K. A. GHAN1, J.-By this petition filed under Article 9 of P. C. O., 1981 the petitioner seeks to challenge the judgment dated 3-9-1981 passed by the learned Election Tribunal (District Judge) Sukkur passed in Election Petition No. 95 of 1979 whereby it was declared that the election held on 25-9- 1979 from Unit No. 2, Ward No. 6, Municipal Corporation, Sukkur was not held legally and the result of the election declaring 'of the petitioner as the returned candidate was set aside and fresh election was ordered to be held.
The brief facts of the case are that the petitioner and respondents Nos. 1 to 9 contested at the election held on 25-9-1979 for Unit No. 2, Ward No. 6, Municipal Corporation, Sukkur (hereinafter referred as the said Unit No. 2). The Respondent No. 10 was the Presiding Officer while the respondent No. 11 was the Returning Officer. The petitioner after the count by the Polling Officer and thereafter also at the consolidation of result by the Returning Officer, was found to have obtained 369 votes, i.e. Highest number of votes and was declared as the successful returned candidate. The respondent No. 1 (Mohammad Rafiq Khan obtained 34'3 votes, while the other candidates much lesser votes.
2. The respondent No. 1 challenged the election by filing an election petition on 11-10-1979 before the Provincial Election Authority wherein be sought declaration that the election of the petitioner be declared as void and he may be declared as duly elected. In the alternative he prayed that fresh election be ordered to be held for the said Unit No. 2.
The petition was transferred to the Election Tribunal, Sukkur and was registered as Election Petition No. 95 of 1979 Mohammad Rafiq Khan v. Ghulam Ghos arid others. The said petition was contested whereupon the learned Tribunal framed as many as eleven Issues.
3. The learned Tribunal by order passed on 25-5-1979 answered the Issues Nos. 1 to 8 in the negative. Issue No. 10 was not pressed. The result of the election petition turned on decision on Issues Nos, 9 and 11 which are reproduced hereinbelow :-
(1) Whether provisions of Election rules were violated and illegalities committed by the Election staff and if so what is their nature and effect ?
(2) What should the order be?
4. The aforementioned Issue No. 9 was answered in the affirmative, and it was declared by the learned Tribunal that the election was not legally held since indelible ink was not used. The election of the petitioner as successful candidate for the said reason was set aside and it was further directed that fresh election of the said Unit be held.
5. The petitioner has challenged the above-mentioned order of the learned Election Tribunal by filing this petition under Article 9 of the P. C. O. 1981.
6. In order to appreciate the arguments of the learned counsel for the parties the ,findings of the learned Election Tribunal under Issue No. 9 may first be referred consequent to which the election as a whole for the afore--mentioned Unit No. 2 was set aside.
The substance of the findings of the learned Tribunal is that according to rule 35 of the Sind Local Council Election Rules, 1979 (hereinafter referred to as the said Election Rules, 1979) it was mandatory for the election staff to have used indelible ink on the right thumb of the voters before issuing the ballot-papers to them, and since such an ink was not used the learned Tribunal held; "So I believe them on the point that indelible ink required under rule 35 of the said rules was not used at the election. Consequently it was possible for one voter to have voted in different names several times. 1, therefore come to the conclusion that the election staff while conducting election violated mandatory provision of rule 35 of the said rules and hence Issue No. 9 is decided in the affirmative."
Having decided issue No. 9 as above the learned Tribunal under Issue No. 11 gave the following findings; "In view of the findings on issue No. 9 the petition is allowed and I hold that the election was not legally held since indelible ink was not used and so set aside the election, declaring respondent No. I as successful candidate froth Unit No. 2 Ward No. 6, Municipal Corporation Sukkur as per result declared by the Returning. Officer on 29-9-1979 and direct that fresh election of the said unit be held."
7. The learned counsel for the petitioner submitted that even assuming that indelible ink was not used yet there is no finding in the impugned order that the result of the election was thereby in any way materially affected. It was further argued that in the absence of any such a finding the election could not have been set aside, particularly for the reason as well, that the present petitioner and for that matter any other candidate was in no way responsible for the alleged omission on the part of the election staff.
It was also urged, and which assertion was not disputed by the learned Advocates for the respondents, that in spite of the knowledge of the facts that ink other than indelible ink was being used the candidates continued to participate in the election and that no objection was taken by any of them on that ground.
8. In order to appreciate the question raised we propose to examine, the relevant law on the subject. First to be taken note of are provisions of rule 35 of the Election Rules, 1979 upon which the learned Tribunal relied in coming to the conclusions which are sought to be impugned before us.
The relevant sub-rules of rule 34 read as follows; "35.-(1) Where an elector presents himself at the polling station to vote the Presiding Officer shall, after satisfying himself about the identity of the elector, issue to him a, ballot-paper in Form X.
(2) Before a ballot-paper is issued to-an elector.
(a) he shall be required to receive a personal mark made- with indelible ink on the thumb or any other finger of either hand;"
(b) ------------------..
(c) ------------------..
(d) ------------------
(e) . ---------------------.
(3) A ballot-paper shall not be issued to a person who refuses to receive the personal mark with indelible ink or if be already bears such a mark or the remnants of such mark.
(4) ---------------------..
(5). ,---------------..
(6) .
(7) The elector shall vote without undue delay and shall leave the . Polling station immediately after he has inserted his ballot-paper in the ballot box."
Next to be noted of is subsection (2) of section 39 of Sind Local Govern--ment Ordinance, No. XII of 1979 which provides that; "(2) Where any election petition is referred by the Election Authority to any prescribed person or authority for trial it shall be tried as nearly as possible in accordance with the procedure laid down in the law relating to the elections of the Provincial Assembly, for the time being in force."
The law relating to elections of Provincial Assembly, referred to in subsection (2).Mentioned above is to be found in the Representation of Peoples Act, 1976 of which section 70 provides for declaring election as a whole to be void.
Since the learned Tribunal in the present case has declared the election as -a while illegal, it would be relevant to reproduce the said provision here- under :- "Section 70. Ground for declaring election as a 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 this Act or the rules ; or
(b) the prevalence of extensive corrupt or illegal practice at the election."
9. From perusal of the impugned order certain important facts emerge which we would like to take notice of here. Apart from an observation base upon mere assumption that "it was possible for one voter to have vote in different names several times," there is no finding that because of the!
Non-user of indelible ink any elector or electors had cast votes more than once.
It would be relevant here to note that this was an election to a Local Council from a small constituency wherein only a few hundred votes had been cast in favour of ten candidates, yet not a single case of impersonation was cited.
That none of the contesting candidates or their agents raised any objection to the non-user of indelible ink at the time of the polls or even c thereafter at the time of counting or consolidation of the results and declaring the petitioner as the returned candidate.
Significant to note also is the fact that there is no evidence on record much less any finding that the election of the returned candidate petitioner! Was materially affected on account of the commission on the part of the election staff to use indelible ink at the time of the elections.
10. In the light of above, counsel for the petitioner submitted that merely because the election personnel failed to comply with rule 35 to the extent that indelible ink was not used for putting mark on thumb of voters for which the contesting candidates were in no way responsible would not result in the declaration of the election as a whole as illegal and void. We find considerable force in the arguments of the learned Counsel for more than one reason. The learned Election Tribunal while taking into consideration the failure of the election personnel to use the ink other than that prescribed by rule 35 failed to appreciate that the majority of the voters had cast their votes in favour of the petitioner and that the process of election or its result could not be defeated merely because of contravention of any rule which had not materially affected the result of the elections.
We are fortified in adopting this view on the principle laid down in the case of Mohammad Shafi v.
Election Tribunal P L. D 1966 Lah. 755The learned Lahore High Court after reproducing rule 361 (A) which provided that the Tribunal shall declare the election of the candidate or the election as a whole void if he was satisfied that the result of the election had been materially affected by: the reason of the failure of any person to comply with or the contravention of the Act or the rules, observed as follows:- , "From the language employed in this rule it is clear that mere con--travention of any provision of the Act or the rules would not vitiate an election ; it is necessary to prove that the failure or the contra--vention complained of has materially affected the result of the election. In the present case it should have been possible to , show that the result had in fact been materially affected by producing evidence as to the number of votes belonging to each of the major communities represented by the contesting candidates, and to show how the with--drawal of Muhammad Nawaz from the field had affected or was likely to affect in all probability the disposal of these votes."
11. Reference may also be made here to the case of Rlaz Ahmad v, Election Tribunal PLD 1966 Lab.
839The principle laid down in para. 8 of the said report being relevant for the purposes of decision of this case is reproduced herein below :- "it follows from the above conclusion that a Tribunal cannot resort to general principle of election law and declare in election of the returnee candidate to be void, if a corrupt or illegal practice has been committed by the returned candidate or his agent or by any other person with the connivance of his candidate or his election agent, without a finding that the result has been materially affected. We are not inclined to agree with the respondent's contention that by the mere commission of a corrupt or illegal practice it is intended that the Election Tribunal may declare an election void. It is significant that the rule provides that the result be "materially affected." These words are not ambigu--ous, and must be given their natural meaning and effect. It is not necessary, for declaring an election void that there must be invalidation of so many votes by reason of the breach or violation of the rules to reduce the votes before (sic) those of others, but there should be a finding that the violation is of such a scale that it has affected the result."
12. From the. Principles discussed in the authorities cited above, with which we are in respectful agreement it follows that mere contravention of a rule would not render the election of the returned candidate or the election t as a whole void, unless it was further shown that the result of the election was materially affected due to the alleged breach or contravention of the rule/law.
13. We have already noticed above, that for the alleged non-user of indelible ink at the election none of the contesting candidates were respon--sible and that in fact they continued to participate in the election in spite of this omission on the part of election staff. We have anxiously considered the arguments advanced by the learned Counsel for the parties on this aspect of the case and are of the opinion that in the absence of any provision in the law/rules providing penalty for non-compliance if any provision of Act and Rules a losing candidate who has participated in the election without any protest on objection cannot take any advantage of such an omission of non-compliance. If any authority is needed reference may be made to the case of Niaz Ahmad v.
Azizuddin PLD 1967 SC 466Where the Honourable Supreme Court cited with approval the following observations from the judgment of Karachi High Court (Hajl Muhammad Rafiq v. Election Tribunal, Hyderabad) :- "From the authorities cited by Mr. Junejo it becomes clear that an irregularity in the ballot papers arising from an omission on the part of an election official or a public functionary, it is not to be regarded as vitiating the vote of an elector who is innocent of any wrong or default in the matter, unless such irregularity has been declared by the statute itself to be fatal to the validity of the ballot."
'In the above-cited case of Haji Rafiq, it was further observed :- "Our conclusions are that as a general rule the failure of the election officials to comply with the statutory directions is not to be regarded as invalidating a ballot paper or an election, except where the con--sequence of such failure has been clearly prescribed by the Legislature itself."
The Honourable Supreme Court of Pakistan after considering the law on the subject held; "The result of the election would then be at the mercy of a corrupt officer. Unless therefore, the legislature itself 'prescribed for such a contingency the voter should not be penalised for default of a third person. The principle laid down by a Division Bench of the High Court consisting of Waheeduddin Ahmad and Anwarul Hag, 3J. In the case Haji Muhammad Rafiq v. Election Tribunal decided on 3-2-66 appears to be in-exceptionable in this context."
It may be noted that Election Rules, 1979, do not provide for rejection of any of the ballot-papers or for declaring the election as a whole or the election of the returned candidate as illegal and void for non-user of indelible ink. In the absence of any finding that non-user of indelible ink has materially affected the result of election the learned Election Tribunal could not have imported a penalty which the Legislature itself had not provided and thereby declare the election as a whole illegal and void, and consequently also hold the election of the petitioner/returned candidate as illegal. Reference may also be made to the case of Mr. Nabi Bux v. Election Tribunal PLD 1957 SC 301,where the Honourable Supreme Court held :- "It does not seem fair or reasonable to disenfranchise voters merely because a rule has been violated by the Returning Officer."
The Honourable Supreme Court cited with approval the following passage from Vol. 18 of American Jurisprudence Election 255 as instructive :- Itmay, therefore, be stated as a general rule that if ballots are cast by voters who are, at the time, qualified to cast them and who have done all on their part that the law requires of voters to make their voting effective, an erroneous or even unlawful handling of the ballots by the Election Officer charged with such responsibility will not be held to disfranchise such voters by throwing out their votes on account of erroneous procedure had solely by the election officers, provided the votes are legal votes in their inception and are still capable of being given proper effect as such. Nor will an election be set aside because of irregularities on the part of the election officials unless it appears that such irregularities affect the result."
14. (i) From the admitted facts as already noted above we find that the candidates had taken part in the election held on 25-9-1979 without any protest either at time of the polling or counting of the votes and consolidation of results for alleged non-user of indelible ink. We also find that none of the candidates were responsible for the said omission on the part of the election personnel and there is no finding in the impugned order that because of the alleged omission, voters had cast votes more than once; or that it has materially effected the result.
It is therefore apparent that the election had taken place substantially in accordance with the rules and that there is nothing on record to show that the result of the election was materially affected due to alleged omission, The principle laid down and recognised by the Honourable Supreme Court In the case of Niaz Ahmad that the failure of the election officials to comply with the statutory directions is not to b.- regarded as invalidating a ballot paper or an election except where the consequence of such failure has beer clearly prescribed by the legislature itself in the circumstances is fully attracted to the facts of the present case.
(ii) We may with advantage also refer to the case of Woodward v. Sar sons & Sadler 1875 L T R 867,where Coleridge, C. J. Observed :- "We are of opinion that the true statement is, that an election is to Ix declared void by the common law applicable to Parliamentary elections if it was so conducted that the Tribunal which is asked to avoid it is satisfied as a matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the Tribunal should be so satisfied, i. e. That there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not, in fact, bad a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively, according to their own preference, by general corruption or general intimidation, or being prevented from voting by want of the machinery necessary for so voting, as by polling stations being demolished, or not opened or by other of the means of voting according to law not being supplied, or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes, or false declaration of numbers by a returning officer, or by other such acts or mishaps. And we think that the same result should follow, if by reason of any such or similar mishaps, the tribunal without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred. But if the Tribunal should only be satisfied that certain or such mishaps had occurred but should not be satisfied either that a majority had been, or that there was reason to believe that a majority might have been prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the common law of parliament."
(iii) The case of Islington West Division (Medhurst v. Lough and Gosquest (1901) 17 T L R 210,may also be usefully referred, at page 230 Kennedy, J. Observed as follows :-..- "An election ought not to be held void by reason of transgressions of the law committed without any corrupt motive by the returning officer or his subordinates in the conduct of the election, where the Act, is satisfied that the election was, notwithstanding those transgressions, an election really and in substance conducted under the existing election law, and that the result of the election, I.e., the success of the one candidate over the other, was not, and could not have been, affected by those transgressions. If, on the other hand, the transgressions of the, law by the officials being admitted, the Court sees that the effect of the transgressions was such that the election was not really conducted under the existing election laws, or it is open to reasonable doubt whether these transgressions may not .Have affected the result, and it is uncertain whether the candidate who has been returned has really been elected by the majority of persons voting in accordance with the laws in force relating to elections, the Court is then bound to declare the election void. It appears to us that this is the view of the law which has generally been recognised, and acted upon, by the tribunals which have dealt with election matters."
(iv) Another case of which notice may be taken is re Kensington North Parliamentary Election (1960) A E R 150,wherein it was held by Streatfeitd, J. That :- "It seems to me that the election was conducted substantially in accordance with the law and that the act or omission did not affect the true result . . . . . . . . . . . . . . . . . . . . . , . . . . . . . I think that with the changed wording under section 16 (3) of the Act of 1949 it is for the Court to make up its mind on the evidence as a whole whether there was a substantial compliance with the law as to election or whether the act or omission affected the result."
15. The discussion brings us back to the impugned order and we find that the Election Tribunal in the case under consideration has not come to the conclusion that the result of the election was materially effected by the omission on the part of the election personnel to use indelible ink. The learned Tribunal has proceeded to decide the election petition on. The assumption that "as indelible ink as required under rule 35 of the said Rules. Was not used at the elections, consequently it was possible for one voter to have voted in different names several times." These observations of the learned Tribunal cannot by any principle of law be called as findings of fact.
These obser--vations of the learned Tribunal (underlined' by us in the passage) are based upon mere assumption. No instance or evidence has been referred to or cited to establish that any voter did in fact had "voted in different names several times", for the reason that indelible ink was not used or for any reason.
16. It is hardly necessary to emphasise that an Election Tribunal is not at liberty to resolve controversy according to their caprice or desire or on consideration of "probability perhaps a reasonable probability of the truth of that which was alleged" Muhammad Saeed v. Election Tribunal West Pakistan PLD 1957 SC 91 Reference in this connection may also be made to the case of Abdus Sattar Rana v. S. M. Saidi and another PLD 1968 SC 331, where the Honourable Supreme Court after considering the facts of the case held "If 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 bad apparently favoured the appellant as compared with the respondent."
In the above case of Abdus Sattar the following observations of Commissioners -in the case of Bellary Muhammadan Rural Constituency, 1947 were cited with approval.
"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."
The Honourable Supreme Court of Pakistan after discussing the law held :-- "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 be said that the result of the election was materially affected by what was done by some person or 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."
17. For the reasons stated above we find that in the circumstances of the case it was not open to the Respondent No. 1 to have any grievance on account of the non-user of indelible ink, be and other contesting candidates having participated in the elections with the knowledge that indelibleink was not being used and that in the absence of any provision in law or the rules whereby the ballot-papers could be invalidated for failure to u indelible ink and there being no finding that the result of the election had been materially affected by reason of the failure of election staff to comply with the provisions of law or the rules, the impugned order cannot sustained.
We accordingly declare the impugned order dated 3 9 81 passed in Election Petition No. 195/79 (Muhammad Rafiq v. Ghulam Ghous and others as having been passed without any lawful authority/and as of no legal effect. The petition is therefore allowed. There shall, however, be no order as to costs.