QAZI MUHAMMAD FAROOQ, J.---This appeal, by leave of the Court, is directed against the judgment, dated 22-8-2001 delivered by a Division Bench of the High Court of Balochistan in Writ Petition No,530 of 2001 arising from the order, dated 4-8-2001 of the Returning Officer whereby the private respondents Mir Khan Muhammad Khan Jamali and Mir Sikandar Khan Umrani were declared elected as Nazim and Naib-Nazim respectively of District Council Nasirabad.
2. Brief facts are that election to the offices of Nazim and Naib-Nazim of District Council Nasirabad was held on 2-8-2001. The total number of members of the electoral college in the Constituency was 949 and there were four panels of contestants including the panels headed by the petitioner Mir. Salim Khan Khosa and respondent No,3 Mir Khan Muhammad Khan Jamali. The votes cast in favour of the four panels of the candidates were as under:--
(i) Petitioner and Sikandar Sultan 416
(ii) Respondents Mir Muhammad Khan Jamali and Mir Sikandar Khan Umrani479
(iii) Munawar Ali Khan and Dr . Abid Sultan: 1
(iv) Mir Orangzeb Jamali and Shahnawaz Khan. 10
3. The petitioner being dissatisfied with the counting of votes moved an application before the Returning Officer for recounting of votes. The application was allowed and a recount as also an official count was conducted by the Returning Officer on 4-8-2001 in presence of the parties and their counsel. As a result of the recount 4 votes of respondents Nos.3 and 4 were declared invalid and the total number of votes received by them was reduced to 475. However, they were declared elected by the Returning Officer. The petitioner filed a writ petition in the High Court of Balochistan with the prayers that the order of the Returning Officer declaring respondents Nos.3 and 4 as returned candidates may be declared void and the Chief Election Commissioner be directed to hold a run of election between the petitioner and the returned candidates in accordance with law.
The election was challenged on the ground that the returned candidates were not entitled to be declared elected as they had failed to secure more than 50% of the votes from the electoral college of 949. The writ petition was dismissed on 22-8-2001. Thereafter, the petitioner filed a petition for leave to appeal.
4. Leave was granted to consider, inter alia, the contentions raised by the learned counsel for the petitioner that the Division Bench of High Court of Balochistan had not only accepted the viewpoint of the petitioner and rightly interpreted provisions of section 16(3) read with section 37 of Balochistan Local Government Election Ordinance, 2000, hereinafter referred to as the Ordinance, and rule 57 of the Balochistan Local Government Election Rules, 2000, hereinafter referred to as the Rules, but had also observed that respondents Nos.3 and 4 were required to obtain 476 votes to fulfil the condition of more than 50% of the votes from the electoral college, therefore, there was no reason to reject the writ petition and decline the relief prayed for.
5. Mr. Wasim Sajjad, Senior Advocate Supreme Court, learned counsel for the appellant argued that originally section 16(3) of the Ordinance envisaged election of the Zila Nazim and the Naib-Zila Nazim on the basis of majority of the total number of votes in the electoral college but the concept of majority was changed by an amendment made through the Balochistan Local Government Elections (Third Amendment) Ordinance, 2001 and the amended law provided that winning candidates must secure more than 50% of the total number of votes. The amending law brought in a conscious and deliberate change and it is a settled principle of interpretation of law that where an amendment is made it is assumed that the Legislature intended a change. A legislative enactment cannot be held to be an exercise in futility. The amended law clearly envisages that a winning candidate must secure more than 50% of the total votes of the members of the Union Councils in the District. He went on to argue that the amended law does not envisage half of a vote or, a fraction of a votes. One of the principles of interpretation is that law has to be interpreted in a practical and realistic manner. Based on that interpretation more than 50% of votes in this case would mean 476 votes. In this regard the learned counsel relied on the reasoning given by the learned Judges of the High Court although not agreeing with the result. He submitted that supposing the law would have said that a person must secure 50% of the votes to get elected, which in this case would mean 474.5 votes. Obviously it is an impossibility because a voter cannot be cut in half. Accordingly 50% votes would means 475 votes. More than 50% votes and 50% votes cannot be the same thing. Elucidating his point the learned counsel also referred to Article 95 of the Constitution of the Islamic of Pakistan 1973 which requires that at least 20% of the members of the National Assembly must support a votes of no confidence against the Prime Minister. The total number of vote in the National Assembly is 217 and 20% of that comes to 43.4. Although .4 is less than half and mathematically it should be brought down to 43 but in this context it cannot be brought down to 43 and has to be brought up to 44.
6. Khawaja Ahmed Tariq Rahim, Advocate Supreme Court, learned counsel for respondent No,3 referred to the unamended as well as the amended law and argued that section 16(2) of the Ordinance envisages obtaining of more than 50% of votes and this refers to the votes cast as well as the votes validly cast. He referred to pragraph 314 of the American Jurisprudence (Second Edition, Vol.26) to contend that in the context of votes validly cast the votes which have been spoiled or which have certain defects will be excluded from calculating the proportion of the majority. Alternatively even if 50% is taken of the total votes of the voters entitled to vote it would be 50% plus in terms of percentage. A corollary to this is that reading 50% plus one vote in section 16(3) of the Ordinance would be reading something in the statute which is not there. Total votes cast in this particular election were 935 out of which 34 votes were declared as rejected for one reason or the other. The valid votes were 901 out of which the appellants polled 415 votes and the respondent secured 475 votes. In either of the connotations the respondent has secured 50% plus valid votes. It was further submitted that the rationale behind the amendments of subsections (2) and (3) of section 16 of the Ordinance was to ensure that a panel out of three or four panels securing 30% or 35% of the total votes should not be declared elected. It was also argued that section 37 of the Balochistan Local Government Ordinance, 2001 had no relevance to the present case. It was introduced after the elections through an amendment in the Ordinance and deals exclusively with calculating percentage in respect of seats reserved for women, peasants and workers and minority communities. It was lastly contended that there is a need to reconcile subsections (2) and (3) of section 16 of the Ordinance and that subsection (2) may be held to the governing subsection which provides that a candidate while obtains more than 50% of the votes would be entitled to be declared elected.
7. Mr. Muhammad Aslam Chishti, Senior Advocate Supreme Court, learned counsel for respondent No,4. Argued that according to subsection (2) of section 16 of the Ordinance the Nazim and the Naib-Nazim of a District Government or a Town Government or a Tehsil Government securing as joint candidates more than 50% of votes shall be declared elected and it does not talk of 50% of the total members. The language employed clearly means that the percentage of 50% is to be worked out from the votes cast and not the total votes.
8. Mr. Wasim Sajjad, exercising his right of reply, submitted that the entire scheme of the law is that a person who gets elected as Nazim or NaibNazim should have the confidence of the majority viz 50% plus.
9. Mr. Muhammad Makhdoom Ali Khan, learned Attorney-General for Pakistan, submitted that the returned candidates were required to secure more than 50% of the votes cast and not of the total number of votes. They, however, secured both in that they secured more than 50% of the votes cast and also obtained more than 50% of the total number of votes. That once a candidate has secured more than 50% of the votes it is immaterial whether such majority has been secured by a fraction or a full number.
10. The learned Attorney-General further submitted that the Third Amendment to the Ordinance was classificatory and curative in nature. The confusion which could have arisen on the basis of an interpretation of the original law was removed and the position clarified by the amendment. It does not change the law and it is not necessary that every amendment in the law must result in a change in the law.
11. In the alternative, the learned Attorney-General submitted that amendment did bring about a change in the law as the previous requirement of majority (in the sense of plurality) has been changed to a requirement of more than 50% of the votes. It was further contended that the words "majority" is capable of more than one meaning. It can mean more than 50% as well. Black's Law Dictionary, 6th Edition defines the expression "majority votes" at page 955 as follows:- "Majority votes.---Votes by more than half of votes for candidates or other matter on ballot. When there are only two candidates, he who receives the greater number of the votes cast is said to have a majority; when there are more than two competitors for the same office, the person who receives the greatest number of votes has a plurality, but he has not a majority unless he receives a greater number of votes than those cast for all his competitors combined."
12. The last submission made by the learned Attorney-General was that in election cases the successful candidates ought not to be unseated and the results invalidated on the basis of strained or hyper-technical interpretation of the law.
13. Mr. Muhammad Ashraf Khan Tanoli, learned Advocate-General Balochistan adopted the arguments addressed by the learned Attorney-General for Pakistan. He, however, added that two undisputed documents available on record can be helpful in resolving the controversy. The first document is the list of voters provided under rule 51 of the Balochistan Local Government (Elections) Rules, 2000 by the Provincial Election Commissioner and the second is the Chart provided to the Returning Officer by the Assistant Election Commissioner, Quetta to facilitate formulation of the results. The minimum required votes for Nazim and Naib-Nazim shown in the relevant column are 475.
14. The controversy has been generated by the amendments made in subsections (2) and (3) of section 16 of the Ordinance and rule 57 of the Balochistan Local Government (Elections) Rules, 2000 by section 16 of the Balochistan Local Government Election (Third Amendment) Ordinance, 2001. In order to appreciate the submissions made before us it is necessary to reproduce the unamended and amended subsections (2) and (3) of section 16 of the Ordinance and rule 57 of the Rules. The unamended provisions are as under:-- Section 16: "(2) The Nazim and the Naib-Nazim of a District Government or a Town Government or a Tehsil Government securing as joint candidates the highest number of votes shall be declared elected.
(3) In case Zila Nazim and Naib-Zila Nazim do not secure majority of the total votes of the members of the union councils in the district there shall be held a fresh election, within one week of the first election, in which the joint candidates for such offices securing the highest and the second highest number of votes shall be contestants, and the joint candidates securing the highest number of votes in the fresh election shall be declared elected."
Rule 57: "In case any joint candidates for a Zila Nazim and Naib-Zila Nazim, who failed to secure majority of total votes of the number of members of Union Councils in the districts, and as such were not entitled to be declared elected, the result of the count shall be reported to the Chief Election Commissioner."
The amended provisions are worded thus:--Section 16: "(2) The Nazim and the Naib-Nazim of a District Government or a Town Government or a Tehsil Government securing as joint candidates more than 50% of votes shall be declared elected.
(3) In a case of Zila Nazim and Naib-Zila Nazim or a Town Nazim and Naib Town Nazim or a Tehsil Nazim and a Naib Tehsil Nazim do not secure more than 50% of the total votes of the members of the union councils in the respective district, or tehsil/town, there shall be held a fresh election, within one week of the first election, in which the joint candidates for such offices securing the highest and the second highest number of votes shall be contestants, and the joint candidates securing the highest number of votes in the fresh election shall be declared elected."
Rule 57: "In case any joint candidates for a Zila Nazim and Naib Zila Nazim, or a Tehsil Nazim and Naib Tehsil Nazim who failed to secure more than 50% of total votes of the number of members of Union Council in the respective districts or Tehsil/Town and as such were not entitled to be declared elected, the result of the count shall be reported to the Chief Election Commissioner."
(Underlining is by way of emphasis).
15. On a plain reading of the above unamended and amended provisions it is apparent that the amending Ordinance has brought about a major and significant change in the mode of election of Zila Nazim and Naib-Zila Nazim. Under the unamended provisions the panel of candidates securing even a single vote more than the other contesting panel or panels of candidates was entitled to be declared elected but under the amended provisions securing of more than 50% of the total votes of the members of the Unions Councils in the District is mandatory and the candidates who fail to achieve the target are not to be notified as returned candidates even if they secure highest number of votes. The rationale and object of the amendment appears to be to ensure that the winning panel of candidates virtually represents the majority of the voters of the district and a panel of candidates out of three or four contesting panels does not win the election by securing 25% or 30% of votes. The amendments have redressed the possible anomaly under majority or plurality system where in the event of an election being contested by a large number of candidates one of them wins the election with a few votes and thereby represents only a small and not a large segment of the constituency. The unamended provisions envisaged a different mode of election and were too precise and unambiguous to need clarification. Besides, had the intention been to clarify the expression "majority" the amending Ordinance would have been short and the language used therein much simpler. The amending Ordinance, therefore, cannot be called clarificatory, declaratory or curative. Be that as it may, there is no need to discuss these principles of interpretation of statues any further as the point which constitutes the principal issue in this appeal is whether the votes secured by respondents Nos.3 and 4 meet the requirement of subsections (2) and (3) section 16 of the Ordinance as amended by the Balochistan Local Government Election (Third Amendment) Ordinance, 2061.
16. It is an admitted position that 935 votes were cast at the election out of which 905 votes were declared valid and 34 votes were rejected. Respondents Nos.3 and 4 had secured 479 votes while 416 votes were secured by the appellant and 11 votes were polled by the remaining two contesting panels. However, as a result of the recount conducted pursuant to the appellant's application for the purpose 4 votes of respondents Nos.3 and 4 were rejected and the number of votes secured by them was reduced to 475. The Returning Officer treated the votes secured by respondents Nos.3 and 4 as the requisite number and declared them elected.
17. The undisputed list of voters of District Nasirabad issued by the Election Commission of Pakistan, available on record, makes it manifest that total number of notified members of the Union Councils in District Nasirabad is 949. In other words the electoral college of District Nasirabad in respect of election of Zila Nazim and Naib Zila Nazim consists of 949 voters. Subsections (2) and (3) of section 16 of the Ordinance being complementary to each other are to be read together and their cumulative effect is that in order to be declared successful the joint candidates must secure more than 50% of the total number of votes of the electoral college and not of the total number of votes cast at the election or the valid votes as contended by the learned counsel for respondents Nos.3 and 4. According to mathematical calculation 50% of the total number of votes of the electoral college comes to 474.5. The learned counsel for the appellant has contended that there can be no fractions because a voter being a human cannot be cut into a half, therefore, figure 474.5 has to be rounded up to 475 and only that candidate can claim to have secured more than 50% of votes who polls one more vote than 475 with the result respondents No,3 and 4 having failed to secure 476 votes were not entitled to be declared elected. The contention has not impressed us. As mentioned earlier 50% of the total number of votes of the electoral college comes to 474.5. Respondents Nos.3 and 4 having polled 475 votes having secured more than 50% of the total number of votes of the electoral college, therefore, the requirement of subsections (2) and (3) of section 16 of the Ordinance stands satisfied. It is immaterial whether the target has been achieved by a fraction or a round number. There is no provision in subsections (2) and (3) of section 16 of the Ordinance to the effect that a fractional majority shall not be taken into consideration. No doubt voters are human being but the votes cast by them at an election lose the human element at the stage of counting or recounting which is done by means of simple mathematical calculations. Needlesss to reiterate that mathematically 475 is more than 50% of 949.
18. The claim of respondents Nos.3 and 4 that they were entitled to be declared elected is also supported by the impugned judgment. However, we find it difficult to agree with the reasoning of the High Court for the simple reason that the formula contained in subsection (2) of section 37 of the Balochisan Local Government Ordinance, 2001 for calculating a percentage for the purposes of composition of Zila Council being expressly provided for and restricted to the reser seats does not apply to the present case. This legal position was conceded by the learned counsel for the respondents Nos.3 and 4 in their arguments and by the learned counsel for the appellant while exercising his right of reply.
For the foregoing reasons, the appeal is dismissed. Parties to bear their own costs.