P L D 1967 Dacca 644 (PLP)

A. M. SAYEM, J.‑In this rule the petitioner, who succeeded in an election to the Electoral College, challenges the validity of an order of the Election Tribunal which set aside his election. The petitioner and three others, including respondent No. 3, contested the election to the Electoral College from Unit No. 10 of Kathi Union Council, within P. S. Gopalganj. The petitioner secured 148 votes as against 142 secured by respondent No. 3, 130 by respondents Nos. 2 and 5 by respondent No.

4. It is not disputed that out of 787 voters, 420 took the ballot papers from the Presiding Officer and 415 cast their votes in the manner just indicated, and that the remaining 5 did not place their ballot papers in the box. Upon counting of the votes the Presiding Officer declared the petitioner elected, and the result so declared was published in the official Gazette on the 15th November 1964. Respondent No. 2 Abdul Wahab Khan filed the election petition before the Election Tribunal on grounds, inter alia, that there was a riot near the enclosure at about 12‑30 p.m. on the date of the election and a man named Serajul Huq was murdered, and further that as a result of the murder the voters got panicky and left the polling station without casting their votes. The petitioner filed an objection to the petition before the Election Tribunal, alleging that every voter present at the polling station cast his vote, that there was no female voters at all in the polling station, that there was a quarrel between the supporters of various candidates after the poll, that a man died of hysteria far away from the enclosure, and further that the polling continued uninterrupted till the scheduled time, after which the counting of ballots took place in the presence of all the parties with the result that the petitioner was declared duly elected. Before the Tribunal the petitioner examined 5 witnesses including himself, and respondent No. 2 who filed the election petition also examined himself and four other witnesses. The election Tribunal called for a report from the Presiding Officer. On a perusal of the entire evidence and the report of the Presiding Officer the tribunal held that there was a serious quarrel followed by furious fighting between the parties over the voting of some persons resulting in the murder of one Serajul Huq Kazi, and that during the melee the election enclosure was broken and some voters, both male and female, left. It further accepted the case of respondent No. 2 (petitioner before it) that the murder took place at about 12‑30 p.m. The Tribunal also found that out of 787 voters in all registered in the Unit, only 415 cast their votes, so that it was only 52 % of the votes that were actually cast in the said election. The Tribunal observed that things were not smooth and that the trouble and the murder in question took place at about 12‑30 p.m., and that this being so it was natural under ordinary circumstances that the remaining voters would leave at once without waiting for casting their votes. In view of its above findings the Tribunal allowed the election petition and set aside the election. In support of the rule Mr. K. M. Ahmed contends, firstly, that the order of the Tribunal is not sustainable in view of the fact that very important aspects of the evidence did not engage the Tribunal's attention. In this connection he submitted that although the petitioner had examined himself and 4 witnesses before the Tribunal, there is no reference to their evidence in the impugned order. Secondly, he contends that under section 34 of the Electoral College Act it was the polling officer who was to take a decision as to whether to adjourn the poll in certain circumstances. Learned Advocate submits that the very fact that the Presiding Officer did not adjourn the poll clearly indicates that there was no trouble in the polling station. In this context he attempted to place before us the report of the Presiding Officer addressed to the Returning Officer. Thirdly, Mr. K. M. Ahmed has claimed that the Tribunal ought to have considered a statement appearing in the report of the Presiding Officer that there was an understanding arrived at amongst the contesting candidates to the effect that female voters would not be brought to the polling station. Learned Advocate contends that bad the Tribunal considered this statement of the Presiding Officer the Tribunal would have found satisfactory explanation for the abnormally low percentage of votes cast in the election. Mr. K. M. Ahmed also submits that there is no evidence on record to suggest that any voter who had come to the polling station had to leave the station without casting his vote because of the quarrel and riot. Lastly, he has contended that the Presiding Officer's report forwarded to the Tribunal was not considered by the Tribunal in its entirety, and that it was only a portion of the report that was considered resulting in the Tribunal's reaching an erroneous conclusion. We find no substance in any of the contentions raised in support of the rule. It is not correct to say that the Tribunal was oblivious of the evidence that was led in support of the petitioner's case. It appears from the impugned order that the Tribunal noticed that the petitioner before us, i.e. the returned candidate examined 5 witnesses, including himself, and that his case was that no doubt there was some altercation, but that was outside the booth and that no murder took place, the man who died having died due to hysteria and away from the enclosure. This appears at page 36 of the brief. At page 37 again the Tribunal has said "The defence case that there was no murder, that Siraj Kazi died of hysteria, that the election went on smoothly without any interruption and that the enclosure was not broken at all, etc. cannot be believed in view of the very clear evidence of the petitioner and the witnesses". The Tribunal then referred to the two F. I. R.'s relating to the occurrence. Thereafter the Tribunal referred to the report of the Presiding Officer in which the fact of murder was admitted, although according to that report the murder took place after the election. The Tribunal was not prepared to believe that the murder took place after the election, as was stated in the report of the Presiding Officer, because that was not the case of any of the parties before the Tribunal. In addition, the Tribunal con sidered the evidence of the 5th witness examined by respondent No. 2 (petitioner before the Tribunal). The Tribunal noticed that this witness was a sitting M. P. A. and recently he was elected to the District Council. The Tribunal thought that this witness's evidence ought to be relied upon. The Tribunal proceeded to say in respect of this witness that he was a res pectable witness and that he had clearly stated of the murder and the hour of Siraj Kazi's death which finds corroboration from other witnesses. In addition to the evidence of this witness, the circumstance that a low percentage of votes was cast was also taken into consideration. It will, thus appear that on an appraisal of the evidence the Tribunal came to the conclusion that the election was badly interrupted and obstructed at 12‑30 p.m., so that many had not had the opportunity of casting their votes. It is conceded, as found by the Tribunal, that five of the voters who collected their ballot papers could not or did not cast their votes. Hence the finding that the incident must have created a great panic in the mind of the public, so that voters could not participate in the election cannot be said to be unreasonable or without evidence. The entire evidence on both sides appears to have received proper consideration by the Tribunal. The contention that since the polling officer did not consider it necessary to adjourn the poll the Tribunal's finding that the trouble or the affray was of such dimensions as to keep the voters away from the booth cannot be sustained is also without substance. Section 34 of the Electoral College Act says that if at any time the polling at the polling station is interrupted or obstructed for reasons beyond the control of the polling officer he shall stop the poll. The Tribunal observed in its order that the polling officer himself in his report had admitted the fact that a death took place in the affray. Such being the position, the polling officer should have adjourned the poll, and no exception can be taken to the finding of the Tribunal in this connection. As to the complaint that in connection with the circumstance that a low percentage of votes was cast the tribunal ought to have taken into consideration the remark of the Presiding Officer that an understanding had been reached that female voters would not be brought to the polling station, it will be suffice to note that apart from such an understanding being illegal there is no' evidence on record, except the bare statement in the report of the polling officer of such an understanding. Neither the petitioner said anything in his evidence nor did so any of his witnesses, nor was any such case made in the objection petition filed before the Tribunal by the petitioner. The other complaint that the Tribunal erred in allowing evidence being led on the question if the enclosures were broken in the affray since no such allegation was made in the election petition, it should be noted that the case of the petitioner himself is that the respondent No. 2 in his election petition had alleged fierce fighting between the parties resulting in one person's death. The breaking of the enclosure is one of the details involved in the fight. We do not think that omission to mention this particular fact in the election petition could stand in the way of evidence being led on that particular. In our view, the Tribunal was within its jurisdiction in arriving at conclusions that it did, upon preferring certain pieces of evidence to certain others. The points raised in support of the rule are all questions of fact not generally permitted to be raised in writ jurisdiction. We find no merit in this rule, which is discharged, but without any order as to costs. The rule having' been disposed of, there need also be no order on the petition for ad interim stay filed by the petitioner. SALAHUDDIN AHMED, J.‑I agree. K. B. A. Rule discharged.