1988 PLP 2104 (CLC)

F'AIZ MUHMAMMAD KHAN, J.‑‑Pirzada Sultan Akbar Shah contested election for a seat of Ward No.25, Mulazai, Tehsil Tank of District Council D.I. Khan. The other contestant was Riaz Khan who is respondent No.l in this petition. On the conclusion of the polls, Riaz Khan was declared as elected to the said seat. Pirzada Sultan Akbar Shah filed' election petition before the Election Tribunal constituted under the law challenging the result of the said election. Before the Election Tribunal, the parties agreed that they would not produce any evidence and that they would be satisfied if recounting of the ballot‑papers was done by the Tribunal. Consequently, the Election Tribunal proceeded with the recounting of the ballot‑papers and as a result, it was found that Riaz Khan had obtained more votes‑ than the petitioner herein. The election petition was accordingly rejected. Pirzada Sultan Akbar Shah has filed this constitutional petition calling in question the order of the Election Tribunal as well as the result of the count of the ballot‑papers in consequence whereof Riaz Khan respondent has been declared as elected to the said seat.

2. Mr. Sanaullah Khan Gandapur, Advocate appearing for the petitioner contends that both the Presiding Officer as well as the Election Tribunal were wrong in counting those ballot papers in favour of the opposite party which did not bear the initials of the Presiding Officer. In this regard he refers to rule 32 of the North‑West Frontier Province Local Council Election Rules, 1979 (hereinafter referred to as the Rules). We have read this rule with care and it says that besides the official stamp to be put on the back of the tallot paper, it shall also be initialled by the Presiding Officer. The contention of the learned counsel is that those ballot papers which did not bear the initials of the Presiding Officer on the back could not have been counted as valid votes and that the same should have been excluded from the count, in which event the petitioner having polled more votes became entitled to be declared as a returned candidate. The learned counsel, however, fails to take note of the fact that the duty cast by rule 32 is on the polling staff, including the Presiding Officer, and if any of them fails to perform his duty, the votes cast by the voters cannot be thrown into drain only because the initials had not been put on the back of such ballot papers. Rule 37 of the Rules, which has also been relied upon by the Election Tribunal, is relevant in this context, which also contains in it, in our view, the definition of the 'invalid ballot papers', which in terms is that only those ballot papers are to be deemed as invalid, which‑‑ (a) do not bear the official mark; or (b) on which anything is marked or written by the voter by which he can be identified. Those ballot papers which do not contain initials of the Presiding Officer on their back do not, therefore, go into the teeth of rule 37 of the Rules, which relates to counting of votes. There is no dispute that all the ballot papers which were counted for both the parties bore the official stamp on the back, and it is not the case of the petitioner that anything was marked or written by any voter on any ballot paper which could indicate the identity of the voter casting that vote. We are, therefore, of the view that the Rules have been duly followed by those who declared the result and the Election Tribunal was also right in holding that the ballot papers could not be rejected as invalid only on the ground that they did not contain the initials of the Presiding Officer on their back.

3. Consequently, we find no merit in this petition which is hereby dismissed in limine. A . A . / 639 / P Petition dismissed.