' TARIQ PARVEZ KHAN, C J.---This single judgment can dispose of Writ Petition No,1783 of 2005 (Ahmad Hassan v. Muhammad Rasool and others) and Writ Petition No,1737 of 2005 (Muhammad Rasool v. Returning Officers and others) as both are in respect of Election to the office of Nazim and Naib Nazim District Dir Lower.
2. Facts which are not denied by either side are that after the close of poll where petitioner Ahmad Hassan and petitioner Muhammad Rasool were rival candidates to each other, the unofficial result of the count declared that both the petitioners have secured 201 votes each.
' However, one vote was objected to by Muhammad Rasool/his agent which was counted towards Ahmad Hassan but the objection was overruled by the Returning Officer.
' Results were consolidated by the Returning Officer on 10-10-2005 and during consolidation he, out of the total, excluded five objected votes, two were such which were in favour of Ahmad Hassan and three were counted in favour of Muhammad Rasool. Besides above, one vote of the petitioner Ahmad Hassan was rejected by the Returning Officer after he solicited opinion from the Provincial Election Commissioner. As mentioned above, each of the contesting candidates have initially secured 201 votes. Three votes were excluded from the count of Muhammad Rasool and two from the count of Ahmad Hassan, therefore, apparently Ahmad Hassan was leading by one vote.
' The vote which was sent for opinion to Provincial Election Commissioner was excluded, thus both the rivals stood equal again.
3. These two writ petitions have been separately filed. Grievance of Ahmad Hassan Khan is that one vote excluded from his count on the opinion of Provincial Election Commissioner should be counted towards his total, whereas Muhammad Rasool has challenged another vote cast in favour of Ahmed Hassan and also counted thereto on the ground that the rubber stamp which should have been only in space/column where symbol is shown but it has been affixed not only in column of symbol but also in the column of name of Ahmad Hassan.
' The vote which was excluded from count of Ahmad Hassan on opinion of Provincial Election Commissioner is objected to on the ground that the rubber stamp is affixed not in the column of symbol but in the.Column where name of Ahmad Hassan appears.
4. We have heard the learned counsel for the parties at sufficient length and on a previous date had sent for all the ballot papers, their seals were duly opened in presence of counsel for the parties, parties and their agents. We found that five votes in total have been excluded from the count from both the petitioners whereas one ballot paper where rubber stamp is affixed not in the symbol column but in the column where name of Ahmad Hassan appears, was excluded from count.
5. Learned counsel appearing for Muhammad Rasool has vehemently challenged the ballot paper which contains rubber stamp both in column of name and in column of symbol. He has referred to Rule 30(6)(ii) of N.-W.F.P. Local Government (Conduct of Elections) Rules, 2005 (hereinafter referred to as Rules).
We would reproduce the relevant portions of the Rule which reads as under:-- "30. Voting procedure.---(1) Where an elector presents himself at the polling station to vote, he shall show his national identity card to the Presiding Officer, who shall after satisfying himself about the identity of the elector, issue him ballot papers:
(6) The elector, on receiving the ballot paper or ballot papers, shall---
(ii) put the marking aid rubber stamp on the ballot paper at place within the space containing the symbol of contesting candidates of his choice; and"
He has also taken us to Rule 35 and in particular to sub-rule (4)(iii)(b)(c) and (d) which reads as under:-- "35. Proceedings at the close of the poll.---
(4) The Presiding Officer shall---
(iii) count the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear--
(b) any writing or symbol 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;
(c) no mark of 'marking and rubber stamp' indicating the contesting candidate for whom the elector has voted; or
(d) 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 in 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"
6. It is argued that under Rule 30 of the Rules it is provided that the elector shall put the marking aid rubber stamp in space containing the symbol of candidate of his choice and that under Rule 35 the Presiding Officer shall exclude any ballot paper which contains any writing or any mark other than the official mark and the mark of rubber stamp or to which a piece of paper or any other object of any kind has been attached.
' Learned counsel has also referred to the proviso to Rule 35 and states that in proviso too it is re- agitated that the rubber stamp shall clearly appear within the space containing the symbol.
Learned counsel has cited number of judgments including 1994 SCMR 1937 and 2240, 1993 SCMR 573 and 1993 SCM R 2289. His contention is that where identity of elector can be disclosed or can be ascertained such ballot paper should be taken out of consideration and out of count. His further submission is that where rules prescribed that rubber stamp be affixed in the column of symbol that should be followed strictly, otherwise it would be violation of Rules and in particular violation of Rule 35(4)(iii)(b).
7. During pendency of the writ petitions, learned counsel filed an Application No,651 of 2005 and prayed that he be allowed to amend the writ petition. Through proposed amendment he wanted that three votes excluded from the count at the time of consolidation in favour of Muhammad Rasool by Returning Officer while announcing unofficial result have been wrongly excluded. It appears that earlier Writ Petition No,1911 of 2005 was filed seeking the same relief in respect of three votes but the writ petition was withdrawn on 7-12-2005 where the Hon'ble Bench of this Court recorded as under:--- "Wants to withdraw the instant writ petition with permission to file an application for amendment in Writ Petition No,1737 of 2005. Allowed. Dismissed as withdrawn."
8. It is argued by learned counsel for Muhammad Rasool petitioner that he has been allowed to amend the writ petition by adding challenge to three votes excluded at the time of consolidation and such amendment would be within the purview of Order VI, Rule 17, C.P.C. And also in consonance with Rule 67(4) of the Local Government Ordinance where Tribunal may at anytime allow a petition to be amended. He has relied on PLD 1995 SC 345, PLD 1992 SC 30 and page 180, PLD 1991 Peshawar 117.
9. The application for amendment was independently heard and we find that principles of Order VI, Rule 17,C.P.C. Are not applicable to the proceedings but there is an independent Rule No,67(4) of the Rules which empowers the Election Tribunal that it may at any time and upon such terms and on payment of such cost as it may direct, allow a petition to be amended as in such a manner which in its opinion, be necessary for fair and effective trial and for determining the real question in controversy but the Tribunal is debarred not to allow amendment by raising new ground of challenge to the election. Application for amendment before us unambiguously and decisively is in respect of three challenged votes which have been excluded from count from the votes of Muhammad Rasool.
' Challenge to the votes is made at the time when the elector gets the ballot paper to which the Presiding Officer records the challenge. Therefore, it was well in the knowledge of Muhammad Rasool that he has challenged three votes at the time of poll. In his writ petition as originally filed he has not raised the plea that three challenged votes have been wrongly excluded from him. It is, therefore, an independently and totally new ground which cannot be permitted under the principles of C.P.C. And the same would not be permissible even for the Election Tribunal under Rule 67(4) of the Rules.
10. Contention of counsel for petitioner Muhammad Rasool that he withdrew Writ Petition No,1911 of 2005 where he has challenged the order of the Returning Officer when three challenged votes were excluded from his count and the High Court permitted him to withdraw the writ petition and has allowed him amendment in the writ petition.
11. We can hardly agree with learned counsel for the petitioner because as we have reproduced the order of withdrawal in para. 7 above. Its clear interpretation is that petitioner herein wanted to withdraw his writ petition with permission to file an application for amendment in Writ Petition No,1737 of 2005 which is presently sub judice before us.
The Hon'ble Division Bench allowed the withdrawal and also allowed the permission to file an application for amendment. Not that the amendment itself was allowed. Where the High Court has only allowed withdrawal of the writ petition on request of counsel for the petitioner and where a Division Bench has allowed permission to file an application for amendment in a pending writ petition, it would not mean that amendment in the pending writ petition was also allowed.
Therefore, C.M. No,651 of 2005 is dismissed.
12. Learned counsel appearing for petitioner Ahmad Hassan Khan argued that one vote which was counted by the Returning Officer in favour of Ahmad Hassan but was later excluded on the opinion given by Provincial Election Commissioner, has been wrongly excluded.
13. Meeting the arguments of learned counsel in the connected writ petition i,e, filed by Muhammad Rasool, counsel for Ahmad Hassan petitioner argued that ballot paper which carries two rubber stamps, one in the column of symbol and the other in column of name clearly indicates the intention on the part of elector which is relevant for the validity of a ballot paper. He submits that mistake, if any, committed by an elector but where his intention is obvious, his right of franchise shall not be ignored and excluded. It was argued' that unless the two stamps could disclose the identity of the voter, the ballot paper would be valid and was validly counted in favour of his petitioner i,e, Ahmad Hassan Khan. It was also argued that reason for this mistake can be explained because the Electoral College for the office of Nazim and Zila Nazim of the District comprises of Members Union Council, their Nazim and Naib Nazim and procedure for their voting was that the stamp was to be affixed in the column of the name, therefore, some of the electors might have committed this mistake.
14. Learned counsel has relied on PLD 2002 SC 184 where it was ruled by the apex court that the primary purpose of a mark on the ballot paper was to ensure the intention of the voter, a mark on the ballot paper which clearly reveals the intention of the voter but without disclosing his identity, had to be accepted as valid exercise of vote. He has similarly relied on 1996 SCM R 1496, 1987 SCM R 1987 and 1983 SCM R 125.
15. We are conscious of the fact that all election disputes are to be taken before Election Tribunal constituted under the Election Laws but because in the instant case at present the dispute is only in respect of validity or otherwise of a very few number of ballot papers which can be determined and decided by visual observation and by interpreting the relevant provisions of the Rules. Though elections were held way back in October, 2005 but till date neither of the two rivals contesting candidates have been notified as returned candidate. At present as today, they have no matter pending before the Election Tribunal.
16. Since decision of these writ petitions may not prejudice the case of either of the parties which may intend to file election petition, we therefore, out of abundant caution are not considering five votes which were rejected as objected to by the parties and they are left undecided.
17. The application filed by Muhammad Rasool for amendment of his writ petition is dismissed because he wants to challenge the decision arrived at the time of consolidation of result where three votes apparently cast in his favour but were subject to objection, were excluded from his number of votes and two objected votes were excluded from count in favour of Ahmad Hassan. We are also not undertaking any exercise to issue any direction or declaration that who shall be the returned candidate as it is for the election authorities.
18. Confining ourselves to two votes/ballot papers, one, which on the basis of opinion given by Provincial Election Commissioner, was taken out of the count in favour of Ahmad Hassan because it carries rubber stamp in the column of name and not in the column of symbol and the second ballot paper is where rubber stamp is affixed in both the columns i,e, in the column of name and symbol.
' As for ballot paper which contains one stamp but in the column of name, we are taking guidance from the wisdom as is held by Hon'ble Supreme Court of Pakistan reported as 2004 SCM R 1899 titled (Salahuddin and another v. Abdul Khaliq and others). It was held by the apex Court that the question of validity or otherwise of the ballot papers could only be determined by ascertaining the intention of the voters and in that respect the manner of affixing mark/stamp was material. It was ruled that if the mark or stamp was affixed upon the name of a candidate instead of his symbol, there could not be any hesitation to maintain that the voter had in fact shown his consent to cast vote in favour of the candidate. The supra judgment was delivered with reference to Balochistan Local Government Election Rules, 2000 which rules are pari meteria to Rule 30 of the Rules.
19. Taking up the second ballot paper where at the time of consolidation of result the ballot paper was taken as valid in favour of Ahmad Hassan, we hesitate to agree with learned counsel for the petitioner Muhammad Rasool to exclude this vote because applying the principle as laid by apex court in number of judgments, referred to above and cited by learned counsel for petitioner Ahmad Hassan, the intention of elector is not ambiguous and is very clear.
20. Rule 30 of the Rules requires that the voter shall put the marking aid rubber stamp within the space containing the symbol of the contesting candidate.
Under Rule 35 the Presiding Officer shall exclude such ballot papers which contain 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. The wisdom behind the sub-rule of Rule 35 is that the identity of the voter is not disclosed and secrecy of the election is maintained.
21. We are required to interpret Rule 35(4)(iii)(b). The ballot paper in question though carries two stamps, one in the column of name and the other in the column/space for symbol. This ballot paper does not contain any writing nor it contains any mark other than the official mark. It does not have any piece of paper attached nor any other object of any kind.
22. "Official mark" is not defined in the Rules but if one would go to Rule 30(2)(iii) which requires a Presiding Officer that before issuing a ballot paper it shall be stamped on the back with official mark and signed by the Presiding Officer. This clearly demonstrates that the word "official mark" appearing in Rule 35(4)(iii)(b) is a mark which is referred to in Rule 30(2)(iii). Therefore, no exception could be taken where a voter/elector has affixed two stamps though it was required to be affixed only in one space.
' Rule 29 requires election to be held by secret ballot papers. The object and the scheme of the Rules would be that unless there is some invalidity which can be pointed out towards a ballot paper but as long it does not disclose the identity of the voter and as long secrecy is maintained, no exception shall be taken to such ballot paper and it shall be accepted as valid. Object is not to disfranchise an elector voter of a very valuable right on mere technicalities which are not visited with any consequential penalties, like in Rule 30 nor in Rule 35 nowhere it is prescribed that if a stamp is affixed in column of name or two stamps are affixed, one in the column of symbol and the other in the column of name, such vote/ballot paper be excluded from count. The rule though requires that elector shall put stamp in space meant for symbol but it does not say that it shall not be affixed elsewhere.
' The philosophy of secret ballot is that every voter shall have free right of franchise and free right to cast his vote in favour of a candidate of his choice without any other candidate knowing as to in whose favour a particular elector has cast his vote. This is the basic norms of democracy. The crux of the matter would be that as long the intention of the elector cannot be disputed and he has clearly and unambiguously affixed rubber stamp showing his exercise of right of franchise in favour of a particular candidate, his such choice should be respected and be accepted. However, the rule of caution is that he shall exercise his right in such a manner that his identity remains undisclosed.
23. For the reasons stated above, it is held that the ballot paper containing two stamps, one in the column of name of Ahmad Hassan and the other on his symbol, is valid and was validly counted in his favour. As for second ballot paper where rubber stamp is affixed not on the symbol but in the space of name of Ahmad Hassan and it was excluded from the count of Ahmad Hassan is also held to be a valid ballot paper.
' The consequence would be that the writ petition filed by Ahmad Hassan is allowed and the other filed by Muhammad Rasool is dismissed. Parties are, however, not burdened with any costs.