' AJMAL MIAN, J.-The petitioner through this petition had prayed for the following reliefs :- "(15) That the petitioner, therefore, prays as under :---
(a) That this Hon'ble Court may be pleased to declare that impugned instructions issued by the respondent No, 1 Annexure 'D' and impugned order issued by respondent No, 2 Annexure `D' is illegal, void, ultra vires and inoperative.
(b) That this Honourable Court may be pleased to declare the petitioner as Returned candidate of Unit No, 5, Deh Mari, Taluka Rohri, District Sukkur.
(c) That this Honourable Court may be pleased to grant ad interim injunction restraining the respondent No, 1 from implementing the impugned order passed by respondent No, 2 and be restrained from holding fresh elections of the above said Unit.
(d) Any other relief which this Honourable Court deem fit according to nature of case.-
2. The brief facts leading to filing of the above petition are that the petitioner and respondents Nos.
4 and 5 contested from Unit No, 5, Deh : Mari, Taluka Rohri, District Sukkur, for the Union Council Election "Ali Wahan'. It seems that as per statement of count contained in Form XIII, the petitioner obtained 106 votes, respondent No, 4, secured 105 votes and respondent No, 5 obtained 59 votes, whereas 26 votes were excluded from counting as being invalid. It has been averred by the petitioner that above votes were recounted by the respondent No, 2 (the Returning Officer) and on such recounting he found that the petitioner had secured 108 votes, respondent No, 4, 105, and respondent No, 5, 59 votes. It has also been further averred that after that upon respondent's No, 4's application, respondent No, 2 recounted the votes and declared all the votes cast in the above election as invalid by his order, dated 2nd October, 1983 on the ground that though, the ballot papers contained official mark, but they did not contain the initial of the Presiding Officer as per instructions contained in paragraph 70 of the Manual containing the instructions for the guidance of the Presiding Officers. The petitioner being aggrieved by the above orders has filed the present petition and has prayed for the above-quoted reliefs referred to hereinabove in para. 1.
3. In support of the above petition Mr. Sharafuddin Ada, learned counsel for the petitioner has urged that under rule 35 of the Sind Local Council(Election) Rules, 1979 (hereinafter referred to as the rules) the only requirement is that the ballot papers should have on its back stamp of the official mark and, therefore, absence of initial of the Presiding Officer, on the ballat papers had not rendered the votes invalid.
3-A. On the other hand Mr. Sarfraz Ahmad, learned A. A.-G. For the official respondents has urged as follows :-
(i) That the petition is not competent, as the petitioner has an adequate alternate remedy in the form of an election petition before an election Tribunal, which has exclusive jurisdiction to count the votes.
(ii) That since the instructions were issued under Sind Local Government Ordinance, 1979, inter alia containing requirement of initial of a Presiding Officer on the back of a ballot paper, the same were binding and their violation entitled the Returning Officer to declare all the votes as invalid.
3-B. Mr. Abdul Ghani Shaikh, learned counsel for respondent No, 3 has adopted Mr. Sarfraz Ahmed's above contentions.
4. It will be pertinent to take up the question of maintainability of the above petition : ' In this regard it may be observed that Mr. Sarfraz Ahmad, the learned A. A.-G. Has referred to the case of Khan Shehzada v. Moulvi Fazal Rabi and 3 others (1), in which the facts were that the appellant was declared as the elected Chairman of the Union Council Barwah, District Dir, by the Presiding Officer. Respondent No, 1 filed an election petition. The Election Tribunal after recounting the votes declared respondent No, 1 as place of the appellant. The appellant being aggrieved by the above success fulfinrder filed a writ petition in the Peshawar High Court, which was
(1) 1983 SCMR 125 ' dismissed by a learned Single Judge. Against the above Orders leave to appeal was granted by the Hon'ble Supreme Court upon the appellant's petition for leave. In the appeal it was urged by the Advocate for the appellant before the Hon'ble Supreme Court that the Election Tribunal had no jurisdiction to recount the votes. The above contention was repelled and it was observed that the question of validity of ballot papers raised by the appellant lay within the ambit of the jurisdiction of the Election Tribunal exclusively and stands finally disposed of. The above observations are to be viewed in context with the facts of the aforesaid Supreme Court case. It may be stated that the Hon'ble Supreme Court has not laid down that a High Court even in a fit case cannot entertain a writ petition. We are inclined to hold that generally a High Court will be reluctant to entertain a writ petition in an election matter, which falls within the jurisdiction of an election Tribunal provided under the relevant law, as the proper remedy is an election petition. However, in a case in which no disputed question is involved and the point in issue is the interpretation of a provision of the relevant enactment or a statutory rule framed thereunder or when the impugned order passed by a Returning Officer is contrary to the legal proposition of law propounded by the superior Courts, a High Court may A entertain a writ petition with out forcing a petitioner first to press into service an election petition.
' The instant case does not involve any disputed question of fact, but the points in issue are the interpretation of rules 35 and 40 of the rules and the aforesaid administrative instructions and the application of the legal principle propounded by the superior Courts. We, therefore, are of the view that the above petition is competent.
5. (a) As regards merits of the case, it may be observed that Mr. Sharafuddin Ada, learned counsel for the petitioner in support of his above contention was referred to rule 35 of-the rules, the case of Aber Ali v. Rafi-ur-Rehman Khawaja and others (1), the case of Muhammad Ibrahim v. Election Tribunal Sargodha (2), the case of Haji Muhammad Rafiq v. Additional Commissioner and Election Tribunal, Hyderabad Division (3) and the case of Taj Muhammad v. Doctor Abdul Qader and 2 others (4).
(b) It may be advantageous to reproduce hereinbelow clauses (I) and (2) of rule 35, sub-clause c(i) of clause 4 of rule 40, of the rules which reads as follows :- "35. (1) Where an elector presents himself at the polling station to vote the Presiding Officer shall after satisfying himself about the identity of the electop issue to him a ballot paper in Form X.
(2) Before a ballot paper is issued to an elector.
(a) he shall be required to receive a personal mark made with indelible ink on the thumb or any other finger of either hand ;
(b) the number and name of the elector as entered in the electoral roll shall be called out ;
(c) a mark shall be placed on the electoral roll against the number and name of the elector to indicate that a ballot paper has been issued to him.
(1) PLD 1966 SC 492 (2) PLD 1966 Lah. 794
(3) PLD 1966 Kar. 434 (4) PLD 1982 Kar. 780
(d) the ballot paper shall on its back be stamped with the official mark ; and
(e) the number of the elector 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.
40. (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 :-
(i) no official mark ; (ii)................
(iii)..............
(iv).............
It may be noticed that under clause (2) of the above-quoted rule, the only requirement is that a ballot paper on its back shall be stamped with an; official mark but there is no requirement that it should also contain initial of a Presiding Officer. Furthermore, sub-clause c(i) of clause 4 of rule 40 provides that a vote will be rejected if it has no official mark, but absence of an initial of a Presiding Officer is not a ground for rejection of a vote.
(c) Reverting to the cases relied upon Mr. Sharafuddin Ada, Advocate, it may be mentioned that in first case the question of interpretation of sections 40 and 45 of the Electoral College Act (IV of 1964) was involved before the Hon'ble Supreme Court of Pakistan. It may be observed that section 40 of the Act provided that ballot paper shall on its back be stamped with the official mark and shall contain initial of the Presiding Officer, whereas clause (e) of section 45 provided that Presiding Officer shall exclude ballot papers, which do not bear the official mark. It was held by the Hon'ble Supreme Court that a ballot paper could not have been rejected on the ground that it did not contain initial though, it contained official mark in view of above section 45 of the Act, which did not provide rejection of a ballot paper on the ground of want of initial of the Presiding Officer. In the second case, a Division Bench of the erstwhile High Court of West Pakistan at Lahore while construing sections 40 and 45 of the Electoral College Act, 1964, took the same view, which was found favour with the Hon'ble Supreme Court in the above first case. In the above third case a Division Bench of the erstwhile High Court of West Pakistan, Karachi Bench, while considering the above sections 40(2)(c) and 45(1)(a) of the Electoral College Act took the view that section 45(1)
(a) is to be construed liberally so as to include not only stamp mark, but initial of the Presiding Officer as well. It was held that presence of either of above two i. e. Either a Presiding Officer's initial or official mark, will save ballot paper from being invalid. In the fourth case a Divisional Bench of this Court, to which one of us was a party (Ajmal Mian, J.) had the occasion to construe the above rule 35 of the rules, and the instructions in question and held that the only requirement of the rule is to have an official mark on the back of ballot paper and not initial, and therefore, absence of the initial in presence of the official mark would not render the vote invalid. It may be advantageous to reproduce hereinbelow pages 7 and 8 of the above judgment, which read as follows : - "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 which will not contain the initial would be excluded. In our view the Returning Officer could exclude ballot papers only on the ground that they do not contain official mark as required under rule 35(2)(d) of the Rules. The provisions contained in rule 40(4) (c)(i) quoted hereinabove are very clear and admit no doubt 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.
' 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 instructions 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."
6. From the above cited and discussed cases, it is evident that the superior Courts prefer to hold a vote valid in preference to hold it invalid on a technical ground. If two plausible views are possible, one holding a vote valid and the other holding it invalid, the Court would prefer the former view. It may be pointed out that in the above Supreme Court and Lahore cases, notwithstanding the requirement under section 40 of the Electoral College Act, 1964, that the ballot paper should contain official mark and initial of the Presiding Officer, it was held that the vote could not be rejected on the ground that it violated the above section 40, for the reason that section 45 of the above Act contemplated rejection of a vote only in the absence of the official mark, on the ballot paper. Whereas in the above Karachi case of 1966, the Division Bench has placed liberal construction to the above two sections of the Act, namely sections 30 and 45 of the Electoral College Act, 1964 by holding that if a ballot paper contains either official mark or initial of the Presiding Officer, the vote will be treated as valid. Whereas the above Karachi case of 1982, is directly on the interpretation of rules 35 and 40 of the rules and the instruction in question, in which it was held that absence of initial of a Presiding Officer on a ballot paper will not render it invalid.
7. While considering the question of absence of initial of a Presiding Officer on a ballot paper, it may be pointed out that respondent No, 1, i. e. Provincial Election Authority Sind, in its comments, dated 23rd October, 1983 to the above writ petition has averred that absence of initial of the Presiding Officer on a ballot paper does not invalidate it. It may be advantageous to reproduce comments to paras. 9 and 10 of the petition, which read as follows :- "Paras. 9 and 10 : The administrative instructions contained in the Manual for guidance for Presiding Officers are to ensure their vigilance in the conduct of the exercise of polls entrusted to them.
However, under rules stamp of the Presiding Officer on the back of the ballot paper is essential while absence of initials of the Presiding Officer thereon does not invalidate the ballot paper."
8. For the aforesaid reasons, we allow the above petition with no order as to costs and direct respondent No, 2 to recount the votes and not to exclude any vote on the ground that the ballot paper did not contain initial though it contains official mark.