1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to the appellant, an unsuccessful candidate at a Local Body Election, to examine whether notwithstanding the amendment and substitution of sub-rule (1) of Rule 34 of the Punjab Local Councils Election Rules, 1979 notified on 20th September, 1983, the non-observance of it in an election held on 25th of September, 1983 did not vitiate the election as a whole.
2. The appellant and respondent No.2 contested elections to the Lahore Municipal Corporation from Unit No. 72 on 25-9-1983. Respondent No.2 was notified as successful having obtained 1,912 votes against the appellant who secured 1,062 votes. The appellant challenged the election of respondent No.2 by an election petition under section 24 of the Punjab Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance). He took up a number of grounds but the one under examination in this appeal is the non-compliance with the substituted sub-rule (1) of Rule 34 of the Election Rules. The substituted rule provided-- "Where a voter presents himself at the polling station to vote, the Presiding Officer shall require him to produce his Identity Card issued to him under the National Registration Act, 1973, and on such production, issue to him a ballot-paper".
3. This amendment in the rule was notified on the 20th of September, 1983 and was published the same day in the Gazette, Extraordinary Issue. The grievance of the appellant in the election petition was that a large number of voters, over 2,000, were allowed to cast their votes without production of the national identity card and without necessary entries of their numbers having been made in the counterfoils as required by the instructions under rule 34.
4. The Election Tribunal dealt with the illegalities alleged by the Election Tribunal dealt with the illegalities alleged by the appellant in the following words:-- "Even if it be considered as correct that some of the counterfoils of ballot-papers do not bear the identity card numbers of the voters, this omission cannot be considered to be an illegality or corrupt practice, that may form basis for declaration that election is void".
5. The appellant filed a constitutional petition in the High Court and the ground now under examination was taken up there pointedly and with greater clarity. The learned Judges of the High Court endorsed the view taken by the Election Tribunal in the following words:-- "In such a situation, non-compliance will only be an irregularity. Voters or candidates cannot be punished for no fault of theirs for action or omission of another over whom they had no control. If it were so, an official either willingly or unwillingly by his inefficiency, incompetence or indolence may deprive the voters of their franchise or successful candidate of an elected office.
6. Therefore, it has always been the law that if elections have been held substantially in accordance with the statute or the rules and are not sham or travesty of an election by ballot, these are not to be avoided for mere irregularities or non---compliance of directory provisions".
7. The learned counsel for the appellant has contended that the very words of substituted sub-rule
(1) of rule 34 are peremptory and a pre-condition has been prescribed the fulfilment of which is obligatory before a voter can claim a ballot-paper. According to the learned counsel, the intention of the rule-making authority to make it mandatory may be manifested by attaching a penalty for non-compliance with the provision or by prescribing a pre-condition for the entitlement. It was the latter course, which was adopted in this case, and full effect must be given to the plain words of the rule. It was also urged that the instructions given to the Presiding Officer are complete and comprehensive and provide for the production and examination of the National Identity Card and noting of its number at proper place before the ballot paper is issued. An election conducted without complying with such a requirement would be replete with illegalities and must on that account be held of its own force and effect to have vitiated the election as a whole.
8. Section 19 of the Ordinance makes a provision on the subject and is to the following effect:-- "19. Every person enrolled as a voter on the electoral roll shall have the right of vote subject to proper identification for which he may be required to produce his National Identity Card issued to him under the National Registration Act, 1973 (Federal Act LVI of 1973): Provided that if a person is enrolled more than once in the electoral roll of the same electoral unit or on the electoral rolls of more than one electoral units he shall be eligible to vote in one electoral unit only".
9. If rule 34 is read alongwith the provision made in the statute itself on the same subject, the conclusion is inescapable that the substituted rule has a directory and not a mandatory effect. The statute itself makes the requirement directory. The rules framed under the Ordinance could not go beyond and over-reach the Ordinance itself. To make the implementation of the statutory provision consistent and harmonious directory effect must be given to the requirement of the rule.
10. The rule of construction applicable to such provisions also leads to the same result. In the case of Chief Commissioner, Karachi v. Jamil Ahmad and another PLD 1961 SC 145 the principle that as a general rule, a statute which regulates the manner in which the public officials shall exercise the power vested in them will be construed as directory rather than mandatory, was recognised. The other principle of interpretation applicable to such a provision finds recognition in the case of Niaz Muhammad v. Mian Fazal RaqibP L D 1974 SC 134 in the following words:-- "It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule, however, 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 acts shall be null and void. To put it differently, if the Act is directory, its disobedience 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".
11. It is, therefore, clear to us that the requirement of the substituted rule 34(1) is directory and the High Court has taken a correct view of~ the law. We would not, in the light of this finding, like to examine the factual contention of the respondent that even if all such tainted votes are excluded he still succeeds by a wide margin. The appeal is, therefore, dismissed with costs.