P L D 1967 Supreme Court 466

Present: A. R. Cornelius, C. J., S. A. Rahman, Fazle‑Akbar,

Hamoodur Rahman and Muhammad Yaqub Ali, JJ

NIAZ AHMAD ‑Appellant

versus

(1) AZIZUDDIN,

(2) THE ADDITIONAL COMMISSIONER,

EXERCISING JURISDICTION OF

ELECTION TRIBUNAL, KARACHI,

(3) Syed USMAN ALI,

(4) MANZOORUL HASSAN,

(5) W. U. SIDDIQUI,

(6) KARAMAT ALI,

(7) MEHDI HASSAN AND

(8) Syed AZHAR ALI‑Respondents

Civil Appeal No. K‑8 of 1967, decided on 26/06/1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 28th October 1966, in Petitions Nos. 706 and 660 of 1965).

(a) Constitution of Pakistan (1962), Art. 58(3)‑Leave to appeal‑Granted by Supreme Court where question raised related to the true interpretation of Art. 172, Constitution of Pakistan (1962) and of S. 45, Electoral College Act (IV of 1964).

(b) Constitution of Pakistan (1962), Art. 172, read with S. 41, Electoral College Act (IV of 1964)‑Secrecy of ballot Absolute and ideal" secrecy not intended by Art. 172.

Held, that the secrecy of the ballot has not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election. Viewed in this light, the question whether the provisions of Article 172 of the Constitution are to be regarded as mandatory or directory, would not apparently arise.

A very stringent view of the constitutional requirement of secrecy would not lead to a practicable scheme for securing the exercise of franchise by all those entitled to vote. The demands of secrecy would have to be consistent with the exigencies of the election in so far as the voters suffering from some personal physical incapacity, have to be catered for.

The Electoral College Act, therefore, ensures all reasonable precautions for the maintenance of the secrecy of the ballot and in this respect the mandate of the Constitution seems to have been carried out by the Legislature.

Section 41, Electoral College Act (IV of 1964) provides an instance of the ideal of secrecy being sacrificed to the necessity of resolving a difficult situation inherent in the election process.

Mir Ghulam Nabi Khan v. The Election Petitions Tribunal P L D 1957 S C (Pak.) 301 ref.

American Jurisprudence "Elections", 225, Vol. 18.

Woodward v. Sarsons & Sadler 32 L T R 867 distinguished.

(a) Electoral College Act (IV of 1964), S. 45(1)(b) read with 42‑‑Ballot paper on which a mark is made by someone other other‑Not invalid‑Words "marked", "or written by the voter" in S. 45(l)(b) not to be read disjunctively‑Words "by the voter", deliberately inserted in S. 45(1)(b)‑Interpretation of statutes Words used, as regards identical subject, different in different statutes‑Different interpretation rather than identical construction justified Challenged voters' ballot papers marked by Presiding Officer with serial number of voter and, in some cases, with name and parentage of voter‑Ballot not invalid‑Electoral College Act, 1964 does not provide such a penalty for such an act Presiding Officer giving out orally name of candidate for whom a ballot is cast‑Such ballot not invalidated thereby‑Words "that is to say" in S. 45(1), Electoral College Act (IV of 1964) to be understood in restrictive sense, being definitive of situations in which a vote is to be regarded as invalid.

The question for determination was whether clause (b) of subsection (1) of section 45 of the Electoral College Act, 1964, should be so interpreted as to make a ballot paper, on which a mark is placed by someone other than a voter, also invalid

Held, that the plain language of clause (b) of subsection (1) of section 45, Electoral College Act, 1'964 did not seem to be consistent with such an interpretation. There was no reason for reading the words "marked" and "or written by the voter" disjunctively in this clause. These provisions relate to the lowest tier of democracy in the country.

The language used by the Legislature being different in the Act, from that employed in the corresponding provisions of the National and Provincial Assemblies (Elections) Act, 1964, the Referendum Act and the Presidential Election Act, this should, if anything, justify a different interpretation rather than an identical construction. The use of the words "by the voter", occurring in clause (b) of subsection (1) of section 45 of the Act, appear to have been deliberately inserted by the Legislature therein and must be given full effect.

Would the further act of the Presiding Officer in endorsing a writing on the vote by which the voter could be identified, amount to something which destroys the value of the vote qua the voter, in the absence of any provision in the Act entailing such a consequence? The answer ought to be in the negative. The most important ground for taking that view is the absence of a provision in the Act, imposing such a penalty. Another reason would be that if contrary view is to prevail, the voter would be disfranchised fir no fault of his own or of the candidate for whom he wished to vote, whereas the delinquent officer is not amenable to his control. Such a result has to be avoided unless the Act itself leaves no room for escape.

Supposing the Presiding Officer instead of making an endorsement on the ballot paper, gives out orally the name of the candidate for whom a particular vote was being cast. In such a case, there would be no doubt, the ballot paper would not be invalidated, though the Presiding Officer may be liable to punishment. Why should the position be different if, instead of such a verbal statement, the Presiding Officer achieves the same result by a writing on the ballot paper itself, without the consent of the voter?

Unless the Legislature itself prescribes for such a contingency, the voter should not be penalised for the fault of a third person.

The words "that is to say" in section 45(t), Electoral College Act, 1964 do not imply that what follows is inserted therein merely by way of illustration, leaving the relevant authorities a wide scope for discovering other grounds of invalidity of a vote. On the contrary, the words are apparently definitive of the situations in which a vote is to be regarded as invalid and should be understood in a restrictive sense. The necessity of providing precise guidance to polling officers in this behalf was apparently kept in view by the Legislature.

(d) Electoral College Rules, 1964, r. 36(1‑A)‑Presiding Officer failing to maintain secrecy of ballot in respect of a number of ballots‑Question whether such action materially affected result of election‑To be raised in election petition ‑ Election Tribunal proper forum, for decision of issue.

(e) Constitution o0f Pakistan (1962), Art. 98‑Question claimed to have affected materially result of election, not raised before Election Tribunal‑Cannot be raised for first time in writ petition before High Court.

Sayeed A. Shaikh, Advocate Supreme Court instructed by Shafiq Ahmad, Senior Attorney for Appellant.

Muhammad Shahabuddin Farooq, Advocate High Court briefed with Hamid Hussain, Advocate Supreme Court, instructed by M. Anwar Ali, Attorney for Respondents No. 2‑6.

Respondent No. 1 in person.

Date of hearing: 29th May 1967.

JUDGMENT

S. A. RAHMAN, J.‑This appeal by special leave raises the question as to the true interpretation of Article 172 of the Constitution and section 45 of the Electoral College Act, 1964 (hereinafter referred to as the Act). The point has arisen in the following circumstances.

The appellant, Niaz Ahmad, was a candidate for election to the Electoral College of Pakistan, from Electoral Unit No. 446, Garden Quarters, Karachi, at an election held on the 3rd November 1964. The first and the 5th to the 8th respondents to the appeal, were the other contesting candidates. During tile polling, some 48 votes were challenged, some, on behalf of the first respondent, Azizuddin and the rest, by the other contesting candidates. The Presiding Officer endorsed ballot papers, issued to the challenged voters, with the serial numbers of the Electors in the Voters' List. In some cases, the names of the voters and their parentage were also endorsed on the ballot papers. At the time of the count, when the ballot papers were brought out of the ballot boxes, it was found that the appellant, Niaz Ahmad, had obtained 134 unchallenged votes and 28 challenged votes, while the corresponding figures for Azizuddin, the first respondent, were 147 and 3, respectively. We are not concerned in this appeal with the position of the other contesting candidates.

In the course of the count, the Presiding Officer at first left out the challenged votes of each candidate and thus declared Azizuddin, the first respondent, to be duly elected from the constituency. Later on, however, he rectified the mistake, and after taking into account the challenged votes also, he declared the appellant who had received 162 votes as against the 150 polled for the first respondent, to have been duly elected and the Returning Officer, in accordance with this result, published the name of the appellant in the official Gazette, as the duly elected candidate of the Unit.

The election of the appellant was challenged by a petition, filed in the High Court, being Petition No. 831 of 1964, by Azizuddin. This petition was dismissed by order, dated the 19th of March 1965, under Article 98 of the Constitution, on the ground that the petition involved disputed questions of fact and also, on the additional ground that Azizuddin had already filed an election petition in the matter, before the relevant Election Tribunal. That Election Petition had apparently been filed on the 8th of December 1964. The grounds pressed, in support of that election petition, were apparently that the Presiding Officer having declared the respondent, Azizuddin, as the successful candidate, he was legally debarred from changing this result afterwards and that the challenged votes, on which endorsements of the candidates' particulars had been made so as to identify the voters, could not be regarded as valid. The Election Tribunal dismissed that petition by order, dated the 9th September 1965. It was held by the Tribunal that the Presiding Officer was not justified in initially excluding the challenged votes, on which he had himself endorsed, due to a misunderstanding of the law, particulars of the voters and that, under section 45 of the Electoral College Act, 1964, such votes could not be treated as invalid.

A writ petition was then moved by Azizuddin in the High Court of West Pakistan, calling in question the decision of the Election Tribunal. The petition was heard by a Division Bench of the High Court, consisting of Waheeduddin Abmad and Anwarul Haq, JJ. As there was difference of opinion between them, in respect of the interpretation to be placed on Article 172 of the Constitution and section 45 of the Act, the case was placed, under clause 10 of the Letters Patent of the High Court, before a third Judge, Farooqi, J. The latter agreed with the view taken by Waheeduddin Ahmad, J. and as a consequence, the petition was allowed and the election set aside, with the direction that a fresh election be held, in accordance with law.

It was recognised by the learned Judges in the High Court that the action of the Presiding Officer, in endorsing particulars of the voters, by which they could be identified, on the challenged ballot papers, was in violation of section 42 of the Act, which is in the following terms:‑

"42. Challenge of voter.‑(1) If at the time a person applies for a ballot paper for the purpose of voting, a candidate or his polling agent, declares to the Presiding Officer that he has reasonable cause to believe that that person has committed an offence of personation and undertakes to prove the charge in the Court of law, the Presiding Officer may, after warning the person of the consequences of personation and obtaining his thumb‑impression and if he is literate, also his signature, on the counterfoil, issue a ballot paper to that person.

(2) If the Presiding Officer issues a ballot paper under subsection (1) to such person, he shall enter the name and address of that person, in a list to be prepared by him (hereinafter referred to as `the challenged votes list') and obtain thereon the signature or thumb‑impression of that person:

Provided that no action shall be taken by the Presiding officer unless such sum as may be prescribed has been deposited in cash with the Presiding Officer by the candidate or his agent for each challenge made under this section."

The procedure prescribed under this section was not followed by the Presiding Officer due to ignorance of the law. Instead of preparing the "challenged votes list" aid obtaining the signature of the challenged voter on that list, or on the counterfoil of the ballot paper issued to him, he endorsed the particulars of the voter on the ballot paper itself. At the time of the count, therefore, the identity of the voter and the candidate for whom he had voted both stood revealed.

In the High Court, the learned counsel for Azizuddin was unable too refer to any provision in the Act, under which the challenged votes could not be counted. In law, therefore, the result of the election had to be declared, according to the learned Judges, after counting such votes. This being the position, they were of the opinion further that even if the Presiding Officer could not have changed the result once declared, the breach of the provision, in respect of the challenged votes by him, would be good ground for the High Court not to exercise its discretion under Article 98 of the Constitution, on the principle that it would not lend its assistance to perpetuate an illegality.

Waheeduddin Ahmad, J., however, went on to accept the contention raised, on behalf of the first respondent, that the ballot papers carrying the identifying endorsements, were otherwise invalid and could not, therefore, be taken into consideration in the count. This view was founded on the basis of violation of secrecy of the ballot by the action of the Presiding Officer.

It is necessary at this stage to advert to the relevant provisions of section 45 of the Act, which read as follows :‑

"45. Procedure on the close of poll.‑(I) Immediately after the close of the poll, that is, as soon as the last of such persons, if any, as are present and waiting to vote as mentioned in section 44, has voted, the Presiding Officer shall, in the presence of such of the contesting candidates and polling agents as may be present, open the ballot box of each contesting candidate, in the alphabetical order of the names of the candidates and count the, ballot papers contained in the ballot box so opened, excluding the invalid ballot papers, that is to say, the ballot papers‑

(a) which do not bear the official mark, or

(b) on which anything is‑ marked or written by the voter by which he can be identified."

In the course of his judgment, Waheeduddin Ahmad, J., observed that the irregularity committed in this case, in respect of the ballot papers in question, would be hit by the above provision of law, only if it be held that clause (b) of subsection (1) of section 45 could cover marks made by persons other than voters. The learned Judge was conscious of the well‑established rule that ordinarily, a voter could not be disfranchised for the illegal act of the officers conducting the election on whom there is no control of the voters, in the absence of a statutory provision to that effect, as was laid down by this Court in Mir Nabi Bakhsh Khan v. The Election Petitions Tribunal (P L D 1957 S C (Pak.) 301). The learned Judge, however, thought that this principle was only applicable to such cases where the alleged irregularity does not conflict with the basic notions behind a statute" and that "if it struck at the very basis of the fundamental law or constitutional provisions, it could not be lightly treated". In view of the provisions of Article 172 of the Constitution, which enacts that all elections and referendums referred to in Part V1I of the Constitution shall be decided by secret ballot, the learned Judge expressed the opinion that the construction to be placed on clause (b) of subsection (1) of section 45, should be consistent with demand of absolute secrecy. He was, therefore, inclined to the view that the words "marked" and "or written by the voter", occurring in clause (b) of subsection (1) of section 45, should be read disjunctively so as to make it possible to bring a mark made by a person, other than a voter, on the ballot paper, within the mischief of this provision. The learned Judge fortified himself in this view by referring to subsection (5) of section 40 of the Act which provides that "where a voter is blind or is otherwise so incapacitated that he cannot vote without the assistance of a companion, the Presiding Officer shall allow him such assistance and thereupon such voter may do anything with such assistance which a voter is required or permitted to do under this Act". This according to the learned Judge, opened up the possibility of. a mark being made by a person other than a voter, on a ballot paper and, therefore, there would be no inconsistency with the other provisions of the Act, if the word. "marked" was made referable to voters as well as other persons. He considered that the argument received further strength from the words "that is to say", occurring in the opening part of subsection (1) of section 45, so that, in his opinion, clauses (a) and (b) were merely illustrative of the Legislative intent and were not meant to be exhaustive of the conditions under which the ballot paper could be held to be invalid. Section 70 of the Act was also referred to in this context, which makes the failure to maintain secrecy of the voting by, inter alia, the Presiding Officer a punishable offence. He, therefore, drew the inference that a vote, polled in violation of the principle of secret ballot, should also be held to be invalid. This view, according to the learned Judge, would amount to no more than reading the provisions of Article 172 of the Constitution as part of the Act.

Due to the number of the ballot papers, in respect of which the identity of the voters stood revealed, Waheeduddin Ahmad, J., held that rule 36(1‑A) of the Electoral College Rules, 1964, was attracted to the case. That rule lays down that "the Tribunal shall declare the election of the returned candidate or the election as a whole to be void, if it is satisfied that the result of the election has been materially affected, by reason of the failure of any person to comply with, or the contravention of any provision of the Act or these rules". It was pointed out by him that if 28 challenged votes were to be excluded from the votes obtained by the appellant, Niaz Ahmad, he would be left with 134 votes which would be less than the valid votes of the first respondent. In these circumstances it was found that, by the irregularity committed by the Presiding Officer, the result had been materially affected and, therefore, the election required to be set aside.

Anwarul Haq, J., thought that the question of the validity of the ballot papers had to be decided with reference to sections 42 and 45 of the Act and in the light of Article 172 of the Constitution. On the plain language of section 45, he found it difficult to uphold the suggestion that a vote could be invalidated by a mark or a writing made by a person, other than a voter. He declined to read the words "marked" and "or written by the voter" disjunctively. He emphasized that the Constitution itself had not prescribed any particular machinery to ensure the secrecy of the ballot. Article 164 of that Constitution enacts that "elections and referendums require "``' to be held under this Constitution shall, subject to the Constitution, be conducted and decided in such manner as ma be provided by law". The learned Judge thought that the principle of secrecy of the ballot had been sufficiently provided for in the Act. He referred in this connection to sections 40, 45, 69 and 70 of the Act and expressed the opinion that the Constitutional mandate of secrecy had been faithfully embodied therein.

He then examined the argument based on the provisions of Article 172 of the Constitution. Assuming that these provisions were not fully carried out in the Act, the learned Judge thought that Article 172 should be regarded as directory rather than mandatory, if it was to be understood in the absolute sense and a vote should not become invalid on account of something done, not by the voter but by the polling officer, over whom he had no control. He relied in this connection, on a judgment of the High Court in Haji Muhammad Rafiq v. The Election Tribunal, Hyderabad, decided at Karachi on the 3rd of February 1966. The following quotation from that judgment was referred to by him, as particularly apt in the circumstances of the case:‑

"From the authorities cited by Mr. Junejo it becomes clear that an irregularity in the ballot paper arising from an omission on the part of an election official, or a public functionary, is not to be regarded as vitiating the vote. of an elector who is innocent of any wrong or default to the matter, ‑unless such irregularity has been declared by the statute itself, to be fatal to the validity of the ballot. In the specific matter of the presence or absence of the official mark, the preponderance of authority is to the effect that if the statute declares a ballot paper to be invalid for want of the official mark, then it has to be held as such, unless, of course, the intention to place the official mark is clearly evident from the paper itself, as for example, in a case where the stamp has been impressed but the impression has not come on the paper, or where a wrong seal was applied by the polling officer, by mistake."

The general rule laid down in that case was expressed in these terms:‑

"Our conclusions ‑are that as a general rule the failure of the Election Officials to comply with the statutory directions is not to be regarded as invalidating a ballot paper or an election, except where the consequence of such failure, has been clearly prescribed by the Legislature itself."

Support was derived by the learned Judge from the observations of this Court in Mir Nabi Bakhsh Khan v. Election Petitions Tribunal.

It was observed that in that case no constitutional provision fell to be considered, yet the principle laid down therein was held to be applicable to the present case.

In the ultimate result, it was found by Anwarul Haq; J., that the ballot paper, on which the identifying mark or writing was made by the Election Officer, was not to be regarded as invalid under section 45 of the Act. Any other interpretation; he pointed out, would frustrate the very object of the constitutional provisions which are intended to ensure free and fair elections. He, therefore cached the conclusion that the Election Tribunal had correctly decided the case and there was no scope for interference by the High Court.

The third learned Judge, Farooqi, J., generally agreed with the reasoning of Waheeduddin Ahmad, J. In addition he pointed out that the provisions corresponding to section 45 of the Act in the National and Provincial Assemblies (Elections) Act, 1964, the Presidential Election Act, 1964 and the Referendum Act, 1964, made a ballot paper bearing "any mark by which an elector can be identified" invalid. He pressed this fact into service to raise a presumption that the Legislature did not intend to make different provision in section 45 of the Act. If that section w ere to be read as not invalidating a ballot paper, bearing an identifying mark made by a person other than a voter, it would, in the opinion of the learned Judge offend against the constitutional provisions contained in Article 172 and would for that reason, be void, pro tanto. He regarded Art. 172 of the Constitution, as mandatory in its nature.

It will be seen that the majority judgment in the High Court turned on the true effect of Article 172 of the Constitution, which enjoins that all elections and referendums under Part VII of the Constitution shall be decided by secret ballot. The first question, therefore, that arises for consideration is whether this provision should be interpreted as implying that absolute and ideal secrecy is to be aimed at, during an election. If this had been the intention, however, one would have expected some further guide‑lines to be given in the Constitution itself, on this point. On the contrary, the matter has been left to be regulated by sub‑constitutional Legislation, as laid down in Article 164 of the Constitution. That Article reads as follows:‑

"Elections and referendums required to be held under this Constitution shall, subject to this Constitution, be conducted and decided in such manner as may be provided by law."

The relevant provisions of the Act, therefore, are referable to this Article. Waheeduddin Ahmad, J., in support of his position that the Constitutional injunction regarding secrecy is an absolute one, referred to an English decision, reported as Woodward v. Sarsons & Sadler (32 L T R 867). In that case, which related to Municipal elections in England, the Presiding Officer at one of the polling stations had marked on the face of 294 ballot papers, the numbers on the burgess rolls, of the voters in question. The ballot papers so marked were rejected by the Returning Officer as invalid and his decision was upheld. It has, however, been pointed out by Anwarul Haq, J., and recognised by Farooqi, J that the case is distinguishable from the present one in so far as there was express provision in section 2 of the Ballot Act, to the effect that any ballot paper, which has not on its back the official mark or on which votes are given to more candidates than the voter is entitled to vote for, or on which anything except the said number on the back is written or marked, by which the voter can be identified, shall be void and not counted. It cannot be said, therefore, that the decision in that case was based on any notion of absolute secrecy apart from the specific provision of the statute.

As has been noticed even iii the High Court, some guidance could be obtained from the decision of this Court in Mir Ghulam Nabi Khan v. The Election Petitions Tribunal, on this point. The case dealt with a dispute about the election to the West Pakistan Interim Legislature. The arrangements made by the Governor for the conduct of elections under para. 10, Second Schedule, Establishment of West Pakistan Act, 1955, consisted of certain rules and notes of guidance issued to the Returning Officers. The rules, inter alia, provided that the poll shall be by secret ballot and that the ballot paper was to be deposited by the voter in the ballot box bearing the symbol or colour assigned to the candidate in whose favour the voter wished to vote. In addition to this, one of the directions in the notes of guidance was to the effect that the ballot boxes should be placed on the table of the Returning Officer. It was contended that the latter direction amounted to breach of the rule requiring secrecy of the ballot. It was held that in an election conducted by means of the coloured box system, it would be in the nature of things necessary that the ballot boxes were kept in the view of the Presiding Officer or some other officer appointed by him, so that foul play could be successfully averted and blind or colour blind voters could be helped to cast their votes. The reasonable interpretation of the relevant rule was that it required secrecy consistent with the supervision which was essential for a fair election to be held. It was further observed that even if absolute secrecy was contemplated by the arrangement, it did not seem fair or reasonable to disfranchise voters merely because a rule had been violated by the Returning Officer. Reliance was placed in that case on the following passage occurring in Vol. 18 of American Jurisprudence, Elections, 225:

"It may, therefore, be stated as a general rule that if ballots are cast by voters who are, at the time, qualified to cast them and who have done all on their part that the law requires of voters to make their voting effective, an erroneous or even unlawful handling of the ballots, by the election officers charged with such responsibility, will not be held to disfranchise such voters, by throwing out their votes, on account of erroneous procedure had solely by the election officers, provided the votes are legal votes in their inception and are still capable of being given proper effect as such. Nor will an election be set aside because of irregularities on the part of the election officials, unless it appears that such irregularities affect the result."

The secrecy of the ballot, therefore, has not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election. Viewed in this light the question whether the provisions of Article 172 of the Constitution are to be regarded as mandatory or directory, would not apparently arise.

Looking at the provisions of the Act itself, it will be found that the maintenance of the secrecy of the ballot is ensured by several sections. The ballot boxes at the election in question had to be distinguished for each candidate, by his particular symbol, as provided by section 37. The voting procedure is laid down in section 40 of the Act. It enacts that where a voter presents himself at the polling station to vote, the Presiding Officer shall, after satisfying himself about the identity of the voter, give him a ballot paper, after making a mark in the electoral roll against his name. The ballot paper is to be stamped with the official mark on its back and initialed by the Presiding Officer. The number of the voter on the electoral roll is also required to be marked in writing on the counterfoil, by the Presiding Officer who is to stamp the counterfoil with the official mark and initial it. The number of the voter on the roll, however, is not to be placed on the ballot paper itself. The voter, on receiving the ballot paper, is then required forthwith to enter the room or compartment in which ballot boxes are placed and to secretly place his ballot paper in the ballot box bearing the number and symbol of the candidate for whom he wishes to vote. The voter is then required, without undue delay, to leave the polling station, immediately after he has put his ballot paper into the ballot box. There is an exception envisaged in the case of a voter who is blind or is so incapacitated that he cannot vote without the assistance of a companion. Subsection (5) of section 40 of the Act provides in such a case that the Presiding Officer shall allow him such assistance, and thereupon the voter may do anything with such assistance, which a voter is required or permitted to do, under the Act. This provision itself indicates that a very stringent view of the constitutional requirement of secrecy would not lead to a practicable scheme for securing the exercise of franchise by all those entitled to vote. The demands of secrecy would have to be consistent with the exigencies of the election in so far as the voters suffering from some personal physical incapacity, have to be catered for. As has been noted in the High Court judgment moreover, any interference with the maintenance of secrecy of the ballot or failure to maintain secrecy are made punishable under sections 69 and 70 of the Act. Section 71 forbids election officials to do any act for and against a candidate, by persuading any person to give his vote, or dissuading any person from giving his vote, or influencing in any manner any person. Then there is section 45 of the Act which imposes a penalty for invalidation of votes on which anything is marked or written by the voter, by which he can be identified. The Act, therefore, ensures all reasonable precautions for the maintenance of the secrecy of the ballot and in this respect the mandate of the Constitution seems to have beer carried out by the Legislature.

It is of some interest to note that under section 41 of the Act, if a person representing himself to be a voter applies for a ballot paper, when another person has already represented himself to be that voter and has voted under the name of the person so applying, he is to be given, what is called a "tendered ballot paper". This "tendered ballot paper" is not to be put in the ballot box but is to be given to the Presiding Officer and endorsed by him with the name of the person applying and his number in the electoral roll, and set aside in a separate packet, endorsed with the name of the candidate for whom he wishes to vote. The name of the person applying for a ballot paper under this section and his number on the electoral roll is, also required to be entered in a list, called "the tendered votes list". It is clear that under this provision, the vote of a person given a "tendered ballot paper" may not be counted immediately at the poll, but there is a possibility of its being eventually counted, if, subsequently, an election petition is filed and the case is made out that the person who was given the tendered vote was the genuine voter. On such a finding the result of the election may then be affected but it is obvious that the vote of such a person has not been cast for a particular candidate, in circumstances of secrecy. This again provides an instance of the ideal of secrecy being sacrificed to the necessity of resolving a difficult situation inherent in the election process.

The next question that calls for determination is whether clause (b) of subsection (1) of section 45 of the Act should be so interpreted as to make a ballot paper, on which a mark is placed by someone other than a voter, also invalid. The plain language of this clause however, does not seem to be consistent with such an interpretation. There is no reason for reading the words "marked" and "or written by the voter" disjunctively in this clause. These provisions relate to the lowest tier of democracy in the country. The mere fact, therefore, that at higher stages of the democratic process, e .g., for the election of the President or the members of the Legislature or a referendum, more stringent provisions have been enacted, so as to invalidate a ballot paper on which an identifying mark has been placed by anyone, need not lead to the conclusion that the Legislature intended to make similar provision in the case of elections to these primary units which are small compact constituencies. The language used by the Legislature being different in the Act, from that employed in the corresponding provisions of the National and Provincial Assemblies (Elections) Act, the Referendum Act and the Presidential Election Act, this should, if anything, justify a different interpretation rather than ant' identical construction. The use of the words "by the voter", occurring in clause (6) of subsection (1) of section 45 of the Act, appear to have been deliberately inserted by the Legislature therein and must be given full effect.

The question then arises whether the act of the Presiding Officer is endorsing on some of the ballot papers issued to "challenged voters", under section 42 of the Act, the serial number of the voters as appearing in the electoral roll, would destroy the validity of the votes in question. It is to be remembered that the action of the Presiding Officer in this behalf was not sanctioned by section 42 and he seems to have acted in ignorance of the law but not mala fide. The point of his motive, however, is an irrelevant factor. The .main fact to be remembered is that it is not the voter or his candidate who had done anything to destroy the secrecy of the ballot. Only a mistaken act of the official is responsible for it. By the mere circumstance of the challenge to a voter, on behalf of one candidate, an indication, though indirect, is at once provided that the voter would be casting his vote for the opposite candidate. To a certain extent, therefore, the secrecy of the ballot may be said to have been impaired by this procedural step. Would the further act of the Presiding Officer in endorsing a writing on the vote by which he could be identified, amount to something which destroys the value of the vote qua the voter, in the absence of any provision in the Act entailing such a consequence? The answer ought to be in the negative. The most important ground for taking that view is the absence of a provision in the Act, imposing such of a penalty. Another reason which has been emphasized by Anwarul Haq, J., would be that if the contrary view is to prevail, the voter would be disfranchised for no fault of his own or of the candidate for whom he wished to vote, whereas the delinquent officer is not amenable to his control. Such result has to be avoided unless the Act itself leaves no room for escape.

Supposing the Presiding Officer instead of making an endorsement on the ballot paper, gives out orally the name of the candidate for whom a particular vote was being cast. In such a case, there would be no doubt, the ballot paper would not be invalidated, though the Presiding Officer may be liable to punishment. Why should the position be different if, instead of such a verbal statement, the Presiding Officer achieves the same result by a writing on the ballot paper itself, without the consent of the voter? If such a writing is to invalidate the vote, even in the absence of a specific provision in the Act to that effect, a dishonest polling officer may easily defeat a candidate by arranging for the requisite number of challenges to be thrown to voters and then endorsing their ballot papers with identifying marks. The result of the election would then be at the mercy of a corrupt officer. Unless, therefore, the Legislature itself prescribes for such a contingency, the voter should not be penalized for the fault of a third person. The principle laid down by and Division Bench of the High Court consisting of Waheeduddin Ahmad and Anwarul Haq, JJ., in the case of Haji Muhammad Rafiq v. The Election Tribunal, Hyderabad, decided on the 3rd of February 1966, appears to be unexceptionable in this context.

With respect, it seems to us that the view adopted by Wabeeduddin, J., as regards the effect of the words "that is to say" occurring in section 45(I) of the Act, was questionable. These words do not imply that what follows is inserted therein merely by way of illustration, leaving the relevant authorities a wide scope for discovering other grounds of invalidity of a vote. On the contrary, the words are apparently definitive of the situations in which a vote is to be regarded as invalid and should be understood in a restrictive sense. The necessity of providing precise guidance to polling officers in this behalf was apparently kept in view by the Legislature.

The question whether the act of the Presiding Officer in failing to maintain secrecy, in respect of several ballot papers in this case, affected the result of the election materially, within the meaning of rule 36(1‑A) of the Electoral College Rules, 1964, could have been raised in the election petition, but apparently no attempt was made to establish such a case before the Tribunal. That was the proper forum for the decision of such an issue. The point not having been taken there, could not have been raised, for the first time, on a writ petition in the High Court.

As a result of the above discussion, this appeal must be allowed. The order made by the High Court is hereby set aside and the direction issued by it recalled. In the circumstances of the case, we leave the parties to bear their own costs in this Court.

A. H. Appeal allowed.