PLJ 2004 Tr.C. 109
[Executive Committee,
Present: pervaiz inayat malik, chairman, rao muhammad jamil,
drs. qazi muhammad amin, ch. talib hussain chatha and
tahir mehmood mufti, members
MR. FAROOQ AHMAD, ADVOCATE, MANDI BAHAUDDIN-Appellant
versus
CHAIRMAN ELECTION BOARD, DISTRICT BAR ASSOCIATION MANDI BAHAUDDIN and 2 others-Respondents
Election Petition No. 5 of 2004, decided on 22.5.2004. Memorandum of Association, 1981-
—Arts. 49, 61, 64 and 65 thereof-Petitioner was candidate for office of President in Election of District Bar Association Mandi Bahauddin secured equal votes and was held eligible to hold office of President for six months (second term'i-Challenged the Election Result inter alia, on ground votes were rejected illegally-Corrupt practices resorted to-Entitled to be declared as President-Petition resisted on ground the petitioner having accepted the Election Results and the arrangements made by the Election Board, was estopped from filling Election Petition-Held that: The preliminary objection had no force as there is no estoppel against Law-On merits held that any objections with regard to preparation of voters list. Election Results etc. even if not raised at the appropriate time, still could validly be agitated through Election Petition; that the intention of the voter has to be gathered from perusal of the Ballot Paper as also the attending circumstances; Secrecy of Ballot has to be maintained under all circumstances and peculiar marks on the Ballot Paper render the same liable to rejection-Committee found the petition without merits consequently same was rejected-Petition rejected.
[P. 110, 111 & 112] A, B, C, D, E, F, G, H, I & J
Case Law relied upon PLJ 2004 Tribunal Cases Page 76. Election Matter-
—Secrecy of Ballot has to be maintained under
all circumstances as it
ensures free and voluntary exercise of right of vote. [P. Ill] F
Interpretation of Statute--
—The words 'may' and 'shall'-Use of-By now it
is a well settled principle
of interpretation of provision of Law that where the word 'shall' have 7
been used and also penal consequences have been provided for non-
compliance thereof, the provision is mandatory, otherwise the same is
directory in nature. [P. Ill] Q
Election Matter--
—There is no estoppel against Law. [P. Ill] C
Election Matter--
—Objections even if not raised at the
appropriate time still can validly be
raised through the
Election Petition. [P. ] D
Present parties in person. Date of hearing: 22.5.2004.
order
Pervaiz Inayat Malik, Chairman.--The petitioner who contested the Election for office of President in the Elections of District Bar Association, Mandi Bahauddin held on 15th January, 2004, as provided in Art. 45 of the memorandum of association, has challenged the result of the afore-stated Election inter alia, on the grounds that total votes cast were 215 whereas 214 votes were recovered from the Ballot Boxes when they were opened for the purposes of counting; which was conducted allegedly in his absence and that his two votes, though valid yet were rejected by the Respondent No. 1 illegally and that initially he reached at a compromise however one of the polling agents subsequently disclosed that his two valid votes were not counted; that he has also submitted an application on 16th of January, 2004 to the Respondents Nos. 1 to 3 re-counting of votes which was not even considered. While concluding he asserts that he has won the election by securing majority votes yet with mala fide intention and for ulterior motives the Chairman Election Board, by committing serious illegalities and corrupt practices proceeded to declare the result of the Presidential candidates on the basis of equality of votes. He has, therefore, prayed that he be declared as President District Bar Association Mandi Baha-ud-Din by declaring the result in favour of Respondent No. 2 as void.
2. The petition has been resisted by the respondents by raising preliminary objections that the petitioner accepted the election results and the decisions of the Election Board that both the contesting candidates would hold the office of President for six months each thus is estopped from filling this election petition. On merits it was contended that in presence of the polling agents votes were counted and four votes were rejected and f thereafter both the contesting candidates for the office of President having secured 105 votes each, were held to be entitled to hold the office of President for six months period each and that the petitioner is to hold the office for the second term of months. It is lastly contended that the petitioner has agreed voluntarily to the afore-stated arrangements, therefore, cannot legally and morally come out with altogether a different stance by taking a "U"turn.
3. We have heard the parties at quite some length and have also perused the record minutely with their able assistance. Before coming to the
merits we would like to deal with the preliminary objection raised by respondent. The contesting respondent has with vehemence objected to the maintainability of this petition on the ground that the petitioner once having accepted the election results and agreed to the arrangements proposed by the Election Board, could not take altogether a different stance by resorting to a complete "U" turn and thus was estopped from his conduct from agitating the same grievance by filling an election petition. We are unable agree with this contention for the very simple reason that there is no estoppel against Law. We have already discussed this issue in our judgment rendered in Bar Association Wazirabad's case reported as PLJ 2004 Tribunal Cases Page 74 titled as Ch. Ghazanfar Ullah Cheema Advocate vs. Chairman Election Board etc., and have held that any objections, with regard to preparation of voters list, election results, etc, even if not raised at the appropriate time, still can validly be agitated through election petition and this Committee would be well within its jurisdiction to deal with all such objections and decide the petition on its own merits.
We, therefore, reject this preliminary objection and hold that this petition is maintainable under Art. 64 of the Memorandum of association
and proceed to decide the election on its own merits.
. 4. The controversy in hand revolves around four rejected votes, which according to the election petitioner were not legally rejected and his two valid votes having not been counted, the election result is void and he deserves to be declared as President elected. Under our directions the sealed packets containing Ballot Papers and counterfoils were opened, and we have seen four disputed Ballot Papers as well in presence of the parties. In the two Ballot Papers the sign of cross (X) was put against the names of both the Presidential candidates, these two votes, therefore, were rightly rejected by the Election Board. In the third vote, the voter did not bother to cross (X) any of the Presidential candidates at the requisite place, however at the right side in the centre a cross (X) was marked which does not indicate the intention of the voter as to whom he wanted to vote for, because the cross (X) is at the right side in he centre of names of both the candidates, therefore, we hold that this vote too was rightly rejected. Now coming to the fourth vote, we see that though the voter seems to have shown his intention to have voted in favour of the petitioner yet he has not crossed (X) it rather has given peculiar marks, which may be his own signatures which is hit by Arts. 49 and 61 of the Memorandum of Association 1981 which are reproduced here under:-
"Art. 49 "The Election Board shall maintain secrecy of ballot and shall assure its free and voluntary exercise of the right to vote."
Art. 61 "The eligible voter shall cast his vote for each contested
office secretly and with full sense of
responsibility to the prestige, honour and independence ofhis profession.
Thus, the secrecy of the Ballot was not maintained. The Petitioner has argued with vehemence that only the intention of the voter is to be seen while counting votes secured by each candidate, this contention is partly true, however the same is to be seen alongwith other factors, particularly the relevant rules. As discussed above secrecy of the Ballot has been regarded supreme and instead of words 'may', word 'shall' has been used, which means that these provisions which deals with secrecy of Ballot are not directory rather are mandatory in nature and calls for penal action as provided by Article 65(e). The Petitioner has confined his prayer to counting of two rejected votes and that he be declared as President, otherwise possibility of holding Elections afresh might be considered, which at this stage under the present circumstances does not seem to be appropriate.
By now it is well settled principle of interpretation of any provision of "Law that where penalty is provided for non-compliance of some provision then it is mandatory other-wise directory in nature. We may add that this voter in case of other candidates has put cross (X) marks at the specified place, however, for the office of President and Secretary, he opted to give peculiar marks. Had the voter given similar marks in all the columns against, the names of the candidates, this might have given the Petitioner some justification to argue before us to substantiate his claim, but in the case in hand we are not inclined to accept his arguments as it has been advanced and thus hold that the fourth vote was also rightly excluded from counting by the Election Board.
5. The petitioner has not been able to substantiate his claim either from the record or otherwise.
We, therefore, find no merits in this election petition, which is hereby dismissed.
(R.A.) Election petition dismsised.