1969 PLP 178 (SCMR)

Date of hearing : 4th December 1968. SAJJAD AHMAD, J.‑In tilts appeal the dispute relates to the election to the office of the Chairman, 'Town Committee (District Muzaffargarh), which was held on lire 30th of November 1966. The appellant‑Muhammad Anwar Qamar and the respon dent Sh. Allah Wasaya, were the only contestants for this office. The total vote;; cast were 5 out of which 3 bearing serial Nos. 3, 4 and 5 were found to be cross‑marked in favour of the appellant and 2 bearing Nos. 1 and 2 in favour of the respondent‑Sh. Allah Wasaya. On a count ballot paper No. 3 was rejected by the Presiding Officer as it bore a tear mark which he thought dis closed the identity of the voter and offended against the secrecy of the ballot. This finding equalized the votes of the two contestants and lots were drawn between them in which the appellant emerged as the victor although he had staged a walk out in protest against the drawing of lots. Dissatisfied with this result the respondent moved an election petition to the Controlling Authority (Mian Ahmad Shafi, Collector, Muzaffargarh) who acted as the Election Tribunal. His case before the Election Tribunal was that ballot paper No. 4 counted for the appellant which bore two cross‑marks, one against his and the other against that of the appellant should have been rejected as invalid thus yielding to him a majority in the voting and he should have been declared as the elected Chairman. During the proceedings of the Election Tribunal; an application was made by the appellant on 7‑12‑1966 which contained allegations against the Presiding Officer (Mr. Hidayat Ullah, S. D. M., Leiah), that he had acted in collaboration with Allah Wasaya to make a tear on ballot paper No. 3 and a second cross‑mark on ballot paper No. 4, both of which had been validly cast in favour of the appellant, in order to upset the result of the election in favour of Allah Wasaya. The Election Tribunal summoned the Presiding Officer to explain these allegations. He appeared on the 5th of January 1967 and stated that he had counted the ballot paper No. 4 in favour of Mr. Muhammad Anwar Qamar as there, was a thick cross pencil mark against his name which was determinate of the voter's intention to vote for him as against the half‑hearted dim cross‑mark at the edge of the column against the name of Allah Wasaya. The Election Tribunal has observed in its judgment that "the ballot paper No. 3 which had a tear mark could perhaps be considered objectionable though the tear was so innocuous that it may not be considered to have offended against the rule of secrecy". It did not give a positive finding for its acceptance or rejection but as regards ballot paper No. 4 contain ing two cross‑marks a finding was recorded that it should have been ruled out as invalid. The Election Tribunal refrained from going into the circumstances in which the tear appeared on ballot paper No. 3 or the second cross‑mark was made on ballot paper No. 4, as alleged by the appellant in his application dated 7‑12‑1965. It considered that "the observations of their Lordships conveyed in P L D 1957 S C 301, do not permit the Controlling Authority to raise any is3ue other than the issues raised in the election petition and also because the respondent did not put the subject‑matter of miscellaneous petition to the learned Presiding Officer when he appeared on 5‑1‑1967". The result achieved by the Election Tribunal is summed up in para. 7 of the judgment as follows:‑ "The result is that while the petitioner had two votes cast in his favour, the respondent had 3 ballot papers in his favour. The whole election unfortunately has, however, become too confused. It would be unfair to count the ballot paper with a tear as invalid and also throw out the other ballot paper with two cross‑marks and reduce the ballot papers cast in favour of the respondent to one, while in actual fact three votes had been cast in his favour, one by himself and the other two by two other members Haji Allah Bakhsh and Fazal Elahi who placed on record two affidavits. . . At the same time it would be difficult to sustain the declared result of either party. The only possible way out is to declare the election as void and to order a fresh re‑election for the office of Chairman, Town Committee, Karor, and it is ordered accordingly." Allah Wasaya challenged the order of the Election Tribunal by a Writ Petition in the High Court the learned judges of the Division bench which decided the petition came to the conclusion, on an analysis of the findings of the Election Tribunal that two valid votes were cast in favour of Allah Wasaya and one valid vote in favour of Muhammad Anwar Qamar and declared Allah Wasaya to be the duly elected Chairman, Town Committee, Karor. Leave to appeal was granted by‑ an order of a Division Bench of this Court dated 8th December 1'967, to examine the contention that the High Court had acted beyond its authority under Article 98 by assuming to itself the functions of the Election `Tribunal to pronounce upon validity of the two disputed votes and by declaring the respondent as the successful candidate. It was observed that "there was no such confusion as the Tribunal had purported to find and the, order for a fresh election could not, therefore, be supported. The position was that if both the disputed votes were good, the election of Muhammad Anwar Qamar as declared by the Presiding Officer was valid. If one vote was invalid his election was till good on the drawing of lots as had been done. But if both the votes were bad the respondent Allah Wasaya could succeed as the elected Chairman". After hearing the learned counsel and on examination of the facts of this case we are of the view that the Election Tribunal` has not given a clear finding on the a validity or invalidity of the two disputed votes and their effect on the result of this election which was clearly its duty. If it considered that the tear mark on ballot paper No. 3 was innocuous, as a logical sequal, it should have been counted in favour of the appellant bringing his score equal to that of the respondent, even if ballot paper No. 4 bearing two cross‑marks which the Election Tribunal considered as invalid was to be excluded from consideration. Under the law the tie between the contestants in that event was to be resolved by the drawing of lots which was done by the Presiding officer and had ended in the victory of the appellant. The appellant's allegation that his two votes were purposely tampered with has also not received the amount of care by the Election Tribunal which it deserved in the circumstances of the case. The three votes which were allegedly cast for the appellant according to him consisted of his own vote and of his two avowed supporters namely Allah Bakhsh and Fazal Elahi who had filed affidavits before the Election Tribunal to prove that they had cast valid votes in favour of the appellant. There could hardly be any confusion in the result of the election itself if the Election Tribunal had to a firm decision on the fate of the two disputed votes. The confusion which has induced the Election Tribunal to order a fresh election was created because of its failure to reach positive conclusions with regard to these votes. The learned Judges of the High Court were therefore right in setting aside the order of the Election Tribunal but it must be said with all respect that they have out‑stepped their jurisdiction by assuming to themselves the duty of the Election Tribunal in pronouncing the result of the election after adjudicating on the validity or invalidity of the two disputed votes which depended purely on allegations of fact that required investigation particular ly the allegations that these votes had been tampered with. The learned Judges accepted the finding of the Presiding Officer in regard to ballot paper No. 3 as according to them, it had not been reversed by the Election Tribunal and gave effect to the latter's finding in regard to ballot paper No. 4 that it was an invalid vote although the Election Tribunal, as stated above, remained undecided and failed to implement its finding about the invalidity of this vote. In the view that we have formed we set aside the order of the High Court as well as that of the Election Tribunal. The case shall go back to the Election Tribunal for a fresh hearing of the election petition on a proper adjudication of the question of the validity or invalidity of the disputed votes in accordance with law. The parties will be allowed an opportunity to produce evidence in support of their respective allegations. Costs will follow the event. Appeal accepted. Case remanded.