2006 PLP 1713 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

This petition has been filed under Article 185(3) of 'the Constitution of Islamic Republic of Pakistan against the judgment of Lahore High Court whereby Writ Petition No.17196 of 2005 instituted by the petitioner has been dismissed.

2. Precisely stating facts of the case are that petitioner and respondent No.5 being candidates of the office of Tehsil Nazim, Piplan secured 66 and 61 votes during polling held on 6th October, 2005 as per initial results announced by the Presiding Officer 6th October, 2005. An application dated 7th October, 2005 was submitted by respondent No.5 before the District and Sessions Judge/District Returning Officer, Mianwali for re-counting the result of Tehsil Nazim, Piplan, District Mianwali. Contents whereof are reproduced hereinbelow:-- The District Returning Officer disposed of above application on 7th October, 2005 without providing opportunity of hearing to petitioner. Relevant para. therefrom reads thus:-- "The Returning Officer is directed to look into the rejected votes of the contesting candidates and to decide their fate in accordance with law before consolidating the final result."

3. In compliance of above direction, the Returning Officer on 8th October, 2005 passed the order noticing as under:-- (a) The Presiding Officer excluded 26 ballot-papers from the count on the ground that those were not properly stamp marked by the voters. (b) The Form ECP-II has been desealed, out of which 26 ballot-papers have been taken which were excluded from the count. (c) 13 ballot-papers so taken out of the sealed envelope, show a circle impression on election symbol (Umbrella) allotted to the applicant (respondent Muhammad Feroz). (d) One out of it also bears the official mark stamp. Likewise 5 ballot-papers also find same marks on the symbol of Faqir Abdul Majeed Khan (petitioner) and 6 against symbol of another candidate namely Ghayas Khan. Two ballot-papers contained double impression on Umbrella, Boat and Eagle. On having noted above facts and relying upon the judgment in the case of Dr. Sher Afghan v. Aamar Hayat Khan and 2 others 1987 SCMR 1987, the Returning Officer held that ballot-papers' excluded from the count had mostly marks on the wrong side of the official marking aid stamp and therefore, keeping in view the dictum laid down by the apex Court, it was concluded that the Presiding Officer wrongly excluded 13 votes which should have been counted in favour of applicant (respondent No.5), raising his total valid votes to

74. Consequently, his count was changed from 61 to

74. Similarly the count of the petitioner was raised from 67 to 71 and respondent was declared returned un-officially.

4. The petitioner challenged the order of Returning Officer before Lahore High Court through a petition by invoking its constitutional jurisdiction. A learned Single Judge of High Court Sh. Abdur Rashid), admitting the petition on 12th October, 2005, passed following order:-- "As the petition has already been admitted to regular hearing and it is prima facie borne out that the learned Returning Officer acted on the directions of District Returning Officer, Mianwali in a petition for re-counting of the votes the said re-counting could apparently be only made in respect of valid votes and invalid votes could not be included in the count. Therefore, the petitioner has a prima facie case and respondent No.5 will not be administered on oath till 2-11-2005. Subsequent thereto when the petition came up for hearing it was dismissed for reasons to be recorded later, being not maintainable on 2nd November, 2005. Reasons thereof were, however, delivered on 16th November, 2005. Petitioner, in the meantime, instituted instant petition which came up for hearing on 14th November, 2005 which was postponed for 16th November, 2005. However, operation of the order of Returning Officer dated 8th October, 2005 was suspended. Subsequent thereto the reasons of the High Court's judgment were also filed. Relevant para. on merits is reproduced hereinbelow:-- "The contention that the District Returning Officer had directed the Returning Officer to re-count the invalid votes appears to be misconceived. Under Rule 36 sub-rules (3) (supra) the Returning Officer while consolidating the results is obliged to examine and decide the fate of invalid ballot-papers and he appears to have carried out his legal duty in this case. The Returning Officer in this case had not held the re-count of the valid ballot-papers in respect of any polling station on the direction of the District Returning Officer. Under Rule 36 sub-rule (6), a Returning Officer has been bound not to re-count the valid ballot-papers in respect of any polling station unless he is so directed by the Chief Election Commissioner or the District Returning Officer. Thus, a Returning Officer while consolidating the result is bound to examine and decide the fate of invalid votes but he has been debarred from re-counting the valid ballot-papers unless so directed by the District Returning Officer. In the present case the re-count of valid ballot-papers cast in favour of each candidate was not made by the Returning Officer, therefore, all the proceedings in this case had been carried out under sub-rule (3) of Rule 36 and not under sub-rule (6) of the said Rule. " The above conclusion, however, led to the dismissal of the petition being not maintainable in view of the judgment of this Court in the case of Ch.. Nazir Ahmed and others v. Chief Election Commissioner and 4 others PLD 2002 SC

184. Hence this petition for leave to appeal.

5. Learned counsel for the parties addressed arguments at length in support of their respective contentions, which gave rise to following questions:

(i) As to whether Constitution petition, instituted by the petitioner was maintainable, in view of the facts and circumstances of the case. (ii) What is the extent of the jurisdiction of the District Returning Officer in terms of Rule 36 of the Punjab Local Government Elections Rules, 2005. (iii) As to whether the Returning Officer, while consolidating the results can express opinion of excluded votes, contrary to allied provision of the Rules, if not then what would be its effect.

6. Learned counsel for the respondent emphatically stressed that the High Court had no jurisdiction to entertain a constitution petition under Article 199 of the Constitution of the Islamic Republic of Pakistan in election matters, particularly when before institution of petition, Election Tribunal has been constituted, providing adequate remedy to the aggrieved candidates to seek relief, therefore, the High Court had rightly dismissed the petition.

7. On the other hand learned counsel for the petitioner strenuously stressed that nothing is left for the Tribunal to decide in view of the finding of the Returning Officer vide order, dated 8th October, 2005 coupled with the judgment of the High Court who had not only dismissed the petition on the question of maintainability but on merits as well, as it is indicated from its reading. In this behalf it may be noted that this Court time and again had observed that with reference to the elections held under Article 225 of the Constitution of the Islamic Republic of Pakistan that any matter can only be called in question through an Election petition. Readily reference may be made to the case of Election Commission of Pakistan v. Javed Hashmi and others PLD 1989 SC

396. Subsequent thereto the judgment in the case of Javed Hashmi (ibid) was affirmed in the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others 1994 SCMR 1299. But, with an exception namely where no legal remedy -is available to an aggrieved party during the process of election or after its completion against an order of Election Functionary, which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service constitutional jurisdiction of the High Court. For convenience, relevant observations therefrom read as follows:-- "The upshot of the above discussion is that generally in an election process the High Court cannot interfere by invoking its constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an Election functionary which is patently illegal/without jurisdiction and the effect which is to defranchise a candidate he can press into service constitutional jurisdiction of the High Court. The majority view in the case of Election Commission of Pakistan v. Javaid Hashmi (supra) is not applicable. We may clarify that we do not intend to overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed hereinabove." The above judgment was followed in the case of Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863.

8. It may be noted that in the case of Nazir Ahmad (ibid) this Court has held that the principle announced in the judgment pertaining to election held under the constitutional provision shall also be applicable on the election under Local Government Ordinance being principle dealing with the election disputes 'shall have the binding effect under Article 189 of the Constitution. There is no cavil with the proposition but following the observation made in the cases of Ghulam Mustafa Jatoi and Aftab Shahban Merani, the election under the Local Government Ordinance, can be called in question as well if any order of an election functionary is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate. In presence of such observations made by this Court, now it would be proper to examine that under the circumstances of the case what is the status of the order, passed by the District Returning Officer dated 8th October, 2005. The relevant para. therefrom has been reproduced hereinabove.

9. It is an undisputed fact that respondent No.5 submitted an application praying therein for re-counting of votes as it is evident from the prayer clause of the application reproduced hereinabove. The District Returning Officer under the scheme of Punjab Elections Rules, 2005 only figures under sub-rule (6) of Rule 36 which is reproduced hereinbelow for convenience:-- "The Returning Officer shall not re-count the valid ballot-papers in respect of any polling station unless

(i) the count by the Presiding Officer is challenged in writing by a contesting candidate or his election agent and 'the Returning Officer is satisfied about the reasonableness of the challenge; or (ii) he is directed to do so by the Chief Election Commissioner or the District Returning Officer." The above provision has defined the jurisdiction of the District Returning Officer as well as the Returning Officer. Essentially in exercise of such powers re-counting can be ordered by the DRO to Returning Officer who subject to availability of the conditions under Rule 36(6)(1) and (ii) of the Rules, 2005 can undertake the process of re-counting. In exercise of these powers, Returning Officer can only take into consideration and re-count valid ballot-papers in respect of any polling station if any of the two conditions enumerated in clauses (i) and (ii) above is fulfilled.

10. It is to be noted that in the instant case polling took place on 6th October, 2005. As per the schedule Returning Officer had fixed the date for the consolidation of the results. The contents of the application submitted by respondent 5 indicates that respondent was not interested in the consolidation of the election results but wanted re-counting because of little scope of getting a favourable result during consolidation hence in the process of consolidation the Returning Officer had to adhere to the provision of Rules 36(3) strictly whereas in the process of re-counting in terms of Rule 36(6) the scope is comparatively larger and it provides more chance of success. However, District Returning Officer had no authority to direct to Returning Officer vide order, dated 8th October, 2005 for re-counting the rejected votes of the contesting candidates because Returning Officer was bound to examine ballot-papers under Rule 36(3) of the Rules, 2005 to consider only excluded votes. Similarly District Returning officer could have not disposed of application without providing opportunity of hearing to the petitioner as well but this discrepancy would not be of much importance in view of the fact that Returning Officer examined rejected votes in presence of parties. A perusal of order of Returning Officer, synopsis of which have been reproduced hereinabove indicates that he had disposed of the whole controversy between the parties without making reference to the Rules meant for declaring valid or invalid votes.

11. At this juncture it is to be noted that Rule 30(2) provides voting procedure. Rule 30(6)(ii) provides that "the voter, on receiving ballot-paper or ballot papers shall put the marking aid rubber stamp on the ballot paper at place within the space containing the symbol of contesting candidate of his choice". This procedure has been provided in order to ensure the sanctity of the secret ballot, otherwise if a voter is allowed to put in front of the candidate's choice any other visible mark (by the candidate in whose favour the votes have been cast) than it would lose its sanctity as it would be against the concept of electing a representative by means of secret ballot and if such procedure is allowed to prevail, there would be no purpose of holding the election as then it would become a selection by means of open balloting, which is not the object of the Constitution or the law relating to the Election. Reference in this behalf may be made to Mukhtar Hussain Shah v. Waseem Sajjad PLD 1986 SC

178. In this case appellant contested election of Senate against reserved seats of Alam, technocrats and other professionals under the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 and in this behalf the validity of ballot-papers, if any mark or line, additional mark like underlining etc. was considered and following observations were made: -- "In examining the ballot-papers if it appears that the voter has done the unwanted marking purposely then it should be taken to have been done perversely and done in such a way as to legitimately forfeit his vote. A very illuminative discussion as regards such a provision of law is to be found in the case of Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore PLD 1966 SC

1. In the opinion recorded by Kaikaus, J. his Lordship first noticed the following two alternative possible interpretations:-- "These words are capable of two meanings:-- (1) that a candidate or some other person concerned with the election is in fact able to identify the elector on account of this mark; (2) that (although the elector may not be in fact identified) the mark is of a kind which if permitted can be used as an identifying device." And after examining them at great length concluded as follows:

"I could point out further difficulties, but I do not think it is necessary. The upshot of the above discussion is that if we adopt the first of the two interpretations stated above neither the Returning Officer not the Member, Election Commission, will be able to reject any ballot-paper on the ground that it bears a mark by which the elector can be identified. The result will be that there will be a licence to all concerned to freely use marks for the purpose of identification of voters. Secrecy of the ballot will come to an end and bargaining about votes will be easy. He who is able to exert undue influence on a voter will have ample means to ensure that the vote is cast in accordance with his directions. This is a matter of vital importance for the country and if the second of the two interpretations stated above is not accepted the only proper course for the Government will be to secure an amendment of the law. If the first interpretation be wholly unacceptable then the second should be adopted as long as it is a possible interpretation, but it is not only a possible interpretation, it is a reasonable one. It invalidates all ballot-papers which bear such marks as can be used for identification. It provides a simple rule and creates no difficulty in the way of the Presiding Officers and Returning Officers. An elector is to make only one mark on the ballot-paper that is the mark for indicating the candidate for whom he is voting and if any other mark which he makes in spite of the knowledge that he is to make only one mark invalidates the ballot-paper he has no cause for grievance. The only objection taken to the second interpretation is that if this was the intention of the Legislature section 38 should have said that every mark will invalidate a ballot-paper instead of saying `a mark by which the voter can be identified'. The answer is that it is possible to conceive of a mark which not be used as an identifying device. It may be too insignificant. It may be accidental. Or, the Legislature may have employed these words without coming to a conclusion whether there could or could not be marks which were incapable of use as identifying devices. The qualification of mark as a mark by which the elector could be identified' is a proper one and what is being urged is that as all marks can be used for identification the qualification was unnecessary. This is not a serious objection particularly when the only other interpretation is an impossible one. We wholly adopt that view and this brings us in the case of Senate Elections to the position as was taken in Wigtown case (1874) 2 O&M that any additional mark like circle underlining etc. invalidates the ballot-paper unless it is attributable to carelessness or want of skill."

12. It may be noted that in the ballot-papers which have been included in favour of respondent No.5, official mark of rubber stamp was not used and the Returning Officer as well as learned High Court accepted the same in view of the arguments that the intention of the voter is to be seen by putting a circle instead of election symbol does indicate that a valid vote was not cast in favour of respondent No.5. It is nobody's case that voters had deviated from the said procedure laid down under Rule 30(6)(ii) for a strong reason and exploring of intention of the voters was necessary as it has been highlighted in the case of Nazir Ahmad (ibid). It is to be borne in mind that Returning Officer first of all has to see whether the votes have been cast in the prescribed manner by putting, marking aid rubber stamp and if there is no such mark of rubber stamp, before considering the intention it should be decided whether a vote has been duly cast or not and if answer is in negative then there is no necessity of proceeding ahead. With regard to measuring intention of voters, an elaborate discussion has already been made in the case of Dr. Sher Afghan v. Aamar Hayat Khan 1987 SCMR 1987.

13. Thus, in view of these observations in both the judgments we are of the opinion that in the instant case admittedly the mark of circle placed on the symbol of respondent No.5 would indicate that the right of vote has not been exercised by a voter because such identification on the paper is against the concept of election of secret ballot. It is to be noted that in such-like situation where a voter due to inadvertence had not used the marking aid rubber stamp, he can request for another ballot-paper in terms of Rule 33 of the Rules 2005 and if such request has not been made then such vote would be excluded being a spoiled ballot-paper and would not be counted in favour of any of the candidates. However, if marking aid rubber stamp has been used and there is some defect in its affixation then Returning Officer, on examining the same in his judicial discretion, can direct to count the same in favour of any of the candidates. As Returning Officer had counted invalid votes, instead of excluding them, therefore, such conclusion would be deemed contrary to the provisions of Rule 30(6)(ii) of the Rules, 2005 and were not liable to be counted in favour of respondent No.5.

14. The language used in Rule 36(3) would clearly indicate that the Presiding Officer if he finds that such ballot-paper should not have been so excluded then he should have counted it as a valid ballot-paper in favour of contesting candidate. Essentially when there is no marking aid rubber stamp, no conclusion can be drawn that it has been validly used. Therefore, Returning Officer who, in fact was influenced by the direction of the District Returning officer, had looked these ballot-papers over-consciously and wrongly included these votes in favour of respondent No.5. As has been pointed out hereinabove that whenever there is such an illegality or an order has been passed without jurisdiction and its effect is to defranchise the candidate, then petitioner under Article 199 can be maintained.

15. The foregoing discussion clearly demonstrates the patent illegality which has resulted on account of exercise of jurisdiction not vested in Returning Officer. Thus, the High Court relying on the judgment in the case of Ghulam Mustafa Jatoi and Aftab Shahban Merani (ibid) should have exercised jurisdiction under Article 199 of the Constitution instead of non-suiting. We may note here that the judgment in the case of Ghulam Mustafa Jatoi (ibid) was composed by a larger Bench comprising of five Judges of this Court, whereby on having taken into consideration the effect of the case of Javed Hashmi had made such observation. It may also be noted that jurisdiction of Returning Officer was only to examine excluded ballot-papers under Rule 30(3) strictly in accordance with the provision of Rule 30(6)(ii) of the Rules, 2005 for the purpose of determining whether a ballot-paper containing a small circle is valid or not and order was passed without jurisdiction declaring such ballot-papers valid for the purpose of re-counting in favour of respondent No.5. By now it is well-settled that any order which suffers from patent illegality or is without jurisdiction, deserves to be knocked down. Reference in this behalf may be made to the following judgment: -- (i) Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; (ii) Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 326; (iii) Col. (Retd.) Ayub Ali Rana v. Dr. Carlite S. Pune and another PLD 2002 SC 630; (iv) Zahoor and another v. Said-ul-Ibrar and another 2003 SCMR 59; (v) Malik Nazar Hussain v. National Bank of Pakistan and another 2004 SCMR 28; (vi) Qazi Shamsher Rehman and another v. Mst. Chaman Dasta and others 2004 SCMR 1798.

16. Thus for the foregoing reasons, under the circumstances of the case, DRO under Rule 36(6) had jurisdiction only to direct the Returning Officer for re-counting of the votes subject to the conditions prescribed therein and so far Returning Officer is concerned he had to exercise the jurisdiction lawfully keeping in view the provisions of Rules 30(6)(ii), therefore, for such reasons a candidate cannot be allowed to be defranchised and subject to availability of these conditions writ petitions under Article 199 of the Constitution would be competent particularly in view of the fact that Returning Officer had not left undecided any question for the decision of the Tribunal as has been discussed hereinabove, As a result of above discussion, petition is converted into appeal and allowed. These are the reasons of our short order of event date. "For the reasons to be recorded separately, this petition is converted into appeal and allowed. The impugned judgment of the Lahore High Court is set aside. As a consequence whereof petitioner is declared returned as Tehsil Nazim of Tehsil Piplan; District Mianwali. No order as to costs." S.A.K./A-59/SC Appeal accepted.