1. ' NASIM HASAN SHAH, J.-The relevant facts are that Shah Muhammad petitioner and respondents Nos. 2 and 3, namely, Muhammad Tahir Mahmood and Faiz Ahmad contested elections from Unit No, 10, Municipal Committee, Chishtian. On the close of the poll and the count of the votes it was announced that Shah Muhammad, petitioner, had obtained 485 votes, Muhammad Tahir Mahmood 484 votes and Faiz Ahmad 47 votes. The petitioner was, thus, declared elected.
2. ' Muhammad Tahir Mahinood, respondent, questioned the above result before the Election Tribunal by means of an election petition alleging that two ballot-papers taken out of the ballot box of Shah Muhammad petitioner were not signed by the Presiding/Assistant. Presiding Officer and therefore, being invalid should have been excluded from the count and not counted in favour of Shah Muhammad petitioner. Secondly, that one tendered ballot-paper, which was excluded from the count was a valid vote cast in his favour and should have been added to his tally of votes.
3. ' The Election Tribunal upheld both these pleas of Muhammad Tahir Mahmood. It excluded the two unsigned ballot-papers which had earlier been counted in favour of Shah Muhammad petitioner and also added the tendered ballot-paper as a vote in favour of Muhammad Tahir Mahmood. In this way Muhammad Tahir Mahmood was found to have secured 485 valid votes as against 483 valid votes obtained by Shah Muhammad. He was, thereupon, declared to be elected.
4. ' Dissatisfied with the order of the Election Tribunal, the petitioner challenged it by filing a writ petition before the Lahore High Court. This was heard by a Division Bench of the said learned Court at Bahawalpur. The learned Judges of the High Court agreed with the findings of the Election Tribunal and found no ground for interfering with its order. The writ petition was, accordingly, dismissed. Hence the present petition for leave to appeal.
5. ' The decision in this case rests on the correct interpretation of rule 34(2) read with rule 40(4) of the Punjab Local Council (Election) Rules, 1979. The said provisions are in the following terms :- "34. Voting procedure.--(1) 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.
(2) Before a ballot-paper is issued to a voter-
(a) .......................................................................................................................
6. (b). ...................................................................................................................................................................................
(c) .................................
(d) the ballot paper shall be signed by the Presiding Officer ; and
(e) the number of the voter on the electoral roll shall be endorsed on the counterfoil by the Presiding Officer who shall also sign it and also obtain thereon the thumb-impression of the voter.
(3) .......................................................................................................................................
(4) ........
7. ' Rule 40, which deals with the proceedings at the close of the poll, is to the extent relevant as follows :- "40. Proceedings at the close of the poll.- (1) Immediately after the close of the poll, the Presiding Officer shall, in the presence of such of the contesting candidates, election agents and polling agents as may be present, proceed with the count of the votes.
8. (2)
9. (3)
(4) The Presiding Officer shall open the ballot-box of each contesting candidates in the alphabetical order of their names and count the ballot-papers contained in the ballot-boxes so opened, excluding the invalid ballot-papers, that is to say, the ballot-papers-
(a) which do not bear the signature of the Presiding Officer ; or
(b) on which anything is marked or written by the voter by which he can be identified."
10. ' The High Court held that a combined reading of the above-noted provisions showed that on account of the absence of signatures of the Presiding Officer on two ballot-papers the same were rendered as invalid and that the Presiding Officer was bound to exclude the said ballot-papers from the count. It went on to add :- "It is, by now, well-settled that if the statute declares a ballot-paper to be invalid for want of signatures then it has to be held as such. To our mind, the provisions of rule 40(4) and its clauses
(a) and (b) are of the nature of categorical definition of an invalid ballot-paper. If for the sake of argument it is assumed that the clauses are merely illustrative of the intention of the Legislature, the fact remains that the categories specifically mentioned in rule 40(4) of Election Rules will in any case be treated as being necessarily invalid. For all these reasons, we are convinced that the learned Election Tribunal has rightly declared the two unsigned ballot-papers found from the ballot-box of Shah Muhammad petitioner, to be invalid and has justifiably excluded these ballot- papers from count."
11. ' Mr. D. M. Awan, learned counsel for the petitioner, in support of this petition for leave to appeal has contended that the provisions of the Election Rules, quoted above, did not have mandatory effect but were directory in nature. In support of this contention he relied upon a judgment of this Court in Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and others (1), especially the observations at pages 42-43 of the report. According to him, this Court while construing sections 32(2) (b) and 36 (1) (b) (i) of the National and Provincial Assemblies (Elections)
12. Act, VIII of 1964-which, according to him, were analogous provisions - had held that ballot-papers which did not bear the initials of the Presiding Officer should not be rejected because the omission to place initials on the ballot-papers "on account of hurry or inadvertence on the part of the Presiding Officer" would amount to disenfranchising a person for no fault of his. He also-relied upon Akbar Ali v. Razi-ur-Rehman Khawaja and others (2) in support of his plea that the provision to the effect that the ballot-papers which do not bear the initials of the Presiding Officer shall be excluded from the count is only directory and not mandatory.
13. ' In Jamal Shah's case the question was whether two ballot-papers could be excluded from the count which bore the official mark but were not initialled by the Presiding Officer. The said case fell to be decided under the National and Provincial Assemblies (Election) Act, 1964. Under section 32
(2) (b) of the said Act "before a ballot-paper is handed over to an elector, the ballot paper shall, on its back, be stamped with an official mark and initialled by the Presiding Officer". Under section 36 thereof which dealt with the procedure to be followed on the close of the poll the Presiding Officer was required to count the ballot-papers in favour of the each contesting candidate "excluding from the count the ballot-papers
(1) PLD 1966 SC 1 (2) PLD 1966 SC 492 which bear no official mark or initials of the Presiding Officer". It was then provided in section 38 (2)
(a) of the Act, that the Returning Officer shall reject a ballot-paper "if it bears no official mark or initials of the Presiding Officer". The question, therefore, was whether the Presiding Officer could reject the ballot-papers only if they did not bear both the official mark and the initials by the Presiding Officer but not those ballot-papers which bore the official mark but not the initials of the Presiding Officer.
14. ' The learned Member of the Election Commission, Sardar Muhammad Iqbal, J. (as he then was) held that sub-clause (b) of clause (2) of section 38 was so worded that a negative imperative was followed by the word 'or' and that being so it implied that a ballot-paper can be rejected only if both the official mark and the initials are missing. He went on to add that this interpretation is also consistent with the principles of justice because it will obviate hardship to an elector or a candidate on account of an omission for which he is in no way responsible. He further observed "that the purpose for providing that the official mark and the initials should be put by the Presiding Officer on the ballot-paper is to avoid the smuggling of any unauthorised ballot-paper. Once the official seal is found on the ballot-paper or it is found to bear the initials of the Presiding Officer there remains no doubt as to the fact that the ballot-paper was issued from the same polling station". The above view of the learned Member of the Election Commission did not find favour with a Full Bench of the Lahore High Court, which heard the writ petition directed against his decision; Khan Nasrullah Khan v. The Member, Election Commission and others (1). The learned Judges observed that the word "shall" in section 32(2) (b) which provides that "the ballot-paper shall, on its back, be stamped with the official mark and initialled by the Presiding Officer" showed that the provisions of this subsection are mandatory in nature and not merely directory. They went on to add that "the result of noncompliance with this is contained in section 36 (b) (i) which requires the Presiding Officer to exclude from the count the ballot-papers which bear- "no official mark or initials of the Presiding Officer". and concluded that on reading of sections 32(2) (b) and 36 (b) (i) together, the intention of the Legislature appeared to be that section 36(2)(b) was to be strictly enforced and a ballot-paper which did not bear both' the marks shall stand excluded.
15. ' However, on appeal to this Court, a Full Court reversed the above-mentioned decision of the Lahore High Court (PLD 1966 SC 1). It was observed that the determination of the learned Member of the Commission was to be treated as a final determination, in view of the provisions of Article 171 of the Constitution of 1962 and as in the present case the determination was made within the Member's lawful authority, his decision was not susceptible of interference by the High Court under Article 98 of the aforesaid Constitution. It was additionally observed that an error on the part of the Presiding Officer to place his initials on the back of the ballot-paper should not result in penalising the voter. It was further observed- "It is the duty of the Presiding- Officer, under section 32, before he hands a ballot-paper over to the voter, to apply the official mark to it, and at the same time, to place his initials on it. There is ground,
(1) PLD 1966 Lab. 854 therefore, for thinking that the existence of the official mark is by itself sufficient to show that the paper passed through this process at the hands of the Presiding Officer, and it was mere act of inadvertence on this part that he failed to initial it at the same time. These considerations are relevant for the decision of the question of construction, viz. Whether the conjunction "or" as used in the expression "no official mark or initials" appearing in section 36 (1) (b) (i) enjoining exclusion of the vote by the Presiding Officer and section 38 (2) (a) enjoining rejection by the Returning Officer was not to be understood in a conjunctive, rather than in a disjunctive, sense."
16. ' Thus, the judgment in Jamal Shah's case is not helpful to the petitioner because it does not hold that the relevant provisions of the National and Provincial Assemblies (Election) Act, 1964 were of a directory nature. In that case, it was held that the word "or" in section 38 (2) (a) of the Act was to be understood in a disjunctive and not a conjunctive sense and, therefore the ballot-papers which either bore the official mark or the initials of the Presiding Officer could be deemed as valid.
17. ' The finding of the High Court that the terms of the said provisions were of mandatory nature and not directory was not interfered with. All that was held was that on the terms of the relevant statute those ballot-papers which merely bore the official mark and not the initials of the Presiding Officer were not invalid on account of the terms of the provisions of the law itself.
18. ' As for the other case, namely, Akhar Ali v. Razi-ur-Rahman Khawaja and others (1) relied upon by the learned counsel for the petitioner in that case the election from Unit No, 3 in District Lyallpur (now Faisalabad) was in dispute. The question inter alia was whether five ballot-papers which core the official mark but did not bear the initials of the Presiding Officer could be excluded from the count. The decision of this question turned on the true interpretation of the provisions of section 40 read with section 45 of the Electoral College Act (IV of 1964).
19. ' According to section 40 (2) (c) of the said Act before a ballot-paper is issued to a voter the ballot paper shall on its back be stamped with the official mark or initialled by the Presiding Officer.
20. Section 45 of the Act, which dealt with the procedure to be followed on the close of the poll laid down that immediately after the close of the poll the ballot-box of each contesting candidate was to be opened and the ballot-papers contained in the ballot-box of each candidate counted "excluding the invalid ballot papers, that is to say, the ballot-papers-
(a) which do not bear the official mark, or"
(b) ...................................................................................................
21. ' On reading the two provisions together it was observed by this Court that "section 45 of the Electoral College Act has provided only one condition in clause (a) to the effect that the Presiding Officer shall exclude the ballot-papers which do not bear the official mark". Section 40 which lays down the voting procedure inter alia prescribes that a ballot-paper shall on its back be stamped with the official mark and initialed by the Presiding Officer. There is no inconsistency between the provisions of this section and section 45 if they are read side by side. While the Presiding Officer is required by section 40 to fulfil both the conditions, a
(1) PLD 1966 SC 492 ballot-paper shall be rejected under section 45 only if it does not bear the official mark.
22. ' Thus, neither of the two judgments relied upon by Mr. D. M. Awan in support of his contention that the provisions of the said election laws were directory in nature and did not have mandatory effect really support him. In both the cases it was held that ballot-papers in dispute were not liable to be excluded because even on the terms of the statute they could not be regarded as invalid. On the other hand, in the instant case the provisions of subsection (4) of rule 40 of the Punjab Local Council (Election) Rules, 1979 clearly lay down that the Presiding Officer on opening the ballot-box of each contesting candidates shall count the ballot-papers contained in the ballot-boxes so opened, "excluding the invalid ballot-papers, that is to say, the ballot-papers which do not bear the signatures of the Presiding Officer". And under rule 34 (2) (d) it is already provided that the ballot- paper shall be signed by the Presiding Officer. Thus, there is no escape from the conclusion that the law requires that every ballot-paper must be signed by the Presiding Officer, and when the ballot- boxes are opened for the purpose of counting the ballot-papers, all these ballot-papers which do not bear the signatures of the Presiding Officer must be excluded. These provisions are express and categorical and there is no scope for considering these provisions to be of a directory nature.
23. ' In view of the foregoing, we are of the opinion that the judgment of the High Court is correct and no interference therein is called for. This petition, therefore, fails and is dismissed hereby.