P L D 1966 (W (PLP)

MUHAMMAD AFZAL CHEEMA, J.‑The petitioner and respondent No. 1 contested election to the Electoral College from Unit No. 609 of District Campbellpur. Respondent No. 1 challenged 13 votes of the petitioner which were wrongly excluded by the Presiding Officer in the count with the result that the petitioner's valid votes were reduced from 230 to. 217 as' against 222 votes polled by respondent No. 1, who was declared successful. The election was held on the 5th of November 1964 and the result was declared the same day after the count. On the following day the petitioner contacted the Returning Officer who enquired from the Presiding Officer and the latter in his report (Annexure "A") frankly conceded that being ignorant of the law he had not counted the challenged votes in favour pf the petitioner who would have won in that event. The Returning Officer sent his own report (Annexure "B") to the Deputy Commissioner, but since the result had already been declared, the latter could not interfere.

2. Instead of, filing an election petition which was the proper course in the circumstances the petitioner filed a Writ Petition No. 594 before the Peshawar Bench of this Court which was dismissed by a Division Bench on the 19th of January 1965, as incompetent on the ground that the only remedy for the petitioner was to file an election petition, as required by section 58 of the Electoral College Act.

3. It appears that it was during the pendency of this writ petition that the petitioner filed an election petition before the Election Tribunal, Rawalpindi, respondent No. 4, who dismissed the same vide his order dated the 5th of July 1965 (Annexure "F") giving rise to the present writ petition.

4. The following contentions were raised by the learned counsel for the petitioner:‑ (1) That since the dispute in this case arose in connection with the counting of votes this was a matter to be finally determined by the Commissioner or an Election Commission, in accordance with law as envisaged by Article 171 of the Constitution and as no law had been enacted by the Legislature to deal specifically with such disputes it was not within the competence of the Tribunal to deal with the case. (2) In the absence of a counter petition .in recrimination alleging wrong inclusion of some invalid votes in favour of the petitioner the Election Tribunal could not go into that question and exclude some of the petitioner's votes on grounds of marks of identification and as such the impugned order was in excess of jurisdiction.

5. As against this, the learned counsel for the respondent raised preliminary objections that the petitioner had suppressed, in his earlier writ petition filed before the Peshawar Bench, the important fact of his having also filed the election petition: Secondly, the dismissal of the earlier writ petition acted as a bar to the filing of the present writ petition on the principle of res judicata. It was further argued that since the challenged ballot papers were collected from the voters it was wrong to presume or infer that these persons wanted to vote in favour of the petitioner. In order to count them in favour of the petitioner, it was an essential prerequisite that they must have been found in the ballot‑box of the petitioner in the absence of their statements for which unlike tendered votes there is no such provision.

6. We now proceed to consider the points raised. At the outset it may be observed that we do not see any force in the preliminary objections raised by the learned counsel far the respondents. It is quite clear that when the first writ petition was filed by the petitioner no election petition was pending. However, it appears that by the 19th of January 1965, the date of dismissal of the writ petition, election petition had already been filed. Since it is not clear from the order that it was pronounced on the day when the arguments were heard it would be difficult to say with certainty that the election petition had been filed. before the case was argued before their Lordships. In so far as' the point of jurisdiction is concerned, it may be observed that the point was first examined by a Full Bench of this Court in Dost Muhammad Malik v. The Returning Officer, etc. (P L D 1965 Lah. 560). There were three writ petitions before their Lordships, one of which No. 1861 of 1964 dealt with rejection of the ballot‑papers by the Presiding Officer at the time of counting. It would be interesting to observe that in support of his contention that in the absence of any law dealing with disputes arising in connection with counting of votes as envisaged by Article 171(1)(a) of the Constitution, the Election Tribunal has no jurisdiction in the matter and the writ jurisdiction could be directly invoked, the learned counsel for the petitioner also relied on the same authority which, in fact, did not advance his case. On the contrary, in paragraph 14 of the judgment it was clearly observed by their Lordships as follows: "It is true that the grounds on which the relief enumerated in rule 35(b) of the Electoral College Rules, 1964, may be obtained are not set out anywhere, but it does not follow that the disputes of the kind with which we are concerned fall outside the scope of an election petition to be tried by the Tribunal under section 60 of the Act. On the contrary, the scope is very much wider. Under section 58(2) any candidate may make an election petition challenging the election at which he vas a candidate and under section 60 the Tribunal shall, after giving the contesting candidates an opportunity of being, heard and taking such evidence as may be produced before it, make such order as it may think fit. There is, thus, no particularisation of the grounds which may be raised in a petition to challenge an election. One instance of those grounds will be found in the definition of the Election Offences set out in Chapter IX of the Electoral College Act, though it is not said so in the Act or the Rules and there may be very many other grounds which, if established, will call for setting aside of an election. The contention that the Tribunals established under the Electoral College Act are not competent to decide the dispute raised in these matters has, thus, no force." Furthermore, this question was also considered, though impliedly, by the same Division Bench of Peshawar Circuit which dismissed the earlier writ petition filed in this regard without having recourse in the first instance to the remedy provided by law in the form of an election petition. The judgment was delivered by Mr. Justice Ortcheson and his Lordship after referring to Article 171(1)(a) and (b) came to the conclusion that the proper remedy was an election petition as provided under section 58 of the Electoral College Act. If his Lordship had been of the view that the Electoral College Act did not specifically provide for the adjudication of a dispute relating to the counting of votes thus taking away such disputes from the jurisdiction of the Election Tribunal, it would not have been observed by his Lordship that: "The only remedy for the petitioner is or was to file an election petition as required by section 58 of the Electoral College Act." In fact, it is hardly necessary to look for authorities on the point as the plain reading of Article 171 itself significantly using the word "may" leaves no manner of doubt that the provisions of the Electoral College Act are wide enough in scope to cover all kinds of disputes including those relating to counting of votes. Article 171 reads as follows: "171(1) Subject to clause (2) of this Article, provision may be made by law: (a) for disputes arising in connection with the counting of votes at an election or referendum required to be' held under this Constitution to be finally determined by the Commissioner or an Election Commission; and (b) for other disputes arising in connection with such an election or referendum to be finally determined by a tribunal established for that purpose, 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 election or referendum shall not be called in question except in accordance with such a law. (2) . . . . . . . . . . . (3) . . . . . . . . . . . We are not in a position to say that the fact of filing of election petition had been suppressed by the petitioner before their Lordships. In paragraph 8 of the present petition, it is stated that the writ petition was dismissed as a result of the filing of the election petition which is not borne out by the judgment of their Lordships and is obviously incorrect. When confronted with this the learned counsel for the petitioner replied that he did not have before him their Lordships' order at the time the petition was drafted. Be that as it may, we are inclined to think that the suppression, if any, is neither wilful nor material.

7. As regards the second preliminary objection, it may be disposed of on the short ground that the principle of res judicata is not applicable here as in fact the earlier petition was not disposed of on merits: it was held to be incompetent.

8. The provisions relating to the form, manner and limitation of election petitions are provided in sections 58, 59 and 60 of the Electoral College Act and rules 35 and 36 made thereunder. No counter petition was filed by the respondent in recrimination challenging the wrongful inclusion of certain invalid ballot‑papers of the petitioner. Unlike the National Assemblies Election Disputes Act, there is no specific provision in the Electoral College Act for filing of a Recriminatory Petition as such. But challenging of the election would include challenging of count without calling into question the final outcome of election, and even a returned candidate could in our opinion challenge the same. Since there is no specific provision or procedure laid down for decision of such disputes, the same in our view could be done by raising the issue in the course of pleadings and even otherwise, as was done in the instant case. The learned Election Tribunal, was, therefore, justified in going into the question. The summary nature of the proceeding does not pin him down to any specific mode or procedure and since the question was raised before him may be in any form, he was competent to recount the votes of the petitioner and pass such orders as he thought fit. It appears from paragraph 3 of the impugned order that the respondent had taken up this, point before the learned Election Tribunal who consequently reconsidered the validity of 14 ballot papers of the petitioner, 9 of which were found to bear marks of one kind or the other and 5 were torn. In support of his contention that the Election Tribunal was competent to go into this question even in the absence of a recriminatory election petition, the learned counsel for the respondents relied on the provisions of subsection (2) of section 60 of the Electoral College Act, which reads thus: "60(2) Subject to any rules made in this behalf, the Tribunal shall, after giving the contesting candidates an opportunity of being heard and taking such evidence as may be produced before it, make such orders as it may think fit." It was argued that the concluding words are of very wide import and invested the Election Tribunal with wide powers to pass any orders, and from the conferment of such wide powers, power to consider the validity of ballot papers of the parties could also be inferred. This in our view is not without substance.

9. It was strenuously contended by the learned counsel for the respondent that no doubt the Presiding Officer was wrong in, withholding the challenged votes which should have been allowed to be cast but the learned Election Tribunal was equally at fault and had transgressed his jurisdiction by counting the 13 challenged votes in favour of the petitioner as no votes could be counted in favour of any candidate unless they were recovered from his ballot‑box and it would be wrong to conclusively presume that every prospective voter whose vote is challenged would cast his vote against the challenging candidate. The contention has obviously some force as the possibility of changing one's mind at the last minute before insering the ballot paper in the ballot- box or inadvertently putting it in the ballot box of the candidate other than the one for whom an ignorant and illiterate voter might have intended to vote, cannot be ruled out. It is a matter of common knowledge that in keenly contested elections there may be cases of equality of votes or success or failure by the narrowest margin of one vote, making all the difference. Such instances of inadvertence on the part of ignorant voters though not very frequent have been noticed and cannot be altogether excluded. Even otherwise, the emergence of a voter from the camp of a certain candidate is not per se a sure test of his choice for him as experience has completely belied such a presumption. We are thus of the view that the inclusion of 13 challenged votes in favour of the petitioner was in excess of the Tribunal's jurisdiction.

10. Assuming that the learned Election Tribunal had the jurisdiction to go into the validity of the petitioner's votes, we are afraid, we cannot go into the question of the exclusion of thirteen votes of the petitioner for bearing marks of identification in view of the Supreme Court's finding in Mian Jamal Shah's case which no doubt pertained to the election of the National Assembly. Their Lordships held the view that the High Court could not interfere with the finding given by the Member of the Commission (our learned brother Muhammad Iqbal, J.) that no ballot paper bearing mark could be held to be invalid unless there was evidence of pre‑arrangement or design. Such an evidence of pre‑arrangement or design appears to be all the more necessary under section 45(6) which is the relevant but a more stringent provision corresponding to section 37(2)(6) of the National and Provincial Assemblies (Elections) Act, 1964. Under the latter provision the Returning Officer shall reject a ballot paper which bears "any mark by which the elector could be identified" whereas in the former the Presiding Officer shall exclude the invalid ballot paper "on which anything is marked or written by the voter by which he can be identified." This obviously places a heavier onus of proof of the fact that, firstly the marking or writing is done by the voter and, secondly, it is of a kind by which he can be identified. But this at best could be termed only a wrong interpretation and an erroneous view of a legal provision, which by no means renders the act without jurisdiction.

11. In view of our finding in paragraphs 8 and 9 of the judgment, we set aside the order of the learned Election Tribunal as one in excess of its jurisdiction and remand the case to him for fresh decision according to law. A. H. Case remanded.