1992 PLP 665 (CLC)

(9) Mr. Muhammad Bashir Khan, respondent No.13, (10) Mr. Iqbal Ahmad Khan, respondent No.1l and (11) Mr. M. Bilal, respondent No.10.

4. The following issues were framed for trial:‑‑ "(1) Whether inclusion of the names of Mr. Riaz Mahmud Quraishi, Mr. Karim Dad Tarar and Mr. Salman Chaudhry as voters was against the law? (Rules 39 etc.). (2) Whether the objector/petitioner is estopped from objecting to the election on various grounds because‑‑ (i) having taken these objections before the Advocate‑General, he did not press before the Returning Officer; (ii) he actually participated without any reservation or qualification at every stage of the election? (3) Whether the Returning Officer has incorrectly recorded in his order dated 24‑3‑1990 that the objections raised before him by the Objector were not pressed? (4) Whether Mr. Khalid Malik Awan and Mian Hasamuddin were declared elected at a stage and on counting which was contrary to the one prescribed under Rules 51 and 60 of the Rules and without securing the requisite quota of votes? If so, its effect? (5) Whether the putting of words, circles, underlining and other marks and not using the prescribed Urdu numericals on the ballot papers invalidated the ballot papers? (6) Whether there has been violation of section 11 of the Legal Practitioners and Bar Councils Act in marking the preferences for candidates inasmuch as preferences were marked for candidates from outside the Province of the voters? If so, its effect on the elections? (7) Whether on the facts found established, the election is void as a whole or is it a case of recounting of votes after redetermining the validity of the ballot‑papers?" "Whether Mr. Nasim Haider and Sindh Bar Council are, or have become a necessary party to the proceedings? If so, its effect ?

5. Four witnesses including himself were examined by the Objector/petitioner. For the respondents only one, Mr, Ahmad Hassan Chaudhry appeared as a witness. Findings Issue No.1:

6. Rule 29 of the Legal Practitioners and Bar Councils Rules provides that "a list of the candidates declared elected by each Provincial Bar Council shall be prepared and signed by the Chairman of each Provincial Bar Council and it shall be sent to the Chairman of the Pakistan Bar Council who shall cause the list. to be published in the official Gazette of the Government of Pakistan. It shall be the electoral roll for the election to the Pakistan Bar Council:" After that has been done, the election programme was to be drawn up in terms of Rule

30. That procedure was duly observed in respect of persons other than the three voters whose names have been specifically mentioned in the issues framed. List of voters was notified on 1‑2‑1990. Programme of election was notified on 4‑2‑1990. Election was scheduled to take place on 15‑3‑1990. Quraishi Muhammad Bashir, a voter at serial No.80 from Punjab, died and Mr. Karim Dad Tarar replaced him by notification dated 21‑2‑1990. Another addition was of Riaz Mahmood Ouraishi of Sialkot on account of his appeal having been allowed and he having been made a regular member of the Punjab Bar Council. Salman Chaudhry was notified as a member of the Punjab Bar Council on a representation regarding increased entitlement. It is also not disputed that these three were declared elected to the Punjab Bar Council before the date of election. What is objected to is that that notification appearing after programme of the election was notified could not entitle them to vote at the election additionally because they should not have been declared elected to the Punjab Bar Council.

7. This Tribunal being a Tribunal of special jurisdiction, not entitled to question the correctness of the elections to the various Provincial Bar Councils, cannot entertain objections with regard to their entitlement to be elected. The only question that can be examined is whether in spite of being notified as Members of the Provincial Bar Councils before the poll, they could be denied the right to vote only because in doing so the time schedule for notifying the electoral roll and entitling the members to vote got disturbed or not strictly followed.

8. I am of the view that if there be basic entitlement to vote and the determination of such entitlement was for one reason or the other delayed, they could not be denied participation in the elections if proper notifications by the Provincial Bar Councils and the Pakistan Bar Council had taken place before the poll notwithstanding the disturbance of the time schedule, individually, in respect of such additional voters. The entitled voters cannot be disenfranchised on the ground that the time schedule prescribed generally for most of the voters was not observed in their individual cases when in fact such observance could not take place without postponing the whole elections. Such intention of the law is clearly spelt out by proviso to rule 39 that no voter shall be entitled to vote if he ceases' to be a voter before the poll. Conversely it will follow, and rightly so, that the entitlement as a voter is finally determinable by reference to the date of poll, the other requirements of notifications at various levels having been generally satisfied. On this view of the matter, the additionally notified members could not be disenfranchised merely because their names were not contained in the first list by reference to which the programme of election was drawn up. Issue No. 2:

9. There is material on the record to suggest that the parties and the ' voters participated in the elections in the spirit of the true mature professionals (except for the marking of ballot papers which was casual and careless), not bothered by political overtones of an ordinary election. The voters, the candidates, their supporters and agents did not press or advance too many objections at the appropriate stage. Yet such a conduct would not deprive the objectors of asserting their legal right to object to the correctness and the propriety of the procedure on legal grounds. While the elections are taking place, one cannot be expected to be so observant or so critical as to take note of every deviation or departure to immediately lodge a protest to it at the cost of losing a substantial right to do so at a subsequent stage. Even admitting what is alleged against the objector/petitioner in the matter of his conduct, in the matter of his not objecting or giving up the objections to the deviations from the procedure, I hold that he is not estopped from formally challenging the elections at a subsequent stage in accordance with law and within time Issue No.3.

10. For reasons already indicated while discussing Issue No.3, I find that even this objection with regard to the conduct of the objector/petitioner in not pressing his objections at an earlier stage is inconsequential so far as the present proceedings are concerned. Issue No.4:

11. Mr. Khalid Malik Awan (now dead) was the only candidate left in the contest from Quetta/Province of Balochistan (to which one seat had been allocated) at the end of twelfth count. The quota required for being elected as a member was worked out at

504. It was is the thirteenth count when the count of Mr. Khalid Malik Awan was only 212 that he was declared elected under Rule 59‑ A. This was done because if the count of Mr. Khalid Malik Awan had been continued, he would have been eliminated being lowest in the count at subsequent count or the next to it. Such elimination would have left the province of Balochistan unrepresented. He being left as the only candidate and the count having proceeded upto 13th count in accordance with law on the subject, the declaration of Mr. Khalid Malik Awan at that stage was on account of sheer necessity of the situation. He could not be eliminated if the count had proceeded further, even though the rules applicable required his elimination. In such a situation there was no option left for the Counting officer but to declare him elected and proceed with the distribution of the preferences on the ballots, according to the law. Issue No‑5:

12. Rule 24 provides that the voting shall be by secret ballot. The definition clause (e) reads as hereunder:‑‑ "`first preference' means the figure `1' set opposite the name of a candidate; "second preference" means the figure' 2 `set opposite the name of a candidate; "third preference" means the figure' 3 `set opposite‑the name of a candidate and so on;"

13. It is contended on the basis of these provisions that where the preferences have been marked in English numerals or Sindhi numerals or other additional writing has been made like a circle or a square or overwriting to emphasize the choice or preference then the secrecy of the ballot has been ex facie violated and on the principles laid down by the Court in Mukhtar Hussain Shah v. Wasim Sajjad (PLD 1986 S.C. 178) the ballot papers suffering from such defects were liable to be rejected.

14. It is correct that a large number of ballot papers have been found to suffer from the following defects:‑ (1) absence of the signatures of the Presiding Officer on the reverse, or of the seal; (2) Marking of preferences in language other than Urdu numerals; (3) Additional writing like a circle or a square or overwriting over the preferences in order to emphasize it.

15. Except for these objective defects, there is no allegation that these acts of omission and commission were the result of a collusion or in breach of secrecy of the ballot papers or otherwise induced or procured or arranged.

16. In the reported case so heavily relied upon by the Objector/petitioner, it was question of a constitutional mandate contained in Article 226 of the Constitution of the Islamic Republic of Pakistan, 1973 which enjoined that elections under the Constitution shall be by secret ballot. Besides, the elections related to a highly sensitive, political institution i.e., the Senate. Considering that "bribery and intimidation" are rampant in such political elections, a stricter view was taken. I find that the elections in dispute are not concerning a political institution but a purely professional body of highly educated trained and disciplined personnel. There is no allegation or suggestion even that these departures from the rule of marking ballot were purposive, or with a design or object to violate the secrecy of the ballot. It was merely a matter of habit of writing of numerals which prompted some of the voters to mark the ballot papers in numerals other than Urdu, to emphasize the choice by putting extra marks on them. In the circumstances and in the absence of any suggestion or direct evidence of collusion such mistakes in marking the ballot papers in an election of body like Pakistan Bar Council would not invalidate election itself I or the ballot papers.

17. In case the official seal is present on the ballot paper or it has the signature but not the seal, the ballot paper has to be treated as valid in view of language of the Rule. Issue No. 6..

18. The petitioner has made a grievance of the non‑compliance with the substantive provisions of section 11 of the Act inasmuch as, according to him, the elections were not held on the basis of single transferable vote meant for proportionate representation, on account of the fact that the number of candidates to be elected was provincially allocated while the franchise was kept on all Pakistan basis. The then Attorney‑General who conducted the elections was directly questioned on this subject and his reply was as hereunder:‑ "According to me a correct interpretation of section 11 of the Legal Practitioners and Bar Councils Act and the Rules is to count the votes countrywise and not on the basis of Provincial Bar Councils. This has been also the practice at the past elections of the Bar Council. I formed this impression because the word "each" has not been used before `the Provincial Bar Councils'." Section 11(1) of the Act reads as hereunder:‑ "The Pakistan Bar Council shall consist of the Attorney‑General for Pakistan ex officio and twenty members, who shall be elected on the basis of a single transferable vote by the members of the Provincial Bar councils as hereinafter specified:‑‑ Baluchistan 1 The North‑West Frontier Province 2 The Punjab 11 Sindh 6."

19. The omission of the word "respective" or "each" immediately before "the provincial Bar councils as hereinafter specified" clearly gives the impression that the voters were not to be divided and grouped into provinces corresponding to the seats allocated for each Province. This happened to be the consistent practice of the past. Such a hybrid system in fact accomplishes an integrated system of elections on all Pakistan basis and at the same time ensuring due and effective representation from each Province. The language of Article 59 (1) (a) of the Constitution where the word "each" has been used would sustain this view and also the past practice.

20. The petitioner has taken great pains to elaborate the concept of single transferable vote and to show how it conflicts with this interpretation or such a practice because earlier and invariably the single transferable votes have come to be linked with proportionate representation. This all may be correct. All the same a provision of law has to be interpreted and implemented on its own words. We find mention of single transferable vote without express mention of proportionate representation and at the same time express provision making provincial reservations for an all Pakistan franchise. In order to lend consistency and to make the provision of the law workable and practicable, the practice so far followed and the interpretation placed would appear to be in accord with the law on the subject. Issue No. 7.

21. This issue does not arise in view of the finding that the elections were properly conducted and concluded. ADDITIONAL ISSUE:

22. Mr. Nasim Haider had got the vacancy of one of the members of Sindh Bar Council having been elected to the Pakistan Bar Council. If these elections fail, he will lose his seat as the member of the Pakistan Bar Council and will go back to his Provincial Bar Council. This would have been the consequence. There being no direct attack to the election of Mr. Nasim Haider, his or Sindh Bar Council's presence would not be necessary.

23. It appears that in the Objection Petition a number of other objections were taken up but all these were not pressed at the time of framing of the issues and the proceedings that followed thereafter. One objection, however, is a purely legal one and notwithstanding the failure to press it, it has to be taken note of. It is the last one recorded in Para 1 above to the effect that the Attorney‑General of Pakistan who was the Returning Officer of the Election of the Pakistan Bar Council ex officio, was not qualified to be the Attorney General of Pakistan as he suffered a disqualification in the matter of age for appointment to that post.

24. The reply of the Attorney‑General is on record who has relied on the decision of the Court in Malik Hamid Sarfaraz v. Federation of Pakistan andanother (PLD 1979 SC 991) and G.D. Karkare v. T.L. Shevde and others (AIR 1952 Nagpur 330). Apart from these decisions, there are two other principles well established in law which preclude the examination and determination of this question in these proceedings. The first is the principle of de facto appointment. The second is the principle of not allowing such a question to be raised collaterally. In support of these two propositions, reference can be made and reliance placed on Lt: Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 S.C. 98) and a number of other decisions e.g. Abrar Hassan v. Government of Pakistan and another (PLD 1976 S.C. 315 at 333), Gokaraju Rangaraju v. State of Andhra Pradesh (1981 Criminal Law Journal 876 (Supreme Court‑India)] and In re James (an insolvent) (Attorney General intervening) (1977) 2 Weekly Law Reports 1).

25. RELIEF: In view of the findings recorded, the Objection Petition against the election of the respondents on various grounds considered and examined fails and is hereby dismissed. No order is made as to costs. AA./7/E. Trib. Petition dismissed.