ZAFFAR HUSSAIN MIRZA, J.-- This is an appeal under section 67 of the Representation of the People Act, 1976, from the judgment dated 26th October, 1986, by the Election Tribunal Punjab, in respect of the National Assembly Constituency No.NA-61 Mianwali-cum-Bhakkar. The general election in respect of the said Constituency was held on 25th February, 1985. For the constituency in question there were three contestants, namely, Dr. Sher Afgan, appellant, Aamer Hayat Khan, respondent No.1 and Haji Ghulam Muhammad respondent No.2 herein. The total number of registered votes in this Constituency were 2,14,404 out of which 1,39,968 votes were cast. Out of these total votes cast 1,31,545 were counted as valid votes while 8,423 were declared as invalid ballot-papers.
2. As per the result of the count the respective votes secured by the three candidates were as under:-
(i) Dr. Sher Afgan 61,924
(ii) Aamer Hayat Khan 60,954
(iii) Haji Ghulam Muhammad 8,666 Accordingly Dr. Sher Afgan having been found to be leading by 970 votes as compared to the candidate securing the next highest number of votes he was declared elected and was notified as a Member of the National Assembly, from the constituency as per notification dated 26th February, 1985.
3. The controversy in this case has arisen on account of the fact that the ballot-paper for this Constituency was printed providing separate columns containing the names and symbols of each contesting candidate. There were in all 10 columns in the ballot-papers out ofwhich three at the top were occupied by the names and symbols of the contesting candidates and six were left blank below. The name and symbol of Haji Ghulam Muhammad respondent No.2 was printed in the top column, then came the name and symbol of Dr. Sher Afgan appellant and in the third column appeared the name and symbol of Aamer Hayat Khan respondent No.1. The break up of the invalid ballot-papers (8,423) is as under:-
(a) 2,830 ballot-papers were affixed the mark in blank space in column No.4;
(b) 723 ballot-papers were marked in such a manner that the major portion of the mark was in blank space No.4 but also partly touched column No.3 of respondent No.1
(c) 3,082 ballot-papers were found as blank and unmarked ballot-- papers;
(d) 658 ballot-papers were rejected for miscellaneous reasons like multiple marks or torn ballot- papers;
(e) 979 ballot-papers had been affixed with the marks in blank columns from No.5 to 9; and
(f) 850 ballot-papers bore no signatures of the Presiding Officer/ Assistant Presiding Officer or official stamps.
4. Being dissatisfied with the result of the election respondent No. l challenged the same by an election petition under section 52 of the Representation of the People Act, 1976, in which on the pleadings of the contesting parties the following preliminary issue was framed by the Tribunal:---- "Whether 3,977 ballot-papers bearing the mark of the voters below and not in front of the name of petitioner had been erroneously excluded from the count? If so, its effect."
5. However, before arguments could be heard on the aforesaid preliminary issue, the learned Tribunal framed an additional issue with the consent of the parties to the effect whether the Tribunal had jurisdiction to scrutinize or decide upon the validity of the rejected votes but subsequently by agreement of contesting parties all other issues were dropped and the controversy was confined only to the question of validity or otherwise of the rejected ballot-papers.
It was further agreed between the parties that the validity or otherwise of 3533 rejected ballot- papers only may be determined. These 3533 rejected ballot-papers comprised the total of categories (a) and (b) shown in the break-up of invalid ballot-papers in paragraph 3 above. On behalf of the respondent No.1 who was the petitioner before the Election Tribunal it urged that these ballot-papers which carry the prescribed mark either entirely in column No.4 or partly in column No.3 and partly in column No.4 were validly cast in favour of respondent No.1 as the voters intended to cast the same in his favour but owing to scarcity of the space the prescribed mark was affixed in the manner appearing on these ballot-papers and therefore the returning officer was not justified in rejecting the same as invalid. On the other hand it was argued on behalf of the appellant that these ballot-papers were rightly rejected and excluded from the count by the returning officer.
After hearing the arguments of the parties the learned Election Tribunal found the issue in favour of respondent No. 1 and included 3,553 votes in the count of respondent No.1 alongwith those already declared by the returning officer to have been obtained by him as valid votes. In this manner the total number declared by the learned Election Tribunal to have been secured by respondent No.1 was 64,507. Consequently the learned Tribunal held that the appellant "has been illegally and wrongfully returned as successful candidate from Constituency No.61 Mianwali-cum-Bhakkar. His election is therefore, declared as void and instead the petitioner (respondent No.1 herein) is declared to have been duly elected as member from the said constituency. "
6. In order to determine the controversy between the parties the, learned Tribunal referred to section 33 of the Representation of the People Act, subsection (5) whereof provides for the voting procedure. Reference was also made to subsection (4) of section 38 of the said Act which lays down the procedure to be adopted by the Presiding Officer at the close of the poll and the manner of counting the ballot-papers taken out from the ballot-box or ballot-boxes. For the sake of convenience reference to sections shall be read as sections of the Representation of the People Act, 1976, and wherever any reference is made to rules it shall be read as a reference to the Representation of the People (Conduct of Election) Rules, 1977. On a scrutiny of the relevant provisions of sections 33 and 38 alongwith rules 17 and 23 the learned Tribunal came to the conclusion that a ballot paper can be rejected as invalid if it is not possible to ascertain as to for whom the elector has voted and stated the proposition thus: "The position thus boils down to the proposition that so long from the mark put by the elector it is ascertainable that he intended to vote for a particular candidate then the vote has to be treated for that candidate and it cannot be thrown away as an invalid vote."
The learned Tribunal therefore rejected the argument of the appellant that the provisions of section 33 and rule 17 laying down the manner of marking the ballot-papers were mandatory and since the mark was placed in the disputed ballot-papers outside the space in the column containing the name and symbol of respondent No.1, that ipso facto rendered the ballot papers invalid.
7. It was held that the voting procedure contained in the 'aforesaid provisions as well as the procedure for counting the ballot-papers provided in section 38 and rule 23, particularly read in the light of the proviso to sub-clause (iv) of clause (c) of subsection (4) of section 38 clearly cast a duty on the Presiding Officer/ Returning Officer to ascertain the unambiguous intention of the voters even if the prescribed mark has not been placed in the appropriate chamber but has been placed somewhere else.
8. In this view of the matter the learned Tribunal proceeded to examine the rejected ballot-papers and recorded its finding in the following words:-- "In the light of the factual position of the present case also, in case of rejected ballots numbering 3553, marks have been put in column No.4 immediately below columns No.3 containing the name and symbol of the petitioner. Rather in case of 723 votes, out of these 3553 votes, mark is partly present in column No.3 and partly in column immediately below in column No.3. By no stretch of imagination in regard to these votes it can be assumed that they could be intended for the respondent or the other candidate, namely, Haji Ghulam Muhammad, whose columns were numbers 1 and 2 above the column of the petitioner. These votes were positively intended for the petitioner under whose name the voters have put the prescribed marks. This view further gets strength from the fact that the space provided between the name and column of the petitioner was too littlie to affix the marks in that space."
Being dissatisfied with the judgment of the learned Tribunal unseating Dr. Sher Afgan, appellant herein, has brought this appeal against the same.
9. Mr. S.M. Zaffar, learned Advocate appearing for the appellant, had a formidable task confronting him to address the question of interpretation of sections 33 and 38, as very recently in the case of Jamshed Ahmad Khan and others v. The S. D. M./Assistant Commissioner, Garden Sub-Division Karachi and others (PLD 1987 Supreme Court 213), this Court held that these provisions, in so far as they relate to the manner of marking of the ballot-papers, more particularly the placement of the prescribed mark thereon, were directory and not mandatory. However, he addressed a well- prepared argument aimed at persuading the Court to change its earlier view as according to him, if certain aspects of the matter that were not brought to the notice of the Court, which have decisive bearing on the outcome qua the controversy on the legal question, are taken into consideration, the relevant statutory provisions will fall into proper perspective leading to the contrary view that these provisions are mandatory. In this behalf learned counsel referred to the legislative history of the election laws with particular emphasis on the manner in which the voters were required to indicate their choice of the candidate for whom they wish to vote. In the first instance we were referred to the early English statutes and how the Courts have interpreted those provisions; and from a review of decisions of Courts an attempt was made to demonstrate the trend of the Courts in the English jurisdiction to hold that in the election laws provisions contained in the body of the Act regarding marking of ballot-papers are to be construed as mandatory but those contained in the directions and forms in the schedule to the Act are given effect to as directory. It was pointed out that the statutes which came up for interpretation in that jurisdiction dealt with provisions which required the voter to indicate the candidate for whom he wishes to vote by placing the mark "opposite to the name and symbol of the candidate" and therefore those decisions determined the validity of the vote on the basis of ascertaining the unambiguous intention of the voter even though the mark is placed not within the space allocated to the candidate on the ballot-paper but outside thereto so long as it was opposite to the name and symbol of the candidate. In this background of the state of law in England learned counsel took us through the legislative history of the election laws in our country with particular reference to provisions relating to the manner of marking of the ballot-paper and pointed out that the language in the relevant provisions was radically changed for the first time in Pakistan in the National and Provincial Assembly (Elections) Ordinance, 1978, in which the requirement was to put the prescribed mark within the space containing the name and symbol of the candidate. The present law also contained similar provisions and according to the learned counsel the decision on the previous enactments therefore rendered no assistance and could not be followed for the purposes of interpretation of the relevant provisions of the present law.
10. At this stage it will be appropriate to set out the relevant provisions which require consideration in the present case which are as under:- "Section 33 .............
(1) .......... .............................
(2) .......... .............................
(a) .......... .............................
(b) .......... .............................
(c) .......... .............................
(d) .......... .............................
(e) .......... .............................
(3) .......... .............................
(4) .......... .............................
(5) On receiving the ballot-paper, the elector shall--
(a) forthwith proceed to the place reserved for marking the ballot-paper;
(b) put the prescribed mark on the ballot-paper at any 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.
(6) . .
(7) . . Section 38:
(1) . .
(2) . .
(3)
(4) The Presiding Officer shall--
(a) open the used ballot-box or ballot-boxes and count the entire lot of ballot-papers taken out there from;
(b) open the packet bearing the label 'Challenged Ballot Papers and count them;
(c) count, in such manner as may be prescribed, the votes cast in favour of each contesting candidate excluding from the count the ballot-papers which bear--
(i) no official mark (and signature) of the Presiding Officer;
(ii) any writing or any mark other than the mark of his thumb, the official mark, the (signature) of the Presiding Officer and the prescribed mark or to which a piece of paper or any other object of any kind has been attached;
(iii) no prescribed mark to indicate 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 prescribed mark appears clearly within the space containing the name and symbol of that candidate and, where that prescribed mark is divided equally between two such spaces, the ballot-paper shall be deemed invalid.
Rule 17. Manner of marking the ballot-paper--(1) The mark to be put under clause (b) of subsection (5) of section 33 on the ballot-paper, at any place within the space containing the name and symbol of the contesting candidate for whom the elector wishes to vote, shall be a mark containing squares on a rubber-stamp provided for the purpose by the Presiding Officer at the Polling Station and no other mark.
(2) No other marking aid or rubber-stamp except the rubber-stamp supplied for the purpose by the Presiding Officer under sub-rule (1) shall be used by the elector for marking his ballot-paper.
Rule 23. Count on close of poll-The Presiding Officer shall after taking out the ballot-papers from the used ballot-box or, ballot-boxes-
(a) separate the ballot-papers which are unambiguously marked in favour of a contesting candidate from those which bear--
(i) no official mark and (signature) of the Presiding Officer, or
(ii) any writing or any mark other than the official mark, (signature) of the Presiding Officer and the prescribed mark made with the rubber-stamp supplied for the purpose or to which a piece of paper or any other object of any kind has been attached, or
(iii) no prescribed mark indicating the contesting candidate for whom the elector has voted, 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 of the whole or more than half of the area of the prescribed mark appears clearly within the space containing the name and symbol of that candidate; and where the prescribed mark is divided equally between two such spaces, the ballot-paper shall be deemed not to show clearly for whom the elector has voted."
Learned counsel for the appellant in support of his contentions raised the following points:-
(i) the requirement of marking of the ballot-papers in the Representation of the People Act is mandatory and any ballot---paper not marked according to that cannot be treated as a valid vote;
(ii) the type of ballot-papers rejected by the Returing Officer are covered by the specific provisions of section 38 (4) (c) (iii);
(iii) there has been a change of law so that (the column containing the name and symbol of the candidate on the ballot-paper) has become important with the result that if the mark is not placed by the voter therein the ballot-paper ipso facto becomes invalid; and
(iv) if ballot-papers of this nature are accepted, it will open a gateway for the voters' ingenuity to cast vote in a manner whereby the voter would be identifiable resulting in the violation of secrecy of the ballot.
Learned counsel first invited our attention to the early English enactment called the Ballot Act, 1872, in which in the main body of the Act, section 2 provided for the manner in which the ballot-paper shall be printed and marked with an official mark which will be delivered to the voter at the polling station; and provided that "the voter having secretly marked his vote on the paper, and folded up so as to conceal his vote, shall place it in an enclosed box in the presence of the Presiding Officer at the polling station." We were then referred to the first schedule of the Act which contains the rules for parliamentary elections. In these rules rule 25 lays down the procedure for giving each elector a ballot-paper which is a reproduction of the relevant part of section 2. Finally reference was made to the form of ballot-paper contained in the schedule wherein it is provided that a form of directions for the guidance of the voters printed in conspicuous characters be placed outside of every polling station and in every compartment of the polling station. Particular emphasis was made on the following instructions:- "The voter will go into one of the compartments and with the pencil provided in the compartment, place a cross on the right hand side, opposite the name of each candidate for whom he votes, thus X."
It is important to note that the main provisions in the Act or in the schedule did not provide specifically for the manner of marking the ballot-paper which was contained only in the instructions for the guidance of the voters. However, learned counsel pointed out that according to section 28 of the said Act the schedules and the notes thereto and directions therein, were to be construed and have effect as a part of the Act. Strong reliance was placed on the Birmingham Municipal Election's case, Woodwand v. Sarsons (1875 L.R.10 C.P.733), in which the learned Judges were called upon to interpret the provisions of the Ballot Act and laid down the following general principle:- "These observations lead us to the conclusion that the enactments as to the rules in the first schedule, and the forms in the second, are directory enactments, as distinguished from the absolute enactments in the sections in the body of the Act."
Having laid down the general principle the learned Judges noticed that in section 2 of the main Act the only direction to the voter was to secretly mark his vote on the paper and fold it up so as to conceal his vote. This was considered an absolute mandate of law the breach of which would render the vote invalid. Emphasis was made on the requirement of secrecy. How the mark is to be placed on the ballot-paper was held to be directory because the manner of marking was not even provided by the rules contained in the first schedule to the Act but only in the form of directions.
The conclusion was stated as follows:- "This is the only enactment throughout the statue as to the manner and form in which the voter is to mark the ballot-paper. And therefore, by the general rule before mentioned, it would be necessary that the absolute enactment that the paper should be marked secretly should be obeyed exactly; but it would be sufficient that the manner of marking the paper should be obeyed substantially."
Proceeding from this principle learned counsel emphatically contended that because the manner of marking the ballot-paper in the law applicable to the present case is a part of section 33 in the main body of the Act, it has to be construed as absolute enactment breach whereof would result in vitiating the vote. It may, however, be pointed out that in the cited English case the main reason that prevailed with the learned Judges to hold that the manner of marking the ballot-paper was not an absolute requirement of the statute is to be found in the following passage on page 747 of the report:- "The extent of error which is to vitiate so as to annul the ballot-paper is further to be gathered from the statute itself. By section 2, "any ballot-paper which has not on its back the official mark, or on which votes are given to more candidates than the voter is entitled to vote for, or on which anything except the said number on the back is written or marked, by which the voter can be identified, shall be void, and not counted." It is not every writing or every mark besides the number on the back which is to make the paper void, but only such a writing or mark as is one by which the voter can be identified."
It will, therefore, be seen that the decision Birmingham Municipal Election case did not turn solely upon the basis of division of the relevant election laws into the main body of the Act and the schedules, but on the contrary the decisive conclusion was reached by referring to main provisions in the body of the Act which specifically dealt with the cases in which the ballot-paper was to be rejected and since in these categories a ballot-paper not marked strictly in accordance with the manner laid down, was not included, it was held that the provisions relating to the manner of marking were directory.
11. Learned counsel referred to some recent cases from the English jurisdiction in which the Birmingham Municipal Election case came up for interpretation and comment. The first case referred to in this behalf was Morgan v. Simpson (1974) 3 All E.R.722). The point in controversy before us, namely, the rejection of ballot-paper was not involved in that case but the question was whether the election as a whole was void on account of irregularities affecting the result of the election. The learned Judges among other cases referred to Woodward v. Sarsons which was decided under the Ballot Act, 1872, although the case in question was decided under a later enactment, namely, Representation of the People Act, 1949. Their Lordships disapproved some of the dicta of Coleridge, C.J., in Woodward's case. It was pointed out that section 13 of the Act of 1872, was the forerunner of section 37 of the Act of 1949, and the provisions of the two sections were in pari-materia. In this connection Stephenson LJ made the following observations:- "Gone are the principles laid down in the body of the Act, and in their stead is substantial accordance with the law as to elections. Blurred is the distinction between the Act and the rules, between breaches of principle and breaches of the rules. The law as to elections is, to my understanding of the section, recognised as embodied in the Act and the rules, and an election will stand if there have been breaches of the law but they are not substantial or they have not affected the result "
The second case in this behalf referred to by the learned counsel was Ruffle v. Rogers and another ((1982) 3 All E.R. 157) . In this case the question was whether a ballot-paper on which the voter had written with his own handwriting the name of the candidate and his party instead of making a cross mark as required by the rules. It was contended before the Court that the vote was invalid and in that case Mr. Rogers was to win the election by one vote. In support of this contention the learned counsel placed reliance on the case of Woodward v. Sarson and one more case. Lord Denning MR. With the concurrence of the other Judges referred to the rules applicable to the election in question before them. Quoting from the book Schofield's Local Government Elections (8th Edn. 1979), the learned Judge reproduced with approval the following passage-,- "In all cases which have been before the Courts in recent years, the judges have all indicated that the voter's franchise should not lightly be lost by declaring a vote to be bad if there is a clear intention shown as to what the voter intended to do."
He then made his own observations as follows:- "In my opinion, since the new rules came into force, Birmingam Case and Exeter Case are no longer law. The fact that a voter has written in handwriting the name of his chosen candidate clearly showing that he intended to vote for that candidate, on the correct ballot-paper and in the correct place does not invalidate the ballot-paper at all.
The voter in this case did not obey the directions. Many people make a slip of some kind. But when the intention is clear, as it was in this case, it seems to me entirely wrong that his vote should not be counted. The voter intended to vote for Mr. Ruffle. He made it all the clearer by writing down the name of the candidate he wanted to vote for. He cannot be identified by his handwriting. The ballot-paper should not be rejected simply because somebody says that he might possibly be identified by his handwriting. I think that the returning officer was absolutely right to accept the ballot paper as valid.--- This then even according to the cases cited by the learned counsel has been the trend of law in England. We need not burden this judgment with other cases cited from the foreign jurisdiction by the learned counsel except with one earlier case under' the Ballot Act of 1872 which is reported as Pontardawe Rural District Council Election Petition (1907) 2 K.B.313) in which view was held that a ballot-paper is not rendered void by the reason of the voter placing his mark outside the ruled compartments on the paper, within which compartments it is intended that the voter's mark shall be placed, if the mark is in such a position opposite to the name of a candidate are to leave no doubt for whom the voter intended to vote. The gist of the principles laid down by English Courts was read out to us by the learned counsel from Halsbury's Laws of England, fourth Edition, Volume 15, page 343, paragraph 635. It is sufficient for our purpose to quote the following passage-- "A ballot-paper which is unmarked or~ void for uncertainty is void and must not be counted; but a ballot-paper on which a vote is marked elsewhere than in the proper place, or otherwise than by means of a cross or by more than one mark is not bar reason of it to be deemed to be void (either wholly or as respects that vote) if an intention that the vote shall be for one or other of the candidates, or, at a poll consequent on a parish or community meeting, for or against any question, clearly appears, and the way the paper is marked does not of itself identify the voter and it is not shown that he can be identified by it."
12. As already observed after referring to the English law, learned counsel traced the statutory history of the election law in our own country. In this connection he referred to the following enactments. The Representation of the People Act of 1957, in which the system adopted dispensed with the making of the ballot-paper and instead provided for separate ballot-boxes for each candidate, so that no question could arise for the rejection of ballot-paper on the ground of manner of marking: (2) The Basic Democracies Order, 1959, and the rules made there under, in which also the scheme of separate ballot-boxes was adopted; (3) The National and Provincial Assemblies (First Elections) Order, 1962,in which also the same position was adopted; (4) The Electoral College Act, 1964, which also provided the same scheme of separate ballot-boxes. Then came the National and Provincial Assemblies Election Act, 1964, section 32 whereof provided for marking of the ballot-paper against the name of the candidate desired. This statute according to the learned counsel was on par with the English statute which also required the mark to be placed against the name of the candidate. For the first time in the next enactment, namely, National and Provincial Assemblies (Elections) Rules, 1964, framed under the above-said Act it was provided that the mark be put "in the appropriate place provided for the purpose in the ballot-paper." In the other enactment of the same year and the rules there under similar provisions were made in the Presidential Election Act, 1964. The crucial change came in the next statute called the National and Provincial Assemblies (Elections) Ordinance, 1970, in which section 31 provided that the voter "shall put the prescribed mark within the space containing the name and symbol of the contesting candidate for whom he wishes to vote". Learned counsel pointed out that at this stage the provision was for the first time brought into the body of the Act, The last statute in this connection is the law applicable to the present case.
13. By tracing the history of the legislation in regard to elections in our country, learned counsel pointed out that the change over of the provisions with regard to the manner of marking the ballot-paper from the earlier position in which the mark was to be put opposite to the name and symbol of the candidate to the present position in which the mark is to be placed in the space of the column in which the name and symbol of the candidate are printed a fundamental alteration in the law took place and therefore the English decisions, on which reliance was made by the Tribunal and which related to the law as stated in the earlier position, no longer furnished a sound basis for interpretation of section 33 (5) (b); the result according to the learned counsel is that the provision being in the body of the Act expressly requiring the voter to mark the ballot paper in the manner down therein it is to be strictly construed and given effect as an absolute enactment. We are, however, not impressed by this argument. It has been pointed out earlier that even in the Ballot Act, 1872, section 28 provided that the schedule, notes and directions contained therein, were to be construed and have affect as a part of the Act. Therefore, with all due respect to the learned Judges in the case of Woodwards we are unable to see any rational basis for dividing the Act, into the main body and the schedules for applying different principles of interpretation. Be that as it may even in that case as observed, the decision was not solely based on these principles but on the ground that even in the body of the Act the provisions relating to rejection of ballot papers did not contain any penal provisions in regard to the violation pertaining to the manner of marking the ballot paper. The proposition advanced by the learned counsel is, therefore, not well founded. It tray here be observed that we have not come across any rule of interpretation in the text-books, nor was any such rule pointed out to us except ire the cited cases that every provision in the body of the Act is to be given mandatory effect. On the contrary the text-books laid down many tests for determining whether a particular provision in an enactment is mandatory or directory. In this behalf reference may be made to the case of Jamshed Ahmad Khan (supra) paragraphs 9 and 10 in which a quotation from the case of Liverpool Borough Bank v. Turner (1861) 30 L J Ch. 379) has been reproduced to the effect that no universal rule can be laid down as to whether mandatory enactments shall be construed directory only or obligatory with an implied nullification for disobedience. The case of each enactment has to be construed in the light of the general object intended to be secured, the subject-matter and the importance of the provision and is then it can be decided whether the enactment is imperative or only directory. At this stage we may usefully reproduce, the following passage from the case of Jamshed Ahmad Khan in which this Court summarised the reasons for holding that section 33 (5) and rule 17, as well as section 38 (4) and rule 23 are directory in nature with which substantial compliance would be sufficient: "The controversy raised before us essentially falls within the realm of the statutory provisions which regulate the power of the Returning Officer to reject certain ballot-papers while counting the votes cast in favour of each contesting candidate. This is an essential part of the machinery provided for ascertaining and declaring the result in an election through secret ballot. The law with which we are dealing, has in the first place laid down the procedure for casting votes by the electors and has then laid down which ballot papers are to be included in the count and which ones are to be excluded. The law has not left the matter, merely to inferential consequence directly following the breach of the provisions governing the manner laid down for casting votes. Subsection (4) (c) of section 38 of the Act and rule 23 set out exhaustively the conditions under which a ballot paper is to be excluded from the count as invalid. There being a specific provision on the subject, the argument that if a vote is not cast in the manner laid down in subsection (5) of section 33, the same is to be excluded, becomes obviously untenable. Nothing prevented the legislature to include an express provision to that effect in subsection (4) of section 38, that if the prescribed mark is found outside the space containing the name and symbol of the candidate, the ballot-paper shall be excluded. On the contrary in sub-clause (iv) of clause (c) in subsection (4) of section 38, the legislature provided that a ballot paper which bears "any mark from which it is not clear for whom the elector has voted", will be one of the categories of ballot papers to be excluded. This in our view reveals the intention of the law-maker that mere place or location of the mark will not vitiate a ballot paper as long as it can be ascertained reasonably for whom the elector has voted. This is in consonance with the general principle that the primary object for marking the ballot-paper is to enable the voter to express his will in favour of the particular candidate. A careful analysis of the proviso appended to this sub-clause also shows that the same principle is incorporated therein, so that where more than half of the area of the prescribed mark appears clearly within the space containing the name and the symbol of a particular candidate the vote shall be counted in favour of that candidate But if the mark is equally divided between the space of two candidates, the situation would be clearly the one where it will not be possible to say for whom the elector has voted and, therefore, the ballot paper shall be deemed to be invalid. We do not see any particular significance in this proviso which may go to support the contention that the provisions in regard to the marking of ballot papers contained in section 33 (5) or rule 17, are mandatory. We feel that the rules laid down by the law under consideration for the manner of marking a ballot paper cannot be given mandatory effect. Even positive words of command used in this behalf do not necessarily lead to such an interpretation of the nature of the law under consideration. The question must be determined from a broad view of the end and aim of election and election laws rather than from the phraseology or positive language employed. The obvious design underlying the election law is to provide expeditious and convenient means for expression of the will of the voters free from fraud.
It has been said that the election laws are framed to afforded opportunity for the orderly expression by duly qualified voters of their preference among candidates for office, not to frustrate such expression. Therefore, in Bowers v. Smith (111) Mo. 45: 20 SW 101, the learned Judges observed that "the cardinal rule, to be followed by election officers and Courts in election matters is to ascertain the intent of the voter as disclosed by the official ballot actually cast and to give effect to that intent by counting the ballot cast. "
"From the aforesaid discussion we are of the firm opinion that the provisions of section 33 (5) of the Act and of rule 17, are not mandatory, with the result that only substantial compliance was required.
Indeed in the context of the fact that this provision, laying down the manner of casting the vote relates to an election on the basis of adult franchise, where most of the voters would be from the rural background, strict technical compliance with the requirements as to place of the mark, would not be in consonance with the intention of the legislature. In any case, as discussed earlier subsection (4) (c) clearly lays down an exhaustive list of grounds upon which a ballot paper can be rejected and, therefore, non-compliance with the procedure for marking the ballot paper by itself, not being one of the grounds prescribed, cannot ispo facto furnish a ground for rejecting a ballot paper as invalid."
Learned counsel also relied upon the principles laid down in the case of Mukhtar Hussain Shah v.
Waseem Sajjad (PLD 1986 SC 178), in which sections 23 and 24 of the Senate (Election) Act, -1975, were interpreted and held to be mandatory. The dicta laid down in that case were held in the case of Jamshed Ahmad Khan (supra) not applicable for determination of the controversy before .Us as was in that case, for the reasons mentioned in para. 13 of the judgment at page 255 of the report which need not be reproduced here. For the same reasons we are of the same view that the present case is governed by altogether different principles.
14. It was then urged that a mark on a ballot paper which is not in accordance with the requirements of the law, will be a mark used for identifying a voter and thus violative of secrecy of the ballot. According to the learned counsel this is deducible from the provisions of section 38. In this behalf reference was made to clauses (ii), (iii) and (iv) of subsection (4) (c) of section 38. It was submitted that the words "prescribed mark" are to be construed in the light of the definition of the word "prescribed" which according to section 2 (xix) means prescribed by rules and therefore the meaning of expression "prescribed mark" wherever it occurs in section 38 (4) (c) has to be read with section 33 (5). The argument was that a mark outside the space allotted for a candidate cannot be construed as a prescribed mark so as to constitute the ballot paper so marked as a valid vote. In the premises each clause was analysed and correlated to various provisions of the Representation of the People Act. Clause (i) was correlated to section 33 (2) (d) which requires the ballot paper to be stamped with the official mark and signed by the Presiding Officer. Clause (ii) was correlated to section 28 providing for secrecy of the ballot and also to take care of section 33
(2) (d). As regards clause (iii) it was submitted that it visualized two situations (i) no prescribed mark at all or unmarked ballot paper and (2) when it contained a mark other than prescribed mark although such mark indicates for whom the vote is cast. Clause (iv) was correlated to section 33
(5) (b), which requires the elector to put the prescribed mark within the space containing the name and symbol of the contesting candidate for whom he wishes to vote. Learned counsel submitted that this clause when properly analysed clearly provides that if the prescribed mark is placed outside the space, there will be violation of section 33 (5) (b). It was stated that this clause would also include a case where proper prescribed mark has been affixed for more than one candidate, as well as the insufficiency of the mark and the placement of the prescribed mark on the dividing line between the spaces of two contesting candidates. According to the arguments of the learned counsel the proviso to this clause contemplates the violation of the mandatory provisions of section 33 (5) (b) but in one particular case, namely, where more than half of the area of the prescribed mark appears clearly within the space of a particular candidate, the law has condoned the violation.
15. After giving consideration to the elaborate arguments regarding the various clauses of section 38 (4) we are, however, unable to agree with the learned counsel that the type of ballot papers involved in the present case comes within the mischief of this said provisions of law so as to be rendered invalid. The argument that a mark on the ballot paper which is outside the space reserved for a candidate will necessarily be a device for identifying him and violative of secrecy of the ballot is too wide a proposition to be accepted and would lead to undesirable results destroying the very purpose of holding an election. No one can deny that secrecy of the ballot is sine qua non of an election held under a method of secret ballot. A distinction must be drawn between a provision requiring the rejection of a ballot paper in order to preserve the principle of secrecy and a provision which rendered a ballot paper invalid for violating mandatory provisions if any, in regard to the manner of marking a ballot paper. In this behalf it may be useful to quote Kaikaus, J, in Mian Jamal Shah v. The Member Election Commission (PLD 1966 SC 1), on which a strong reliance was placed by the learned counsel. While illucidating the significance of the words "a mark by which the voter can be identified'' in the relevant law, he was of the opinion that every mark besides the mark intended to indicate the candidate, on the ballot paper need not necessarily be constured as an identifying device, but there can be marks on a ballot paper which would not fall within the ambit of the said provisions. He observed:- "The answer is that it is possible which may not be used as an identifying device. It may be too insignificant. It may be accidental."
Therefore, the mere fact that the prescribed mark has been affixed outside the reserved space for a candidate in the ballot paper cannot ipso facto and without more constitute violation of secrecy.
The relevant provision in regard to violation of secrecy is clause (ii) of section 38 (4) (c) and that clause would obviously be attracted on a plain reading of its contents when any writing or any mark other than, inter alia, the prescribed mark is borne on a ballot paper. It is in this context that the interpretation of the words "prescribed mark" advanced by the learned counsel becomes relevant. If prescribed mark means a mark appropriately affixed in the place reserved for a candidate, then a mark outside that space would constitute a mark other than the prescribed mark on the ballot paper within the mischief of this clause. The expression "prescribed mark" has not been separately defined in the Act or the rules but as already mentioned the word "prescribed" means prescribed by rules. Rule 17 prescribes the nature of the mark by providing that it "shall be a mark containing squares on a rubber stamp provided for the purpose by the Presiding Officer at the polling station and no other mark." Plainly, therefore, the expression "prescribed mark" means a mark effectuated by such an elaborate rubber-stamp provided for by the Presiding Officer.
Consequently any other mark as contemplated in clause (ii) would be a mark other than such rubber-stamp mark. This expression, therefore, relates to the physical composition of the device for marking and has no reference in the technical sense to the place of marking. The reference to the place of marking in rule 17 is not in the sense of the definition of the term "prescribed mark" but only for convenience on reference to the provisions where the expression occurs in the Act. Therefore, in the present case as undoubtedly the ballot papers were marked with the device provided by .The Presiding Officer it cannot be said that such mark was the mark other than the prescribed mark. It is not necessary for the present purpose to deal with the arguments of the learned counsel with regard to clauses (iii) and (iv), except that as regards the last mentioned clause the submission of the learned counsel that the prescribed mark if affixed outside the space of a candidate, the same will be in violation of section 33 (5) (b) is not correct. As already discussed this clause deals with the question of uncertainty as to for whom a voter has cast a vote. It embraces other instances given by the learned counsel, namely, more than one prescribed mark indicating a vote to more than one candidate, insufficiency of mark which leaves doubt whether he voted for the candidate and placing the mark on the dividing line between the spaces of two candidates when the area of the prescribed mark is equally divided. There is no corresponding provision in section 38 (4) (c) providing for exclusion of a ballot paper simply on the basis that the prescribed mark is outside the apace reserved for the candidate. The proviso also does not contain any such provisions by implication as argued by the learned counsel.
16. Lastly it was urged that the principle of ascertaining the intention of the voter from the position of the mark on the ballot paper, irrespective of the place indicated by the relevant law for placing the mark, is attracted only when it is firstly shown that the vote has been cast in accordance with the essential mandatory requirements for marking the ballot paper. In other words the submission was that in case of contravention of essential legal mandate, the question of voter's intention is irrelevant. In support of this proposition learned counsel quoted passages from volume 29 of Corpus Juris Secundum. We need not repeat the reasons that have been already stated whereby it has been held that the provisions of section 33 (5) (b) cannot be construed as mandatory.
Therefore, this argument does not advance the case of the appellant in the facts of the present case. In Article 177 (29 C.J.S.), the law has been stated as under:- "While, under statutes so providing, the cross or other mark should be placed in the voting space provided on the ballot, some statutes of this nature have been held not mandatory. In order to permit the counting of a ballot, the voter's intention must be manifested by a cross substantially in the place designated, showing an honest intent to follow the directions of the law, and ballots have been held invalid where they were not marked by the voter in the proper place -----------While the rule that a ballot which has not been marked by the voter in the proper place cannot be counted has been held applicable regardless of the voter's apparent honesty and good intentions, it is generally held that the voter's failure to mark the ballot in the space provided therefore does not, of itself, invalidate the ballot where the voter has so placed his mark thereon that his intention can be ascertained there from, and that where it is clear that the voter made an honest attempt to conform to the statute by marking the ballot in the proper place, although with more or less imperfect success, the ballot should be counted."
Portions reproduced above from the commentary also supports the view taken by us that, barring such statutes as required the marking in a specified space with a special provision for nullification in case of violation, the general rule is that the ballot will be counted if the voter's intention can be ascertained from the place of marking. In Article 223 of (29 C.J.S), which was also relied by the learned counsel, the following opening comments are significant: "The cardinal rule to be followed in the counting of votes is to ascertain the intent of the voter as disclosed by the official ballot actually cast and to give effect to that intent by counting the ballot, but if that intent cannot be satisfactorily ascertained then to reject the ballot. Unless in contravention of some essential mandate of the law, the intention of the voter must be given effect."
16. The above discussion disposes of all the points urged by the learned counsel in support of this appeal as reproduced in para. 10 above. However, we would like to make some observations with regard to the last point whereby it was argued that if ballot papers of the nature under dispute are accepted, it will give a fillip for casting votes in a manner whereby the voter would be identifiable resulting in violation of secrecy of the ballot. In the foregoing paragraphs we have noted the argument of the learned counsel that the law had undergone a change by providing a specific space for the marking of the ballot paper. However, it seems that learned counsel had also placed reliance on the case of Mukhtar Hussain v. Waseem Sajjad in which certain ballot papers were excluded from the count on account of unauthorised manner of marking them. We would like to point out the distinction between the provisions of section 38 (4) (c) (ii) of the Representation of the People Act and rule 22 (3) (d) of the Election Rules framed under the Senate (Election) Act, under which Mukhtar Hussain's case was decided. For convenience of comparison we reproduce hereunder the two provisions:- "Section 38 (4) of the Representation of the People Act: The Presiding officer shall-- count, in such manner as may be prescribed, the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear--
(ii) any writing or any mark other than the mark of his thumb, the official mark, the signature of the Presiding officer and the prescribed mark or to which a piece of paper or any other object of any kind has been attached;"
Rule 22 of Election Rules under the Senate (Election) Act:-
(3) A ballot-paper shall be invalid-
(d) on which there is a mark or writing or to which some object is attached by which the voter can be identified."
It will be noticed that the words "by which the voter can be identified" do not occur in the corresponding provisions reproduced above from the Representation of the People Act. Can we not legitimately from this infer that the legislature has intentionally omitted this expression in order to place this matter outside the jurisdiction of the Presiding Officer or the Returning Officer to exclude any ballot paper as invalid on the ground that the voter can be identified by an extra mark on the ballot-paper, by achieving that result through the means of making specific provisions which would ipso facto exclude such ballot papers if they come within the mischief of the provision contained in section 38 (4) (c) (ii). We, therefore, see no force in the contention that merely because a voter accidentally, mistakenly or on account of ant of skill places the prescribed mark outside the space reserved or the candidate, it will ipso facto open floodgates for fraud by thecandidates by using the same as an identifying device. In case of such n illegality the election of the candidate guilty thereof may be challenged before the Election Tribunal under section 70 read with section 88 of the Act.
17. Before concluding this judgment we may clarify that the view of law that we have taken will not be understood to mean that every ballot paper in which the prescribed mark appears outside the space reserved for candidate will be a valid vote. The question will depend upon whether the mark thus placed reasonably and clearly disclosed the intention of the voter to cast the vote in favour of a particular candidate. If not the ballot will be rejected for want of certainty under section 38 (4) (c)
(iv). Whether the Returning Officer or the Election Tribunal was justified on the facts of this case to hold that the disputed ballot-papers were such as disclosed the intention of the respective voters in favour of respondent Aamer Hayat Khan, is a question of fact which has not been challenged by the appellant in this appeal.
18. In the result this appeal fails and is accordingly dismisses with costs.