' ABDUL SHAKURUL SALAM, J.-In an election held on 25-9-1979, the petitioner and respondent No. 1, amongst others, fought election for a seat in the local council of village Wah Radha Ram, Tehsil Chunian, District Kasur. One Anwar ran away with the ballot-box of the petitioner. Votes were counted. Respondent No. 1 got 146 votes. Ballot-box of the petitioner was recovered. It was produced before the Presiding Officer. The runaway man was, in due course, convicted. On the order of the Returning Officer, the Presiding Officer opened the ballot-box of the petitioner and counted 156 votes on 30-9-1979. The petitioner was declared elected. Respondent No. 1 filed an election petition. After recapitulating the fact, the Election Tribunal held "that the sanctity of the ballot had been violated. No reliance can be placed on the votes that came out of ballot-box of respondent Khushi Muhammad (the present petitioner?". He set aside the election and directed re- election. This is vide order dated 1-2-1981. It is challenged by the petitioner.
2. Learned counsel for the petitioner has contended, firstly, that the election petition was not in accordance with rules 4 and 9 of the Punjab Local Councils Elections Rules of 1979 because all the contesting candidates were not impleaded as a party. It is, secondly, contended that the ballot- box of the petitioner was removed by some miscreant and when it was produced, the votes were counted. Those being more in number than of the respondent No. 1, the petitioner was rightly elected. Learned counsel submittedA that the removal of the ballot-box had not materially affected the result, therefore, that fact by itself would not annul the result of the election. He placed reliance on Hakim Ali and others v. Deputy Commissioner/Election Tribunal (1).
3. In reply, the learned counsel for the contesting respondent No. 1 submitted that the first contention is not tenable for the reason that it was not raised before the Election Tribunal and the second submission has no force because the learned Election Tribunal has rightly held that the sanctity of the ballot had been violated. It is submitted that the petitioner could have tampered with or interfered with the votes cast in his ballot-box.
4. After hearing the learned counsel for the parties, we are clear thal if a ballot-box of a candidate is removed at the time of counting but recovered subsequently without any blemish being attached to the candidate, he cannot B obviously be made to suffer for the default of others, especially, when there is no tampering or interference in the votes cast in the ballot-box. The learned Election Tribunal annulled the election on the ground that 'sanctity of the ballot had been violated'. Lord Denning, M R in Regan and others v. Simpson and another (2) in a compendious judgment about election disputes quoted with approval Lord Stephenson L J. As saying that "the law ,e to....I' elections, to my understanding of the section, recognized as entocligli in the Act\ {{BLURE PAGE}} ,and the rulesis that an election .Will stand if there have livenu bcesmhem.Etiage dAPY/Al4ktileY, are tuti4ubstat4140:Ihtit have Pio6affepOttbriwatl) (wmiptliolivg* iv M,-PY,FifogVnglugds)- 40 Awsiliw,14id*WP AilItkeelltasaexi ISiumembohavla 1140,44stMlitailAik,iline,41Li's,cgsthowtitiii itia 5bgbItestood amullielaPttafte iRetitkNer.f.iSin9PAYt reSimiaisFINI tteccbtemofeilludbailifiiebtkrinisAlik mod walCf ' 04449 \WW0,affectigfintileiresPitsigefelitiibilfa4 gokinastialifigiit Mreatettyal. ii- - i-----L d./Cttilfpft Odi ?i ZiliT .(I - .419'ala - IN ki..."1141A - 1,11 a rirrt 6 1982 21 (-19701 AWE-R-7 1S2.I (I {{BLURE PAGE}} ' and recovery would not amount to violation of secrecy of the ballot without any evidence to that effect. Assumption cannot be made.
5. For the foregoing reasons, the impugned order of the learned Election Tribunal is declared to be without lawful authority and of no legal effect. Constitutional petition is accepted but in the circumstances of the case, the parties shall bear their own costs.