1994MLD159 (PLP)

Petitioner as well as respondent No.1 Muhammad Tufail contested Local Bodies election for the membership of Union Council, Unit No.l/4 Ward No.8, Mangat Necha Union Council, Sagar Kalan, Tehsil Hafizabad held in December, 1991. Petitioner Wali-ud-Din secured 213 votes while respondent No.1 Muhammad Tufail secured 212 votes. The Deputy Commissioner, Gujranwala accordingly issued Notification on 8-1-1992 declaring petitioner as a returned candidate who took oath of office on 9-1-1992. Feeling aggrieved of this election result Muhammad Tufail respondent filed an election petition under section 24 of the Punjab Local Government Ordinance 1979 alleging therein that the same had been secured through highhandedness as the invalid votes were also counted. On 12-5-1991 Muhammad Tufail made a statement before the Election Tribunal to the effect that if recount was made then in that eventuality he would not press the remaining ground taken by him in his election petition. The Election Tribunal accordingly on the same day passed the order for recounting and the case was adjourned to 30-5-1992. On the adjourned date i.e. 30.5-1992 the case was again adjourned to 9-6-1992 with a direction to the Presiding Officer for his appearance. The Presiding Officer Muhammad Ilyas respondent No.2 SST teacher accordingly appeared on 9-6-1992 and made a statement to the effect that the seals on the bag were not the same which he had earlier affixed at the time of its deposit in the treasury. In the light of his statement bag was accordingly opened and votes of the contesting parties were found properly sealed in a brown bag. The votes were recounted and according to it Waliuddin petitioner had 86 valid votes from female polling booth while 123 votes from male polling booth. The Election Tribunal rejected his two votes from female section and 19 from male section on the ground that the same were not signed by the Assistant Presiding Officer. In this manner after recount, 84 votes were considered as valid from female section while in the male section 104 votes were considered as valid. Resultantly the petitioner secured 188 votes in all while respondent Muhammad Tufail's votes were counted as 75 from female section and 120 from male section totalling 195 valid votes. He was thus declared as elected member of the Union Council by Election Tribunal through the impugned order. Hence this Constitutional petition. It is argued by the learned counsel for the petitioner that the Election Tribunal committed an illegality in allowing the recount without advancing any reason. Secondly it is argued that 21 votes of the petitioner have simply been declared invalid on the ground that they were not signed by Assistant Presiding Officer in spite of the fact that they were properly stamped. In support of his contention learned counsel has placed reliance upon Rana Manzoor Ahmad v. Election Tribunal and 3 others PLD 1989 Lah. 133 and Ch. Muhammad Abdullah v. Ch. Abdul Wakil and others PLD 1986 SC

487. I have considered the contentions. The first ground that the recount has been ordered without any reason is devoid of any force at this stage because the petitioner fully participated in the recount and did not raise a single figure against this course of action. However, the second ground that petitioner's 21 votes have been declared invalid because of the absence of signature of Assistant Presiding Officer has got much force. In an identical situation reported in Rana Manzoor Ahmad v. Election Tribunal and 3 others PLD 1989 Lah.133 it has been held as under:

"We accordingly hold that the ballot-papers which bear either the official mark or the signatures of the Presiding Officer cannot be treated as invalid and excluded from the count which do not bear both the official mark and the signatures of the Presiding Officer. It has been asserted by the petitioner and not denied by the contesting respondent that the ballot papers declared invalid by the Election Tribunal bore the official mark. That being so, the Election Tribunal, in view of the aforementioned legal position, was clearly wrong in declaring such ballot papers as invalid." In view of the position expounded above by a Division Bench the order, dated 9-6-1992 of the Election Tribunal cannot be sustained. Accordingly the same is declared to have been passed without lawful authority and of no legal effect. The case is remanded to the Election Tribunal for passing fresh order after recounting the votes in accordance with law and rules. H.B.T./W-35/L Petition allowed.