MUHAMMAD AAM1R NAWAZ RANA, J. The petitioner has called in question the order dated 17th April 2023, passed by Election Commission of Pakistan ("ECP"), whereby the rejected vote of respondent No.7 was declared valid and same was counted in favour of respondent No.7 and since after counting the rejected vote there was tie of votes obtained by petitioner and respondent No.7, so direction was issued by ECP to the Presiding Officer to draw a lot under rule 42 of Balochistan Local Government (Election) Rules 2013 (hereinafter "the Rules 2013").
2. The relevant facts leading to file this petition are the petitioner as well as respondent No.7 was contestant of the election for the seat of Vice Chairman. The Electoral College consisted upon twelve voters (Councillors). The petitioner as per initial result announced by Presiding Officer secured six votes, whereas respondent No.7 secured five votes and his one vote was rejected allegedly due to violation of the secrecy of the vote as allegedly proper prescribed mark was not put on the ballot paper.
The respondent No.7 assailed the rejection of his vote and result announced by ECP by filing petition under sections 8 and 9 of the Elections Act, 2017 before the ECP. The ECP after hearing the parties passed the following order: "7. Resultantly, instant petition is warranted. We while exercising powers under Article 218(3) of the Constitution of Islamic Republic of Pakistan reads with section 8(c) of the Elections Act, 2017 direct the Presiding Officer to count the rejected vote in favour of petitioners. Needless to mention here that on inclusion of one rejected vote in favour of petitioners, votes of petitioners and respondents will be equal i.e. six votes each. In such view of the matter, Presiding Officer is further directed to draw a lot under rule 42 of Balochistan Local Government (Election) Rules, 2013 and furnish the result under the law. He shall do the needful within three working days on receipt of the order.
8. Office to take follow up action and also the precedence".
3. The learned counsel for the petitioner Mr. Kamran Murtaza Advocate mainly contended that the ECP in summary proceedings could not have decided the validity of the rejected vote as according to learned counsel it required thorough probe and scrutiny for which appropriate forum was available for respondent No.7 to file petition before the relevant Tribunal. The learned counsel further contended that since prescribed mark had not been put on the ballot paper, therefore the Presiding Officer has rightly rejected the vote which order had wrongly been set aside by the ECP.
4. The learned counsel Mr. Jamil Ahmed Khan Babai Advocate appearing on behalf of respondent No.7 while contesting the petition contended that intention of the voter is clearly manifested in the disputed vote but despite that presiding officer illegally rejected the vote with mala fide intention to provide undue benefit to petitioner, therefore the ECP had rightly accepted the vote and ordered to draw a lot.
Argument heard and relevant record perused.
5. The contest between the petitioner and respondent No.7 was for the seat of Vice Chairman. The petitioner had obtained six votes, whereas respondent No.7 obtained five votes, one vote of the respondent No.7 was rejected on the ground that proper mark ("X") had not been put on the ballot paper by the voter.
6. Considering the controversy involved and as the fate of election result for the seat of Vice Chairman, Municipal Committee Kohlu hinges upon the disputed vote, therefore Presiding Officer was directed to produce the disputed vote. The Presiding Officer produced the said vote on 03.05.2023. For the facility of reference the scan copy of the said vote is pasted herein below: The perusal of the disputed ballot paper transpires that the voter had put the mark in front of the name of respondent No.7 in the given block meant for this purpose. The intention of the voter is clear that he had voted in favour of respondent No.7. The primary purpose of the mark on the ballot paper was to ensure the intention of the voter, a mark on the ballot paper which clearly revealed the intention of the voter without disclosing the identity of the voter has to be accepted as valid exercise of vote.
7. The responsibility of the Presiding Officer while declaring any vote valid or void is very important.
The Presiding Officer must be aware of the applicable rules and the law settled by this court as well as Supreme Court. Ballot papers which are not marked in the prescribed manner ought to be counted if it could be ascertained with reasonable certainty that for whom the voter in each case intended to vote. Reliance in this regard is being placed on the case of Sahibzada Abdul LAW v.
Sardar Khan and others[1].
In the wake of above deliberation, it is held that the disputed vote in favour of respondent No.7 was wrongly rejected by the Presiding Officer and the ECP through impugned order has passed the appropriate order, which is upheld to the extent of petitioner and respondent No.7 who were contesting the election for the seat of Vice Chairman Municipal Committee Kohlu. The ECP is directed to draw a lot under rule 42 of the Balochistan Local Government (Election) Rules, 2013 and this exercise will be done on the same day when election for the seat of Chairman Municipal Committee Kohlu will be held in pursuance/ compliance of judgment of even date passed by this court in Constitution Petition No.66 of 2023.
For the foregoing reasons, the petition being devoid of merits is dismissed.