1998 PLP 25 (MLD)

Total Number of Votes. Votes Cast with P.C.

1. Primary School Hader Kash 4 1826 128 7%

2. School Hala Chakol 20 1767 37 2%

3. Primary School Karez Sasool 33 1084 63 5.81%

4. School Dado 45 752 39 5.18%

5. Improvised Dobey 46 1486 28 1.88%

6. Improvised Mari Bhit 48 777 47 6.04%

7. Improvised Rar 481 562 73 2%

8. Improvised Hazar Gangi 49 948 14 1.476 %

9. Goroo Bidrang 32 693 20 2.8%

10. Aabi Noghai 39 2474 333 13.45% It may be seen that in some Polling Stations mentioned above the percentage was even less then the Polling Station Nos.32 and 39, allegedly the people were defranchised by shifting the Polling Stations from the places notified by the District Returning Officer. Under section 70 of the Act, it is not enough to prove that any provision of the Act was not complied with or some irregularity was committed by Election Staff but it has to be affirmatively provide that by that act the election was materially affected. Neither it can be presumed that by not complying with the provisions the votes of the petitioner would have been increased and similarly the percentage of Respondent No.3 votes have decreased. In this regard the case of "Paokai Haokip v. Rishang and others" reported in AIR 1969 SC 663 (paras. 10 & 11) may be referred. Its relevant paras. are reproduced hereinbelow:‑‑ "Therefore, what we have to see is whether this burden has been successfully discharged by the election petitioner by demonstrating to the Court either positively or even reasonable; that the poll would have gone against the returned candidate if the breach of the rules had not occurred and proper poll had taken place at all the polling stations including those at which it did not. The evidence in this case which has been brought by the election petitioner is the kind of evidence which was criticised by this Court. Witnesses have been brought forward to state that a number of voters did not vote because of the change of venue or because of firing and that they had decided to vote en block for the election petitioner. This kind of evidence is merely an assertion on the part of a witness, who cannot speak for 500 votes for the simple reason that as this Court said 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 votes will go to one or the other of the candidates. We cannot therefore, accept the statement even of a headman that the whole village would have voted in favour of one candidate to the exclusion of the others. This conclusion is further fortified if one examines the polling pattern in this election. To begin with, it is wrong for the election petitioner to contend that of the 6726 votes which were not cast, he would have received all of them. The general pattern of polling not only in this constituency but in the whole of India is that all the voters do not always go to the polls. In fact, in this case, out of 2,19,554 votes, only 1,20,008 cast their votes

" As it has been observed hereinabove that only non‑compliance of any provision is not enough to declare the election void but it has to be proved that by non‑compliance the election was "materially affected". The burden to prove that the result of the election had been materially affected due to non‑compliance with the provisions of the Act or Rules thereunder, is on the person who seeks to challenge the election of the Returned Candidate. In this view I am fortified by the judgment of Supreme Court of India reported in AIR 1954 SC

513. Relevant part (Paras. 6, 7 and part of para. 9) is reproduced as under:‑‑ "In C.M. Karole v. B.K. Dalvi, Doabia's Election cases Vol. l (P.178), the Tribunal held that the onus of proving that the result had been materially affected rests heavily on the petitioner of proving by affirmative evidence that all or a large number of votes would have come to the returned candidate if the person whose nomination had been improperly accepted had not been in the field; The case of Jagdish Singh v. Shri Rudra Deolal', Gazette of India (Extraordinary) October 13, 1953 was one under section 100(l)(c) of the Representation of the People Act. It was held that the question should always be decided on the basis of the material on the record and not on mere probabilities. The Tribunal distinguished between an improper rejection and an improper acceptance of nomination observing that while in the former case there is a presumption that the election had been materially affected, in the latter case the petitioner must prove by affirmative evidence though it is difficult, that the result had been materially affected. But we are not prepared to hold 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. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. " In the instant case, the petitioner neither alleged in his petition nor has produced any evidence that if the abovementioned polling stations were not changed then the voters of the area would have voted for him, as such, the votes secured by the Returned Candidate would have been reduced or the secured votes of the petitioner would have increased. Though the petitioner had filed some affidavits with the petition, but he did not produce them as witness to prove the contentions thereof. In this regard I am fortified by PLD 1986 Journal

22. Relevant para. is re‑produced herein below:‑‑ "It is noteworthy that the petitioner had secured 446 votes only whereas the returned candidate polled 11000 votes more than those secured by the petitioner. It, therefore, follows that the result of election was not materially affected when the returned candidate had admittedly secured more than 50% of the total number of votes polled at the relevant constituency. Even the petitioner did not allege in this petition that petitioner's voters had cast their votes in favour of the contesting candidates, or that the number of votes secured by the rival candidates would have been reduced. In the absence of specific averment to that effect, m the election petition and evidence produced in support thereof, it cannot be concluded that the result of election has been materially affected. The election of a returned candidate cannot be set aside because of an irregularity on the part of the election officials unless it is found that such an irregularity has materially affected the result of election. In the instant case, the petitioner could not prove failure of any person to comply with any provision of the Act or the Rules thereunder nor the prevalence of extensive corrupt or illegal practice at the election materially affecting the result of election. In these circumstances, neither the voters of the constituency who had exercised their right of franchise nor the respondent who had polled highest number of votes can be penalised for the mistake or the negligence of the petitioner, as otherwise it would amount to disenfranchising the genuine voters who had apparently favoured the respondent as compared to petitioner during the election " Their Lordships in the case of "Riaz Ahmed v. Election Tribunal" reported in PLD 1966 (W.P.) Lahore 839 has ruled that "it is significant that the rules provide 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 invlaidation of many votes by reason of breach or violation of 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. As has been contended by petitioner's counsel that the provisions of section 8 of the Act are mandatory in nature as the word "shall" has been used, therefore, according to him when statute provides a procedure for doing a thing in a particular manner that thing should be done in that manner and in no other way or it should not be done at all. Such statute prohibits doing of thing ire any other manner particularly when a set procedure has been laid down for preparing the list of Polling Stations 15 days prior to the polling day. To meet with this proposition of law I would like to quote to the judgments reported in PLD 1987 SC 213 and 1987 SCMR 1987, and Election Tribunal of Balochistan in the case of "Mir Behram Khan Marri v. Nawabzada Mir Gazain" wherein it was held that non‑compliance of any provision of the Election laws, ipso facto does not furnish a ground for declaring the election as a whole void. The relevant para of the judgment reported in 1996 CLC 963 (last para) is as under:‑‑ "It is settled principle of law that non‑compliance of any provision of the election law, ipso facto does not furnish a ground for declaring the election as a whole void as each case has to be disposed of, on its own merits, keeping to view the material so brought on record. Besides, the election laws are generally directory in nature, therefore, departure from any provision, if it has not caused prejudice, would not be a ground to grant the relief. Reference in this behalf is made to 1987 SCMR 1987 as well as PLD 1987 SC

213. For these reasons I see no force in the contention of learned counsel for the petitioner." Mr. Iftikhar Hussain Gelam further contended that since section 8 of the Act is mandatory in nature as the word "shall" has been used, therefore, iv should be given mandatory effect. In this regard it may be noted that subsection (4) of section 8 imposes a condition that Polling Station shall be situated in a Government building. If Government building is not available then the Polling Station shall be set up on a public property. It seems that the Returning Officer before submitting the list of the proposed Polling Stations had not visited the Polling Stations to see whether any Government building was available for holding elections or not. Nor the District Returning Officer had taken pain to visit the proposed Polling Stations before publishing the final list of the Polling Stations. Most probably the list was prepared on the basis of previous record which was available with them. When the Polling Staff first time on the polling day visited the Polling Stations no Government building was either available, if available it was in a dilapidated condition as it has come on record, therefore, the Presiding Officers shifted the Polling Stations to the new school building constructed in the place of old ones. Now, it has to be seen that under the circumstances mentioned hereinabove every provision of the Act is to be given mandatory effect: Honourbale Supreme Court in the case of "Dr. Sher Afgan v. Amir Hayyat and others" (1987 SCMR 1987) has observed that the case of each enactment has to be construed in the light of general object intended to secure the subject‑matter and the importance of the provisions and that it can be decided whether enactment is imperative or only directive. relevant para reads as under:‑‑ "It may here be observed that we have not come across any rule of interpretation in the text books, nor was any such rule pointed out to us except in the cited cases that every provision in the body of the Act is to be given mandatory effect. On the contrary the text books laid down many tests for determining whether a particular provision in an enactment is mandatory or directory. In this behalf reference may be made to the case of Jamshed Ahmad Khan (supra) paragraphs 9 and 10 in which a quotation from the case of Liverpool Borough Bank v. Turner (1861) 30 LJ Ch. 379) has been reproduced to the effect that no universal rule can be laid down as to whether mandatory enactments shall be construed directory only or obligatory with an implied nullification for disobedience. The case of each enactment has to be construed in the light of the general object intended to be secured, the subject matter and the importance of the provision and then it can be decided whether the enactment is imperative or only directory. " Even if it is presumed for the time being that both the Polling Stations were shifted in violation of the provisions of the Act on the following day, i.e. 3‑2‑1997, then the question for consideration will be whether such breach has materially affected the result of the election. As it has been sufficiently discussed hereinabove that mere breach of any provision of the Act of the Rules, is not sufficient to declare an election void. The petitioner is required to establish (i) that the breach of the provision of the Act has been committed, and (ii) that due to such breach the result of the election has been materially affected. In this regard reference can be made to PLD 1986 Journal

146. In view of the above discussion I do not see any force in the petition which is, therefore, dismissed. However, parties shall bear their own costs. A.A./158/E Election petition dismissed.