SARDAR MUHAMMAD ASHRAF KHAN, J.--This appeal is directed against the judgment of the Election Tribunal, passed on 10-11-1985 whereby it accepting the election petition filed by the respondent No. 1, held the election of the appellant, as a Member to the Azad Jammu and Kashmir Legislative Assembly, to be void and declared the said respondent to have been duly elected in place of the appellant.
2. The brief facts giving rise to the filing of this appeal are that Sardar Gul-e-Khandan, appellant and Mian Ghulam Rasul, respondent No I (hereinafter referred to as respondent) contested the election to the Azad Jummu and Kashmir Legislative Assembly (hereinafter referred to Legislative Assembly) from the constituency LA-23 Muzaffarabad-I, held on 15- 5-1985. The appellant was declared returned from the said constituency by the responaent No. 3 on 18-5-1985 on the basis of the consolidation of the results on account of his having secured 11479 votes as against 11481 votes by the respondent.
3. Feeling aggrieved by the above election of the appellant as a Member of the Legislative Assembly, the respondent filed an election petition against the same under section 49 of the Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 (hereinafter referred to as Ordinance) as amended from time to time before the Election Commissioner wherein the prayer was made to declare the said election of the appellant to be void and the respondent to have been duly elected as Member of the said Assembly. The above election petition was made over for hearing and disposal to the Election Tribunal appointed for the purpose. The respondent had challenged the validity of the election of the appellant on the grounds mentioned in clauses (a) to
(g) of para. 2 of his aforesaid election petition which read as under:- "(a) That according to results announced on 15th May, 1985, the petitioner had polled 11465 valid votes. Under law, the petitioner's valid votes could not be rejected at the time of consolidation. But the record is apparently clear that the valid votes cast in favour of the petitioner have been rejected. The valid votes of the petitioner on 15th were 11465 and the valid postal ballots cast in favour of petitioner according to respondent's record are 82. Thus, the total votes of the petitioner should have been 11457. But the consolidation record shows that by rejecting the valid votes of the petitioner the number of votes has been reduced to 11379 + 82 = 11461. Even otherwise, it is proved from record that valid and accepted votes of the petitioner have been rejected, which is illegal.
(b) That non-petitioner No. 1 with mala fide intention recounted the total votes cast at the election.
The Returning Officer had no power to recount the votes. He could recount the votes of any polling station at the consolidation stage provided application by any contesting candidate had been made or the Chief Election Commissioner had directed him to do so. None of the situations was available in the instant case.
(c) That 26 postal ballots have wrongly been rejected and excluded from the count. There is ample proof that these ballots were sent through post. Documents B/1 and B/2 are annexed. These 26 postal ballots could not even be rejected on the ground that the envelops containing those votes did not bear the seal of the Post Office. The postal ballots under law can only be rejected if the declaration by the voter is not attested or the postal cover reaches the Returning Officer after the poll. Except this mandatory provision all other instructions were directory. The votes could not be rejected on this ground. The action of the non-petitioner No. 1 is mala fide and illegal.
(d) That 14 votes of the petitioner sent through post have been, rejected on the ground that they do not bear the specific mark These 14 votes bear the form of tick mark ( ,/) and not cross mark (x).
The intention of the voter is very clear that these voters have polled their votes, for the petitioner.
Even in this case these 14 votes could not be rejected on this ground
(e) That 8 postal ballots cast in favour of petitioner have been rejected on the ground that the declaration forms bear any date of April, 1985 whereas the ballots bear the date of 10th of May, 1985. The factual position in this regard, as per record, is that declaration forms were given in the last week of April but as the postal ballots were not available at that time they were provided on 10th of May. Evidence from record shall be submitted later on. Even otherwise, under law, this is not a mandatory provision and these 8 votes could not be rejected on this ground. The action of respondents Nos. 1 and 2 in this respect is illegal and against the relevant election laws anei rules.
(f) That the official list prepared at the time of consolidation is incorrect as per facts and record.
The Honourable Tribunal will find that the packages contain more votes cast in favour of the petitioner as against those shown in official list.
(g) That rigging and illegal acts have prevailed in the election to the extent that about more than 100 votes of the dead and absent persons have been polled. List of the presons is marked as C/1 to C/5."
4. The election petition was contested by the appellant who int his written statement did not admit any of the above grounds on which the legality of the election of the appellant was challenged to be correct and defended all the actions of the respondent No. 3 alleged to be illegal by the appellant as lawful having been taken in accordance with the election law and rules. The learned Election Tribunal framed the following issues on 4-9-1985:
(1) Whether the action taken by respondent No. 1 at the stage of consolidating the result is illegal?
O.P.P.
(2) Whether respondent No. 3 got his success through rigging, undue influence and malpractice? O . P . P .
(3) If issue No. 1 is in the affirmative, whether the result of the election has been materially affected?
O.P.P.
(4) Relief.
5. The learned Election Tribunal after only hearing the arguments of the learned counsel for the parties on issue No. 1, decided the election petition, vide its judgment, dated 10-11-1985 whereby it accepted the same and declared the respondent to have been elected as Member of the Legislative Assembly in place of the appellant on the grounds that the respondent No. 3 was not competent to recount the votes and that according to the result of counts furnished by the Presiding Officer, and which held the field, the respondent had secured highest number of votes in the election. Being dissatisfied with the above decision of the Election Tribunal, the appellant has filed the present appeal under section 63(3) of the Ordinance.
6. We have heard the learned counsel for the parties and have also gone through the record of the case. The learned counsel for the appellant has contended that the learned Election Tribunal has erred in holding that the respondent No. 3 lacked the authority to recount the ballet papers found valid by the Presiding Officers as neither any request in writing to do so was made to him by a contesting candidate or his election agent nor any such direction was given to him by the Chief Election Commissioner. In this connection, it is contended by the learned counsel for the appellant that the Chief Election Commissioner had given direction to the respondent No. 3 to recount the said ballot-papers while the respondent had also made similar request to him and that it was in pursuance of the said direction and request of the respondent that respondent No. 3 had recounted the valid ballot-papers in respect of only four polling stations in presence of the respondent and thus the act of recounting of the ballot-papers by the respondent No. 3 was perfectly lawful. It is also contended by the learned counsel for the appellant that the learned Election Tribunal has wrongly declared the respondent to have been elected to the membership of the Legislative Assembly on the basis of some unofficial results allegedly announced by the information media on 15-5-1985 because the said results could not be made the ground of such declaration and the announcement of the same had no legal sanction behind it and it was only the respondent No. 3 who was competent to declare the result of an election under section 38 of the Ordinance which in the present case was done on 18-5-1986 by declaring the appellant as returned from the said constituency on account of having received the highest number of votes. It is further contended by the learned counsel for the appellant that assuming for the sake of arguments, that the respondent No. 3 was not empowered to recount the valid ballot-papers and that the count of the same received by him from the Presiding Officers 'remains in the field' as held by the Election Tribunal even then the appellant had won the election as according to the statements of count furnished by the Presiding Officers he had obtained more votes than the respondent. He has also contended that some of the postal ballot-papers were rightly rejected by the respondent No. 3 because either they did not bear the prescribed mark or the covers containing them did not bear the stamp of the post office or the declaration forms attached with them were found signed and attested on the dates prior to that on which the postal ballot-papers and the declaration forms were issued by the respondent No. 3 to the electors. His further contention is that the learned Election Tribunal has not specifically held that 14 postal ballot- papers cast in favour of the respondent were valid but wrongly rejected by the respondent No. 3 and that if it is assumed to have been held so even then such a finding is unlawful as under clause 8 of sub-rule 10 of Rule 25 of the Azad Jammu and Kashmir Legislative Assembly (Election) Rules, 1970 (hereinafter referred to as Election Rules) they were liable to be rejected and excluded from count by reason of not bearing cross-mark as required under Rule 12(1) of the said Rules.
7. On the other hand, the learned counsel for the respondent has contended that the impugned judgment of the Election Tribunal is perfectly lawful and legal as the respondent No. 3 had recounted the valid ballot-papers without any direction to that effect by the Election Commissioner or any such written request by a contesting candidate or his agent to him and that in absence of any such direction or request, he was not competent to recount the valid ballot-papers and was bound to consolidate the result on the basis of the statements of the count furnished by the Presiding Officers to him and that the respondent had secured the highest number of votes according to the announcement of unofficial result by information media on 15-5-1985. It is further contended by him that the postal ballot-papers rejected by the respondent No. 3 were quite validly cast in favour of respondent and ought to have been added to his count and by not doing so, the respondent No. 3 has committed an error and illegality. It is also contended by the learned counsel for the respondent that even if it is conceded that the appellant had obtained more votes than the respondent according to the statements of count prepared by the Presiding Officers, still the respondent had won the election after adding 82 votes found to have been cast in his favour by post to his credit.
8. Ater taking into consideration the above arguments of the learned counsel for the parties in the light of the record of the case and the relevant law applicable to it, we have come to the conclusion that the impugned order of the learned Election Tribunals uffers from man-,, defects and infirmities and appears to have been made by it not only without applying its mind to all the factual and legal aspects of the case with a view to grasping and understanding the real questions in controversy between the parties on the determination of which the right decision of the case depended but also in disregard of rules of procedure applicable to it and by drawing presumption of fact unwarranted by and rather contrary to law. It has thus committed both the errors of law as well as procedure.
9. Under section 58 of the Ordinance, the Election petition shall be tried, as nearly as may be, in accordance with procedure for the trial of suits under the Code of Civil Procedure while section 60 of the said Ordinance confers upon the Election Tribunal all the powers of a civil Court trying a suit under the said Code and thus in view of the above provisions of law, the learned Election Tribunal was bound to try and decide the Election Petition in accordance with the provisions of the Code of Civil Procedure as were applicable to the civil suit but from the perusal of the record of the election petition, it appears that for the trial of the same the procedure prescribed for the trial of the suits has not been followed.
10. According to the provisions contained in sub-rule (1) of Rule 1 of Order XIV Code of Civil Procedure a material proposition of fact and law alleged by one party and denied by the other is required to be put in distinct issue and the Court, after reading the plaint and the written statement, is to ascretain upon what material propositions of law and facts, the parties are at variance and thereupon proceed to frame and record the issue on which the right decision of the case appears to depend. Moreover, the Court may frame issue from all or any of the material enumerated in sub-rule 3 of the said Rule namely, on allegations made on oath by the parties and in pleadings or in answers to interrogatories delivered in the suit of the contents of documents produced by the either party. Thus in view of the above provisions of Code of Civil Procedure applicable to the trial of the election petition, it was incumbent upon the Election Tribunal to have first ascertained from the pleadings of the parties, declaration made on oath by them and the contents of the documents produced by them, the material points on which the parties differed and then proceeded to frame and record the issues arising therefrom and necessary for the right decision of the case but as it would appear from the examination of the issues framed by it and reproduced in para. 2 of this judgment, it failed to frame all the necessary issues on the decision of which the resolution of the real controversy between the parties depends. The issues framed by the learned Election Tribunal do not embrace and effect all the propositions of fact and law alleged by the respondent ~n his Election petition and denied by the petitioner in the written statement in presence of which lapse it was not possible for it to give correct and right decision in the case.
The grounds of attack set forth in clauses (a) to (g) of para. 2 of the election petition to challenge the election of the appellant to the membership of the Legislative Assembly are that according to the unofficial results of the election announced on 15th May, 1985, the appellant had obtained 11465 votes but during the process of consolidation of the results the same have been reduced to 11379 by the respondent No. 3 by unlawfully rejecting his valid votes; that respondent No. 3 had unlawfully recounted the valid ballot-papers without any power because he was empowered to do so only on the request in writing by a contesting candidate or his Election Agent for the purpose or on a direction to that effect by the Election Commissioner but none of the above conditions was fulfilled in the present case; that 26 postal ballot-papers were wrongly rejected and excluded from the count by respondent No. 3 on the ground that the envelopes containing them did not bear the stamp of the post office ignoring the fact that they were sent by post and that even otherwise the same could not be rejected on the above ground under law; that 14 postal ballot-papers cast in favour of the respondent were unlawfully rejected by respondent No. 3 on the ground that the same did not bear the prescribed mark as the elector had placed tick mark on them instead of cross-mark prescribed for the purpose; that 8 votes cast in favour of the respondent by postal ballot-papers were unlawfully rejected by respondent No. 3 on the ground that the same are, dated 10-5-1985 while the declaration forms accompanying them were signed and attested in the month of April, 1985 notwithstanding the fact that declaration forms were issued to the electors in the first week of April, while the postal ballot-papers were provided to them on 10-5-1985 and that even otherwise, the said votes could not be rejected on the above ground; that the consolidated statement of the result of the count prepared by respondent No. 3 is not correct as packets containing the valid votes contain more votes to have been cast in favour of the respondent than are shown in the said statement; and that the rigging and illegal acts prevailed during the elections as more than 100 votes of the dead and absent persons named in Annexures C/1 to C/5 to election petition were polled.
12. The appellant, as said earlier, has refuted all the above grounds of attack in his written statement and defended the impugned action of the respondent No. 3 as perfectly valid and lawful. Thus, in view of the pleadings of the parties, the learned Election Tribunal ought to have put in issue each and every allegation of the respondent made the basis of challenge to the election of the appellant to the membership of the Legislative Assembly and given decision thereon after providing the parties an opportunity of producing evidence in support and rebutthi thereof but it failed to comply with the above requirement of law. The issues were not framed on most of the real questions in controversy between the parties and even those framed do not cover all the material points of law and fact on which the parties were at variance and are ambiguous and incomprehensive not clearly indicating the matter to which they relate. In order to show that the issues framed by the learned Election Tribunal do not embrace and reflect the real, controversy between the parties arising out of their pleadings and other document attached thereto on the resolution of which a correct decision of the Election Petition rested, we, first of all proceed to examine the issue No. 1 which reads as follow:- "Whether the action taken by respondent No. 3 at the stage of consolidating the results of the elections is illegal? O.P.P.
13. From the reading of the issue reproduced above, one is unable to understand as to which action out of those alleged in the election petition to have been unlawfully done by the respondent No. 3 has been made the subject of issue in it. As seen above, the respondent has called in question in his election petition as many as six actions of the respondent No. 3 done by him in the process of consolidation of result and thus by putting in issue only one action and that too unspecified one was an exercise in futility and does not constitute law requiring the framing of distinct and separate issue on each allegation of fact and law alleged by one party and denied by the other on which the right decision of the case depends. The right and proper course to be followed by the learned Election Tribunal was that it should have first of all determined the precise nature of the pleas of the parties raised in their pleadings and ascertained the material points in dispute between them and then put each of them in issue and given decision thereon after allowing the production of evidence on such issue which required the evidence for their determination. But it omitted to do so and no distinct and separate issue was framed on each allegation of fact and law made by the respondent in support of his election petition but denied by the appellant. The learned election Tribunal probably seems to be harboring the notion that all the illegal acts alleged to have been committed by the respondent No. 3 while consolidating the result of election were fully embraced by the issue No. 1 and that no further issue in this respect was needed to be struck but the language used in framing the above issue does not justify its above impression. If the learned Election Tribunal by framing issue No. .l had intended to cover all the allegation of the respondent made against the respondent No.3 in his election petition then at least this issue should have been framed in the following manner:- "Whether the acts committed by respondent No.1 at the stage of consolidating the results of the elections and mentioned in clause (a) to (f) of para. 2 of the election petition are illegal? O.P.P.
14. The issue framed in the above phraseology could then be construed to be referring to all the acts of the Returning Officer alleged to have been committed by respondent No.3 unlawfully thereby rendering void the election of the appellant.
15. Similarly, issue No.2 also cannot be said to have been properly framed as it does not reflect the actual allegation made by the respondent in clause (g) of para. 2 of the election petition relating to the prevalence of malpractices during the polling in which it was specifically alleged that about more than 100 votes of the dead and absent persons enumerated in the list comprising Annexures C/1 to C/5 to the election petition, were cast during the election. But this issue was framed in general and vague terms in which undue influence having been exercised during the election, has also been put in issue although no such allegation was made in the election petition. We need not dwell further on the construction of this issue as no decision has been given on it by the learned Election Tribunal.
16. The sum total of the above discussion is that the learned Election Tribunal has failed to frame essential issue on the decision of which. The right disposal of the election petition depended arid even the issue framed by it are not clear and suffer from the infirmities of ambiguity and vagueness.
17 Most of the grounds on which the validity of the election of the appellant to a seat of Legislative Assembly was challenged consist of the allegations of fact on the proof of which the respondent could only be granted the relief prayed for by him. The onus of proving such allegations lay on the respondent and in the case of his leading no evidence in proof thereof, his election petition was liable to be dismissed. But the learned Election Tribunal without providing any opportunity of leading evidence even on the issues framed by it, proceeded to decide the election petition only after hearing arguments of the learned counsel for the parties on issue No. l on the ground of their having agreed to do so.
18. Even assuming for the sake of arguments that issue No.1 covered all the actions of the respondent No.3 alleged to be unlawfully done by him in the process of consolidation of results, the respondent was under legal obligation to prove the facts on the basis of which he alleged the said action of the respondent No.3 to be illegal. But the learned Election Tribunal did not think it necessary to enquire into the truthfulness or otherwise of the allegations made in support of the challenge to the election of the appellant and without giving any opportunity of producing evidence to the parties in proof or rebuttal of the said allegations, proceeded to decide the case. In the concluding paragraph of its judgment it has not given any specific reason for allowing the election petition and the same has been accepted by making only the following observation:- "As a result, the petition is accepted and the petitioner is held returned."
But from the reading of the impuged judgment as a whole, it appears that the same had proceeded on the grounds that according to the result of the election declared on 15-5-1985 on the basis of the statements of the count of results furnished by the Presiding Officers the respondent had won the election on account of having obtained highest number of votes and that the result of the election declared by the'--- respondent No.3 is not lawful as he has recounted the valid ballot- papers either without any request in writing by a contesting candidate or his election agent or any such direction by the Election Commissioner with the result that the statements of count prepared by the Presiding Officers "remain in the field" and determined the result of the election.
19. We have formed the above view as to the grounds on which the decision of the learned Election Tribunal is founded on the following observations appearing in the impugned judgment:-
(i) "In the concluding part of para.3 of the impugned judgment, it is observed that "the admitted facts in the petition, not controvertable by the respondent, are sufficient for the disposal of the same. Therefore, it will be mere waste of time to record evidence relating to the dispute about the postal ballot-papers which allegedly have no seal of the post Office. I am taking a, into consideration only the recount and the consequential result.
(ii) In para. 4 of the said judgment, it has been observed that "the allegations in the petition are that at the initial count the petitioner was leading by 6 votes wherein he obtained 11465 votes as against Gul-e-Khandan who got 11459 votes but in the process of recount, the petitioner's total number of votes were reduced to 11379 by rejecting the votes cast in his favour. The point that calls attention is as to whether the Returning Officer was competent under law so to do."
(iii) In para. 10 of the judgment, it has been observed that "the above statement of law and succeeding portion of section 36, it leads no room for doubt that the authenticity attached to the documents prepared by the Presiding Officer in his capacity as such."
(iv) In para. 3 at page 3 of the impugned judgment of the learned Election Tribunal, the Tribunal has observed that 'had there been any direction by the Chief Election Commissioner to the Returning Officer or application by the petitioner for recount, the Returning Officer or for that matter the respondent must have produced it. Under the circumstances presumption (g) under section 114 of the Evidence Act hits respondent No.1. On this score too under the same section (e) the presumption is that the account conducted by the Presiding Officer should not have been interfered with in a manner derogated to the rules under which the recount has been envisaged."
(v) In para. 11 of the said judgment, the following passage is worth:--'.- "In the matter of recount, the Returning Officer is invested with the authority of recount under two conditions only. This authority is ' not inherent in his office but is subservient to other factors, namely, that he is requested in writing or there is directions to this effect by the Chief Election Commissioner. None of them is brought to my notice. The presumption of either of the two goes against the respondent No. 3."
(vi) It is further observed in the said para. That 'there being no challenge in writing nor direction by the Chief Election Commissioner, it follows that the Returning Officer steps out of his jurisdiction.
Under the circumstances the count held by the Presiding Officer remained in the field."
20. The above abstracts from the impugned judgment would show that the learned Election Tribunal had decided the election petition after coming to the conclusions that while consolidating the results of the election, respondent No. 3 had recounted the valid votes polled at all the polling stations without any request for doing so by any contesting candidate or his election agent or any such direction from the Election Commissioner with the result that his declaration of the appellant having been elected in the election on the basis of such recount of the votes was unlawful and that the results of the count furnished by the Presiding Officer formed the basis of the result of the election according to which the respondent having secured majority votes stood electedthe seat of Legislative Assembly from the Constituency LA-23,Muzaffarabad 1.
21. All the above findings of the learned Election Tribunal are founded only on surmises, conjuctures and unwarranted presumptions and not on any legal evidence. As stated earlier, no opportunity was provided to the parties to let in evidence in proof and rebuttal of the grounds of objections taken in the election petition to assail the election of the appellant despite the fact that the same were not admitted to be correct by the appellant in his written statement. The necessity of allowing the parties to adduce such evidence was dispensed with on the ground that the learned counsel for the parties had agreed to address arguments on the issue No. 1 and the election petition was decided only after hearing the arguments even without calling for the record of the case from the respondent No. 3. It was not at all possible to come to the above findings arrived at by the learned Election Tribunal without recording any evidence in respect of allegations on the proof of which such findings depended and examining the record of the office of the Presiding Officers and the Returning Officer pertaining to the election under discussion. The appellant had denied the allegation of the respondent that the Returning Officer had recounted the valid ballot-papers in respect of all the polling stations and had taken the plea that such votes of only four polling stations were recounted at the request of the respondent himself as well as on the direction of the Election Commissioner. Thus, the Election Tribunal was, first of all, required to determine as to whether or not the valid votes cast at all the polling stations were recounted by the respondent No. 3 in the process of consolidation of results but no such determination was made and it was taken for granted by it that the Returning Officer had recounted all such votes polled in the election. Even if the learned Election Tribunal had come to the above conclusion on the basis of the evidence brought on record, he was required to proceed to find out the truthfulness or otherwise of the allegation of the respondent made in the election petition that the Returning Officer had recounted the votes without any such direction from the Election Commissioner or any written request by a contesting candidate or his election agent.
22. The above finding was possible to be arrived at only on the basis of the evidence that might have been led by the parties in this respect because,. As said earlier, the appellant had categorically in his written statement and affidavit had taken the plea that the recounting of valid votes of only four polling stations was resorted to by the Returning Officer on the request of the respondent himself and under the direction of the Election Commissioner. But the learned Election Tribunal without allowing the parties to adduce any evidence in support and rebuttal of the above allegations came to the conclusion that the respondent No. 3 had recounted the votes without any of the above conditions having been fulfilled by drawing presumption under clause (g) of section 114 of the Evidence Act by making the observation in para. 3 of its judgment to the effect that; "had there been any direction by the Election Commissioner to the Returning Officer or for that matter the respondent must had produced it". The above presumption of fact was out of place here which could not be drawn in the context of the case and rather the presumption which ought to have been drawn was one in favour of the existence of all or any one of the conditions which was necessary to be fulfilled before the power to recount the valid ballot-papers could be invoked by the respondent No. 3. It appears that the learned Election Tribunal was labouring under the impression that it was for the appellant to prove that either the written request for recounting the valid votes was made to the respondent No. 3 by a contesting candidate or his election agent or such a direction was given to him by the Election Commissioner and it is here that the learned Election Tribunal has erred in harboring the notion that the burden of proving the existence of any of the above conditions lay on the appellant. Since the appellant had denied the allegation of the respondent that neither any contesting candidate or his election agent had made a written request to the respondent No. 3 to recount the votes nor the Election Commissioner had given any such direction, it was for the respondent to prove his above allegation especially in view of the provisions of clause (e) of section 114 of the Evidence Act.
23. Under the Ordinance, the Evidence Act has been made applicable to the proceedings before the Election Tribunal under whose clause (e) of section 114, a presumption can be drawn that the judicial and official acts have been regularly performed and thus in the present case, the presumption that was permissible to be drawn was that the respondent No. 3 had performed his official act of consolidating the results of the election lawfully and regularly i.e. What ought to have been done by him in connection with an official act was in fact done and was done with due regard to form and procedure. To put it otherwise, it is to be presumed that the provisions of the rules relating to the powers of the Returning Officer to recount the votes were fully complied with and the respondent No. 3 had recounted the valid ballot-papers either on the request in writing by a contesting candidate or his election agent or under a direction to that effect by Election Commissioner. But instead of drawing the above presumption, the learned Election Tribunal had wrongly pressed into service clause (g) of section 114 of the Evidence Act and drew the wrong presumption that since the appellant had failed to produce any direction by the Election Commissioner to the respondent No. 3 to recount the valid votes or any application by the respondent to that effect, it stands proved that none of the above conditions was fulfilled and accordingly the recounting of votes by the respondent. No. 3 was unlawful having been done without any power and jurisdiction.
24. For the above reason, the finding of the Election Tribunal that the respondent No. 3 had recounted the votes without any authority is not correct and cannot be maintained. In view of the presumption arising under section 114(e) of the Evidence Act and referred to above, we would have held that the valid votes were recounted by respondent No. 3 competently and lawfully, had the learned election Tribunal given an opportunity to the respondent to prove his allegation in this respect and he had failed to do so but since no such opportunity was given to him, we refrain from holding so and leave it for the Election Tribunal to give its decision on the above allegation in the light of evidence that might be adduced by the parties after being provided with an opportunity of doing so.
25. Although not said so in clear terms, the learned Election Tribunal appears to have declared the respondent to have been elected in the election to the Legislative Assembly from the constituency in question on the basis of its findings that the respondent No. 3 was not legally competent to recount the valid ballot-papers while performing the function of consolidating the result of the election and that according to the announcement of unofficial result on 15-5-1985 and the statements of count of results prepared by the Presiding Officers, the respondent had won the election having secured 11465 votes as compared to 11453 votes obtained by the appellant.
26. Even if, it is assumed for the sake of argument that the respondent No. 3 lacked the jurisdiction to recount the valid votes and that he ought to have consolidated the results on the basis of the counts of result furnished to him by the Presiding Officers, still the finding of the learned Election Tribunal that the respondent had secured the highest number of votes, according to the statement of counts of results furnished by the Presiding Officers and the declaration of unofficial result, cannot be sustained both on legal as well as on factual grounds. In this connection, we would, in the first place, examine the legal position of the unofficial result announced by the information media on 15-5-1985 and according to which the respondent is alleged to have been declared successful in the election from the constituency LA-23. Muzaffarabad I. Admittedly, 15-5-1985 was a date on which the elections to the Legislative Assembly were held and thus the question of declaration of results of the said election on that date does not arise in view of the provisions of the Ordinance and the Election Rules. Under section 35 of the Ordinance, the Presiding Officer at the close of the polling is required to proceed with the count of votes and after that prepare the statement of the count in the prescribed form No. XIV and the ballot-paper count in Form-XV and after the close of the necessary procedure cause the packet, statement of counts and the ballot- paper count to be sent to the Returning Officer together with such other record as the Election Commissioner may direct. On receipt of the abovementioned documents and record from the Presiding Officers, the Returning Officer then under section 36 of the Ordinance shall give the contesting candidates or their agents, a notice in writing of the date, time and place for the consolidation of the results and in the presence of such contesting candidates and election agents, as may be present, consolidate in the prescribed manner the results of the count furnished by the Presiding Officer including therein postal ballot-papers received by him before the prescribed time and then . Under section 38 of the Ordinance shall declare, by public notice, the contesting candidate who has received highest number of votes, to be elected.
27. From the above provisions of law, it becomes quite clear that it is only the Returning Officer who is empowered to declare the results of the election under section 38 of the Ordinance after obtaining the result of count under section 36 or of the drawl of the lot under section 37 of the Ordinance. Thus, the claim of the respondent that he had been declared elected on 15-5-1985 on account of his having secured the highest number of votes, has no legal basis and cannot be accepted. There is no provision in the Ordinance and the Election Rules providing for any declaration of unofficial results by the news media or the Returning Officer. It is undisputed that the results of the election to the Legislative Assembly from the constituency in question were declared by the respondent No. 3 on 18-5-1985 and as such any declaration about the respondent having been elected on 15-5-1985 was out of question.
28. After examining the validity of the declaration of unofficial results, we now proceed to examine the claim of the respondent that according to the statements of count prepared by the Presiding Officers, he had received 11465 votes while the appellant had obtained 11459 votes which claim was also held to be correct by the learned Election Tribunal and on whose basis he was declared elected as a Member of the Legislative Assembly to the seat from the constituency under discussion. From the perusal of the statements of count furnished by the Polling Officers to the respondent No. 3, the above claim stands rebutted and it is found that in fact the respondent had received less votes than the appellant.
29. The Constituency LA-23, Muzaffarabad-I was divided into 52 polling stations at which its electors had cast their votes in the polling held on 15-5-1985. In the File No. 262/85 of the office of Returning Officer, Authmuqam pertaining to the election under discussion and summoned by the Court for perusal, 51 statements of count furnished by the Presiding Officers in Form-XIV are placed and one in respect of polling station No. 52 established at Primary School, Dhakran is missing in it.
According to the results of count of the aforementioned 51 polling stations, 11232 and 11326 valid ballot-papers have been cast infavour of the appellant and the respondent respectively. The respondent has filed a copy of the statement count in respect of polling station No. 52 established in Primary School, Dhakran furnished to him by the Presiding Officer of the said polling station. With his election petition as Annexure A/51. According to the entries of the said copy the appellant had obtained 245 while the respondent only 79 votes at the Polling Station No. 52 which figures have also been verified to be correct both by the parties and their counsel during the course of arguments in this appeal. Thus, when 245 and 79 votes are added, respectively to the votes received by the appellant and the respondent at other 51 polling stations as per aforesaid statements of count prepared by the Presiding Officers the appellant is found to have obtained 11457 as against 11405 votes secured by the respondent, which position was also admitted to be correct by the parties as well as their counsel before us. 11405 valid ballot-papers only are also found to have cast in favour of the respondent when his votes shown in the copes of the statements of count prepared by the Presiding Officers and furnished to his polling agent and filed with the election petition as Annexures A/1 to A/52 are calculated and taken into consideration. The total number of votes shown to have been obtained by the respondent in the said copies of the statements of count come to only 11313 but the above copies only pertain to 51 polling stations and the copy of the count of result of one polling station, namely polling station No. 34 established in the High School, Dudnial is missing and there is no document as Annexure A/34 in Annexures A/1 to A/52. According to the statement of count in respect -of the aforesaid polling station No. 34 furnished by its Presiding Officer to the respondent No. 3, 92 votes were cast in favour of the respondent at it. Thus if these 92 votes are added to 11313 votes shown to have been received by the respondent in accordance with the entries of aforementioned Annexures A/1 to A/52, only 11405 valid votes were cast in his favour at all the polling stations on the polling day.
30. The above analysis of the votes obtained by the appellant and the respondent belies the calim of the respondent that he was successful in the election on the basis of the statements of the count of results furnished by the Presiding Officers to the respondent No. 3 by reason of having obtained. 11465 as against 11459 votes secured by the appellant and rather, on the contrary, the factual position that emerges is that even according to the aforesaid results of count the appellant was having a lead of 72 votes over the respondent. This being the case, the finding of the learned Election Tribunal that the respondent had secured majority votes as per statements of count furnished by the Presiding officers and as such stood elected in the election under discussion, is incorrect and without any foundation.
31. The learned Election Tribunal in spite of making an observation at the conclusion of para. 3 of his impugned judgment to the effect that 'I am taking into consideration only recount and consequential result' has proceeded to examine and discuss the ground of objection of respondent contained in clause (d) of para. 2 of his election that 14 votes cast in favour of the appellant by postal ballot-papers were wrongly rejected by the Returning Officer on the ground that they did not bear the prescribed mark in as much tick-mark was put on them instead of cross-mark. The learned Election Tribunal in para. 12 of its judgment has discussed the above objection of the respondent and although he has not given any clear finding on it yet from the trend of its discussion and its citation of ruling of the superior Courts, it become clear that he is of the opinion that the said votes were valid but were wrongly rejected by the Returning Officer. Its above view is reflected in its following observation in the above para. Of its judgment:- "It is not the law that the failure to making cross-mark rendered a vote invalid and it is well-settled that the essence of the matter lies in whether or not the voters had clearly indicated his intention or choice by means of the mark whatever the nature of the mark may be."
32. After giving our due consideration to the arguments of the learned counsel for the parties on the above point and going through the authorities cited by the learned Election Tribunal in support of his above view and the relevant law, we have come to the conclusion that 14 ballot-papers received by post were rightly rejected by the Returning Officer, if they bear the tick-mark instead of prescribed cross-mark on them. Under Rule 12(1) of the Election Rules an elector is required to record his vote on the postal ballot-paper by putting a cross-mark with a pen or pencil within the spaces containing the name and symbol of the contesting candidate for whom he wishes to vote while under clause (viii) of sub-rule (10) of Rule 25 of the said Rules, a postal ballot-paper shall be liable to rejection on the ground mentioned in subsection (4) of section 35 of the Ordinance, the reference in that subsection to prescribed mark being construed as reference to cross-mark. Thus, if the postal ballot-paper does not bear the cross-mark as required under sub-rule (1) of Rule 12 but some other mark such as tick-mark indicating the contesting candidate for whom the elector had voted then it shall be rejected under Rule 25(10)(viii) of Election Rules read with subsection (4) of section 35 of the Ordinance.
33. The rulings of the superior Courts cited by the learned Election Tribunal in support of his above view are not relevant in the context of the present case. As regards the cases cited by it from the Indian jurisdiction, we do not know as to what was the state of relevant codified law relating to the election at the time when the same were decided. In the rulings cited by the learned Election Tribunal of superior Courts of Pakistan and Azad Kashmir, the point for consideration was not the same as in the present case. In 85 the question that fell for determination was whether or not the ballot-paper signed by the Presiding Officer on front and not on its back side, as envisaged under Rule 35(1) of Azad Jammu and Kashmir Local Council Election Rules was rightly excluded from count by the Returning Officer and it was held that as no penalty was envisaged for omission to sign the ballot-paper on front side, the said rule was of directory nature and its disregard did not render the ballot-paper invalid. In the above case, it was further observed that "it is evident from the above-stated survey of the case-law that there is consensus amongst the Judicial authorities on the point that if a breach of the rule, instruction or law prescribing the procedure for holding election is made and no penalty has been provided for such breach in the relevant rules, instructions or law, as the case may be, such breach must be deemed to be of directory nature and would not render the election as invalid."
34. In 1984 CLC 1294 it was held that the absence of initial of the Presiding Officers on the ballot- paper being no ground for rejection of vote and ballot-paper also not required to contain such initial, no vote to be excluded merely on the ground of ballot-paper containing no initial of Presiding Officer. Similarly, PLD 19$4 Lah. 375, quoted by the learned Election Tribunal has no relevance to the case in hand. In the said case, it was held that the rule requiring the Presiding Officer to enter the number of voter on the counterfoil of the ballot-paper was mere irregularity not effecting the result of election and such non-compliance is not to result in defranchising the voters or in unseating the successful candidate.
35. It is now settled law that the Rule is of mandatory nature if its violation entails any penalty or punishment and is only directory in character if in case of its non-compliance no penalty is provided for and that an Act done in disregard of a mandatory provision of law or rule is only invalid and unlawful and such is not the case where only some rule of directory nature has been violated. Thus, if any rule of Election Rules of directory nature has not been complied with in casting his vote by an elector, the vote does not become invalid and it is only the non-observance of the rule of mandatory nature that would render his vote invalid. '
36. As seen above, the postal ballot-paper is required to be cross-marked by the elector for indicating his choice for the contesting candidate and its non-compliance entails the penalty of its rejection. Thus, the above provision of Election Rules is of a mandatory nature whose disregard would result in the rejection of the ballot-paper and its exclusion from the count with the result that in the present case all the postal ballot-papers having any mark other than the prescribed cross- mark were liable to be rejected and by doing so the Presiding Officer has committed no illegality.
37. In support of our above view, we need not cite all the relevant rulings of the superior Court but it would suffice to confine ourselves to mention only the cases reported in PLD 1985 SC 282 and AIR 1965 Pat.
107. In the former case, it was held that the provisions of sub-rule 34(2)(d) of rule 14 and rule 40(4) of the said rule under which the ballot-paper is required to be signed by the Presiding Officer and the one not having such a signature is to be excluded from count are of mandatory nature and their non-compliance render the vote invalid and must be excluded from the count.
38. In AIR 1965 Pat. 107, the point identical to the one in the present was involved for decision. In the said case under rule 6(b) of Municipal Committee Business (Election Of Manager and Deputy Manager) Rules, 1956, mark of cross was required to be' placed against the name of the candidate in the ballot-paper but tick-mark instead of cross-mark, was put on the ballot-paper. It was held that ballot-paper indicating tick-mark instead of cross-mark was rightly rejected.
39. In view of the above legal position, the finding of the learned Election Tribunal that the postal ballots bearing the tick-mark instead of cross-mark as required under the relevant rule is valid one and cannot be rejected and excluded from count by the Returning Officer in the process of consolidation of result is not correct.
40. The learned counsel for the respondent has also contended that the respondent stands elected notwithstanding the fact that according to the statements of count of the result furnished by the Presiding Officer he had obtained less votes than the appellant. In elaboration of his above contention, he has submitted that if 82 postal ballots found by the respondent No. 3 to have been validly cast in favour of the respondent are added to 11405 votes obtained by him according to the said statements of count, the total number of his votes come to 11487 whereas the total number of votes of the appellant work out to be 11481 after adding 3 valid votes cast in his favour by postal ballot-paper, and thus the respondent has secured 6 votes more than the appellant.
41. On the other hand, the learned counsel for the appellant has also made similar claim of appellant having won the election by reason of obtaining more than 11487 votes claimed to have been secured by the respondent. In this connection his contention is that out of the votes excluded from the count by the Presiding Officers under section 35(4) of the Election Rules, 41 and 4 votes were found to have been validly cast in favour of the appellant and respondent, respectively by the respondent No. 3 and if these votes are added to the votes received by the appellant and the respondent as per statements of count furnished by the Presiding Officer and by postal ballots then they have obtained 11512 and 11487, votes respectively with the result that the appellant has secured 25 votes more than the respondent.
42. We do not find any merit in both of the above contentions of the learned counsel for the parties.
The Returning Officer consolidates the result of the election under section 36 of the Ordinance which reads as follows:- "36. (1) The Returning Officer shall give the contesting candidates and their election agents a notice in writing of the day, time and place for the consolidation of the result and, in the presence of such of the contesting candidates and election agents as may be present, consolidate in the prescribed manner the results of the count furnished by the Presiding Officers including therein the postal- ballots received by him before the time aforesaid.
(2) Before consolidating the results of the count, the Returning Officer shall examine the ballot- papers excluded from the count by the Presiding Officer and, if he finds that such ballot-paper should not have been so excluded, count it as a ballot-paper cast in favour of the contesting candidate for whom the vote has been cast thereby.
(3) The Returning Officer shall also count the ballot-papers received by him by post in such manner as may be prescribed and include the votes cast in favour of each contesting candidate in the consolidated statement except those which he may reject on any of the grounds mentioned in subsection (4) of section 35.
(4)
(5)
43. From the bare reading of the above provisions of law, it becomes quite clear that the Returning Officer does not consolidate the result of the election merely on the basis of the statements of count furnished by the Presiding Officer and the valid votes received by the contesting candidates by postal ballot but he is also required to examine the ballot-papers excluded from the count by the Presiding Officer under section 35(4) of the Election Rules and if he finds that any such ballot- paper has wrongly been excluded from the count then he is to count if in favour of the contesting candidate for whom the vote has been cast thereby. In view of the above legal position, the result of the election under discussion cannot be determined only on the basis of the results of count furnished by the Presiding Officer as the learned counsel for the respondent wants us to do. But, as said earlier, the votes which are found to be valid by the Returning Officer out of those excluded from the count by the Presiding Officer are also to be taken into consideration while determining the results of the election to the Legislative Assembly. For the above reason, the contention of the learned counsel for the respondent that on the basis of valid votes cast at polling stations on the date the election was held and the valid postal votes received by the respondent No. 3, he has been elected, is repelled.
44. Similarly, the contention of the learned counsel for the appellant that respondent No. 3 had found 41 votes validly cast in favour of appellant but excluded from the count by the Presiding Officers and that if the said votes are added to his count then the total number of votes received by him exceed to that obtained by the respondent, cannot be accepted. From the examination of the record such as the returns of the election and the consolidated statement prepared by the respondent No. 3, it cannot be said with certainty that 41 ballot-papers were found validly cast in favour of the appellant out of those excluded from count by the Presiding Officers. It is, of course, correct that from the examination of the above statement of count prepared by the respondent No. 3 in Form XVI under Rule 25(1) of the Election Rules, it appears that at some polling stations the appellant ~ is shown to have obtained more votes than given in the statements of count furnished by the Presiding Officers in Form XVIII and total number of such votes comes to 41. But in our view, it cannot be held that the above 41 votes were only from amongst those votes which were excluded from the count by the Presiding Officer and the possibility is not ruled out that on the recount of the votes by the respondent No. 3, all or some of them might have been found not counted by the Presiding Officer by inadvertence or mistake. For the above reasons, 41 votes under discussion cannot be added to the count of the appellant and he cannon be declared to be elected.
45. The upshot of the above discussion is that the Election Tribunal has failed to apply its mind to all the controvertial points arising from the pleadings of the parties in consequence of which the necessary issues on the determination of which the right decision of the case rests could not be framed and that the findings of which it proceeded to make the impugned decision are either unwarranted by law or have been reached not on any evidence on the record but on presumptions, assumptions and surmises not finding support from the material on the record or the relevant law. Thus, the impugned judgment suffers from both the error of procedure as well as of law on account of which the same cannot be maintained and the remand of the case for fresh decision has become necessary. Since, as held in the early part of this judgment, the decision of the election petition depends upon the determination of allegations of facts and law made in it by the petitioner and denied b3 the respondent therein in respect of which no issues were framed by the learned Tribunal, we think it proper to frame, for the convenience of the Election Tribunal, the following issue, arising out of the pleading; of the parties after striking ones already framed in the case before remanding it for de novo trial:- "(1) Whether the Returning Officer had recounted the valid ballot-papers cast at all the polling stations of the Constituency LA-23, Muzaffarabad-I? O.P.P.
(2) Whether the Returning Officer has recounted the valid ballot---papers in respect of all the polling stations or some of then without any written request by a contesting candidate or hi: election agent or any direction to that effect by the Election Commissioner? O.P.P.
(3) Whether 26 postal ballot-papers having been rejected by the Returning Officer on the ground that the envelops containing them did not bear the stamp of the post office, were sent by post?
O.P.P.
(4) Whether the postal ballot-papers mentioned in issue No. 3 were not liable to rejection under Law? 0 . P . P .
(5) Whether the declaration Forms were supplied to the electors who wanted to cast their votes by post in the last week of April while the postal ballot-papers were sent to them on 10th May, 1985?
O.P.P.
(6) Whether 8 postal ballot-papers cast in favour of the petitioner have wrongly been rejected by the Returning Officer on the ground that while the same bear the date of 10th May, 1985, the declaration forms received with them were signed and attested in the month of April, 1985? O.P.P.
(7) Whether some valid ballot-papers cast in favour of the petitioner were= rejected and excluded from count by the Returning Officer at the time of consolidation of the result of the count. If so, how many votes were so rejected and excluded from the count? O.P.P.
(8) Whether 14 valid votes of the petitioner received by post were wrongly rejected by the Returning Officer on the ground that the choice of the candidate had been indicated on them by placing tick-mark instead of prescribed cross-mark? O.P.P.
(9) Whether the packets containing the ballot-papers contains more votes cast in favour of the petitioner than shown in the statement of count prepared by the Returning Officer at the time of consolidation of results and as such the above statement is incorrect? O.P.P.
(10)Whether the persons named in Annexures C/1 to C/5 appended with the election petition were either dead or absent from the polling station concerned on the day of polling? O.P.P.
(11) Relief.
For the reasons stated above, the case is remanded to the Election Tribunal with the direction to decide it afresh in the light of the above observations, in accordance with law, after allowing the parties an opportunity of production of evidence in support and rebuttal of the issues framed by this Court and hearing the arguments of the learned counsel for the parties. There shall he no order as to the costs.