1986 PLP 417 (CLC)

MUHAMMAD ZAFARULLAH, J.‑‑At an election to the Municipal Committee Wazirabad held on 28‑9‑1983, Muhammad Bashir respondent No.2 received 427 votes while Mustansar Ali petitioner received 366 votes. Mustansar Ali challenged the election in an election petition but it was dismissed by Sh. Mumtaz Ali, the learned Election Tribunal Wazirabad on 17‑9‑1984. The learned Tribunal found that even though 157 votes cast in favour of Muhammad Bashir, respondent No.2 and 74 votes cast in favour of Mustansar Ali petitioner had not been signed by the Presiding Officer, this will not be fatal to the election as the rule relating to the signing of the ballot papers was only directory and not mandatory. The petitioner has challenged the orders in the present writ petition.

2. The learned counsel appearing on behalf of the petitioner has referred us to the case of Shah Muhammad v. Election Tribunal Chishtian etc. P L D 1985 S C

282. The Supreme Court has clearly held that provisions of rules 34 (2) and 40(4) are express and categorical and there is no scope for considering these provisions to be of a directory nature. It was further held that every ballot paper must be signed by the Presiding Officer and when ballot boxes are opened for purposes of counting the ballot papers, all those ballot papers which do not bear the signatures of the Presiding Officer must be excluded. The learned counsel for the respondent, on the other hand, has referred to the case of Akbar Ali v. Razi‑ur‑Rehman Khawaja etc. P L D 1966 SC 492 and the case of Niaz Ahmad v Aziz‑ud‑Din etc. P L D 1967 S C 466 in order to show that the provisions are only directory in nature. On going through the judgment in Shah Muhammad's case we find that these arguments were advanced before the Supreme Court even though the case of Niaz Ahmad was not specifically referred. There is, therefore, no reason to distinguish the present case from that of Shah Muhammad's case. It is clear, that the ballot papers which do not bear the signatures of the Presiding Officer have to be excluded from the count. The learned Election Tribunal has failed to take note of law on this point therefore the orders passed on 17‑9‑1984 cannot be sustained. The learned counsel for the respondent has also argued that this was a case where the violation of the rule took place at the hands of the Presiding Officer, as she mistakenly believed that the official seal alone was sufficient, and that the signatures of the Presiding Officer were not necessary. He is of the view that the violation of the rule having affected a large number of votes, 157 in the case for respondent and 74 votes in the case of the petitioner, it was a case for declaring the election void as a whole under rule 15 and not of simple unseating of the successful candidate and declaring the petitioner to have been elected in his place. This is, however, a matter which is to be decided by the Tribunal and not by this Court and for this purpose we are remanding the case to the Tribunal.

3. In view of the above discussion, this writ petition is allowed. The orders passed by the Election Tribunal dated 17‑9‑1984 are declared to be of no legal effect and the matter is remanded to the Tribunal to dispose of the election petition afresh in accordance with law. There shall be no order as to costs. The parties are directed to appear before the Tribunal on 2‑11‑1985. A.A. Petition allowed.