P L D 1964 Dacca 460 (PLP)

and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an ejection or referendum shall not be called in question except in accordance with such a law."

12. We have no concern in this matter with clause (2) of this Article which relates to the election of the President. Clause (1) [of Article 171 of the Constitution (1962)], clearly permits making of a law relating to `disputes arising in connection with the counting of votes at an election'. The words "Disputes arising in connection with" are indeed significant and wide enough to include all disputes relating to counting. Article 229 (8) of the Constitution enables the President to make law relating to any election, as under this Constitution, is permitted. The permission spoken of is found in the said Article 171 and having regard to its wide import, the provision for appeal as has been made in the said Article 3 (2) of the said Order No. 13 cannot be held to be ultra vires of the Constitution.

13. Next point urged by the learned Advocate for the petitioner is that the Election Commission is empowered merely to recount the votes found valid and cannot go into the question whether a particular vote is valid or not.

14. We may now refer to Article 5 (3) (b) of the said Order No. 13 of 1962 which reads as follows :‑ (3) Where an appeal is not dismissed, the Commission may‑ (a) .. (b) "if the appeal relates to any proceedings under Article 37 of the Order, determine the result of the election on the count of valid votes as corrected, and make such consequential order as may be necessary."

15. A bare reading of the Article 37 of the Order No. 4 makes it clear that, broadly speaking, it provides for counting the votes by the Returning Officer in favour of each of the candidates and it also makes specific provision for a ballot paper to be void in certain circumstances and it requires that a Returning Officer must reject a ballot paper when it is found by him to be void in accordance with the provisions of Law.

16. When Article 5 (3) (b) speaks of appeal in regard to proceedings under Article 37, it provides that the steps taken by the Returning Officer under the said Article 37, are subject to an appeal to the Election Commission. There may, therefore, be an appeal against any of the aforesaid acts of the Returning Officer, one of them being rejection of ballot papers. In hearing appeal, Election Commission may interfere with any of the decisions of the Returning Officer under Article 37 of the Order No.

4. We are, therefore, of opinion that the word "counting" also involves deciding the question of validity of the votes. The power enabling Election Commission to count the votes must obviously mean that it is to valid votes. The learned Deputy Attorney‑General submits that words `on the count of valid votes as corrected' occurring in the said Article 5 (3) (b) indicate that the Election Commissioner has the power to test the correctness of the decision relating to validity of votes.

17. It appears to us that the words "as corrected" lend support to the contention that the Election Commission may correct decisions of the Returning Officer regarding the validity or otherwise of votes and then count according to the correction effected by it in this behalf. The Commission is to separate thus valid votes from void ones and then to count. We are, therefore, satisfied that the Election Commission is to consider the validity of a ballot paper challenged before the Returning Officer when disposing of an appeal.

18. Mr. Chowdhury submits that two votes counted by the Commission in favour of the respondent No. 2 are void and it wrongly found his total number of votes as 48.

19. Mr. Chowdhury's contention is that the ballot paper which has not been marked at the appropriate place is to be rejected and cannot be counted in favour of the respondent No. 2 as has been done in this case and Mr. Chowdhury relies on Rule 5 (a) of the National and Provincial Assemblies (First Elections) Rules, 1962 (hereinafter called `the Rules').

20. The Commission is permitted to make necessary rules under Article 85 of Order No. 4 of 1962, for carrying out the purposes of the said Order and in exercise of the powers conferred by the said Article, Election Commission framed the aforesaid Rules of which Rule 5 (a) as amended is as follows :‑ "

5. Manner of marking ballot papers. (a) The mark to be put under Article 32 (3) (b) in the appropriate place provided for the purpose in the ballot paper shall be one cross mark (X) in any form and no other mark".

21. It may be noticed, as has been contended by Mr. Nasiruddin who appears for the respondent No. 2, that the Rule 5 (a) provides for the manner of marking ballot paper. This rule merely says that the mark which is prescribed by it is to be put at the place provided for the purpose. The provision for marking is to be found in Article 32 (3) (b) of the Order No. 4 and this rule refers to the same which is as follows "(3) The elector on receiving a ballot paper shall, (a) . (b) secretly put his mark on the ballot paper against the name and symbol of the contesting candidate for whom he wishes to vote." This Article, therefore. provides that the ballot paper should be marked against the name of the candidate is whose favour the vote is to be cast. This mandatory provision, Mr. Nasiruddin appearing for the respondent No. 2 rightly contends, has been complied with. The place of marking has been fixed in the ballot paper by the Election Commission acting under Article 27 of the Order No.

4. Failure to put the mark a; such a place cannot be said to be. violation of a mandatory‑ provision. The requirement of law in regard to the place itself was that it should be marked against the name of the candidate. In this case we find it has been so marked and as such there has been compliance with the provisions of Article 32 (3) (b) ; fixation of place was for the guidance of the voter. Place fixed, it is true, was to the right of the name of the candidate but mark has been put to the left. It has nevertheless been against the name r of the candidate. We also agree with the finding of the appellate authority, the Election Commission, that the ballot paper in question has been marked at a place which clearly shows that the intention of the voter was to cast his vote in favour of the respondent No. 2.

22. In this connection a reference may be made to the case of Morris v. Bevel ((1897) 1 Q B D 449), in which intention of the voter as could be gathered from the ballot paper was considered to be the pre‑dominating factor and in this connection Hawkins, J. observed as follows "In order to determine the result of an election, by ballot, the Returning Officer has no duty cast upon him to inquire into or determine the real intentions of the voters whose ballot -papers he is required to count. He has no machinery at his command for doing so, and he certainly could not question the voter. The ballot‑paper alone is all he has to do with. If on the face it is marked in the manner required by the Ballot Act and no ambiguity is apparent upon it, we consider it to be his duty to count the votes as they appear upon it, and it is beyond his duty or power to alter the effect of a mark or a figure upon it, oven though from circumstances outside the voting paper he were sure in his own mind that the voter intended to vote differently."

23. We are of opinion that in view of the fact that there is a compliance of mandate contained in the said Article 32 (3) (b) of the Order No. 4 although not in conformity with the form IL which was of directory nature, this vote must be counted, in[ accordance with the clear intention of the voter, in favour of the respondent No. 2.

24. Next contention of Mr. Chowdhury is that the ballot paper in which the mark, strictly speaking, is not a cross mark should not have been counted in favour of the respondent No.

2. Rule 5 (a) which governs this question has already been quoted in the judgment. By a notification published in the Gazette of Pakistan (Extraordinary) on the 11th April 1962, the words "in any form" were inserted after the words "cross mark" in the said rule (5) (a). This amendment indicates that in the matter of marking the ballot paper with a cross mark rigidity is not intended. In this respect the appellate authority has reached a finding that it cannot be said that the mark is not a cross mark. In dealing with this question, the appellate authority observed as follows "The respondent No. 1 points out one ballot paper of the appellant and contends that the mark put against the name and symbol of the appellant is not a cross mark. The disputed mark in the said ballot paper is, no doubt, a cross mark, the lines having intersected one another. But it appears that one of the intersecting lines is split up into two at one end. This does not go to show that the mark is not a cross‑mark. Rule 5 provides that the prescribed mark shall be one cross‑mark in any form. This is flexible enough, and I do not see any reason to reject the said ballot paper on the said ground."

25. We do not find any reason to disagree with the finding arrived at by the appellate authority and this vote must also be counted in favour of the respondent No. 2 inasmuch as the voter complied with the mandatory provision of the said rule 5 (a) relating to the manner of voting and marked accordingly. If the ballot paper clearly indicates the intention of the voter, it should be held that there has been sufficient compliance with the rule. We are, therefore, of opinion that this vote should also be counted in favour of the respondent No. 2 who thus secured 48 votes in total.

26. Lastly, the rejection of one ballot paper which was counted in favour of the petitioner on the ground of its having been marked with ink came under heavy fire from Mr. Chowdhury who claims that no objection having been raised at any stage, nor there being sufficient relevant evidence necessary for deter mination of this question, the decision of the appellate authority was illegal.

27. This ballot paper was rejected by the Election Commission on the ground that it was marked with ink instead of the copying pencil. In rejecting this vote, the appellate authority relied on rule 5 (b) of the said Rules as quoted below :‑ "The election shall mark his ballot paper with a copying pencil or pen to be provided by the presiding officer at the polling station, and not with any other pencil or marking aid."

28. It is a matter of evidence whether copying pencil on pen was provided as is required in this rule or both were provided. This being a mixed question of fact and law, the point should have been raised before the Returning Officer. Moreover, this objection was not taken in that appeal filed b), the respondent No. 2 before the Election Commission, and the petitioner, who was respondent before the Commission had no opportunity of producing evidence in this behalf. It is strenuously contended that the petitioner was, in these circumstances, taken a back by surprise to this respect. It is, however, risky r to act on a mere inference based on the fact that other voters in the centre used pencil and also on a telegraph. This point not having been raised before the Returning Officer as well as in the appeal, the appellate authority, it is rightly urged, could not go into this question. That being the position, this vote is to be counted in favour of the petitioner and number of his total votes will, therefore, be forty‑six as against forty‑eight votes obtained by the respondent No‑

2. In these circumstance no interference with the order of the Election Commission is called for and Rule is accordingly discharged without any order as to costs. SATTAR, J.‑I agree. S, Q./K. B. A. Rule discharged.