2001 PLP 1938 (YLR)

(b) Punjab Local Government Elections Rules, 2000

R.28

Constitution of Pakistan (1973), Art. 199

Constitutional petition

Question of fact

Number ' of voters present at polling station--Dispute was as to how many voters were present at the polling station at the time of closing of the polls and likely turn out within the period left from the closing schedule and on account of that the result could have been materially affected-- Validity

Such disputed questions of fact could only be resolved after due inquiry which could not be undertaken in the Constitutional jurisdiction. S.M. Masood for Petitioners. M.A. Zafar for Respondent No.6. Petitioners alongwith others and respondent No.6. contested the election for the seats of Nazim and Niab-Nazim, respectively from the Union Council No. 157, Faisalabad; petitioners have secured 1814 votes while respondent No.6, having obtained 1996 votes has been declared as a returned candidate. The total votes casted at the Polling Stations of the said Union Council are 6487 while 353 votes have been rejected. The dispute between the parties only relates to the Polling Station No.44: It is the case of the petitioners that although, the total number of votes to be casted at the said Polling Station were 746, but only 500 ballot papers were provided by the Returning Officer' to the Polling Staff of the Polling Station; 499 votes were casted and all ballot papers were consumed by 3-00 p.m. and thereafter, there was no further possibility of casting any votes, despite large number of voters being present in the precinct of Polling Station. In this situation, the petitioners agitated the matter before the Presiding Officer, who stated that he has asked the Returning Officer for the further supply of ballot papers, but at about 6-15 p.m., the petitioners were told that under the direction of an Army official, no further poll shall be held and votes shall be counted. In the above background, the petitioner on 4-6-2001, moved an application to the D.R.O., claiming that because the polling was stopped at the above Polling Station at- 3-00 p.m., depriving large number of voters to cast their votes, thus, fresh polls be directed in terms of rule 29 of the Punjab Local Government Election Rules, 2000 but this application has been illegally and erroneously rejected by the D.R.O., vide order, dated 6-6-2001.

2. I have summoned the parawise comments from the Presiding Officer, as also from the R.O., which are available on the record. The relevant comments are those of the Presiding Officer, who therein has stated that the polling continued till 5-30 p.m. and it is then he felt shortage of the ballot papers; he requested the R.O., but the papers were not remitted to him till 6-15, when the election poll was closed. It is also stated that at 5-30 p.m., only 14 to 15, voters were present in the precinct of the Polling Station awaiting to cast their votes. The report of the R.O. is not of much help to the case of the petitioners. However, he in his report, has stated that as soon as he was apprised about the shortage of the ballot papers, the same was sent forthwith. But the fact remains that the additional ballot papers did not reach the Polling Station till 6-15 p.m., when the polling was closed. .

3. Learned counsel for the petitioner contends that according to rule 29(1)(i) of the Punjab Local Government Election Rules 2000, where the poll at a Polling Station, at any time, are so interrupted or obstructed for the reasons beyond the control of the Presiding Officer and it cannot be resumed during the polling hours fixed. The Returning Officer under sub-rule (2) is obliged to report the matter to the D.R.O' who should direct afresh polls. As in the instant case, the poll was stopped at 3.p.m., fresh poll has not been directed, this tantamounts to breach of above provisions of law and result of the election has been materially affected on account of the above.

4. I have heard learned counsel for the parties. In the instant case, there is no report submitted by the R.O. to the D.R.O., about the stoppage of polling in terms of sub rule 29(2). Only a request has been made by the P.O., to the R.O., for sending additional ballot papers, which according to the P.O. was made at about 5-30 p.m. According to the comments of the R.O., the ballot papers were sent, but the admitted position on the record is, that ballot papers could not reach the polling station, till 6-15 p.m. During this period, the petitioner never approached the D. R. O. for seeking redressal of his grievance, however, he subsequently, moved an application about four days of the election, when, the election result has already been declared. The D.R.O. at that stage, could not exercise any jurisdiction, in the matter. Moreover, according to the petitioner, polling was stopped at 3 p.m., and large number of voters were awaiting to cast their votes within the premises of the Polling Station, but as per report of the P.O., there were only 14/ 15 persons, who were present at the time i.e. 5-30 p.m. when the election was stopped, due to non-availability of the ballot papers. The determination and proof of above disputed facts are essential for the purpose of resolution of the main issue between the parties, whether on account of the non availability of the ballot papers, result of the election has been materially affected or not. Because according to the result of the votes casted at the Polling Station, about 66.89 per cent casting had already taken place when the polling was closed; whatever the time may be. The returned candidate has procured 201 votes; Sajjad Haider, another candidate has secured 148 votes, while petitioner obtained 76 votes. Thus, the questions of facts, as to how many voters were present at the Polling Station at the time of closing of polls; the time of close of the polls and likely turnout within the period left from the closing schedule and on account of the above, the result has been materially effected, can only be resolved after due inquiry, this task cannot be undertaken in the Constitutional jurisdiction. Besides, the D.R.O. after declaration of result, had become functus officio to pass any order under sub-rule (2) of rule 29, and the stage for passing order in exercise of the above rule had passed, when the election result was declared. Moreover, the application of petitioner is belated, which was filed after four days of the declaration of result. Therefore, keeping in view the facts and circumstances of the matter, I do not find this to be a fit case to interfere in the impugned order of the D.R.O. If so advised, the petitioners may file an election petition before the Election Tribunal. Dismissed. Q.M.H./M.A.K./M-700/L Petition dismissed.