1988 PLP 728 (CLC)

The principle laid down for considering the evidence which is to be accepted in petitions is that of criminal cases. On this I refer to a case of Sayed Saeed Hassan v. Payar Ali Allana reported in P L D 1976 SC 6, relevant at page 25‑26‑D,, which reads as under: ‑

"This brings us to the next contention that the Courts below had erred in law in coming to the conclusion that the allegation of corrupt and illegal practice stood established against the appellant without insisting on the requisite standard of proof as required of a charge in criminal trial. While agreeing with this proposition that the analogy of a criminal trial would hold good in the matter of a corrupt or illegal practice which must be affirmatively proved to the conclusion of a reasonable hypothesis consistent with non‑commission of a corrupt practice and the benefit of doubt must go to the person against' whom a corrupt or illegal practice is alleged. He has already referred to the authorities mentioned in this context in the High Court judgment namely, Mohammad Saegd's case, Mian Jamal Shah's case and Yousuf Khattak's case P L D 1966 SC 1 and PLD 1973 SC p. 191." In cross petitioner has stated that on 19‑3‑1985, these blanks were filed in whereas on perusal of nomination papers there are no blanks in the paper. There is only place for signature and date. In evidence respondent Mahmooda Sultana stated that she had no reading glasses. She did not sign nomination papers and bio‑data and Returning Officer asked her to do the needful whereas case of petitioner is that respondent No. 7, signed only declaration in presence. Respondent No. 7 in her written statement specifically mentioned that her signature was taken only on declaration and in her cross she speaks of nomination paper and bio‑data. Her evidence is self‑contradictory. In cross she has stated that she was sitting at some distance and cannot say if signature was put by candidates on nomination papers. On the other hand respondent No. 1 frankly admitted that she might have put date on one of the bio‑data but not signature. Respondent No. 12 stated that some clerical error were allowed to be rectified. The nomination papers were not seen by the petitioner and respondents and their evidence is based on observations made by the Returning Officer who has denied, Begum Mahmooda Sultana is defeated candidate and her evidence is that she had no reading glasses. Then how she could see other candidates signing at particular place when according to her still mistakes were left in her nomination paper which she could not discover. The Returning Officer if got rectified some mistake he could do so under Rule 43(3)(d)(ii) of Conduct of Election Rules. The intention of legislature is that people should not be debarred from taking part in the Election on minor discrepancies or technical grounds. Mr. Rashid has cited some cases where it has been held that nomination form is of substantial nature and defect at the time of scrutiny cannot be remedied, to that extent, I agree but it is to be seen whether defect is of substantial nature. I have already observed that there is nothing on the record to show that petitioner has been able to prove beyond reasonable doubt that signatures of .the respondents were obtained on the declaration containing oath and other particulars. In case of Ghulam Nabi v. Khuda Bakhsh and others reported in P L D 1984 Kar.

245. The facts are that nomination paper was not signed by proposer and seconder. The affidavits were given by them that they were present alongwith the candidate on the date of filing of nomination paper. No counter‑affidavit was filed. Petition was accepted and reliance has been placed on the case reported in P L D 1967 SC

486. From Supreme Court judgment, Division Bench have quoted para. which is as under:‑-- "The law does not appear to display a prefectionist attitude in this behalf and it seems to us with reason. The law of pleadings has never been strictly construed and rigorously applied in all its technicalities, to this country as plaints and petitions drafted, specially in the Moffusil, suffer from various minor defects. A very strict view, on the technical plane, of such pleadings, without regard to the substance of the matter, would defeat the ends of justice. Unless. therefore, the language of the law is intractable and clearly provides for dismissal of a petition for a technical defect, the Courts should not be astute to ascribe to the Legislature a desite to be hypertechnical, so as to smother genuine litigation. In our opinion above observations are fully applicable to the present case. The non‑joinder of unimportant parties was defect of a very minor and technical nature and so also the absence of signature of the petitioner the (present respondent No.2) on the Election Petition, which was signed by his Advocate. There is nothing in the Election Rules to prevent the Election Authority from permitting a petitioner to sign a petition or to verify a petition after it has been filed. Action of the Election Authority in the present case permitting respondent No. 2 to sign and verify the plaint and annexures would not, in our opinion, amount to any illegality or irregularity so as to vitiated his order." In case of Jamaluddin v. Abdul Sattar and 13 others reported in PLD 1986 Jour.

146. It has been held that mere breach of any Act or rules framed thereunder would not be sufficient to declare election as void and that allegation of illegal and corrupt practice should be proved by clear cogent and convincing evidence without any reasonable doubt. In these circumstances there is no positive and convincing evidence that Returning Officer got signatures of respondents Nos. l and 7 at the time of scrutiny on oath and declaration. For the reasons stated above the petitioner has failed to prove that consent declaration and oath were got signed from the respondents Nos. 1 and 7 on date of scrutiny. Therefore, I have come to the conclusion that both the respondents were validly nominated candidates. It has also been admitted that scrutiny of nomination papers of Sind Province was over by 12‑30 noon. The time of appeal was up to 4‑00 p. m. and the office of the Chief Election Commissioner was next door to the Returning Officer and it is on the record that verbal objection was raised even though appeal was not filed and there is no evidence that petitioner applied for copy of order. Now I come to issue No.

2. The ground taken in the petition is that some ballot‑papers though marked in 'Roman' numerals were declared valid due to that the result of the polls materially changed inasmuch as the respondent No. 4 who had initially obtained same number of the votes as the petitioner received and respondent No.l surplus value based on invalid votes ultimately declared respondent No. 4 as elected. It is stated in the petition that had the invalid votes not been declared valid the petitioner would have been elected instead of respondent No.4. In para. No. 5 of the grounds it is stated that by declaring three votes marked in Roman as valid, the entire election is void and secrecy of the election has been grossly violated. The relevant rule the manner of recording the votes is Rule 60 of Conduct of Election Rules which is reproduced as under:‑ "In giving his vote, as voter‑‑ (a) shall place on his ballot‑paper the figure '1' opposite the name of the candidates for whom he wishes to vote in the first instance, and (b) may, in addition, place on his ballot‑paper the figures 2, 3 and 4 and so on, in order of his preference, opposite the names of the other candidates." The voter according to this rule had to mark against in the ballot‑paper either in Urdu or English but not in both or not in words. In this election 46 Members of the National Assembly from Sind cast their votes on 20th March, 1985. Each of the candidate received the following votes:‑ (1) Mrs. Afroze Nazir Ahmad 11 (2) Begum Salma Ahmad 9 (3) Mrs. Rashida Pasha Khuhro 8 (4) Dr. Syeda Sultana Ibrahim 6 (5) Mrs. Qamar‑un‑Nisa 6 (6) Syeda Zahida Zaidi, Advocate 2 (7) Mrs. Noor‑us‑Saba Zafar 2 (8) Begum Mahmooda Sultana 1 (9) Begum Mumtaz Rashdi 1 (10) Mrs. Rukhsana Anwar Nil (11) Begum Sarwari Irfanullah Nil (12) Miss Shamim Kazmi Nil The Returning Officer admitted this. He produced photostat copies of the nomination. He has stated that Roman figures are included and used since ages in English language have become part and parcel thereof. He has stated that respondent No. 4 received surplus value of the votes of respondents Nos. 6 and 7 and not of respondent No.l as alleged. Returning Officer has admitted that 46 ballot‑papers were used and no vote was rejected. He has stated that two ballot‑papers were marked in Roman. He produced photostat copies as Exh.R/9 and R/10. The case of petitioner is that ballot marked in Roman are invalid. Under the present rule, the ballot were to be marked in English or Urdu but specifically stated that not in words. Both the ballot‑papers do not contain marking in words. Mostly in Government publications the Roman numerals are used. Even in the Representation of People Act, 1977 and Rules the Roman is used for instance I quote Election Laws Rule 26(1) of the Representation of the People (Conduct of Election) Rules, 1977 reproduced as under:‑ "Returning Officer shall deal with the postal ballot‑papers in the following manner namely:‑ (i) no cover in Form X containing a postal ballot‑paper received by the Returning Officer after the expiry of the time fixed in that behalf shall be opened and no vote contained in any such ballot‑paper shall be counted; (ii) the Returning Officer shall close and seal in a separate packet all the packets referred to in sub‑rule (2) of Rule 16; (iii) all other covers .in Form X containing postal ballot‑papers shall then be opened one after another; (iv) as each cover is opened, the Returning Officer shall scrutinise the declaration in Form VII contained therein and shall reject the ballot‑paper and make an appropriate endorsement on the cover in Form IX without opening the same‑‑ (a) if the said declaration is not found in the cover of Form X; or (b) if the said declaration is substantially defective; or (c) if the serial number of the ballot‑paper entered in the said declaration differs from such number endorsed on the cover in Form IX; (v) each cover so endorsed and the declaration received with it shall be replaced in the cover in Form X; and all such cover in Form X shall be kept in a separate packet which shall be scaled and on which the following particulars shall be recorded namely: ‑ (a) the name of constituency. (b) the date of counting; and (c) a brief description of its contents; (vi) the Returning Officer shall then place all the declarations in Form VIII which he has found to be in order in a separate packet which shall be sealed before any cover in Form IX is opened and on which shall be recorded the particulars referred to in clause (v); (vii) all covers in Form IX containing postal ballot‑papers which have not already been dealt with under the foregoing provisions of this rule shall then be opened one after another and the Returning Officer shall scrutinise each ballot‑paper and decide the validity of the vote recorded thereby; (viii) a postal ballot‑paper shall be liable to rejection on the grounds mentioned in subsection (4) of section 38, reference in that subsection to prescribed mark being construed as reference to cross‑mark mentioned in sub‑rule (1) of Rule 13; (ix) the Returning Officer shall count all the valid votes given by postal ballot in favour of each contesting candidate and record the total thereof as well as the number polled by each such candidate in consolidated statement in Form XVI; and (x) all valid postal ballot‑papers shall, after they have been counted, be placed in a separate packet which shall be sealed and on which shall be recorded‑‑ (a) the name of the constituency; (b) the date of counting; and (c) a brief description of its contents." In the same manner in the Report on the General Elections 1985 Volume I, the Roman numerals have been used, I quote page 89 para. 53 as under:‑ (i) The Forms required to be used for the registration of voters are lengthy and beyond the comprehension of a common man. The forms as also the procedure for enrolment may be simplified. (ii) Since the electoral rolls prepared by the Commission for elections to the Assemblies are also required to be utilised by the Provincial Government for local bodies elections, electoral rolls may in future, be prepared in association with the Provincial Governments to facilitate their use for both types of elections. (iii) Ways and means may be devised to improve the quality of electoral rolls. The conventional time‑consuming method of 'Kitabat' may be done away with and, in its place, possibility of printing the rolls through the recently introduced computerised process of 'Noori Nastaaliq' may be explored. (iv) Use of National Identity Card issued under .the National Registration Act, 1973 in the process of enrolment of voters may also be considered on merit. (v) The Deputy Commissioners may be appointed to act as District Registration Officers to co‑ordinate and supervise the work of registration of voters, within their Districts, under the control and superintendence of the Chief Election Commissioner. (vi) Fresh electoral rolls should be prepared, printed and maintained separately for each Enumerator in order to facilitate addition of new names at the end of rolls of the same locality, after the final publication of rolls. This arrangement will facilitate assignment of voters of the same area to the same polling station. (vii) Computerisation of the entire process of preparation of electoral rolls as a by‑product of the automation of National Registration System may also be given due consideration at the appropriate stage. (viii) In case the allocation of seats to various categories of non‑Muslims is retained in the National Assembly and Provincial Assemblies the electoral roll will have to be prepared separately for each category on the basis of religion." However, one can find Roman numerals mostly in every English record and even in judgments. Both the ballot‑papers are marked I, II, III, IV strictly speaking the Roman marking is (i), (ii), (iii), (iv), with regard to one there is hardly any difference. Now it is to be seen whether this defect is such which may declare ballot‑paper invalid, on this I refer two judgments of Election Tribunal in Election Petitions Nos, 2 of 1985 and 21 of 1985. Mr. Justice Saleem Akhtar, has dealt with this question at length and referred to Indian cases as well as cases of Supreme Court of Pakistan and High Court. In Irshad Ahmad v. Shafi Mohammad 1981 C L C 1332, it has held that if the ballot‑paper unambigously reveals the intention of the Elector cast his vote in favour of a particular candidate, the presence of other marks will not render the vote invalid. Supreme Court in case of Khan Shahzada v. Moulvi Fazal Rahi and 3 others 1983 S C M R 125, in para. 9 it has been observed:‑

"In determining questions relating to marking of the ballot papers, the role of decision is to ascertain the intention of the voter from such marking." The reference could be made to the case P L D 1965 Jour. (Election Commission) 89, Jamal Shah v. Nasrullah Khattak P L D 1964 Dacca

460. It was also argued that rule is not mandatory but it is directory. Sind Bar Council Election was challenged on the ground that members instead of 'X' marked (tick mark). The Tribunal headed by Judge of this Court Mr. Justice K . A . Ghani, the then, examined this point in detail and referred number of cases in his order. He came to the conclusion that ballot‑papers marked ' instead of 'X' are valid. In Presiding Officer v. Sadruddin Ansari P L D 1967 SC 569 at page 579; "...There was no possibility of any doubt or dispute as to the person in whose favour the marks had been made on the said ballot‑papers. In the circumstances, the action of the Presiding Officer in declaring those ballot‑papers invalid, was in my opinion, wholly arbitrary and not inspired by any sense of duty which he had to perform i.e. to do justice between the rival candidates. Such an arbitrary exercise of power may well be said to be a mere colourable exercise of power or even an abuse of power." Finally I refer to a case Jamshed Ahmad Khan and 2 others v. S.D. M/A.C. P L D 1987 SC 213 in para. 12(1) at page 225 observed as under:‑ "From the aforesaid discussion we are of the firm opinion that the provisions of section 33(5) of the Act and of Rule 17, are not mandatory, with the result that only substantial compliance was required. Indeed in the context of the fact that this provision, laying down the manner of casting the vote relates to an election on the basis of adult franchise, where most of the voters would be from the rural background, strict technical compliance with the requirements as to place of the mark, would not be in consonance with the intention of the legislature. In any case, as discussed earlier subsection (4)(c) clearly lays down an, exhaustive list of grounds upon which a ballot‑paper can be rejected, therefore, non‑compliance with the procedure for marking the ballot‑paper by itself, not being one of the grounds prescribed, cannot ispo facto furnish a ground for rejecting a ballot‑paper as in valid." Reference is also made to para. 10 at page 223 as under:‑

"On behalf of the appellants, mainly two rules of interpretation of statutes have been pressed in support of the argument that the provisions of section 33(5) are mandatory. Firstly that the section uses mandatory words like 'shall', and secondly that where a statute creates a new right privilege or immunity and regulates the manner of its exercise, it must be construed as mandatory. No doubt the principles underlying these rules furnish some assistance in determining the nature of an enactment, but the books indicate that except as to time, there is no general rule of universal application for determining whether an enactment is absolute or directory. In this behalf I am tempted to refer to the observations by Lord Campbell in Liverpool Borough Bank v. Turner (1), quoted Craies on Statute Law as under:‑ "No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to‑ get at the real intention .of the legislature by carefully attending to the whole scope of the statute to be construed." The votes in my view could only be rejected when with pre‑arrangement the identity is disclosed. There is nothing to show that this has been done and there is no such allegation in the petition. Upshot of the above discussion is that intention of voter is clear as such ballot‑papers cannot be rejected on this ground. Lastly in the alternative in case two votes marked with Roman numerals be kept out of consideration the result of petitioner will not be affected. Mr. Rashdi and Mr. Obed‑ur‑Rahman frankly stated that after examining that situation they have come to conclusion that in that eventuality the petitioner cannot get benefit. This has been stated by the Returning Officer too. Therefore, on this issue petition cannot succeed on both the accounts. Last issue No. 3: Now I revert to the last issue whether right of appeal against' acceptance or rejection of nomination paper was lost? On this as already observed that no written objections were filed at the time of scrutiny nomination paper of respondents Nos. 1 and

7. Application for the copy was not made. One of the candidates Begum Salma Ahmad stated in written statement that none of the candidates objected to the nomination paper. This has also not admitted by the Returning Officer. He stated in para. 12 of the written statement that complete list of nomination paper was displayed on the notice board and reasonable opportunity was afforded to the concerned persons to examine the nomination papers. There is no documentary evidence to support the allegation on this point. Not only this but it is an admitted fact from the evidence that scrutiny of nomination papers of Sind were over by 12‑30 noon and appeal was to be filed upto 4‑00 p.m. before the Chief Election Commissioner whose office was next door to the Returning Officer. The petitioner had not put any effort to file any appeal therefore, right in my view was not exercised.) This issue answered in negative. The petitioner has made some allegations about changes of programme of scrutiny etc. for which Notifications were issued by the Election Commission within the Rules. However, the Election Commission is not a party, therefore, these points cannot be taken into consideration. In the end it was averred that Returning Officer committed same irregularities as he postponed the scrutiny of nomination paper of Begum Qamar Ispahani on the ground that she was coming with an application for withdrawal and with regard to Begum Zahida, some candidates objected that she was previously convicted but decision was postponed. It is regretted to note that this should not have been done. The Returning Officer must have conducted the election according to law. However, this is not so material which may reflect the election as a whole. Begum Qamar Ispahani had withdrawn and was not contesting candidate while Syeda Zahida Zaidi lost the election and petitioner has no grievance against them. For the foregoing reasons this Election Petition is dismissed with no order as to costs. M.Y.H./21/E Petition dismissed.