ABDUL KARIM KHAN KUNDI, J.--This writ petition arises in the background of facts that in election of the Mayor and Deputy Mayor of Municipal Corporation, Peshawar held on 16-3-1988 under Mr. Khalid Aziz, Commissioner Peshawar Division, the Presiding Officer, Arbab Muhammad Tariq the petitioner won the election of Mayor as against Agha Syed Ali Shah respondent No.4 respectively securing 22/21 votes and he was accordingly notified as Mayor, Municipal Corporation, Peshawar.
Agha Syed Ali Shah respondent No.4 filed an election petition before Qazi Amanullah Khan, Additional Secretary, Local Government N.W.F.P, Peshawar, respondent No.1 against the election of the petitioner as Mayor mainly on grounds that some 2/3 alleged invalid votes were counted in favour of the petitioner and that the Presiding Officer had unnecessarily accompanied the female voters to the polling booth, so as to influence them in casting their votes in favour of the petitioner.
The Alcgations as above were denied and the learned Election Tribunal framed the following issues:- "Issue No.1. Whether invalid votes have been courted in favour of the respondent. O.P.P.
Issue No.2Whether the two lady Councillors were accompanied by the Presiding Officer at the time of affixing the mark on the ballot paper and casting their votes and thus the secrecy of the ballot was violated. O.P.P.
Issue No.3.Whether the election of the respondent is void as a whole due to failure of the Presiding Officer to comply with the provisions of the Ordinance and Rules. O.P.P.
Issue No.4. Whether the election of respondent to the office of Mayor, Municipal Corporation, Peshawar, was secured by illegal means and corrupt practices."
2. Afterwards he called for list of witnesses and proceeded to record the evidence of respondent No.4 in the statements of Mr. Laiqat Khan, Administrator, Municipal Corporation, Peshawar, Begum Tahira Bukhari, a Councillor, Khalid Aziz Commissioner Peshawar Division, the Presiding Officer and his own statement.
3. Petitioner examined Haji Ghulam Ali and Muhammad Jan Councillors as his witnesses and also recorded his statement in protest, since his application for summoning further witnesses was rejected by the Tribunal. Petitioner and his counsel had alsc somehow abstained from the proceedings and ex parte arguments of respondent No. 4 both in writing and oral were heard. In the light of the evidence on record and ex parte arguments the Election Tribunal determined issue No. 2, finding reproduced below:-- "In this connection the evidence produced by the petitioner is not free of contradictions and the allegation that the secrecy of the ballot was violated has not been proved beyond doubt. The issue is, therefore, decided accordingly."
Issues Nos. 1, 3 and 4 were jointly discussed and it was held that the prescribed mark was the cross multiplication and that the two ballot-papers affixed to plus cross mark were invalid and after excluding the said two ballot-papers as cast in favour of the petitioner, the respondent was found having secured 21 valid votes as against 20 valid votes of the petitioner. He had accordingly decided the issues in favour of respondent No. 4 and on acceptance of the election petition the election of Arbab Muhammad Tariq the petitioner as Mayor was declared void and in his stead Agha Syed Ali Shah was declared as duly elected to the office of Mayor, Municipal Corporation, Peshawar.
4. Arbab Muhammad Tariq, petitioner challenged the above orders of the Tribunal on numerous grounds inter alia that there did not exist grounds for declaring the election of the petitioner as void and instead to declare respondent No. 4 a returned candidate as elected, since no corrupt or illegal practice on the part of the petitioner was proved before the Tribunal nor there has been any failure on the part of any person in compliance with the provisions of the Ordinance or Rules likely to have materially affected the result of the election.
5. Respondent No. 4 filed his written statement, controverted the allegations and claimed that the Election Tribunal had rightly and properly declared petitioner's election as void and has correctly declared the respondent to have been lawfully elected as Mayor, Municipal Corporation, Peshawar.
6. We called for the record of the Election Tribunal along the sealed envelope containing the ballot- papers from the Treasury. We heard the learned counsel for the parties at great length. On the one hand reference was made to section 3(a)(7)(27)(37) and (48) of the N.W.F.P. Local Government Ordinance, 1979 (hereinafter referred to as Ordinance) which provisions respectively pertain to the definition of "Chairman" to mean the Chairman of a Local Council constituted under the Ordinance and to include Mayor Municipal Corporation; "Local Council" to mean a Local Council constituted under the Ordinance and to include a District Council, a Municipal Corporation etc; "Prescribed" to mean prescribed by Rules and "Rules" to mean Rules made under the Ordinance.
Further reference was made to section 23(3) of the Ordinance whereunder it is provided that a Presiding Officer shall conduct the poll in accordance with the provisions of this Ordinance and the Rules. Section 39-F was referred which provides for grounds for declaring election of returned candidate to be Herein grounds (C) and (D) being relevant stating if the election of the returned candidate has been procured or induced by any corrupt or illegal practice or if any corrupt or illegal practice has been committed by the returned candidate or his Election Agent or by any other person with the connivance of the returned candidate. Section 39-H was referred which provides for grounds for declaring election as a whole void in case the result of the election has been materially affected on account of the failure of any person to comply with the provisions of the Ordinance or the Rules. Further reference was made to the N.W.F.P. Local Councils (Election of Chairman and Vice-Chairman) Rules, 1979 providing in Rule 6 (3) that the Presiding Officer shall issue a ballot paper in the form to each member who shall proceed to the compartment and mark the ballot paper with a cross against the name of the candidate of his choice and thereafter drop the ballot-paper in the ballot-box and if a member cannot read or write, he may request the Presiding Officer to assist him in the marking of the ballot-paper. In the context reference was also made to the Notification dated 13-72-1987 EX.PW.1/1 issued by the Provincial Election Authority which was relied by the Election Tribunal in declaring the two votes with alleged plus mark as invalid since the said Notification prescribed the cross mark in the shape and form of multiplication and not addition. The said Notification was issued in the exercise of the powers conferred by Rule 55 read with Rule 27 of the N.W.F.P. Local Councils, (Election) Rules, 1979 and in para. 4 it provides that every elector will be provided with a ballot-paper who will go to a screened compartment and will place a mark of cross (x) in the place provided for the candidate of his or her choice. It was argued that the Ordinance and the Rules did not specify the mark "cross" as multiplication excluding the "cross" plus. Besides the very Notification dated 13-12-1987 was issued by the Chairman Provincial Election Authority in exercise of the powers conferred on him by Rule 27 read with Rule 55 of the N.W.F.P. Local Councils Election Rules 1979 respectively vesting a power in the Provincial Election Authority to prescribe the form of the ballot-paper and to issue directions for doing of certain things in certain manner while on the other hand the N-M.F.P. Local Councils (Election of Chairman and Vice-Chairman) Rules, 1979 were independent and different in prescribing the form of the ball to --paper as appended to the Rules and not as to be supplied by the Authority under Rule 27 of the N.-W.F.P. Local Councils Election Rules. In the context reference was also made to the explanation of sub-rule (4) of Rule 8 of N.W.F.P. Local Councils (Election of Chairman and Vice- Chairman) Rules, 1979, defining the material irregularity to mean non-compliance with any provision of the Ordinance or those Rules. Accordingly it was canvassed that the instructions contained in the Notification dated 13-12-1987, EX.P.W.1/1 were neither applicable to the election of Mayor nor those instructions were to enjoy status at par with the Ordinance or the Rules that non- compliance thereof was to make it a case of material irregularity likely to affect the result of the election.
7.On the other hand reference was made to section 19 of the Ordinance providing for the appointment of an Election Authority by the Province, Government for conducting elections to the Local Councils and further obliging the Elcction Authority to organise and conduct the election and to make such arrangements as are necessary for conducting the election honestly, justly, fairly and in accordance with law and that it has been vested with power to issue such directions or orders as may be necessary for the performance of its functions and duties. It was argued that the Election Authority entrusted with the duty of election to Local Councils had the powers to issue necessary general directions or orders as contained in the Notification which shall also be applicable to the election of the Chairman and Vice-Chairman of Local Councils. It was, however, found that the N.- W.F.P. Local Councils (Election of Chairman and Vice--Chairman) Rules, 1979 were wholesome and independent of the N.-W.F.P. Local Councils Election Rules and the Election Authority has not been given any role in the said Rules to issue any instructions or directions in the conduct of said election. Further under section 21 of the Ordinance the Election Authority has been vested with a power to appoint Returning/Assistant Returning Officer for each constituency for the purpose of election while under section 23 the Returning Officer shall appoint the Presiding Officer/Assistant Returning Officer and Polling Officer for his assistance with the approval of the Election Authority.
However, under the N.W.F.P. Local Councils (Election of Chairman and Vice---Chairman) Rules, 1979 the Presiding Officer is the outgoing Chairman of the Local Council concerned or such Officer as appointed by the Government in this behalf and again the Presiding Officer has been authorised to declare the result against whose decision a remedy has been provided by election petition before the Tribunal in the prescribed persons of Additional Commissioner or Deputy Commissioner.
8. It thus comes to that the Notification dated 13-12-1987 EX.P.W.1/1 issued by the Election Authority in exercise of the powers under the N.W.F.P. Local Councils Election Rules, 1979 is not relevant and applicable to the election of Mayor and Deputy Mayor Municipal Corporation Peshawar. Further it cannot be treated at par with the Ordinance and the Rules that failure of any person to comply therewith could be a ground for declaring the election as a whole void when the result of the election has been materially affected thereby. Not that, but A the relevancy of the Notification containing the instructions also stands excluded from consideration since the Presiding Officer was himself not in the knowledge and notice of the Notification in order to further bring it in the notice and knowledge of the voters and consequently to possibly declare the ballot-papers invalid as marked with cross i-2 plus shape instead of multiplication shape.
9. The ordinary dictionary meanings of "cross" are a mark formed by two parts or lines transverse to each other with or without elaboration. The two famous shapes of cross are plus and multiplication. The plus shape is a symbol of the Christian religion or the crusades. Besides, on the opening of the envelope it was found that the two disputed ballot-papers carried cross mark nearer to plus shape if the paper is poised 90 degree straight but if the paper is looked at from a side the same mark will assume the shape of multiplication. Giving a benefit to the voter being nervous and worried at the time of casting his/her vote and also if suppose the ballot-paper is placed before him in slanting position and he affixes cross mark in multiplication shape then the same mark shall appear cross-mark in plus shape or nearer to the plus shape when the ballot- paper is looked at in a poise of 90 degree straight. Law on the point is settled that if the ballot- paper clearly indicates the intention of the voter in casting his vote, and there is no possibility of any doubt or dispute as to the person in whose favour the mark have been made on the ballot- paper, such a vote should not be wasted as invalid, rather, discretion should be used in favour of the validity of the vote in preference to the invalidation of the vote in case of doubt. For all this the act of the Election Tribunal to declare the two votes cast in favour of the petitioner as invalid appears to be arbitrary and illegal, apt to be declared without lawful authority and to be of no legal effect.
10. During the course of arguments learned counsel for respondent No.4 drew our attention to the finding of the Tribunal on issue No.2 as earlier reproduced and contended that the said finding is not based on the discussion of evidence on record, and in this context he also read the evidence recorded by the Tribunal. He contended that the subject issue could be possibly decided otherwise since violation of the secrecy of ballot stood proved on record as the Presiding Officer had unnecessarily accompanied the lady Councillors to the polling booth and had allegedly pressurised the lady voters in casting their votes. There has not been taken any such objection to the finding of the issue in the written statement filed by respondent No.4 in the writ petition. The evidence on record also speaks that no such objection was raised by respondent No.4 or his agent or for that matter any other Councillor or even the lady Councillors themselves to accompaniment by the Presiding Officer to the Polling booth at that time and also at the count of the poll. On the issue the evidence on record in the statements of Laiq Khan Administrator P.W.1, Khalid Aziz Presiding Officer P.W.4, Haji Ghulam Ali Councillor D.W.1, Mohammad Jan Councillor D.W. 2 and Arbab Muhmmmad Tariq candidate D.W.3 reported that the Presiding Officer accompanied the lady Councillors to the polling booth on their request. They had stated that the Presiding Officer, after explaining the method of voting to the lady Councillors, had returned to his chair and that the lady voters had put marks on their ballot-papers themselves. Laiq Khan further elaborated that the Presiding Officer accompanied the lady Councillors on their request without hesitation or reluctance to the booth where they were supposed to cross the ballot-papers. He stated that in his view the Presiding Officer had done a right thing in accompanying the ladies to the booth. Begum Tahira Bukhari lady Councillor P.W.2 stated that she had not requested the Presiding Officer to accompany her to the booth but that he had still followed her and was present in the booth at the time of her marking the ballot-paper. She did not say if the Presiding Officer had pressurised her in marking the ballot-paper in favour of either of the candidates. The other lady Councillor Mrs. Mahmooda Yasrab was not produced before the Tribunal by either party in support or rebuttal.
Agha Syed Ali Shah respondent No.4 examined as P.W. 3 stated that the lady Councillors had not requested the Presiding Officer for assistance but that he on his own accompanied the lady Councillors to the polling booth. He admitted that he and his Councillors were present at the time in the Hall but did not raise objection to the Presiding Officer's following the lady Councillors into the polling both. 1n face of the evidence as above the finding of the learned Election Tribunal on issue No.2 cannot be held flimsy, perverse, arbitrary or suffering from any legal infirmity. This Court sitting in writ jurisdiction is also conscious of its limitation that it cannot substitute its own finding on point of fact for that of the Election Tribunal vested with the jurisdiction to decide it one way or the other moreso, in the case when the point in issue has not been raised by respondent No.4 at the time of poll, count and last but not least in the written statement filed by him in the writ petition. <p.m></p.m>