MUHAMMAD ZAKARIYA Versus MUHAMMAD ALI

SAAD SAOOD JAN, J. --These are two appeals from the order, dated 15-1-1986 of the Election Tribunal, Sind, declaring the election to the 'Provincial Assembly from Constituency No. P.S. 78, Karachi-III, as a whole to be void.

2. The facts in these appeals lie within a narrow compass. The election to the said Constituency was held on 28-2-1985. It was contested by 31 candidates, including the appellant, Muhammad Ali son of Fayyaz Hussain and Muhammad Ali son of Muhammad Wasi. In these appeals we are concerned only with these three candidates. The appellant secured the highest number of votes and was declared elected.

3. For the purpose of election Muhammad Ali son of Fayyaz Hussain was allotted the symbol of 'Racket' while Muhammad .Alt son of Muhammad Wasi was allocated the symbol of 'Sewing machine'. But on the ballot- papers the two symbols were mixed up; thus, against the name of Muhammad Ali son of Fayyaz Hussain, picture of a sewing machine appeared while against the name of Muhammad Ali son of Muhammad Wasi, picture of a racket was printed.

4. Both Muhammad Ali son of Fayyaz Hussain and Muhammad Ali son of Muhammad Wasi filed separate election petitions to challenge the validity of the election. The two petitions were tried together. Although in their petitions they had attacked the validity of the election on a number of grounds, but ultimately the parties went to trial only on one issue, namely:-

Whether due to interchange of the symbols on the ballot-papers the result of the election has been materially affected?

After reviewing the relevant statute, that is, the Representation of the People Act and the rules framed thereunder, the learned Election Tribunal held that printing of correct symbols against the names of the candidates was a mandatory provision of law as upon this requirement depended the proper conduct of the election. The interchange of symbols here had the effect of practically excluding two candidates from the election. He further observed;

"Due to the breach in observing the provisions of the Act and rules confusion and uncertainty has been injected in the conduct and result of the election. The process of election has been tarnished and contaminated to the extent that it has lost purity and it cannot be termed as a fair and just election. In the facts and circumstances of the case it is not possible even to assess what would have been the result of the election if the provisions of law would have been followed correctly and properly. I am, therefore, of the view that due to the breach in observance of the provisions of the Act and rules the result of the election has been materially affected."

In the result the learned Election Tribunal declared the election as a whole to be void.

5. In support of these appeals, learned counsel appearing for the appellant relied mainly upon section 70, Representation of the People Act, which reads as follows:

"The Tribunal shall declare an election as a whole to be void if it is satisfied that the result of the election has been materially affected by reasons of--

(a) the failure of any person to comply with the provisions of the Act or rules; or

(b) the prevalence of any extensive corrupt or illegal practice at the election."

The learned counsel contended that the inter-change of symbols in printing the ballot-papers could only be regarded as a failure on the part of the Commission to comply with the provision of the Act, but that failure alone could not be made a ground for declaring the election as a whole to be void. The appellant has secured 6,885 votes whereas Muhammad Ali son of Fayyaz Hussain and Muhammad Ali son of Muhammad Wasi had together obtained 4272 votes; thus, the learned counsel argued, mixing-up of the symbols of the last mentioned two candidates had not in any way materially affected the result of the election. He also pointed out that on the ballot papers the names of the fathers of these two candidates were also printed and as such there was no possibility of any confusion arising in the minds of their supporters.

6. It is difficult to agree with the learned counsel. Under Section 21(1) Representation of the People Act, every candidate, if they be more than one contesting candidates, is to be allocated one of the prescribed symbols. Section 28 requires every elector to cast his vote by inserting in a ballot box a ballot paper in the prescribed form. Here the words "prescribed form" need to be noticed. Section 33(1) which sets out the voting procedure states that when an elector presents himself at the polling station to vote, the presiding officer shall issue a ballot-paper to him. It needs hardly be added that the ballot paper that the presiding officer has to give to the voter is the one which is in the prescribed form. Under subsection (5)(b) of the same section a voter is then required to put the prescribed mark on the ballot paper at any place within the space intervening between the name and symbol of the candidate for whom he wishes to vote.

7. Rule 11 (1), Representation of the People (Conduct of Election) Rules, prescribed the form of the ballot paper. It states that every ballot paper shall be in Form VI, A specimen of Form VI has been given at the end of the rules. According to this specimen there are separate horizontal rows for each candidate in which his name and symbol are printed There is a blank space between the name and the symbol. It is in this space that the voter is required under section 33 (5)(b), ibid to affix the prescribed mark while casting his vote.

8. On account of the mixing up of the symbols allocated to two of the candidates, the ballot paper provided to the voters in the constituency could hardly be described to be in the prescribed form. Thus, there was violation of not only Section 21 ibid, which provides that an elector will cast his vote on a ballot paper in the prescribed form but also of Section 33 ibid, which pre-supposes that the ballot paper provided to the elector will be the prescribed one. Further, there was no space where the supporters of the affected candidates could affix the specified mark in accordance with section 33 (5)(b). It is not clear how the votes which were found to have been Last In their favour were in fact identified for the manner in which the ballot paper had been printed it could not be said with any measure of certainty that the electors had while casting their votes taken notice of the symbols or the names of the candidates. However, that may, as a result of the misprinting of the symbols two of the contesting candidates were, without any fault on their part, placed in a disadvantageous position even before the polls started. There is thus justification for the observation of the learned Election Tribunal that the said candidates were excluded from the election. Clearly this was not a case where it could be said that a fair election or the one envisaged by the Act had been held.

9. There is little merit in the contention that as the fathers' names of the candidates affected by the interchange of symbols were mentioned in the ballot papers, there could not be any possibility of confusion in the conduct of the election for it is based on the premises that the electors were literate enough to read the ballot-papers and were aware of the parentages of the candidates. Both these assumptions have no foundation whatsoever. It is to be noticed that during their election campaign the two candidates were identifying themselves with their symbols and not with their fathers' names. This will so appear from the two hand bills which the said candidates have placed on the record.

10. The strongest argument on behalf of the appellant is that he had secured more votes than the two affected candidates had together obtained and as such the interchange of the symbols had not materially affected the result of the election. At first sight this argument seems attractive but on closer examination it loses all merit. By reason of the interchange of the symbol there was no space which could be utilized by the supports of the two candidates to express their reference. Apart from that, there was a real fear that a vote cast in favour of one candidate might be taken as a vote cast for the other depending upon whether in the course of the final count the names of the candidates or their symbols were to be taken as the guiding factor in discovering the preference of the elector. The confusion caused by the misprinting of the ballot papers can be thus easily imagined. In the circumstances, the assertion of the affected candidates gains credibility that on account of the mixing up of the symbols there was a strong rumour afloat that fresh polls would be held and that influenced by that rumour a large number of their supporters left the polling stations without casting their votes It cannot therefore be said that the interchange of symbols did not materially affect the result of the election.

11.For the reasons stated above, we find no merit in these appeals which are hereby dismissed. The parties are left to bear their own costs.

M.B.A./M-230/S Appeals dismissed.