P L D 2025 Balochistan 160
Before Muhammad Aamir Nawaz Rana, J
Syed INAMULLAH ---Petitioner
Versus
Syed MUHAMMAD WASEEM and 8 others ---Respondents
Election Appeal No. 421 of 2024, decided on 18th October, 2024.
Balochistan Local Government Act (V of 2010) ---
----S. 24(1)(c)--- Elections Act (XXXIII 2017), S. 39--- Local Bodies Election ---Seat of
Councillor ---Eligibility to contest the election ---Determination ---Disqualification of returned
candidate on account of not being enrolled as voter in the electoral roll of the relevant Ward-
--Application of concept of "Throw Away Votes" ---Scope ---Election petition filed by the
respondent was accepted declaring the appellant as disqualified to contest the election and his notification as returned candidate was set -aside while declaring the respondent as
returned candidate--- Contention of the appellant was that the Election Tribunal while
deciding the matter had ignored the relevant record qua transfer of his vote and respondent could not be declared returned candidate as concept of "Throw Away Vote" was not applicable in such matter ---Validity ---Voters list was published after announcement of
election schedule, thus, under S. 39 of the Elections Act, 2017, no revision, correction or
transfer could have been made in the Electoral List --Appellant was voter of Ward -A but in
violation of S. 24(1)(c) of the Balochistan Local Government Act, 2010, the appellant
contested the election from Ward -B and as such the appellant was rightly disqualified by the
Election Tribunal, thus, to the extent of disqualification of appellant, no interference was
required by High Court ---If the disqualification of a returned candidate was not notorious at
the time of polling, the votes polled in favour of the successful candidate could not be thrown away by giving seat to the candidate with next highest number of votes ---Nomination papers
of the appellant were accepted by the Returning Officer without any objection, which proved that the voters were unaware of the disqualification of the appellant, thus, the rule of "Throw Away Votes" could not be invoked by the Election Tribunal ---Declaration of respondent as
returned candidate was set aside and the election was declared void as a whole with a direction to Election Commission of Pakistan to hold fresh election in accordance with law ---
Election appeal was partially allowed, in circumstances.
Sh. Amjad Aziz v. Haroon Akhtar Khan 2004 SCMR 1484 rel.
Manzoor Ahmed Shah for Appellant.
Jameel Ahmed Khan Babai for Respondent No. 1.
Shahzad Aslam, Assistant Director (Law), Election Commission of Pakistan (ECP)
assisted by Naseer Ahmed, Senior Personal Assistant ECP for Respondents Nos. 2 to 6 and 9.
Nemo for Respondents Nos. 7 and 8.
Date of hearing: 11th October, 2024.
JUDGMENT
MUHAMMAD AAMIR NA WAZ RANA, J. ---The appellant, respondent No.1 and
respondents Nos.7 and 8 participated in the Local Bodies Election of Municipal Committee ('MC') Huramzai, District Pishin for the seat of General Councillor, which were held on 11.12.2022. Initially the respondent No.1 was declared as returned candidate but subsequently after re -counting, the appellant emerged as returned candidate and, in this
regard, the Election Commission of Pakistan ('ECP') issued Notification dated 09.01.2023 and dec lared the appellant as returned candidate from Ward No.4 MC Huramzai. The
respondent No.1 filed Election Petition before the Election Tribunal, Pishin ('Election
Tribunal') on the ground that since the appellant's name was not included in the voters list of
Ward No.4 MC Huramzai, therefore, in view of section 24(1)(c) of the Balochistan Local Government Act, 2010 ('Act, 2010'), pertaining to qualifications and disqualifications of candidates and elected members, the appellant was not eligible to contest the election as the appellant was not enrolled voter in the Electoral Roll of the relevant Ward. For facility of
reference, section 24 (1) (c) of the Act, 2010 are reproduced:
"24. (1) A person shall qualify to be elected or to hold an elective office or
membership of a local council, if he?
(a) ----------------
(b) ----------------
(c) is enrolled as a voter in the electoral roll of the relevant ward;
(d) ----------------
(e) ----------------
(f) ----------------
(g) ----------------
(h) ----------------
(i) ----------------
(j) ----------------
(k) ----------------
(l) ----------------
(m) ----------------
(n) ----------------
(o) ----------------
(p) ----------------
(q) ----------------
2. The Election Petition filed by the respondent No.1 was contested by the appellant.
Out of the pleadings of the parties, the Election Tribunal framed the following issues:
i) Whether the respondent No.6 does not belong to Ward No.4 and he is register voter of Ward No.5 Municipal Committee Huramzai District Pishin?
ii) Whether the Returning Officer wrongly accepted the nomination form of respondent No. 6 vide order dated 04th November, 2022?
iii) Whether the petitioner is entitled to the relief claimed for?
iv) If so, what relief should be?
3. The respondent No.1 produced as many as four (04) witnesses and recorded his
statement, whereas the appellant produced only one (01) witness and recorded his statement. Thereafter, the Election Tribunal, vide order dated 15.06.2024 ('impugned order'), accepted the Election Petition filed by respondent No. 1, declared the appellant disqualified to contest the election, set -aside order dated 04.11.2022 passed by the Returning Officer MC Huramzai
(whereby the nomination papers of the appellant were accepted) and also set -aside
Notification dated 09.01.2023 issued by the ECP declaring the appellant as returned candidate. Apart from that the Election Tribunal also declared the respondent No.1 (Syed Muhammad Waseem) as returned candidate on the ground that he was runner -up in the Local
Bodies Election of Ward No.4 MC Huramzai District Pishin.
4. Initially the appellant filed Constitution Petition under Article 199 of the Constitution
of Islamic Republic of Pakistan, 1973 before this Court and at the request of learned counsel for the appellant, vide order dated 15.07.2024, same was converted into Election Appeal under section 41- A of the Act, 2010 by this Court.
5. Mr. Manzoor Ahmed Shah, learned counsel for the appellant mainly contended that
the impugned order has been passed by the Election Tribunal without considering the relevant record. Per learned counsel, at the time of filing nomination papers, no objection was raised by any individual including the respondent No.1 despite the fact that in the Election Schedule, proper opportunity was provided to the parties to raise objections with regard to qualification of any candidate, therefore, per learned counsel, the respondent No.1 could not have subsequently challenged the election of the appellant. Learned counsel, while
referring the voters list of Ward No.4 MC Huramzai, contended that in the Census Block
Code 453080119/1, which pertains to Ward No.4 MC Huramzai, the name of appellant is mentioned at serial No.558, therefore, per learned counsel, the Election Tribunal overlooked this aspect of the matter and illegally disqualified the appellant.
6. While responding to the arguments of learned counsel for the appellant, Mr. Jameel
Ahmed Khan Babai, learned counsel for respondent No.1 contended that the appellant was rightly disqualified by the Election Tribunal as his name was not included in the voters list of Ward No.4 MC Huramzai and subsequently through maneuvering and tempering, after the election, illegally the name of appellant was inserted in the voters' list of Ward No.4 MC Huramzai. Per learned counsel, after announcement of Election Schedule, the vote of the appellant could not have been transferred. Per learned counsel, the legal question with regard to disqualification of any candidate can be raised at any stage. Learned counsel, while supporting the impugned order, requested for dismissal of the appeal.
7. Mr. Shahzad Aslam, the representative of ECP supported the impugned order.
Arguments heard. Relevant record perused.
8. The appellant has been disqualified by the Election Tribunal vide impugned order dated
15.06.2024 on the ground that since the name of appellant was not included in the voters list of
Ward No.4 MC Huramzai, from which he was contesting the election, therefore, in view of
section 24(1)(c) of the Act, 2010, the appellant was declared disqualified.
9. As per Form -IX, which was prepared under Rule 21(5) of the Election Rules, 2017,
the MC Huramzai District Pishin has 14 Wards. The Ward No.4 consists upon the electoral area i.e. Killi Bala Hajezai -I, having distinctive Census Block 453080119/1, whereas Ward
No.5 comprises upon the electoral area i.e. Killi Bala Hajezai -II and Killi Kooz Hajezai and
Census Blocks for this Constituency are 453080119/2 and 453080118. As per voters list pertaining to Ward No.4, having Census Block Code No. 453080119/1, the name of appellant is mentioned at Serial No.556 along with the names of his brothers. This voters list was published on 02.11.2022, whereas the Election Schedule was announced on 25.10.2022. Therefore, under section 39 of the Elections Act, 2017 ('Act, 2017'), no revision, correction or transfer could have been made in the Electoral List. For facility of reference, section 39 of the Act, 2017 is reproduced:
"39. No revision, correction or transfer after constituency called upon to elect.---(1) No revision of or correction in an electoral roll of an electoral area or inclusion or transfer of a vote from the electoral roll of an electoral area to the electoral roll of another electoral area shall be made nor shall any order under section 38 be made in respect of any electoral roll during the period beginning thirty days before the day on which the term of an Assembly or a local government is due to expire (hereinafter referred to as 'the cut -off date') till announcement of the results of the general election
to the Assembly or the local government but it shall not apply to an election to fill a casual vacancy in an Assembly or a local government.
(2) In case of an election to fill a casual vacancy to an Assembly or a local government, no revision of or correction in an electoral roll of an electoral area or inclusion or transfer of a vote from the electoral roll of an electoral area to the electoral roll of another electoral area shall be made nor shall any order under section 38 be made in respect of any electoral roll at any time after the constituency of which such electoral area forms part has been called upon to elect its representative and before such representative has been elected.
(3) The Commission shall, through press release and its website, inform the general public about the cut -off date for revision of or correction in an electoral roll of an
electoral area or inclusion or transfer of a vote from the electoral roll of an electoral area to the electoral roll of another electoral area."
10. Perusal of Electoral Roll (Exp/2 -B), being relied upon by the appellant, reveals that
total numbers of votes for males in Census Block Code 453080119/1 are mentioned as 515
instead of 511. The scrutiny of voters list manifests the subsequent insertion of the name of appellant after serial No.511, as without any sequence, the name of appellant is mentioned at serial No.556. The appellant did not mention this fact in his reply before the Election
Tribunal that he had transferred his vote from Ward No.5 to Ward No.4, rather during cross -
examination, the appellant tried to justify this anomaly by asserting that he had transferred
his vote to Ward No.4. In case this explanation is accepted even then in view of section 39 of
the Act, 2017, after announcement of the Election Schedule, the votes of the appellant could
not have been transferred to Ward No.4. Even otherwise, the appellant did not produce any record in order to substantiate his plea that he ever applied for transfer of his vote from Ward No.5 to Ward No.4. So, careful perusal of the relevant Electoral Rolls of Ward No.4 and Ward No.5 leads to the conclusion that in fact the appellant was voter of Ward No.5 but in violation to section 24(1)(c) of the Act, 2010, the appellant contested the election from Ward No.4 and as
such the appellant was rightly disqualified by the Election Tribunal vide impugned order, which
order, to the extent of disqualification of appellant, does not warrant any interference by this Court.
11. Now the second important question which arises from the perusal of impugned order
that whether after disqualification of appellant, the respondent No.1 could have been declared as returned candidate by attracting the concept of "throw away votes" and what would be the fate of voters who had exercised their right of franchise in favor of appellant?
12. There is no cavil to the proposition that prior to Election Schedule, announced by the
ECP on 25.10.2022, the Electoral Roll of MC Huramzai District Pishin had been adjusted and the voters of the Constituency of Ward No.4, at the relevant time of filing of nomination papers by the appellant, were not informed that the appellant does not belong to Ward No.4, rather the appellant is voter of Ward No.5. No one had raised any objection in this regard at the relevant time, and the Returning Officer, MC Huramzai accepted the nomination papers of the appellant without ascertaining the fact that the appellant is voter of the same Ward or
not. The appellant received highest number of votes from Ward No.4 MC Huramzai and was
subsequently declared as returned candidate. So, in such view of the matter, whether the votes obtained by the appellant could have been discarded in view of the concept of "throw away votes"?
The above question has been dealt with by the Honourable Supreme Court in number
of cases and the ratio decidendi on this very point is that if the disqualification of a returned candidate was not notorious at the time of polling, the votes polled in favour of the successful candidate could not be thrown away by giving seat to the candidate with next highest number of votes. It is evident from record that voters of Constituency i.e. Ward No.4 had no knowledge that in fact the appellant was disqualified to contest the elections and no
step in this regard either by the Returning Officer or other contesting candidate, at the time
of scrutiny of nomination papers of appellant was taken which could inform the voters that the nomination papers of the appellant are suffering from incurable disqualification.
13. As mentioned above, the nomination papers of the appellant were accepted by the
Returning Officer, MC Huramzai without any objection. This very fact unequivocally formulates that the voters were unaware of the disqualification of the appellant, therefor, in such view of the matter, the rule of "throw away votes" cannot be invoked in this case.
14. The concept of "throw away votes" had thoroughly been examined by the Honourable
Supreme Court in the case titled as Sh. Amjad Aziz v. Haroon Akhtar Khan
1. Considering the
attending circumstances of this case, relevant expert of the same is reproduced:
"11. We come to the next point, if under the circumstances the respondent could be
declared as elected/returned candidate. It requires examination as to what the phrase "throw away votes" means with reference to election, it means that if an elector
definitely knows as a fact that the candidate for, whom he is about to vote, is
disqualified, yet persists in voting for him, the vote is utterly thrown away as if he
voted for a dead person or did not vote at all. With reference to a disqualified person,
it is also to be seen if the disqualification not being apparent on the face of it, the votes given by the voters could not be treated as having been thrown away. In order to
make the vote a nullity, there must be willful persistence against known
disqualification. The rule of "thrown away votes" was first recognized in England in
the year 1868 and was considered in the cases reported as: --
(1) The Queen v. There Mayor, Alderman and Burgess of Tewkesbury (1868) Q.B.D.
(sic); (2) In Re Launceston Election Petition, Drinkwater v. Deakin (1874) L.R. 9 C.P.626; (3) Beresford - Hope v. Lady Sandhurst (1889) L.R. 23 Q.B.D. 79 CA; (4)
Hobbs v. Morey (1904) 1 K.B. 74; (5) Templeton v. M'Lord (1939) S. L. T. (Sh Ct)
41; (6) In Re Parliamentary Election for Bristol South East (1964) 2 Q.B. 257; and (7)
Fitzpatrick v. Hodge 1995 S.L.T. (Sh Ch) 118. "
In view of the above judgment and considering the facts and circumstances of this
case, since the concept of "throw away votes" is not applicable in this case, therefore, the
impugned order dated 15.06.2024 passed by the Election Tribunal, Pishin to the extent of declaring the respondent No.1 as returned candidate from Ward No.4 MC Huramzai District Pishin for the seat of General Councilor is set -aside and the Election, as a whole, of Ward
No.4 MC Huramzai District Pishin is declared void. The ECP is directed to hold fresh
election in accordance with law.
The appeal is partly allowed in the above terms.
SA/125/Bal. Order accordingly.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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