P L D 1967 Supreme Court 342 (PLP)

CORNELIUS, C. J.‑In an election for Chairman of a Union Council, an equal number of votes (3) was cast in favour of each of the two contestants, viz., the petitioner, Muhammad Asghar Naqvi and the respondent Altaf Hussain. The Presiding Officer held that one vote cast in favour of Altaf Hussain was invalid, on the ground that the cross‑mark against his name was cutting the line between the spaces against the names of the two candidates. Accordingly, Muhammad Asghar Naqvi was declared elected. Altaf Hussain moved an election petition before the Controlling Authority. In the enquiry, the person who cast the alleged doubtful vote appeared and said he marked his cross for Altaf Hussain according to the instructions of the Presiding Officer. In fact, the name of Altaf Hussain was printed over the same line over which this voter had marked his cross. The Controlling Officer held that the vote was wrongly excluded and accepting the petition, declared that the election of Muhammad Asghar Naqvi was void. Muhammad Asghar Naqvi moved the High Court under Article 98 of the Constitution, to quash the order of the Controlling Authority. A Division Bench of the High Court dismissed the petition, holding: (1) that the secrecy of the ballot had not been violated by the voter seeking assistance from the, Presiding Officer as to where he should mark his cross, the rules permitted the taking of such assistance; and (2) that the writ‑petitioner had not been denied an opportunity to lead evidence in the election petition; he had made no prayer for the purpose and had brought no witness to produce. Leave is now sought to appeal against this decision. It is urged that the Controlling Officer, having held that the number of votes received by the two candidates was equal, should have directed that a Chairman should be chosen by drawing of lots, as the Rules require. The Controlling Authority has merely set aside the declaration that Muhammad Asghar Naqvi had been elected and the choice of a Chairman still remains to be made, which will presumably be done according to the rules. Mr. Jamil Hussain Rizvi raised the point that the secrecy of the ballot had been violated in respect of the disputed vote. The voter's reference to the Presiding Officer for assistance as to how he should mark his paper clearly does not constitute violation of secrecy. His appearance before the Controlling Officer and the evidence he gave does indeed expose the fact that the disputed vote was cast by him, but this was for a subsequent and collateral purpose, namely, the election petition, and does not, in any way, affect the secrecy under which the vote was cast. It may be that it is not in conformity with the scheme of these elections that it should ever be made known which voter cast a particular vote, but the result of the ballot, if declared on the basis of votes cast in secrecy cannot be affected by such a subsequent disclosure. In this case, as the cross mark was made over the same line across which the name of Altaf Hussain was printed, the decision of the Controlling Officer that the vote was cast for the latter was clearly correct and did not call for interference, for lack of lawful authority. The petition is dismissed. K. B. A. Petition dismissed.