Mst. Zarmina Bibi V. Government of Balochistan through Secretary, Local Government, Rural Development and Agrovilles Department and 6 others,
Bench: Muhammad Aamir Nawaz Rana
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This case concerns a local government election dispute in Kohlu, Balochistan, over the seat of Vice Chairman of a Municipal Committee. Mst. Zarmina Bibi and another candidate contested the seat. Initially, the petitioner received six votes and her rival five, with one ballot rejected by the Presiding Officer because it allegedly lacked the properly prescribed mark. The rival challenged this rejection before the Election Commission of Pakistan (ECP), which examined the ballot and ruled that it should be counted in his favour, resulting in a tie of six votes each. The ECP then ordered a lot to be drawn to decide the winner, as required under the Balochistan Local Government (Election) Rules, 2013.
The petitioner challenged the ECP's decision in the Balochistan High Court, arguing that such a determination required detailed scrutiny by a proper tribunal, not the ECP. The High Court examined the disputed ballot itself and found that the voter had clearly marked it next to the rival candidate's name, showing unmistakable intent to vote for him, even though the mark did not strictly follow prescribed form. The Court held that the core purpose of a ballot mark is to reveal the voter's intention without exposing their identity, and where that intention is clear, the vote should be counted as valid.
The Court upheld the ECP's order and directed that a lot be drawn to resolve the tie. The petition was dismissed. This case reinforces the principle that substance and clear voter intent matter more than rigid technical compliance in determining the
اس مقدمے کا تعلق کوہلو، بلوچستان میں مقامی حکومت کے انتخابات کے ایک تنازعے سے ہے، جو میونسپل کمیٹی کے وائس چیئرمین کی نشست کے حوالے سے تھا۔ مسماۃ زرمینہ بیبی اور ایک دوسرے امیدوار نے اس نشست کے لیے مقابلہ کیا۔ ابتدائی طور پر درخواست گزار کو چھ ووٹ اور اس کے مدمقابل امیدوار کو پانچ ووٹ ملے، جبکہ ایک بیلٹ پیپر پریذائیڈنگ آفیسر نے مسترد کر دیا، اس بنیاد پر کہ اس پر مقررہ طریقے سے نشان نہیں لگایا گیا تھا۔
مدمقابل امیدوار نے اس مستردگی کو الیکشن کمیشن آف پاکستان کے سامنے چیلنج کیا۔ الیکشن کمیشن نے متنازعہ بیلٹ پیپر کا جائزہ لیا اور فیصلہ دیا کہ اسے اس کے حق میں شمار کیا جائے، جس کے نتیجے میں دونوں امیدواروں کے ووٹ برابر، یعنی چھ چھ ہو گئے۔ الیکشن کمیشن نے پھر بلوچستان لوکل گورنمنٹ (الیکشن) رولز 2013 کے تحت قرعہ اندازی کے ذریعے فیصلہ کرنے کا حکم دیا۔
درخواست گزار نے الیکشن کمیشن کے اس ف
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2024 M L D 71 [Balochistan] Before Naeem Akhtar Afghan, C.J. and Muhammad Aamir Nawaz Rana, J Mst. ZARMINA BIBI ---Petitioner Versus GOVERNMENT OF BALOCHISTAN through Secretary, Local Government, Rural Development and Agrovilles Department and 6 others ---Respondents Constitutional Petition No. 65 of 2023, decided on 1st June, 2023. Balochistan Local Government (Election) Rules, 2013 --- ----R. 42---Valid vote ---Mark on ballot paper ---Object, purpose and scope ---Drawing of lot -- -Petitioner was aggrieved of order passed by Election Commission of Pakistan declaring rejected vote as valid and counted in favour of respondent in election for the seat of Vice Chairman of Municipal Committee concerned--- Validity ---Voter put mark in front of name of respondent in given block meant for such purpose ---Intention of voter was clear that he had voted in favour of respondent ---Primary purpose of mark on ballot paper was to ensure intention of voter ---Mark on ballot paper which clearly revealed intention of voter without disclosing identity of voter had to be accepted as valid exercise of vote---Responsibility of Presiding Officer while declaring any vote valid or void was very important and he was to be aware of applicable rules and law settled by High Court as well as Supreme Court ---Ballot papers which are not marked in prescribed manner ought to be counted if it could be ascertained with reasonable certainty that for whom the voter in each case intended to vote---Disputed vote in favour of respondent was wrongly rejected by Presiding Officer and Election Commission of Pakistan passed appropriate order ---High Court upheld the order of Election Commission of Pakistan to the extent of petitioner and respondent who were contesting election for seat of Vice Chairman of Municipal Committee concerned ---High Court directed Election Commission of Pakistan to draw a lot under R. 42 of Balochistan Local Government (Election) Rules, 2013 and such exercise would be done on same day when election for seat of Chairman Municipal Committee would be held in pursuance/compliance of judgment of High Court ---Constitutional petition was dismissed, in circumstances. Sahibzada Abdul Latif v. Sardar Khan and others 1996 SCMR 1496 rel. 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 has called in question the order dated 17th April 2023, passed by Election Commission of Pakistan ("ECP"), whereby the rejected vote of respondent No.7 was declared valid and same was counted in favour of respondent No.7 and since after counting the rejected vote there was tie of votes obtained by petitioner and respondent No.7, so direction was issued by ECP to the Presiding Officer to draw a lot under rule 42 of Balochistan Local Government (Election) Rules 2013 (hereinafter "the Rules 2013").
2. The relevant facts leading to file this petition are; the petitioner as well as respondent No.7 was contestant of the election for the seat of Vice Chairman. The Electoral College consisted upon twelve voters (Councillors). The petitioner as per initial result announced by Presiding Officer secured six votes, whereas respondent No.7 secured five votes and his one vote was rejected allegedly due to violation of the secrecy of the vote as allegedly proper prescribed mark was not put on the ballot paper. The respondent No.7 assailed the rejection of his vote and result announced by ECP by filing petition under sections 8 and 9 of the Elections Act, 2017 before the ECP. The ECP after hearing the parties passed the following order: "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".
3. The learned counsel for the petitioner Mr. Kamran Murtaza Advocate mainly contended that the ECP in summary proceedings could not have decided the validity of the rejected vote as according to learned counsel it required thorough probe and scrutiny for which appropriate forum was available for respondent No.7 to file petition before the relevant Tribunal. The learned counsel further contended that since prescribed mark had not been put on the ballot paper, therefore the Presiding Officer has rightly reje cted the vote which order had wrongly been set aside by the ECP.
4. The learned counsel Mr. Jamil Ahmed Khan Babai Advocate appearing on behalf of respondent No.7 while contesting the petition contended that intention of the voter is clearly manifested in the disputed vote but despite that presiding officer illegally rejected the vote with mala fide intention to provide undue benefit to petitioner, therefore the ECP had rightly accepted the vote and ordered to draw a lot. Argument heard and relevant record perused.
5. The contest between the petitioner and respondent No.7 was for the seat of Vice Chairman. The petitioner had obtained six votes, whereas respondent No.7 obtained five votes, one vote of the respondent No.7 was rejected on the ground that proper mark ("X") had not been put on the ballot paper by the voter.
6. Considering the controversy involved and as the fate of election result for the seat of Vice Chairman, Municipal Committee Kohlu hinges upon the disputed vote, therefore Presiding Officer was directed to produce the disputed vote. The Presiding Officer produced the said vote on 03.05.2023. For the facility of reference the scan copy of the said vote is pasted herein below:
The perusal of the disputed ballot paper transpires that the voter had put the mark in front of the name of respondent No.7 in the given block meant for this purpose. The intention of the voter is clear that he had voted in favour of respondent No.7. The primary purpose of the mark on the ballot paper was to ensure the intention of the voter, a mark on the ballot paper which clearly revealed the intention of the voter without disclosing the identity of the voter has to be accepted as valid exercise of vote.
7. The responsibility of the Presiding Officer while declaring any vote valid or void is very important. The Presiding Officer must be aware of the applicable rules and the law settled by this court as well as Supreme Court. Ballot papers which are not marked in the prescribed manner ought to be counted if it could be ascertained with reasonable certainty that for whom the voter in each case intended to vote. Reliance in this regard is being placed on the case of Sahibzada Abdul Latif v. Sardar Khan and others
1. In the wake of above deliberation, it is held that the disputed vote in favour of respondent No.7 was wrongly rejected by the Presiding Officer and the ECP through impugned order has passed the appropriate order, which is upheld to the extent of petitioner and respondent No.7 who were contesting the election for the seat of Vice Chairman Municipal Committee Kohlu. The ECP is directed to draw a lot under rule 42 of the Balochistan Local Government (Election) Rules, 2013 and this exercise will be done on the same day when election for the seat of Chairman Municipal Committee Kohlu will be held in pursuance/ compliance of judgment of even date passed by this court in Constitution Petition No.66 of 2023. For the foregoing reasons, the petition being devoid of merits is dismissed. MH/142/Bal. Petition dismissed.