P L D 1987 Karachi 681 (PLP)

"It is, therefore, quite clear that the order of Tribunal cannot be maintained as the total number of votes shown to have been cast, according to impugned order in favour of petitioner and respondent No. 1 exceeded the admitted number of votes cast during the poll. Mr. Mangi the learned counsel for respondent No.l prayed before us that since the entire election record is before us we may ourselves open the envelopes containing the ballot papers and after counting the same declare the result. The course suggested by the learned counsel cannot ordinarily be followed by this Court in exercise of its Constitutional jurisdiction as pertains to determination of a disputed question of fact which is within the exclusive jurisdiction of Election Tribunal. We accordingly accept the petition declare the order of respondent No.2, dated 13-2-1985 as an order without lawful authority but in the circumstances of the case direct the tribunal to recount the votes cast in favour of the petitioner and respondent No. 1 afresh and dispose of the dispute raised before it in the light of the above observations in accordance with law."

3. Respondent No.2 instead of recounting the votes embarked upon examining the validity of votes and has treated two votes bearing Ex-4G and 4F as valid, which were earlier rejected by the Returning Officer. These two ballot papers were rejected on the ground that they bore the thumb impressions of the voters and thus had violated the secrecy of the vote. At the same time respondent No.2 rejected one vote cast in favour of the petitioner on the ground that there was no official mark on its back. Their rejection or acceptance was neither earlier challenged before the Tribunal nor before the High Court. Hence on the basis of above findings as to the validity and invalidity of the above-mentioned three votes the Tribunal by its judgment dated 12-8-1985 declared the respondent No.l to have polled 121 votes against 120 votes of the petitioner and declared the said respondent to have been elected from Unit No.3 of Municipal Committee, Ghotki.

4. We have heared Mr. M.A. Rashid Advocate for the petitioner and Mr. Mohammad Hanif Mangi Advocate for the respondent No.l at length. It was contended by Mr. M.A. Rashid that the Tribunal had acted without lawful authority inasmuch as that it had travelled beyond the direction given to it in the remand order of this Court passed in C.P. No. D-20 of 1985. Elaborating his point he submitted that the direction of this Court related to the recounting of votes and their validity or otherwise was neither questioned before this Court nor had this Court directed the Tribunal to enter into the question of validity of those votes, which was already decided and such decision was accepted by the parties. As against this the contention of Mr. Mohammad Hanif Mangi was that the direction of this Court while remanding the case to the Tribunal was to recount the votes cast in favour of both the parties afresh and decide the dispute raised before the Tribunal in accordance with law. According to him the recounting included re-examination of all the votes cast in favour of both the parties once again. We have given our thoughtful consideration to the contentions of the advocates of both the parties and have gone through the impugned judgment of the Election Tribunal. We are afraid that we cannot subscribe to the interpretation put by Mr. Mohammad Hanif Mangi on the order of this Court that the remand was for the purpose of examining the validity of all the votes cast at the election in A favour of the petitioner and the respondent No.l once again. This Court had very clearly held that there was a mistake in counting in that instead of adding six votes to the 117 actual votes of the respondent No.l the tribunal had added six votes to 119 votes. This mistake was detected because of the fact that the total number of votes of both the candidates valid as well as invalid were increasing by two votes when compared with the used counterfoils of the ballot book. Hence the scope of the remand order was restricted to the recounting of votes so that the controversy should be settled arid the mistake according to which the total of valid and invalid votes cast in favour of both the candidates had increased the number of used ballots from the ballot book by two should be rectified. This is quite clear from the words, "direct the Tribunal to recount the votes cast in favour of the petitioner and the respondent No.l afresh and dispose of the dispute raised before it in the light of above observations in accordance with law." It may be pointed out that these two votes Exhs. 4G and 4F were declared invalid by the Presiding Officer at the very first count on the ground that the same bore thumb impression and were also not properly marked. The thumb impression on these ballot papers violated the secrecy of ballot and the improper marking made the expression of the intention of the voter ambiguous and the said finding was confirmed by the Returning Officer. These votes were therefore excluded from the count in view of rule 40(4)(c)(ii) of the Sind Local Councils (Election) Rules, 1979. In this connection reliance was placed in 1980 C L C 1832. Abdul Khaliq v. Province of Sind through the Secretary, Local Government and 3 others where in a D. B. consisting of Agha Ali Hyder, C J and Ali Muhammad v. Akhund, J, when the Presiding Officer at start of polling explaining manner of putting of marks on ballot papers and warning cancellation of ballot papers in case of not being marked at prescribed place and the ballot papers in dispute, however, not marked at prescribed place, held that Presiding Officer, in circumstances, was competent to exclude votes cast in departure of procedure announced and explained. In an other ruling in the case of Mahmood Azam Farooqi v. Muhammad Shaft Okarvi reported in P L D 1977 Jour. 211, Saad Saood Jan, J. Member of Election Commission of Pakistan held that a ballot paper marked by elector on reverse side-casts reasonable doubt about elector's intention. He therefore held that such ballot paper was not to be counted in favour of candidate in whose square it was found. The case was remanded by this Court to the Election Tribunal with certain specific directions which are clear from the observations made in the judgment. There were certain questions which were already determined by the Presiding & Returning Officers, the Election Tribunal and this Court and there were certain questions, which were abandoned by the parties in appeals or in the constitution petition. The law on the point is quite clear. In the case of Muhammad Hussain v. Fazal Haq and another reported in P L D 1974 Lah. 208, it was held by Aftab Hussain, J to the following effect:- "I have gone through the entire case-law on the scope of Order XLI, rule 23, C.P.C. and I have not been able to find out a single precedent or authority allowing the trial Court in any proceedings after the remand to re-open questions already determined by the appellate Court or abandoned by the parties in appeal in which an order of remand was passed." The above principle of law finds support from the case of Sripat Singh Dugar and another v. Rai Hariram Goenk and others reported in A I R 1922 P C 51; where it was held that where the remand was ordered on points raised, any one of which would have been sufficient to dispose of the case, the remand order must be deemed to have confirmed the decision on other points. There is no dispute about the challenge vote of deceased Muhammad Ramzan cast in favour of the Abdul Majid and its exclusion therefore need not have been made a subject of controversy. Similarly the exclusion of one vote in favour of Ghulam Mustafa on the ground that it did not bear the official seal on its back need not have been made a subject of controversy.???????????????? Hence we are of the clear view that by treating the two votes Ex.4G and 4F as valid, the Election Tribunal has exceeded the sphere of its authority, which was delegated to it by this Court. We, therefore, set aside the impugned judgment of the Election Tribunal and remand the case to it again for recounting strictly in accordance with the directions and in the light of observations made in the judgment of C.P. No. D-20 of 1985. A.A./G-38/K??????????????????????????????????????????????????????????????????? Order accordingly.