KHALIL-UR-REHMAN KHAN, J.--Nazir Ahmad petitioner and respondents Nos.l to 3 contested election for the membership of Town Committee, Mamoonkanjan from Ward No.5 of Chak No.509/G.B. Tehsil Samundari, District Faisalabad. The petitioner obtained 260- votes whereas Bashir Ahmad respondent No.l polled 286 votes and as such he was declared elected. The petitioner then challenged the election of the returned candidate by filing an election petition which after trial was dismissed by the learned Tribunal, vide order, dated 30-4-1984. This led to the filing of the present Constitutional petition.
2. The case of the petitioner before the Election Tribunal was that the irregularities committed by the Polling Staff rendered the election illegal and void. The instances, acts, and omissions relied upon in this respect were as follows:-
(i) 28 voters enlisted in the electoral roll of Ward No.5, Chak No.509/G.B. Were not allowed to cast votes as their names were also appearing in the electoral list of Ward No.9, Chak No.510/G.B.;
(ii) Secrecy of ballot-papers was violated as the women voters were made to thumb-mark each vote in violation of the Election Rules;
(iii) Ballot-boxes were not sealed by the Presiding Officer as provided by rule 31(l.)(c) of the Election Rules and locking of the ballot-boxes fails to satisfy the requirement of the aforenoted Rule; and '
(iv) Each and every voter was not required to produce his identity card and as such rule 34 of the Election Rules was violated.
3. The last contention which though was not raised in the election petition appears to have been taken while addressing arguments as the learned Election Tribunal has dealt with this plea in the impugned order. In nutshell the submission made by the learned counsel before us was that on account of the aforesaid violations of the Election Rules, the election should have been declared null and void and the learned Tribunal should have ordered for the holding of re-election for the Ward in question.
4. We have heard the learned counsel for the parties and have also gone through the evidence produced by the parties and the order passed by the learned Tribunal. As regards the enrolment of the alleged 28 voters in the electoral rolls of two Wards, it was conceded that the same was not sufficient to render the election void. Coming to the alleged irregularities committed by the polling staff, we propose to deal with each of the acts of commission or omission separately to find out its effect on the result of the election. As regards the first allegation it is in the evidence and it was also found by the learned 'tribunal that at least 4 voters out of these 28 voters had polled their votes at the polling station where the petitioner and respondent No.l were contesting and that in fact there was no restriction imposed by the Presiding Officer of Ward No.5, Chak No.509/G.B. Not to cast votes which were entered also in the voters list of Ward No.9, Chak No.510/G.B. These four voters presented themselves at the polling station and were allowed to cast votes. It was stated by the polling staff, namely, Kishwar Begum P.W.2 and Umar Farooq P.W.3 that they never stopped the voters from casting the votes at their polling station. No other evidence was referred to us to support the plea that the B remaining 24 voters did present themselves at the polling station and their requests to issue the ballot-papers were turned down on the basis of the said plea. The finding recorded by the learned Tribunal is justified and warrants no interference.
5. As regards the other plea pertaining to the non-compliance of the Election Rules it is to be noted that under rule 15 of the Punjab Local Council (Election Petitions) Rules, 1979 the Election Tribunal is to declare the election as a whole to be void if it is satisfied that the result of the election was materially affected by the reason of the failure of any person to comply with the provisions of the Ordinance or the Election Rules. It is true that the Women Presiding Officer admitted that she, being not aware of the Election Procedure and the Rules, made the lady voters to thumb-mark the ballot- papers and that there was only one ballot-paper which was without any thumb-mark The absence of the thumb-mark on this one vote was explained by saying that it might have escaped the notice of the Presiding Officer. The Women Presiding Officer had made the lady voters to thumb-mark the votes. Even 108 votes polled in favour of the petitioner at this polling station carried the thumb- impressions. It also stands admitted that the boxes were securely closed by placing locks on each of the ballot-boxes but these locks were not sealed as is provided in the relevant Rules. However, it was not the plea of the petitioner that these irregularities have materially affected the result of the election. It was also not the case of the petitioner that these irregularities were committed with some pre-arrangement or design. At this stage reference to the view expressed by the learned Judges of the Supreme Court in the case of Ghulam Farid v. Muhammad Sharif 1970 SCMR 347 appears to be appropriate. It was observed by the learned Judges that:--- "the enunciation of the learned Judges of the High Court that there should be something more than a possibility of identification to invalidate a vote, is correct."
In the instant case the petitioner did not raise the plea in the election petition that there was pre- arrangement for placing the thumb impressions on the ballot-papers to identify the elector. In the circumstances the irregularities committed by the Women Presiding Officer cannot be taken as a vitiating factor. Due to the mistake committed by the Women Presiding Officer neither the voters can be disfranchised nor the successful candidate can be unseated. The finding of the learned Election Tribunal that the result of the election was not materially affected on account of the acts of commission or omission of the polling staff in the circumstances of this case does not warrant any interference as it was not shown that the irregularities had materially affected the result of the election.
6. The last contention that the identity cards were not asked to be produced by each and every voter is also of no consequence and in any case cannot be supported by citing the only instance in which a passport was shown and the voter was allowed to cast the vote. The purpose of rule 34 of the Election Rules whereby the Presiding Officer was required to ask for the identity cards from the voters was to secure the identification of the voters. This purpose was fully achieved with the production of the passport. The vote thus issued to the voter in the circumstances cannot be invalidated. In any case the exclusion of this one vote would be of no consequence as Bashir Ahmad respondent No.l succeeded with the margin of 26 votes. In any case the allegation that the identity cards were not asked to be produced by each and every voter was not established by producing any evidence. Rather it has come out in the evidence that the polling staff did ask the voters to identity themselves by production of identity cards.
7. For the reasons given above this writ petition is dismissed with no order as to costs.