' MIAN SHAKIRULLAH JAN, J.--- The contest between the parties is over election of Nazim and Naib Nazim of the Union Council No,14, Lahori, District Peshawar, held in August, 2005 under the provisions of N.-W.F.P. Local Government (Conduct of Elections) Rules, 2005. The petitioners were declared as returned candidates which was challenged through an election petition before the Election Tribunal which was accepted and, instead, respondent Nos.1 and 2 were declared as returned candidates. The writ petition, filed by the petitioners, before the High Court also failed and now the present petition for leave to appeal.
2. The main and decisive point involved in the case is the inclusion of 251 votes/ballot papers of one polling station polled in favour of respondent Nos.1 and 2 and these ballot papers though bearing the official mark but not the signature of the Presiding Officer if counted as valid votes then it gives a leading position to respondent Nos.1 and 2 and if declared these as invalid votes take the petitioners to a winning position. This controversy also requires the interpretation of Rule 30(2) clause (iii) and Rule 35(4) clause (iii)(a), which respectively read as follows:-- "30. Voting procedure.---
(1) ..........................................................................................
(2) Before a ballot-paper is issued to an elector.
(i)
(ii)
(iii) the ballot-paper shall on its 'back stamped with the official mark and signed by the Presiding Officer.
"35. Proceeding at the close of the poll---(1)---- The Presiding Officer shall-
(iii) count the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear (a) no official mark."
3. The divergent decisions of the Returning Officer and of the Election Tribunal were also the result of different interpretation of the afore-said two legal provisions as the Returning Officer held the aforesaid ballot papers as invalid while the Election Tribunal held otherwise.
4. We have heard the learned counsel for the petitioners as well as for the respondents and have gone through the available record of the case.
5. The perusal of the afore-said provisions of law indicate that the former rule relates to the voting procedure when voter presents himself to obtain vote and he is issued vote after observing the codal formalities, the Presiding Officer is required to stamp the ballot paper with official mark and also to put his signature on the ballot paper whereas the latter rule deals with the proceedings at the close of the poll. In other words it may be stated that the former rule prescribes the procedure for voting while the latter rule prescribes the procedure for counting at time of close of the poll.
6. Such a controversy has long before been settled by this Court, under alike election provisions under sections 40(2)(c) and 45 of the Electoral College Act, 1964, in the case of Akbar Ali v. Razi-ur- Rehman Khawaja and others PLD 1966 SC 492 wherein it was held as follows::-- "By section 45, Electoral College Act, 1964, the Legislature has provided only one condition in clause
(a) that the Presiding Officer shall exclude the ballot papers "which do not bear the official mark".
Section 40 which lays down the voting procedure inter alia prescribes that a ballot paper shall on its back be stamped with the official mark and initiated by the Presiding Officer. There is no inconsistency between the provisions of this section and section 45 if they are read side by side.
While the Presiding Officer is required by section 40 to fulfil both the conditions a ballot paper shall be rejected under section 45 only if it does not bear the official mark. The requirement that the Presiding Officer shall initial a ballot paper is therefore directory and not mandatory in the sense that failure to comply with it will render the ballot paper invalid."
' In the line of the afore-said dictum, the Peshawar High Court in the case of Arbab Aamir Ayub Khan and another v. Chief Election Commissioner of Pakistan, Islamabad and 4 others PLD 2002 Pesh. 173 has also held the ballot paper bearing only official mark of the Presiding Officer as valid votes and were counted in favour of the candidate in whose favour the same have been cast. The relevant part of the judgment reads as under:--- "Under the Election Rules, both stamp of official mark and signature of the Presiding Officer are not required to render the ballot paper valid and worth-counting. Rule 30 of N.-W.F.P.
' Local Government Elections Rules, 2000 prescribes the voting procedure. Under Rule 30(2)(iii)(iv) it has been made mandatory upon the Presiding Officer that before issuing ballot paper to an elector, the ballot paper shall on its back be stamped with the official mark and signed by the Presiding Officer whereas rule 35(4)(iii)(a) while prescribing the procedure at the close of the poll, provides that Presiding Officer shall count the votes cast in the favour of each contesting candidate excluding from the count the ballot papers which bear no official mark. The simple perusal of the provision of rules 30 and 35 connotes that the former has prescribed guidelines for the Presiding Officer who is directed to stamp and sign the ballot paper before delivering it to the elector before casting vote while under the latter Rule 35, restriction is imposed on holding the votes, already cast, as valid which bear the stamp or official mark only In other words, the Presiding Officer is required to count the cast ballot papers of the contesting candidates which bear the official mark. It appears that the legislature in its wisdom has intentionally waived off the condition of signature by the Presiding Officer at the time of counting after the poll is over."
7. We while following the judgment of this Court, are of the view that the ballot papers bearing official mark of the Presiding Officer are A valid votes and were rightly held so resulting in the declaration of respondents Nos.1 and 2 as returned candidates. The learned counsel for the petitioners has also half-heartedly agitated the other point by concluding that full opportunity of producing evidence to the petitioners has not been afforded. We have attended to this aspect of the case also and which has very elaborately been dealt with by the Election Tribunal as well as by the High Court that the production of the remaining evidence by the respondents has got no relevance to the issue, in hand as that evidence mainly pertains to the polling station over which the parties were having no dispute and rather the pleadings of the parties mainly raising the afore- said controversy i,e,, holding of the ballot papers not bearing the signature of the Presiding Officer as valid or invalid, and which view was rightly taken by the two forums below.
8. No exception can be taken to the findings and conclusion arrived at by the High Court which has affirmed the finding of the Election Tribunal. We see no ground for the grant of leave. Consequently, leave to appeal is refused and the petition is dismissed.