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Election Petition No. 45 of 1985, decided on 18th February, 1986.

---S. 55(3)--Election petition--Documents annexed with petition neither signed nor verified by petitioner--Documents however making no additional allegations of a substantive character or furnishing better particulars of allegations made in petition, so as to give them status of substantive grounds to petition itself--Such documents, held, would not require signatures of petitioner or verification.

P L D 1967 S C 486 rel.

---Ss. 33(5)(b) & 37(4)--Non-compliance of S. 33(5)(b)--Effect- Returning Officer can reject a ballot-paper if it bears no prescribed mark--Any mark placed wholly or partially with space or horizontal compartment below that of a candidate would be deemed to be a mark in his favour--Petitioner claiming that a majority of his votes were declared invalid on grounds that stamps were affixed below space or horizontal compartment reserved for petitioner--Mere fact that marks were not totally within but outside horizontal space or compartment allotted to petitioner, held, would not mean that voters had not voted for petitioner--Non-compliance of S. 33(5)(b) 'does not necessarily result in rejection of ballot-papers because legislature has not provided for such a result.

Jamshaid Ahmad Khan v. Ghulam Hussain and others P L D 1986 Jour. 34; Jamal Shah v. Nasrullah Khan P L D 1965 Jour. 89 and Irshad Ahmad v. Shafi Muhammad 1981 C L C 1332 ref.

P L D 1985 Jour. 89; P L D 1966 Jour. 34; 1981 CLC 1332 and (1907) 2 K 8 313 rel.

--S. 33 (5) (b)--Election petition--Petitioner -raising no objection about rejection of his votes either before Polling Officer, Returning Officer or Election Commissioner--Petitioner, held, not deprived of legal remedy available through Tribunal--Objection even if not raised before forum below could be raised before Tribunal.

---S. 33(5j---Election---Ballot-papers--Secrecy---Respondent contending that petitioner might have called upon his voters to affix marks in his favour in horizontal spaces or compartments below those where his name and symbol were printed in order that he could verify fact that they had voted for him and that as such petitioner had violated secrecy of ballot--No names to witnesses given in written statement who might have heard said conversation or particulars as to place where and dates when they heard same--Contention, held, vague and without force.

---S. 33(5)--Election--Recounting of votes--Election Tribunal, held, competent to order recounting of votes wrongly declared invalid--No provision of law tied hands of Tribunal to prevent it from doing complete justice.

Raja Muhammad Anwar and Ch. Muhammad Ashraf Azeem for Petitioner.

Aitzaz Ahsan for Respondents.

Arguments have been heard on the following issues:--

(1) Whether the provisions of section 55(1) of the Representation of the Peoples Act, 1976, have not been complied with by the petitioner

(2) Whether the affidavits of the petitioner's witnesses have not been verified according to law If so, its effect

(3) Whether for the reasons mentioned in pare. 50 clauses (a) and (b) of the petition, the petitioner has made out a case for recount O.P.P.

2. 1 will take up issues Nos. I and 2 together, as arguments have been addressed jointly on these issues. On behalf of respondent No 1, it is submitted that documents marked Annexures A, 13/1 and B/2, G/1 to G/3, H, H/1, I, J. . L, M/1 and M and 56 affidavits (which do not bear any marking) have neither been signed nor verified by the petitioner, that documents Annexures C/1 to C/5 have been signed by the petitioner, but have not been verified and that documents marked D, D/1 to D/26, E, F and F,/1, have been verified, but have not been signed by the petitioner. It is submitted that as all the documents annexed with the petition have to be signed by the petitioner and verified ib the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings, as required by subsection (3) of section of 55 of the Representation of the Peoples Act, 1976, and as the same have not been so signed and verified, the petition should be dismissed under section 63 of the said Act. On behalf of the petitioner, it is submitted that the documents referred to by respondent No. stand listed in the list of documents furnished with the petition, which list has been verified on oath by the petitioner, and that this constitutes compliance of the provisions of section 55(3) of the Act. It is further submitted that all of the documents referred to by respondent No. 1 not being annexures of any substantive character making any additional allegations, they do not constitute "Schedules" or "Annexure" as referred to in subsection (3) of section 55 of he Act. In this connection, the learned counsel has referred to S.M. Ayyub's case P L D 1967 S C 486.

3. The Supreme Court in S.M. Ayyub's case (supra), whilst deciding whether certain documents annexed with the petition could be treated as "Schedules" or "Annexures" as mentioned in subsection (3) of section 55 of the National and Provincial Assemblies (Elections Act, VII of 1964, held that the words "Schedule or Annexure", as appearing in the said subsection, mean such a schedule or annexure as either made an additional allegation of a substantive character or furnished better particulars of the allegation made in the petition, so as to give it the status of a substantive ground itself. Since the documents under consideration were not of that character, it was held the signatures and verification, as required by that subsection, were not required. Subsection (3) of section 55 of the Representation of the Peoples Act, 1976, is similar in all respects to subsection (3) of section 59 of the National and Provincial Assemblies (Elections) Act, VII of 1964. Since the documents referred to by the learned counsel for respondent No. 1 apparently make no additional allegations of a substantive character or A furnish better particulars of the allegations made in the petition, so as to give them the status of substantive grounds to the petition itself, they do not require the signatures of the petitioner or verification. Both issues Nos. 1 and 2 are, therefore, decided against the respondent.

4. With regard to issue No. 4, it is submitted on behalf of the petitioner that roughly 3003 votes were declared invalid by the Returning Officer on various grounds and that the majority of them were declared on the ground that the stamps were affixed below the space or the horizontal compartment reserved for the petitioner. It is submitted that the ballot-papers contained seven to eight horizontal compartments. each of which constituted the space where the candidate's name and symbol had to be printed and that since there were only four contesting candidates whose names and symbols were printed in the top four compartments, the last four horizontal compartments remained blank. It is submitted that the name of Mian Ghulam Dastgir Bari, petitioner, and his symbol were printed in the fourth horizontal compartment from the top. It is contended that a large number of voters affixed their marks apparently on the limp dividing the compartment reserved for the petitioner and the blank compartment below, or fully or partially in the blank compartments below. It is submitted that where the whole or more than half of the area of the prescribed mark did not clearly fall within the compartment of the petitioner, it was rejected, which was illegal, as the compartments below being blank, the intention of the voters could not have been other than to vote for the petitioner. In this connection, the learned counsel has referred to Jamshaid Ahmad Khan v. Ghulam Hussain and others P L D 1986 Jour. 34, Jamal Shah v. Nasrullah Khan P L D 1965 Jour. .89 and Irshad Ahmad v. Shafi Muhammad 1981 C L C 1332. In this view of the matter, it is submitted that the petitioner has made out a case for recounting of the votes declared invalid by the Returning Officer, at least in respect of those covered by paras. 5(a) and (b).

5. Learned counsel on behalf of respondent No. 1 had submitted that a voter has to place his mark on the ballot-paper at any place within the space or compartment containing the name and symbol of the candidate of his choice and that where such mark is placed fully within the said compartment or more than half of the area of the prescribed mark appears clearly within that compartment, that ballot-paper can be deemed to have been marked in favour of the candidate of his choice. If the whole of the mark or more than half of the area of the prescribed mark does not appear clearly within the space or compartment containing the name and symbol of the candidate of his choice, it does not constitute a ballot-paper marked in favour 'of his candidate. In this connection, the learned counsel has referred to sections 33(5)(4) and 37(4)(c)(iv) of the Act and rule 1(1) of the Representation of the Peoples (Conduct of Elections) Rules, 1977. It is further submitted that the petitioner had four stags where he could have raised this objection, namely, at the stage of the first counting of the votes before Presiding Officer, second--upon request to the Presiding Officer for a recount, third--at the stage of counting of votes before the Returning Officer and fourth- upon request to the Returning Officer or a recount. It is submitted that the petitioner could also have requested the Election Commission for the recounting of the invalid votes, since no such request was made at any stage, it is submitted that the votes declared invalid should not now be permitted to be re-examined. It is next submitted that the petitioner himself having called upon his voters to affix their marks in his favour in the horizontal spaces or compartments next below those where his name and symbol were printed, in order that he may be able to verify the fact that they had voted for. him, the petitioner had violated the secrecy of the ballot and, therefore, he could not be made to capitalise on the said violation by requesting for a recount of the invalid votes. It is lastly submitted that the Election Tribunal cannot order the recounting of the votes declared invalid, as no such power is available to it under section 46 of the Act, though such a power is available to the Election Commission under section 39 thereof.

6. Arguments on issue No. 4 have been addressed by the learned counsel for the petitioner and the learned counsel .for the contesting respondent as a preliminary issue; both sides not having pressed for the examination of any witnesses in the matter. From the pleadings it is implied and during arguments it was apparent that some; if not all, the votes which were declared invalid, were on the basis that the marks of voters were in the space or the compartment below that of the petitioner.

7. If is true that section 37 of the Act and rule 17 of the Rules call upon the voter to affix the prescribed mark on the ballot-paper at any place within the space or compartment containing the name and symbol of the candidate of his choice and that where the whole or more than half of the area of the prescribed mark appears clearly within that space or compartment, it is deemed to be a mark in favour of such a candidate, but where the whole mark or more than half of the area of the prescribed mark does not appear clearly within that space, the question that arises for determination is whether the voter has voted for the candidate of his choice or not. The dispute in this case is not about the marks which have spilled into the space or horizontal compartment alone that of the petitioner 'and which belongs to Atiq the marks which appear on the line dividing the space or compartment of the. petitioner from that immediately below, which is blank, where more than half of the area of the prescribed marks do not fall within the space or compartment of the petitioner, and all marks fully felling in the blank space or compartment below or those still further down. The answer to this dispute obviously depends upon the question as to what was the intention of the question as to what the voters i.e. whether they wanted to vote for Mian Ghulam Dastgir Bari, petitioner, who had the picture of the "hatchet" or "axe" as his symbol, or whether they were voting for any of the other three contesting candidates. The mere fact that the marks were not totally within, but outside the horizontal space or compartment allotted to the petitioner, would not mean that voters had not voted for the petitioner. The non-compliance of section 33(5)(4) of the Act does not necessarily result in the rejection of the ballot-paper, because the legislature has not provided for such a result. However, under section 36(4)(iii) the Returning Officer can reject a ballot-paper if it bears no prescribed mark, for such is the intention of the law. There is no provision requiring rejection in a case where the mark is not made in the specified space or horizontal compartment. The space is provided only to facilitate the marking. If the candidate places the prescribed mark somewhere outside the space allotted, but his intention is clear that he has voted for a particular candidate and no clash arises with the space of any other contesting candidate, the ballot-paper can be accepted as a valid vote. If any authority is required for this view. Mian Jamal Shah's case P L D 1985 Jour. 89 at page. 93, Jamshed Ahmad Khan's case P L D 1966 Jour. 34, Irshad Ahmad's case 1981 CLC 1332 and Pontardawe Rural District Council's case (1907) 2 K B 313 may be referred. In Jamshed Ahmad's case (supra), there were many candidates, with the result that the ballot-paper was divided by eleven horizontal parallel lines and one line vertically down the middle. The names and the symbols of ten candidates were printed on the right hand column of the ballot-paper, while the names and symbols of two candidates were printed on the left hand column, opposite the names and symbols of two candidates on the right. The remaining eight horizontal compartments on the left hand side appearing against the names and symbols of the remaining eight candidates to its right, including that of the contesting respondent, were blank. Certain marks affixed by the voters in respect of the contesting respondent were found in the blank compartment on the left of that of the contesting respondent. Those votes were counted in favour of the contesting respondent, but the said count was challenged in an election petition. The Election Tribunal held these votes to have been validly counted in favour of the contesting respondent, on the principle that the voters had unambiguously and with clear intent voted for the said respondent. The election petition was, therefore, dismissed. In this view of the matter, any mark placed wholly or. partially within the space or horizontal compartment below that of the petitioner, would be deemed to be all mark in favour of the petitioner.

8. As regards the submission of the contesting respondent that the petitioner had a number of opportunities before the Polling Officer, Returning Officer and the Election Commission to raise the objection which he did not do and, therefore, he should be barred from raising the objection now, the same has no merit,, for there is no legal bar which prevents the petitioner from challening the said votes before the Tribunal. In the first instance, the scrutiny before the Presiding Officer and the Returning Officer were of a summary nature. Second, it appears doubtful that these officers would have travelled outside the strict language of the section and rule to give them the beneficial construction, as given by the superior Courts. Third and last, assuming the petitioner did not raise the objection, it did not relieve these Officers from applying the beneficial construction, which has been the law declared since Jamal Shah's case (supra). The petitioner cannot be deprived of his legal remedy available through the Tribunal for failure to have availed of same before the Officers of the Election Commission. See Rab Nawaz v. The Election Tribunal P L D 1986 Kar. 46. In fact a petition was moved on 3-3-1985 by the petitioner before the Election Commission of Pakistan in Islamabad raising objection to the illegal act of the Polling Officers and the Returning Officer from excluding ballot-papers which bore the marks of the voters in the blank compartment below the one allocated to the petitioner, but the Commission on 31-3-1995 replied back to the State that the petitioner should file an election petition before the Tribunal, so that the matter could be taken up there. In these circumstances, this objection does not stand in the way of the Tribunal deciding whether ballot-papers bearing marks of voters in the space or compartment below that of the petitioner should be counted in favour of the petitioner and, if so, to order the said ballot-papers to be declared valid, after proper recounting.

9. With regard to the submission that the petitioner having himself called upon his voters to affix their marks in his favour in the horizontal spaces or compartments below those where his name and symbol were printed, in order that he could verify the fact that they had voted for him and that, therefore, the petitioner had violated the secrecy of the ballot, the said submission has no force as no names of witnesses have been given in the written statement who may have heard the said conversation or particulars as to the place where and the dates when they heard the same. In the absence of these partieulars, the submission raised by the respondent being vague, the same has no force and is rejected.

10. With regard to the last submission that the Election Tribunal cannot order the recounting of the votes wrongly declared invalid, the same has no basis in law. No provision of the law ties the hands of the Tribunal to prevent it from doing complete justice.

11. The upshot of the above discussion is that issue No. 4 is answered in favour of the petitioner.

12. In view of the decision given on issue No. 4, 1 hereby appoint a Committee of two officers to be headed by Mr. Abdul Majid, Provincial Election Commissioner, and Mr. Muhammad Hamid, Registrar of the Election Tribunal, as the second member, to re-examine all the invalid votes and to treat as valid those which by virtue of the principle laid down in Jamshed Ahmad Khan's case (supra), Jamal Shah's case (supra) and Irshad Ahmad's case (supra) and that laid down in this judgment, can be treated as those given in favour of the petitioner and to submit its report stating how many of these votes have been treated as valid and how many of these the Committee thinks the intention of the voters was not to vote for the petitioner. The said examination shall be conducted in the presence of the learned counsel for the petitioner and the learned counsel for the contesting - respondent. Those invalid blot-papers treated as valid and counted in favour of the petitioner will be placed in a separate sealed parcel and those which the Committee thinks the intention of the voters was not to vote in favour of the petitioner, shall be placed in a separate sealed parcel. Both the sealed parcels shall be sent by the Committee with its report. Other ballot-papers declared invalid on other grounds and which are not covered by the grounds taken in paras. 5 (a) and (b) of this petition, will not be touched. The Committee will commence the examination within a week and submit its report to this Court within ten days.

M . Y . H Recount ordered.

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