ZAFFAR HUSSAIN MIRZA, J.-The Petitioner in this Constitutional Petition seeks to call in question the legality of the order dated 26th January, 1980 passed by the Election Tribunal/District Judge. Sukkur under the Sind Local Council (Election) Rules, 1979, whereby the petitioner was unseated from the Membership of the Town Committee No, 2, Ghotki and the respondent No. 1 was declared returned to the seat in question.
2. There were in all for candidates for the election, namely, the petitioner and the first three respondents who were allocated the symbols as under :-
(i) Petitioner. ....................... Bullock Cart
(ii) Respondent No, 1........................ Candle.
(iii) Respondent No, 2 ...... ............... Elephant.
(iv) Respondent No, 3....................... Horse.
' The poll for the election was held after the preliminary count the Presiding Officer declared that the petitioner had secured 177 votes and the first respondent to have secured 180 votes. He excluded from the count 28 ballot papers as invalid votes. However, the Returning Officer while consolidating the results re-examined the excluded ballot papers and found that five ballot papers were wrongly excluded, which he included in the count of the petitioner. Thus according to the consolidated results prepared by the Returning Officer, the petitioner secured 182 votes while the first respondent secured 180 votes. The petitioner was, therefore, declared as the successful candidate for the election in question.
3. The first respondent being dissatisfied with the results of the election declared by the Returning Officer filed an election petition under rule 65 of the Sind Local Council (Action) Rules, 1979 (hereinafter called the Rules'), which was referred for trial to the Election Tribunal, who passed the impugned order holding that the five votes added to the valid votes secured by the petitioner were in fact invalid and had to be excluded from his count and thereby unseated the petitioner.
4. On behalf of the petitioner it has been contended that the Tribunal has excluded the five ballot papers as invalid contrary to the mandatory provisions of the relevant law and thereby committed an error of jurisdiction in unseating the petitioner. It is clear from the impugned order that none of the parties led any evidence before the Tribunal and the controversy was confined only to question whether these five ballot papers were rightly held to be valid votes cast in favour of the petitioner, to be decided on the basis of the election record. Now the Tribunal after hearing the arguments of the counsel for the parties before it and upon examination of the ballot papers in the dispute recorded its finding in the following words :- "Vote No, I marked by me has clear two marks, one on 'bullock cart' and the other on the 'clock', besides having ink marks on the rest of the paper. However, the ink marks are irrelevant because that could be due to excess pad-ink. Nevertheless this Vote No. 1 could not have been treated as valid because it clearly bears two specific marks on 'bullock cart' as well as 'clock'. There cannot be any two opinions in this conclusion. Similarly Vote No, 2 has also two marks, one on 'bullock cart' and the other on the 'fish'. Same position is with Vote No, 3, Vote No, 4 has one mark on 'bullock cart' and the other mark on the 'huqqa' while fifth has one mark on 'bullock cart' and the other on 'cap'.
In this way none of these five votes could be held to be valid by the Returning Officer and I have no hesitation in concluding that the learned Presiding Officer had rightly excluded these votes as well from consideration at the time of initial counting.
' (Underlining is mine).
' The learned counsel for respondent No. 1 has submitted that the second mark on each vote referred to above could be due to folding of the paper itself. I have exercised in this way as well to find out whether the other mark could be, because of the folding of the paper, but I am not in a position to agree with the learned counsel. The other mark besides 'bullock cart' is a clear stamp mark and it appears that there had been some sort of manipulation in regard to the mark put on the 'bullock cart', because the 'bullock cart' has mark with some excessive ink, whereas the marks on other symbol are quite clear and cannot be, because of the folding of the paper. In this view of the matter it can safely be concluded that these five votes taken out of the excluded votes by the learned Returning Officer and shown to have been cast in favour of respondent No I were quite invalid and ought to have been excluded from consideration as was initially done by the learned Presiding Officer.- ' At the request of the counsel for the parties we had summoned the election records and in presence of the parties have unsealed the envelope containing the ballot papers excluded from the count by the Presiding Officer. The counsel for the parties was given opportunity to inspect these ballot papers. We find the five disputed ballot papers separately pinned inside the ballot papers and as observed by the Tribunal in its order have been serially numbered with red pencil and initialled by the Tribunal. We find that the ballot paper is printed on one side and the other side is blank. The printed side contains five rows of squares, each row containing for squares in which different symbols are printed. These are apple, bridge, bucket, bullock cart, a candle, cap, cot, clock, elephant, fish, and horse. Huqqa, kite, knife, ladder, lock, radio, spectacles, table and umbrella. It will, therefore, appear that the ballot-papers contained only the symbols and not the names of the candidates and it is important to note that although there were for candidates having the eymbols mentioned in para. 2 above the ballot paper contained 20 symbols, 16 of which were not allocated to any candidate. Each vote bears the endorsement of the Returning Officer dated 27th September, 1979. The ballot papers contained the following endorsement by the Returning Officer.
(i) Valid Vote.
(ii) Stamp is visible. Vote is valid
(iii) Valid. Stamp is visible.
(iv) Stamp is visible. .Vote is valid.
(v) Valid vote.
5. The perusal of the extract from the impugned order hereinabove re-produced will show that the learned Tribunal rejected the disputed ballot papers as invalid on the ground alone that each ballot paper bore two marks. The Tribunal has also drawn the conclusion that there was some sort of manipulation in regard to the mark put on the symbol 'bullock cart' allocated to the petitioner, because the mark was affixed with excessive ink. To say the least, the learned Tribunal was influenced by this circumstance without any rational basis in arbitrary manner when there was no allegation or evidence of any manipulation against the petitioner. The only question therefore, that arises for consideration is whether the tribunal was right in throwing away the disputed ballot papers on the ground that besides the prescribed mark on the symbol of the petitioner there was another mark with the rubber stamp on each ballot paper.
6. In this regard it is relevant to refer to sub-rule (4) of rule 40 of the Election Rules, which reads as under:- "The Presiding Officer shall-
(a) open the used ballot box or ballot boxes and count the entire lot of ballot papers taking out therefrom ;
(b) open the packet labelled challenged ballot paper and include the ballot-papers therein in the count ;
(c) count the votes cast in favour of each contesting candidate excluding from the count the ballot-papers which bear-
(i) no official mark ;
(ii) any writing or any mark other than the official mark and the cross or tick-mark or to which a piece of paper or any other object of any kind has been attached ;
(iii) no cross or tick-mark indicating the contesting candidate for whom the elector has voted ; or
(iv) 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 cross or tick-mark appears clearly within the space containing the name and symbol of that candidate ; and where the cross or tick-mark is divided equally between two such spaces, the ballot-paper shall be deemed to be invalid.
' The manner of casting the vote has been provided by sub-rule (6) of rule 35 as under- "The elector on receiving the ballot, shall -
(a) forthwith proceed to the place reserved for making the ballot-paper ;
(b) put the cross or tick-mark on the ballot-paper at a place within the space containing the name and symbol of the contesting candidate for whom he wishes to vote ; and
(c) after he has so marked the ballot paper, fold and insert it in the ballot box."
' In view of the aforesaid provisions we could not understand how the electors were required to cast their votes by marking the ballot paper with the rubber stamp as no amendment in the rule has been brought to or notice by the counsel. However, since both counsel agree that all the votes were cast by affixing a rubber stamp, the question is not material for the present purpose except that while interpreting the above-mentioned rules we will have to read the words "cross or tick-mark" as referring to the prescribed rubber stamp.
7. On behalf of the petitioner it was contended that the mere presence of another stamp mark was not sufficient to throw the ballot paper out of count as invalid. On the other hand, on behalf of the first respondent it was strenuously urged that in terms of sub-rule (4) of rule 40, clause (c) (ii) the Tribunal was justified in holding that the disputed ballot-papers were invalid by reason of there being other mark besides the official mark and the rubber stamp on the petitioner's Further it was observed with reference to Phillips v. Goff (1): "It was there held that ballot papers, though not marked in the prescribed manner, ought to be counted if it could be ascertained with reasonable certainty for whom the voter in each case intended to vote, how many votes he intended to give, and that he had not intended to give more votes than there were members to be elected."
' The Author also refers on page 101 to the case of N. E. Derey Shire where a vote was marked with a strong black cross against one candidate and a faint cross against another, the Court held the vote good for the first-named candidate,
8. We are, therefore, unable to agree with the view of the Tribunal, that mere presence of an extra mark would render the ballot paper ipso facto invalid. As already stated the question would always be of the unambiguous intention of the voter revealed by the ballot paper. In case such intention is clear the ballot paper cannot be cast away so as to disenfranchise the voter of the right of exercising his vote. This view is clearly supported by sub-clause (iv) of clause (c) of sub-rule (4) under interpretation. In the present case the finding of the Tribunal is that clearly the disputed votes were cast in favour of the petitioner, but there appears to be other rubber stamp marks on some 'redundant symbols not allocated to any candidate. We are, therefore, clearly of the view that the intention of the voter was to give his vote to the petitioner and not to any other candidate at the election. The Returning Officer was, therefore, justified , in including the five votes in the count of the petitioner.
9. Learned counsel for the respondent, however, contended that the five ballot papers in dispute cannot be treated as valid votes as apparently they are marked with a different rubber stamp than the prescribed one which appears on the rest of ballot papers. We cannot accept this submission at this stage since no such issue was raised before the Tribunal, D no finding was given and no opportunity was provided to the petitioner to contest the same. The first respondent cannot be allowed to support th decision of the Tribunal on grounds other than the ones on which the Tribunal rejected the ballot papers. In any case the question raised is a disputed question of fact and, therefore, in the constitutional jurisdiction we cannot embark upon an inquiry to determine the same. Learned counsel also referred to a decision of the N.-W. F. P. Election Tribunal on the interpretation of section 36 of the National and Provincial Assemblies (Elections) Ordinance, 1970, reported as Abdul Razik Khan v. Abdul Aziz Khan (2) but in or view this decision also supports the view that we have taken as will he clear from the following passage at page 47 of the report :- "By section 36, any ballot-paper which bears no official mark or any writing or mark other than official and prescribed mark or no prescribed mark or any mark which leaves it uncertain for which candidate an elector intended to vote or signifies that he has voted for more than two candidates shall be rejected or excluded from the count and to put the matter affirmatively, the ballot paper must bear official mark besides prescribed mark and be so marked so as to show that the voter intended to vote for someone and so as to show for which of the candidates he intended to and at the same time be not marked so as to indicate that he intended to vote for more candidates than he was entitled to vote for, nor so as to leave it uncertain whether he intended to vote at all, or for which candidate he intended to vote, nor indeed so as to make it possible, by seeing the paper itself or by reference to other available facts, such as any writing or mark not prescribed or attaching any object to the paper, to identify the way in which he has voted. If these requirements are substantially fulfilled, then there is no enactment and no rule of law by which a ballot paper can be treated as void, though the other directions in the statute or rules framed thereunder are not strictly adhered to."
10. Learned counsel for the contesting respondent finally urged that this petition is not maintainable against the order passed by the Election Tribunal, placing reliance on the case of Mohammad Sadiq v. Mohammad Nawaz (1). We are unable to see how this judgment is relevant for the argument advanced. None of the cases disposed of by this judgment seemed to relate to a dispute after the decision by the Election Tribunal. In all those cases the alternate remedies provided by the Statute had not been exhausted before invoking the writ jurisdiction of the High Court, and, therefore, the petitions under Article 199 of the Constitution relating to election disputes were dismissed as not maintainable. The position in this case, however is, that the petitioner has no E remedy under the Statute against the impugned order passed by the Tribunal and, therefore, the jurisdiction under Article 199 of the Constitution is clearly available to him.
11. This disposes of this petition, but we might mention that the petitioner also assailed the impugned order on the ground that the election petition filed by the first respondent was liable to be dismissed by the Tribunal under rule 66 for want of proper verification and for failure to supply the copy of the petition to the petitioner. On the perusal of the copy of the election petition filed on the record of this case we, however, find that the same appears to be properly verified. The Tribunal has not also given a finding that copy of the petition was supplied to the petitioner and this finding is not liable to be challenged in these proceedings, nor in fact, is there any material to challenge the said finding.
12. For, the foregoing reasons, we allow this petition and quash the impugned order passed by the Election Tribunal as without lawful authority and of no legal effect with the result that the petitioner shall be restored to the seat from which he was unseated. The parties are, however, left to bear their own costs. {{FOOTNOTE}}
(1) 1875 L R 10 C P
(2) 1980 CLC 952 {{FOOTNOTE}}