019-NLR-NLR-V-73-M.-C.-AHAMED-Appellant-and-ALIYAR-LEBBE-alias-Shahul-Hameed-Respondent.pdf
SIRIMANT3, J.—Aharrcd v. Aliyar Lcbba
1969 Present : Sirimane, AUes and Samerawickrame, JJj
M.C. AHA3IED, Appellant, and ALIYAR LEBBE{alias Shahul Hamced), Respondent
Election Petition Appeal No. 5 of 196S—Electoral DistrictKalmunai
Parliamentary election—Abetment oj personation—Ingredients of offence—PresidingOfficer—Incapacity'to refuse ballot papers—Appeal from order of an ElectionJudge—"Point of law"—Ceylon (Parliamentary Elections) Order in Council(Cap. 3SJ), ss. 42 (2A). 43 (1), 54. SIC (2).
A person docs not commit tho offenco of abetment of personation at a pollingbooth during a Parliamentary election if, after an impersonator has alreadyapplied for a ballot paper claiming to bo a person on tho register of electors, hotells tho Presiding Officer, upon objection taken by a polling agent as to theidentity of the impersonator, that the impersonator is tho person impersonated.Tho Presiding Officer has no powor to refuse a ballot paper to a person whoapplies for ono ; the only instances where ho can do so aro'sot out in sections. 42 (2A) and 43 (1) of tho Parliamentary Elections Order in Councilr
Per SnuMAXX, J.—An Election Judge’s inferences which are unsupported byovidonco would raise a quostion of law giving a right of appeal to the SupremeCourt.
jE LECTION Petition Appeal No. 5 of 196S—Electoral District,Kalmunai.
Q.E. Chilly, Q.C., with Hannan Ismail, Stanley Tillekeratne,
O.E. Chitty (Jnr.) and N. A. Bahuman, for tho respondent-appellant.
Banganathan, Q.C., with K. Shanmagalingam, B. Bajasingham,
Sandarasegara and C. Chandrahasan, for tho petitioner-respondent.
Cur. adv. vult.
July IS, 1969. SntniAKE, J.—
The respondent-appcllant, whom I shall refer to as the respondent forconvenience, was elected to represent the Electoral District of Kalmunaiin Parliament at a By-Election held on 1S.2.CS.
The petitioner-respondent (whom I shall refer to as the petitioner)filed an election petition praying that the election of the respondent bodeclared void on several grounds. In the petition he set out a number ofcharges of Undue Influence, False Statements and Personation. Atthe trial, however, he dropped most of these charges and confined his caseto two charges of Undue Influence exercised by the respondent’s agents,and two of abetment of personation committed by the respondent. TheLXXIII—4l*—3 14213 (8/70)
74
SIRIMAXB, J.—Ahamcd v. AVvjar Lcbbc
Election Judge dismissal the charges of Undue Influence, but heldthat the respondent had abetted personation, and declared tho electionvoid.
The main grounds urged at the hearing of this appeal were—
(а)that there was no evidence to support the finding against the'
respondent,
(б)that a Presiding Officer has no power to refuse a ballot paper to
a person who applies for one, and the trial Judge was wrongwhen he dealt with the evidence on the basis that the PresidingOfficer had such a power,
(c) that the offence of personation as a " corrupt practice ” for the. purposes of section 54 of the Ceylon (Parliamentary Elections)Order in Council is complete when a person presents himself ata polling booth and applies for a ballot paper, where it is alleged- that the personation, as in this case, was committed whenvoting in person. It was argued that the offence being completeat that stage, there could be no abetment as it was admittedthat the application for ballot papers was made before therespondent arrived at the polling booth.
The allegation made by the petitioner was that two women personatedtwo voters named Awa Umma, wife of Seeni Mohamed Hadjiaf (VoterNo. FI 467) who was alleged to have been dead, and Raviyath Ummah,wife of Mohamed Hussain (Voter No. F 587) who was said to be a "cousinof the polling agent (one Mukthar) of one of the opposing candidates:
I have to deal with this appeal on the footing that there had beenpersonation of these two voters by two women (though it was contendedthat there was no convincing evidence on this point), as the learnedJudge has held on the evidence led that there had been personation.
The particulars furnished by the petitioner set out the manner inwhich the respondent is alleged to have abetted the two personators.In each case it was set out that on this day between I‘30 and 2-30 p.m.the respondent identified the Personator as the person personated,and in column 4 setting out the particulars of each act ofpersonation, the petitioner alleged that,
"when the impersonator claimed the ballot paper to vote, the identitywas challenged and on being questioned by the Presiding Officer therespondent who was present in the booth personally identified theimpersonator as the impersonated and enabled the impersonator toexercise that vote. ”
.That was the charge which the petitioner undertook to provebeyond reasonable doubt and the charge which the respondenthad to meet.
SIRIMAXE, J.—Ahamed v. Aliyar Lebbe
75
The evidence accepted by the learned Judge shows that the pollingagent Mukthar had raised objections to a number of women voters—aboutten or twelve—all of which had been overruled, and the respondentarrived there on learning that frivolous objections were being raised inorder to delay the voting at a booth where the respondent had muchsupport.
According to that part of the evidence of Mukthar, which the Judgehas accepted, the respondent came in when he (Mukthar) was objectingto these women voting. There is no evidence that the respondent wasmade aware of the nature of the objections. There is no evidence thatthe respondent was even within hearing distance when those objectionswere being raised. Ho is alleged to have abetted tlio two voters by thewords he used.
YVhat then did tho respondent say 1 On this point the learned Judgehas accepted only the evidence of the Presiding Officer Gnanasekaram.The Judge thought that it was unsafe to act on the evidence of Muktharon this point as he apparently did not understand English.
The actus reus consisted solely of the words used by the respondent-,and in view of the very strong contention that Gnanasekaram’s evidencedid not support the charge, it is necessary to examine that evidence insome detail.
The petitioner relied on an entry made by Gnanasekaram in thejournal PI2a in the case of one woman, where he gives as one of hisreasons for issuing a ballot paper to her (the number-of the ballot paperis incorrectly entered) that the respondent "revealed and stood suretyfor her identity ”. What he meant by this phrase has to be gatheredfrom his own evidence. But before passing on to the evidence one hasto bear in mind that it was not proved whether or not the two personsconcerned were in fact voters. Mukthar has said in evidence that heraised his objections on suspicion, and in the case of the woman who isalleged to be dead, Mukthar did not want his objection recorded. Thelearned Judge says in his judgment that Mukthar at the time he raisedthe objection was “not sure of his ground as he is now after verification”.Presumably he meant verification on reference to the death certificatewhich was produced. It must also be noted at this stage that it wasproved by the production of the electoral register of voters at this booththat there were about fifteen women by the name of Baviyath Ummahandabout thirty-five by the name of Avva Uruma.
To turn now to Gnanasekaram’s evidence :—on being asked why herecorded one objection onty, he said,
" The agent himself insisted that she was not a voter. On the otherhand there was Mr. Ahamed saying that she teas a genuine voter, thathe would stand security for her. In one case the Grama Sevaka wasable to identify a lady, but in the other case the Grama Sevaka saidthat he was doubtful that he had seen her but did not know her name.
StRIJUXB, J.—Ahamt'l v. Altyar Lebbe
In that case I called her and questioned her and I was satisfied that
she was a genuine voter and I asked that she be issued with a ballot
paper. ”
Immediately after this the Judge questioned him as follows :
“ Q. The reasons for your recording the objection are the reasonsyou gave that Mr. Aliamed should vouch for her identity ? ”
The witness did not answer this question. The Court then put anotherquestion in this form :
“ Q. The polling agent objected to the vote but Mr. Aliamed vouchedfor her identity ?
A. Yes.
Q.So you thought it best to make a record of the objection ?
A: Yes.
(The witness, apparently at this stage wanted to refer to the jourualPI2a.)
Q.Now, what is it that you want to refresh your memory?
About the decision I made and about tchat Mr. Ahamed said.
Q. Wha t you say is you have no independent recollection of exactlyall what was said; is that what you mean ?
I have a faint recollection of the incident, and how I acted. Theexact thing I want to refresh my memory from the journal. ”
The witness then had refreshed his memory by reference to PI 2a.He was then questioned as follows—-
“ Q. Now that you have refreshed your memory from the documentcan you tell us ivhat you remember about the incident ?
A. At about 2 o’clock a lady voter came to cast her vote. Thepolling agent for the F. P. candidate objected; He told methat the particular voter was dead. The clerk there directedher to me. I was at that time writing something on the journaland I requested her to wait and I asked the other clerk to findout where the Grama Sevaka was. In the course of that there■was another objection.' That incident was also dealt about thesame time. That voter was also directed to me, and Mr. Aliamedsaid that he knew these two people, that he could stand suretyfor them and since their names were among the voters’ list thatI should issue a ballot paper. Then the" Grama Sevaka camealong and I asked him whether he knew them, and said “ yes ”and I instructed that a ballot paper be issued.' The other voterhe said he knew her by sight but did not know the name. Iquestioned her and I was satisfied that she was a genuine voter and
-.a
SIRIMANE, J.—Ahamcd r. Aliyar Lebbe
77
directed her to the clerk and she teas issued with a ballot paper.Mr. Ahamcd (apparently a mistake for Mr. Mukthar) pollingagent for the F. P. candidate insisted that I should record theobjection. I was busy then and I directed the clerk to recordthe objection and I questioned Mr. Ahamed to come over tomy table to record his objection.
Q. The objection was on the ground that a particular person wasdead, and the other was the sister of the polling agent of theFederal Party candidate ?
A. Yes.
Q. One of the persons was specifically identified by the GramaScvaka?
A. One of them was identified, I cannot say which. One wasidentified by the Grama Scvaka. ”
It is clear from the other evidence to which I shall refer presentlythat the word " since ” in the passage should read “ if ”.
That is all the evidence in chief on this point . Nowhere in his evidencedocs Gnanasekaram say that he asked the respondent whether the twopersons were the Avva Umma and Raviyath Ummah that they claimedto be. He was never asked that question by the petitioner.Gnanasekaram himself docs not say that he put any questions at all tothe respondent.
In cross-examination the witness had been referred to what therespondent had stated according to an entry made by the respondenthimself in P12a. That entry reads as follows :—
“ I strongly object to the polling agent of Mr. Mansoor Maulanawho had been obstructing the voters. So long as the correct numberand the name is there a ballot paper should bo issued. ”
The Court had then asked this question :
“ Q. Docs that contain everj'thing that ho objected to ?
A. No. Ho was telling about the voters, that he knows them andif the voters’ names are there in the list I should give them.
I said, ‘ You kindly write on the paper I provide to you ’ andlie wrote this one and gave it to me. ”
The position taken up by the defence was then put to the witness, viz.,that the respondent came to the booth and said that the polling wasbeing delayed bj' frivolous objections raised by Mukthar and the voters ofthat area who were known to him should be allowed to vote. Thequestion was put in this form :
“ Q. And he took the view that the F. P. polling agent Mr. Muktharwas frivolously, objecting to votes and that he said that thesewere frivolous objections and these are people from his electorateand they were free to vote ?
!•*—J 14213 (0/70)
78
SIKl-MAXE, J.—Ahamcd v. Alitjar J.ibbc
In those two eases he sa id he knew they are from his area. ”
The Court then interposed the following question
" Q. The question that Mr. Shinya put to you was that tiic.se arefrivolous objections, they ma3' be allowed to vote ?
A. Those two cases may bo allowed to vote. He insisted on thatthat ho knew them and that I should give them ballotpapers. *’
The re-examination on this point, is as follows :
“ Q. How go back to the incident regarding the objection which youhave recorded in PI2a. You said that these two ladies wereWaiting near j'our table until the Grama Sevaka arrived ?
A. Yes.
Q. And you have also said that when the Grama Sevaka arrivedho positively identified one lady ?
A. Yes.
Q. On that occasion, did you immediately ordor the ballot paperto be issued to that lady ?
A. Yes.
Q. Thereafter with regard to the other lady, what did you do ?
A. I asked him in regard to the identity of the second lady fromhim. He said he had seen her by sight but does not know hername. So I took up the case and examined it. At the end of itwhen I was satisfied I ordered a ballot paper to be issued.
That is the sum total of the evidence of Gnanasekaram against therespondent. •
Then there is the journal P21a. When Mukthar insisted on one ofhis objections being recorded, Gnanasekaram, who was busy at the timedirected him to a clerk who had taken down his objection. This wasdone after the ballot papers had been issued, and the entry reads asfollows :—
“ Raviyath Umma Ismail Lebbe w/o Mohamed Hussain—587 thoobjection is that the person given above is living in the colony and noration book will be produced if called for. She is not tho person andher actual name is Jameela. ”
At the time the clerk made this record the respondent had been withGnanasekaram. Some time thereafter Gnanasekaram requested thorespondent to record his objection. The respondent then wrote down hisobjection which I have already quoted. Below that the PresidingOfficer had put down the number of the ballot paper which is not the
SLRIMAXE, J.—Ahamcd v. Aliy or Lcbbe
79
number of the ballot issued to the person who claimed to be RavyathUmmah and then made the entry that her name and number tallied withthe polling card she produced, that the respondent “ revealed and stoodas surety for her identity ” and the Grama Sevaka informed him that heknew her by sight.
Gnanasckcram’s evidence in regard to tho Grama Sevaka is that ho" identified ” one of the women by name and the other by sight. Allthese entries in P12 wero made long after the ballot papers were issued.
I do not think that the entries in the journal in any way advance thopetitioner’s case.
All that the evidence shows is that tho respondent “ identified ” thetwo women as people whom he knew to be voters from his area. Hefurther said that tho Presiding Officer should issue ballot papers to themif their names are in tho register. There is no evidence at all that therespondent represented to Gnaiiasokeram that tho two women wereidentical with any of tho persons whose names appeared in the electoralregister. Had he done so it would have been the simplest thing for thopetitioner to put that question to Gnanasckeram in examination-in-chief,or even in re-examination.
Counsel for the respondent contended that the learned Judge’s approachto the question of burden of proof in a case like this was incorrect and,therefore, many inferences were drawn against him which were not basedon evidence. I do not think it necessary to-refer to all the passages inthe judgment criticised by Counsel; but I think I might refer to themanner in which the learned Judge dealt with the respondent’s entry inthe journal P12a, which I have already reproduced above. That entrystrongly supports the respondent’s caso. 1 might state here that theevidence of the respondent—(except for the difference that according tohim his request to Gnanasckeram that ballot papers should bo issued toall the voters if their names were in the register referred not only to thesetwo women but to all those present at the time)—was substantially thesame as the evidence of Gnanasckeram himself.
Dealing with the entry in P12a, the learned Judge said—
** One must also not lose sight of the fact that if Ahamed haddeliberately, falsely said with success that these women were thepersons who they claimed to be, he is hardly likely to put in writing- anything that could later establish his guilt.”
He drew the inference that this entry really supported tho case for thepetitioner. With respect, I do not think that it is permissible to drawsuch an inference against a person placed in the position of an accused ina criminal case.
so
SIKIMAXE, J.—Attained v. Aliyar Lclbc
An appeal against the order of an Election Judge can only be allowedon a point of law. But as pointed out in Mahawithana v. Commissionerof Inland Revenue1 inferences which are unsupported b}- evidence wouldraise a question of law'. One must also bear in mind that to prove thecharge of personation, the petitioner must prove “ Mens Rea ” on thepart of the respondent.
I am of the view that there is no evidence to support the finding thatthe respondent abetted personation by the two women concerned.
I am also of the view' that the second point raised by the respondent-appellant is entitled to succeed. I am in agreement with the submissionmade by Counsel for him that a Presiding Officer cannot in his discretionrefuse to grant a ballot paper to a person who has applied for one. Theonly instances where he can do so are set out in sections 42 (2A) and 43 (1)of the Order in Council. Before a ballot paper is issued each voter is“ marlied ” by the application of some indelible ink on one of his or herfingers. Section 42 (2A) provides that if a person refuses to allow thePresiding Officer or a person acting under his authority to make “ theappropriate inspection ” (i.e.., to see whether such person has been“marked”) or if having allowed such inspection it discloses that thevoter has already been “ marked ”, or if having allowed such inspectionand the voter has not already been “ marked ” but he refuses to allowthe officer to “ mark " him, then no ballot paper should be delivered tosuch person. Under section 43 (1) the Presiding Officer may in his dis-cretion, and shall if required by a candidate or his polling agent to do so,request a voter to make a declaration in the forms J, K and L set out inthe first schedule to the Order in Council, before the issue of ballotpaper. Form J is as follows :—
Declaration
ofhereby
(name In full)(address)
declare that I am the same person whose name appears as AB on theregister of electors now in force for this electoral district.
Signature or thumb mark of voter.Declared before me this day of
Signature of Presiding Officer.
Forms K and L are similar, and by those forms a voter declares that hehas not already voted in that particular electoral district (Form K) orthat he has not already voted in any other electoral district (Form L).
1 (1962) 64 N. L. R. 217.
SIRLMAXE, J.—Ahamtd v. Aliyttr Ltbbe
81
In thcso instances the voter disenfranchises himself by not conformingto the requirements of the law. But if he does what the law requireshim to do, tho Presiding Officer has no right to disenfranchise him. TheOrder in Council nowhere gives him such a right, and to hold that he hassuch power would amount to investing a Presiding Officer with thefunctions of a Judge.
Our Election law is based substantially on the English Election Law.In England, in place of the Declarations referred to above, a PresidingOfficer is empowered to put “certain prescribed questions ”. In thocase of electors who vote in person, the questions-are :
" (1) Arc you the person registered in the register of Parliamentaryelectors for this election as follows (read the whole entry from theregister) ?
(2) Have you already voted here or elsewhere at this By-election (orGeneral Election) otherwise than as proxy for some otherperson? ”
Thcso questions appear at page 180 of Parker’s Election Agent andReturning Officer (6th Edition). If these questions are satisfactorilyanswered, a Presiding Officer cannot refuse a ballot paper. Fraser, Lawof Parliamentary Elections, 3rd Edition, points out at page 52, that thequestions are satisfactorily answered when the answers are positive andunequivocal, i.e., the answers should be, “ I am ” or “I have not” andnot words like “ I think so ” or “ I do not think I have ”. Fraser alsopoints out at page 51 that no inquiry is permitted at the time of pollingas to the right of any person to vote. Parker in the volume referred toabove at page 1S1 says that,
“ If the above questions arc satisfactorily answered by the voterthe Presiding Officer cannot refuse to allow the voter to vote ; and if hedocs refuse ho may render himself liable to a criminal prosecution forthe breach of official duty even though he blew that the voter has answeredfalsely and committed perjury. (Pryce v. Belcher, 4 C.B-. 866); he mustleave it to the candidate’s agent to take notice of the perjury and fraudarid to apply to strike off the vote on a scrutiny.
Any false statement of a material particular, made knowingly andwilfully in answer to any of the questions is a misdemeanour, but thePresiding Officer is no judge of falsehood, and must allow a voter who hasanswered the questions to vote, even though he knoivs or believes that thevoter's answers are f Ise.”
As to what action the Presiding Officer should tako when it is broughtto his notice that a person has committed the offence of personation,Parker says at page 185,
“ If at the time any person applies for a ballot paper, or after he hasapplied and before he leaves the polling station a candidate or hiselection or polling agent declares to the Presiding Officer that ho has
82
SIRIMAXE, J.—Ahamal v. Alit/ar Libbe
reasonable cause to believe that the applicant has committed anoffence of personation and undertakes to substantiate the charge iu aCourt of law, then the Presiding Officer may order a constablo to arrestthe applicant, and the order is sufficient authority for the constablo todo so. ”
. The practice followed in Ceylon according to our Election Law is tbosame. The document R8 contains notes for the guidance of PresidingOfficers issued by the Department of the Commissioner of ParliamentaryElections. It informs Presiding Officers, inter alia, that they may intheir discretion require a voter to make declarations in forms J, K and I»and that a ballot paper may be refused if a voter docs not comply withsuch a request. Para. 47 of the instructions is worded as follows :—
“ The Presiding Officer himself should not investigate into suspectedcases of personation with a view to prosecution, but should hand thesuspected person (after he ha~s recorded his vote if ho made the requireddeclarations) to the police for investigation.”
The Presiding Officer in this case docs not appear to have appreciatedhis rights and duties when a complaint of personation was made.
This aspect of the question had not been placed before the learnedJudge, as he makes no reference to it at all in the course of his judgment.He appears to have considered the question of abetment on the footingthat a Presiding Officer had a right to refuse the ballot papers, for he saysin the course of his judgment that the respondent" had deliberately doneeverything that he possibly could to enable these two women whom heknew were not Avva Umma and Raviyath Umma to be passed as AvvaUmma and Raviyath Umma for the obtaining of the voting slips.” Withmuch respect, I think the learned Judge misdirected himself here.
I am of opinion that the Presiding Officer was under a legal duty toissue two ballot papers to the women who claimed them, irrespective ofanything that the respondent told him. All that the Presiding Officercould have done was to ask the women to sign declarations before theissue of the ballot papers.
Finally, it was submitted for the appellant that for the purposes ofsection 54 of the Order in Council, which deals with “ Personation ”, theoffence is committed and complete when a person applies for a ballotpaper. For, the section provides that " a person who has applied for a
ballot paper for the purpose of voting in personshall be deemed
to have voted.”
It was argued for the respondent that as—admittedly—the respondentwas not present when the two women applied for ballot papers andthereby committed the offence, he could not thereafter abet the-commission of an offence which had already be?n committed. For thepetitioner it was submitted that the offenders who were “ voting iiiperson ” would be committing the offence again when they actually put.
ALLES, J.—Ahamtd v. Aliyar Ltbbe
S3
the ballot paper into the ballot box, and that the second offence wasabetted by the respondent. As I hold that the appeal must succeed onthe first two grounds, I think it unnecessary to decide this third point.
The appeal is allowed and the order of tho learned Election Judge setaside. The respondent is declared to have been duly returned. Let acertificate of this decision be transmitted to the Govemor-Generalinterms of section 82C (2) of the Order-in-Council (Chapter 3S1).
The respondent is entitled to taxed costs of both the trial and theappeal.
Aju.es, J.—
I agree that this appeal should be allowed and that the order of theElection Judge declaring the election to be void, should be set aside.
The petitioner in his statement of particulars alleged that thorespondent, in respect of both impersonators personally identified theimpersonators as Ike impersonated arid enabled the impersonators toexercise their votes. The learned Election Judge was in error when heheld that the evidence established that the appellant identified theimpersonators as the impersonated and there is no evidence that it was as •a result of any act of the appellant that the impersonators exercisedtheir votes. It is unnecessary to detail the evidence on the point whichhas been fully dealt with by my brother Sirimanc. The essentialingredients of the offence of abetment of personation with which theappellant was charged in this case are—
(а)that there were acts of personation committed by the impersonators;
(б)that tho appellant actively aided, abetted counselled or procuredtho commission of the offence of personation by the impersonators ;and
(c) that he did so with a guilty mind.
In my opinion the only essential ingredient which has been establishedbeyond reasonable doubt is the first ingredient. According to Muktharit was while he was raising objections that the appellant came into thepolling booth and this evidence is supported by the evidence of thoappellant himself that it was when he was walking into the booth thatMukthar was objecting to certain voters. It would therefore be afterthe impersonators had applied for the ballot papers, thereby committingthe offence under section 54 of the Order in Council, that the appellantcame and intervened. The appellant could therefore not have abettedtho offence of personation at the time the impersonators applied for theballot papers. I
I ai'grcc with the observations of my brother Sirimanc that- when ftvoter applies for a ballot paper the Presiding Officer has no discretion torefuse to give him the ballot paper. This would be in accordance with
84
SAMERAWICKRAME, J.—Ahamcd v. Aliyar /.Me
the principles of tho English law (Vide Parker’s Elect ioti Agent—6th Ed.,pp. ISO and 1S1). After the impersonators applied for and obtained thoballot papers they were entitled to exercise their votes whatever mighthave been said by the appellant. The evidence is to the cfFcct that theappellant came into the booth when according to him “frivolousobjections ’’ were being raised by Mukthar and he insisted that the twoWomen should be permitted to vote so long as their names appeared onthe electoral register. This is supported by the entry in Gnanasckeram’sjoumal-P21 A. According to the appellant, and on this point his evidencehas not been challenged, when ho purported to identify the voters he wasstating that ho knew them as voters from his area as distinct from thepersons impersonated. This is what Gnanasckeram understood when hojournalised in P12A that the appellant “ revealed their identity and stoodas surety”. Even if the impersonators cast their votes (and therebycommitted a second act of personation) at tho insistence of the appellant,in permitting them to vote, the Presiding Officer was doing no more thanwhat he was required to do under the law. This leads one to considerthe question of mens rea. Can it be said that the appellant wilfullyassisted the impersonators to cast their votes in the name of anotherperson when in law they were entitled to cast their vote after havingapplied for and obtained the ballot paper ? In order to establish thecharge of abetment it must be proved that the appellant was aware thatthe impersonators were going to cast their vote in the name of theimpersonated. That evidence is not present in the instant case. Indeedon the question of mens rea it seems to me most unlikely, that if thoappellant knew that two women to be impersonators impersonatingothersto his knowledge, that he would have been so foolish as to insistthat they be permitted to vote and thereby jeopardise his chances at anelection where he had every chance of success without having to dependon the votes of these two women. I am mindful of the fact that thelearned Election Judge has found as a fact that the appellant wasinsisting that it was these two women who should be permitted to voteand disbelieved the appellant that he was making representations inregard to all the women in the queue. I am therefore of the view that thonecessary mental element to prove the charge of abetment has not been. established in this case.
. Sam erawickb ame, J.—
* – I–
I agree that the appeal should be allowed and that order should bemade in the terms set out in the judgment of my brother Sirimane, but ■as my approach to the matters that have been raised in this appeal issomewhat different, I set out my reasons for the conclusion at whichI have arrived.
When a person applies for a ballot paper claiming to be on the registerof electors, the prodding officer is expressly authorized under the Order.in Council to refuse a ballot apper to him only in the circumstances set 'out in section 42 (2A) and 43 (1). _0n this point, I agree with respect
SAMEUAW1CKRAME, J.—Ahqmed v. Aliyar Lebbc
85
with the reasons and the observations of Sirimanc J. I may add, how-ever, that it appears to me that a presiding officer, may refuse a ballotpaper to a person who appli s for one, if it appears to him that thatperson is manifestly unable to exercise the franchise by reason of unsound-ness of mind or drunkenness and perhaps, if the request for a ballot paperis, on the face of it, absurd. In this case, the two impersonators had,before the respondent came into the polling booth, already applied forballot papers claiming to be persons on the register of electors. Nocircumstances existed which entitled the presiding officer to refuse theissue of a ballot paper to either of them. The presiding officer was,therefore, in law under a duty to issue ballot papers to them. Theevidence is to the effect that the respondent requested and pressed onthe presiding officer to issue ballot papers to these two persons. I do notthink, that the fact that the respondent endeavoured to persuade thepresiding officer to do, -what in law, he was obliged to do, amounts toaiding impersonation. That the respondent supported his request tothe presiding officer by making false representation to him may be amatter for censure and mar even expose the respondent to criminalliability on some other' charge but, in my view, it could not have theeffect of rendering him guilty of aiding personation. This aspect hasnot been considered by the learned trial judge and he makes no referenceto it in the course of his judgment apparently because it was not raisedbefore him. His finding is that the respondent did what he did “ forobtaining of the voting slips For the reasons set out above, I am ofthe view that that finding is an insufficient basis for holding the respondentguilty of the offence of abetment of personation.
I am not disposed to hold that there was no evidence to support thefinding of fact at which the learned trial judge arrived. As there is anappeal to this Court only on a question of law wc have not to considerwhether there was sufficient evidence to support the-finding of the trialjudge but onlj-' whether there was any evidence at'all to support it.There is no direct and express evidence that the respondent stated thatthe women who applied for ballot papers were Raviyath Ummah andAvva Umma whose names appear on the register of electors. Thelearned trial judge, who is the judge of fact in this matter, has howevertaken the view that the respondent who came on the scene after objectionhad been taken and proceeded thereafter to make representation to thepresiding officer in respect of those objections must have ascertained orcome to be aware of the precise nature of the objections and thatwhen he made representations to the presiding officer in regard to theidentity of the applicants for ballot papers he was representing to himthat these two persons were Raviyath Ummah and Avva Umma.
I am unable to say that the inference that the learned trial judge hasdrawn is one that is unsupported by the evidence.
At the stage at which the respondent camo into the polling booth itwas still possible for him to abet personation either by assisting thoapplicants for ballot papers to obtain them without having to make the
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Ansar r. Faikima MirzQ
declarations referred to in section 43 (1) of the Order in Council or byinstigating the applicants, if they were not disposed to mako thodeclarations, to proceed to make the declarations and cast their votes.It is not suggested in this case that the respondent requested tho presidingofficer to issue ballot papers without asking for declarations. Indeed,had the polling agent of the other candidate who took the objection tothe issue of the ballot papers to these two persons requested the presidingofficer to obtain the declarations, the presiding officer would have had noalternative in law, but to ask for them. Nor has it been suggested thatthe respondent in any way instigated these two woiru-n or even spoke tothem. In fact it would appear that the conversation between therespondent and the presiding officer was in English and it is very unlikelythat the women even understood what he said. I am accordingly ofthe view that there was no evidence to support the finding that the-respondent had abetted the two women to commit personation.
Appeal allowed.