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Constitutional Petition No. D‑8'13 of 1985, decided on 11th October, 1986.

‑‑‑Rr.15(6), 35, 40 & 65‑‑Election‑‑‑Petitioner, challenging election of respondent as returned candidate, contended that disputed ballot papers had not been marked in prescribed manner so as to clearly manifest intention of voters and as such should not have been counted‑‑Perusal of disputed ballot papers showing that they had been marked with official rubber stamp and except for tine fact that marking was incomplete same did not suffer from any other defect‑‑Marking was made within space containing name and symbol of respondent and there appeared to be no doubt that votes had been carat in disputed ballot papers in favour of respondent‑‑Votes cast through such ballot papers, held, were valid and rightly accepted in favour of respondent.

Irshad Ahmad v. Shafi Muhammad and 5 others 1981 C L C 1332 rel.

Nasrullah Khan v . Member, Election Commission P L D 1966 (W.P.) Lah. 850 ref.

Usman Ghani Rashid for Petitioner.

Masood Hayat Khan for Respondent No.l.

Date of hearing: 6th October, 1986.

This petition was dismissed by us on 6‑10‑1986 by a short order, the reasons for which were to be recorded later. The reasons are as follows:‑

2. The brief facts giving rise to this petition are that the petitioner was declared elected to Union Council 12 Darsana Channa, Karachi in the Local Bodies Election held in September, 1983. The respondent No.l, namely, Muhammad Moosa, filed election petition under the provisions of rule 65 of the Sind Local Council (Election) Rules, 1979, questioning rejection of thirteen ballot papers, wherein votes had been cast in his favour, and on such basis, the election of the petitioner as a successful candidate. The said petition was heard by the learned Election Tribunal and Second Sind Labour Court, Karachi (respondent No.4) and by its order, dated 20‑11‑1985, it allowed the Election Petition and declared the respondent No.l as elected. The same order has now been impugned before us in this Constitutional Petition.

3. In the said order, dated 20‑11‑1985, the learned Election Tribunal held that out of 29 ballot papers rejected by the Returning Officer (respondent No.2) eleven had been erroneously rejected as they had been marked in a manner clearly manifesting the intention of the voters and after counting such votes in favour of the respondent No.l he declared him elected by a margin of six votes against the petitioner.

4. We have heard Mr. Usman Ghani Rashid, learned counsel for the petitioner and Mr. Masood Hayat Khan, learned counsel for the respondent No.l. None appeared on behalf of other respondents.

5. The only contest was on the point whether the votes on the ballot papers in question had been marked by the voters in compliance with the requirements of rule 15(6) of the above said Election Rules and whether the same were rightly accepted by the Returning Officer in view of rule 40(4)(c) because the contention of Mr. Usman Ghani Rashid was that the ballot papers had not been marked in the manner so as to clearly manifest the intention of the voters, therefore, such votes should not have been counted in favour of the respondent No.l. Additionaly it was argued that the ballot papers in question had not been marked by the voters in accordance with the official instructions received in this respect. The contention of Mr. Masood Hayat Khan, on the other hand, was that the ballot papers in question had been properly marked by the voters and, therefore, votes cast through such ballot papers were rightly counted in favour of the respondent No.l.

6. Before the controversy can be resolved it would be worthwhile to reproduce the relevant rules which provide as follows:‑

"36. (1) Where an elector presents himself at the polling station to vote, the Presiding Officer shall, after. satisfying himself about the identity of the elector, issue to him a ballot paper in Form .........

(6) The elector, on receiving the ballot, shall‑‑

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

(b) put the cross or tick mark on the ballot paper at any place within the space containing the name and symbol of 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. 40. (1)

(4) The Presiding Officer shall‑‑

...............................................................

(c) count, the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear.

(i) no official mark;

(ii) any writing or any mark other than the official mark and the cross or tick mark or to which a piece of paper or any other object of any kind has been attached;

(iii) no cross or tick mark indicating the contesting candidate for whom 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 a candidate if the whole or more than half of the area of the cross or tick mark appears clearly within the space containing the name and symbol of that candidate; and where the cross or tick mark is divided equally between two such spaces, the ballot paper shall be deemed to be invalid".

7. We have also perused the written comments filed on behalf of the Sind Election Authority, respondent No.5. The said respondent has referred to papers 76 and 78 of the Manual of Guidance for the Presiding Officer3 wherein the procedure for marking of votes on the ballot papers has been provided. According to para. 76, the elector on receiving the ballot paper from the Presiding Officer or Assistant Presiding Officer, shall put the prescribed mark with the rubber stamp supplied to him 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 at the election. Para. 78 refers to the design of the rubber stamp.

8. We were requested by the learned counsel to peruse the disputed ballot papers and on perusal we found that the ballot papers had been asked with the official rubber stamp and except for the fact that the marking was incomplete, the same did not suffer from any other defect. The marking was made within the space containing the name and symbol of the respondent No.l and there appeared to be no doubt that the A votes had been cast in the disputed ballot papers in favour of the respondent No. 1. Rule 35(6)(b) of the said rules of 1979 only provides that the voter shall put the cross or tick mark on the ballot paper at any place within the space containing the symbol of the contesting candidate of whom he wishes to vote. The learned Presiding Officer after perusal of the disputed ballot papers found that the votes were valid and consequently counted them in favour of the respondent No.l. Mr. Usman Ghani Rashid however, contended that the marks on the ballot paper were not prescribed official marks in accordance with the said Manual of Guidance for the Presiding Officers. We are not at all B impressed with this argument as perusal of the disputed ballot papers has made it crystal clear that votes on the same were in fact marked with the prescribed official rubber stamp although the marking was incomplete. We, therefore, are clearly of the view that the ballot papers were valid and the votes cast through them were rightly accepted by the learned Election Tribunal as votes in favour of the respondent No. 1. We are fortified in our view by a D. B. decision of this Court in Irshad Ahmed v. Shah Muhammad and 5 others 1981 C L C 1332 wherein it was held that if a ballot paper unambiguously reveals intention of the elector, presence of other mark will not render vote invalid and it will be counted in favour of the candidate for whom it appears to have been cast. Although reliance was placed by Mr. Usman Ghani Rashid on the case of Nasrullah Khan v. Member, Election Commission P L D 1966 (W.P.) Lah. 850 wherein, while interpreting the provision of section 38(2) of the National and Provincial Assemblies (Election) Act, 1964, the Lahore High Court had held that a ballot paper, choice in which had been expressed by a mark other than prescribed mark, would be invalid. However, in our opinion, this case is not attracted to the facts of the present case and is clearly distinguishable.

9. We, therefore, find no force in this petition and for such reasons this petition was dismissed by a short order.

M.Y.H./5153/K Petition dismissed

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