P L D 1966 (W (PLP)

S. A. MAHMOOD, J.‑Mian Riaz Ahmad petitioner and Sh. Sakhawat Ali respondent contested the election to the Electoral College from Electoral Unit No. 1776, District Lyallpur, In the polling held on the 5th of November 1964, Mian Riaz Ahmad obtained 269 votes and Sh. Sakhawat Ali 188. The latter moved an election petition to set aside the election of Mian Riaz Ahmad on various grounds. The Election Tribunal found that out of the ballot papers issued, 40 ballot papers were short in the ballot boxes, which showed that some voters having obtained these ballot papers had taken them away, and had not placed them in the ballot boxes.' The Tribunal presumed that the reason was that there was somebody outside the polling booth, who wanted the ballot papers for ulterior purposes. Bashir Ahmad and Muzaffar Ahmad had been found by the Presiding Officer trying to put two ballot papers each in the ballot box of Mian Riaz Ahmad; petitioner, and when they were prosecuted the petitioner had stood surety for them in Court. From this, the Tribunal concluded 'that a link between the two persons and the petitioner was established, and it was enough proof to implicate the petitioner, who did not produce any evidence in rebuttal the illegal sale and purchase of ballot papers, and he was thereby proved guilty of corrupt and illegal practices. The tribunal, therefore, declared his election void and the respondent elected. The order of the Tribunal dated the 29th of June 1965, is impugned by this writ petition under Article 98 of the Constitution of Islamic Republic of Pakistan, by which Mian Riaz Ahmad prays that the order of the Tribunal may be declared without lawful authority and of no legal effect. 2. The learned counsel for the petitioner has argued before us that there was no averment in the election petition that the result was materially affected, that there is no such finding by the Tribunal, and as the election of the petitioner could only be set aside under rule 36 (1‑A) of the Electoral College Rules, if there was a violation of the provisions of the Act or the Rules and the result of the election had been materially affected, i.e. but for the corrupt or illegal practices, the respondent would have been elected by obtaining a majority of votes, the Election Tribunal could not have set aside the election and declared the respondent elected, so that its order to that effect is without jurisdiction. The learned counsel for the respondent, on the other hand, contends that the Election Tribunal has authority under section 60 (2) of the Electoral College Act to make such order as it may deem fit, and the provision in rule 36 (1‑A) is not restrictive of that power, but that it merely governs the discretion of the Tribunal in those cases, where there is violation of the provisions of the Electoral College Act and the Rules, which materially affects the result of the election, in which case the Tribunal shall declare the election void, but the Tribunal still retains the, power to make suitable orders, as it may think fit in other cases, even without the result of the election having been affected. It is argued that as under the general law relating to elections and under a parallel provision in section 72 (1) (d) of the National and Provincial Assemblies (Elections) Act, 1964, the Tribunal shall declare the election of the returned candidate to be void, if a corrupt or illegal practice has been committed by the returned candidate or his agent or by any other person with the connivance of the candidate or his election agent without the result being materially affected, it could not be the intention of the Electoral College Act read with rule 36 (1‑A) that though a corrupt or illegal practice has been committed with the connivance of the candidate or his election agent, the Tribunal, cannot set aside his election. 3. The questions raised on either aside are important ones and need careful examination, but before we examine these questions, we would first deal with the facts of the case. The Tribunal has found that no less than 40 ballot papers were found by the Tribunal to have been obtained and not cast in the' ballot boxes, as they were wanted for ulterior purposes, and that the petitioner was associated with Bashir Ahmad and Muzaffar Ahmad, who were caught in the act of putting two ballot papers each, one each of which was not valid. Here is, therefore, a case of proof of connivance of the candidate with two persons casting bogus votes and a finding by the Tribunal that the petitioner was indulging in illegal sale and purchase of ballot papers, which is commission of corrupt and illegal practices on a large scale. In these circumstances, the result is bound to have been affected, although Mian Riaz Ahmad had a majority of 81 votes. The question would further arise whether we should interfere at the instance of a person who has acted in such manner to procure his election to the Electoral College. 4. We would first deal with the question whether the Election Tribunal has unrestricted power to make any order as it may deem fit under subsection (2) of section 60, which provides as follows:‑ "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 as it may' deem fit." The relevant rule framed in this behalf is 36 (1‑A) which reads: "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 the failure of any person to comply with, or the contravention of, any provision of the Act or these Rules." Before we discuss these provisions, we may mention that under rule 35 (6) the petitioner may claim any of the following declarations: "(a) That the election of the returned candidate is void ; or (b). that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or (c) that the election; as a whole, is void." It will be observed that the petitioner in each case seeks the relief that the election of either the returned candidate or the election as a whole, is void, when we refer to rule 36 (1‑A), we find that it provides that 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 for the reasons stated in the rule. It is, therefore, plain that the rule is intended to apply to all election petitions. The contention of the learned counsel for the respondent, however, is that it is only intended to declare that the election shall be declared void, where the result is materially affected by reasons of breach of rules or the provisions of the Act, but in other cases an option lies with the Tribunal to make such orders as it may deem fit. The emphasis is, therefore, on subsection (2) of section 60, but the power of the Election Tribunal to make such orders as it may think fit, is "subject to any rules made in this behalf" and‑ the only rule made in this behalf is 36 (I‑A). Therefore, there is no escape from the conclusion that this rule guides and controls the power of the Tribunal in granting the declaration that the election as a whole or of the returned candidate is void. The Election Tribunal is empowered to grant either of the two reliefs, and, therefore, to suggest that the Tribunal may grant other reliefs is a matter of no substance. It is the requirement of subsection (2) of section 60 that a rule be made for the Tribunal to make orders as it may deem fit, and if rule 36 (1‑A) is the only rule framed then so long as it remains the only rule, it must guide and control the power of the Tribunal. It may also be mentioned that but for the words "subject to any rules made in this behalf" the power given to the Tribunal would be unguided, uncontrolled and autocratic power and the subsection may be found to be invalid on the ground of excessive delegation of legislative functions by the Legislature to an outside agency. We are, therefore, clear in our minds that the words "subject to any rules made in this behalf" have been advisedly used, as it was intended that rules be made to guide and control the making of the orders by the Tribunal; as it may think fit. 5. The reliance of the learned counsel for the respondent on the general principle of election that the election of a returned candidate shall be declared void if a corrupt or illegal practice has been committed by the returned candidate or his agent or any other person with the connivance of the candidate or his election agent, as provided in section 72 (1) (d) of the National and Provincial Assemblies (Elections) Act, 1964, is of no avail to the respondent, because we are governed by statute law and it is a well established principle of law that Courts cannot extend statute to meet a case for which provision has clearly and undoubtedly not been made. If it was so intended, a clear provision to that effect would have been made in the Electoral College Act on or the rules framed thereunder. A Full Bench in Khizar Hayat and others v. Commissioner, Sargodha Division and another (P L D 1965 Lah. 349) has held that it is well settled that Courts cannot extend a statute to meet a case for which provision has clearly and undoubtedly not been made. A reference in this connection may be made to the following passage from Craies on Statute Law, Sixth Edition, page 70: "The authorities on this subject are numerous and unanimous. `No case can be found to authorise any Court to alter a word so as to produce a cause omissus', said Lord Halsbury in Mersy Docks v. Henderson. In Crawford v. Spooner, the Judicial Committee said: We cannot aid the Legislature's defective phrasing of an Act, we cannot add and mend, and, by con struction, make up deficiencies which are left there. In 1951 in Magor and St. Mellons R. D. C. v. Newport Corpon, it was held by the House of Lords that a Court has no power to fill any gaps disclosed in an Act. To do so, would be to usurp the function of the Legislature. "In other words, the language of the Acts of Parliament, and more specially of modern Acts must neither be extended beyond its natural and proper limits, in order to supply omissions or defects, nor strained to meet the justice of an individual case." 6. Of course, it is the duty of a Court to interpret a statute in such a way as to suppress such inventions and evasions as may lead to mischief and may' be contrary to the true intent of the Legislature, but before we can do so, the words must be fairly susceptible of that meaning as stated by Maxwell in Inter pretation of Statutes, Tenth Edition, at page 68. 7. It is not only clear that no specific provision having been made, we cannot refer to the so‑called general law of elections, but that it appears that there has been a deliberate omission. We find that in clause (g) of rule 59 of the Basic Democracies Election Rules, it was provided that the Election Tribunal shall declare an election to be void if it is satisfied that a corrupt practice or illegal act has been committed by the returned candidate or his authorised agent or by any other person with the connivance of the candidate or his authorised agent. This rule has not been expressly included in the present Rules. Rule 59 related to the elections of the Basic Democracies, and the members of the Electoral College were intended to become basic democrats so that these elections were of the same status. A provision similar to rule 59 has been made in the National and Provincial Assemblies (Elections) Act, 1964, in section 72 (1) (d), and if it was intended that this rule should apply to elections to the Electoral College Act, it would have been specifically enacted. It appears to us that rule 36 (1‑A) embodies in congested form no other principle than this that an election is to be set aside only in case the result or the election is materially affected by reason of violation or contravention of the Act and the Rules. 8. It follows from the above conclusion that a Tribunal cannot resort to general principle of election law and declare an election of the returned candidate to be void, if a corrupt or illegal practice has been committed by the returned candidate or his agent or by any other person with the connivance of his candidate or his election agent, without a finding that the result has been materially affected. We are not inclined to agree with the respondent's contention that by the mere commission of a corrupt or illegal practice it is intended that the Election Tribunal may declare an election void. It is significant that the rule provides that the result be "materially affected." These words are not ambiguous, and must be given 'their natural meaning and effect. It is not necessary, for declaring, an election void that there must be invalidation of so many votes by reason of the breach or violation of the rules, to reduce the votes before (.sic) those of others, but there should be a finding that the violation is of such a scale that it has affected the result. 9. A word of explanation is necessary with regard to the interpretation of rule 36 (1‑A). In the Full Bench case Dost Muhammad Malik. v. The Returning Officer and Sarfraz Khan Malik (P L D 1965 Lah. 560) of which one of us was a member, in dealing with section 60 of the Electoral College Act, it was stated as follows:‑ "Under section 60, 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 as it may deem fit. There is thus no particularisation of the grounds which may be raised in a petition to challenge an election. One instance of those grounds will be found in the definition of the Election Offences set out in Chapter IX of the Electoral College Act, though it is not said so in the Act or the Rules and there may be very many other grounds which, if established, will call for setting aside of an objection." The above observations were made to repel a contention raised by the learned counsel in that case that the Tribunals established under the Electoral College Act were not competent to decide all manner of disputes raised in the election petitions. The Full Bench case was heard in March and during the hearing of the case our attention was not drawn to rule 36 (1‑A), because it was not relevant to that case, and may be also because the rule was not printed by then in the P L D. The above observa tions are valid so far as they go, but they are not intended to interpret rule 36 (1‑A), nor this question or the scope of the power of the Tribunal to decide election petitions was in issue before us. 10. For the reasons already stated and the conclusions arrived at by the Election Tribunal, we are of the view that the order of the Tribunal cannot be interfered with so far as the election of the petitioner has been declared void, as the facts found by the Tribunal make out a case of the result having been affected as a result of corrupt and illegal practices, and it is not material that it was not alleged in the election petition that the result was not affected. We would also not grant relief in this discretionary jurisdiction to a person who has been found to have committed corrupt and illegal practices. We cannot, however, maintain the order of election of the respondent, who could only be declared elected, if he had secured a majority o1 votes on the count of ballot papers. This he has not done. In the circumstances of this case though the election of the petitioner could have been declared void the respondent could not have been declared elected by the Election Tribunal. 12. We would therefore set aside the election of Sh. Sakhawat Ali respondent with the result that a fresh election will have to be held. As the petitioner has partly succeed and partly failed, we make no order as to costs. K. B. A. Petition partly accepted.