Election Commission of Pakistan

P L D 1991 Journal 70 P L D 1991 Journal 70 [Election Commission of Pakistan] Before Justice Naimuddin, Chief Election Commissioner Malik ABDUR RAUF‑‑Appellant versus THE PROVINCIAL ELECTION COMMISSIONER, N: W.F.P./ RETURNING OFFICER and 10 others‑‑Respondents Appeal against the counting of votes m Election for the Membership of the Senate of Pakistan (General Seats) pertaining to Province of N.‑W.F.P., held on 14th March, 1991, decided on 20th March, 1991. (a) Senate (Election) Act (LI of 1975)‑‑‑ ‑‑‑‑S. 32‑‑‑Senate Election Rules, 1975, R. 22(3)(a)‑‑‑Senate Election‑‑‑Objection to inclusion of one vote in the count‑‑‑Validity of‑‑‑Objected ballot paper, wherein voter had given specified respondent, the first preference by making figure 1, against his name, was in accord with the Rules and instructions issued by Chief Election Commissioner, but so far as other markings were concerned, they were wrong and against the rules and instructions‑‑‑Ballot paper in question, stood exhausted after the first making and to that extent it was valid in accordance with Rules, but so far as other candidates were concerned, such ballot paper stood exhausted by virtue of deeming clause in the definition of "exhausted paper". (b) Senate (Election) Act (LI of 1975)‑‑‑ ‑‑‑‑Ss. 32 & 34‑‑‑Senate Election Rules, 1975, R. 22(3)(a)‑‑‑Senate Election‑‑ Writing figure, twice on ballot paper, against two different candidates whether disclosed identity of voter‑‑‑Voter by‑writing the figure 2 twice against two candidates, could not be identified‑‑‑No inference could be conclusively drawn from such writing about the existence of pre‑arrangement‑‑‑Appellant, however, would still have an opportunity if he files election petition under S. 34, Senate Election Act, 1975, to prove that figure 2, written twice in the ballot paper against the names of two candidates was with a pre‑arrangement with specified respondent, in order to have the voter identified‑‑‑Appellant had failed to prove the same by producing any evidence before Chief Election Commissioner‑‑‑Such plea could be dealt with properly before Election Tribunal on an Election petition if filed. (c) Senate (Election) Act (LI of 1975)‑‑‑ ‑‑‑‑S. 32‑‑‑Senate Election Rules, 1975, R. 22(3)(a)‑‑‑Senate Election‑‑ Appellant's objection throughout was that voter had marked figure 2 against two candidates‑‑‑Appellant had never alleged that such voter had marked figure 1 twice‑‑‑Ballot paper thus, stood exhausted after the first marking of figure 1 against specified candidate‑‑‑Appeal against acceptance of such ballot paper was rejected in circumstances. M. Bilal with Sardar Moazzam Khan for Appellant. S.M.Zafar, Raja Muhammad Anwar, Syed Iftikhar Hussain Gillani, Ch. Aitzaz Ahsan, Syed Afzal Haider and Ch. Khalid Mehmood for Respondent No.8. Date of hearing: 20th March, 1991. ORDER This is an appeal purporting to be under section 32 of the Senate (Election) Act, 1975. 2. The appellant and respondents Nos. 2‑‑11 were candidates for election to the seven general seats of the Senate from N.‑W.F.P. The election was held on 14th March, 1991. 3. According to unofficial count, the following were declared elected having secured the requisite quota:‑ (1) Qazi Hussain Ahmad. (2) Mr. Anwar Saifullah Khan. (3) Sayyed Muzammil Shah. (4) Mr. Fateh Muhammad Khan. (5) Mr. Shahzad Gul. (6) Mr. Muhammad Ibrahim Khan. (7) Mr. Gulzar Ahmad Khan. 4. At the time of count of votes, several candidates objected to the inclusion of one vote in the count. The appellant was one of them. However, by the order dated 14‑3‑1991, the Returning Officer rejected the objection by a short order which reads as follows: "The count is closed. Similar written objection was presented, on which I have given, my decision. At this stage no further decision can be made. The objection is filed." 5. On a similar objection filed on behalf of Mr. Fateh Muhammad Khan, Mr. Muhammad Ibrahim Khan and Mr. Shahzad Gul, the Provincial Election Commissioner/Returning Officer had passed the following order:‑ "There is no substance in the objection because figure I is correctly marked and the figure 2 is marked against two candidates. Therefore, the ballot paper stands exhausted after first count." 6. The present appeal is against the order quoted in para. 4 above. 7. The main grounds as stated in the appeal are: "(a) That there was a pre‑arrangement between the voter and the candidate respondent No. 8. Both of them decided before the; poll that the voter will mark first preference in favour of the respondent No. 8 and for the second preference he would mark for 2 candidates. The. Arrangement was that if it is done, the respondent No. 8 would be satisfied that the ballot paper marked as such was that of the voter with whom the respondent No. 8 had the pre‑arrangements. This arrangement was violative of the secrecy of the ballot. (b) That the learned Provincial Election Commissioner/Returning Officer failed to take into consideration that it was election to the Senate and the Electoral College consisted of the members of the Provincial Legislature. The presumption is that the members of the Provincial Legislature are educated people particularly with respect to election laws and are fully conversant with election procedure and requirement of law. The voter was not an. ordinary voter. In Mr. Waseem Sajjad's case the election of Senate and the validity and invalidity of votes in the election of Senate were considered to be on a different footing than in general election to the National or Provincial Assemblies where voters are not much educated, as the members of a provincial legislature." 8. I have heard Mr. Bilal, Advocate for the appellant, supported by Sardar Moazzam Khan, Advocate. I have also heard Mr. S.M. Zafar, counsel for respondent No.8. 9. A perusal of the ballot paper shows that the voter has given respondent No.8 the first preference by marking the figure 1 against his name. He has given second preference to Mr. Muhammad Ibrahim Khan, respondent No.7 by marking the figure 2 against his name. He has given third preference to the appellant by marking the figure 3 against his name. He again gave second preference to Mr. Shahzad Gul, respondent No.6 by marking the figure of 2 against his name. Thus he wrote the figure of 2 against the names of two candidates. 10. This ballot paper so far as respondent No.8 is concerned is in accord with the rules and instructions issued by the Chief Election Commissioner but so far as the other three markings are concerned, they are wrong and against the rules and instructions. The ballot paper stood exhausted after the first marking. It may be pertinent if the definition of "exhausted vote" as given in the Senate (Election) Rules, 1975 is quoted here:‑‑ "(c) "exhausted paper" means a ballot paper on which no further preference is recorded for a continuing candidate: Provided that a ballot paper shall also be deemed to have become exhausted whenever‑‑‑ (a) the names of two or more candidates, whether continuing or not, are marked with the same figure and are next in order of preference; or (b) the name of the candidate next in order of preference, whether continuing or not is marked‑‑ (i) by a figure not following consecutively after some other figure on the ballot paper; or (ii) by two or more figures. 11. A brochure was issued by the Election Commission for the guidance of the voters where at page 10 it was stated as follows: "Further instances of wrong marking,‑‑Do not put the same number against more than one candidate, or miss out a number. If you do so, those preferences and any later ones you mark, would not be counted. So long as the voter's choices are numbered consecutively, the vote will be considered effective for transfer. But if the paper is marked 1, 2, 3, 5, 6, 7 (missing figure `4') the paper will be good for the first three choices, but not for later choices (See figure `E' on next page). It may, however, be noted that the same number must not be put against the names of two candidates. So it would be wrong to put the figures 1, 2, 3. 3. 4. 5, etc., against the names of the candidates. In this case the paper would be good only for the first two choices (See figure `F' on next page). If you mark only one candidate as your first preference (figure `G'), your vote is valid. But if you do not mark any one as your first preference and only one second preference as in figure `H' your vote will be invalid. 'If you do make a mistake inadvertently in filling in your ballot paper, you may return the ballot paper to the Returning Officer and ask for another." 12. It may also be pertinent if the example `F' given on page 11 is also reproduced here: A 3 B 6 C 1 D 5 E 2 F 4 G 3 Good for 1 and 2 only. (Figure 3 against two names). 13. It was submitted by Mr. Bilal, the learned counsel for the appellant, that these instructions are ultra vires the rules. He further submitted that the Returning Officer failed to comply with the provisions of Rule 22, sub‑rule (1), clause (c) of the Senate (Election) Rules, 1975 which required the Returning Officer to separate the ballot papers which he deemed valid from those which he rejected under sub‑rule (3) endorsing on each ballot paper so rejected the word `rejected' and the grounds of rejection. 14. He also submitted that the voter by writing twice the figure of 2 against two candidates disclosed his identity and therefore the ballot paper as a whole ought to have been declared invalid in view of the provisions of Rule 22, sub‑rule (3), clause (d) which reads as follows:‑ "On which there is a mark or writing or to which some object is attached by which the voter can be identified." 15. Taking up the first submission of Mr. Bilal, it may be stated that instructions are in accord with the definition of `exhausted vote' quoted hereinbefore and Rule 17 of the Senate (Election) Rules, 1975 which reads as follows:‑ "17. Manner of recording vote.‑‑ In giving his vote, a voter‑‑‑ (a) shall place on his ballot paper the figure 1 opposite the name of the candidate for whom he wishes to vote in the first instance; and (b) may, in addition, place on his ballot paper the figures 2, 3 and 4 and so on, in the order of his preference, opposite the names of the other candidates. Explanation.‑‑The figures referred to in this sub‑rule may be marked against different names either in English or in Urdu but not in both and shall not be marked in words." 16. A perusal of the above‑quoted rule shows that if on the ballot paper figure 1 is not written against the name of any candidate then the ballot paper is invalid under clause (a), sub‑rule (3) of Rule 22, but so far as the markings against the other candidates are concerned, it is optional for a voter to vote for other candidates or not by marking his second, third, fourth and so on preferences. So far as the respondent No.8 is concerned, since against his name the figure 1 is marked, therefore, to this extent his ballot paper is valid in accordance with the rules. But so far as the other candidates are concerned, the ballot paper stood exhausted by virtue of the deeming clause in the definition of the exhausted paper. This submission is also misconceived for the Returning Officer did not find any of the votes invalid so far as the first preferences given to the candidate were concerned. 17. As regards the third submission that the voter by writing the figure of 2 discloses his identity it may be stated that by writing the figure of 2 twice against two candidates the voter could not be identified. Mr. Bilal himself failed to identity any voter. He then submitted that an arrangement was made between respondent No.8 and the voter and it was a device whereby the voter could be identified but in my opinion by simply writing the figure 2 twice no inference can be conclusively drawn that some such arrangement was made, for that some evidence ought to have been produced. I did ask him whether he would like to produce any evidence. He stated that he was at that stage unable to do so. The appellant will still have an opportunity if he files an election petition under section 34 of the Senate (Election) Act, 1975 to prove that the figure of 2 written twice in the ballot paper was with a pre‑arrangement with respondent No.8 as alleged in order to identify him. Ground (a) quoted hereinbefore did state that there was a pre‑arrangement between the voter and the respondent No.8 but he failed to prove the same by producing any evidence before me. Indeed, this is a matter which will be dealt with properly before the Tribunal on an election petition. 18. Lastly, at the request of Mr. Bilal, the polling` bag was opened by the Returning Officer on my order and the disputed ballot paper was shown to him and the Advocate for respondent No.8. On seeing the ballot paper he urged another new ground which was that in the ballot paper against one of the candidates first figure No.1 was written then it was overwritten as 2. Therefore, he submitted that this ballot paper is invalid on this ground also. However, it is not the case of the appellant that the figure 1 was overwritten as 2 afterwards or subsequently manipulated. Indeed, it is appellant's own case throughout that the voter had marked the figure 2 against two candidates. It was never the case of appellant that he had marked the figure 1 twice. The figure 2 against the name of one of the candidates appears to be quite clear. It could not be read as 1 on visual inspection. 19. I, therefore, find no force in this appeal and accordingly reject it. A.A./60/E Appeal rejected.