1990SCMR877 (PLP)

SHAFIUR RAHMAN, J.‑‑‑The Petitioner seeks leave to appeal against the judgment of the Peshawar High Court, dated 1‑10‑1989, whereby the judgment of the Election Tribunal, Peshawar, dated 5‑11‑1988 and the Notification of the same date removing the respondent from the elected office of the Mayor, were held to be without lawful authority and of no legal effect.

2. On the 16th of March, 1988 elections for the Mayor and Deputy Mayor of Municipal Corporation, Peshawar, were held. The respondent, Arbab Muhammad Tariq, won the election as Mayor, securing 22 votes as against the petitioner, who secured 21 votes. He was notified as the Mayor. The Petitioner filed an Election Petition challenging the election of the respondent as Mayor on the ground that some invalid votes had been counted in respondent's favour and that the Presiding Officer, at the election, had breached the secrecy of ballot in respect of the two lady Councilor voters. The matter was contested before the Election Tribunal. What ultimately prevailed with the Tribunal was that on the two ballot papers cast in favour of the respondent, it was not a mark of a cross "x" as required under the law that was placed, but a mark not authorised by law. Hence it excluded those two votes, thereafter, those received by the petitioner became higher and declared the petitioner elected to the post of Mayor. The conclusion recorded by the Election Tribunal was as hereunder:‑ "I have no hesitation in concluding that the mark of multiplication (x) was legally correct and undisputed mark of expression of choice of the voters to make their vote valid. Thus the two ballot papers with plus (+) marks were invalid and should not have been counted in favour of the respondent. I, therefore, exclude them now." The relief granted was in terms as hereunder:‑ "In view of the facts stated above, the instant election petition of Agha Sayed Ali Shah is accepted, the election of Respondent Mr. Muhammad Tariq Arbab on 16‑3‑1988 as Mayor, Municipal Corporation, Peshawar is held void and subsequent Notification No.AO(LG)15(32)/87‑III, dated 16‑3‑1988 issued by the Secretary to Government of N.‑W.F.P., Local Government, Elections and Rural Development Department is set aside to the extent of notifying Arbab Muhammad Tariq Khan as Mayor Municipal Corporation Peshawar. Petitioner Agha Sayed Ali Shah is hereby declared as duly elected and successful candidate for the office of Mayor, Municipal Corporation, Peshawar."

3. When the matter came up/before the Peshawar High Court on a Constitution Petition tiled by the respondent challenging the decision of the Election Tribunal, the High Court accepted the plea of the respondent and set aside the judgment of the Election Tribunal restoring the election of the respondent as Mayor.

4. Mr. Bashir Ahmad Ansari, Advocate, the learned counsel for the petitioner has taken us to the Notification issued by the Provincial Election Authority, particularly clause (4) of it, to the following effect, to contend that these instructions having been competently framed under Rule 55 read with Rule 27 of the N.W.F.P. Local Councils (Elections) Rules, 1979, had the force of statute and any mark of cross "X" not conforming to the instructions contained in these instructions had to be excluded being in negation of it:‑ "Every elector will be provided with a ballot paper who will go to a screened compartment and will place a mark of cross (x), in the place provided for, to the candidate of his or her choice:"

5. The cross marks put by the two voters which were examined by us as well as by the High Court were admittedly not in strict conformity with the mark contained in this instruction. The learned counsel also referred to Khan Shahzada v. Maulvi Fazal Rabi and 3 others 1983 S C M R 125 to urge that a very limited power was possessed by the High Court in examining, reviewing or interfering with an adjudication competently made by the Election Tribunal.

6. The rules applicable to the case are the North‑West Frontier Province Local Councils (Election of Chirman and Vice‑Chairman) Rules, 1979. Sub‑rule J (3) of Rule 6 thereof provides as hereunder:‑ "The Presiding Officer shall issue to each member a ballot paper in the form appended to these rules separately for the election of the Chairman and the Vice‑Chairman. Each member shall after taking the ballot paper proceed to the compartment where the ballot boxes have been kept, mark a cross on the ballot papers against the names of the candidates of his choice for the respective offices, and thereafter drop the ballot papers in the respective ballot boxes earmarked for each office. If a member cannot read or write, he may request the Presiding Officer to assist him in the marking of the ballot papers."

7. The instruction of the Election Authority whose violation is alleged, has been reproduced above. It also directs that the voter shall "place a mark of cross "x" in the place provided for, to the candidate of his or her choice". That instruction does not specifically say that the `cross mark' shall be specifically of a particular type as illustrated in the instruction and no other. Therefore, what is m the instruction is only illustrative of the cross as (x) and not an exhaustive description of the cross. Besides, by instructions under a rule, the meaning of cross, which is very well understood, could not be altered, curtailed or modified by using such language as has been used in the instructions. `Cross' has been defined in the Black's Law Dictionary, and illustrated also, to include the cross that was found on the two objectionable ballot papers. The definition contained in the Black's Law Dictionary and the illustrations which one finds are as hereunder:‑ "A mark made by persons who are unable to write, to stand instead of a, signature. A mark usually in ,the form of an x by which voters are commonly required to express their selection. There, are four principal forms of the cross. The St. Andrew's cross, which is made in the form of an x; the Latin cross, +, as used in the crucifixion; St. Anthony's cross, which is made in the form of a T; and the Greek cross, +, which is made by the intersection at right angles of lines at their centre point."

8. The Election Tribunal had manifestly taken an incorrect view of the law and the High Court has taken the correct view of it. A decision which is contrary to law does not on the language used in the statute, preclude the High Court from exercising its Constitutional jurisdiction in correcting it.

9. The contention of the learned counsel for the petitioner is that as only two such votes were cast out of 43, they could as well have been used as a device to identify the voters and to betray the secrecy of the ballot. That is a mere possibility. There is nothing in the assertions made or in the findings recorded, to sustain the possibility being a reality in the case in hand. In the absence of such a finding, the argument in the abstract, cannot prevail. In disenfranchising the two voters, whose intention was manifest and who had observed the law on the subject, there should have been a stronger ground and clearer language, free of all ambiguities.

10. No ground is made out for leave to appeal which is hereby refused, A.A./A‑711/S Leave refused.