1989 PLP 3352 (MLD)

5. It is submitted by the learned counsel for the petitioner that rules 34(2) and 40(4) of the Local Councils (Election) Rules, 1987, were amended on 29‑10‑1987 but the learned Tribunal proceeded on the basis of the provisions of these rules before their amendment. It is also pointed out by the learned counsel that the judgment relied upon by 'the learned Tribunal was rendered on the basis of the unamended provisions of these rules. Learned counsel has contended that in view of the amended provisions of rule 40(4), a ballot‑paper can only be rejected if it does not bear either the official mark or the signature of the Presiding Officer. In other words, his submission is that a ballot‑paper containing the official mark cannot be declared invalid and excluded from the count. In support of his submissions, learned counsel has relied on a judgment of the Supreme Court reported as Ch. Muhammad Abdullah v. Abdul Wakil and others PLD 1986 SC 487.

6. In order to appreciate the contention, rule 40(4) as amended is reproduced hereunder:‑ "40(4) The Presiding Officer shall‑‑ (a) open the used ballot‑boxes and count the entire lot of ballot‑papers taken out therefrom; (b) separate the ballot‑papers which are unambiguously marked in favour of any contesting candidate from those; (i) which do not bear official mark and signature of the Presiding Officer; or (ii) x x x (iii) x x x (iv) x x x (v) x x x

7. Interpreting almost identical provisions of the Representation of the People Act, 1976, contained in sections 33(2) and 38(4) as also rule 23 of the Representation of the People (Conduct of Election) Rules, 1977, their Lordships of the Supreme Court held in the aforementioned case of Ch. Muhammad Abdullah v. Abdul Wakil and others "A ballot‑paper can be rejected as invalid under section 38(4)(c) of Representation of the People Act, 1976, when neither the official mark nor the signature of the Presiding Officer is present on its back, so that if either it bears the official mark on the signature of the Presiding Officer, the ballot‑paper cannot be excluded from the count and has to be treated as a valid vote in favour of the candidate in whose name it has been cast. The change effected by the amendment in substituting the conjunction "or" with "and", makes the position all the more clear, that for purposes of exclusion, both conditions must co‑exist, that is, there should be no official mark and no signature on the ballot‑paper. Conversely if one condition exists, the ballot‑paper cannot be excluded from the count."

8. In view of the legal and factual position aforestated, we hold that the ballot‑papers, which bear either the official mark or the signature of the Presiding Officer cannot be treated as invalid and excluded from the count. In our view, only those ballot‑papers can be excluded which do not bear both the official mark and the signature of the Presiding Officer. Learned Tribunal proceeded on incorrect view of law in holding that the ballot‑papers which did not bear the signature of the Presiding Officer were to be excluded. It appears that the learned Election Tribunal had in mind the provisions of rules 34 and 40(4) before their amendment when rule 34(2)(a) provided that "the ballot‑paper shall be signed by the Presiding Officer" and under rule 40(4)(a), the ballot‑papers were to be excluded "which do not bear the signature of the Presiding Officer". Learned Tribunal also failed to appreciate that the judgment relied upon by him was rendered on the unamended provisions of these two rules.

9. Upshot of the above discussion is that the impugned order of the learned Election Tribunal cannot be sustained and the same is declared to be without lawful authority and of no legal effect. Writ petition is accordingly accepted and the case remanded to the Election Tribunal with the direction that he shall pass a fresh order after re‑counting the votes in accordance with the legal position aforestated. There will be no order as to costs. H.B.T./A‑592/L Petition accepted.