1968 SCMR 233 (PLP)

S. A. RAHMAN, J.-This is an appeal by special leave from an order passed by the High Court of East Pakistan at Dacca, on a petition under Article 98 of the Constitution. The relevant facts may be briefly summarised. The appellant Abdur Rauf Majumdar and the fourth respon dent, Siddiq Ahmad, were candidates for election to a Unit of the Electoral College. The appellant obtained 158 votes as against 134 secured by the respondent. The appellant was duly declared as elected. His election was challenged by a petition before the Election Tribunal, on behalf of Siddiq Ahmad. The Tribunal held that because of various irregularities committed during the course of the election, the election should be set aside as a whole. Against this order, the appellant went up to the High Court on a petition under Article 98 of the Constitution. The High Court declined to interfere with the order of the Tribunal and the rule was discharged without order as to costs. Special leave to appeal was granted to consider the question whether the High Court was right in counting the 9 tendered votes, to make up the total of 24 doubtful votes which had been set against the appellant's majority for supporting the order for a fresh election. In the election petition before the Tribunal, the respondent had alleged that the Presiding Officer at the polling booth, Mr. Mahbubur Rahman Chowdhury, being a neighbour of the appellant's brother, had favoured the appellant at the election and committed irregularities. As an instance of his partiality, it was mentioned, that he did not allow the respondent to appoint an agent in the person of one, Tofail Ahmad, in complete violation of the law. He further asserted that during the voting, four bogus voters were sent in on behalf of the appellant whose identity was challenged by the respondent; that there was double voting by some persons and further that there was false personation by others. The learned Tribunal, after examining the evidence in the case, found that the respondent had objected to the appointment of Mr. Mahbubur Rahman Chowdhury as the Presiding Officer, by a petition submitted to the Returning Officer. However, he did not accept the allegation that the Presiding Officer did not allow Tofail Ahmad to be appointed as agent for the respondent, as Tofail Ahmad was not examined as a witness in the case. He further recorded the finding that the respondent had'challenged four votes. Only the respondent, as his own witness, stated that out of these four voters, some were either fictitious persons and some were false personators. Apparently those persons them selves who were the genuine voters, were not examined in support of the allegation. As many as 9 votes were tendered and of them, according to the learned Tribunal, 5 intended to vote for the respondent and 4 for the appellant. Three voters figured twice in the Electoral Rolls and they had therefore, voted twice. 8 other voters had voted both in the disputed unit and other Units of the same Union, in violation of section 46 of the Electoral College Act. Lastly it was found that instead of Jahur Ahmad, voter No. 156 who had died before the election, someone else had cast the vote. The conclusion drawn by the learned Tribunal, on these facts and circumstances was that many irregularities were committed in the election which had materially affected the result of the election. This finding is challenged on behalf of the appellant by Mr. Gholam Hafiz. The calculations made by the High Court proceeded on the assumption that the three persons whose names appeared twice in the Electoral Rolls and who had therefore, voted twice, were responsible for 6 invalid votes. This assumption appears to us to be erroneous. Section 40 of the Electoral College Act, 1964, provides in subsections (6) and (7) as follows;- (6) No voter shall vote at an election a. more than once at the same polling station ; or b. at more than one polling station. (7) All votes cast in contravention of subsection (6) shall be void. It will be noticed that subsection (6) does not say that all votes' cast by a person who contravenes subsection (6) shall be void. It seems to us that the first votes cast by these three persons were 8 valid and only their second votes were invalid, and came within the mischief of subsection (6). The votes cast by these three Persons therefore, could count only as 3 invalid votes and not 6) as the High Court held. There was good evidence for the finding of the Tribunal that vote of one person who had died before election, had been cast by someone else. This was, therefore, the clearly an invalid vote. It also appears that the Tribunal's finding that 8 other voters had voted in this constituency besides voting in other constituencies is also based on some evidence though the matter could have been further clarified by mentioning dates of the various elections involved. There was also in the evidence, led on behalf of the respondent, proof of another false personation. Adding up all these invalid votes the total comes to 13. Regard ing the 9 tendered votes which appear to have been included in the number of invalid votes by the High Court, it may be observed that no evidence was led to sho Al that the persons who had been given these tendered votes, were the genuine voters and those who had cast votes already, were personating for them. The persons concerned were not producedin the witness box in support of this allegation. It could not be said therefore beyond any doubt that the persons who were given the tendered votes, were the genuine voters or that the votes cast earlier were invalid in the absence of any such evidence. The total tally of the invalid votes therefore, does not exceed 13. The majority obtained by the appellant was 24 votes. It is then impossible to agree; with the learned Tribunal that the irregularities or illegalities involved in these invalid votes had materially affected the result of the election. As for the charge of partiality against the Presiding Officer, the mere fact that he was a neighbour of the appellant's brother, was not sufficient to raise a presumption of dishonesty- against him. No specific act of partiality was brought out in the evidence against this officer. It may be clarified that the three men whose names were entered twice in the Electoral Rolls, were not challeng ed at any time on behalf of the respondent, though the latter admitted that he was present at the polling booth all the time. The Presiding Officer may not have been able to recognise them as the persons who had already voted when they came for the second time to vote. There is no other circumstance proved on record from which an inference of partiality could be drawn against the Presiding Officer. In these circumstances it is difficult to agree with the High Court that the order of the Tribunal was lawful. Rule 36 (1-A) reads as follows :- "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 provision of the Act or these rules." As has been observed above, all that has been established is that some 13 invalid votes were cast during the election as against the 24 votes' majority secured by the appellant. It is not even known for whom these invalid votes were cast. In the circum stances, the finding of the Tribunal rests on.no evidence that the result of the election had been marterially affected. His order consequently could not be sustained as a lawful order. We allow this appeal and set aside the orders passed by the High Court and the Tribunal, but leave the parties to bear their own costs in this Court. Appeal accepted.