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.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,
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