P L D 1960 (W (PLP)

MASUD AHMAD, J.‑

This order will dispose of Writ Petitions Nos. 256, 257 and 258 of 1960, which arises out of three separate orders passed by the Election Tribunal, Bahawalnagar, on the 7th March 1960, holding certain elections to be void and directing that fresh elections be held.

2. The facts, briefly, are that the petitioners in these three cases were elected as members from certain wards of the Union Councils of Chishtian and three separate petitions were filed, under rule 55 of the West Pakistan Basic Democracies Election Rules, 1959, by Mst. Allah Di, Ghafuran, Jannat Bibi, Sharfan and Niamat Bibi respondents to challenge the elections. The Election Tribunal came to the conclusion that as the polling did not continue uninterruptedly for a period of 8 hours, as provided by rule 25 of the said Rules, the elections were null and void. In coming to this conclusion the Tribunal did not allow an opportunity to the parties to produce evidence in support of their respective allegations and relied only on certain entries made in the diaries of the Polling Officers, in which it was recorded that the polling had been stopped between 2‑15 p.m. and 2‑45 p.m, instead of continuing until 4‑30 p.m,, as had been specified in the election programme.

3. The petitioners challenged the orders of the Election Tribunal on a number of grounds, but during the course of arguments only two of these grounds were pressed, namely, that no opportunity was given to the petitioners to substantiate their allegations and to show that none of the respondents, or any other woman voter, came before or after the polling had been closed to poll their vote, and that there was nothing on the record to show that by the closing of the poll, before the required time, the result of the elections was materially affected, nor did the Election Tribunal give any finding to this effect.

4. The writ petitions are contested only by the respondents who had filed the election petitions and in the written statements filed by them the factual position is stated to be as follows :‑ Writ Petition No. 256 of 1960. According to the election programme the men voters were to cast their votes from 8‑30 a.m. to 2 p.m. and from 4 p.m. to 4‑30 p.m. and the women voters from 2 p.m. to 4 p.m. The total number of electors in this ward was 747 ; 405 men and 342 women. From 8‑30 a.m. to 2 p.m. 311 votes were cast. When the turn of the women voters came and they reached the polling station at about 2‑30 p.m., they found that the polling had been declared closed. All the women voters were thus deprived of the right to poll their votes and 94 men voters who had yet to cast their votes also could not do so. Thus out of 747 voters of this ward only 311 could cast their votes, leaving 436 voters, who were deprived of their right to poll their votes. Writ Petition No. 257 of 1960. In this case, according to the election programme, the men voters were to cast their votes from 8. 30 a.m. to 2 p.m. and, again, from 4 p.m. to 4‑30 p.m. while the women voters were to cast their votes from 2 p.m. to 4 p.m. The total number of electors in this ward was 384 ; 214 men and 170 women. From 8‑30 a.m. to 2 p.m. only 162 votes were cast by men voters. When the turn of women voters to cast their votes came and they reached the polling station at about 2‑30 p.m. they found that the polling had been closed. All the women voters, numbering 170 were deprived of their right to vote. 52 men voters also could not cast their votes, because the polling had been closed at 2‑30 p.m. Thus out of a total number of 384 voters, only 162 voters were allowed to cast their votes, while the remaining 222 voters were deprived of this right. Writ Petition No. 258 of 1960. In this case also, the same times were fixed for the polling of votes, namely, for men voters from 8‑30 a.m. to 2 p.m. and, again, from 4 p.m. to 4‑30 p.m. and for women voters from 2 p.m. to 4 p.m. The total number of electors in this ward was 1054; 627 men and 427 women. From 8‑30 a.m. to 2 p.m. 394 votes were cast by the men voters. When the turn of the women voters to cast their votes came and they reached the polling station at about 2‑30 p.m., they found that the polling had been declared closed. All the women voters, numbering 427, were, therefore, deprived of their right to poll their votes. 233 men voters who had yet to cast their votes also could not do so, because the polling had been closed. Thus out of a total number of 1054 voters only 394 could cast their votes, leaving 660 voter, who were deprived of their right to poll their votes.

5. The respondents filed affidavits in support of their allegations mentioned above and as those allegations were not denied by the opposite side they will have to be accepted as correct, except that according to the findings of the Election Tribunal polling in one of the wards was declared closed a 2‑45 p.m., in another at 2‑30 p.m. and the third at 2‑15 p.m.

6. Rule 25 of the West Pakistan Basic Democracies Election Rules, 1959, relied upon by the Election Tribunal for declaring all these elections as void, is worded as follows :‑ "Hours of poll and extension in polling period.‑(1) A polling station shall remain open for such hours as may be specified in the Polling Programme: Provided that the total period allotted on any one day for polling shall not be less than eight hours and shall he un interrupted by any interval. (2) If at the hour of close of poll, there have been left at the polling station electors who have still to cast their ballot, the Polling Officer may extend the polling hours by such period as he may deem necessary. (3) If for any reason it is not possible to open the polling station at the appointed hour, or if by the reason of disorder at the polling station or for any other reason the Polling Officer deems it necessary to stop the polling for a certain time, the Polling Officer shall keep the polling station open for a further period equal to the period that elapsed between the hour appointed for the opening of the polling station and the hour at which it was actually opened or the time during which polling was stopped, as the case may be." The language of this rule is unambiguous and the intention of the framers appears to be that in no case should there be any inter ruption in the period allowed, on any one day, for polling and that that period is not to be less than 8 hours, though the polling officer is empowered to extend that period under certain circum stances. It was conceded by the learned counsel for the petitioners that in holding the elections which were challenged by the three election petitions, this rule was violated, inasmuch as in none of the cases polling continued uninterruptedly for the required period of 8 hours. It was, however, contended by him that as the polling was closed with the consent of all the candidates and as no woman voter came to cast her vote in these, or any of the other constituencies, before or after the polling was closed, these elections could not have been declared void. It was further contended by the learned counsel that mere violation of the relevant rule was not sufficient for declaring the elections void, unless it could be found, on evidence, that as a result of the violation of the said rule the result of the elections had been materially affected. In our opinion, when the rule lays down clearly that, the polling shall remain open uninterruptedly for not less than 8 hours, it was not open to the Polling Officer to close the polling before the expiry of that period, even if all the candidates had agreed to this arrangement and no woman voter came to any of the polling stations to cast her vote before or after the polling was so closed. It is, no doubt, true that no opportunity was given to the petitioners to show that no woman voter came before or after the close of the poll, but in the circumstances of this particular case, such an inquiry could not have served any useful purpose. It has been established that less than 50 per cent. of the votes had been cast before the polling was closed and, therefore, more than 50 per cent. of the elector Is were deprived of the right to elect a candidate of their own choice. If the Tribunal held that because of this violation the result of the elections was materially affected that finding cannot be said to be unjustified.

7. Apart from the fact that the polling did not continue uninterruptedly for a period of 8 hours, as provided by the relevant rule, that rule was also violated by allowing the women voters to poll their votes only during a period of two hours and the men voters during a period of six hours. The rule says that the total period allowed, on any one day, for the polling shall not be less than 8 hours and it does not empower the authorities concerned to split up that period of 8 hours by allowing a portion of it to women voters and the rest to men voters. Either there should have been separate polling booths for women voters, or if that was not possible and all the voters, men or women, were to cast their votes in the same polling booth, the total period, during which this could be done, should not have been reduced from 8 to 6 hours in the case of men voters and to 2 hours in the case of women voters. Though this was not one of the grounds on which the elections were held to be void by the Election Tribunal, we are of the opinion that even if the polling had not been closed before 4‑30 p.m., as all the voters were not allowed to poll their votes during a period of 8 hours, by reason of the splitting up of the period of 8 hours into two different periods, the pro visions of rule 25 were clearly violated.

8. This now brings us to the determination of the question as to whether the result of the elections was materially affected by the violation of rule

25. The relevant rule which empowers the Election Tribunal to set aside an election on such a ground is 59 and the clause applicable is (c). This is worded as follows :‑ "The Election Tribunal shall declare an election to be void if it is satisfied that‑ (a)* * * * * * * ** ** * (b) * * * * * * * ** ** * (c) the failure of any person to comply with the provisions of the Order or these rules has materially affected the results of the election," The deciding factor is, therefore, the satisfaction of the Election Tribunal and if that Tribunal is satisfied that the failure on the part of any person to comply with the provisions of any of the rules had materially affected the result of the election, the election has to be set aside. It is, no doubt, true that, in these particular cases, the Tribunal did not give any clear finding to the effect that as a result of the closure of the polling before the expiry of the prescribed period the result of the elections was materially affected, but in passing the impugned orders the Tribunal must have came to such a conclusion, though it did not express it in so many words. From what has been stated above, it is apparent that as more than 50 per cent. of the electors were not given a chance to poll their votes, the result of the elections must have been materially affected, because if those electors had polled their votes the petitioners may or may not have been elected. In the circumstances of these particular cases it was, in our opinion, not obligatory for the Tribunal to find out, by examining all the electors who bad not been given a chance to poll their votes, for which candidate they would have voted if such a chance had been given to them. Such a course of action would have converted the Tribunal into a polling booth which, in our opinion, is not the intention of the relevant rule. It is clear that the Tribunal was satisfied that the result of these elections was materially affected by the violation of the relevant rule and, therefore, it had no option but to declare those elections to be void. It was for the Tribunal to be satisfied on this question and that satisfaction being based on good and sufficient material, the orders passed by it are not open to objection from any point of view. In our opinion the Tribunal had pot acted without jurisdiction, nor did it exceed the power conferred on it by law. We, therefore, decline to interfere in the orders passed by it refuse to issue a writ of mandamus or any other writ and hereby, dismiss all these petitions. We, however, make no orders as to costs. A.H. Petitions dismissed.