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Writ Petition No. 5268 of 1981, decided on 10th May, 1982.

(a) Civil Procedure Code (V of 1908)‑

‑‑ O. XX, rr. 4(2) & 5‑Judgment‑Judgment of a tribunal of exclusive jurisdiction‑Not sacrosanct if finding based on evidence assumed to exist but . does not exist or if evidence kept out of consideration, although should not have been left out of consideration, or if evidence misread in material part‑Tribunal not placing on record letters received by him and certain other material lest it may blemish character of lady petitioner‑Tribunal, held, should have confronted petitioner with such letters and material so that she could rebut allegations made against her‑Conclusion drawn by Tribunal on such evidence, as discussed by him, held further, obviously affected by aforesaid material, not brought on record, and consequently vitiated. [Judgment].

Habibullah Khan and another v. Election Tribunal Jhang and others P L T, 1962 Lah. 797 ref.

(b) Punjab Local Government Ordinance (VI of 1979)‑

Ss. 21‑A & 29‑Practice and Procedure‑Basic order adjudged to be without lawful authority‑Whole series of such orders together with superstructure of rights and obligations built upon them, held, fall to ground.‑[Practice and procedure].

Yousuf Ali v. Muhammad Aslam Zia and others P L D 1958 S C 104 rej:

(c) Punjab Local Government Ordinance (VI of 1979)‑‑

. S. 29‑Review‑Section 29 of Ordinance VI of 1979, held, confers no power of review.‑[Review].

Iqbal Ahmad Khan for Petitioner.

Rashid Azlz Khan Addl. A: G. for Respondents Nos. 1 and 2. Raja Muhammad Sabir for Respondent No. 3.

Date

of hearing : 10th May, 1982.

SHAMEEM HUSSAIN KADRI, ACTG. C. J.‑This petition calls in question the two orders passed by the Commissioner, Rawalpindi Division, on two petitions. The first petition was moved by Mst. Shameem under sections 29 and 21‑A of the Punjab Local Government Ordinance, 1979, which was dismissed by the Commissioner on 27‑5‑1980 on technical ground as well as on merits. The operative part of the order is as under :‑

"Apart from the said legal preliminary objections there is no evidence to substantiate the plea of the petitioner for the removal of the respondent that she was a member of defunct Pakistan Peoples Party in the days of elections and thereafter, 1 find no merit in the petition and dismiss it accordingly."

Mst. Shameem respondent on 27‑5‑1980 moved, another application under section 29 of the Punjab Local Government Ordinance, 1979, to which written statement wags filed in paragraph 2 of which an objection was raised that second petition under section 29 was not maintainable. In his order passed on 22‑0‑1981 (Annexure 'F') the learned Commissioner relied on Exh. P. A. a photo copy from weekly 'Zulfiqar', Gujrat dated 16‑4-1976, Exh. P. E. certificate dated 9‑6‑1975, Exh. P. C. a copy of nomination form, Exh. P. D. and Exhs. P. E./1 to 4 attested copes of applications, which reflect, according to him, the relationship of the petitioner with the Peoples Party. This evidence was rebutted by the documents placed on record Exh. D. A. (written reply of the present petitioner) and Exh. D. B. affidavit of Haji Muhammad Akram, Ghulam Hussain and Noor Muhammad to the effect that Mst. Fakhra Malik was not associated with the Peoples Party. In the concluding paragraph the observation made is as under :‑

"Apart from the documents produced by the petitioner in support of her case, I have been receiving letters by post written by some persons from Kharian alleging some very wild allegations of bad character against the respondent. I have thought it proper not to place these letters along with certain other material on the file as it will un necessarily embarrass the respondent."

Basing his order on the aforesaid evidence and material the Commissioner found that the present petitioner had incurred a disqualification enumerated under section 21‑A of the Punjab Local Government Ordinance, 1979. He removed her from the membership of the Town Committee Sarai Alamgir.

2. The election in this case took place on 12‑12‑1979. Two objections have been raised by the learned counsel for the petitioner, namely, that there is no power of review with the Commissioner under section 29 of the Punjab Local Government Ordinance, 1979, for, in the earlier order he has decided the cast on merits and, secondly, apart from the evidence produced the Commissioner in the last order has relied on material and evidence which has .not been placed on record. It is now well‑settled law that any judgment of a tribunal of exclusive jurisdiction is not sacrosanct if the finding is based on evidence assumed to exist but which does not exist, or if evidence is kept out of consideration which should not have been so kept, or if evidence is misread in material part. Reference is made to .Habibullah Khan and another v. Election Tribunal, Jhang and others P L D 1962 Lah, 797. According to the observation of the Commissioner he has not placed on record letters received by him and certain other material lest it may blemish the character of the lady. We are of the view that he should have confronted the petitioner with it so that she could rebut the allegations made therein. The conclusion drawn by, the Commissioner on the evidence discussed by him is obviously affected by the above‑mentioned material which has not been brought on the record. The order is coloured in our view and is thus vitiated for the above reason.

3. The order passed by the Secretary falls to the ground, for, if the basic order is without lawful authority the whole series of such orders together with the superstructure of rights and obligations built upon them fall to the ground. Yousuf Ali v. Muhammad Aslam Zia and others P L D 1958 S C (Pak.) 104,is referred.

4. The learned Additional Advocate‑General has frankly conceded that there is no power of review under section 29 of the Punjab Local Govern ment Ordinance, 1979, and the law cited above holds the field. The appellate Authority has not adverted to this aspect of the case which we have discussed above.

5. For the foregoing reasons we accept this writ petition with costs and set aside the two orders passed in this case.

Petition accepted.

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