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Writ Petition No. 61 of 1.984, decided on 3rd February, 1986.

‑‑ R. 8(4)‑North‑West Frontier Province Local Government Ordi nance (IV of 1979), Preamble‑North‑West Frontier Province Local Councils Election Rules, 1979, r. 44‑D ‑ Election petition Applicability of Civil Procedure Code, 1908‑Extent of‑North West Frontier Province Local Council Election Rules, 1979, held, were general rules relating to general election to Local councils‑Application of Civil Procedure Code, 1108, was subjected to provisions of Ordinance IV of 1979 and Rules made thereunder Civil Procedure Code, 1908, however, would not be applicable to proceedings before Election Tribunal in cases of Election of Chairman/Vice‑Chairman of Local Councils.

‑ Art. 76‑Photostat copy of agreement‑Admissibility of‑Original document executed by, and to possession of returned candidate Returned candidate's inability to produce original document but admitting execution of same and photostat copy to be correct copy of original‑Such photostat copy of original admitted to be true by executant, held, could be received in evidence and relied upon in circumstances.

‑‑ R. 8(4)‑Secrecy of ballot and sanctity of vote ‑Violation of‑ 'Halal'‑Effect of ‑'Halaf' on Talaq‑e‑Salasa', held, world shatter moral fibre of Islamic Society‑Such 'Halaf' would affect third .party i.e. wives of executants in case of violation of terms of agreement ‑Agreement based on 'Halaf' would constitute material irregularity by hampering exercise of free choice by members to cast votes in favour of better candidate and would thus affect result of election and same could be declared void resultantly.

Art. 199‑North‑West Frontier Province Local Government Ordi nance (IV of 1979), S. 39‑E (2)‑Constitutional jurisdiction, exercise of ‑Finding of Election Tribunal being final and not to be called in question before any Court or authority, powers of judicial review to proceedings of Tribunal of exclusive jurisdiction, held, would be sparingly used‑However, if acts or proceedings of Tribunal were without jurisdiction, ultra vices of authority or such Tribunal had acted in breach of some substantial provisions of law in conduct of proceedings which had materially affected findings, High Court, in exercise of constitutional jurisdiction would intervene and could set aside findings of tribunal in circumstances.

Abdullah Jan Mirza for Petitioner.

M. H. Lughmani and Kh. Nazir Ahmad, A. A.‑G. for Respondent No. 8.

Date of hearing : 20th January, 1986.

‑In an election to the seat of Chairman Union Council, Malik Pur held on 29‑9‑1983 Taj Muhammad Khan, the petitioner secured 7 votes while his opponent Ghulam Rehmani Khan respondent No. 1 secured 6 votes and as a result the petitioner was declared elected as Chairman. His election was assailed before the Election Tribunal by an election petition on grounds that the petitioner and six others arraigned therein as respondents had bound down themselves to vote for the petitioner. A photostat copy of the agreement as executed by them was enclosed. The act of before‑hand binding down by an agreement on the oath. of Holy Qur'an and 'Talaq‑e‑Salasa' was alleged against law, Islamic Propriety, morality and public policy. It was also alleged that photostat copies of the agreement were distributed amongst the supporters of the executants with a purpose to foretell the result of the election so that their supporters should pressurize them to abide by the terms of the agreement in order to avoid infidelity and divorces to their wives. In view of the above and other legal grounds to be taken up at the arguments respondent No. 1 prayed that the election of the petitioner should be declared void and instead he should be declared as duly elected or in the alternative fresh election should be ordered in which supporters of the petitioner should be entitled to freely cast their votes irrespective of the unholy 'Halaf' binding them down to cast their votes willy‑nilly in favour of the petitioner. Petitioner filed his reply and the allegations, that the unlawful agreement was violative of the law, morality. Islamic norms and public policy and that unlawful agreement was to bind down the voters before hand likely to hamper their free choice in the exercise of votes, were reported as legal pleas while the allegation of the distribution of the photostat copies of the agreement amongst the supporters of the members was replied subject to proof'.

2. On the receipt of the written reply the Election Tribunal fixed the case for evidence and arguments and later on posted the case for argu ments only when on the date the petitioner and his associates were examined who were put the photostat copy of the agreement which they admitted as correct. They had reported their inability to produce the original. They had admitted that they bad cast their votes in the same manner as had been agreed on 'Halaf' in the agreement. They had nonetheless, stated that the above agreement was executed by them as the other side was likely to put undue pressure on them.

3. The learned Election Tribunal held that the petitioner and his associates had bound down themselves under oath to act in a pre determined fashion disclosing to each other their common intent and had thereby violated. the principle of secret ballot, He further held that the agreement was made before public witnesses which jeopardized the exercise of free and independent choice in election due to the coercive pressure of the supporters upon the executants. He considered that for free and fair election it was prerequisite that each individual alone should decide on his own according to his conscience uninfluenced by external pressure as to who is the best candidate to vote for and that anything which interferes in this process is a clear violation of the law of free and fair election. He did not proceed against the executants of the unlawful agreement for penal action due to ignorance of law on their part and was contented to decide the election of Taj Muhammad Khan petitioner as Chairman Union Council Malik Pur null and void and to order fresh election to the said office.

4. Taj Muhammad Khan petitioner challenged the orders of the Election Tribunal in a writ petition. His grievance is that the Election Tribunal did nest proceed to try the election petition as a civil suit in accordance with the Code of Civil Procedure as to frame issues and give his findings thereon in the light of the evidence brought on record. He claimed that the photostat copy of the agreement produced before the Election Tribunal was an inadmissible piece of evidence and could not be exhibited into evidence, much less to place reliance on it. He contended that even the agreement amongst some members (voters) of a Union Council to bind down themselves to vote for a particular person (petitioner) in the election of Chairman would not be violative of the provisions of the Local Government Ordinance and the Rule. He contended that there was led no evidence before the Election Tribunal in support of the allegations of undue influence, duress, compulsion and pressure and t at the election Tribunal has based his judgment on surmises and conjectures to unseat him.

5. We heard the learned counsel for the parties and had also the advantage of going through the original file of the Election Tribunal. It is stated at the out set that the objection of having not conducted the proceedings in the case by the Election Tribunal as a Civil Court under the Code of Civil Procedure was raised perhaps in view of the provisions of rule 44‑D of the N.‑W. F. P. Local Councils Election Rules, 1979 whereunder it is provided that subject to the provisions of the Ordinance and tae Rules every election petition shall be tried as nearly as may be in accordance with the procedure for the trial of suits under the C. P. C. In fact the said Rules are the general rules relating to the general election to the Local Councils but even there the application of the Code of Civil Procedure has been subjected to the provisions of the Ordinance and the Rules. As far the procedure for the hearing of the election petitions about the election of Chairman or Vice‑Chairman of Union Council is concerned there is rule 8 (4) of the N.‑W. F. P. Local Council (Election of Chairman or Vice‑Chairman) Rules, 1979 which provides that the Election Tribunal may after such enquiry as he considers necessary either uphold the election or award a declaration prayed under sub‑rule (3) for any material irregularity or any other sufficient reasons to be recorded. The procedure of C. P. C. has not been made applicable to the proceedings before the Election Tribunal in cases of the Election of Chairman or Vice‑Chairman of the Local Councils and it has been left to his discretion to hold an enquiry as he considers necessary.

6. As far the admissibility of the photostat copy of the agreement is concerned it has come on record that the original was executed by the petitioner and his associates and they were the custodian of the original agreement and if they were to report their inability to produce the original and were at the same time to admit the execution of the document and the photostat copy to be its correct copy it cannot be said that in the circumstances the Election Tribunal has erred to receive the document in evidence and to place reliance on it.

7. It was contended that there was not led any evidence by respon dent No. 1 before the Election Tribunal about his allegations contained in para. 4 (c) of his petition that photostat copies of the agreement were distributed amongst the supporters of the petitioner and his associates. The election Tribunal had in fact fixed the case for evidence, if any, and arguments on 10‑4‑1984. On the day the Presiding Officer was absent and the case was adjourned by the Reader to 16‑4‑1984 when on the date the Presiding Officer posted the case for arguments only on 17‑4‑1984 and on the said date he examined the petitioner and his associates and proceeded to bear the arguments. He did not call for evidence from the parties nor there is forthcoming a statement of the parties on file if they were not to produce any evidence. The Election Tribunal considered it proper and sufficient to record the statements of the petitioner and his associates and to confront them with the photostat copy of the agreement which they admitted as correct before him and the enquiry as such and to the extent was considered necessary by him. Besides there may not have come forth direct evidence on the point of the distribution of the copies of the original agreement but an inference can be drawn C that photostat copies of the original agreement were prepared as one such photostat copy had fallen into the hands of respondent No. 1, the adversary who was not supposed to possess the photostat copy in the ordinary course of nature. . In the circumstances it cannot be said that the allegation of the distribution of photostat copies of the original agreement was unproved or disproved and not proved.

8. Last it was contended that rule 6 (1) of the N.‑W. F. P. Local Councils (Election of Chairman and Vice‑Chairman) Rules, 1979 simply provides for the election to the office of the Chairman and Vice‑Chairman by secret ballot while section 39‑N of the Ordinance pertains to the interference with the secrecy of voting at the Polling Station only when an elector casts his vote and that section 39‑F (1) details the grounds for declaring the election of a candidate void chiefly amongst those being the disqualification of a candidate and corrupt or illegal practices and that section 3 ‑J (1) was to specify those illegal practices. He contended that the agreement executed on Halaf' by the petitioners and his associates had simply bounded them down to vote for the petitioner in the election of Chairman of the Union Council and was in no manner violative of the aforesaid provisions. There is, however, no denying the fact that inter se the petitioner and his associates i.e. the members voters and the witnesses of the agreement and, may be, their supporters it was no longer 2 secret that the petitioner and his associates were bound down to willy nilly vote for 'the petitioner in the election of the Chairman. The illegal practices detailed in section 39‑J (1) are those, commission of which has been made punishable. It is not an exhaustive list by itself. In fact rule 8(4) of the Chairman Election Rules provide grounds of. material irregularity as explained amounting to non‑compliance with any provision of the Ordinance or the Rules which materially affect the result of an election or any other sufficient reasons to be recorded. In 1983 S C M R 124 it was held that rule 8 (4) of the Chairman Election Rules was to make it clear that the ambit of authority and the jurisdiction of Election Tribunal duly extended to the setting aside of the election of the returned candidate and declaring the petitioner before it to be duly elected, inter alia, "for any material irregularity or any other sufficient reasons to be recorded". In the said case there was not raised a dispute about the validity of votes before the Presiding Officer who had declared the result of the election by lot between the contesting candidates and when the dispute was raised before the Election Tribunal an objection was taken to the jurisdiction of the Tribunal to entertain the dispute of the nature. The Supreme Court observed that since prima facie a question arose about the validity of the ballots, hence the same could be looked into by the Election Tribunal even if there has not been taken any objection regarding thereto before the Presiding Officer. The Supreme Court also observed that provisions alike have been interpreted in predecessor legislation on the subject (reference impliedly made to the election of Chairman of Union Council under Basic Democracies Orders, 1959), I had, therefore to fall back on the case‑law relating to the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 whereunder rule 7(2) the Controlling Authority instead of the Election Tribunal has been vested with power to hold enquiry as may be necessary and either uphold the election of the Chairman or declare the election as void for any material irregularity or for any sufficient reasons to be recorded. In P L D 1961 Lah.. 274 it was held that the terms material irregularity' and sufficient reasons' were not synonymous. It was further held that the election of a Chairman may be declared void by the Controlling Authority on the ground of material irregularity which had affected the result of the election one way or the other or the Controlling Authority may declare the election void for sufficient reasons which need not necessarily have affected the result of the election but it should be a reason which is acceptable to a reasonable per‑ion as of sufficient importance and weight to justify annulment of the election. The Rule as such was also repeated in P L D 1968 Lah. 30 and it was held that the words material irregularity' have obvious reference to the proceedings and conduct of the election between the contesting candidates as a Chairman but there are the words 'any sufficient reasons' used in addition, not without purpose. In P L D 1963 S C 623 it was held that irregularities having been separately dealt with should be, deemed to have been excluded from sufficient reasons and that the words sufficient reasons were in a class different from irregularities. In short the Basic Democracies Chairman of Election Rules were interpreted by the superior Courts that material irregularity and sufficient reasons were distinct and different it from each other and they have to be given full meaning and effect and that the intention of the legislature appeared to be to include in their is ambit all valid grounds of challenge, as are sufficient in the opinion of the Controlling Authority as a reasonable person to render the election void.

9. Before proceeding to confirm or disapprove the declaration of the Election Tribunal that the alleged agreement violated the spirit of the free and fair election and was against the principles of morality, Islamic Sharia and public policy and that it amounted to material irregularity or sufficient reasons to justify the annulment of the election of the petitioner as Chairman of the Union Council, I would better reproduce the verbatim translation of the agreement for ready reference and appreciation :‑

"In the name of Allah, the Beneficient, the Merciful. "786".

Agreement 19 September, Soamwar 1981 to September 1988."

We the following members of Union Council,. Malik Pur in Talaq‑e- Salasa' make this agreement that out of us every member shall be bound by this agreement and the said 'Halaf' to use his vote in favour of Taj Muhammad Khan son of Mir Afzal Khan of Shanai, a candidate for Chairman Union (Council) Malik Pur and that this agreement and 'Halaf' shall also be binding on Taj Muhammad Khan. Hence this agreement was being written in acknowledgment in presence of the following witnesses. Every member of us along Taj Muhammad Khan shall be guilty of the 'Halaf' of this agreement in case of being influenced in future due to any personal and political influence and pressure and that every vote will be given to Taj Muhammad Khan by hand. Signed by member Ghulam Sarwar Khan, member Ali Gohar, Member Muhammad Farid Khan, Member Muhammad Maroof Khan, Member Syed Rehmat Shah, Member Ashiq ' Hussain Shah, witness Khalil‑ur‑Rehman, witness Muhammad Anwar Khan: and the scribe Badi‑uz‑Zaman and also witness Muhammad Azam Khan dated 19‑9‑1983".

10. Now the agreement as above admitted to have been executed and also carried into effect in the election held on 29‑9‑1983 cannot be said that it did not violate the secrecy of ballot and sanctity of vote and that there was a free and fair election untrammelled by undue pressure. The 'Halaf' on Talaq‑e‑Salasa shatters the moral fibre of the Islamic Society. It is to affect a third party in unconcerned persons i.e. the wives oil executants in case of the violation of the terms of the unlawful agreements by the husbands and is thus against the morality and public policy. It was a material irregularity in the sense that it hampered the exercise of free choice by the members to cast their‑ votes in favour of a better candidate and has materially affected the result of the election of the Chairman of the Union Council. In nutshell the execution and the carrying into effect of the unlawful agreement by the petitioner and his associates as admitted by them before the Election Tribunal was both covered by the terms material irregularity' and sufficient reason' as recorded by the Election Tribunal and the latter has rightly held the election void resultantly.

11. Before parting I would also refer to section 39‑E (2), of the Ordinance providing that the decision of the Election Tribunal on election petition shall be final and shall not be called in question in any Court or before any other authority. Powers of Judicial review to the proceed ings of a Tribunal of exclusive jurisdiction and authority are to be sparingly used unless such acts and proceedings of the Tribunal are without jurisdiction and ultra vires of his authority or the Tribunal has acted in breach of some substantial provisions of law in the conduct of proceedings which has materially affected the decision. Having found the Election Tribunal to have proceeded on correct lines in the conduct of proceedings before him who has rather upheld the high principles of morality, Islamic Sharia, and public policy in declaring the election of the petitioner as void, we would, therefore, refrain to exercise our extraordinary discretionary jurisdiction in the cause and would accordingly dismiss this writ petition with costs.

A. A. Petition dismissed.

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