P L D 1961 (W (PLP)

KHAM1SANI, J.‑The petitioner Ghulam Dastagir and the respondent No. 2 Khuda Bux contested elections for the Basic Democracy of Union Council Darro and both of them were declared successful. They also contested election for the Chair man of the Union Council held at P. W. D. bungalow on 29th February 1960. Mr. Ahmad Khan Ansari, Assistant Engineer, Darro Range, was appointed as the Presiding Officer. The petitioner secured 10 votes against 7 votes secured by the respon dent No. 2 and was declared successful. The respondent No. 2 filed an election petition before the Controlling Authority on 24th March 1560, who in this case was the Deputy Commissioner and the District Magistrate, Thatta whereby the validity of the election of the Chairman was questioned. The respondent No. 2 challenged the election on various grounds mentioned in the application. The Controlling Authority recorded the evidence and after hearing the arguments of the counsel for the parties fixed the matter for orders on 29th June 196, . The Controlling Authority who recorded the evidence and heard the arguments was in the meantime transferred. The respondent No. 1. after giving an opportunity to the counsel for the parties to clarify certain points, passed the impugned order accepting the application and directing re‑election. This petition has been filed by the petitioner challenging the validity of the order passed by the Controlling Authority with a view to secure a writ of certiorari to quash the said order.

2. The respondent has resisted the application and have stated in the counter‑affidavits that the order challenged is valid and within jurisdiction.

3. The learned counsel for the petitioner has given up all the points raised by him in his petition except the one that the order of the Controlling Authority is based on rule 47 of the West Pakistan Basic Democracies Election Rules, 1959, which rule, according to him, is not applicable to the case of the petitioner. The order passed by the Controlling Authority, therefore, is illegal and deserves to be quashed. '

4. The elections to the Basic Democracies are controlled by the rules framed as West Pakistan Basic Democracies Election Rules, 1959. These rules were promulgated in the Extraordinary Gazette of 13th November 1959. These rules govern the elections to the Basic Democracies which are defined in rule 2 (3).which reads as under "2(3). `Basic Democracy' means a Union Council, Union Committee or a Town Committee constituted under the Basic Democracies Order, 1959." These rules are therefore applicable to the case of the elections of Union Council, Union Committee or a Town Committee. There are rules also framed to regulate and control the elections of Chairman of these Basic Democracies. These rules are called as West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 arid they were gazetted in the Extraordinary Gazette of 11th January 1960. These rules were framed in exercise of the powers conferred under clause (5) of Article 11, clause (5) of Article 12 and clause (2) of Article 89 of the Basic Democracies Order, 1959, read with entry 3 of the Sixth Schedule thereto. The very fact that two sets of rules were framed, one for the election of the Basic Democracies and the other for the Chairman of the Basic Democracies, shows that the rules framed in each case applied to the cases of the elections contemplated by them A respectively. The rules in either case are a complete code in themselves and lay down the procedure for the elections of the Basic Democracies and the Chairman of the Basic Democracies The rules, therefore, framed for the election of the Basic Democracies can have no application whatever to the election of the Chairman. The rules framed for the purpose of electing a Chairman of the Basic Democracies do not have a provision analogous to rule 47 of the Rules of West Pakistan Basic Democracies Rules of 1959. Rule 47 of the West Pakistan Basic Democracies Election Rules, 1959, cannot therefore be invoked and relied upon for the purpose of deciding the case of election of a Chairman. The decision given by the Controlling Authority based as it is on rule 47 of the West Pakistan Basic Democracies Rules of 1959 and not on any Rule framed for the election of a Chairman of the Basic Democ racies cannot therefore be maintained.

5. The Controlling Authority is empowered to hear. the election petitions under rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960. Rule 7 reads as under: "

7. Election Petition.‑(I) No election of a Chairman shall be. called in ,question except by a petition presented to the Controll ing Authority within thirty days of the declaration of the result. (2) The Controlling Authority may after such enquiry as may be necessary, uphold the election of the ' Chairman, or declare the election as void for any material irregularity, or any sufficient reason to be recorded. (3) Where an election is held to be void, a fresh election shall be held in the manner provided by these rules." It is clear from a bare reading of this rule that the Controlling Authority is empowered to uphold the election or the Chairman or declare the election as void for any material irregularity, or any sufficient reason to be recorded. The Controlling Authority in this case has neither held the election to be void on account of any material irregularity nor has he held it void on account of any `sufficient reason'. The order is, based merely on rule 47 of the West Pakistan Basic Democracies Election Rules, 1959. The relevant portion of the order of the learned Controlling Authority reads as under: "The appellant declared his side closed after giving his state ment Exh.

1. He did not produce any further evidence in support of his allegations made in his petition. I therefore cannot wholly believe his version in absence of any other corroborative evidence. The only important point involved in the case is that the ballot papers issued to the voters were not initialled by the Presiding Officer. Now the question is whether election held under such. conditions is valid or void. I hold the election to be void for the following reasons :‑ Rule 5 (3) of the West, Pakistan Basic Democracies (Election of Chairman) Rules, 1960, requires that the Presiding Officer shall issue to each member of the Basic Democracy a ballot in the form appended to these rules. The form of ballot paper appended to the rules specifies the places for the signature of thumb‑impression of the member in column No. I on the side or the counterfoil and initial in the Election Rules of Chairman, 1900 is provided that the signature or thumb‑impression of the member should be obtain ed. But because column is provided in the form of ballot for this purpose the Presiding Officer has taken thumb‑impres sion or signature as the case was. Accordingly it was obligatory for the Presiding Officer to affix his initial before issuing the ballot papers to the voters particularly when a column was provided in the form for his initial. Mr. Ansari, Assistant Engineer, Presiding Officer for holding election of Chairman Union Council, Darro, Taluka Mtrpur Bathoro in his statement Exh. 5 has admitted that he did not initial the ballet papers as provided by the mirror of the ballot paper given on the back side of the rules, due to oversight. Rule 7(2) of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, requires that the Controlling Authority can declare the election as void for any material irregularity. I hold without any shadow of doubt that it is a material irre gularity which vitiates the whole proceedings. Rule No. 47 (1) of the West Pakistan Basic Democracies Rules, 1960 reads as under: "Any ballot paper which does not bear the initials of the Polling Officer or on which is written or marked anything, other than the particulars required to be given under these rules, by which the elector can be identified shall be void and shall not be counted." This shows the importance of the affixing the initial of the Presiding Officer to the ballot paper. Mirror of ballot paper is very clear and does not involve any doubt, ambiguity or conflict with regard to the initialling of the ballot paper by the Presiding Officer. Under the circumstances I declare the election void and direct that a fresh election may be held." It is abundantly clear from the order of the Controlling Authority that the election was set aside only on the ground that the ballot papers which required to be initialled by the Presiding Officer had not been initialled by him. This, has not been held anywhere in the order as any irregularity much less a material irregularity. All that is said is that rule 7(2) of the West Pakistan Basic Demo cracies (Election of Chairman) Rules, 1960, empowers the Controlling Authority to declare the election as void for any material irregularity. It is also said "I hold without any shadow of doubt that it is a material irregularity which vitiates the whole proceedings . . . . This shows the importance of the affixing the initial of the Presiding Officer to the ballot paper." It is admitted that the Presiding Officer had not initialled the ballot paper. The question for consideration b‑.fore the Controlling Authority was to give a finding as to whether the non‑initialling of the ballot paper would amount to a material irregularity as contem plated by the miles or whether he considered it to be sufficient reason for setting aside the election. The learned Controlling Authority instead of doing that has held non‑initialling of the ballot paper to be a material irregularity only because the same has been alone in violation of rule 47 of the West Pakistan Basic of Democracies Rules, 1959. The learned Controlling Authority seems to have committed this mistake because he thought he was relying upon the rules passed in 1960 and which applied to the case of election of the Chairman of the Basic Democracies. In the first instance rule 47 to which he has referred is not a rule of West Pakistan Basic Democracies Rules, 1960, but is of West Pakistan Basic Democracies Election Rules, 1959. In fact there are no rules like West Pakistan Basic Democracies Rules of 1960. The rules are of 1959 and they admittedly do not apply to their case of the election of the Chairman. The finding, therefore, given by the Controlling Authority is based on no lair and is without any foundation. The application of the petitioner is, therefore: accepted and a writ of certiorari is issued. The order passed by the learned Controlling authority is hereby quashed. We, however in view of the circumstances of this case, make no order as to costs. A. H. Order quashed.