2004 PLP 1471 (CLC)

(3) Whether the election of respondents No.1 and 2 is liable to be set aside on account of reasons enumerated in the contents of petition? OPP (4)Whether the petitioners are entitled to the relief claimed for? OPP (5) Relief.

6. Muhammad Afzal Gujjar respondent No. l appeared as P.W.1 and reiterated his contention as contained in Election Petition. He, particularly made reference to 56 double votes cast in U.C. 3 and prayed that the same may be excluded from the statement of count. Regarding the 33 rejected votes, he claimed that the said rejected votes were cast in favour of the respondents. The said witness was cross-examined at length. Although, he could not state with certainty that the rejected 33 votes were cast in his favour yet submitted that the factum of the loss of the bag containing the 33 rejected votes would raise a strong presumption that the said bag contained his rejected votes.

7. Khan Bahadur petitioner appeared as R.W.1. He has categorically admitted that 33 votes at Polling Stations were rightly rejected. However, these rejected votes according to petitioner No.1 belonged to both rival panels. In documentary evidence the respondent produced Exh.P.1 to Exh.P.207.

8. The learned Election Tribunal examined the said evidence an decided Issues Nos.1. 2 and 3 in favour of respondents No. l and

2. Relying upon the documents placed on the record, it came to the conclusion that as many as 32 voters cast their votes in U.C. Nos.2, 5 and 36 besides U.C. No.3 Chakwal City. The Election Tribunal also noted that even in his own statement Khan Bahadur petitioner had not specifically denied the factum of double voting. Keeping in view the margin of difference between votes of the, rival panels, the Election Tribunal came to the conclusion that this re-established factor of double voting had materially effected the result of the said Election. The contention in respect of 33 rejected votes of Polling Station No.18 was also dispassionate 1v considered in view of the evidence on the record. It has been found as a fact that 33 votes at Polling Station No. 18 had been rejected by the Presiding Officer. This number of rejected votes has been admitted by Khan Bahadur petitioner appearing as R.W.1. His contention, however, was that these 33 rejected votes belonged to both the rival candidates. The bag containing these 33 votes went missing and could not be accounted for. The learned Election Tribunal came to the conclusion that as the aforesaid factors could have the effect of changing the result relied upon rule 83 of the Punjab Local Government Elections Rules, 2000 and declared the impugned election as a whole to be void vide the impugned order, dated 14-1-2003.

9. Sh. Zamir Hussain, Advocate for the petitioners submits that although he does not dispute that 32 votes had cast more than one vote in the election in question and also the fact that the bag containing 33 rejected votes was untraceable yet it would not effect the result of the election as under rule 82(d) of the Punjab Local Government Elections Rules, 2000 no adverse inference can be drawn against the successful candidates if no corrupt or illegal practice is proved to have been committed by the petitioners or their election agents or by any other person with the connivance of the successful candidates or his authorized agent. It is submitted that in the present case, no such involvement of the petitioners has been established on the record. In respect of the bag containing 33 votes which admittedly went untraceable, it is submitted that such 33 votes pertain to the rejected votes of various candidates which would have no bearing on the result of the election. Even in this respect it is submitted that even if there was a lapse, such lapse cannot be attributable to the petitioners. Reliance is placed on the cases of Hem Raj v. Ramji Lal and another AIR 1975 SC 382 and Sudhir Laxman Hendre v. Shripat Amrit Dange and others AIR 1960 Bombay

249. The precise contention is that in considering the allegation of corrupt practice, it must be kept in mind that such an allegation is quasi-criminal to nature exposing the returned candidate not merely to the risk of his election to be set aside but also of his being disqualified to stand for election. He also runs the risk of being prosecuted. The charge of corrupt practice should, therefore, be proved beyond reasonable doubt.

10. On the other a hand, Ch. Afrasiab Khan, Advocate of the respondents has submitted that the question of fact that 32 votes were polled more than once in U.C. Nos.2, 5 and 36 and U.C. No.3 has not been controverted. Similarly, the fact that 33 votes from Poling Station No. 18 were rejected is also not denied. It is also established from the record that this bag went missing and could not have been accounted for. Admittedly, the difference amongst the rival candidates was that of 18 votes only. It is submitted that Election Tribunal has dispassionately considered all the aspects of the case and has arrived at a just conclusion.

11. As the petitioners substantially raise a question of law as stated hereinbefore this writ petition is being heard and decided as a regular case in the light of the available record The arguments of the learned counsel for the parties have been heard.

12. The learned counsel for the petitioners has not disputed the questions of fact recorded by the learned Election Tribunal. His only contention is that if no corrupt or illegal practice is proved to have been committed by the petitioners or their election agents or by any other person with the connivance of the petitioners, no adverse inference can be drawn against the successful candidates. He has also submitted that unless and until the factum of corrupt practice is established through cogent and substantial evidence, the allegation of a quasi-criminal nature cannot be found to be proved as it visits the alleged perpetrator(s) with serious present and future consequences and disabilities.

13. An examination of the impugned order shows that the learned Election Tribunal in para. 11 of its judgment had found that there was no` tangible evidence which proved the allegation of rigging against petitioners. However, the Election Tribunal had set aside the elections under rule 83 ibid after coming to the conclusion that counting had not been made in accordance with law and the provisions of the Ordinance and the Rules and that the elections suffered from the prevalence of extensive illegal practices without attributing any corrupt practice to the petitioners.

14. Rule 83 of the Punjab Local Government Elections Rules, 200Q is reproduced as under:

"Rule

83. Ground for declaring as a whole void.

The Tribunal A shall declare the election as a whole to be void if it is satisfied that the result of the election -has been materially affected by reason of:

(a) the failure of any person to comply with the provisions of the Ordinance or the Election Rules; or (b) the prevalence of extensive corrupt or illegal practice at the election. " The interpretation placed by the learned Election Tribunal upon this rule is un-exceptionable. In order to declare the whole election as void, the learned Tribunal must feel satisfied that the results of the election have been materially effected on account of the reasons mentioned in rule 83(a) and (b) supra. It is, not necessary in law that any corrupt or illegal practice must also be specifically attributed to a candidate or his representatives etc.

15. Referring to Sudhir Laxman Hendre's case (supra), it is sufficient to observe that Election Tribunal found that the illegality or the corrupt practice had been committed in the interest of the returned candidate and that such illegality had the effect of materially affecting the result of the said election and thus, without holding the petitioners responsible for any corrupt practice declared the election to be void. A similar situation exists in the present case. The rule of law cited in Hem Raj's case (supra) also does not advance the case of tie petitioners, as the learned Election Tribunal had not found the petitioners guilty of any specific corrupt practice but had declared the election void upon the general prevalence of corrupt and illegal practices which led to materially effect the result of elections.

16. Resultantly, there is no merit in this writ petition which is hereby dismissed. H.B.T./K-40/L Petition dismissed.