P L D 1969 Dacca 334 (PLP)

SIDDIKY, C. J.‑In this application the petitioner has chal lenged the order of the Chief Election Commissioner, Pakistan made on the 4th of November 1967 in Appeal No. 12 of 1965. Short background of this case is necessary to be given before we deal with the points raised for our consideration. The petitioner contested the election to the East Pakistan Provincial Assembly from Constituency No. PE‑127, Comilla VII in the General Election held on 16‑5‑

65. There were two other candi dates for the same seat, namely, respondent No. 1 and respondent No.

2. The petitioner secured 81 votes whereas respondent No. 1 secured 88 votes and respondent No. 2, 66 votes. The petitioner wanted the Presiding Officer to recount the ballots at the close of the Poll, and he having refused to do so, be engaged a lawyer to file a petition before the Returning Officer of the said Consti tuency for a recount of the votes. The Returning Officer, who was a Magistrate, First Class, entertained the petition, and fixed 18‑5‑65, 12 noon, to be the time and date for such a recount. In the meantime, the petitioner left for Dacca where he was intimated by his men that the Returning Officer has fixed 18th May at 12 noon for recount of the ballots. The petitioner reached back Comilla at 8 a. m. on the 18th May but did not attend the recounting of the votes. His plea for not attending the recounting was that on arrival at Comilla he got the information of his mother‑in‑law's illness and thereafter when he went sometime after 12 o'clock to the Returning Officer's office, he found the counting having been completed. He then filed Appeal No. 12 of 1965 before the Chief Election Commissioner. The appeal was dealt with by one of the members of the Election Com mission, namely, Mr. Justice M. R. Khan. At the time of hearing of the appeal, the petitioner challenged 31 votes cast in favour of respondent No. 1 whereas respondent 'No. 1 challenged 29 votes cast in favour of the petitioner. The Member, Election Commission, after scrutiny of the ballot papers, rejected one vote cast in favour of the petitioner and ten votes cast in favour of the respondent No.

1. The result of this rejection of ballot papers was that the number of votes polled by respondent No. 1 came down from 88 to 78 whereas that of the petitioner came down from 81 to 80, leaving the petitioner with a margin of 2 votes over respondent No. 1; and the Member, Election Commission, declared the petitioner elected in place of respondent No.

2. The respondent No. 1 challenged the order of the Election Commission dated 3‑6‑65, by a petition under Article 98 of the Constitution, in the High Court. On 15‑2‑66, the High Court set aside the order of the Election Commission and remanded the appeal for re‑hearing by the Commission in accord ance with law and the observations made in the High Court's judgment which were that the Election Commission does not acquire jurisdiction for rejecting ballot papers without having given an opportunity to the contesting candidates to prove as to whether the reasons for which the voting papers can be said to be invalid were attached to those at the time of polling or after the polling. Against this decision of the High Court, both the petitioner and the respondent No 1 moved the Supreme Court. The Supreme Court, by its judgment dated 26‑5‑66, upheld the judgment of the High Court and remanded the appeal back to the Election Commission for re‑hearing in terms of the directions given by the High Court which the Supreme Court also approved in an elaborately written judgment. Thereafter, the Member of the Election Commission, while rehearing the appeal after remand, did not take into consideration the ten votes of respondent No. 1 and the one vote of the petitioner which he had earlier rejected by a misconstruction of the judgment of the Supreme Court. The Member of the Election Commission, of course, followed the decision of the Supreme Court as far as giving opportunity to the respondent No. 1 for adducing evidence with regard to the time and date when the extra marks found in some of his ballot papers were put therein, which necessitated the rejection of those ballot papers by the Member of the Election Commission. After re‑hearing of the appeal on 21‑12‑66, the Commission stock to its earlier order of declaring the petitioner to have been elected as it found that the ten votes cast in favour of the respondent No. 1 which it had earlier rejected having not been taken into consideration the position as far as voting is concerned remains the same. Against this order, the respondent No. 1 again came to the High Court and challenged it under Article 98 of the Constitution, and the High Court again, on 18‑4‑67, allowed the petition of the respondent No. 1 set aside the second order of the Commission, and remanded the appeal back for decision in accordance with the judgments of the High Court and the observations made by the Supreme Court in its first judgment. Against this order of the High Court dated 18‑4‑67, the petitioner went to the Supreme Court and prayed for leave to appeal but unfortunately for the petitioner the application for leave to appeal was dismissed by the Supreme Court in liming resulting in the High Court's order dated 18‑4‑67 remaining in force which directed a re‑hearing of the appeal by the Election Commission. Thereafter, on 4‑11‑67, the Chief Election Commissioner heard the appeal and decided in favour of respondent No.

1. Against this order of the Chief Election Commissioner dated 4‑11‑67, the present petition under Article 98 of the Constitution was filed and the Rule nisi was obtained. Question involved for decision in this Rule are simple and short Mr. Abdul Hamid, the learned Advocate for the petitioner, argued that, in accordance with the provision of Article 153 of the Constitution, an Election appeal by a candidate to the Chief Election Commissioner has to be heard and disposed of by the Election Commission which means the Election Com mission composed of the Chief Election Commissioner and two Judges of the two High Courts of Pakistan. In the present case, the Commission having not been in existence on the date when this appeal was heard on 4‑11‑67, and the same having been heard by the Chief Election Commissioner alone, the order of the Chief Election Commissioner is void ab initio. We regret we cannot subscribe to this view of Mr. Hamid in view of the legal provisions obtaining on the point which have been very thoroughly gone into by the Supreme Court in the case of Mian Jamal Shah v. The Member, Election Commission and others (P L D 1966 S C 1). The next contention of Mr. Abdul Hamid has been that the onus of proving, as to when the extra marks were put on the ten ballot papers of respondent No. 1, has been wrongly placed on the petitioner by the Chief Election Commissioner, and there fore his order is not sustainable in law. The last contention of Mr. Abdul Hamid has been that the benefit of the doubt as to at what point of time the extra marks had been put on the ballot papers should have gone in favour of the petitioner instead of the respondent No. 1, as has been done by the Chief Election Commissioner. The Supreme Court, in its judgment dated 26‑5‑66, laid down that the Election Commission acquires jurisdiction to reject ballot papers if any extra mark or anything else which invalidates a ballot papers has entered on its body prior to the ballot paper being put into the ballot box or, in other words, at the time of polling, otherwise, the Election Commission does not acquire jurisdiction to reject a ballot paper. In the present case, the petitioner wanted a recount of the ballot papers without storing as to whether any of the ballot papers cast in favour of respondent No. 1 were tainted with an extra mark or anything else which would invalidate them. While hearing the appeal, the Member of the Election Commission detected certain extra marks and members on ten ballot papers cast in favour of respondent No.

1. He in his order clearly stated that by evidence it was not established at what point of time these extra marks have crept into these ballot papers. At the time of hearing of the appeal, the respondent No. 1 wanted to adduce evidence to show that these extra marks and numbers for which ten ballot papers cast in his favour were being rejected were not thereon the ballot papers at the time of polling which would give jurisdiction to the Commission to reject those ballot papers. The Commission did not unfortunately, at the first instance, grant that opportunity to respondent No. 1 to adduce evidence. The High Court, on the finding of the Commission itself that it was not certain as to at what point of time the extra marks crept into the rejected ballot papers and also for not granting an opportunity to respondent No. 1 to adduce evidence to show that these extra marks were not on the ballot papers at the time of polling, set aside the order of the Commission and directed it to give an opportunity to respondent No. 1 and to find positively upon evidence adduced as to the point of time when the extra marks had crept on those bellot papers. Unfortu nately, as already observed earlier, the Election Commission, although had given an opportunity to the respondent No. I for adducing evidence while rehearing the appeal, kept out of consideration the ten ballot papers cast in favour of respondent No. 1 and the one ballot paper cast in favour of the petitioner which he had rejected at the time of the earlier hearing. This undoubtedly was against the direction of the Supreme Court may be this was as a result of unfortunate oversight or misconstruction of the judgment of the Supreme Court by the Election Commission. From a reading of the judgment of the Supreme Court, what the Supreme Court wanted to say, as we find, is this that after allowing respondent No. 1 to adduce evidence to prove as to whether the rejected ballot papers had any extra marks on them at the time of polling the Commission should come to a definite finding that these extra marks were on the ballot papers at the time of polling which would confer juris diction on the Commission to reject those ballot papers, and for doing so he could not have kept the earlier rejected ballot papers out of his consideration. What the Supreme Court wanted to say was that the rejection of the ballot papers at the first hearing was of no consequence in the absence of any evidence or finding by the Commission itself as to the time of the extra marks creeping into them and therefore the question of rejection or acceptance of the ballot papers by the Commission would arise only after finding out the time when the extra marks were put. It seems that this is where the Commission fell into an error. At the third hearing of the appeal by the Chief Election Commissioner, he has, upon evidence adduced, come to a positive finding that the extra marks found on the 10 ballot papers of respondent No. 1 were not on them up to the time when the Returning Officer had made a recount of the votes on the 18th of May 1965. He has found further from the positive evidence of the Ruturning Officer and another witness that the Returning Officer had examined the ballot papers scrutinisingly from 1 p. m. to 4 p. m. on the 18th of May and thereafter put them fn a cover sealed with the seal of the Sub‑Divisional Officer as well as with a personal seal of the Returning Officer, and when the cover containing the ballot papers were received by the Commis sion at the time of the first hearing of the appeal, the seals are admitted to have been found intact. The Chief Election Com missioner has further found from the evidence of O. P. W. 1 and O. P. W. 2, the Presiding Officer, and the Returning Officer, that none of those two witnesses, at the time of the respective counts made by them, found any extra marks on those ten ballot papers cast in favour of respondent No.

1. He therefore was satisfied on evidence that these extra marks on the ten ballot papers cast in favour of respondent No. 1 had crept into them after the ballots were counted and sealed by O. P. W. 2, the Returning Officer. Because of this positive finding of the Chief Election Commissioner that the extra marks on the ten ballot papers did not exist on them at the time of the polling, he did not acquire any jurisdiction to reject those ballot papers in terms of the observations of the. Supreme Court. Therefore, it cannot be said that the Chief Election Commissioner in his last order dated 4‑11‑67 has in any way violated the order given by the High Court and approved by the Supreme Court or has exceeded his authority to pass the order as he has done. Since the Chief Election Commissioner's finding is based on evidence adduced before him, we sitting in the writ jurisdiction under Article 98 of the Constitution, cannot interfere with that finding of the Chief Election Commissioner. We may add that we find no substance in the other contentions of Mr. Abdul Hamid that the Chief Election Commissioner has in any way violated the principles of law or wrongly placed the onus on the peti tioner to prove or disprove the extra marks found on the questioned ballot papers. If upon evidence the Tribunal has come to the conclusion that these extra marks did not exist on those ballot papers at the time of polling, that, in our opinion, concludes the issue. If the extra marks have come on the ballot papers after the polling was closed then the case will be one of corruption to be dealt with by the Election Tribunal and outside the scope of the Election Commission. In the ultimate analysis, we find no substance in any of the contentions of Mr. Abdul Hamid to hold that the Chief Election Commissioner has violated any principles of law or has acted contrary to any provisions of the law governing the subject. In the result, therefore, we discharge this Rule but without any order as to costs since we have not troubled Mr. Moinul Haq, the learned Advocate for the respondent, for any arguments to be advanced on behalf of his client. ABDUL HAKIM, J.‑‑‑I agree. A. E. Rule discharged.