P L D 1966 (W (PLP)

Hakim Muhammad Sardar Khan and Irshad. Hassan Khan for Petitioner. Ch. Barkat Ali for Respondent No.

2. Sh. Muhammad Ashraf for Respondent No.

3. Dates of hearing: 11th and 12th January 1966. S. A. MAHMOOD, J.‑Dil Muhammad petitioner and Muhammad Din respondent No. 2 contested the election to the Electoral College from Electoral Unit No. 1303, Tehsil Shakargarh, District Sialkot, along with a third candidate named Baloch. In the polling, which took place on the 1st of November 1964, Dil Muhammad obtained 212 votes, out of which 8 were held by the Presiding Officer to be invalid, leaving him with 204 valid votes. Muhammad Din respondent obtained 182 votes, of which 15 were declared invalid, so that he had 167 valid votes. Baloch obtained 122 votes, of which 4 being invalid, he polled 118 valid votes. Thus, Dil Muhammad petitioner was declared elected having secured 37 votes in excess of Muhammad Din respondent, who brought an election petition to challenge the election of Dil Muhammad. The Election Tribunal by his order dated the 8th of April 1965, set aside the whole election as void, and directed a fresh election to be held on the following ground:‑ "The Returning Officer along with relevant record was summoned. He has shown me an application dated 1st November 1964, submitted by Muhammad Din, the petitioner, wherein it has been urged that 35 persons of his own Baradari, who had come to poll their votes, were not allowed by the Presiding Officer to do so on the ground that their votes had already been polled. According to the rules, these persons should have been issued tendered votes in case their votes had already been cast. As this is a material irregularity which has affected the result of the election, I, therefore, accept the petition and declare the election of this Electoral Unit void, as a whole, and direct that fresh election should be held."

2. The above order of the Election Tribunal is impugned on the ground that the allegation that 35 persons, who had come to poll their votes, were not allowed by the Presiding Officer to do so on the ground that their votes had already been polled, was accepted on a more averment made in an application submitted to the Presiding Office without any evidence and without the admission of this fact by the petitioner. The onus of proving the allegation lay on the respondent, and it is surprising that a mere allegation made in the petition should have been accepted by the Election Tribunal. The conclusion of the Election Tribunal, not having been based on any evidence, is not a conclusion at which any Tribunal deciding any matter quasi judicially could have arrived at. In coming to this conclusion the Election Tribunal acted contrary to all rules of evidence and reason and against the known norms of judicial and quasi judicial determination. There can be no doubt in this case that an Election Tribunal acts at least quasi judicially in the determination of election disputes and cannot decide arbitrarily and capriciously as the Tribunal likes. Though subsection (2) of section 60 of the Electoral College Act provides that the Election Tribunal may make such orders as it may deem fit, the power to make such orders is not unrestricted or autocratic, as the power is subject to any rules made to this behalf, and the relevant rule is 36 (1‑A).

3. Rule 36 (1‑A)) of the Electoral College Rules 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 contravention of any provision of the Act or the Rules. It follows that if there has been any contravention of any provision of the Act or Rules, the election 'cannot be declared void unless the contravention has materially affected the result. Therefore, the second contention of the learned counsel for the petitioner is that as accepting the allegation of the petitioner, the result was not affected, since the petitioner had a majority of 37 votes, the Election Tribunal could not declare the election as a whole, to be void. The contention is well founded. The allegation of the respondent was that 35, persons of his Baradari wished to cast their votes, but tendered ballot papers were not issued to them by the Presiding Officer on the ground that the votes had already been cast. Under section 41(1) of the Electoral College Act if a person representing himself to be a voter applies for a ballot paper, when another person has already represented himself to be that voter, and has voted under the name of the person so applying, he shall be entitled, subject to the provisions of this section, to receive a ballot paper referred to as tendered ballot paper in the same manner as any other voter. Therefore, if the allegation be true that tendered ballot papers were not issued by the Presiding Officer there is a violation of subsection (1) of section 41, but the violation did not materially affect the result, for even if 35 votes were to be counted in favour of the respondent, the petitioner had still the largest number of votes. Besides, subsection (2) of section 41 provides that a tendered ballot paper shall, instead of being put into the ballot box, be given to the Presiding Officer and endorsed by him with the name of the persons applying and his number in the electoral roll and set aside in a separate packet endorsed with the name of the candidate for whom he wishes to vote. A tendered ballot paper is not to be counted in favour of the person for whom it was or was intended to be cast. The result of the election is thus declared without taking a tendered ballot paper into account. Therefore, the purpose, which the tendered ballot paper may serve is to show that some bogus person cast a vote in place of the real person, if it is established before the Election Tribunal that the person who obtained the tendered ballot paper is the genuine voter. In order to prove this fact evidence would have to be led and the Election Tribunal would have to be satisfied that the person who came to cast tendered ballot paper, was the genuine voter. In such a case, a vote cast by the other person could be discounted from the count, if the Election Tribunal is satisfied that the same person had not come again to obtain a tendered ballot paper. There was no evidence of any kind before the Tribunal. Therefore, the election of the petitioner could not be set aside on the ground on which it was. It has to be borne in mind that there is no allegation in this case of the commission of any corrupt or illegal practice. The question involved was a simple question of counting of votes and it is obvious that in the count the petitioner had obtained the largest majority and his election could not be declared void in the circumstances of this case.

4. The learned counsel for Muhammad Din respondent relies on the decision of Supreme Court in Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan and others (P L D 1966 S C 1), and contends that this Court has not the jurisdiction to interfere in the' order of the Election Tribunal. This contention is not well‑founded. That was a case under the National and Provincial Assemblies (Elections) Act, 1964, while the present case falls under the Electoral College Act. The former Act has been enacted in conformity with the provisions in Article 171 of the Constitution of Islamic Republic of Pakistan, whereas the Electoral College Act is materially different. It was by reason of Article 171(1) that the learned Judges of the Supreme Court came to the conclusion that the jurisdiction of this Court and the Supreme Court was barred (with certain reservations according to some of the learned Judges). Article 171(1) provides as under:‑ "171(1) Subject to clause (2) of this Article, provision may be made by law‑ (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; and (b) for other disputes arising in connection with such an election or referendum to be finally determined by a tribunal established for that purpose, and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election or referendum shall not be called in question except in accordance with such a law. (2) . . . . . . . . . . . (3) . . . . . . . . . . ." This Article contemplates the making of a law in connection with the counting of votes at an election to be finally determined by the Commissioner or an Election Commission and all other disputes to be finally determined by a Tribunal established for that purpose. In the, National and Provincial Assemblies (Elections) Act, 1964, this distinction has been borne in mind. There is not only provision in section 38 of the Act for a recount of the ballot papers by a revising Authority, but section 53 provides for an appeal relating to the counting of votes to the Commissioner separate election petition lies under section 57 of the Act to a tribunal to challenge the election on the grounds set out in section 72 of the Act. The relief, which the Tribunal may give is stated in section 71, and the relief which the Commissioner may grant is stated in subsection (4) of section

53. There are, therefore, separate provisions for decision of disputes relating to counting of votes and other disputes as required by Article 171(1) of the Constitution, so that the operative part of this Article comes into operation providing that the validity of such an election shall not be called in question except in accordance with such a law, and no dispute arising in connection with such an election shall be decided otherwise under such a law.

5. Under the Electoral College Act, ballot papers are counted under section 45(l) in the presence of the candidates or their polling agents, and under section 47(2) the Presiding Officer shall obtain signatures of the contesting candidates or their agents as may desire to sign on each packet. These two provisions are intended to guarantee a correct count, nonetheless disputes arise as to the count or as to the ballot papers, which may have bee declared as invalid and vice versa. For the determination of the disputes as td count, no provision is made in the Electoral College Act for their decision by the Commissioner or the Election Commission. All disputes, whether relating to count or other disputes, have to be determined by the Election Tribunal. An election may be challenged by an election petition under section 58(2) to be decided by an Election Tribunal appointed under section 59,, by the Chief Election Commission. The Tribunal decides the election petition under section 60(2) and the relevant rule guiding its decision is 36 (1‑A), as already stated Therefore, the Electoral College Act is not an Act enacted in conformity with Article 171(1) of the Constitution. Consequently, at least in respect of decisions as to disputes relating to count, the decision of an Election Tribunal cannot have the finality contemplated by Article 171 of the Constitution.

6. We are fortified in the conclusion that the jurisdiction of this Court in the case of decisions by the Election Tribunal appointed under the Electoral College Act is ~ not barred by information conveyed to us that a learned Bench of the Supreme Court did not grant Special Leave to Appeal against the decision of this Court reported as Muhammad Akram v. Captain C. A Saeed, Deputy Settlement Commissioner and Election Tribunal, Gujrat (P L D 1965 Lah. 703), which set aside an order of an Election Tribunal appointed under the Electoral College Act.

7. We may also mention that as a result of the order of the Election Tribunal, declaring the election void, a fresh election was held on the 10th of June 1965, for the holding of the election was not stayed by this Court, even though the petitioner had moved for stay of the election, and in this election Dil Muhammad petitioner and Muhammad Yusaf along with two others participated. Muhammad Yusaf having obtained 305 valid votes, was declared elected as against 264 votes obtained by the petitioner. No election petition has been filed by the petitioner to challenge his election and on the application of Muhammad Yusaf he has become a party to this writ petition. His learned counsel relying on Waliullah Auhad v. Controller, Bahawalpur and another (P L D 1960 B J 10), argued that as he had not been made a party to the petition by the petitioner a writ will not issue, but since Muhammad Yusaf has himself become a party, this case is of no help to him. The learned counsel also relied on Rehmat Ullah and another v. Pir Shahzada and three others (P L D 1960 Pesh. 40), where a relief for writ was refused, because the petitioner had not disclosed that a suit and an appeal to the High Court on the same facts had been dismissed, but this is not the case here. H6 also relied on Ch. Altaf Husain and another v. The Additional Settlement Commissioner and another (P L D 1965 S C 68), but this case has no relevance for our purposes. The learned counsel also contended that by participating in the second election the petitioner was estopped by his conduct from challenging the election of Muhammad Yusaf, but there is no question of estoppel by conduct. The petitioner did all he could do to prevent a second election being held, and if he participated in it, he cannot be penalised for it. He is entitled to have his present writ petition decided on its merits, and if his election is not set aside, the election of Muhammad Yusaf would be no election. We are not inclined to hold, in the facts and circumstances of this case, that the petitioner has disentitled himself to the grant of relief in this writ petition by his participation in the second election.

8. We, therefore set aside the decision of the Election Tribunal. The learned counsel for Muhammad Din respondent also contended that he had made other allegations in his election petition, which have not been noticed and pronounced upon by the Election Tribunal. We would, therefore, remit the case to the Election Tribunal for fresh decision. The petitioner will have his costs from respondent No.

1. K. .B. A. Petition accepted.