' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 5-7- 1993 passed by a Division Bench of the High Court of Baluchistan in Constitution Petition No,410 of 1992, filed by the appellant against the order of the Commissioner/Appellate Authority. For Local Council Elections 1992, dismissing the appellant's appeal against the election of respondent No,1 as the Chairman, District Council, Musa Ichail, allowing the same to the extent of ordering re-election.
2. The brief facts are that the appellant and respondent No,1 contested for the post of Chairman, District Council, Musa Khail, hereinafter referred to as the District Council, on 18-6-1992. The appellant secured 7 votes, whereas respondent No,1 obtained 6 votes. It appears that the Presiding Officer declared appellant's one vote as invalid and thereafter drew a lot between the appellant and respondent No,1 in terms of sub-rule (5) of Rule 7 of the Baluchistan Local Councils (Election of Chairman) Rules', 1979, hereinafter referred to as the Rules, with the consent of the appellant in spite of respondent No,1 's opposition. The result of the drawing of the lot went in favor of respondent No,1, in consequence whereof, he was declared as elected. After that, the appellant filed an election petition before the Commissioner/Appellate Authority on the ground that his one vote was wrongly declared as invalid. The Tribunal in view of the judgment of this Court in the case of Jamshed Ahmad Khan and 2 others v. The 5.D.M./Assistant Commissioner, Garden Sub-Division, Karachi and others (PLD 1987 SC 213) found the appellant's contention having force but declined to grant any relief on account of the factum that the appellant had consented to the drawing of the lot by filing an affidavit. Against the above order, the appellant filed aforesaid Constitution petition in the High Court. The learned Judges of the Division Bench, white hearing the above C.P., sent for the ballot papers and found that one ballot paper counted in favour of respondent No,1 contained cross mark just on the middle of the two names and, therefore, the same could have been counted in favor of either of the two candidates, namely the appellant and respondent. Whereas in respect of the appellant's one vote, which was declared by the Presiding Officer as invalid, the learned Judges concluded as under:-- "Here the petitioner obtained 7 votes out of 13 votes and the respondent No,1 obtained 6 votes out of
13. One vote of each candidate was doubtful but Presiding Officer counted one doubtful vote in favor of the respondent although it could be counted in favour of either Alf the candidates. But at the same time the vote in favor of petitioner was not counted simply because instead of a cross- mark he had put a different mark. Therefore, in the circumstances the best course open was to order re-election of the Chairman."
' The learned Judges of the Division Bench also found that the appellant's consent to the drawing of the lot was of no consequence as sub-rule (5) of Rule 7 of the Rules itself provides drawing of the lot if there is a tie between two or more candidates who have obtained an equal number of votes.
They also recorded the following reason for the re-election:-- "Another reason for coming to the said conclusion is that the first respondent himself was interested in re-election in order to get a clear majority as was stated by him before the Commissioner. Besides this, one of the Members was absent and now he can exercise his vote which may prove decisive."
3. Thereupon, the appellant filed a petition for leave to appeal, which was granted to consider the question, whether the learned Judges were justified in ordering of re-election instead of declaring the appellant as elected after having concluded as above.
4. In support of the above appeal, Mr. Muhammad Munir Piracha, learned Advocate Supreme Court for the appellant, has vehemently contended that even if we were to ignore one vote which contained cross-mark on the middle of the two names and which was counted in favor of respondent No,1, the fact remains that the appellant had secured seven votes against six by respondent No'.1 as the appellant's one vote could not have been declared invalid merely on the ground that instead of placing cross-mark, the voter had placed some other mark. His further submission was that if the intention of the voter is manifest as to the candidate in whose favour he has cast his vote, the vote cannot be rejected on hyper technical grounds. To reinforce the above submission, he has referred to the following cases:--
(i) Imtiaz Ahmad v. Ghulam Ali and others (PLD 1963 SC 382);
(ii) The Presiding Officer v. Sadruddin Ansari and others (PLD 1967 SC 569);
(iii) Khan Shahzada v. Maulvi Fazal Rabi and 3 others (1983 SCM R 125); (iv) S. Sivaswa mi v. V.
Malaikannan and others (1984 PSC 648);
(v) Dr. Sher Afgan v. Aamar Hayat Khan and 2 others (1987 SCM R 1987) and
(vi) Jamshed Ahmad Khan and 2 others v. The S.D.M./Assistant Commissioner, Garden Sub- Division, Karachi and others (PLD 1987 SC 213).
5. The ratio decided of the above cases seems to be that in matters of election technicalities should not defeat the intention of the voter his right to franchise and even if a voter has placed cross-mark on a ballot-paper not precisely on dotted line against which name of candidate appeared but in-between respective dotted lines bearing names of rival candidate, the vote cannot be declared invalid if the intention of the voter is discernible from the fact that the cross- mark is more above the dotted line in favor of a particle candidate.
6. In the present case, there is no doubt that sub-rule (3) of Rule 7 of the Rules provides that a voter will place cross-mark on the ballot-paper against the name of the candidate for whom he wishes to vote, but placement of other mark than cross against the name of the candidate in whose favor the voter intended to cast his vote would not invalidate the vote as the intention of the voter is clear. In this regard, reference may be made to a judgment of a Division Bench of the High Court of Sindh in the case of Irshad Ahmed v. Shafi Muhammad and 5 others (1981 CLC 1332), in which Zaffar Hussain Mirza, J. (as his Lordship then was) has dilated upon this aspect as under:-- "The clear principle for the guidance of the Presiding Officers that emanates from the aforesaid instructions, to My mind, is that if the ballot-paper unambiguously reveals the attention of the elector cast his vote in favor of a particular candidate the presence of other marks will not render the vote invalid and the vote will be counted in favor of the candidate for whom the vote appears to have been cast. There have been several cases in the past where this principle has been adhered to in election cases. On page 134 of the book "The Law of Elections and Election Petitions in India" by Nanak Chand Pandit and Gyan Chand Mathur, Second Edition (1957) the Authors quoted from reported cases the following observations:- 'The Court ought to give effect to any mark on the face of the paper, which, in its opinion, clearly indicates the intention of the voter whether such marks are in the shape of a cross or a straight line or any other form, or whether made with pen and ink, pencil, or even an indentation made on the paper and, whether on the right or left hand of the candidate's name or elsewhere within his compartment of the voting paper.
' The mere fact of two crosses being placed ought not to vitiate the ballot paper, if there is no doubt as to the intention to vote and to vote emphatically for the one candidate' ."
' Rogers on Elections, Volume II, 20th Edition at page 104 observed that the provisions as to marking the ballot-papers are directory only, and not absolute, and if substantially obeyed are sufficient.
Referring to the case of Woodward v. Sorsons (1875 LR 10 CP), the Author observes:-- "In the latter case it was held that a ballot paper so marked as to show for whom the voter intended to vote ought to be counted, however, much the directions contained in the Ballot Act were contravened."
' Further it was observed with reference to Phillips v. Goff (1886) 17 QBD 805): "It was there held that. Ballot papers, though not marked in the prescribed manner, ought to be counted if it could be ascertained with reasonable certainty for whom the voter in each case intended to vote, how many votes he intended to give, and that he had not intended to give more votes than there were members to be elected.
' The Author also refers on page 101 to the case of N.E. Derry Shirt where a vote was marked with a strong black cross against one candidate and a faint cross against another, the Court held the vote good for the first-named candidate."
7. In our view, the legal proposition propounded as above seems to be correct. In the case in hand, even the learned Judges of the Division Bench of the High Court were of the view that the vote in question was wrongly excluded from counting in favor of the appellant. We are, therefore, of the view that the learned Judges of the Division Bench erred in ordering re-election instead: of declaring the appellant as elected. We would, therefore, allow the above appeal, set aside the judgments of the two Courts below and would hold that the one vote under reference was illegally excluded froing the count of the appellant.. In result, the appellant is declared as elected. There will be no order as to costs.