P L D 1966 (W (PLP)

S. ANWARUL HAQ, J.‑

By means of this petition under Article 98 of the Constitution the petitioner seeks to challenge the correctness and legality of an order passed by the Election Tribunal, Thatta or the 13th May 1965, accepting an election petition filed by the Respondent No. 2 Fidahussain Shah in respect of the election of the petitioner to the Electoral College from Electoral Unit No. 225, Taluka Mirpur Bathoro in Thatta District. The petitioner had secured the highest number of votes, namely, 156 as against Respondent No. 2 who obtained 91 votes and Respondent No. 3 who obtained only 36 votes. The election of the petitioner was challenged by Respondent No. 2 on several grounds, but all of them need not be stated here, for the Election Tribunal has set aside the election only on the following grounds: (a) that undue influence was brought to bear on the lady voters of this Unit due to an agreement between all the contest ing candidates to the effect that the lady voters shall not cast their votes at all, and that in pursuance of this agreement not a single lady voter had cast her vote ; and (b) that two polling agents were allowed to be appointed by the present petitioner instead of one as permitted under section 31 of the Electoral College Act, 1964.

2. The learned Tribunal also commented adversely on the order of the Returning Officer changing a polling officer at the eleventh hour, but there is no clear finding that this fact had in any manner materially affected the election.

3. The learned counsel for the petitioner has raised the following points before us (a) that there was no evidence to prove the alleged agreement between the contesting candidates so as to prevent the lady voters from casting their votes ; (b) that in any case such an agreement would not amount to undue influence as defined in section 65 of the Act ; and (c) that the presence of two polling agents of the petitioner did not in any manner materially affect the result of the election.

4. We may say at once that the third contention is well‑founded. There is no finding by the Election Tribunal that the presence of the second polling agent had any material bearing on the result of the election. The election could not, therefore, have been set aside merely on the ground that an irregularity was committed by the Presiding Officer in the matter of permitting two polling agents to the petitioner.

5. As regards the first contention, we consider that we cannot go behind the finding of fact recorded by the Election Tribunal to the effect that there was an agreement between the contesting candidates not to produce lady voters for casting their votes. It is true that the election petition itself in clause (b) of para 2 did not make an allegation in these terms, and instead the statement made there was that the presiding officer adjourned the casting of votes by females to 2 p.m. with the result that most of the lady voters, who had turned up at the polling station, went away and did not return in the afternoon. From the statement made by the Presiding Officer before the Election Tribunal it, however, transpired that the true situation was that the candidates had themselves made an agreement under which the lady voters were not allowed to cast their votes. We find, however that without further evidence, which is missing from the record, it could not be held that this agreement fell within any of the clauses of section 65 of the Act which defines the term "undue influence". It was contended by the learned counsel for the Respondent No. 2 that the case fell within the purview of sub section (3) of section 65, namely, that by abduction, duress or any fraudulent device or contrivance the voters were compelled, induced or prevailed upon to refrain from voting. The argument is that the agreement deposed to by the Presiding Officer was in the nature of a contrivance to prevent the lady voters from voting. We find, however, that the word 'contrivance' used in the opening sentence of subsection (3) of section 65 is qualified by the word 'fraudulent' which precedes the earlier word device. In the present case, there is no evidence that the agreement was fraudul ent in any manner ; on the contrary, it may be a purely honest agreement, based upon the social scruples of the contesting candidates, to prevent their womenfolk from appearing at the polls. We consider that the Election Tribunal was not correct in holding that the agreement amounted to undue influence.

6. However, the matter does not rest here. Even if the agreement did not amount to undue influence within the meaning of section 65 of the Act, the fact remains that all the female voters were prevented from casting their votes and the question, therefore, which really falls for determination in this case, is whether this fact has materially affected the result of the election. It is common ground between tile parties that there were 57 female voters in all in this Electoral Unit. The difference) between the votes obtained by the petitioner and Respondent No. 2 is 65 and, therefore, even if all the 57 female voters had cast their votes in favour of Respondent No. 2, the petitioner would still remain the candidate with the highest votes and, therefore, entitled to be declared elected. In other words, this is a case where the abstension from voting by the female voters has not materially affected the result of the election. On this vices of the matter we consider that the Election Tribunal was not correct in setting aside tile election of the petitioner who would remain the candidate with the highest number of votes in any event.

7. For the foregoing reasons, we would declare the order of the Election Tribunal dated the 13th May 1965 to be without lawful authority and of no legal effect. As a consequence the, petitioner continues to be a member of the Electoral College from the Unit concerned. The petition is, therefore, accepted but the parties are left to bear their own costs. K.B.A. Petition accepted.