P L D 1966 (W (PLP)

S. A. MAHMOOD, J.‑Ghulam Muhammad, petitioner Muhammad Tufail, respondent No. 1, and Hasan Din were candidates for election to electoral Unit No. 943, Gojra, Tehsil Toba Tek Singh, District Lyallpur, under the Electoral College Act. In the poll, which was held on the 5th of November 1964, the petitioner obtained 297, respondent No. 1, 295, and Hasan Din 146 valid votes. As a result, the petitioner was declared elected. Muhammad Tufail respondent, filed an election petition against his election on the following grounds: (a) that whereas the total number of votes in the electoral unit was 794, the Presiding Officer issued 810 ballot papers; "(b) that votes of two dead women were cast by some body and that votes of two persons who were out of the country were also cost; (c) that 27 persons voted in this unit, as well as in another unit; and (d) that the ballot papers were not correctly counted by the Presiding Officer. The first contention was not found to be correct but it was held that out of the ballot papers issued, 24 were not cast in any ballot box. The Election Tribunal also held that though the Returning Officer had counted 775 ballot papers, as recovered from the boxes of the candidates, the total of the votes shown against the names of each of the candidates amounted to 751, including three invalid votes, and thus four of the ballot papers were misplaced, and were not taken into account by the Presiding Officer. The Tribunal further found that whereas 13 ballot papers were invalidated on the ground of their not bearing the official mark, two ballot papers each without the official mark were found in the envelope of the petitioner and of the respondent. From these circum stances, the Election Tribunal concluded that there was something wrong with the counting of the votes by the Presiding Officer, so that the counting was not fair, and as it could have affected the result of the election, the Tribunal held the election void. The order of the Election Tribunal, dated the 1st of May 1965, was impugned by Ghulam Muhammad petitioner by this writ petition under Article 98 of the Constitution of Islamic Republic of Pakistan, and it was prayed that the order of the Election Tribunal be declared to have been passed without lawful authority and to be of no legal effect, and the respon dent restrained from interfering with the functioning of the petitioner as elected member, and from issuing a notification setting aside the petitioner's election. As a stay order was not granted by this Court, we are informed that a fresh election was held on the 19th of June 1965, in which the petitioner and respondent No. 1 contested the election as candidates, and respondent No. 1 was elected. We have also been told that the petitioner challenged the election of the respondent by an election petition, which has since been dismissed on the 2nd of November 1965. 2. The Election Tribunals have been set up under section 59 of the Electoral College Act and they have been entrusted with the task of deciding election petitions presented under section 58 of the Electoral College Act in accordance with subsection (2) of section 60. The Electoral College Act is an Act of the National Assembly and as its preamble shows; it has been enacted for the constitution of the Electoral College of Pakistan as required by the Constitution and for matters connected therewith and incidental thereto. Articles 155 to 159 are provisions in the Constitution relating to the Electoral College and the persons elected thereto. 3. Under Article 171 (1) of the Constitution, provision may be made by law: "171 (1) (a):‑For disputes arising in connection with the counting of votes at an election or referendum required to be held under this Constitution to be finally determined by the Commissioner or an Election Commission." 4. There are no provisions in this Act for determination of disputes in connection with the counting of votes to be determined by the Commissioner or the Election Commission. The Election Tribunal is a Tribunal and is not the Commissioner or an Election Commission. Consequently, it is urged that the Election Tribunal is not competent to decide a dispute arising in connection with the counting of votes at an election. It is further urged that even if it has the power to decide such disputes arising out of an election it has no power to set aside the whole election in a case where the dispute relates purely to the counting of votes and that it must declare that candidate elected who has secured the majority vote. 5. It is true that in the Electoral College Act no provision is made for final determination of disputes in connection with the counting of votes by the Commissioner or an Election Commission. In this Act the Presiding Officer opens the ballot boxes of each contesting candidate and counts the ballot papers, contained in the ballot boxes so opened, and excluding the invalid ballot papers, declares the result. This is provided in section 45 of the Electoral College Act. After the declaration of the result, the Presiding Officer is required under section 47 (1) to seal the ballot papers of each contesting candidate and other papers and under subsection (2), the Presiding Officer shall obtain on each packet sealed by him under subsection (1) the signatures of such of the contesting candidates or their polling agents as may desire to sign it. The provision under subsection (2) of section 47 is intended to ensure a correct count, but it would be observed that a candidate or polling agent is not bound to sign. There may be and there are instances in which the count may not be correct or certain ballot papers, which are not in fact invalid, may be declared invalid, which may affect the result of the election. Any dispute arising in connec tion with the counting of ballot papers or excluding of the invalid papers or including of ballot papers, which in the contention of one of the candidates is invalid, is a matter which has not been left to be determined by the Commissioner or an Election Commission, but has to be decided by the Election Tribunal, which also decides all other disputes. Therefore, the decision of all kinds of disputes is entrusted to the Election Tribunal and the distinction drawn by Article 171 (1) between the two disputes to be decided by two different bodies has not been given effect to in enacting the Electoral College Act, but the result of this cannot be to make the Electoral College Act repugnant to the Constitution, nor is it so contended before us. The Electoral College Act is an Act enacted by the Central Legislature and is to all intents and purposes a valid Act by reason of the legislative power existing in the Assembly. Therefore, it cannot be argued that the Act has not legislative force. The decision of the Tribunal is a decision under the Electoral College Act and because the law has not been so enacted as to conform to the requirement of Article 171 (1), the most that can happen is that the decision of disputes relating to counting of votes may not have the protection of Article 171 (1) so as to make it a decision, which shall not be called in question, except in accord ance with such a law. If the Election Tribunal has been entrusted with the decision of disputes as to a counting of votes, the decision is still by a body set up under a law enacted by the Central Legislature, which possesses the necessary authority and power to decide the dispute, though its decision may not have the protection of Article 171 of the Constitution. We, therefore, hold that the decision of the dispute in this case by the Election Tribunal is not without authority. 6. With regard to the second contention it is true that where there is a simple dispute as to the counting of votes, the Election Tribunal would declare that person elected, who has obtained on its finding the majority of votes at the election, and is not entitled to set aside the whoa; election as void. In an election petition, under rule 35 (6) of the Electoral College Rules, 1964 a 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." Normally, in the case of disputes as to counting of votes reliefs (a) and (b) would be granted by the Election Tribunal and the election, as a whole, would be declared void under clause (c), if there has been corrupt or illegal practices or breach of the provisions of the Act and the Rules, so that in terms of rule 36 (1) (a) the result has been materially affected. In this connection, it is necessary to mention that though the Election Tribunal has power under section 60 (2) to make such orders, as it may think fit, this power is subject to any rule made in this behalf, and the relevant rule is 36 (1‑A), which 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 by reason of the failure of any person to comply with or the contravention of any provision of the Act or the Rules. This rule, therefore, guides and controls the power of the Tribunal to make such orders as it may think fit. It is not open to the Tribunal in a simple case of a dispute as to counting of votes to declare the whole election void if on the counting of votes one candidate or the other is entitled to be returned on a majority vote. The Act of declaring an election void would amount to nullifying an election and it is plain that in view of rule 36 (1‑A) the Tribunal does not have any unrestricted, unguided and autocratic power to do as it pleases regardless of the polling. Where, however, corrupt or illegal practices have been indulged in or the provisions of the Act or the rules have been violated, there is power in the Tribunal to declare the election void, if the result is materially affected, which would depend upon the facts of each case. 7. In the present case, though there was a dispute as to the counting of votes, but the allegation made in the petition went beyond a mere dispute as to the counting of votes. On the findings of the Tribunal that four of the ballot papers were misplaced and were not taken into account by the Presiding Officer and that the counting of the ballot papers was not fair, which means that there has been violation of the provisions of the Act and the rules, when there was only a majority of two in the votes obtained by the petitioner as against respondent No. 1, who brought the election petition, the misplacing of four ballot papers could have affected the result of the election. Therefore, this is not a fit case for us to interfere in the order of the Tribunal. (This case is peculiar, because, it cannot be decided who actually obtained the largest number of votes. 8. We also find that the petitioner fought the second election against the respondent and lost. His election petition against the election of the respondent was also dismissed. In these circumstances also, we would not interfere in the exercise of our discretionary jurisdiction in favour of the petitioner. We, therefore, dismiss this writ petition, but there will be no order as to costs. K. B. A. Petition dismissed.