the Election Tribunal, declaring the election as a whole void, was that the result of election was materially affected by reason of the failure of the Returning Officer and the officials responsible to provide amended electoral rolls to the Presiding Officers before the commencement of the election on the polling day. Section 10 of the Act provides that Election Commission shall provide the Returning Officer for each constituency with the copies of Electoral Rolls for all the electoral areas within the constituency. The Returning Officer in turn, shall provide the Presiding Officer of each polling station with copies of Electoral Rolls containing the names of the electors entitled to vote at that polling station.
18. It is abundantly clear that it is the responsibility of the Election Commission to provide amended up to date Electoral Rolls to the Returning Officer and the Presiding Officers of the polling stations in the constituency well ahead of time from the commencement of the election. In the instant case there were two lists containing number of persons whose names were deleted and others whose names were added, as a result of the revision of the Electoral Rolls. These lists formed part of the final Electoral Rolls, but were not given -effect to for considerable time at the various polling stations of the constituency. The result was that number of voters, who were entitled to vote due to addition of their names in the Electoral Rolls were nor allowed to vote, whereas others whose names were deleted voted without .Their entitlement. In this way, therefore, the entire process of election stood vitiated. In Muhammad Ali v. Maulana Muhammad*Zakria.(PLD 1966 Journal 167) it was held that if from the facts and circumstances of the case, it is not possible to even assess as to what should have been the result of the election if the provisions of the law would have been correctly followed, the result of the election stood materially affected.
' Similarly, in Morgan and others v. Simpson and another (1974) 3 All ER, 722), Lord Denning observed:-- "If the election was so conducted that it was substantially in accordance with law, nevertheless, if there was breach of the rules or mistake in holding the polls, and it did affect the result, then the election is vitiated."
' Section 70 of the Act provides:-- "70. Ground for declaring election as a whole void.--The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of--
(a) the failure of any person to comply with the provisions of the Act or the rules; or
(b) the prevalence of extensive corrupt or illegal practice at the election."
The failure to provide the amended Electoral Rolls to the Presiding Officers of the various polling stations in ,the constituency till afternoon time on the polling day by election authorities attracted the provisions of section 70 of the Act for declaring the election as a whole void.
19. Adverting to the contention of the learned counsel for the appellant on the strength of the case- law cited hereinabove that after the publication of the Electoral Roll, the entries thereof are conclusive and the election held on the basis of the existing Electoral Rolls cannot, be questioned, has no force for the reason that the deletions and additions made by the competent authority formed part of the Electoral Rolls. The election was required to be held in accordance therewith.
20. Keeping in view the number of deleted votes and added votes, apart from the electors who were prohibited to vote having Identity Cards of 'C' and F' series and non-issuance of postal ballots to others, vitiated process of election as a whole. In this view of the matter, the contention of the appellant's learned counsel that there was great margin of "Votes secured by the appellant over those obtained by the respondent lost its significance.
21. The upshot of the above discussion is that this appeal has no merit and it is accordingly dismissed with no order as to costs.'
22. The decision of this appeal was announced in op6n Court on 13-1 l- F995, and these are the reasons recorded.