' INAYAT ELAHI KHAN, J.-This writ petition calls in question the order of the Election Tribunal/Additional Commissioner, Hazara Division, Abbottabad dated 3-2-1980 whereby the Election Petition challenging the election of Khan Mohammad (respondent No. 1) as a Member of the Local Council Nara, was dismissed.
2. Ghulam Safdar (petitioner) and Khan Mohammad (respondent No. 1) and two others were the contesting candidates for the election to the Local Council, Nara which were held on 25-9-1979 and at the close of the polling the petitioner was found to have scored 314 votes as against respondent No. 1 who had obtained 315 votes with the result that respondent No. 1 was declared successful alongwith respondent No, 2 who had also scored higher votes.
3. The petitioner's case is that two invalid ballot-papers have been counted in favour of respondent No. 1. One of the ballot-papers was torn into two pieces whereas the other did not bear any official stamp or the initial of the Presiding Officer and that the aforesaid objection of the petitioner was illegally turned down by the Presiding Officer. The petitioner then moved an application on 29-9- 1979 to the Returning Officer but the same was rejected as he had no legal authority to interfere in the matter. The petitioner then moved an Election Petition on 1-10-1979 before the Election Tribunal (respondent No 6) making grievance that two invalid ballot-papers have been illegally counted in favour of respondent 'No. 1, which if excluded from the count, the petitioner was entitled to be declared as a successful candidate. The grievance of the petitioner is that the Election Tribunal without adverting to the question in dispute had summarily rejected the Election petition, which order, being in violation of the legal provisions, should be declared as without lawful authority and of no legal effect.
4. From the perusal of the documents available in the case it becomes clear that the petitioner did raise an objection about the counting of a vote which was found torn into two pieces and in this respect a certificate had also been issued by the Presiding Officer on 25-9-1969 (Annexure B).
However, the other objection, that another ballot-paper did not bear the official mark or the initial of the Presiding Officer, is controverted in the written statement filed by respondent No 1 as also by the Presiding Officer before the Election Tribunal. The Presiding Officer had also stated that even if one of, the ballot-papers was found by him as not bearing the official mark, he could not have interfered since he had not been given any instructions in the matter.
5. It appears that the Election Tribunal (respondent No, 6), after having called upon the respondents to file their written statements, did not allow the contesting parties to produce evidence in support of their respective contentions. It is obvious that the Election Tribunal has not considered the relevant provisions of law applicable to the case. Under section 39-D of the N.-W. F.
P. Local Government Ordinance, 1979 (Ordinance IV of 1979), the Election Tribunal, while deciding the Election Petition, is vested with the powers of a civil Court trying a suit under the Code of Civil Procedure, 1908, and thus the Election Tribunal should have framed issues on the disputed questions between the parties and allowed them an opportunity of producing evidence for and against those issues. Under rule 32(2)(c) of the N.-W. F. P. Local Councils Election Rules, 1979, before a ballot-paper is issued to a voter the same shall, on its back, be stamped with the official mark and initialled by the Presiding Officer. Similarly under rule 35 a voter, who has inadvertently so spoiled his ballot paper that it cannot be used as valid, may upon proving the fact of inadvertence to the satisfaction of the Presiding Officer and returning the ballot-paper to him, obtain another ballot-paper and cast his vote by such other ballot-paper. Under sub-rule (2) of rule 35, the Presiding Officer is legally required to forthwith cancel the ballot paper returned to him under sub- rule (1) and make a note to that effect on the counterfoil over his signature and also sign the cancelled ballot-paper. Similarly under rule 37, the Presiding Officer had the authority to exclude from the count a ballot-paper which does not bear the official mark.
6. For the reason that the assertion of the petitioner, that one of the ballot-paper did not bear the official mark, was controverted by respondent No. 1 as also by the Presiding Officer, it was all the more necessary for the Election Tribunal to have physically examined the ballot-paper in question, because the ballot-paper which does not bear the official mark or on which anything is marked by the voter by which he can be identified must necessarily be excluded from the count.
7. In these circumstances, without expressing or own opinion on the disputed questions, we may observe that the Election Tribunal is saddled with the responsibility under the law to decide all questions of the nature involved in the present case. From the impugned order of respondent No 1 it is apparent that no decision whatever has been given by, him on the questions raised by the petitioner in the Election Petition.
8. For the aforesaid reasons, the writ petition is accepted, the impugned order of the Election Tribunal dated 3-2-1980 is declared as without lawful authority and of no legal effect with the direction that the case shall go back to him for decision in accordance with law after providing an opportunity to the parties of producing their evidence if so desired. No order as to costs.