The petitioners on the one hand and respondents Nos.2 and 3 and respondents Nos.4 and 5 on the other contested the elections as joint candidates for the posts of Nazim and Naib-Nazim of Union Council No.44 Manianda, Tehsil Kahuta, District Rawalpindi.
2. According to the consolidated statement, the petitioners were declared as returned candidates.
The votes secured by the respective parties are as under:-- Consequently, the petitioners were notified as Nazim and Naib-Nazim of the Union Council.
Respondents Nos.2 and 3 filed Election Petition No. 19 of 2001 before the learned Election Tribunal.
The petitioners contested the election petition by filing their written reply, wherein, the contentions of respondents Nos.2 and 3 were controverted.
3. From the divergent pleadings of the parties, the learned Election Tribunal framed the following issues:--
(1) Whether petition is vague and based upon mala fide? OPR
(2) Whether petitioners are estopped by their words and act to file the petition? OPR
(3) Whether respondents Nos. 1 and 2 and their agents committed corrupt and illegal practice on the day of election during the polling day and procured success in election illegally on the grounds mentioned in the petition? OPP
(4) Whether election of Returned Candidates of the seat of Nazim/Naib--Nazim U.C. No.44, Tehsil Kahuta is liable to be declared as void and petitioners are entitled to be declared as returned candidates?
(5) Relief
4. Respondents Nos.2 and 3 produced five witnesses A.W.1 to A.W.5, whereas, they tendered in evidence documents Exh.A.1 to Exh.A.256 alongwith Mark "A" and Mark "B". In rebuttal the petitioner No.1 appeared as R.W.1.
5. The learned Election Tribunal evaluated the oral and documentary evidence produced before it and on the basis of documents Exh.A.181 to Exh.A.231 came to the conclusion that 17 votes at Polling Station No.63 were polled thrice. It also held that according to Exh.A.232 to Exh.A.252, 7 votes were polled thrice at Polling Station No.64.
6. Relying upon Exh.A.135 to Exh.A.142 Exh.A.148 to Exh.A.167 and Exh.A.171 to Exh.A.180 it concluded that 20 votes were polled twice. It also concluded that according to Exh.A.143 to Exh.A.147, five votes were issued without numbers.
7. According to the learned Election Tribunal at Polling Station No.63, 594 ballot-papers were issued but 810 ballot---papers were recovered at the time of count. Similarly, at Polling Station No.64, 386 ballot-papers were issued but 481 were recovered from the ballot boxes.
8. The learned Election Tribunal on the basis of the above, came to the conclusion that the irregularities had taken place, at Polling Station Nos.63 and 64. Without deseating the petitioners or declaring the respondents Nos.2 and 3 as returned candidates and without declaring whole Elections of Union Council Manianda No.44 as null and void, the Election Tribunal confined itself in issuing a direction to set aside the result of Polling Stations 63 and 64 and to hold fresh elections at these Polling Stations.
9. Mr. Shoukat Aziz Siddiqi, Advocate, appeared on behalf of the petitioners while Muhammad Younas Bhatti, Advocate has appeared for the respondents Nos. 2 and 3.
10. The learned counsel for the contesting respondents contended that the order of Election Tribunal was just and fair as it had only declared the results of Polling Stations Nos.63 and 64 to be null and void and had directed the holding of fresh elections only at these two polling stations.
According to him the learned Election Tribunal had correctly appreciated the evidence produced before it and had arrived at a correct conclusion. The learned counsel for the respondents challenged the invocation of the writ jurisdiction on the ground that Election Tribunal was a special forum constituted under a Special Law and that it was not for this Court in exercise of writ jurisdiction to reappraise the evidence in the extraordinary Constitutional jurisdiction. The learned counsel further submitted that in exercise of such jurisdiction, this Court may not substitute its own decision for the decision of the Tribunal even if it found the decision of the Tribunal to be incorrect.
The learned counsel for the respondent placed reliance upon the case of Mian Zia-ud-Din v. Punjab Local Government Election Tribunal 1984 CLC 1544 and kohinoor Industries Limited v. Government of Pakistan 2001 CLC 494 to support his contention.
11. On the other hand, the learned counsel for the petitioners contended that unless and until any malpractice or illegality is attributed to the petitioners, the Election Tribunal, had no jurisdiction to nullify the results of some polling stations and direct fresh elections thereto. He further contended that direction of holding fresh Elections at Polling Stations 63 and 64 shall be a futile exercise as it was not held as to which of the parties derived unlawful benefit out of the alleged malpractices.
12. Arguments have been heard and record perused.
13. Although it is correct that Election Tribunal, after examining the documentary, evidence came to the conclusion that irregularities did take place at Polling Stations Nos.63 and 64. What is, however, important for the decision of this writ petition is that it has not been established by any solid evidence by the Tribunal that "by whom ands in whose favour these irregularities were committed".
This factor shall be crucial for the fate of this writ petition. There is no cavil with the proposition that High Court in exercise of its extraordinary Constitutional jurisdiction shall not substitute its own opinion in place of the one expressed by E.T. Nor would this Court reappraise the evidence. The learned Tribunal did come to the conclusion that certain irregularities took place at Polling Stations Nos.63 and 64. The learned Tribunal, however, was not justified to declare results of the said polling stations as null and void as it was not satisfied that such corrupt or illegal practices were committed by or with the consent or connivance of the Election Agent of the returned candidates viz. The petitioners. Before the extreme penalty of declaring' election void is taken, charge of the commission of illegal practice against the returned candidate must be proved beyond any reasonable doubt.
14. As per the findings of Election Tribunal itself, it has not been established that by whom and in whose favour those illegalities were committed. In other words assuming that conclusion of the Tribunal in respect of the irregularities is correct it cannot be said whether the same were committed by or for the benefit of the petitioners or the respondents Nos.2 and 3. This being the case the declaration of the Election of Polling Stations Nos.63 and 64 as void is without jurisdiction as the law enjoins upon the Election Tribunal in a pre-emptor language that Election of a returned candidate shall not be declared void, unless the Tribunal is satisfied that the corrupt or illegal practice has been committed by or with the consent or connivance of the returned candidate or his election agent. In holding this view I am supported by the rule laid down in the case of Abdul Samee v. Abdul Ghaffar PLD 1990 Lah. 378, wherein, it has been expressed in no uncertain terms that the charge of illegal practice must be proved against the returned candidate before invoking the extreme penalty of declaring the Election as void.
15. The contention of the learned counsel for respondents that where a Tribunal is clothed with jurisdiction under a special law the said Tribunal is competent to decide it rightly or wrongly is repelled. This view has undergone a substantial change when it was held in the case of Utility Stores Corporation, of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 that the Special Tribunal having jurisdiction in the matter shall decide the controversy rightly and in accordance with law.
16. As a result of the foregoing discussion, the, writ petition is accepted and the impugned judgment of the Election Tribunal dated 24-10-2002 is set aside. Parties to bear their own costs.
Petitioners 3062 Respondents Nos.2 and 32949 Respondents Nos.4 and 530