MUHAMMAD MUNIR KHAN, J.--Through this Constitutional Petition Shah Muhammad petitioner wants this Court to declare judgment of Election Tribunal, respondent No.1, dated 21-2-1984, to be without lawful authority and of no legal effect. He further requested that not only the impugned order be set aside but also he be declared the successful candidate.
2. The facts leading up to this writ petition, in brief, are that Shah Muhammad petitioner and respondents Nos.1 & 2 namely Muhammad `Tahir Mehmood and Faiz Ahmad contested election from Unit No.10, Municipal Committee, Chishtian and polled 485, 484 and 47 votes respectively. The petitioner was thus declared elected. Muhammad Tahir Mehmood, respondent No.2 questioned the result of election by means of election petition before Election Tribunal respondent No.1. The petition was resisted whereon following 5 issues were framed:---- ISSUES:
(1) Whether two ballot papers were found to be unsigned by the Presiding/ Assistant, Presiding Officer out of the Ballot Box of the Respondent No. l? If so, its effect.
(2) Whether the Tendered Ballot Paper/Vote was not cast in favour of the petitioner?
(3) What is the effect of the tendered ballot paper? O.P. Parties.
(4) Whether the election of respondent No.1 can be declared as void on the grounds mentioned in the petition? O.P.P.
(5) Relief.
The parties adduced their evidence. Issue No.1 consists of two parts. The first part i.e. "Whether two Ballot papers were found to be unsigned by the Presiding/ Assistant Presiding Officer out of the Ballot Box of the respondent No. 1?" relates to facts whereas the other part i.e. "if so, its effect" is of law. As far the factual aspect of the issue, the Election Tribunal or appraisal of the evidence on record reached to the conclusion that the two ballot papers were found to be unsigned by Presiding Officer out of the Ballot Box of Shah Muhammad petitioner. So far as the legal aspect of the issue is concerned, the Election Tribunal declared that the two unsigned ballot papers to be invalid and that the same could not be counted in favour of Shah Muhammad petitioner. On issues Nos.2 & 3, the Election Tribunal found that the tendered vote was cast in favour of Muhammad Tahir Mehmood, respondent No.2 and that the same will be counted in his favour. Coming to issues No.4 & 5, the Election Tribunal, in view of his findings on issues Nos. 1 to 3 declared election of Shah Muhammad petitioner/ respondent therein, to be void because the two unsigned ballot papers having been declared invalid, the total number of votes of Shah Muhammad petitioner were reduced to 483 and with addition of tendered vote in his favour, the total number of polled votes of Muhammad Tahir Mehmood, respondent No.2 increased to 485. The Election Tribunal, therefore, declared him the successful candidate. This judgment is now before us in Constitutional jurisdiction.
3. Before us, Mian Allah Nawaz, the learned counsel for the petitioner, who pleaded the cause of the petitioner, with appreciable ability, has not seriously questioned the findings of the Election Tribunal on factual part of issue No.1 that the two ballot papers were found to be unsigned by Presiding/ Assistant Presiding Officer out of the Ballot Box of Shah Muhammad petitioner and rightly so because the same being a finding of fact based on conscious appreciation of evidence could not have been disturbed by this Court in exercise of its extra--ordinary jurisdiction. The learned counsel, however, vehemently challenged the findings of Election Tribunal on legal aspect of this issue. Relying on cases 'Haji Muhammad Rafique v. Additional Commis--sioner and Election Tribunal, Hyderabad Division and others PLD 1966 W.P. Kar. 434, Akbar A.I v. Razi-ur-Rehman Khawaja and others PLD 1966 SC 492, unreported judgment in Writ Petition No.4720/83/LHR decided on 22-4-1984. And the cumulative effect of interpretation of rules 34 (2) (d) and rule 40(4) of Election Rules, 1979 argued that the provisions of rule 40(4) of Election Rules, 1979 relied on by Election Tribunal are not mandatory in nature and that the omission on the part of Presiding Officer to sign the ballot paper does not vitiate the vote of an innocent elector. According to him it was at best an irregu--larity having no adverse effect on the validity of the two ballot papers.
Conversely, Mr. M. M.Bhatti, the learned counsel for the respondent supported the judgment of respondent No.1.
4. We have considered the arguments advanced by the learned counsel for the parties with care.
From the state of affairs and they trend of arguments of the parties it is very much obvious that the material and most important question for determination is as to whether the two ballot papers found from the Ballot Box of Shah Muhammad petitioner which were not bearing signatures of the Presiding Officer at the time of count, were valid or not. The question of the validity of these two unsigned ballot papers has been fully debated by both the parties. Having given our anxious consideration to the legal point in controversy, we have come to the conclusion that there is no substance in the contentions raised by the learned counsel for the petitioner. For the proper appreciation and interpretation of law, the relevant provisions may be reproduced advantageously---- Rule--34(2)
(a) ......................
(b) ......................
(c) ......................
(d) "the ballot paper shall be signed by the Presiding Officer; and
(e) ... . . . . . . . . . . . . . . . . .
Rule (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) The Presiding Officer shall give such of the contesting candidates, election agents and polling agents as may be present, reasonable facility of observing the count and give them such information with respect thereto as can be given consistent with the orderly conduct of the count and the discharge of his duties in connection therewith.
(3) No person other than the Presiding Officer, the Polling Officer any other person on duty in connection with the poll, the contesting candidates, their election agents and polling agents shall be present at the count.
(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 box 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."
5. The plain reading of provisions reproduced above leave no room for doubt that absence of signatures of Presiding Officer on two ballot papers necessarily rendered the same invalid whatever the reason for absence of the signatures may be, because the consequence of such omission/failure/absence has been clearly prescribed in Election Rules that the Presiding Officer shall exclude such ballot papers. 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) & (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. In this view of the matter, there was no alternative for the Tribunal but to declare respondent No.2 as the successful candidate. The case-law cited by the learned counsel for the petitioner does not help him, it rather supports the case of respondent No.2.
6. For what has been stated above, there being no merit, the petition is dismissed, leaving the parties to bear their own costs.