P L D 1966 Supreme Court 492 (PLP)

By section 45, Electoral College Act, 1964, the Legislature has provided only one condition in clause (a) that the Presiding Officer shall exclude the ballot papers "which do not bear the official mark". Section 40 which lays down the voting‑ procedure inter alia prescribes that a ballot paper shall on its back be stamped with the official mark and initialed by the Presiding Officer. There is no inconsistency between the provisions of this section and section 45 if they are read side by side. While the Presiding Officer is required by section 40 to fulfil both the conditions a ballot paper shall be rejected under section 45 only if it does not bear the official mark. The requirement that the Presiding Officer shall initial a ballot paper is therefore directory and not mandatory in the sense that failure to comply with it will render the ballot paper invalid. The decision in Mian Jamal Shah's case is accordingly not to the effect that an untenable interpretation of law by the Commission which may amount to excess of jurisdiction or failure to exercise jurisdiction is not susceptible of interference by the High Court. Held, that the High Court was right in setting aside the order of the Presiding Officer excluding from count ballot paper not bearing initials of such officer but bearing the official mark, and the order of the Tribunal dismissing the election petition preferred from that order as without lawful authority. Mian Jamal Shah v. The Member Election Commissioner etc. P L D 1966 S C 1 considered. (c) Electoral College Act (IV of 1964), S. 46 read with Constitution of Pakistan (1962), Art. 98(2)(a)(i) Candidate found to have received highest number of votes as result of proceedings under Art. 98 (2)(a)(i)‑High Court does not itself declare such candidate "elected" but directs authorities concerned to do that which law requires them to do‑High Court does not substitute its own findings in place of findings of such authorities. M.B. Zaman Senior Advocate, Supreme Court (Gul Muhammad Butt Advocate Supreme Court with him), instructed by Khawaja Nazir Ahmad & Co., Senior Attorney for Appellant. Nasim Hasan Shah Senior Advocate Supreme Court (Shaukat Ali Khawaja Advocate, Supreme Court with him), instructed by Khalilur Rahman Attorney for Respondent No. 1 Nemo for Respondents Nos. 2‑

4. Date of hearing: 10th February 1966. MUHAMMAD YAQUB ALI, J.‑‑By this appeal with the special leave of the Court an order of the High Court of West Pakistan Lahore Bench, made on 8‑9‑1960 in exercise of jurisdiction under Article 98 of the Constitution is called in question. The facts necessary to be stated for the purposes of this order are these. In the last general election to the Electoral College Akbar Ali, appellant, and Raziur Rahman, respondent, sought election from Unit No. 3 in the District of Lyallpur. At the close of the poll the Presiding Officer opened the respective boxes of the rival candidates and found that the appellant had secured 326 votes and the respondent 330 votes. Thereafter he excluded six ballot papers of the appellant and twelve ballot papers of the respondent as invalid and in the result declared the appellant as duly elected. One ballot paper of the respondent was excluded for the reason that it did not bear the official mark and initials of the Presiding Officer as required by section 40 of the Electoral College Act, IV of 1964 and the correctness of this decision is not disputed. Out of the remaining 11 ballot papers five ballot papers were excluded for the reason that they did not bear the initials of the Presiding Officer and six on the ground that they were spoilt within the purview of section 43 of the Act. Aggrieved by the result the respondent filed an election petition which was dismissed by Khawaja Mahmood Sadiq, P. C. S., Additional Commissioner (Revenue) acting as Tribunal under the Electoral College Act, 1964, for reasons which as will be seen presently disclosed lack of proper understanding of the relevant provisions of law. Dealing with the ballot papers which were cancelled as spoilt the Tribunal observed: "Six ballot papers of the petitioner (respondent herein) were cancelled, but somehow or the other they were found in the ballot box which means that even after the cancellation by the Presiding Officer the voters put them in the box and these six were consequently rightly declared invalid". And as regards five ballot papers which did not bear the initials of the Presiding Officer it was said "It is mandatory on the part of the Presiding Officer to put his signatures on each ballot paper issued by him. The absence of signatures on these ballot papers indicates that mandatory provisions of section 40 have been violated and as such the ballot papers must be considered to be defective". The provisions of sections 40 and 45 of the Act were considered to be inconsistent and purporting to rely on a decision of the High Court of West Pakistan, Karachi Bench, which is not correctly cited it was considered necessary to give effect to the provisions of both the sections by holding "that signatures on the ballot papers are one of the ingredients of its validity". The respondent then moved the High Court of West Pakistan, Lahore Bench, in exercise of its jurisdiction under Article 98 of the Constitution with the prayer that the record be called and cancelling and setting aside the orders of the Presiding Officer and the Tribunal dated the 2nd November 1964, and 5th May 1965, respectively the petitioner be declared as elected to the Electoral College from Unit No. 3, Union Committee No. 42, Jaranwala, District Lyallpur. Besides the present appellant the election authorities namely the Presiding Officer, the Returning Officer, Jaranwala, and the Election Tribunal, Sargodha Division, were joined as parties. In the petition it was inter alia alleged that the Presiding Officer had excluded 12 votes of the petitioner to show favour to the opposite party and that the six ballot papers which were cancelled as spoilt were absolutely clean and unmarked and by no stretch of imagination they could be termed as spoilt. It is surprising that although the Presiding Officer put in appearance he neither filed a written statement nor a counter affidavit traversing the aforesaid allegations made against him. On examining the disputed ballot papers and referring to the relevant provisions of the Electoral College Act the learned Judge concluded that the Presiding Officer could under section 45 (1) reject only those ballot papers which did not bear the official mark and as the five disputed ballot papers did bear that mark the Presiding Officer had in excluding them from the count acted without lawful authority. With regard to the six ballot papers which were "cancelled" the learned Judges sent for them and found that they did not bear any other mark calculated to disfigure them or otherwise making it possible to identify the voters who had cast them. The grounds on which these ballot papers had been excluded from count were; therefore, held to be entirely imaginary. Reference in this respect was made to the provisions of section 43 of the Act which is to the effect that a voter who has inadvertently so spoilt his ballot paper that it cannot be used as a valid ballot paper may upon proving the fact of inadvertence to the satisfaction of the Presiding Officer obtain another ballot paper and that the Presiding Officer shall forthwith cancel the ballot paper returned to him, make a note to that effect on the counterfoil over his own signature and sign the cancelled ballot paper, Thereupon the Presiding Officer shall make an entry against item No. 6 (a) in Form XIV prescribed under rule 33 of the Electoral College Rules, 1964, for entering therein ballot papers cancelled, because they were disfigured or otherwise spoilt. As none of these requirements had been fulfilled by the Presiding Officer and there was no occasion for the voters to remain in possession of the spoilt ballot papers the learned Judges formed the view that "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 ". For these reasons the writ petition was accepted and the impugned orders of the Presiding Officer and the Tribunal set aside. Respondent Nos. 2, 3 and 4 were further director to declare the petitioner to be duly elected to the Electoral College of Pakistan from the Electoral Unit No. 3 in the District of Lyallpur. In support of the appeal reliance was placed on a recent decision of this Court in Mian Jamal Shah v. The Member, Election Commission etc. (1) P L D 1966 S C. 1 At page 43 of the report my Lord the. Chief Justice dealing with the conflicting interpretation of section 36 (1) (b) (i) of the National. and Provincial Assemblies (Elections) Act, 1964 (which corresponds to section 45 of the Electoral College Act, 1964) by the Member of the Commission and the High Court observed: "In reaching that conclusion, 'the Member acted upon his interpretation of the relevant provisions in the election law. That was the determination of a point of law arising in the matter, which in the view I have already expressed above was to be treated as a final determination and for that reason as well as because the determination was made within the Member's lawful authority, his decision was not susceptible of interference by the High Court under Article 98". Mr. M. B. Zaman desires us to attach the same finality to the interpretation of section 45 of the Electoral College Act by the Tribunal and to the finding that the other six ballot papers had been cancelled by the Presiding Officer and thereafter some how the voters had placed them in the ballot box. There are more than one reason for denying in the instant case that degree of finality to the decision of the Tribunal which would attach to the decision of a Judge of the High Court acting as a member of the Commission under the National and Provincial Assemblies (Elections) Act. In the first instance it appears that the Presiding Officer had acted wantonly in cancelling six ballot papers of the respondent, which were free from any defect to attract the application of section 43 of the Act. The reasoning; by the Tribunal that the ballot papers had been cancelled before they were cast was not only a convenient surmise, but fully belied by intrinsic evidence found in the fact that if they had been cancelled they would have been returned to the Presiding Officer and not allowed to remain in the custody of the voters and that an entry to that effect would have been made in Form XIV against item 6(a). If an election authority or tribunal acts in this fashion whether under the National and Provincial Assemblies Act or .the Electoral College Act the decision in Mian Jamal Shah's case would not be an authority for the view that their decisions are sacrosanct and may not be called in question in the High Court. Next as to the interpretation of section 45 of the Electoral College Act the Legislature has provided only one condition in clause (a) that the Presiding Officer shall exclude the ballot papers "which do not bear the official mark". Section 40 which lays down the voting procedure inter alia prescribes that a ballot paper shall on its back be stamped with the official mark and initialed by the Presiding Officer. There is no inconsistency between the provisions of this section and section 45 if they are read side by side. While the Presiding Officer is required by section 40 to fulfil both the conditions a ballot paper shall be rejected under section 45 only if it does not bear the official mark. The, requirement that the Presiding Officer shall initial a ballot paper is therefore directory and not mandatory in the sense that failure to comply with it will render the ballot paper invalid. This was the view expressed in Mian Jamal Shah's case by the learned Member of the Commission which was considered tenable by this Court as would appear from the following observations of my Lord the Chief Justice which appear immediately next to the observations relied upon by Mr. M. B. Zaman: "Moreover the Member's argument is not without weight, viz., that an error in this respect is totally outside the obligation of the elector and the law could not intend that he should be penalized for it. It is the duty of the Presiding Officer under section 32 before he hands a ballot paper over to the voter to apply the official mark to it and at the same time to place his initial on it. This ground therefore for thinking that the existence of the official mark is by itself sufficient to show that the paper passed through this process at the hands of the Presiding Officer, and it was mere act of inadvertence on his part that he failed to initial it at the same time." The decision in Mian Jamal Shah's case is accordingly not to the effect that an untenable interpretation of law by the Commission which may amount to excess of jurisdiction or failure to exercise jurisdiction is not susceptible of interference by the High Court. In this view the High Court was right in setting aside the order of the Presiding Officer excluding from count eleven votes of the respondent and the order of the Tribunal dismissing the election petition preferred from that order as without lawful authority. There is also no merit in the objection that the High Court has exceeded its jurisdiction in declaring the respondent as duly elected. As seen above the learned Judges have in fact directed the respondents concerned to do that which the law requires them to do and have Rot taken it upon themselves to declare the respondent as duly elected. It is also not a case in which the High Court has substituted its own findings in place of the findings of the Tribunal or of the Presiding Officer. The plain result of t setting aside the order excluding eleven ballot papers of the respondent from the count is that he has secured more votes than the appellant. Under section 46 of the Electoral College Act the Presiding Officer shall after obtaining the result of the count declare the contesting candidate who has or is deemed to have received the highest number of votes to be elected to the Electoral College and shall submit a return to the Returning Officer who shall publish in the official Gazette the name of the returned candidate. This is what precisely the High Court has directed the respondents to do and in that they have acted in pursuance of the provisions of Article 98(2)(a)(i) of the Constitution. In this view the appeal fails and is dismissed with costs. A. H. Appeal dismissed.