1. ' SARDAR SAID MUHAMMAD KHAN, J.-This appeal, by leave, has been directed against the judgment of the High Court, dated 25-6-1984, whereby the writ petition filed by the appellant was dismissed.
2. ' The brief facts resulting in the present appeal are that the appellant and the respondent contested the election to a seat of District Council, Kotli, Ward Panjan. The appellant secured 1,658 votes whereas the respondent got 1,614 votes. Consequently, the appellant was declared successful by the Returning Officer within the meaning of the relevant Election Law. The respondent filed an election petition before the Election Tribunal, inter alia, on the ground that votes polled in favour of the appellant at Polling Station Narakot did not bear the signatures of the Presiding Officer on their back and as such were invalid and could not be counted in favour of the appellant.
3. The Election Tribunal accepted the petition and excluded the unsigned votes polled in favour of the appellant. Thus, respondent No, 1 was declared as successful and the appellant was non-seated.
4. The appellant challenge the order of the Election Tribunal before the High Court through a writ petition which was dismissed on 25-6-1984. It is against the said order of dismissal that the present appeal has been preferred.
5. ' We have heard the arguments and gone through the file. It has been argued by the learned counsel for the appellant, Sardar Sayab Khalid, that the learned Single Judge in the High Court has erred in holding that the ballot-papers were not signed by the Presiding Officer as required under rule 35(d) of the Azad Jammu and Kashmir Local Council Rules. 1983, (hereinafter shalt be called Rules) He has maintained that it has been clearly admitted by Muhammad Naseer, the Presiding Officer, who appeared as witness before the Election Tribunal, that ballot-papers were signed by Munir Hussain, who was performing duties as Assistant Presiding Officer at the relevant polling station. The learned counsel has also placed on record an attested copy of the relevant record which shows that Munir Hussain was appointed as Assistant Presiding Officer for the polling station in question. In fact the appointment of Munir Hussain as Assistant Presiding Officer was not seriously contested by the learned counsel for the respondent. Mr. Sayab Khalid has maintained that according to the definition of 'Presiding Officer' given in rule 2(xxii) of the Rules, the 'Presiding Officer' includes an Assistant Presiding Officer exercising the powers and functions of the Presidin Officer. Thus, the signatures of the Assistant Presiding Officer on the ballot-papers fulfil the requirement of the relevant rule. He has further argued that as under rule 41(a) a vote can be held invalid only if it has not been signed by the Presiding Officer at all, it cannot be held as invalid on the ground that it was riot signed on the back side, as envisaged under rule 35 (d), and was signed on the front side.
6. ' The first question which needs determination is that, irrespective of the . Fact that ballot-papers were signed by the Assistant Presiding Officer on the front side, whether the Assistant Presiding Officer was competent to sign the ballot-papers when the Presiding Officer was also present at the polling station and was performing his duties. Under proviso to sub-rule (3) of rule 11, a Presiding (Meer during the course of polling may entrust any of his functions to an Assistant Presiding Officer.
7. Under sub-rule (4) of rule 11 if the Presiding Officer is incapable of performing his functions during the poll, due to illness or otherwise, the Returning Officer shall appoint an Assistant Presiding Officer to act as Presiding Officer. The proviso to sub-rule (3) of rule 11 and sub-rule (4) of the said rule are applicable to quite different situations. Proviso to sub-rule (3) of rule 11 envisages the, entrustment of any of the functions of the Presiding Officer to the Assistant Presiding Officer when the Presiding Officer is present at the polling station) and is performing some of his functions whereas sub-rule
(4) envisages & situation when Presiding Officer is not present at the polling station or he' becomes incapable to perform his functions for some reason in which caseB the Assistant Presiding Officer shall be appointed to act as Presiding Officer. In both the aforesaid eventualities the Assistant Presiding Officer would be deemed to be exercising the powers and performing the functions of the Presiding Officer, as envisaged under rule 2 (xxii) of the Rules, therefore, he was competent to sign the ballot-papers when the Presiding Officer was also present at the polling station.
8. ' Now the next question arises as to whether in the instant case Munir Hussain, the Assistant Presiding Officer, was entrusted the duty of signing the ballot-papers by the Presiding Officer. A perusal of the statement of Muhammad Naseer, made before the Election Tribunal, shows that in fact the said task was performed by Munir Hussain at least with the consent and approval of the Presiding Officer. It has been stated by Muhammad Naseer, the Presiding Officer, that he stamped ballot-papers on the back side while Munir Hussain, who was performing the duties as Assistant Presiding Officer, signed ballot-papers on the front side where the word 'Presiding Officer' was printed. It may be observed that as Munir Hussain was Presiding Officer/Assistant Presiding Officer, it matters not that while sigining the ballot-papers he did not mention his designation as Assistant Presiding Officer after his signatures. It may also be stated here that proviso to sub-rule (3) of rule 11 does not prescribe any particular mode of entrustment of the functions by the Presiding Officer to the Assistant Presiding Officer. Therefore, if a function of Presiding Officer C is performed by the Assistant Presiding Officer in the presence of the former with his implied or express consent or approval that would suffice to fulfil the requirement of proviso to sub-rule (3) of rule 11. There is yet another aspect of the matter; irrespective of the fact as to whether the Presiding Officer had entrusted the duty of signing the ballot-papers to Muni Hussain or not the same could be signed by him under rule 35(d) of the Rules. For the sake of convenience, rule 35(d) is reproduced as under :- "35. (d) The ballot-paper shall on its back be signed by the Presiding Officer or the Assistant Presiding Officer;"
9. ' It is evident from the above rule that proviso to sub-rule (3) of rule 11 and rule 35 (d) when read together clearly indicate the intention of the law giver that the Assistant Presiding Officer is empowered to sign the ballot-papers with the express or implied approval or consent of the Presiding Officer, especially so when no particular mode of entrustment of the aforesaid function has been prescribed under the relevant rule.
10. ' The next question which falls for determination is whether the votes could be excluded from the count because they were signed by the Assistant Presiding Officer on the front and not on the back side as envisaged under rule 35(d) of the rules. It has been argued by the learned counsel for the appellant that the provisions of the Election Rules laying down the procedure for the election would be deemed to be directory in nature unless a penalty has been provided for the non-observance of any of such rules themselves. The learned counsel has maintained that as under rule 41(a) only such votes can be excluded which do not bear the signatures of the Presiding Officer, the votes could not be excluded merely on the ground that signatures by the Assistant Presiding Officer were to be put on the front side and not on the back side. In reply the learned counsel for the respondent, Raja Muhammad Aslam Khan, contended that rule 35(d) and rule 41(a) are to be read together and it must be assumed that the legislature intended that the votes although signed by the Presiding Officer or by the Assistant Presiding Officer on the front side would be excluded from the count if those were not signed on the back side as envisaged under rule 35(d). On the other hand the learned counsel for the appellant cited a number of authorities in support of his contention that rule 41(a) cannot be interpreted to mean that a vote should be excluded from the count even if the same is signed on the front side. Some of the said authorities are as under :- ' In Muhammad Ibrahim v. Election' Tribunal (1), the provisions of sections 40 and 45 of the Electoral College Act, 1964, were subject of consideration. It was held that section 40 of the aforesaid Act does not govern the provision of section 45 of the Act and the duty cast upon the Presiding Officer under section 40(2) (c) to stamp ballot-paper with official mark and also initial the same is merely directory. However, duty cast under section 45 to count all the ballot-papers except those found invalid is mandatory and as such ballot-papers bearing the official mark but not the initial of the Presiding Officer as required under section 40 (2) (c) cannot be declared invalid under section 45(1) of the said Act.
11. ' In Razi-ur-Rehman Khawaja v. Akbar Ali (2), again the provisions of Electoral College Act, 1964, i,e,, sections 40 and 45 were the subject of consideration and it was held that ballot-papers bearing official mark but not containing initials of the Presiding Officer cannot be rejected. It was held that the provision contained in section 45(1) of the said Act was clear and the Legislature insisted only on the presence of the official
(1) PLD 1966 Lab. 794 (2) PLD 1967 Lah. 699 mark and not the initials of the votes. It was further opined that the provisions being unambiguous could not be extended so as to bring it within its ambit the absence of the Presiding Officer's initials notwithstanding the provisions of section 40(2) of the Act which require both the official mark and the initials of the Presiding .Officer.
12. ' In Ghulam Ghous v. Muhammad Rafique Khan (1), it was held that the fact that indeliable ink was not used would not invalidate the votes ,because there was no provision in law or the rules envisaging any penalty for the non-observance of the said direction.
13. ' In Hail Muhammad Rafique v. Additional Commissioner and Election Tribunal, Hyderadad Division (2), the provisions of the Electoral College Act, 1964, were subject of consideration and it was held that irregularity in the ballot-papers arising on the part of the Election Officer is not be regarded as vitiating the vote of an elector who is innocent of any wrong unless such irregularity has been declared by the statute itself to be fatal to the validity of the ballot. The word 'official mark' in section 45(1)(a) was constiued liberall) so as to include not only stamp mark but initial of the Presiding Officer as well. , ' In Akbar Ali v. Ravi-ur-Rehman and others (3), it was held that section 45 of Electoral College Act, 1964, provides that the Presiding Officer shall exclude the ballot-papers which do not bear the official mark. Section 40 which lays down the procedure, inter alia, prescribes that a ballot-paper shall on its back be stamped with the official mark and initial of the Presiding Officer. It was opined that there was no inconsistency between the provisions of sections 40 and 45 and they are to be read side by side. Although the Presiding Officer was required by section 40 to fuliil certain conditions yet a vote can only be rejected if it does not bear the official mark. The requirement that the Presiding Officer shall initial a ballot-paper is merely directory requirement and failure to comply with it will not render the ballot-paper invalid.
14. ' In Niaz Muhammad Khan v.. Mian Fazal Raqib (4), it was held that as a general rule a statute is understood to be directory when it contains matter merely of direction but not when those directions are followed up by an express provision that in default of following them the act shall be null and void. It was also opined that if the act is directory, its obedience does not entail any invalidity; if the act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the at done in disobedience to the provision.
15. ' In James Finlay & Co. Ltd. v. Aminul Islam (5), it was held that in absence of express provision of legislature as to the consequence of noncompliance with a direction, the Court has to consider whether the instruction of the legislature is merely directory or it is mandatory with reference to the object intended to be achieved or other surrounding circumstances.
16. ' In Malik Muhammad Akhtar v. Mian Salahundin (6), the nomination papers were filed one day ahead of the prescribed date, it was held that acceptance of nomination papers one day earlier was a mere irregularity and did not vitiate the election proceedings. It was further opined that it is well-settled principle of law that statutory provisions of election laws
(I) PLD 1982 Kar. 872 (2) PLD. 1966 Kar. 434
(3) PLD 1966 SC 492 (4) PLD 1974 SC 134
(5) PLD 1969 Dacca 571 (6) P D L 1971 Lab. 737 are to be regarded as directory, unless the legislature itself has prescribed a penal consequence for their violation or non-compliance by the election officials.
17. ' In Hidayat Ullah v. District Judge Sialkot (1), it was held that failure to comply with the provisions of Ordinance or Rules will not avoid elections much less instructions would do if the result was not materially affected. Non-compliance of para. 69 (d) of Manual of Instructions issued for the election to the Local Council in Punjab was held merely an irregularity.
18. ' In Mian Zia-ud-Din v. Punjab Local Government Election Tribunal, Lahore (2), it was held that omission to follow instructions is merely an irregularity because no penalty had been prescribed for non-compliance with the instructions. It was further opined that voters or candidates could not be punished for no fault of theirs and for the action or omission of another person over whom they had no control.
19. ' In Haji Muhammad Siddiq v. Aurangzeb and another (3), it was held that failure of Presiding Officer to enter number of voters on the counter-foil was merely an irregularity not affecting the result of the election.
20. ' In Wahid Biz v. Election luthority Province of Sind (4). Rules 35 and 40 of the Sind Local Government Ordinance, 1979, were the subject of consideration. It was held that the absence of the initial of the Presiding Officer on the ballot-paper when the stamp mark was present would not invalidate the vote.
21. It is evident from the above-stated survey of the case law that there is consensus amongst the judicial authorities on the point that if a breach of rule, instruction or law prescribing the procedure for holding election is made and no penalty has been provided for such a breach in the relevant rules, instructions or law, as the case may be, such breach must be deemed to be a directory nature and it would not render the election as invalid. In the instant case the provisions of rules 35 and 41 are to be read side by side so as to determine whether the breach of any of the directions, enumerated under rule 35, is directory or mandatory in nature. However, it does not mean that the pi ()visions of rule 41 are controlled by rule 35, as has been contended by Raja Muhammad Aslam Khan, the learned counsel for the respondent. The argument advanced by the learned counsel for the respondent that it must be assumed that the framer of the Rules intended that if a ballot- paper is not signed by the Presiding Officer or the Assistant Presiding Officer on the back side the same should be held as invalid despite the fact that the signatures of any of the aforesaid functionaries appear on the front side of a ballot-paper, is not tenable because had the framer of the rules insisted on the signatures of the said officers only on the back side of the ballot paper, it would have been said so in rule 41 (a); the condition of singing of the ballot-papers only on the back side having not been incorporated in rule 41(a) cannot be imported on the analogy of rule 35
(d) as has been contended by the learned counsel for the respondent. The words which do not appear in a statutory provision cannot be imported therein only on the basis of logic by referring to the different provisions of the same statute. It cannot be assumed that while framing rule 41, the authority framing the Rules was not conscious of the provision contained in rule 35 (a) to the effect that ordinarily the ballot-papers were to be signed by the Presiding Officer or
(1) 1984 CLC 1472 (2) 1984 CLC 1544
(3) PLD 1984 Lah. 375 (4) 1984 CLC 1294 the Assistant Presiding Officer on the back side. Thus, there is no room for the argument that the votes in favour of the appellant should be excluded from the count, even if those were signed by the Assistant Presiding Officer, only on the ground that the same were -signed on the front side and not on the back side. It is correct that according to Rale 35 (d) the ballot-papers were to be signed on the back side, but signatures of any of the relevant functionaries even on the front side of the ballot-papers would not be visited by a penalty, especially so when no penalty has been envisaged for such an omission in rule 41 (a).
22. ' In the light of what has been stated above we accept this appeal, set aside the impugned judgment of the High Court and that of the Election Tribunal and hold that the appellant stands legally elected as the member of the District Council, Kotli and the notification issued by the relevant authority in that regard stands restored. In view of the difficult nature of the points involved in the case, we make no order as to costs.