1994 PLP D1892 (MLD)

The petitioner, Muhammad Amir, seeks by this petition under Article 199 of the Constitution to have the order of the learned Election Tribunal Jauharabad, dated 26-5-1992 declared to have been made without law authority and to be of no legal effect. By that order, the learned Election, Tribunal accepted the election petition of the first respondent Muhammad Amin, declared the election of the petitioner, Muhammad Amir, void, declared the first respondent, Muhammad Amin, elected.

2. The petitioner, Muhammad Amir and the first respondent, Muhammad Amin (I shall in this judgment call them as the petitioner and the fast respondent) contested the election to Ward No. 15 of Municipal Committee Mithha Tiwana held on 28-12-1991 There was a third candidate, named, Ahmed Khan who is the second respondent in this petition. At the dose of the poll the Presiding Officer counted the ballot papers and found that 172 valid ballot papers had been marked in favour of the petitioner; 170 valid ballot papers had been marked in favour of the first respondent and 118 valid ballot papers had been marked in favour of the second respondent. The presiding Officer had declared 55 ballot papers invalid. Thus, the petitioner was declared elected.

3. The first respondent challenged the petitioner's election by filing an election petition. In his election petition, he took a number of grounds, of attack. At the hearing before the learned Election Tribunal, however, he withdrew all the allegations except one. For that purpose, he made an application before the learned Election Tribunal praying that the ballot papers should be recounted. That application was contested by the petitioner; it was accepted by the learned Election Tribunal's order dated 18-5-1992; by that order, the learned Election Tribunal summoned the packets containing the ballot papers for 26-5-1992.

4. On 26-5-1992, the learned Election Tribunal found that in the packet containing the ballot papers polled at the women's polling booth, there were 79 ballot papers polled in favour of the first respondent; he found also that out of them, 4 ballot papers did not bear the stamp correctly, that one vote related to Ward No. 4 and that in 32 ballot papers, the ward number was not mentioned. The learned Election Tribunal rejected the abovementioned 5 votes but counted the 32 ballot papers in which no ward number had been mentioned. In this way, 74 valid ballot papers were found to have been marked in favour of Muhammad Amin at the women's polling booth. In the packet containing the ballot papers of the first respondent, polled at the men's polling booth, were found 91 ballot papers; out of them, the learned Election Tribunal rejected two as they did not bear the stamp correctly. Thus at the men's polling booth, the first respondent was found to have polled 89, valid ballot papers. In other words, it was found that 163 valid ballot papers had been marked in favour of the first respondent.

5. The packet containing the ballot papers polled at the women polling booth in favour of the petitioner was found to contain 90 ballot papers; out of t4em, one vote related to Ward No. 1, one vote related to Ward No.3 and two votes related to Ward No.4 the total being 4; they were all rejected. Another 4 blot papers were rejected by the learned Election Tribunal because they did not bear the stamp correctly. There were 31 votes which did not indicate the ward number but they were counted for the petitioner. Thus, it was found that 82 valid ballot papers had been marked in favour of the petitioner: The packet containing the ballot papers polled in favour of the petitioner at the men's polling booth was found to contain 82 votes. Out of them, one was rejected because the voter had within the figure 8 and this was obviously intended to disclose his identity. Thus, 81 valid ballot papers were counted in the petitioner's favour. In other words, the total number of valid ballot papers marked in favour of the petitioner also came to 163.

6. As the petitioner and the first respondent had both polled 163 votes each, this inevitably led the learned Election Tribunal to decide the matter by drawing the lot. As the luck would have it, the lot fell on the first respondent and the learned Election Tribunal declared him elected.

7. I had directed the parties to obtain copies of all the statements, which were prepared, by the Presiding Officer at the start of the polling and at the end of the polling including the statement of issued ballot papers. These statement, have been placed on the record but learned counsel for the parties agreed that it would not be necessary to refer to them to resolve the controversy.

8. Learned counsel for the petitioner pointed out that only the packets containing the ballot papers cast in favour of the petitioner and the first respondent were opened. In this view, to reach a fair and correct conclusion, it was necessary for the learned Election Tribunal to open the packet containing the ballot papers polled in favour of the second respondent as also the packet containing the rejected ballot papers, and to examine theme also. It seems to me, however, that there was no dispute before the learned Election Tribunal as to the ballot papers marked in favour of the second respondent. No body had disputed the correctness of the number of the ballot papers polled in favour of the second respondent or the validity thereof, nor was any grievance made in respect of the ballot papers which had been rejected by the Presiding Officer. There is an express finding of learned Election Tribunal that the Presiding Officer had correctly rejected 12 votes polled at the men's booths and 43 votes polled at the women's polling booth as invalid; this shows that the packet containing the rejected votes was opened and the ballot papers were examined. This contention of the petitioner's counsel must, therefore, fail.

9. The learned Election Tribunal had rejected six votes of the first respondent saying "Similarly, on the same ground 4 votes of the petitioner were rejected. Thus, six ballot papers of the first respondent as against four of the petitioners were rejected on that ground. As was rightly argued by the learned counsel for the first respondent; if any body should have any grievance on that account, it should be the first respondent.

10. There can also be no doubt that in rejecting the ballot papers relating to Wards Nos.1, 3 and 4, namely, four votes of the petitioner and one vote of the first respondent, the learned Election Tribunal was plainly right. In. this connection, it is to be noted that there was one polling station with separate booths for Wards Nos. 2, 3, 4 and

15. From the fact that the ballot papers relating to wards other than Ward No. 15 were found in the ballot boxes relating to Ward No.15, the obvious inference was that voters of other wards by mistake put their votes in the boxes relating to Ward No.15. That was however not true of those ballot papers which did not mention the ward number, for those ballot papers were clearly found marked, 32 in favour of the first respondent and 31 in favour of the petitioner.

11. For these reasons, I am of the opinion that the conclusion that the petitioner and the first respondent had each polled 163 valid votes was rightly reached by the learned Election Tribunal. The petition is dismissed but the parties are left to bear their own costs. H.B.T./M-1618/L??????????????????????????????????????????????????????????????????????????????? Petition dismissed.