' ABDUL SHAKURUL SALAM, J.-The petitioner contested election to the Lahore Municipal Corporation from Unit No. 72, Lahore held on 28th September, 1983. He secured 1,062 votes. Respondent No. 2 got 1912 votes. Thus the petitioner lost by 850 votes. He firstly filed a petition under section 17 of the Punjab Local Government Ordinance, 1979 before the Election Authority on the plea that the respondent No. 2 was a member of defunct political party and thus disqualified. The petition was, however, withdrawn on 4th October, 1983. He then filed an election petition under section 24 of the aforesaid Ordinance. Three relevant issues to the effect that "whether respondent No. 2 Khalid Mahmood was disqualified to contest the election as alleged in these petitions ? If so, with what effect ? Whether respondent No. 2 Khalid Mahmood has misconducted himself during the election ? If so with what effect ?; and whether the election of respondent No. 2 Khalid Mahmood is the result of corruption and illegalities committed in the conduct of election ? If so, with what effect" ? Were tried by the learned Election Tribunal. Considering the evidence of the parties on the issues the learned Additional District Judge/Election Tribunal, Lahore, vide order dated 28th March, 1984, found the same having not been proved and dismissed the election petition. Hence this Constitutional petition.
2. Learned counsel for the petitioner has vehemently contended that to ensure compliance of rule 34 of the Election Rules, 1979 providing for voting procedure, Instruction No. 69 was issued by the Election Authority in exercise of powers under section 17 of the Punjab Local Government Ordinance, 1979 which lays down in clause (d) that number of the National Identity Cards shall be entered on the counterfoil and this was not done as deposed to by the P. W. 3 Sarwar Khan, Reader to A. C.
Saddar, Lahore, therefore, the election as a whole has to be declared as void under rule 15 of the Election Petition Rules, 1979. He, secondly, contended that the respondent No. 2, the successful candidate was disqualified under section 21, sub-subsection (h) of the Punjab Local Government Ordinance, 1979 for the reason that he was a General Secretary of the defunct-Pakistan People's Party and he having not obtained permission of the Government to be a candidate for which the onus was wrongly placed on the petitioner, the respondent No. 2's election could not be upheld by the learned Election Tribunal as it has done. He referred to section 13 (b) of the Election Petitions Rules, 1979 to contend that the returned candidate was, on the nomination day, disqualified to be elected for the aforesaid reason and, therefore, his election should have been set aside.
3. We have heard the learned counsel for the petitioner at length and perused the record with his assistance. All the contentions raised were considered under the issues aforequoted and the learned Election Tribunal after weighing the evidence led by the parties has come to the conclusion that none of those had been proved on the record. The evidence having been adjudged and findings recorded by the learned Election Tribunal cannot be re-appraised in these proceedings as we are not hearing an appeal against the order of the learned Election Tribunal and in exercise of extraordinary Constitutional jurisdiction, no interference can be made on findings of fact.
4. Some comments may, however, be made on the contentions raised which were vehemently urged. As regards the first contention that for non-insertion of the identity cards numbers on the counterfoils of the ballot-papers, the election was liable to be declared void in terms of rule 15 of the Election Petitions Rules, 1979, the provision of the Rule may be quoted. Rule 15 of the Election Petitions Rules, 1979 lays down as follow "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 practice."
There are two points to be noted ; firstly, that the result of the election must have been materially affected. No proof to this effect has been adduced by the petitioner in this behalf. The reliance on the evidence of P. W. 3, Reader to the Assistant Commissioner who brought the record, did not show as to how the result of the election had been materially affected. In other words, it is not there as to how many votes received by the respondent No. 2 were affected by non-insertion of the identity cards on the counterfoils. Secondly, the election can be avoided if there is non-compliance of the provisions of the Ordinance or the Election Rules-not of Instructions. These were issued for the guidance of the relevant officials. Instruction No. 69 issued by the Election Authority in the Hand- Book for Presiding Officers for Elections to the Local Councils in the Punjab, 1983, lays down the details. These are as follows : "The following voting procedure prescribed under rule 34 shall be followed :-
(1) Where a voter presents himself at the polling station to vote, the Presiding Officer/Assistant Presiding Officer shall, after satisfying himself about the identity of the voter, issue to him a ballot- paper. For this purpose a voter may be required to produce his National Identity Card issued to him under the Registration Act, 1973 (Federal Act LVI of 1973).
(2) Before ballot-paper is issued-
(a) the voter might show a chit containing his name and the electoral roll number, issued to him by any of the candidates, to a polling officer who will verify his name and electoral roll number from the copy of the relevant electoral roll with him. He will then call out the number and name of the voter as entered in the electoral roll.
(b) The serial number on the counterfoil of the ballot-paper to be issued to the voter shall be entered on the electoral roll against the number and name of the voter.
(c) The voter shall then be required to receive a personal mark made with indelible ink on the thumb finger. While doing so the Polling Officer will make sure that the voter does not have such a mark already on thumb/finger.
(d) The number and the name of the electoral unit, the name of the local council, the serial number of the voter on the electoral roll, the name of the village etc. And the number of the National Identity Card shall be entered on the counterfoil by the Presiding Officer/Assistant Presiding Officer who shall obtain thumb impression of the voter on the counter-foil of ballot-paper and also put his signatures on the counterfoil.
(e) The number and name of the electoral unit and the name of local council shall be entered on the ballot-paper which shall also be signed by the Presiding Officer/Assistant Presiding Officer.
(1) The voter on receiving the ballot-paper shall forthwith enter the room or compartment in which the ballot-boxes are placed and shall secretly place his ballot-paper in the ballot-box bearing the name and symbol of the candidate for whom he wishes to vote and immediately thereafter leave such room or compartment."
' A perusal of the above would show that clause (1) of Instruction No. 69 lays down that- "Where a voter presents himself at the polling station to vote, the Presiding Officer/Assistant Presiding Officer shall, after satisfying himself about the identity of the voter, issue to him a ballot- paper. For this purpose a voter may be required to produce-his National Identity Card issued to him under the National Registration Act, 1973."
In other words, the Presiding Officer is required to satisfy himself about the identity of the voter and to issue him a ballot-paper. For this purpose he may require the production of national identity card. If he is otherwise satisfied about the identity of the voter he may not require production of national identity card and may issue him a ballot-paper. It is true that in sub-clause (2) (b) of the aforesaid instruction No. 69, it is provided that serial number on the counterfoils of the ballot- papers to be issued to the voters shall be entered on the electoral roll against the number and the name of the voter and under (d) the number and the name of the electoral unit, the name of the Local Council, the Serial Number of the voter on the electoral roll, the name of the village etc. And the number of the national identity card shall be entered on the counterfoils by the Presiding Officer/Assistant Presiding Officer. Now, if any of these things is not done or omittted by the Presiding Officer, no penalty is provided for. In such a situation, non-compliance will only be an irregularity. Voters or candidates cannot be punished for no fault of theirs for action or omission of another over whom they had no control. If it were so, an official either willingly o unwillingly by his inefficiency, incompetence or indolence may deprive the voters of their franchise or successful candidate of an elected office. Therefore, it has always been the law that if elections have been held sub stantially 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 mere irregularities or non-compliance of directory provisions. Reference may be made to a Court of Appeal decision in Morgan and others v.
Simpson. And another (1) and to a learned Division Bench judgment of the Sind High Court in Ghulam Ghous v. Muhammad Rafiq, etc. (2). As regards the contention of the learned counsel for the petitioner that the respondent No. I was disqualified to be a candidate for having been General Secretary of the defunct political party i. e. Pakistan Peoples Party, it has to be seen that the learned Election Tribunal has weighed the evidence led by the parties on the point. The learned Election Tribunal upheld the contention of the respondent No. 2 that "the documentary evidence produced by the petitioner in the form of newspapers and photostat
(1) (1974) 3 All E R 723 (2) PLD 1982 Kar. 872 ' copies, cannot be relied upon as legally the same cannot form part of the evidence." He observed that "unless it is proved that news item is correct, it cannot form part of evidence. News item alone in the absence of corroborative evidence, cannot be considered to be proper evidence in respect of a particular fact." The learned Election Tribunal was quite right. If news items were to be relied upon for recording a finding, many a people may be condemned on account of adverse comments made by their opponents in the newspapers. So also many people can be convicted on the reports in the newspapers about commission of crimes. Copy of a statement made by one Azizur Rehman produced as Exh. P. 8 to which the learned counsel for the petitioner makes reference was not relied upon by the Election Tribunal for the reason that the said Azizur Rehman was not produced in the proceedings before him to depose against the respondent No. 2 "nor his statement shows that that respondent No. 2 was office-bearer of People Party on or after 20th December, 1971, so as to disqualify him". Without showing that the maker of the statement was not available or could not be produced his earlier statement was not admissible nor could be relied upon. The learned Election Tribunal was quite right in not relying upon the same. Now if on the basis of the evidence produced before it, the learned Election Tribunal has come to the conclusion that the issue was not proved against the respondent No. 2, we can neither reappraise the evidence nor interfere in the finding of fact in exercise of Constitutional jurisdiction. The learned Election Tribunal also came to the conclusion that "there is no evidence worth mentioning to prove that any corrupt or illegal practice was committed with the consent or connivance of respondent No. 2 or his election agent or that respondent No. 2 and his election agents had failed to take any reasonable precaution to prevent its commission." If there be no evidence to tarnish the respondent No. 2, he having been chosen by the electorate. Cannot be unseated from his elected office on the motion of the petitioner when the latter had fought well and squarely against the respondent No. 2 having got 1,062 votes as against respondent's 1,912 votes. Having lost by a good margin of 850 votes, the petitioner has to accept the verdict of his electorate.
4. In view of what has been stated above, there is no force in this petition and the same is, accordingly, dismissed in limine.