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Writ Petition No.3756 of 1984, decided on 22nd April, 1985.

---R. 5(1)(b)--Punjab Local Councils (Election) Rules, 1979, R.34(7), (8)--Constitution of Pakistan (1973), Art. 199--Double voting--Interpretation of sub-rules (7) & (8) of S. 34, Election Rules, 1979- Election as a whole to become void if double voting at one or more polling stations established--Illegal practice of double voting found to have materially affected the result of election ---Election Tribunal refusing to consider other evidence of double voting as full particulars of such votes had not been mentioned in petition as required under R.5 of Election Petitions Rules, 1979--Petitioner not having access to relevant record before filing election petition could not be expected to give each and every instance of double voting with full particulars- Allegation of double voting established through documents, prepared by polling staff--Illegal and corrupt practice of double voting having been conclusively established, Tribunal ought not have closed its eyes to it or to have repelled it on flimsy and technical grounds Particularly when the margin of victory was too small--Refusal by Tribunal to' consider evidence and its effect, held, clearly amounted to denial of exercise of jurisdiction vesting in Tribunal and called for interference by High Court in writ jurisdiction--Tribunal's impugned judgment suffered from errors patent and so flagrant that no reasonable person could have arrived at such a conclusion in face of material on record--Petition allowed and impugned judgment declared to be illegal and without lawful authority.

Muqadar v. Mutabar P L D 1965 (W.P.) Pesh. 229 ref.

Malik Muhammad Qasim, Mian Allah Nawaz and Masood Ahmad Khan for Petitioner.

M.M. Bhatti and Akhtar Shabbir for Respondents.

Date of hearing: 22nd April, 1985.

This writ petition calls in question judgment of Election Tribunal, Minchinabad, district Bahawal Nagar, dated 24-6-1984, whereby the petitioner's election petition challenging the election of respondent No.1 as councillor from Ward No.2, Minchinabad, was dismissed.

2. Briefly the relevant facts are that the petitioner contested election for membership of Town Committee, Minchinabad, from Ward No.2 against respondents Nos.l to 3 held on 28-9-1983 wherein the petitioner secured 170 votes but Shafaqat Ali Piracha, respondent No.1, having polled 173 votes won the election by a margin of 3 votes and was notified as such on 3-10-1983. Feeling aggrieved the petitioner filed election petition against him on 30-10-1983 alleging that his election was void because it was not conducted in accordance with law, that is,-

(a) polling staff issued ballot papers to the voters without requiring them to produce their national identity cards and without making their entry on the counter-foils of the ballot papers in violation of rule 34 (1) of Election Rules, 1979; and

(b) that the polling staff did not put mark of indelible ink on thumb or finger of the voters as required by rule 34 (2) (b) of Election Rules, 1979 and consequently respondent No.1 took full advantage of dereliction of duty on the part of the polling staff with the result that he got polled bogus votes in his favour and through such illegal and corrupt practice he managed his victory.

The respondent resisted the petition and from pleadings of the parties the learned Tribunal framed and tried 6 issues besides the relief, which included the following three important issues:-

(2) Whether the voters had been issued the ballot papers without requiring them to produce their national identity cards and without making entries regarding the number of such cards on the counter foils If so, to what effect. O.P.P.

(3) Whether the voters mentioned in Schedule No.IV had exercised their right of vote in the impugned election in contravention of the Election Rules O.P.P.

(5) Whether the election of respondent No.1 had been procured by other illegal or corrupt practice O . P . P .

The learned Tribunal on consideration of material on record found issue No.2 against the petitioner because failure on the part of the polling staff to ask the voter to produce national identity card and then enter its number on the counterfoil before issuing ballot paper was of directory nature and non-compliance of this rule did not have the effect of rendering the election void. About issue No.4, the learned Tribunal observed that Muhammad Tufail (A.W. 2) exercised his right of vote in ward No.4 as well as in ward No.2, while Muhammad Munir (A.W. 3) cast his vote thrice, i.e., once in ward No.1 and twice in ward No.2. However, it held that because the possibility of these voters having cast their votes first in ward No.2 cannot be ruled out, therefore, in this constituency their votes shall be considered valid. He further held that out to two votes case by Muhammad Munir in ward No.2 one vote will be counted as valid and the other shall not be, thus substracting one vote from the count, the respondent's election would not be effected. While discussing issue No.5 the learned Tribunal refrained from considering the evidence and its effect which showed that some voters had cast double votes, saying that no such objection with "full particulars" had been made in the election petition, as required by Rule 5(1)(b) of Election Petitions Rules, 1979, and ultimately dismissed the election petition. Feeling aggrieved the instant writ petition had been filed.

3. Learned counsel appearing on behalf of the petitioner has argued that the learned Tribunal is not right in saying that because there was no specific allegation of double voting made in the petition as required by rule 5(1)(b) of the Election Petitions Rules, 1979, therefore, the proof available on record in this respect cannot be considered. He referred particularly to paragraphs 4(i), (ii), (iii) and (vi) of the election petition to show, that in these paragraphs fictitious and bogus voting resorted to by respondent No.1 has been specifically mentioned. He urged that mentioning of name of each bogus voter by the petitioner was humanly impossible as the petitioner did not have access to the record before filing the petition and, therefore, rule 5(1)(b) of Election Petitions Rules, 1979, should not be interpreted too strictly. Further argued that since the margin of victory of the respondent is very small, therefore, double voting by three persons registered at vote Nos.49, 58 and 161 established on record should not have been ignored on merely technical ground as it materially affected the result of election. It is further argued that the interpretation of sub-rules (7) and (8) of rule 34 of the Election Rules, 1979, by the learned Tribunal declaring one out of two votes cast by Muhammad Tufail and Muhammad Munir each as valid is absolutely wrong and, therefore, he emphasized, the impugned judgment suffers from patent illegality and is liable to be struck down being without lawful authority.

As against this, learned counsel for respondent No.1 has supported the impugned order.

4. We have carefully considered the contentions of learned counsel for the parties and also perused the record.

5. We have been able to lay our hands on Muqadar v. Mutabar PLD 1965 (W.P.) Pesh. 229, a Division Bench decision, wherein effect of exercising right of franchise twice by a voter was considered while interpreting section 40(6) and (7) of the Electoral College Act, 1964 which was an analogous provision to rule 34(7) and (8) of Election Rules, 1979. Both the provisions are reproduced hereunder for facility of reference:-

Section 40 (6) No voter shall vote at an election:-

(a) More than once at the same polling station; or

(b) at more than one polling station;

(7) All votes cast in contravention of subsection (6) shall be void.

--34(7) No voter shall vote at an election:-

(a) more than once; or at

(b) more than ore polling station.

(8) -All votes cast in contravention of sub-rule (7) shall be invalid.

It was argued before their Lordships on behalf of the petitioner in that case that the five persons who cast double votes had voted for the petitioner first, therefore, it cannot reasonably be held that this illegality materially affected the election of the petitioner. Dealing with this contention, their lordships remarked:-

"We are clear in our mind that by the use of expression 'an election', the Legislature had not the intention to confine it to the election of a particular Unit. In our opinion, it applies to the election as a whole, whether of the same Unit from which a candidate is returned or of a different Unit. In view of the wordings of subsection (6) read with subsection (7) of section 40, we are clear in our mind that the election was rightly held to be void, because subsection (7) says that: 'All votes cast in contravention of subsection (6) shall be void'. The use of the word 'All' is significant. Had the intention of the Legislature been to confine the invalidity to the election held later in time, there was no necessity to use the word 'All' in subsection (7) of section 40 of the Electoral College Act, 1964."

In this view of the matter, we find that the interpretation placed by the learned Tribunal on sub-rules (7) and (8) of rule 34 in the instant case is in clear derogation of the letter and spirit of the said provision of law, hence the conclusions arrived at by him on the basis of such interpretation fall to the ground. In the circumstances, 3 votes, i.e., 2 votes cast by Muhammad Munir and one by Muhammad Tufail have to be deleted from the count with the result that the lead of 3 votes of the respondent is reduced to zero. It is thus as simple as anything to say that the illegal practice of double voting in this case has materially affected the result of the election.

6. Again, learned Tribunal at page 12 of the impugned judgment refused to consider other evidence of double voting as full particulars of such voters had not been mentioned in the petition as required under Rule 5 of Election Petitions Rules, 1979, and also for the reason that the respondent did nor get fair chance to meet the objection learned counsel has referred to three concrete examples of double voting by three voters, i.e., voters No.49, 79 and 168, who are issued two ballot-papers each bearing-No. 966309/966331, 966343/966511 and 966397/966401, respectively. We have examined the record ourselves and found the allegation as correct. In the election petition, allegation of fictitious/ bogus and double voting has been made. No doubt that rule 5(1)(b) requires that "full particulars of any corrupt and illegal practice" committed during the election should be mentioned in the petition, but it is not the absolute requirement. This requirement is further qualified by the words--"including as full a statement as possible of . the names of the parties alleged to have committed such corrupt or illegal practice". The petitioner did not have access to the relevant record before filing the election petition, therefore, he cannot be expected to give each and every instance of double voting with full particulars. The allegation of double voting made in the petition has been established through documents prepared by the polling staff. This allegation cannot be, therefore, termed as afterthought or that the respondent did not have notice to meet the said allegation. The illegal and corrupt practice of double voting having been conclusively established the Tribunal ought not have closed its eyes to it, or to have repelled it on flimsy and the technical ground, particularly when the margin of victory was too small. In this case, the margin of victory being of 3 votes, six cases of double voting have been detected which obviously affects the result of the election materially. Therefore, refusal by the Election Tribunal to consider this evidence and its effect clearly amounts to denial of exercise of the jurisdiction vesting in the Tribunal and calls for interference by this Court in its writ jurisdiction.

7. For all these reasons, we are of the view that the Tribunal's impugned judgment suffers from the errors patent and so flagrant that no reasonable body or person could have arrived at such a conclusion in face of the material on record. Consequently, we allow this petition and declare the impugned judgment of the Tribunal as illegal and without lawful authority, with the result that the election petition shall be deemed to be still pending before the Tribunal, which shall pass appropriate order in the light of above observation. Parties are left to bear their own costs.

S.Q./I-13/L Petition allowed.

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