P L D 1966 (W (PLP)

ANWARUL HAQ, J.‑The petitioner, Ahmad, as well as respondent No. 1, Mir Muhammad Khan, and one Muzaffar Ali contested the last election to the Electoral College of Pakistan from Unit No. 801, in the District of Lyallpur. The petitioner polled 224 votes, whereas the respondent No. 1, Mir Muhammad Khan polled 182 votes and the third candidate, Muzaffar Ali, polled 172, with the result that the petitioner was declared as duly elected. Thereupon, respondent No. 1 preferred an election petition on the following grounds:‑ (a) that the third candidate, Muzaffar Ali, was below the age of 25 years and, therefore, not qualified to contest the election; and (b) that votes were cast in the name of some absentee voters by the present petitioner; and (c) that some persons who had voted earlier in other Units, also cast votes for the petitioner, Ahmad.

2. The learned Election Tribunal in its order, dated the let of June 1965, dealt only with the question of age of Muzaffar Ali, and placing reliance on a School Leaving Certificate held that he was born on the 3rd of April 1941, and was, therefore, below 25 years of age on the nomination day. The Tribunal then proceeded to observe that as Muzaffar Ali could not contest the election on account of being below the prescribed age, the election as a whole must be considered as void.

3. On behalf of the petitioner Mr. Aftab Farukh has challenged the correctness and legality of this order of the Election Tribunal on the following grounds:‑ (a) that no notice was served upon Muzaffar Ali for the hearing of the election petition with the result that he could not appear before the Election Tribunal to prove that he was not below 25 years of age; (b) that the petitioner was not given any opportunity to adduce evidence on the question of Muzaffar Ali's age, and, thus, there was a violation of the provisions of section 60 of the Electoral College Act; (c) that in any case the age of Muzaffar Ali as entered in the Electoral Roll was above 25, and accordingly the Election Tribunal had no jurisdiction to go behind that entry in view of the third proviso to the third subsection of section 23 of the Act; (d) that assuming that Muzaffar Ali was not qualified to contest the election, an opportunity should have been given to the petitioner to lead evidence to show that he would have obtained majority of the votes cast in favour of Muzaffar Ali; and (e) that the respondent did not lead any evidence to show that he would have obtained the majority of the wasted votes and accordingly there was no material before the Election Tribunal to hold that the result of the Election has been materially affected.

4. The first two contentions may be taken together. From the impugned order it is clear that Muzaffar Ali was served but did not appear before the Election Tribunal. Even in the writ petition, itself, in ground No. 5 it is stated by the present petitioner that respondent No. 1 "fraudulently maneuvered substituted service to prevent Muzaffar Ali from appearing before the Tribunal and prove that he was eligible to contest". It seems to us that from this statement made by the petitioner himself it is clear that Muzaffar Ali was served. It is not for this Court to investigate whether substituted service was manoeuvred fraudu lently or not. It is, therefore, clear that we must hold that Muzaffar Ali was duly served and if he did not appear to contest the allegation regarding his being below 25 years on the nomination day, he was himself to blame, and no benefit can accrue in this behalf to the petitioner, Ahmad, who has not proved that he wanted to lead evidence on this point. The first two contentions, therefore, fail.

5. The next contention that finality attaches to the entries in the electoral roll is based on the third proviso to subsection (3) of section 23 of the Act, which enjoins the Returning Officer no to go behind the electoral roll at the time of scrutinising the nomination papers. At first sight, the proviso does appear to indicate that the entries in the electoral roll are final for all purposes, but on a scrutiny of the various provisions contained in the Act as well, as in the Electoral College Rules relating to the preparation of the electoral roll it becomes clear that the elaborate procedure prescribed therein is directed only towards one end, namely, to ascertain whether a person is eligible to exercise the right of vote. The question of age, which is relevant and material for this purpose, is to ascertain whether the person is above 21 years, as prescribed under Article 157 of the Constitution and section 8 of the Act. The determination of the exact age of a voter is not contemplated by any provision of law dealing with the preparation of the electoral roll, nor is there any reference to the entry of age appearing in the electoral roll in clause (1) of Article 158 of the Constitution which prescribes the qualifications of a person eligible to contest election for membership of the Electoral College. This Article lays down that the person concerned should be enrolled as a voter on the electoral roll of the Unit concerned and should be not loss than 25 years of age. In other words, the qualification of age has to be satisfied independently of the entries appearing in the electoral roll. We are of the view that the finality attaching to the electoral roll under the proviso relied upon by the learned counsel for the petitioner cannot be extended beyond the object and the purpose for which the electoral roll is prepared, namely, to ascertain whether the person concerned has the right to vote. In other words, the entry of age appearing in the electoral roll is not final in so far as the question of candidate for membership of the Electoral College is concerned. The Election Tribunal was, therefore, within its rights to take evidence, on the question of Muzaffar Ali's age irrespective of the entry appearing in the electoral roll.

6. The last two contentions may be taken together. Having found that Muzaffar Ali was not eligible to contest the election in question, it is clear that 172 votes cast in favour of this candidate were wasted, and the question is whether this fact has materially affected the result of the election. The contention on behalf of the petitioner is that, in the first place, he would have been able to show, provided he had been given an opportunity in this behalf, that all these votes, or at least a substantial majority of them, would have been cast in his favour if Muzaffar Ali had not been in the field. We find that there is no material on the record of the Election Tribunal from which it could be inferred that the petitioner wanted to lead evidence in this behalf. Accordingly, we cannot hold that the petitioner was denied an opportunity to lead evidence. He neither brought this evidence with him, nor did he make any application to the Tribunal to summon such evidence.

7. The next point raised in this connection is that in any case the respondent No. 1 has not shown that a substantial majority of these 17 wasted votes would have been cast in his favour, so as to tilt the balance against the petitioner. It is contended by Mr. Aftab Farrukh that, in these circumstances, it could not be said in terms of rule 36 (I‑A), that the result of the election has been materially affected. In support of this proposition the learned counsel referred us to Vashist Narain v. Dev Chandra (A I R 1954 S C 513) in which it was observed as under:‑ "The words 'the result of the election has been materially affected' indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate. "It cannot be held that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it, lies upon the petitioner. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand." A further observation was also made, namely, "where the finding of the Tribunal that the result of the election has been materially affected is speculative and conjectural, the Supreme Court will interfere with the finding in special appeal".

8. The learned Judges, who delivered the judgment in the above‑cited case, themselves realized the virtual impossibility of leading affirmative evidence to show how the wasted votes would have been cast. This is apparent from the following observation appearing on page 516 of the report:‑ " The casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognized that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by section 100 (1) (c) and hold without evidence that the duty has been discharged." Again, while dealing with the evidence which was before the Election Tribunal, their Lordships observed: "The Tribunal in the present case rightly took the view that they were not impressed with the oral evidence about the probable fate of votes wasted. . . . . . . . . . . . . . . . . . . . . . . . . It is impossible to accept the `ipse dixit' of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground."

9. Mr. Aftab Farrukh, learned counsel for the petitioner, also referred us to another decided case from the Indian juris diction, namely, Inayat Ullah v. Diwan Chand (A I R 1959 Mdh. Prad. 58). After referring to the judgment of the Supreme Court of India, mentioned above, the learned Judges observed in paragraph 29 of their judgment as follows:‑ "We consider that the matter is not res integra, and our view of the matter is irrelevant. Their Lordships also noted with regret the difficulty of establishing such a result by concrete evidence and stated that the matter could only be rectified by the Legislature and not by the Courts. According to their Lordships, the onus which was placed upon the contend ing party was insuperable and incapable of being discharged. Indeed, the Legislature in laying that burden seems to ask the contestant to do the impossible. We do not consider that the matter is open to us to express a different view and apply the ruling to the facts of the case, which are analogus to those in the case which their Lordships decided, we must hold that the evidence tendered is not sufficient to discharge the onus which was upon Mahajan. " In the next paragraph, the learned Judges went on to say‑ "We cannot help expressing with regret that the law is as it is. It is quite obvious that the law should not contemplate the doing of an impossible task by a candidate who is contesting the election of a returned candidate on such grounds. The law should provide for a burden of proof which would be capable of being humanly discharged and not a burden which no person can over hope to discharge. We hope that the Legislature will intervene and deal with this question as their Lordships of the Supreme Court have already expressed."

10. It will be seen that while laying down the rule that a petitioner who challenges an election on the ground of improper acceptance of a nomination paper must show by affirmative evidence that such a majority of wasted votes would have been cast in his favour as would give him a lead over the returned candidate, the learned Judges of the Indian Supreme Court as well as the High Court of Madhya Pradesh realized the impossibility of undertaking such a task, but they found them selves powerless in the matter. Speaking with great respect, we are of the view that while it is undoubtedly the duty of the Courts to interpret the law as it stands, yet it is a well‑recognised principle of interpretation that, if possible, a statute must be interpreted in such a manner as would make it workable. Now, it seems to us that in the circumstances created by an improper acceptance of a nomination paper and the votes cast in favour of such an ineligible candidate having been wasted, if the margin of votes between the returned candidate and the candidate with the next highest number of votes is more than the number) of wasted votes, then it can easily be said that the result of the election has not been affected at all. But, if, however, the margin between the returned candidate and the candidate with the next highest number of votes is less than the number of wasted votes, as is the case before us, then the question whether the' result of the election has been materially affected or not will have, to be answered on the basis of probabilities, as in the very, nature of things direct and' oral evidence as to the manner in which the wasted votes would have been cast can neither be available, nor would it generally be acceptable in most cases, even if it were available. It appears to us that this is the only reasonable interpretation which can be placed on rule 36 (IA) of the Electoral College Rules, 1964, so as to make it workable in cases of the present kind.

11. For the foregoing reasons, we consider that the result of the election has been rightly held by the Election Tribunal to have been materially affected due to the improper acceptance of the nomination paper of Muzaffar Ali. In such circumstances the only appropriate order which the Election Tribunal could pass was to declare the election as a whole to be void. No justification is, therefore, made out for our interference with the order of the Election Tribunal. The petition, therefore, fails and is hereby dismissed; but the parties are left to bear their own coats. K. B. A. Petition dismissed.