1986 PLP 2052 (CLC)

4. The admitted facts are that in Polling Station No. 19, Lalupur (PP. 135 Gujranwala-VII), votes cast were 1165. These did not bear official marks. Initial of Presiding Officer were there. Learned counsel for the petitioner vehemently contended that the provisions afore-quoted are mandatory providing that the ballot papers shall not be counted if they bore "no Official mark" and since the penalty is inter-woven, the non-compliance of the said statutory provisions would render the election void. He referred to decisions where the nature of irregularity has been dealt with, like Mian Zia-ud-Din v. Punjab Local Government Election Tribunal Lahore and 2 others 1984 C L C 1544 (DB), Mian Zia-ud-Din v. Punjab Local Government and others 1985 S C M R 365 and an unreported decision in I . C . A . No. 195 of 1980 decided on 17-10 1980 and 1983 PSC 1435.

5. Learned counsel for the contesting respondent No. 1 contended that for the first time the statutory provision has been made for exclusion of the ballot paper which bear no official mark and signatures of the Presiding Officer. Earlier it was only Official mark or initial of the Presiding Officer. No departure was intended by the new provision. They referred to a decision of a learned Member, Election Commission reported in Mian Jamal Shah v. Khan Nasrullah Khan Khattak P L D 1965 Election Commission 89 wherein the ballot papers contained the official mark but not the initials of the Presiding Officer and those were held to be not liable to rejection in view of the provision of section 38 (2)(a) of National and Provincial Assemblies (Elections) Act (VII of 1964)

6. The contention may first be attended to as it is based on the decision, of a learned Judge and Member of the Election Commission. Section 38(2)(a) of the aforesaid Act VII of 1964 provided that "the Returning Officer shall reject a ballot paper "if it bears no official mark or initials of the Presiding Officer". The arguments that both "official mark" and "initials" must not be there before the ballot papers could be rejected, was overruled. But that was done not only for the reason that the word "or" was used in between the "official mark" and "initials of the Presiding Officer" but also for the reason that it was held that the official mark on the ballot papers would avoid smuggling of any unauthorised ballot paper. Not only the reasoning forming the basis of the judgment that the ballot paper was affixed with the official seal, is not available in the case in hand but the decision had proceeded on the language of the Statute viz section 32 (2)(a) of Act (VII of 1964) which had provided that "the Returning Officer shall reject a ballot paper "if it bears no official mark or initials of the Presiding Officer". The use of the word "or" in the alternative made the point clear that if either of the thing was there, the ballot paper was not liable to be rejected. In the case in hand, the Legislature has quite clearly changed the wording of the Statute by providing that "The Presiding Officer shall.-- (c) count, in such manner as may be prescribed, the votes caste in favour of such contesting candidate excluding from the count the ballot papers which bear.- (i) no official mark and signature of the Presiding Officer."' The language is categorical and clear. There is no ambiguity. The intention of the Legislature is plain too that it is using word "and" in between 'no official mark' and, signature of the Presiding Officer', meaning thereby that if both the 'official mark and signature of the Presiding Officer' were not there, the ballot paper shall not be counted. The purpose may be to mark it doubly sure that no ballot paper without official mark and signature of the Presiding Officer shall be counted. Therefore, it is quite clear that the disputed ballot papers could not be counted. The fact that the ballot papers were not affixed with the official mark because Presiding Officer was not supplied the stamp may absolve him but that would not make countable what the law declares uncountable.

7. Next the question will be that not officially marked ballot papers being not countable under the law, what will be the effect thereof ? Obviously the voters who had cast their votes will lose the benefit of their right of franchise. Section 70 of the representation of the Peoples Act, 1976 provides as follows: "The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reasons of:- (a) the failure of any person to comply with the provisions of the Act or the rules So there being no doubt about the failure of the Presiding Officer, for whatever reason that may be, to comply with the relevant provisions of the Act and the rules, the question arises whether the elections as a whole be declared as void on satisfaction that the result of the election has been materially affected. There is no doubt that the result of the election has been materially affected because as many as 1,165 voters have lost weight of their votes. The contention of the learned counsel for the successful candidate respondent No. 1 that in the relevant Polling Station the petitioner got 450 votes and the respondent 647 and even if lead of 197 of the respondent is ignored, he will still be successful as the overall difference between the petitioner and respondent No. 1 was

354. The respondent will still lead by 157 vote (354-197). The argument is attractive. But it takes into account the petitioner and the respondent No. 1 it ignores the votes altogether. It is they who had lost the efficacy of their votes. Therefore, it is not enough that the result of the election vis-a-vis the petitioner and the respondent No. 1 is not materially affected. Result has to be seen in the context of the entire election process in which the voters have the dominant position and the highest stakes. The next question that arises is that section 70 of the aforesaid Act save that "The Tribunal shall declare the election 'as a whole to be void' if it is satisfied etc. From it would follow that 'whole of the election' need be declared as void. Is that necessary and essential? The violation of law had taken place in one Polling Station i.e. No.

19. Can't repelling be held in that Station in accordance with law? Although a Court or Tribunal empowered to decree or decide the maximum has always the power to grant less and therefore, when this Tribunal is empowered to declare the election 'as a whole' to be void it may declare part of it as such, yet even if the letter of law were to have the way, the election as a whole may be taken as declared void for the purposes of repel in Polling Station No. 19 of the Constituency No. PP-135 Gujranwala VII in accordance with law. It is ordered accordingly. The declaration is, it is clarified, for the aforesaid limited purpose. The contention of the learned counsel for the petitioner that he be declared as elected is untenable in the circumstances. The recriminatory petition of the respondent will automatically fail. The petition is accordingly disposed of. Since the question involved was interpretation of law, the parties are left to bear their own costs. A . A . Election set aside.