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Candidate made to suffer because of omission or commission on part of Polling Officer - Election Tribunal can give relief to candidate under r. 59-Ballot paper rendered void under r. 47 either by Polling Officer or his Assistant by neglecting to observe instructions under r. 32(2) and putting electoral roll serial numbers of voters on ballot paper-Result of election materially affected within meaning of r. 59(c)-Tribunal has 4urisdiction under r.59 to give relief to candidate and declare election void.

Mahboob Ali Shah v. The Election Tribunal, Sukkur District, Sukkur and others Writ Petition No. 131 of 1960 (unreported) not followed.

Naimuddin for Petitioner.

A. H. Kuraishy for A. A.-G. for Respondents 1 and 2.

Dates of hearings : 30th November 1962 and 2nd January 1963.

The .petitioner was a candidate for the election of the Union Committee Ward No. 3, Dhak Road, Sukkur Town under, the Basic Democracies Order, 1959. There were 13 seats for the Ward for which there were 28 candidates. The petitioner was one of the persons who was declared as successful by the Returning Officer. The petitioner had secured 87 votes while respondent Siddiq had got 82 votes. The res pondent Siddiq filed an election petition before the Election Tribunal Basic Democracies, Sukkur. It would appear from the order of the Election Tribunal that 5 votes of the respondent Siddiq were declared void by the Returning Officer on the ground that the ballot papers of the said voters bore serial numbers of their electoral roll. 'The Returning Officer had not considered one tendered vote in favour of the respondent Siddiq. Thus if these six votes were held to be valid votes Siddiq would have been returned And not the, petitioner.

2. The Election Tribunal came to the conclusion that the serial numbers of the electoral roll on the ballot-papers must have been written by the Polling Officers or their Assistants. The Tribunal observed as under :-

"The irregularity has obviously been committed in good faith without any ulterior motive on the part of some ignorant and possibly ill-trained Polling Assistants. It has not been alleged by any one that the Assistants intentionally put down the serial numbers on the ballot papers or that this irregularity on their part was committed with a view to causing wrongful gain or wrongful loss to any person."

The Election Tribunal, after making the above observation, came to the conclusion that the Polling Assistants did not observe the instructions contained in Rule 32 (2) of the Election Rules and held the election of the petitioner void. The election of the petitioner was held void obviously on the ground that had the Polling Assistants not made the mistake of putting the serial numbers of electoral rolls on the 5 ballot papers the votes so cast in favour of the respondent Siddiq would have been valid and that the respondent Siddiq was entitled to one more tendered vote. This was, according to the Election Tribunal, an irregularity which bad materially affected the result of the election.

3. Mr. Naimuddin, the learned Advocate for the petitioner, contended that as the 5 ballot papers were void, they could not be taken into consideration so as to affect the election of the petitioner who was validly declared elected by the Returning Officer. In this connection reliance was placed on Rule 47 (1) of the West Pakistan Basic Democracies Election Rules 1959 (hereinafter called the Rules). It would be useful to reproduce the same. It runs as under :-

"Any ballot paper which does not bear the initials of the Polling Officer or on which is written or marked any thing, other than the particulars required to be given under these rules, by which the elector can be identified shall be void and shall not be counted."

Mr. Naimuddin contended that the 5 ballot papers which bore the serial numbers of the electoral rolls of the voters were admittedly void and therefore the Election Tribunal should not have considered them in favour of the respondent Siddiq. There is not much force in this contention when we consider rule 59 of the Rules. Rule 59 of the Rules reads as under :-

"59. The Election Tribunal shall declare an election to be void if it is satisfied that-

(a) the nomination of the returned candidate was invalid,

(b) on the nomination day the returned candidate was not qualified, for or was disqualified from, being elected for the ward ;

(c) the failure of any person to comply with the provisions of the Order or these rules has materially affected the results of the election ; or

(d) the result of the election has been materially affected by the improper acceptance or rejection of any nomination paper ; or

(e) the improper reception or refusal of any vote, or the reception of any vote which should not have been received, has materially affected result of the election ; or

(f) the election of the returned candidate has been procured or induced by any corrupt practice, or illegal act

(g) a corrupt practice or illegal act has been committed by the returned candidate or his authorised agent or by any other person with the connivance of the candidate or his authorised agent; or

(h) corrupt practices, material irregularities, illegal payments, employments, or birings have so extensively prevailed at the election that they may be reasonably supposed to have affected the result."

In this case on the finding of the Election Tribunal it is clear that either the Polling Officer or his Assistant did not comply with the provisions of Rule 47, already reproduced, inasmuch as he put the number of the electoral roll of the voter on the ballot paper which had the effect of the voter being identified. This commission on the part of the Polling Officer or his Assistant had the effect of materially affecting the result of the election within the meaning of Rule 59(c) in so far that the petitioner was declared elected. In these circumstances it cannot be said that the Election Tribunal had either acted without jurisdiction or in excess of jurisdiction.

4. Mr. Naimuddin, the learned Advocate for the petitioner, very strenuously relied upon -an unreported case of this Bench Mahboob Ali Shah v. Election Tribunal, Sukkur District, Sukkur and others, Writ Petition 131 of 1960. In that case three of the candi dates namely for the Union Committee had obtained 155, 142 and 141 votes respectively but 84 votes of the first mentioned, 62 of the second mentioned and 72 of the third mentioned were held to be invalid and therefore in place of these, three other candidates were declared by the Returning Officer to have been duly elected. These three candidates filed an election petition and the Collector, acting as the Election Tribunal came to the conclusion that their ballot papers were rightly rejected on the ground that the serial numbers of the voters appeared on them. The Election Tribunal declared the election of the three persons who had been declared elected in place of the petitioners before it as void. On a writ petition filed by the three persons whose election was declared void by the Tribunal a Division Bench of this Court came to the conclusion, relying on rule 47 (1) of the Rules reproduced above, that the order of the Tribunal was illegal. The Division Bench, while considering the order of the Election Tribunal declaring the election of the three persons before it void, observed as under :-

"This order of the Tribunal, on the face of it, is inconsistent, because if the invalid ballot papers could not be taken into consideration, the petitioner and his two companions, being amongst the first ten who had secured the largest number of votes were entitled to be declared as duly elected, and hence there was no justification in declaring their election to be void. As the error committed by the Election Tribunal in wrongly interpreting the relevant rule, is apparent on the face of the record, we accept this petition . . . . ."

A perusal of the order of the Division Bench would disclose that Rule 59 of the Rules which lays down the grounds for declaring an election void was not brought to their Lordships' notice. Rule 47(1) of the Rules which renders a ballot paper void if it bears any mark, other than the particulars required to be given under the Rules, by which the elector can be identified is no doubt an independent rule. The question, however, will be as to whether Rule 59(c) would apply in a case where a ballot paper had been rendered void because of the failure of any person to comply with the provisions of the rules, as in this case, by putting the serial- numbers of the electoral rolls of the voters on the ballot papers. Where a candidate has suffered because of the omission or commission on the part of the Polling Officer himself, the Election Tribunal can give him relief under Rule 59 of the Rules. Rule 59 (c) of the Rules contemplates that in the, circumstances, as in the present case, the Election Tribunal can declare the election to be void. We do not think that the Election Tribunal has acted beyond the power conferred on him by Rule 59 of the Rules in declaring the election of the petitioner to be void.

5. For the reasons given above, we would dismiss the petition but would make no order as to costs in the circumstances of the present case.

K. B. A:

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