P L D 1968 Supreme Court 331 (PLP)

S. A. RAHMAN, C. J.‑This is an appeal, by special leave, from an order passed by the High Court of West Pakistan, on a petition under Article 98 of the Constitution. The learned Judges of the High Court declined to interfere with the order of an Election Tribunal, which had set aside the election to the Electoral College at which the appellant, Abdus Sattar Rana, had been successful in obtaining the majority of the votes polled. Special leave to appeal was granted in this case to consider the contention that the result of the election could not be said to have been materially affected by the irregularity or mal‑practice A found to exist in this case by the Election Tribunal. The election in this case related to Electoral Unit No. 763, Renala Khurd, District Montgomery. According to the marked voters' lists, ballot papers had been issued to 183 women voters and to 338 male voters, the total number of ballot papers thus coming to 521. However, from the ballot boxes of the appellant and the respondent, 599 votes were recovered, 345 being found 1n the box of Abdus Sattar and 254 in that of Muhammad Khan, respondent. It thus appeared that 78 excess votes were found in the boxes over and above those actually issued to the voters. On this fact, the learned Election Tribunal held that this must have been the result of some mal‑practice or irregularity in the conduct of the election. There was apparently no evidence, and no finding was given, as to who was responsible for this state of affairs. The learned Tribunal, however, went on to say, without giving any reasons, that the irregularity or the mal practice committed, bad materially affected the result of the election. He, therefore, declared the election as a whole to be void and directed the holding of afresh election. There was a majority of 91 votes in favour of the appellant as compared with the respondent, on the total count. In these circumstances, Mr. Abid Hassan Minto, for the appellant, has forcibly contended before us that even if it be assumed for the sake of argument, that all the excess 78 votes were cast, at the instance of the appellant, and ought to be deducted from the total number of votes secured by him, he would still be beating the rival candidate by 13 votes. Under rule 36 (1‑A) of the Electoral College Rules, 1964, the condition precedent for declaring an election as a whole to be void or the election of a successful candidate to be void, is that the irregularity or mal practice found, should have materially affected the result of the election. The responsibility for the excess votes being found in the ballot boxes, in the absence of any evidence to that effect, cannot 8 be laid at the door of the appellant. It is an open possibility that the respondent or his agent may have manoeuvred to get these excess votes introduced into .the ballot boxes just to spoil the election. The other possibility is that these 78 excess votes may have been actually issued but the officials concerned may have omitted to tick mark the corresponding entries in the voters' lists. These extra votes should not be counted, but eve3 if they are wholly deducted from the votes obtained by the appellant, he would still be leading the respondent by 13 votes. He himself not being the guilty party, there is no question of his being disqualified on the ground of commission of a corrupt practice by him. If some person or persons unknown, are responsible for these excess votes being introduced into the ballot boxes, that should not prejudice the appellant's case who had a clear majority over the respondent, after exclusion of the excess votes, from the count. 1f the election is set aside without a clear finding based on evidence that the result of the election had been materially affected, it would amount to disenfranchising the genuine voters who had apparently favoured the appellant as compared with the respondent. No doubt, the Election Tribunal did say that the result of the election had been materially affected by the irregularity found but, as has been observed above, no reasons were adduced for this conclusion and we find that, on the actual facts, such a con clusion was not sustainable in the circumstances of this case. The contention raised, on behalf of the appellant, receives support from a decision of the High Court of West Pakistan in the case of Ameer Abdullah v. Muhammad Yakub (P L D 1967 Lah. 722). It was observed in that case that "it has to be proved before succeeding in having an election set aside, that not only a corrupt practice was current but that it was of such a large scale that it could reasonably be said to have contaminated the entire election . . . . . . The mere commission of irregularity or corrupt practice, without further proof that the irregularity had materially affected the result of the election would not entail the consequence of the undoing of the election." In a Dacca case reported as Abdul Aziz v. S. A. Chowdhury (P L D 1966 Dacca 561) a Division Bench of that Court held the order of an Election Tribunal to be without jurisdiction, where it had declared an election void on the finding that "there might have been two cases of personation and it was possible that due to personation, the result of the election has been affected or at least might have been affected." It was pointed out by the learned Judges that two conditions had to be satisfied before an election could be declared to be void under rule 36 (1‑A) of the Electoral College Rules, 1964. The first condition was that there had been a non‑compliance or contravention of any provision of the Act or the rules and the second was that such a non‑compliance or contravention had, in fact, materially affected the result of the election. As there was no such actual finding by the Tribunal in that case, the order of the Tribunal was declared to be without lawful authority and of no legal effect. In another Dacca case reported as Abdul Qaddus Khandker v. Election Tribunal and Additional Deputy Commissioner (P L D 1966 Dacca 604) it had been found that at least two votes had been cast in the name of absentees, by false personation. The difference between the successful candidate and his opponent was only of two votes. The Tribunal's order, in these circumstances, declaring the election to be void, was upheld by the High Court at Dacca. It was observed by t ,e learned Judges that when a Tribunal is driven to the position that it cannot be decided one way or the other as to what could have been the possible result of the election, it must be held that the impugned votes had materially affected the election, inasmuch as a cal de sac had been reached with regard to the result. At the same time, the learned Judges remarked that the case would have been different if the successful candidate had won by a bigger margin than two votes, for he would still have had a majority even after the reduction of two votes from the total votes polled by him. In Indian Election Cases by Sen and Poddar (1951 Edn.) at page 136 etc. is reported the case of Bellary Muhammadan Rural Constituency, 1947. At page 141 of that Report it was remarked by the learned Commissioners as follows "It is conceded, I think, that in order to prove that the result of the election was materially affected, it is not necessary to prove that the successful candidate would not have been elected but for the practice found to have been corrupt and that it is sufficient if it is proved that his majority would have been substantially reduced . . . It is, therefore, not enough to prove that a large number of votes which ought not to have been cast, have in fact been cast. It is necessary to prove that the casting of these votes materially affected the difference between the totals polled by the candidates." To the same effect is an observation made at page 533 of the Law and Practice of Election and Election Petitions by Pandit Nanak Chand (1937 Edn.). Tie learned Author says "the result of the election had been materially affected, means that the majority of the returned candidate would have been materially reduces if he had not resorted to such corrupt practices, It is not necessary for the petitioner to prove the exact number of instances as would be sufficient to wipe out the majority of the returned candidate." These two quotations from Hammond's Indian Election Petitions and Pandit Nank Chand's Book, would not appear to be apposite in the circumstances of the present case, in which there is no finding that the appellant himself was responsible for any corrupt or illegal practice. A consideration of the authorities, cited in support of the appeal, clearly lend point to the contention raised on behalf of the appellant that in the circumstances of this case, it could not c be said that the result of the election was materially affected by what was done by some person or persons unknown, in putting excess ballot papers in the boxes of the two candidates. We, therefore, allow this appeal and declare the order of the Tribunal to be without lawful authority and of no legal effect. We make no order as to costs in this Court, as the respondent, Muhammad Khan, though served, is absent and the appeal has been heard ex parte against him. A. H. Appeal allowed.