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Writ Petition No. 1789 of 1984, decided on 21st December,1985:

---S. 24--Election petition--Conduct of election--Allegation of violation of any provision of law in conducting election not made in election petition, held, could not subsequently be made during hearing of election petition. -

Mian Jamal Shah v. The Second Election Tribunal etc. 1972 SCMR 496 ref.

---R. 34--Conduct of election--Minor omission of Presiding Officer-Effect--Minor and insignificant omission on part of Presiding Officer to which no mala fide was attributed, held, invalidating election of returned ca d date--Unseating of returned candidate for few over sights of public functionary on which such candidate had no control, was wholly unjustified.

Raja Muhammad Sabir for Petitioner.

Akhtar Mir Warsi for Respondent No.1.

Nemo for other Respondents.

Date of hearing: 21st December, 1985.

MUHAMMAD AFZAL LONE, J.--This writ petition is directed against the order, dated 18-3-1984, whereby an election petition filed by the petitioner under section 24 of the Punjab Local Government Ordinance, 1979, challenging the Election of respondent No. 1, was dismissed.

2. It is not disputed that from the polling station of males, the petitioner and respondents Nos.1 to 3 secured 261, 388, 26 and 21 votes, respectively. As regards the polling station of the ladies, the petitioner polled only 206 as against 281 votes obtained by respondent No. 1. Respondents Nos. 2 and 3 each got 31 votes only. The petitioner, was thus, defeated by 202 votes.

3. It is on the record that the identity cards numbers of the voters were found entered on the ballot. papers of the ladies polling station. On the basis of these entries, it is argued that the Election was violative of section 13 of the Ordinance, which ensures secrecy of ballot; the Tribunal acted illegally, in dismissing the Election petition. The learned counsel heavily relied upon Mian Jamal Shah v. The Second Election Tribunal etc. 1972 S C M R 496 to fortify his this submission.

4. Before proceeding further, it may be observed that this contention was rejected by the Election Tribunal, on the plea that no such ground was taken up in the Election petition and the irregularity in this behalf, came to light only during the scrutiny of the ballot-papers. After hearing the learned counsel for the parties and perusal of the record, we have not been persuaded to differ with the view expressed by Election Tribunal. The ground as to the violation of the secrecy of ballots, is, neither expressly mentioned in the Election petition nor can it be impliedly spelt out from the contents thereof. It may be added that during the course of his arguments, the learned counsel conceded at the Bar, that the petitioner became aware of the entries in question during hearing of the Election petition. It can hardly be doubted that unless the foundation of an allegation is laid in the Election petition, it cannot be entertained. Furthermore, even if the votes of the ladies polling station are excluded, from consideration, the respondent still wins by a margin of 127 votes.

5. In Jamal Shah's case, currency notes, were found annexed with some of the ballot papers and still some ballot papers bore the inscription "Bismillah-Hirrahman-Nirrahim". The Election Tribunal held that the inscription and the annexation of currency notes, were indicative of a pre-arrangement between the voters and the candidate. The High Court did not differ with this finding and the Supreme Court also upheld the same. We are of the view that this precedent does not advance the petitioners case in any manner, for there is no allegation of any pre arrangement between the voters and the respondent. As a matter of fact, such allegation could not be levelled, as the ballot paper of both the parties bore the identity card numbers. All this happened due to a mistake on the part of the Presiding Officer who wrongly laboured under the impression that recording of the numbers of Identity cards, on the ballot-papers, was a requirement of law. In any case, since this ground was not urged in the election petition, its notice could not be taken, during the hearing thereof.

6. It was next argued that the violation of Rule 34 of the Election Rules, 1979, was, fully proved and the Election Tribunal acted illegally in holding, otherwise. In support of this submission, our attention has been invited to the statement of Presiding Officer who was examined as C.W.1, to point out that she committed certain irregularities which vitiate the election.

7. We have gone through the statement of this witness and are of the opinion that having regard to the margin of votes, by which respondent No.1 succeeded, the omissions on the part of the Presiding Officer, on whose action the respondent had no control, are minor in character and thus not of any significance. In our estimation the result of the election was not effected by such omissions. It shall be wholly unjustified to unseat the respondent for a few oversights of the public functionary to which no mala fides in attributable. In this behalf, the findings recorded by the Election Tribunal, under issue No.4, are not open to any exception.

8. The impugned order does not suffer from any illegality, much less the jurisdictional defect, to call for interference through judicial review. This writ petition is, therefore, dismissed, but .the parties are left to bear their own costs.

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