1993 PLP 1635 (MLD)

proceedings before the Election Tribunal, the parties agreed to the case being decided "on a recount of the votes and checking of the ballot papers". The Election Tribunal found that out of the 37 rejected votes the petitioner was entitled to have 6 votes counted in his favour and the respondent was entitled to have 8 votes counted in his favour; out of the. votes previously declared valid in favour of the petitioner, the Election Tribunal deducted 29 from the count of the petitioner. Accordingly the petitioner was held to have received 292 votes and the respondent was found to have received 310. votes. Accordingly the respondent was declared elected.

9. It should be mentioned here that the petitioner in that case had Umbrella as his election symbol and the respondent had Tonga as his 'election symbol. It was argued that out of the original 37 rejected ballot papers and the 29 ballot papers which were later declared., invalid by the Election Tribunal, 23 ballot papers contained marks on the symbols of Umbrella and Chair and since there were only two contesting candidates, namely, the petitioner, who had the symbol Umbrella and the respondent who had. the symbol Tonga the said 23 valid papers should be deemed to have been cast in favour of the petitioner for there was no contesting candidate having the symbol chair. On behalf of respondent it was contended that "where a voter has affixed two marks, instead of one, on a ballot paper, it must be presumed to mean that he wanted to vote both the contesting candidates, considering that there were only two contesting candidates in the field, and that since the ballot, papers which bore marks both on the `Umbrella' and the `Chair'; the marks on the chair must be deemed to have been given" to the respondent No.2 as his space contained the symbol of `Tonga', just above that bearing the 'Chair).toBoth.the parties relied upon the observations of the Supreme Court in Dr. Sher Afghan's case. Rahim Bakhsh's case, it is noteworthy, was also a case under the Punjab Local Councils (Election) Rules, 1979 and the question turned, there, as here, upon the interpretation of the provisions of rule 40, sub-rule (4), clause (v) and its explanation. It was held: "Thus, where only one member is to be elected from an electoral unit, a voter has only one vote and if he places two marks on a ballot paper signifying his intent to vote for two persons, or to give a double vote to one of them, it is against the principle of `one voter one vote .' However, in the case of a multimember electoral unit where a voter has to cast one or more votes and a voter affixes one or more marks in addition to the number of votes allotted to him, some difficulty may arise and the marks unambiguously put on the symbols of the contesting candidates may have to be counted in their favour However, in the instant case there were two contesting candidates. It is, therefore, obvious that a voter primarily had to choose only one, if he really came to vote and not to waste it. He had to only affix one mark. Whether he did it rightly or wrongly in the space provided for his particular candidate, is a different matter. However, amongst rustic villagers, there are some who out of intent or design, or ignorance or folly, might want to give their votes to both the candidates. In such a case, they would obviously put two marks, whether rightly or wrongly in the spaces attributable to both the candidates. Some may want to give two votes to their respective candidates, to enhance their success. In such a case they would also affix two marks, whether correctly or incorrectly in the spaces reserved for their respective candidates. In such cases it cannot be said that the intention of the voters was to vote for one particular candidate, as required by law. Muchless can any such inference be drawn by _. invalidating one of the marks, merely because it happens to fall in a r ,.~. _,~ space with a symbol which has not been allotted to any candidate. The ~al`lm$ rule stated in Sher Afghan's case applies to a case of a single member ~::~ ;';; 7 electoral unit where a voter has only one vote and he affixes only one _"3~'ss ' mark on his ballot paper. We doubt whether the rule stated in Sher Afghan's case (supra) would apply to a case of a single member electoral unit where a voter who has only one vote affixes two throe marks on his ballot paper:" $ . Then in the iight of the rule laid down in Dr. Sher Afghan's case, the learned Judges considered the rejected votes; out of the 23 rejected votes one had a mark in the space reserved for the symbol Umbrella; this it was held showed that the \ater wanted to vole for the writ petitioner. There was another ballot paper "with a mark on the Chair" which showed that the voter wanted to vote for the respondent, "whose space is just above, bearing the symbol of the Tonga." Out of the 29 ballot papers later declared invalid by the Election Tribunal, "2 ballot papers have marks on the `Chair'. They likewise go to respondent No.2". In short, it was held, "the 17 ballot papers having marks on both the `Umbrella' and the `Chair' do not show the clear intention of the voters to vote for one candidate, whether it he the petitioner or respondent No.2".

10. Thus the 17 ballot papers marked in the space reserved for the symbol Ilmbrcha as also in the space reserved for the symbol Chair were rejected on the ground that the symbol of Tonga was just above the symbol of Chair. This il what distinguishes that case from this case. For according to the rule laid down in Dr. Sher Afghan's .case, the space of the symbol Chair being immediately above that of the symbol Tonga the inference vas that the voter had voted both for the candidate with the symbol Umbrella and the other candidate with the symbol Tonga. It must he held, therefore, that Rahim llaklish's case ~Nas elecidcd em, and i.s authority for, its own facts. 1 should think, ihcrefore, that the observations in Rahim Bakhsh's case: "We doubt whether the rule ,talcd in Slier Alghan's case (supra) would apply to a case of single member electoral unit where a voter who has only one vote affixed two three marks on his ballot paper. The 17 ballot papers having marks on both the `Umbrella' and the . `Chair', cannot be treated as valid votes given in favour of the petitioner" must be read in the context of the peculiar facts of that case.

11. For these reasons the petition is dismissed but the parties are left to bear their own costs. AA./B-84/L Petition dismissed.