PLJ 2024 Quetta 64 (DB)
Present: N AEEM AKHTAR AFGHAN , C.J., AND MUHAMMAD AAMIR NAWAZ RANA, J
Mst. ZARMINA BIBI--Petitioner
versus
GOVERNMENT OF BALOCHISTAN through Secretary and 6 others --Respondents
Const. P. No. 65 2023, decided on 1.6.2023.
Election Act, 2017 (XXXIII of 2017) --
----Ss. 8 & 9--Balochistan Local Government (Election) Rules, 2013,
R. 42--Election of local bodies --Contest for seat of Vice Chairman --Rejection of vote --Appeal --
Accepted --Rejected vote was declared valid --Draw a lot --Intention of voter --Held: Direction to --
Perusal of disputed ballot paper transpired that voter had put mark in front of name of
Respondent No. 7 in given block meant for that purpose --Intention of voter was clear that he had
voted in favour of Respondent No. 7-- It was held that disputed vot e in favour of Respondent No.
7 was wrongly rejected by Presiding Officer and ECP through impugned order was passed appropriate order, which was upheld to extent of petitioner and Respondent No. 7--Petition
dismissed. [P. 67] A & C
Responsibility of Presiding Officer --
----The responsibility of Presiding Officer while declaring any vote valid or void is very
important. Presiding Officer must be aware of applicable rules and law settled by High Court had as well as Supreme Court -- Ballot papers which were not in prescribed manner ought to be
counted if it could be ascertained with reasonable certainty that for whom voter in each case
intended to vote. [P. 67] B
1996 SCMR 1496 ref.
M/s. Kamran Murtaza, Adnan Ejaz Sheikh, Tahir Ali Baloch and Noor Jan Buledi , Advocates for
Petitioner.
Mr. Zahoor Ahmed Baloch, Additional Advocate General for Respondent No. 1.
Mr. Shehzad Aslam , Law Officer, Election Commission of Pakistan (ECP) and Mr. Naseer
Ahmed , Assistant Private Secretary ECP assisted by Mr. Jaffar Khan, Returning/Presiding
Officer, Municipal Committee, Kohlu for Respondents Nos. 2 to 6.
M/s. Jameel Ahmed Khan Babai and Bangul Khan Marri, Advocates for Respondent No. 7.
Date of hearing: 3.5.2023.
J
UDGMENT
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 under was issued by ECP to the Presiding Officer to draw a lot
under Rules 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 & 9 of the Election 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 Advocate Murtaz 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 rejected 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
malafide 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
[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)
1[1]. 1996 SCMR 1496.
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.
(Y.A.) Petition dismissedThis 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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