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Civil Petition No. 216 of 1985, heard on 3rd March, 1985.

(Against the judgment and order of the Lahore High Court, Lahore, dated 3‑2‑1985 in Writ Petition No. 387 of 1985).

‑‑‑Art. 185(3)‑‑Punjab Local Councils (Election Petitions) Rules, 1979, rr. 3, 4 1 5‑‑Election petition accepted by Election Tribunal‑‑High Court finding no jurisdictional error committed by Election Tribunal as might call for interference and dismissed petition in limine‑‑Ground in petition mostly related to appraisement and appreciation of evidence‑ Election Tribunal could draw inference which it had drawn and had not committed jurisdictional or legal error as might invite intervention in constitutional jurisdiction of High Court‑‑Petitioner's application for calling Presiding Officer as witness being belated and having been not in conformity with list of witnesses and documents earlier submitted was in nature of additional evidence and Election Tribunal was within discretionary powers to refuse same‑‑Orders of Election Tribunal and High Court upheld‑‑Leave to appeal refused.

Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others P L D 1973 S C 160.

‑‑‑Art. 185(3)‑‑Punjab Local Council (Election Petitions) Rules, 1979, rr. 3, 4 & 5‑‑Election petition‑‑Production of ballot papers issued to individuals before Election Tribunal‑‑Plea that ballot papers were issued to voters but they were not allowed to cast same‑‑Evidence produced before Tribunal to prove case having been considered sufficient by such Tribunal, there was no legal question which required further scrutiny‑‑Leave to appeal refused.

Rana Muhammad Sarwar, Advocate Supreme Court with S. Inayat Hussain, Advocate‑on‑Record for Petitioner,

Abdul Basit, Advocate Supreme Court and Ata‑ur‑Rehman, Advocate‑on‑Record for Respondent No. 2.

Date of hearing: 3rd March, 1985.

‑‑The petitioner a duly elected candidate seeks leave to appeal against the judgment of the Lahore High Court, dated 3‑2‑1985 whereby a constitutional petition filed by him challenging the decision of the Election Tribunal setting aside his election was dismissed.

The petitioner was notified as the elected candidate from electoral Unit No. 41 of the Municipal Corporation Gujranwala on the result of decisions held on 28‑9‑1983. He had obtained 1,095 votes against the contesting respondent No. 2 who had secured 1,091 votes. An election petition was thereafter filed by respondent No. 2 alleging widespread irregularities which vitiated the result of the election. This petition was contested and the following issues were framed by the Election Tribunal:‑‑

"(1) Whether the election petition has been filed collusively by the petitioner with respondents No. 2, 7 and 8 OPP‑1.

(2) Whether the petitioner is estopped from bringing this election petition by his words and conduct as stated in preliminary objection No. 3 of the written statement OPP‑1.

(3) Whether the election of respondent No. I is liable to be declared void in view of the grounds taken in para 4 of the Election Petition OPP.

(4) Relief ."

After recording evidence the Tribunal decided all the issues in favour of respondent No. 2 declaring the election of the petitioner to be void.

The petitioner challenged the decision of the Election Tribunal on the ground that not the best evidence had been produced by the respondent No. 2 that the evidence produced had not been appraised properly that compliance with the election rules had not been ensured by the Election Tribunal itself and that the case set out by the respondent No. 2 fell short of proof required under the Evidence Act for establishing his case. The learned Judges in the High Court hearing the petition found that no such jurisdictional error had been committed by the Election Tribunal as may call for interference with its decision and dismissed the petition in limine.

The learned counsel for the petitioner in seeking leave to appeal stated that the proper persons to be produced for proving the allegations as were made by the respondent No. 2 were the officers and the staff entrusted with the job of issuing ballot papers and permitting the casting of votes. As the respondent No. 2 had not produced the best evidence his case should be considered to be not proved. Besides, it was an offence under the Election Rules to take away the ballot papers out of the Polling Station. It appeared that a number of witnesses of the respondent had not only taken away their ballot papers out of the Polling Station but had produced them before the Election Tribunal in support of the case set out by the respondent. Such a violation of law relating to election should not have been permitted by the Election. Tribunal. The documents were not receiveable as evidence and reliance on them was contrary to the provisions of Evidence Act He has relies on Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and two others P L D 1973 S C 160.

It is further contended that full disclosure was not made of the case set out by the petitioner in the pleadings or in affidavits and there was a material change in the oral evidence produced at the Tribunal which was tainted and interested. The petitioner, according to the learned counsel, was prevented from leading evidence when he made an application to produce the Presiding Officer as witness to rebut the case of the respondent No. 2.

We find after hearing the learned counsel and going through the judgment of the learned Election Tribunal that the grounds taken up by the petitioner mostly relate to appraisement and appreciation of evidence brought on record. The Election Tribunal could draw the inference which it has drawn and it cannot be said that there has been committed any jurisdictional or legal error such as may invite intervention in the constitutional jurisdiction of the High Court. The petitioner did make an application for calling the Presiding Officer and again this was within the discretion of the Election Tribunal to allow such witness to be produced at all or not because the application was made at a belated stage and was not in conformity with the list of witnesses and documents earlier submitted by the petitioner himself. It was in the nature of an application for seeking production of additional evidence and this could certainly be refused in exercise of the discretionary power possessed

by the Tribunal."

As regards the production of the ballot papers which were issued to the individuals their grievance was that though they were issued the same but were not allowed to cast them. It was in support of that assertion that the recipients of the ballot papers had put forward their ballot papers. The entire evidence which was produced was considered sufficient by the Tribunal to prove the case and in such a situation we do not think that there is any legal question which requires further scrutiny. As the Election Tribunal has attended to all the aspects of the case, leave to appeal is, therefore, refused.

A.A. Leave refused.

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