06/06/2024
✅2024 PLD 66 KARACHI-HIGH-COURT-SINDH
IMRAN KHAN VS Malik AMANULLAH KHAN
Cantonments Local Government (Election) Rules 2015--RULE ,
Rr. 40, 80 & 89---Election of the Cantonments Board---Post of Vice-President---Casting of vote---Doubtful vote---Secrecy regarding identity of voter---Invalidity---Petitioner and respondent were rival candidates---Petitioner secured 6 out of a total of 11 votes as opposed to the 5 votes obtained by the respondent---Respondent preferred an appeal on the ground that one member/voter had placed a mark other than a cross mark in the column provided on the ballot paper against the name of the petitioner in an endeavor to deliberately disclose his identity which was violation of R. 89(4) of the Cantonments Local Government (Election) Rules, 2015 ('the Rules 2015') , which showed secret pact between said caster and the petitioner---Appellate Election Authority allowed said appeal---Validity---Overall framework of the Rules, 2015 revealed that R. 40 of the Rules 2015 related to the direct election for members of the Board where the public comprised of the electorate while casting their votes by affixing a mark within a box appearing against the name of their chosen candidate using the particular marking aid rubber stamp provided for such purpose---Said process was different from an indirect election envisaged under Rr. 88 & 89 of the Rules, 2015 where the elected councilors were to elect the Vice-President---As such, R. 40(4) of the Rules, 2015 and its proviso could not be conflated with the provisions relating to the Vice-Presidential election---Furthermore, beyond the requirement of R.89(5) of the Rules 2015 that a vote for the Vice-President be recorded in private , no further element of secrecy was discernible---Nor was any consequence provided for a violation described under R. 89(6) of the Rules, 2015, which only provides three circumstances for invalidity of ballot-paper---Admittedly, none of the causes/circumstances for invalidation as stated in R. 89(6) of the Rules, 2015 was applicable in the matter-in-hand---Moreover, the assertion of secret pact between the petitioner and the caster of the vote remained a hypothesis unsupported by even a suggestion as to the identity of the errant voter , let alone any tangible evidence---Present case was not one where a rubber marking stamp was to have been used, nor such was the case of the respondent, for if that were so, all the votes cast in the Vice-Presidential election would have to be discarded---Thus, the findings of the Appellate Election Authority could not be sustained---High Court set-aside the impugned order passed by the Appellate Election Authority---Constitutional petition was allowed, in circumstances.
