AMIR-UL-MULK MENGAL, J.--The petitioner and respondent No,4 were candidates to contest election of Chairman of Union Council, Proam District Panjgoor of Mekran Division and the said election was held on 18-6-1992.
2. Sixteen members had to elect the Chairman. Eight votes were cast in favour of petitioner whereas respondent No,4 got three votes. However five votes were rejected on the ground that small pieces of papers were found annexed with the ballot papers indicating specified marks.
3. Respondent No,1 on 18-6-1992 issued a Notification No,8-330/92 (BLCEA) declaring the petitioner as returned Chairman of the Union Council Proam.
4. It appears that respondent No,4 was aggrieved of the rejection of five votes and moved an application to Returning Officer (respondent No,2) challenging the rejection of five votes contending that all the five votes were cast in his favour. Respondent No,2 after calling for the record and in presence of parties counted the votes and found the rejected votes as validly cast votes in favour of respondent No,4. He also observed that small pieces of papers were found in the ballot box with ballot papers.
5. As the petitioner and respondent No,4 both had equal number of votes and there was a tie, therefore, as per rules the Chairman had to be elected through drawing a lot. The petitioner had challenged the order passed by respondent No,2 in this Constitutional petition.
6. Heard Mr. SAM. Quadri Advocate for petitioner. Respondent No,2 appeared in person and Mr.MA.
Chishti for respondent No,4. We have also heard learned Advocate-General.
7. It is pertinent to point out that respondent No,2 had brought along with him sealed envelopes containing ballot papers. At the request of counsel for the parties, sealed envelopes were opened in the Court in presence of the counsel for the parties and learned Advocate-General. It was observed that the rejected votes were cast in favour of respondent No,4 but each ballot paper had a piece of paper containing words like "diamond, green, notice, motor etc.". After examining the same it were again ordered to be sealed and returned to the Collector (respondent No,2).
8. Mr. SA.M. Quadri vehemently urged that Presiding Officer rejected five votes immediately after opening the ballot box upon finding that these votes contained paper slips with specified indication which ex facie violated the secrecy of the ballot. According, to him counting of rejected votes by respondent No,2 was totally illegal on the admitted facts and thus serious prejudice has been caused to the petitioner. He urged with considerable emphasis that the validity of the result was final and could not be reopened.
9. Mr. MA. Chishti on the other hand, stated that five votes which were rejected were in favour of respondent No,4. Ground for rejection was that small pieces of paper were annexed with the ballot paper. Learned counsel argued that although as per Balochistan Local Government (Election)
Rules, 1983 the elections of Local Councils are to be conducted through secret ballot but there are separate Rules for election of the Chairman known as the Balochistan Local Councils (Election of Chairman) Rules, 1979 (hereinafter referred to as the "Rules" which contains no provision to that effect. He also contested the petition on merits.
10. The moot question requiring consideration would be whether relevant law and Rules provide conduct of election of the Chairman through secret ballot or not It is so because undoubtedly foreign objects like pieces of paper with specified marks were found from the ballot box which were annexed by the Presiding Officer with the concerned ballot papers. The question arises whether this amounts to flouting of secrecy of the ballot thus votes could not be counted in favour of respondent No,4?
11. Before resolving the real controversy we would like to observe that it is an admitted position that some pieces of papers containing writings were found along with the ballot papers by the Presiding Officer and during hearing of the appeal after opening boxes Returning Officer also noted the same. Same were also seen by us in presence of counsel for the parties after desealing of the envelopes.
12. We now come directly to the question whether under the Rules election for the Chairman of Local Council is conducted through secret ballots or otherwise.
13. In order to arrive at a just conclusion would be necessary to briefly survey the relevant law pertaining to the election of Local Councils. First of all we see relevant provisions in the Balochistan Local Government Ordinance, 1980 (hereinafter referred to as the "Ordinance"). Chapter-V of the Ordinance relates to elections and relative matters. Section 16 is pertinent which is reproduced hereinblow:-- "16 For every Local Council there shall be a Chairman who shall be elected in the prescribed manner; provided that the Chairman of Municipal Corporation may be designated as Mayor."
So also section 17 which provides provision for election of members of the Local Councils is also reproduced for the sake of convenience:-- "17 Save as otherwise provided election of members of all Unions and District Councils, Municipal Corporations, Municipal Committees and Town Committees shall be held on the basis of adult franchise through secret ballot.
(2) Below the Union Councils/Municipal Committees there may be informal bodies at village level in the rural areas to be called village council or by any other appropriate name or all these bodies would be constituted on the basis of consensus of residents of the Village and Mohallah Committees in urban area and not through any formal elections. The procedure for obtaining such consensus shall be prescribed.
(3) The electoral unit may be multi-member or single member and in any multi-member electoral unit the candidates securing the highest number of votes shall be elected; and
(4) Every voter within an electoral unit shall have only one vote irrespective of number of members to be elected from the electoral unit provided that at an election to a Muslim or a non-Muslim seat in any electoral unit only such persons shall be entitled to vote as are enrolled on the electoral roll prepared on the principles of separate electorate for such area."
14. From bare perusal of section 16 it transpires that Chairman shall be elected in the "prescribed manner". The manner has been prescribed by the Government of Balochistan by the Balochistan Local Government (Election of Chairman) Rules, 1979. Rule 7 would be relevant which reads as under:-- "7. Poll.--If there are more candidates than one the issue shall be decided by conducting a poll provided that at least 2/3rd of the members elected for the Local Council concerned are present at the meeting.
(1) Votes for the office of the Chairman shall be cast by ballot."
15. Thus it is clear that the election of the Chairman for Local Councils in the Province of Balochistan shall be through ballots and not by raising of hands. We have already reproduced sections 16 and 17 of the Ordinance. In section 17 it was clearly stated that the elections of the local council shall be held on the basis of adult franchise through "secret ballot" but the election of the Chairmen of Local Councils shall be in the prescribed A manner which is described in Rule 7 i,e, by ballot. The legislature thus intentionally avoided to use the word "secret ballot" and instead only word "ballot" was used.
16. Lengthy arguments were advanced by the counsel for the parties for interpretation of words "ballot" and "secret ballot". Mr. SA.M. Quadri learned counsel for petitioner urged that word "ballot" contains the concept of secrecy. According to learned counsel &Ian election is conducted not by raising of hands or by any mode other than the ballot it could be argued that secrecy was not necessary.. But if an election is held through ballot then the concept of secrecy shall be intrinsic and inherent. According to the learned counsel an election held through ballot is always through secret ballot as commonly no other interpretation can be attached or given to it. In order to resolve the issue we consulted Black's Law Dictionary to find out the literal meaning of word "ballot". "Ballot" is derived from ballotta, a round bullet used for casting a vote. Process or means of voting usually in secret by written or printed tickets or slips of papers or voting machine. Piece of paper or levers on voting machine on which the voter gives expression to his choice".
17. Of course, this definition, partially supports the contention raised by learned counsel for petitioner but in presence of law and rules relating to elections the intention of the legislature has to be seen in the light of provisions of the relevant enactment or statute or rules made thereunder.
18. Admittedly the legislature expressly mentioned that the election of local councils shall be held on the basis of adult franchise and through secret ballot but the legislature deliberately omitted to lay down that the election of Chairman of Local Council shall be through secret ballot but it chose to use the word "in the prescribed manner" in the Ordinance. While framing Rules the legislature intentionally used the word "ballot" instead of "secret ballot". In the ordinary course, the. Word "secret ballot" could be used in the Rules but it appears to us that the omission on part of the legislature to use the word "secret ballot" is intentional and deliberate. In other words the legislature chose that election of chairman of local council shall be through ballot only. Even 'the definition of word "ballot" in the Black's law Dictionary "is process of voting usually in secret". So it is not a general rule that it always be secret. It would be "in secret" only if it is so described under law or rules made thereunder. Thus we do not find much force in the contention of Mr. SA.M. Quadri that the concept of secrecy is intrinsic in the word ballot or that it is an integral part of the word ballot. It may be usually so but not necessarily so.
19. It may be noted that whenever election is held through a secret ballot the legislature expressly states so. Article 226 of the Constitution of Islamic Republic of Pakistan lays down that all elections under the Constitution shall be by a secret ballot. Thus elections under the Constitution have to be held by secret ballot. Similarly in the Ordinance section 17 prescribes that the election of local councils shall be held on the basis of adult franchise through secret ballot. Likewise Rule 40 (4) (b) of Balochistan Local Councils (Election) Rules, 1983 also provides that the Presiding Officer after opening the ballot box shall exclude the invalid ballot papers that is to say that ballot paper on which anything is marked or written by the voter by which he can be identified. But as far as election of Chairman of the Local Council is concerned neither the law nor the Rules so prescribe.
20. It is now well-settled principle of construction that the Courts should adhere to the plain meaning of the words used in a statute. Generally nothing should be added to the plain meaning of the words of a statute if it is capable of depicting the intention of the legislature. Thus we cannot add "secret" to the word "ballot".
21. We can approach the issue yet from another angle. There are no provisions express or implied in the rules to confer upon the Presiding Officer power to reject any ballot paper on the ground that secrecy of ballot has been violated. In absence of any provision under the rules regarding consequences flowing from non-observance of secrecy of ballot intention of the legislature is further manifested that the Election of the Chairman of a Local Council shall have to be through ballot even without any condition of maintaining its secrecy. Thus the Presiding Officer had no lawful authority to reject a ballot paper on the ground that secrecy was not kept while casting the vote.
Besides, the Presiding Officer who normally does not exercise judicial powers can act only within the encompass of the rules. He is debarred to exercise any powers not expressly conferred upon him as mentioned hereinbefore. There is no provision under the rules bestowing power upon him to reject a ballot paper on account of not maintaining the secrecy, therefore, he cannot ipso facto assume such powers.
From the above discussion we have come to the conclusion that the action of the Presiding Officer excluding the votes cast in favour of 4th respondent for the sole reason that there were some pieces of papers found with the ballot paper was without lawful authority and that Returning Officer rightly counted the same in favour of 4th respondent. Thus seeing no merit in this petition we dismiss the same. However we leave the parties to bear their own costs.