2004 PLP 1899 (SCMR)

ABDUL HAMEED DOGAR, J.

Petitioners seek leave to appeal against the judgment, dated 28-11-2002 passed by a learned Division Bench of the High Court of Balochistan, Quetta, whereby C.P. No.472 of 2002 filed by the petitioners was dismissed and the order of Election Tribunal was upheld.

2. The relevant facts of the instant petition are that the petitioners filed joint nomination papers for the seats of Zila Nazim and Naib Nazim of District Council, Killa Abdullah. Respondents Abdul Khaliq and Aminullah also filed joint nomination papers for the said seats and their election took place on 2nd August, 2001. A consolidated statement of the result was prepared whereby 423 votes were shown to have been cast. Out of which 10 were as rejected votes whereas 413 were declared valid. The petitioners secured 213 votes whereas respondents Nos. 1 and 2 obtained 200 votes, thus the petitioners having obtained majority of votes were declared successful. The respondents Nos. 1 and 2 requested to respondent No.3 the Returning Officer to recount the votes which request was allowed and accordingly the votes were recounted, however, the result remained the same.

3. Feeling aggrieved, the respondents filed election petition under rule 71 of the Balochistan Local Government Elections Rules, 2000 (hereinafter referred to as the Rules) on the plea that the 5 votes counted in favour of the petitioners were in fact invalid as the stamp was not affixed at the place showing the symbol of the petitioners rather it was affixed on their names and if those 5 votes were excluded from the count, the petitioners would lose their seats.

4. The petitioners seriously repudiated the said contentions and raised certain legal objections. According to them, the petition being premature was not maintainable as it did not disclose any cause of action and was filed prior to the publication of the result in the official Gazette. However, the said objections were overruled by the learned Tribunal and vide order, dated 4-5-2002 declared the petition being maintainable. These orders were challenged in Constitution Petition No. 472 of 2002 by the petitioners before the learned High Court of Balochistan, Quetta. which was disposed of on 29-7-2002 with the direction to the Election Tribunal to dispose of the matter on preliminary objection as well as on merits within a period of two months. Thereafter, respondents Nos. 1 and 2 moved application for recounting of the votes before the Tribunal and claimed that in case if those 5 invalid votes were excluded from the count, the condition of securing 50% of the total votes by the petitioners would not be fulfilled and as such would be deseated. The learned Tribunal vide order, dated 24-8-2002 allowed the said application and ordered for recounting of those alleged 5 votes in presence of the parties and their counsel.

5. It was this order which was challenged in the above mentioned Constitution petition which culminated in the impugned order.

6. We have heard Syed Iftikhar Hussain Gillani, Senior learned counsel for the petitioners and Haji Shakeel Ahmed learned counsel for the respondents and have gone through the record and the proceedings of the case in minute particulars.

7. We are not persuaded to agree with the contentions of the learned counsel for the respondents mainly for the reason that the question agitated in this petition was already dealt with by the Returning Officer at the initial stage on the claim of the respondents and the validity of the above mentioned said five votes were determined and were found valid and were counted in favour of the petitioners. According to the consolidated statement of the results 423 votes were cast, out of which 412 votes were declared valid and 10 votes were rejected. Petitioners secured 213 votes while respondents Nos. 1 and 2 obtained 200 votes, thus the petitioners were declared successful. The question of the validity or otherwise of the ballot papers can only be-determined by ascertaining the intention of the voters and in that respect the manner of affixing mark/stamp is material. If the mark or stamp is affixed upon the name of the candidate instead of his symbol, there cannot be any hesitation to maintain that the voter had in fact shown his consent to cast vote in his favour. As regards the five votes in question, the stamp has been affixed over the names of the petitioners instead of their symbol in the same column which indicated that the voters had exercised their right of votes, in their favour. This was the main reason which weighed with the Returning Officer to validly count their votes in favour of the petitioners. This aspect of the matter gets support from the dictum laid down by this Court in the case of Dr. Sher Afgan v. Aamar Hayat Khan and .2 others 1987 SCMR 1987. Even if those five votes are excluded from the count, the petitioners will still be left with the majority of votes.

8. The contention that according to subsections (2) and (3) of section 16 of Balochistan Local Government Election (Third Amendment) Ordinance, 2001, the petitioners were required to secure more than 50% of total votes of the number of members of the Union Councils which they have failed to secure, as such were not to be notified as returned candidates, is without substance mainly for the reasons that the provisions of subsections (2) and (3) are quite distinct in nature and independent of each other. In order to appreciate the real import of these two provisions, it would be advantageous to reproduce the same:

"(2) The Nazim and the Naib Zila Nazim of a District Government or a Town Government securing as joint candidates more than 50% of votes shall be declared elected. (3) In a case of Zila Nazim and Naib Nazim or a Town Nazim and Naib Town Nazim or a Tehsil Nazim and a Naib Tehsil Nazim do not secure more than 50% of the total votes of the members of the Union Councils in the respective District, or Tehsil/Town, there shall be held a fresh election, within one week of the first election, in which the joint candidates for such offices securing the highest and the second highest number of votes shall be contestants, and the joint candidates securing the' highest number of votes in the fresh election shall be declared elected. "

9. According to subsection (2) of section 16 of the Ordinance, it is clear that a Nazim and Naib Nazim of a District Government or Town Government or a Tehsil Government securing as joint candidates more than 50% of votes shall be declared elected. It does not speak of the 50% of the total numbers of the votes. Whereas as per subsection (3) a specific condition has been imposed whereby Zila Nazim and Naib Zila Nazim or a Town Nazim and Naib Town Nazim or a Tehsil Nazim and a Naib Tehsil Nazim shall have to secure more than 50% of the total votes of the number of members of Union Councils in the respective constituency. In case of failure, fresh election shall be held within one week of the election in which joint candidates of such office securing the highest and second highest numbers of votes shall be contestants, and the joint candidates securing the highest number of votes shall be declared elected.

10. On the plain reading of the above mentioned two provisions of law, it clearly transpires that under subsection (2) the contest is singular in nature and no condition of securing more than 50% of total number of votes is specified. Whereas in case of subsection (3) the contest is multiple in nature and the condition of securing more than 50% of total votes of the number of members of the Union Councils in their respective constituencies is maintained.

11. Irrespective of the above legal aspect of the matter, respondent No.1 Abdul Khaliq tendered his resignation on 21-8-2002 from the seat of Naib Nazim of Union Council Sirki Talri, Tehsil Chaman District Qilla Abdullah on the ground that he intended to participate in the contest C in the ensuing general elections as Member of Provincial Assembly. But this point being vital in nature was not adverted to either by the learned Tribunal or by the learned High Court in their respective orders instead the order of recounting was made. In such situation, the election petition itself becomes infructuous.

12. For the foregoing reasons, we do not find any justification to maintain the impugned order which is accordingly set aside. Resultantly, the petition, is converted into appeal and allowed with no order as to costs. M.H./S-32/S Appeal allowed.