' MANZOOR HUSSAIN SIAL, J.--Ch. Muhammad Hussain petitioner and Naseer Ahmad respondent contested election to a seat of Electoral Unit No, 6 of Chak No,90/SB, Tehsil and District Sargodha, held on 28-9-1983. The petitioner secured three votes more than his rival candidate and was declared a returned candidate.
' Naseer Ahmad respondent challenged petitioner's election by filing election petition under section 24 of the Punjab Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance).
2. The election tribunal declared the election as a whole void, vide order, dated 27-2-1984.
3. Being aggrieved by the aforesaid order the petitioner has invoked the Constitutional jurisdiction of this Court by means of this petition.
4. Learned counsel for the petitioner contended that the learned election tribunal had fallen in error to declare the election as a whole void without giving any finding to the effect that he was satisfied that the result of the election was materially affected due to prevalence of extensive corrupt or illegal practice at the election.
5. Learned counsel for the respondent No,1, on the contrary submitted that at least five invalid votes were cast at the election and the petitioner having succeeded only by three votes, the order of the election tribunal was, therefore, in accordance with law.
6. The perusal of the impugned order shows that the learned election tribunal declared the election as a whole void under rule 15(b) of the Election Petition Rules, 1979. For facility of reference rule 15 in extenso is reproduced hereunder: "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 Election Rules; or
(b) the prevalence of extensive corrupt or illegal practice at the election."
' The election tribunal in concluding part of his order observed:- "In all, therefore, these five votes have certainly changed the complexion of the result because the difference is only that of three votes. Since the evidence does not establish that these votes had gone to the respondent, there can be no declaration in favour of the petitioner within the ambit of rule 13 of the Punjab Local Councils (Election Petition) Rules, 1979. All the same, there is failure of vigilance making double voting possible by non-marking with Indelible ink as it appears, and to some extent it is a case of illegal practice also. The five votes discussed above have, therefore, materially affected the result of the election which is declared as a whole void."
It is, therefore, clear that out of the_ five votes, two votes namely of Muhammad Munir and Nazir Ahmad of Ward No, 5 were found cast at Ward No,11, but there was no evidence to show that these votes were cast subsequent to those cast at Ward No,11. We are of the opinion that the first votes cast by these persons were valid and only the votes cast second time at different polling booth were invalid. We are supported in this view by judgment of the Supreme Court reported in Abdur Rouf Majumdar v. Election Tribunal and Additional Deputy Commissioner Noakhali 1968 SCMR 233.
' Similarly there is no evidence on the record to show that the remaining three votes allegedly issued from Ward No, 7, were cast in favour of the petitioner. We also notice that the election tribunal himself was not satisfied about the prevalence of extensive corrupt or illegal practice at the election, as according to him it was only to some extent case of illegal practice. Evidently the requirement of law to declare the election as a whole void, having been not fulfilled in the circumstances of the instant case, the impugned, order is liable to be declared of no legal effect.
We accordingly set aside the aforementioned impugned order, dated 27-2-1984 and declare the same to be of no legal consequence.
7. In the result this petition is allowed with no order as to costs.