2023 C L C 2063
[Balochistan]
Before Naeem Akhtar Afghan, CJ and Muhammad Aamir Nawaz Rana, J
SHER AFGHAN KHAN ZARKOON----Petitioner
Versus
GOVERNMENT OF BALOCHISTAN, LOCAL GOVERNMENT, RURAL
DEVELOPMENT AND AGROVILLES DEPARTMENT, QUETTA through Secretary
and 6 others ----Respondents
Constitution Petition No.66 of 2023, decided on 1st June, 2023.
Elections Act (XXXIII of 2017) ---
----Ss. 8 & 9---Balochistan Local Government (Election) Rules, 2013, Rr.40 & 42---Constitution of Pakistan, Arts. 199 & 218 (3) ---Constitutional petition ---Election dispute ---
Rejecting of votes ---Non-holding of inquiry---Effect ---Presiding officer, conduct of ---
Petitioners were aggrieved of election conducted by authorities for the seat of Chairman Municipal Committee ---Validity ---Rival claims with regard to rejection of vote constituted
factual controversy and such exercise was avoided by High Court in Constitutional jurisdiction under Art. 199 of the Constitution ---Conduct of Presiding Officer, Municipal
Committee, concerned was very relevant to ascertain fairness and transparency of election held for the seat of Chairman Municipal Committee ---Provisions of Chapter VIII of
Balochistan Local Government (Election) Rules, 2013, pertained to election of Chairman and Vice Chairman Municipal Committees ---Controversy between the parties pertained to R.63
(6) of the Balochistan Local Government (Election) Rules, 2013--- Presiding Officer of the
Municipal Committee should have conducted summary inquiry at the spot to ascertain legality and validity of rejected vote, as apparently other marks were also put by some other pen on the disputed ballot papers ---Voter himself could not have destroyed secrecy of his
vote in order to provide benefit to petitioner ---Election of Chairman Municipal Committee
hinged upon the fate of such disputed votes, therefore, its rejection and subsequent conduct of Presiding Officer Municipal Committee by not holding summary inquiry at the spot had materially affected result of the election held for seat of Chairman Municipal Committee ---
High Court directed Election Commission to hold fresh elections and set- aside the result of
election held for Chairman Municipal Committee, by declaring the same as void---Constitutional petition was allowed accordingly.
Kamran Murtaza, Adnan Ejaz Sheikh, Tahir Ali Baloch and Noor Jan Buledi for
Petitioner.
Zahoor Ahmed Baloch, Additional Advocate General for Respondent No.1.
Shehzad Aslam, Law Officer, Election Commission of Pakistan (ECP) and Naseer
Ahmed, Assistant Private Secretary ECP assisted by Jaffar Khan, Returning/Presiding
Officer, Municipal Committee, Kohlu for Respondents Nos.2 to 6.
Jameel Ahmed Khan Babai and Bangul Khan Marri for Respondent No.7.
Date of hearing: 3rd May, 2023.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ---The petitioner is aggrieved from
common order dated 17.04.2023 passed by Election Commission of Pakistan ('ECP'), whereby while exercising powers under Article 218(3) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter "the Constitution") read with section 8(c) of the Election Act, 2017 (hereinafter "the Act, 2017"), direction was issued to the Presiding Officer Municipal Committee Kohlu to count one rejected vote of respondent No.7 with further direction to draw a lot under Rule 42 of the Balochistan Local Government (Election) Rules, 2013 (hereinafter "the Rules, 2013").
2. Tersely, relevant facts requiring due deliberation and consideration are that the
petitioner as well as respondent No.7 had submitted their nomination papers in order to contest the Local Bodies Elections 2022 for the seat of Chairman Municipal Committee Kohlu. The elections were held on 09.02.2023 in which twelve (12) Councillors had casted their votes. The record divulges that the petitioner had received six (06) votes, whereas respondent No.7 had received five (05) votes and one (01) vote casted in favour of respondent No.7 was rejected. The respondent No.7 filed Election Petition under sections 8
and 9 of the Act, 2017 before the ECP and challenged rejection of his vote. The ECP, as mentioned above, vide impugned common order dated 17.04.2023 issued direction to the Presiding Officer to count the rejected vote of respondent No.7 with further direction to draw a lot under Rule 42 of the Rules 2013.
3. Mr. Kamran Murtaza, learned counsel appearing on behalf of the petitioner contended
that the disputed vote had rightly been rejected by the Presiding Officer Municipal Committee Kohlu but the ECP, without considering the factual and legal position, declared the said vote legal and counted the same in favour of respondent No.7. Learned counsel further contended that it has categorically been mentioned in the Rules 2013 that if the secrecy of vote is compromised in any manner by putting any identification mark other than the prescribed mark then the vote has to be rejected. Learned counsel submitted that the ECP in the impugned common order had discussed the case of candidate contesting the election for the seat of Vice Chairman Municipal Committee Kohlu and made deliberations in that regard but surprisingly without touching merits of this case and without considering the rejected vote in the light of relevant provisions of Rules 2013 as well as the Act, 2017, declared the rejected vote of respondent No.7 legal, which has caused grave miscarriage of justice.
4. While responding to the contentions of learned counsel for the petitioner, Mr. Jameel
Ahmed Khan Babai, learned counsel appearing on behalf of respondent No.7 contended that
due to strong/political influence of the petitioner, the vote of respondent No.7 had illegally been rejected by the Presiding Officer Municipal Committee Kohlu. Learned counsel submitted that deliberately with mala fide intention additional marks were put on the vote in order to affect the results of the election. Per learned counsel, the intention of voter is very
clear from perusal of rejected vote as proper mark i.e. "X" mark had been put on the ballot
paper but subsequently certain signs were inscribed by the petitioner with the connivance of
the Presiding Officer just to achieve ulterior motives.
Arguments heard. Record perused.
5. The petitioner as well as respondent No.7 are contesting the elections for the seat of
Chairman Municipal Committee Kohlu and the Electoral College is consisting upon twelve (12) Councillors. The perusal of record reveals that the petitioner had received six (06) votes, whereas respondent No.7 had received five (05) votes and one vote of respondent No.7 had been rejected allegedly due to dual marking, suspiciously put to reveal secrecy of the vote. The petitioner was declared as Returned Candidate; the respondent No.7 challenged the result and rejection of his vote before the ECP by filing petition under sections 8 and 9 of the Act 2017. The Returning Officer Municipal Committee Kohlu submitted reply of the petition before ECP; in the light of reply filed by the Presiding Officer Municipal Committee Kohlu and after considering the available record, the ECP passed the impugned common order dated 17.04.2023 and issued direction for counting the rejected vote in favour of respondent No.7 with further direction to draw a lot under Rule 42 of the Rules 2013. For the facility of ready reference, the relevant portion of the impugned common order dated 17.04.2023 is reproduced:
"7. Resultantly, instant petition is warranted. We while exercising powers under Article 218 (3) of the Constitution of Islamic Republic of Pakistan reads with section 8 (c) of the Elections Act, 2017 direct the Presiding Officer to count the rejected vote in favour of petitioners. Needless to mention here that on inclusion of one rejected vote in favour of petitioners, votes of petitioners and respondents will be equal i.e. six votes each. In such view of the matter, Presiding Officer is further directed to draw a lot under rule 42 of Balochistan Local Government (Election) Rules 2013 and furnish the result under the law. He shall do the needful within three working days on receipt of the order.
8. Office to take follow up action and also the precedence".
6. The perusal of record reveals that the Presiding Officer Municipal Committee Kohlu
had invoked Rule 40 (4) (c) of the Rules 2013 for rejecting the disputed vote. For the facility of ready reference, the ibid Rule is reproduced:
"40. Proceedings at the close of the Poll.-
(1) ------------
(2) ------------
(3) ------------
(4) The Presiding Officer shall -
(a) ------------
(b) ------------
(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 mark of "marking aid rubber stamp" or to which apiece of paper or any other object of any kind has been attached;
(iii) no mark of "making aid rubber stamp" 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 mark of "marking aid rubber stamp" appears clearly within the space containing the symbol of that candidate; and
(v) where the mark of "marking aid rubber stamp" is divided equally between two such
spaces, the ballot paper shall be deemed to be invalid".
(Emphasis supplied)
7. In the same manner, the Act 2017 also describes the proceedings at the close of poll.
For the facility of ready reference, the relevant section i.e. section 90 (4) (c) of the Act 2017 is reproduced:
"90. Proceedings at the close of poll.
(1) -------------
(2) -------------
(3) -------------
(4) 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 Spoilt Ballot Papers and the ballot papers which bear -
(i) no official mark and signature of the Presiding Officer;
(ii) any writing or any mark other than 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;
(iii) no prescribed mark to indicate the contesting candidate for whom the voter has voted; or
(iv) any mark from which it is not clear for whom the voter has voted".
(Emphasis supplied)
8. In view of the ibid rules and sections, in order to satisfy ourselves, we had directed
the Presiding Officer Municipal Committee Kohlu to produce the disputed ballot paper before this Court, which he produced on 03.05.2023.
9. The perusal of disputed ballot paper reveals that though proper cross -mark has been
inscribed by the voter in front of the name of respondent No.7 but two other marks are also available thereon. The scanned picture of the disputed ballot paper is as under:
10. The perusal of above ballot paper reveals that the pen
used by the voter in front of the name of respondent No.7 is different from the pen used in
putting extra marks on the ballot paper. It was a close contest and apparently there is a tie
between the contesting candidates if the rejected vote is counted in favour of respondent No.7.
11. Through impugned common order dated 17.04.2023, the ECP decided the petition
filed by respondent No.7 as well as petition filed by the candidate contesting the election for the seat of Vice Chairman Municipal Committee Kohlu. The perusal of impugned common order divulges that the rejected vote of Vice Chairman Municipal Committee Kohlu was discussed and scrutinized by the ECP, whereas the rejected vote (subject matter of this petition) was not even discussed by the ECP. In such scenario, we had directed the Presiding Officer Municipal Committee Kohlu to produce the rejected vote in the election of Chairman Municipal Committee Kohlu for our perusal and for considering the legality of said vote.
12. Though the Presiding Officer Municipal Committee Kohlu had mentioned in his reply
before the ECP that dual marks are observed on the rejected ballot paper, but the perusal of said ballot paper reveals that in fact three (03) marks have been put thereon, so there is clear contradiction in the reply submitted by the Presiding Officer Municipal Committee Kohlu before the ECP compare to the above scanned picture of the disputed ballot paper. Even otherwise, it does not appeal to a prudent mind that why in such a close contest a voter would destroy his/her own vote? Who has put the other marks on the disputed ballot paper with different pen is another question which requires consideration as apparently due to this illegal act the petitioner was benefited by winning the election by one vote.
13. The rival claims with regard to rejection of vote constitute factual controversy and
such exercise is avoided in the writ jurisdiction of this Court under Article 199 of the
Constitution. Nevertheless, the conduct of Presiding Officer Municipal Committee Kohlu is very relevant to ascertain fairness and transparency of election held for the seat of Chairman Municipal Committee Kohlu. Chapter VIII of the Rules 2013 pertains to the election of Chairman and Vice Chairman Municipal Committees; considering the controversy involved in this petition, Sub- rule (6) of Rule 63 of the Rules 2013 is relevant. For the facility of ready
reference, same is reproduced:
"63. Poll.
(1) ----------
(2) ----------
(3) ----------
(4) ----------
(5) ----------
(6) When the ballot papers have been cast, the Presiding Officer shall open the ballot box in presence of the members and count the votes cast in favour of each candidate, and if there is any doubt or dispute about the marking of a ballot paper, the Presiding Office may decide the issue, after holding such summary inquiry, on the spot, as may
be necessary".
(Emphasis supplied)
14. According to the above Rule, the Presiding Officer Municipal Committee Kohlu had
to hold summary inquiry on the spot regarding marking of a ballot paper, but instead of
conducting summary inquiry at the spot, the Presiding Officer Municipal Committee Kohlu went to the office of District Returning Officer Kohlu and District Election Commissioner Kohlu for guidance, which is clear violation of the ibid Rule. For the facility of ready reference, the relevant excerpt from the reply submitted by the Presiding Officer Municipal Committee Kohlu before the ECP is reproduced:
"6. It is further narrated that one vote has dual cross sign one cross in front of a
candidate name at serial No 2 of the ballot paper while the other cross sign was marked in front of the blank column at serial No 3 of the ballot paper (Sketch drawn for better understanding Annex C). Consequently, I being Returning Officer/Presiding Officer approached the District Returning Officer Kohlu and District Election Commissioner Kohlu for the guidance as such type of situation was neither narrated in the training session of ROs held at REC office nor was mentioned in the two pager guidelines material given to ROs for conduct of Chairman/Vice Chairman Elections. Both the mentioned officers at first said that it is valid but District Election Commissioner after consulting Regional Election Commissioner for further guidance then conveyed to the undersigned that it is violation of secrecy of vote therefore, the undersigned rejected one vote due to dual marking suspiciously to reveal the secrecy of vote for that very reason the polled ballot paper was rejected and excluded from the account of validly polled votes as per (Annex B)
Conclusion:
Keeping in view the above said circumstances and record the actual position is humbly submitted before the honorable Election Commission of Pakistan".
15. In our considered view, the Presiding Officer Municipal Committee Kohlu should
have conducted summary inquiry at the spot to ascertain legality and validity of the rejected
vote, as apparently other marks have also been put by some other pen on the disputed ballot
paper and it is extremely illogical and absurd that the voter himself had destroyed the secrecy of his vote in order to provide benefit to the petitioner.
16. Since the election of Chairman Municipal Committee Kohlu hinges upon the fate of
said disputed vote, therefore, in our considered view, its rejection and subsequent conduct of the Presiding Officer Municipal Committee Kohlu by not holing summary inquiry at the spot has materially affected the result of the election held for the seat of Chairman Municipal Committee Kohlu. Consequently, the impugned common order dated 17.04.2023 passed by the ECP to the extent of petitioner and respondent No.7 is set -aside and the election held for
Chairman Municipal Committee Kohlu is declared void. The ECP is directed to conduct the fresh election for the seat of Chairman Municipal Committee Kohlu in accordance with law and issue schedule in this regard by appointing any honest and competent Presiding Officer.
More so, considering the conduct of the present Presiding Officer Municipal Committee
Kohlu, we direct the ECP that said officer should not be assigned any election duty in future.
The petition stands disposed of in the above terms.
MH/143/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.