' ABDUL SHAKURUL SALAM, J.--The petitioner and his close rival, respondent No.2 fought election to the Union Council No.97, Tehsil and District Sargodha, held on 28-9-1983. The petitioner was declared elected. Respondent No.2 filed an election petition saying that the petitioner was declared successful having secured about 140 votes more, but the election be declared void on account of corrupt and illegal practices. The learned Additional Commissioner (Revenue) acting as Election Tribunal accepted the petition, declared the election void and ordered re-election. This is vide order, dated 12-3-1984. Hence, this Constitutional petition.
2. Learned counsel for the petitioner submitted that the Election Tribunal summed up his conclusion in para. 11 of the impugned order and observed that "It may be concluded that there was use of transport for conveying of voters against the dictates of rule 72(4) of the Election Rules, 1979; Entry of unauthorized persons (Atta Muhammad and Rab Nawaz) to the Polling Station against the intention of rule 32 and entrusting Certain duties of a Police Constable who was not an official appointed on polling duty by the Returning Officer under rule 1.0(1) of 1979 Rules, which violation have affected the poll. In 1982 SCMR 833, the election was declared void as a whole because it was conducted unfairly and irregularities were committed. The petitioner against an order of Election Tribunal got, therefore, no relief. Similarly, in PLD 1963 Kar. 433, it was held that where a candidate was made to suffer because of omission or commission on the part of the Polling Staff, Election Tribunal could give relief where result of election got materially affected. In the case under discussion, Atta Muhammad and Rab Nawaz were employees in the same Office where the A.P.O. (P.W.2) was employed. The A.P.O. stayed with Atta Muhammad and Rab Nawaz who hosted for him and that they were voters in Writ Petition No.
10. These persons were at the booth. This imperceptibly could create impression that the respondent was on a firmer wicket as compared to the petitioner. This was sufficient to affect the Poll materially. Even in 1983 CLC 2441, it was held that the result of the election had been materially affected because the ballot-boxes of the candidates were not placed in alphabetical order of the names of the contestants." As regards declining to declare the then petitioner (present respondent No.2) elected, the learned election Tribunal observed that "It is so because the petitioner has not conclusively proved the number of invalid Votes polled by respondent No.1 and moreso, that the election of the respondent was void only on a general violation of Rules, which was in fact a ground under rule 15(9)(b) of the Rules ibid. I am, therefore, satisfied that the result of the election has been materially affected on the foregoing reasons. The election of W. No. 10, is, therefore, declared as a whole void and a re-election is ordered."
3. Learned counsel for the petitioner contended that the three irregularities mentioned did not materially affect the result of the election. The lead of the petitioner was more than 140 votes. Nor such a finding has been recorded. Without such a clearcut finding the election could not be annulled per rule 15 of the Election Petition Rules. Mere surmises and conjectures cannot result in thwarting the overwhelming will of the electorate.
4. Mr. Muhammad Amir, Advocate who appeared as attorney of the respondent No.2 very assiduously argued the case. He submitted that the phrase 'materially affected the result' did not require proving that the excess votes would not have been obtained by the successful candidate if the irregularities and illegalities had not been committed. He relied on Abdul Sattar Rana v S.M.Zaidi and another PLD 1968 SC 331. He submitted that when ballot-boxes were not put in alphabetical order contrary to the Rule, election was declared void. He relied on Ghulam Rasool v. Additional Commissioner Revenue and others 1983 CLC 2441. Secondly that the petitioner was a previous convict of perjury and should not be allowed to hold public office. He submitted that the petitioner was convicted in a civil suit of having gone over his statement in examination-in-chief and sentenced to a fine of Rs.20 by civil Court.
5. In reply the learned counsel for the petitioner submitted that the second plea was not taken in the election petition and could not, therefore, be raised even before the Election Tribunal. He relied on Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan etc. PLD 1957 SC 91 at 133. Muchless in this Court in these proceedings. Moreover, disqualification to hold office is only where the person concerned has been sentenced to no less than six months' imprisonment vide section 21 of the Punjab Local Government Ordinance, 1979.
6. We have heard the learned counsel for the parties at length and gone through the record with their assistance. Taking the second and the last contention on behalf of the respondents that the petitioner was a previous convict of perjury, it need only be said that this was not the ground taken in the election petition nor urged before the election Tribunal. It cannot be allowed to be raised for the first time in these proceedings, especially when it would require recording of evidence.
Moreover, the case does not fall within the ambit of the provision relating to disqualifications as laid down in section 21 of the Punjab Local Government Ordinance, 1979. Coming to the crux of the controversy that the election of the petitioner was liable to be declared as void on account of corrupt and illegal practices, learned election Tribunal in his order as quoted above has observed that "there was use of transport for conveying of voters against the dictates of rule 72(4) of the Election Rules, 1979; entry of unauthorized persons Atte Muhammad and Rab Nawaz to the Polling Station against the intention of rule 32 and entrusting certain duties to a Police Constable who was not an official appointed on polling duty by the Returning Officer under rule 10(1) of 1979 Rules, which violations have affected the poll". These are mere irregularities or at worst illegalities but there is no finding recorded by the learned Election Tribunal that these have materially affected the result of the election. In this connection he referred to Abdul Rashid, etc. v. Additional Commissioner, etc. 1982 SCMR 833 and observed that "the election was declared void as a whole because it was conducted unfairly and irregularities were committed. The petitioner against an order of Election Tribunal got, therefore, no relief." He, however, omitted to consider the concluding observation in para. 2 of the judgment that "keeping in view the nature of these irregularities, specially the one relating to the 'delimitation' of the constituency we feel that although the learned Election Tribunal had not repeated the formula mentioned in section 15, the defect is merely technical one. We are of the view that the irregularities committed in this election must have materially affected the result of the election................
" The irregularities committed in the case related to the 'delimitation' and the voters had not been made properly aware by the authorities concerned of the correct delimitation of the Unit from where they were voting. In the case in hand, there was neither any fundamental defect like that of delimitation or deprivation of votes, nor, that the irregularities had materially affected the result of the election. The other decision relied upon is Jan Muhammad v. Collector, Jacobabad and others PLD 1963 Kar. 433 and it was observed that "it was held that where a candidate was made to suffer because of omission or commission on the part of the polling staff, election Tribunal could give relief where result of election got materially affected." Two points need be noted. Firstly that the defeated "candidate was made to suffer because of omission or commission on the part of the polling staff" and secondly, that the result has been "materially affected". In the case in hand no such finding has been recorded that the election-petitioner i.e. the present respondent No. 2 was in any way made to suffer because of the omission or commission on the part of the polling staff. The observation in this regard in the impugned order is that "in the ease under discussion, Atta Muhammad and Rab Nawaz were employees in the same office where the A.P.O. (W.P.2) was employed. The A.P.O. stayed with Atta Muhammad and Rab Nawaz who hosted for him and that they were voters in W.No.10. These persons were at the booth. This imperceptibly could create impression that the respondent was on a firmer wicket, as compared to the petitioner. This was sufficient to affect the poll materially." Not only that the A.P.O. and the two named persons were employed in the same Organization and their being together was not abnormal, but also the inference drawn that "this imperceptibly could create impression that the respondent was on a firmer wicket as compared to the petitioner" and "this was sufficient to affect the poll materially" is too imaginative and no nexus has been established with reality. As regards the contention on behalf of respondent No.2 that the latter was not required to prove that excess votes obtained by the petitioner were the result of irregularities and illegalities for which he relied upon Abdul Sattar Rana v. S.M. Zaidi and Muhammad Khan PLD 1968 SC 331 the answer is given in the same judgment at page 335 wherein it is quoted that "It is conceded, I think, that in order to prove that the result of the election was materially affected, it is not necessary to prove that the successful candidate would not have been elected but for the practice found to have been corrupt and that it is sufficient if it is proved that his majority would have been substantially reduced. It is, therefore, not enough to prove that a large number of votes which ought not to have been cast, have in fact been cast. It is necessary to prove that the casting of these votes materially affected the difference between the totals polled by the candidates." Further it is quoted that "the result of the election had been materially affected, means that the majority of the returned candidate would have been materially reduced if he had not resorted to such corrupt practices". The difference between the petitioner and the respondent No.2 in a Union Council Election was of 140 votes. The learned Election Tribunal has not found as to how that majority would have been substantially reduced by the alleged irregularities of transporting the voters or because of presence of unauthorized persons. The final conclusion of the learned Election Tribunal that the election of the petitioner was void "only on a general violation of Rules which was in fact a ground under rule 15(9)(b) of the Rulds" is really a misapplication of the said rule 15 which reads as follows:- "15. 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 at the election."
' Both the grounds for annulment of the election are preceded by the condition that the Election Tribunal is satisfied that "the result of the election has been materially affected". Without finding that, neither any failure of any person to comply with the provisions of the Ordinance or the Election Rules, nor, even prevalent extensive corrupt or illegal practices will have the result of undoing the verdict of the electorate. In the case in hand, of course, there is no finding that there was any extensive corrupt or illegal practice at the election.
7. From what has been stated above, it would be quite clear that neither the relevant Rule nor the law of election permitted the learned Election Tribunal to set aside the verdict of the electorate on surmises and conjuctures without there being a specific finding based on facts and reasons that the result had in facts been 'materially affected'. Since no such finding has been arrived at, the impugned order cannot be sustained. This being so, it is declared to be without lawful authority and of no legal effect. The petition is thus allowed but, in the circumstances, the parties are left to bear their own costs.
Writ issued.