P L D 1965 (W (PLP)

FAIZULLAH KHAN, J.‑In this writ petition Sayed Ibrar Hussain Shah petitioner prays for the following prayers (1) That the petitioner who has been successfully returned to the Electoral College of Pakistan from Unit No. 481 above noted has a constitutional right to be treated as a member of Electoral College by the respondents 1 to 3, and they are under a legal obligation to gazette the petitioner as such, therefore an order in the nature of a writ of mandmus or any other appropriate order, writ or direction may be issued to the respondents 1 to 3 to perform their legal obligations of gazetting petitioner's name. (2) That the respondents 1 to 3 be perpetually restrained to hold a fresh election to the Unit No. 481 above noted, which election they are going to hold on 18th November 1964 per Annexure A of this petition, because this fresh election is not justified by any legal provisions contained in any law for the time being in force.

2. The admitted facts giving rise to this writ petition briefly are that Sayed Ibrar Hussain Shah petitioner and Maulvi Fazal Din respondent No. 4 were duly nominated candidates in the recent election of the Basic Democrats for Unit No. 481, Makhad, Tehsil Pindi Gheb, District Campbellpur. The petitioner was a nominee of the United Front while respondent No. 4 was the nominee of the Convention Muslim League. The election in this Unit was originally to be held on 7th November 1964, but later on the date was advanced to 1st November 1964. At the close of the Poll when Raja Nisar Ahmad Khan, the Presiding Officer, went inside the room to take out the boxes, he found that somebody had done mischief to the box of Ibrar Hussain Shah petitioner by throwing acid into it. When the mischief became known, tension was created and the supporters of both the candidates started raising slogans. The Presiding Officer apprehending breach of peace thought it advisable that the counting should be done in the presence of the Returning Officer Mr. Abdur Rahim Khan, S. D. M., respondent No.

3. The Presiding Officer, therefore, carried the boxes to Pindi Gheb and in the presence of the Returning Officer, the contesting candidates, and their polling agents, both the boxes were opened. The box belonging to Sayed Ibrar Hussain Shah petitioner was opened first. It contained in all 200 ballot papers out of which 74 though drenched with acid, were found to have the official seals and the signature of the Presiding Officer intact. The remaining 126 ballot papers were dry. On opening the box of Maulvi Fazal Din respondent No. 4, it was found to contain 188 votes. The Presiding Officer filled up Appendix V under the heading "Declaration of Result", wherein he recorded against the name of Ibrar Hussain Shah petitioner to have secured 200 valid votes and Fazal Din respondent 4 having secured 188 valid votes. On the reverse of the Appendix the Presiding Officer recorded a note which may be conveniently reproduced at this point "The sealed polling ballot boxes belonging to Syed Ibrar Hussain and Maulvi Fazal Din the contesting candidates were opened in the presence of Khan Abdur Rahim Khan, P. C. S., S. D. M., Pindi Gheb at 21‑05 hours at his residence in the presence of Syed Ibrar Hussain the Contesting candidate and his polling agent Syed Badshah and Maulvi Fazal Din contesting candidate and his polling agent Mian Nasrullah. The ballot box belonging to Syed Ibrar Hussain was opened first. 74 ballot papers were found wet as a result of acid thrown in the box. The other 126 ballot papers were found safe. The initials of the Presiding Officer and his seal were found quite visible and legible on all the ballot papers whether soaked with acid or not. After counting the dry 126 ballot papers were placed in a separate envelope and the other 74 soaked were placed in a separate cover. Thereafter the sealed ballot box belonging to Maulvi Fazal Din the contesting candidate was opened and ballots were counted which amounted to 188."

3. It will also be convenient at this stage to reproduce sections 45 and 46 of the Electoral College Act, 1964, on which the decision of the writ petition turns. Section 45 runs thus: "(45) Procedure on the close of poll.‑(1) Immediately after the close of the poll, that is, as soon as the last of such persons, if any, as are present and waiting to vote as mentioned in section 44, has voted, the Presiding Officer shall, in the presence of such of the contesting candidates and polling agents as may be present, open the ballot box of each contesting candidate in the alphabetical order of the names of the candidates and count the ballot papers contained in the ballot box so opened excluding the invalid ballot papers, that is to say, the ballot papers‑ (a) which do not bear the official mark, or (b) on which anything is marked or written by the voter by which he can be identified. (2) Where after the count under subsection (1) it is found that there is equality of votes between two or more contesting candidates and the addition of one vote for one such candidate would entitle him to be declared elected, the Presiding Officer shall forthwith draw a lot in respect of such candidates, and the candidate on whom the lot falls shall be deemed to have received the highest number of votes entitling him to be declared elected." Section 46 runs as follows "

46. Declaration of result.‑(1) The Presiding Officer shall, after obtaining the result of the count or of the drawal of the lot under section 45, declare the contesting candidate who has, or is‑deemed to have, received the highest number of votes to be elected to the Electoral College and shall submit a return of the election to the Returning Officer. (2) The Returning Officer shall publish in the official Gazette the name of the returned candidate." In paraphrase, the essential requirements of section (45) are (1) that the Presiding Officer shall open the ballot box of each contesting candidate in the alphabetical order of the names of the candidates and (2) count the ballot papers contained in the ballot box so opened excluding the invalid ballot papers, "that is to say, the ballot papers (a) which do not bear the official mark, or (b) ??.by which he can be identified." It will also be plain from reading the language of section 46 that the Presiding Officer is under legal obligation, after obtaining the result of the count to "declare the contesting candidate, who has . . . . . received the highest number of votes to be elected to the Electoral College". In other words, the filling of Appendix V and recording of highest number of valid votes by the Presiding Officer against the name of the contesting candidates tantamounts to declaration of the result. It is also abundantly clear from the language of subsection (2) of section 46 that on the receipt of the declaration of the result embodied in Appendix V referred to above, the Returning Officer is under legal obligation to publish in the official Gazette the name of the successful candidate, and no discretion whatsoever is left with him to withhold the publication of the result in the official Gazette.

4. Mr. Abdur Rahim, Returning Officer, in whose presence the counting was done and various pro forma, as required by the Electoral College Rules, had been filled up by the Presiding Officer instead of taking steps to publish in the official Gazette the name of the petitioner as duly returned candidate, on 3‑11‑64 addressed to the Deputy Commissioner (respondent No. 2) memo. No. 528 st. Paras. 3 to 7 of the said memo. may be better reproduced, which run thus :‑ " (3) The Presiding Officer also opened the ballot box belonging to Fazal Din in the presence of the two contesting candidates, their agents and the Returning Officer and the votes polled were counted which amounted to 188 valid votes. These were quite clear and were not soaked or destroyed by anything. Thereafter the Presiding Officer gave the declaration of the result of Electoral Unit No. 481 and this had been conveyed to the Deputy Commissioner, Campbellpur. (4) The Presiding Officer also made comprehensive report on the back of the Declaration of result in Form Appendix V. (5) Fazal Din, the contesting candidate from this Electoral Unit, submitted an application dated 2‑11‑64 to the Deputy Commissioner at Pindigheb which was further marked on to the Returning Officer for a report. (6) The requisite report is now submitted to the Deputy .? Commissioner. (7) The counting was done in the presence of the contesting candidates, their Polling Agents, Presiding Officer and the Returning Officer to the satisfaction of each contesting candidate and their Polling Agents. Therefore, I find that there is no necessity of further counting those votes polled by each candidate on 1‑11‑

64. It has been clearly marked that there were 74 ballot papers which were soaked with acid."

5. On 8th November 1964, the Returning Officer addressed memo. No. 544 st. to the Deputy Commissioner (respondent No. 2). Para. 3 of the said memo. reads thus :‑ "The Returning Officer had declared the result and declared Ibrar Hussain Shah as a successful candidate. It was requested that necessary instructions may kindly be issued for the publication of the result in the official Gazette by the Returning Officer. Any information which is further required may kindly be pointed out. The other information regarding the polls can be had from Raja Nisar Ahmad, Assistant Superintendent, Jail, Campbellpur. All the details are with him as he was the Presiding Officer at the moment." The Deputy Commissioner (respondent No. 2) on 3rd November 1964, vide his Memo. No. 8586/LFC/G, (Appendix A) addressed a letter to the Chairman, Provincial Election Authority, West Pakistan, Lahore. The letter reads as follows : ‑‑‑ "The Polling of Electoral Unit No. 481 for village Makhad in Pindigheb Tehsil was held on the 1st November 1964. Ibrar Hussain and Fazal Din candidates contested the election. At the close of polling hours it was noticed by the Presiding Officer that acid was poured in the Ballot Boxes. The Presiding Officer opened the ballot boxes in the presence of the Returning Officer as well as both of the candidates and their agents. The box of Fazal Din candidate was opened, it contained 188 valid votes. These ballot papers were found to be intact. But in the case of Ibrar Hussain, out of 200 ballot papers 126 were intact and 74 were found mis‑matched. It is requested that a decision may kindly be communicated whether the 74 ballot papers soaked with acid may be counted as valid votes or a fresh election be held in this electoral unit." It is important to observe here that the Deputy Commissioner has given factually incorrect version in the letter in which he stated that it was noticed by the Presiding Officer that "acid was poured in the ballot boxes". As already indicated, acid had been thrown into the ballot box of the petitioner alone. It is also necessary to point out that the Deputy Commissioner while referring to the ballot papers recovered from the box of Fazal Din respondent stated that "it contained 188 valid votes. These ballot papers were found to be intact." He, however, while referring to the case of Ibrar Hussain stated "out of 200 ballot papers, 126 were intact and 74 were found mismatched". (The underlined is ours). The word "mismatched", in our view, is extremely misleading, in that it would give a wrong impression that the 74 ballot papers were not valid votes, in that either it did not bear the official seal or the signature of the Presiding Officer or both. Be that a$ it is, it is not possible for us on these inaccuracies to hold that the Deputy Commissioner had acted mala fide notwithstanding the fact that there was some litigation between him and the petitioner. The Chairman, Provincial Election Authority, West Pakistan, Lahore, by their telegram Appendix `B' conveyed their approval that fresh poll be held. Before the fresh election the petitioner filed the present writ petition, seeking the mandamus or any other order as indicated above.

6. The respondents, other than the Provincial Election Authority, West Pakistan, Lahore, filed written statements. Fazal Din respondent No. 4 the contesting candidate and the Deputy Commissioner, Campbellpur (respondent No. 2) contested the writ petition, mainly on the ground that the writ jurisdiction could not be invoked in view of the fact that the adequate relief by way of election petition was available. It is important to observe here that none of the respondents cared to controvert the categorical averment in the writ petition that the petitioner had secured a total number of 200 valid votes of which the 74 acid? soaked votes also bore the official seal and the signature of the Presiding Officer.

7. Mr. S. M. Ayub Bokhari, learned counsel for the petitioner, argued that under section 46, subsection (1) as soon as the Presiding Officer had filled up the Appendix V and declared a particular candidate having secured highest number of votes all the important formalities of the election were over except that the Presiding Officer, as required by subsection (2) of section 46 has formally to publish in the official Gazette the name of the returned candidate and that, at any rate, there was no provision whatsoever in the Electoral College Act, 1964 or the Rules framed thereunder which provides for holding fresh election muchless when election has been completed.

8. Mr. Sher Bahadur Khan on behalf of respondents 1 to 3 opposed the writ petition mainly on the ground that the petitioner has an adequate remedy by way of filing an election petition and, therefore, this Court should decline to interfere in writ jurisdiction.

9. S. Haider Shah, Advocate on behalf of Maulvi Fazal Din respondent No. 4 faintly supported the holding of fresh election in view of section 82 of the Electoral College Act, on the ground that the said section empowered the Commissioner to review any order passed by an officer under the Electoral College Act or the Rules framed thereunder.

10. On a careful perusal of the material provisions of the Electoral College Act and after giving the arguments addressed at the Bar our careful consideration, we have formed the opinion that the petitioner had been declared returned by the Presiding Officer as soon as he filled up and signed the Appendix V, as contemplated by section 46, subsection (1) and that the remaining formality of publishing in the official Gazette the name of the petitioner as the returned candidate would not in the least distract from the petitioner being treated as a full‑fledged Basic Democrat. The language of section 46, subsection (2) is imperative and absolute and leaves no discretion whatsoever in their Returning Officer not to publish the declaration as soon as he receives the Appendix V duly filled in by the Presiding Office declaring a particular candidate to be duly elected.

11. The question which calls for decision is whether notification of the name of the returned candidate as envisaged by subsection (2) of section 46 is at all necessary to confirm the status of a Basic Democrat on a candidate who has secured the highest number of votes and declared by the Presiding Officer as duly elected under section 46 (1). We are clearly of the view that publication of the notification as contemplated by subsection (2) of section 46 is not at all necessary to regard a person dul elected. If any authority is needed in support of this view reference may be made to the decisions in Muhammad Nazir Hakim v. Bakhtiar Said Muhammad and another (P L D 1962 Lah. 421) and Manzur‑ul‑Haq v. Controlling Authority, Local Councils, Montgomery and others (P L D 1963 S C 652). In the first noted authority M. R. Kayani, C. J., negatived the suggestion that the publication of the result in the official Gazette was necessary for considering a candidate duly elected. At page 423, in para. 6 of the judgment, his Lordship observed: "We respectfully agree that an election is not complete until the entire election programme is over, but here we should state by way of qualification that the notification of the result is no part of the election programme as detailed in rule 4, sub‑rule (3) of the Basic Democracies Election Rules, 1959. An election ends with the declaration of the result, and since the Government does not fix any particular date for its notification, the date on which an election becomes complete will remain a matter of uncertainty if the notification of the result were also regarded as a part of the election." In the Supreme Court judgment B. Z. Kaikaus, J., delivering the judgment for the Supreme Court, at page 657 expressed himself thus: "The contention that as the appellant has not been gazetted as a Vice‑Chairman or a member of District Council he is not entitled to be regarded as such receives no support from the Municipal Administration Ordinance or the Basic Democracies Order. There is no provision whether with respect to the Vice‑Chairman or with respect to an official member of the District Council that there has to be a notification in the Gazette. According to section 17 of the Municipal Administration Ordinance there has to be a notification with respect to a member, but there is no reference in this section to a Vice?Chairman. In Article 26 of the Basic Democracies Order there is a provision for notification with respect to appointed members but there is no such provision with respect to official members. It has to be pointed out at the same time that the more existence of a provision for notification is a wholly insufficient basis for saying that the absence of a notification will stand in the way of the person whose office is to be notified. There are some provisions which simply cast a duty on the executive Government to notify the holder of an office and have no further effect. Section 17 of the Municipal Administration Ordinance and Article 26 of the Basic Democracies Order are provisions of this character. Unless there be something in the language of a statute which shows that the person concerned will not commence to hold an office till there is a notification in the Gazette, a provision for a notification should not be interpreted as a condition precedent to the holding of an office."

12. In view of the finding that the petitioner stands duly returned as Basic Democrat, the objection raised by the Additional Advocate‑General that the petitioner should seek his remedy by way of election petition and not by invoking the writ jurisdiction, falls to the ground, in that in such a situation it will be for respondent No. 4, the defeated candidate, to file election petition, if so advised. Section 58, subsection (2) reads: "Any candidate may make an election petition challenging the election at which he was a candidate." This subsection can be availed only by the defeated candidate and not by a person who stands duly elected. Assuming without holding that relief by way of election petition was available to the petitioner, we refuse to decline the writ jurisdiction as we are clearly of the view that by doing so we would be perpetuating an illegal order passed by the Provincial Election Authority at the instance of the Deputy Commissioner of ordering re‑election when neither the Deputy Commissioner nor the Provincial Election Authority had any authority of cancelling the declaration of the Presiding Officer in regard to the petitioner having been duly elected. In other words, the ordering of re‑election by the Provincial Election Authority is wholly without jurisdiction.

13. By our short order dated 14‑1‑1965, we had accepted the writ petition with costs, declaring the petitioner to be duly elected, and directing respondent No. 3, the Returning Officer, to publish in the official Gazette the name of the petitioner having been the returned candidate. The costs is assessed at Rs.

500. S. A. H./S. Q.