ANAL MIAN, J.--This petition is directed against the order dated 4-12-1980 passed by the District Judge and Election Tribunal, Khairpur.
2. The facts leading to the filing of the above petition are that the petitioner and respondent No. 1 contested the election from Unit No. 327 Union Council Ripri, Taluka Gambat, District Khairpur. After the polling was closed the Presiding Officer compiled the result (Anz A to the petition and Exh. 6 in the file of the election petition). The above election result indicated that the petitioner had obtained 289 votes whereas respondent No. I obtained 283 votes. It eras also shown that 73 ballot papers were excluded from count. It seems that when the Returning Officer was compiling the result under rule 41 of the Sind Local Council (Election) Rules, 1979 (hereinafter referred to as the Rules), he excluded six votes from the counting in favour of the petitioner on the ground that though the ballot papers con--tained official mark, but they did not contain the initial of the Presiding Officer.
In consequence of the above exclusion, the result compiled by the Returning Officer showed that the petitioner secured 268 votes whereas respondent No. 1 obtained 271 votes. Consequently, respondent No. 1 was declared as elected.
3. The petitioner being aggrieved by the above action on the part of the Returning Officer filed Election Petition No. 558/1979 on the various grounds which later alia included the ground, namely, that the Returning Officer was not justified in excluding six votes in favour of the petitioner on the ground that they did not contain initial of the Presiding Officer though they contained the official marks. However, the above petition was dismissed by the learned District Judge and Election Tribunal Khairpur by the impugned order dated 14-12-1980,
4. In support of the above petition Mr, Syed Zahir Hassan, learned counsel for the petitioner, has made the following submissions;
(i) That under rule 35 (d) read with rule 40 (c) (ii) of the Rules the only requirement was that the ballot paper should contain official mark and that there was no requirement to the effect that the same should contain initial also of the Presiding Officer.
(ii) That the alleged instruction issued by the Election Authority cannot modify the above Rules.
(iii) That in any. Case the instruction issued to the Returning Officer by the Election Authority does not contain any proviso requiring that the ballot paper should contain the initial.
5. On the other hand Mr. Farman Ali, learned counsel for the respon--dent No. I has made the following submissions :-
(i) That in view of the certificate dated 27-9-1979 signed by the petitioner and respondent No. I accepting the correctness of the votes mentioned therein the petitioner is estopped from challenging the number of votes mentioned in the above certificate ;
(ii) That under Rule 3 the Election Authority has the power to issue instructions from time to time and, therefore, the instructions requir--ing the initial of the Presiding Officer on the ballot paper were in accordance with law and they did not involve any modification of the Rule ;
(iii) That in any case the learned Election Tribunal has not gone into the question as to whether there some other votes which were wrongly included in the ballot papers of the petitioner.
6. With reference to the above first contention of Mr. Farman Ali, it may be pertinent to quote hereinbelow Rule 35 (2) (d) and 40 (4) (c) (i) of the Rules which read as follows :- ---35----(1)------------------------------.
(2) Before a ballot paper is issued to an elector- ---
(d) the ballot paper shall on its back be stamped with the official mark ; 40.--(1) ------------------------.
(4) The. Presiding Officer shall-
(c) count the votes cast in favour of each contesting candidate excluding from the count the ballot papers which be ar----------
(i) no official mark.
7. It is evident from the above-quoted Rules, the only requirement provided for in the above Rules is that the ballot paper should contain official mark. If it does not contain any official mark it is to be excluded from counting but there is no such requirement that the ballot paper should also contain initial and that ballot papers which will not contain the initial would be excluded. In our view the Returning Officer could exclude ballot gape only on the ground that they do not contain official mark as required and Rule 35 (2) (d) of the Rules. The provisions contained in 'Rule 40 (4) (e) (i') quoted hereinabove are very clear and admit no doubi that only those ballot papers were to be excluded which did not contain official marks and nothing was provided to exclude the ballot papers which did not contain the initial.
8. With reference to the above second contention of Mr. Zahir Hassan and also the aforesaid second contention of Mr. Farman Ali, it may be pertinent to observe that rule-making power is provided in section 103 of the Sind Local Government Ordinance, 1979 whereas the power to issue instruc--tions is contained in Rule 3. In our view since under Rule 40 (4) (c) (i) only those ballot papers could have been excluded which did not contain official mark, the above alleged instruction could not have modified the above rules and, therefore, they were of no consequence.
9. Reverting to Mr. Farman Ali's contention that since the petitioner had signed the certificate admitting the correctness of the number of the votes mentioned in the certificate referred to hereinabove, and, therefore, the petitioner is estopped from challenging the same, it may be pertinent to observe that the factum that six votes were excluded from counting in favour of the petitioner by the Returning Officer though the same were included by the Presiding Officer is not disputed. In our view any certificate signed contrary to the factual position will not constitute an estoppel against the petitioner. In this connection reference may be made to the case of Abdul Shakoor v. Abdul Latif and others PLD---1966 Lah. 16,wherein a D. B. Of the erstwhile High Court of West Pakistan, Lahore Bench held that mere acknowledgment in writing at the conclusion of poll by a candidate that the election had been conducted in free and fair manner would not debar that candidate from challenging the result of the election. In our view the above case on all fours is applicable to the instant case. The factum that since the votes were excluded on the above ground which was not warranted in law is not disputed. In this view of the matter the above certificate had no value.
10. With reference to the contention of Mr. Farman Ali learned counsel for the respondent No. 1 that respondent No. I in his counter-affidavit had raised the plea to the effect that there were certain votes which were wrongly included in favour of the petitioner and that plea was not examined by the learned Election Tribunal as it was of the view of the above six votes were rightly excluded, it may be observed that the above plea is devoid of any force. Rules 65 and 67 of the Rules provide the procedure of challenging any irregularity, illegality or corrupt or illegal practices committed during the holding of the election. It can be challenged through an election petition only. The respondent No. 1 by raising this plea in the counter-affidavit could not have gut any relief against the petitioner in respect of votes which were declared as having secured by him. In this view of the matter, the Election Tribunal was nut obliged to go into the above question.
11. For the aforesaid reasons, we allow this petition set aside the order of the Election Tribunal declaring the respondent No. I as elected from the Unit in question being without lawful authority.
We further declare. The petitioner as elected from the aforesaid Unit. However, we stay the opera-- tion of this Judgment for . a period of 30 days in order to enable respondent No. 1 to obtain a stay order from the Supreme Court in case he wishes to file a petition for leave against this judgment.
There will be no order as . To costs.