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Writ Petition No. 1116 of 1981, decided on 16th March, 1982.

(a) Punjab Local Government Ordinance (VI of 1979)--

--S. 21--Provisional Constitution Order (1 of 1981), Art. 9--Election petition--Jurisdiction of Tribunal--Election Tribunal, held, enjoyed authority to inquire into eligibility or ineligibility of candidate contesting election--During course of such inquiry oral or documentary evidence produced by parties could be commented upon by Tribunal as to its evidentiary value for limited purpose relevant for decision of matter pending before it--High Court, in exercise of constitutional jurisdiction, could not upset finding of Tribunal even though erroneous, but based on material before it.

Muhammad Hussain Munir etc. v. Sikandar and others P L D 1974 S C 139 rel.

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

---S. 21--Provisional Constitution Order (1 of 1981),Art. 9--Phrase "thrown away votes", explained--Respondent having secured 4 out of 11 votes--Tribunal declaring petitioner's election void and declaring respondent as member in his place--Neither there was any evidence nor finding by Tribunal that disqualification of petitioner was notorious enough so as to disfranchise majority voters belonging to Camp of petitioner--None among contestants had raised objection against petitioner at time of scrutiny of nomination papers--Had anybody known about it, petitioner would have been easily elbowed out of contest--Disqualification of petitioner, held, was not at all in knowledge of voters- and their votes could not be considered as 'thrown away votes'--High Court, exercising constitutional jurisdiction set aside order of Tribunal to extent of declaring respondent as member and directed Authority to hold fresh elections--[Words and phrases].

Muhammad Zafarullah Khan v. Sh. Muhammad Chairman, Election Tribunal and 7 others P L D 1976 Lah. 302 ref.

Mian Zafar Yasin for Petitioner.

Sanaul Haq for Respondent No. 2. Respondent No. 3 in person.

Date of hearing: 7th March, 19 2.

This constitutional petition is directed against the order of the Election Tribunal, Muzaffargarh, dated 14-11-1981, whereby the petitioner's election as "Kissan" member was declared void and in his place respondent No. 2 (the rival candidate) was declared as successful.

2. Facts giving rise to the dispute are that the petitioner and respondents No. 2 to 4 filed nomination papers for contesting election on the reserved "Peasant Seat" of Kamalpur Local Council, District Muzaffargarh. As no objection against any contestant was raised, therefore nomination papers of all the candidates were held to be in order and accepted. On 12-12-1979 elections were held and all the eleven voters cast their votes. The petitioner was declared successful as he secured 7 votes as against 4 secured by respondent No. 2. The remaining two candidates did not get any vote. The petitioner was accordingly notified as "Kissan Member" of the said council.

3. Having lost the election, respondent No. .2, filed an election petition under section 24 of the Punjab Local Government Ordinance (VI of 1979) (hereinafter called the Ordinance) before the Election Tribunal, Muzaffargarh, challenging the election of the petitioner on the ground that the petitioner being owner of more than five Acres of land was not a "Peasant" as defined by section 3(1) (xxvii) of the Ordinance and therefore, he was not eligible to contest the election for the said seat. The petitioner resisted the petition.

4. On the basis of the pleadings two issues were framed. Issue No. 2 being relevant is reproduced below:--

"Whether Rajan Shah, a candidate for the seat of Kissan member was not eligible for contesting this election because at the time of election, he owned more than 5 Acres of land."

5. The parties led oral as well as documentary evidence to substantiate their respective stand,

6. the learned Tribunal held that the land of the petitioner at the relevant day, even by allowing the concession claimed by him worked out to 48 Kanals 11 Marlas, therefore, the petitioner was not eligible to contest for "Peasant Seat". Resultantly the petitioner's election was declared void and the respondent being the next with higher number of votes was declared elected as a "Peasant Member".

7. We have heard the learned counsel appearing on behalf of both the parties and also perused the record.

8. Learned counsel for the petitioner firstly contended that the finding of the learned Tribunal; that the petitioner owned more than 40 Kanals of land is not correct, because it disregarded the "will", dated 23-3-1973 executed by his father (before his death in 1974), depriving him from inheriting his share in the estate. He maintained that it did not fall within the domain of the Election Tribunal to hold the "Will" as "false or fabricated" because such jurisdiction only vested in Civil Courts. The argument is riot acceptable. We find that Election Tribunal enjoys ample authority to inquire into the eligibility of ineligibility of a candidate contesting an election held under the Ordinance, and during the course of such inquiry whatever oral or documentary evidence was thus produced, could certainly be commented upon by the Tribunal as to its evidentiary value, of course, for such limited purpose relevant for decision of the matter pending before the tribunal. While exercising writ jurisdiction, we cannot upset a finding of an authority, though erroneous, based on the material available before it. We find support from Supreme Court of Pakistan's view expressed in Muhammad Hussain Munir, etc. v. Sikandar and others PLD 1974 S C 139 which may be reproduced with advantage-

It is wholly wrong consider that the constitutional provision was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a full--fledged appeal which plainly is not the intention of the Constitution-makers. When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction."

9. Secondly, it is contended by the learned counsel for the petitioner that by declaring respondent No. 2 (Sajjad Hussain) as successful candidate, the Tribunal has disfranchised majority of the voters who cast their votes in favour of the petitioner. He argued that respondent No. 2 received only 4 votes out of a total of voters and in the absence of any positive proof that remaining 7 voters ha full knowledge of the aforementioned disqualification of the petitioner and that by wilfully casting their votes in favour of the petitioner, they had "thrown away" their votes. Reliance has been placed on Muhammad Zafarullah Khan v. Sh. Muhammad, Chairman, Election Tribunal and 7 others PLD 1976 Lah. 302. The argument is not without force. We have noticed that there is neither any evidence nor a finding by the Tribunal that

the disqualification of the petitioner was -notorious enough so as to' disfranchise the 7 voters belonging to the camp of the petitioner. Admittedly none among the contestants had raised ,an objection about) the disqualification suffered by the petitioner at the time of scrutiny,' of nomination papers Had anybody known about it the petitioner would have been easily elbowed out of the contest. In these circumstances, we are of the opinion that the disqualification of the petitioner seas note at all in the knowledge of the voters and therefore, their votes cannot be considered as "thrown away" votes, which are almost double the number than secured by respondent No. 2.

10. For the aforesaid reasons, respondent No. 2 cannot be declared successful against the reserved seat of "Kissan Member" of Local Council,) Kamalpur, District Muzaffargarh. Resultantly the petition is accepted, the impugned order to this extent stands set aside with the direction that election to the seat be held afresh. No order as to costs is made.

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