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West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, r. 7(2),

(3)‑Crosses on ballot papers marked by voter as " f " and "of"‑Election petition not alleging any corrupt practice by way of disclosure of voters' identity to successful ‑ candidate by previous arrangement Election Tribunal suggesting only a "possibility" of identifica tion without coming to a "finding" that such crosses were placed by "pre‑arrangement"‑Ballot papers in such circumstances, held, could not be invalidated by Election Tribunal, or election set aside ‑Charge of corrupt practice a quasi‑criminal charge Benefit of doubt to go to accused person‑Election not void for any "material irregularity" or other "sufficient reason". Mehar Allah Yar v. Syed Hasan Jehanian Shah Gardezi P L D 1961 Lah. 247; Muhammad Saeed and others v. Election Petitions Tribunal West Pakistan and others P L D 1957 S C (Pak.) 91; Dr. Anup Singh v. Abdul Ghani A I R 1965 S C 815 and Mian Jamal Shah v. Election Commission and others P L D 1966 S C 1 ref.

Aftab Husain and Sajjad Hussain for Petitioner.

Ch. Muhammad Iqbal for Respondent No. 1.

Date of hearing: 7th March 1967.

By this petition under Article 98 of the Constitution of Islamic Republic of Pakistan Chaudhari Muhammad Sharif prays for a declaration that the order of the Election Tribunal, dated the 5th of November 1966, setting aside his election as Chairman of Union Committee No. 16, Kumhar pura, Lahore, is without lawful authority, and of no legal effect.

2. On the 18th of January 1966, in a meeting of the Union Committee No. 16, Kumharpura, Lahore, for the election of its Chairman, the contest lay between Ch. Muhammad Sharif petitioner and Ch. Ghulam Farid, respondent No. 1. They both secured equal number of votes, and as a result of a lot, which had to be drawn, the petitioner was declared successful as Chairman. The respondent No. 1 filed an election petition before the Deputy Commissioner as Controlling Authority challenging the election of the petitioner on the grounds that he had reasons to believe that some votes polled in favour of the petitioner were not properly marked and thus merited rejection, and secondly that as the counting of votes was not by the Presid ing Officer but by his Reader, there was no count in the eye of law. These grounds did not find favour with the Election Tribunal but it set aside the election of the petitioner on the ground that two of his voters had put the cross as f ' and 'ofo' in their votes and that though this may not have been done with

the idea of identification or by a previous arrangement, the possibility of this having done for the purpose of identification could not be ruled out.

3. The objection of the petitioner has considerable weights that as the respondent No. 1 did not challenge the election of the Petitioner on the only ground, which found favour with the Election Tribunal, his election should not have been set aside. We find from the election petition that it was never alleged by the respondent in his election petition that two of the ballot papers were marked by way of pre‑arrangement or that by reason of the marks the identity of the votor could be discovered. The Election Tribunal should not, therefore, have based its decision on this ground.

4. The West Pakistan Basic Democracies (Election of Chair man) Rules, 1960 (hereinafter called the Rules) do not have any provision corresponding to rule 47(P L D 1961 Lah. 247) of the Basic Democracies Election Rules, which provides that any ballot paper, which does not bear the initials of the Presiding Officer or on it is written or marked anything other than the particulars required to be given under these Rules by which an elector can be identified shall be void and shall not be counted. This rule is provided for the guidance of the Returning Officers in the B. D. elections and cannot be resorted to by the Presiding Officer in the election of Chairman. For the latter, sub‑rule (4) of rule 5 of the Election of Chairman Rules, provides that if there is any doubt about the marking of a ballot paper, the Presiding Officer may decide the issue after holding such summary inquiry at the spot as may be necessary. While the Presiding Officer may decide a dispute about the marking of a ballot paper, the Controlling Authority may, under sub‑rule (3) of rule 7 of the Election of Chairman Rules, after such inquiry as it or he may consider it necessary, uphold the election or award any declaration prayed for in sub‑rule (2) for any material irregularity or other sufficient reasons to be recorded. "material irregularity" means under the rules any non‑compliance with the povisions of the order or these rules, which materially affects the result of an election. "Any other sufficient reasons to be recorded" has been defined in Mehar Allah Yar v. Syed Hasan Jehanian Shah Gardezi (1) as a reason, which is acceptable to a reasonable person as of sufficient importance and weight to justify annulment of the election. This may include bribery, corrupt practice, undue influence or personation.

5. The Election Tribunal did not come to any finding that the crosses were placed on the ballot papers as and 'for by pre‑arrangement, but merely held that the possibility of this having been done for the purposes of identification could not be ruled out. The marking of a ballot paper by previous arrange ment to disclose one's identity to the candidate is a corrupt practice and as appears from Muhammad Saeed and others v. Election Petitions Tribunal, West Pakistan and others (P L D 1957 S C (Pak.) 91) a charge of corrupt practice which has to be specifically pleaded in the election petition is a quasi‑criminal charge, and the weight of authority in the corpus of election law is to the effect that such an allegation must be treated for the purposes of evidence on the principles applicable to the trial of criminal charges. One such principle is that in case of a doubt raised upon the evidence, the benefit of doubt must go to the accused person. The Election Tribunal instead of giving the benefit of doubt to the petitioner, gave it to the respondent and found the possibility of corrupt practice where the respondent had to prove the commission of a corrupt practice and where the respondent had not even alleged it to be so. It has been observed in Dr. Anup Singh v. Abdul Ghani (AIR1965SC815) and this was quoted with approval by the learned Chief Justice of Pakistan in Mian Jamal Shah v. Election Commission and others (PLD1966SC1) that there should be something more than a mere possibility of identification before a vote can be invalidated. This may be done when some pre‑arrangement is either proved or the marks are so many and of such a nature that inference of pre‑arrange ment may be safely drawn without further evidence. This is not the case here. A mere possibility of the cross mark having been put as and for' could not be used to invalidate the two ballot papers cost in favour of the petitioner.

6. The grounds urged by the respondent for having the election of the petitioner invalidated not having been accepted by the election Tribunal, the election petition should have been dismissed. The order of the Election Tribunal declaring the election of the petitioner, as void cannot be supported in law. It is declared to be without lawful authority and of no legal effect.

7. The petition is, therefore, accepted, but there will he no order as to costs.

A. H. Petition accepted.

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