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Election Petition, decided on 26th October, 1986.

‑‑‑S.33(5)(b)‑‑Ballot‑paper, marking of‑‑Requirement‑‑To put the prescribed mark at any place within the column containing name and symbol of contesting candidate for whom an elector wishes to vote, is obligatory‑‑Such requirement, however, is not mandatory.

‑‑‑Ss.33(5) & 38(4)‑‑Ballot papers, counting of, and exclusion from‑ Provisions of S.33(5) providing for marking of ballot‑paper, has to be read in conjunction with S.38(4) wherein procedure for counting of votes has been provided‑‑Only those ballot papers have to be excluded from the count and treated as invalid which do not contain the prescribed mark indicating contesting candidate for whom elector has voted or which bear a mark wherefrom it is not clear for whom elector has voted.

‑‑‑Ss.33 & 38‑‑Representation of the Peoples (Conduct of Election) Rules, 1977, Rr. 17 & 23‑‑Marking and counting of ballot‑papers‑ Procedure.

Mian Jamal Shah's case P L D 1965 Jour. 89; Pontardawe Rural Council Election Petition (1907) 2 KB 313 D C; Jamshid Ahmad Khan v. Ghulam Hussain and others P L D 1986 Jour. 34; Muhammad Saleem v. Provincial Election Authority Sind at Karachi and 2 others P L D 1985 Kar. 135 ; Khan Shahzada v. Maulvi Fazal Rabi and 3 others 1983 SCMR 125; Irshad Ahmed v . Shafi Muhammad and 5 others 1981 CLC 1332; The Law of Elections and Elections Petitions in India" by Nanak Chand Pandit and Gyan Chand Mathur Second Edition 1957; Cirencester Election Petition Q.B. Div. 1803; Lexion of Election Laws page 17; Lammond Indian Elections page 111 (1925 Edition) and Col. (Rtd.) Syed Mukhtar Hussain Shah v Wasim Sajjad and 50 others P L D 1986 SC 178 ref.

‑‑‑Ss.33 & 38‑‑Representation of the Peoples (Conduct of Election) Rule, 1977, Rr. 17 & 23‑‑Marking and counting of ballot‑papers‑‑Duty of Presiding Officer/ Returning Officer while counting ballot‑papers‑‑While counting ballot‑papers, duty of Presiding Officer/ Returning Officer, would include to ascertain unambiguous intention of voter even if mark had not been put in appropriate chamber, but had been placed somewhere else in the space containing name and symbol of candidate for whom voter intended to vote.

‑‑‑Ss. 33, 38 & 52‑‑Representation of the People (Conduct of Election) Rules, 1977, Rr. 17 & 23‑‑Counting of ballot‑papers‑‑Rejected ballot‑papers having prescribed marks in column immediately below the column containing name and symbol of petitioner, held, would positively be intended for such petitioner under whose name voters had put the prescribed marks space provided between name and column of petitioner being too little to affix the mark in that space‑‑Such rejected votes when counted in favour of petitioner were more than enough to declare him as a returned candidate‑Accepting election petition the petitioner was declared a successful candidate to have won the election in place of contesting respondent who was deemed to have lost the election as against petitioner.

Sh. Shaukat Ali, Nabi Bukhsh Bhatti and Zaman Hussain for Petitioner.

Kh. Ahmad Tariq Rahim for Respondent No.1.

Respondent No. 2: Ex parte.

Dates of hearing: 1st July, 19th and 20th October, 1986.

General election in respect of National Assembly Constituency No. NA‑61 Mianwali‑cum‑Bhakkar was held on 15th February, 1985. Aamer Hayat Khan petitioner herein (ii) Dr. Sher Afgan respondent No.1 and (iii) Haji Ghulam Muhammad respondent No.2, who has since been proceeded against ex parte contested this election. The petitioner was allotted the symbol of a tractor while Dr. Sher Afgan the contesting respondent was allotted lantern as his symbol. The third candidate viz. Haji Ghulam Muhammad had umbrella as his symbol.

2. Total votes allocated to this constituency were 2,14,404. Total votes which were cast turned out to be 1,39,968. Out of these total votes which were cast 1,31,545 were counted as valid votes while 8,423 were declared as a result of count as invalid votes.

3. Dr. Sher Afgan the contesting respondent, as result of count, obtained 61, 924 votes. The petitioner Aamer Hayat Khan obtained 60, 954 votes. Haji Ghulam Muhammad, the third candidate obtained only 8,666 votes. Consequently Dr. Sher Afgan the contesting respondent was declared as returned candidate and thus notified as member of the National Assembly from Constituency No. NA‑61 Mianwali‑cum‑Bhakkar.

4. Being dissatisfied with the counting resulting into the declaration of Dr. Sher Afgany, respondent No.1 as the returned candidate, the petitioner Aamer Hayat Khan filed the present election petition under section 52 of the Representation of the People Act (Act No. LXXXV of 1976).

5. It has been mainly urged in the under consideration election petition that in case of Constituency No. NA‑61, ballot‑papers were printed in violation of the relevant rules of the Conduct of Election Rules, 1977, inasmuch as in case of the respondents whose names and symbols figure at columns Nos. 1 and 2 viz. those of Haji Ghulam Muhammad in column No.1 and of Dr. Sher Afgan in column No.2, sufficient spaces being more than one inch were provided in between the names and symbols of these respondents, but in case of the petitioner who figures in column No.3, space even less than half an inch was provided between his name and symbol. The remaining seven columns on the ballot‑papers were, of course, left blank. It has further been alleged that on account of the aforementioned defect in the printing of the ballot‑papers the electors who intended to vote for the petitioner could not find space to put the mark in column No.3 of the petitioner in between his name and his symbol and instead they affixed the mark below his name and symbol. In some cases such mark existed in columns Nos. 3 and 4 under the name and symbol of the petitioner and in some cases the prescribed mark was affixed by the voters in column No.4 immediately below the name and symbol of the petitioner. It has thus been contended that these voters in fact intended to vote for him but the Returning Officer by misinterpreting the provisions of section 38 of the Representation of Peoples Act, 1976, treated such voters as invalid and wrongfully disenfranchised the voters. According to the petitioner the number of such votes which allegedly were illegally declared as invalid far exceeded the number of difference between the votes obtained by the petitioner and respondent No.1 which were treated as valid ones. It has, therefore, been claimed by the petitioner that the votes which have been illegally and wrongfully declared as invalid and which were intended to be cast in favour of the petitioner should be counted as valid votes polled in his favour and consequently election of respondent No.1 be declared as illegal and instead the petitioner should be declared to have been elected from Constituency No. NA‑61 Mianwali‑cum‑Bhakkar.

6. The election petition, of course, has been vehemently resisted by Dr. Sher Afgan, the returned candidate i.e. respondent No.1 (hereinafter referred as the respondent). He maintained in his written statement that in the preparation and printing of the ballot‑papers no irregularity or violation of the relevant rules has taken place and that equal spaces have been provided in the relevant columns to the petitioner and the respondents. The Returning Officer was justified to declare such votes as invalid in case of which the prescribed marks affixed were not in between the name and symbol of the petitioner in his column but were affixed in different columns, with which the petitioner had no connections whatsoever. It has also been urged by the respondent that even in case of marks which overlap column No.3 of the petitioner and column No.4 immediately below thereof, since more than 50 per cent marks were not in the appropriate column the votes were rightly rejected and treated as invalid.

7. In the light of the parties pleadings, originally the following preliminary issue was framed on 14‑5‑1985:‑

"Whether 3,977 ballot‑papers bearing the mark of the voters below and not in front of the name of the petitioner had been erroneously excluded from the count If so, its effect."

8. Before arguments could be heard on the aforementioned preliminary issue, the respondent sought an adjournment on the plea that he would like to submit an application for amendment of the written statement. Such an application was filed on 5‑11‑1985. Reply to the same was filed on 10‑11‑1985. 4n the same day, the learned counsel for the petitioner stated that he had no objection if the respondent was allowed to raise the objection and argue the question whether this tribunal had no jurisdiction to scrutinize or decide upon the validity of the rejected votes. Consequently the following issue was added as issue No.2.

"Whether this Tribunal has no jurisdiction to scrutinize or decide upon the validity or the rejected votes '1

On 26‑2‑1986, the learned counsel for the parties stated that the question of validity or invalidity of the rejected ballot‑papers only remained to consider and that they did not press the other pleas taken in the election petition and its reply.

They also maintained that the rejected ballot‑papers could be, broadly divided into four categories and that it would be convenient if the rejected ballot‑papers of each category were separated and that this might be done by the Returning Officer and the Election Commissioner, Punjab, in the presence of the parties or their representatives. The order was thus made accordingly. It was that the result of the exercise of recounting should be completed before the 17th March, 1986 and the rejected ballot‑papers should be produced on the said date to which date the election petition was adjourned for further proceedings. On 17th March, 1986, the following order was made:‑

"As directed the rejected ballot‑papers have been grouped into four categories and a report has also been submitted. Sh. Shaukat Ali Advocate states that the rejected ballot‑papers and the report be read as evidence in the case. Kh. Tariq A: Rahim Advocate has no objection. The rejected ballot‑papers and the report shall, therefore, be read as evidence in the case. The categorization of the rejected ballot‑papers into four groups was done by the Returning Officer and the Election Commissioner, Punjab, in the presence of the representatives of the parties. These representatives, it is admitted, have also signed each page of the report consisting of 15 pages. Scrutiny of the report may now proceed as requested by the parties by opening the sealed covers containing the rejected ballot‑papers. By now scrutiny of the rejected ballot‑papers of 14 polling stations has been conducted. The result of the scrutiny has been recorded on the sheet mark 'A'. At this stage Sh. Shaukat Ali Advocate, learned counsel for the petitioner states that out of the rejected ballot‑papers, in 2,830 ballot‑papers the prescribed mark has been put in column No.4 i.e. the column just below column No.3 which contains the name and the symbol allotted to the petitioner and the other 723 ballot‑papers carry the prescribed mark only partly at the space between the name and symbol of the petitioner while the other part extends in the column below i.e. column No.4. It is added that even if ail the prescribed marks are taken to have been put in column No.4 still all these ballot‑papers numbering 3,553 are valid votes and the question of their validity is only to be determined by the Tribunal. His case is that there ballot‑papers were illegally rejected by the Returning Officer and as such these 3,553 votes merit to be counted in favour of the petitioner.

Kh. Tariq A. Rahim does not dispute the number of the ballot‑papers which carry the prescribed mark as stated by Sh. Shaukat Ali Advocate. The argument of learned counsel for the contesting respondent is that these ballot‑papers which carry prescribed mark either entirely in column No.4 or partly in the prescribed space of column No.3 and partly in column No.4 were rightly rejected and excluded from the count by the Returning Officer and as such these rejected ballot‑papers cannot legally be counted in favour of the petitioner. In view of the respective submissions of the learned counsel for the parties the question that requires determination is whether the Returning Officer illegally rejected 3,553 votes. If so, whether these votes can be counted in favour of the petitioner. Both the learned counsel state that now the arguments are only to be addressed by them in support of their respective submissions and that the record is no more needed. The record may not, therefore, be produced on the next date of hearing.

To come up‑ on 12‑4‑19.86 as agreed by both the parties."

It thus becomes evident from the contents of the order, dated 17‑3‑1986, that the only issue/question which has to be determined is whether the Returning Officer illegally rejected 3,553 votes If so, whether these votes can be counted in favour of the petitioner."

9. Section 33 of the Representation of the People Act, 1976, deals with voting procedure. Subsection (5) of section 33 provides:‑

5) On receiving the ballot‑paper, the elector shall‑

(a) forthwith proceed to the place reserved for marking the ballot‑paper;

(b) put the prescribed mark on the ballot‑paper at any place within the space containing the name and symbol of the contesting candidate for whom he wishes to vote; and

(c) after he has so marked the ballot‑paper, fold and insert it in the ballot‑box.

By virtue of the provisions of clause (b) of subsection (5) of section 33 it has been made obligatory for, the elector to put the prescribed mark at any place within the column containing the name and symbol of the contesting candidate for whom he wishes to vote. This requirement, however is not mandatory. It is in the nature of a directory obligation, inasmuch as in case of failure to strictly comply with this requirement no consequence has been provided. Section 38 of the Representation of the People Act, 1976, however, has to be read in conjunction with the aforementioned provisions. Section 38 contains the procedure in respect of proceedings at the close of the poll. Subsection (4) of section 38 ibid, reads:

The presiding Officer shall 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‑

* * * * * * * * *

(iii) no prescribed mark to indicate the contesting candidate for whop the elector has voted; or

(iv) any mark from which it is not clear for whom the elector has voted

Provided that a ballot‑paper shall be deemed to have been marked in favour of candidate if the whole or more than half of the area of the prescribed mark appears clearly within the space containing the name and symbol of that candidate and, where the prescribed mark is divided equally between two such spaces the ballot‑paper shall be deemed invalid."

It transpires from the cursory reading of sub‑clauses (iii) and (iv) of clause (c) of subsection (4) of section 38 which are relevant to the facts of the present case that only those ballot‑papers have to be excluded from the count and treated as invalid which do not contain the prescribed mark indicating the contesting candidate for whom the elector has voted or which bear a mark from which it is not clear for whom the elector has voted. The proviso is to the effect that where more than fifty per cent of the prescribed mark appears within the space containing the name and symbol of a candidate then it would be ‑counted for that candidate.

Rule 17 of the Representation of the People (Conduct of Election) Rules, 1977 provides the manner of marking the ballot‑paper and it is to the effect that the mark which has to be put on the ballot‑paper at any place within the space containing the name and symbol of the contesting candidate for whom the elector wishes to vote, shall be a mark containing squares on a rubber‑stamp to be provided for the purpose by the Presiding Officer at the polling station id no other mark. Rule 23 ibid, contains the procedure regarding count on close of poll. Sub‑clause (iv) of clause (a) of rule 23.reads:‑

"any mark from which it is not clear for whom the elector has voted, provided that a ballot‑paper shall be deemed to have been marked in favour of a candidate if the whole or more than half of the area of the prescribed mark clearly within the space containing the name and symbol of that candidate; and, where the prescribed mark is divided equally between two such spaces, the ballot‑paper shall be deemed not to show clearly , for whom the elector has voted;"

As a matter of fact, provisions of rule .17 and rule 23 of the Representation of the People (Conduct of Election) Rules, 1977 are in consonance with the provisions of sections 33 and 38 of the Representation of the Peoples Act, 1976. Rule 17, however, provides that ballot‑paper shall be marked with the prescribed rubber stamp containing squares on it to be provided by the Presiding Officer to the elector.

10. A close and considered analysis of the aforementioned provisions contained in sections 33 and 38 of the Representation of the People Act, 1976, and of rules 17 and 23 of the Representation of the People (Conduct of Election) Rules, 1977 leads to the conclusion that the elector, at the time of conduct of poll has to place the prescribed mark anywhere in the space (column) containing the name and symbol of the candidate for whom he wishes to vote and even if more than half of a prescribed mark appears in a column of a candidate it shall be deemed to be a valid vote cast in favour of that candidate. The vote has to be taken out of consideration and treated as invalid if it, is not possible to ascertain as to for whom the elector has voted. The position. thus boils down to the proposition that so long from the mark put by the elector it is ascertainable that he intented to vote for a particular candidate then the vote has to be treated for that candidate and it cannot be thrown away as an invalid vote Mian Jamal Shah s P L D 1965 Jour‑. 89, it was observed:‑

"In the other ballot‑paper there was a cross‑mark but it was put in the column where there was the symbol of Mr. Nasrullah Khan Khattak and not in the appropriate chamber provided for the purpose in the ballot‑paper. The ballot‑paper, therefore, did bear a prescribed mark and that being so it could not be rejected on that ground. The fact that the cross‑mark was not put in the appropriate place provided for in the ballot‑paper could not invalidate the ballot‑paper. Under section 32(3)(b), the elector was required to put the prescribed mark on. the ballot‑paper against the name and symbol of the. contesting candidate. It is not required under the Act or Rules that the mark should be made in any particular place of the ballot‑paper. If a space is provided in the ballot‑paper for the‑ purpose and the Voter does not put the mark in that space, but against the name of the candidate, the requirement of law is satisfied and the ballot‑paper cannot be rejected on that score. Moreover, even if something is required to be done under section 32, its non‑compliance will not necessarily result in the rejection because wherever the Legislature intended such an action it had specifically so provided: Under section 38, the Returning Officer is under a statutory obligation to reject a ballot‑paper if it bears no prescribed mark. There is no provision requiring such an action in a case where the mark is not made in any specified space. In Pontardawe Rural Council Election Petition (1907).2 KB 313 DC) it was held that a ballot‑paper, on which a vote is marked elsewhere than in the proper place, is not by. reason thereof to be deemed to be void. The space is provided against the name of the candidate only to facilitate the marking. If the candidate puts the prescribed mark somewhere other than the space, but intention is clear that‑ he has voted for any particular candidate, the ballot‑paper is to be accepted as a valid vote for, that candidate. The order of the Returning Officer rejecting ballot‑paper is wrong and is, accordingly, set aside. The ballot‑paper will be counted in favour of Mr. Nasrullah Khan Khattak. By adding this vote in his favour, the total number of the votes polled by him comes to 238."

In a recent case a learned Election Tribunal of Sind at Karachi in the case of Jamshid Ahmad Khan v. Ghulam Hussain and others PLD 1986 Jour. 34. with reference to the provisions of sections 33 and 38 of the Representation of the People Act, 1976, has held that main object of the provisions of the Electoral Laws is to ascertain the intention of voter to find out in whose favour the voter had intended to cast his vote. After examining the provisions of rules 17 and 23 of the Representation of the People (Conduct of Election) Rules, 1977 and sections 33 and 38 of the Representation of the People Act, 1976, the learned Tribunal observed:‑

"A close scrutiny of these provisions will show that they provide the place where the vote is required to put the prescribed mark and the manner in which the prescribed mark is to be put. The mark can be put at any place in the space containing the name and symbol of the candidate. It does not say that the prescribed mark should be put in the space between the symbol and the name. It is possible that there may be sufficient space on the left or right side of the name and the symbol and if a voter puts the mark within that space, can it be said that he has violated the aforesaid provision of law. The words 'any place' are the key words and they give freedom to the voter to put his mark wherever he wishes with the space containing the name and symbol."

It has also been observed in this judgment that where the mark was not put within the space containing the name and symbol, the Presiding Officer was duty bound to ascertain unambiguous and clear intention of the voter and that the ballot‑paper could only be excluded from count where the clear intention of the voter could not be ascertained.

In Muhammad Saleem v. Provincial Election Authority Sind at Karachi and 2 others P L D 1985 Kar. 135, the dispute pertained to election of Chairman of Town Committee. A voter instead of placing cross‑mark in column reserved for marking placed the same in column of serial number but against petitioner's name. The Presiding Officer excluded such vote from counting in favour of the petitioner. It was held that the voter intended to case his vote in favour of the petitioner as cross had been placed in middle of column number reserved for the petitioner and that intention of voter was manifest, his vote could not be rejected on technical ground. The Presiding Officer was required to decide the question of validity of a vote in consonance with well -established principles of law and not in any manner or in whatever manner. It was finally concluded that the Presiding Officer illegally excluded the vote from counting in favour of the petitioner.

The well‑established rule that in determining question relating to marking of the ballot‑papers the rule of decision is to ascertain the intention of the voter from such marking has been high‑lighted in Khan Shahzada v Moulvi Fazal Rabi and 3 others 1983 S C M R 125.

In Irshad Ahmed v. Shafi Muhammad and 5 others. 1981 C L C 1332, a Division Bench of the Sind High Court observed that the clear principle concerning the count of valid papers was that if the ballot‑paper unambiguously revealed the intention of the elector to have cast his vote in favour of particular candidate the presence of other marks would not render the vote invalid and the vote would be counted in favour of the candidate for whom the vote appeared to have been cast. In this judgment reference has been invited to contents on page 134 of the book "The Law of Elections and Election Petitions in India" by Nanak Chand Pandit and Gyan Chand Mathur Second Edition (1957). In this book the authors quoted from reported cases, the following observations:

"The Court ought to give effect to any mark on the face of the paper, which, in its opinion, clearly indicates the intention of the voter whether such marks are in the shape of a cross or a straight line or any other form, or whether made with pen and ink, pencil or even an indentation made on the paper and whether on the right or left hand of the candidate's name or elsewhere within his compartment of the voting paper. The mere fact of two crosses being placed ought not to vitiate the ballot‑paper, if there is no doubt as to the intention to vote and to vote emphatically for the one candidate."

In Pontardawe Rural District Council Election Petition (2 K B 1907), it was ruled:

"A ballot‑paper is not rendered void under the Ballot Act, 1872, by reason of the voter placing his mark outside the ruled compartment on the paper, within which compartment it is intended that the voter's mark shall be placed, if the mark is in such a position opposite to the name of a candidate as to leave no doubt for whom the voter intended to vote."

In the Cirencester Election Petition (Q B Div. 1803), it has been observed:‑

"If a man receives his ballot‑paper from the officer, a fair presumption arises that he could intend to exercise the franchise and to vote. Then we have to look at the paper itself and to see whether, got a voting paper, he has indicated an intention to vote and the particular candidate for whom he intends to vote. We think that if we can find out on the face of the paper that the man clearly intended to vote, and has made his mark with the view of recording that intention, then the vote ought to stand."

In S. Mohan Singh v. S. Santokh Singh (Indian Section Cases it was observed in relation to an Eastern Towns (Sikh) Constituency that the principle regarding counting of ballots to be applied was that the position of the mark on the ballot‑paper was not material so long there was a clear intention that the elector intended to vote for a particular candidate."

In the Lexion of Election Laws page 17, it has been observed:‑

"If the intention of the voter, is clearly indicated on the ballot- paper, and it is marked according to the Rules, its rejection on account of any misgivings or suspicions arising in the mind of the Returning Officer is entirely unjustified. The position of the mark on the ballot‑paper is not material so long as there is a clear indication that the elector intended to vote for a particular candidate. Even where the cross is put outside the space intended for it but opposite the name of the candidate it is a good vote for candidate.

In the case of S.K. Hosmani v. V.N. Jog and others commonly known as Dharwar District Election case of Bombay Legislative Council, reproduced in the book, Lammond Indian Elections page 111 (1925 Edition), it has been observed:‑

"In the ballot‑papers in question, while there were only four candidates at the election, the ballot‑papers provided six spaces, with the result that several marks purporting to be votes were recorded either in one or other of the blank spaces below the last candidate's name, and in the opinion of the Commission gave reasonable ground for at least Mr. Hosmani, the fourth candidate on the paper, to contend that all the marks made in the blank space below his name or symbol were indended by the voters for him.

In this case, however, the Commission came to the conclusion that the result of the election could not be considered to have been materially affected as even if the benefit of such marks were given to Mr. Hosmani, he could not claim to succeed."

11. Mr. Tariq A. Rahim, Advocate, the learned counsel for the respondent, however, has maintained in the first instance that in case of votes which have been treated as invalid by the Presiding Officer in this case he was justified to do so, inasmuch as the voters did not mark the ballot‑papers in accordance with the procedure prescribed in section 33 of the Representation of the People Act, 1976 and also rule 17 of the Representation of the People (Conduct of Election) Rules, 1977. He has further urged that if the law prescribed a thing to be done in a particular manner it should be done in that manner and if it has not been done in that manner, it loses its validity. lie has placed reliance on the case of Col. (Retd.) Syed Mukhtar Hussain Shah v Wasim Sajjad and 50 others P L D 1986 SC 178. In this case it has been observed that 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.

Secondly it has been contended on behalf of the respondent that even if it be assumed that intention of the voter has to be ascertained and the mark even if not put in the prescribed chamber but somewhere in the column of a particular candidate in regard to whom intention was ascertainable that the voter intended to vote for him the vote has to be counted in favour of such candidate, even then in the circumstances of the present case the votes in question could not be considered as valid and cast in favour of the petitioner, because in case of these votes marks were not placed in the space containing the name and symbol of the petitioner, but were affixed in a different column below the column (space) meant for the petitioner. Reliance on behalf of the respondent has also been placed on Abdul Khaliq v Province of Sind and 3 others 1980 C L C 1832. In this case it was ruled that the position emerged that the procedure for the conduct of election of the Mayor and the Chairman had been, totally entrusted to the Presiding Officer who had to maintain the secrecy of the ballot. There might be so much to wish in the system evolved, but the intention was express and free of all ambiguity. It could not be suggested that in no circumstances, could a vote cast be excluded as invalid.

12. The arguments advanced on behalf of the respondent have been considered and analysed. Regarding the first contention raised on behalf of the respondent it may be observed that the manner prescribed for voting procedure as contained in section 33 of the Representation of the People, Act, 1976 read with rule 17 as also the procedure for counting the ballots provided in section 38 of the Representation of the People Act, 1976 and rule 23 of the Representation of the People (Conduct of Election) Rules, 1977, particularly read in the light of the contents of proviso to sub‑clause (iv) of clause (c) of subsection (4) of section 38 ibid would include a duty cast on the Presiding Officer/ Returning Officer to ascertain the unambiguous intention of the voter even if the prescribed mark has not been put in the appropriate chamber, but has been placed somewhere else in the space containing the. name and symbol of a candidate for whom the voter intended to vote. In this view of the matter it can be said that in case of a ballot about which the intention of the elector is ascertainable marking shall be deemed to have been done in accordance with the prescribed procedure.

So far as the second point urged on behalf of the respondent is concerned it is true that ordinarily if a voter has not put the prescribed mark in the appropriate chamber but has put that mark in the space meant for a candidate containing his name and symbol the vote is to be deemed to have been cast in favour of such candidate. The broad principle is relevant if such a mark is present in case of a candidate whose name and symbol occurs in a space provided in between the spaces of two other rival candidates. The circumstances of the present case, however, are slightly different. In this case only three candidates contested the election. The name symbol of the petitioner was printed in the third column (space). The first two columns were allotted to the respondent and another candidate namely Haji Ghulam Muhammad. Seven columns below the column meant for the petitioner were left blank. After having seen the original ballot‑papers it has been noticed that the appropriate spaces where the prescribed mark was required to be put in case of the respondent and the third candidate namely Haji Ghulam Muhammad was more than one inch in length but in case of the petitioner it was hardly half an inch or less than half an inch. In such a situation the voters who wanted to vote for him naturally were confronted with some difficulty. In case of votes in question which have been declared as invalid by the Returning Officer marks have been placed in such a manner that in case of 3,553 votes the prescribed marks are either in column No.4 i.e. column immediately below the column containing the name and symbol of the petitioner or partly at the space between the name and symbol of the petitioner and partly in column No.4. 723 ballot‑papers carry the prescribed mark partly at the space containing the name and symbol of the petitioner and partly in the column below that i.e. column No.4, while the remaining ballots out of these 3,553 ballots declared as invalid, marks have been put in column No.4, below the name and symbol of the petitioner. In Election Petition No.45 of 1985 in re: Mian Ghulam Dastgir Bari v Rai Salah‑ud‑Din and others, my learned brother Mr. Justice Rustam S. Sidhwa in his Lordship's papacity as Election Tribunal decided the question about the validity of votes in respect of which the marks appeared on the line dividing the space or compartment of the petitioner in that case from that immediately below which was blank. In that case more than half of the area of the affixed marks did not fall within the space or compartment of the petitioner and all marks fully fell in the blank space or compartment below or even still further down. His Lordship observed that the answer to this dispute obviously depended upon the question as to what was the intention of 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. It was found that the space was provided only to facilitate the marking and if the voter placed the prescribed mark somewhere outside the space allotted but his intention was clear that he had voted for a particular candidate and no clash arose with the space of any other contesting candidate the ballot‑paper could be accepted as a valid vote. Incidentally it may be mentioned that an appeal against this order taken to the Supreme Court of Pakistan was dismissed as having been withdrawn. As already discussed this view finds support from Hosmani's case, referred above.

13. In the light of the factual position of the present case also in case of rejected ballots numbering 3,553, marks have :peers put in column No.4 immediately below column No.3 containing the name and symbol of the petitioner. Rather in case of 723 votes, out of these 3,553 votes, murk is partly present in column No.3 and partly In column Immediately below column No.3. By no stretch of imagination in regard to these votes it can be assumed that they could be intended for the respondent or the other candidate, namely, Haji Ghulam Muhammad, whose columns were numbers 1 and 2 above the column of the petitioner. These votes., were positively intended for the petitioner under whose lame the voters have put the prescribed marks. This view further gets strength from the fact that the space provided between the name and column of the' petitioner was too little to affix the marks in that space.

Apart from these rejected 3,553 ballots, the respondent Dr. Sher Afgan secured 61,924 votes while the petitioner obtained 60,954 votes. The third candidate, namely, Haji Ghulam Muhammad obtained only 8,666 votes. Difference of the votes obtained by the petitioner and the respondent, which have already been treated as valid is only 970 votes. If the votes numbering 3,553 which have illegally rejected by the Returning Officer and treated as invalid are include in the votes which have already been declared to have been obtained by the petitioner, as valid votes, his number of valid voles turns out to be 64,507. Consequently, it is concluded that the respondent has been illegally and wrongfully returned as successful candidate from Constituency No.NA‑61 Mianwali‑cum‑Bhakkar. His election is, therefore, hereby declared as void and instead the petitioner is declared to have been duly elected as member from the said constituency. In the peculiar circumstances of this case, no order is made as to costs.

A copy of this judgment shall be forwarded to the Election. Commission of Pakistan for necessary action.

A. A. /3/L Petition accepted.

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