ZIA MAHMOOD MIRZA, J.--This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against the judgment of the Election Tribunal, Mandi Baha-ud-Din, dated 10-9- 1988 whereby the election petition of respondent No.1 directed against the petitioner's election as member of Union Council Bhekhoo, Tehsil Phalia, District Gujrat, was accepted and the election as a whole declared void on the ground of violation of rules.
2. Facts necessary for the disposal of this petition, briefly, stated, are that the petitioner and Faiz Ahmed respondent No.1, were rival contestants for the membership of Ward No.6, village Takhat Mahal, Union Council Bhekhoo in the Local Council Elections held on 30-11-1987, Petitioner secured 150 votes as against 146 votes of respondent No.1. He was accordingly declared elected. Feeling aggrieved, respondent No.1 filed an election petition under section 24 of the Punjab Local Government Ordinance, 1979, to challenge the petitioner's election.
3. It appears that during the course of hearing of the election petition, both the parties agreed on 28-2-1988 that the election petition be decided only by re--counting the votes. Joint statement of the parties and their counsel in that behalf was recorded whereafter election record was summoned. Election Tribunal then re-counted the votes on 15-3-1988. During the re-count, learned Tribunal found that 149 votes out of 150 cast in favour of the petitioner and 145 votes of the respondent did not bear the signature of the Presiding Officer. It was further noted that the remaining two votes, one each of the petitioner and the respondent, bore neither the official mark nor the signature of the Presiding Officer. Election Tribunal, therefore, relying on Shah Muhammad v.
Election Tribunal PLD 1985 SC 282 wherein it was held that all the ballot-papers which do not bear the signatures of the Presiding Officer are to be excluded from the count came to the conclusion that the election as a whole was vitiated. It was accordingly so declared by the learned Election Tribunal vide his order, dated 10-9-1988 which has been challenged in this petition.
4. We have heard the learned counsel for the petitioner. No one has appeared for respondent No.1 although notice "PC Registered" is shown to have been sent to him for today's hearing on 13-11-1988.
In fact, he appeared on the last date of hearing viz., 29-10-1988 and made a statement that he did not want to contest the writ petition. He was directed to produce his identity card on the next date of hearing. He has not turned up today. He is, therefore, proceeded against ex parte.
5. It is submitted by the learned counsel for the petitioner that rules 34(2) and 40(4) of the Local Councils (Election) Rules, 1987, were amended on 29-10-1987 but the learned Tribunal proceeded on the basis of the provisions of these rules before their amendment. It is also pointed out by the learned counsel that the judgment relied upon by 'the learned Tribunal was rendered on the basis of the unamended provisions of these rules. Learned counsel has contended that in view of the amended provisions of rule 40(4), a ballot-paper can only be rejected if it does not bear either the official mark or the signature of the Presiding Officer. In other words, his submission is that a ballot- paper containing the official mark cannot be declared invalid and excluded from the count. In support of his submissions, learned counsel has relied on a judgment of the Supreme Court reported as Ch. Muhammad Abdullah v. Abdul Wakil and others PLD 1986 SC 487.
6. In order to appreciate the contention, rule 40(4) as amended is reproduced hereunder:- "40(4) The Presiding Officer shall-- (a)open the used ballot-boxes and count the entire lot of ballot-papers taken out therefrom; (b)separate the ballot-papers which are unambiguously marked in favour of any contesting candidate from those; (i)which do not bear official mark and signature of the Presiding Officer; or (ii)x x x
(iii) x x x
(iv) x x x (v)x x x
7. Interpreting almost identical provisions of the Representation of the People Act, 1976, contained in sections 33(2) and 38(4) as also rule 23 of the Representation of the People (Conduct of Election)
Rules, 1977, their Lordships of the Supreme Court held in the aforementioned case of Ch. Muhammad Abdullah v. Abdul Wakil and others "A ballot-paper can be rejected as invalid under section 38(4)(c) of Representation of the People Act, 1976, when neither the official mark nor the signature of the Presiding Officer is present on its back, so that if either it bears the official mark on the signature of the Presiding Officer, the ballot-paper cannot be excluded from the count and has to be treated as a valid vote in favour of the candidate in whose name it has been cast. The change effected by the amendment in substituting the conjunction "or" with "and", makes the position all the more clear, that for purposes of exclusion, both conditions must co-exist, that is, there should be no official mark and no signature on the ballot-paper. Conversely if one condition exists, the ballot-paper cannot be excluded from the count."
8. In view of the legal and factual position afore stated, we hold that the ballot-papers, which bear either the official mark or the signature of the Presiding Officer cannot be treated as invalid and excluded from the count. In our view, only those ballot-papers can be excluded which do not bear both the official mark and the signature of the Presiding Officer. Learned Tribunal proceeded on incorrect view of law in holding that the ballot-papers which did not bear the signature of the Presiding Officer were to be excluded. It appears that the learned Election Tribunal had in mind the provisions of rules 34 and 40(4) before their amendment when rule 34(2)(a) provided that "the ballot-paper shall be signed by the Presiding Officer" and under rule 40(4)(a), the ballot-papers were to be excluded "which do not bear the signature of the Presiding Officer". Learned Tribunal also failed to appreciate that the judgment relied upon by him was rendered on the unamended provisions of these two rules.
9. Upshot of the above discussion is that the impugned order of the learned Election Tribunal cannot be sustained and the same is declared to be without lawful authority and of no legal effect.
Writ petition is accordingly accepted and the case remanded to the Election Tribunal with the direction that he shall pass a fresh order after re-counting the votes in accordance with the legal position afore stated. There will be no order as to costs.
H.B.T./A-592/L