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Writ Petition No.1016 of 1984, heard on 10th February, 1987.

---S. 24--Election petition--Petitioner challenging election of respondent before Election Tribunal and claiming that total number of votes actually secured by petitioner was dishonestly written against name of respondent by Polling Staff--Both parties requesting Tribunal to decide election petition after inspecting record and affixing their signatures under interim order recorded by Tribunal to such effect in token of acceptance of agreement by them--Tribunal examining record in- presence of parties and their counsel and finding that envelope of petitioner contained more votes while that of respondent contained less votes Tribunal however dismissing election petition on ground that "both envelopes were lying open when they were taken out from bag containing record of election"--No material existing on record warranting said inference of Tribunal which was based on no evidence--Held, since result was accepted conceptually by both parties by having signed relevant note recorded by Election Tribunal at time of re-examination of record, nothing more excepting to act thereupon was to be done Petitioner declared elected in circumstances.

Malik Muhammad Din v. Babu Fazal Karim and others P L D 1968 Lah. 544 ref.

Syed Muhammad Ali Gilani for Petitioner.

Mian Mushtaq Ahmad for Respondent No. 2.

Date of hearing: 10th February, 1987.

The relevant facts leading to this writ petition briefly are that Habib Ullah, writ petitioner, and Nasir Ahmad, respondent No.2, consisted election for membership of Union Council No.89 from Ward No.9, Chak No.22/8-R, Tehsil Khanewal, District Multan (now District Khanewal) held on 28-9-1983. The respondent was declared successful as having secured 53 votes against 43 votes polled by the petitioner. The petitioner challenged respondent's election through election petition filed on 5-10-1983 before the Election Tribunal, Multan Division, mainly on the ground that 53 votes were actually secured by him but the polling staff dishonestly wrote it against the name of the respondent and unjustifiably declared him as successful. The respondent filed his written statement on 20-12-1983 denying the allegation. However, both the parties and their counsel requested the Tribunal on 13-3-1984 that the election petition may be decided after inspecting the election record and they affixed their signatures under the interim order recorded by the Tribunal to this effect on 13-3-1984 in token of acceptance of the agreement by them. Consequently, the relevant record was sent for and Muhammad Siddiq, Secretary, Union Council, produced it before the Tribunal on 10-7-1984 and learned Tribunal having examined it in the presence of the parties and their counsel found that the envelope of a petitioner contained 53 votes while that of the respondent contained 43 votes. A note about this inspection was separately recorded by the Tribunal which bears signatures of learned counsel of both the parties. The bags were resealed and returned to the Secretary.

2. On 18-7-1984 having heard the parties learned Tribunal dismissed the petitioner's election petition with the following observation:-

"The chances of the ballot papers taken out from the ballot-box of the respondent having been inadvertently placed in the envelope of the petitioner are greater than that of the Presiding Officer dishonestly entering the votes secured by the petitioner against the name of the respondent. It appears that the petitioner somehow came to know after the election that the votes polled by the respondent had been wrongly placed in his envelope.

Both the envelopes were lying open when the were taken out from the bag containing the record of the election. Possibility of the mischief having been done by some member of the polling staff or polling agent after the conclusion of the counting cannot also be ruled out. The election of the respondent cannot, therefore, 'be declared to be void on account of this simple circumstance."

Feeling aggrieved thereby the instant writ petition has been filed by the petitioner praying that the impugned order be declared to be without lawful authority and of no legal effect.

3. We have heard learned counsel for the petitioner as well as for the respondent and also perused the copies of relevant record appended with the petition.

4. The record shows that the parties and their counsel having mutually agreed requested that Election Tribunal to decide the election petition after examining the record of election and the petitioner abandoned all other objections. The examination of record by the Election Tribunal, according to the note recorded separately by him revealed that the petitioner's envelope contained 53 votes as against 43 votes secured by the respondent. None of the parties raised any objection during inspection of record that it had been tampered with or that the seals of envelopes containing the ballot papers of both candidates were absent. There was, thus, no material whatsoever on record warranting the inference that the "Ballot-papers of the respondent seem to have been inadvertently placed in the envelope of the petitioner" or that "Both envelopes were lying open when they were taken out from the bag containing the record of the election" or that "the mischief might have been done by some members of the Polling Staff after the conclusion of the counting". We are, therefore, constrained to hold that these observations are based on no evidence and are absolutely against the record. It is well-settled that findings of a Tribunal based on no evidence are certainly without lawful authority. Consequently, we have no option but to declare the impugned order to be without lawful authority and of no legal effect and we declare it accordingly.

Learned counsel claimed that keeping in view the result of re-examination of the record, which for all purposes was admitted by both the parties, he should have been declared to be elected; that refusal on the part of the Tribunal to do so could not be sustained in terms of the provisions of sub-clause (ii) of clause (a) of Article 199(1) of the Constitution, 1973, and that granting of this relief to him by the High Court will be within the ambit of aforementioned provision: He placed reliance upon remarks to that effect made by Anwar-ul-Haq, J in his separate judgment reported in Malik Muhammad Din v. Babu Fazal Karim and others P L D 1968 Lah. 544. Since the result was accepted conceptually by both the parties by having signed the relevant note recorded by the Election Tribunal at the time of re-examination of the record, nothing more excepting to act thereupon was to be done. Refusing to do so was unlawful and by declaring it so the inevitable consequence shall be that the petitioner stands elected. The writ petition is allowed accordingly.

M.Y.H./H-10/L Petition accepted.

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