' The petitioner Barkat All and the 3rd respondent Rehmat All were andidates for election to Ward No,3, Union Council, Sehjra, Tehsil and District Kasur in the election held in December, 1991. After the close of the poll, the petitioner Barkat All was found to have secured 306 valid votes as gainst 292 valid votes secured by the 3rd. respondent Rehmat Ali and was declared elected. The Presiding Officer had rejected 73 votes as invalid votes. tehmat Ali respondent challenged the petitioner's election by means of an lection petition under section 24 of the Punjab Local Government Ordinance, 979. Before the Election Tribunal the only ground on which the election of the petitioner was sought to be set aside was that the 73 votes had been wrongly rejected and that most of them had been marked in favour of the espondent Rehmat Ali. The Election Tribunal was, therefore, invited to etermine the validity of the rejection of those 73 votes and to decide the lection petition after recounting the votes in accordance with that etermination. The Election Tribunal accepted that invitation, determined the alidity of the rejected votes and as a result of the recounting found that 32 alid votes marked in favour of the respondent Rehmat Ali had been wrongly ejected; that 7 valid votes marked in favour of the petitioner Barkat Ali had een wrongly rejected and, therefore, the respondent had secured 324 valid rtes as against 313 valid votes secured by the petitioner Barkat Ali. Lccordingly the respondent was declared "to be successful candidate having 24 votes and the respondent No,1 (petitioner herein) is declared to be losing candidate having 313 votes".
2. By this petition under Article 199 of the Constitution, Barkat All petitioner seeks to have it declared that the order of the Election Tribunal is ithout lawful authority and is of no legal effect.
3. There were only two candidates at the election, namely, Barkat Ali petitioner and Rehmat Ali respondent; the election symbol of Barkat Ali petitioner was Chair and the election symbol of Rehmat Ali respondent was mga. While determining the validity of the 73 rejected votes, the Election tribunal found that 7 ballot-papers were found marked with the rubber stamp the space containing the symbol Chair and the adjoining space of a symbol longing to neither of the candidates; 23 ballot-papers had been marked in space of the symbol of the Tonga as also in the adjoining space of the nbol of neither of the candidates; 7 ballot-papers had been marked only in space of Rehmat Ali's symbol Tonga and 2 ballot-papers had been marked the space of Rehmat Ali's symbol as also in the adjoining space of neither of candidates. Dealing with these ballot- papers the Election Tribunal served:-- " .... it is found that the Presiding Officer while counting the votes did not appreciate Rule 40(4) and while separating the votes falling in the category under Rule 40(4)(b) (I to V) from the other votes, he rejected the votes which bore the seals unambiguously in favour of the petitioner on the 7 votes and on 2 votes in which the stamp was affixed on the symbol of petitioner alongwith the adjacent symbol and the votes bearing the stamps for either of the contesting candidates alongwith the affixing of mark or the reflection of the stamp over some irrelevant symbol or other space on the vote. The votes which had the stamp on the symbol of either of the contesting candidates without having any other sign of the stamp had to be counted in favour of the candidate and in view of the clear marking of stamp on the symbol of the either of the candidates though the mark of stamp is traceable on some other irrelevant space on the vote too had to be counted in favour of the candidate in view of settled principle that presqmption has to be drawn that voters had the intention to cast the votes and not to waste it as is discussed in the case-law cited as 1987 SCM R 1987. So I find that 23 votes bearing the stamp on the symbol of petitioner alongwith the mark or reflection of the stamp on the irrelevant space or symbol are fit to be counted in favour of the petitioner and 7 votes which had clear stamp on the symbol of the petitioner and the 2 votes which had the mark on the symbol of petitioner alongwith the adjacent symbol had to be counted for the petitioner whereas the 7 votes which had clear mark of stamp on the symbol of respondent alongwith the mark or reflection of the stamp on the irrelevant space or symbol are fit to be counted in favour of the respondent."
4. The correctness of this view turns upon the provisions of Rule 40 of the Punjab Local Councils (Election) Rules, 1979 (to be referred to as the Election Rules). Sub-rule (1) of that rule requires the Presiding Officer, immediately after the close of the poll, to proceed with the count of the votes.
Sub-rule (2) thereof provides that the Presiding Officer shall give the contesting candidates reasonable facility of observing the count and give them such information with respect thereto as can be given consistently with the orderly conduct of the count and the discharge of his duties in connection therewith. Sub-rule (3) of rule 40 says that no person other than the Presiding Officer, the Polling Officer or any other person on duty in connection with the poll, the contesting candidates, their election agents and the polling agents shall be present at the count. Rule 40, sub- rule (4) requires the Presiding Officer -- (a) to open the used ballot boxes and count the entire lot of ballot-papers taken out therefrom; (b) to separate the ballot-papers which are unambiguously marked in favour of any contesting candidate from those ... (iv) which do not bear the mark with a rubber stamp provided for the purpose by the Presiding Officer indicating the contesting candidate for whom the voter had voted; or (v) which though bear the rubber stamp mark but from which it is not clear for whom the voter has voted. The explanation to clause (v) reads: "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 mark of the rubber stamp provided for the purpose by the Presiding Officer appears clearly within the space containing the symbol of that candidate but, where the aforesaid mark is divided equally between two such spaces, the ballot paper shall be deemed not to show clearly for whom the voter has voted."
5. Rule 40, sub-rule (4) of the Election Rules has a long legislative history in the Election Laws: it suffices to say that its corresponding provision in the Representation of the People (Conduct of Election) Rules, 1977 framed under the Representation of the People Act, 1976 is rule 23. That rule fell for interpretation in Jamshed Ahmad Khan and 2 others v. The S.D.M./Assistant Commissioner, Garden, Sub-Division, Karachi and others PLD 1987 SC 213 and Dr. Sher Afghan v. Aamar Hayat Khan and 2 others 1987 SCM R 1987. In Jamshed Ahmad Khan's case the controversy as to the validity of votes recorded on the disputed ballot papers had arisen due to the fact that the prescribed mark on these was in the blank space included in the empty compartment printed opposite to the name and symbol of each successful party; the basic objection of the appellants before the Supreme Court was that according to the provisions of the Representation of the People Act and the rules "a voter was required to cast his vote strictly in accordance with the voting procedure by placing the prescribed mark in the space in which a candidate's name and symbol were printed and such ballot papers in which the prescribed mark was outside the compartment of the candidate on ballot paper, were all vitiated and were to be excluded from the count." In that connection reference was made to section 33 of the Representation of the People Act, 1976 which provided that on receiving the ballot paper, the elector should forthwith proceed to the place reserved for making the ballot paper; 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 after he has so marked the ballot paper, fold and insert it in the ballot box, as also to rule 17 of the Representation of the People (Conduct of Election) Rules, which provided for the manner of marking the ballot papers; it was held 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." In that connection it was observed:-- "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 making the ballot paper by itself, not being one of the grounds prescribed, cannot ipso facto furnish a ground for rejecting a ballot paper as invalid."
6. Dealing with subsection (4)(e) of section 38 of the Representation of the People Act, 1976 (which is the corresponding provision of rule 40, sub-rule (4) of the Election Rules); it was held: "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 sub-clause (iv) of clause (9) 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 papqr 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 making 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 law are framed to afford 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, 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."
7. It should be mentioned here that as in the proviso to clause (iv) of subsection (4) of section 38 of the Representation of the People Act, 1976, so in the explanation to clause (v) of sub-rule (4) of rule 40 of the Election Rules, the words "where the aforesaid mark is divided equally between two such spaces" leaves room for doubt as to whether the expression "between two such spaces" means the spaces between the symbols of two contesting candidates or also applies to cases in which the mark is divided equally between the space of the symbol of .a contesting candidate and the space of a symbol which does not belong to any of the contesting candidates. This ambiguity, it seems to me, has been resolved in Jamshed Ahmad Khan's case in favour of the view that the expression "between two such spaces" means between the spaces of the symbols of two contesting candidates. This is in my opinion clear from the following observation at page 225 of the report: "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."
' Thus in Jamshed Ahmad Khan's case 213 ballot papers which were cdunted in favour of Ghulam Hussain respondent therein although the mark was placed in them outside the space containing the name and symbol of Ghulam Hussain respondent and in Dr. Sher Afghan's case the prescribed mark had been affixed outside the reserved space for a candidate in the ballot paper and this it was held: "cannot ipso facto and without more constitute violation of secrecy", for marking the ballot paper was not essential mandate of law; and, therefore, the question of the validity or otherwise of the ballot paper would necessarily be determined by ascertaining the intention of the voter.
8. Learned counsel for the petitioner relied heavily upon Haji Rahim Bakhsh v. Senior Civil Judge/Election Tribunal, Toba Tek Singh and 2 others PLD 1988 Lah. 520 in which the facts were that Haji Rahim Bakhsh, petitioner, and Nehmat Ali Khan respondent had contested the election and the petitioner having secured 322 votes as against 300 votes secured by Nehmat Ali Khan respondent was declared elected. 37 votes were rejected votes. Nehmat Ali had challenged the election by means of an election petition. During the proceedings before the Election Tribunal, the parties agreed to the case being decided "on a recount of the votes and checking of the ballot papers".
The Election Tribunal found that out of the 37 rejected votes the petitioner was entitled to have 6 votes counted in his favour and the respondent was entitled to have 8 votes counted in his favour; out of the votes previously declared valid in favour of the petitioner, the Election Tribunal deducted 29 from the count of the petitioner. Accordingly the petitioner was held to have received 292 votes and the respondent was found to have received 310 votes. Accordingly the respondent was declared elected.
9. It should be mentioned here that the petitioner in that case had Umbrella as his election symbol and the respondent had Tonga as his election symbol. It was argued that out of the original 37 rejected ballot papers and the 29 ballot papers which were later declared invalid by the Election Tribunal, 23 ballot papers contained marks on the symbols of Umbrella and Chair and since there were only two contesting candidates, namely, the petitioner, who had the symbol Umbrella and the respondent who had the symbol Tonga the said 23 valid papers should be deemed to have been cast in favour of the petitioner for there was no contesting candidate having the symbol chair. On behalf of respondent it was contended that "where a voter has affixed two marks, instead of one, on a ballot paper, it must be presumed to mean that he wanted to vote both the contesting candidates, considering that there were only two contesting candidates in the field, and that since the ballot papers which bore marks both on the 'Umbrella' and the 'Chair', the marks on the chair must be deemed to have been given" to the respondent No,2 as his space contained the symbol of `Tonga', just above that bearing the `Chair'." Both the parties relied upon the observations of the Supreme Court in Dr. Sher Afghan's case. Rahim Bakhsh's case, it is noteworthy, was also a case under the Punjab Local Councils (Election) Rules, 1979 and the question turned, there, as here, upon the interpretation of the provisions of rule 40, sub-rule (4), clause (v) and its explanation. It was held: "Thus, where only one member is to be elected from an electoral unit, a voter has only one vote and if he places two marks on a ballot paper signifying his intent to vote for two persons, or to give a double vote to one of them, it is against the principle of 'one voter one vote.' However, in the case of a multimember electoral unit where a voter has to cast one or more votes and a voter affixes one or more marks in addition to the number of votes allotted to him, some difficulty may arise and the marks unambiguously put on the symbols of the contesting candidates may have to be counted in their favour However, in the instant case there were two contesting candidates It is, therefore, obvious that a voter primarily had to choose only one, if he really came to vote and not to waste it. He had to only affix one mark.
Whether he did it rightly or wrongly in the space provided for his particular candidate, is a different matter.
' However, amongst rustic villagers, there are some who out of intent or design, or ignorance or folly, might want to give their votes to both the candidates. In such a case, they would obviously put two marks, whether rightly or wrongly in the spaces attributable to both the candidates. Some may want to give two votes to their respective candidates, to enhance their success. In such a case they would also affix two marks, whether correctly or incorrectly in the spaces reserved for their respective candidates. In such cases it cannot be said that the intention of the voters was to vote for one particular candidate, as required by law. Muchless can any such inference be drawn by invalidating one of the marks, merely because it happens to fall in a space with a symbol which has not been allotted to any candidate. The rule stated in Sher Afghan's case applies to a case of a single member electoral unit where a voter has only one vote and he affixes only one mark on his ballot paper. We doubt whether the rule stated in Sher Afghan's case (supra) would apply to a case of a single member electoral unit where a voter who has only one vote affixes two three marks on his ballot paper."
' Then in the light of the rule laid down in Dr. Sher Afghan's case, the learned Judges considered the rejected votes; out of the 23 rejected votes one had a mark in the space reserved for the symbol Umbrella; this it was held showed that the voter wanted to vote for the writ petitioner. There was another ballot paper "with a mark on the Chair" which showed that the voter wanted to vote for the respondent, "whose space is just above, bearing the symbol of the Tonga." Out of the 29 ballot papers later declared invalid by the Election Tribunal, "2 ballot papers have marks on the 'Chair'.
They likewise go to respondent No,2". In short, it was held, "the 17 ballot papers having marks on both the 'Umbrella' and the 'Chair' do not show the clear intention of the voters to vote for one candidate, whether it be the petitioner or respondent No,2".
10. Thus the 17 ballot papers marked in the space reserved for the symbol Umbrella as also in the space reserved for the symbol. Chair were rejected on the ground that the symbol of Tonga was just above the symbol of Chair. This is what distinguishes that case from this case. For according to the rule laid sown in Dr. Sher Afghan's case, the space of the symbol Chair being immediately above that of the symbol Tonga the inference Was that the voter lad voted both for the candidate with the symbol Umbrella and the other candidate with the symbol Tonga. It must be held, therefore, that Rahim 3akhsh's case was decided on, and is authority for, its own facts. I should think, herefore, that the observations in Rahim Bakhsh's case: "We doubt whether he rule stated in Sher Afghan's case (supra) would apply to a case of single member electoral unit where a voter who has only one vote affixed two three marks on his ballot paper. The 17 ballot papers having marks on both he 'Umbrella' and the 'Chair', cannot be treated as valid votes given in favour of the petitioner" must be read in the context of the peculiar facts of that case.
11. For these reasons the petition is dismissed but the parties are left to bear their own costs.