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(a) Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977)‑--

‑‑ Arts. 15, 16, 14 & 13 Representation of the Peoples Act (LXXXV of 1976), Ss. 52 & 57‑‑ Senate (Election) Act (LI of 1975), Ss. 32 & 38‑Civil Procedure Code (V of 1908), O. II, r. 2 and S. 11 ‑Election petition‑Challenge to Election is possible only by election petition‑Such election petition has to be deposed of by an Election Tribunal‑‑ Chief Election Commissioner, on no hypo thesis can pre‑empt power's and functions of Election Tribunal nor do the powers of and jurisdiction of Election Tribunal get affected in dealing with an election dispute by what Chief Election Com missioner has done in matter of counting or in deciding an appeal under S. 32, Senate (Election) Act, 1975‑‑Provisions of O. II, r. 2 or S. 11, C. P. C., herd, could not be invoked for shutting out an election petition after any such order by Chief Election Commissioner.

(b) Senate (Election) Act (LI of 1975)‑

‑‑Ss. 23 & 24‑Senate (Election) Rules, 1975, rr. 17 & 22‑Recording of votes‑Requirements.

(c) Interpretation of statutes--

‑‑Election laws‑Nature of‑Whether mandatory car directory--Election Laws concerning officers conducting elections‑‑ Direc tory‑Election Law concerning voters‑Mandatory‑So far as election laws are concerned the requirements of law to so far as officers conducting the election are concerned are usually taken to be directory and so far as these requirements concern the voters they are usually taken to be mandatory.

The general principle is that where the matter is one in which the voter has no control he is not to lose his vote on account of an omission by the officer.

When the law prescribes that the intention (of the voter) should be expressed in a particular manner, it can be taken into account only if it is so expressed. An intention not duly expressed is in a Court of law, in the same position as an intention not expressed at all.

Maxwell. on Interpretation of Statutes, 11th Edn., p. 369 ; Election for Thornbury Division of Gloucester )1888) 2 T L R 489 and M. V. Kamath v. Ahmad Ishaque and others A I R 1955 S C 233 quoted.

(d) Interpretation of statutes‑

‑‑ Affirmative direction in a statute followed by negative or limiting provision ‑ Effect.

When an affirmative direction is followed by a, negative or limiting provision the negative or limiting provision makes the statute mandatory.

It is a general rule that a statute which is negative or prohibitory, even though it provides no penalty for non‑compliance, or which contains peremptory and exclusive terms, shows a legislative intent to make the provision mandatory and it has been said that negative words in a grant of power are never construed as directory ; but a provision framed in negative language has been constructed as merely directory. On the other hand, while the use of affirmative words only is a circumstance to be considered to determining whether the statute is mandatory or directory, an intention that it shall be directory is not conclusively drawn from the absence of negative words, since affirmative words may and often do imply a negative of what is not affirmed. So, affirmative words, if absolute, explicit and peremptory, showing that no discretion was intended to be given, render the statute mandatory. The rule that an affirmative statute without any negative expressed or implied, is directory merely and leaves the common law in force has more special refe rence to statutes giving a new remedy. In the final analysis, the intention of the Legislature must control irrespective of the use of affirmative or negative words, where such intention can be otherwise ascertained.

(e) Senate (Election) Act (LI of 1975)‑‑

‑‑Ss. 23 & 24‑Senate (Election) Rules, 1975, r. 17, Explanation-- Manner of recording votes ‑Words "but not in both and shall not be marked in words" in r. 17, Explanation, to be given mandatory effect and breach of it to be dealt with accordingly‑Initials or the writing, as distinguished from required figure or mark, was ex facie an evidence of identity of voter, sufficiency and adequacy of the writing being a question of fact.

South Newington Election Petition Lewis v. Shepperdson (1948) 2 Aller 503 and Dr. Anup Singh v. Abdul Ghani and others A I R 1963 Ph. 429 ref.

(f) Senate (Election) Act (LI of 1975)‑

‑‑ Ss. 23 & 24‑Senate (Election) Rules, 1975, r. 17‑Manner of recording votes‑Ballot‑paper‑Marking by voters on ballot‑papers Pre‑arrangement between voters and candidates‑V4'here most of ballot papers had no mark and there was no other evidence except the ballot‑papers, rejection of all the ballot‑papers not justified Marks on ,ballot‑papers exhibiting innocuous individual traits for emphasizing or clarifying voter's choice of candidates and order of preference, held, to be treated as ordinary human deviations in habit of writing figures and words and nothing more.

(g) Senate (Election) Act (LI of 1975)‑‑

‑‑ Ss. 23 & 24‑Senate (Election) Rules; s 1975,‑ r. ‑17‑Representa tion of the Peoples Act (LXXXV of 1976) S. 38 (4) (c)‑Ballot‑paper‑"Validity of ballot‑paper having any mark or writing"‑ Any additional mark, like circle underlining, etc. invalidates ballot‑paper unless it was attributable to carelessness or want of skill.

The purpose and the object of the legislation is clear. It is to secure the secrecy of the ballot, fairness at any election and purity of the democratic process. The evils against which the statutes prohibiting the distinguishing marks are directed are bribery and intimidation, and Courts should construe them with such liberality, if practicable, as both to advance the object and to correct the evils which the Legislature had in view. They should be read as if a qualification of their terms to this end were attached to them. It has. also to be borne in mind that mistakes that illiterate and unskilled persons may make in the filling up their ballot‑papers are infinite and so are the devices that fraudulent people may arrange between themselves for identification. In examining the ballot‑papers if it appears that the voter has done the unwanted marking purposely then it should be taken to have been done perversely and done in such a way as to legitimately forfeit his vote.

Any additional mark like circle, underlining, etc. invalidates the ballot‑paper unless it is attributable to carelessness or want of skill.

Shorter Oxford Dictionary and Aiyar's Law Terms and Phrases ref.

Am. Jr. Vol. 26 and 2nd Edn., p. 89, para. 263 quoted.

Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore P L D 1966 S C 1 and Wiglown's case (1874) 2 O & M and H 215 fol.

(h) Senate (Election) Act (LI of 1975)‑

‑‑ Ss. 23 & 24‑Senate (Election) Rules, 1975, r. 17‑Ballot‑paper‑Validity of ballot‑paper having any mark or writing‑Ostensible similarity of encircling existing on ballot‑papers‑Such ballot‑paper could be excluded from count but ipso facto will not prove necessarily and additionally corrupt practices involving candidate as well.

Raja Muhammad Anwar, Senior Advocate Supreme Court with M. Aslant Chaudhry, Advocate‑on‑Record for Appellant.

S. M. Zaffar, Senior Advocate Supreme Court, Ch. Ejaz Ahmad, Advocate Supreme Court and M. A. Siddiqui, Advocate‑on‑Record for Respondent No. 1.

Date of hearing : 27th November, 1985.

JUDGEMENT

SHAFIUR RAHMAN, J.

‑This appeal as of right has been filed under section 48 (3) of the Senate Act, 1975 (hereinafter referred to as the Act) against the decision of the Election Tribunal, dated 31‑8‑1985 and 1‑9‑1985 whereby the 17 ballot‑papers for the special seats of the Senate from Punjab were invalidated and a recount was ordered after excluding them, with the result that respondent No. 1 was declared elected instead of the appellant, who otherwise too by an earlier judgment was held to be not a qualified candidate for the special seat.

The appellant alongwith thirty others contested, election for the five special seats reserved from Punjab for Aalim, technocrat and other professionals under the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 (hereinafter referred to as the Order). The appellant was one of the successful candidates. His qualification as a technocrat was successfully assailed before the Tribunal by respondent No. 1 by a separate Election Petition.

Respondent No. 9‑first of all filed an appeal under section 32 of the Senate (Election) Act on 16‑3‑1985 followed by supplementary grounds on 18‑3‑1985 before Chief Election Commissioner. His grievance was against counting of ballot‑papers, by not observing the provisions of rules 26, 29 and 31 of the Senate (Election) Rules, 1975 (hereinafter referred to as the Election Rules). His prayer was that the "ballot‑papers be ordered to be recounted in accordance with the prescribed rules and procedures and the result of the election determined in accordance with the recount". He also trade a mention of the fact that the ballot‑papers were not shown to him and that he "reserves the right to add to these grounds of appeal after he has been given an opportunity inspect the entire record inclusive of the ballot‑papers".

By a short order, dated 1‑4‑1985 (reproduced hereunder) the Chief Election Commissioner dismissed this appeal as well another for the same relief :‑

"Mr. Shahid Hamid, Advocate for the appellant Khalid Amir Khan and Mr. Wasim Sajjad respondent in person.

I have gone through the memos. of appeals. The allegations made therein are vague and are such that if allowed each and every matter will be open for recounting, I find no force in these appeals and dismiss the same."

The respondent No. 9 then failed, an Election Petition (No. 34 of 1985) taking up two ground. The first was as follows :‑

"That on 14‑3‑1985 the single ballot paper prescribed by law was in effect treated as two ballot‑papers. Each voter marked his preference for the contesting candidates for the general seats, on the one hand, and the seats reserved for Ulema, technocrats and profes sionals, on the other, as if he had been given two ballot papers. The preference in the case of general seats were marked from 1 to 14 and for the special seats from 1 to 5. On opening of the ballot- box the two parts of the ballot‑papers, which were in different colours, were separated one from the other and counted separately. Each voter thus exercised two transferable votes, one for the con testing candidates for the general seats, and the other for the contesting candidates for the special seats. Apart from the violation of rules 17, 22 and 33, Part B' illustration, this violated the provisions of Article 59 (2) of the Constitution and section 23 (3) of the Senate (Election) Act, 1975."

The other ground taken up in the petition was as follows :‑‑

"The fact is that the Returning Officer included in the count for the special seats, contrary to the provisions of rule 22 of the Senate (Election) Rules, 1975, a large number of invalid votes. In the count held on 14‑31985 the Returning Officer excluded 4 votes out of the 253 votes cast on this date on the ground that they were invalid being variously marked in ways by which the voters could be identified. However, he failed to exclude a large number of other ballot‑papers which were either similarly marked or were marked in other ways by which the voters could be identified. The inspection made by the Commissioner on 1‑4‑1985 in respect of the ballot‑papers for general seats has revealed as many as 24, if not more, invalid ballot‑papers and a similar inspection by this Tribunal will reveal an equal, if not greater, number of invalid votes wrongly included in the count for the special seats. The marks on these invalid ballot‑papers are evidence of illegal acts by which those of the returned candidates, who benefited from these invalid votes, either on the first preference or through later transfers, connived with the voters to destroy the secrecy of voting. Be that as it may, these invalid votes being void ab initio had to be excluded from the court. The result of the election has been materially affected by the failure of the Returning Officer to exclude the invalid votes."

The relief sought for by respondent No. 9 was as follows :‑

"It is, therefore, prayed that the election held on 14‑3‑1985 for all 19 senate seats be declared to be void. It is in the alternative that the result of the election held on 14‑3‑1985 for the 5 special seats reserved for Ulema, technocrats and other professionals be declared to be void. It is prayed in the further alternative that the peti tioner be declared to be elected in place of one off; the returned candidates for the special seats on the basis of count to be made after excluding the invalid votes."

So far as the first ground of attack is concerned it was based on rule 33 and Part A and Part B of the Schedule to the Election Rules. The second' ground was based on Explanation to rule 17 and rule 22 of the Election Rules. The petition was contested by some of the respondents. The appellant had, however, not filed any written statement but his learned counsel had addressed arguments on the issues framed which were as follows:‑

(1) Whether the present election petition is not maintainable.

(2) Whether the order dated 1‑4‑1985 of the Chief Election Com missioner debars the petitioner from filing the present election petition.

(3) Whether all the votes cast on 14‑3‑1985 are invalid for violation of section 23(3) of the Senate (Election) Act, 1975 and rules 17, 22 and 33 of the Senate (Election) Rules, 1975 and/or Art. 59 of the 1973 Constitution.

(4) Whether in respect of anyone or more of the ballot‑papers for the special seats there are marks or writings by which the voter can‑be identified. If so, whether the said ballot‑papers are invalid and what is the extent of such invalidity to respect of each such vote.

(5) Whether in respect of the other ballot‑papers the concerned voter could be identified by having marked therein preferences by placing figures against different names partly in English, and partly in Urdu. If so, whether the said ballot‑papers are invalid and what is the extent of such invalidity in respect of each such ballot‑paper.

(6) Relief.

The Election Tribunal dealt with four Election Petitions and disposed of all of them by a consolidated judgment. The petition of respondent No. 9 was held to be maintainable and the distinction drawn with those held not maintainable was that in his petition "averments were made about pre‑arrangement between the voters and the candidates and such allegations if established would be an illegal act" while in the other two petitions "there is no averment about any illegal design or pre‑arrangement between the voters and the candidates and the mere allegation is that there are marks on the ballot‑papers by which the voters could be identi fied. On this allegation standing alone, these election petitions will not .be maintainable before the Election Tribunal".

The effect of Chief Election Commissioner's order, dated 1‑4‑1985 was held to be no bar to the election petition of respondent No. 9. On issue No. 3 the Tribunal held that there was no violation of Article 59 of the Constitution or section 23 (3) of the Act or rules 17 (9), 22 (3) (b) or 33 of the Election Rules in holding the elections on 14‑3‑1985 or marking of preferences by the voters separately for the candidates, for general and special seats in the Senate.

As regards the crucial issues Nos. 4 and 5 for special seats, apart from the general challenge that the ballot‑papers did not bear the signature and seal of the Presiding Officer specific objections were raised against twenty ballot‑papers. In respect of three the objections were rejected and as regards seventeen the objections were upheld: The objections and its disposal as appearing in Election Tribunal's order are reproduced hereunder :‑

"(a) In Exhibit 34/5, the only challenge of Mr. Shahid Hamid for the petitioners was that the first preference has been marked in Roman i. e. I. For reasons given in para. 27 (a) above, this vote cannot be invalidated.

(b) In Exhibit 34/55, the only objection raised on behalf of the petitioners was that preference I was marked outside the box and in Exh. 34/34, preference was similarly marked outside the box. On this ground alone the votes cannot be objected.

(c) 1n Exhibits 34/4 and 34/32, all the preferences have been marked in Roman. This is not authorized.

(d) In Exhibits 34/4, 34/33, 34/35, 34;39, 34/67 and 34/100 all the preferences have been marked in English numbers but all the numbers have been encircled. This type of marking is not authorized.

(e) In Exhibit 34/2, preference 1 is in Roman, second and third preferences have been marked in Urdu numbers and fourth and fifth preference in English numbers. This marking is unauthorized.

(f) In Exhibit 34/3, all the 5 preferences are marked in English numbers but all the numbers have been placed in single inverted commas. The making is not authorized.

(g) In Exhibit 34/36, all the 5 preferences are marked in English numbers which are all encircled with the addition that with 1 the word "one" and with 2 the word "two" are also written. This is not authorized.

(h) In Exhibit 34/37, all the preferences have been marked in English numbers but with preference 1, the word "one" is also written. This marking is unauthorized.

(i) In Exhibit 34/40, all markings are in English numbers but number 3 has been encircled. This is also unauthorized.

(j) In Exhibit 34/56, only 4 preferences have been marked with first three in Roman and preference 4 in English number. This marking is unauthorized.

(k) In Exhibit 34/57, all preferences are in English numbers but No. 1 has been encircled. This is not authorized.

(l) In Exhibit 34/68, only first two preferences are marked and both are in Roman. This is unauthorized.

(m) In Exhibit 34/69, only first three preferences are marked and all are in Roman. This is unauthorized."

The effect of such unauthorized marking was evaluated in the fol lowing words :‑

"If on an examination of the ballot‑paper it appears that the pos sibility that the unauthorized markings were due to overnight could not be ruled out, the benefit must go in favour of the validity of the vote but otherwise the presumption would be that the un authorized markings were made by the voter intentionally so that his identity could be determined by the candidate after the poll and that such unauthorized markings were made on the basis of a pre‑arrangement between the voter and the candidate.

The result of my examination of the aforesaid 18 ballot‑papers cast for general seats and 17 cast for special seats is that the unauthorized markings could not possibly have been made due to oversight by the voters but that the same were so marked intentionally by the concerned voters on the basis of ore‑arrangements between the voters and the candidates with the design that the voters could be identified by The concerned candidate after the poll.

It had been argued on behalf of the respondents that such conclusion could not be reached without some evidence or record regarding the pre‑arrangement. In my view, in the background of these elections, from the unauthorized markings themselves, without any other evidence, the conclusion could be reached as above and has been reached by me."

The whole of the ballot‑papers, in all seventeen in number, for the special seats, were geld to be invalid. This number was in addition to the four ballot‑papers already found and held invalid by the Returning Officer and the Chief Election Commissioner. A recount was ordered after excluding these ballot‑papers. A committee of two officers (Mr. Abdul Aziz, Provincial Election Commissioner and Mr. Muhammad Hamid, the Registrar of the Tribunal) was constituted to do the recounting. On recounting it reported the result for the special seats in the following order :‑

(1) Mr. Saved Qadir.

(2) Dr. Muhammad Asad Khan.

(3) Dr. Mahboobul Haq.

(4) Sheikh Ihsanul Haq Piracha.

(5) Mr. Wasim Sajjad.

The Election Tribunal has declared Mr. Wasim Sajjad as the elected candidate against the fifth seat, the appellant yielding that position to him in the recount after excluding the invalid votes.

In view of the appeal earlier filed by the respondent No. 9 under section 32 of the Act before the Chief Election Commissioner the appellant has taken up the ground that this appeal under section 48 of the Act is hit by Order 11, rule 2, C. P. C., section II of the C. P. C. and even otherwise, according to the learned counsel for the appellant, such an appeal with regard to the invalidity of a ballot‑paper was barred by Article 225 of the Constitution read with subsection (2) of section 31 of the Act which provides that:-

"No question that can be settled in an appeal under section 32 shall be raised by an election petition or before any Court or authority whatsoever, nor shall any question that can be raised by an election petition be raised before any Court or authority other than an Election Tribunal."

Finally, it is contended that a mere look at the ballot‑paper, in the absence of concrete positive evidence, could not prove or satisfy the requirements of law contained in section 49 of the Act so as to declare the election of the elected candidate void. As no evidence was led by respondent No. 9 the mere entries or marks on the ballot‑paper could not account for his ouster.

Another fact highlighted by the learned counsel for the appellant is what appears to him a contradiction in the two findings of the Election Tribunal, namely, that two other petitions (91/85 and 92/85) alleging that "there are marks on the ballot‑paper by which the voters could be identi fied'.' will not be maintainable before the Election Tribunal "while the other two petitions (27/85 and 34/85) were held not only maintainable but were allowed on the finding that a mark intentionally made "so that identity of the voter could be determined by the candidate" establishes also by presumption (not evidence) that "unauthorized markings were made by the voter intentionally so that his identity could be determined by the candidate after the poll and that such unauthorized markings were made on the basis of a pre‑arrangement between the voter and the candidate".

The objection to the jurisdiction of the Election Tribunal and its competence to deal with the question of invalidity of the ballot‑paper has been based on Article 225 of the Constitution which provides :‑

"No election to a House or a Provincial Assembly shall be called in question except by an Election Petition presented to such Tribunal and in such manner as may be determined by Act of Majlis‑e‑Shoora (Parliament)."

Section 32 of the Act provides for an appeal against count to the Commissioner, who according to the learned counsel, acts as a Tribunal while to deciding the appeal and his powers extend to (section 32(5) of the Act).

"(a) dismiss the appeal, or

(b) if he does not dismiss the appeal, determine the result of the election on the count of valid votes as corrected after adjudicating upon the invalid votes, if any, and make such consequential order as may be necessary."

Subsection (6) makes such a decision final. Besides subsection (2) of section 31 makes the legal position clearer by enacting that :‑

"No question that can be settled in an appeal under section 32 shall be raised by an election petition or before any Court or authority whatsoever nor shall any question, that can be raised by an Election petition be raised before any Court or authority other than an Election Tribunal."

This contention of the learned counsel for the appellant has the merit of logical consistency and clarity but is of no avail because as pointed out by Mr. S. M. Zafar, Advocate, the learned counsel for respondent No. 1 it fails to take into consideration very material and relevant law having a direct bearing on the question. For example, the Election Commission Order, 1977 has the effect of altering and substituting some of the pro visions of Part VIII of the Constitution dealing with the Chief Election Commissioner and the Election Commission. Next is the Houses of Parliament and Provincial Assemblies (Election) Order. 1977 where Article 16 overrides the inconsistent portions of, inter alia, the Constitution and the Act in so far as "the conduct of election to the two Houses and the Provincial Assemblies" is concerned. Its Article 14 deals with Election disputes and provides : "Save as provided in Article 13, no election to a House or a Provincial Assembly shall be called in question except by an Election Petition presented to such Tribunal and in such manner as is provided for in the Representation of the Peoples Act, 1976 (LXXXV of 1976)".

Article 13 referred to prescribes the power of the Commission to declare a poll void, which power is not in issue in these proceedings.

Section 52 of Act LXXXV of 1976 provides "No election shall be called in question except by an election petition made by a candidate for that election (hereinafter in this chapter referred as the petitioner)".

The upshot of these statutory provisions is that the challenge to an Election is possible only by an Election Petition and further that such Election Petition has to be disposed of by an Election Tribunal appointed by the Commissioner (section 57 of Act LXXXV of 1976 and section 38 of the Act). On no hypothesis can the Commissioner pre‑empt the powers and the functions of the Election Tribunal nor do the powers and jurisdic tion of the Election Tribunal get affected in dealing with an election dispute, by what the Commissioner has done in the matter of counting or in deciding an appeal under section 32 of the Act. On this view of the jurisdiction of the Election Tribunal neither Order 11, rule 2, C. P. C. nor section 11, C. P. C. can .be invoked by the appellant for shutting on an Election Petition.

The second ground raised in the Election petition which is now the subject‑matter of this appeal has already been reproduced in extenso.

The law governing it is contained in sections 23 and 24 of the Act, rule 17 and rule 22 of the Election Rules. The relevant portions of sections 23 and 24 of the Act provided as hereunder :‑

"23. Voting procedure (1) . . . . . .

(2) ... ... ..

(3) ... .. ... .. ...

(4) A voter shall cast his vote in the prescribed manner.

(5) .. .. ... .. ...

(6) The poll shall be by secret ballot."

"24. Proceedings at tire close of poll.

(1) Immediately after the close of poll, the Returning Officer shall proceed with the counting of votes in the prescribed manner.

(2) ... ... ... ...

Rule 17 of the Election Rules is of particular importance and is reproduced hereunder in exrenso :‑

"17. Manner of recording vote.‑In giving his vote, a voter‑

(a) shall place on his ballot‑paper the figure 1 opposite the name of the candidate for whom he wishes to vote in the first instance and

(b) may, in addition, place on his ballot‑paper the figures '2, 3 and 4 and so on, in the order of his preference, opposite the names of the other candidates.

Explanation.‑The figures referred on in this sub‑rule may be marked against different names either in English or in Urdu but not in both and shall not be marked in words".

Rule 22 of the Election Rules is equally important and is reproduced hereunder :‑

"22. Opening of ballot‑boxes and counting of votes.‑(1) The Returning Officer shall, after notice to the contesting candidates as to the time and place of counting, open the ballot‑boxes in the presence of such of the contesting candidates and their agents as may be present.

(2) The Returning Officer shall‑

(a) proceed to count the ballot‑papers taken out therefrom and record their number in a statement ;

(b) scrutinise the ballot papers taken out of the ballot‑boxes ;

(c) separate the ballot papers which he deems valid from those which he rejects under sub‑rule (3) endorsing on each ballot- paper so rejected the word 'rejected' and the grounds of rejection.

(3) A ballot‑paper shall be invalid‑

(a) on which figure 1 is not marked ; or

(b) on which figure 1 is set opposite the names of more than one candidate, or is so placed as to render it doubtful as to which candidate it is intended to apply ; or

(c) on which figure 1 and some other figure are set opposite the name of the same candidate ; or

(d) on which there is a mark or writing or to which some object is attached by which the voter can be identified ; or

(e) which is unmarked or void on the ground of uncertainty ; or

(f) which does not bear the official mark or initials of the Returning officer."

The instructions in Urdu further reaffirm these requirements so far as each individual voter getting a ballot‑paper is concerned.

The explanation added to rule 17 is of importance because it is the language of this explanation which distinguishes this dispute from every other dealt with earlier and cited as an example or precedent.

The rule 17 is both descriptive as well as illustrative of the manner in which the voters preference is to be recorded on the ballot‑paper. It is descriptive in so far as it provides in the explanation that the figures referred to may be marked either in English or Urdu It is illus trative in so far as the sub‑rules (a) and (b) provide that a voter shall place on his ballot‑paper the figure 1 opposite the name of the candidate for whom be wishes to vote in the first instance and may in addition place on his ballot‑paper the figures 2, 3 and 4 and so on, in order of his preference opposite the names of the other candidates. So, by being descriptive and illustrative it gives the appearance and effect of being exhaustive.

Two principles of interpretation of statutes get attracted to the controversy. The first such principle somewhat broadly expressed is that so far as election laws are concerned the requirements of law in so far as officers conducting the election are concerned are usually taken to be directory and so far as these requirements concern the voter they are usually taken to be mandatory. This principle actually follows from more general principle expressed (Maxwell, Interpretation‑of Statutes, 11th Edition, page 369) as follows:‑

"Where the prescription of a statute relates to the performance of a public duty and where the invalidation of the acts done in neglect of them would work serious general in convenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescrip tions seem to be generally understood as mere instructions for the guidance and Government of those on whom the duty is imposed, or in other, words as directory only. The neglect of them may be penal indeed but it does not affect the validity of the act done to disregard of them."

The principle was recognized in the case of the Election for Thornbury Division of Gloucester (1888) 2 T L R 489 by observing that "the general principle is that where the matter is one in which the voter has no control he is not to lose his vote on account of an omission by the officer".

In the case of M. V. Kamath v. Ahmad Ishaque and others (A I R 1955 S C 233) the princi ple was expressed differently in the words "when the law prescribes that the intention (of the voter) should be expressed in a particular manner, it can be taken into account only if it is so expressed. An intention not duly expressed is, in a Court of law, in the same position as an intention not expressed at all".

The other principle which deserves mention is that when an affirma tive direction is followed by a negative or limiting provision the negative or limiting provision makes the statute mandatory. The following exposition of the principles of law in Corpus Juris Secundum is of relevance :‑

"It is a general rule that a statute which is negative or prohibitory, even though it provides no penalty for non‑compliance, or which contains peremptory and exclusive terms, shows a legislative intent to make the provision mandatory, and it has been said that negative words in a grant of power are never construed as directory ; but a provision framed in negative language has been construed as morel directory. On the other hand, while the use of affirmative words only is a circumstance to be considered in determining whether the statute is mandatory or directory, an intention that it shall be directory is not conclusively drawn from the absence of negative words, since affirmative words may and often do imply a negative of what is not affirmed. So, affirmative words, if absolute, ex plicit, and peremptory, showing that no discretion was intended to be given, render the statute mandatory. The rule that an affirmative statute, without any negative expressed or implied, is directory merely and leaves the common law in force has more special reference to statutes giving a new remedy. In the final analysis, the intention of the Legislature must control irrespective of the use of affirmative or negative words, where such intention can be otherwise ascertained."

On the principles enunciated the words of the Explanation append to rule 17 of the Election Rules "but not in both and shall not be marked is words" have to be given mandatory effect and a breach of it to bet dealt with accordingly. Even otherwise, the initials, or the writing, as distinguished from the required figure or mark, has almost always been considered ex facie to be evidence of the identity of the voter these efficiency and adequacy of the writing being a question of fact. Illustrative cases on the point are South Newington Election Petition Lewis v. Shepperdson ((1948) 2 All E R 503) and Dr. Anup Singh v. Abdul Ghani and others (A I R 1963 Pb. 429).

The provision commanding the Returning Officer to treat a ballot -paper invalid on which there is a mark or writing or to which some object is attached by which the voter can be identified has been the subject‑matter of elaborate argument before us. According to the learned counsel for the appellant only if the individual voter is in fact identified or there is positive evidence of pre‑arrangement between the voter and the candidate that the invalidity of the ballot papers follows. In the case in hand most of the ballot‑papers had no such mark and there was no other evidence except the ballot‑papers so the Tribunal should not have rejected them all. These marks exhibit, according to the learned counsel for the appellant innocuous individual traits for emphasizing or clarifying their choice of candidates and their order of preference. These should have been treated as ordinary human deviations in habit of writing figures and words and nothing more.

Mr. S. M. Zafar, Advocate, the learned counsel for the respondent No. 1 has drawn our attention to the policy and purpose of Election Laws, to the paramount importance of ensuring at all stages the sanctity and the secrecy of the ballot. With such a select, restricted and responsible electorate as the members of the Provincial Assembly it should not at all be difficult to ensure strict compliance with the letter of the law, thereby sustaining its very spirit and purpose. According to the learned counsel Act LXXXV of 1976 (section 38 (4) (c) straight way excludes from the count ballot‑papers which bear "any writing or any mark other than the mark of his thumb, the official mark, the signature of the Presiding Officer and the prescribed mark or to which a piece of paper or any other object of any kind has been attached". So, when the provision under discussion eliminates a ballot‑paper having a mark or writing by which the voter can be identified. his actual identification should not be looked for nor satisfactory evidence establishing a pre‑arrangement ensured. The word "can" according to the learned counsel means (f) So be able ; to have the power by capacity (Shorter Oxford Dictionary) (ii) "A term denoting possibility as distinguished from may which denotes a probabil ity "(Aiyer's Law Terms and Phrases) (iii) "to be enabled by law agreement or custom ; to have a right to ; to have permission to often used inter changeably with may" (Black's) and has to be distinguished from "is". So any deliberate mark left on the ballot‑paper will, therefore, according to the learned counsel, without further proof justify its rejection.

After examining the provisions under discussion in the light of argu ments addressed we have come to the conclusion that the purpose and the object of legislation is clear. It is to secure the secrecy of the ballot fairness at an election and purity of the democratic process. It has been said that "the evils against which the statutes prohibiting the distinguishing marks are directed are bribery and intimidation, and Courts should construe them with such liberality, if practicable, as both to advance the object and to correct the evils which the Legislature had in view. They should be read as if a qualification of their terms to this end were attached to them" (Am. Jr. Vol. 26 2nd Ed. para. 263 p. 89). It has also to be borne in mind that mistakes that illiterate and unskilled persons may make in the filling up their ballot‑papers are infinite and so are the devices that fraudulent people may arrange between themselves for identification. In examining the ballot‑papers if it appear: that the voter has done the unwanted marking purposely then it should be taken to have been done perversely and done in such a way as to legitimately forfeit his vote. A very illuminative discussion as regards such a provision of law is to be found in the case of Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore (P L D 1966 S C 1). In the opinion recorded by Kaikaus, J. his Lordship first noticed the following two alternative possible interpretations :‑

"These wards are capable of two meanings :‑

(1) that a candidate or some other person concerned with the election is in fact able to identify the elector on account of this mark ;

(2) that (although the elector may not be in fact identified) the mark is of a kind which if permitted can be used as an identifying device."

and after examining them at great length concluded as follow :‑

"I could point out further difficulties, but I do not think it is necessary. The upshot of the above discussion is that of we adopt the first of the two interpretations stated above neither the Return ing Officer nor the Member, Election Commission, will be able to reject any ballot‑paper on the ground that it bears a mark by which 'the elector can be identified'. The result will be that there will be a licence to all concerned to freely use marks for the purpose of identification of voters. Secrecy of the ballot will come to an end and bargaining about votes will be easy. He who is able to exert undue influence on a voter will have ample means to ensure that the vote is cast in accordance with his directions. This is a matter of vital importance for the country and if the second of the two interpretations stated above is not accepted the only proper course for the Government will be to secure an amendment of the law.

If the first interpretation be wholly unacceptable then the second should be adopted as long as it is a possible interpretation, but it is not only a possible interpretation, it is a reasonable one. It invalidates all ballot‑papers which bear such marks as can be used for identification. It provides a simple rule and creates no difficulty in the way of the Presiding Officers and Returning Officers. An elector is to make only one mark on the ballot‑paper that is the mark for indicating the candidate for whom he is voting and if any other mark which he makes in spite of the knowledge that he is to make only one mark invalidates the ballot‑paper he has no cause for grievance. The only objection taken to the second interpreta tion is that if this was the intention of the Legislature section 38 should have said that every mark will invalidate a ballot‑paper instead of saying 'a mark by which the voter can be identified', answer is that it is possible to conceive of a mark which not be used as an identifying device. It may be too insignificant. It may be accidental. Or, the Legislature may have employed these words without coming to a conclusion whether there could or could not be marks which were incapable of use as identifying devices. The qualification of mark as a mark 'by which the elector could be identified' is a proper one and what is being urged is that as all marks can be used for identification the qualification was unneces sary. This is not a serious objection particularly when the only other interpretation is an impossible one."

We wholly adopt that view and this brings us in the case of Senate Elections to the position as was taken in Wigtown case ((1874) 20 & M & H 215) that any additional mark like circle underlining, etc. invalidates the ballot paper unless it is attributable to carelessness or want of skill.

We have got the ballot‑papers opened in Court and examined them in the presence and with the assistance of the learned counsel for the parties. The defects alleged and the defects found are in fact existing. The uniqueness even where there is ostensible similarity (in those encircled) exists. On the view of the law that we have taken we would affirm the finding of the Tribunal of excluding these ballot‑papers from the count. At the same time, and for obvious reasons we should not be taken to endorse the view of the Tribunal that such breaches of the law ipso facto) prove necessarily and additionally the corrupt practices involving the candidate as well. It is probably for this reason that the Tribunal has only invalidated the ballot‑paper and not declared the election of any particular candidate void. This appeal is, therefore, dismissed with costs.

M. B. A. Appeal dismissed.

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