SULTANA IBRAHIM Versus AFROZ NAZIR AHMAD

1. The petitioner Syeda Sultana Ibrahim has filed this election petition under section 52 of the Representation of the People Act, 1976 to challenge the election as a whole and that of Mrs. Qamar‑un Nissa, respondent No.4 to National Assembly of Pakistan from Reserved Seats of women for the Province of Sind.

2. The petitioner and ten (10) ether candidates (Respondents Nos. 2 to 11) contested the election of National Assembly for the four seats reserved for women for the Province of Sind, in accordance with the system of proportional representation system by means of the single transferable vote. In all 46 (forty‑six) Members of the National Assembly from Sind formed the electorate College for this purpose. Respondent No. 12 is the Returning Officer. The election was held on 20‑3‑1985 and respondents Nos. 1 to 4 namely Mrs. Afroze Nazir Ahmad, Mrs. Rashida Pasha Khuhro, Begum Salima Ahmed and Mrs. Qamar‑un‑Nissa were declared successful and such Notification was issued by the Election Commission on 20th March, 1985.

3. The grounds taken in the. election petition are that respondent No.12, Returning Officer acted in gross violation of the relevant laws by obtaining signatures from respondents Nos. 1 and 7 on the nomination papers at the time of scrutiny which amounts to filing of fresh nomination paper without signing declaration on oath at the time of filing nomination paper in the eyes of law, the petitioner was not afforded reasonable opportunity to examine the nomination papers. It is avered that ballot‑papers could only be marked in English or Urdu numerals as such any other mode of marking in Roman is invalid, therefore, the entire election is void, and by marking in Roman on ballot‑papers the secrecy has not been maintained.

4. On pleading of the parties the following consent issues were framed:‑----

(1) Whether respondents Nos. 1 and 7 (Mrs. Afroze Nazir Ahmad and Begum Mahmooda Sultana) were validly nominated candidates?

(2) Whether the votes marked in 'Roman' figures were liable to be declared invalid?

(3) Whether right of appeal against acceptance or rejection of nomination paper was lost to the petitioners due to postponement of scrutiny of nomination paper on 18‑3‑1985 and belated commencement of scrutiny on 19‑3‑1985?

(4) Whether the contents of the petition meet the requirement of section 55 of the Representation of the Peoples Act, 1976?

(5) Whether by participation in the election the petitioner is estopped by her conduct from challenging the result of the election?

(6) What should the relief be?

5. In this petition respondents Nos. 4, 6, 9, 10 and 11 did not file written statements as such not contested the petition. The other respondents viz. 1, 2, 3, 5, 7 and 8 filed written statements. The evidence of petitioner Dr. Syeda Sultana, Exh.P.l recorded. She produced petition, documents and affidavits. Respondent No.l Mrs. Afroze Nazir Ahmad, respondent No. 7, Begum Mahmooda Sultana, respondent No.3, Begum Salma Ahmad only appeared. They produced their written statements and were cross‑examined. The remaining private respondents who filed written statements did not appear for evidence nor produced their written statements. The only official witness respondent No.12 who filed written statement appeared and was cross‑examined. He produced some documents. In all there is evidence of petitioner, three respondents contesting candidates and Returning Officer. Neither petitioner nor respondents examined any witness in their support.

6. Mr. Hussain Shah Rashdi, appearing for the petitioner contended that two candidates while filing nomination papers did not sign the declaration on oath but at the time of scrutiny the Returning Officer got signatures from respondents Nos. 1 and 7 as such this kind of error cannot be rectified. He has referred to the case reported in AIR 1955 Election (E.T.) page 5800, A I R 1957, Rajisthan Tribunal page 189, A I R 1958 (Punjab) 452, Parliamentary Practice A. Norman Shuffi page 139/155, Indian Election case 1935 to 1951. Mr. Rashdi on issue No. 2, in connection with marking in Roman on ballot‑papers has cited P L D 1964 SC 537, P L D 1965 Kar. 625 and judgment in Election Petition No. 27/85. It is argued that Returning Officer had not given opportunity to candidates to scrutinize the nomination papers of the candidates and due to change in Notification petitioner could not get time to file appeal against the acceptance of Nomination papers of candidates and Returning Officer violated the provision of Act and Rules.

7. Mr. Obed‑ur‑Rehman, appearing for respondent No. 4 argued that signature on nomination paper if obtained afterwards is not a defect of substantial nature. He has referred to the case reported in P L D 1967 SC 486 and P L D 1984 Kar. 245. It is argued that provision for marking in Urdu or English is of directory not mandatory and rules have not been violated. He has cited P L D 1973 Election Tribunal Jour. SC 133, P L D 1974 SC 134, P L D 1968 Lah. 862 and P L D 1987 SC 213. It is also argued that in case votes marked in Roman are excluded the result will not be affected and petitioner cannot get benefit.

8. Mr. Azhar Ali Khan, Advocate appearing for respondent No.7, Mrs. Mehmooda Sultan, argued that nomination paper of his client was wrongly accepted, therefore, election result has naturally affected.

9. Mr. Qazi Faiz Essa, for respondent No. 1. argued that there was no defect in the nomination paper of Mrs. Afroze Nazir Ahmad and declaration was signed before the day of scrutiny. It is contended that candidate including petitioner did not raise any objection at the time of scrutiny. He has referred to P L D 1984 Kar. 449, P L D 1976 SC 6, P L D 1986 Jour. 146, P L D 1966 Lah. 839. It is argued that once nomination is accepted it is right of candidate to contest the election. He has referred to P L D 1984 SC 235, 1982 S C M R 307, 1985 C L C 2190, 1982 S C M R 108, P L D 1969 SC 42, P L D 1985 Kar. 315 and 1960 SC 131.

10. The advocates of petitioner and respondents have not argued on issues Nos 4 and 5 as petitioner has not pressed the issues, therefore, no findings are required.

11. Before Tribunal there is evidence of petitioner, Syeda Sultana Ibrahim, respondent No.l, Mrs. Afroze Nazir Ahmad, respondent No.7 Begum Mahmooda Sultana, respondent No.3, Begum Salma Ahmad, respondent No. 12, M.M. Kazmi, Returning Officer and documents produced by the petitioner and Returning Officer. The first issue is about the validity of nomination papers of respondents Nos. 1 and 7. The petitioner in her Election Petition stated that while scrutinising nomination papers of respondents Nos. 1 and 7, the respondent No. 12 noticed that they had not affixed signature on the consent declaration on oath while presenting the nomination papers which under the law is mandatory for every candidate to sign before the last day fixed for submission of nomination papers. It is stated that respondent No. 12 (Returning Officer) instead of rejecting the nomination papers made both the respondents to sign the declaration there in presence of all others to which petitioners and some candidates raised objection which was summarily overruled and he accepted the nomination papers. The allegations are also made against the Returning Officer who deferred the decision on nomination papers of respondent No. 5 Mrs. Ghamor Ispahani and final decision was taken late in the evening, therefore, no time was left to file appeal against the acceptance. The petitioner further goes to say that at the time of counting it was found that three votes were not marked in English or Urdu numerals as required by law. The objection was raised in spite of that votes were declared to be valid by which result has materially affected in respect of respondent No.4. It is prayed in the election petition that election 'of respondent No.4 be declared void and petitioner be declared duly elected. In the alternate the election as a whole is sought to be declared as void.

12. In support, the petitioner has produced press cuttings in respect of change of date for scrutiny, receipt of nomination paper, affidavit and her affidavit in evidence.

13. The petitioner in her cross‑examination stated that main grievance is that Returning Officer took signatures from Begum Mahmooda Sultana and Mrs. Afroze Nazir three days after the nomination papers filed and no time was left for her to file appeal against acceptance of those nomination papers. She has stated that they protested verbally against the procedure. She has deposed that she cannot say with certainty that Begum Afroze Nazir on 19‑3‑1985 had signed nomination paper or bio‑data.

14. Respondent No.l Mrs. Afroze Nazir in her written statement denied all the allegations. She has stated that her nomination paper was in conformity with law and she has referred the Rule 43(3)(ii) of the conduct of Election Rules, 1977 which provide that Returning Officer should not reject the nomination paper on the ground of any defect which is not of substantial nature and to allow such defect to be removed forthwith. She stated that no appeal was filed against the order of acceptance of her nomination paper. She was cross‑examined at length. She stated that she herself presented nomination paper before the Returning Officer on 16‑3‑1985 as far as she remembered. She has denied to have put signature on the nomination paper on 19‑3‑1985. She has stated that she might have put the date on one of the bio‑data on 19‑3‑1985. But definitely not the signature. She submitted affidavit of one Ali Murrad who acted as her Polling Agent. He stated that Mrs. Afroze Nazir secured 11 votes and objection was not raised at the time of counting.

15. Begum Mahmooda Sultana respondent No. 7 in her written statement has stated that on the day of scrutiny of nomination papers the respondent No. 12 asked her to sign relevant declaration which she forgot to sign at one place on her nomination paper, she has also stated that respondent No.l was also asked to affix signature on the consent, declaration and oath prescribed in the nomination paper at the time of scrutiny on 19‑3‑1985 in presence of all those who assembled there. She has further admitted that petitioner and some other candidates objected to this but their objections were overruled and their nomination papers were accepted. Respondent No. 3 Begum Salima Ahmad also filed written statement and in para. No.13 she stated that respondent No.12 pointed out to respondents Nos. 1 and 7 and got their signatures in presence of all the candidates available from four provinces of Pakistan and at that time none of the candidates objected to this action of respondent No.12. In her cross‑examination she has stated that contents of paragraph No. 13 of her written statement are not factually correct in the entirety and stated that it is correct to the extent that there were some discrepancies which were filled but she cannot say with regard to the signature having been put by the candidate because she was sitting at some quite distance. She has further stated that Begum Afroze Nazir and Begum Mahmooda Sultana did not sign in her presence but may be that some minor corrections were made for which she had no idea. Respondent No. 12 M.M. Kazim, Returning Officer, in the 'written statement stated that nomination papers were scrutinised in presence of all the respondents. In para. No. 13 he denied the allegation of getting signatures of respondents Nos. 1 and 7 on the nomination papers but stated that some clerical mistakes were allowed to be rectified. He has stated that scrutiny of nomination papers was postponed from 18‑3‑1985 to 19‑3‑1985 by the Election Commission and no harm was caused in result thereof.

16. Issue No. 1 whether Respondents Nos. 1 and 7 were validly nominated.

17. Election seats reserved for women in the National Assembly were held under subsection (2) of section 47 (Chapter V) of Representation of the People Act, 1976 and under subsection (4) of the section 47, the Commissioner is authorised to hold and conduct election in such manner as may be prescribed. The procedure for conduct of Elections to the Reserved Seats for women is laid down in Rules 36 to 83 (Chapter III) of the Representation of the People (Conduct of Election) Rules, 1977. The relevant Rule for Nomination is Rule 41, which reads as under:‑

18. "41. Nominations.‑‑(1) Any person whose name appears‑

(a) on the list of voters for a Province prepared under Rule 37, may nominate and any other such person may second, for election to a seat reserved for women in the National Assembly and allocated to that Province, the name of any women qualified to be a member of the National Assembly;

(b) on the list of voters for a Province prepared under Rule 38, may nominate, and any other such person may second, for election to a seat reserved for women in the Provincial Assembly, the name of any woman qualified to be a member of that Assembly.

(2) A nomination paper by which a proposal is made shall be in Form XXI, and every such nomination paper shall be accompanied by a copy of the electoral roll, or an extract therefrom showing the candidate's name, duly certified by the Registration Officer or any Officer of the Commission in Grade‑16 or above. The nomination paper shall be delivered by the candidate, proposer or seconder to the Returning Officer at his office during office hours, on or before the date within the time fixed for the purpose.

(3) A duly qualified person may be nominated for seat reserved for women in an Assembly by more than one nomination paper. If any voter subscribes to the nomination of more than one candidate either as proposer or seconder for a seat in the same Assembly, all nomination papers to which he has subscribed shall be void.

(4) On the delivery to the Returning Officer of a nomination paper, he shall‑‑

(a) acknowledges in writing the receipt thereof;

(b) satisfy himself that the name and other particulars of the proposer and seconder shown in the nomination paper are the same as are shown in the list of voters prepared under Rule 37 or, as the case may be, under Rule 38; and

(c) permit any error in the nomination paper in regard to the name or other particulars of any person to be corrected in order to bring it in conformity with the corresponding correct entries and may overlook any clerical or printing error in any such particulars.

(5) The Returning Officer shall endorse on the nomination paper the name of the person presenting it and the date and time of its receipt and inform such person of the time and place at which he shall hold scrutiny.

(6) The Returning Officer shall cause to be affixed at some conspicuous place in his office a notice of every nomination paper received by him containing the particulars of the candidate and his proposer and seconder as shown in the nomination paper."

19. The procedure for scrutiny of nomination papers is laid down in Rule 43: ‑---

20. Scrutiny.‑‑(1) The candidates, their proposers and seconders and one other persons authorised in writing in this behalf by each candidate may attend the scrutiny of the nomination papers. The scrutiny shall be held by the Returning Officer at the time and place endorse under sub‑rule (5) of Rule 41.

(2) The Returning Officer shall, in the presence of such of the persons referred to in sub‑rule (1) as wish to attend the scrutiny, examine the nomination papers and decide any objection made to any nomination.

(3) The Returning Officer may, either of his own motion or upon any objection, conduct such summary inquiry as he may think fit and reject any nomination paper, if he is satisfied that‑‑

(a) the candidate is not qualified to be elected as a member;

(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;

(c) any provision of Rule 41 or Rule 42 has not been complied with; or

(d) the signature of the proposer or the seconder is not genuine;

21. Provided that‑‑-------

(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper; and

(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature, and may allow any such defect to be remedied forthwith.

(4) The Returning Officer shall endorse on each nomination paper his decision, accepting or rejecting it, and shall, in the case of rejection, record the reason for rejection and, in the case of an objection being raised to his decision to accept a nomination paper, record brief reasons for rejecting the objection.

(5) Any candidate aggrieved by the decision of the Returning Officer under sub‑rule (4) with regard to the rejection or acceptance of a nomination paper may file with the Returning Officer an appeal addressed to the Election Commission before such time as may be specified by it. Such an appeal shall be disposed of before such time as may be specified by the Election Commission, and any order passed on such appeal shall be final. "

22. Mr. Rahim Bux Soomro, Member National Assembly proposed the name, Mrs. Afroze Nazir Ahmad (Respondent No.l) and seconded by Mr. Kazi Abid. It bears date as 16th March, 1985. It was received by the Returning Officer on 16‑3‑1985 as Serial No. 30. His endorsement is as under:‑--

23. "This Nomination paper alongwith Bio‑data Form (in triplicate) was delivered to me 11‑35 a.m. hours on 16‑3‑1985 by Mrs. Afroze Nazir Ahmad, being the candidate.

24. Date: 16‑3‑1985. Returning Officer."

25. In the same manner the nomination paper of Respondent No. 7, Begum Mahmooda Sultana was proposed by Mir Nawaz Khan Marwat seconded by Mr. Zain Noorani was presented by her being Serial Number 20 on 16‑3‑1985 at 10‑40 a.m. by the Returning Officer with same endorsement.

26. Both the nomination forms were accepted on 19‑3‑1987. It is an admitted position that nomination papers were presented by them personally duly proposed and seconded by the members of National Assembly. Both the candidates were qualified to contest the election. The only point taken in para. 13 of the petition is that consent declaration on oath was got signed by Returning Officer from both the respondents on the day of scrutiny. Now it is to be seen whether there is satisfactorily evidence to show that it was done so as alleged, if yes whether this could be the ground for rejection of the nomination papers on this point. The petitioner in cross‑stated that the 'blanks were filed in' and she came to know when they were called upon by the Returning Officer and they did sign declaration on oath in presence ‑of all of them and she raised objection when Begum Nazir Ahmad was called upon to sign those papers.

27. Begum Mahmood Sultana respondent .No. 7, in written statement stated that she had not affixed signature on declaration but at the time of scrutiny on 19th March, 1985 the respondent No. 12 asked him to affix signature and respondent No. 1 was also called to sign declaration in presence of those who assembled there. She filed this written statement on 15‑8‑1985. In her cross‑examination she stated that she had forgotten to sign her nomination paper and bio‑data and in her presence Begum Afroze put signature on nomination papers and her signature on bio‑data was already there. She has stated that no other candidate except petitioner raised objection in respect of their nomination papers. She stated that most probably still one signature is missing on her nomination paper as she had no reading glasses on the day of scrutiny. She has stated that scrutiny of Sind candidate was taken up first and came to end within about 1 or 11 hours. She secured only one vote. There is evidence of respondent No. 3 Begum Safma Ahmad. She in para. 13 of her written statement stated that respondent No. 12 (Returning Officer) while taking up the nomination papers of respondents Nos. 1 and 7, found that those papers were not signed by them and he got their signature in presence of all candidates available from the four Provinces and none of the candidates objected to this action of respondent No. 12. In her cross‑examination she stated that there were some discrepancies which were to be filed in but she cannot say with regard to the signatures having been put by the candidates as she was sitting at quite some distance. The Returning Officer denied the allegations of para. No.13 of petitioner to be incorrect and baseless as some clerical mistakes were allowed to be rectified. In cross he has stated that scrutiny started at 11‑30 a.m. which ended round about at 1‑30 p.m. He has stated that nomination papers of Sind were taken up first and scrutiny came to end at 12 o'clock and nobody applied for copy and there was sufficient time to file appeal as Chief Election Commissioner's Office was next door and appeals were to be filed upto 4‑00 p.m. In petition, the time of scrutiny is given 12‑10 p.m. and. it is admitted by the petitioner that scrutiny of Sind candidates were taken first but in great hurry. Respondent No. 1 in written statement denied the allegation made in petition and stated that her nomination papers was in conformity with law. She has denied in cross to have put signature on nomination paper's or any part thereof but might have put date on one of the bio‑datas on 19‑‑1985 but definitely not signature.

28. The principle laid down for considering the evidence which is to be accepted in petitions is that of criminal cases. On this I refer to a case of Sayed Saeed Hassan v. Payar Ali Allana reported in P L D 1976 SC 6, relevant at page 25‑26‑D,, which reads as under: ‑---

29. "This brings us to the next contention that the Courts below had erred in law in coming to the conclusion that the allegation of corrupt and illegal practice stood established against the appellant without insisting on the requisite standard of proof as required of a charge in criminal trial. While agreeing with this proposition that the analogy of a criminal trial would hold good in the matter of a corrupt or illegal practice which must be affirmatively proved to the conclusion of a reasonable hypothesis consistent with non‑commission of a corrupt practice and the benefit of doubt must go to the person against' whom a corrupt or illegal practice is alleged. He has already referred to the authorities mentioned in this context in the High Court judgment namely, Mohammad Saegd's case, Mian Jamal Shah's case and Yousuf Khattak's case P L D 1966 SC 1 and PLD 1973 SC p. 191."

30. In cross petitioner has stated that on 19‑3‑1985, these blanks were filed in whereas on perusal of nomination papers there are no blanks in the paper. There is only place for signature and date. In evidence respondent Mahmooda Sultana stated that she had no reading glasses. She did not sign nomination papers and bio‑data and Returning Officer asked her to do the needful whereas case of petitioner is that respondent No. 7, signed only declaration in presence. Respondent No. 7 in her written statement specifically mentioned that her signature was taken only on declaration and in her cross she speaks of nomination paper and bio‑data. Her evidence is self‑contradictory. In cross she has stated that she was sitting at some distance and cannot say if signature was put by candidates on nomination papers. On the other hand respondent No. 1 frankly admitted that she might have put date on one of the bio‑data but not signature. Respondent No. 12 stated that some clerical error were allowed to be rectified. The nomination papers were not seen by the petitioner and respondents and their evidence is based on observations made by the Returning Officer who has denied, Begum Mahmooda Sultana is defeated candidate and her evidence is that she had no reading glasses. Then how she could see other candidates signing at particular place when according to her still mistakes were left in her nomination paper which she could not discover. The Returning Officer if got rectified some mistake he could do so under Rule 43(3)(d)(ii) of Conduct of Election Rules. The intention of legislature is that people should not be debarred from taking part in the Election on minor discrepancies or technical grounds.

31. Mr. Rashid has cited some cases where it has been held that nomination form is of substantial nature and defect at the time of scrutiny cannot be remedied, to that extent, I agree but it is to be seen whether defect is of substantial nature. I have already observed that there is nothing on the record to show that petitioner has been able to prove beyond reasonable doubt that signatures of .the respondents were obtained on the declaration containing oath and other particulars. In case of Ghulam Nabi v. Khuda Bakhsh and others reported in P L D 1984 Kar. 245. The facts are that nomination paper was not signed by proposer and seconder. The affidavits were given by them that they were present alongwith the candidate on the date of filing of nomination paper. No counter‑affidavit was filed. Petition was accepted and reliance has been placed on the case reported in P L D 1967 SC 486. From Supreme Court judgment, Division Bench have quoted para. which is as under:‑--

32. "The law does not appear to display a prefectionist attitude in this behalf and it seems to us with reason. The law of pleadings has never been strictly construed and rigorously applied in all its technicalities, to this country as plaints and petitions drafted, specially in the Moffusil, suffer from various minor defects. A very strict view, on the technical plane, of such pleadings, without regard to the substance of the matter, would defeat the ends of justice. Unless. therefore, the language of the law is intractable and clearly provides for dismissal of a petition for a technical defect, the Courts should not be astute to ascribe to the Legislature a desite to be hypertechnical, so as to smother genuine litigation.

33. In our opinion above observations are fully applicable to the present case. The non‑joinder of unimportant parties was defect of a very minor and technical nature and so also the absence of signature of the petitioner the (present respondent No.2) on the Election Petition, which was signed by his Advocate. There is nothing in the Election Rules to prevent the Election Authority from permitting a petitioner to sign a petition or to verify a petition after it has been filed. Action of the Election Authority in the present case permitting respondent No. 2 to sign and verify the plaint and annexures would not, in our opinion, amount to any illegality or irregularity so as to vitiated his order."

34. In case of Jamaluddin v. Abdul Sattar and 13 others reported in PLD 1986 Jour.

146. It has been held that mere breach of any Act or rules framed thereunder would not be sufficient to declare election as void and that allegation of illegal and corrupt practice should be proved by clear cogent and convincing evidence without any reasonable doubt. In these circumstances there is no positive and convincing evidence that Returning Officer got signatures of respondents Nos. l and 7 at the time of scrutiny on oath and declaration.

35. For the reasons stated above the petitioner has failed to prove that consent declaration and oath were got signed from the respondents Nos. 1 and 7 on date of scrutiny. Therefore, I have come to the conclusion that both the respondents were validly nominated candidates.

36. It has also been admitted that scrutiny of nomination papers of Sind Province was over by 12‑30 noon. The time of appeal was up to 4‑00 p. m. and the office of the Chief Election Commissioner was next door to the Returning Officer and it is on the record that verbal objection was raised even though appeal was not filed and there is no evidence that petitioner applied for copy of order.

37. Now I come to issue No. 2. The ground taken in the petition is that some ballot‑papers though marked in 'Roman' numerals were declared valid due to that the result of the polls materially changed inasmuch as the respondent No. 4 who had initially obtained same number of the votes as the petitioner received and respondent No.l surplus value based on invalid votes ultimately declared respondent No. 4 as elected. It is stated in the petition that had the invalid votes not been declared valid the petitioner would have been elected instead of respondent No.4. In para. No. 5 of the grounds it is stated that by declaring three votes marked in Roman as valid, the entire election is void and secrecy of the election has been grossly violated. The relevant rule the manner of recording the votes is Rule 60 of Conduct of Election Rules which is reproduced as under:‑

38. "In giving his vote, as voter‑‑

(a) shall place on his ballot‑paper the figure '1' opposite the name of the candidates for whom he wishes to vote in the first instance, and

(b) may, in addition, place on his ballot‑paper the figures 2, 3 and 4 and so on, in order of his preference, opposite the names of the other candidates."

39. The voter according to this rule had to mark against in the ballot‑paper either in Urdu or English but not in both or not in words.

40. In this election 46 Members of the National Assembly from Sind cast their votes on 20th March, 1985. Each of the candidate received the following votes:‑

(1) Mrs. Afroze Nazir Ahmad 11

(2) Begum Salma Ahmad 9

(3) Mrs. Rashida Pasha Khuhro 8

(4) Dr. Syeda Sultana Ibrahim 6

(5) Mrs. Qamar‑un‑Nisa 6

(6) Syeda Zahida Zaidi, Advocate 2

(7) Mrs. Noor‑us‑Saba Zafar 2

(8) Begum Mahmooda Sultana 1

(9) Begum Mumtaz Rashdi 1

(10) Mrs. Rukhsana Anwar Nil

(11) Begum Sarwari Irfanullah Nil

(12) Miss Shamim Kazmi Nil

41. The Returning Officer admitted this. He produced photostat copies of the nomination. He has stated that Roman figures are included and used since ages in English language have become part and parcel thereof. He has stated that respondent No. 4 received surplus value of the votes of respondents Nos. 6 and 7 and not of respondent No.l as alleged.

42. Returning Officer has admitted that 46 ballot‑papers were used and no vote was rejected. He has stated that two ballot‑papers were marked in Roman. He produced photostat copies as Exh.R/9 and R/10. The case of petitioner is that ballot marked in Roman are invalid. Under the present rule, the ballot were to be marked in English or Urdu but specifically stated that not in words. Both the ballot‑papers do not contain marking in words. Mostly in Government publications the Roman numerals are used. Even in the Representation of People Act, 1977 and Rules the Roman is used for instance I quote Election Laws Rule 26(1) of the Representation of the People (Conduct of Election) Rules, 1977 reproduced as under:‑

43. "Returning Officer shall deal with the postal ballot‑papers in the following manner namely:‑

(i) no cover in Form X containing a postal ballot‑paper received by the Returning Officer after the expiry of the time fixed in that behalf shall be opened and no vote contained in any such ballot‑paper shall be counted;

(ii) the Returning Officer shall close and seal in a separate packet all the packets referred to in sub‑rule (2) of Rule 16;

(iii) all other covers .in Form X containing postal ballot‑papers shall then be opened one after another;

(iv) as each cover is opened, the Returning Officer shall scrutinise the declaration in Form VII contained therein and shall reject the ballot‑paper and make an appropriate endorsement on the cover in Form IX without opening the same‑‑

(a) if the said declaration is not found in the cover of Form X; or

(b) if the said declaration is substantially defective; or

(c) if the serial number of the ballot‑paper entered in the said declaration differs from such number endorsed on the cover in Form IX;

(v) each cover so endorsed and the declaration received with it shall be replaced in the cover in Form X; and all such cover in Form X shall be kept in a separate packet which shall be scaled and on which the following particulars shall be recorded namely: ‑

(a) the name of constituency.

(b) the date of counting; and

(c) a brief description of its contents;

(vi) the Returning Officer shall then place all the declarations in Form VIII which he has found to be in order in a separate packet which shall be sealed before any cover in Form IX is opened and on which shall be recorded the particulars referred to in clause (v);

(vii) all covers in Form IX containing postal ballot‑papers which have not already been dealt with under the foregoing provisions of this rule shall then be opened one after another and the Returning Officer shall scrutinise each ballot‑paper and decide the validity of the vote recorded thereby;

(viii) a postal ballot‑paper shall be liable to rejection on the grounds mentioned in subsection (4) of section 38, reference in that subsection to prescribed mark being construed as reference to cross‑mark mentioned in sub‑rule (1) of Rule 13;

(ix) the Returning Officer shall count all the valid votes given by postal ballot in favour of each contesting candidate and record the total thereof as well as the number polled by each such candidate in consolidated statement in Form XVI; and

(x) all valid postal ballot‑papers shall, after they have been counted, be placed in a separate packet which shall be sealed and on which shall be recorded‑‑

(a) the name of the constituency;

(b) the date of counting; and

(c) a brief description of its contents."

44. In the same manner in the Report on the General Elections 1985 Volume I, the Roman numerals have been used, I quote page 89 para. 53 as under:‑

(i) The Forms required to be used for the registration of voters are lengthy and beyond the comprehension of a common man. The forms as also the procedure for enrolment may be simplified.

(ii) Since the electoral rolls prepared by the Commission for elections to the Assemblies are also required to be utilised by the Provincial Government for local bodies elections, electoral rolls may in future, be prepared in association with the Provincial Governments to facilitate their use for both types of elections.

(iii) Ways and means may be devised to improve the quality of electoral rolls. The conventional time‑consuming method of 'Kitabat' may be done away with and, in its place, possibility of printing the rolls through the recently introduced computerised process of 'Noori Nastaaliq' may be explored.

(iv) Use of National Identity Card issued under .the National Registration Act, 1973 in the process of enrolment of voters may also be considered on merit.

(v) The Deputy Commissioners may be appointed to act as District Registration Officers to co‑ordinate and supervise the work of registration of voters, within their Districts, under the control and superintendence of the Chief Election Commissioner.

(vi) Fresh electoral rolls should be prepared, printed and maintained separately for each Enumerator in order to facilitate addition of new names at the end of rolls of the same locality, after the final publication of rolls. This arrangement will facilitate assignment of voters of the same area to the same polling station.

(vii) Computerisation of the entire process of preparation of electoral rolls as a by‑product of the automation of National Registration System may also be given due consideration at the appropriate stage.

(viii) In case the allocation of seats to various categories of non‑Muslims is retained in the National Assembly and Provincial Assemblies the electoral roll will have to be prepared separately for each category on the basis of religion."

45. However, one can find Roman numerals mostly in every English record and even in judgments. Both the ballot‑papers are marked I, II, III, IV strictly speaking the Roman marking is (i), (ii), (iii), (iv), with regard to one there is hardly any difference. Now it is to be seen whether this defect is such which may declare ballot‑paper invalid, on this I refer two judgments of Election Tribunal in Election Petitions Nos, 2 of 1985 and 21 of 1985. Mr. Justice Saleem Akhtar, has dealt with this question at length and referred to Indian cases as well as cases of Supreme Court of Pakistan and High Court. In Irshad Ahmad v. Shafi Mohammad 1981 C L C 1332, it has held that if the ballot‑paper unambigously reveals the intention of the Elector cast his vote in favour of a particular candidate, the presence of other marks will not render the vote invalid. Supreme Court in case of Khan Shahzada v. Moulvi Fazal Rahi and 3 others 1983 S C M R 125, in para. 9 it has been observed:‑---

46. "In determining questions relating to marking of the ballot papers, the role of decision is to ascertain the intention of the voter from such marking."

47. The reference could be made to the case P L D 1965 Jour. (Election Commission) 89, Jamal Shah v. Nasrullah Khattak P L D 1964 Dacca 460. It was also argued that rule is not mandatory but it is directory. Sind Bar Council Election was challenged on the ground that members instead of 'X' marked (tick mark). The Tribunal headed by Judge of this Court Mr. Justice K . A . Ghani, the then, examined this point in detail and referred number of cases in his order. He came to the conclusion that ballot‑papers marked ' instead of 'X' are valid. In Presiding Officer v. Sadruddin Ansari P L D 1967 SC 569 at page 579;

48. "...There was no possibility of any doubt or dispute as to the person in whose favour the marks had been made on the said ballot‑papers. In the circumstances, the action of the Presiding Officer in declaring those ballot‑papers invalid, was in my opinion, wholly arbitrary and not inspired by any sense of duty which he had to perform i.e. to do justice between the rival candidates. Such an arbitrary exercise of power may well be said to be a mere colourable exercise of power or even an abuse of power."

49. Finally I refer to a case Jamshed Ahmad Khan and 2 others v. S.D. M/A.C. P L D 1987 SC 213 in para. 12(1) at page 225 observed as under:‑

50. "From the aforesaid discussion we are of the firm opinion 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. 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.

51. 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, therefore, non‑compliance with the procedure for marking the ballot‑paper by itself, not being one of the grounds prescribed, cannot ispo facto furnish a ground for rejecting a ballot‑paper as in valid."

52. Reference is also made to para. 10 at page 223 as under:‑---

53. "On behalf of the appellants, mainly two rules of interpretation of statutes have been pressed in support of the argument that the provisions of section 33(5) are mandatory. Firstly that the section uses mandatory words like 'shall', and secondly that where a statute creates a new right privilege or immunity and regulates the manner of its exercise, it must be construed as mandatory. No doubt the principles underlying these rules furnish some assistance in determining the nature of an enactment, but the books indicate that except as to time, there is no general rule of universal application for determining whether an enactment is absolute or directory. In this behalf I am tempted to refer to the observations by Lord Campbell in Liverpool Borough Bank v. Turner (1), quoted Craies on Statute Law as under:‑

54. "No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to‑ get at the real intention .of the legislature by carefully attending to the whole scope of the statute to be construed."

55. The votes in my view could only be rejected when with pre‑arrangement the identity is disclosed. There is nothing to show that this has been done and there is no such allegation in the petition.

56. Upshot of the above discussion is that intention of voter is clear as such ballot‑papers cannot be rejected on this ground.

57. Lastly in the alternative in case two votes marked with Roman numerals be kept out of consideration the result of petitioner will not be affected. Mr. Rashdi and Mr. Obed‑ur‑Rahman frankly stated that after examining that situation they have come to conclusion that in that eventuality the petitioner cannot get benefit. This has been stated by the Returning Officer too. Therefore, on this issue petition cannot succeed on both the accounts.

58. Last issue No. 3:

59. Now I revert to the last issue whether right of appeal against' acceptance or rejection of nomination paper was lost? On this as already observed that no written objections were filed at the time of scrutiny nomination paper of respondents Nos. 1 and 7. Application for the copy was not made. One of the candidates Begum Salma Ahmad stated in written statement that none of the candidates objected to the nomination paper. This has also not admitted by the Returning Officer. He stated in para. 12 of the written statement that complete list of nomination paper was displayed on the notice board and reasonable opportunity was afforded to the concerned persons to examine the nomination papers. There is no documentary evidence to support the allegation on this point. Not only this but it is an admitted fact from the evidence that scrutiny of nomination papers of Sind were over by 12‑30 noon and appeal was to be filed upto 4‑00 p.m. before the Chief Election Commissioner whose office was next door to the Returning Officer. The petitioner had not put any effort to file any appeal therefore, right in my view was not exercised.) This issue answered in negative.

60. The petitioner has made some allegations about changes of programme of scrutiny etc. for which Notifications were issued by the Election Commission within the Rules. However, the Election Commission is not a party, therefore, these points cannot be taken into consideration.

61. In the end it was averred that Returning Officer committed same irregularities as he postponed the scrutiny of nomination paper of Begum Qamar Ispahani on the ground that she was coming with an application for withdrawal and with regard to Begum Zahida, some candidates objected that she was previously convicted but decision was postponed. It is regretted to note that this should not have been done. The Returning Officer must have conducted the election according to law. However, this is not so material which may reflect the election as a whole. Begum Qamar Ispahani had withdrawn and was not contesting candidate while Syeda Zahida Zaidi lost the election and petitioner has no grievance against them.

62. For the foregoing reasons this Election Petition is dismissed with no order as to costs.

63. M.Y.H./21/E Petition dismissed.