P L D 1967 Lahore 722 (PLP)

ATAULLAH SAJJAD, J.‑‑The dispute in this writ petition relates to the election of the Electoral College, from Electoral Unit No. 142 (the number of the Electoral Unit as given in the petition is 139 because the Election Tribunal had also given the same number in its order but it has been pointed out in the written statement that the correct number of the Electoral Unit is No. 142) District Lyallpur, in which the petitioner Ameer Abdullah obtained 160 votes and respondent No. 1 Muhammad Yaqub obtained 139 votes with the result that the petitioner was declared successful. Respondent No. 1 filed an election petition under section 58 of the Electoral College Act, 1964, against the petitioner which was heard and decided by Kb, Mahmood Sadiq, Election Tribunal, Sargodha, respondent No.

2. The Election Tribunal found that the election of the petitioner was void and declared respondent No. 1 as elected.

2. The allegations in the election petition were that Inayat Ullah, the son of the petitioner, Muhammad Hussain, son of Raj Mir, a brother of the petitioner, and Khizar Hayat, son of Muhammad Ramzan, a close relative of the petitioner, had been found in possession of 15 unused ballot papers by the Presiding Officer. While the polling was going on 11 ballot papers were recovered from Khizar Hayat and two each from Muhammad Hussain and Inayat Ullah. These three persons were arrested by the police at the spot and a criminal case was registered against them at the instance of the Presiding Officer and on the information of the respondent vide F.1.R. No.105 of 1964. There were also allegations of coercing and intimidating some voters into casting their votes in favour of the petitioner but we are not concerned with them because the Election Tribunal held them unproved.

3. In the election petition, apart from the main attack on the validity of the election which was on the ground that in all 325 ballot papers had been issued by the Presiding Officer but only 299 had been cast, the case made out before the Election Tribunal was that the relatives of the petitioner had obtained the missing 26 ballot papers from the persons to whom they had been issued so that they could be cast in favour of the petitioner.

4. In the present petition it was controverted that Khizar Hayat was related to the petitioner or was his worker. It was, therefore, asserted that there was no complicity between the petitioner and Khizar Hayat and that the whole drama had been cooked up with the connivance of respondent No.

1. It was further stated that the case of the petitioner was not covered by section 62(5) of the Electoral College Act, because the petitioner himself had not removed any ballot papers and that even if the allegations were correct the Election Tribunal was not justified in declaring the election void as the dis appearance of 26 ballot papers which had admittedly not been cast had not materially affected the result of the election and the petitioner was, at the final count, still in a majority of 21 votes as compared with the respondent.

5. The Division Bench which admitted this case for hearing formulated the following two points:‑ "(i) that in this case there was a difference of 26 votes in favour of the petitioner, yet his election was set aside though validity of only fifteen votes was in question ; and (ii) that the Election Tribunal held the election void as a whole because of the alleged malpractices and yet proceeded to declare respondent No. 1 as elected." We may say with great respect that the first question as formulated does not reflect the precise contention raised in the case. The petitioner had secured a majority of 21 votes and not 26 and none of these votes was proved to have been secured by some illegal practice. The real question was that out of the ballot papers issued by the Presiding Officer 26 were found to be short and were never cast. It was out of these missing 26 ballot papers that fifteen were recovered from the son, the brother and a relative of the petitioner.

6. In the written statement filed on behalf of respondent No. 1, a preliminary objection was raised that Article 171 of the Constitution was a bar to the entertainment of the present writ petition. On the facts it was also stated that the petitioner did not file any written statement to the Election Petition and he must, according to the ordinary rules governing the pleadings, be deemed to have admitted the correctness of allegations made against him. It was also submitted that the respondent had taken his witnesses before the Election Tribunal to prove his case but in view of the fact that the F.

1. R. was before the Tribunal it did not regard it necessary to record any further evidence.

7. We may deal in the first instance with the question of jurisdiction raised on the basis of Article 171 of the Constitution. The relevant portion of this Article reads as under : 171 (1) "Subject to clause (2) of this Article, provision may be made by law (a) for disputes arising in connection with the counting of votes at an election or referendum required to be held under this Constitution to be finally determined by the Commissioner or an Election Commission ; and (d) for other disputes arising in connection with such an election or referendum to be finally determined by a tribunal established for that purpose, and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election or referendum shall not be called in question except in accordance with such a law." We do not think that the bar of jurisdiction under Article 171(1) is so extensive that it includes within its ambit even those orders which are arbitrary, capricious, or contrary to the law governing the Election Tribunal. The Election Tribunal set up under Electoral College Act, 1964, derives its powers from section 58 of the same Act. It is a sub‑constitutional provision and cannot override the Constitutional provision contained in Article 98 of the Constitution. The High Court will have the power to interfere with a decision if it is fanciful or result of a bias or has been arrived at in violation of the rules of natural justice or the law applicable to the case. The Supreme Court has recently clarified the position in the case of Akbar Ali v. Razi‑ur‑Rahman Khawaja and others (P L D 1966 S C 492). In this case the Election Tribunal found that six votes cast in favour of Razi‑ur‑Rahman, respondent, had been cancelled but were cast by the voters in spite of the cancellation. The election petition filed by the respondent was dismissed on this short ground. The High Court when moved by Razi‑ur‑Rabman, respondent, in exercise of its jurisdiction under Article 98 of the Constitution, sent for these six ballot papers and found that they did not bear any other mark calculated to disfigure them or otherwise making it possible to identify the voters who had cast them. The ground on which these ballot papers had been excluded from count were, therefore, held to be entirely imaginary. The High Court having decided in favour of the respondent, Akbar Ali who had been declared elected by the Returning Officer as well as by the Election Tribunal filed an appeal in the Supreme Court. The Supreme Court agreed with the finding that the order of the Election Tribunal was not sustainable. It was observed at page 496 of the report :‑ "If an election authority or tribunal acts in this fashion whether under the National and Provincial Assemblies Act or the Electoral College Act the decision in Mian Jamal Shah's case would not be an authority for the view that their decisions are sacrosanct and may not be called in question in the High Court." It was further said at page 497 of the report "The decision in Mian Jamal Shah's case is accordingly not to the effect that an untenable interpretation of law by the Commission which may amount to excess of jurisdiction or failure to exercise jurisdiction is not susceptible of interference by the High Court. In this view the High Court was right in setting aside the order of the Presiding Officer excluding from count eleven votes of the respondent and the order of the Tribunal dismissing the election petition preferred from that order as without lawful authority." It was held by this Court in the case of Muhammad Akram v. Capt. C. A. Saeed, Deputy Commissioner and Election Tribunal, Gujrat and another (P L D 1965 Lab. 703), with reference to section 60 of the Electoral College Act of 1964 whereby the Election Tribunal has been empowered to "make such orders as it may think fit" that such an order should be in accordance with rule of reason and justice and in accordance with law. On page 713 it was observed as under :‑ "We have no doubt in our mind that the expression "as it may think fit" in section 60 means according to rule of reason and justice and in accordance with the law and not in accordance with humour, caprice or private opinion. The Legislature cannot be presumed to have invested him with arbitrary powers of a despot to make any order to satisfy his caprice." We, therefore, do not find any substance in the objection relating to the bar of jurisdiction.

8. The relevant provision of law which governs the present case is section 60(2) of the Electoral College Act, 1964, read with Rule 36(1‑A) of the Electoral College Rules. The power of the Election Tribunal to make such orders as they may think fit is subject to rules made in this behalf. Rule 36(1‑A) reads as under:‑‑ "The Tribunal shall declare the election of the returned candidate or the election as a whole, to be void, if it is satisfied that the, result of the election has been materially affected by reason of the failure of any person to comply with, or the contravention of any provision of the Act or these Rules." The condition specified in this 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. The guiding principle for the Election Tribunal to deal with the election matters is, therefore, contained in the above rule and the power given to the Election Tribunal is not unguided or uncontrolled but is restricted to the condition mentioned in rule 36(1‑A). The intention of the rule, is that an election is to be set aside only in case the result of the election is materially affected by reason of violation or con travention of the Act and the Rules. The Tribunal cannot proceed to punish a candidate by declaring his election as void if it merely finds that some irregularity or corrupt practice has been committed during the election by him or at his instance or with his knowledge. The mere commission of corrupt or illegal practice would not visit him with the consequence of his election having been declared void. 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.

9. In this case the 26 ballot papers that were missing had admittedly not been cast. There was no proof that any votes out of 160 secured by the petitioner had been obtained as al result of corrupt or illegal practice. The respondent in order to succeed had to show that but for the corrupt or illegal practice complained of he would have been elected by a majority oil votes. The mere commission of irregularity or corrupt practice without the further proof that irregularity had materially affected the result of the election would not entail the consequence of undoing an election.

10. There is no denying that the brother and the son of the petitioner along with Khizar Hayat who is alleged to be a relative of the petitioner were found in possession of 1.5 ballot papers in alt. We are not inclined to agree with the contention of the learned counsel for the petitioner that the Election Tribunal should not have based its findings only on the F. I. R. lodged by the Presiding Officer. The petitioner denies that Khizar Hayat was his relative but the Tribunal has found that this denial is not correct. We cannot go into this question of fact. It is however clear that the brother and the son of the petitioner were found in possession of ballot papers and the Tribunal drew a justifiable inference from this circumstance that the petitioner was associated with these persons who were caught with ballot papers in their possession at the spot by the Presiding Officer and had the knowledge of their activities. His case would squarely fall within clause (6) of section 62 of the Electoral College Act.

11. In view of what we have said above we find that the election could not be declared void under rule 36(1‑A) because no such large scale commission of corrupt practice has been proved which could be said to have affected the election materially. Since however it had been found by the Tribunal that the ballot papers had been removed with the connivance o the petitioner, we are not inclined to give any relief to a person whose hands are soiled with a corrupt practice and who now wants this Court to exercise its discretionary jurisdiction in his favour. To exercise this jurisdiction in his favour would amount to putting premium on a malpractice.

12. We cannot however maintain the order of the Election Tribunal declaring the respondent to have been duly elected because that would amount to disenfranchising the majority of the constituency. The right of the franchise is to be interfered with very sparingly for very good grounds and people cannot be deprived of their rights of vote because some persons among them had committed an illegal practice. The law of elections makes it incumbent for a candidate in order to be able to be returned to secure majority of the votes cast. The rule of majority being the fundamental and overriding consideration it cannot be nullified on account of a defect in the election over which the majority had no control. In Hobbs v. Morey ((1904) 1 K B 74)‑the returned candidate had been found to be suffering from a dis qualification from the time of his nomination. The petitioner claimed the seat on the ground that his being the only valid nomination he should be declared elected. The respondent admitted the disqualification. It was held that: "the disqualification not being apparent on the face of the nomination paper, the nomination of the respondent was valid, and that as the petitioner did not allege any notice to the electorate of the disqualification of the respondent, the votes given for him could not be treated as having been thrown away, and the petitioner was not entitled to claim the seat." Referring to the argument that the only valid nomination before the polls was that of the petitioner, Kennedy, J. observed :‑ "that is, in other words, to say that the petitioner, who obtained the minority of votes at the election, is to be declared elected, and the majority of votes‑those given for the respondent‑are to be altogether disregarded. I cannot assent to that view." It was further said on page 79 of the report :‑ "But where the disqualification does not appear on the nomination page: and the election proceeds, and the dis qualification is not known to the electors, then, unless on a scrutiny a sufficient number of the votes given for the candidate who has the majority can be struck off to give the petitioner a majority, I think he cannot successfully claim the seat, and the votes given to his opponent cannot be disregarded. That seems to me to be the true view and in accordance with both authority and principle."

13. Reference in this connection may also be made to Sanaullah v. Election Tribunal, Gujrat and others (P L D 1966 Lah. 97) and Abdur Rashid v. Khawaja Mahmood Sadiq, Additional Commis sioner (Revenue) and Election Tribunal, Sargodha Division (P L D 1966 Lah. 216). These cases relate to the disqualification of a candidate and may not be directly in point but we can safely deduce a principle from these pronouncements that great sanctity attaches to the right of franchise and it cannot be taken away unless the voter himself has done something to forfeit it and in spite of the fact that the disqualification attaching to a candidate was notorious bad wilfully and perversely cast his vote in favour of the disqualified candidate.

14. We may also refer here to the case of Mian Riaz Ahmad v. Election Tribunal, Sargodha Division and another (P L D 1966 Lab. 839). The facts of this case are strikingly similar to that of the case with which we are dealing and it is surprising that counsel on both sides were unable to cite this case in spite of the fact that we had given them time to look for a precise authority on this subject. In the case under reference Mian Riaz Ahmad had contested an election to the Electoral College with Sh. Sakhawat Ali, respondent. Mian Riaz Ahmad obtained 269 votes and Sh. Sakhawat Ali 188 votes. The unsuccessful candidate filed an election petition to have the election of Mian Riaz Ahmad set aside on various grounds. The Election Tribunal found that out of the ballot papers issued 40 ballot papers were short in the ballot boxes which showed that some voters having obtained these ballot papers had taken them away and had not placed them in the ballot boxes. Bashir Ahmad and Muzaffar Ahmad were found by the Presiding Officer trying to put two ballot papers each in the ballot box of Mian Riaz Ahmad, petitioner, and when they were prosecuted the petitioner had stood surety for them in Court. From this, the Tribunal concluded that a link between the two persons and the petitioner was established, and it was enough proof to implicate the petitioner, who did not produce any evidence in rebuttal of the allegation of the illegal purchase of ballot papers and he was thereby proved guilty of corrupt and illegal practices. The Tribunal, therefore, declared his election void and the respondent as elected. It was held :‑ "(i) that a Tribunal cannot resort to general principles of election law and declare an election of the returned candidate to be void, if a corrupt or illegal practice has been committed by the returned candidate or his agent or by any other person with the connivance of the candidate or his election agent, without a finding that the result has been materially affected. The mere commission of a corrupt or illegal practice will not be sufficient to avoid an election. The rule (36‑ I A) provides that the result be materially affected and these words must be given their natural meaning and effect ; (ii) that the relief could not be granted to the petitioner in exercise of the discretionary jurisdiction under Article 98 of the Constitution as according to the Election Tribunal he bad been found to have committed corrupt and illegal practices ; and (iii) that the order declaring the respondent to have been duly elected could not be maintained because he could only be declared elected if he had secured a majority of votes on the count of ballot papers. This having not been done the respondent could not have been declared elected by the Election Tribunal." We respectfully express our agreement to the above observations.

15. In view of what has been said above we refuse to interfere with the order of the Tribunal voiding the election of the present petitioner but we set aside its decision so far as it relates to declaring the respondent as having been elected at the polls. We, therefore, accept the writ petition to this extent and direct that a fresh election be held in this constituency. As the question raised in this petition involved an intricate point of law, we do not pass any orders as to costs. A. H. Order accordingly.