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Constitutional Petition No. D‑203 of 1984, decided on 16th May, 1984.

‑‑ Rr. 35 (1), (2) & 48 (4)‑Provisional Constitution Order (1 of 1981), Art. 9 ‑ Presumption under Rules that Presiding Officer satisfied himself as to identity of person receiving ballot‑paper‑Not conclusive but rebut table‑ Petitioner declared elected as Councilor ‑Election Tribunal on an election petition by respondent unseated petitioner on ground of casting his vote twice‑Petitioner challeng ing order of Election Tribunal in writ petition on ground that peti tioner's denial on oath of allegation of casting vote twice, in absence of any evidence in rebuttal, should have been believed by Tribunal- Contention held, was not without force‑Rule 35 raised presump tion that before issuing ballot‑paper to an elector, Presiding Officer satisfied identity of such person‑Rule 48 (4) also raised presump tion that a counterfoil having a number was prima facie evidence that elector whose vote was given by that ballot‑paper was the elector who had on electoral roll the name as was written on counterfoil‑Presumption, held further, provided for under any law. unless it was made conclusive, was a rebuttable presumption -Presumptions under rr. 35 & 48, held also, were not conclusive and could be rebutted by a person affected‑Statement of petitioner on oath that he had not cast a certain vote stood unrebutted by respondent‑Election Tribunal's order was thus without lawful authority.

‑‑Art. 9‑Writ jurisdiction, scope of‑Tribunal deciding a matter without any evidence or by misapplying law‑Superior Courts, held, have jurisdiction to correct such error.

Raja Qureshi for Petitioner.

Khalid Habibullah and Iqbal Khan for Respondents.

Date of hearing :16th May, 1984.

‑This petition is directed against the order, dated 22nd February, 1984, passed by respondent No. 29.

2. The brief facts leading to the filing of the above petition are that the petitioner alongwith respondents Nos. 7 to 27 contested election from K. M. C. Unit No. 123, Orangi Town, Karachi, in the elections held on 29th September, 1983. It seems that after the final counting it was found that the petitioner had secured 543 votes, whereas the respondent No. 7 had obtained 410 votes. The votes obtained by the other res pondents, who contested the above election are not on record and are not material for the purpose of the present petition as the second highest votes were obtained by respondent No. 7. It further seems that after the above election result, the petitioner was notified as a councilor. He started functioning as such. The respondent No. 7 filed an election petition, namely, Election Petition No. 134/83, in which inter alia various allegations of illegal practices were made. It was also averred that the petitioner's name appeared on the electoral roll at two places, namely, at S. No. 1960 of Polling Station No. 1 and at S. No. 9530 at Polling Station No. 3. It was averred that the petitioner had factually cast both the above votes ‑ himself and thereby committed illegal practice warranting non‑seating of him. The above election petition was con tested by the petitioner. The learned Election Tribunal framed the following four issues:‑

(1) Whether this Tribunal has jurisdiction to entertain this petition 7

(2) Whether the Election Petition is liable to be dismissed, because of failure of compliance with the rules 65, 66 and 67 of the Sind Local Council (Election) Rules, 1979.

(3) Whether any corrupt and .illegal practices or acts have been committed for conduct of the polls in K. M. C. Unit No. 123. If so to what effect

(4) What should the order be

Respondent No. 7 examined himself in support of the petition, whereas the petitioner examined himself. The learned Election Tribunal after bearing the parties allowed the above petition by the aforesaid impugned order, dated 22nd February, 1984, holding that factually the petitioner had cast vote twice and; therefore, rendered himself liable to be non‑seated. The learned Election Tribunal after non‑seating the peti tioner ordered the re‑election to the above K. M. C. Unit No. 123. It is a common ground that the above by election is fixed on 18th May, 1984. The petitioner being aggrieved by the above order has filed the present petition.

3. In support of the above petition Mr. Raja Qureshi, the learned counsel for the petitioner, has urged that since the petitioner had denied on oath the fact that he cast his vote appearing at S. No. 9530 at Polling Station No. 3, in the absence of any evidence in rebuttal the learned Election Tribunal could not have held that the petitioner was guilty of illegal practice.

On the other hand, Mr. Khalid Habibullah, the learned counsel for respondent No. 7 has contended as follows

(i) That in view of rules 35 (2) (c) and 48 (4) of Sind Local Council (Election) Rules, 1979 (hereinafter referred to as the Rules), the presumption was that the Presiding Officer must have satisfied himself as to the identity of the person to whom he had issued the ballot‑paper at S. No. 9530 and, therefore, this presump tion read with the production of the original record in terms of rule 48 (4) was sufficient to establish the illegal practice.

(ii) That this Court cannot sit as a Court of appeal on a question of fact and since it is an admitted position that the Election Tribunal was a Court of competent jurisdiction it could have decided rightly or wrongly.

4. In order to appreciate the respective contention No. 1 of the learned counsel for the parties, it may be advantageous to reproduce hereinbelow rule 35 (1) and (2) and Rule 48 (4) of the Sind Local Council (Election) Rules, 1979, which read as follows :‑

35 (1) Where an elector presents himself at the Polling Station to vote, the Presiding Officer shall, after satisfying himself about the identity of the elector, issue to him a ballot‑paper in Form X.

(2) Before a ballot‑paper is issued to an elector

(a) ... ... ... ... ... ...

(b) ... ... ... ... ... ...

(c) A mark shall be placed on the electoral roll against the number and name of the elector to indicate that a ballot‑paper has been issued to him.

48 (4) The production from proper custody of a ballot‑paper purporting to have been used at an election, and of a counterfoil having a number, shall be prima facie evidence that the elector whose vote was given by that ballot‑paper was the elector who had on the electoral roll the same number as was written on the counterfoil."

It may be noticed that sub‑rule (1) of rule 35 imposes an obligation on the part of the Presiding Officer to satisfy himself as to the identity of an elector before issuing a ballot‑paper in Form X. It may further be noticed that under clause (c) of sub‑rule (2) of rule 35, it has been provided that the Presiding Officer upon issuing a ballot‑paper shall put a mark. Whereas sub‑rule (4) of rule 48 provides that the production front proper custody of a ballot‑paper purporting to have been used at the election and of a counterfoil having a number, shall be prima facie evidence that the elector whose vote was given by that ballot‑paper was the elector who bad on the electoral roll the same number as was written on the counterfoil.

5. We are inclined to hold that the above rule 35 of the Rules raises a presumption to the effect that the Presiding Officer must had satisfied himself as to the identity of an elector before issuing a ballot‑paper and that upon issuing of the ballot‑paper he had marked the electoral roll. Furthermore, sub‑rule (4) of rule 48 also raises a presumption that a counterfoil having a number shall be prima facie evidence that the elector whose vote was given by that ballot‑paper was the elector who had on electoral roll the name as was written on the counterfoil. It is a well‑settled principle of law that a presumption provided for under any law unless it is made conclusive is a rebuttable presumption. In the present case the above rules do not provide that the presumptions provided for are conclusive and cannot be questioned. In this view of the matter, the above presumptions could have been rebutted by the person affected by. The petitioner has come into the witness‑box and has made statement on oath that factually he had not cast vote against the vote appearing at S. No. 9530 of the electoral roll. No evidence was brought in rebuttal to the above statement. As a matter of fact, the respondent No. 7 in reply to Court question has stated that "I cannot give any specific proof to prove that the same persons have voted twice at Polling Stations Nos. I and 3 whose serial numbers are shown in the statement Exh. 10 have no evidence to prove that all the double votes have been cast at the instance of Syed Irsbad Ahmed." In this state of evidence, it was appropriate for respondent No. 7 to have produced some evidence to pinpoint that factually petitioner was the person who had cast vote at S. No. 9530. This could have been done either by getting the thumb -impression referred to the Thumb/Finger Print Expert or respondent No. 7's agent or the Presiding Officer could have been produced to prove factually that the petitioner was the person who had cast vote against the above serial number.

6. As regards the second contention of Mr. Khalid Habibullah, the learned counsel for respondent No. 7, that the Election Tribunal being a Court of competent jurisdiction could decide rightly or wrongly, it will suffice to observe that it is a well‑settled principle of law by now that if a tribunal decides the matter without any evidence or misreading the evidence or misapply the law, the superior Courts have the jurisdiction

to correct such error.

7. We have noticed that respondent No. 7 has raised a number of pleas as to the alleged illegal practices in his election petition, but the learned Election Tribunal has decided the petition on the basis of the above one illegal practice allegedly committed by the petitioner, namely, casting of vote twice. We are inclined to remand the case to the Election Tribunal with the direction to allow the parties to lead evidence on all the points raised in the election petition if they so wish to lead and decide the election petition afresh in the light of the above observations within a period of three months from the date of the receipt of the copy of this order.

8. We, therefore,‑allow the above petition with no order as to costs and declare the impugned order, dated 22nd February, 1984 as being without lawful authority and of no legal effect, but remand the case to the learned Election Tribunal in the above terms. Respondent No. 2o i.e. the Election Authority is restrained from holding fresh election in pursuance of the above impugned order which has been set aside by this Court. The petitioner shall continue to act as a councilor till the time he is again unseated by the Election Tribunal. The office is directed to return the record to the Election Tribunal within one week.

M. H. A. ‑‑‑‑ Case remanded.

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