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Constitutional Petition No. D‑27 and C. P. No. 124 of 1980, decided on 26th January, 1981.
‑‑ R. 40 (4), cl. (c) (ii)‑‑Excessive ink‑Marking ballot‑paper with Excessive ink on petitioner's symbol on ballot paper‑No allegation or evidence of any manipulation against petitioner‑Held: Tribunal arrived at conclusion of manipulation on part of petitioner without any rational basis, and in arbitrary manner.
‑‑‑‑ R. 40 (4), cl. (c) (i)‑.Interpretation‑On petitioner's ballot‑paper, other stamp marks also appearing on some redundant symbols not allocated to any candidate‑‑Tribunal not treating such ballot papers as valid‑Narrow interpretation placed upon sub‑clause (ii) of cl. (c) of sub‑rule (4) of r. 4) that any other mark besides official mark and prescribed mark would render ballot‑paper invalid held, not acceptable ‑Held further, if ballot‑paper unambiguously reveals intention of elector, presence of other marks will not render vote invalid and it will be counted in favour of candidate for whom it appears to have been cast.‑[Interpretation of statutes].
The Law of Elections and Election Petitions in India by Nanak Chand Pandit and Gyan Chand Mathur, 2nd Edn. (1957), p. 134; Rogers on Elections, Vol. 11, 20th Edn., p. 101. 104 ; Woodward v. Sorsons (1875) L R 10 C P ; Phillips v. Goft (1886) 17 Q B D 805 and Abdul Razik Khan v. Abdul Aziz Khan P L D 1975 Jour. 41 ref.
‑‑ Art. 199‑Question of fact‑Determination of ‑ Five ballot papers marked with rubber stamp different from prescribed one Respondent No. 1 contending such ballot‑papers not valid‑No such issue raised before Tribunal‑ No opportunity provided to petitioner to contest issue and Tribunal not giving any finding on it‑Held, respondent No. 1 cannot be allowed to support decision of Tribunal on grounds other than ones on which Tribunal rejected ballot‑papers‑ Held further, question raised being question of fact and inquiry to determine cannot be embarked in Constitu tional jurisdiction.
‑‑ Art. 199‑Other adequate remedy‑Petitioner having no remedy under the statute against impugned order passed by Tribunal‑Held, jurisdiction under Art. 199 clearly available to petitioner.
Muhammad Sadiq v. Muhammad Nawaz 1980 C I. C 952 distinguished.
Khalilur Rehman for Petitioner.
Ghiasuddin Baloch for Respondent No. 1.
Dates of hearing : 12th and 13th January, 1981.
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