P L D 2002 Karachi 457 (PLP)

(3).................... (4) The Presiding Officer shall‑‑ (i) open the used ballot box or ballot boxes and count the entire lot of ballot papers taken out therefrom; (ii) open the packet labelled, challenged ballot paper, and include the ballot papers therein in the count; (iii) count the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear‑‑ (a) no official mark; (b).... ............... (13)....................... (Emphasis added): According to Mr.Phulpoto, under rule 39 (4) (iii) (a) only those ballot papers are required to be excluded from the count which bear no official mark. As this sub‑rule does not include the requirement of signature of the Presiding Officer such a requirement cannot be imported in the rule for the purpose of counting the votes: He referred to the case of Wahid Bux v. The Election Authority Sindh, 1984 CLC 1294 wherein a learned DB of this Court held that the absence of the initial of a Presiding Officer on a ballot paper will not render it invalid. At this juncture it would be appropriate to refer to rules 35 and 40 of the Sindh Local Councils (Elections) Rules, 1979 which were being considered by the learned Division Bench in the aforesaid case. They read as follows: Rule 35.‑‑(1) ...... (2) Before a ballot paper is issued to an elector‑‑ (a) .................... (b) .................... (c).................... (d) the ballot paper shall on its back be stamped with the official, mark; and (e) .................... Rule 40.‑‑(1)............. (2) .................... (3) .................... (4) The Presiding Officer shall ....... (a) .................... (b) .................... (c) count, the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear‑‑ (i) no official mark: (ii) .................... (iii) .................... (iv) .................... From a bare reading of the above provisions, it is clear that rule 35(2)(d) of the 1979 Local Councils (Election) Rules does not state that the ballot paper besides being stamped at the back with the official mark shall also be signed by the Presiding Officer. This was apparently one of the reasons why the learned Division Bench came to the conclusion that the absence of the initial of a Presiding Officer on a ballot paper would not render it invalid. Further, paragraph 70 of the Manual containing the Instruction for the guidance of the Presiding Officers relating to the election out of which the Wahid Bux case arose required the initial of the Presiding Officer on the back of the ballot paper. The learned Court held that the instructions could not modify the Rules and were therefore, of no consequence and the ballot papers without the initials of the Presiding Officer were included in the count. We may mention here that both rule 34 and rule 39 of the Election Rules, 2000 have .to be read in consonance with each other so as to avoid a conflict between the two. In the culture and environment we are living in these days, people have developed a tendency to use unfair means without' any hesitance in all activities of life including elections to achieve their goals: Looking at the number of election cases that come up before Courts, elections in private, societies and associations are no exception. It is common knowledge that candidates in advance plan and arrange casting of bogus votes as it is very easy for any person to get. ballot papers printed or stealthily procured with the connivance of the lower staff associated with the elections and get. a stamp/seal of the Presiding Officer made by a stamp maker. The ballot papers containing the stamp/seal of the Presiding Officer without his signature can be used by an interested party to increase the number of votes of his candidate and/or to replace the votes casted against his candidate. However, if the signature of the Presiding Officer is made a mandatory ingredient of the ballot paper the possibility of spurious and bogus votes would be reduced substantially as it is not so easy to forge the signature of another person. It is obvious that the Government (Rule Making Authority under section 39 of the Sindh Local Government Election Ordinance, 2000) purposely added the requirement of the signature of the Presiding Officer on the back of the ballot to avoid the possibility of bogus votes. Further, rule 34(2) (iii) of the Election Rules, 2000, requires that before a ballot paper is issued to an elector it shall on its back be stamped with the official mark and signed by the Presiding Officer, Prima facie the word shall when it appears in a statute is used as a term of art to impose a duty to do what is prescribed, not a discretion to do it or not according to whether it is reasonably practicable to do it or to do something like it instead. (Lord Diplock in Greenwick Processing v. A.C.A.S. (1978) 1 All E.R 338, 360, as quoted in PLD 1991 Lahore 400) The Presiding Officer in the circumstances has no discretion and must comply with the mandatory requirement. If he does not put his signature on the back of the ballot paper, it shall not be in accordance with the mandatory requirement laid down in rule 34(2) (iii). It is well‑established that where a particular procedure * is prescribed for doing something, that thing must be done according to that E procedure, otherwise the entire proceedings would be illegal or irregular. Consequently, a ballot without the signature of the Presiding Officer would not be valid ballot paper ab initio and cannot be used as a ballot paper by an elector for expressing his opinion in favour of any candidate. Such a ballot paper, if used, would be an invalid document in the eye of the law and would not be eligible for counting. The Local Councils (Election) Rules, 1979 were in the knowledge of the Rule Making Authority when it made the Election Rules, 2000. The Rule Making Authority being conscious of the corrupt ethos prevailing in present day society deliberately added the requirement of the signature of the Presiding Officer on the back of the ballot paper; it is therefore, incumbent to give effect to the intention and consequential deliberate addition made in the rule 34(2),(iii) by the Government. This can be done when only those ballot papers are considered as valid whose foundation is proper and which bear on their back both the official mark and the signature of the Presiding Officer. If this is not done, the purpose of the Rule would be totally frustrated. The argument of Mr. Phulpoto that under rule 39 of the Election Rules, 2000 only those ballot papers which do not bear the official mark should be excluded, does not appeal to reason because it would amount to totally ignoring and violating the spirit of rule 34(2) (iii) requiring both the official mark and the signature of the Presiding Officer. We have already held that the signature of the Presiding Officer is mandatory and without his signature, the ballot paper has no sancity in law and, therefore, cannot be included in the category of valid documents for the purpose of counting of votes. Mr. Phulpoto's interpretation is violative of the principle of interpretation that various provisions of a law should be harmoniously interpreted so as to avoid any conflict and repugnancy between them and is accordingly rejected. It may be mentioned here that the principle laid down in Wahid Bux case cannot be applied to the present case as the Election Rules of 2000 are different from the Election Rules of 1979 wherein the rule relating to issuance of ballot papers did not require that the Presiding Officer to put his signature on the back of the ballot paper alongwith his official mark. Neither counsel provided us a copy of the 1979 Instruction Manual. We tried to obtain the same from the Office of the Election Commission but did not succeed. From the perusal of Wahid Bux judgment, it appears that the alleged instruction required the initial of the Presiding Officer on the back of the ballot paper but in the 2000 Rules the Presiding Officer is required to put his signature which is more difficult to forge than an initial. We are, therefore, fortified in our view that the Government added the requirement of the signature of the Presiding Officer on the back of the ballot paper in rule 34 to make it as difficult as possible to manipulate and cast bogus votes. The politicians and Government officials have been paying lip service to transparency and fairplay for decades. It is for the first time that the Government is seriously attempting to run its affairs with transparency. Apparently, it was in this vein that the Government included the requirement of signature of the Presiding Officer on the ballot paper. However, it appears that in its eagerness to start the democratic process by holding the Local Government Elections expeditiously, it inadvertently omitted to add the requirement of the signature of the Presiding Officer in rule 39(4)(iii) like it had done in rule 34(2) (iii) of the Rules 2000. It is an established rule that the Courts will adopt that construction which will remove the lacuna and advance the purpose and object of the Statute (Province of East Pakistan v. Sharafatullah PLD 1970 SC 514, 525). In the present case the lacuna is not in a statute but in a sub‑legislation made by the Government which can be In cured by the Court. As discussed above the only way to harmonize rules 34 and 39 and remove the conflict between them is to exclude those votes which do not contain the signature of the Presiding Officer. Such interpretation will uphold the sanctity of the vote, inculcate transparency and fairplay and bring some honesty in society which is the need of the hour. In view of the above discussion, we are satisfied that the Election Tribunal committed an error in counting the votes contrary to law. The petition is accordingly allowed and the order dated 16‑10‑2001 passed by the Election Tribunal, Naushahro Feroze in Election Petition No.4 of 2001 is hereby set aside. The above are the reasons for the short order dated 27‑2‑2002 allowing the petition which could not be finalized earlier as one of the member's of the Bench was not available. S.A.K./H‑68/K Petition allowed.