Ch. GHULAM FARID vs Ch. MUHAMMAD SHARIF AND Another

1. MUHAMMAD YAQUB ALI, J.-In the election to the office of the Chairman the Union Committee No. 16 Kumharpura, Lahore, held on the 18th January 1966, there was contest between Ghulam Farid appellant and Muhammad Sharif respondent. Both the candidates polled equal number of votes whereupon lots were drawn, as provided in the rules, which favoured the respondent. The Presiding Officer thereupon declared him elected as Chairman. The result was challenged by the petitioner before the Tribunal under the West Pakistan Election of Chairman Rules on the grounds (1) that he had reasons to believe that some of the ballot papers of the respondent were not properly marked and (2) that the counting was done by the reader of the Presiding Officer which was no count in the eye of law'.

2. Both the grounds raised in support of the election petition were ruled out by the Tribunal but as two of the five ballot papers cast in favour of the respondents bore the unprescribed mark `O' and `ofo' respectively he set aside the election in the view that these marks were placed possibly for purposes of identification. The respondent thereupon moved the High Court in writ jurisdic--tion for quashing the decision of the Tribunal as without lawful authority. It was urged that the ground on which the election was set aside was not raised in the election petition and that the Tribunal had relied on a mere surmise in arriving at the conclusion that there was a possibility of identification because of the unprescribed marks on two of the ballot-papers cast in his favour. The learned Judges in the High Court gave effect to these grounds and set aside the order of the Tribunal as without lawful authority within Article 98 of the late Constitution.

3. Leave to appeal was granted as both the Tribunal and the High Court had in arriving at contrary conclusions relied on certain observations in the judgment delivered in the case of Mian Jamal Shah v. Election Commissioner sand others (PLD 1966 SC 1) and it appeared expedient to clarify the rule laid down in that case.

4. On hearing the learned counsel on either side and examining the records we find little force in the appeal. As seen the petitioner did not raise the plea in the election petition that there was a pre- arrangement for placing unprescribed marks on the ballot-papers to identify the electors. It is a cardinal principle of the law of elections that the Tribunal cannot go outside the grounds raised in an election petition or a re-criminatory statement. It is ordinarily provided by law that full and complete particulars of the allegations on which an election is challenged be set out in an election petition. No evidence can, therefore, be examined in support of an allegation not included in the particulars. The same rule applies to a re-criminatory statement. The underlying consideration is that all election disputes which affect the constitution of an elective body should be decided within the shortest possible time.

5. The Tribunal was in this view precluded in the present case from declaring the election of the respondent void on the ground that there was a possibility of identification of the voters.

6. This renders it unnecessary to dwell at length on the dictum in Mian Jamal Shah's case. Suffice it to say that the enunciation, by the learned Judges of the High Court that there should be some thing more than a mere possibility of identification to g invalidate a vote, is correct and that the rule laid down in the case was not applied correctly by the Tribunal in setting aside the election of the respondent on a mere surmise.

7. The appeal is accordingly dismissed but in the circumstances there will be no order as to costs.