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Election Petition, decided on 29th July, 1987.

‑‑‑S.39‑‑Election‑‑Recounting of votes‑‑Conditions precedent‑‑General recounting of votes cannot be asked for through a petition but can be ordered if conditions laid down in S.39 are satisfied, regarding which specific allegations are made and substantiated.

Kanwar Ijaz Ali v . Irshad Ali and 2 others P L D 1986 S C 483 and Ch.Muhammad Din v. Abdul Qayyum and 16 others 1987 SCMR 324 ref.

‑‑‑Ss.68 & 70‑‑Election‑‑Grounds for declaring election of returned candidate, or election as a whole, void‑‑Contention of petitioner that according to evidence 15 votes were cast as to the persons who were either dead or had gone abroad and difference between petitioner and contesting respondent being of 11 votes only, the votes cast as such had necessary impact of affecting the result materially‑ Counterfoils and voters' lists used by Presiding Officers did show that ballot papers were issued as to said persons‑‑No allegation either in petition or evidence that the said votes were cast .in favour of contesting respondent nor that casting of said votes by impersonation was done with the connivance of contesting respondent or his agents to benefit him or he was actually benefited by said votes‑‑Such votes could not be synchronized with total strength secured by contesting respondent, and as such it could not be said that if the 15 votes had not been cast by impersonation, the result would have been different qua the petitioner and contesting respondent‑‑Casting of bogus votes, even in case of two contestants, could not be made a ground for taking that the election result stood materially affected as to difference between the two because it may happen to be a case where a petitioner himself takes the benefit of such votes and after having lost the game uses the same as a weapon against his adversary and when such a probability cannot be excluded, such votes with blind destination could not be treated as materially affecting the result‑‑Election can be declared as a whole to be void only if the Tribunal is satisfied that the result of election has been materially affected by reason of (i) failure of any person to comply with the provisions of the Act or the rules, or (ii) prevalence of extensive corrupt or illegal practices at the election‑‑None of these grounds having been proved by the petitioner, casting of 15 votes, if admitted so, to the contestants as situated, held, could not be regarded as an extensively corrupt or illegal practice so as to affect, the result of election materially when thousands of votes had been cast.

Abdul Qaddus Khandker v. The Election Tribunal and Additional Deputy Commissioner, Bcgra P L D 1966 Dacca 604 and Saeed Hassan v. Payar Ali and 7 others P L D 1976 S C 6 distinguished.

Abdul Aziz Kabiraj v. S.A. Chowdhry and another P L D 1966 Dacca 561; Ameer Abdullah v. Muhammad Yakub and Kh. Mahmood Sadiq, Election Tribunal Sargodha P L D 1967 Lah. 722; Muhammad Hussain and others v . Pir Salah‑ud‑Din, Election Tribunal (Additional Deputy Commissioner, Lahore) and others P L D 1960 (W.P.) Lah. 1130 and Ghulam Muhammad Butt v. The West Pakistan Province PLD 1956 (W.P.) Lah. 572 ref.

Sh. Zamir Hussain and Abid Hassan Minto for Petitioner.

Raja Muhammad Akram and Raja Muhammad Anwar for Respondent No.1.

The petitioner 'and respondents Nos.1 to 12 contested the. election from Constituency PP‑3, Rawalpindi for a seat in the Punjab Provincial Assembly on 28th February, 1985. The petitioner secured 5822, respondent No.1, 5833, respondent No. 2, 5174, respondent No. 3, 3639, respondent No. 4, 1976, respondent No. 5, 1708, respondent No. 6, 1235 respondent No.7, 1159, respondent No.8, 1038, respondent No.9, 790, respondent No.10, 302, respondent No.1l, 228 and respondent No.12, 177 votes. The respondent No.1 was declared as elected who secured the majority of the votes.

2. The petitioner questioned the validity of the Election by filing a petition under sections 52 and 55 of the Representation of the People Act, 1976 (Act No.1XXXV of 1976), alleging that the election of Respondent No.1 had been procured illegally and through corrupt and illegal practices and was in violation of the mandatory provisions of the law and Rules enumerating various irregularities oh the part of the Presiding Officers and the Returning Officer chiefly maintaining that a large number of votes had been counted in favour of Respondent No.1 which were invalid either because of the double marking or the mark having been made at a wrong place which had in fact affected materially the result of the election and several bogus votes had been polled in at different Polling Stations of the dead persons and the persons who were out of Pakistan on the election day which had also affected the election result materially as the difference obtaining between the petitioner and respondent No.1 was that of 11 votes. The petitioner prayed for setting aside the return of respondent No.1 and a declaration that he was the duly elected person or in the alternative that the election as a whole was null and void.

3. The respondent No.1 actively contested the petition by denying all the allegations while the other respondents did not participate in the proceedings. The respondent No.1 raised various preliminary objections as to the maintainability of the election petition and asserted that the allegations as set out in the petition were vague, false and frivolous. No irregularities or any violation of the law or Rules were committed during the election. As to the casting of votes of the dead persons and the persons abroad, no challenge was thrown by the petitioner during the polling. The votes were properly received and counted in the presence of all the contestants. No valid ground had been taken for recounting of the total votes. All the packets which the petitioner wanted were opened and recounting was done by the Returning Officer. No invalid votes were counted in favour of respondent No.1. The election petition as filed was liable to be dismissed.

4. On the pleadings of the parties, the predecessor of this Tribunal framed the issues as follows:‑

(1) Whether the election on the whole‑was void for the reason mentioned in the petition

(2) Whether the counting was not proper

(3) Relief

5. The petitioner in evidence produced apart from himself 13 witnesses. Abdul ,Ghani, PW.1 in his affidavit dated 15th of April, 1985 (EX.PW 1/1) stated that Mst. Zakia Bano wife of Mr. Ikram‑ul‑Haq his real daughter resident of House No.H/340 Street No.11 Chachi Mohallah, Rawalpindi, vote No.382/PP3, had been residing at Chicago, US ,A for the last three years and had not returned to Pakistan during the, election period. In his cross‑examination he said that he could not produce her address from his memory otherwise he was keeping a notes of that at his place. He denied as having been one of the workerers of Nasir Mahmood Mughal during the election. He could not give the exact date as to when his daughter left for America nor the month. However, he stated that, that was the year 1982. Syed Ishfaq Ahmad, P.W.2 in his affidavit dated 15th of April, 1985 (Ex.PW2/1) stated that Syed Mushtaq Shah son of Syed Asad Ullah Shah resident of NE 206, Tipu Road, Rawalpindi was his real brother who had been residing in West Germany for the last two years and had not come to Pakistan during the election period. In his cross‑examination he stated that he was not a voter himself. He did not know anything pertaining to the election. He denied that he was a candid worker of the petitioner during the election campaign. He also denied that he had in fact cast a vote in the name of his brother. Mahboob Ahmad Khan PW3 in his affidavit dated 15th of April, 1985 (Ex.PW3/1) stated that Mst. Maroof Jan widow of Khan Bahadur resident of House No.9B/154 Mahboob Abad, vote No.1219/PP3 Rawalpindi, was his grandmother who expired three years age. In his second affidavit dated 15th of April, 1985 (Ex.PW3/2) he stated that Mst. Imtiaz Begum wife of Abdul Rashid resident of NE 154 Mahboob Abad, Rawalpindi, vote No.1220/PP3, was his real sister who had been residing in America for the last two years and had never come to Pakistan during the election period but he denied the affidavits as having been prepared by the petitioner. He could not give the very date on which he got the affidavits attested. He, however, admitted that the affidavits were arranged for at the asking of the petitioner. He denied having been an active worker of the petitioner. Ch. Muhammad Ishaq, PW4, in his affidavit dated 15th of April, 1985 (Ex.PW 4/1) stated that Muhammad Siddique son of Ghulam Muhammad, resident of A/135 Nanikpura, Rawalpindi, vote No.35 Ward No.30/PP3 expired five years ago. In his second affidavit dated 15th of April, 1985 (Exh.P.W. 4/2) he stated that Muhammad Afzal son of Muhammad Ibrahim resident of A‑256, Nanikpura Rawalpindi, vote No.350 Ward No.13 (Old) PP3 had been residing in Kuwait for the last 8 years and had not come to Pakistan during the election. In his cross‑examination he said that he could not give the exact date and year of the death of Muhammad Siddique. As a Councillor he did not enquire as to whether the name of the deceased was entered in the Death Register or not. He could not state as to when Muhammad Afzal left the country nor he knew the address he resided at. He denied that he was an ardent supporter of the petitioner in the election. He denied that he indulged into the malpractices in connivance with the petitioner and had been arranging for the bogus voters. Moeez‑ud‑Din PW 5 in his affidavit dated 16th of April, 1985 (Exh.P.W. 5/1) stated that Mst. Tabassum Moeezuddin, vote No.332/PP3, Rawalpindi, was his wife who expired three years ago. He produced a Death Certificate (Ex.PW 5/2). In his cross‑examination he denied that, that was a forged certificate and was produced simply to help the petitioner. He stated that at the behest of the petitioner he had signed and handed over the affidavit to the petitioner before attestation. He denied that he was a supporter of the petitioner for whom he had been indulging in all sorts of malpractices with his connivance. Fayyaz‑ud‑Din PW 6 in his affidavit dated 16th of April, 1985 (Ex.PW 6/1) stated that Mst. Shaista Malik daughter of Pervez Malik vote No.848/PP3 Rawalpindi was under his supervision and guardianship. She had been residing in Australia for a period above one year during which she had not come to Pakistan. He admitted in his cross‑examination that in the affidavit Australia was inserted later on at his request. The affidavit was typed leaving a space for Australia. He stated that he was not appointed by any court as Guardian of Mst.Shaista Malik. He was not in possession of any written proof to the effect that Mst.Shaista Malik remained for sometime in Australia. He was not aware of as to the vote number of Mst.Shaista Malik. When he provided the contents as to the affidavit he had not ascertained anything as to the number of vote. He was confronted with his affidavit wherein her vote number was given. He said that he did not know who provided the vote number to the typist. Muhammad Younas PW 7, in his affidavit dated 15th of April, 1985 (Ex. PW 7/1) stated that Muhammad Ilyas resident of 51 Gali No.24 Tehmasab Abad, vote No.6669 PP3, Rawalpindi, was his real son who had been residing in Saudi Arabia for the last two years and had not come to Pakistan during the election period. In his cross‑examination the witness stated that he was contacted by the petitioner for the purpose of an affidavit. He had no idea as to the vote numbers either of him or his son. He was confronted with his affidavit where the vote number was given. He expressed that he did not know how that came to be typed that way. He denied that he was made to sign an affidavit already prepared by the petitioner. He also denied that during the election his son was at Rawalpindi. Soofi Muhammad Akhtar, PW 8, in his affidavit dated 15th of April, 1985 (Ex.PW 8/1) stated that his wife Mst.Bushra Akhtar resident of B/378, College Road, Naya Moballa, vote No.518/PP3, Rawalpindi expired an year ago. In his cross‑examination he stated that he was never asked by any body to produce the Death Certificate before the Tribunal. However, he had various papers issued by the Hospital to the effect that his wife expired there, which he was keeping at his residence. He denied for having worked for the petitioner during the election. Hakam Ali, PW9, in his affidavit dated 15th of April, 1985 (Ex.PW 9/1) stated that Bani Bibi, vote No.891/PP3, Rawalpindi, was his real mother who died four years ago. In his cross‑examination he stated that he was contacted by 3/4 persons for furnishing an affidavit to the effect of the death of‑ his mother. His mother died in District Sheikhupura. He had not taken a Death Certificate. He did not know his own vote number and also the vote number of his mother. The .person who drafted the affidavit was not given any vote number by him. Raja Muhammad Hussain PW 10, in his affidavit dated 15th . April, 1985 (Ex.PW 10/1) stated that Abdul Razzaq son of Fazal Hussain resident of Dhoke Chiragh Din, vote No.3498/PP3 Rawalpindi was his neighbour and he had been residing in Saudi Arabia for the last two years and had not come to Pakistan during the election period. In his cross‑examination he stated that he could not give his own vote number. However, he gave the vote number of Abdul Razzaq as correct. He was contacted by the petitioner alongwith some others who inquired from him as to Abdul Razzaq. He admitted that he had no correspondence with Abdul Razzaq. He had no other proof except his own statement that 'Abdul Razzaq had gone to Saudi Arabia. He denied that he made a false statement in the affidavit at the request of the petitioner. Tariq Mahmood, PW 11, in his affidavit dated 15th of April, 1985 (Ex.PW 11/1) stated that his younger brother Asif Mahmood resident of B/395. Naya Mohalla, vote No.709/PP3, Rawalpindi had been residing in Saudi Arabia, for the last two years and had not come to Pakistan during the election period. In his cross‑examination he stated that the petitioner wanted him to furnish an affidavit to the effect that his brother was at Saudi Arabia. He was not at that time in possession of any part of the correspondence between his brother and himself. He had not brought any proof in writing to show that his brother was at Saudi Arabia. He denied that he made a wrong affidavit and that he had done so being a supporter of the petitioner. Saeed Ahmad Sheikh PW 12, in his affidavit dated 16th of April, 1985 (Ex.PW 12/1) stated that his father Sardar Muhammad Sheikh, vote No .516 Ward No.14/PP3, Rawalpindi expired on 19th December, 1984. He stated in his cross- examination that he was not in a position to give vote number of any other member of his family. He was educated upto 7th class. He made a statement for the purpose of an affidavit in Urdu to a lawyer. He had appeared before a Notary Public himself. The petitioner had come to know about the death of his father from his landlord. By that time no entry as to the death of his father had been made at his instance. He denied that he was not truthful. Javed Iqbal PW 13 in his affidavit dated 15th April, 1985 (Ex.PW 13/1) stated that his father Nizamud Din son of Noor Muhammad resident of 86‑CB, Tehmasabad, vote No.69, 11/PP3, Rawalpindi expired three years ago. In his cross‑examination he stated that he was illiterate. He made a statement in Urdu to a person in the compound of the District Court who according to him was a lawyer. He stated that to the effect of the death of his father an entry existed in the Register maintained by the Municipal Committee. He was in possession of a Death Certificate but not at that time. The petitioner contacted him after the election and asked him about the death of his father. He provided the petitioner with his own affidavit. The petitioner in fact had not asked him for that. He denied that he concocted the death of his father.

6. The petitioner while appearing as his own witness stated that according to the unofficial counting he secured 5772 votes and respondent No.1 secured 5817 votes, so respondent No.1 was winning with a lead of 45 votes. In view of certain irregularities committed by the Presiding Officers he requested the Returning Officer for recounting of the votes. He addressed various applications (Mark A.AI and All) to the Election Commission to the said effect. Regarding the said applications nothing was produced so as to show that those were received by the persons to whom those were addressed. The counting by the Presiding Officer of Polling Station No.32 showed that he had secured only 5 votes at that Polling Station while according to him the votes cast were much more. On 3rd March, 1985 the bags were reopened by the Returning Officer who found 54 votes as having been cast in his favour instead of 5 votes according to the counting of the Presiding Officer. The statement pertaining to the counting as submitted by the Presiding Officer of Polling Station No.24 showed that respondent No.1 had obtained 134 votes towards which an addition of 32 votes was made subsequently by adding to the total. The votes which had been added to the votes of respondent No.1 were in fact invalid votes most of which were the votes of double marking. Certain votes from his lot were treated as invalid because of the marks though closer but not placed exactly within the column meant for him. Most of the Presiding Officers had not provided his agents with the result sheets after counting meaning thereby the unofficial counting. In the election the bogus votes were polled in excessively. The votes of the persons who had either died or were out of the country were polled in. There were also certain ballot‑papers which did not bear the signatures of the Presiding Officer yet those were counted as valid votes. According to the result declared on 3rd March, 1985, the difference was that of a few votes (i.e. 11 votes); therefore, in view of the irregularities and other commissions he had requested the Election Authorities to go for the recounting against the counting and the entries made by the Presiding Officers. He being aggrieved requested the Tribunal to recount the votes polled in respectively. In his cross‑examination, the petitioner admitted that the consolidation of the result was affected by the Returning Officer on 3rd March, 1985 where at the petitioner and other contesting candidates were present. On the said day, the scrutiny was conducted as to the allegedly invalid votes or rejected votes for which only two bags were reopened at his request. The petitioner had mentioned the numbers of the said two polling stations in his application. He had in fact made an application for the recounting of the entire polling but on the suggestion of the Returning officer he confined his request to only two Polling Stations. The validity or the rejection of certain votes was decided by the Returning Officer simultaneously with the counting in the presence of the parties. However, his objections were not accepted. His various objections were as to the counting of the votes which were not properly stamped, double marking and the ballot papers which bore no signatures of the Presiding Officers. He had 'trot been provided with the copies of the result sheets and whatever provided to him was not correct. He had raised those objections but not with any particularity as to any Polling Station except that he mentioned two Polling Stations distinctly which were Polling Stations Nos.24 and 32. He admitted that was correct that his objections as to the said two Polling Stations appertained to the wrong counting of votes only and not with regard to stamping or absence of the signatures of the Presiding Officers on the ballot papers. Again said that his objections as to Polling Station No.24 did emphasize that certain votes which were added to the result of respondent No.1 were not valid votes because of double marking or wrong placement of the marks. The result sheets as to Polling Stations, Nos.1l, 25 and '27 were not provided to this polling agents. He denied that his polling agents availed of all the votes of the persons who had died or had left the country in his favour under his instructions.

7. The petitioner after the close of his evidence wanted to place on the record for consideration the counterfoils of ballot papers, voters list marked by the Presiding Officer indicating the issuance of ballot papers to voters, the statement of count of Polling Station No. 24 issued by the Presiding Officer to the Polling agents, the statement of count of Polling Station No.24 sent by the Presiding Officer to the Returning Officer and the consolidated statement of count.

8. The learned counsel for respondent No.1 objected to the admittance of the said documents in evidence at a late stage. Since the petitioner had positively alleged as to the casting of the votes of the persons abroad and dead, therefore, he was allowed in the interest of justice, to place on to the record only the counterfoils of the ballot papers (so issued) and the voters list marked by the Presiding Officer indicating the issuing of ballot papers to the voters.

9. The Respondent No.2 who appeared as RW 1, stated that he secured third position in the election. During the election, the voters were issued the ballot papers on the production of their Identity Cards. He heard no complaint as to the bogus voting. At the end of the polling his agents were provided with the copies of the result sheets. The second counting was done by Mr. Asama Maoud, the Returning Officer himself on 3‑3‑1985. The invalid votes were sorted out and looked into by the Returning Officer. The petitioner raised his objection about the result of Polling Stations Nos.24 and 32. The bags were reopened and the votes were counted. No other objection was raised by the petitioner except as to the said Polling Stations. In his. cross‑examination he stated that he and. the petitioner were not anagonistic to each other. He did not make any statement as to the unsatisfactory condition of the election in the press. The recounting was confined to the result of Polling Stations Nos.24 and 32. That was incorrect that the mistake as to the Polling Station No.32 where the petitioner was shown as having secured five votes was rectified by making that into 54. He could not recollect if any correction was made as to 134 votes which were initially shown as having been secured by respondent No.1. He had no knowledge if 32 votes were added to 134 votes so as to bring the total to 166 votes. He denied that 32 votes allegedly added to 134 votes were not properly marked. As to the dead persons and those who were abroad as adduced in evidence by the petitioner, he said that he could not make any definite answer as he did not know any such person. The respondent No.1 appeared as RW 2. He stated that the procedure adopted by the Polling Officer was that whoever came to vote was first asked about his Identity Card and then after fixing the identity he was issued a ballot paper. He himself was subjected to the same procedure. He heard no complaint about the conduct of the election from any of the contestants including the petitioner. Whoever ‑asked for the copies of the result sheets, he was supplied with the same by the Polling Officer. The consolidation of results took place on 3‑3‑1985. On the objection of the petitioner the results of the two Polling Stations were reopened. The Returning Officer said to all of the contestants particularly the petitioner that his duty was to satisfy every body. The petitioner raised no other objection. In his cross‑examination he stated that on 3‑3‑1985 the entire record of the election proceedings was requisitioned but that was probed according to the objections of the petitioner. The clerical mistake as to the Polling Station No.32 where the petitioner was shown as having secured five votes was rectified by making that into 54. He denied that in fact 134 votes were secured by him from Polling Station No.24 to which 32 votes were added which were not properly marked. That was incorrect that when the envelop containing the invalid votes was reopened, the votes were found as bearing as double marking and a few out of those bore the stamp closer to the name of the petitioner. He had no knowledge as to the persons either dead or abroad at the time of the election.

10. Mr. Abid Hassan Minto, the learned counsel for the petitioner alongwith Sh. Zamir Hussain, Advocate, has confined the case to the raising of two contentions. The first contention is that the counting by the Returning Officer was not proper and he did not open the bags for full counting in spite of the request. In any case with regard to the Polling Station Nos.24 and 32, the specific allegations were made and on opening of the bags of Polling Stations No.32 that was proved and in fact at least 4 additional votes were counted which had not been originally counted. Similarly in the case of Polling Station No.24 that was proved that the additional 32 votes had been counted in favour of respondent No.1 which were not valid on the ground either those contained double marks or marks at the wrong places. With this background, the petitioners case before this Tribunal is that it is a proper case for recounting. In any case, the recounting of Polling Stations Nos. 24 and 32 is called for.

11. So far as the general recounting is concerned, the law about that as settled by the superior Courts is that through a petition, a general recounting cannot be asked for. It can be ordered if the conditions laid down in section 39 of the Representation of the People Act, 1976 are satisfied regarding which there have been made specific A allegations and those have been substantiated. Reference may be had to Kanwar Ijaz All v. Irshad Ali and 2 others P L D 1986 S C 483 and Ch. Muhammad Din v. Abdul Qayyum and 16 others 1987 S C M R 324, the decisions relied upon by the learned counsel for respondent No.1.

12. From the flourish of the statement made by the petitioner, recounting was asked by him before the Returning Officer to the result of the Polling Stations Nos. 24 and 32. So keeping a due regard for the contention raised as to the said two Polling Stations, the result of both the Polling Stations after summoning has been looked into and this has been done in the presence of the petitioner, his learned counsel Sh. Zamir Hussain and Raja Muhammad Anwar and Raja Muhammad Akram alongwith respondent No.1. Not a single vote cast in favour of respondent No.1 at these two Polling Stations has come out as of double marking or of marking at a wrong place. The petitioner and his counsel have felt satisfied at the scrutiny. The issue No.2 is decided against the petitioner.

13. The second contention of the learned counsel for the petitioner is that according to the evidence 15 votes were cast as to the persons who were either dead or had gone abroad. The counterfoils and voters list used by the Presiding Officers do show that ballot papers were issued as to the said persons. The difference between the petitioner and respondent No.1 being of 11 votes only, therefore, the votes cast as such have the necessary impact of affecting the result materially. The learned counsel for the petitioner has relied upon Abdul Qaddus Khandker v. The Election Tribunal and Additional Deputy Commissioner, Bogra P L D 1966 Dacca 604. In this case there was a narrow difference of two votes polled by the two rival contestants. The Election Tribunal found that there was false personation in respect of two votes namely a vote which had been cast in the name of a deceased voter and a vote cast in the name of a person who was physically absent from Pakistan when the election was held. The Tribunal came to a definite finding that in view of the narrow difference (namely a margin of two votes) in the votes polled by the two rival contestants, the result of the election had been materially affected. On such a finding the election was declared as void. It was held that the Tribunal had properly exercised its jurisdiction in holding that the casting of two illegal votes by false personation had materially affected the result of the election. The learned counsel has concluded by saying that under section 68 of the Representation of People Act, 1976, where it is claimed that the return of a candidate is void, then this sort of practice is to be connected with him but where the entire election is claimed to be void, then simply the casting of bogus votes and the probable effect of the same on the ultimate result is to be proved. He has relied upon Saeed Hassan v. Payar Ali and 7 others P L D 1976 SC 6. No determination comes forth from the said decision as to the proposition advanced by the learned counsel.

14. Raja Muhammad Akram Advocate, the learned counsel for respondent No.1 has in reply addressed that in respect of the persons dead or having been abroad, the petitioner has led the evidence, yet it has not been proved on the record that they were either dead or abroad. Even if it is assumed that certain persons were absent or dead and their votes were cast, it will be of no effect unless it is positively proved that the votes of the said persons were cast in favour of respondent No.1. In the instant case, there are 13 candidates, so the narrow margin theory is not applicable, hence the decision Abdul Quddus Khandkar v. The Election Tribunal and Additional Deputy Commissioner, Bogra P L D 1966 Dacca 604 is not attracted and as a large number of votes, at least more than the impugned votes have been secured by the other contestants, therefore, unless it is proved that these votes were objected to, nothing can be based upon that.

15. It is not a case of the petitioner nor even alleged either in the petition or the evidence that these votes were cast in favour of respondent No.1. The learned counsel for respondent No.1 has variously relied upon Abdul Aziz Kabiraj v. S.A. Chowdhry and another P L D 1966 Dacca 561. In this decision the petitioner and two others namely respondent No.2, Rustam Ali and another contested the election with the result that the petitioner secured 182 votes as against 180 by the respondent and only 8 by the third candidate. It was observed:

"In the first place, we are not satisfied that personation amounts to a non‑compliance or a contravention of any provision of the Act or the rules.

In the second place, there being no means available to the Tribunal, because of the provision of secrecy of ballot, to ascertain if a vote cast by personation has actually gone to the returned candidate, we do not think that personation is contemplated under rule 36 (1‑A). to be a ground for setting aside an election.

In the instant case there is no finding that the Tribunal was satisfied that the votes cast by personation had actually affected the result of the election and, in fact, there could be no such finding. The Tribunal appears to have declared the election void upon certain extraneous consideration, namely of equity and fairness that are no considerations that can enter into the trial of an election petition under the Electoral College Act, as is evident from the rule cited above.

For the foregoing reasons we have no hesitation to hold that the impugned order has been passed without jurisdiction as it could not be shown or found that the two instances of personation had in fact affected the result of the election."

Ameer Abdullah v. Muhammad Yakub and Kh.Mahmood Sadiq, Election Tribunal, Sargodha P L D 1967 Lahore 722.

In this case it has been observed:‑

"The condition specified in the rule for declaring an election as a whole to be void is that the result of the election should have been materially affected by reason of the failure of any person to comply with or the contravention of any provision of the Act or the Rules. It has to be proved before succeeding in having an election set aside that not only a corrupt practice was current but that it was of such a large scale that it could reasonably be said to have contaminated the entire election."

Muhammad Hussain and others v. Pir Salah‑ud‑Din, Election Tribunal (Additional Deputy Commissioner, Lahore) and others P L D 1960 (W.P.) Lahore 1130. In this case it has been observed that the term "material irregularity" means an irregularity which has affected the result of the election and not an irregularity which though it may have been a breach of the Rules has not affected the result of the election one way or the other. Ghulam Muhammad Butt v. The West Pakistan Province P L D 1956 (W.P.) Lahore 572. In this case it has been held:‑

"Though improper reception of votes 'Simplicitor' does constitute an irregularity it can be regarded as 'material' only after all such votes have been counted and it has been found that the person in whose favour those votes were cast would not have succeeded but for such votes."

16. The evidence adduced by the petitioner as to the dead persons and the persons abroad though has been subjected to an intensive cross‑examination yet remains unrebutted.

It is not the case of the petitioner that the casting of the l8 votes by impersonation of the persons who were either dead or had gone abroad (15 in number) was done with the connivance of respondent No.1 or his agents to benefit respondent No.1, or he was actually benefited by the said votes. The case of the petitioner is that since the difference between him and respondent No.1 is that of 11 votes and he has adduced the evidence that the votes of 15 persons either dead or abroad had been cast by impersonation, so the result of the election stood materially affected.

17. It is not conceivable that how it can be entertained that if the 15 votes had not been cast by impersonation, the result would have been qua the petitioner and respondent No.1 different, when the said votes cannot be synchronized with the total strength secured by respondent No.1. It has been pointed out by Raja Muhammad Akram, the learned counsel for respondent No.1 that it is not a case of only two contestants, the number of the contestants being 13 and who secured the votes as mentioned in pars. No.1 respectively. So, it cannot be said that these votes went to whom and with what ratio. In my opinion even in the case of two contestants the bogus votes having been cast cannot be made as a ground for taking that the election result stands materially affected as to the difference between the two because it may happen to be a case where a petitioner himself takes the benefit of such votes and after having lost the game uses the same as a weapon against his adversary; when such a probability cannot be excluded, therefore, such votes with blind destination cannot be treated as materially affecting the result. The election can be declared as a whole to be rid as it has been claimed in this case only if the Tribunal is satisfied that the result of the election has been materially affected by reason of (a) the failure of any person to comply with the provisions of the Representation of the People Act, 1976 or the rules; or (b) the prevalence of extensive corrupt or illegal practices at the election. Both the grounds have not been proved by the petitioner. The casting of 15 votes, if admitted so, to the contestants as situated cannot be regarded as an extensively corrupt or illegal practice so as to affect the result of the election materially where thousands of votes have been cast. The issue No.1 is decided against the petitioner with the result that this petition fails, hence dismissed with no order as to costs.

S.Q. /16/E Petition dismissed.

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