P L D 1961 (W (PLP)

S. A. MAHMOOD, J.‑Two members had to be elected from Ward No. 9, Rajar, to the Union Council Serai Alamgir, 'lahsil Kharian, District Gujrat, Muhammad Akbar petitioner, Muhammad Akram respondent No. 1 and his brother Muhammad Ashraf contested the election. Muhammad Ashraf obtained 317 votes out of which 41 were declared invalid. Muhammad Akbar petitioner obtained 226 votes of which three were declared invalid and Muhammad Akram obtained 206 votes, of which one was declared invalid. Thus Muhammad Ashraf, who obtained 270 valid votes, and Muhammad Akbar petitioner, who obtained 223 valid votes, were declared elected to the two seats. Muhammad Akram, who was defeated, filed an election petition against the election of Muhammad Akbar petitioner and made the following allegations :‑ (1) That twelve persons, .namely, Muhammad Zaman, Muhammad Shabbir, Muhammad Rafiq, Muhammad Yusuf, Muhammad Hanif, Akhtar Ali, Mst. Aisha Khatun, Mst. Bilqis Begum, Mst. Rahmat Bi, Mst. Raqia Begum, Vst.' Sairan Bi and Mst. Sardar Begurn had neither obtained ballot‑papers nor had cast their votes, but some other persons had obtained their ballot‑papers and cast their votes for Muhammad Akbar at his instance and with his connivance or that of his authorised agents. (para. 3 of the petition.) (2) That Muhammad Sadiq, Nur Muhammad, Muhammad Sharif, Mst. Razia Begum, Mst. Iqbal Begum, Mst. Hamida ' and Mst. Fateh Begum having cast their votes in other wards had a'‑ voted for Muhammad Akbar illegally at this instance and wit It his connivance. They had thus cast double votes. (Para. 3 of the petition). (3) That Truck No. A. K. C. 381 and tongas driven by Muhammad Latif and Nazir, a refugee, were employed by Muhammad Akbar for the purposes of conveying his supporters to the polling booths on the 3rd January 1960, and male voters Nos. 122, 321, 329, 389, 442, and 506, and female voters Nos. 1, 38, 172, 211, 332, 152, 201 and 245/246 were seen using. these vehicles (Paragraph 5 of the petition). (4) That voters Nos. 177, 180 and 55.1 had been given drinks. and bribe and provided with conveyance, and voters Nos., 29, and 244 were seen using Jeep No. P J L 4058, which was used by Muhammad Akbar and his agents for the purposes of con veying electors to and from the polling booths. (Paragraph 4 of the petition).. (5) That Ilyas, voter No. 356, was promised a girl in marriage in case he voted for Muhammad Akbar and was also threatened that if he did not vote for him he would be boy‑cotted by his hiradari. Thus his vote was obtained by corrupt practice, bribery and undue influence (Paragraph 6 of the petition). (6) That Ghulam Qadir, voter No. 242 and Mst. Malook Zadi, voter No. 394, were both induced to vote for Muhammad Akbar on the threat that they would be thrown out of the house if they did not vote for Muhammad Akbar. (7) That Rahmat Ullah, President of the Sheikh Biradari used his influence tQ prevent free exercise of franchise by Sheikh electors and he thereby induced the Sheikh voters to vote for Muhammad Akbar (Paragraph 8 of the petition). It was, thus, alleged that material irregularities, corrupt practices, personation, use of vehicles, threat of ex‑communication from. the biradari; bribing, feasting and drinking by respondeni No. 1 or his authorised agents. with the connivance of Muhammad Akbar had been committed, which had materially, affecied the result of the election. It was, therefore. prayed that the election of Muhammad Akbar from Ward No. 9 be declared void, and that Muhammad Akram be declared duly elected instead from the said ward. Muhammad Akbar denied these allegations in toto. The Election Tribunal thereupon framed the following issues (1) Whether the volers mentioned in para. 3 of the petition had cast bogus votes in favour of Muhammad Akbar ? (2) Whether Muh'hmmad Akbar had arranged for the carriage and coveyance of his voters to and from the polling booths ? (3) Whether Muhammad Akbar had arranged for a truck and tongas for the carriage of his voters to and from the polling ‑booths ? (4) Whether Muhammad Akbar had committed the material irregularities mentioned in paragraph 6 of the petition, and what is its effect ? (5) Whether Muhammad Akbar had used the influence of his 'i!‑ aari and exercised threats and pressure on the voters and obtained votes of voters mentioned in para. 7 of the petition. (6) Whether at the instance of Muhammad Akbar, his Sheikh bi'radari had exercised pressure and influence on the voters mentioned in paragraph 7 of the petition and thereby obtained their votes? ‑ (7) Whether Mu hammad Akbar had been guilty of corrupt and illegal practices, and what is its effect? (8) Relief. 2. The parties led evidence before the Election Tribunal, who came to the conclusion that Muhammad Akram had succeeded in discharging the onus of issues Nos. 1, 2 and 3. He also held that a perusal of the ballot‑papers revealed that Muhammad Akbar had secured votes of bogus persons by making those voters to vote thrice on each vote. He, therefore, held that Muhammad Akram had succeeded in bringing home to Muhammad Akbar the commission of corrupt practices and illegal acts and, therefore, declared the election of Muhammad Akbar void and declared Muhammad Akram as duly elected from Ward No. 9. Against this order Muhammad Akbar has come up in writ jurisdiction to this Court and prays that a writ of certiorari or other writ be issued quashing the_ order of the Election Tribunal, dated the 16th of May 1960, declaring his election void and Muhammad Akram elected instead, and that a writ of prohibition be issued restraining the Deputy Commissioner, who was ‑the returning officer, from notifying him in the Gazette as elected. The petition is resisted on behalf of Muhammad Akram, respondent No. 1. 3. In arguments before us, it has been urged, that the con trolling authority was wrong in holding that issues os. 1, 2 and 3 were ‑ proved by Muhammad Akram and that the controlling authority could not, in any case, have declared Muhammad Akram as elected. We will deal with these matters., 4 The election of Muhammad Akram petitioner has been declared void on three grounds: ‑ (i) That reliable evidence having been led that Mst. Rahmat Bi, Mst. Sardar Bibi, 1lsr. Bilqis Begum, Mst. Nur‑ul‑Qamar, Mst. Sairan, Muhammad Raflq. Muhammad Yusuf, Muhammad Yaqub, Mst. Ragia Begum, Akbar Ali Shah and Ust. Fazal Begum were away, to different places. and had not cast their votes, it was proved that the respondent had secured bogus votes in his favour in their name and thus issue No. 1 had been proved. (ii) That Muhammad Latif, Na,zir and Ghulam Nabi tonga dr vers and Allah Ditta truck‑driver were engaged by Muhammad Akbar for carrying his voters to and from the polling booths at the election. Muhammad Aslam, Muhammad Bashir, Muhammad Husain and Manga stated before the Tribunal‑that they had g me in tongas and bus provided by Muhammad Akbar and had cast #heir votes in his favour. It was, therefore, held that Muham.nad Akram had succeeded in discharging the onus ron issues Nos. 2 and 3. . . (iii) That votes Nos. 38, 172, 242, 245, 246 and 424 were used to cast three votes on each vote and thereby corrupt practices and illegal acts had been indulged in by the respondents. 5. Learned counsel for the` petitioner argues that there was no material at all before the Election Tribunal that persons mentioned in item (i) had cast their votes iri favour of Muhammad Akbar petitioner and thus the Election Tribunal could not have coma to the conclusion that issue No. 1 was proved. We have examined the record, which has been summoned, and we find that in evidence the witnesses had not stated that they had cast their vote in favour of Muhammad Akbar. The Election '1 ribunal has not mentioned either in the record of his proceedings or .in his order that he had examined the envelopes containing the ballot‑papers cast in favour of Muhammad Akbar and found that votes of absent persons had been cast in favour of Muhammad Akbar petitioner. In these circumstances, the controlling authority could not have come to the conclusion that these bogus votes had been cast in favour of the petitioner. Learned Counsel for the respondent argues that the controlling authority rightly came to this conclusion, as it was not‑in dispute that these votes had been cast in favour of the petitioner. This‑ contention is not well founded, as Muhammad Akbar had clearly denied the allegation and the matter was specifically put in issue. The onus of issue No. 1 was on Muhammad Akram and no evidence was led that bogus votes were cast, in favour of Muhammad Akbar petitioner The same cannot, however, be said about the finding on issues Nos. 2 and 3. There is evidence on the record, on which the controlling authority could come to the‑conclusion that arrange ments for conveyance of voters were made by Muhammad Akbar and tongas and a truck were arranged by him for that purpose. Since this fact was proved to the satisfaction of the Election Tribunal, we cannot interfere with this finding of fact. The Election Tribunal could have ‑held under rule 59 of the West Pakistan Basic Democracies Election Rules, 1959 that the election of Muhammad Akbar for this reason was void. We, therefore, cannot interfere with that"order. . 6. It is next contended that the Election Tribunal could not have declared Muhammad Akram xs elected, because it has not been proved on the record and has not been found as a fact that more than 18 votes had to.be deducted from the 223 valid votes which he obtained. In this connection our attention is drawn to rule 60 of the West Pakistan Basic Democracies Election Rules, 1959, which provides as follows‑‑ "60. Striking off or. addition of votes :‑If in an election petition a seat is claimed for any candidate, the votes may be struck off or added to the accounts of the persons concerned in the manner hereinafter provided ‑ (a) if it is proved that the candidate or any authorised agent on, his behalf has been guilty of bribery, or undue influence in respect of any person who voted at the election, there shall be struck off one vote for every person who voted at the election and is proved to have been so bribed or unduly influenced; 7'V 1 (b) if any person guilty of a corrupt practice, or of illegal payment, employment or hiring voted at the . election his vote shall be void ; (c) if any person disqualified from voting voted at the election, his vote shall be void ; (d)‑if any person was issued a tendered ballot‑paper or a M challenged ballot‑paper, and he was entitled to a ballot‑paper, his vote shall he added to the votes cast in favour of the candidate in whose favour such person intended to vote." It is argued that a defeated candidate can only be declared elected if it is found by addition of votes to the account of an unsuccessful candidate or. the striking off of the votes in favour of the successful candidate that the unsuccessful candidate had in the result obtained larger number of votes than the successful candidate. It is con A tended that sub‑rule (c) of rule 61 of the Rules has to be read along with rule 60, and reading the two rules together, it is obvious, that a candidate other than the elected candidate can only be declared elected if by the process of addition or striking of of vows, theI other candidate obtains a larger number of votes. We agree with this contention. The Election Tribunal has not acted in accord ance with the rules. He has not decided how many votes have to be struck of from the votes cast in favour of Muhammad Akbas petitioner. He has not held that more than eighteen bogus votes . were cast in his favour or that by the process of striking off, as in‑ rule 60, his votes became less than the votes of Muhammad Akcam. We, therefore; set aside the order of the Election Tribunal, declaring Muhammad Akram as successful, and direct that the matter be decided afresh in the light of our interpretation of rules 60 and 61. 1f the Election Tribunal has to open the envelopes containing the ballot‑papers cast in favour of Muhammad Akbar ix order to decide how many votes have to be struck off from the account of Mulrammad Akbar, it should be done in his presence or that of his agent. 7. As the success of this writ petition is only partial, we leave the parties to bear their own costs of this petition. Petition partly accepted.