P L D 1956 (W (PLP)

KAYANI, J.

The petitioner Mr. Muhammad Mohsin Siddiqi. an advocate, was declared elected in the bye-election from Ward No 28 of the City of Karachi Municipal Corpora tion held on 22nd August 1954 by securing 1083 votes. Of the respondents, it is necessary to mention only No. 11, Mr. Muhammad Usman Azad, who secured 790 votes, the next highest figure. This result was achieved by declaring as invalid 339 votes belonging to Mr. Muhammad Usman Azad and 3 belonging to Mr. Muhammad Mohsin Siddiqi. The reason why they were declared invalid was that they were found in the polling boxes different from those in which they were required to be cast. This fact appears to have come to the notice of the petitioner while the election was going on ; wherefore he made an application to the Returning Officer (the Chief Officer of the Corporation, respondent No. 2), alleging fraud. When it was discovered by the Returning Officer that the voting papers in question had been cast in wrong boxes, he referred the matter for opinion to the Provincial Government which, in its turn, referred it to the Law Ministry of the Government of Pakistan. The opinion of the Law Ministry being that these votes were invalid, the Returning Officer excluded them. The petitioner having been declared the successful candidate, six election petitions were brought against him before the Chief Judge of the Karachi Small Causes Court under section 17 of the City of Karachi Municipal Act, 1933. The prayer in some of them was that the election be set aside and in others that Mr. Muhammad Usman Azad, respondent No. 11, be declared elected. A number of issues were framed by the Chief judge, but we reproduce below only issue No. 3 in Election Petition No. 1 0, this being the preliminary subject of contest before the Chief Judge. It is as follows :- "Whether the act of the Returning Officer in excluding 339 votes found in the ballot boxes of Mr. Muhammad Usman Azad was illegal and without jurisdiction for reasons mentioned under sub-paragraph (B) of paragraph 7 of the petition ? If so, what is the effect ? The reasons mentioned in paragraph (B) aforesaid were more than a dozen and rested on allegations of malpractices. After the issues had been framed, an application was filed by one of the petitioners, Nihal Ahmad, that a common issue which was a legal issue should be heard as a preliminary issue and could be so done without any oral evidence". The Chief Judge states in his judgment that this application is "on the strictly legal aspect whether the Chief Officer of the Municipal Corporation had the power to assume jurisdiction under the City of Karachi Municipal Act, 1933 or the rules framed there under to reject 339 votes, which were alleged to have been cast in favour of the respondent Mr. Muhammad Usman Azad as invalid votes . . . . and whether this power was correctly exercised". The Chief Judge goes on to say that the relevant issue was issue No. 3 in Election Petition No. 10 of 1954. The judgment then examines some of the rules relating to elections and finds as follows :- "It is clear that the rules framed for elections to the Municipal Corporation and the Notification. referred to earlier nowhere define what is a 'valid' or for that matter an `invalid vote'. Under Rule 6 (L), the voter must actually cast his vote in the box of the candidate of his choice under the eyes of the scrutineers or watchers appointed under the rules by the Chief Officer and although there is a strong presumption of corruption that the voting papers were taken away by the voters without inserting them in the respective ballot boxes, the initial point is whether the Chief Officer had the power tinder the Act or the Rules to reject these 339 votes". He held that the Returning Officer had no such power and observed :- "It seems to me that dispossessing or depriving a voter of his precious right to vote because he dropped it in a different box-different to the one which was assigned to the candidate he wishes to cast his vote for-is unfair and uncalled for. If he drops his voting paper in a ballot box in one of the booths of the place where his election is being held he complies with the condition of rule 6. " He further held :

"that the 339 votes found in ballot boxes other than those to which they were assigned were as a result of bribery and corruption occasioned by mismanagement and gross and deliberate negligence on the part of scrutineers and of those others who supervised the elections. I am convinced that all these factors have materially affected the elections .. The election of Mr. Muhammad Mohsin Siddiqi was therefore set aside and a fresh election ordered. Mr. Muhammad Mohsin Siddiqi, has therefore brought this petition for the issue of a writ of certiorari for quashing the judgment of the Chief judge and for -the issue of any other appropriate writ restraining the respondents from giving effect to the judgment. The grounds on which the petition is based are many, but during the arguments they were reduced to the following. Firstly, the Chief Judge in holding that the 339 votes cast in wrong boxes had been wrongly excluded by the Returning Officer had committed an error of law which was patent on the face, of the record. Next, although the Chief Judge had ostensibly proceeded to decide the "strictly legal issue", he had found without recording any evidence that the Election Officers were negligent and that corruption had been practised. The peti tioner's evidence, it is alleged, was available at the hearing but was not recorded. Lastly, the finding that the 339 rejected votes were the result of bribery and corruption, though based on no evidence, was in the submission of the petitioner a correct but an incomplete finding. If the Chief Judge had pursued it to its logical conclusion, he would have found that since these votes had been cast against the petitioner and in favour of his opponent, if any bribery and corruption was practised it must have been practised at the instance of the opponent's party. The result of the Chief judge's decision, however, is that Muhammad Usman Azad is permitted to take advantage of his own fraud and to stand again for election. In order to ascertain whether an error of law has been committed, it is necessary to examine the provisions relating to elections. Under section 17 (1) of the Act an election petition lies on the following grounds :- (1) If the order of the Chief Officer as to the validity of the nomination of any candidate for election as a councillor is questioned ; (2) if the qualification of any person declared to be elected a councillor is disputed ; (3) if the validity of any election is questioned by reason of material irregularity in the election proceedings, bribery, corruption, personation, treating, undue -influence or any other thing materially affecting the result of the election. Under subsection (2)- of section 17, the Chief judge makes an inquiry and may do the following things (1) if the objection is not sustained, he shall confirm the declared result of the election. (2) if the person whose election is objected to was at the time of the election not qualified to be elected as a coun cillor or was disqualified from being a councillor, he shall declare the election of such person to be null and void and shall declare to be elected the person having the next highest number of votes if no objection is found against him. (3) if the election is not a valid election, the Chief Judge shall set it aside. (4) if the candidate has been guilty of bribery, corruption, personation, treating, undue influence or any other corrupt practice, in connection with the election, the candidate shall be disqualified both for the purpose of that election and any fresh election which may be held to fill that vacancy. The order of the Chief judge is final. Under section 18, no suit, application or appeal lies in any Court in respect of any matters relating to elections. The Act does not mention or define a "valid vote" and the rules mention it but do not define it. It is obvious, how ever, that if votes are cast contrary to prescribe practice, an irregularity will have been committed; and if the result of the election is therefore affected, the irregularity will be "material". A petition will, therefore, lie under the third part of subsection (1) of section 17 for invalidating the election, and if the Chief judge finds that the election was invalid on this ground, he will set it aside under the third part of subsection (2). Now we come to the rules. These are in several schedules but we are concerned with the first. The first chapter in this schedule provides for the division of the city into wards. The second chapter provides for the preparation of the election roll showing a list of persons entitled to vote. Rule 1 (2) of this chapter requires that each ward shall have a separate ward list, and ward lists shall be arranged in alphabetical order. It is admitted that the present ward was divided into 24 sections, 12 for men and 12 for women, each containing about 5000 voters. There was a polling booth for each section with a polling officer and his assistants and with a separate booth list. Chapter IV provides for ward elections. Rule 6 is the material rule so far as the present case goes. Clause (a) of this rule states that one or more polling places shall be provided by the Chief officer for each ward, as he thinks fit, and he may appoint such and so many polling officers and other persons to assist at the polling booths as he shall think fit. Clause (j) is to the following effect "When the polling officer has ascertained that the name of the voter coming before him appears on the official list of voters and has satisfied himself as to his identity, he shall hand him the officially stamped voting papar in the following form, take his signature or thumb mark on the counterfoil, and initial the other foil in token of his having received the said paper." A sample of the voting paper is then given. Clause (l) provides "The voter shall then alone take the voting paper to a place where there shall be kept as many boxes as there are candidates. The boxes shall be marked with slips with the names of the candidates and their respective symbols and may also have photographs of the candidates attached thereto and sealed with the municipal seal by the Chief Officer .in such a way that the box in which the voting paper is placed may not be known to any person at the voting station other than the person who is appointed to supervise the papers in the ballot boxes. The voter shall drop the voting paper into the box marked with the name and symbol and photograph, if any, of the candidate for whom he wishes to vote." Part of the language employed here is not happy, but the sense seems to be clear enough namely, that the box is so placed that nobody except the supervisor should be able to see in which box the voter casts his vote. Clause (o) is as follows "The Chief Officer shall . . . . . count the votes and shall, as soon as may be, declare the results of the poll and the total number of valid votes given to each candidate. He shall also, as soon as may be, hear and decide upon all challenges and other objections, if any, to or regarding the poll made to him in writing . . . . and shall, before declaring the results of the contested election, cause lists to be pre pared for each ward, specifying the names of all candidates the number of valid and rejected votes given to each candi date-and the reasons for rejection . . . . ." This clause speaks of valid and rejected votes and makes it the duty of the Chief Officer to determine whether the votes are valid or whether they should be rejected. From clause (1) it seems clear that the voter has to go alone to the ballot box, which is so situated that only the Polling officer or his supervisor can see him, and that it is he who has to drop the voting paper in the box and into that box alone. Now it is agreed that each polling booth consists of an ante-room where the polling officer sits and another room next to it where the ballot boxes are placed, with a communication door between them. It is also agreed that when a voter comes into the room, the polling officer after satisfying himself of the voter's identity, gives him his voting paper which he tears off from a book, keeping the counterfoil himself. The voting paper is initialled by the polling officer. If it is not placed in any box pertaining to this particular booth, then obviously it is taken out of that booth so that it may be cast -into another booth. If it is cast in another booth, since it bears the initial of the polling officer of this booth, it will be detected. Now it seems clear enough from these provisions that a voter will be allowed to cast his vote only in the particular booth where he has been provided with his voting paper, because if he leaves that booth and goes to another, the polling officer of the second booth will not give him a voting paper, the voter not being on his list. That this settled practice is clear from certain vernacular instructions produced by Mr. Manzur Qadir and purported to have been issued by the Chief Officer. These instructions enjoin the polling officer to see "that no voter casts more than one ballot paper in one box and that unused ballot papers are cast in the black box and that no voter takes out a ballot paper, because if these ballot papers go outside they fetch great value". In other words, since the candidate may not be certain that a certain voter will cast his vote for that candidate, he insists that the ballot paper should be brought out of the booth and given to him or his agents. When a number of such ballot papers are collected a person upon whom the candidate can rely and who himself has not until then cast his vote, goes into his particular booth, gets his own ballot paper from the polling officer and casts into the box pertaining to his candidate not only his own ballot paper but also the ballot papers which have been collected in the aforesaid manner. It is obvious that such ballot papers, when they are taken out of the polling booth, will be given to a candidate only for a consideration. It is, therefore, my view that the clear intention of the rules being to prohibit the taking out of voting papers from A the polling booth, if it was found that 339 such papers were taken out and cast into boxes of other booths, the votes represented by them should be excluded. Whether the rules state this ,expressly or impliedly, it is clear that if this is not done the result is a malpractice, and since a malpractice can avoid an election, it is difficult to imagine that it cannot invalidate a vote. The next question is whether certiorari lies in a case like the present one. In R. V. Northumberland Compensation Appeal Tribunal (1952 All. Eng. Law Rep. 122) it was held that certiorari to quash the decision of the tribunal lay, not only where the tribunal had exceeded its jurisdiction, but also where an error of law appeared on the face of the record. ' This seems to be the, latest view in England and it has been confirmed by the Court of Appeal. It was followed by the Supreme Court of India in Hari Vishnu Kamath v. Ahmad Ishaque (AIR1955SC233=PLD1956SC(Ind.)1). What is an error of law apparent on the face of the record is a matter for opinion on the facts of each case. In the English case it was observed that "a striking instance was where the commissioners of sewers imposed an excessive fine, and it was quashed by the Court of King's Bench on the ground that in law their fines ought to be reasonable. Other instances are the numerous cases where certiorari was used to determine the validity of a sewer's rate imposed by the commissioners of sewers". Now the Chief Judge has held that the 339 votes which were found in boxes other than those to which they were assigned were so found "as a result of bribery and corruption occasioned by mismanagement and gross and deliberate negligence on the part of the scrutineers and of others who supervised the elections" and that this result has materially affected the elections. Two of the learned counsel appearing on the respondents' side conceded that the Chief judge had gone far in relying on bribery and corruption and that he should be deemed to have mentioned these words only incidentally, the emphasis being on mismanagement and gross negligence of the scrutineers. This argument as to gross negligence and mismanagement cannot be accepted by a mere inference from the result of voting. It may be possible for a voter to take his voting paper to the box and make a show of casting the vote without actually doing so and without being detected by the polling officer who sat in the ante room, though he had access to the place where the ballot boxes were placed. It was argued that if the polling officer was neither in a position to supervise the casting of the vote itself nor appointed scrutineers for this purpose, it must be held that he mismanaged the polling and was guilty of negligence. This would require the recording of some evidence as to how the polling officer was assisted in his work and whether it was possible for voters to escape both his notice and the notice of the scrutineers. So far, therefore, as bribery and corruption are referable to mismanagement and gross negligence, it is felt that the matter could not have been decided in a preliminary issue. The Chief judge set out to decide only two points of law namely, whether the Returning Officer had power to exclude these votes and whether such votes could be excluded under the rules, and it was not contemplated that any evidence would be recorded for a decision of these matters. But whether the learned counsel adopt the reasoning of the Chief Judge or vary it to suit their own argument, there is no doubt that the Chief judge has set aside the election because "the 339 votes found in ballot boxes other than those to which they were assigned were (so found) as a result of bribery and corruption", and it should be regarded as a subsidiary finding that corruption became possible "by mismanagement and gross and deliberate negligence on the part of the scrutineers . . . . ." It was unnecessary for him to say further that all these matters had "materially affected" the elections, because corruption by itself can invalidate an election. But whether it be corruption or a material irregul arity that has been practised or committed, it is manifestly an error to suppose that the election of a successful candidate can be set aside because his opponent is guilty of corruption or irregularity. It was then argued that a material irregularity will take place not only where one of the candidates or his agents are guilty of irregular practices but also where the staff commits an irregularity. This argument, however, presupposes that the polling officer and his assistants com mitted an irregularity, the irregularity in question being the failure to see that the voting papers had not been cast in the boxes. This again takes us back to the question whether an assumption should have been made without recording evidence. But as to the merits of the argument, I refer to Hammond's Election Cases 1920-1935, where mention has been made at page 536 of a case "in which it has been held that the result of the election cannot be said to be materially affected unless the irregularities which have occurred actually turned the scale in favour of the returned candidate". The irregularities committed in the present case turned the scale in favour of the defeated candidates, and it was merely by excluding the votes which had resulted from the irregularities that the petitioner was returned. The result of setting aside the election is that Mr. Muhammad Usman Azad, who will now have the opportunity of contesting the election once more, will be allowed to take advantage of his own malpractices. Having held that "there is a strong presumption of corruption", how can the Chief judge say that "dispossessing or depriving a voter of his precious right to vote because he dropped it in a different box is unfair and uncalled for ?" The exercise of a precious right in a corrupt manner is never countenanced. I think a writ of certiorari should issue and the finding of the Chief Judge that 339 votes have been wrongly excluded H should be quashed. The result will be that the further order setting aside the election will also be set aside and that the Chief judge will proceed with the case from this stage onward. RAHIM BAKHSH, J.-I agree. A. H. Order quashed.