SAIYED SAEED ASHHAD, J.--- This petition for leave to appeal assails the judgment, dated 11-5- 2006 in Civil Petition No,D-239 of 2006.
2. The facts in brief are that petitioner and respondent No,1 along with others contested Election for the office of Taluka Nazim, Taluka Bhiria, District Naushero Feroz. Election was held on 6-10-2005.
Petitioner secured 63 out of total 128 votes while respondent No,1 secured 62 and, as such petitioner was declared as Taluka Nazim. Notification to this effect was issued by Election Commission of Pakistan on 10-10-2005. On 7-10-2005 respondent No,1 moved an application before the Returning Officer/Senior Civil Judge, Kandiaro under Rule 36(6)(1) of Sindh Local Government Election Rules, 2005 (hereinafter referred to as the "rules") for recount of votes. This application was dismissed by the Returning Officer where upon respondent No,1 filed an election petition before the Election Tribunal/District Judge, Khairpur who vide order dated 18-1-2006 ordered recount. This order of the Election Tribunal was challenged before Sindh High Court, Bench at Sukkur in Civil Petition No,34 of 2006 which was dismissed on 3-3-2006. The order of the High Court was assailed by way of C.P.L.A.
No,96-K of 2006, which was also dismissed. Consequently, exercise of recount of votes was undertaken on 3-4-2006 as a result of which the number of votes secured by petitioner was reduced from 63 to 58 while number of votes of respondent No,1 were reduced from 62 to 59. Thus, respondent No,1 was declared successful vide notification dated 5-4-2006 issued by the Election Commission of Pakistan.
3. The order of Election Tribunal/District Judge, Khairpur, dated 3-4-2006 was assailed by way of Constitutional Petition No,D-239 of 2006 before the High Court of Sindh. A learned Division Bench of the High Court after minutely examining the facts of the case and the law applicable on the subject came to the conclusion that the impugned order of Election Tribunal did not suffer from any illegality or infirmity. Accordingly, the constitutional petition was dismissed and order of the Election Tribunal was upheld.
4. Feeling aggrieved and dissatisfied with the above judgment of the High Court the petitioner has filed this petition for leave to appeal.
5. We have heard the arguments of Mr. Waseem Sajjad, Senior Advocate Supreme Court on behalf of petitioner and Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court on behalf of respondent No, 1.
6. Mr. Waseem Sajjad, vigorously argued that the Election Tribunal as well as the Sindh was Court failed to consider the real controversy in issue, which was required to be decided in the present case and which if considered in its true perspective would not have warranted a decision in favour of respondent No,
1. He further submitted that real controversy was whether the act of double marking on the ballot-papers admittedly with the Marking Aid Rubber Stamp both of which were in the column of the petitioner in itself would render the ballot-papers invalid or contrary to the rules but whether such double marking could be considered to be an attempt or intention on the part of the petitioner to disclose his identity so as to violate the secrecy of ballot. He further submitted that both the Election Tribunal and the High Court in deciding the issue purely on the basis of Rule 33 of the Rules and thereby committed a grave and serious illegality as the matter was to be decided only after taking into consideration rule 35 of the Rules which was germane to decide the controversy. Elaborating his arguments drew our attention to Rule 35(4)(iii)(a, b, c) of the Rules and submitted that above clauses provide for discarding or holding a ballot-paper as invalid which bears double marking with Making Aid Rubber Stamp. His further submission was that in view of sub-clause (d) of clause (iii) of sub-rule 4 of rule 35 of the Rules the ballot-papers on which double marking with the Marking Aid Rubber. Stamp in the column of the petitioner, should have been counted as a valid vote in his favour. He further submitted that in deciding the question whether double marking of the ballot-paper was an unintentional or innocent act of the voter, regard should be had to the fact that the voters are usually illiterate persons and in their enthusiasm and anxiety to express their intention and support in favour of the candidate of their choice they had fixed the official rubber stamp twice. In support of his above contentions he placed reliance on the cases of (i) Irshad Ahmed v. Shafi Muhammad and 5 others 1981 CLC 1332; (ii) Pir Bukhsh v.
Muhammad Musa and others 1987 CLC 708; and his own case titled Col. (R.) Syed Mukhtar Hussain Shah v. Waseem Sajjad and 30 others PLD 1986 SC 178. He also referred us to paragraph 59 at page 440 of Halsbury's Laws of England, 4th Edition Reissued Volume 15 and section 345 on pages 344 and 348 of American Jurisprudence.
7. Mr. Abdul Hafeez Pirzada, senior Advocate Supreme Court appearing on behalf of respondent No,1 supported the order of the Tribunal and judgment of the High Court and submitted that both the forums had minutely examined the facts and relevant law and rules in arriving at the conclusion that ballot-papers which bore double official rubber stamp were to be excluded from consideration and the same did not suffer from any illegality, irregularity or infirmity. He further submitted that double stamping of ballot-papers could not be taken or considered as innocent, innocuous or careless acts of the voters due to lack of skill or understanding as all the voters who cast their votes in the election in question are members of the Taluka Council for which the requirement is matric and a matriculate cannot be expected to lack knowledge and understanding of the above provision of law.
8. We have considered the arguments of the learned counsel for the parties and perused the case- law referred to us by Mr. Waseem Sajjad as well as the relevant provisions of Rules.
9. The arguments of Mr. Waseem Sajjad that the Election Tribunal and the High Court erred in holding that placing reliance, on rule 30(6)(ii) of the Rules which was not applicable to the facts and circumstances of the case and should have examined the provisions of Rule 35(4)(iii)(d & e) of Rules which were very material for deciding the dispute is totally misconceived. There is no dispute that requirement of rule 35(4)(iii)(d & e). For clear understanding of the point in issue it would be appropriate to reproduce rules 30(6) I (ii) and 35(4)(ii)(d & e) of the Rules are reproduced as under:-- "30. Voting procedure.-- (1)................................................................................................................................................................
(2)................................................................................................................................................................
(3)................................................................................................................................................................
(4)................................................................................................................................................................
(5)................................................................................................................................................................
(6) The voters, on receiving the ballot-papers, shall-- (i)
(ii) put the marking aid rubber stamp on the ballot-paper at place within the space containing the symbol of contesting candidate of his choice; and (iii)................................................................................................................................................................
(7) ................................................................................................................................................................
"35. (Proceedings at the close of the poll; (1)..................................................................................................................................................................
(2)..................................................................................................................................................................
(3)..................................................................................................................................................................
(4) The Presiding Officer shall- (i)...................................................................................................................................................................
(ii)..................................................................................................................................................................
(iii) count the votes cast in favour of each contesting candidate excluding from the count the ballot-papers, which bear;
(a) no official mark;
(b) 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; (c)....................................................................................................................................................................
(d) any mark from which it is not clear from whom the voter 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 mark of "marking aid rubber stamp" appears clearly within the space containing the symbol of that candidate; and"
' The issue which requires determination is whether a ballot-paper containing double stamp marking with the official rubber stamp would be considered to be a valid ballot-paper. For this purpose, reference will have to be made to rule 30, which provides voting procedure. Clause (ii) of sub-rule (6) of the rule 30 of the Rules provides that a voter on receiving the ballot-paper shall put rubber stamp on the ballot-paper at place within the space containing the symbol of contesting candidate of his choice. A bare reading of above rule reveals that it casts a duty on a voter to put the official rubber stamp between the spaces containing the symbol of the candidate of his choice and there is no provision for putting the official rubber stamp twice. Provisions of rule 35 would be applicable only when the ballot-paper is marked in accordance with rule 30(6)(ii) of the Rules. For deciding the dispute in question the petitioner would be required to first satisfy that marking of ballot-paper in accordance with rule 30(6)(ii) of the Rules. There is no denial that the ballot-papers in question which bore double stamp mark of the official rubber stamp would be valid or admissible if there is nothing to-presume that the said double stamping was done with the intention on the part of the voter to disclose his identity with some pre-arrangement or manipulation with the candidate. In deciding whether double stamping of the ballot-paper in dispute was an innocent and inadvertent act of the voter or was done with an intention to disclose his identity reference will have to be made to the status, education, and intellectual faculties etc., of the voters in question. It is a matter of record that all the voters who were required to cast their votes for electing Taluka Nazim, Taluka Bhiria, District Naushero Feroz, were members of Taluka Council, Bhiria and for election as a member of a council the requirement is that the person should be Matriculate. It is not imaginable that a person who is Matriculate would mark the ballot-paper otherwise then in accordance with law innocently or inadvertently and a very strong presumption can be had that it was done to disclose his identity, thus violating the sanctity of secret ballot. The cases of Irshad Ahmed v. Shafi Muhammad and 5 others 1981 CLC 1332 and (ii) Pir Bukhsh v.
Muhammad Musa and others 1987 CLC 708 relied upon by Mr. Waseem Sajjad are absolutely of no assistance to resolve the dispute in question and on the contrary they do not support the case of the petitioner. In the case of Pir Bakhsh the dispute was whether the marking with the official rubber stamp was marked in a manner which did not clearly manifest the intention of the voter and from perusal of the disputed ballot-paper it was found that the official rubber stamp was marked within the space containing the name and symbol of the candidate and there appeared to be no doubt that the vote had been cast in dispute ballot-papers in favour of the respondent thus, the vote cast in his favour were rightly declared valid and accepted. In the case of Irshad Ahmed ballot-paper was marked with excessive ink and Sindh High Court held that it was not a sufficient ground to declare the ballot-paper as invalid. In none of the above two cases the question of double stamping of the ballot-paper was in issue.
10. The question of validity of the ballot-paper bearing double stamping was in issue in the case of Col. (R.) Syed Mukhtar Hussain Shah v. Waseem Sajjad and 30 others PLD 1986 SC 178. This Court pronounced that when the law prescribed that the intention of the voter should be expressed in a particular manner, it could be taken into account only if it is so expressed. In this case ballot- papers in addition to the official stamp mark had other marks or writing and were held to be invalid unless it was established that the other mark or writing was attributable to carelessness or want of skill. Mr. Wasim Sajjad submitted that observation made in the cited case should not be taken into consideration for deciding the present case as the election in the cited case pertained to Senate held under the Senate (Election) Rules, 1975. Rule 17 whereof provided the manner of recording votes recorded in the explanation was to be given mandatory effect and breach thereof was to be dealt with accordingly. We are unable to agree with the contention of Mr. Wasim Sajjad. The underlying principle laid down in the cited case appears to be that any initials, writing or mark as distinguished from required figure or mark appearing in the ballot-paper was ex facie an attempt to disclose the identity of the voter. In the case in hand in pursuance of rule 30(6)(ii) a voter was required to put one official rubber stamp in the space between the name and symbol of the candidate of his choice. The rule did not specifically provide that voter would not put a second stamp by the official rubber stamp or any other mark figure or initial but such would not imply that the ballot-paper could be marked by a voter in a manner other than provided by rule 30(6)(ii) of the rules. Furthermore double stamping of a ballot-paper by a voter who is matriculate could not by any imagination be held to be an innocent act which was merely done on account of exuberance and eagerness of the voters for the success of the petitioner or for emphasizing or clarifying voter's choice of candidate.
11. In view of the above discussion reliance by Mr. Waseem Sajjad on section 345 of the American Jurisprudence and paragraph 559 of Halsbury's Laws of England, 4th Edition, Volume, 15 would not be of any help in deciding the fate of the disputed ballot-papers. In the circumstances question whether the second stamp was put such a manner that half or more than half of it appeared in the space between the name of the petitioner in addition to the first official stamp would be of no importance as the double stamping was not at all required and was done ' with a view to disclose his identity.
12. In view of the above the Election Tribunal and the High Court were justified in declaring the ballot-papers bearing double stamping of official rubber stamp as invalid ballot-papers and discarding them from count. The order/judgment does not suffer from any illegality or infirmity calling for interference by this Court. Thus, for the foregoing facts, reasons and discussion this petition is found to be without any substance and is accordingly dismissed. Leave to appeal is refused.