P L D 1966 Dacca 604 (PLP)

MURSHED, C. J.‑ During the recent elections petitioner was elected to an electoral college constituted under the present Con stitution. Petitioner polled the highest number of votes and his opponent in the said election, namely, respondent No. 4, obtained two votes less than the petitioner, who was consequently declared to have been elected in the said contest. Thereafter, respondent No. 4 filed an election petition in which a number of allegations were made against petitioner. One of the allegations was that some votes were recorded by false personation. The Additional Deputy Commissioner of Bogra was con stituted into an Election Tribunal to hear such petition. He examined petitioner, but did not think it necessary to examine any other witness on his behalf. He also examined some witnesses produced by respondent No. 4 and found that one of the persons who had cast their votes in the aforesaid election was dead and that another person had been living in India during the election. He, therefore, came to a finding that, at least, two votes had been cast, in the name of absentees, by false personation. Having regard to the fact that the difference of votes between petitioner and his opponent (who filed the election petition) was, only two, he further recorded the following finding: "I am satisfied that there was false personification in respect of deceased voter Rahimuddin and absentee Tarapada and that it materially affected the election." On a specific finding to the effect that the false personation as mentioned above had materially affected the result of the election, he set aside the same. Hence this petition under Article 98 of the Constitution. The requirements of law with regard to such petitions are embodied in section 60 of the Electoral College Act, 1964 (Act IV of 1964) and Rule 36 (1‑A) of the Electoral College Rules framed under section 86 of the said Act. Section 60 of the Act reads thus "60. (1)

(2) Subject to any rules made in this behalf, the Tribunal shall, after giving the contesting candidates an opportunity of being heard and taking such evidence as may be produced before it, make such orders as it may think fit. ‑ (3)

." Rule 36 (1‑A) runs thus: "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." It is clear from the provisions of Rule 36‑(1‑A) that a duty has been cast upon the Tribunal to come to a finding whether the result of the election has been materially affected before declaring the election to be void. A finding to the effect that the result of the election has been materially affected is a condition precedent to the declaration of the election as void. Such a finding is the foundation of the jurisdiction to a declaration as stated above and, if the Tribunal finds that what has happened has "materially affected" the result of the election it is incumbent on it to declare it (the election) to be void. This is mandatory. I It has been argued, on behalf of the petitioner, that, in view of the fact that the Election Tribunal has merely found that two votes were recorded by false personation, it may well be that those two votes might have been cast against the successful candidate and in favour of the person who has challenged the election. In such an eventuality, it has been submitted, that the result of the election could not be said to have been materially affected. It is, therefore, urged that there was no material before the Election Tribunal to come to a finding that the result of the impugned election has been materially affected. We may observe that such a process of reasoning ignores the basic fact that the result of an election can be pertinently said to be materially affected even when the enquiry made by the Tribunal leads it to the conclusion that the result of the election was inconclusive. In support of the aforesaid argument, learned Advocate for petitioner referred to a decision of this Court, dated the 9th of June 1965, in the case of Abdul Aziz Ka6iraj v. S. A. Choudhury (Petition No. 89 of 1965 under Article 98 of the Constitution). In the said case there was a similar difference of two votes between the successful candidate and the person who polled the second largest number of votes. It was found that there had been false personation in respect of two votes only. There was, however, no specific finding to the effect that the result of the election was materially affected. Without such a finding, the Tribunal declared the election to be void on mere equitable consideration. This Court declared that the order passed by the Election Tribunal, setting aside the election, was without any lawful authority because there was no finding that the result thereof was materially affected. It was strenuously urged that the aforesaid case also called for a similar decision as in the present case. We have read the judgment pronounced by this Court in the said Petition No. 89 of 1965. The ratio decidendi in the aforesaid case, as it appears from the judgment pronounced by Sayem, J., is as follows: "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 considerations, namely, of equity and fairness that are no considerations that can enter into the trial of an election petition under the Electorate (sic) College Act, as is evident from the rule cited above." In the above‑mentioned case the impugned order passed by the relevant Election Tribunal is to the following effect: "In the circumstances of the case I find that it was possible that due to personation result of the election has been affected or at least might have been affected. In all fairness, therefore, it is meet and proper that the election be declared void . . . ." It would be noticed that, in the case referred to above, the Tribunal had declared the election to be void on equitable ground although it did not specifically find that the result of the election was materially affected by two illegal votes. This Court set at naught the order passed by the Tribunal on the ground that the foundation of the jurisdiction of the Tribunal to declare an election to be void was a finding that the result of the election had been materially affected. Sayem, J., further observed that it was not permissible to declare an‑election to be void on pure equitable grounds which would be extraneous to the requirement of law. In the case before us the Election Tribunal has 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, therefore, 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 finding the election was declared to be void. In our opinion, 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. There is a fundamental difference between the finding which was recorded by the Tribunal in the case cited before us (Petition No. 89 of 1965 under Article 98 of the Constitution) and the finding recorded by the Tribunal in the present case. In the case, under our consideration, there is a finding that the result of the election was materially affected, whereas in the other case (cited before us) there is no such finding. The absence of such a finding is the ratio of the decision in the aforesaid case which need not be discussed any further in respect of other observations made by Sayem, J. Having noticed the point of distinction, we would observe that the said decision must be confined to the fact of that case, namely, the absence of a finding as required by the provisions of Rule 36 (I‑A). We may, however, add, with great respects to the Bench which decided that case, that, in the background of that case, the finding that two votes had been cast by false personation must lead to the irresistible inference that the result of the election was, in fact, materially affected, although no such finding was recorded by the said Tribunal. We may now take leave of that case. We are clear in our minds that the Tribunal has legitimately found that, in the context of a difference of two votes between the rival candidates, the two votes, which were recorded by false personation, had materially affected the result of the election. The requirement of Rule 36 (1‑A) is a finding that the result of the election has been "materially affected" and not a finding that the successful candidate has been "adversely affected" or "actually affected". The phraseology of the Rule must be borne in mind. In this behalf it is important to remember the distinction noted above. If the two illegal votes had been cast in favour of the successful candidate who had polled only two votes more than the unsuccessful rival, the result of the election, by a process of elimination, must be a "tie" which would call for the machinery provided for the resolution of such a tie. The issue between the contestants would, in such a case, become unpredictable. If, on the other hand, the two impugned votes had been cast in favour of the candidate who had polled two votes less, then the result of the election, by a similar method of subtraction, could not have been materially affected because the successful candidate, in such an eventuality, would have won by a bigger margin. But, in a system of secret ballot, it is impossible to find who voted for whom. The situation is, therefore, incapable of being resolved in a rough and ready manner. The case would have been different if the successful candidate had won by a bigger margin for he would still have had a majority even after a reduction of two votes from the total votes polled by him. When a Tribunal is driven to the position where it cannot be decided one way or the other as to what could have been the possible result of the election it must be held that the impugned votes had materially affected the election inasmuch as a cul‑de‑sac has been reached with regard to the result. In such a sense, it would also be correct to say that the successful candidate must be "adversely affected" by a finding that two illegal votes have been cast by false personation. When the Tribunal is confronted with a situation which makes it impossible to decide the result of the election, there is no manner of doubt that such a situation materially affects the election. The indecisive nature of the problem has a material and vital effect upon the result of the election in the light of the finding arrived at by the Tribunal. The petitioner must fail on the only point which was so strenuously pressed before us. There is also no substance in the other points taken in this petition which is, accordingly, rejected. ABDULLA, J.‑I agree. S. Q. Petition rejected.