RIAZ HUSSAIN Versus ELECTION TRIBUNAL

FAZL‑I‑MAHMOOD, J.‑‑ This writ petition calls in question the order of the District Judge/Election Tribunal, Sahiwal dated the 26th April, 1984, whereby he accepted the election petition of respondent No.2, set aside the election of the petitioner and declared the contesting candidate to have been duly elected.

2. The petitioner and respondent No.2 contested election to Zillah Council seat from Halqa No.11 in District Sahiwal held under the Punjab Local Government Ordinance, 1979. The election of the petitioner was challenged by respondent No.2 as a factual matter alleging that during the consolidation of the result of women polling station it had transpired that as a result of the Court supplied by the Presiding Officer at Government Girls Primary School, Harappa polling station it had been incorrectly shown that respondent No.2 had secured 219 votes and the writ petitioner had secured 336 votes as against 219 and 294 valid votes actually polled and counted by respondent No.4. It was thus claimed that there was a clerical mistake inasmuch as the figure of 90 valid votes in respect of ward No.11 was also erroneously repeated in respect of ward No.12 instead of the actual number of valid votes. It was further the case of respondent No.2 before the Election Tribunal that he had taken steps for the redress of this error and on the 1st October, 1980 he appeared before the Returning Officer on the same allegation and informed him regarding his grievance. The Returning Officer, however, refused to interfere. This was followed by the institution of the election petition.

3. The petitioner filed his written statement to the election petition on the 18th November, 1983. The Election Tribunal on the 15th January, 1984 framed issues, which inter alia, included the material issue‑

"Whether respondent No.l secured 294 votes and not 336 in Polling Station at Government Girls Primary School Harappa for wards No.9,10,11 and 12?"

The case was then adjourned for evidence on this issue to the 15th February, 1984.

4. The petitioner on the 15th February, 1984, under his own signatures, submitted an application before the Election Tribunal alleging that his learned counsel had colluded with his rival candidate and that the petitioner had filed an application before the Punjab Local Councils Election Authority for the transfer of the case from the Election Tribunal seized of the matter as he did not want the election petition to be tried by the learned District Judge/Election Tribunal. It was prayed that the District Judge/Election Tribunal should not try the election petition. The Election Tribunal, on the same day, also recorded the statement of the petitioner and thereafter, vide his interim order, observed that the petitioner had given up his counsel and despite the fact there was no order for staying the proceedings, in order to give facility to the petitioner to engage his counsel the case was being adjourned for the 22nd February, 1984. It was also recorded that seven witnesses were in attendance on behalf of the election petitioner/ respondent No.2 herein and they be bound down for the next date. The expenses in that behalf were to be borne by the writ petitioner.

5. On the 22nd February, 1984, as the learned District Judge/ Election Tribunal was on leave, the matter was taken up by the duty District Judge, Sahiwal, before whom a request was made by Rana Muhammad Ali, Advocate, appearing on behalf of counsel for the writ petitioner for adjournment of the case on the ground of indisposition of the petitioner. A telegram in that behalf was also relied upon. The case was ordered to come up on the 23rd February, 1984, for proper orders. On this date, the Election Tribunal, after noticing the fact that a medical certificate had been sent by the petitioner, observed that he was absent anti so was his counsel, Irshad Hussain who had appeared on his behalf had no power of attorney. The writ petitioner was ordered to be proceeded against ex parte and it was directed that the evidence of the election petitioner, Muhammad Arshad Khan, be recorded. The proceedings of the 23rd February, 1984 further show that statements of the AWs Were recorded and the election petitioner closed his evidence. The bag had been resealed and handed over to the District Nazir. Eight envelopes had been put in a sealed bag and kept in his office for safe custody. It was observed that there was an order of the Punjab Election Authority staying the announcement of the final order and since the transfer application had been fixed for hearing for the 12th March, 1984, the election petition was being adjourned to the 15th March, 1984 for proper orders.

6. On the 15th March, 1984, the writ petitioner, Haji Riaz Hussain, himself moved an application for setting aside the ex parte order dated the 23rd February, 1984 on the grounds that on the previous date of hearing he was seriously ill and therefore could not appear and that he had sent a medical certificate through his brother Irshad Hussain who appeared and moved an application together with the medical certificate but the Tribunal did not adjourn the case and ordered ex parte proceedings. It was urged in the application that if the ex parte order dated the 23rd February, 1984 was not set aside, the petitioner would suffer irreparable loss and justice may not be done. It was pleaded that by setting aside the ex parte order there was no likelihood of any injury being caused to the opposite side and that the election petition be disposed of on merits.

7. The Election Tribunal called for a reply to this application which was filed on the 15th April, 1984. Arguments of the parties were heard on this application. The case was then adjourned to come up on the 17th April, 1984 for orders. The proceedings of the adjourned date (copy whereof is Annex. XIII) show that the Tribunal announced the orders in the matter of setting aside the ex parte order. The case was then fixed for arguments and order on the 21st April, 1984. The Election Tribunal while dismissing this application for setting aside the ex parte order observed that the application filed by the petitioner was not supported by any affidavit which was being contested by the opposite side. The petitioner had failed to put up appearance nor produced an Advocate or a recognized agent. His brother who had put in appearance on the 23rd February, 1984 had no authority to appear on behalf of the writ petitioner and as such proper order had been passed in proceeding ex parte against him. The order could not be announced because of the stay order issued by the Election Authority against pronouncement of the final order. It was also observed by the Election Tribunal that this very aspect of the matter had been agitated by the petitioner before the Punjab Election Authority which had observed that it did not see anything wrong with the order dated the‑23rd February, 1984 because the writ petitioner having absented himself on the 22nd February was obliged to appear on his own on the adjourned date which was the 23rd February, 1984 and since the petitioner had admittedly not done so, ex parte order against him may not be open to question. The Election Tribunal was of the view that apart from the fact that the application was not supported by any affidavit, if the writ petitioner was incapacitated could engage a counsel or a recognized agent to appear on his behalf. It was further observed that on a previous occasion i.e. the 5th February, 1984, even the witnesses of respondent No.2 to the writ petition, Muhammad Arshad Khan, were in attendance and they had been bound down for the next date i.e. the 22nd February, 1984 at the request of the petitioner. There had intervened a long interval of seventeen days and during this time the petitioner could engage a counsel of his choice. The opinion formed by the Election Tribunal was that it appeared that the petitioner wanted to prolong the matter. The application to set aside the ex parte proceedings, it was held, had no merit and was dismissed.

8. As already mentioned in the preceding paragraph, the main case had been fixed for arguments and orders on the 21st April, 1984. The proceedings of this date as contained in Annex. XVI show that the election petitioner was present whereas the writ petitioner, who was respondent to the election petition, was absent. The case was ordered to be put up after waiting. The second interim order recites that the election petitioner was present with his counsel while the writ petitioner was absent. The arguments of the counsel for the election petitioner were heard and the case was to come up for orders later in the day. The third interim order then recites that the counsel for the writ petitioner had turned up. The name of the counsel for the election petitioner be called out so that he could also be present. The fourth interim order of the same day then recites‑‑"Case has been called. The counsel for both the parties are present. The counsel for the respondent has moved an application for producing evidence. Arguments on this application have been heard. The case to come up for orders on the 24th April, 1984."

9. Next in sequence it may be observed that the writ petitioner on the 24th April, 1984 moved an application under rules 8 and 10 of the Election Petition Rules, 1979 read with Order XLVII rule 1 and section 151 CPC for review of the orders dated the 23rd February and the 17th April, 1984. The writ petitioner who moved this application in person had requested for producing his counsel. He was allowed to produce his counsel on the 25th April, 1984 so that preliminary arguments could be heard on review application.

10. On the 24th April, 1984, the Election Tribunal announced orders dismissing the application of the writ petitioner for adducing evidence. The Election Tribunal was of the view that the stage of the proceedings when the application was moved was that the evidence of the election petitioner had been recorded and final order was to be announced which could not be done because of a stay order issued by the Punjab Election Authority. It was held that the petitioner therefore could not ask for producing his evidence as of right. The Election Tribunal was further of the view that the writ petitioner committed another default in appearance when the Election Tribunal had heard the arguments in the main election petition on the 21st April, 1984 and the case was fixed for announcement of orders but before that could be announced the writ petitioner had made the application under disposal for allowing production of evidence. It was held that he could not be permitted to do so as a matter of right because he had joined the proceedings at a stage when he had lost the right to produce evidence. The case then appears to have been fixed for the 25th April, 1984 as evidenced by Annex. XIX to this writ petition. The proceedings of that date show the election petitioner and his counsel were present while the writ petitioner was present in person, who had submitted an application that his counsel was at Multan and he had to appear in two writ petition and further that he would produce his counsel on the 26th April, 1984 which happened to be Thursday when the preliminary arguments on the review application would be heard.

11. On the 26th April 1984, the Election Tribunal dismissed the review application under rules 8 and 10 of the Election Petition Rules, 1979 read with Order XLVII rule 1 and section 151 C P C as incompetent and warranting no review. The Election Tribunal also announced orders in the main election petition on the same day. The Election Tribunal while accepting the election petition of respondent No.2 to this writ petition, after appraisal of the evidence on the record, held that it was clear from the evidence produced by the election petitioner that due to inadvertence the Presiding Officer committed a mistake by repeating the number of votes in respect of ward No.11 which Haji Riaz Hussain, writ petitioner had secured while writing the result of ward No.12 and because of this mistake there was wrong calculation of votes secured by said Haji Riaz Hussain. The Election Tribunal recorded the finding that in fact the election petitioner/ respondent No.2 to the writ petition had secured 7217 votes in Halqa No.11 from all the polling stations and the votes secured by the writ petitioner who was respondent No.l to the election petition were 7199. It was held that this was a mistake committed by the Presiding Officer with the result that the writ petitioner was declared successful whereas the election petitioner had secured more votes. It was further held that from the evidence on the record the case of the election petitioner was established. All the issues were thus decided in favour of the election petitioner. The ex parte evidence relied upon by the Election Tribunal was of Muhammad Nawaz, Assistant District Nazir who produced the election record including the bags for polling station Government Primary Girls School Harappa in respect of female wards No.9, 10,11 and 12, that of Mrs. B. Malik, Presiding Officer and lastly of respondent No. 2 to this writ petition, Muhammad Arshad Khan, who was the election petitioner. The Election Tribunal, thus declared the election of the writ petitioner from Halqa No.11 Zillah Council, Sahiwal as void and respondent No.2 to this writ petition was declared as duly elected to be a member of the Zillah Council from the said Halqa. It was further held that the allegations levelled through the recrimination petition were not established which had been refuted by the election petitioner. The recrimination petition was also thus dismissed.

12. The sequence of events would not be complete without mentioning the fact that it came to our notice that the petitioner had earlier filed two writ petitions before this Court during the pendency of the election petition. These writ petitions are No.456 of 1984 and No.484 of 1984. We sent for the files of these cases and perused the same. It may be observed that writ petition No.456 of 1984 was instituted by the petitioner on the 19th April, 1984 as is evident from the endorsement thereon. The petitioner through this petition had challenged the orders of Election Tribunal dated the 17th April 1984 refusing to set aside the ex parte order dated the 23rd February, 1984 and fixing the main election petition for arguments and orders on the 21st April, 1984. This writ petition came up for hearing before a Division Bench on the 21st April, 1984 and the interim order of the Court shows that since the case had come up for hearing at 11‑30 a.m., the learned counsel for the petitioner sought adjournment to verify if some final order had been passed by the learned Tribunal by then. The writ petition was then adjourned to the 22nd April, 1984 on which date the learned counsel for the petitioner did not press the petition at that stage and sought withdrawal of the same to approach the High Court afresh. The writ petition was disposed of accordingly.

The second writ petition No.484 of 1984 was instituted before this Court on the 26th April, 1984 as is witnessed by the office endorsement on the file of this case. This petition was filed on the ground that the order of the Election Tribunal dated the 17th April, 1984 dismissing the application for setting aside the ex parte proceedings and the order of the Election Tribunal dated the 24th April, 1984 refusing permission to adduce evidence were illegal, void, without lawful authority and of no legal effect. However, this writ petition when it came up for hearing before the High Court on the 28th April, 1984 was also withdrawn.

13. The petitioner then filed the present writ petition which was admitted to a regular hearing by a Division Bench to consider the submission that though the main case was not fixed for hearing on the 26th April, 1984, the Election Tribunal had disposed of the main case without hearing the arguments by the parties. Respondent No.2 has filed his written statement.

14. We must observe at the very outset that writ petition is devoted to throw challenge to the procedural aspects and the technicalities of law. There was no ground taken as to the merits of the actual valid votes secured by the two rival candidates nor the factual findings of the Tribunal as to the count of votes had been assailed. No challenge was thrown to these findings even at the hearing. The main brunt of the attack of the petitioner was confined to the order dated the 26th April, 1984, dismissing the review application and the announcement of orders in the main election petition without hearing arguments of the parties on a day which was not a date of hearing fixed in the main case. The petitioner also challenged the validity of the orders dated the 23rd February, 17th April and 24th April, 1984.

15. We would like to deal with the first ground urged by the learned counsel for the petitioner in so far as it relates to refusal of the Election Tribunal to review his earlier order dated the 23rd February, 1984 proceeding ex parte against the petitioner and the order dated 17th April, 1984 dismissing the application to set aside the ex parte order. The learned counsel for the petitioner relied on the provisions of Rules 8 and 10 of the Punjab Local Councils (Election Petition) Rules, 1979 to justify his stand that the Election Tribunal possessed the power of review. The plea taken was that by virtue of Rule 8 ibid, it had been provided that subject to the provisions of the Punjab Local Government Ordinance, the Election Rules and the Election Petition Rules, every election petition is to be tried as nearly as may be in accordance with the procedure for trial of suits under the Code of Civil Procedure, 1908. Thereafter, Rule 10 ibid provided that the Election Tribunal shall have all the powers of Civil Court trying a suit under the Code of Civil Procedure and shall be deemed to be Civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898. The learned counsel for the petitioner was of the view that on a combined reading of the two rules, it emerged obvious that the procedure of the C.P.C. having been made applicable and the Tribunal also having been invested with all the powers of Civil Court trying a suit under the Code of Civil Procedure, it would also be invested with the power of reviewing its orders. This argument was considered by the Election Tribunal and it was held that review petition was not competent before an Election Tribunal since review was creation of a statute and where ro power of review was provided in the statute under which the proceedings were being taken, a review would be incompetent. The argument was also in the alternative repelled on the view that the mere fact that the Court had taken a wrong view on a point urged by the party did not furnish a ground for interference in review jurisdiction.

16. Now, we would like to examine these questions at our own level. A reference needs to be made to section 24 of the Punjab Local Government Ordinance, 1979 which read as under:‑

"(1) No election shall be called in question except by election petition.

(2) A candidate may make an election petition before the Election Tribunal challenging the election at which he was a candidate.

(3) The decision of the Tribunal on an election petition shall be final."

Thereafter, subsection (1) of section 25 ibid provides for appointing of an officer to be an Election Tribunal for such area as may be specified in the notification by the Election Authority. Under subsection (4) of the said section, the Election Authority may frame rules to provide for the manner in which an election petition is to be presented and heard by the Election Tribunal and also specifying the factors and the basis which shall be taken into consideration for the disposal of election petition. It emerges clear on a careful reading of the Punjab Local Government Ordinance and the afore‑referred provisions that there is no power of review conferred specifically either by the parent statute or by the Election Petition Rules. Rule 8 relied upon by the learned counsel relates to the procedure to be followed. This argument need not detain us for long for the simple reason that, firstly, the powers of the Election Tribunal are conferred on the officers persona designata by virtue of the notification issued under section 25 of the Punjab Local Government Ordinance. Furthermore, the matter is clinched by a reference to the decision of the Supreme Court in Muzaffar Ali v. Muhammad Shaft (PLD 1981 SC 94). The Court relied with approval on its dictum in the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi (P L D 1970 SC 1). It was observed that right of review like the right of appeal is a substantive right and not a mere matter of procedure. It is always creation of the relevant statute on the subject. The learned Supreme Court was examining in the precedent case the power of review in appeal arising out of the West Pakistan Urban Rent Restriction Ordinance, 1959. It was authoritatively held in paragraph 19 as under:‑

"The upshot of the above discussion is that looked at from whatever angle the conclusion is inescapable that as the Ordinance neither expressly nor by reference bestows any powers of review, the High Court has no jurisdiction to review its orders passed in a Second Appeal under the West Pakistan Urban Rent Restriction Ordinance, 1959."

This enunciation applies with full force to the facts of the present case because the Punjab Local Government Ordinance, 197 9 neither expressly nor by reference has bestowed any power of review on the Election Tribunals which as already mentioned are constituted presona designata and they have to act within the four corners of the laws creating them. There can, therefore, be no valid exception taken to the order of the Election Tribunal dated the 26th April, 1984 dismissing the petitioner's application for review of the earlier orders for want of jurisdiction.

17. Next, we would like to take up the grievance of the petitioner in so far as it relates to announcement of orders in the main case without hearing the arguments of the petitioner on the 26th April, 1984 which allegedly was not a date of hearing fixed in the case. After having given our anxious consideration to the question, we feel that the plea is without merit. The petitioner has failed to file with the writ petition a copy of the cause list for the 26th April, 1984 which would have conclusively established whether or not the main case and the review application moved therein were on the cause list of the District Judge/Election Tribunal for that day. There is no averment or grievance made in respect of announcement of orders in review application on the same day. This shows that the review application in the main case would be on the cause list of the 26th April, 1984. The petitioner is to blame himself for this omission. It is for the petitioner to discharge his onus to establishing a plea on the basis of the material which could be obtained by him. The presumption of official acts having been performed in a regular manner thus must be raised and the petitioner has done nothing to discharge his ouns to rebut this presumption except a bald assertion. See The Province of East Pakistan v. Dr. Azizul Islam (PLD 1963 SC 296) and Majid Ali Naqvi v . Additional District Judge and Ex‑Officio Settlement , and Rehabilitation Commissioner, Tharparkar and another (1970 SCNTR 375). Apart from that, it is well‑established that the date for mere announcement of judgment is not a date of hearing. In this case, it may be observed that the arguments of the counsel for the opposite side had been heard on the 21st April, 1984 and at that time the writ petitioner and his counsel had absented themselves and the case had been fixed for orders in the later part of that day. It is no where asserted that the petitioner at any subsequent stage claimed an opportunity for addressing arguments anal that was refused by the Election Tribunal. The petitioner cannot be heard in ignorance of the proceedings of the Election Tribunal dated the 21st April, 1984, a copy whereof has been filed by him as Annex. XVI to the writ petition. The knowledge of the petitioner in this behalf is also established from the proceedings in Writ Petition, No.456 of 1984 dated 21‑4‑1984 when the.learned counsel asked for time from this Court to find out whether final order had been pronounced by the Election Tribunal that day. This establishes his knowledge that the main election petition was fixed for arguments and final orders on the 21st April, 1985. In exercise of our constitutional jurisdiction we cannot allow premium to a party on account of his own acts of omission or persistent defaults amounting to gross negligence. The argument therefore does not carry weight with us and is hereby repelled. It is difficult to hold in the facts and circumstances of this case that the order of the Election Tribunal pronouncing judgment on the 26th April, 1984 was without jurisdiction on the basis of the objections advanced before us.

18. The next grievance of the petitioner is relatable to the passing of the ex parte order dated the 23rd February, 1984 and dismissal of his application for setting aside the ex parte order vide order dated the 17th April, 1984. In this respect, we may observe that the Election Tribunal had thrashed out the pleas of the petitioner for setting aside the ex parte order and on appreciation of the facts and material before him an impression was formed that the petitioner wanted to prolong the matter and that the application for setting aside the ex parte order was without any merit. It may also be observed in the passing that in the course of the proceedings for the transfer of the election petition from the Election. Tribunal, the petitioner had challenged the act of the Election Tribunal in proceeding ex parte vide order dated the 23rd February, 1984 before the Punjab Local Councils Election Authority as a ground for transfer of the case. The Election. Authority vide order dated the 7th April, 1984, while dismissing the transfer application filed by the petitioner, observed that otherwise also the Authority did not see anything wrong with the order dated the 23rd February, 1984, because the petitioner having absented on the 2nd February, 1984 was obliged to appear on his own on the adjourned date which he admittedly did not do.

The petitioner seeks to have the order of the Election Tribunal dated the 17th April, 1984 declared as illegal, without jurisdiction and of no legal effect. It cannot be denied that the Election Tribunal had the competence to entertain and decide the application dated the 15th March, 1984. The fact that the pleas of the petitioner did not inspire confidence of the Election Tribunal and it was not satisfied with the explanation offered by the petitioner for setting aside the ex parte order cannot be said to be acts without jurisdiction. This inference and the findings were recorded on appreciation of the material before the Election Tribunal. The Tribunal could have formed the view that it has taken and this Court would not convert itself into a Court of Appeal and substitute its own views for that of the Tribunal below in exercise of the constitutional jurisdiction.

19. Even if we were to view the matter at our own level, we have been left with the impression that the view formed by the Election. Tribunal is neither fanciful nor without material basis. The petitioner had moved an application, dated the 5th February, 1984 before the Election Tribunal informing that he had already moved an application before the Punjab Election Authority for the transfer of the case to some other Tribunal and prayed that the proceedings in the election petition be not held. On the transfer application by the petitioner, the Punjab Local Councils Election Authority had not stayed the proceedings but only ordered that final orders will not be pronounced in the case. The failure of the petitioner or his counsel therefore, to appear on the 22nd February, 1984 or on the following day which was a date of hearing of the case and the witnesses had also been bound down, had to be viewed in the light of the attending circumstances mentioned above. The petitioner had obtained ample time from the Tribunal for engaging a counsel from Multan for the date of hearing on the 22nd February, 1984. There is no explanation given whatsoever as to why his counsel from Multan failed to appear on the 23rd February, 1984 even if the petitioner was not in a position to attend the proceedings, the medical certificate from a rural hospital being a circumstance which was open for the Election Tribunal to believe or disbelieve. Moreover, in paragraph 7 of the writ petition, while referring to the medical certificate of a rural hospital at Qadirpur Rawn, it is mentioned that subsequently the petitioner was referred to the Nishtar Hospital on the 25th February, 1984. Nothing has been filed by the petitioner even before this Court to substantiate this plea nor any certificate has been produced from the Nishtar Hospital authorities. None had been produced before the Election Tribunal either on the 15th March, 1984 when the application was moved for setting aside the ex parte order, dated the 23rd February, 1984 by the petitioner himself. In the light of these circumstances, it appears that the petitioner having failed to obtain stay of proceedings before the Election Tribunal from the Punjab Election Authority was ill‑advised in committing persistent defaults in his effort to achieve indirectly what he failed to achieve directly' through transfer application. In view of the circumstances and facts listed above, it cannot be held that the view taken or the impugned order passed by the Election Tribunal dated the 17th April, 1984 was without jurisdiction or void.

20. We would like to rely on the enunciation of law by the Supreme Court in the case of Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 to the following effect:‑

"11. The question of jurisdiction of the High Courts under Article 199, has come under consideration in a number of cases before this Court and it has been repeatedly held that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, or is not one at which the High Court would have arrived, does not render the decision without jurisdiction.

12. In Badrul Haque Khan v. The Election Tribunal, Dacca P L D 1963 SC 704, this Court took the view that admission of inadmissible evidence or the improper allocation of onus etc. would not necessarily render the impugned order without lawful authority, because, 'the proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction'. The same view was later reiterated in the case of Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 SC 236.

12‑A. Again in the case of Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24, it has been observed that:‑ "although the conditions for grant of certiorari which obtain in English Courts do not apply to High Courts in Pakistan at the same time the extent of this constitutional jurisdiction cannot be enlarged to an appeal on facts or questions of law. An appeal is a creation of statute and if no appeal is provided by the Legislature the determination of a Tribunal of exclusive jurisdiction is final. The scope of interference in the High Court is, therefore, limited to the inquiry whether the Tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hand and will not substitute its own findings for the findings recorded by the Tribunal."

13. In the case of Muhammad Hussain Munir v. Sikandar P L D 1974 SC 139, the question was considered at length and it was observed that:‑

"It is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case it would make the High Court's jurisdiction indistinguish able from that exerciseable in a full-fledged appeal, which plainly is not the intention of the Constitution‑makers."

This view was reiterated in Zulfikar Khan Awan v . Secretary Industries and Mineral Development, Government of Punjab, Lahore and 8 others 1974 S C M R 530, wherein it was held that:‑

"Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and mere fact that decision is incorrect does not render the decision as without lawful authority. In the instant case, the Tribunal's order was challenged on the ground of being merely erroneous as distinguished from being without jurisdiction."

Again in Begum Wazir Ahmad Industrial Home v. Niaz Begum P L D 1976 SC 214, it was observed that the High Court could not interfere in exercise of its limited constitutional jurisdiction with the finding of the final departmental authority even if upon the same facts a different view could be taken if there is neither any jurisdictional defect nor any contravention of any fundamental principle in arriving at impugned finding.

14. The legal position in respect of the limits of High Court's constitutional jurisdiction in cases where the order or judgment has been passed by the final Tribunal or Court having jurisdiction are quite clear from the above mentioned judgments. We may observe that all that the High Court can do while interfering in such matters is to see whether the Tribunal or the Court in question has acted without jurisdiction or acted in violation of the relevant statute or the law as laid down by the superior Courts."

We may next also refer to the decision of the Supreme Court in the case of Messrs Conforce Ltd. v. Syed Ali Shah etc. P L D 1977 SC 599 to the following effect:‑---

" ----However, in view of the frequency with which gross negligence is sought to be condoned on the plea that the impugned order was void or without jurisdiction, we would observed that a void order or an order without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. And, further, the expressions void orders and orders without jurisdiction are overworked expressions. No doubt they are relevant in some contexts but as suggested by Lord Reid in Anisminic Ltd. v. Foreign Compensation Commission and others 1969 A C 147 it would be better to use these expressions in the narrow and original sense of the lack of competence of the Court or the Tribunal 'to enter on the enquiry in question'. Now in the instant case, there is no dispute that the learned Civil Judge, who passed the impugned order has seisin of the case therefore, it was for him to decide whether the case was fixed for hearing or not on 1‑12‑1975. And, even if it is assumed that his decision was totally illegal, the Legislature has provided a remedy for challenging such orders, and because the Legislature has provided this remedy, the petitioner had filed his application under Rule 7 of Order IX of the Civil Procedure Code. But as that application was dismissed on account of petitioner's gross negligence, the petitioner had failed to make out any case whatever for invoking the High Court's revisional jurisdiction. "

Seen in the light of the above dicta of the Supreme Court, it must be observed that there are no features to be found in the facts and circumstances of the present case to declare the impugned order of the Election Tribunal dated the 17th April, 1984 to be without jurisdiction in exercise of our constitutional jurisdiction.

21. A further ground which was raised before us by the learned counsel for the petitioner relates to the legality of the orders of the Election Tribunal, dated 24th April, 1984 dismissing the petitioner's application for opportunity to lead evidence in rebuttal. The Election Tribunal in this behalf has held that on the 23rd February, 1984, the evidence of the election petitioner was closed and the final orders could not be announced because of the stay order against the pronouncement of the final orders. Even thereafter on the 21st April, 1984, when the case was fixed for arguments and orders, the Election Tribunal had heard the arguments of the learned counsel for the election petitioner/respondent No.2 to this petition and the case was fixed for pronouncement of the order in the later part of the day and it was subsequent to this that the learned counsel for the writ petitioner turned up. At that stage the learned counsel moved the application under the reference. On the legal plane, it was held that a respondent who had been proceeded ex parte could join the proceedings at any stage but the stage at which the petitioner had joined the proceedings was that when the evidence of the election petitioner had been recorded and final orders could not be announced because of the stay order against the passing of the final orders by the Election Authority. The Election Tribunal held that there was a subsequent default committed by the petitioner when the arguments were heard in the main election petition on the 21st April, 1984. At such a belated stage, according to the Election Tribunal, the petitioner could not claim opportunity as of right to produce evidence. The petitioner having been ordered ex parte could join the proceedings at the subsequent stages. The request for leading evidence in this case was for the first time made on the 21st April, 1984 after the arguments had been heard and the case reserved for final orders. It cannot, therefore, be said that the Election Tribunal in dismissing this application acted arbitrarily or without jurisdiction. The petitioner ought to have acted diligently and not opted for playing game of hide and seek with the Election Tribunal in the course of those proceedings. The petitioner, therefore, is to blame himself for having been caught on the wrong foot. Viewing the conduct of the petitioner we have been left with the irresistible impression that he did not reconcile with his failure to have the proceedings stayed before the Election Tribunal by the Punjab Local Councils Election Authority. As held by the Election Tribunal, the petitioner wanted to delay the proceedings for reasons best known to him and in the process if he missed the bus the result of this default and its consequences must be borne by him. On the legal plane, the approach of the Election Tribunal does not suffer from any legal infirmity. The latter rested in the discretion and indulgence of the Election Tribunal at the stage when the petitioner approached him and if the discretion has been exercised against him, it would not furnished a ground for rendering the proceedings without jurisdiction.

22. At this stage, we would like to advert to the petitioner's conduct. We note that on 5th February, 1984, the petitioner moved the Election Tribunal for stay of the proceedings as he had moved the Punjab Election Authority for the transfer of the case to some other Election Tribunal. The petitioner made this demand from the respondent Tribunal despite the factthat the Punjab Election Authority, while admitting the transfer application, had only stayed the passing of the final order in the case and thus allowed the proceedings to continue. At the same time, the petitioner had levelled allegations against his learned counsel which remained unsubstantiated and thus was successful in obtaining time for engaging an outstation counsel. The Election Tribunal allowed him seventeen days' adjournment to be able to engage a counsel and adjourned the case for the 22nd February, 1984. There is no explanation what to talk of satisfactory explanation either provided before the Election Tribunal or before us to show as to why the petitioner's counsel failed to appear on his behalf either on the 22nd February, 1984 or on the next day when the petitioner was proceeded ex parte. There was no counsel even when the application for setting aside the ex parte order was submitted on 15th March, 1984. Instead of being represented by counsel, he asked his brother to appear on the 23rd February, 1984 who was not authorised to do so in terms of rule 7 of the Election Petition Rules, 1979. It is further noteworthy that the writ petitioner on the 15th March, 1984 himself moved an application for setting aside the ex parte order, dated the 23rd February, 1984. It cannot be overlooked that as per record the Punjab Election Authority had dismissed the transfer application of the petitioner by order dated the 7th April, 1984. He also did not produce any counsel to assist him when the application for setting aside the ex parte order was argued and thereafter dismissed on the 17th April, 1984. On the contrary, he moved a writ petition before the High Court on the 19th April, 1984 through a learned counsel at Multan and for the first time a counsel on his behalf appeared before the Election Tribunal on the 21st April, 1984 after the arguments in the main case on behalf of the other side had been heard and the judgment reserved. The petitioner in para. 7 of his writ petition has made an averment that 'subsequently the petitioner was referred to Nishtar Hospital on 25‑2‑1984'. Nothing was produced before the Election Tribunal or before us to show whether this plea was factually correct or bona fide or the petitioner was trying to play a game of hide and seek with the Election Tribunal. After having given our most anxious thought to the whole sequence of events and the conduct of the petitioner as exhibited on the record we have been left with irresistible impression that the entire course of conduct of the petitioner shows that he never reconciled with his failure to have the proceedings before the Election Tribunal stayed or to have the proceedings transferred to some other Tribunal and thus exhibited rather unusual behaviour to prolong the proceedings. This Court in its discretionary jurisdiction is not minded to allow to a party a premium on his own acts of omission and commission designed through machinations so as to take advantage of it at subsequent stages before higher forum by making it a ground for the avoidance of the proceedings and order of the Tribunal. The stand taken by the petitioner before us is not different from that before the Election Tribunal. There are many unexplained phenomena. As to the legal position that this Court can take due notice of the conduct of a person approaching for relief in its constitutional jurisdiction there can be little doubt and if any reference is needed it would suffice to refer to the case of Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner P L D 1964 SC 829. We, therefore, find no scope to come to the aid of the petitioner in our discretionary constitutional jurisdiction in the peculiar facts and circumstances of the present case.

23. We must observe before parting with this judgment that in substance the matter in controversy before the Election Tribunal was a factual controversy as to the correct count of valid votes cast in favour of the two contesting candidates from female wards Nos. 9 to 12 of Polling Station Government Girls Primary School Harappa. No challenge has been thrown to the merit of the decision in so far as the factual aspects going to the root of the matter are concerned. In such a situation, mere taking shelter behind technicalities can be of little avail or persuasive value.

24. In so far as issue relating to validity of the order of Returning Officer is concerned, it automatically stands answered when the finding on the number of actual valid votes secured by each candidate has been rendered by the Tribunal. The third issue was rightly found in favour of the respondent in absence of any evidence in support of it.

25. We are, therefore, not inclined in exercise of our discretionary jurisdiction to interfere with the impugned orders of the Election Tribunal. The writ petition fails and is hereby dismissed. There will be, however, in the circumstances of the case, no order as to costs.

A . H . / R‑67 / L Petition dismissed.