P L D 1967 Karachi 281 (PLP)

QADEERUDDIN AHMED, J.‑Three petitions bearing Nos. 130, 153 and 168 of 1966 will be disposed of by this judgment. The common question, on which the decision of two of them, bearing Nos. 153 and 130 depends, is as to whether certain marks which appear on the ballot papers invalidate them or not. The third petition bearing No. 168 of 1966 is based on the same facts on which Petition No. 153 is based. But Abdul Majid, the candidate whose election petition has been accepted by the Election Tribunal and the. election in which he was defeated has been declared to be void, has come to this Court to obtain a declaration that he is the duly elected Chairman of Union Committee No. 56, Ramaswamy, Karachi.

2. We would like to state the background of facts before proceeding to examine the above‑mentioned two questions. The facts of Petition No. 130 of 1966 are that Abdul Matin and Abdul Khaliq Allahwala were candidates for the chairmanship of Union Committee No. 75, Artillery Maidan No. 1, Karachi. The election was held on the 18th of January 1966, in which Abdul Matin was held by the Presiding Officer to have secured five votes and Abdul Khaliq Allahwala to have secured four votes. The latter filed an election petition on the ground that two votes which were counted in favour of Abdul Matin were invalid. The allegation was that the voters had marked the ballot papers so that they might be identified. The Tribunal held that there was no mention of any instance in the election petition of corrupt practices, and that no objection had been taken by Abdul Khaliq Allahwala before the Presiding Officer to the validity of the votes that were counted in favour of Abdul Matin. It was urged on behalf of Abdul Khaliq Allahwala before the Electional Tribunal that two votes which were counted in favour of Abdul Matin were invalid because‑‑ "there were diagonal lines (on them) coming down from column 3 to 6." These lines, it was urged, made the voters identifiable. The contention was explained to the Tribunal, as follows:‑ "The counsel for the petitioner relies on Rule (sic) and says that the ballot paper on which anything, except the particulars required to be given under these rules, is written or marked by the elector can be identified, shall be void, and shall not be counted. The counsel has urged to the effect that the electors in the case of these two ballot papers can be identified because they can tell the candidate that they have made these marks and, thus obtain illegal gratification from him." The Tribunal accepted the contention, and held: "I think there is considerable force in the arguments of the counsel for the petitioner that by drawing these lines on the ballot papers the voters or electors have made identifying marks. Bearing these factors in mind I accept the petition of Abdul Khaliq Allahwala and declare the election of Abdul Matin to be void."

3. The facts of Petitions Nos. 153 and 168 are that Malik Muhammad Bashir and Abdul Majid were candidates for the chairmanship of Union Committee No. 56, Ramaswamy, Karachi. The election was held on the 18th of January, 1966. 1n all seventeen votes were cast. Out of them, nine purported to be in favour of Abdul Majid and eight in favour of Malik Muhammad Bashir. One vote, which purported to be in favour of Abdul Majid, was held by the Presiding Officer to be invalid because there were two cross‑marks on it against the name of Abdul, Majid, one in the column in which such a cross‑mark was meant to be made and one in the column in which the serial number of the candidate was written. As a result .of exclusion from consideration of this ballot paper, the Presiding Officer came to the conclusion that both the candidates had secured equal number of votes. In these circumstances he had, under sub‑rule (5) of Rule 5 of the West Pakistan Basic Democra cies (Election of Chairman) Rules, 1960, to draw lots. The Presiding Officer, therefore, proceeded to comply with this provision by tossing a coin to find out as to which candidate would win. The toss turned out to be in favour of Malik Muhammad Bashir who was declared to be the elected candidate. Abdul Majid questioned this result of the election by filing an election petition which was accepted. The Tribunal held the excluded ballot paper to be valid on the basis of the following argument: "There is no specific rule to the effect that if there is an extra cross‑mark in some other column not meant for the crossing of marks, would invalidate the ballot paper. Besides, the intention of the voter is absolutely clear . . . . . I do not think that any voter with a grain of common sense in him would deliberately resort to identifying devices which might subject his ballot paper to serious doubt or dispute. Hence the marking appears to have been done by some illiterate parson who perhaps wanted to make it doubly sure that ho voted for the right person." The method of drawing lots by tossing a coin was rightly held by the Tribunal to be invalid. The Tribunal has observed in this respect, as follows:‑ "The second objection in this case is that a coin was tossed by the Presiding Officer in order to meet the requirement of the drawing of lots as laid down in the Rules. The words "drawing of lots" have not been defined in the Rules, but the dictionary meaning, as given in the Chambers Twentieth Century Dictionary, is as follows:‑ "To draw a set alike in appearance in order to reach a decision." It is obvious that the tossing of coin does not absolutely fulfil this requirement." The final conclusion of the Tribunal is as follows:‑ "However, so far as the objections with regard to rejecting the ballot paper on the ground of two crosses and the drawing of the lots are concerned, I feel that the Presiding Officer has committed material irregularities which have vitiated the proceedings. Bearing these facts in mind I accept the petition of Abdul Majid, set aside the decision of the Presiding Officer and direct that election be deemed as void."

4. Malik Muhammad Bashir has filed the constitutional petition bearing No. 153 of 1966 against the above decision of the Tribunal with the object that the order be held to be without lawful authority and of no legal effect so that his own election may remain undisturbed. Abdul Majid, on the other hand, has filed the constitutional petition bearing No. 168 of 1966 with the object that he may be declared to be the duly elected Chairman of the Union Committee.

5. As stated earlier, the point for decision in Petitions Nos. 130 and 153 of 1966 is common. It is to be seen whether the marks described above, owing to which certain ballot papers are questioned, invalidate we ballot papers or not. The views taken by Mr. Sayed Durbar Ali Shah, Commissioner of Karachi, as the Election Tribunal in the two petitions have been criticised before us as inconsistent. In Petition‑ No. 130 of 1966 the diagonal lines have been held to be capable of making .the ballot papers identifiable and, therefore, objectionable; but to Petition No. 153 of 1966 the additional cross‑mark has been held to be unobjec tionable on the grounds that there is no specific rule against it and that the intention of the voter is "absolutely clear".

6. There is nothing in the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, with respect to the invalidating effect of any mark lade on ballot papers. Thus tire view taken by Mr. Syed Durbar Ali Shah in Petition No. 153 of 1966 is correct in this respect.

7. He has, however, accepted the objection to the diagonal lines that appear on ballot papers in Petition No. 130 of 1966 on the analogy of the provision contained in sub‑rule (1) of Rule 47 of the West Pakistan Basic Democracies Election Rules, 1959. That sub‑rule is as follows:‑ "Any ballot paper which does not bear the initials of the Polling Officer or on which is written or marked anything, other than the particulars required to be given under these Rules, by which the elector can be identified, shall be void and shall not be counted." Mr. Ghulam Ali supplemented the above analogy by referring to section 38(2)(b) of the National and Provincial Assemblies (Elections) Act, 1964, and section 45(l)(b) of the Electoral College Act, 1964. The relevant part of section 38 is as follows:‑ "The Returning Officer shall reject a ballot‑paper, hereinafter referred to as `rejected ballot paper', recording thereon the fact of such rejection if it bears. (a) . (b) any mark by which the elector can be identified." The relevant part of section 45 is as follows:‑ "Immediately after the close of the poll, the Presiding Officer shall . . . . . count toe ballot papers . . . . . excluding the invalid ballot papers that is to say, the ballot papers . . . . . (a) .. (b) on which anything is marked or written by the voter by which he can be identified."

8. The above provisions, on which reliance has been placed before us by way of analogy, leave no doubt that the foundation of any objection under them must be the identifiability of the voter by reason of the mark to which objection is taken. It is a question of fact as to whether the voter can be so identified or not. This fact must be established. The Supreme Court has upheld the view expressed by Mr. Justice Sardar Muhammad Iqbal as a Member of the Election Commission in Mian Jamal Shah's case (P L D 1965 Jour. 89), that the evidence necessary for establishing this fact amounts to producing proof of a pre‑arrangement that would lead to the identification of the voter. The learned Member had taken the view that proof of pre‑arrangement was necessary, and that such proof, if produced, had the effect of establishing a corrupt practice. The Supreme Court has upheld this view (Jamal Shah v. Election Commission) (P L D 1966 S C 1) as follows:‑ "Earlier in this judgment I have also given my reasons for thinking that the member was right in his view that the matter- fell to be decided by the Election Tribunal as it involved a corrupt practice, which he could not enquire into. The latter view is not without support from earlier cases. In the All‑India Reporter 1955, Notes of Unreported cases, volume 2, entry No. 5798 furnishes a short report of a decision of an Election Tribunal in the year 1954, in the case of Ram Singly v. Hardit Singh. In that case, at the counting of the votes, a rupee‑note was found attached to one of the ballot papers and it was held that there was no rule under which such a vote could be invalidated. In a more recent case before the Indian Supreme Court, reported as Dr. Anup Singh v. Abdid Ghoni A I R 1965 S C 815 there will be found a valuable discussion of the nature of marks on ballot papers which would render them invalid for the reason that the electors would thereby be identified. The following passage from that judgment would appear to support the view of the Member to a considerable extent :‑ "But the words used by the Legislature are 'any mark or writing by which the elector can be identified' and this, in our opinion, implies that there should be something more than a mere possibility of identification, before a vote can be invalidated. This may happen when some pre‑arrangement is either proved or the marks are so many and of such a nature that an inference of pre‑arrangement may be safely drawn without further evidence'." In this case there is no proof of pre‑arrangement, therefore, the requirements of the three provisions on which reliance has been placed cannot be said to have been fulfilled. There is an additional weakness in the argument. It is that, as pointed out above, different provisions from those on which reliance has been placed are applicable in this cane and the applicable provisions contain no reference to any extra marks that may be found on the ballot papers. Thus the analogy is itself irrelevant.

9. Mr. S. M. Sohail advanced the argument that, in terms of sub‑rule (3) of Rule 5 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 (quoted above), the voter had to make "a cross‑mark on the ballot paper against the name of the candidate" for whom he wished to vote. He emphasised the words "a" and "against" to contend that any mark other than a cross‑mark or more cross‑marks than one, contravened the provision. His point was that the additional cross‑mark and the diagonal lines, which were the subject of objection in these cases, invalidated the ballot papers, and that this was a sufficient ground in terms of sub‑rule (2) of Rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, for holding the election to be void because the sub‑rule, according to counsel, is expressed in wide language. It is as follows:‑ "The Controlling Authority may ..uphold the election of the Chairman, or declare the election as void for any material irregularity, or any sufficient reason to be recorded" This argument was answered by Mr. Faruqui by referring to Khanna's Law of Elections in India and Burma (1937 Ed.) at page 162, and to Schofield's Parliamentary Elections, at pages 379‑384. 1n both of these books reliance has been finally placed on the famous case of woodward v. Sarsons (1875 L R 10 C P 748). Four questions were discussed in it. They were as follows‑‑ "The questions raised for decision seem to be, first, what is the true statement of the rule which an election may be avoided by the common law of Parliament. Secondly, is the present case brought within the rule? thirdly, whether a breach of the ballot Act can as such be ground for avoiding an election? fourthly, if yes; can this election be avoided?" The entire discussion of the first question and a part of the discussion of the third question are relevant for the present purpose. The outline of the argument which has been explained under the first question can be set out in the language of Lord Coleridge, C. J., who decided the case as follows:‑ "As to the first, we are of opinion that the true statement is that an election is to be declared void by the common law applicable to Parliament elections if it was so conducted that the tribunal which is asked to avoid it is satisfied, as a matter of fact, either that there was no real election at all or that the election was not really conducted under the subsisting election laws." The above statement of the relevant common law succinctly bring out the primary idea that the Tribunal is to be satisfied as a matter of fact of one out of two possible results. Those results might be that either there was no real election at all or that the election was really not conducted under the subsisting laws. The learned Judge has explained tile circumstances in which there is no real election, as follows:‑ "This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or by being prevented from voting by want of the machinery necessary for so voting, as by polling stations being demolished or not opened, or by other of the means of voting according to law not being supplied, or supplied with such errors as to render the voting, by means of them, void or by fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mishaps." The learned Judge has also explained the circumstances in which an election is to be considered to have not been really conducted under the subsisting laws. The explanation is as follows:‑ "As to the second, i.e. that the election was not really conducted under the subsisting election laws at all, though there was an election in the sense of there having been an election by the will of the constituency, we think that the question must in like manner be whether the departure from the prescribed method of election is so great that the tribunal is satisfied as a matter of fact that the election was not an election under the existing laws. It is not enough to say that great mistakes were made in carrying out the election under those laws; it is necessary to be able to say that either wilfully or erroneously the election was not carried out under those laws, but under some other method." The above statement of law and its elucidation are admirable as well as of obvious help in this case, as shall be explained thereafter.

10. The relevant part of the discussion of the third question by the learned Judge is al follows: "It is said section 13, though it is in a negative form, assumes, as an affirmative proposition, that a non‑compliance with the rules or any mistake in the use of the forms would render an election invalid, unless it appeared that the election was conducted in accordance with the principles laid down in body of the Act, and that such non‑compliance or mistake did not affect the result of the election. If this be closely examined, it will be found to be equivalent to this, that the non‑observance of the rules or form which is to render the election invalid, must be so great as to amount to a conducting of the election in a manner contrary to the principle of an election by, ballot, and must be so great as to satisfy the tribunal that it did affect or might have affected the majority of votes; or in other words, the result of the election . . . . . It follows that, for the same reasons which prevent us from holding that this election was void at common law, we must hold that it is not void under the statute." The above discussion really takes us back to the discussion of the first question. The fundamentals of that discussion 'are to be found in the outline of the argument, which has been reproduced above in the preceding paragraph. The absence of a real election has been elucidated by pointing out that the quality and quantity of mistakes in holding an election under the subsisting laws does not establish that the election was not held under them because:‑ "It is necessary to be able to say that either wilfully or erroneously the election was (not only) not carried out under those laws, but (was carried out) under some other method." This proposition leaves the argument of Mr. S. M. Sohail high and dry because, in this case, it is not possible to say that the election was not conducted under the subsisting laws; much less is it pertinent to say that it was conducted under some other method.

11. It is true that, in terms of sub‑rule (2) of Rule 7, an election can be declared by the Controlling authority to be void "for any material irregularity or any sufficient reason". But these expressions are to be understood and appreciated against the background of the real purport of the provision which is that an irregularity to be material add a reason to be sufficient for declaring an election void should be qualitatively and quantitatively enough to bring about that result. In this respect, Mr. S. M. Rata was right in pointing out that sub‑rule (3) of Rule 5 is not applicable to the marks to which objection is taken but it merely requires that a voter should make a cross‑mark on the ballot paper against the name of the candidate for whom he wishes to vote. This provision is complied with if the voter makes such a mark. Any other mark which he may mike on the ballot paper, is outside the scope of the sub‑rule because it does not lay down that no other mark may be made, apart from and in addition to a cross‑mark made against the name of the candidate. The affirmative provision has been complied with by the voters in these cases. If the extra cross‑mark and the diagonal lines are attacked in terms of sub‑rule (2) of ‑Rule 9 as material irregularities or sufficient reasons to avoid the election, than the argument will not at all be supported by the positive provision which merely prescribes the manner of voting but will have to be substantiated independently by establishing materiality or sufficiency. The test provided in this behalf by the common law has been pithily expressed by Lord Coleridge, C. J. in the observations which have been quoted above. According to that test; the objectors have to prove "that election was not really conducted under the subsisting election laws", and that such non‑observance cannot be proved by merely proving mistakes, however great they may be in carrying out those laws, but by establishing that the election was held under some method other than that which is provided by those laws. In the cases which are under our consideration now, the additional cross‑mark and diagonal lines cannot be said, even by stretching the point, to lead anywhere to the conclusion that the election was not held under the subsisting laws; therefore, the argument o Mr. S. M. Sohail cannot be sustained.

12. Lastly, we come to the stand taken by Mr. Faruqui, on behalf of the petitioner in Petition No. 168/ 1966, that his client be declared to be the duly elected Chairman. This relief is to be examined in term of sub‑rule (5) of Rule 5 and sub‑rule (2) of Rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960. Sub‑rule (5) applies to the Presiding Officer, and sub‑rule (2) to the Controlling Authority as the Election Tribunal. The Presiding Officer is bound under sub‑rule (5) to declare a candidate who has obtained the highest number of votes to be the elected Chairman, but the Controlling Authority could, up to the 26th of February 1966, only uphold the election of a Chairman or declare it void for a material irregularity or sufficient reason. In this case, the election petition of Abdul Majeed, petitioner in Petition No. 168 of 1966, was disposed of on the 16th of February 1966, therefore, on that date, the Election Tribunal had no autho rity to declare Abdul Majeed to be the elected Chairman. Such authority has been conferred by virtue of an amendment of sub‑rule (2) bf Rule 7, made on the 24th of February 1966, and gazetted on the 26th of February 1966. In these circum stances, we are not in a position to take the view that the Controlling Authority could, on the date when he made the order, lawfully declare Abdul Majeed to be the elected Chairman. Mr. Faruqui has informed us that an application had been made after the amendment for review of the order of the Controlling Authority. That application could not succeed and was, in our view, rightly dismissed. The order of the Controlling Authority is thus unassailable.

13. Here, we may note that Abdul Majeed's prayer in Petition No, 168 of 1966 is not that the Controlling Authority be directed to declare him as the elected Chairman but, on the contrary, he desires this Court to declare him to be the elected Chairman. Such exercise of authority by this Court is not contemplated by law as has beets held by the Supreme Court in Azmat Ali v. Chief Settlement & Rehabilitation Commissioner (PLD1964SC260) and Akbar Ali v. Razi‑ur‑Rehman (PLD1966SC492). The situation would have been different if we were dealing with an order of the Presiding Officer and had reached the conclusion that Abdul Majeed had secured the majority of votes. In this case the order of the Presiding Officer has been set aside by the Controlling Authority whose judgment is sound.

14. In final conclusion of the above discussion, Petition No. 130 of 1966 is accepted and the order made by the Controlling Authority, dated the 16th of February 1966, as the Election Tribunal is held to be without lawful authority and of no legal effect. As a result of this finding, the order of the Presiding Officer stands undisturbed. Petitions Nos. 153 and 163 of 1966 stand dismissed. K.B.A. Petition accepted.