' LEHRASAP KHAN, J.--The petitioner and respondent No. 5 contested the Local Government election from Ward No. 3, Marakiwal, Union Council No.35, Kharota Saidan, Tehsil and District Sialkot held on 28-9-1983. One Muhammad Sarwar viz. respondent No. 4 was also a contesting candidate for the same election, but he retired a day earlier when the elections were actually held. As a result of the poll, the petitioner was declared successful as having polled 164 votes as against respondent No. 5 who obtained 110 votes.
' Respondent No. 5, however, filed an election petition questioning the validity of the election on two grounds; firstly, that names of certain voters who actually polled their votes did not figure in the original voters list but were entered in an additional voters list; secondly, that secrecy of the ballot was not observed, inasmuch as voters from other wards had an access to poll votes in the election from Ward No. 3.
2. The petitioner resisted the election petition and controverted the allegations contained therein.
The learned Election Tribunal (Senior Civil Judge), Sialkot, after recording the parties evidence found that there was no substance in the allegation that voters from some unauthorised list of voters were allowed to poll their votes. It however, appears that he opened the bags containing the ballots polled in favour of the parties in the presence of the parties. In case of petitioner, but for 26 votes, the remaining ballots did not contain the number and name of the Ward. Similarly, in case of respondent No. 5, only 15 votes contained these particulars. The learned Tribunal, therefore, found that rule 29 had been violated and thus the election staff failed to comply with provisions of the Election Rules and hence the election was not in accordance with law. He thus declared the election to be void and directed that fresh elections be conducted. The aforesaid order dated 8-2- 1984, passed by the Election Tribunal has been called in question through the present Constitutional petition.
' Rule 29 of the Punjab Local Councils (Election) Rules, 1979, provides that an election shall be decided by a secret ballot and a voter shall cast his vote by inserting in accordance with the provisions of those rules, in the ballot-box, a ballot-paper which shall be in Form IX. Form IX contains a column for number and name of Electoral Unit. It is nobody's case that the ballot- papers polled in favour of the petitioner were not in Form IX. the learned Tribunal after opening the packets found that in case of majority of the ballots polled in favour of both the parties; the number and name of the Electoral Unit were not recorded. It is provided in rule 15 of the Punjab Local Councils (Election Petitions) Rules, 1979, that the Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with the provisions of the Ordinance or the Election Rules. It has been contended on behalf of respondent No. 5 that failure on the part of the Presiding Officer to enter the number and name of the Ward in the ballot-paper has materially affected the result of the election. This contention has tittle substance inasmuch as under rule 40(4) of the Punjab Local Councils (Election) Rules, 1979, only such ballot-papers are invalid which do not bear the signature of the Presiding Officer or on which anything is marked or written by the voter by which he can be identified. In the under consideration case, neither of the two shortcomings is present. The omission on the part of the Presiding Officer to enter the name and number of the Electoral Unit on the ballot-paper, does not render the ballot-paper to be invalid and, therefore, such omission or failure cannot be said to have materially affected the result of the election.
' The learned Tribunal in the circumstances has wrongly come to the conclusion that the election in question was rendered void on account of omission on the part of the Presiding Officer to enter number and name of Electoral Unit on the ballot-papers.
4. In the light of the foregoing conclusions, this writ petition is allowed and the impugned order, dated 8-2-1984, passed by the Election Tribunal, Sialkot is declared to be without lawful authority.
The parties, however, are left to bear their own costs.