1. MUHAMMAD HALEEM, C. J.--This judgment will dispose of Civil Appeals Nos. 3-K of 1986 and 10-K of 1986 which arise from the judgment or the Election Tribunal, Sind dated 23-1-1986 in Election Petition No. 14 of 1985, whereby the whole election was declared as void and the election ordered to be held afresh.
2. There is a single reserve seat for a non-Muslim (Qadiani) in the Sind Provincial Assembly, but as no one contested, the Election Commission for Pakistan directed this seat to be filled in by a non- Muslim woman in accordance with clause 3-A of Article 6 of the Houses of Parliament and Provincial Assemblies (Election Order), 1977. The system of election was "proportional representation" by means of a single transferable vote by the electoral college of elected non- Muslim members of the Provincial Assembly. Such electoral college is composed of eight (8) non- Muslim members. Mrs. Monica Kamran Dost, appellant (Civil Appeal No. 3-K/ 86) and Mrs. Lilavati Harchandani, respondent No. 1 contested for the seat in the election held on 13-3-1985 at Karachi.
3. By the result of the count, respondent No. 1 was declared elected as she secured five (5) votes as against the three (3) votes secured by her rival candidate, the appellant. She objected to the validity of the two votes cast in favour of respondent No. 1 as they were not properly marked. The objection prevailed as a result of which they secured three (3) votes each. Consequently, the Returning Officer decided to draw lots in accordance with sub-rule (5) of rule 66 of the Representation of Peoples (Conduct of Election) Rules, 1977, and picked out first a slip bearing the name of the appellant, and, accordingly, declared her to be the successful candidate.
4. Respondent Lilavati Harchandani filed a petition before the Election Tribunal challenging the declaration of the result inter alia on the ground that as the lot drawn was "for exclusion and not for the declaration of the winning candidate", the appellant whose chit was drawn first could not be declared as elected.
5. The Returning Officer in his written statement has asserted that the appellant was declared elected as per rules 66 and 92 of the Representation of Peoples (Conduct of Election) Rules, 1977, that is, "that the lot was drawn by consent of the parties including the election agent of the petitioner". And as no objection was then raised as to her elimination by the lot drawn first in favour of Mrs. Monica Kamran Dost, she was declared elected.
6. The appellant while conceding in her written statement that the lot was drawn in terms of rule 66(5) of the Representation of the Peoples (Conduct of Election) Rules, 1977, affirmed that for purposes of exclusion, the Returning Officer clearly announced that a candidate whose name was not found in the chit which was going to be picked up first shall stand excluded, and as both the contestants agreed to this arrangement, it was not now open to challenge. This averment was in amplification of the stand taken by her in para. 5 of the written statement that the "lots were drawn in accordance with law and the petitioner was excluded in this process". The Election Tribunal held as under "In the instant case, my finding is that requirement of rule 66(5) is mandatory for the reason very briefly stated even at the cost of repitition that President's (Post-Proclamation) Order 5 of 1977 as subsequently amended mandatorily requires holding of election in respect of unfilled seats reserved for minority to be filled by non --Muslim women on the basis of proportional representation by means of single transferable vote. To achieve this object and for the manner in which this special kind of election is to be held, elaborate procedure is already prescribed in Chapter III of the said rules, which is already in use for election to the seats reserved for women.
7. Mode of drawing lot in rule 66(5) is specifically prescribed therein based on process of elimination which is integral part of proportional representation by means of single transferable vote. Now if this procedure is not followed, it would amount to violation of law as contemplated under section 79(a) of the Represen--tation of Peoples Act, 1976, which provides that election as a whole shall be declared void, if Tribunal is satisfied that there has been failure of any person to comply with provisions of this Act or rules. So, consequence for non-compliance is provided by way of remedy in the shape of declaration of election as void.
8. Consequently I answer issues Nos. 2, 3 and 4 by holding that lot was not drawn in accordance with law, violation of mandatory. Provision of rule cannot be approved on the ground that the petitioner raised no objection or he is estopped from challenging the same on the ground of consent."
9. Mr. Fakhruddin G. Ebrahim, learned counsel for the appellant has challenged the conclusion of the Tribunal on the ground that the Returning Officer in case of equality of votes is himself to decide by lot which candidate has to be excluded; and if by what he does results in exclusion of a candidate, he acts in terms of sub-rule (5) of rule 66; therefore, the drawing of the lot first in favour of the appellant amounted to the elimination nation of respondent No. 1; and, this would not offend the purport of the rule that the lot was drawn for the purpose of exclusion: As the contention turns on the interpretation of sub-rule (5) of rule 66 of the Representation of the Peoples (Conduct of Election) Rules, 1977, (hereinafter referred to as "the Rules"), it would be of advantage to reproduce it :-- "If two or more candidates are lowest on the poll and each has the same value of votes at all counts, the Returning Officer shall decide by lot which of them shall be excluded."
10. The Returning Officer has relied both on rule 66(5) and rule 92. These rules are in different chapters.
11. Rule 66 (5) falls under Chapter III while rule 92 occurs in Chapter 1V of the Rules. So much of rule 92 as is relevant, reads as under :- "(1) If, in the final consolidation of the results of the count, it is found that there is equality of votes between two or more candidates and that the addition of one vote for one such candidate would entitle him to be declared elected, the Returning Officer shall forthwith draw a lot and the candidate on whom the lot falls be deemed to have received the number of votes entitling him to be declared elected.
(2) The lot shall be drawn in the presence of such of the contesting candidates and their election agents as may be present."
12. Chapter IV is confined to the conduct of election to the seats reserved for non-Muslims and Article 84 of this chapter provides that the provisions of Chapters I and II of these rules except those of rules 3, 11 and 26 to 28 shall apply to election to non-Muslim seats in the Assembly while Chapter III relates to conduct of election .To the seats reserved for women. The essential difference in the mode of election under these chapters is that whereas in the case of an election to the seat reserved for women, it is from the electoral college of duly elected members that a candidate is chosen on the basis of proportional representation by means of a single transferable vote which is not the same as in the case of the others) under Chapter IV, which is on the basis of direct and free vote. Therefore, the provisions in one chapter have to be read to the exclusion of the other. Rule 66(5) excludes the mode prescribed under rule 92(1) and (2). The Returning 0fficer, accordingly, was in an error to rely on rule 92 in the written statement conjunctively with rule 66(5). The method of drawing lots to which he had adverted to in his statement was to conformity with rule 92(1), and as such it has no legal value.
13. A reading of sub-rule (5) of rule 66 clearly shows that a duty is cast on the Returning Officer to decide by lot which of the two candidates shall be excluded. Therefore, the lot determines the process of elimination and not the declaration of the result in favour of a candidate. Elimination is an essential constituent of this system. In American Jurisprudence, volume 26, 2d at page 100, it is said "The expression `proportional representation' is a generic term and applies to different systems of voting which, while similar to each other in essentials, vary considerably in detail. One system, commonly known as the single transferable vote or `Hare system', is usually applied to the election of a legislative board or body.
14. Under this system candidates are not elected by their obtaining a majority or plurality of the votes cast, but by their obtaining a quota of a designated number of votes or a certain proportion of the entire votes in which electors are permitted to express second, third, or additional choices. So, that an elector would not waste his vote, if the candidate for whom he has expressed his first choice does not need his vote, the surplus votes are distributed in accord--ance with the indicted second choices among candidates whose quotas have not been filled. If enough candidates are not elected by this process, the candidate with the smallest number of first choices is then dropped and his votes are distributed in the same way. This process of elimination goes on until enough candidates have filled their quotas or until the successive eliminations have left no more than enough to fill the vacant positions."
15. In Encyclopaedia Britannica, Volume III, 15th edition, at page 242, this method of election is highlighted as under :- "The principle of proportional representation was formulated syste--matically in the middle of the 19th century by C. C. G. Andrae in Denmark and Thomas Hare and John Stuart Mill in Britain. Since then several methods for applying it have been devised; the best known are the single- transferable-vote method and the `list system'.
16. All forms of proportional representation necessitate multimember constituencies. Under the single- transferable-vote method, voters number the names of candidates on the ballot paper in order of preference: that is, 1 before the first choice, 2 before the second, and so on. The election is based on a quota determined under the so-called Droop formula, named after its deviser, the Belgian H. R.
17. Droop. The total number of valid votes cast is divided by the number of seats to be filled plus one, and one is added to the result. Thus, for example, if the number of seats to be filled is nine and the total vote cast is 2,00 000 the later figure is divided by ten and one added to the quotient 20,000 giving a quota of 20,000. Any candidate who obtains the quota on the basis of the first preference votes is declared elected. When a quota is exceeded, all the votes of a successful candidate are transferred to the second preference. Any surplus among subsequently successful candidates is similarly transferred, and so on, if necessary. If any seats are still vacant, the candidate with the least votes is eliminated, and- all his ballots transferred to second preferences until all seats are filled by candidates obtaining a quota. In this way the results reflect accurately the preferences of the electors and, therefore, their support both for individuals and for parties."
18. The provisions of Chapter III and the illustration to rule 75 follow the method highlighted above :- Rule 66(5) does not stand alone. It has to be construed while keeping in view rule 73 and rule 75 which provides an illustration of the procedure as to the count. Rule 73 emphasises the constituent element of exclusion while the sixth count under the illustration to rule 75 sufficiently indicate as to what is to be done when the result is to be determined by lot. It reads "No candidate has a surplus, and there are now four candidates equal and lowest. As a result of similar procedure it is found that the values of the next available preferences are in this case equal for each of the candidates in question; the Returning Officer, therefore, determines by lot which of the candidates P, Q, R, S, is to be excluded."
19. Here too a duty is cast on the Returning Officer to determine by lot which of the candidates has to be excluded. Rule 66(5) has to be read in this context. Accordingly, what is achieved by drawing the lot is elimination and not the favourable declaration of the result.
20. For all these reasons, we are of the view that the High Court was correct in construing rule 65(5) of the Rules and the appeal must fail.
21. In Civil Appeal No. 10-K of 1985, the learned counsel for the respon--dent No. 1 strenuously contended that the election as a whole should not have been declared as void.
22. Here a distinction has to be drawn between non-compliance of an Act or a rule and the erroneous interpretation of a provision of the Act or the rule. There is no dispute as to the drawing of the lot. All that is said is that instead of eliminating the name of the first picked out candidate, she was declared to be elected. This can hardy be regarded as a violation on the part of the Returning Officer to follow the rule, but only an error in the mode of declaration of the result which was wrong as' that should have followed the rule of exclusion by the drawing of lot. The Election Tribunal, however, regarded it as a grave violation of procedure fatal to the result of the election as a whole under section 70 of the Act, which, in our view. Is not correct. On this view of the matter, the Election Tribunal should have declared the election of the appellant., in Appeal No: 3-K of 1986, to be void.
23. Upon hearing the learned counsel for the parties at length, we dismiss--ed Civil Appeal No. 3-K of 1986 and allowed Civil Appeal No. 10-K of 1986 by a short order, which runs as under :- "For the reasons to be recorded later, Civil Appeal No. 3-K of 1986 is dismissed, but with no order as to costs, and Civil Appeal No. 10-K of 1986 is allowed, with the result that the decision of the Election Tribunal in Election Petition No. 14 of 1985 is modified to the extent that the direction for holding fresh election, as a result of the election having been declared void as a whole, is set aside; and only the election of the returned candidate Mrs. Monica Kamran Dost is declared to be void; and, further that the appellant in this appeal is declared to have been duly elected for the single seat of the Provincial Assembly of Sind reserved for a non. Muslim woman."