GHULAM QADIR Versus MUHAMMAD ARSHAD
ZIA MAHMOOD MIRZA, J : Petitioner and Muhammad Arshad respondent were rival contestants for the membership of Ward No.2, Pindi Kalu, Tehsil Phalia in the local councils elections held on 30-11-1987. Petitioner secured 236 votes as against 198 votes obtained by the respondent. Petitioner was accordingly declared elected. Feeling aggrieved, Muhammad Arshad filed election petition under section 24 of the Punjab Local Government Ordinance, 1979.
2. It appears that during the course of hearing of the election petition, both the parties agreed that the election petition be disposed of by recounting the votes. Learned Election Tribunal, therefore, summoned the election record and on perusal thereof, he came to the conclusion that 194 votes out of 198 votes cast in favour of the respondent, and 235 votes out of 236 votes cast in favour of the petitioner were not signed by the Presiding Officer. Learned Tribunal, therefore, relying on a judgment of the Supreme Court of Pakistan reported in P L D 1985 SC 282 held that all those ballot-papers which did not bear the signatures of the Presiding Officer had to be rejected. In this view of the matter, learned Election Tribunal observed that "violation of rules have affected a large number of votes and it is a fit case for declaring the election void as a whole under Rule 15". Learned Tribunal, therefore, by order, dated 10-9-1988 declared the election in question as a whole void. Petitioner has challenged this order of the Election Tribunal in the Constitutional petition.
3. We have heard both the learned counsel. They agree that the votes declared invalid by the learned Election Tribunal bear either the signatures of the Presiding Officer or the official stamp. We have, therefore, not considered it necessary to open the envelope containing the ballot-papers. Since admitted position is that the votes in question bear either the official stamp or the signatures of the Presiding Officer, they could not have been declared invalid in view of the amended provision of Rule 40(4) of the Local Councils (Election) Rules, 1987. Relevant portion thereof is reproduced hereunder:--
"40(4) The Presiding Officer shall--
(a) open the used ballot boxes and count the entire lot of ballot-papers taken out therefrom;
(b) separate the ballot-papers which are unambiguously marked in favour of any contesting candidate from these;
(i) which do not bear official mark and signature of the Presiding Officer; or
(ii) .................................................................................
(iii) .................................................................................
(iv) ..
(v) ..
Interpreting an almost identical provision of the Representation of the peoples Act, 1976, their Lordships of the Supreme Court of Pakistan held in Ch. Muhammad Abdullah v. Ch. Abdul Wakil and others P L D 1986 SC 487 "A. ballot-paper can be rejected as invalid under section 38(4)(c) of Representation of the Peoples Act, 1976, when neither the official mark nor the signature of the Presiding Officer are present on its back, so that if either it bears the official mark or the signature of the Presiding Officer, the ballot paper cannot be excluded from the count and has to be treated as a valid vote in favour of the candidate in whose name it has been cast. The change effected by the amendment in substituting the conjunction "or" with "and", makes the position all the more clear, that for purposes of exclusion, both conditions must co-exist, that is, there should be no official mark and no signature on the ballot-paper. Conversely if one condition exists, the ballot-paper cannot be excluded from the count". In view of the legal and factual position aforestated, the ballot-papers which bore either the official stamp/seal or the signature of the Presiding Officer were quite valid and the learned Election Tribunal was wrong in thinking that a large number of votes were affected by so-called violation of the rules. Learned Tribunal, it appears, had in mind the provisions of Rule 40(4) before its amendment.
4. Upshot of the above discussion is that the impugned order of the learned Election Tribunal cannot be sustained. The same is declared to be without lawful authority and of no legal effect. Writ petition is accordingly accepted but with no order as to costs.
H.B.T./G-164/L Petition accepted.