1988 PLP 945 (CLC)

Ss. 9 & 52--Election petition--Expenditure on on-going schemes by returned candidate in his constituency as Chairman of District Council--Appointment of staff of Local Council as Presiding Officers and polling officers--Effect--Returned candidate being Chairman of District Council, held, was duty bound to attend to and redress grievances of people within area of District Council of which he was Chairman by sanctioning various development schemes and incurring expenditure thereon, particularly when it was proved that such expenditure was incurred on the on-going schemes and no fund was released after ban was imposed by Government on such expenditure- Staff of District Council was appointed on election duties not by the returned candidate as Chairman of District Council but by the Local Government--Such staff being employees of the Local Government, could not be deemed to be in the employment of Chairman--No evidence had been produced that employees of Local Government serving under the District Council were appointed at the instance of the returned candidate or such staff had done anything during election showing favour to him. (f) Representation of the People Act (LXXXV of 1976)

S. 52--Election petition--Prayer for scrutiny and re-counting of votes when not to be granted--Such prayer, held, could not be granted when there were general allegations that counting was incorrect or invalid votes were taken into account without any supporting evidence--Relief of re-counting could not be granted merely on the possibility of there being an error--Petitioner having failed to discharge burden by convincing and cogent evidence that returned candidate was guilty of illegal or corrupt practices, his petition was dismissed. Abdullah Jan Mirza and Sardar Mohammad Aslam for Petitioner. Mufti Mohammad Idris, Qazi Mohammad Asif and Khawaja Abdur Rashid for Respondents. Date of hearing: 20th January, 1988. In this petition under Section 52 of the Representation of the People Act, 1976, the election of Javaid Iqbal (respondent No.l) as a Member of the National Assembly of Pakistan from Constituency No.NA-13, Abbottabad-II is challenged by Sardar Gul Khitab Khan (petitioner). Respondents Nos.2 and 3 also took part in the election. Respondent No.l secured 31750 votes against the petitioner who obtained 28008 votes and thus respondent No.l having won the election by a majority of 3,742 votes was declared duly elected and a notification to this effect was published on 6-3-1985. The validity of the election of respondent No.l is called in question by the petitioner mainly on the grounds that respondent No. l being a Chairman of District Council, Abbottabad was a whole time functionary of the District Council since 1979 without interruption and has been receiving a salary of Rs.2,000 p.m.; that in this capacity respondent No. l holds an office of profit under the Government and, therefore, does not stand exempted under the law from the purview of Section 99 Clause (i) of the Representation of the People Act, 1976 read with Section 10(9) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 and hence he was not on the nomination day qualified for and was in fact disqualified from being elected as a Member; that in order to procure votes and influence the voters of his Constituency he addressed various election meetings at different places and made promises during election campaign to build schools, water supply schemes and roads and had also given various amounts and donations to school children etc; that under the electoral laws no person who is or has been in the employment of any candidate is to be appointed as Election Officer for any Polling Station but at Polling Stations Bagh and Chanjha, total polling staff including Presiding Officers were employees of District Council, Abbottabad who were subordinates of respondent No.l, that at Polling Station Hilli the entire polling staff belonged to and was attached with Government Middle School, Hilli who promoted the cause of respondent No.l during the election; that the donations made by respondent No.l referred to above were intended for the purpose of influencing the voters in his favour which amounted to general corruption so wide spread that it had affected the result of the election as a whole; that at Polling Stations Nos.60,66,67,89 and 122 ballot-papers, 4190 in number, were found in unfolded condition and in unsealed envelopes which indicated that the right of franchise in respect of unfolded ballot papers was not exercised and these votes required exclusion from the count of respondent No.l; that before consolidation of result a request was made by the petitioner to the Returning Officer for re-checking or re-count of total votes polled by the contesting candidates at all the Polling Stations in order to exclude the ballot papers bearing identification marks or no stamp or initial by the Presiding Officer but this request was turned down by the Returning Officer due to paucity of time but acceded to the request in respect of Polling Stations Nos.27, 60, 66, 67, 80 and 89 and upon count he found a large number of ballot papers in unfolded condition and some with double stamps which ought to have been excluded from the count of respondent No.l; that the teaching staff in all institutions upto Primary standard within the limits of the District Council are under administrative control. of the Chairman, District Council, who were either posted as Members of Polling Staff or have been canvassing for promoting the candidature of respondent No.l; that in violation of the relevant rules respondent No.l got printed and distributed unofficial identity slips bearing his name, photograph and election symbol and that the election of respondent No.l having been procured by committing corrupt and illegal practice at an extensive scale, was to be void. The allegations made in the election petition were vehemently opposed by respondent No.l in the written statement filed by him. In view of the pleadings of the parties the following issues were framed in the case:- (1) Whether respondent No.l held office of profit under the Government on the date he filed his nomination paper to the National Assembly seat 'VA-13 Abbottabad-II? If so, what is its effect?; (2) Whether respondent No.l is guilty of illegal and corrupt practices mentioned in paragraph 4 (ii) to 4 (vii) of the petition; If so, what is its effect on the election of respondent No.l and on the election as a whole?; (3) What should the order be? 2. The petitioner in support of his case examined 8 witnesses including himself. The petitioner (P.W.1) reiterated the allegations made in the election petition referred to above. Raja Maqsood (P.W.2) stated in his affidavit Ex.P.W.2/1 that during an election meeting, respondent No.l had made promises for the payment of Rs.1,00,000 for water supply schemes for certain villages and his speech was tape-recorded by him. In cross examination he stated that he is always assisting the police people for the last 32 years and generally appeared as a police witness in criminal cases. A criminal case for firing at the police was also registered against him but he was acquitted of the charge. The affidavit Ex.P.W.3/1 of Sher Muhammad (P.W.3) is to the effect that respondent No.l in an election meeting in village Sangra Galli had announced a donation of Rs.30,000 for water supply scheme of village Makhnial, Rs,20,000 for Sangra water supply scheme and Rs.20,000 for a link road. He also donated Rs.500 for village mosque and Rs.500 to school children and in consideration thereof solicited votes in his favour in the ensuing election. He stated that Bhola Shah was present with him when the affidavit was scribed as both of them were summoned by the petitioner for this purpose. He denied that Bhola Shah was the election agent of the petitioner at Karyal Polling Station. Abdul Aziz (P.W.4) stated in his affidavit Ex.P.W4/1 that on 20-2-1985 during an election meeting respondent No.l had announced donation of Rs.20,000 for the streets and water supply scheme of village Banda Munir Khan and in consideration thereof solicited votes in his favour. He was the polling agent of the petitioner at Polling Station Banda Munir Khan. The stamp paper for the affidavit was purchased by him and also by one Malik Amir Sultan. He did not know if Malik Amir Sultan was a supporter of the petitioner in the election. Masroor Hussain Shah (P.W.5) stated in his affidavit Ex.P.W.5/1 that at an election meeting, respondent No.l had announced the donation of Rs.50,000 for the streets of village Sarai Naimat Khan, Rs.25,000 for the streets of Mohallah Matloob Abad, Rs.25,000 for water supply scheme for village Dharam Pani and Rs.20,000 for the streets of village Banda Munir Khan and in consideration thereof solicited votes in his favour. Ghulam Jan Tahir Khilli, Editor Newspaper, (P.W.6) deposed about the news item concerning the death of one Mohammad Aslam Khan Abbasi was published in his newspaper dated 26-2-1985 Ex.P.W. 1/3. He stated that he did not confirm the truth of the news item because it was not of great importance and related to some development work. He or his reporter was not present in the meeting mentioned in the news item. Shabbir Hussain, Accounts Officer, District Council, Abbottabad (P.W.7) produced notification dated 30-12-1979 (EX.P.W.1/1) showing that respondent No.l was being given Rs.2,000 p.m. by the District Council as an allowance. He stated that respondent No.l is living in an official residence and the monthly rent is deducted from his pay. The polling staff mentioned in Ex.P.W.7/3 are the employees of the District Council, Abbottabad and drawing their pay from the District Council excepting one Saifer Akhtar who is not an employee of the District Council. He stated that on 11-2-1985 an agreement was executed between the Project Committee and the District Council for the proposed construction of some rooms in a Middle/Primary School and a cheque of Rs.42,500 was issued to Mirza Khan, Project Leader on 13-2-1985. Another cheque of Rs.20,000 was issued to Sardar Wali Muhammad, Member, District Council, for the construction of a road in Lora on 14-11-1985. Another cheque was issued on 17-11-1985 to Sardar Gul Baz for Rs.17,000 for the construction of an additional room in a Primary School. Another cheque was issued to Sardar Wali Muhammad for Rs.65,400 on 20-1-1985 for carrying out repairs of different Primary Schools on Lora side. Another cheque of Rs.10,800 was issued to Malik Muhammad Ramzan on 2-2-1985 as final payment for the construction of Girls Primary School, Panghoora. He stated that respondent No.l as a Chairman of the District Council was competent to sanction new schemes as well as to make payment regarding the ongoing schemes. He stated that a cheque of Rs.42,500 was given by way of first instalment for the construction of additional three rooms in Primary School, Hilli and that some of the persons mentioned in Ex.P.W. 7/3 are the employees of Local Government and not of the District Council. He further stated that during the election tour of respondent No. 1, no scheme was announced by him according to the record in his possession, and the persons to whom the cheques were issued at different times were the Project Leaders of the ongoing schemes. Fida Hussain Naqvi, Additional Commissioner Hazara (P.W.8) was the Returning Officer of the Constituency. He was examined in great detail. From his evidence it is not established that respondent No.l himself or by his election agents or by any other person -with his connivance, was guilty of committing any illegal and corrupt practices alleged against him. He stated that the envelope (Ex.P.W. 8/2) contained 11 ballot papers in favour of the petitioner bearing different marks and the envelope Ex.P.W. 8/3 contained 21 ballot papers bearing different marks in favour of respondent No.l. He further stated that at Polling Station No.66, respondent No.l secured 736 votes out of which 55 ballot papers bore different marks (Ex.P.W.8/4). Respondent No.l secured 912 votes at Polling Station No.67,. out of which 11 votes were having different marks (EX.P.W 8/5). At Polling Station No.89, the petitioner secured 25 votes out of which 2 had different marks (Ex.P.W.8i6) and respondent No.l obtained 905 votes out of which 37 votes were having different marks (Ex.P.W. 8/7). At Polling Station No.122, the petitioner secured 13 votes out of which 4 votes bore different marks (Ex.P.W. 8/8) and respondent No.l obtained 950 votes as shown in the result-sheet which on recount were found to be 948 out of which 16 votes bore different marks (Ex.P.W.8/9). 3. In rebuttal of the petitioner's evidence referred to above, Javaid Iqbal respondent No.l produced 5 witnesses besides his own statement. Laiq Khan Additional Secretary, Local Government and Rural Development (R.W.1) produced the opinion of the Law Department (EX.R.W.1/1) regarding disqualification of the Chairmen of the Local Councils and stated that under Section 38 of Ordinance IV of 1979 the Chairman of a District Council is entitled to remuneration and in the relevant notification instead of the word 'remuneration' the word 'salary' is inadvertently mentioned. Gul Zaman Teacher, Government Middle School, Hilli (R.W.2) was the Presiding Officer of Polling Station 89. He refuted the allegations that unfolded ballot papers were placed in the envelopes after unsealing them. He stated that the ballot papers after being taken out from the ballot boxes were straightened and then put in the envelopes in the presence of the Polling Agents of the parties. Nabi Shah (R.W.3) stated in his affidavit (R.W.3/1) that respondent No.l while addressing public meeting on 22-2-1985, at Banda Munir Khan did not make any announcement regarding any water supply scheme nor any funds were promised in the meeting. Matloob Khan (R.W.4) in his affidavit (R.W.4/1) mentioned that there are no schemes whatsoever for pavement of streets in village Sarai Niamat Khan or Mohallah Matloob Abad etc. and also there was no water supply scheme for village Dharam Pani. So the question of announcement of funds for the so-called schemes by the Chairman District Council on 14-1-1985 does not arise. Qazi Muhammad Khurshid Election Officer (R.W.5) produced proforma (R.W.5/1) issued by the Deputy Commissioner during the Referendum for appointment of Presiding Officer/ Assistant Presiding Officer etc. and stated that the election staff appointed during the Referendum was also appointed for the election to the National Assembly and Provincial Assembly in the year 1985. Javaid lqbal Abbasi (Respondent No.l) appeared as R.W.6 and refuted the allegations made in the evidence produced by the petitioner and stated that when he got information about the mat-practices committed by the petitioner and other candidates, he duly informed the Returning Officer; that the election staff appointed during the Referendum was again appointed for the general elections and he never applied for the change of any member of the polling staff; that none of the polling staff appointed from the District Council and Primary School Teachers ever assisted him during the election; that the petitioner secured highest number of votes at some Polling Stations where the polling staff belonged to the District Council and Primary Schools; that he was getting Rs.2,000 honoraria from the District Council which is not a salary and is paid to all the Chairmen of the District Councils; that as Chairman of the District Council, he was authorised to sanction expenditure of various development schemes which were ongoing or new till the time the ban was imposed by the Government; that after the ban no such expenditure was incurred; that out of the savings of the District Council, three rooms were constructed in the Primary School of Hilli and no construction was effected in the Middle School of the said village; that in this regard a Project Committee was formed on 4-12-1984 which entered into an agreement with the District Council on 10-2-1985; that the stamp paper was purchased on 10-2-1985 and the agreement was executed on 11-2-1985; that during his election campaign people used to make demands for development schemes but he did not extend any promise and that the ban on the expenditure of development schemes by the District Council was imposed on 16-2-1985. 4. It may be mentioned that the arguments advanced by the learned counsel for the petitioner relating to the appointment of Presiding Officers and polling staff at various Polling Stations cannot be entertained as no such objection is taken in the election petition. It B is also evident that the petitioner had taken part in the election and if there was any violation of the provisions of section 9 of the Representation of the People Act, 1976, he could have made representation to the concerned election authority which he could do under the provisions of section 103 of the Act. 5. Issue No.1- Regarding the contention that respondent No.1 being Chairman of the District Council, Abbottabad was and continues to be a whole time functionary of the District Council and has been receiving a salary of Rs.2,000 per month and as such he holds an office of profit and is not exempted from the purview of section 99 Clause (i) of the Representation of the People Act, 1976 read with section 10 (9) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 and in consequence thereof he was not on the nomination day qualified for and was in fact disqualified from being elected, it may be mentioned that the learned counsel for the, petitioner had not shown that respondent No.l is holding an office of profit in the service of Pakistan or in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest. In the absence of this essential legal requirement it cannot be said that respondent No.l being a Chairman of the District Council was not qualified for and disqualified from being elected as a Member of the National Assembly. Respondent No.l is an elected Chairman of the District Council, Abbottabad under Rule 5 of the N.-W.F.P. Local) Council (Election of Chairman and Vice Chairman) Rules, 1979 read with section 17 of the N.-W.F.P., Local Government Ordinance, 1979. He has not been appointed by the Provincial Government. Under section 8 (3) of the aforesaid Ordinance, a Local Council is a body corporate which is evident from section 31 which prescribes terms of his office and under section 38 an elected Chairman is to receive such remuneration as may be prescribed. Remuneration is given to a Chairman under section 126 (c) under the heading of charge expenditure. The Chairman is elected by the Members and is paid remuneration from the funds of the District Council having its own resources as well. Thus there was no question of respondent No.l being in service of local council or service of Pakistan. In P L D 1987 Karachi 472, it was held that Mayor of a Municipal Corporation who is being paid from the funds of the Municipal Corporation is not holding office of profit and consequently is not disqualified to contest the election. Taking this view of the matter, it is clear that respondent No.l was not disqualified on the nomination day from taking part in the election. This contention is, therefore, repelled and the issue is answered in the negative. Issue No.2:- In support of this issue the learned counsel for the petitioner referred to the allegations made in para 4 (iv) sub-paras I to VII of the election petition wherein details of various donations and promises made by respondent No.l during the election campaign are mentioned. It is contended that the respondent in order to procure votes and influence the voters in his favour had addressed various meetings at different places and made promises for the construction of schools, water supply schemes and roads and also donated various amounts to school children and for the construction of mosque. The contention is that respondent No.1 never made any donation or promise of donation for the construction of water supply schemes and streets etc. in various villages during his tenure as Chairman before the election but such promises were made during the election campaign under the pretext of colourable charity with the sole object to influence the voters in his favour which amounted to general corruption so wide spread that it affected the election result of the whole Constituency. Thus respondent No .l was guilty of illegal and corrupt practices on extensive scale. In reply it is contented on behalf of respondent No. l that there was no statutory prohibition for a candidate to address the electors and make promises to the effect that in case of his success, he will make efforts to promote development works. Regarding the construction of extra rooms for Middle/Primary School, Hilli, ii is contended that a Delegation of 7 members headed by Mirza Khan, Member Union Council, raised the question on 4-12-1984 in a meeting with the Chairman (respondent No.l) in his office and on the same day a Project Committee was constituted and it was decided to make arrangement to procure funds for the Project from the savings of the District Council. On 29-1-1985 during the election campaign of respondent No.l the question was raised by the people of the locality who were told that the proposed, work on the Project was under completion and that the approved expenditure had been reduced by the Development Committee of the District Council. With the commencement of the work, the first instalment of Rs.42,500 was released in accordance with the Rules applicable to the case. This was a scheme already approved on 4-12-1984. It is next contended that arrangements for various water supply schemes etc. were made, on demand of the people, in the next budgetary allocation of the District Council and it was made clear by respondent No.l that this was not a part of the election campaign but these were the schemes which people of the area were entitled to demand from the District Council. It is categorically asserted that no fund was released towards these schemes as they related to the year 1985. From the evidence of Shabir Hussain (P.W.7) who is the Accounts Officer, District Council, Abbottabad it appears that during the election tour of the Chairman (respondent No.l) no fresh scheme was announced according to his record. In case any fresh scheme had been announced during the election tour, then it must have been implemented and he would have been aware of the same. He produced the relevant record before the Tribunal and stated the schemes referred to by the learned counsel for the petitioner were ongoing Schemes. The allegations of illegal and corrupt practices also do not stand proved by the evidence of D the witnesses produced by the petitioner. Abdul Aziz (P.W.4) was the Polling Agent of the petitioner at Polling Station, Banda Munir Khan while Sher Muhammad (P.W.3) belonged to the tribe of the petitioner who was brought for executing the affidavit by one Bhola Shah who was also the Polling Agent of the petitioner. Raja Maqsood (P.W.2) is a Member of Islahi Committee headed by the petitioner. He appears to be a set up witness, for, he himself admits having assisted the police for the last 32 years and has been appearing as a witness in various criminal cases. He also remained an accused in several criminal cases. The petitioner thus failed to substantiate his allegations by producing independent witnesses and the evidence relied upon being parisan does not inspire confidence. The allegations of illegal and corrupt practices are to be proved by affirmative evidence on the analogy of a criminal trial to the exclusion of all reasonable hypothesis consistent with non-commission of a corrupt practice and the benefit of doubt is to go to the person against whom the allegations of corrupt or illegal practices are made. In Election Tribunal West E Pakistan v. Muhammad Saeed (P L D 1957 SC (Pak) 91) it was held that the burden of proof of corrupt practices is on the petitioner; that the evidence in proof of such practices must be restricted to the charges or instances mentioned in the petition and the ingredients of a corrupt practice so charged must be affirmatively proved by evidence, -direct or circumstantial and that where the evidence is wholly circumstantial, the finding of corrupt practice must exclude all reasonable hypotheses which are consistent with corrupt practice having not been committed. The promises allegedly made by respondent No. l during election campaign appear to have been made in furtherance of his official duty as a Chairman of the District Council with bona fide intention of redressing the grievances of the people of his Constituency. The evidence of the petitioner does not clearly establish that the aforesaid promises were made by respondent No.l to induce the electors to vote or refrain from voting at the ensuing election. It cannot be ignored that respondent No.l was duty bound to attend to and redress the grievances of the people within the area of the District Council of which he was the Chairman by sanctioning various development schemes and incurring the expenditure thereon. This exercise fell within the sphere of his duties as a Chairman of the District Council. Particularly, when it is proved that the expenditurel was incurred on the ongoing schemes and no fund was released after, the ban was imposed by the Government in this regard. The alleged! tape-recorded speech of respondent No.l was placed on the file with no effort to play it before the Tribunal nor any such request was made during the arguments. This evidence is, therefore, not taken into consideration. To support his other objection that no person who is or has at any time been in the employment of any-candidate shall be appointed as Presiding Officer or Assistant Presiding Officer for any Polling Station reliance is placed by the learned counsel on F Section 9 of the Representation of the People Act, 1976 which places embargo on the appointment of any person as Presiding Officer or Assistant Presiding Officer, if he is or at any time has been in the employment of any candidate. It is obvious that respondent No.1 is the elected Chairman of the District Council, the staff whereof is appointed by the local self-Government and not by the Chairman. The staff being the employees of the local self Government could not be said to be in the employment of the Chairman. There is no evidence that the staff of the District Council was ever employed by the Chairman or remained in his employment. The members of the staff being Government employees could not be said to be in the employment of the Chairman of the District Council. The staff of Middle or Primary School is appointed by the Education Department and they are subject' to the Service Rules of their Department and thus they cannot be said to be in the employment of respondent No.l. There is also no evidence worth the name that the polling staff working with the' District Council had ever used their official influence in order to induce or compel any person to vote or refrain from voting or had influenced in any manner the voting of any person or did any act calculated to influence the result of the election. It is in evidence that at Polling Station No.37 where almost the entire polling staff consisted of the officials of the District Council, the petitioner polled the highest number of votes. Fida Hussain Naqvi, Returning Officer, stated that the petitioner and other rival candidates obtained highest number of votes at certain polling stations where the polling staff included a large number of Primary School Teachers. It is also in evidence that the employees of different Government Departments were appointed to act as polling staff at the time of Referendum held in December, 1984 with the direction that the same staff shall also make their services available in the general elections. There is no evidence that the aforesaid staff was appointed at the instance of respondent No.l, or they had done anything during the election showing favour to respondent No.l. This contention also, therefore, stands repelled Regarding the prayer of the petitioner for recounting of votes of all the Polling Stations, it may be mentioned that during the course of the trial on the request of the learned counsel for the petitioner, the Returning Officer was directed to check the ballot papers of Polling Stations Nos.60, 66, 67, 89 and 122 of the Constituency which he did and provided the necessary details regarding the ballot papers of the Polling Stations. At that time no prayer was made for rechecking he ballot papers of all the Polling Stations. From the evidence of the Returning Officer it also appears that at the time of consolidation of the result, on the request of the petitioner, he started recount of votes. After counting the votes of 4/5 election bags of some of the Polling Stations, he told the petitioner that it would not be reasonable to open all the election bags of all the Polling Stations to which the petitioner agreed. He further stated that since, in his view the irregularities regarding 4/5 Polling Stations were not of serious nature, he, therefore, deemed it proper not to open the election bags of the remaining Polling Stations which were 128 in number. It is contended that as regards polling station No. 60, the Returning Officer found 493 ballot papers cast in favour of respondent No.l instead of 693 as mentioned in the result sheet and in the final result of the election 693 ballot papers were taken into consideration on the basis of the report of Presiding Officer. Thus, 200 votes were wrongfully included in the count in favour of respondent No.l. Besides, from the evidence of the Returning Officer it is also proved that 142 ballot papers bearing different marks were also included in the count in favour of respondent No.l which ought to have been excluded. It may be mentioned that the aforesaid 342 votes even if excluded from the total number of votes obtained by respondent No.l, it would have no bearing an the result of the election, for, after deduction of these votes respondent No.l would still retain his lead against the petitioner by 3400 votes. There is no evidence that the aforesaid invalid votes, contained in various envelopes duly exhibited in the case, were east due to any corrupt or illegal practice committed by respondent No.l himself or his election agent or by any other person with the connivance of respondent No.l or his election agent. In the absence of any positive evidence to this effect it is not possible to burden respondent No.l with any liability. Reference with advantage may be made to Abdus Sattar Rana v. S.M. Zubairi and another (P L D 1968 SC 331) wherein it was observed that:- "The responsibility for the excess votes being found in the ballot boxes, in the absence of any evidence to that effect, cannot be laid at the door of the appellant. It is an open possibility that the respondent or his agent may have manoeuvred to get these excess votes introduced into the ballot boxes just to spoil the election. The other possibility is that these 78 excess votes may have been actually issued but the officials concerned may have omitted to tick mark the corresponding entries in the voters' lists. These extra votes should not be counted, but if they are wholly deducted from the votes obtained by the appellant, he would still be leading the respondent by 13 votes. He himself not being the guilty party, there is no question of his being disqualified on the ground of commission of a corrupt practice by him. If some person or persons unknown, are responsible for these excess votes being introduced into the ballot-boxes, that should not prejudice the appellant's case who had a clear majority over the respondent, after exclusion of the excess votes, from the count. If the election is set aside without a clear finding based on evidence that the result of the election had been materially affected, it would amount to disenfranchising the genuine voters who had apparently favoured the appellant as compared with the respondent". Besides, the allegations that the election bag of Polling Station No.33 was personally brought by the Returning Officer from the house of the Presiding Officer in village Langra, in the absence of any evidence, would not ipso facto prove that the election bag was I tampered with. No such allegation is made by the petitioner or his witnesses nor any such objection was taken at the time of consolidation of result. The Returning Officer has also not been examined with clarity in this behalf. From his evidence it appears that he had excluded all possibility of tampering with the ballot papers contained in the aforesaid bag. He stated that none of the candidates or their agents raised any objection that the said polling bag had been tampered with. The other objection that a large number of ballot papers were found in unfolded form in the ballot boxes of Polling Stations Nos. 27, 60,66,67,80 and 89 is equally without any substance. The Returning Officer stated that "it is correct that in case any envelope was found unsealed or with broken seal, I must have taken note of the same at the time of consolidation of the result. According to my record I have given no note to this effect, therefore, it can be presumed that the seals on the envelopes were intact. I have not seen any unfolded ballot papers". He further stated that since long time had elapsed, he did not remember if the aforesaid ballot papers were lying in flat and unfolded condition. However, he could recollect that the folding marks (crease) on some of the ballot papers were very dim i.e. the folding marks were not clear. It is obvious that the aforesaid ballot papers were counted in presence of the election agents of the parties but no objection to their validity was raised before the Presiding Officer. Further, it is well settled that the prayer for scrutiny and re-count of votes cannot be granted when there are general allegations that the counting was incorrect or invalid votes were taken into account without any supporting evidence. The relief of re-counting ` cannot be granted merely on the possibility of there being an error. The prayer for recount of votes is, therefore, declined. For the aforesaid reasons, the petitioner had failed to discharge the burden by convincing and cogent evidence that respondent No.l was guilty of illegal and corrupt practices as mentioned in the election petition., Therefore, this issue is also answered in the negative. Issue No. 3.-- In the result, the election petition fails which is hereby dismissed. There should be no order as to costs. A . A . /29/ E Election petition dismissed