SHAIKH ABDUR RAZZAQ, J.--- Instant writ petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in dated 30.7.2000 passed by the Pakistan Bar Council/respondent No. 1 dismissing the appeal filed against the order dated 24.4.2000 of the Executive Committee, Punjab Bar Council whereby Election Petition filed by respondent No. 3 has been accepted.
2. Briefly stated the facts are that on 15.1.2000 election of Bar Association, Ahmadpur East was held under the chairmanship of respondent No. 4 for the seat of General Secretary for which there were three candidates including the present petitioner as well as Mr. M. Azwar Khan Khakwani and Mian Naveed Ayaz respondents Nos. 3 and 5. As per result respondent No. 5 got 62 votes whereas respondent No. 3 secured 69 votes while the petitioner bagged 70 votes. Consequently, the petitioner was declared a winning candidate. The petitioner, accordingly, took oath
3. Arguments have been heard and record perused.
4. Learned counsel for the petitioner has reiterated his contentions raised in the writ petition. While supplementing his contentions he submitted that the order passed by the Chairman, Executive Committee, Punjab Bar Council, Lahore dated 24.4.2000 is not sustainable as it violates the provisions of Rule 60 of Punjab Rules of Business of Bar Association/Memorandum of Association. While elaborating his contention he submitted that as per Rule 60 ibid each voter is required to put a cross mark (X) for his choice of candidate for each office and if any ballot paper does not contain the requisite cross-mark (X) that vote will be considered as invalid and would not be counted in favour of that candidate. He argued that while passing order dated 24.4.2000 respondent No. 2 has counted a vote which did not contain cross-mark (X) but it only contained a tick mark. He thus argued that by counting ballot paper containing tick mark in favour, of respondent No. 3 jurisdiction vested in respondent No 2 has not been exercised correctly. He further contended that although it is a question of fact, yet it can be gone into by the High Court in the exercise of its Constitutional jurisdiction and placed reliance upon M.Y. Khan Vs. M.M. Aslam and 2 others (1974 SCMR 196) and Rashid Akhtar and others Vs. The State through Minister Consolidation Department and 16 others (1989 MLD 4496). He further contended that as Rule 60 ibid requires that each voter has to cross mark the ballot paper so if that procedure has not been adopted then no other procedure could be adopted as when law requires a thing to be done in a particular manner then it ought to be done in that manner and all other modes of doing would stand excluded and placed reliance upon Muhammad Saleem Chotia, Advocate Vs. Zafar lqbal Awaisi, Advocate, Bahawalpur and 4 others (PLD 1999 Lahore 446). He further argued that respondent No. 1 has passed order dated 30.7.2000 whereby he has divided the remaining tenure of Secretaryship in equal manner between the present petitioner and respondent No. 3 which power never vested in it and as such order ,dated 30.7.2000 suffers from patent illegality. While summing up his submissions he submitted that as the petitioner was originally declared as winning candidate so the orders dated 24.4.2000 and 30.7.2000 be set aside and he be declared a winning candidate, for the post of General Secretaryship of Bar Association, Ahmadpur East.
5. Conversely, the contentions advanced by the learned counsel for the petitioner-have been controverted and repudiated, It is submitted that although as a result of initial counting the petitioner was declared a winning candidate, yet as a result of appeal filed by respondent No. 3 it was found that a vote had wrongly been excluded from counting and as such the said vote was counted in favour of respondent No. 3. Consequently, both the petitioner and respondent No. 3 were found to obtain 70 votes each. He further argued that no doubt Rule 60 ibid requires a voter to cross-mark (X) a candidate of his own choice but it does not contain any penal provision. As such the provision of Rule 60 ibid will not be considered as mandatory and consequently non- compliance of said Rules will not entail any penal consequence. He further argued that cross- marking of ballot paper is meant for showing the intention of a voter in favour of a certain candidate and would not invalidate the vote as the intention of voter was clear .And has placed reliance on Sahibzada Abdul Latif Vs. Sardar Khan and others (1996 SCMR 1496). The mere fact that a voter has not put cross-mark against the name of one candidate and has simply tick-marked the same does not mean that the said vote be considered as an invalid vote. He thus argued that it was under these circumstances that respondent No. 2 included a vote in favour of respondent No. 3 which had been excluded by respondent No. 4 who conducted the election. He further argued that decision by respondent No. 2 dividing the remaining tenure between the petitioner and respondent No. 3 has been passed so both the candidates, who had secured equal number of votes, be given a chance to serve the Bar Association to the best of their calibre and capacity. He further submitted that it was admitted by the petitioner before respondent No. 2 that he and respondent No. 3 had secured equal number of votes i.e. 70 votes each and it was on account of some mala fide on the part of respondent No. 4 that respondent No. 3 was declared to have obtained 69 votes. Learned counsel for the respondent has also placed reliance on Anwar Hussain Vs. The Agricultural Development Bank of Pakistan and others (1992 SCMR 1112) and University of the Punjab, Lahore and 2 others Vs. Ch. Sardar A.I (1992 SCMR 1093) in support of his contentions.
6. The only point which requires determination in this writ petition is that if respondent No. 3 was justified in counting a ballot paper in favour of respondent No. 3 which contained a lick mark instead of cross-mark as contemplated and stipulated by Rule 60 ibid. The main stress of the learned counsel for the petitioner is that as Rule 60 ibid requires a voter to put cross-mark against a candidate of his own choice, so if any voter has not put cross-mark against a candidate of his own choice, his ballot paper will become invalid and .Would not be counted in favour of that candidate.
7. There is no doubt that as per Rule 60 ibid it is required that every person exercising his right of vote shall have put a cross-mark against a candidate of his own choice, but this rule does not contain any penal provision. It is thus clear that if a voter does not put cross-mark against a candidate of his own choice but simply puts a tick mark against the name of his favourite candidate, this will not make the ballot paper invalid. By putting a cross-mark or tick mark a voter signifies his intention in favour of his candidate. It is the intention of the voter which is to be looked into and taken into consideration while judging the validity or invalidity of a ballot paper. The mere fact that Rule 60 ibid requires a cross-mark to be made against the name of one's favourite candidate does not mean that if any voter has put a tick-mark instead of cross-mark, that will invalidate the vote. To put such restricted interpretation upon Rule 60 ibid will create difficulties and will not be in the interest of justice. It is under these circumstances that respondent No: 2 while deciding election petition filed by respondent No. 3 has held that the said ballot paper was a valid one and as such counted the same in favour of respondent No. 3.
8. Now the position is that both the present petitioner as well as respondent No 3 are carrying 70 votes each in his bag. It is under these circumstances .That respondent No. 2 while accepting election petition vide order dated 24.4.2000 ordered that the remaining tenure shall be equally divided between the parties. This order of respondent No. 2 by all means is a fair and justified one and has rightly been .Upheld by respondent No. 1.
9. The upshot of the above discussion is that the orders passed by respondent No. 2 as well as respondent No. 1 do not . Suffer from any patent illegality invoking the Constitutional jurisdiction of this Court. Consequently, the writ petition fails and is hereby dismissed.