1. S. A. RAHMAN, J.-The appellant, Haji Ghulam Rasul, was a candidate, along with the first respondent, Mian Abdul Aziz, and one, Ghulam Rasul Khan, for election to the Electoral College, from Unit No. 7, Ward No. 1, Shahdara, Tehsil and District Lahore. As a result of the poll, the first respondent was declared elected by a majority of 37 votes over the votes secured by the appellant. The latter filed an election petition and the Election Tribunal by order dated the 29th of September 1965, declared the election as a whole to be null and void, and ordered a fresh election. The first respondent called in question the order of the Tribunal, by a petition for a writ in the High Court of West Pakistan. The petition was allowed and the order of the Tribunal was quashed, with the consequence that the first respon--dent remained an elected Member of the Electoral College.
2. Leave to appeal was granted in this case for consideration of the following grounds :-
(i) Before the Tribunal, several grounds had been raised on the Election Petition, all of which were not considered by the High Court; and
(ii) During the pendency of the writ petition, fresh election was held in which the petitioner was duly elected, and consequently the proceedings in the High Court had become abortive.
3. We have heard Dr. Javed Iqbal for the appellant. The respondents have not cared to attend, and the proceedings are ex parte against them.
4. It appears from the order of the Election Tribunal that as many as 11 grounds' were raised in support of the Election petition. The learned Tribunal commented on most of these grounds and apparently he was inclined to accept several grounds out of them, but he has not given concrete and definite findings on all of them. He was apparently more concerned with three allegations, (i) that there were seven votes tendered in favour of the appellant and three in favour of the first respondent(ii) that three voters had, after voting in another Constituency case their votes in this one also ; and (i.e) that 26 votes extra were recovered from the ballot boxes of the female voters. The officials had issued 375 ballot papers, but the number in the ballot boxes was found to be 401. In view of findings on these three grounds the learned Tribunal thought it fit to declare the whole election void.
5. The High Court, in its writ jurisdiction, pointed out that the Tribunal was not justified in treating the seven tendered votes of the appellant as equivalent to a loss of 14 votes, as he did. He similarly doubled the tendered votes of the respondent from 3 to 6, and recorded the finding that the appellant had been prejudiced to the extent of the difference between these doubled votes, namely, 8 votes. There was no evidence as to whether the persons who had cast the tendered votes, were genuine voters or not. In any case, the High Court thought, and rightly, that there was no warrant for doubling the tendered votes to discover how many votes the appellant had lost. At the most, taking all presumptions in his favour, the appellant might have had 4 votes more, if the tendered votes in his favour and those ostensibly meant for the respondent, were found to be genuine. The finding that there was double voting by three persons, was also upheld by the High Court, along with the finding that 26 votes extra had been discovered from the ballot boxes of the female voters, over and above those issued. In all therefore, the High Court found that in respect of these 3 grounds, the difference caused to the appellant in the number of votes did not exceed 29.
6. As the respondent had won by a majority of 37 votes, the High Court held that these irregularities had not materially affected the result of the election, and consequently the election could not have been set aside as void. The relevant rule requires an express finding that the irregularities complained of, materially affected the result of the election.
7. Dr. Javed Iqbal tried to argue before us on the basis of rules 33, 35 and 36 of the West Pakistan Basic Democracies Election Rules, 1959 that the giving of tendered votes to certain persons implied that the identity of the latter as the correct voters had been established before the Returning Officer. We are not convinced that this is the case. Rule 33 which pertains to dis--puted votes, does enable the Returning Officer to give a finding, if so thought fit, that a person whose identity is in dispute, is a genuine voter. But under rule 35, which pertains to tendered votes, and rule 36 which refers to challenged votes, no such finding is required to be given. The mere fact that questions mentioned in rule 33 could also be put to a person who is given a challenged vote, does not entail the consequence that with the recording of answers to such questions, the identity of the person concerned is proved beyond doubt. That identity can be established by adducing evidence of the persons concerned themselves.
8. Assuming however, that in respect of the 3 grounds which were examined by the High Court, the appellant suffered to the extent of 29 votes, it would not advance his case, as this difference could not be said to have affected materially the result of the election which led to a margin of 37 votes in favour of the respondent.
9. Dr. Javed Iqbal is however on stronger ground when he urges that there were other grounds presented to the Election Tribunal, on some of which he made observations favorable to the appellant, but on which he failed to record specific and definite findings, probably because he was more impressed by the findings on the grounds that were the subject of discussion in the High Court. He, therefore, contends that if the High Court could not uphold the Tribunal's order on the basis of these 3 grounds, the proper order to be passed on the petition was that the Tribunal should have been left to decide the matter afresh, according to law, after taking into consideration all the grounds urged before him. We consider that there is a good deal of force in this contention and that it should be allowed to prevail. The order of the Tribunal was properly quashed by the High Court but the consequential order should have been to remand the case to the Tribunal for a fresh decision. If, in view of the findings on other grounds, taken along with the findings on the 3 grounds mentioned above, the Tribunal reaches the conclusion that his previous order should be repeated, then perhaps the second election at which the appellant had been successful, might possibly be allowed to hold the field. But if, in spite of due consideration of the other grounds of the election petition, the result be that there was no material effect on the election, by the commission of the various irregularities proved, then the position would be as envisaged by the High Court order.
10. We, therefore, allow this appeal and send back the case to the Tribunal for a fresh decision in accordance with law. We may observe that the order of the Tribunal was not as careful as it might have been, and did not proceed on a full consideration of all the grounds taken in support of the election petition. The ballot papers recovered from the female voters, if scrutinized properly, might have led to further interesting revelations. No attempt was made to examine the ballot papers with reference to the existence of the official mark and the initials of the Returning officer, on their backs to trace out their source. We hope that this time the Election Tribunal will make a proper examination of all the issues and then pronounce his decision in accordance with law. We make no order as to costs, as the other party is not represented before us.