' MUHAMMAD MUNIR KHAN, J.-This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby Ghulam Rasul, Mumtaz Ahmad and Mehdi Hassan alias Mehdi Khan, petitioners want this Court to declare the order dated 30th March, 1982 of the Election Tribunal/ Additional Commissioner Revenue, Multan respondent No, 1, by which the election of Seat No, 13 of Union Council No, 90 (presently No, 92) of Chak No, 134/16-1 Tehsil Khanewal was declared, as a whole to be void, to be without lawful authority.
2. The facts leading up to this petition in brief are that on 25th September, 1979 the three petitioners and respondents Nos. 2 to 4 contested the disputed election. The statement of the votes of individual candidate is as follows : Sr. No,Names of the contesting candidate.No. of votes polled by each contesting candidate.No. of rejected ballot papers.No. of valid ballot papers.
1.
2.
3.
4.
5.
6.Ghulam Rasul Himmat Khan Mebdi Hassan Muhammad Shafi Mumtaz Ahmad Saddar Din331 215 297 309 311 29680 71 56 91 59 68251 144 241 218 252 228 ' The petitioners were accordingly declared elected. Aggrieved by the result, Saddar Din respondent No, 2 filed Election Petition on the ground of failure to comply with the provisions of law and on the ground of the commission of corruption or illegal practices. This petition was contested by the petitioners herein. The following issues were framed :
(1) Whether the respondent No, 2 is depot holder and as such not competent to contest the election? If so its effect.
0. P. D.
(2) Whether any irregularity has been committed ? If so, its effect.
0. P. P.
(3) Relief.
' The parties adduced evidence to prove and rebut the allegations. Before the Election Tribunal issue No, 1 was not pressed. Issue No, 2 was found in favour of respondent No,
2. In view of his finding on issue No, 2, the Tribunal declared the election as a whole to be void under rule 15 of Punjab Local Council (Election Petitions) Rules, 1979. Hence the petition.
3. Before us, learned .Counsel has raised three points
(I) That Saddar Din respondent No, 2 has failed to prove any irregularity and there is no evidence whatsoever, on the record to point out the failure of any person to comply with the provisions of Punjab Local Government Ordinance, 1979.
(ii) That the Tribunal respondent No, 1 has wrongly held that the boxes of the candidates were not in the alphabetical order. The box of respondent No, 2 was rightly placed at the end, because alphabetially his name was at the end i. e. At No,
6. To substantiate it the learned counsel has relied upon Annexure 'A' i. e. The statement of count which shows the sequence of the candidates as follows:
1. Ghulam Rasul,
2. Himmat Khan,
3. Mehdi Hassan,
4. Muhammad Shah,
5. Mumtaz Ahmad,
6. Saddar Din.
(iii) That the Tribunal has not properly appreciated the evidence particularly of Mehdi Khan, who was not cross-examined.
4. For the facility of appreciation of the arguments presented by the learned counsel for the petitioner we would like to reproduce the discussion of the Election Tribunal on issue No, 2 which reads as under :- "The petitioner examined three witnesses to establish his contention and also made his own statement. According to PW-1, the ballot box of the petitioner was not kept according to alphabetical order and that the ballot boxes intended for the District Council Elections were mixed up with those meant for Union Council Elections in such a manner that large number of votes were cross-cast. PW-1, claims to be the polling agent of the petitioner and contends that he produced his credentials before the Presiding. Officer at the time of election. In cross-examination, he stated that he brought these illegalities to the notice of the Presiding Officer but no action was taken on his complaint. He, however, denied, any enmity with respondent No,
1. P W-2 also made similar testimony and stated that the illegalities were pointed out but no action was taken. P W-3 Muhammad Jameel stated that he intended to cast his vote in favour of the petitioner but on account of confusion put it in the ballot box meant for District Council elections on account of the similarity in colours of ballot papers and irregular placement of ballot boxes. Saddar Din petitioner stated that respondent No, 1 Mehdi Khan induced the results of elections in his favour through illegal means; that children were produced as voters; that his ballot boxes were incorrectly placed and that the ballot boxes intended for District Council elections were placed in such a manner that a number of votes were cross-cast. Respondent No, 1 Mehdi Khan, in rebuttal, made his own statement and denied the allegations levelled against him. He stated that only 68 votes were excluded from the count of the petitioner and that 56 votes were excluded from his own count; that he won the election by 13 votes and that he had no connection with Pakistan People's Party. His evidence was closed by the order of the Tribunal dated 15th February, 1982 on account of persistent non-production of witnesses. I have seen the evidence on record and heard arguments on both sides. The fact that the petitioner's ballot boxes were not kept in accordance with the alphabetical order, has been established by the testimony of a number of witnesses. From the above, it is quite apparent that the contention is correct. This is violation of rule 31 (d) of the Punjab Local Councils (Election) Rules and materially affects the conduct of election. It is also an illegality in terms of rule 13 (d) ibid because no precautions as laid down in rule (d) (2) (a) ibid were taken by respondents Nos. 1 to 3 or their election agents. It is also established by overwhelming evidence on record that ballot boxes intended for the District Council elections were mixed up with those meant for the Union Council elections with the result that a large number of votes were cross-cast. It is admitted by respondent No, 1 that 68 votes of the petitioner were cancelled by Presiding Officer. The petitioner, however claims that his 99 votes were cancelled. No evidence to the contrary has been produced by the respondent to rebut this contention. Considering the above, I am inclined to agree with the petitioner that a large number of votes were cancelled only because these were cast on the District Council ballot-papers. It appears that the voters under confusion, thinking the ballot- papers to be intended for Local Council Elections, put them in the ballot box of the petitioner. These ballot papers were actually intended for District Council elections and this confusion resulted in cancellation of large number of votes of the petitioner. The evidence also reveals that there was close similarity in colours of ballot papers conducive to confusion worse confounded particularly when the two elections which were being held in the same premises, are at the same time. Issue No, (ii) is, therefore, decided in favour of the petitioner".
5. Now we proceed to deal with the points raised by the learned counsel. As for point No, (1), we find that respondent No, 2 herein examined Sabir Hussain P W-1, Muhammad Siddique P W-2 and Muhammad Jameel P W-3. He also appeared as a witness. All these witnesses have deposed about the irregularities committed in the election and as such it cannot be said that there is no evidence whatsoever to prove any irregularity. The evidence has also been believed by the election Tribunal. As for point No, 3, we find that the Tribunal has A applied mind, taken into consideration the evidence on the record and has given reasons in support of his conclusion. It was within his authority to believe or disbelieve the evidence. I am afraid, this Court while sitting in its constitutional jurisdiction would not revise the finding of the Tribunal by going into the question of weight to be attached to a particular item of the evidence.
As for point No, 2, the learned counsel has vehemently argued that the finding of the Tribunal that the boxes were not placed in the alphabetical order is falsified by Annexure 'A', 1. e. Statement of count which shows that the box of Sadar Din was placed at its right place, f. e. In the end. We have considered this argument with care. We find that there is evidence of the witnesses produced by the petitioner to the effect that the box of Sadar Din elected petitioner was not placed at its real place. Even from the arguments and Annexure 'A' relied upon by the petitioner it appears that the box of Sadar Din was placed B in the end. To our mind, this is in violation of rule 31 (d) which reads: 31 (d). Affix a slip containing the name and symbol of the candidate outside the ballot box and so place the ballot boxes in the alphabetical order of the names of the candidates determined according to Urdu language as to be ready to receive the ballot papers.
Since in Urdu alphabetical order {{URDU TEXT}} comes first and subsequent thereto, therefore, the box of respondent No, 2 which according to the learned counsel was placed in the end was not placed in its right and real Place. The confusion created in the election by this irregularity c committed by the Presiding Officer is apparent from the number of the votes which were cancelled as mentioned in Annexure 'A'. To us, this is a failure on the part of the Presiding Officer to comply with the provisions of the Ordinance within the meaning of rule 31 (d) and alone was sufficient for the declaration of election as a whole to be void.
' For all these reasons we are of the view that no case for interference with the impugned order has been made out. This petition is dismissed in limine.