AMIR HANI MUSLIM, J.---This Full Bench was constituted under the orders of the Hon'ble Chief Justice to examine the provisions of Rules 34 and 39 of the Sindh Local Government Elections Rules, 2000, and to record a finding as to whether the ballot papers bearing the official mark without signatures of the Presiding Officer are to be excluded from the count as valid vote and whether the judgments given by the Division Bench of this Court in Constitutional Petition No,1171 of 2001 on the aforesaid proposition of law was in consonance with the view taken by the Hon'ble Supreme Court in the case of Akbar Ali v. Razi-ur-Rehman reported in PLD 1966 SC 492.
2. In support of the aforesaid proposition that a ballot paper bearing the official mark and without the initial/signatures of the Presiding Officer is valid and cannot be excluded from count by the Presiding Officer, Mr. Rao M. Shakir Naqshbandi, learned counsel for the petitioner has submitted that this proposition of law was considered by the Hon'ble Supreme Court in the case of Akbar Ali v.
Razi-urRehman reported in PLD 1966 SC 492. In the case of Akbar Ali (supra) while interpreting the provisions of section 45 read with section 40 of the Electoral College Act (IV of 1964), (hereinafter referred to as the "Act, 1964") their Lordships have held that only those ballot papers can be excluded from count which do not bear official mark. It was further observed in the case of Akbar Ali that the requirement of law to the extent that a ballot paper shall also be initialed by the Presiding Officer is directory and not mandatory in nature. While interpreting section 45(1)(a) of the Act, 1964 their Lordships have observed that legislature has provided only one condition which authorizes the Presiding Officer to exclude from the count a ballot paper that "does not bear the official mark". Section 40 of the Act, 1964, lays down the voting procedure, inter alia, prescribes that a ballot paper shall have on its back the official mark and initial/signatures of the Presiding Officer.
The Hon'ble Supreme Court observed that there was no inconsistency between the provisions of section 40 and section 45 of the Act, 1964, if they were read side by side. While the Presiding Officer is required by section 40 to fulfill both the conditions, a ballot paper shall be rejected under section 45 of the Act, 1964, only if it does not bear the official mark. The requirement that the Presiding Officer shall initial a ballot paper was, therefore, held to be directory and not mandatory in the sense that failure to comply with it will not tender the ballot paper invalid, this view of the Hon'ble Supreme Court is also supported by another judgment in the case of Mian Jamal Shah reported in PLD 1966 SC page 1.
3. Learned counsel has also placed reliance on the case of Wahid Bux v. Election Authority reported in 1984 CLC 1294 and Arbab Aamir Ayub Khan v. Chief Election Commissioner of Pakistan, reported in PLD 2002 Peshawar 1973 DB at page 174.
4. As against this, the learned counsel for the respondents Mr.Shahenshah Hussain has submitted that section 33(1)(d) of the Representation of the People Act, 1976 (hereinafter referred to as the "Act, 1976") speaks a valid ballot paper "shall be stamped on its back with the official mark and signed by the Presiding Officer". He submits that if a ballot paper does not bear official mark and or not signed by the Presiding Officer though it bears the official mark it ought to be excluded from count under the provisions of section 38(4)(c) of the Act, 1976 as it was not a valid ballot paper in terms of section 33(1)(d) of the Act, 1976. He has relied upon the judgment of the Hon'ble Supreme Court in the case of Shah Muhammad v. Election Tribunal Local Council, Chishtian, reported in PLD 1985 SC 282, wherein their Lordships while interpreting Rules, 34(2) and 40(4) of the Punjab Local Council (Election) Rules, 1979 (hereinafter referred to as the "Rules, 1979") had held that ballot paper which bears the official mark but does not bear the initial of the Presiding Officer shall be invalid and would be excluded from the count.
5. We have heard the learned counsel and examined the judgments cited by them. In order to appreciate the contentions of the learned counsel, the provisions of section 40 and 45 of Act, 1964, as interpreted by the Hon'ble Supreme Court in the case of Akbar Ali (supra), are reproduced herein below:-- "40. Voting procedure.--(1) 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.
(2) Before a ballot paper is issued to a voter:-
(a) the number and name of the voter as entered in the electoral roll shall be called out;
(b) a mark shall be placed on the electoral roll against the number of the voter to indicate that a ballot paper has been issued to him;
(c) the ballot paper shall on its back be stamped with the official mark and initialed by the Presiding Officer; and
(d) the number of the voter on the electoral roll shall be marked in writing on the counterfoil by the Presiding Officer who shall also stamp the counterfoil with the official mark and initial it.
(3) The voter on receiving the ballot-paper shall forthwith enter the room or compartment in which ballot boxes are placed and shall secretly place his ballot paper in the ballot box bearing the number and symbol of the candidate for whom he wishes to vote.
(4) The voter shall vote without undue delay and shall leave the polling station immediately after he has put his ballot paper into the ballot box.
(5) 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.
(6) No voter shall vote at an election:
(a) more than once at the same polling station; or
(b) at more than one polling station.
(7) All votes cast in contravention of subsection (6) shall be void.
"45. Procedure on the close of poll.---(1) 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.
(2) Where after the count under subsection (1) it is found that there is equality of votes between two or more contesting candidates and the addition of one vote for one such candidate would entitle him to be declared elected, the Presiding Officer shall forthwith draw a lot in respect of such candidates, and the candidate on whom the lot falls shall be deemed to have received the highest number of votes entitling him to be declared elected" (Emphasis added).
6. Their Lordships of the Supreme Court while interpreting sections 40 and 45 of the Act, 1964 in the case of Akbar Ali (supra) have held that if a ballot paper bears official mark without signatures of the Presiding Officer, it shall not be excluded from count as valid. The Hon'ble Supreme Court in the case of Akbar Ali (supra) had also considered the judgment in the case of Mian Jamal Shah (ibid) and have held that the provisions of section 45 of the Act, 1964 were not inconsistent with the provision of section 40 of the Act, 1964. The Honourable Supreme Court further observed that the requirement that the Presiding Officer shall initial a ballot paper was directory and not mandatory in the sense that failure to comply with it will render the ballot paper invalid at the time of count.
7. As against this, in the case of Shah Muhammad (quoted above), their Lordships while interpreting the provisions of Rule 34(2) and Rule 40(4) of the Rules, 1979, have observed that if a ballot paper has official mark but does not bear signature of the Presiding Officer, it was invalid ballot paper in terms of Rule 34(2)(c)(d) and has to be excluded from count as valid vote. The said provisions are reproduced herein below:-- "34. Voting procedure.--(1) Where a voter presents himself at - the polling station to vote, the Presiding Officer shall require him to produce his Identity Card issued to him under the National Registration Act, 1973 and on such production issue to him a ballot paper.
(2) before a ballot paper is issued to a voter:--
(a) ...............................................
(b) ...............................................................................................................................................
(c) ...................................
(d) the ballot paper shall be signed by the Presiding Officer; and
(e) the number of the voter on the electoral roll shall be endorsed on the center foil by the Presiding Officer who shall also sign it and also obtained thereon the thumb-impression of the voter.
(3) ..................................................
(4) ....................................
Rule 40, which deals with the proceedings at the close of the poll, is to the extent relevant as follows:--
40. Proceedings at the close of the poll.--(1) Immediately after the close of the poll, the Presiding Officer shall, in the presence of such of the contesting candidates, election agents and polling agents as may be present, proceed with the count of the votes.
(2) ...................................
(3) ...................................
(4) The Presiding Officer shall open the ballot-box of each contesting candidates in the alphabetical order of their names and count the ballot-papers contained in the ballot boxes so opened, excluding the invalid ballot papers, that is to say, the ballot papers:--
(a) which do not bear the signature of the Presiding Officer or
(b) on which anything is marked or written by the voter by which he can be identified (Emphasis added)
8. In the present proceeding we are called upon to interpret provisions of Rules 34 and 39 of the Sindh Local Government Elections Rules, 2000 (hereinafter referred to as the "Rules, 2000"). For the sake of convenience, Rules 34 and 39 of the Rules, 2000, are reproduced herein below:- "34. Voting procedure.--(1) Where the elector presents himself at the polling station to vote, he shall show his National Identity Card to the Presiding Officer, who shall, after satisfying himself about the identity of the elector, issue him ballot papers: Provided that the elector will not be issued more than one ballot paper each of different colour for different categories of candidates to be determined by the Chief Election Commissioner.
(2) Before a ballot paper is issued to an elector-- (1)
(ii)
(iii) the ballot paper shall on its back be stamped with the official mark and signed by the Presiding Officer; and
(vi) the number of the elector on the electoral roll shall be written on the counterfoil by the Presiding Officer who shall also stamp the counterfoil with the official mark and also obtain the thumb impression of the elector on the counterfoil.
39. Proceedings at the close of the poll.--(1) The Presiding Officer shall count the votes immediately after the close of the poll, in the presence of such of the contesting candidates, election agents and polling agents as may be present.
(2) The Presiding Officer shall give such of the contesting candidates, election agents and polling agents as may be present, reasonable facility of observing the count and give them such information with respect thereto as can be given consistent with the orderly conduct of the count and the discharge of his duties in connection therewith.
(3) No person other than the Presiding Officer and Polling Officer, any other person on duty in connection with the poll, the contesting candidates, their election agents and polling agents shall be present at the count.
(4) The Presiding Officer shall-- (i)
(ii)
(iii) count the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear---
(a) no official mark; (b)
(c)
(d)
(e)
9. Rule 34 of the Rules, 2000, provides voting procedure and sub-rule (2)(iii) of rule 34, requires that the ballot paper shall on the back be stamped with the official mark and shall be signed by the Presiding Officer. The language of this provision is identical to the language of section 33(2)(d) of the Act, 1964. However, the language of Rule 34(2)(iii) of the Rules, 1979, is not identical to the language of the above two provisions of the statutes, inasmuch as that the Presiding Office is not required to affix official mark on the back of the ballot papers.
10. We have further noticed that under Rule 39(4)(iii)(a) of the Rules, 2000, the Presiding Officer is obliged to exclude from count, the ballot paper, which does not bear the official mark. There is no provision under Rule 39 of the Rules, 2000, which suggests that the Presiding Officer shall exclude the vote from count if it does not bear the signatures of the Presiding Officer Similarly, section 45(1)
(a) of the Act, 1964, requires the Presiding Officer to exclude from count any vote which does not bear the official mark but the provisions of section 45 of the Act, 1964, does not suggest and/or authorize the Presiding Officer to exclude from count, any vote which does not bear initial/signatures of the Presiding Officer. As against this in the case of Shah Muhammad v. Election Tribunal Local Council, Chishtian reported in PLD 1985 SC 282, the language of Rule 40(2)(c) of the Rules, 1979, requires the Presiding Officer to exclude from count a vote which does not bear the signatures of the Presiding Officer. Neither Rule 34 nor Rule 40 of the Rules, 1979, provides that a Presiding Officer is required to affix official mark on the back of a ballot paper, their lordships in the Hon'ble Supreme Court in the case of Shah Muhammad (supra) had interpreted Rule 40(2)(c) of the Rules, 1979, which specifically provided that unless it is signed by the Presiding Officer, it shall be excluded from count by the Presiding Officer. Therefore, both the judgments of the Hon'ble Supreme Court in the case of Akbar Ali (ibid) as well as in the case of Shah Muhammad (aforementioned) are not in conflict with each other. Moreover, it is settled principle of law that the Courts while interpreting the law will not read anything, which is not provided in the Rule. The law has to be interpreted as it stands of the statute book.
11. The view taken by the Division Bench of this Court in regard to excluding a vote from count if it does not bear the signatures of the Presiding Office in Rule 39(4)(iii)(a) was erroneous as the Division Bench appears to have been influenced by the language of Rule 34 of the Rules, 2000, which speaks of a valid ballot paper. Rule 39-itself requires the Presiding Officer to exclude only those votes from count, which do not bear the official mark and, therefore, the Division Bench was in error in reading the condition of a valid ballot as contained in Rule 34 of the Rules, 2000. The language of Rules, 34 and 39 of Rules, 2000 is identical to the language of sections 40 and 45 of the Act, 1964, which has been (sic) by the Hon'ble Supreme Court in the case of Akbar Ali (supra) and it was held that the Presiding Officer shall exclude only a vote which does not have official mark and shall not exclude a vote which has the official mark but has not been signed by the Presiding Officer.
12. Above are the reasons of our short order dated 23-5-2005, by which we had answered the Reference in the affirmative.