1. ' AGHA ALI HYDER, C. J.-This petition calls in question the results of the election to the office of the Mayor of the Karachi Metropolitan Corporation, as announced by the Presiding Officer, who, in this case, was the Divisional Commissioner, Karachi. The circumstances in which this petition has arisen, very succinctly stated, are as follows :- On or about the 25th of September 1979, elections were held throughout convene of Sind under the scheme of the Sind Local Government ordinance No, XII of 1979. The petitioner and the respondent No, 4 are duly elected Councillors of the Karachi Metropolitan Corporation from their respective constituencies. According to section 103 of the Ordinance, the Government could make Rules to carry out the purposes of this Ordinance and to provide for all or any of the matters enumerated in Schedule VII and matters incidental, consequential and supplemental thereto. One of the items in the latter schedule was the election of the Mayor and Chairman. In exercise of these powers read with sections 17, 19, 23 and 24 of the Ordinance, the Government of Sind made the Sind Councillors (Assumption of Office) Rules, 1979. According to rule 3, a Councillor shall assume office at its first meeting, which shall be held on such date(s) as may be notified by the Presiding Officer in pursuance of the provisions of section 17. The next rule provided for the attendance of the members for which notice was to be given by the Presiding Officer through the Press, or, any other manner.
2. According to rule 5, the first meeting shall be presided over by the officer nominated by the Government. In the instant case, Mr. M. M. Usmani, the Divisional Commissioner, Karachi, was nominated as the Presiding Officer, as per Gazette Notification No, OSD/E/NOMIN/LG/P/79, dated the 18th of October 1979, and, on the 5th of November 1979, he notified the election for the offices of the Mayor and the Deputy Mayor of the Metropolitan Corporation of Karachi for the 9th of November 1979. It appears, that there were three candidates for the office of the Mayor, namely, Syeda Zahida Zaidi, the petitioner and the respondent No, 4, out of whom the first candidate withdrew her candidature. Both the candidates secured 80 votes each. However, three votes of the petitioner, and one vote of the respondent No, 4, were excluded from the count as invalid, because the mark prescribed by the Commissioner had not been placed at the prescribed place. Thus the valid votes cast in favour of the parties were reduced to 77 and 79 respectively. As a result, the respondent No, 4 was declared elected. The petitioner challenged the exclusion of the votes before the Commissioner at the spot, but with no effect, and the respondent No, 4 was administered the Oath of Office as the Mayor of Karachi. The petitioner later filed an appeal before the respondent No, 1, the Provincial Government. However, by an order dated 22nd of November 1979, it was held, that the appeal did not lie, culminating in this petition.
3. ' The first contention raised by Mr. Naseem Farooqui, learned counsel for the petitioner, was, that the election, as conducted by the Divisional Commissioner, itself was a nullity, as it had to be held by the Election Authority, and nobody else. The constitution of the Election Authority is to be found in section 33 of the Sind Local Government Ordinance, 1979, According to section 34, the Election Authority shall exercise such powers and perform such functions in such manner as may be prescribed. However, according to section 39, all elections under this Ordinance, shall be organised and conducted in accordance with the Rules which, amongst others, provide for bye-elections and submissions to and disposal of election petitions by the Election Authority. The rules, therefore, clearly laid down, that the elections of the Mayors and the Chairman were to be conducted by a Presiding Officer nominated by the Government, and a notification having been issued that Mr. M.
4. M. Usmani was to conduct this election, the contention of Mr. Naseem Farooqui, that the election conducted by the Divisional Commissioner, Karachi, was a nullity, has hardly anything to commend.
5. ' The three votes of the petitioner had been rejected by the Divisional Commissioner for the reason that the prescribed mark by the voter was communicated on behalf of the Commissioner on the very day of the election, and this is to be found in the counter affidavit filed by Mr. M. M. Usmani. The counter-affidavit filed by him mentions, that the procedure for making and other details were explained twice in the house. The ballot paper showing its column, prescribed mark and place of putting it, was displayed in the hall and was available for view throughout the polls." He has not stated in so many words, but the counter affidavit filed by the respondent No, 4, mentions that the Presiding Officer "had called the meeting to order, and, in the presence of all the voters, prepared a chart, containing a separate column in front of name of the candidate, and specifically administered and announced, that cross mark shall be put in the prescribed place, otherwise the ballot shall be rejected". In this very context, it might be mentioned, that, on the day in question, and, in the course of the meeting, there was also balloting for the office of the Deputy Mayor, and the marks put by the voters were in the column prescribed, with the result, that not a single vote of any candidate was excluded as invalid. It is contended on behalf of the respondents, that the placing of the mark in the ballot papers concerned was deliberately done for the purposes of identification, or, at any rate, to throw away their votes, while the case of the petitioner is, that it was through inadvertence, or, lack of proper instructions. Anyhow, even though the mark was not placed at the place allegedly prescribed, yet the intention of the voter leaves no manner of doubt, that he had exercised his vote in favour of the petitioner, and, if the intention of the voter was clear, due effect had to be given to the exercise of his right in choosing the Mayor. Reference was made to the cases of Abdul Hadi Azad v. Chief Election Commissioner, Pakistan (1) and The Presiding Officer v. Sadruddin Ansari and others (2). In the former case, the Election Commission, in an appeal, had re-counted the votes in exercise of the powers conferred upon it by the President's Order No, 13 of 1962 to the discomfiture of the petitioner. It was held in the case, affirming the order of the Election Commission, that the failure to put the mark at the prescribed place could not be said to be a violation of a mandatory provision, and all the requirement of law was, that it should be marked against the name of the candidate. The fixation of the place was for the guidance of the voter, and it did not matter, whether it was put to the right, or, to the left, when it was against the name of the candidate. The intention of the voter being clear, the challenge was repelled. To the same effect are the observations in the latter case, where the absence of the mark being precisely on the dotted line was found to be a mere breach of a directory provisions This was a judgment against the decision of a case from Karachi Sadruddin Ansari v. Yar Muhammad Memon and another (3). In Muhammad Ibrahim v. Election Tribunal Sargodha Division (4), the failure of the Presiding Officer to put his initial, though he had stamped it, was again found not open to any exception, as it was a breach of a directory provision of section 40 of the Electoral Colleges Act, 1964. It was observed therein, that a ballot paper could be declared invalid, only if it fell within the definition of section 45 thereof, i,e, those which do not bear the official mark, or, on which anything is marked, or, written by the voter by which he can be identified. True, that clause (c) of subsection
(2) of section 40 directed that the ballot paper shall on its back he stamped with the official mark and initialed by the Presiding Officer, but if the Presiding Officer failed in his duty, the effect on the ballot paper was not stated in section 40, and therefore the candidate was not to suffer on that account, as the official mark on it had been deemed to be sufficient guarantee of its genuineness.
6. It went on to say that section 40 did not govern or control section 45, and the two sections had different purposes and a vote could be rejected as invalid in accordance with section 45, without reference to section 40(2) (c). This was the view taken in Akbar All v. Razi-ur-Rehman Khwaja and others (5).
7. The Sind Local Government Ordinance, 1979 does not have any provisions like sections 40 and 45 of the District College Act. All that section 23 says is that "A council shall, in the prescribed manner, at its first meeting, elect from its members other official members if any, a Mayor and Deputy Mayor, Chairman or Vice-Chairman as the case may be." The word prescribed has been defined in section 3, clause 49. "It means prescribed by rules. Section 39 inter alia mentions that "all elections, under this Ordinance shall be organised and conducted in accordance with the rules "The last relevant section in that context would by section 103, which has already been referred to.. So we have to go to the Rules. Rule 8 deals with the election of Mayor. It reads as under :- "If there is only one candidate for any office, such candidate shall be declared by the Presiding Officer to have been elected to that: {{TABLE}}
(1) PLD 1964 Dacca 460 (2) PLD 1967 SC 569
(3) PLD 1967 Kar. 196 (4) PLD 1966 Lah. 794
(5) PLD 1966 SC 492 {{TABLE}} ' office, but when there are more candidates than one, the Presiding Officer shall proceed to take a poll by secret ballot in such manner as he may deem fit."
8. ' Mention may also be made of rule 9, which says, that the candidate securing the highest number of votes shall be declared elected and in case, the candidates obtain equal number of votes, the Presiding Officer was to draw lots. The position, therefore, emerges that the procedures for the conduct of the election of the Mayor and the Chairman had been totally entrusted to the Presiding Officer, who has to maintain the secrecy of the ballot. There might be so much to wish in the system evolved, but the intention is express and free of all ambiguity. It cannot be suggested, that in no circumstance, could a vote cast be excluded as invalid. The Presiding Officer has remained cryptic, but the respondent No, 4 has stated that the votes that were to be cast, in departure from the one announced and explained, were to be discarded. Support is lent to the assertion of the said respondent, by the fact that the results of the other ballot papers, used simultaneously for the candidates to the office of the Deputy Mayor, were free of all blemish. It cannot, therefore, be said, that the Presiding Officer was wrong in excluding the 3 ballot papers in favour of the petitioner, as he had done with a similar ballot paper in the case of the said respondent.
9. ' The last contention is in regard to the absence of Mrs. Gohar Aijaz in the election, because of her detention under M. L.
0. 12, by the authorities, a day earlier. She was very keen about exercising her right to vote. A copy of the telegram allegedly dispatched by her mother has been put on the record. It is not to be expected, and it does not mention, how and in whose favour, Mr. Gohar Aijaz wanted to cast her vote. That would have militated with the requirement of secrecy at that stage, but Mr. Khalid Ishaq says, that if it being asserted how, on behalf of the petitioner, what stopped Mrs. Gohar Aijaz, now that she is freed, and was also present in the Court during the earlier proceedings, from lending support to such claims, or complaining that her arrest was to keep her away and deny her participation in the election. Given that she was absent in the meeting, the question is, what could be done by the Presiding Officer, to ensure her participation or her use of ballot paper? The Ordinance and the Rules make no provision for postal ballot or votes by proxy; there was no other way. One has just to look to the relevant provisions. The first meeting had to be held within 30 days from the date on which the names of its members were notified by the Election Authority. The rule is in conformity with section 17 of the Ordinance.
10. "Rule 6.-(1) On attending the first meeting, the members already made oath under the Sind Council (Oath of Office) Rule 1979, shag be deemed to have taken their seats.
(2) Such members as could not make the oath under the Sind Council (Oath of Office) Rules 1979, shall be administered oath by the Presiding Officer or Mayor, Deputy Mayor, Chairman or Vice- Chairman, as the case may be in the first three meetings of the Council whichever he attends for the first time and on his taking the oath of Office, he shall be deemed to have taken his seat on the Council.
(3) When the members have taken their seats in the first meeting, the Council shall be deemed to have assumed office."
11. It might as well be mentioned, that she was not the only Councilor absent on that day. According to the counter-affidavit filed by Mr. Usmani, there were five other members, who had failed to turn up.
12. ' In the result, the petition stands dismissed with costs.