TANVIR BASHIR ANSARI, J.- The petitioners contested the election for seats of Nazim and Naib Nazim of Union Council No.3, Chakwal City. Respondents Nos. 1 and 2 also contested the said election for the same office of the said Union Council. The petitioners secured 2653 votes while respondents Nos. 1 and 2 secured 2635 votes. The petitioners were declared successful as Nazim and Naib Nazim of the said U.C.
2. Feeling aggrieved of the impugned result, respondents Nos. 1 and 2 challenged the legality of the ' same through an Election Petition filed under Rule 70 of the Punjab Local Government Election Rules, 2000. The principal ground of challenge was that on all the Polling Stations, the close relatives of petitioners Nos. 1 and 2 were sitting as Presiding Officers and or Assistant Presiding Officers and who at the behest and for the benefit of the petitioners committed serious acts of corrupt practices. As a result, it was alleged that as many as 56 persons were allowed to cast double votes at Union Councils Nos. 2, 5 and 36 besides the U.C. No. 3 in question, It was further alleged that in a similar manner 33 votes of respondents Nos. 1 and 2 at Polling Station No.18 were wrongly rejected. The petitioners did not deny the rejection of the said 33 votes but contested the claim of the respondents that all the said rejected votes were polled in favour of respondents.
According to the petitioners, the rejected 33 votes were of both the contesting panels. This bag containing the 33 rejected votes, however, went untraceable and it could not be determined with exactitude as to which of the conflicting contention was correct.
3. It was thus, contended that on account of the aforesaid, as there was only a difference of 18 votes between the rival panels, the number of double votes cast and the number of rejected votes misplaced would have a direct bearing upon the results of the rejection.
4. The petitioners filed their reply to the Election Petition, wherein all the allegations were controverted.
5. From the pleadings of the parties, the Election Tribunal framed the following issues on 22.11.2001 ISSUES.
(1) Whether respondents Nos. 1 and 2 have procured their election by committing corrupt and illegal practices, if so, its effect? OPP.
(2) Whether the counting of votes was not carried out with law, prescribed rules and procedure, if so, its effect? OPP.
(3) Whether the election of respondents Nos. 1 and 2 is liable to be set aside on account of reasons enumerated in the contents of petition? OPP.
(4) Whether the petitioners are entitled to the relief claimed for? OPP.
(5) Relief.
6. Muhammad Afzal Gujjar respondent No.1 appeared as PW.1 and reiterated his contention as contained in Election Petition. He particularly made reference to 56 double votes cast in U C.3 and prayed that the same may be excluded from the statement of count. Regarding the 33 rejected votes, he claimed that the said rejected votes were cast in favour of the respondents. The said witness was cross-examined at length. Although, he could not state with certainty that the rejected 33 votes were cast in his favour yet submitted that the factum of the loss of the bag containing the'33 rejected votes would raise a strong presumption that the said bag contained his rejected votes.
7. Khan Bahadur petitioner appeared as RW.
1. He has categorically admitted that 33 votes at Polling Stations were rightly rejected. However, these rejected votes according to petitioner No.1 belonged to both rival panels, In documentary evidence, the respondent produced Exs. P.1 to Ex.P.207.
8. The learned Election Tribunal examined the said evidence and decided issues Nos. 1, 2 and 3 in favour of respondents Nos. 1 and 2. Relying upon the documents placed on the record, it came to the conclusion that as many as 32 voters cast their votes in U.C. Nos. 2, 5 and 36 besides U.C. No.3 Chakwal City. The Election Tribunal also noted that' even in his own statement Khan Bahadur petitioner had not specifically denied the factum of double voting. Keeping in view the margin of difference between votes of the rival panels, the Election Tribunal came to the conclusion that this established factor of double voting had materially effected the result of the said Election. The contention in respect of 33 rejected votes of Polling Station No 18 was also dispassionately considered in view of the evidence on the record, It has been found as a fact that 33 votes at Polling Station No.18 had been rejected by the Presiding Officer. This number of rejected votes has been admitted by Khan Bahadur petitioner appearing as RW.1. His contention, however, was that these 33 rejected votes belonged to both the revel candidates. The bag containing these 33 votes went missing and could not be accounted for the learned Election Tribunal came to the conclusion that as the aforesaid factors could have the effect of changing the result relied upon Rule 83 of the Punjab Local Government Election Rules, 2000 and declared the impugned election as a whole to be void vide the impugned order dated 14.1.2003.
9. Sh. Zamir Hussain, Advocate for the petitioners submits that although he does not dispute that 32 voters had cast more than one vote in the election in question and also the fact that the bag containing 33 rejected votes was untraceable yet it would not effect the result of the election as under Rule 82(d) of the Punjab Local Government Election Rules, 2O0O, no adverse inference can be drawn against the successful candidates if no corrupt or illegal practice is proved to have been committed by the petitioners or their election agents or by any other person with the connivance of the successful candidates or his authorized agent, ft is submitted that in the present case, no such involvement of the petitioners has been established on the record, In respect of the bag containing 33 votes, which admittedly went untraceable, it is submitted that such 33 votes pertain to the rejected votes of various candidates, which would have no bearing on the result of the election.
Even in this respect, it is submitted that even if there was a lapse, such lapse cannot be attributable to the petitioners. Reliance is placed on the cases of Hem Raj Vs. Ramji Lal and another (AIR 1975 SC 382) and Sudhir Laxman Hendre Vs. Shripat Amrit Dange and others (AIR 1960 Bombay 249). The precise contention is that in considering the allegation of corrupt practice, it must be kept in mind that such an allegation is quasi-criminal in nature exposing the returned candidate not merely to the risk of his election to be set aside but also of his being disqualified to stand for election. He also runs the risk of being prosecuted. The charge of corrupt practice should, therefore, be proved beyond reasonable doubt.
10 On the other hand, Ch. Afrasiab Khan, Advocate for the respondents has submitted that the question of fact that 32 votes were polled more than once in U.C. Nos. 2, 5 and 36 and U.C. No. 3 has not been controverted. Similarly, the fact that 33 votes from Polling Station No. 18 were rejected is also not denied, It is also established from the record that this bag went missing and could not have been accounted for. Admittedly, the difference amongst the rival candidates was that of 18 votes only, It is submitted that Election Tribunal has dispassionately considered all the aspects of the case and has arrived at just conclusion.
11 As the petitioners substantially raise a question of law as stated herein before, this writ petition is being heard and decided as a regular case in the light of the available record. The arguments of the learned counsel for the parties have been heard.
12 The learned counsel for the petitioners has not disputed the questions of fact recorded by the learned Election Tribunal. His only contention is that if no corrupt or illegal practice is proved to have been committed by the petitioners or their election agents or by any other person with the connivance of the petitioners, no adverse inference can be drawn against the successful candidates. He has also submitted that unless and until the factum of corrupt practice is established through cogent and substantial evidence, the allegation of a quasi-criminal nature cannot be found to be proved as it visit the alleged perpetrator (s) with serious present and future consequences and disabilities.
13 An examination of the impugned order shows that the learned Election Tribunal in para 11 of its judgment had found that there was no tangible evidence, which proved the allegation of rigging against the petitioners. However, the Election Tribunal had set aside the elections under Rule 83 ibid after coming to the conclusion that counting had not been made in accordance with law and the provisions of the Ordinance and the Rules and that the elections suffered from the prevalence of extensive illegal practices without attributing any corrupt practice to the petitioners.
14. Rule 83 of the Punjab Local Government Elections Rules, 2000 is reproduced as under:-- Rule.83. Ground for Declaring as whole void "The Tribunal shall declare 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:
(a) the failure of any person to comply with the provisions of the Ordinance or the Election Rules: or
(b) the prevalence of extensive corrupt or illegal practice at the election."
The interpretation placed by the learned Election Tribunal upon this Rule is un-exceptionable, In order to declare with whole election as void, the learned Tribunal must feel satisfied that the results of the election have been materially effected on account of the reasons mentioned in Rule 83 (a) and (b) supra, It is not necessary in law that any corrupt or illegal practice must also be specifically attributed to a candidate or-his representatives etc.
15. Referring to Sudhir Laxman Hendre's case (supra), it is sufficient to observe that Election Tribunal found that the illegality or the corrupt practice had been committed in the interest of the returned candidate and that such illegality had the effect of materially effecting the result of the said election and thus, without holding the petitioners responsible for any corrupt practice declared the election to be void. A similar situation exists in the present case. The rule of law cited in Hem Raj's case (supra) also does not advance the case of the petitioners, as the learned Election Tribunal had not found the petitioners guilty of any specific corrupt practice but had declared the election void upon the general prevalence of corrupt and illegal practices which led to materially effect the result of elections.
6. Resultantly, there is no merit in this writ petition which is hereby dismissed.