P L D 2017 Balochistan 1
Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ
RAJAB ALI ---Petitioner
Versus
HAYATULLAH KHAN and 6 others ---Respondents
Constitutional Petition No.419 of 2014, decided on 30th December, 2014.
Balochistan Local Government (Election) Rules, 2013---
----Rr. 36. 40, 41, 45 & 47--- Local bodies' election ---Recounting of ballot papers due to close
competition between the winning and losing candidates ---Scope--- Election Tribunal ordered for
recounting of votes of polling station on the ground of close competition between the
winning/returned and losing candidates ---Validity ---Election Tribunal might order for opening of
packet of counterfoils and certificates or inspection of any accounted ballot papers provided that
no vote shoul d be disclosed until it had been held to be invalid by the Election Tribunal ---
Envelop of accounted ballot papers of returned/winning candidate was not sealed as provided
under R. 45 of Balochistan Local Government (Election) Rules, 2013 ---Election Tribuna l had
excluded/rejected 32 votes of winning/returned candidate while counting the votes of accounted
ballot papers of winning/returned candidate ---Election Tribunal was bound to fix responsibility
of said discrepancy ---Nothing was on record to arrive at the findings to exclude 32 votes of the
winning/returned candidate ---Losing candidate had neither raised any objection at the close of
polling nor objected the process of voting prior to consolidation of result ---If there was any
mistake or error committed b y any officer in making or stamping the ballot papers same should
not be used against the winning/returned candidate ---Election Tribunal was not justified in
directing recounting of the votes merely on the premise of close competition----Election Tribunal
could permit scrutiny of ballot papers and order recounting when election petition contained an
adequate statement of material facts on which allegations of irregularity or illegality in counting
were founded ---Election petition did not contain the allegat ion of violation of any Rule of
Balochistan Local Government (Election) Rules, 2013--- Allegations raised in the election
petition were vague ---Losing candidate had failed to state material facts with regard to failure of
election officers or Returning Offi cer to reject or accept invalid votes ---Narrow margin of votes
between the returned and losing candidate did not per se give rise to a presumption that there had
been any illegality or irregularity in the counting of votes ---Exclusion of 32 votes of returned
candidate by the Election Tribunal was an illegality and impugned order could not be sustained--
-Impugned order passed by Election Tribunal and pursuant to that notification for declaring the
losing candidate as returned candidate were declared illegal, having no legal effect ---Notification
declaring the winning candidate as returned candidate was restored ---Constitutional petition was
allowed in circumstances.
1995 CLC 1426 and 2005 SCMR 1699 ref.
Suresh Prasad Yadav v. Jai Parkash Mishra AIR 1975 SC 376 and Vadivelu's case AIR
2000 SCW 3664 (Para.16) rel.
H. Shakeel Ahmed and Mohibullah Shah for Petitioner.
Muhammad Qadir Shah and Adnan Basharat for Respondent No.1.
Tariq Ali Tahir, Addl. A. -G for Official Respondents.
Date of hearing: 1st Decembe r, 2014.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --The petitioner through the instant petition has sought
the following relief:
"It is therefore respectfully prayed that it may be declared:
a) that the order dated 05.06.2014 passed by the Tribunal is illegal, void, in excess of
authority and of no legal effect;
b) pending disposal of the petition, the operation of impugned order dated
05.06.2014 may be suspended;
c) the notification dated 20th October, 2014 issued by the Election Commission of
Pakistan is paten tly illegal and of no legal effect, and
d) any other order as may be deemed fit and appropriate in the circumstances of the
case may also be passed, in the interest of justice."
2. The facts of the case arising out of the instant petition are that the peti tioner along with
the private respondents contested the Local Bodies' Election 2013, to the Metropolitan
Corporation (Quetta City), from ward No.12, Ghilzai. Upon counting of the votes, the petitioner
secured 713 votes, and the respondent No.1, the nearest rival got 696 votes. The Election
Commission of Pakistan, through Gazette notification dated 26th December 2013, notified the
petitioner as returned candidate. The respondent No.1 by way of filing Election Petition, before
the Election Tribunal, Quetta (h ereinafter referred as to "the Election Tribunal") against the
petitioner, challenged the candidature of the petitioner. The petitioner contested the Election
Petition by filing written statement. The respondent No.1 in the Election Petition at paragraph
No.6 has pleaded that he was informed by the Presiding Officer of the Polling Station No.34.
Government Primary School Nichari (Female) Portion -II, that he had got 6 to 8 more votes, as
compared to the petitioner. The Election Tribunal without framing issue and recording any
evidence on 22nd May 2014, ordered for recounting of the votes of the Polling Station,
mentioned therein, on the following grounds:
"Since there was close competition between the petitioner and the respondent No.1 with
margin of 17 votes as the respondent No.1 had won the election by 17 votes. The
petitioner had approached the Returning Officer for redressal of his grievances, but in
vain. Therefore, the contention of petitioner and his counsel for recounting of votes has
force."
On 27th May 2014, during recounting of the votes of disputed Polling Station, the Election
Tribunal, straightaway rejected 32 votes of the petitioner. After excluding the 32 votes of the
petitioner and 04 votes of the respondent No.1, the Election Tribunal, vide order dated 5th June
2014 (hereinafter referred as to "the impugned order") declared that respondent No.1 has
successfully obtained 692 votes and petitioner votes were calculated as 681.
3. After filing the instant Constitutional Petition by the petitioner, against the impugned
order, the respondent No.7 vide notification dated 20th October, 2014 (hereinafter referred as to
"the impugned notification") has notified the respondent No.1 Hayatullah Khan as returned
candidate, whereafter, vide order dated 13th N ovember 2014, amended title of the petition was
filed, whereby, the respondent No.7 was arrayed as a party and the impugned notification was
also assailed.
4. The learned counsel for the petitioner strenuously urged that the Election Tribunal has
committed a serious error of law by directing for recounting of the ballot papers, merely, on the
premise that there was narrow difference of votes between the winning and losing candidates,
which does not constitute valid reasons to order for recounting of the vot es; that the recounting
cannot be done on the basis of general and bald allegations and the election petition must contain
specific detail regarding illegality, irregularity, alleged to have been committed, either in respect
of challenge, excess or invalid votes and in this respect no averment was made in the election
petition, therefore, the respondent was not entitled for the relief beyond the pleadings; that at the
close of poll and prior to consolidation of result, where, none of the contesting candidat e raised
any objection, therefore, in absence of any material on record, the impugned recounting was
contrary to law; that the Election Tribunal rejected 32 votes of the petitioner in violation of Rule
40 of the Balochistan Local Government Election Rules. 2013 (hereinafter referred as to "the
Election Rules"); that there was no allegation of violation of any clause of the Election Rules,
either during the poll, or at close of the poll, or prior to consolidation of the result, before the
Returning Officer; that admittedly, prior to recounting of the votes conducted by the Election
Tribunal. the envelope of ballot paper of the petitioner was not sealed within the meaning of
Rule 45 of the Election Rules. but despite of these discrepancies, the Election Tribunal in
violation of Rule 47 of the Election Rules, has completed the process, which caused grave
prejudice to the petitioner; that 32 votes of the petitioner were excluded, but no reference of
violation of relevant provision of law has been made thereof eve n .otherwise, deficiencies
erupted in this respect, was on the part of the polling staff, for which the petitioner could not
have been burdened; that the impugned order is patently illegal, unlawful and also infringed the
vested right of the petitioner and is liable to be declared as such. The learned counsel for the
petitioner placed reliance on the case reported in 1995 CLC 1426.
5. The learned counsel for the respondent No.1 while defending the impugned order and
notification contended that the interim o rder of recounting was not challenged by the petitioner
before the competent Court of law and the present Writ Petition in this respect is not
maintainable; that the respondent No.1 in the election petition, specifically averred illegality and
irregularity in respect of count of the votes, pertaining to the Polling Station No.34, Government
Primary School Nichari (Female) Portion -II; that the Election Tribunal in view of Rule 47 of the
Election Rules, is competent to make an order of recounting; that the re counting of votes was
carried out in presence of the parties, which was neither objected, nor any objection of tampering
with the ballot papers was raised; that the Election Tribunal, after rejection of 32 votes of the
petitioner had rightly accepted the e lection petition, as there was no need for further proceedings.
He placed reliance on 2005 SCMR 1699.
6. The learned State counsel appearing for the respondent No.7, contended that the
respondent No.7, issued notification of the respondent No.1 pursuant to the impugned order in
accordance with law.
7. We have heard the learned counsel for the parties and have gone through the record of the
case. Before dilating upon the merits of the case, it would be appropriate to focus the relevant
provisions of law rega rding challenging of votes and recounting of the votes, during the process
of election and after close of election. Rule 36 of the Election Rules, provides the procedure for
challenging of the voters, during poll. The relevant is reproduced herein below:
"36. Challenge of Voters .-(1) If, at the time a person applies for a ballot paper for the
purpose of voting, a candidate, his election agent or his polling agent declares to the
Presiding Officer that he has reasonable cause to believe that such person has already
voted at the election, at the same or another polling station, or is not the person against
whose name entered in the electoral roll, he is seeking to vote, and undertakes to prove
the charge in a court of law and deposits with the Presiding Office r in cash a sum of
twenty rupees for each such challenge, the Presiding Officer may, after warning the
person of the consequences and obtaining his thumb impression and, if he is literate, also
his signature, on the counterfoil, issue a ballot paper to tha t person.
(2) If the Presiding Officer issues a ballot paper under sub- rule (1) to such person he shall
enter the name and address of that person in a list to be prepared by him in Form XIV
(hereinafter referred to as the "challenged votes list'), and obtain thereon the thumb
impression and if he is literate, also the signature of that person.
(3) A ballot paper issued under sub- rule (1) shall, after it has been marked and folded by
the elector. he placed in the same condition in a separate packet bearing t he label
"challenged ballot paper" instead of being placed in the ballot box.
(4) The Presiding Officer shall soon after the close of poll, hand over against receipt in
Form XV such sum as has been deposited with him under sub- rule (1) to the Returning
Officer who shall after making necessary entries in the deposit register in Form VII
deposit the amount in favour of the Election Commission in the Head of account as may
be communicated to him."
8. After close of the poll, Rule 40 of the Election Rules, pres cribed procedure for count of
the votes in presence of contesting candidates, his election agent, or polling agent. The relevant
sub-rule (4) of Rule 40 of the Election Rules, is reproduced herein below:
"(4) The Presiding Officer shall
a) open the used ballot box or ballot boxes and count the entire lot of ballot papers
taken out therefrom:
b) open the packet labeled "challenged ballot paper" and include the ballot papers
therein in the count:
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 a piece of paper or any other object of any kind has been
attached :
(iii) no mark of "marking 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 i n 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 b etween two
such spaces, the ballot paper shall be deemed to be invalid."
9. After completion of the count of the votes, the sub- Rule (5) of Rule 40 of the Election
Rules, provides a second opportunity to the contesting candidate, or his election agent to m ake
reasonable request to the Presiding Officer, for recounting of the votes. In the third place, if the
contesting candidate or his election agent raises any objection of the recounting of the votes by
the Presiding Officer, they may challenge the same in writing before the Returning Officer, as
provided under sub- Rule (10) of Rule 40(1). Rule 45 of the Election Rules, further states about
statutory checks and effective safeguards. The relevant is reproduced herein below:
"45. Documents to be sent and to b e retained by the Officer authorized by the
Election Commission .-(1) The Returning Officer shall under intimation to the Provincial
Election Commissioner forward to the officer authorized by the Election Commission.
(a) Packets containing the ballot papers each of which shall be sealed with the seal of the
Presiding Officer, or if opened by the Returning Officer, with the seal of the Returning
Officer.
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(4) The documents received under sub- rule (1) and retained under sub- rule (3) shall be
kept in the safe custody in a treasury or such place as is directed by the Election
Commission."
10. The Election Tribunal under Rule 47 of the Election Rules, may order the opening of
packet of the counterfoils and certificates or the inspection of any accounted ballot papers.
Provided that in making and ca rrying into effect an order for the inspection of counted ballot
papers. care shall be taken for no vote shall be disclosed until it has been held by the Tribunal to
be invalid. In the instant case, the petitioner had secured 264 votes in Polling Station N o.34,
Government Primary School Nichari (Female) Portion- II. The impugned order reveals that the
envelope of the accounted ballot paper of the petitioner, when held by the Election Tribunal, it
was not sealed, as provided under Rule 45 of the Election Rule s. The Election Tribunal, while
counting the votes of the accounted ballot papers of the petitioner, excluded/rejected 32 votes.
The relevant para of the order is reproduced herein below:
"Similarly, the envelope of the votes of respondent No.1 Rajab Ali w as opened. The
envelope was not properly sealed rather it was closed with gum. The envelope was
bearing the signature of concerned Presiding Officer and two Election/Polling Agents of
the candidates. The number of votes of respondent No. I Rajab Ali on the envelope were
written as 264. Recounting of votes contained in the envelope of respondent No.1 Rajab
Ali was made. Detail whereof is as under: -
RESPONDENT NO.1'S ENVELOPE
Total
number of
votes fond
in the
envelope Total
Valid
votes Number of
Votes having
stamp on
election
symbol of
more than
one
candidate Number of
votes
without
official
stamp and
signature of
Assistant
Presiding
Officer Number of
votes
without
signature of
Assistant
Presiding
Officer Total rejected/
excluded
votes after
recounting
264 234 28 04 02 32
After recounting, 232 votes of the respondent No.1 Rajab Ali were found valid, while on
28 votes stamp was affixed on the election symbol of more than one candidate. On 04
votes, the official stamp and signatures of Assistant Presiding Officer were not found and
on 02 votes, the signatures of Assistant Presiding Officer were not available, but the said
02 votes were included in count in favour of the respondent No.1. I am fortified by
unreported judgment dated 27th May 2014, passed by the Hon'ble High Court of
Balochistan, Quetta in C.P. No. 282/2014, titled as Abdul Manan v. Muhammad Ayub
and others. Therefore, total 32 votes of the respondent No.1 Rajab Ali were rejected and
excluded from count."
The preceding paragraph of the impugned order manifest that the envelope of the petitioner
accounted ballot paper was not sealed in view of Rule 45 of the Election Rules. In these
circumstances, it was essential for the Election Tribunal to fix the responsibility of the above
material discrepancy. In absence of fix ing of responsibility there appeared a reasonable
presumption of manipulation, which should have been exercised against the respondent No.1,
because, there was no material on record on the basis whereof Election Tribunal could have
arrived at a positive fi ndings that a case to exclude 32 votes of the petitioner had been made out.
Admittedly, throughout the election process, the respondent No.1 had neither raised any
objection at the close of the polling, nor objected the process of voting prior to consolida tion of
result, therefore, in view of the facts that the envelope of petitioner's accounted ballot paper
when held was already unsealed by the Election Tribunal, the sanctity of Rule 45 of the Election
Rules, was not attached to it and presumption of any benefit in these circumstances within the
purview of Rule 47 of the Election Rules, should have been extended to the petitioner. Even
otherwise, the Election Tribunal, has not considered this aspect of the matter in the light of the
relevant provision of la w and no reference of sub- Rule (4)(c) of Rule 40 of the Election Rules
has been adhered and in contrary to the said provision, 32 votes of the petitioner were excluded.
If there was any mistake or error committed by any officer, in making or stamping of ba llot
paper that could not be used against the petitioner. The mistake or error in the official act during
the performance of statutory duty could not be used to prejudice to any other party, as the same
being not the act of the candidate and he should not be disfranchised. Reference in this respect is
to be made to the case reported in 1985 SCMR 365.
11. In the case in hand, it appears that the respondent No.1 had neither challenged the votes
of the petitioner as per Rule 36 of the Election Rules, nor objec ted the count at the close of poll,
as required under sub- Rule 4(c) of Rule 40 of the Election Rules, or challenged the count in
writing before the Returning Officer, prior to consolidation of the result, as provided under sub-
Rule 10 of the Rule 41 of the Election Rules, nor pleaded violation of any of the aforesaid Rules.
It appears that there was no averment in the Election Petition, regarding violation of any of the
aforesaid Rules, but the Election Tribunal held that since there was close competition between
the petitioner and the respondent No.1, with margin of 17 votes and it was a fit case for
recounting of votes. The Election Tribunal was not justified in directing recounting of the votes
merely on the premise of close competition. It is pertinent to mention here that the Election
Tribunal can permit scrutiny of ballot paper and order recounting, on two basic requirements viz.
i. the Election Petition seeking recounting of the ballot paper must contain an adequate statement
of all the material facts on which the allegations of irregularity or illegality in counting are
founded, and; ii. on the basis of evidence relied or adduced in support of the allegation, the
Tribunal must be prima facie satisfied with all the facts placed prove, the cause of actio n and
making of such an order is imperatively necessary. In the case of Suresh Prasad Yadav v. Jai
Parkash Mishra AIR 1975 SC 376. principles regarding granting prayer for inspection and
recounting of ballot paper has been summarized and has observed as under:
"....this Court has repeatedly said, that an order for inspection and recount of the ballot
papers cannot be made as a matter of the course. The reason is two- fold. Firstly such an
order affects the secrecy of the ballot which under the law is not to be lightly disturbed.
Secondly, the Rules provide an elaborate procedure .for counting of ballot papers. This
procedure contains so many statutory checks and effective safeguards against mistakes
and fraud in counting, that it can be called almost trickery foolproof. Although no hard
and fast rule can be laid down, yet the broad guidelines, as discernible from the decision
of this Court, may be indicated thus:
The Court would be justified in ordering a recount of the ballot papers only where:
(1) the electi on petition contains an adequate statement of all the material facts on
which the allegations of irregularity or illegality in counting are founded,.
(2) on the basis of evidence adduced such allegations are prima facie established,
affording a good ground for believing that there has been a mistake in counting; and,
(3) the court trying the petition is prima facie satisfied that the making of such an
order is imperatively necessary to decide the dispute and to do complete and effectual
justice between the parties."
12. In Vadivelu's case, AIR 2000 SCW 3664 (Para 16), a case pertaining to an election result
was challenged on the ground of various illegalities in voting and counting. The difference of
votes secured by the winning candidate and its nearest riv al was only one vote. The election
petition by the losing candidate was allowed by the Election Tribunal and a recounting was
ordered. As a result, the election petitioner got 1002 votes and the elected candidate got only 975
votes. Revision Petition filed against the order of the Tribunal was allowed by the High Court
and it was held that, "a recount ought not to have been ordered, because the election petition did
not contain material facts and did not make out a prima facie case for recounting". Affirming the
decision of the High Court, it was observed as under:
....Recounting of votes could be ordered very rarely and on specific allegation in the
pleading in the election petition that illegality or irregularity was committed while
counting. The petitione r who seeks recount should allege and prove that there was
improper acceptance of invalid votes or improper rejection of valid votes. Secrecy of
ballot has always been considered sacrosanct in a democratic process of election and it
cannot be disturbed lig htly by bare allegations of illegality or irregularity in counting."
13. In the case in hand, we are constrained to hold that the Election Tribunal lost site of the
parameter to be applied while considering the election petitioner, seeking recount of votes . It is
manifest from the extracted para No.6 of the Election Petition contain the ground of challenge,
there is no allegation of violation of any Rule of the Election
Rules and the allegations raised in the petition for the recount of the votes were not only vague,
but prima facie satisfaction that recounting of ballot was necessary, were also missing in the
petition and only ground taken by the petitioner was that, he was told by the Presiding Officer of
the Polling Station No.34, Government Primary School Nichari (Female) Portion -II, that he had
got 6 or 7 more votes than the respondent No.1, which clearly shows that the respondent No.1
had failed to state any material facts regarding the failure of the election officers, or Returning
Officer to reject o r accept invalid votes and the consideration of the Election Tribunal that since
there is narrow margin of votes between the returned candidate and the respondent No.1, does
not per se give rise to a presumption that there had been any illegality or irregularity in the
counting of the votes. Having held so, in our view, the election petition should have been
dismissed on this short ground alone.
14. The other aspect of the case that upon consideration of the envelope of the petitioner
accounted ballot paper , the Election Tribunal itself observed that the envelope was not sealed.
Thus, sanctity of Rule 47 of the Election Rules, was not attached to such recounting by the
Election Tribunal, therefore, in the aforesaid circumstances, the exclusion of 32 votes of the
petitioner by the Election Tribunal was unwarranted illegally and in utter violation of sub- Rule
4(c) of Rule 40, Rules 45, 47 and 72 of the Election Rules, therefore, the impugned order cannot
be sustained.
In view of the above, the Writ Petition No.419 of 2014 is allowed. The impugned order
dated 5th June 2014, passed by the Election Tribunal, Quetta, and pursuance to that notification
dated 20th October, 2014, issued by the Election Commission of Pakistan, are hereby declared
illegal, having no leg al effect resultantly, the notification dated 26th December, 2013, notifying
the petitioner as a returned candidate stands restored. Parties are left to bear their own cost.
SL/36/Bal. Petition allowe dThis 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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