' ABDUL SHAKURUL SALAM, J.-The petitioner was elected to the Zila Council, Sialkot from Electoral Unit No, 29 by getting 3,816 votes. His closer rival respondent No, 4 got 3,349 votes. The latter filed an election petition challenging the election of the petitioner and for himself being declared elected.
The ground given was that at polling station village Ahl Ghumanan the petitioner in connivance with the Polling Officer polled bogus votes without producing any identity card and in this manner he was in a position to secure 802 votes as against him, the respondent No, 4 who had got 216 votes. It was stated that the fact that the voters whose names had been mentioned in the voters list did not come to cast votes in favour of the petitioner is crystal clear from the fact that the numbers of the National Identity Cards had not been noted down on the counterfoils of the ballot papers and thus the petitioner had committed corrupt and illegal practice. The learned Election Tribunal, on the basis of the preliminary statements of the parties and examination of the ballot papers of polling station Ahl Ghumanan, framed the following issues on 20th October, 1983 :
(1) "Whether the omission of the Presiding Officer of Polling Station No, 562, Ahl Ghumanan, Tehsil Narowal, to mention the numbers of the National Identity Cards of the voters on the counterfoils of the ballot papers numbering 1191 is tantamount to illegal practice ? O.P.P.
(2) What is the legal effect of absence of thumb-impressions of the voters on the counterfoils of the ballot papers numbering 19 and also the absence of signatures of the Presiding Officer on the counterfoils of the ballot papers numbering 26 on the Election result of Polling Station No, 562 Ahl Ghumanan ? O.P. Parties."
' The learned Election Tribunal first dealt with the question as to "whether or not the omission of the Presiding Officer and his subordinate Authorised Polling Staff to make the entry of the serial numbers of the National Identity Cards of the voters on the counter-foils of the ballot papers numbering 1191 was tantamount to illegal practice by him and that too with the connivance or consent of respondent No, 3." He held that "It is pertinent to observe that not a scintilla of evidence on the point of connivance or consent of the respondent No, 3 (the petitioner) to the act of non- mentioning of the serial numbers of the National Identity Cards of the voters on the counterfoils of the ballot papers by the Presiding Officer, is forthcoming on record. Similarly, there is no proof on record to the effect that the respondent No, 3 (the petitioner) procured the assistance of any of the Polling Staff including the Presiding Officer (respondent No, 2) to furthers his election from the Electoral Unit No,
29. As regards the question whether or not the omission of the Presiding Officer falls within the mischief of rule 73 of the Punjab Local Councils (Election) Rules, 1979, it may be observed that apparently, it would not amount to illegal practice". However, he held that "it stands amply established on record, that the Presiding Officer and the Assistant Presiding Officers of Polling Station No, 562, at village Ahl Ghumanan of Electoral Unit No,
29. Deplorably and consciously failed to comply with the requirements of the Ordinance and the Rules framed thereunder and the Instructions issued by the Authority in exercise of the powers under section 17 of the Ordinance, as given out in Paragraph 69 (d) of the Manual of Instructions, 1983, "inasmuch as they did not make the entry of serial numbers of National Identity Cards on the counterfoils of the ballot papers numbering 1191, nor did they obtain the thumb-impression of the voters on the counterfoils of the ballot papers numbering 19, nor did they affix their signatures on the counterfoils of the ballot papers numbering 26, which evidently has the direct and inevitable effect of rendering the proceeding in that Election at that Polling Station as invalid."
' Coming to the question as to "whether or not the result of the Election of Electoral Unit No, 29 has been materially affected by reason of the failure of the Polling Staff of Polling Station No, 562 at village Ahl Ghumanan to comply with the provisions of the Ordinance or the Election Rules and Instructions of the Authority", he observed that "This is an admitted and proved fact that the petitioner (respondent No, 4) obtained the highest number of votes at all other Polling Stations viz. 3,131 votes as compared to respondent No, 3 (present petitioner), who secured 3,015 votes. If those votes of Polling Station No, 562 were not taken into account in view of the deliberate breach by the Polling Staff, of the provisions of the Ordinance etc. Then the only conclusion that would have followed was that the result of the Election had been affected materially. So the petitioner (respondent No, 4) could claim to have been elected. Similarly, besides the admission by the Presiding Officer and its proof available on record with regard to the violation of the imperative provisions of the Ordinance and Rules framed thereunder etc. He (respondent No, 3) and representative of respondent No, 1, made disclosure of certain significant facts on record, which tend to show that the result of the Election stood materially affected. In his preliminary statement, Syed Saif Ali Shah Kazmi, respondent No, 2, deposed that according to his count, as many as 1,169 votes in total had been cast on the Polling Station No, 562, at village Ahl Ghumanan, on 28th September, 1983 out of which respondent No, 3 (the petitioner) obtained 802 votes, while the petitioner (respondent No, 4) secured 216 votes. Abdur Razzaq, Project Manager, Narowal, representative of the Returning Officer, respondent No, 1 brought and produced the document of final result of the Election as Exh. C.1. According to that document, only 1,100 votes had been cast at Polling Station No, 562, at village Ahl Ghumanan. The fact, as to wherefrom the remaining votes numbering 169 can be made available, still enshrouds in mystry." Finally, he held that "this Tribunal is fully satisfied that the result of the Election of Electoral Unit No, 29 has been materially affected, and as such it has to be declared as a whole to be void." He ordered accordingly vide order, dated 2)th October, 1983 Hence this petition.
2. Learned counsel for the petitioner vehemently contended that the omission to record the number of the identity cards of the voters on the counterfoils of the ballot papers was directory and not mandatory as no penalty for non-observance of the provisions has been provided for and, therefore, the election of the petitioner could not be annulled for that omission. He placed reliance on Abdul Latif Khan v. The Province of East Pakistan and others (1), James Finlay & Co. Ltd. v. Aminul Islam and others (2), Niaz Muhammad Khan v. Mian Fazal Raqib (3) and Rana Muhammad Jamid v.
The Punjab Road Transport Board, Lahore and others (4). He dded that under the Election Laws instructions are clearly directory. He placed reliance on Malik Muhammad Akhtar v. Mian Salahuddin and 9 others (5). He further submitted that for the fault of the officials concerned not to record identity cards numbers, the innocent citizens cannot be punished. He placed reliance on Dr. Ifabibur Rahman v. The West Pakistan Public. Service Commission Lahore and 4 others (6). Lastly, he submitted that the Presiding Officer had though not recorded the numbers of the
(1) PLD 1970 Dacca 350 (2) PLD 1969 Dacca 571
(3) PLD 1974 SC 134 (4) PLD 1957 Lab. 1
(5) PLD 1971 Lab. 737 (6) PLD 1973 SC 144 ' identity cards on the counterfoils of the ballot papers but had in fact seen those as stated by him in the written statement filed before the Election Tribunal.
3. Learned counsel for the contesting respondent No, 4 has submitted that the instructions issued for entering the numbers of the identity cards of the voters on the counterfoils of the ballot papers issued under section 17 of the Punjab Local Government Ordinance, 1979 and the rules made thereunder being of general nature were binding for the polling staff. He placed reliance on Mian Munawar-ud-Din v. The Federation of Pakistan through the Secretary, Federal Ministry of Communication, Islamabad (1) and for their non-compliance, he submitted, the election was rightly annulled by the Election Tribunal. He referred to Ghulam Rasool v. Additional Commissianer (Revenue), etc. (2) to contend that where the ballot boxes were not put in alphabetical order as required, the election was annulled. He submitted that although the omission was very minor yet the election was avoided. He also referred to Kaka v. Mst. Allah Di and others (3). Lastly, he submitted that the decision of the learned Election Tribunal is not interferable in exercise of Constitutional jurisdiction. He placed reliance on Muhammad Hussain Munir and others v. Sikandar and others (4).
4. After hearing the learned counsel for the parties at length and perusing the record with their assistance we find firstly that the respondent No, 4 has filed his election petition on the ground that at the Polling Station of village Ahl Ghumanan the petitioner in connivance with the Presiding Officer polled bogus votes without producing any identity card and in this manner he was in a position to secure 802 votes as against respondent No, 4 who secured 216 votes. The fact that the voters whose name had been mentioned in the voters list did not cast votes in favour of the petitioner is crystal clear from the fact that number of the National Identity Cards had not been noted down on the counterfoils of the ballot papers and the omission of the entry meant that the petitioner had committed a corrupt and illegal practice and as such his election was void. In accordance with rule 5 of the Election Petition Rules, 1979 it is provided that : - "Every election petition shall contain-
(a) a precise statement of the material facts on which the petitioner relies ;
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act."
' The sum and the substance of the allegation that non-entry of the numbers of the identity cards of the voters on the counterfoils of the ballot papers, was in connivance of the petitioner with the Presiding Officer and that was a corrupt or illegal practice. Now, on the points the findings of the learned Election Tribunal have been quoted in the first paragraph which are to the effect that "It is pertinent to observe that not a scintilla of evidence on the point of connivance or consent of the respondent No, 3 (the present petitioner) to the act of non-mentioning of the serial numbers of the National Identity Cards of the voters on the
(1) PLD 1979 Lah. 699 (2) 19/3 CLC 2441
(3) PLD 1960 Lah. 857 (4) PLD 1974 SC 139 ' counter foils of the ballot papers by the Presiding Officer, is forthcoming on record." He also observed that non-mentioning of the identity cards numbers by the Presiding Officer "would not amount to illegal practice". In view of the ground taken in the election petition in accordance with rule 5 aforequoted, there was no occasion for the learned Election Tribunal even with the consent of the parties to enlarge the issues which he did on 20th October, 1983 when he framed the following issues :
(1) "Whether the omission of the Presiding Officer of Polling Station No, 562, Ahl Ghumanan, Tehsil Narowal, to mention the numbers of the National Identity Cards of the voters on the counterfoils of the ballot papers numbering 1,791 is tantamount to illegal practice ? Q.P.P.
(2) What is the legal effect of absence of thumb impressions of the voters on the counterfoils of the ballot papers numbering 19 and also the absence of signatures of the Presiding Officer on the counterfoils of the ballot papers numbering 26 on the Election result of Polling Station No, 562 Ahl Ghumanan ? O.P. Parties."
' Second issue was not even urged as a ground by the election petitioner (respondent No, 4). In any case, the votes in issue No, 2 add up 19 +26 equivalent to 45. The petitioner had got 802 votes, whereas the contesting respondent No, 4 had got 216 votes in the disputed polling station of Village Ahl Ghumanan. Besides that the learned Election Tribunal has not found as to in whose favour these votes were cast, nonetheless they did not materially affect the result of the election inter parties because the petitioner had a lead of 536 votes in the polling station. Now regarding the issue as to "whether the omission of the Presiding Officer of Polling Station No, 562, Ahl Ghumanan Tehsil Narowal. To mention the numbers of the National Identity Cards of the voters on the counterfoils of the ballot papers numbering 1,191 is tentamount to illegal practice?" the learned Election Tribunal has held that "it does not so amount to illegal practice" in the opening part of para. 9 of his order but all the same he has found that not doing so, that is co say, in not recording the numbers of the identity cards of the voters on the counterfoils has resulted in annulling the election because the officers concerned had failed to comply with the requirements of the Ordinance and the Rules framed thereunder and the instructions issued by the Election Authority.
Relevant provision for declaring election as a whole void is laid down in para. 15 of the Election Petitions Rules, 1979 which reads as follows : "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 partite at the election."
From this it is quite clear that failure to comply with the provisions of the Ordinance or the Election Rules even, will not avoid the election much less , the instructions would do if the result has not been materially affected.^ Relying on a judgment of the learned Division Bench of the Sind High Court in Ghulom Ghous v. Muhammad Rafiq etc. (1) which in scholarly fashion has referred to a large number of decisions of highest authority and Morgan and others v. Simpson and another (2), we have already in Writ Petition No, 1559 of 1984 decided on 16th April, 1984 held that "non- compliance will only be an irregularity. Voters or candidates cannot be punished for no fault of theirs for action or omission Or another over whom they had no control. If it were so, an official either -willingly or unwillingly by his inefficiency, incompetence or indolence may deprive the voters of their franchise or success of an elected office.". It was further observed that "it has always been the law that if elections have been held substantially in accordance with the statute or the rules and are not sham or traversity of an election by ballot, these are not to be avoided for more irregularities or non-compliance of directory provisions." We may note here that alth)ugh the learned Election Tribunal has held that the result has been materially affected by non-compliance but that finding he has recorded because of the non-compliance per se, otherwise, he has not found as to how the result of the election while counting of votes has been affected simply by non- entering of the identity cards numbers on the counterfoils of the ballot papers. The lead of the petitioner was of about 600 votes and both sides' votes had not the numbers. The omission was in respect of one polling station only but the election of the entire electoral unit has been annulled.
The learned Election Tribunal has erred in applying the law and comprehending the essential element of the controversy. The contentions of the learned counsel for the contesting respondent No, 4 regarding the efficacy of the instructions on the point have already been dealt with. Reliance on the decision that for non-putting the ballot boxes in an alphabetic order as required, resulted in annulment of election, is distinguishable on facts because the violation was of a Rule and the irregularity committed has been found to have caused confusion". The contention of the learned counsel for the respondent No, 4 that the decision of the Election Tribunal is not interferable in exercise of Constitutional jurisdiction has been explained by the learned author Judge himself in Karam Khan and 5 others v. Muhammad Issa and 12 others (3) wherein it was observed that the ratio decidendi of the case was that the High Court is not to sit as an appellate Court over the orders of the relevant authorities. We are, of course, not dealing with the case as if it is a case of appeal from the order of the learned Election Tribunal but we have come to the conclusion that the learned Election Tribunal erred in law in the interpreting the relevant provisions as if, to quote his own word, these were 'imperative'. These were no such things-Were neither commanding nor pre emptory. These were directory in nature, because these were so detailed that if any in traction were to entail annulment of election, then election can hardly ever be held in which none of the participants which may be millions and thousands of the candidates and hundreds of officials, would not fail to comply with the letter of the instructions. Therefore, the infringement of the instructions on the subject was, by no means, fatal, when the relevant rule 15 of the Election Petitions Rules, 1979 relating to avoiding the election as a whole, makes it quite clear that the election will not be annulled if it has not been materially affected. In the present case, non-entry of the numbers of the identity cards, has not in any manner, affected the result.
5. In view of what has been stated above, this petition is allowed hut, in the circumstances, the parties shall bear their own costs.
(1) PLD 1982 Kar. 872 (2) (1974) 3 All E R 723
(3) 1975 SCMR 36