1. ' JUSTICE QAZI EHSANULLAH QURESHI, (CHAIRMAN).---Through this petition before the Election Tribunal the petitioner, now respondent No,1 challenged the Election results of N.A.3 NALC 2004, declared on 18-10-2004. Whereby the respondent No,10 Muzaffar Ali Advocate, was declared as returned candidate securing 4,141 votes vide Notification dated 18-10-2004.
2. Succinctly narrated facts of the case are that initially after the close of poll on 12-12-2004 results prepared by the Presiding Officer is highlighted as below:-
(1) Aftab Haider 4448(2) Muzaffar Ali-4292
(3) M. Sharif 3233 (4) M. Ishaq 6
(5) Shahbaz Ali 453 (6) Zafarullah Baig 1126 ' But the said result was not officially declared by the Returning Officer instead he opted to re-count the ballot-papers with the result 619 votes polled in favour of the respondent No,1 were excluded on the plea that the same did not contain official mark on the back of the ballot-papers, in this way the result was changed and respondent No,10, Muzaffar Ali, Advocate was declared as returned candidate vide Notification dated 18-10-2004, in the following manner:--
(1) Muzaffar Ali 4141 (2) Aftab Haider 3945
(3) Muhammad Sharif 3078(4) Zafarullah Baig 1105
(5) Shahbaz Ali 437, (6) Muhammad Ishaq 6 ' Aggrieved of above, it was impligned before Election Tribunal wherein, it was alleged in the petition by respondent No,1, that 619 ballot-papers were excluded from the count pertaining to five polling stations and the result of said polling stations shown as zero, thereby franchise of all the electors including male and female voters of D.J. Girls High School Jiger Pati Oshikhandass (Male), Government Middle School Chamoogarh Male/Female voters. Similarly male/female voters of Village 1Khaltaro and male voters of Government High School Rahimabad were brushed aside and they were deprived of their right to elect their representative of their choice that the candidate/voters cannot be made to suffer because of any mistake or irregularity on the part of Polling Staff in league with any candidate.
3. ' In the petition, it was also hotly pressed that excluded ballot-papers from the five Polling Stations of NALC No,3, cannot be termed as invalid votes as the same were not bogus nor invalid under the law. It did contain the official marks on the back of the ballot-papers, however, even if the situation was so worse at the most re-election could be ordered regarding five polling stations in dispute but without participation of electors of five polling stations, the Notification in favour of respondent No,10 in no stretch of imagination can be taken as legal and justifiable exercise on the part of the Returning Officer.
4. ' In the end respondent 'No,1 then petitioner prayed that he had every right to be declared as successful candidate and Notification dated 18-10-2004 in favour of respondent No,10 was illegal in alternate he had requested for fresh election in five polling stations in question.
5. ' Case was contested written statement filed by respondents Nos.l, 2, 4, 5, 7, 8, 9, 10, respondent No,4 in his reply denied the allegations as a whole and supported the Notification dated 18-10-2004 stating therein that no illegality or any irregularity had been committed by the Election Authorities and the result and process of election was quite in consonance with law under subsection 4-C, (1) of section 35 of Northern Areas Election Order, 1975. Further stated that no official mark (code mark) was affixed on the back of the ballot-papers by the concerned Polling Officers despite code mark 3, 29, 38, 39 and 50 were allotted for the aforesaid polling stations, clear-cut instructions to this effect were too issued to the Polling Staff to strictly adhere to subsection (3) of section 22 of Polling Officer hand book.
6. ' That respondent No,3 also did not admit the contents of the petition in toto and taken same stand that the votes of the five polling stations were rightly excluded following section 22(e) of Polling Officer hand book.
7. ' That respondents Nos.4, 5, and 8 took different stand that they were untrained and unaware of the procedure, and that they had conducted the election for the first time, however, they had affixed official mark on the back of the ballot-papers.
8. ' Lastly respondent No,10 contesting party/returned candidate refuted the entire allegations and supported the stand of respondents officials.
9. ' Muhammad Sharif now appellant had taken number of grounds for declaring the election void on the allegation of corrupt and illegal practice, irregularity, violation of rules, non-transparent conduct of election etc. ' During the proceedings of the election petition before the Tribunal respondent No,10, submitted a resignation from the seat of NALC as member which was accepted by respondent No,11, in the situation the learned Election Tribunal vide his judgment/order, dated 25-5-2005 declared Mr. Aftab Haider, now respondent No,1 as returned candidate being runner up for NALC No,? Gilgit, which order was impugned by the present appellant before the Chief Court. The Chief Court vide his judgment dated 22-6-2005 concluded as under:-- ' Quote "Taking into consideration the count and the results furnished by all the Polling Officers of the 62 polling stations and by exercising the powers conferred under section 107 read with Order XLI, rule 33, C.P.C., Aftab Haider is liable to be declared as returned candidate in his Election Petition No,1 of 2004. The cross-objection is acceptable to this extent."
10. "Election Petition No,17 of 2004 filed by the present appellant, wherein the whole election of the Constituency No,3 Gilgit is impugned which requires to be thrashed out by framing of issue, leading of evidence documentary as well as oral and its decision on merits in accordance with law.
11. Therefore, the Election Petition No,17 of 2004 is liable to be remanded back to the Tribunal for the above purpose."
12. "Consequent upon what has been discussed above in the light of the material available on file and the prevailing situation of the case, to the extent of declaration of present respondent No, I as returned candidate in Election Petition No,1 of 2004 the appeal is dismissed while the cross- objection of respondent No,1 is partially accepted to the extent of counting of ballot-papers and results of all the 62 polling stations furnished by the Polling Officers. However, the issue of validity or invalidity of ballot-papers of the five polling stations mentioned above which is also impugned in the Election Petition No,17 of 2004 will be determined by the Tribunal."
13. "To the extent of dismissal of Election Petition No,17 of 2004 at a premature stage by the Tribunal, the appeal is accepted and the Election Petition No,17 of 2004 remanded back to the Election Tribunal Gilgit for disposal on merits in accordance with law. The impugned judgment/order dated 25-5-2005 of the Election Tribunal, Gilgit is modified accordingly. Keeping in view the nature of the case, the learned Election Tribunal is directed to conclude the trial of the Election Petition No,17 of 2004 within six months, without being influenced by this judgment."
14. Not satisfied with the aforementioned judgment, hence, the present appeal before this Court, on the following grounds.
(1) That the order passed by the learned D.B. Of Chief Court as well as that of learned Tribunal being perfunctory and arbitrary, impulsive and full of flaws on the fact of it, lacking sound reasoning and suffering from legal infirmities.
(2) That the judgment and order passed by the learned Courts below has been based upon wrong notion, misconception of facts and misinterpretation of law laid, down by superior Courts in such- like cases. The Obiter Dictum evolved by Honourable Tribunal finds no sound reasoning and has been placed upon flimsy grounds.
(3) That the law and procedure have not been fully followed in order to reach to a just and fair conclusion. The criteria coupled with parameter of ratio envisages double standards, discrimination. The end of justice has been defeated resulting in miscarriage of justice.
(4) That the dictum of law and procedure evolved by the learned Tribunal while passing the impugned judgment and order is violative of the golden principle of natural justice, law and equity.
15. ' The learned counsel for the appellant while arguing his case zealously assailed the judgment of Election Tribunal that the same has been passed in a hasty and haphazard manner without adopting the procedure permissible under the law, deciding the case without recording evidence and framing of issues, amounts to ignoring all norms of justice and law which exercise on the part of Election Tribunal was illegal ab initio, void and without jurisdiction, lastly prayed that impugned judgment be set aside and that a fresh repoll of NALC-3, be ordered.
16. ' The learned counsel for the respondent hectically rebutted the contentions raised by the learned counsel for the appellant and submitted that the case of the respondent No,1 is confined only to the extent of recounting, he was in the initial stage, declared as returned candidate but later on by exclusion of five polling stations ballot-papers, respondent No,10, was declared as successful.
17. ' We have taken into consideration the submissions addressed to the Bench by the counsel for the parties and also perused the entire record of the election petition before Election Tribunal Northern Areas Gilgit, bags of invalid papers of five polling stations and valid papers recorded during the conduct of election requisitioned from District Returning Officer, Gilgit, the record of the appeal before Chief Court impugning judgment, dated 25-5-2005 delivered by Election Tribunal, and also election record in possession of Returning Officer for Constituency NA-3, District Gilgit.
18. ' After examining the above record we have noticed that although petitioner/appellant had challenged the judgment/order of the Election Tribunal dated 25-5-2005 whereby respondent No,1 was declared as returned candidate being runner up but he failed to challenge the disputed notification dated 28-5-2005 issued in favour of Aftab Haider respondent No,1 as successful candidate by respondent No,2, which is a moot and crucial document and a root cause of petitioner/appellant grievance. Secondly the judgment by the Chief Court was passed on 22-6- 2005, again review petition was filed and decided on 12-4-2006 when the captioned appeal before this Court has been preferred on 1-6-2006, which too is quite fatal being hopelessly time-barred.
19. Petition/appeal is to be filed against the original judgment, dated 22-6-2005. Meaning thereby that appeal against the Chief Court judgment has been filed almost after lapse of one year and in case we take appeal from the result of review. It is filed after about more than one and a half month when one month is required for filing a petition/appeal.
20. ' Be that, as, it may, a controversy before this Court is whether the Election Tribuna. Was required to invite evidence in such-like cases when a validity of ballot-papers, is only involved which document is a public document in safe custody of District Returning Officer and could be resolved by re-examining the valid and invalid ballot-papers without wasting the precious time of Court and parties as well. The question of issues and evidence is warranted in the matter which sought to be proved through solid evidence. In the case in hand the result of five polling stations which was shown as zero was to be thrashed out on legal and technical aspects, the moreso there involves only a question of codal mark. It is also a hard fact that official mark of the Polling Officer/ Presiding Officer was very much available on all the excluded votes with initial as enshrined in section 30, subsection (2)(d), Northern Areas Council (Election) Order, 1975, which is reproduced below:-- The Northern Areas Council (Election) Order, 1975 Section 30. Voting Procedure--- (1) Where an elector presents himself at the polling station to vote, the Polling Officer shall, after satisfying himself about the identity of the elector, issue to him a ballot-paper.
(2) Before a ballot-paper is issued to an elector--
(a) he shall be required to receive a personal mark made with indelible ink on the thumb or any other finger of either hand;
(b) the number and name of the elector as entered in the electoral roll shall be called out;
(c) a mark shall be placed on the electoral roll against the number and name of the elector to indicate that a ballot-paper has been issued to him;
(d) the ballot-paper shall on its back be stamped with the official mark; and
(e) the number of the elector on the electoral roll shall be marked in writing on the counterfoil by the Polling Officer who shall also stamp the counterfoil with the official mark.
(3) A ballot-paper shall not be issued to a person who refuses to receive the personal mark with indelible ink or if he already bears such a mark or the remnants of such mark.
(4) If a contesting candidate or his election or polling agent alleges that an elector to whom a ballot-paper is about to be issued already has one or more ballot-papers in his possession, the Polling Officer may require the elector to satisfy him that he does not have any other ballot-paper in his possession and may also take such measures as he thinks fit to ensure that such elector does not insert more than one ballot-paper in the ballot-box.
21. "Then the ballot-papers shall on its back be stamped with the official mark."
22. Northern Areas Council (Election) Rules, 1975 as under:- Section 22. Count on close of Poll.--- The Polling Officer shall, after taking out the ballot-papers from the used ballot-box or ballot boxes.
(a) separate the ballot papers which are unambiguously marked in favour of a contesting candidate from those which bear---
(i) "No official mark" or
(ii) any writing or any mark other than the official mark and the prescribed mark made with the rubber stamp supplied for the purpose or to which a piece of paper or any other object of any kind has been attached; or
(iii) no prescribed mark indicating the contesting candidate for whom the elector has voted; ' The above quoted section/Rules never speak of codal mark, the Returning Officer appeared before the Court, on query, when confronted with the relevant section 30(2)(d) of Northern Areas Council (Election) Order, 1975, where there is no narration of codal mark, he in reply had shown his ignorance on the pretext that he being untrained and ignorant of law, could not act properly as Retuning Officer strictly according to law, he just obeyed the orders of District Returning Officer while excluding votes under dispute. His entire exercise was under the dictate of District Returning Officer and he had not applied his own mind judiciously.
23. ' The learned counsel for the petitioner/appellant also could not convince us that the official stamp and the codal mark, both were mandatory to be affixed on the ballot-papers. He however, very fairly assisted the Court disclosing that the code mark on the back of the ballot-paper is neither incorporated in the law nor in the Northern Areas Election Rules, 1975. However, it did exist in the Northern Areas Local Government Order, 1975, under section 33, which is quoted as under:-- Section 33. Northern Areas Local Government Election Rules, 1979.
24. "Section 33. Procedure for the casting of ballots.--- (1) On receipt of the ballot-paper, the Polling Officer shall fix his initial and affix a code number stamp thereon.
(2) The elector shall not place any mark on the ballot-paper or otherwise deface it.
(3) After the ballot-paper has been initialed and the code number stamp affixed by the Polling Officer, the elector shall immediately proceed to the compartment or room to mark the ballot- paper with the stamp provided within the space containing to symbols of the contesting candidate for whom the elector wishes to vote. The voter after marking the will fold the ballot-paper, come out of the compartment or room and drop the ballot-paper in the box within the view of the Polling Officer.
(4) After dropping the ballot-paper in the ballot-box the elector shall leave the polling station forthwith."
25. ' The requirement so given in section 33(1) above with regard to code mark is only applicable in Local Government Elections, which provision never appears in Council Election. We have also gone through the reported case relied by the learned counsel for the petitioner i,e, PLD 1980 Lah. Page 311, concerning depot and land PLD 1966 (W.P.) Lah. (sic), regarding nomination papers PLD 1983 (sic) is about powers of Election Tribunal PLD 1968 Kar. p.39'7, in respect of serious allegations supported by affidavits and other documents.
26. ' In nutshell, case-laws produced by counsel for the petitioner are neither direct on the point nor applicable in this case.
27. ' Lets have a glimpse on below given authorities referred by learned counsel for the respondent No,l.
28. PLD 1966 Kar. P.436 "The conclusion, therefore, is that as a general rule the failure of the Election Officials to comply with the statutory directions is not to be regarded as invalidating a ballot-paper or an election except where the consequence of such failure has been clearly prescribed by the Legislature itself and accordingly the absence of the official mark would render a ballot-paper invalid in terms of clause
(a) of subsection (1) of section 45 of the Act; but the term "official mark" as used in this clause is to be interpreted liberally so as to include not only the stamped mark but also the initials of the Presiding Officer and that the presence of either of these two marks should suffice for saving the ballot-paper from invalidation."
29. PLD 1971 Lah. P.737 "(b) Election-Statutory provisions in election laws-Generally regarded directory.
30. ' It is well-settled that as a general rule the statutory provisions of election laws are to be regarded as directory, unless the Legislature itself has prescribed a penal consequence for their violation or non-compliance by the election officials, as otherwise dishonest or inefficient officials could easily defeat the very object of the election law."
31. PLD 1986 SC p.178
(c) Interpretation of statutes--- "---Election laws---Nature of---Whether mandatory or directory---Election Laws concerning officers conducting elections---Directory---Election Law concerning voters--Mandatory---So far as election laws are concerned the requirements of law insofar as officers conducting the election are concerned are usually taken to be directory and so far as these requirements concern the voters they are usually taken to be mandatory.
32. ' The general principle is that where the matter is one in which the voter had no control he is not to lose his vote on account of an omission by the officer.
33. ' When the law prescribes that the intention (of the voter) should be expressed in a particular manner, it can be taken into account only if it is so expressed. An intention not duly expressed is, in a Court of law, in the same position as an intention not expressed at all."
34. ' The case of the respondent is otherwise misconceived and misinterpreted by Election Authorities because the official mark required for the purpose was very much available on the back of the ballot-papers when the above referred authorities even in absence of official mark clear the situation and exonerate the candidate from the folly and omission committed by the polling staff for which the candidate/elector shall not be made to suffer. The provision of consolidation of result also does not permit Returning Officer to re-count and exclude the ballot-papers in a manner he had done in violation to section 25, section 30 of Northern Areas Council Election Order, 1975 and also to Rules 22, Northern Areas Council Election Rules, 1975. We fail to come to cross any such condition of codal mark in the Northern Areas Council Election Laws the condition of codal mark did appear but in the Northern Local Bodies Rule. So for the instruction in the hand book of the Polling Staff is concerned it cannot override the law and legislation made by the competent body which has to be strictly followed and departure from the law cannot be made by anyone according to his own whims and wishes.
35. ' In the circumstances, it is abundantly clear that the Returning Officer conducted the election in a care free manner off handedly in violation to rules and law which conduct on the part of the Returning Officer is not called for and it amounts to playing with career and lives of the candidates and depriving of franchise from the very genuine expression to elect their representative so it will not be out of place to mention at this juncture that the Election Authorities are very much responsible for mishandling the situation e.g. Process of election from start to end, appointing of untrained staff who were not well-versed with the election process/rules, procedure, and law.
36. ' As such it is directed that the polling staff when appointed for future, shall be given training prior to the election and shall also be apprised of law and rules prevailing at the time. It will also be in the fitness of things to arrange permanent staff, if possible, a polling staff shall be acquainted with entire process of election from the initial stage to the concluding stage, for instance, how to conduct election what is ballot-paper, its use what is challenge vote, what is tender vote, what is spoiled ballot-paper, procedure of counting of vote at the time of close of poll by the Presiding Officer, the conduct of Returning Officer while consolidating the result finally. The preceding directions are given to ensure the whole election process, smooth, soft and transparent.
37. ' As a result of above discussion we are constrained to dismiss the petition however, the election petition filed by the petitioner before election Tribunal which is pending disposal, its proceeding shall continue and be decided after recording of evidence etc., and affording of Opportunities to both the parties as directed by Chief Court. No order as to cost, file be consigned to record.
38. ' The Registrar of this Court is directed to send the copy of judgment to Election Commissioner, Northern Areas Gilgit (respondent No,2) for future guidance.