P L D 1965 (W (PLP)

BASHIRUDDIN AHMED, J.-This is a writ petition under Article 98 of the Constitution of the Republic of Pakistan. The petitioner is Muqadar who was declared elected from Electoral Unit No. 679, Tehsil Swabi, District Mardan; defeating his rival Mutabar respondent No. 1 by a margin of one vote. The petitioner secured 155 votes as against 154 secured by respondent No. 1.

2. The Election Tribunal on the application of respondent No. 1 came to the conclusion that there had been double voting inasmuch as five persons who voted in this Electoral Unit on 1-11-1964, also cast their votes in Electoral Unit No. 695 on 9-11-1964. The Election Tribunal, therefore, held that the polling of these votes materially affected the result of the election. Accordingly, the election petition was accepted and election of the petitioner from Electoral Unit No. 679 was declared as void and fresh election was ordered to be held in this Electoral Unit.

3. The contention of the petitioner, in the main, is that five persons who cast double votes had voted for the petitioner earlier and if they subsequently voted in the election of Electoral Unit No. 695 on 9-11-1964, it could not reasonably be held that this illegality materially affected the election of the petitioner. In this connection reliance is placed on the wordings in subsection (6) of section 40 of the Electoral College Act, 1964, which is reproduced below for the sake of convenience:- "Section 40 (6).-No voter shall vote at an election:- (a) More than once at the same polling station; or (b) at more than one polling station.

4. It is contended that the word `an' occurring before `election' is significant and means that the double voting should be in the election of the same Unit. We do not share this view. We are clear in our mind that by the use of expression `an election', the Legislature had not the intention to confine it to the election of a particular Unit. In our opinion, it applies to the election as a whole; whether of the same Unit from which a candidate is returned or of a different Unit. In view of the wordings of subsection (6) read with subsection (7) of section 40, we are clear in our mind that the election was rightly held to be void, because subsection (7) says that: "All votes cast in contravention of subsection (6) shall be void." The use of the word `All' is significant. Had the intention of the Legislature been to confine the invalidity to the election held later in time, there was no necessity to use the word `All' in sub section (7) of section 40 of the Electoral College Act, 1964.

5. The electors whosoever polled their votes twice also contravened the provision of section 11 which clearly forbids a voter enrolled in more than one electoral unit from casting his vote in more than one electoral unit. Rule 36 (1-A) provides that: "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 t reason of the failure of any person to comply with, or the contravention of, any provision of the Act or these rules." The use of the words `any person' includes a voter.

6. It is the satisfaction of the Election Tribunal which is the sine qua non for setting aside the election.

7. The Tribunal after recording the evidence felt satisfied that the result of the election was materially affected by the casting of five double votes. We accordingly dismiss the writ petition, but make no order as to costs.

8. The order staying the election is vacated. K. B. A. Petition dismissed.