P L D 1966 (W (PLP)

6. The election disputes are to be settled in accordance with the provisions of Chapter III consisting of sections 58, 59 and 60 of the Electoral College Act. Any candidate may by an election petition challenge the election at which he was a candidate. Section 59 (1) provides that for the trial of election petitions, the Commissioner shall, by notification in the official Gazette, appoint an officer to be an Election Tribunal for such area as may be specified in the notification. Section 60 (1) lays down that the Tribunal shall, upon receipt of an election petition, give notice thereof to all contesting candidates at the election. Subsection (2) of section 60 provides that "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 order as it may think fit." It is instructive to advert to the provisions of section 59 (2) as well which says that where the person constitut ing an Election Tribunal is succeeded by another, the trial of a petition shall continue before the persons so succeeding and "any evidence already recorded shall remain upon the record and it shall not be necessary to re‑examine the witnesses who have already been examined and discharged". The decision of the Tribunal on an election petition is final as laid down in sec tion 60(3) and no election can be called in question except by an election petition. An election petition is to be filed in the manner provided by rule 35 of the Electoral College Rules, 1964. It is to be presented, within 30 days next after the publication of the results of the election before the Tribunal either by the candidate in person or by his authorized agent or by registered post. An election petition shall set forth clearly the grounds on which it is based and the relief s sought by the petitioner. Sub‑rule (7) of rule 35 provides that every election petition shall be signed and verified by the petitioner in the manner provided for the verification of plaints in the Code of Civil Procedure, 1908. Rule 36 deals with the trial of the petition. Its sub‑rule (1) lays down that on receipt of an election petition, the Tribunal shall give at least a week's notice to all the respondents named in the petition and "after holding a summary enquiry record its findings". Sub‑rule (1) (A) of rule 36 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 provisions of the Act or these Rules".

7. From the provisions of law just reproduced it is apparent that exclusive jurisdiction has been conferred on the Election Tribunal to settle the election disputes between the candidates at the election to the Electoral College. The Election Tribunal to be appointed under the Act may be any "officer" notified by the Commissioner for the purpose. This appointment need not necessarily be made from among the judicial officers and for the matter of that any officer not at all versed in the administration of justice can be appointed to act as the Tribunal. There is no indication in any of these provisions to show that the Tribunal is hidebound by any of the provisions of the Evidence Act and the Code of the Civil Procedure in the course of the trial of the election petition. In fact a reference to the provisions of sub- rule (7) of rule 35 of the Electoral College Rules, 1964 shows that every election petition is to be signed and verified by the petitioner in the manner provided for the verification of plaints in the Code of Civil Procedure, 1908 and the remaining provisions of the Code have not at all been adopted by the Act and the Rules. In the exercise of its jurisdiction, the Election Tribunal, upon receipt of the election petition, is legally bound to give at least week's notice thereof to the other interested parties, and afford them an opportunity of being heard. The Tribunal is also bound to take the evidence and examine the witnesses produced before it. The Tribunal is required to hold a summary enquiry only and record its findings on the matters in controversy between the parties and make such orders as it may think fit. 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 contra vention of any provision of the Act or the rules the Tribunal shall declare the election to be void. Therefore, it cannot be doubted that in the discharge of its functions the Election Tribunal has to act judicially with some of the trappings com monly known to the Courts of Law in this country. But that fact alone is not necessarily conclusive to show that in reality the Election Tribunal established under the Act is a Court of Law and is bound to act as such. In this respect the ‑powers of the Election Tribunal established under the National and Provincial Assemblies (Elections). Act VII of 1964 are materially different. That tribunal is to consist of three persons, two of whom including the Chairman are qualified to be the Judges of a High Court and the third member is a person who has held the office of a District Judge or Additional District Judge for not less than three years. Any appearance, application or act before the Tribunal may be made by the party or by his duly appointed Advocate or Pleader. Section 66 of Act VII of 1964 specifically provides that subject to the Act and the Rules, every election petition shall be tried, as nearly as may be, in accordance with the procedure for the trial of suits under Code of Civil Procedure and subject to the like restrictions, the Evidence Act is also made expressly applicable for the trial of an election petition. Moreover, the Tribunal has all the powers of a Civil Court trying a suit under the Code of Civil Procedure as laid down in section 68 of that Act. The grounds on which the Tribunal may declare the election of the returned candidate to be void are enumerated in section

72. The nature of and the jurisdiction exercised by the Tribunal established under the National and Provincial Assemblies (Elections) Act VII of 1964 is for all intents and purposes that of a Court. But the nature of the Election Tribunal established under the pro visions of the Electoral College Act, IV of 1964 is conspicuous A by the very absence of all these factors and we are of the opinion that it does not function as a Court but merely as an administra tive Tribunal.

8. In the Full Bench case, Sultan Ali Naghiana v. Mian Noor Hussain (P L D 1949 Lah. 301), it was held by Cornelius, J. (now the Chief Justice of the Supreme Court of Pakistan) that the Election Petition Commission constituted under the Government of India (Provincial Election) (Corrupt Practices and Election Petitions) Order, 1936, Para. III, is to be regarded as a Court. It was remarked: --‑ "It is undeniable that an election petition challenging the election of a Member of a Provincial Legislature raises an issue relating to civil rights between persons within the jurisdiction. It is perfectly clear that by the Corrupt Practices and Election Petitions Order, 1936, the trial of such issues is entrusted exclusively to an Election Petition Commission to be constituted by the Governor as required by the order; the commission determines these issues not by reason of voluntary submission of the parties to its jurisdiction but under the sanction of Law. By express provision in a statutory rule, the Commission is required to resolve the issues in the precise manner which a Civil Court is to follow, in the trial of suits under the Civil Procedure Code. The conclusions reached by the Commission are definite inasmuch as although the avoidance or otherwise of the election does not take place by direct order of the Commission, its opinion as expressed in its report is binding on the Governor who must make an order in accordance therewith, as such an order is by express words in the Order of 1936 declared to be final." But the majority of the Judges composing the Full Bench in that case found that the Election Petition Commission constituted under the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, Part III, was not a Court subordinate to the High Court and observed that "a Court may also be subordinate to the High Court even qua matters which are not subject to the High Court's appellate power if these matters have been entrusted for adjudication to an admittedly subordinate Court as a Court and not to the Presiding Officer of such Court as a "persona designata". Eight years afterwards in Muhammad Saeed v. The Election Petitions Tribunal, West Pakistan and others (P L D 1957 S C (Pak.) 91) the true character of the Tribunal constituted under Para. III of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936 was again examined in some greater detail and Cornelius, J. (sitting as a Judge of the Supreme Court as he then was) in his leading judgment affirmed his earlier views expressed in Sultan Ali v. Noor Hussain already reproduced above and held that an Election Petition Commission satisfies all indicia of a Court and the mere fact that exclusive jurisdiction is given to the Commission to decide certain cases of dispute arising between subjects does not in any manner militate against the acceptability of that conclusion. Among those indicia may be mentioned particularly the following: "(1) To be a Court, the person or persons constituting such Court may be entrusted with judicial functions, that is, of deciding litigated questions according to law; (2) Such person or persons must derive the power of so deciding questions, from the State, and therefore, will be exercising the judicial power of the State; and (3) The appointment of the person or persons constituting a Court should be by the Government these persons should receive payment for their services exclusively out of the Govern ment funds and they should not be liable to renewal by an authority other than the Government." It was held that upon these considerations it would seem that the Election Petition Tribunal in that case was to be regarded as a Court. 8‑A. In the two cases just discussed the tribunal in dealing with an election petition was required to comply as closely as possible with the procedure applicable to the trial of the suits under the Code of Civil Procedure. The principal requirements noted in that connection were that upon receipt of the petition, notices had to be issued to the opposite‑parties, written statements were to be called and statements recorded, after which the issues had to be framed, documentary evidence received in proper manner and the witnesses summoned and examined. The arguments were to be heard and finally the tribunal was required to submit a report to the Government. The opinion of the tribunal was to be effective and the Governor was bound under the Law to issue orders in accordance with the report. The attributes of a tribunal of this nature are different in material respects from those of the Election Tribunal set up under the special provisions of the Electoral College Act, 1964. As already discussed it is required to hold a summary enquiry only; it is not bound by the provisions of the Code of Civil Procedure and the Evidence Act in the trial of the election petition ; it does not even appear if the tribunal has any power to summon the . witnesses although it is bound to record the evidence of the witnesses produced before it. These are some of the features of the Election Tribunal constituted under the Electoral College Act which distinguishes it from a Court of Law.

9. In the Corporation of the City of Lahore v. Mst. Fahmida Begum (P L D 1952 Lab. 258) a Full Bench of the Lahore High Court made an instructive and elaborate survey on the subject and held that the Controller and the Appellate. Authority constituted under the Punjab Urban Rent Restriction Act (VI of 1947) were not Courts. In this connection it was observed that the Controller exercises his jurisdiction by reason of the sanction of the law and not by the voluntary submission of parties to a dispute. He is also concerned with the determination of what may be termed as justiciable issues and the disputes coming up before him are of a civil nature. But these factors do not conclusively establish a Tribunal to be a Court though their absence would clearly negative such a proposition. In that case it was remarked that no exhaustive definition of a "Court" is available in any of the statutes and a reference was made to Shell Company of Australia Limited v. Federal Commissioner of Taxation (1931 A C 275) in which the Privy Council enumerated some negative propositions in the following terms: --‑ "(1) A Tribunal is not necessarily a Court in this strict sense because it gives a final decision, (2) nor because it hears witnesses on oath, (3) nor because two or more contending parties appear before it between whom it has to decide, (4) nor because it gives decisions which affect the rights of subject, (5) nor because there is an appeal to a Court, (6) nor because it is a body to which a matter is referred by another body." The full Bench pointed out that an administrative tribunal may act judicially, but still remains an administrative tribunal as distinct from a Court, strictly so called. 9‑A. Quasi judicial tribunals are not fettered by the technical rules of evidence. The consensus of opinion is that administrative tribunals are fact‑finding bodies and the method of fact‑finding varies from that which obtains in Courts of Law. In the present case the tribunal is bound under the Electoral College Act to record the evidence of the witnesses. It can examine the witnesses on oath but that fact alone is not sufficient for the application of the provision of the Evidence Act, 1872, to the proceedings before the Tribunal. There is nothing in the Electoral College Act to show that the Evidence Act has been made applicable to the trial of an election petition by the Tribunal. Section 1 of the Evidence Act ‑ lays down that it "applies to all the judicial proceedings in or before any Court." "Judicial proceedings" are to be distinguished from the duties of administrative tribunals. As observed by Lopes, L. J. in Dwarkins v. Lord Rokeby (8 Q B 255) "the word `judicial' has two meanings. It may refer to the discharge of duties exercisable by a Judge, by Justices in Court, or to administrative duties which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind‑that is, a mind to determine what is fair and just in respect of the matters under consideration. Justices for instance, act judicially when administering law in Court, and they also act judicially, when determining in their private room what is right and fair m some administrative matter brought before them, for instance, levy a rate." But the proceedings in which only adminis trative duties are discharged cannot be regarded as judicial pro ceeding within the meanings of the Evidence Act.

10. At the same time this does not mean that Tribunals can act arbitrarily and capriciously. The Tribunals especially ill cases where they are required to adjudicate upon the civil rights of the parties are under an obligation to act judicially and are bound to follow the fundamental rules of evidence and fair play which are embodied in the principles of natural justice. They are required to give an opportunity to the party affected, make some kind of enquiry, give a hearing and to collate evidence, ii any, considering all the facts and circumstances bearing on the merits of the controversy before any decision is given by them. These are the essential elements of a judicial approach to the dis pute. Prescribed forms of procedure are not necessary to be fol lowed provided in coming to the conclusions these well‑recognized norms and principles of judicial approach are observed by the tribunal. This is the view taken in the last mentioned Full Bench case of the Corporation of the City of Lahore. In Sayad Shah v. Khuda Baksh (P L D 1954 Lah. 606) a Division Bench has held "that the proceedings held in contravention of the elementary principles of natural justice or of fundamental principles of judicial proceedings are no n-proceedings at all in the eye of Law".

11. In the present case although the provisions of the Evidence Act and the Code of Civil Procedure are not applicable to the enquiry by the Election Tribunal, nonetheless it is charged with the paramount duty to act judicially; to give notice of the election petition to all the interested parties; to hear them at trial of the election petition; it has to hold an enquiry and to record the evidence of the witnesses produced before it; it has got to give its decision concerning the civil right of the parties in the light of the law. Therefore, in this case the main question to be seen is that has the Election Tribunal acted judicially and followed the fundamental rules of fair play and evidence embodied in the principles of natural justice which it was bound to observe in the course of the trial of the election petition?

12. Cross‑examination of witnesses is "beyond doubt th greatest legal engine ever invented for discovery of truth". (Wingmore). The Supreme Court of India in Union of India v. E. R. Verma (A I R 1957 S C 882) has held that in cases relating to departmental enquiries against a public servant, the enquiry officer must give an opportunity to the officer to cross‑examine the witnesses produced against him as a necessary requirement of the principles of natural justice. In this connection Venkatarama Aryar, J. observed: " . . . The law requires that such Tribunals should observe rules of natural justice in the conduct of the enquiry and when they do so their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law. Speaking broadly and without intending to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross‑examining the witnesses examined by that party, and that no material should be relied on against him without being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed." This view was followed by the Supreme Court of India in State of Madhea Pardesh v. Chintaman Sada Shiva Warshan Payan (A I R 1961 S C 1623) and it was remarked that "it is hardly necessary to emphasise that the right to cross‑examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would mean that the enquiry had not been held in accordance with the rules of natural justice". .

13. From the facts of this case discussed in the earlier part of this judgment it will be seen that the two contesting parties produced the affidavits in which the deponents supported the case of the party when they were serving and denied the allegations of the other side. This was done at the initial stage of the proceedings before the Tribunal and it demonstrated that the parties were holding fast to their diametrically opposite versions on the facts in controversy and hence a need for an enquiry into those facts by respondent No. 1 has arisen. But respondent No. 1 did not hold any further enquiry and gave no opportunity to the parties to examine and cross‑examine the deponents in order to elicit the truth. Indeed the petitioner had no information that the election petition was going to be heard and finally disposed off on the first day of the hearing so that. he should come prepared with all his evidence. It does not appear that respondent No. 1 gave any opportunity to the parties to produce their evidence. Nor can it be said that the petitioner failed to avail of any such opportunity.

14. Respondent No. 2 who was the petitioner before the election Tribunal in all produced nine affidavits in support of his allegation and to rebut them the present petitioner produced thirteen affidavits. Both the parties have relied on the provisions of Order XIX of the Code of Civil Procedure, 1908 to assess the evidentiary value of these affidavits. These provisions have no direct application to the proceedings before the Election Tribunal constituted under the Electoral College Act, 1964. Nonetheless on both the sides the parties have invoked before as the general principles embodied in that Order. The learned counsel for respondent No. 2 has argued that having regard to the provisions of that Order respondent No.1 was fully justified in treating those affidavits as evidence of the parties. On the other hand, it has been argued on behalf of the petitioner that no opportunity was allowed to him to cross‑examine the deponents who swore to the affidavits produced by respondent No. 2 and under the circum stance they ceased to have any evidentiary value at all and respondent No. 1 was not entitled to act upon them.

15. Section 30 (c) of the Code of Civil Procedure lays down that subject to such conditions and limitations as may be pre scribed, the Court may, at any time, either of his own motion or on the application of any party order any fact to be proved by affidavit. The conditions and limitations referred to in this section are prescribed in Order XIX of the Code, rule 1 of Order XIX provides that any Court may, at any time for sufficient reason order that any particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable. This rule is followed by an important proviso to the effect that "where it appears to the Court that either party bona fide desires the production of a witness for cross‑examination and that such person can be produced, an order shall not be made authorizing the evidence of such witness to be given on affidavit. Rule 2 of Order XIX further says that upon an application evidence may be given by affidavit, but the Court may, at the instance of either party order the attendance for cross‑examination of the deponent.

16. In this country in Iftikhar Ahmad and another v. University of Karachi and another (P L D 1957 Kar. 635) it was held that oral evidence should be allowed when there is a conflict of testimony which cannot be decided with reasonable certainty on affidavits filed under Order XIX, Civil Procedure Code; but the Court has a discretion in this matter and the deponent need not be subjected to cross‑examination if it is not required in good faith by the opposite‑party. In Sayed Haider Raza v. Sayed Imam Ali Shah and others (P L D 1961 Lah. 880), a learned Single Judge of this Court has held that affidavit‑evidence is permitted only if there is an agreement between the parties that the evidence may be taken on affidavit or under Order XIX, rule 1, Civil Procedure Code, if there is an order of the Court that a particular fact may be proved by an affidavit or that an affidavit of any witness may be read at the hearing. To complete this statement of law, with great respect it may be added, that the proviso to rule 1 clearly lays down that where it appears to the Court that either party bona fide requires the production of a witness for his cross‑examination no order shall be made by the Court authorizing the evidence of the witness to be given on affidavit. In Habib Bux v. Samuel Fita & Co. Limited (A I R 1926 All. 161) Suleman J. (as he then was) has held that ordinarily documents are not proved by mere ex parte affidavits when the person trying to prove then does not submit himself to cross examination, under special circumstances affidavits under Order XIX may be allowed to be read in evidence, but even then if the opposite‑party bona fide desires the attendance of the witness for cross‑examination; he has to appear. Similarly, it was said in Krishna Ayyar v. Madhava Panikkar (A I R 1921 Mad. 381) that an affidavit is ordinarily no evidence, unless the party seeking to use it complies with the requirements of Order XIX. In another case from Madras reported as Gooru Narayana and another v. Vaikuntun Chinna Lakshmayya (A I R 1939 Mad. 1927), it is laid down that affidavits cannot properly be acted upon unless both parties agree to have them treated as evidence. An extreme view was taken by Raghava Rao, J. in Marneedi Setyam v. Masimkku Venkata Swami (A I R 1949 Mad. 689) wherein it was held that the only basis on which the affidavit of a living person not called into the witness box can be acted upon as admissible evidence is that it should be capable of being regarded as a statement in writing complying with the conditions prescribed in section 32, Evidence Act. But with due respect it may be mentioned that this view does not take due notice of the fact that the Evidence Act itself is not applicable to affidavits as mentioned in section 1 of the Act. Shib Sahai v. Tika (A I R 1942 Oudh 350), Kanayalal S. Dadlani v. Megraj Ram Karanji (A I R 1954 Nag. 260), Sheoraj v. A. P. Batra (A I R 1955 All. 638) are consistent in holding that it is open to a Court on sufficient grounds to permit a fact to be proved by an affidavit filed along with an application can be used as evidence of facts alleged therein and it cannot be rejected merely because there has been a verbal denial of the allegations by the opposite party without any attempt to cantrovert them by a counter affidavit or without asking for the attendance of the deponent for his cross‑examination. There is an elaborate discussion of this subject in Sheoraj v. A P. Batra in which it was held that in cases of criminal contempt, the facts may be proved by affidavit. In this case it was observed:‑ " . . .It would thus appear that affidavits are certainly used as a mode of proof though. only at the initial stage of an inter locutory matter. The opposite‑party may file counter‑affidavit or it may demand attendance of the deponent of an affidavit for cross‑examination. If he does neither the affidavit, used initially to start proceed ings, will become evidence in the fullest sense against him. If on the other hand, the deponent of an affidavit does not produce himself for cross‑examination in response to the demand of the opposite‑party it will be denuded of all probative value. Judged in the light of these elementary principles of the law of evidence, it cannot be said that the present applicant's affidavit was reduced to a mere brutum fulmen after initiation of the present proceeding on its basis . . . . . From a careful study of the three last mentioned cases it follows that where the opposite‑party files a counter‑affidavit or asks for the cross‑examination of the deponent, it becomes obligatory for the party relying on the affidavit to produce the deponent in the witness‑box for his cross‑examination and in case he fails to do so the affidavit ceases to have any evidentiary value and cannot be acted upon. Under t he Civil Procedure Code, the Court may order any fact to be proved by affidavit in the manner provided in Order XIX and there are provisions in the Civil and Criminal Procedure Codes (Order XI, rule 8, Order XX, rules 5, 18, 19 Order XXXII, rule 3, Order XXXVIII, rules 1 and 5 and Order XXXIX, rule 1, C. P. C. and sections 526 and 539 (A) Criminal Procedure Code) which require certain allegations of fact to be supported by affidavit. Section 51, Divorce Act, 1889, also permits a party to verify his case by affidavit, but the opposite‑party has a right to cross‑examine him. These affidavits are generally used in support of applications to Court on interlocutory motions which are necessary to be disposed of at a short notice without finally deciding the rights of the parties. In England the rules for the admission of affidavits as proof of facts applies to interlocutory applications only. In this country the application of this rule is not necessarily confined to inter locutory matters only. The safeguards for truth in affidavits are the provisions for the production of the deponent for his cross examination and the provisions of the Penal Law relating to giving of false evidence. Section 1 of the Evidence Act lays down that the Act does not apply to affidavits but to say that the Evidence Act does not apply to affidavits is not the same thing as to say that the affidavits are not evidence. To sum up the position in law is that affidavits can be relied upon by the Courts in proof of particular facts under certain circumstances only. In proceed ings which are not of interlocutory nature, their admission in proof of facts is subject to the proviso (which is an important safeguard for the truth) that in case the opposite‑party controverts the allegations by filing a counter‑affidavit or demands the attendance of the deponent for his cross‑examination, the party relying on the affidavit must produce him in the witness‑box and if the deponent fails to submit to the cross‑examination, the affidavit shall loose all its force as a probative piece of evidence in the case and cannot be acted upon. This view is quite compatible with the principles of natural justice and fair play which confer a very valuable right on one party to cross‑examine his adversary and his witnesses. It is also to be seen that under Order XIX, rule 1, Civil Procedure Code, evidence on affidavit in proof of particular facts is to be admitted in exceptional circumstances for sufficient reasons which should be recorded by the Court; but if either party bona fide desires the production of a witness for cross‑examination and such witness can be produced an order shall not be made authorizing the evidence of such witness to be given by affidavit. We might add that normally counter‑affidavit by a party controverting the allegations in the affidavit produced by his adversary is a sufficient indication of X his intention that he is riot prepared to admit the facts set out in the affidavit and would require the deponent to appear in the witness‑box for his cross‑examination.

17. In the present case, as we have seen, the petitioner controverted the facts set out in the nine affidavits produced by respondent No. 2 by filing 13 counter‑affidavits on his side in the course of the trial of the election petition. In these circumstances the affidavits produced on either side could not be acted upon and read as evidence in the case without calling for the deponents to submit to the cross‑examination by the opposite‑party in order to test their veracity. Therefore, these affidavits were denuded of all their probative value and respondent No. 1 was not entitled to act upon them and the decision by respondent No. 1 is based on no evidence. It was given without affording any opportunity to the petitioner to produce his evidence and is liable to be set aside.

18. One last point that arises in this case remains to be examined. According to the impugned order of the Election Tribunal the six voters namely, Ajaib Hussain (Zeb Hussain), Muhammad Rafiq, Abdul Hafeez, Mst. Noor Elahi, Mst. Bag Bhari and Mst. Zebun Nisa exercised their right of franchise a second time in Unit No. 914 after having already polled their votes elsewhere and they were guilty of illegal practices punish able under section 62 of the Electoral College Act, 1964. But as already pointed out there is no clear finding by the Election Tribunal that all the six votes were polled in favour of the petitioner at the election. There is no doubt that in view of the provisions of section 40 (6) (a) and (b) no voter can vote at an election more than once at the same polling station or at more than one polling station and all votes polled in contravention of these provisions are to be treated as void as required by sub section (7). Consequently, on the finding of the Election Tribunal these six votes are to be deducted from the account of the candidate in whose favour they were cast. But, in the absence of any clear finding by the Tribunal it cannot be assumed that all the six votes were polled for the petitioner and should be deducted from his ballot account. It is, therefore, not possible to say with any certainty that the result of the election was materially affected by reason of this illegal practice.

19. For the reasons discussed above we hold that so far there has been no proper trial of the election petition of respon dent No. 2 and the case requires to be tried afresh in accordance with law. Therefore, we accept this writ petition, quash the impugned order dated 16th of March 1965 passed by respondent No. 1 and declare it to be against law and without lawful authority and send the case back for disposal in accordance with law by the Election Tribunal competent to hear it. In the circumstances of this case the parties are left to bear their own costs. S. Q. Petition accepted.