P L D 1966 (W (PLP)

MUHAMMAD GUL, J.‑In the election to the Electoral College of Pakistan from Electoral Unit No. 285‑Rawalpindi, held on 4‑11‑1964, Muhammad Rashid, the petitioner, secured 271 votes as against 20 and 34 votes polled respectively by his two rivals, Syed Chan Shah (respondent No. 2) and Sh. Abdul Hamid (respondent No. 3) and as a result, the petitioner was declared elected. On an election petition filed by respondent No. 2, the petitioner's election was set aside by the Election Tribunal (respondent No. 1) vide its order dated 29th June 1956 (Annex. `A') on the ground that there was interruption in the poll within the meaning of section 34 (1) of the Electoral College Act, 1964 (Act IV of 1964) and accordingly the Tribunal ordered fresh election under subsection (3) ibid. Aggrieved by this order, the petitioner has moved this writ petition under Article 98 of the Constitution for a declaration that the order of the Election Tribunal is "without lawful authority and of no legal effect."

2. It is clear from the Tribunal's order that the election started at the scheduled hour at 8 a.m. However, the Presiding Officer stopped the poll at 9‑30 a. m., owing to disturbances in the course of which some persons received injuries. The Presiding Officer then called for Police reinforcement which arrived at about 10 a.m. and the poll was resumed at 10‑15 a.m. The poll was, however, again stopped at 11‑40 a.m., under instructions from the Returning Officer, who visited the Polling Station in the meantime. Later, the Deputy Commissioner also visited the polling Station and on his instructions, polling was resumed once again at 12‑15 p.m. which continued till 3 p.m. These are findings of fact arrived at by the Tribunal which are not disputed before us by the parties.

3. Mr. M. B. Zaman, learned counsel appearing for the petitioner, however, contended that the temporary stoppages of the poll, firstly owing to disturbance and later under a direction from the Returning Officer were merely in the nature of suspensions and not stoppage "for reasons beyond the control of the presiding Officer". It was argued that the fact that poll was resumed at 10‑15 a.m. with the arrival of the Police reinforcement and it continued uninterrupted after 12‑15 p.m. under order of the Deputy Commissioner, was sufficient to show that there was no interruption or obstruction of poll within the meaning of section 34 (I) of the Act, so as to require fresh election, there were only temporary suspensions. And it was never the intention of the Legislature to require fresh election under sub section (3) ibid in these circumstances. In support of this argument, reference was also made to section 27 of the National arid Provincial Assemblies (Elections) Act, 1964 (Act VI of 1964) which according to the learned counsel was in pari materia with section 34 of the Electoral College Act and which provided for fresh election only if after the interruption or obstruction, the poll "cannot be resumed during the polling hours". It was urged that the Electoral College Act and the National and Provincial Assemblies (Elections) Act are part of same system and are explanatory of each other and, therefore, it would be permissible to refer to the provisions of section 27 of the latter statute to find true meaning and intendment underlying section 34 ;of the former statute.

4. Section 34 of the Electoral College Act reads as under:‑ "

34. Adjourned poll.‑(1) If, at any time, the poll at the polling station is interrupted or obstructed for reasons beyond the control of the Presiding Officer, he shall stop the poll and inform the Returning Officer that he has done so. (2) Where a poll has been stopped under subsection (1), the Returning Officer shall. (a) immediately report the circumstance to the Commis sioner; (b) appoint, as soon as may be, with the approval of the Commissioner, a day for a fresh poll ; and (c) fix a place at which and the hours during which such fresh poll shall be taken. (3) All voters shall be allowed to vote at the fresh poll taken under subsection (2) and no vote cast at the poll stopped under subsection (1) shall be counted." It cannot be controverted that the above section is unqualified in its terms and would cover any interruption or obstruction whether temporary or otherwise subject, however, to the only overriding condition that such interruption or obstruction is "for reasons beyond the control of the presiding officer..." Once this condition is satisfied, as in this case, the presiding officer is left with no option except to stop the poll and to inform the Returning Officer who in turn is bound to arrange for fresh poll in consultation with the Chief Election Commissioner. The provisions are expressly mandatory and admit of no exception that the poll need not be stopped, if the interruption or obstruc tion is temporary albiet "for reasons beyond the control of the presiding officer." The wording of the statute being free from any ambiguity, it will not be permissible both in principle and on judicial authority to refer to any external aid to find out the true meaning of the statute. External aids are permissible only if the language of the statute is ambiguous or to avoid extraordinary or absurd results. It is not suggested that the language of section 34 is in any manner ambiguous or its literal construction would lead to any absurd results. Rather the peremptory provisions of the section are significant of the anxiety of the Legislature to ensure that the election to the Electoral College are conducted in perfectly calm and orderly manner so that the electors are allowed to exercise their right of vote without any fear or pressure. Again, election to the Electoral College is to be held on the basis of adult suffrage and a presiding Officer supervising such election at a remote place in the country side, may find the situation slipping out of his control and adequate police help may not be readily forthcoming to restore calm atmosphere. Therefore, the Legislature in its wisdom has ordained that any obstruction or interruption in the poll "for reasons beyond the control of the presiding officer" would, without any further condition, vitiate the entire poll and a fresh poll shall be held in consultation with the Chief Election Commissioner.

5. The wording of section 27 of the National and Provincial Assemblies (Elections) Act, 1964, on the other hand, is materially different which for the relevant purpose read :‑ "

27. Adjourned Poll.‑(1) If, at any time, the poll at the polling Station is so interrupted or obstructed for reasons beyond the control of the presiding officer that it cannot be resumed during the polling hours fixed under section 26, he shall stop the poll and inform the Returning Officer that he has done so. . . . . . . . . . . . . It is impossible to read the underlined words used in the above section into section 34 of the Electoral College Act, 1964. This all the more so, when we bear in mind that the two statutes were debated by the National Assembly one after the other. Therefore, the difference in language in the two statutes cannot be explained on any hypothesis other than this that the Legislature by using the underlined words in section 27 of the National and Provincial Assemblies (Elections) Act, 1964, intended to require fresh elections only when it was not possible to resume the interrupted poll during the remainder polling hours and not otherwise. In case of election to the Electoral College, on the other hand, the requirement of fresh election is not hedged by any such further condition. The interpretation canvassed by the petitioner's learned counsel, on the other hand, would not only make the difference of the wording of the two sections in vain but also reduce the underlined words in section: 27 to a redundancy which cannot be supported on any discoverable principle of interpretation of statutes.

6. Mr. M. B. Zaman next contended that in the absence of any finding by the Election Tribunal as required by rule 36 (1‑A) of the Electoral College Rules, 1964, that the contravention of section 34 of the Act, has materially affected the result of the election, the Election Tribunal was not justified to order fresh election even if there have been non‑observances of the provisions of section 34 of the Electoral College Act.

7. It was also stressed that the fact that the petitioner by polling 271 votes out of a total number of 472 votes borne on the election rolls, secured an absolute majority and that this was sufficient to demonstrate, that the result of the election remained unaffected any contravention of section 34 of Act IV of 1964, notwithstanding. Sub‑rule (1‑A) of rule 36 of the Electoral College Rules, 1964, reads:‑ "(1‑A). 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 reason of failure of any person to comply with, or the contravention of any provision of the Act or these rules." The sub‑rule is complimentary to section 60 (2) of the electoral College Act which provides: "Subject to any rules made in this behalf, the Tribunal shall, after giving the contesting candidates an opportunity of being heard and taking such evidence as may be produced before it, make such orders at it may think fit." On the face of it, the sub‑rule (1‑A) is enabling provision which confers upon the Tribunal plenary power to set aside the election of a returned candidate or the election as a whole if it is satisfied in the relevant behalf. It would be wrong to read the sub‑rule in a restrictive sense: that is to say, the Tribunal shall not declare the election of a returned candidate or the election as a whole to be void, unless it is satisfied that the result has been materially affected by reasons of non‑observance or contravention of any provision of the Act or the Rules framed there under. If that had been the real intention then the rule‑maker would have used negative language. Therefore, in our opinion, in this case nothing turns on the provisions of sub‑rule (1‑A) of rule 36 of the 1964 Rules. Rather when read with section 60 (2) of Act IV of 1964, it merely emphasizes the widest powers conferred on the Tribunal in the matter of election disputes brought before it by the parties concerned.

8. Furthermore, as rightly pointed out by Sh. Khurshid Ahmad, learned counsel appearing for respondent No. 2, resumption of the poll by the presiding Officer after the first stoppage owing to the interruption, which as pointed out already F was for reasons beyond his control, was in direct conflict with the provisions of section

34. It was apparently for that reason that the Returning Officer ordered the stoppage of the poll in toto so that fresh election could be held as envisaged under subsection (3) ibid in consultation with the Chief Election Commissioner. The Deputy Commissioner, who appeared on the scene later had no authority, whatever under the Act to overrule the Returning Officer. Therefore, the subsequent resumption of the poll purporting to be under order from the Deputy Commissioner in derogation to the direction given by the Returning Officer was completely devoid of any validity under the law. Indeed, the entire election proceeding after the first stoppage at 10‑30 a.m. (being for reasons beyond the control of the presiding Officer) became frustrated, as it were under section 34 and merely because the petitioner secured 271 votes out of total of 472 votes borne on the electoral roll would not be of any consequence, for there was no election in the eye of law. The learned Election Tribunal has in effect, reached the same conclusion which we are clearly of the view is unassailable on a proper interpretation of the relevant provisions noticed above. Even otherwise on account of the recent dictum of their Lordships of the Supreme Court in Mian Jamal Shah v. Member, Election Commission (P L D 1966 S C 1) the mere fact that the impugned order proceeded upon an erroneous interpretation of the relevant provisions of the statute and the Rules by the Tribunal per se would not make the order without lawful authority nor for that matter be a ground for interference by this Court in writ jurisdiction.

9. The result, therefore, is that the writ petition fails and is dismissed with costs. S. Q. Petition dismissed.