Khawaja MUHAMMAD AKHTAR vs PRESIDENT, CANTONMENT BOARD, SIALKOT

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from order dated 23rd August, 1980, in an Intra-Court Appeal, by the Lahore High Court, whereby an order of a learned Single Judge dismissing a writ petition in limine, arising out of a local election, was upheld.

2. The petitioner was a candidate in the local elections held on 6-10-1979. He polled over 600 votes as against about 300 votes of respondent No. 2, who had polled the next highest. The said respondent filed an election petition which was dismissed on 16-10-1979. He then filed W. P. No. 6674 of 1979, in the Lahore High Court which was allowed and the case remanded for fresh decision after rehearing of the election petition. The Election Authority, on remand, by its order dated 12-7-1980, after recording additional evidence, allowed the petition on the ground that the petitioner had fought the election on political basis. A fresh election was, accordingly, ordered. The petitioner then tiled W.

3. P. No. 8001 of 1980, which was dismissed by a learned Single Judge in lirnine, on 21st July, 1980, with the observations:- "In exercise of the jurisdiction under Article 199 it is not the function of the High Court to substitute its own judgment for the judgment of a Tribunal charged with a particular function. Even if the Court was of the view that the judgment of the Tribunal was incorrect even then it will not be a sufficient ground to interfere provided the Tribunal exercised its jurisdiction validly and there was material before the Tribunal justifying the judgment."

4. In the present case, the learned Judge noted that there was sufficient material before the Tribunal to give the impugned finding and further that its decision was neither against the record, nor was it perverse. A learned Division Bench of the Lahore High Court, while affirming the order of the learned Single Judge, dismissed the Intra-Court Appeal filed by the petitioner, therefore, he has sought leave to appeal.

5. The statutory provision in the Cantonments Act, 1924, which contain the `disqualification' relevant in this case, read as follows :- "15-BB. Candidates not to contest election on political party basis.-(1) No person contesting election to a Board shall, directly or indirectly,-

(a) give himself out as a candidate or nominee of a political party;

(b) claim, draw or receive any financial or other assistance from any political party for the purposes of the election;

(c) bear, display or carry any document, sign, insignia, flag or any other thing indicating his association with, or affiliation to a political party...

(a) ------------------------------------------------..

6. (e)---------------------------------------------------.

(2) ------------------------------------------------..

7. The allegation against the petitioner was that he fought the election on party basis .There was sufficient direct and indirect material to link the petitioner with a political party. There, accordance to the respondent , the petitioner---scase fell under the disqualification contained in clause (c) of subsection (1) of section 15-B introduced by the cantonment (Second Amendment ) Ordinance, 1979.

8. Learned counsel for the petitioner, in order to furnish clarity to his arguments, stated that the following items of evidence were produced against the petitioner:- ,

(1) affidavits of several persons-there were counter-affidavits from the petitioners side also, therefore, as stated, this item of evidence was not given much importance;

(2) the affidavit of Nawaz Ahmed, Photographer, who had taken the photographs of petitioner's election banners;

(3) the photographs showing certain words and phrases, which indicate direct and indirect connection of the petitioner with a political party and the support of named individual belonging to that political

(4) an oral statement of Photographer Nawaz Ahmad before the Authority wherein he formally proved his affidavit and under cross---examination made deposition relating to the entire circumstances leading to his making the photographs;

(5) the cutting from a newspaper of 8th October, 1979, two days after the election, wherein it was shown that a political party had owned the petitioner as its candidate who, amongst others, had won the election; and

(6) the deposition including the lengthy cross-examination of respondent No. 2, wherein details were furnished with regard to the affiliation of the petitioner to a political party and the manner in which he bad been supported by it in the election.

9. Learned counsel contended that the newspaper cutting could not be treated as admissible material unless further evidence was produced to furnish source material for the news item; that the affidavit of Nawaz Ahmed regarding photographs, which was earlier filed by the respondent, was not properly sworn, therefore, it could not be considered against the petitioner; that Nawaz Ahmed Photographer is related to one of the candidates who was opposing the petitioner; that the evidence before the Election Authority was the same at both the stages-before the remand by the High Court and after the remand-therefore, the reversal of its earlier order dated 16-10-1979, after the remand, was not justified; that the Election Authority has taken into account irrelevant material in the form of banners, because they could be displayed even by an adversary; that even if the words and phrases used in the banners are taken to have been made use of by the petitioner, they did not furnish any connection between the petitioner and any political party; and lastly that the High Court in similar cases gave different decisions, upholding the election of candidates placed in similar situation like the petitioners and in one case relating to a similar election, this Court has granted leave to appeal while in another, relating to an adjacent constituency, although leave to appeal has not yet been granted, an order for the stay of fresh election has been passed by a learned Judge of this Court.

10. We have gone through the copies of the orders passed by this Court and by the High Court in other election matters. They are all distinguishable.

11. The relevant provision, namely 15-BB(1) contains words and expressions of wide connotation. It provides that as person contesting the election could not directly or indirectly draw or receive any assistance from a political party and could not display any sign etc. Or other thing indicating his "association" with or "affiliation" to a political party. It is in this light that the relevant provision was to be interpreted and applied to the facts and circumstances of each case. The Election Authority recorded the statement of Nawaz Ahmed Photographer. He was cross-examined at length and it was in hi deposition (obtained on cross-examination) that he gave a graphic account of what had he done at the election in so far as the taking of photographs is concerned. This part of his deposition can be separated from that part which related to the formal averment of what was contained in his affidavit sworn earlier. There was nothing illegal or against any principle, in the Election Authority accepting Nawaz Ahmed as truthful witness and indepen--dent too on account of his conduct and then relying on his statement, which furnished a very strong support to the deposition of respondent No. 2. It was the overall assessment of evidence before the Election Authority that a finding of fact with regard to the controversy raised before it, was rendered.

12. The other arguments of the learned counsel relates to the assessment ands appreciation of evidence by the Election Authority. The learned Judge in the High Court were perfectly justified in refusing to interfere with the appreciation of evidence by the Election Authority. The reappraisal of the evidence, in the circumstances of the case, was not within the ambit of the jurisdiction of the High Court under Article 199 of the Constitution. The impugned judgments are unexceptionable. We see no justification for interference. This petition, accordingly, is dismissed.