P L D 1957 Supreme Court (Pak (PLP)

SHAHABUDDIN, J.‑

This is an appeal against the report of the West Pakistan Election Petitions Tribunal on an election petition preferred by the 2nd respondent, Muhammad Murad, challenging the election of the appellant Mr. Nabi Bakhsh Khan and the 3rd respondent Sardar Khair Bakhsh Khan to the West Pakistan Interim Legislature from the area of Sibi in Baluchistan. Under para. 1 of the Second Schedule to the Establishment of West Pakistan Act, 1955, the members of the Council of Elders of the Sibi district had to elect two persons to represent them in the Interim Legislative Assembly of West Pakistan. In respect of this and certain other tribal areas para. 10 of the Second Schedule provided that the elections from those areas shall be conducted in accordance with "arrangements made by the Governor of West Pakistan". The arrangements made by the Governor consisted of rules framed and published in the gazette and notes of guidance issued to the returning officers giving directions with regard to the conduct of election. The rules, so far as they apply to the areas in which Sibi is included, provided, inter alia (1) that the poll shall be conducted by the returning officer with the assistance of such officers as he may appoint; (2) that the poll shall be by secret ballot, and that each person entitled to vote who presents himself at the poll should be given a ballot paper, and (3) the person voting shall exercise his right of voting personally by placing the ballot paper in the ballot box bearing the symbol or colour assigned to the candidate in whose favour he wishes to vote. Only one of the directions in the notes of guidance has been brought on record, and that was to the effect that the ballot boxes should be placed on the table of the returning officer, and that the person voting should deposit his ballot papers in one of the ballot boxes and then leave the polling room by the door meant for exit. On19th January 1956, election in respect of Sibi district was held in accordance with the rules and the directions given in the notes of guidance and at that election the appellant and respondents 2 and 3 polled 65, 34 and 69 votes respectively. The third respondent and the appellant were therefore declared elected from the Sibi constituency and the defeated candidate the 2nd respondent filed the election petition. The grounds on which this election was challenged were to the effect that (1) the placing of the ballot boxes on the table of the returning officer enabled him to see in which box each of the voters placed his ballot paper, and thus there was a breach of the rule requiring that the poll shall be by secret ballot, and this materially affected the result of the election‑; and (2) the returning officer exercised undue influence in favour of the appellant and against the second respondent and that this corrupt practice also affected the result of election materially. The case of the appellant on the other hand was that the election was conducted in accordance with the arrangements made for the election, that the allega tion that the returning officer influenced the voters was false and that, the result of the election was not materially affected by the alleged breach of the rule of secrecy or the alleged corrupt practice of undue influence, if any. On these pleadings the Tribunal framed three issues the first of which covered the allegation that there was a breach of the rule of secrecy. The second issue related to the allegation that undue influence was exercised by the returning officer, while the third was whether "the corrupt practice alleged by the petitioner affected the result of the election and if so, were they sufficient to nullify the election". After evidence was recorded, the Tribunal raised suo motu a forth issue as to whether the election in question was valid in view of the fact that while two members were to be elected from the constituency of Sibi the returning officer allowed each voter only one vote. The Tribunal held that the secrecy required by the rules referred to above was absolute secrecy, that it was not known as to on whose authority the notes of guidance directing the placing of the ballot boxes on the table of the returning officer were issued, that presumably they were issued by the Election Commissioner, and, if so, that officer exceeded his authority. They, therefore, concluded that there was a breach of the rule which required that the poll shall be by secret ballot. Having come to this conclusion the Tribunal did not proceed to determine issue No. 3 which, as stated above, included the question whether the result of the election was materially affected by this breach of the rules. It took the view that there was a difference between the rules going to the very root of the election' and those that regulated the election and that the breach of the rule of secrecy meant that there was no election as envisaged by law. It was also held that each of the votes polled that day was void because there was no secrecy. In this view of the matter the Tribunal considered it unnecessary to record a finding on the 3rd issue. On the issue raised by it suo motu the conclusion was that paragraph 5 (1) of Second Schedule to the above mentioned Act, where the Sibi constituency and the number of members therefore are mentioned, gave each member of the Council of Elders of Sibi two votes and, therefore, the rule framed by the Governor that each voter shall be given one ballot paper might have been intended to mean that for each vote to which a voter was entitled he shall be given one ballot paper, and if that was not the intention that rule was ultra vires. As regards the allegation of undue influence which was covered by the second issue, no definite finding was recorded, though in disallowing the costs of the petition, it was observed that a considerable portion of the evidence adduced by the 2nd respondent was not worthy of credit. One of the contentions advanced by Mr. Brohi for the appellant in respect of the finding on the question of secrecy was that non‑compliance with the rule that the poll shall be by secret ballot did not render the election void unless it was established that the non‑compliance materially affected the result of the election, and that as no definite finding was recorded to that effect, a mere breach of that rule could not affect the validity of the election. As regards the observation of the Tribunal that every vote cast was void because there was no secrecy from the returning officer the argument of Mr. Brohi was that under the rules framed for the special areas a ballot paper became invalid only if it did not bear the signature of the returning officer. Clause 7 (1) (c) of the Corrupt Practices Order, 1936, and rule 21 of the rules framed in respect of election from the special areas including Sibi support these contentions. There is nothing in the said rules indicating that breach of the rule relating to secrecy of ballot rendered a ballot paper invalid. Neither the Tribunal nor Mr. Rahman appearing for the 2nd respondent has cited any authority in support of their view that a breach of the rule of secrecy by itself and irrespective of its effect on the result renders the election void. It does not seem fair or reasonable to disfranchise voters merely because a rule has been violated by the Returning Officer. In this connection the following passage occurring in Vol. 18 of American Jurisprudence, Elections 225 is instructive:‑ "It may, therefore, be stated as a general rule that if ballots are cast by voters who are, at the time, qualified to cast them and who have done all on their part that the law requires of voters to make their voting effective, an erroneous or even unlawful handling of the ballots by the election officers charged with such responsibility will not be held to disfranchise such voters by throwing out their votes on account of erroneous procedure had solely by the election officers, provided the votes are legal votes in their inception and are still capable of being given proper effect as such. Nor will an election be set aside because of irregularities on the part of the election officials unless it appears that such irregularities affect the result". The main contention of Mr. Brohi on this point however was that the rule in question did not require absolute secrecy as in the nature of things supervision by the returning officer was essential. There is in my opinion considerable force in this argu ment. In an election conducted by means of the coloured box system it is in the nature of things necessary that the ballot boxes are kept in the view of the Presiding Officer or some other officer appointed by him so that foul play can be successfully averted and blind or colour blind voters can be helped to cast their votes. This was not denied by Mr. Rahman appearing for the 2nd respondent, but his position was that the rule relating to secrecy of ballot does not make provision for supervision, and it is necessary to interpret that rule strictly. But such an interpretation would in effect result in the very object of the rules being defeated, The rules were obviously intended to ensure fair and free elections and if the rule in question is to be taken as meaning absolute secrecy, that is, secrecy even from the Returning Officer, it would mean that the ballot boxes should be so kept as to make it impossible for the returning officer, or any of his officers to see what is happening at the place where they are kept, with the result that a voter acting on behalf of a candidate whose' chances of election are slender can put into the ballot box of the other candidate, who expects to sweep the polls, some deleterious substance which might destroy the ballot papers and yet nothing can be done to prevent it. It appears to me that the reasonable interpretation of the rule is that it requires secrecy consistent with the supervision which is essential in the nature of things. However, in the present case the notes of guidance issued to the returning officer place the matter beyond doubt, for the direction there is that the ballot boxes should be placed on the table, of the return ing officer. Mr. Brohi contended that these directions are part of the arrangements made for the election, that the rule of secrecy should, therefore be read with this direction and that when so read it means that secrecy envisaged is not secrecy from the returning officer also. This contention was rejected by the Tribunal in the following words:‑-- "Learned counsel contended that these notes should also be taken to be rules framed by the Governor under sub para (2) of para 10 of the Second Schedule. We find no force whatever in this contention. There is nothing in the, printed document containing notes to show from which authority or place it has emanated. It is not even dated. Most probably these notes were made and circulated by the Election Commissioner. If so, and if the interpretation placed upon the words in question by the learned counsel is correct, then that officer clearly exceeded his authority." In coming to the above conclusion the Tribunal appears to have over‑looked several important facts. The notes of guidance were brought on record by the second respondent who filed the election petition. We have not been shown anything in the record to indicate that at the time those notes were filed. the case of the second respondent was that they were issued by the Election Commissioner without authority. In the election petition no reference was made to the notes of guidance, nor did the respondents rely on them in their counter statements, where the case was that the ballot boxes were not placed on the table of the returning officer. The notes were filed by the petitioner when his statement was being recorded as is seen from the following note made by the Tribunal (page 5 of the Paper Book):

"Mr. Pirzada, counsel for the petitioner, states that the arrangement for polling was made exactly in the same way as described in note No. 10 issued for the guidance of the returning officers. Mr. Pirzada has filed a copy of this note which is marked Exhibit P 1 and states that the statement which be has just made refers to this rule". Subsequently, when the second respondent, was being exa mined and his counsel wished to put certain questions with reference to the arrangements made by the returning officer, the Tribunal made a note that it considered such questions unnecessary as it had been accepted by both sides at the time of inspection that the voting was not and could not in the circumstance have been secret from the returning officer and that that was also the opinion of the Tribunal. But when the returning officer was being cross‑examined the Tribunal, in spite of their observation made earlier, allowed the counsel of the second respondent to put questions as to whether the returning officer could see the votes being cast. After the returning officer had stated that he could see some and not all ballot papers, being placed into the boxes and that there was no reason why those boxes should not be visible to him, he was asked as to whether he knew that the secrecy of ballot was to be maintained. His answer was that the secrecy required did not include secrecy from him, and that he said so because the election rules did not contain any provision that the returning officer was precluded from seeing the ballot boxes while the voting was going on. Then followed the following questions and answers which are of importance on this point:‑ Q. Had you any secret instructions besides the election rules? A. I had no secret instructions. Q. Did you have any other instructions from the Government? A. I received instructions from time to time as to how the elections were to be conducted. At this stage the advocate on behalf of the respondent objected saying that Mr. Pirzada Abdus Sattar, the counsel of the second respondent, had already made a statement before the Tribunal that the arrangement for polling was made exactly in the same way as described in para. No. 10 of the notes issued for the guidance of returning officers, and the cross‑examination on this point was then discon tinued. We have not been shown that in the cross‑examina tion of the returning officer or any other witness the question whether the issue of these notes of guidance was authorized by the Governor was raised. On the other hand, the questions quoted' above, particularly the question "Did you have any other instructions from Government?" in the context in which it occurs, considered with the fact that on objection being taken that the notes of guidance had been filed by the counsel of the second respondent himself, there was no further cross‑examination on the point, indicate that the parties proceeded on the basis that the notes of guidance were issued by Government. If the impression of the parties was that the direction was not issued under the authority of the Governor, the returning officer would have been asked by the counsel of the 2nd respondent as to the source from which the notes emanated. It is significant that the Tribunal also did not question the returning officer in this regard. It was conceded by Mr. Rahman that these notes contained instructions which were necessary for the conduct of election but which were not all contained in the rules: As already pointed out above, the power given to the Governor was not to make rules but to make arrangements, and, it is clear that the arrangements made in respect of this election consisted of rules as well as directions. In these circumstances the presumption applicable to official acts applies to the directions in the notes of guidance and the burden of proving that these directions which were obviously official were issued without authority lay heavily on the second respondent who. had come forward to defeat the declared will of the electorate. It does not seem that the Tribunal paid any attention to this aspect of the matter. Mr. Rahman's further argument was that an administrative direction which is in coitfiict with the rule cannot prevail over the rule itself. This argument over‑looks the fact that the rules in question are not on the same footing as those framed under the rule making power given by a statute. They, are, as indicated already, only a part of the arrangements the Governor had to make. I, therefore, consider that the first ground urged in the petition of the second respondent fails, and that the election cannot be set aside on that ground. As regards the point covered by the fourth issue it is in my opinion, incorrect to say that paragraph 5 (1) of the Second Schedule required every member of the Sibi Jirga to elect two representatives. That provision is as follows:-- "The members of each of the Council of Elders, (jirgas) of the following areas of Baluchistan shall elect the number of members shown against them. (a) * * * * * * * (b)* * * * * * * (c) * * * * * * * (d) Sibi * * * * 2 (e) * * * * * *.. It is clear from this that the members of the Sibi Jirga taken as a whole were to elect two members. As to how the two representatives should be elected, whether by the voters gathering round the respective candidates, or by show of hands, or by secret ballot, or by marking on the ballot paper or by the coloured box system was entirely left to the Governor to decide. The Third Schedule to the Establish ment of West Pakistan Act, 1955 contains rules in accordance with. which elections to the Interim Legislature had to be held, but paragraph 10 (2) of the Second Schedule makes those rules inapplicable to special areas including Sibi, and as has been .pointed out above in respect of those areas the Governor was to make arrangements. Rule 20 forming part of these arrangements was to the effect that each of the voters should be given one ballot paper. The Tribunal's observation that it might have been the intention of this rule, that for each vote to which a voter was entitled he shall be given one ballot paper cannot be accepted , as correct, for if that were the intention the rule would have said so in the same terms as are found in rule 8 (1) of the rules in the s rd Schedule which do not apply to the special areas. The intention of the rule in question was that only one vote should be given to each of the voters. As regards the observation in of the Tribunal that if one of the candidates is a `hot favourite' all the ballot papers would be placed in his box, the giving of two ballot papers to each voter would not be of much use as there is nothing to prevent the voters from putting both the papers in the box of their `hot favourite'. If all the voters put their ballot papers only in one of the boxes then another election has to be held for the other seat. As the Governor was empowered to frame the rules and the rule in question is not in conflict with paragraph 5 (1) of the Second Schedule it cannot be said to be ultra vires. In this connection, it was also argued by Mr. Brohi that the Tribunal had no jurisdiction to raise an issue suo motu. The Tribunal heard arguments at length on this point. but the only reason they have given for holding that they had power to raise an issue suo motu is that "the matter goes to the very root of the election and is floating on the surface of the record. Election petitions are inquired into and decided not only for the benefit of the parties but also in the interest of the general public in the constituency". They have not referred to any authority for this view. Mr. Rahman however, referred us to rule 12 in Part E of the Punjab Legislative Assembly Electoral Rules 1950, which is applicable to this case. Under that rule every election petition shall be inquired into as nearly as may be in accord ance with the provisions of the Code of Civil Procedure, 1908 applicable to the trial of suits. His argument was that as under the Code of Civil Procedure, in the trial of, suits, Courts could raise issues suo motu, the Tribunal also had similar power in this case, and he relied on a decision of the Privy Council in Shamu Patter v. Abdul Kader Ravuthan and Abdul Rajak and others (39 I A 218). In that case the issue framed by Court was said by their Lordships to be a supplemental issue. The mortgage for the enforcement of which action had been brought in that case was challenged inter alia on the ground of having been executed in fraud of creditors and without consideration, and the supplemental issue was whether the mortgage was valid under section 59 of the Transfer of Property Act. Their Lordships took the view that the Court had power to frame the supplemental issue under section 149, of the Code of Civil Procedure, 1862, which corresponds to rule 5, Order XIV of Civil P. C., 1908. They however added "even had there been no such express provision in the Code, their Lordship's consider every Court trying civil causes has inherent jurisdiction to take cognizance of questions which cut at the root of the subject‑matter of controversy between the parties." Having regard to the limited and special jurisdiction conferred on the election Tribunal it cannot be said to possess such inherent powers. The issue framed here suo motu cannot be said to be a supplemental issue. As pointed out by Mr. Brohi, an election Tribunal has jurisdic tion only to investigate anti report on the dispute referred to it, and the dispute which the Governor refers to the Tribunal is the one that appears on the election petition. As election contest is not an action in law, but is a purely statutory proceeding, and it is therefore necessary that the statute which confers jurisdiction on it should be observed strictly. The petition shall contain a statement in concise form of material facts on which the petitioner relies, and shall be accompanied by a list setting forth the full particulars of the corrupt practice which the petitioner alleges, and if these rules are not complied with the Governor can dismiss the petition. Power is no doubt given to the Tribunal to amend the particulars included in the said list, but there was no application for amendment in this case. A study of the rules in Part E of the Punjab Legislature Assembly Electoral Rules, 1950 and the Corrupt Practices Order, 1936, both of K which are applicable to Election Enquiries under section 12 (4) of the Establishment of West Pakistan Act, makes it clear that the jurisdiction of the Tribunal is not as wide as that of t a Civil Court. I therefore consider that the Tribunal had no power to raise suo motu an issue quite independent of the points raised in the petition. Mr. Rahman then relied on the Amritsar City (Muhammadan) Constituency 1937 case, where the Commissioners examined an instance of corrupt practice not mentioned in the petition, but admitted by the agent of a candidate. But in Muhammad Saeed v. Election Petitions Tribunal West Pakistan (P L D 1957 S C (Pak.) 91 at 133) where it was held by this Court that in election law it was very well settled that while particulars may be added to the allegations of corrupt practice contained in the petition so as to make these allegations more specific, no fresh instances of the same or other corrupt practice may be added to the petition, the Amritsar case was distinguished on the ground that "there was authority to the effect that an admission by a candidate himself of a corrupt practice, might be made the ground of a finding, even though it was not alleged in the petition". . However, as stated above, the fourth issue has to be found on merits in favour of the present appellant. The result is that the two grounds on which the Tribunal found that the election of the appellant and the third respondent was void fail, and therefore the finding of the Tribunal based on those grounds has to be set aside. Consequently the notification issued by the Governor that the election was void has to be withdrawn. But this does not mean that we can declare that the appellant and the third respondent were validly elected, for, the Tribunal has not recorded a finding on the issue relating to the main allegation in the petition, namely, that the returning officer exercised undue influence on the voters in favour of the persons who have been declared elected. It is unfortunate that the Tribunal having spent considerable time on recording evidence on this issue and having also formed an opinion as to its quality while disallow ing the costs, should have refrained from discussing it and recording a definite finding thereon. If they considered it unnecessary to go into the evidence they could have decided the case on the quest‑ion of law even at the very inception. It was suggested by Mr Rahman that we should remand the case to the Tribunal for recording a finding on issues 2 and 3, but I do not think we shall be justified in' doing so. As I have stated already the jurisdiction of the Tribunal is limited and the procedure of invoking it is initiation of proceedings through the Governor. I would, therefore, direct the with drawal of the notification which has declared the election of the third respondent and the appellant void, and relegate the parties to the position they occupied after the result of the election was declared and before the election petition in question was filed. The second respondent, if he is so advised, may approach the Governor to refer to an Election Tribunal the portion of the dispute which remains undecided, but he will pay the costs of the appellant in this case. MUHAMMAD MUNIR, C. J

I agree. A. R. CORNELIUS, J ‑

I agree MUHAMMAD SHARIF, J.‑

I agree. AMIRUDDIN AHMAD, J

I agree, A. H. Appeal accepted.