P L D 1967 Lahore 699 (PLP)

MUHAMMAD GUL, J.‑Razi‑ur‑Rehman (the petitioner) and Akbar Ali (respondent No. 1), were two rival candidates for elec tion to the Electoral College of Pakistan from electoral Unit No. 3 Union Committee No. 32, Jaranwala, district Lyallpur. In the count held by the Presiding Officer (respondent No. 3) immedi ately after the close of poll on 2;11‑1964, the petitioner was found to have polled 330 votes as against 326 polled by respondent No.

1. However, the Presiding Officer excluded 12 ballot papers from the votes polled in favour of the petitioner and 7 ballot papers polled in favour of respondent No. 1 reducing the number of votes polled by them to 318 and 319 respectively. Consequently, respondent No. 1 was declared elected by majority of one vote.

2. Out of total of 330 ballot papers found in the petitioner's box, 12 were excluded from the count because one did not bear both the initials of the Presiding Officer and the official seal as required by section 40 (2) (c) of the Electoral College Act, 1964; five did not bear only the initial of the Presiding Officer though they had the official seal on them, the remaining six ballot papers had both the official seal and the initials of the Presiding Officer, but nevertheless, the Presiding Officer is alleged to have inscribed the word "Cancelled" in red pencil on them without assigning any reasons.

3. Aggrieved by the order of the Presiding Officer declar ing respondent No. 1 elected, the petitioner moved as election petition under section 58 of the Act, praying for a declaration that the election of respondent No. 1 be declared void and that in his stead, the petitioner be declared duly elected to the Electoral College from the aforesaid unit. The main grounds urged in the election petition were that out of the total number of votes polled in his favour, the Presiding Officer excluded 12 votes with a view to‑favouring respondent No. 1; that during the election the petitioner had challenged the identity of 24 persons who voted for respondent No. 1 and paid the prescribed fee in respect of each challenged vote but that no decision was taken thereon; and finally that res pondent No. 1 and his agents were guilty of corrupt practices both during and prior to the election.

4. The learned Election Tribunal (respondent No. 2) by order, dated the 5th May 1965, dismissed the petition filed by the petitioner and hence this writ petition by him under Article 98 of the Constitution. The reliefs claimed are that the orders of the Presiding Officer made on 2‑11‑1964 declaring respondent No. 1 to be elected and the order of the Election Tribunal made on 5‑5‑1965, whereby the petitioner's election petition was dismissed be set aside and the petitioner be declared duly elected member of the Electoral College of Pakistan from the aforesaid Electoral Unit having secured majority of the valid votes polled.

5. Akbar Ali (respondent No. 1) is the principal contesting respondent. He in his written statement traversed the allega tions against the Presiding Officer and supported the Tribunal's impugned order. The Presiding Officer (respondent No. 3) also entered appearance to canvass the validity of his impugned action in relation to the 12 votes excluded from total number of votes cast in the petitioner's favour. However, he did not file any written statement nor any affidavit to counter the allega tions made against him in the petition.

6. It is common ground that the petitioner's box contained 330 ballot papers as against 326 found in the box of respondent No.

1. Learned counsel for the petitioner, frankly conceded that of the 12 ballot papers excluded from total number of votes cast in favour of the petitioner, it was not possible to question the exclusion of one ballot paper which did not bear both the official seal and the initials of the Presiding Officer. He, however, contended that the Presiding Officer's action in so far as he excluded other five ballot papers which had the official mark on them but did not bear his initials was without lawful authority. In this behalf he relied upon the provisions of section 45 (1) of the Act which provides for the exclusion of 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 could be identified. It was urged that since the five ballot papers had the official mark on them and they did not bear any other mark or writing by the voter concerned by which be could possibly have been identified, therefore, exclusion of these Live ballot papers from the total number of votes cast in favour of the petition was illegal. Learned counsel also relied in this behalf of an unreported judgment of this Court in Writ Petition No. 581 of 1965 (Ejaz Hussain v. Election Tribunal, Gujrat, etc.), one of us being a party to the judgment in that case. It was held in that case "that from a plain reading of the provision of section 45 (1) of the Act, it was clear that the Legislature insisted only on the presence of the official mark and not the initials of the Presiding Officer as test of the validity of the votes. The provision being unambiguous and penal in its consequence could not be extended so as to bring it within its ambit, the absence of the Presiding Officer's initials, not withstanding the provisions of section 40 (2) of the Act, which require both the official mark and the initials of the Presiding Officer. In the absence of any authority to the contrary, we agree that the exclusion of five ballot papers which did not bear the initials of the Presiding Officer but which did not suffer from any other blemish were excluded from the total number of votes polled in favour of the petitioner without lawful authority.

7. The petitioner's learned counsel next attacked the conduct of the Presiding Officer in so far as he inscribed the word "cancelled" in red pencil on six ballot papers and after having done so excluded these six ballot papers from the total number of valid votes polled by the petitioner. It was urged that a degree of vehemence that this act was deliberate on the part of the Presiding Officer motiviated with one objective, namely, to declare respondent No. 1 elected by any means fair or foul.

8. It must be observed at once that the reasons which led the Presiding Officer to inscribe the word "cancelled" on each of the six ballot papers are indeed a mystery. There is no separate order in the record of the election proceed ings nor has the Presiding Officer filed any written statement or his affidavit to show what led him to inscribe the word "cancelled" on six ballot papers cast in favour of the peti tioner, when they had both the official mark and his initials and did not suffer from any other blemish. We incline to the view that he did not file his written statement or affidavit, because he had no explanation to offer in relation to his extraordinary conduct. All that learned counsel appearing on his behalf could say was that the Presiding Officer was obliged to cancel these ballot papers because they were disfigured and he instructed the voter concerned in each a case to obtain a substitute ballot paper from the Polling Officer to record his vote. The record of the election proceeaings was summoned in this case and was opened in the presence of the parties. The six ballot papers with the inscription "cancelled" did not bear any other mark calculated to disfigure them or otherwise making it possible to identify the voters who had cast these ballot papers in the ballot box. Therefore, the explanation offered on behalf of the Presiding Officer by his counsel rests on the grounds which are entirely imaginary. Even otherwise it is unbelievable that all the six voters concerned should have disregarded the instruction of the Presiding Officer to obtain new ballot papers for the allegedly spoiled papers already issued. t

9. The learned Election Tribunal (respondent No. 2) disposed of this rather important aspect of the case in these few words:‑ "The records have been perused and it has been observed that six ballot papers of the petitioner were cancelled but some how or other, these were found in the box which means that even after the cancellation by the Presiding Officer, the voters put these into the boxes and these six were consequently rightly declared invalid." If we may say so, the learned Election Tribunal addressed himself to the question before him rather perfunctorily. He entirely overlooked the fact that if the six ballot papers had been cancelled because they were disfigured or otherwise spoiled, then they had to be shown separately against item No. 6 (a) in Form XIV prescribed under rule 33 of the Electoral College Rules, 1964. After the cancellation of the ballot papers, there was no occasion for them to be found in the petitioner's ballot box: they had to be kept in a separate cover and instead new ballot papers had to issue to the voters concerned. Then it is a matter of mere observation to say whether the six ballot papers were so spoiled or disfigured as to require their substitution by new ballot papers. As observed already we had the advantage of examining these six ballot papers in the presence of parties' counsel and it would be traversty of fact to any that these were in any manner disfigured. The fact that these ballot papers were not separately shown in the account, goes a long way to support the petitioner's contention that respondent No. 3 inscribed the word "cancelled" only after the ballot papers were taken out of the petitioner's ballot box, when on the preliminary count it was found that the petitioner had secured a majority of votes polled, respondent No. 3 in his wantonness cancelled petitioner's six ballot papers to ensure majority for respondent No. 1.

10. The above discussion leads us to conclude that eleven ballot papers were excluded from the total number of votes polled in favour of the petitioner without any semblance of lawful authority. This would work out the total number of valid votes cast in his favour to 329 as against 326 polled by respondent No. 1 which respondent No. 3 on scrutiny reduced to 319.

11. The petitioner's learned counsel did not press other points taken in the writ petition.

12. For the aforesaid reasons, we accept this writ petition, set aside the impugned order of the Presiding Officer (respondent No. 3) and that of the Election Tribunal (respondent No. 2) purporting to declare respondent No. 1 to have been elected from Electoral Unit No. 3 in Lyallpur District and further direct respondents Nos. 2, 3 and 4 to declare the petitioner to be duly elected to the Electoral College of Pakistan from that Electoral Unit. We further order that respondents Nos. 1 and 3 shall pay the petitioner his costs.

13. We cannot part with this case, without recording our sense of dismay. over the conduct of the Presiding Officer (respondent No. 3) to so far as he excluded six valid votes polled in favour of the petitioner by inscribing "cancelled" on the ballot papers for no apparent ryhme or reason. On the face of it, it was case of sheer abuse of authority and not a mere error of judgment. Although represented by counsel, he thought it mere prudent not to appear personally and file written statement or affidavit to explain his extraordinary conduct. Probably he had no explanation to offer, and left this unenviable task to this counsel. The explanation his counsel offered as pointed out already was more fanciful than real. Respondent No. 3 by his wanton conduct not only deprived the six electors of their franchise but also attempted to frustrate the choice of the majority of the electors to prevail. This might also, in the circumstances of the case, attract the pro visions of section 68 of the Electoral College Act.

14. Copies of this order shall be sent to the Provincial Government and the Chief Election Commissioner for such action against respondent No. 3 as might be deemed fit in the case. However, in fairness to respondent No. 3 we must enter caveat that the above observations shall not be read as findings against respondent No. 3 either on questions of law or fact so as to determine his personal liability. In these proceedings his conduct came under examination only incidentally and not with a view to determining his personal liability. K. M. A. Petition accepted.