P L D 1988 Lahore 520 (PLP)

RUSTAM S. SIDHWA, J.‑This is a constitutional petition filed by Haji Rahim Bakhsh, petitioner, calling in question the order of the election Tribunal, Toba Tek Singh, dated 22‑12‑1988 setting aside his election and declaring Nehmat Ali, respondent No .2, as duly elected to the office, of Councillor of Ward No. 2, Union Council No. 32, Chak No. 393/J B, Tehsil and District Toba Tek Singh.

2. The brief facts of the case are that Haji Rahim Bakhsh, petitioner, alongwith Nehmat Khan, respondent No.2, contested the election, of Ward No. 2, Union Council No. 32, Chak No. 393/JB, Tehsil and District Toba Tek Singh. According to the result, the petitioner secured 322 votes, whereas respondent No .2 secured 322 votes. 37 Votes were held to be invalid/ rejected votes, Z votes were held to be tendered votes and 3 votes were declared to be lost. Being aggrieved 'by the decision, Nehmat Ali, respondent No.2, filed an election petition before the Election Tribunal, Toba Tek Singh. During the proceedings, the parties, agreed to the case being decided on a recount of the votes and checking of the ballot papers. statements of the petitioner and respondent No. 2 were recorded in this respect. Sealed bag a‑ well as the sealed envelopes were opened in the presence of the parties. All the ballet papers were rechecked and recounted. out of the 37 rejected invalid votes the petitioner was granted 6 and respondent No.2 was accepted. Out of the 2 tendered votes both were granted to respondent No.

2. Out of the votes previously declared valid in favour of tire petitioner, the Election Tribunal deducted therefrom from the count of the petitioner. Accordingly, the petitioner was held to have received 292 votes and respondent No. 2, 310 vote. The election petition of respondent No. 2 was accepted and he was declared to be a successful candidate, Being aggrieved by the said decision, the petitioner filed a constitutional petition, which is now 'before us for disposal.

3. On behalf of the petitioner it is submitted that out of the original 37 rejected/invalid ballot papers and the 29 ballot papers which were later declared invalid by the Election Tribunal, 23 ballot papers contain marks on symbols of the "Umbrella" and the "Chair" and since there were only two contesting candidates, namely, the petitioner, who had the symbol of the "Umbrella" and respondent no. 2 who had the symbol of the "Tonga", the said 23 ballot papers should be deemed to have been cast in favour of the petitioner, for there was no contesting candidate having the symbol of the "Chair" In this connection it is submitted, relying upon the principle laid down by the supreme Court in Sher Afghan v. Aamar Hayat Khan 1987 S C M R 1987, that voters do not go to waste their votes, but to cast the same, aria that since there was no contesting candidate having the symbol of the "Chair" tie intention of the said 23 voter must be deemed to have been to cast their votes in favour of the petitioner

4. On behalf of the respondent No. 2 it is submitted that where a voter has affixed two marks, instead of one. on & ballet paper, it must be presumed to mean that he wanted to vote for both the contesting candidates, considering that there were only two contesting candidates in the field, and that since the ballot papers which bore marks both on the "Umbrella" and the "Chair", the marks on the chair must be deemed to have been given to respondent No. 2, as his space contained the symbol of "Tonga" , just above that bearing the "Chair". In this connection, the learned, counsel for respondent No. 2 relies upon Sher Afghan v. Aamar Hayat Khan 1987 S C M1 R 1987~ which is the very ruling the petitioner has relied upon. It is further submitted that the ballet papers containing the marks on both symbols of the "Umbrella and the "Chair" happen to be 17 and no' 23 and that these ballet papers must be declared invalid, for the voters tried to vote for both the contesting candidates, which was their intention, and, therefore, these votes must be rejected as invalid.

5. We have given our anxious consideration to this case. The procedure regarding the manner in which the votes are counted after local council elections is given in sub‑rule (4) of rule 40, of the Punjab Local Council (Election) Rules, 1979, which may be reproduced below: ‑ (4) The Presiding officer shall‑‑ (a) open the used ballot‑boxes and count the entire lot of ballot papers taken out therefrom; (b) separate the ballet papers which are unambiguously marked favour of any contesting candidate from those‑‑ (i) which do not bear official mark and signature of the Presiding Officer; 'or (ii) which bear any writing or any mark other than the Official mark, signature of the Presiding Officer and the mark m with the rubber stamp supplied for the purpose; or (iii) to which a piece of paper or any other object of any kind been attached; or (iv) which do not bear the mark with a rubber stamp provided the purpose by the Presiding officer indicating the contesting candidate for whom the voter has voted; or (v) which though bear the rubber stamp mark, . but from which is not clear from whom the voter has voted. Explanation .‑‑A ballet paper shall be deemed to have b marked in favour of a candidate if the whole or more than half the area of the mark of the rubber stamp provided for the purpose by the Presiding Officer appears clearly within the space containing the symbol of that candidate; but, where the aforesaid mark is divided equally between two such spaces, the ballot paper shall be deemed not to show clearly for whom the voter has voted‑ (c) count separately in respect of each contesting candidate the alphabetical order of their names as appearing in the of contesting candidates in Form VII, We valid ballot paper that is to say, which are unambiguously marked in favour that candidate and put each lot in a separate packet bearing the name and symbol of the contesting candidate to which relates; (d) count and put in a separate packet the ballot papers mention in sub‑clauses (i) to (v) of clause (b) which are excluded from count; (e) place in each packet a certificate stating the number (both letters and figures) of ballet papers put therein and sign a seal each packet; (f) obtain on each packet referred to in clauses (c) and (d) t signatures and seals of such of the contesting candidates their election agents or Polling agents as may desire to sign and seal it; and (g) enclose all such packets as are referred to in clauses and (d) in a principal packet with a certificate specifying t number of packets and seal it." From the Explanation under clause (v) it is clear that valid are those in which the whole or more than half of the mark of rubber stamp provided fur the purpose by the Presiding Off appears clearly within the space containing the symbol of that candid in the ballot paper. Such ballot papers are deemed unambiguously marked. The remaining obviously come under the categories (i)to (v) of clause (b). These are counted and put in a separate packet. According to clause (d) of the said sub‑rule, these ballot papers are to be excluded from count.

6. The dispute between the parties relates to the ballot papers which have two marks, one in the space for the "Umbrella" and the other in the space for the "Chair".

7. The sealed bag containing the sealed envelopes containing the ballot papers were opened by us and in the presence of the parties the alleged packets containing 52 ballot papers falling in categories (i) to (v) of sub‑clause ( b) of sub‑rule (4) were opened and inspected. The break‑down of the said ballot papers may be stated here:‑ FROM THE ORIGINAL LOT OF BALLOT PAPERS WHICH WERE REJECTED BY THE PRESIDING OFFICER 9 have marks on "Umbrella" and Tonga!' 7 Have no marks 3 Have marks on "Hocky Stick" 1 has mark on "Tonga" and "Chair" I has mark just above the space containing "Umbrella!' 2 have marks on "Chair" FROM THE LOT OF BALLOT PAPERS DECLARED BY TRIBUNAL AS INVALID 17 have marks on "Umbrella" and "Chair" 7 have marks on "Umbrella" and "Tonga 3 have marks on "Umbrella and "Lion" 1 has no mark 1 has mark on "Chair

8. The dispute between the parties, therefore, relates to the 17 ballot papers containing marks on both the "Umbrella" and the "Chair" , and not 23, as suggested by the learned counsel for the petitioner.

9. It is true that a voter who comes to vote wants to vote for a particular candidate and not to waste his vote. For this; general proposition, there can be no cavil. A voter has only one vote there is a multi‑member electoral unit where a voter may have cast a number of votes and put marks on the symbols of such number of contesting candidates as the number of members are to be elected from that electoral unit. This is obvious from clause (b) of sub‑rule (5) of rule 34 of the Punjab Local Council (Election) Rules, 1979. Thus, where only one member is to be elected from an electoral unit, a voter has only one vote and if he places two marks on a ballot paper signifying his intent to vote for two persons, or to give a, double vote to one of them, it is against the principle of "one voter, one vote!'. On this short ground alone, the submissions of the learned counsel for the petitioner can be rejected. However, in the case of a' multi member electoral unit where a voter has to cast one or more votes and a voter affixes one or more marks in addition to the number of votes allotted to him, some difficulty may arise and the marks unambiguously put on the symbols of the contesting candidates may have to be counted in their favour, but since this particular case is not with us, for the present we would not hazard any opinion and would leave the question open for determination whenever it may arise. However, in the 'instant case there were two contesting candidates. It is, therefore, obvious that a voter primarily had to choose only one, if he really came to vote and not to waste it. He had to only affix one mark. Whether he did it rightly or wrongly, in the space provided for his particular candidate, is a different matter. However, amongst rustic villagers, there are some who out of intent or design, or ignorance or folly, might want to give their votes to both the candidates. In such a case, they would obviously put two marks, whether rightly or wrongly in the spaces attributable to both the candidates. Some may want to give two votes to their respective candidates, to enhance their success. In such a case they would also affix two marks, whether correctly or incorrectly, in the spaces reserved for their respective candidates. In. such cases it cannot be said that the intention of the voters was to vote for one particular candidate, as required by law. Much less can any such inference be drawn by invalidating one of the marks, merely because it happens to fall in space with a symbol which has not been allotted to any candidate. The rule stated in Sher Afghan's case 1987 S C M R 19871 applies to a case of a single member electoral unit where a voter has only one vote and he affixes only one mark on his ballot paper. We doubt whether the rule stated in Sher Aghan's case (supra) would apply to a case of a single member electoral unit where a voter who has only one vote affixes two‑three marks on his ballot paper. The 17 ballot papers having marks on both the 11 Umbrella" and the "Chair" D cannot be treated as valid votes given in favour of the petitioner.

10. We now turn to some of the rejected votes, which, we think, on the rule laid down in Sher Afghan's case (supra) can be treated as valid. Out of the original lot of 23 left over invalid votes, one has mark over the space containing the "Umbrella". This obviously shows that the voter wanted to vote for the petitioner. There is also another with a mark on the "Chair", which also shows that the voter wanted to vote for respondent No.2, whose space is just above, bearing the symbol of the "Tonga". Out of the 29 ballot papers later declared invalid by the Election Tribunal, 2 ballot papers have marks on the "Chair". They likewise 'go to respondent No.2. 11-The Election Tribunal gave 2 votes to respondent No.2 out of E the tendered votes, without recording any evidence in that behalf This he could not have done.

12. The upshot is that the petitioner can be attributed to have secured 300 votes and respondent No.2 can be attributed to have secured 311 votes. 13‑ In short, the 17 ballot papers having marks on both the "Umbrella" and the "Chair" do not show the clear intention of the voters to vote for one candidate, whether it be the petitioner or respondent No.2. No unequivocal inference can be drawn from these ballot papers to show that the voters clearly wanted to vote for‑the petitioner alone. These votes were, therefore, rightly rejected by the Election Tribunal.

14. The upshot of the above discussion is that respondent No.2 remains a validly elected candidate. No interference is, therefore, called for in the constitutional jurisdiction. There being no merit in this petition, the same is dismissed.

15. There shall be no order as to costs. M.B.A./85‑R/L Petition dismissed