' ZIA MAHMOOD MIRZ A, J.--Petitioner as also respondents Nos.2 and 3 contested election for the membership of Union Council Chak No,147/GB from electoral unit No,14, Chak No,652/3, Tehsil Jaranwala, District Faisalabad held on 30-11-1987. According to the statement of count prepared by the Presiding Officer, petitioner and respondent No,2 secured 131 and 132 votes respectively whereas no vote was cast in favour of respondent No,3. Respondent No,2 was accordingly declared successful by a margin of 1 vote. Feeling aggrieved, petitioner challenged the election of respondent No,2 in an election petition filed under section 24 of the Punjab Local Government Ordinance, 1979 alleging therein that 8 votes validly cast in his favour were illegally rejected by the Presiding Officer and excluded from his count and further that 4 invalid votes were included in the count of respondent No,2. Respondent No,2 contested the election petition by filing a written statement wherein he controverted the allegations of the petitioner.
2. On 12-1-1988, both the parties agreed before the Election Tribunal that since the dispute between them pertained only to the validity/invalidity of the votes, the election petition be disposed of by recounting the ballot papers. Learned Tribunal recorded their statements in this behalf and proceeded to examine the ballot papers forthwith. It was found by the Tribunal that none of the ballot papers cast in favour of either of the parties bore the signatures of the Presiding Officer or of the Assistant Presiding Officer. He, therefore, relying upon two cases viz. "Shah Muhammad v.
Election Tribunal and others PLD 1985 SC 282 and "Mustansar All v. Election Tribunal and another"
1986 CLC 417(DB) held vide order dated 12-1-1988 that no valid vote at all was cast and as such the election as a whole was vitiated. The order of the Election Tribunal has been brought under challenge in the present Constitutional petition.
3. We have heard the learned counsel for the parties. It has been pointed out by the learned counsel for the petitioner that all the ballot papers which the Election Tribunal has declared invalid for want of signatures of the Presiding Officer/Assistant Presiding Officer were duly stamped with the official mark. This assertion has not been denied by the learned counsel appearing for the contesting respondent. Learned counsel for the petitioner has, therefore, argued with reference to the provisions of amended sub-rule (4) of Rule 40 of the Punjab Local Councils (Election) Rules, 1979 that since the ballot papers in question bore the official mark, they could not be excluded from the count. In the submission of the learned counsel, according to sub-rule (4) as amended vide Notification No,SOV.2-4/79, dated 29th October, 1987, a ballot paper can be rejected and excluded from the count only if it does not bear both the official mark and the signatures of the Presiding Officer. In other words, his submission is that in view of the amended provision of sub-rule (4) of rule 40, a ballot paper cannot be rejected as invalid if it bears either the official mark or the signatures of the Presiding Officer. Learned counsel in support of his submission has also relied upon a judgment of the Supreme Court of Pakistan in PLD 1986 SC 487 "Ch. Muhammad Abdullah v. Ch. Abdul Wakil and others" wherein while interpreting the identical provisions of the Representation of the People Act, 1976, it was held that a ballot paper can be rejected as invalid when neither the official mark nor the signatures of the Presiding Officer is present on it. Learned counsel has contended that the judgments relied upon by .The Tribunal proceeded on the language of Rules 34(2) and 40(4) before their amendment. It is pointed out that before the amendment, the only requirement was that the ballot paper shall be signed by the Presiding Officer and similarly the relevant provision of rule 40(4) was that a ballot paper not bearing the signatures of the Presiding Officer shall be excluded.
4. Learned counsel appearing for the contesting respondent, on the other hand, has relied upon rule 34(2)(d) as it now exists after amendment and argued that under this provision, an obligation is cast on the Presiding Officer to put his signatures on the ballot paper and also to stamp it with the official mark. In the submission of the learned counsel, this provision is mandatory and non- compliance therewith renders the ballot paper invalid. Learned counsel has, however, not denied that the consequence of non-compliance with the provision of rule 34(2)(d) is provided in clause (b)(1) read with clause (d) of sub-rule (4) of rule 40 which provides that a ballot. Paper which does not bear the official mark and the signatures of the Presiding Officer is to be excluded from the count. He has, however, contended that the word 'and' in the expression 'which do not bear official mark and signatures of the Presiding Officer" contained in rule 40(4)(b)(1) is not conjunctive but is to be read as disjunctive. It has thus been urged by the learned counsel for the respondent that in order to be valid, ballot papers must bear both the signatures of the Presiding Officer and the official mark and consequently the ballot papers which do not bear the signatures of the Presiding Officer though the official mark may be present on them have to be excluded from the count.
Learned counsel has contended that the requirement of signing of the ballot papers by the Presiding Officer and also stamping them with the official mark is intended to ensure the holding of fair and free election by preventing any unfair practice/ device of smuggling of fictitious ballot papers.
5. Question which thus emerges for consideration in the instant case is whether the ballot papers which are stamped with the official mark but do not bear the signatures of the Presiding Officer are rendered invalid so as to be excluded from the count. Decision of this question turns on the interpretation of the relevant provisions of rules 34 and 40 of Punjab Local Councils (Elections)
Rules, 1979 which are reproduced hereunder for facility of reference:- "34. Voting procedure.--(1) Where a voter presents himself at the polling station to vote, the Presiding Officer shall, after satisfying himself about the identity of the voter, issue to him ballot paper.
(2) Before a ballot paper is issued to a voter-- (a)
(b)
(c)
(d) the ballot paper shall, on its back, be signed by the Presiding Officer and stamped with the official mark and (e)
' Rule 40 which deals with the proceedings at the close of poll in its relevant aspect Are as under:- "40. Proceedings at the close of 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 (2)
(3)
(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 signatures of the Presiding Officer; or (ii)
(iii) ........................................................................
(iv) ........................................................................
(v) ........................................................................
(c)
(d) count and put in a separate packet the ballot papers mentioned in sub-clauses (i) to (v) of clause (b) which are excluded from count.
6. Rule 34, it may be noted, relates to the voting procedure.
' Sub-rule (2), clause (d) thereof provides that before a ballot paper is issued, it shall be signed by the Presiding Officer and stamped with the official mark. Requirement contained in this provision is obviously to be fulfilled by the Presiding Officer and it does not cast any obligation on the voter.
While examining a similar provision in section 32(2)(b) of National and Provincial Assemblies (Elections) Act VII of 1964 which requires that before a ballot paper is handed over to an elector, it shall "on its back, be stamped with the official mark and initialled by the Presiding Officer," their Lordships of the Supreme Court observed in Mian Jamal Shah v. Election Commission (PLD 1966 SC 1), "The direction is clearly addressed to the Presiding Officer, and it does not convey anything of obligation upon the elector himself in respect of the fulfilment of the requirement It is thus clear that if the Presiding Officer fails in his duty and omits to put his signature on the ballot paper and applies only official mark thereto, a voter cannot be disenfranchised nor can a candidate be penalized for such an omission. This appears to be the true import of the relevant provision of rule 34 and it cannot, therefore, be treated as mandatory so as to nullify the ballot papers which do not contain both the official mark and the signatures of the Presiding Officer. The provision which is more relevant and has direct bearing on the question under examination is the one contained in sub-rule (4) of rule 40. Clause (b) of sub-rule (4) enumerates various categories of invalid ballot papers which under clause (d) of the said sub-rule are to be excluded from the count. One such category which is relevant for our purpose is of the ballot papers "which do not bear official mark and signature of the Presiding Officer". It is referred to in clause (b)(i) aforementioned. This provision as worded clearly envisages the absence of both the official mark and the signature of the Presiding Officer on the ballot paper for rendering it invalid. The use of the word 'and' in this sub-clause is quite significant as it places beyond doubt that a ballot paper can only be excluded if it bears neither the official mark nor the signatures. It may pertinently be noted that in the case of Mian Jamal Shah, even the word 'or' used in almost identical provisions contained in section 36(1)
(b)(i) and section 38(2)(a) enjoining exclusion/rejection of ballot papers which bear "no official mark or initials of the Presiding Officer" was interpreted to mean 'and'. Question in that case, inter alia, was whether two ballot papers which bore the official mark but were not initialled by the Presiding Officer could be excluded from the count. It was held by the learned Member of the Election Commission that a ballot paper could only be rejected if both the official mark and initials of the Presiding Officer were missing. According to the learned Member, the interpretation that he placed on the relevant provisions of Act VII of 1964 was 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 they are in no way responsible." It was also observed by the learned Member of the Election Commission 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 view taken by the learned Member was upheld by the Supreme Court of Pakistan and it was observed at page 43 of the Report "Moreover, the Member's argument is not without weight, viz., that an error in this respect is totally outside the obligation of the elector, and the law could not intend that he should be penalised for it. 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 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 his 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".
7. Matter has again been examined by the Supreme Court of Pakistan in the aforementioned case of Muhammad Abdullah v. Abdul Wakil and others relied upon by the learned counsel for the petitioner. This case fell to be decided under the Representation of the People Act, 1976 and the Rules framed thereunder, relevant provisions whereof may usefully be referred to highlight their similarity with the aforequoted provisions of Punjab Local Councils (Elections) Rules, 1979. Section 33(2) of the said Act provides "Before a ballot paper is issued to an elector, the ballot paper shall on its back be stamped with the official mark and signed by the Presiding Officer". Section 38(4) of the Act requires the Presiding Officer to count the votes cast in favour of each contesting candidate "excluding from the count the ballot papers which bear no official mark and signature of the Presiding Officer". Again rule 23 of the Representation of the People (Conduct of Election) Rules, 1977 provides "The Presiding Officer shall after taking out the ballot papers from the used ballot-box or ballot-boxes--(a) separate the ballot papers which are unambiguously marked in favour of a contesting candidate from those which bear-(i) no official mark and signature of the Presiding Officer". While interpreting these provisions, their Lordships held "We are of the view that a ballot paper can be rejected as invalid under section 38(4)(c) when neither the official mark nor the signature of the Presiding Officer are present on its back, so that if either it bears the official mark or 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", in our view makes the position all the C 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." Their Lordships did not accept the view taken by the Election Tribunal that a ballot paper could be counted as valid only if both the official mark and the signature of the Presiding Officer were present thereon. It was observed that the Tribunal's view would be correct if the relevant provision was "couched in positive language to the effect that such ballot papers were to be counted which bear official mark and signature of the Presiding Officer. But the provisions are couched in a manner that the two conditions have been laid down for the purpose of exclusion, therefore, the power to exclude the ballot paper is dependent on both conditions co-existing simultaneously, which is the effect of the conjunctive "and" used in the provisions".
8. In view of the aforenoted pronouncement of the Supreme Court of Pakistan based on the provisions of the Representation of the People Act and the Rules framed thereunder which are analogous to the relevant provisions of rules 34 and 40 of the Punjab Local Councils (Elections)
Rules, issue stands clinched and matter does not require to be pursued any further. We accordingly hold that the ballot papers which bear either the official mark or the signatures of the Presiding Officer cannot be treated as invalid and excluded from the count. Only those ballot papers can be excluded from the count which do not bear both the official mark and the signatures of the Presiding Officer. It has been asserted by the petitioner and not denied by the contesting respondent that the ballot papers declared invalid by the Election Tribunal bore the official mark.
That being so, the Election Tribunal in view of the aforementioned legal position, was clearly wrong in declaring such ballot papers as invalid. Learned Election Tribunal proceeded on wholly incorrect view of law in holding that the ballot papers which did not bear the signatures of the Presiding Officer were to be excluded. It appears that the learned Tribunal had in mind the provisions of rules 34 and 40(4) before their amendment when rule 34(2)(d) provided that "the ballot paper shall be signed by the Presiding Officer" and under rule 40(4)(a), the ballot papers "which do not bear the signatures of the Presiding Officer" were to be excluded. Learned Tribunal also failed to appreciate that the judgments which he relied upon were 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 accepted and the to the Election Tribunal, respondent No,1 for passing fresh orders after re-counting the votes in accordance with the legal position propounded hereinabove. There will be no order as to costs.