P L D 1983 Lahore 250 (PLP)

ABDUL SHAKURUL SALAM, J.-In an election held on 25-9-1979, the petitioner and respondent No. 1, amongst others, fought election for a seat in the local council of village Wah Radha Ram, Tehsil Chunian, District Kasur. One Anwar ran away with the ballot-box of the petitioner. Votes were counted. Respondent No. 1 got 146 votes. Ballot-box of the petitioner was recovered. It was produced before the Presiding Officer. The run away man was, in due course, convicted. On the order of the Returning Officer, the Presiding Officer opened the ballot-box of the petitioner and counted 156 votes on 30-9-1979. . The petitioner was declared elected. Respondent No. 1 filed an election petition. After recapitulating the fact, the Election Tribunal held "that the sanctity of the ballot had been violated. No reliance can be placed on the votes that came out of ballot-box of respondent Khushi Muhammad (the present petitioner)". He set aside the election and directed re-election. This is vide order dated 1-2-1981. It is challenged by the petitioner.

2. Learned counsel for the petitioner has contended, firstly; that the election petition was not in accordance with rules 4 and 9 of the Punjab Local Councils Elections Rules of 1979 because all the contesting candidates were not impleaded as a party. It is, secondly, contended that the ballot-box of the petitioner was removed by some miscreant and when it was produced, the votes were counted. Those being more in number than of the respondent No. 1, the petitioner was rightly elected. Learned counsel submitted. that the removal of the ballot-box had not materially affected 'the, result,) therefore, that fact by itself would not annul the result of the election. He placed reliance on Hakim Ali and others v. Deputy Commissioner/Election Tribunal (P L D 1982 S C 172).

3. In reply, the learned counsel for the contesting respondent No. 1 submitted that the first contention is not tenable for the reason that it was not raised before the Election Tribunal and the second submission has no force because the learned Election Tribunal has rightly held that the sanctity of the ballot had been violated. It is submitted that the petitioner could have tampered with or interfered with the votes cast in his ballot-box.

4. After hearing the learned counsel for the parties, we are clear the if a ballot-box of a candidate is removed at the time of counting but recovered subsequently without any blemish being attached to the candidate, he cannot B obviously be made to suffer for the default of others, especially, when there is no tampering or interference in the votes cast in the ballot-box. The learned Election Tribunal annulled the electiun on the ground that sanctity of the ballot had been violated'. Lord Denning, M R in Regan and others v. Simpson and another ((1974) 3 All. E R 722) in a compendious judgment about election disputes quoted with approval Lord Stephenson L J. as saying that "the law as to elections, to my understanding of the section, recognized as embodied in the Act and the rules, is that an election will stand if there have been breaches of the law but they are not substantial or they have not affected the result (underlining* is ours for emphasis): So was law laid down by the learned Supreme Court of Pakistan in Hakim Ali's case quoted by the learned counsel for the petitioner. Since the removal and recovery of the ballot-box is in no way said to have affected the result, election could not be set aside: Mere removal. and recovery would not amount to violation of secrecy of the ballot without any evidence to that effect. Assumption cannot be made.

5. For the foregoing reasons, the impugned order of the learned Election Tribunal is declared to be without lawful authority and of no legal effect. Constitutional petition is accepted but in the circumstances of the case, the parties shall bear their own costs. M. Y. M.????????? Petition allowed.