P L D 1969 Peshawar 95 (PLP)

In W. P. 559/66, in a straight contest for election to the Electoral College of Pakistan from Electoral Unit No. 522, Tehsil Talagang, District Campbellpur, the petitioner was elected by defeating respondent No. 1 by a majority of 82 votes. On an election petition filed by respondent No. 1, the Election Tribunal (respondent No. 2) on a recount of votes cast in favour of the petitioner, found 126 ballot‑papers slightly torn from one edge, which the Tribunal excluded from the total number of votes cast in favour of the petitioner and as a result not only set aside his election but also declared respondent No. 1 duly elected. The Tribunal's order is dated the 18th July 1966, Annex `A' to the petition. In W. P. 560/66, in a contest from Electoral Unit No. 514, village Multan, Tehsil Talagang, the petitioner defeated respon dent No. 1 by a majority of 50 votes. On an election petition filed by respondent No. 1, the Tribunal on a recount of the votes cast in favour of the petitioner found that 128 ballot papers similarly torn from one edge, which the Tribunal excluded from the count of the total number of votes polled in favour of the petitioner, and declared respondent No. 1 elected by a majority of 78 votes vide its order dated the 18th July 1966. In W. P. 635/66, in a contest from Electoral Unit No. 504, village Tarap, Tehsil Talagang, the petitioner defeated respon dent No. 1 by a majority of 72 votes. On an election petition filed by the latter, on a recount of votes, the Tribunal found 134 votes polled in favour of the petitioner similarly torn from one edge and, therefore, excluded these votes from the total number of votes polled in favour of the petitioner, and vide order dated the 25th July 1966, set aside his election and declared respondent No. 1 elected by a majority of 58 votes. In W. P. No. 636/66 the petitioner defeated respondent No. 1 by a majority of 57 votes from Electoral Unit No. 507, village Dhoke Khushal Garh, Tehsil Talagang. On an election petition filed by the latter, the Tribunal on a recount of votes found that 108 votes cast in favour of the petitioner were torn from one edge which the tribunal excluded from the total number of votes cast in favour of the petitioner and as a result set aside his election and declared the respondent elected by a majority of 51 votes, vide order dated the 17th October 1966.

3. The reasons which weighed with Tribunal to exclude the slightly torn votes from the total number of votes cast in favour of the elected candidate and to declare the defeated candidate elected in each case, were same, namely, that the Tribunal thought that the damaged ballot‑papers had been "purposely torn from one side .so that they lead to the identity of the voters" and therefore it had "no option but to accept the election petition .and to declare all these votes invalid".

4. Aggrieved by the above orders, the petitioner in each case calls in question the vires of the Tribunal's orders on the ground that it was not warranted by any provision of the law. The averment in each case was that the petitioner belonged to the party of Pir of Mokhad and after his election to the Electoral College, by voting for the candidates belonging to the opposition during the general elections following the election to the Electoral College, the petitioner "enraged" Malik Muhammad Hayat Khan then the Railway Minister in the Provincial Cabinet. The insinuation was that the impugned order in each case was passed by the Tribunal under the influence of Malik Muhammad Hayat Khan.

5. Learned counsel for the petitioners apart from character izing the impugned orders as mala fide, did not specifically address us in support of the averments in the writ petitions that the impugned orders in the four cases were the result of influence brought to bear upon the Tribunal by Malik Muhammad Hayat Khan. The matter rests only in allegation. It is true that respondent No. 2 has not filed any counter‑affidavit to rebut the above allegation, but mere allegation cannot be accepted as proof of such a serious allegation. Therefore, we cannot possibly record an affirmative finding on that aspect of the matter, firstly, because of want of any reliable data and, secondly, Malik Muhammad Hayat Khan is not a respondent before us. Needless to say, that to influence the decision of a judicial or a quasi‑judicial Tribunal in a matter of which it seizin, is punishable as contempt. It is also a tortious act exposing the person who unlawfully tries to influence such Tribunal, to a claim for damages by the person who suffers from such unlawful intervention.

6. Accordingly, the petitioner's learned counsel mainly confined himself to the argument that the impugned orders were arbitrary and not warranted by any provision of the Electoral College Act and the Rules framed thereunder. It was stressed that section 45 of the Act expressly provides for the exclusion from count of only such 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." and that there is no provision aliunde to provide for the exclusion of ballot papers from count if otherwise cast validly. In support of the argument reliance was placed on the recent judgment of this Court in Sher Khan v. Muhammad Khan (P L D 1968 Pesh. 71) wherein it was held that ballot papers torn on one side cannot be declared invalid within the meaning of aforesaid provision so as to be excluded from the count. Incidentally, it may be mentioned that the impugned order in the precedent case was also by the Deputy Commissioner, Cambellpur, in his capacity as the Tribunal. On similar facts, the learned Judges had no hesitation to quash the impugned order in that case which had likewise set aside the election of the elected candidate and in his place declared the defeated candidate as elected.

7. Learned counsel for the answering respondents, on the other hand, basing himself on the provisions of Article 171 of the Constitution, argued that all questions relating to the validity of an election held under the Constitution and elections to the Electoral College or such elections are to be finally determined by the Tribunal established for the purpose under the law relating to such election and that such questions are not amenable to the writ jurisdiction of the High Courts under Article 98 of the Constitution. Argument was also founded upon subsection (2) of section 60 of the Electoral College Act which empowered the Tribunal, after giving the contesting candidates an opportunity of being heard to "make such order as it may deem fit." The argument was that under the above provision of the statute read in the context of Article 171 of the Constitution, the Tribunal was invested with unqualified power to make any order as it may deem fit upon the material placed before it, and merely because that the order was erroneous or even bad would not justify interference in writ jurisdiction.

8. The argument in our opinion is a vain attempt to over simplify the real question involved in these four cases. The controversy in these cases goes far deeper than mere erroneous decision by the Tribunal. It is germane to the ambit of the authority of the Tribunal to set aside the election of a person who has been declared elected in the circumstances alleged in the petitions. In Muhammad Akram v. C. A. Saeed (P L D 1965 Lab. 703) a similar argument canvassing unqualified powers vesting in the Tribunal constituted under the Electoral College Act to make any order it may deem fit was repelled by the following observation :‑ "It is true that respondent No. 1 as Tribunal constituted under the Electoral College Act was invested with very extensive powers to make any order "he thinks fit" but it would be idle to suggest that he could make any fanciful or capricious order unrelated to the case placed before him, thus making a mockery of the summary inquiry. We have no doubt in our mind that the expression "as it may think fit" in section 60 means according to rule of reason and justice and in accordance with the law and not in accordance with humours, caprice or private opinion. The Legislature cannot be presumed to have invested him with arbitrary powers of a despot to make any order to satisfy his caprice." Similarly, it was held in Dil Muhammad v. Election Tribunal, Sialkot (P L D 1966 Lab. 669) that a Tribunal appointed under section 59 of the Act performs quasi‑judicial function in determining election dispute before it and that the expression in section 60 (2) of the Act "to make such order as it may think fit" does not confer unrestricted or autocrat powers to make any fanciful or capricious order in the case. In that case the order of the Tribunal accepting the bare contention of the petitioner before it without any evidence, whatsoever, was quashed as being without lawful authority. In Akbar Ali v. Razi‑ur‑Rehman Khawaja (P L D 1966 S C 492) the High Court quashed the order of the Presiding Officer whereby he rejected 6 votes from the count as spoiled, which were apparently free from any defect. Their Lordships of the Supreme Court upheld that High Court's order and described the order of the Presiding Officer as subsequently maintained by the Tribunal excluding the six ballot papers from the count in favour of the candidate who had polled majority of votes as "wanton" and held that the Presiding Officer's and Tribunal's decision rejecting the ballot papers were not "sacrosanct" and liable to be called in question in the High Court by a petition under Article

98. It is idle in the face of these authorities to, contend that the impugned orders having been passed by the Tribunal of special jurisdiction invested with extensive power is under section 60 (2) of the Act, cannot be called in question in the High Court in proceedings under Article 98 of the Constitution. This also takes these cases from the Supreme Court's dicta in Mian Jamal Shah v. Member Election Commission, Government of Pakistan, Lahore (P L D 1966 S C 1). Consequently, we have no hesitation to reject the argument canvassed on behalf of the answering respondents.

9. Coming to the merits of the cases, the facts brought on .r the record are at once astonishing and shocking to judicial conscience. The Tribunal did not exclude the ballot papers because they did not bear official mark or because there was something written by the voters by which they could be identified. Therefore, conditions (a) and (b) of section 45 of the Act did not in terms apply to these cases. The words "by the voter " are highly significant. The intention plainly is, that before the ballot paper is excluded from the count, the authority concerned must be satisfied that the offending writing is by the voter himself and not by any one else. The reason for this exacting requirement is not far to seek. Since the exclusion of a ballot paper virtually amounts to the disenfranchisement of the voter, the Legislature insisted that it is his own mischief which would invalidate his vote. In the instant cases there was no writing on the excluded ballot papers and it would be doing violence to plain English to equate a tear on one edge to a writing Moreover it is difficult to understand the process of reasoning by which the Tribunal reached the conclusion that the edges of the ballot papers were torn with a view to identifying the voters and that therefore it had "no option" but to exclude these ballot papers from the count. Section 45 of the Act is the only provision which provides for the exclusion of ballot papers from the count, and the Legislature has prescribed with meticulous care the conditions (a) and (b) in that section as set out above, under which a ballot paper cast by an elector can be excluded from the count. The Tribunal cannot lay a claim to any power under any law or a rule having the force of law to exclude the ballot papers, otherwise properly cast at an election held under the) Act.

10. It seems that the Tribunal did not care to see the ballot papers cast in favour of the defeated candidates with a view to examining the possibility that the torn edges of the ballot papers were accidental or were result of a deliberate mischief by a hidden hand to which the voters themselves were not respon sible. It is noteworthy that section 68 of the Act, inter alia, makes the tampering with the ballot papers a penal offence. From the fact that the Tribunal did not direct any enquiry to fix the responsibility for the tearing of the edges of the ballot papers it becomes difficult to avoid the impression that what the Tribunal was interested in was to exclude the torn ballot papers from the count of the total number of votes cast in favour of the petitioner in each case, so as to reduce his majority to less than total number of votes polled by the defeated candidate so that the latter could be declared elected. The Tribunal could not have been possibly oblivious to the fact that the petitioner in each case had won the election by defeating his rival by a majority ranging between 50 to 82 votes which having regard to the total. number of votes cast in each electoral unit was sizeable if not over‑whelming. Nevertheless, it thought "it fit" to frustrate the popular choice of the electors by the stroke of his pen. The basis for that part of the impugned orders is beyond our comprehension. Little did the Tribunal realize that by declaring the candidates each of whom had been defeated at the poll, it was foisting a candidate who had been rejected by electorate in no uncertain manner : not only that : in effect it was also disenfranchising the electors whose ballot papers were excluded from the count. It amounted to making the elections to the Electoral College upon which the whole constitutional structure in the country rests, wholly farcical. If we may say so, with regret nothing is more damaging to the democratic processes established under the Constitution than the reckless disregard of the provisions of law, as is apparent in these cases by a public functionary charged with the solemn duty of ensuring that the elections are conducted fairly and freely.

11. During the course of argument in these cases, we pondered over the question why did the Tribunal who being the chief executive of the District and who presumably had sufficient experience concerning the conduct of elections deviated from the requirement of law which was so clear on its plain reading and the recognized practice governing the trial of the election petitions? We have not been able to find a satisfactory answer. The allegation that the Tribunal acted at the bidding of a Minister in office has not been proved and, therefore, we cannot possibly explain this extraordinary conduct upon any hypothesis other than a lamentable disregard of law, and even ordinary sense of fair‑play. Their Lordships of the supreme Court described the action of the Presiding Officer in the case of Akbar Ali, who had cancelled six votes validly cast as' "wanton". What has happened in these cases smacks of wantonness of the impugned orders, to a far greater degree than in the precedent case.

12. For the foregoing reasons, we accept these writ petitions with costs and set aside the impugned order in each case. The result would be that the petitioner in each case would be restored to the office to which he was declared elected prior to the impugned order in each case.

13. We are constrained to direct that a copy of this judg ment shall be sent to the Provincial Government for information and such action they might deem fit to take in the matter. Petition accepted.