' MUHAMMAD ASLAM MIAN, J.-- The petitioner through this writ petition seeks a declaration to the effect that a judgment dated 22-7-1985 delivered by the Election Tribunal, Faisalabad, respondent No.1 declaring the bye-election held on 12-4-1984 of Halqa No.2 Municipal Corporation, Faisalabad as a whole to be void and declining to hold the petitioner as duly elected is without lawful authority, with a further prayer that the petitioner be delcared to have been duly elected.
2. The petitioner and respondents Nos.2 and 3 contested the election from Halqa No.2 of the Municipal Corporation, Faisalabad which was held on 12-4-1984. The respondent No.2 secured 1,456 votes and the petitioner secured 1,455. One vote was discounted from the votes secured by respondent No.2 as a tendered vote, so both were treated as having secured equal votes i.e. 1,455 each.
2. To resolve the tie between the two, the Returning Officer drew a lot which fell on respondent No.2 who was declared as duly elected.
3. The petitioner questioned the validity of the election by filing an Election Petition alleging that respondent No.2 was not eligible to file the nomination papers and hence participate in the election. The petitioner obtained 1,473 valid votes and respondent No.2 secured only 1,455 or 1,456 votes. Out of the total votes secured by the petitioner 9 votes were not counted being Tendered votes and 10 votes were directly declared as invalid. 8 votes of the petitioner were considered as Tendered votes but in fact according to law those were at the most the challenged votes. The said challenged voters were not allowed to cast their votes in favour of the petitioner though they had desired so. One vote was wrongly declared as invalid since that was smeared with ink. 9 votes having been cast in favour of the petitioner were declared as invalid simply because the Ballot papers were recovered from the ballot box of an adjoining polling booth, which was wrong. The drawing of a lot was uncalled for as the petitioner was winning having secured 1,473 votes as against 1,455/1,456 votes secured by respondent No.2. The petitioner had been wrongfully deprived of 18 votes as to the strengh, according to the votes in fact secured by the petitioner he was entitled to be declared as a returned candidate. The petitioner had joined the proceedings in drawing of the lot under protest as the Returning Officer in his order dated 12-4-1984 had held, "the Rules are not clear on the subject. This was the matter for the Election Tribunal to thrash out and decide the case on the circumstances and the evidence."
3. The respondent No.3 did not contest the Election Petition despite his service. He was proceeded exparte. The respondent No.2 however, contested the Election Petition by denying the averments as made in the petition and maintaining that since the petitioner had participated in the proceedings for drawing of lot; he was estopped by his conduct to file the Election Petition; his return as a successful candidate was valid so the petitioner could not be declared to have been duly elected in the election. The petitioner did not obtain 1,473 votes. He secured 1,455 as valid votes. The eight votes as alluded to in the petition could not be received towards the strengh of the petitioner as there was no mention of those votes in the initial result and even if those were termed as Tendered votes that could not be ascertained as to what was the intention of the voters. The procedure adopted by the Returning Officer was in accordance with law, so no exception could be taken to that.
4. The learned Election Tribunal found that the participation of the petitioner in Qura proceedings did not debar the petitioner from challenging the election through the Election Petition on the other grounds available to him. The principle of estoppel was not applicable as the petitioner agreed to the drawing of lot subject to the decision of the Election Tribunal. The principle of estoppel could not be pleaded against the provision of a Statute. The respondent No.2 was declared as disqualified by the Election Tribunal in the previous election but at the time of the said bye-election the Government had allowed respondent No.2 to contest the same under the proviso to section 21
(h) of the Punjab Local Government Ordinance, 1979. The Presiding Officer had rightly treated a vote bearing the ink marks as invalid. The nine votes recovered from the polling-box of the other Polling Station were rightly excluded because the same were not bearing the signature of the Presiding Officer of that Polling Station. The eight votes of the petitioner and one vote of respondent No.2 were in fact challenged votes under rule 36 of the Punjab Local Councils (Election) Rules, 1979 and not the Tendered votes as were treated by the Presiding Officer. The Presiding Officer should have allowed the voters in that behalf to cast their votes in the ballot-box of the candidate of their choice.
' Before any reference is made to the further observations of the learned Election Tribunal it is worth while to mention here that eight persons appeared at the Polling Station to cast their votes, as their particulars regarding the parentage etc. Did not tally with the particulars as given in the printed list, the Presiding Officer in the first instance did not issue any ballot-paper to them. On their application having been made and a deposit of Rs.5 by each of them the Presiding Officer issued the ballot-papers to the said eight persons following the procedure under rule 35 of the Election Rules after asking them to disclose the name of the candidate for whom they wished to vote, put the ballot-papers so issued in a separate packet with the name of the petitioner endorsed thereon as Tendered ballot-papers. The learned Election Tribunal was of the view that those eight votes relating to the petitioner were illegally treated as Tendered votes by the Presiding Officer. He should have treated those as challenged votes and should have allowed the voters to cast their votes in the ballot-box in accordance with the rules. The failure of the Presiding Officer in observing the dictate of Rule 36 of the Punjab Local Councils (Election) Rules, 1979 resulted in affecting materially the result of the election. It declared the bye-election void as a whole while accepting the Election Petition. As the said eight voters were not allowed to cast their votes in favour of the petitioner so the learned Election Tribunal was hesitant to declare the petitioner as a successful candidate. It is vide judgment dated 22-7-1985.
5. In this writ petition the learned counsel for the petitioner after addressing as to the aim and object of Election Laws and the significance of the Election Rules, 1979 as to the conduct of the election and the nature of the rules by referring to various decisions has brought down the ultimate proposition to bear with that out of the abovesaid eight persons at least two of them namely Mumtaz All Mirza and Muhammad Abdullah were justified on the basis of the final Electoral Roll in asserting their right to vote which right could not have been denied to them under section 19 of the Punjab Local Government Ordinance, 1979. As to the particulars of Mumtaz Ali Mirza mentioned at Serial No.134 in the printed list appertaining to Ward No.31 Municipal Corporation, Faisalabad Appendix II (2) the error in printing had occurred by publishing in the column of parentage his grandfather's name Mian Khair Din in place of his father's name, that was Muhammad Ali Mirza. In the original manuscript of electoral roll prepared for voters (men)---final list (Appendix-I) Mumtaz Ali Mirza was shown as son of Muhammad Ali Mirza with the name of his grandfather as Mian Khair Din which particulars he answered alongwith the other particulars not in dispute confirmed by the identity card as to the name of his father. Similarly in the case of Muhammad Abdullah at Serial No.150 of the printed list his grandfather's name Mian Allah Bakhsh was erroneously published in the column meant for his father's name. His father's name was Mian Bakhsh Elahi who was himself shown as son of Mian Allah Bakhsh at Serial No.150 in the printed list. In the original .Manuscript of electoral roll prepared for the voters (men)--final list (Appendix-I) Muhammad Abdullah was shown as son of Mian Bakhsh Elahi. This voter too answered his particulars correctly according to the basic electoral roll alongwith the other un-disputed particulars confirmed by the identity card as to the name of his father. As to the position so taken up the learned counsel for the petitioner has submitted that section 19 of the Ordinance confers an unfattered right of vote on every person who is enrolled as a voter in the electoral roll. The electoral roll is prepared under the provisions of the Electoral Rolls Act, 1974, sections 6, 8, 10, 16, 21 and 26 of which, in particular provide for preparation and maintenance of the electoral roll. The section 28 of the Electoral Roll Act, 1974 provides for the making of rules. Accordingly, rule 15 of the Electoral Rolls rules, 1974 provides for the final publication of the electoral roll by the Registration Officer "at his office and at such other place accessible to the public as the Commissioner may direct". The names and parentage of the said two voters correctly appeared in the final electoral roll prepared under the aforementioned provisions of the law and published under the aforesaid rule 15. The errors as mentioned above have crept in the process of printing the copies of the final electoral roll for lack of proper scrutiny and care. The learned counsel has further referred to Thakurdas v. The Returning Officer and 3 others 1984 CLC 1024 at page 1027-A, wherein it was observed: "We are inclined to hold that the misprint of the father's name in a printed electoral roll is a defect which cannot be construed as a substantial defect as the original manuscript contains the correct parentage of the petitioner and a certificate to that effect was produced from the Assistant Registration Officer before the Retuning Officer. In this view of the matter, the Returning Officer was competent in law in terms of the above-quoted sub-para. (ii) to accept the petitioner's nomination paper. The appellate authority was not justified in rejecting the petitioner's nomination paper on a ground which was not substantial in nature in view of the correct parentage in the original manuscript supported by a certificate issued by the officer concerned ' Haji Abdur Rehman v. Ghulam Hassan and another 1984 CLC 572 at page 579-B, in this case it was held, "Errors or defects in the electoral rolls can be pointed out and corrected under the Electoral Rolls Act, 1974, and the Rules thereunder. There is nothing contained in this Act which prevents the High Court in constitutional jurisdiction or the Election Tribunals from enquiring into the correctness of entries in the electoral rolls, for the purposes of examining a candidate's qualifications ' Sh. Abdul Hamid v. President, Cantonment Board and others 1984 CLC 592 at page 604-C, in this case it was observed, "The petitioner states that his name appears at serial No. 1583 of the Cantonment's Electoral Roll for Ward No.3. His case is that the name 'Abdul MOW' is a misprint for 'Abdul Hamid' and that in any case it was corrected by the Registration Officer in the Cantonment Board in 1979,. But such correction was never carried over in the Electoral Roll prepared in 1983. Apart from the entry, evidence aliunde confirms the petitioner's assertions. The mistake of the Board cannot be allowed to defeat the right of the petitioner to have his nomination papers accepted. If this is allowed, any rival would be able to destroy his opponent by causing misprint to appear in the Electoral Roll. In these circumstances, we hold that the petitioner's nomination papers were illegally and unlawfully rejected on this ground...."
' Mst. Khursheed Begum v. Mst. Sitara Parween and 2 others 1983 CLC 618, in this case the description of an entry in the electoral roll as daughter of Abdul Shakoor was treated as sufficient to identify the voter. The entry did not contain her name. Imtiaz All v. Ghulam Muhammad Butt and Province of West Pakistan PLD 1958 SC (Pak.) 228 at page 241-J, in this case it was held, "It is settled that every person whose name is entered in the electoral roll, is entitled to vote at the election to which the roll relates, unless there be some personal disqualification."
' The learned counsel has further submitted that Muhammad Rashid Laloo respondent No.2 or his Agent did not object to the exercise of the right of vote by the said voters so he is now estopped in law to raise any objection on that account. The objection was raised by the Presiding Officer on the basis of the erroneous entries appearing in the printed list, which were and are established to be the printing errors, so an error in printing cannot defeat a right otherwise conferred by the law. The said voters, therefore, had the right and had in fact exercised their right for whom they wanted to vote so their votes should have been counted towards the votes secured by the petitioner. He has asked for a direction to the Election Tribunal to declare the result of the election afresh after counting the said two votes in favour of the petitioner.
6. The learned counsel for respondent No.2 while opposing this constitutional petition has submitted that as the eight voters the entries in the voters' list did not agree with the particulars disclosed by them, therefore, the Presiding Officer had no authority to issue the ballot papers as the case was neither covered by rule 35 of the Election Rules, 1979 nor by rule 36 so as to treat the ballot papers as issued either the tendered ballot papers or the challenged ballot papers, therefore, the ballot papers in either case cannot be regarded as validly issued so no legal consequences flow or follow. None of the voters has appeared as a witness to establish his particulars before the Election Tribunal nor the Presiding Officer was produced. The circumstances which created that situation remained unresolved as to the genuineness or otherwise of the voters.
As to the ascertainment of the intention of a voter it is his final insertion in the ballot paper properly cast, there is no other method and any method adopted which offends the secrecy cannot be given any legal weight. The petitioner is not consistent in asking fort the relief. The case before the Tribunal was that the eight votes should have been considered as challenged votes and not as tendered votes. The petitioner should stick to the case made out before the Tribunal. He should not be allowed either in the writ petition or arguments to make out a different case. The point now being considered is outside the election petition and the writ petition. As to the above-said two voters there is nothing to indicate that they wanted to vote for the petitioner, at least the evidence does not exist. The learned counsel for respondent No.2 has referred to various provisions of the Election Rules, 1979 appertaining to the conduct of the election and the receiving of the votes and also of the Electoral Rolls Act, 1974 as to the entries so as to impress that according to the law the said eight voters and ultimately the two had no space to cast their votes because of the particulars not tallying with the particulars in the hand of the Presiding Officer. The learned counsel has in support of his submissions referred to Imtiaz Ali v. Ghulam Muhammad Butt and Province of West Pakistan PLD 1958 SC (Pak.) 228, in which it has been held that after an electoral roll has been revised and duly published no further objection can be taken to the election is to be held on the basis of that roll. Niaz Ahmad v. Azizuddin etc. PLD 1967 SC 466. In this case it has been held that a question whether the act of the Presiding Officer in failing to maintain the secrecy had affected materially the result of the election, not raised before the Election Tribunal cannot be raised for the first time in a writ petition before the High Court. Dil Muhammad v. Election Tribunal, Sialkot and others PLD 1966 (W.P.) Lah. 669, in this case it was held that the finding arrived at by the Tribunal was not valid in accepting the allegation without any evidence and without admission of fact by the opposite party. Ijaz Hussian v. Haji Muhammad Hussain and 3 others 1984 CLC 1322, In this case the view endorsed is that in section 20 of the Punjab Local Government Ordinance a simple requirement is that a person shall be qualified to be a candidate for election to an electoral unit if for the time being his name appears on the electoral roll of that electoral unit and that a question as to the right to be enrolled as a voter could not be raised after the final publication of the electoral roll.
7. Towards the close of this case the learned counsel for the petitioner has submitted that no new case has been set up. The petitioner has been consistent throughout.
8. We do find that the petitioner's case before the Tribunal while saying that the above-said eight votes ought to have been treated as challenged votes rather than the tendered votes was in gist as is obvious from the contents of the petition that there were minor discrepancies in the printed voters list, about which the objection was raised by the Presiding Officer and not any contesting candidate. The identity cards produced by those voters were sufficient to consider them as genuine voters and there was no occasion to treat their votes as tendered votes. In that way those voters could not be restrained to cast their votes and could not be excluded from the count of the petitioner. The voters had disclosed the name of the petitioner in whose favour those voters were going to cast their votes and ultimately the claim of the petitioner was that in all eight votes had been excluded from the count of the petitioner illegally and in violation of the Rules and Regulation.
The emphasis of the learned counsel for respondent No.2 that none of the voters had appeared as a witness to establish his particulars before the Election Tribunal nor the Presiding Officer was produced and as to the said voters namely Mumtaz Ali Mirza and Muhammad Abdullah there is nothing to indicate that they wanted to vote for the petitioner, stands minimised by the admission of respondent No.2 in para. 2 of his written statement submitted in the writ petition wherein it is distinctly mentioned that the facts admitted on record are that the voters in question appeared before the Presiding Officer in obtain ballot-papers. Since the particulars disclosed by them, the entries in the Electrol Roll and in the respective identity cards did not tally, the Presiding Officer to the first instance, refused to issue the ballot papers, then on their applications the Presiding Officer issued the ballot papers but did not allow them to cast the same in the ballot-boxes, having incorporated the fact that they wanted to cast their votes in favour of the writ petitioner, sealed the said ballot papers in a separate envelope.
' Keeping in view the importance of franchise we during the presentation of this case allowed the learned counsel for the petitioner to show from the original manuscript of the electoral roll as against the printed one that the above-said eight voters answered the particulars as mentioned in the basic electoral roll. The learned counsel for the petitioner did produce a certificate issued by Mr. Anwar Saeed, the Deputy Election Commission, Faisalabad Division pertaining to the particulars of three persons as given in the original electoral roll. We further summoned Mr. Anwar Saeed, the Deputy Election Commission, Faisalabad to produce the electoral roll of voters (men) relating to Ward No.31 Municipal Committee, Faisalabad prepared in 1974 as well as the original manuscript of electoral roll prepared for voters (men) in 1979 in respect of the same ward. A copy of the printed electoral roll of 1974 was retained. Mr. Anwar Saeed also provided us with a copy of the entries relating to three voters namely Muhammad Saleem at serial No.35, Mumtaz All Mirza at serial No. 134 and Muhammad Abdullah at serial No.150, from the original manuscript of the electoral roll of voters (men) of Ward No.31 Municipal Corporation, Faisalabad. After looking into the manuscript the same was returned to him. However, the copies of the said entries were placed on the file. As the learned counsel for the petitioner has confined the case to the two persons as voters Mumtaz Ali Mirza and Muhammad Abdullah we find that the particulars disclosed by these two persons at the time of election completely agree (the applications made by the voters at the time of voting have been consulted) with the particulars as given in the original manuscript of the electoral roll.
Now the question is that whether after having come to know as the exact position these persons can be refused franchise or a right of voting simply because the particulars as given in the printed list are different from the particulars they carry and are duly recorded in the original roll. The understanding about the printed copies issued of the original electoral roll is that those are the true copies of the same. No doubt a Presiding Officer is to conduct himself in accordance with the printed material which is with him yet that will not debar a person from exercising his right of voting if it is ultimately found that he is the actual person according to the original roll described as differently in the printed list due to the printing errors without his fault, since it has now come to light and fully stands established regarding which as to the particulars the learned counsel for respondent No.2 has not been able to take any exception except as mentioned above and it is also there as indicated in respect of the ballot papers issued to them that they wanted to vote for the petitioner, therefore, we set aside the judgment of the learned Election Tribunal in accepting this writ petition and remand the case to the learned Election Tribunal, Faisalabad directing it to declare the result of the election afresh after counting the votes of Mumtaz Ali Mirza and Muhammad Abdullah in favour of the petitioner at an earliest possible time. In the circumstances there is no order as to costs.