ASLAM RIAZ HUSSAIN, J.-This petition is directed against the judgment dated 31-1-1981 of the High Court, dismissing the petitioner's writ petition.
The facts leading to this petition are; that the three petitioners and respondents Nos. 2 to 8 contested the election to three seats in Unit No. 1 of Union Council Math Bhagwan, Tebsil Ferozewala, District Sheikhupura, which was held on 25-9-1979. The three petitioners got the maximum number of votes and were declared as elected. Siraj Din, respon--dent filed an election petition before the Election Tribunal under section 24 of the Punjab Local Government Ordinance, 1979, alleging therein the irregularities which had rendered the election void. The Election Tribunal framed 12 issues for decision.
After recording evidence of the parties certain issues including Issue No. 6, relating to the irregularities alleged to have been committed during the election, namely, whether 800 voters were still to cast their votes when the polling was closed primarily, were decided in favour of the petitioners and the learned Tribunal after discussing the evidence on that issue observed in paragraph 14 of its order that: "Accordingly, the fact of 800 votes having not been polled has no implication in this particular election."
But after considering the entire case, the learned Tribunal found that "there were number of serious irregularities which cast doubt on the fairness of the election", and set aside the election by order dated 29-11-1980.
4. Aggrieved by this order the petitioners filed writ petition which was dismissed vide the impugned judgment.
5. The learned counsel for the petitioners referred us to rule 15 of Local Council (Election Petitions)
Rules, 1979, and submitted that before the Election Tribunal could declare the election void as a whole, it was required by the said rule to give a positive finding that the violation of the provisions of the Ordinance or the Election Rules etc., committed during the election, had materially affected the result thereof. But the learned Tribunal has not given any finding to this effect.
6. He submitted secondly that a reading of paragraph 2 of the impugned order shows that the learned Judge in Chamber had erroneously considered that the Tribunal had given a finding that the fact that 800 voters had not cast their votes, had materially affected the result of the Election, whereas the Tribunal had, in fact, not held so.
7. We have also heard the learned counsel for the caveator-respondent who has pointed out that in paragraph 21 of its judgment, the learned Election Tribunal has enumerated and discussed the irregularities of serious nature committed by the Presiding Officer in the conduct of the election and had set aside the election on the ground that the said irregularities had cast serious doubt on the fairness of the election. He urged that in view of this finding it was not necessary for him to hold that the said irregularities had materially affected the result of the election.
8. In reply, the learned counsel for the petitioners, relied on Abdus. Sattar Rana v. S. M. Zaidi and another PLD 1968 SC 331 wherein it has been held as follows:- "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 had apparently favoured the appellant as compared with the respondent."
He, therefore, urged that in the absence of any finding as required by rule 21 of the said Rules, the order of the Tribunal was not sustainable.
9. In view of the above-noted observation in the case of Abdus Sattar, we are inclined to agree that in the absence of finding as required by rule 21, the order of the learned Tribunal is bad in law.
Furthermore, on going through the said order we notice that the High Court had wrongly understood the Tribunal as holding that the inability of 800 voters to cast their votes had materially affected the result of the election. In fact he had held otherwise.
10. Since we have heard both sides, we convert this petition into appeal and allow it and direct that the case be remanded to the Election Tribunal for reappraisal of the evidence in order to consider whether the irregularities found to have been committed by the Presiding Officer had materially affected the result of the election.