P L D 1966 (W (PLP)

S. A. MAHMOOD, J.‑In the contest for election to the Electoral College from Electoral Unit No. 482, District Lyallpur, Muhammad Ibrahim, son of Ali Gohar, petitioner, and Muhammad Ibrahim, son of Nawab Din, respondent No. 2, polled 295 votes each, but three of the votes of the petitioner and one of the respondent No. 2 were declared invalid, on the ground that they did not bear the initials of the Presiding Officer, though they bore the official mark, with the result that the respondent No. 2 was declared elected. The petitioner filed an election petition contending that his three ballot papers should not have been declared invalid under section 45 of the Electoral College Act, because they bore the official mark, but this contention was not accepted by the Election Tribunal, as in its view, the direction m section 40 of the Electoral College Act that the Presiding. Officer shall place the official mark and his initials on the back of the ballot paper was mandatory, and as this section and section 45 had to be so read as to be consistent with each other. The contention that the respondent's one ballot paper was invalid as it contained yellow stains by which the voter could be identified, was repelled. The petitioner has, therefore, moved this Court under Article 98 of the Constitution of Islamic Republic of Pakistan praying for a declaration that the rejection of his three votes by the Presiding .Officer was without lawful authority, null and void, and the petitioner has been duly elected to the Electoral College from Electoral Unit No. 482. 2. No argument has been addressed to us regarding the ballot paper of the respondent, which bore yellow stains. We need, therefore, say nothing about it. 3. The question, which falls for determination by us is, whether a ballot paper, which bears the official mark but does not have the initials of the Presiding Officer, is valid, and has to be counted in favour of the candidate, from whose ballot box it has been recovered. The answer is to be found in section 45 of the Electoral College Act, which reads as follows:‑ 45 (1). "Immediately after the close of the poll, that is, as soon as the last of such persons, if arty, as are present and waiting to vote as mentioned in section 44, has voted, the Presiding Officer shall, in the presence of such of the contesting candidates and polling agents, as may be present, open the ballot box of each contesting candidate in the alphabetical order of the names of the candidates and count the ballot papers, contained in the ballot box so opened excluding the invalid ballot papers, that is to say, the ballot papers:‑ (a) which do not bear the official mark, or (b) on which anything is marked or written by the voter by which he can be identified." (2) . . . . . . . . . . "' 4. Section 45(1) serves two purposes. It defines as invalid ballot paper and, secondly, it enjoins that the Presiding Officer shall count the ballot papers found in a ballot box, except the invalid ballot papers. The invalid ballot papers are those (a) which do not hear the official mark or (b) on which anything is marked or written by the voter by which he can be identified. The ballot papers falling under these two clauses are invalid. The other ballot papers not falling under these clauses are not invalid, and by reason of the mandate in this section must be counted in favour of the candidate from whose ballot box they are recovered. The provision that the Presiding Officer shall count the ballot papers, except the invalid ballot papers, is mandatory, so that the Presiding Officer has no option in the matter A candidate is entitled to demand that ballot papers, other than invalid ballot papers, found in his ballot box shall be counted in his favour. 5. Section 40 reads as follows:‑ 40. Voting procedure.‑(1) Where a voter presents himself at the polling station to vote, the Presiding Officer shall, after satisfying himself about the identity of the voter, give him a ` ballot paper. (2) Before a ballot paper is issued to a voter‑ (a) the number and name of the voter as entered in the electoral roll shall be called out; (b) a mark shall be placed on the electoral roll against the number of the voter to indicate that a ballot paper has been issued to him; (c) the ballot paper shall on its back be stamped with the official mark and initialled by the Presiding Officer; and (d) the number of the voter on the electoral roll shall be marked in writing on the counterfoil by the Presiding Officer, who shall also stamp the counterfoil with the official mark and initial it." Clause (c) of subsection (2) of section 40 directs that the ballot paper shall on its back be stamped with the official mark and initialled by the Presiding Officer. These two functions are to be performed by the Presiding Officer and there is a duty cast on him to stamp the ballot paper with the official mark and initial it, but if the Presiding Officer fails in this duty, the effect on the ballot paper is not stated in section 40, but in section 45 quoted above. Clause (c) of subsection (2) of section 40 is directory and for failure on the part of the Presiding Officer to comply with it, the result cannot be that the candidate should suffer for it, so long as the genuineness of the ballot paper is not in doubt. In order, however, to ensure that ballot papers, not duly issued, are not introduced into the ballot boxes, a provision has been made in section 45 of the Electoral College Act that the ballot paper not having the official mark shall be invalid. It is significant that it does not state that a ballot paper not having the initials of the Presiding Officer shall be invalid. The obvious inference is that a failure on the part of the Presiding Officer to initial a ballot paper is not intended to invalidate the ballot paper, because the official mark on it has been deemed to be sufficient guarantee of its genuineness. If it was intended that a ballot paper, without the initials of the Presiding Officer, should not be counted, it would have been included in the definition of an invalid ballot paper in section 45 and an express prevision made to that effect. It, therefore, follows that section 40 does not govern or control section 45. The two sections serve different purposes. Whether a ballot paper is invalid, has to be determined in accordance with section 45 without reference to section 40 (2) (c). 6. The three ballot papers of the petitioner and one ballot paper of the respondent bore the official mark but did not have the initials of the Presiding Officer. In‑ view of the definition of `invalid ballot paper' in section 45, they are not invalid and had, therefore, to be counted in favour of the candidate from whose ballot box they were recovered. The provision being that they shall be counted, the three ballot papers have to be counted in favour of the petitioner and one ballot paper in favour of the respondent. The result is that both have obtained equal number of ballot papers, namely, 295. Therefore, under subsection (2) of section 45, the Presiding Officer should have drawn a lot between the petitioner and the respondent No. 2. As the Presiding Officer committed an illegality in declaring three of the ballot papers of the petitioner invalid, although they were not invalid, he failed to perform the function assigned to him under subsection (2) of section 45. We, therefore, direct that a lot shall now be drawn between the petitioner and respondent No. 2, and that person declared elected in whose favour the lot falls, so that he shall be deemed to have received the highest number of votes, entitling him to be declared elected. 7. The learned counsel for the respondent contended that as the question of count of votes is a question of fact, this Court has no power to interfere with the announcement of the result by the Presiding Officer and the decision of the Election Tribunal. The question is not a simple question of count as to the number, but the question involved is the declaration of three of the valid votes of the petitioner as invalid in violation of the mandate in section 45 of the Electoral College Act. We have, therefore, no hesitation in holding that we possess the necessary jurisdiction in this behalf. 8. Section 45 provides that the Presiding Officer shall open the ballot boxes of the contesting candidates in the presence of the contesting candidates and polling agents as may be present and count the ballot papers contained in the ballot boxes so opened. Under subsection (2) of section 47, the Presiding Officer shall obtain on each packet of ballot papers of the contesting candidates sealed by him under subsection (1), the signatures of the contesting candidates or their polling agents as may desire to sign it. These two provisions have been made with a view to ensure that the counting of ballot papers is correct. In spite of these precautions a mistake in the count may remain and some ballot papers, which are not invalid, may be declared invalid, as in this case. Therefore, by reason of these provisions it cannot be said that there is a finality attaching to the count. In this connection, it may be mentioned that under clause (a) of Article 171 of the Constitution, provision may be made by law for disputes arising in connection with the counting of votes at an election or referendum required to be held under the Constitution to be finally determined by the Commissioner or an Election Commission, and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law and the validity of such an election or referendum shall not be called in question except in accordance with such a law. In the Electoral College Act, no provision is made for determination of disputes by the Commissioner or Election Commission. In fact, no provision at all is made for an appeal or a revision or for re‑count of votes as a recount and appeal are provided in sections 38 and 53 of the National and Provincial Assemblies (Elections) Act, 1964. Therefore, the count of votes by the Presiding Officer and a decision of the Election Tribunal arrived at in contravention of section 45 is not sacrosanct and is not immune from challenge under Article 98 (2) of the Constitution by us. 9. We are fortified in the above conclusion by the information conveyed to us that a petition for Special Leave to Appeal to the Supreme Court against a decision of this Court reported as Muhammad Akram v. Captain C. A. Saeed, Deputy Settlement Commissioner and Election Tribunal, Gujrat (P L D 1965 Lah. 703), which set aside an order of an Election Tribunal appointed under the Electoral College Act, was dismissed recently by a learned Bench of the Supreme Court. 10. For the reasons given above, we accept this writ petition, set aside the order of the Election Tribunal and direct it to draw or cause to be drawn by the Presiding Officer, a lot between the petitioner and respondent No. 2, as required by subsection (2) of section 45 of the Electoral College Act. The petitioner will have his costs from respondent No. 2. K. B. A. Petition accepted.