P L D 1966 (W (PLP)

S. ANWARUL HAQ, J.‑

By means of this petition under Article 98 of the Constitution, the petitioner, Haji Muhammad Rafiq, seeks to challenge the correctness and legality of an order passed by the Election Tribunal, Hyderabad District on the 4th of May 1 965, accepting an election petition filed by respondent No. 2, Abdur Rahman concerning election to the Electoral College of Pakistan from Unit No. 540, New Saidabad, Taluka Hala in the District of Hyderabad. The election, which was held on the 4th of November 1964, was contested by the petitioner and respondents Nos. 2, 3 and

4. The petitioner secured 316 votes, respondent No. 2, 308 votes, whereas respondent No. 3 obtained only one vote, and no vote was cast in favour of respondent No.

4. The grounds on which respondent No. 2 challenged the election of the petitioner are summed up by the Election Tribunal, as follows: (i) that 29 voters were challenged, out of whom the respondent had challenged 20 while the present petitioner challenged only 9; (ii) that some 12 voters who had cast their votes in some other Units had come to cast their votes in this Unit also, and (iii) that while counting the ballot papers in the end it was observed that some of the ballot papers found from the box of the petitioner did not bear the official mark and the Presiding Officer allowed these votes as valid.

2. The Election Tribunal observed that the petitioner before him, viz., respondent No. 2 in the present proceedings, did not lead any evidence on the first two points, but as regards the third point a verification of the record showed that 15 ballot papers found in the envelope of the present petitioner did not bear the official mark, but only the initials of the presiding officer. He went on to say that under section 45 of the Electoral College Act. 1964 (hereinafter referred to as the Act) a ballot paper which did not bear the official mark was to be treated as invalid. He accordingly deducted 15 votes from the total number of votes secured by the petitioner, with the result, that the valid votes of the petitioner were reduced to 301 as against 308 votes obtained by respondent Abdur Rahman. The latter was, therefore, declared successful at this election instead of the present petitioner.

3. Mr. Muhammad Hayat Junejo, the learned counsel appearing for the petitioner has raised the following three contentions before us: (i) that in the election petition presented by respondent No. 2, no objection was taken on the basis of the absence of the official mark on any of the votes polled for the petitioner and therefore the Election Tribunal had no jurisdiction to consider this question sua motu; (ii) that the mere absence of the official mark did not render the 15 ballot papers in question invalid for‑ (a) the rule regarding the stamping of the official mark was only directory in nature; and (b) the ballot papers in question bore the initials of the presiding officer as proof of their genuineness, and these initials should be regarded as being in the nature of an official mark; (iii) that, in any case, the Election Tribunal should have set aside the election as a whole and ordered re‑election, if it had come to the conclusion that the election had been materially affected on account of the admission of invalid votes.

4. In support of the first contention it is submitted by Mr. Junejo that the Election Tribunal being a tribunal of special jurisdiction and not possessing the wide powers of a Civil Court of general jurisdiction, is not permitted to consider matters which are not raised in the election petition, and as the question of certain votes being invalid on account of the absence of the official mark was not raised in the election petition filed by respondent No. 2, the Election Tribunal has exceeded its jurisdiction in considering this matter. In support of these submissions the learned counsel has placed reliance on Muhammad Saeed v. Election Petitions Tribunal, West Pakistan etc. (P L D 1957 S C (Pak.) 91) and Mir Nabi Bakhsh Khan v. The Elections Petitions Tribunal Punjab (P L D 1957 S C (Pak.) 301).

5. In the first‑mentioned case, their Lordships observed that: "the principles governing trial of Elections Petitions are: Where an election is sought to be set aside on the ground of commission of corrupt practices, the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices; that no fresh charge or instance of a corrupt practice can be added at the trial, that the burden of proof of corrupt practices is on the petitioner; that the evidence in proof of such practices must be restricted to the charges or instances mentioned in the petition and the particulars . . . . ." In the second case, cited above, the same principles were re?affirmed and it was observed that: "an Election Tribunal bad no power to raise suo motu an issue quite independent of the points raised in the Petition." This view was sought to be fortified by reference to the rules in Part E of the Punjab Legislative Assembly Election Rules, 1950 and the Corrupt Practices Order, 1936, which were held applicable to election enquiries under section 12(4) of the Establishment of West Pakistan Act, it was further observed that: "an Election Tribunal has jurisdiction only to investigate and report on the dispute referred to it, and the dispute which the Governor refers to the Tribunal is the one that appears on the Election Petition."

6. The authorities relied upon by Mr. Muhammad Hayat Junejo do lend support to the general proposition canvassed by him, but it is to be observed that, in the first place, the observations of their Lordships of the Supreme Court refer directly to investigation into charges of corrupt practices; and, in the second case, they have also reference to the peculiar provisions of the statutory instruments by which the election petitions in question were governed. We consider that these observations cannot apply strictly to a question of law which, although not mentioned in the election petition, arises on the face of the record made available to the Election Tribunal, and is raised by the petitioner during the course of proceedings before the Tribunal. However, in the case of allegations of corrupt practices, evidence has to be led by the parties, and therefore, a respondent may be seriously prejudiced if the Tribunal proceeds to enquire into an allegation not included in the election petition or the particulars accompanying it. These considerations do not, however, arise when the additional question raised is simply one of law with reference to facts patent on the record.

7. There is also another aspect of the matter. The present petitioner did not object to this question being considered by the Tribunal; on the contrary, the Tribunal's order shows that the question was fully debated on merits by the learned counsel appearing for the petitioner. In other words, the petitioner submitted to the jurisdiction of the Tribunal when it proceeded to consider this particular question, and for this reason we are not inclined to permit the petitioner to raise this objection for the first time in the High Court. Accordingly we see no substance in the first contention raised on behalf of the petitioner.

8. The question whether the 15 ballot papers not bearing the official mark are valid or not, is to be decided with reference to the provisions contained in sections 40 and 45 of the Act. Section 40 deals with the voting procedure. Subsection (1) of this section lays down: "Where a voter presents himself at the polling station to vote, the presiding officer shall, after satisfying himself about the identity of the voter, give him a ballot proper." Subsection (2) enjoins that before a ballot paper is issued to a voter, the presiding officer shall take several steps, and these steps are enumerated in clauses (a) to (d) of this subsection. Clause (c), which is relevant in the present context, is to the following effect: "the ballot paper shall on its back be stamped with the official mark and initialled by the presiding officer".

9. In the next four sections following section 40 of the Act there is no mention of the official mark. This phrase again appears in section 45 ‑of the Act which deals with the procedure on the close of poll. Subsection (1) of this section is relevant here. It runs: "Immediately after the close of the poll, that is, as soon as the last of such persons, if any, as are present and waiting to vote as mentioned in section 44, has voted, the presiding officer shall, in the presence of such of the contesting candidates and polling agents as may be present, open the ballot box of each contesting candidate in the alphabetical order of the names of candidates and count the ballot papers, contained in the ballot box so opened excluding the invalid ballot papers that is to say, the ballot papers‑ (a) which do not bear the official mark, or (b) on which anything is marked or written by the voter by which he can be identified."

10. It will be seen that section 45 of the Act enjoins the Presiding Officer to exclude from the count two categories of ballot papers namely those which do not bear the official mark and those on which anything is marked or written by the voter by which he can be identified. It is contended by Mr. Junejo that this provision of law is merely directory in nature, and not mandatory. According to ‑the learned counsel, the official mark had to be stamped on the ballot paper by the Presiding Officer as required by the provisions of section 40 of the Act, and accordingly the voter and the candidate of his choice, should not be penalised on account of the failure of the Presiding Officer to perform the duty cast upon him by law. It is further submitted by Mr. Junejo that, in any case, the two clauses are merely by way way of illustrations and their object is to prevent fraud in the one case and to preserve secrecy of the ballot in the other; and if in a given case, the Court is satisfied that these conditions exist, then the provision should be so construed as to "suppress the mischief and to advance the remedy". In other words, the argument of the learned counsel is that the provision being merely directory in nature and there being no allegation in the instant case that the ballot papers in question were not genuine, we should incline in favour of the proposition that the mere absence of the official mark could not be regarded as necessarily rendering these ballot papers invalid, especially in view of the fact that they did bear the initials of the Presiding Officer.

11. In support of these submissions Mr. Junejo has referred us to several authorities. In Zain Noorani v. Secretary of National Assembly (P L D 1957 S C (Pak.) 46) it was held that Article 141 of the 1956 Constitution of Pakistan laying down a time limit for filling a casual vacancy in the National or the Provincial Assembly was directory and the object of a time limit was to secure the prompt holding of by‑elections. In coming to this conclusion their Lordships relied upon a passage appearing in Maxwell's Interpretation of Statutes to the following effect:‑ "On the other hand, where the prescriptions of the statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seems to be generally understood as mere instruc?tions for the guidance and (sic) Government of those on whom the duty is imposed, or in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time. Thus, the 13 Hen. 4 (C. 7), which required justice to try rioters `within a month' after the riot, was held not to limit the authority of the justices to that space of time, but only to, render them liable to a penalty for neglect. To hold that an Act which required an officer to prepare and deliver to another officer a list of voters on or before a certain day, under a penalty, made a list not delivered till a later day invalid, would, in effect, put it in the power of the person charged with the duty of preparing it to disfranchise the electors, a conclusion too unreasonable for acceptance."

12. Having quoted the passage, Shahabuddin, J., who delivered the judgment of the Court, went on to observe that: "The object of fixing a time limit in Article 141 was to secure the prompt holding of by‑elections. This was done obviously because in the past there were several instances of casual vacancies remaining unfilled for a long time. If the provision fixing the time limit is not considered as merely directory then the very object of fixing the limit would be defeated for if once it is to be found that an election held beyond time is not valid then it would help the persons who are interested in not holding the by‑elections and cause prejudice to the right of the people of the area concerned to have their representatives in the Assembly."

13. The next authority relied upon by Mr. Junejo is Re South Newington Election Petition (1948 All E R 503). That was a case relating to an election of councillors of a borough to be held under the Local Government Act, 1933. In Schedule Il it was provided that, among others, any ballot paper which did not bear the official mark shall not be counted. The official mark at the relevant election was 10 perforated holes. A paper was rejected on which there was only one perforated hole and in two places marks where the holes should have been, but the perforation had not gone through the paper. A ballot paper on which the official mark was visible, but the stamp had failed to perforate the paper, was allowed. It was held that where a voter, who had expressed his intention of voting for a particular candidate, was in no way to blame and the only defect in the ballot paper was on the part of the official machinery by which the election was conducted, special consideration should be given so that the voter should not be disfranchised; the intention to apply the official mark was clearly indicated; and the fact that the official stamp had been imperfectly applied did not invalidate the votes. In the body of this judgment, their Lordships of the King's Bench Division referred, with approval, to observations made in Woodward v. Sarsons ((1875) L R to 10 C P 733). It is not necessary to reproduce those observations in their entirety and suffice it say that the principle laid down was that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. It was further held that the extent or error which is to vitiate so as to annul the ballot paper is to be gathered from the statute itself. As the question in that case was regarding the secrecy of the ballot, it was observed, with reference to section 2 of the Ballot Act of 1872 and rule 36 framed ,thereunder that it would be necessary that the absolute enactment that the paper should be marked secretly should be obeyed exactly, but it would be sufficient that the manner of marking the paper should be obeyed substantially. It will be noted that the reference to the manner of marking is to the marking by the voter about the candidate of his choice. The question of the want of the official mark was specifically. dealt with in section 2 of the Ballot Act of 1872 which provided that any ballot paper which has not on its back the official mark shall be void and not counted. Nothing is said in the Woodward's case about the effect of a total absence of an official mark. Their Lordships then referred to another case, viz., Gloucestor (County) Cirencester Division Case, Lawson v. Chester‑Master (4 O'M & H 194, 195 & 196), in which the question of the fixation of the official mark was directly under consideration. In that case, it was held that it is not necessary that there should be in every respect a clear and distinct impression of every part of the stamp, but that it is quite sufficient if the evidence afforded by that which appears on the back of the paper leads us to the conclusion that the stamp was applied there with the intention of making the required mark. The reasoning in the Cirencester case was then adopted and the ballot on which the intention to apply the official mark was clearly indicated was held to be valid.

14. Reference was then made to Case No. 90, namely, Jessore North Case, cited on page 448 of Doabia's Election Cases Vol. I (1952 Ed.). The important point involved in that case was as to whether certain ballot papers on which by mistake official seal indicative of the Legislative Council was put instead of the seal indicative of the Legislative Assembly were valid or not. The learned Members of the Election Tribunal observed that no guidance was available in the English Cases for, apparently no such case ever occurred in England, and therefore, they proposed to follow the rule of enquiry and good conscience. They stated that: "The law that a ballot paper must be rejected which has not on its back the official mark was designed to set at rest the question whether the particular ballot paper ‑vas issued by the polling officer. Here there is no doubt that these ballot papers were stamped by the polling officer with a wrong official seal and issued to the voters. We hold that the votes recorded in these ballot papers in the petitioner's favour should be counted for the petitioner unless otherwise invalid." This was thus a case where an official mark, although the wrong one, was present on the back of the ballot paper, and it was also established that it was due to the mistake of the polling officer.

15. While dealing with the effect of irregularities in the ballot papers it is remarked in paragraph 183 of Volume 18 of American Jurisprudence (1958 Ed.) published by the Lawyers Co‑operative Publishing Company Rochester, New York, that‑- "since the purpose of the statutes in referring to the preparation of ballots is to prevent fraud and secure freedom of choice, they should not be so construed as to make the right of voting insecure. Thus although statutes are binding on the officers for whose guidance and direction they are needed and so far as their provisions affect the officers and their decisions, they are mandatory and must be enforced, it is the established rule that irregularities in an official ballot due to the error or mistake of an election officer do not vitiate the vote of an elector innocent of any wrong or default in the matter, unless such irregularities have been declared by statute to be fatal to the validity of the election, or unless they serve as distinguishing marks." . . . Again, in paragraph 216 of the same book, dealing with the stamping of ballots it is stated that: "Statutory provision is frequently made for the endorsement or stamping of ballots delivered to the voters. Such a requirement is sometimes considered mandatory, it frequently being expressly directed that ballots not endorsed or stamped as required shall be excluded from the count . . . . . In some jurisdictions, however, such requirements are deemed to be directory, it being held that ballots are not vitiated because of being stamped after, rather than before delivery or because of being marked by judges belonging to the same party, rather than by judges of opposite political faith . . . ."

16. Reference was also made to paragraph 237 of Volume 14 of Halsbury's Laws of England (1956 Edn.). This paragraph reads as follows:‑ "Any ballot paper which does not bear the official mark is void and must not be counted. It is not necessary that there should be in every respect a clear and distinct impression of every part, of the stamp. It is sufficient if the evidence afforded by that which appears on the ballot paper leads to the conclusion that the stamp was applied with the intention of making the required mark."

17. The next case referred to by Mr. Muhammad Hayat Junejo is the well‑known case of Jamal Shah v. Nasrullah Khan. In the first instance the dispute in this case fell to be decided by Mr. Justice Sardar Muhammad Iqbal, acting as a Member of the Election Commission and the order passed by him‑ is reported as P L D 1965 S C

89. Against this order, a writ petition was filed by Nasrullah Khan under Article 98 of the Constitution, which was accepted by a Full Bench of the High Court at Lahore and the conclusions reached by the learned Member of the Election Commission on certain questions of law regarding the validity or otherwise of certain ballot papers were reversed. Thereupon, Jamal Shah went up in appeal to the Supreme Court and their Lordships were pleased to accept his appeal and restore the order of the learned Member of the Election Commission. The judgment of the Supreme Court is reported as P L D 1966 S C

1. In the three orders passed in this case a large number of questions relating to election disputes, the validity of ballot papers and the jurisdiction of the High Court under Article 98 of the Constitution have been discussed and decided. For our present purpose however, it is only necessary to refer to the decision of the question having a bearing on the presence or absence of the official mark on the back of the ballot paper.

18. Two of the ballot papers cast in favour of Jamal Shah had only the official mark but not the initials of the Presiding Officer and accordingly they were rejected by the Returning Officer purporting to act under section 38(2)(a) of the National and Provincial Assemblies (Elections) Act 1964, which provides that the Returning Officer shall reject a ballot paper "if there is no official mark or the initials of the Presiding Officer." The argument against the acceptance of these ballot papers was that relevant provision of law made it mandatory that the ballot paper should contain both the initials as well as the official mark. While repelling this argument the learned Member of the Election Commission observed that‑

"If the Legislature had intended that the Returning Officer shall reject a ballot paper if it did not contain either the official mark or the initials, it should have more appropriately used the words if it `either' bears not official mark or initials of the Presiding Officer. The use ‑of the word `either' in section 38 would have left no doubt as to the intention of the Legislature and its intentional omission is significant. Sub? clause (b) of clause (2) of section 38 is, moreover, so. worded that a negative imperative is followed by the word `or' and that being so it means that a ballot paper can be rejected only if both the official mark and the initials are missing. This interpretation is also consistent with the principles of justice because it will obviate hardship to an elector or a candidate on account of an omission for which they are in no way responsible. The purpose for providing that the official mark and the initials should be put by the Presiding Officer on the ballot paper is to avoid the smuggling of ‑any unauthorized ballot paper. Once the official seal is found on the ballot paper or it is found to bear the initials of the Presiding Officer, there remains no doubt as to the fact that the ballot paper was issued from the same polling station . . . How?ever, if the ballot paper does not contain both the official mark and the initials of the Presiding Officer, it has to be rejected under section 38(2)(a). In such a case there can be no proof available that the ballot paper was issued from that polling station, particularly when the ballot paper does not bear the serial number corresponding to its counterfoil. The intention of the Legislature is clear that the Returning Officer shall reject the ballot paper only if it does not contain the seal or initials which means that he shall not reject it if it contains either the seal or the initials. The two ballot papers which bore the official seal but not the initials could not thus be rejected."

19. Earlier the learned Member of the Election Commission referred to a passage from the judgment delivered by Mr. Justice S. A. Rehman, as Chief Justice of‑the West Pakistan High Court, in Rana Muhammad Jamil v. Punjab Road Transport Board (P L D 1957 Lah. 1) to the following effect:‑-- "The question whether a particular provision in an enactment though ostensibly in the imperative form, is really mandatory or directory, is a question of some nicety and no hard and fast rule can be laid down for the exact construction to be placed on such a provision in all cases. In each case, the scope and object of the Act and of the particular provision would be relevant to the real intention of the Legislature in this respect. Generally speaking when the provision charges some public authority with a duty and no express or clearly implied indication is given by the Legislature that the failure to conform to the letter of the law would entail the drastic consequences of invalidation, and further such invalidation would result in unmerited injustice or serious general inconvenience to members of the public or other persons to be specially affected, the public or those persons having no effective control over the actions of the authority concerned, the provision is construed are carrying a directory rather than a mandatory connotation."

20. In the judgment delivered by the Full Bench of the High Court at Lahore in the writ petition filed by Nasrullah Khan to challenge the order of the learned Member of the Election Commission, this question was dealt with in paragraph 67 and it was observed that the provisions of law in this behalf were mandatory and not merely directory, with the result that a ballot paper which did not bear the initials of the Presiding Officer, in addition to the official mark, could not have been accepted as valid.

21. In the appellate order passed by the Supreme Court the learned Chief Justice has expressed himself on this question as under:‑ "Moreover, the Member's argument is not without weight, viz., that an error in this respect is totally outside the obligation of the elector, and the law could not intend that he should be penalised for it. It is the duty of the Presiding Officer, under section 32, before he hands a ballot paper over to the voter, to apply the official mark to it, and at the same time, to place his initials on it. There is ground therefore for thinking that the existence of the official mark is by itself sufficient to show that the paper passed through this process at the hands of the Presiding Officer, and it was mere act of inadvertence on this part that he failed to initial it at the same time. These considerations are relevant for the decision of the question of construction, viz, "whether the conjunction `or' as used in the expression `no official mark or initials' appearing in section 36(1)(b)(i)enjoining exclusion of the vote by the Presiding Officer and section 38(2)(a) enjoining rejection by the Returning Officer was not to be understood to a conjunctive, rather than in a disjunctive, sense."

22. From the authorities cited by Mr. Junejo it becomes, clear that an irregularity in the ballot paper arising from and omission on the part of an election official, or a public functionary, is not to be regarded as vitiating the vote of an, elector who is innocent of any wrong or default in the matter. unless such irregularity has been declared by the statute itself to be fatal to the' validity of the ballot. In the specific; matter of the presence or absence of the official mark, the; preponderance of authority is to the effect that if the statute, declares a ballot paper to be invalid for want of the official mare then it has to be held as such unless, of course, the intention to place the official mark is clearly evidenced from the paper itself as for example, in a case where the stamp has been imperfectly applied and its full impression has not come on the paper, or where a wrong seal was applied by the polling officer by mistake.

23. Now, in the present case, the last part of subsection (1) of section 45 of the Act makes it clear that a ballot paper shall be invalid if it does not bear the official mark. The wording of this provision of law does not appear to be precise, and the use of the phrase "that is to say" does give rise to a suggestion that the two clauses were intended to serve as illustrations of invalid ballot papers, but even then it is clear that although the provision may not be exhaustive of all the categories of invalid ballot papers, yet the two categories mentioned in clauses (a) and (b) of subsection (1) of section 45 must, in any case, be regarded as being necessarily invalid. In other words, whether the last part of this subsection is regarded as in the nature of a categorical definition of invalid ballot papers, or it is regarded as merely illustrative of the intention of the Legislature, the fact remains that the two categories mentioned in this subsection will, in any case, constitute invalid ballot papers. We, are, therefore, of the view that this provision of law leaves no doubt that the absence of the official mark on a ballot paper will necessarily render it invalid, whatever the reason for the absence of the mark may be. ?????????

24. The next question which needs to be considered is regarding the meaning of the phrase "official mark". The contention on behalf of the petitioner is that as the phrase "official mark" has not been defined anywhere in the Act, therefore, it should be interpreted liberally in the light of the basic principles laid down by the authorities to the effect that a voter is not to be disfranchised, nor a candidate of his choice penalized, for something done or omitted to be done by the election officials. It is submitted that if a liberal view is taken then the phrase "official mark" can be construed as including not only the seal which is stamped on the back of the ballot paper but also the? initials of the Presiding Officer, which are required to be put there under subsection (2) of section 40 of the Act, and the presence of the initials should suffice to validate the ballot paper or to save it from invalidation.

25. On behalf of the respondents it is submitted by Mr. Tufail Ali A. Rehman and the learned Additional Advocate General that although the phrase "official mark" has not been defined in the Act, yet from the language used in clause (c) of subsection (2) of section 40 of the Act it is clear that the official mark is to be stamped on the back of the ballot paper and it is, therefore, distinct from the initials of the Presiding Officer. It is further submitted that the ballot papers which are to be taken out under section 45 of the Act for the purpose of counting are those which have undergone the process mentioned in section 40 with the result that the official mark to which reference is made in clause (a) of subsection (1) of section 45 of the Act is none other than the mark which was stamped on the ballot papers before being issued to the voters. Finally, it is added that if indeed it was the intention of the Legislature to include the initials of the Presiding Officer in the phrase "official mark", or if it was the intention to validate a ballot paper by the mere presence of the initials as distinct from the official mark, the language employed would have been different, as for instance is the case in the relevant provisions of the National and Provincial Assemblies (Elections) Act, 1964, to which reference has already been made while referring to Jamal Shah's case.

26. There is no doubt that under clause (c) of subsection (2) of section 40 of the Act, the Presiding Officer is enjoined to not only initial the ballot paper but also to stamp it with the official mark before issuing it to a voter, yet the fact remains that the phrase "official mark" has not been explicitly defined any where in the Act. It is clear, as already stated by us, that the requirement regarding the official mark is intended to ensure the genuineness of the ballot papers used at a particular polling station, and it is for this purpose that the duty is cast on the Presiding Officer to put his initials on the back of the ballot paper along with the official mark. We consider that in the light of the principles laid ‑down by the authorities in this behalf it would be legitimate to regard the two steps of putting the initials as well as the stamp on the back of the ballot paper as constituting one whole process of placing the official mark on the ballot paper as proof of its genuineness. In other words, for the purpose of clause (a) of subsection (1) of section 45 of the Act, the term official mark used therein should be liberally, interpreted so as to include not only the stamped mark but also the initials of the Presiding Officer, and the presence of either of them should be enough to save the ballot paper from invalidation. This construction would have the effect of not only ensuring the genuineness of the ballot paper but also of saving an innocent voter from being disfranchised for no fault of his. Neither the voter, not indeed the candidate of his choice, has any control over the Presiding Officer, on whom alone lies the duty of complying with the directions contained in the statute.

27. For the reasons given above, our conclusions are that as a general rule the failure of the Election officials to comply with the statutory directions is not to be regarded as invalidating a ballot paper or an election except where the consequence of such failure has been clearly prescribed by the Legislature itself, and accordingly the absence of the official mark would render a ballot paper invalid in terms of clause (a) of subsection (1) of section 45 of the Act; but the term official mark as used in, this clause is to be interpreted liberally so as to include not only the stamp mark but also the initials of the Presiding Officer; and that the presence of either of these two marks should suffice for saving the ballot paper from invalidation. Now, in the present case the 15 ballot papers in question did bear the initials of the Presiding Officer, although not the stamped mark, and there is no allegation that the ballot papers were not issued by the Presiding Officer at the time of the polling. In these circumstances, the ballot papers in question could not be regarded as invalid and the learned Election Tribunal has thus acted without lawful authority in excluding them from the count of the petitioner. It follows, therefore, that the petitioner having obtained the largest numbers of votes namely 316 was entitled to be declared as the duly elected candidate from this Unit and was rightly so declared by the Returning Officer.

28. In view of the above conclusions the third contention raised by Mr. Muhammad Hayat Junejo, namely that the Election Tribunal should have set aside the election as a whole and ordered re‑election instead of declaring the respondent as the duly elected candidate does not really arise. However, we think it is clear that in an election dispute where the only question is whether certain votes are valid or not, the occasion for ordering re‑election can hardly arise, for in terms of sections 45 and 46 of the Act, read together, only that candidate has to be declared as elected who has received the highest number of valid votes polled at the election. If, therefore, the finding of the Election Tribunal is only regarding the validity or otherwise of certain ballot papers included or excluded from the count of a particular candidate, then the only valid order which can be made is one of rectification of that error and of declaring the result on the basis of that rectification. In such cases, there is no question of the election as a whole having been materially affected so as to require re‑election.

29. As a result we would declare the order of the learned Election Tribunal as being without lawful authority and of no legal effect, with the consequence that the petitioner shall continue to be the duly elected member of the Electoral College from this unit. The petition is, therefore, accepted but, in view of the legal questions involved the parties are left to bear their own costs. K. B. A.?????????????????????????????????????????????????????????????????????????????????? ??????????? Petition accepted.