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Writ Petition No. 1434 of 1984, decided on 25th May, 1985.
---S. 40--Provisional Constitution Order (1 of 1981), Art. 9--Votes smeared with ink--Exclusion of such votes--Held, only those votes could be excluded from count which did not bear signatures of Presiding Officer or which bore marks of identification of voters--Votes smeared with ink could not be excluded from count.
M. Aslam Riaz for Petitioner.
Nemo for Respondents.
Date of hearing: 25th May, 1985.
Bashir Ahmad petitioner and Qasim Ali respondent No. 1 were rival candidates for election to Union Council No. 38, Chak No. 105-G.B., Tehsil Jaranwala, District Faisalabad. The petitioner obtained 9.1 votes as against 75 votes received by Qasim Ali respondent. 25 votes cast in favour of the petitioner were, however, excluded from the count as they were found to have been smeared with ink. As a result Qasim Ali respondent No. 1 was declared elected. The petitioner challenged the orders in an election petition. The Additional Commissioner (Revenue) sitting as Election Tribunal, Faisalabad did not accept the contention of the petitioner that the 25 votes smeared ballot-papers should be counted in favour of the petitioner yet he set aside the election of Qasim Ali respondent on the plea that Qasim Ali could not be declared elected on account of the lesser votes. Qasim Ali does not appear to have challenged the orders but the petitioner has Invoked the constitutional jurisdiction of this Court. His plea is that only such votes could be excluded which bore the marks of identification, and not the votes besmeared with ink.
2. It is evident that the petitioner received 91 votes at the poll. Four of these votes related to the District Council, therefore, they were rightly excluded but the 25 votes which were found to have been smeared with ink could not have been excluded from the count. Under rule 40 of the Election Rules, 1979, only those votes could be excluded which did not bear the signatures of the Presiding Officer, or on which marks were made by the voters in order that they could be identified. These 25 votes, therefore, have to be counted. The writ petition is, therefore, allowed and the case is remanded to the Election Tribunal with a direction to count these 25 votes and then pass fresh orders in the election petition. There shall be no order as to costs.
H . B . T .
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