MUZAMIL AKHTAR SHABIR, J. --- This appeal under Section 46 of the Punjab Local Government Act, 2013 is directed against orders dated 03.10.2016 passed by the Election Tribunal Gujranwala whereby election petition filed by the appellants was dismissed and the order 22.11.2015 passed by Returning Officer was upheld whereby the votes had been recounted and the respondents No, 4 and 5 were declared as successful candidates.
2. The brief facts of the case are that the appellants and respondents No, 4 and 5 contested elections for the seats of Chairman and Vice-Chairman from UC-23, Mianwal Ranjha, District Mandi Baha-ud-Din. The appellants were allotted symbol of "Goat" whereas respondents Nos, 4 & 5 were allotted symbol of "Bear" and other candidates, who are respondents No, 6 to 9 were allotted different symbols. The appellants claim that they obtained 2545 votes whereas respondents No, 4 and 5 got 2523 votes and result was prepared in Form-XI. The Returning Officer of the Union Council thereafter consolidated the result and prepared Form-XIII and the appellants having obtained highest votes were the successful candidates. The respondents No, 4 and 5 thereafter filed an application with the Returning Officer/respondent No, 3 on 20.11.2015 for recount of the votes. During the recount, 207 votes were declared as invalid and were rejected and as per the result declared as a consequence of such recount, the respondents No, 4 and 5 obtained 2447 votes and the appellants' obtained 2391 votes. The Election Commission of Pakistan issued notification dated 21.12.2015 declaring the respondents No 4 and 5 as returned candidates. The appellants challenged the afore-referred notification by filing an election petition under Section 38 of the Punjab Local Government Act, 2013 read with Rule 62 of the Punjab Local Governments (Conduct of Elections)
Rules, 2013 ("Rules, 2013"). The election petition was dismissed by the Election Tribunal, Gujranwala on 03.10.2016. The said orders are under challenge in appeal before this Court.
3. The learned counsel for the appellants has relied upon Form-XI furnished by Presiding Officer whereby the appellants were shown as leading candidates while obtaining 2545 votes and respondents No, 4 and 5 obtained only 2523 votes. The same result according to them was reflected in Form-XIII issued by the Returning Officer. The learned counsel for the appellants has argued that the application for recount of votes filed by respondents No, 4 and 5 was not maintainable after the declaration of the result in Form-XIII by the Returning Officer as after preparation of Form-XIII, the Returning Officer/respondent No, 3 had no jurisdiction or authority to recount ballot papers and for that reason the recounting was void ab initio. This aspect has not been properly taken into consideration by Election Tribunal while dismissing the election petition filed by appellants and by respondent No,1 while issuing the notification declaring the respondents No, 4 and 5 as returned candidates. He further argued that 207 votes have been declared as rejected merely on the ground that the votes had not been signed at the back by the Presiding Officer although stamp of the Presiding Officer was available on the same.
4. Conversely, the learned counsel for respondents No, 4 and 5 has argued that the said respondents had filed an application for recount of votes before consolidation of results. In reply to the said application, appellants themselves asked the Returning Officer/respondent No, 3 to recount the votes of whole constituency and thereafter the votes were recounted and the result was announced. Further argued that under Rule 35(4)(c)(i) of the Rules, 2013, the ballot "paper not bearing any official mark and signature of the Presiding Officer is liable to be rejected, therefore, the Returning Officer was justified in rejecting 207 votes, hence, the decision of the Election Tribunal was in accordance with law.
5. The learned counsel for the appellants in response have argued that the appellants had requested for recount of whole constituency as an alternate plea when they had observed the attitude of the Returning Officer who instead of allowing the plea of the appellants not to recount votes, was adamant to allow the application for recount filed by respondents No, 4 and 5 to the extent of votes challenged by them only.
6. In view of the objections raised by the appellants through the election petition, the Election Tribunal framed issues relating to competency of the Returning Officer to entertain application filed by the parties for recount of valid and invalid votes and also whether the Returning Officer illegally and mala fidely excluded the votes not bearing signatures of Presiding Officer on the back side of ballot papers from the count of the parties. The appellant No, 1 appeared as appellant's witness in evidence as PW-1 and the Returning Officer, Muhammad Jabbar, Extra Assistant Director, Agriculture, District Mandi Bahauddin appeared as PW-2. The respondent No, 4 appeared in evidence as RW-1 .
7. From perusal of the record, it is apparent that recount process had taken place on the application of the respondents No, 4 and 5, which was supported by alternate plea of the appellants. Prior to the process of official consolidation of results, the Returning Officer had prepared an unofficial result of the concerned Union Council by compiling the results submitted by the Presiding Officers. This was done for the purpose of confirmation of the said results. Before declaration of the final result, application for recount had been filed by both the parties although the appellants claimed that their request had been filed when the Returning Officer on the application of respondents No, 4 and 5 was adamant to recount the votes only to the extent requested by the said respondents. The Returning Officer was empowered to conduct the process of recount of votes before the preparation of the official consolidated result under Form-XIII. As both the parties had agreed to recount, although the appellants had agreed as an alternate plea, therefore, once having exercised the right to have the votes recounted, the appellants, who had taken a chance that the result would still remain in their favour, are now estopped by their conduct to challenge the said process after having remained un-successful in it.
8. As far as the jurisdiction or the authority vested in respondent No, 3 to recount the votes is concerned, Rule 36 of the Rules, 2013 would be relevant wherein it is provided as under:-- "Consolidation of results.-- .(1) The Returning Officer shall give the contesting candidates and their election agents a notice of the day, time and place fixed for the consolidation of the results and publish the same at a conspicuous place in his office.
(2) Before consolidating the results of the count, the Returning Officer shall examine the ballot papers excluded from the Mint by the Presiding Officers and if he find that any such ballot paper should not have been so excluded, count it as a valid ballot paper cast in favour of the contesting candidate for whom the vote had otherwise been cast.
(3) The ballot papers rejected by the Returning Officer under sub-rule (2) shall be shown separately in the consolidated statement.
(4) The Returning Officer shall consolidate in Form-XIII the results of the count furnished by the Presiding Officers
(5) The Returning Officer may recount the valid ballot papers before consolidation of results:---
(a) upon the request or challenge in writing made by, a contesting candidate or his election agent and if the Returning Officer is satisfied that the request or the challenge is reasonable; or
(b) if so directed by the Election Commission." (emphasis supplied).
9. As per the aforesaid rule before consolidating the result, the Returning Officer had to issue notice to the parties, which admittedly had not been done before the compiling of unofficial result in Form-XIII by the Returning Officer, therefore, this unofficial result could not be treated to be a final result issued after consolidation of votes. The Returning Officer was required to examine the ballot papers before consolidation of the result. Before the same was done the application for recount was filed by respondents No 4 and 5 and in response to that the appellants had also called for recount of the ballot papers of whole constituency. After recount of the votes under rule 36(5) of the Rules, 2013, the Returning Officer consolidated the result in Form-XIII. The Returning Officer has correctly followed the procedure prescribed under rule 36 ibid, therefore, there is no illegality in the process of recounting before consolidation of result.
10.Now the question remains that whether the votes not bearing signatures of Presiding Officer on its back could be rejected by the Returning Officer. The learned counsel for the appellants has relied upon judgments reported as Akbar Ali v. Razi-ur-Rahman Khawaja, etc. (PLD 1966 SC 492) and Tariq Aziz and others v. Muhammad Irshad and others (2010 SCM R 160) to argue that a ballot paper not bearing the signatures of the Presiding Officer cannot be rejected solely for the said reason.
11. On the contrary, the learned counsel for respondents No,. 4 and 5 has relied upon Rule 35(4)(c)
(i) of the Rules, 2013 to argue that Tariq Aziz case (supra) is distinguishable for the reason that the provision under reference in that judgment was Rule 35 of the N.W.F.P. Local Government (Conduct of Elections) Rules, 2005 which provides as under:-- "35. Proceeding at the close of the poll: (1).....................
(2)...........
(3)............
(4) The Presiding Officer shall:-- (a)...............
(b)........
(c) count the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear (a) no officail mark."
Whereas Rule 35(4)(c)(i) of the Rules, 2013 applicable. in the Province of Punjab provides as under: -- "35. Proceedings at the close of the poll: (1)..................
(2)....................
(3).........................
(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:"
(i) no official mark and signature of the Presiding Officer; (ii)...... (emphasis supplied) 12.From comparison of both the rules related to the N.W.F.P. Local Government (Conduct of Elections) Rules, 2005 and Punjab Local Governments (Conduct of Elections) Rules, 2013, it is apparent that the only condition available for rejection of ballot papers at N.W.F.P./K.P.K. was absence of stamp of official mark at the back of the ballot paper whereas the absence of signatures of the Presiding Officer is one of the grounds for rejection of the ballot papers in elections under the Rules, 2013. In the afore-referred judgment the Court had taken into consideration the fact that the law did not require signature of the presiding officer on the ballot papers and the only requirement was the official mark. Keeping in view the availability of the official mark on ballot papers, the same were treated as valid. This is not the position in the Rules of 2013 framed in Punjab, wherein both the official stamp and signatures of the presiding officer are a legal requirement and absence of same is to result in exclusion of votes from recount. Therefore, the judgment referred to by the learned counsel for the appellants passed in Tariq Aziz's case (supra) is distinguishable because of this distinguishing feature between the two laws.
13.Similar is the matter in the Akbar Ali's case (supra). In the said case Section 45 of the Electoral College Act, 1964 came under consideration of the Court The Court observed as under:-- "Next as to the interpretation of Section 45 of the Electoral College Act the Legislature has provided only one condition in the 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 initialed by the Presiding Officer, There is not inconsistency between the provision of this section and section 45 if they are read side by side. While the presiding officer is required by section 40 to fullfil 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."
It is clearly laid down in the afore-referred paragraph in the Akbar Ali's case that the law provided only those ballot papers to be rejected that did not bear official mark and the signature of the Presiding Officer on the ballot papers was merely a directory requirement. The situation in the present case is different. The law in the present case requires that the ballots papers not bearing official mark and signatures of the Presiding Officer shall be excluded. The requirement of the signature of the Presiding Officer was not mandatory in the previous laws and in its absence, vote did not become invalid. This requirement has been added in the rules of 2013 ibid. This is a mandatory requirement as the intention of the legislature is very clear that the ballot paper should bear the official mark and the signatures of the presiding officer at the same time otherwise the same would be excluded from the count of votes. Therefore, the Akbar Ali's case (supra) is also distinguishable.
14.It is by now well-established that where a law requires a thing to be done in a particular manner, it should be done in that manner alone and such dictate of law could not be termed as a mere technicality. Reilance is placed on case titled Shahida Bibi v. Habib Bank Limited (PLD 2015 SC 995) and Muhammad Anwar v. Ilyas Begum (PLD 2013 SC 255). In the present case the law has required that the ballot papers not bearing official mark and signature of the Presiding Officer are to be excluded from the count of votes. This being a legal requirement has to be implemented in letter and spirit.
15. The Returning Officer was justified in rejecting the ballot papers not bearing signatures of the Presiding Officer in view of the afore referred rule. No illegality, discrepancy or erroneous exercise of jurisdiction is pointed out in the orders passed by Election Tribunal. Therefore, there is no merit in this appeal. It is accordingly dismissed.