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Civil Appeals Nos. 209 and 310 of 1985, decided on 10th May, 1986.
(On appeal from the judgment of the Election Tribunal, Punjab, dated 20‑10‑1985, in E. P. 87/85).
--Ss. 33, 38 & 70‑Representation of the Peoples (Conduct of Elec tion) Rules, 1977, Rr. 23, 58 & 64‑Ballot‑paper when can be rejected under S. 38(4)(c)‑Failure to apply official mark resulting from want of official seal, would not materially affect result of election.
A ballot‑paper can be rejected as invalid under section 38(4)(c) of Representation of the Peoples Act, 1976, when neither the official mark nor the signature of the Presiding Officer are present on its back, so that if either it bears the official mark or the signature of the Presiding Officer, the ballot‑paper cannot be excluded from the count and has to be treated as a valid vote in favour of the candidate in whose name it has been cast. The change effected by the amendment in substituting the conjunction "or" with "and", makes the position all the more clear, that for purposes of exclusion, both conditions must co‑exist, that is, there should be no official mark and no signature on the ballot‑paper. Conversely if one condition exists the ballot‑paper cannot be excluded from the count. In regard to elections to the seats reserved for women, rule 58 makes similar provisions for stamping the ballot‑paper with the official mark and initials of the Presiding Officer. As far rejection of invalid ballot‑papers rule 64(3) lays down the various situations in which the ballot‑paper in such an election is to be rejected as invalid. The language of rule 64(3) takes the matter beyond any controversy by categorically providing that a ballot‑paper shall be invalid which does not bear both the official mark and the initials of the Returning Officer. Although this rule is not directly applicable in the case of election, to the general seat, it provides unambiguous insight into the mind of the law‑maker, in that similar provisions made in connection with the different types of elections must have similar effect under the same law.
It is wrong to say that if both the official mark and the signature of the Presiding Officer were present on the ballot‑paper only then could it be counted as a valid vote, otherwise it was to be excluded. This would have been the effect if the provisions of section 38(4)(c) were couched in positive language to the effect that such ballot‑papers were to be counted which bear official mark and signature of the Presiding Officer. But the provisions are couched in a manner that the ‑two conditions have been laid down for the purpose of exclusion, therefore, the power to exclude the ballot‑paper is dependent on both conditions co‑existing simultaneously, which is, the effect of the conjunctive "and" used in the provisions.
Failure to apply the official mark, which was alleged to have resulted from want of the official seal, has not materially affected the election.
Non‑sealing of votes would not fall within the purview of section 70(b), for the same is neither a corrupt nor an illegal practice. Failure of the Presiding Officer to affix the official mark on 1165 at a polling station out of a total number of 51886 valid votes cast at the election cannot be regarded a violation of the rules of such magnitude so as to render the election as a whole void particularly when it has not materially affected the result of the election.
Mian Jamal Shah v. Khan Nasrullah Khan Khatack P L D 1965 Jour. 89; Khan Nasrullah' Khan v. Member, Election Commission P L D 1966 Lah. 850 and Mian Jamal Shah v. The Member, Election Commission P L D 1966 S C 1 ref.
Morgan and others v. Simpson and another (1974) 3 All E R 722 and Gunn and others v. Sharpe and others (1974) 2 All E R 1958 distinguished.
Khalid Farooq Qureshi, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant.
Ch. Muhammad Arif, Senior Advocate Supreme‑Court and Ejaz Ahmad Khan, Advocate‑on‑Record for Respondent No. 1.
Respondents Nos. 2 to 5 : Ex parte.
Ch. Muhammad Arif, Senior Advocate Supreme Court and Ejaz Ahmad Khan. Advocate‑on‑Record for Appellant.
Khalid Farooq Qureshi, Advocate Supreme Court for Respondent No. 1.
Respondents Nos. 2 to 5 : Ex parte.
Date of hearing : 29th April, 1986.
Election Appeals Nos, 209 of 1985 and 310 of 1985, under section 67(3) of the Representation of the Peoples Act, 1976, are directed against the same order of the Election Tribunal, dated 20th October, 1985, and are between the same parties, we, therefore, propose to dispose them by this common judgment.
2. For facility of reference to the parties, it is sufficient to state the facts in the first mentioned appeal, as even otherwise the facts are common in both appeals.
3. Appellant Ch. Muhammad Abdullah and respondents Nos. 1 to 4 (Ch. Abdul Wakil. Ch Taj Din, Shaukat Ali Butter and Muzaffar Akhtar) were contesting candidates for election to membership of the Provincial Assembly of the Punjab from Constituency P. P. 135, Gujranwala VII. The polling for this election was held on 28th February, 1985, at 54 polling stations and appellant Ch. Muhammad Abdullah was declared successful in the election leading by 354 votes over respondent Ch. Abdul Wakil, the candidate securing the next highest number of votes. The respective votes polled by each of the contesting candidates are as under :‑
"(1) Ch. Muhammad Abdullah appellant 25268
(2) Ch Abdul Wakil respondent No. 1 24914
(3) Shaukat Ali Butter respondent No. 3 782
(4) Ch. Taj Din, respondent No. 2 693
(5) Muzaffar Akhtar, respondent No. 4 229."
4. Being dissatisfied with the declared result of the election, respondent Abdul Wakil called in question the election of Ch. Muhammad Abdullah by means of an election petition under section 52 of the said Act, on the allegations that at Polling Station Lalpur (No. 19) 1165 ballot- papers were cast which‑bore no official mark which rendered them invalid ; that valid ballot‑papers cast in his favour were illegally rejected and invalid ballot‑papers cast in favour of Ch. Muhammad Abdullah were illegally accepted at polling stations 1 to 8 ; 15 to 19, 36 and 51 ; that the Returning Officer had illegally refused the counting of entire votes as requested by him'; that at certain specified polling stations the polling staff had committed illegal practice by banding over ballot‑papers to Ch. Muhammad Abdullah and his agents for the purpose of bogus voting; that votes were cast in the name of dead persons and that ballot‑papers were smuggled in from outside. On these allegations; Ch. Abdul Wakil ,prayed for a declaration that the election of Ch. Muhammad Abdullah was void and that he be declared elected to the seat in question.
4‑A. Ch. Muhammad Abdullah (the returned candidate) controverter all the aforesaid allegations and further pleaded, by way of recrimination that Ch. Abdul Wakil was disqualified to be elected as a member of the Provincial Assembly as he was a defaulter of various Government depart ments and a previous convict.
5. Before a reply to the recrimination could be filed on 12th October, 1985, the learned Tribunal passed the following order "In Polling Station No. 19 where total voles cast were 1,165, it is admitted that the ballot‑papers were not stamped on the back by the Presiding Officer as he had not been supplied the stamps. The question is as to what is its effect Further, following issues are framed :‑
(i) Whether the votes at Polling Stations Nos. 1 to 8, 15 to 19, 30, 36 and 51 cast in favour of the petitioner, were illegally cancelled and those in favour of the respondent illegally counted O. P. P.
(ii) Whether the petitioner is not a fit person to be elected O. P. R. I
(The learned counsel for the petitioner has objected to the framing of these issues on the ground that the recriminatory petition was filed out of time as mentioned in the previous order dated 5‑10‑1985).
(iii) What is the effect of the list of witnesses having not been appended with the petition though the affidavits of the persons sought to be produced are there O. P. R. I
For further proceedings the case to come up on 20‑10‑1985."
6. On the aforesaid adjourned date of hearing (20th October, 1985) the learned Tribunal heard the argume is of the parties in respect of the Polling Station No. 19, where 1165 polled votes did not bear the official mark on the back of the ballot‑papers. On the close of the arguments of the parties, the learned Tribunal immediately announced the order, whereby the election petition was accepted, the election was set aside and a repoll at Polling Station (No. 19) Lalpur was ordered. The learned Tribunal found that at Polling Station No. 19, 1,165 votes were in all cast which admittedly did not bear the official mark although the initials of the Presiding Officer were present on them. It was urged before him that the absence of the official mark was due to the fact that the Presiding Officer was not provided with the official seal and in any case since the ballot‑papers bore the initials of the Presiding Officer they were not liable to be excluded from the count. Interpreting section 38 of the Representa tion of the Peoples Act, 1976, the learned Tribunal took the view that the ballot‑papers which did not contain the official mark or the initials of the Presiding Officer, were not to be counted as valid votes, so that if either of the two was absent the ballot‑papers were to be rejected, The conclusion was stated thus :‑
"Therefore, it is quite clear that the disputed ballot‑papers could not be counted. The fact that the ballot‑papers were not affixed with the official mark because Presiding Officer was not supplied the stamp may absolve him but that would not make countable what the law declared uncountable."
Having thus reached the conclusion that the aforesaid 1,165 ballot‑papers were liable to be rejected, the learned Tribunal proceeded further to consider the effect of such rejection on the election. In this behalf the learned Tribunal found that out of the aforesaid rejected votes, Ch. Abdul Wakil bad secured 450 votes, whereas the returned candidate Ch. Muhammad Abdullah had secured 647 votes, the difference being 197 votes in favour of the returned candidate. The overall effect was found to be that if all the votes cast in favour of the returned candidate are excluded from his count even then he will have lead of 157 votes over the votes cast in favour of Ch. Abdul Wakil. The learned Tribunal, however, rejected the contention that the result of the election was not materially affected for reasons which appear in the following extract from his order :‑
"Result has to be seen in the context of the entire election process in which the voters have the dominant position and the highest stakes. ' The next question that arises is that section 70 of the aforesaid Act says that "The Tribunal shall declare the election as a whole to be void' if it is satisfied, etc., etc. From this it would follow that whole of. the election' need be declared as void. Is that necessary and essential The violation of law had taken place in one polling station i.e. No. 19. Can't repolling be held in that station in accordance with law Although a Court or Tribunal empowered to decree or decide the maximum has always the power to grant less and, therefore, when this Tribunal is empowered to declare the election 'as a whole' to be void it may declare part of it as such, yet even if letter of law were to have the way, the election as a whole may be taken as declared void for the purposes of repoll in Polling Station No. 19 of Constituency No. PP‑135, Gujranwala‑VII in accordance with law. It is ordered accordingly. The declara tion is, it is clarified, for the aforesaid limited purpose. The contention of the learned counsel for the petitioner that he be declared as elected is untenable in the circumstances. The recriminatory petition of the respondent will automatically fail."
7. As already indicated both parties are aggrieved by the aforesaid order of the Tribunal. Ch. Muhammad Abdullah, the returned candidate calls, in question this order and prays that it may be set aside and the election petition filed by Ch. Abdul Wakil be dismissed. On the other hand the latter in his appeal also prays for setting aside the order and further, prays that a recount of the votes cast in the polling stations mentioned by him may be made or to the alternative the recount of all the votes cast at the election be ordered.
8. Two questions of law directly arise out of the aforesaid impugned order of the Tribunal which were addressed by the counsel for the parties before us. The first is whether the Tribunal was justified in rejecting the ballot‑papers which did not bear the official mark and secondly whether in the circumstances of this case the election as a whole was‑ liable to be set aside and a repoll in one pulling station could be ordered. As far as the first question is concerned the relevant statutory provisions and statutory rules are as follows:
(1) Representation of the Peoples Act, 1976, section 33(2) provides:
"Before a ballot‑paper is issued to an elector‑
(a) . . . . . . . . . .
(b) . . . . . . . . . .
(c) . . . . . . . . . .
(cc) . . . . . . . . . .
(d) the ballot‑paper shall on its back be stamped with the official mark and signed by the Presiding Officer;
(e) . . . . . . . . . ."
Again section 38(4) provides :‑
"The Presiding Officer shall------
(a) . . . . . . . . .
(b) . . . . . . . . .
(c) count, in such manner as may be prescribed, the votes. cast in favour of each contesting candidate excluding from the count the ballot‑papers which bear‑
(i) no official mark and signature of the Presiding Officer ;
(ii) etc . . . . . . not relevant . . . . ."
(2) Representation of the Peoples (Conduct of Election) Rules, 1977.
Rule 23 provides:
"The Presiding Officer shall after taking out the ballot‑papers from the used ballot‑box or ballot‑boxes‑
(a) separate the ballot‑papers which are unambiguously marked in favour of a contesting candidate from those which bear‑
(i) no official mark and signature of the Presiding Officer ; Or
(ii) . . . . . etc. . . . . . not relevant . . . "
Again rule 64(3) provides:
"A ballot‑paper shall be invalid‑--
(a) . . . . . . . . . .
(b) . . . . . . . . . .
(c) . . . . . . . . . .
(d) . . . . . . . . . .
(e) . . . . . . . . . .
(f) which does not bear both the official mark and initials of the Returning Officer."
9. It is contended by Mr. Khalid Farooq learned counsel appearing for the successful candidate that in view of the aforesaid statutory provisions a ballot‑paper can be excluded from the count, apart from other reasons which are not relevant for our present purposes, only when both the official mark and the signature of the Presiding Officer do not appear on it. In his submission the law quite clearly envisages the presence of both conditions, namely, the absence of the official mark and the signature of the Presiding Officer, before it can be nullified and rejected as an invalid vote. According to him it plainly follows from the language of the relevant statutory provisions that if either the official mark or the signature of the Presiding Officer is present on the ballot‑paper, the same does not fall within the mischief of the law and will qualify for being a valid vote. In this connection our attention was invited to some decided cases in which similar statutory provisions were interpreted. In Mian Jamal Shah v. Khan Nasrullah Khan Khatack (P L D 1965 Jour. 89), the statutory requirement was that before a ballot‑paper is handed over to an elector the ballot paper was required to be stamped with an official mark and initialled by the Presiding Officer, It was provided that the returning officer shall reject a ballot‑paper if it bears no official mark or initials of the Presiding Officer". A similar argument was advanced in that case that a ballot paper can be rejected only if it does not contain both the official mark and the initials. Accepting the argument the Tribunal held :‑
"If the Legislature had intended that the Returning Officer shall reject a ballot‑paper if it did not contain either the official mark or the initials, it should have more appropriately used the words if it 'either' bears no official mark or initials of the Presiding officer. The use of the word 'either' in section 38 would have left no doubt as to the intention of the Legislature and its intentional omission is significant. Sub‑clause (b) of clause (2) of section 38 is, moreover, so worded that a negative imperative is followed by the word 'or' and that being so it means that a ballot‑paper can be rejected only if both the official Mark and the initials are missing. This interpreta tion is also consistent with the principles of justice because it will obviate hardship to an elector or a candidate on account of an omission for which they are in no way responsible."
It will be observed that the word "or" was interpreted in the conjunctive sense to mean "and". The learned Judges of the erstwhile High Court of Vilest Pakistan, while dealing with the question in constitutional jurisdiction took a contrary view, Khan Nasrullah Khan v. Member, Election Commission (PLD 1966 Lah. 850) and the matter eventually came before this Court in Mian Jamol Shah v. The Member Election Commission (PLD 1966 SC 1). Approving the view taken by the Election Tribunal, A. R. Cornelius, C. J. observed :‑
"Moreover, the Member's argument is not without weight, viz. that an error in this respect is totally outside the obligation of the elector, and the law could not intend that he should be penalised for it. It is the duty of the Presiding Officer, under section 32, before he hands a ballot‑paper over to tie voter, to apply the official mark to it, and at the same time, to place his initials on it. There is ground, therefore, for thinking that the existence of the official mark is by itself sufficient to show that the paper passed through this process at the hands of ,the Presiding Officer, and it was mere act of inadvertence on his part that he failed to initial it at the same time. These considerations are relevant for the decision of the question of construction, viz. whether the conjunction 'or' as used in the expression 'no official mark or initials' appearing in section 36(1)(b)(i) enjoining exclusion of the vote by the Presiding Officer and section 38(2)(a) enjoining rejection by the Returning Officer was not to be understood in a conjunctive, rather than in a disjunctive sense."
10. Mr. Khalid Farooq Qureshi, pointed out that the Representa tion of the Peoples Act, 1976, as originally enacted prodded for only the affixing of the official mark and not the initials of the Presiding Officer. However, by amending Ordinance XXVIII of 1977 sections 33 and 38 were both amended and it was required that the ballot‑paper before being issued shall be stamped with the official mark and initialled by the Presiding Officer. Similarly in section 38. on the close of the poll, while counting the votes cast in favour of each contesting candidate, the Presiding Officer was required to exclude from the count the ballot‑paper which bears no official mark and initials of the Presiding Officer. Finally by amending Ordinance No. II of 1985, the word "initial" was substituted with "signature". The argument of the learned counsel is that the legislature being conscious of the judicial interpretation of the word "or" in similar provisions in the previous law, had substituted the same with the conjunctive "and" to remove all doubts as to the interpretation of these statutory provisions.
11. Ch. Muhammad Arif did not seriously challenge the interpreta tion of the relevant statutory provisions canvassed on the other side but only advanced some arguments as to the effect of non‑compliance of these provisions on the election at a whole, which would be considered while dealing with the second question proposed by us above:
12. In the light of the decided cases cited at the bar and on examining the statutory provisions hereinabove reproduced, we are of the view that a ballot‑paper can be rejected as invalid under section 38(4X) when neither the official mark nor the signature of the Presiding Officer are present on its back, so that if either it bean the official mark or the signature of the Presiding Officer, the ballot‑paper cannot be eluded from the count and has ‑ to be treated as a valid vote in favour of the candidate in whose name it has ban cast. The change effected by the amendment in substituting the conjunction "or" with "and", in our view makes position all the more clear, that for purposes of exclusion, both conditions must co‑exist, that is, there should be no official mark and no signature o the ballot‑paper. Conversely if one condition exists, the ballot‑paper cannot be excluded from the count. In regard to elections to the sea reserved for women, rule 58 makes similar provisions for stamping the ballot‑paper with the official mark and initials of the presiding Officer So far as rejection of invalid ballot papers rule 61(3) lays down the various situations in which the ballot‑paper in such an election is to rejected as invalid. The language of rule 64(3) takes the matter beyond any controversy by categorically providing that a ballot‑paper shall. invalid which does nut bear both the official mark and the initials of Returning Officer. Although this rule is not directly applicable in case of election to the general seat which is the case before us, it provided unambiguous insight into the mind of the law‑maker, in that similar provisions made in connection with the different types of elections have similar effect under the same law.
13. In this view of the matter we are unable to agree with the Tribunal that if both the official mark and the signature of the Presiding Officer were present on the ballot paper only then could it be counted a valid vote, otherwise it was to be excluded. This in our view, would have been the effect if the provisions of section 38(4)(c) were couched& in positive language to the effect that such ballot‑papers were to be counted which bear official mark and signature of the Presiding officer. But the provisions are couched in a manner that the two conditions have been laid down for the purpose of exclusion, therefore, the power to exclude the ballot‑paper is dependent on both conditions co‑existing simultaneously, which is the effect of the conjunctive "and" used in the provisions.
14. The effect of the conclusion reached by us is that the Tribunal had wrongly invalidated the 1,165 votes cast at Polling Station No. 19, which had to be included in the count. However, as already pointed out even if these votes were excluded Ch. Muhammad Abdullah the returned candidate was still leading at the first position among the contesting candidates. Nevertheless the Tribunal considered that as violation of law had taken place in connection with one of the Polling Stations, the whole election was liable to 'be declared void with the direction for a repoll in Polling Station No. 19. As discussed shove no violation of law had taken place by including the votes cast at Polling Station. No. 19. However, it was contended on behalf of Ch. Wakil Ahmad that in violation of section 33(2)(d) the Presiding Officer did not stamp the official mark on the back of the ballot‑papers, although he signed the same. According to the submission of the learned counsel the law originally envisaged only the affixation of official mark but by subsequent amendment the Presiding Officer was required to put his signature on the ballot‑papers, therefore, the election was not held to accordance with law and was liable to be declared void as a whole. For this proposition learned counsel has placed reliance on two decisions from the English Jurisdiction reported as Morgan and others v. Simpson and another ((1974)3 All ER722) and Gunn and others v. Sharpe and others ((1974)2All E R1958). These cases involved the interpretation of section 37 (1) of the English Representation of the Peoples Act, 1949, which in effect provided that no local Government election shall be declared invalid by reason of any act or omission of the Returning Officer or any other person in breach of his official duty in connection with the election if it appears to the Tribunal the the election was so conducted as to be "substantially in accordance with law at to elections and that the act or omission did not affect its result" In both cases ballot‑papers were secured from the ballot‑boxes which did not bear the official mark, and the election rules provided that such ballot‑papers shall be treated as invalid. In Morgan's cats lord Denning M. R. on analysis of section 37(1) of the Act of 1949, summarised the principles deduced from the said provisions as follows :‑
"(1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the rank was affected, or not.
(2) If the election was so conducted that it was substantially in accordance with the law as to the elections, it is not vitiated by a breach of the rules or mistake at the polls‑provided that it did not affect the result of the election.
(3) But, even though the election was conducted substantially in ac cordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls‑‑and it did affect the result‑then the election is vitiated,"
It view of these principles in Morgans case, it was held that the election wet conducted is accordance with the law, although 44 ballot-papers did not bear the official stark but since the exclusion of these ballot‑papers had affected the result of the election, it was held to have been vitiated. In Gunn s case which followed the interpretation of law made in Morgan's case the learned Judges came to the conclusion on facts that the errors committed atone polling station "were so great as to amount to conduct of the election which was not substantially in accordance with law". On this basis the election of two candidates was declared as void.
15. After carefully considering the two cited cases we are of the opinion that these decisions do not support the argument of the learned counsel, as both proceed on the peculiar facts involved and involve substantially different provisions of law. Learned counsel has not brought to our notice any similar provisions in our law to t1w same effect as provided by section 37(1) of the English Act. The relevant statutory provision in the Act of 1976 which governs this case is notion 70 which reads as under :‑
"The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of-----
(a) the failure of any person to comply with the provisions of this Act or the rules ; or
(b) the prevalence of extensive corrupt or illegal practice at the election."
As observed the failure to apply the official marls, which was alleged to have resulted from want of the official seal, has not materially affected the election. We do not think that the non‑sealing of votes at Polling Station No. 19 would not fall within the purview of section 70(b), for the same is neither a corrupt nor an illegal practice. Besides the failure of the Presiding Officer to affix the official mark on 1,165 at Polling Station No. 19 out of total number of 51,886 valid votes cast at the election cannot in our opinion be regarded a violation of the rules of such magnitude so as to render the election as a whole void particularly when it has not materially affected the result of the election.
16. An important question of law whether the Tribunal had power to direct repoll at only one polling station as a result of the order passed is the election petition had arisen during the arguments of the learned counsel, However, in the view we have taken, we do not feel called upon to decide this question. The same can be decided in an appropriate ease on a subsequent occasion. Summing up the decision we hold that the learned Tribunal erred‑in rejecting 1,165 ballot‑papers cast at Polling Station No. 19 for want of official mark and setting aside the election of the returned candidate with a direction to hold fresh poll at the aforesaid polling station. The impugned order of the Election Tribunal, dated 20th October, 1985, is, therefore, set aside.
17. The matter, however, does not conclude here. It was pointed out by the learned counsel for respondent No. 1 that his client had offered to give up all other grounds except the recount of the votes cast at certain polling stations which are described in the issues framed by the Tribunal. The Tribunal, however, disposed of the whole petition on. the decision of the first issue relating to the rejection of ballot‑papers which were taken out from the ballot‑box at Polling Station No. 19 on the ground that they bore no official mark. The subject‑matter of the present appeal was, therefore, confined to the controversy relating to the aforesaid question. Having decided that issue in favour of the returned candidate, only the first issue framed by the Tribunal has been disposed of. There fore, the remaining issues framed by the Tribunal still await decision. Learned counsel urged that this Court may undertake the recount of votes as requested by respondent No. 1 or as suggested by returned candidate, at all polling stations. However, we would not lire to deprive any party of a right of appeal by undertaking this exercise. Additionally, as pointed out above, the returned candidate had filed a recrimination against respondent No. 1 (petitioner in the election petition). Possibly soma issues may arise from the recrimination which require determination by the Tribunal. For al these reasons it is necessary to remand the case to the Tribunal to decide further questions that may arise between the parties according to law.
18. In the result we allow the appeals, set aside the order of the Tribunal and remand the case as stated above. In the circumstances of this case we leave the parties to bear their own costs.
M. B. A. Case remanded.
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