1999 PLP 2004 (YLR)

The relevant facts for the decision of this Constitutional petition are that the petitioner and respondents Nos.1 and 2 contested the last Local Councils Elections held on 20th May, 1998 from Ward No. 11, Town Committee, Raiwind, Tehsil Saddar, District Lahore. The petitioner was declared elected. Respondent No. l filed election petition which was contested by the petitioner on legal as well as on factual grounds. The Election Tribunal vide order dated 29‑7‑1998 ordered re‑counting of the ballots. The petitioner objected the same and challenged the order dated 29‑7‑1998 through Constitutional Petition No.16338 of 1998, which was dismissed by the learned Single Judge in Chambers vide judgment, dated 12‑10‑1998 with the observation that the Election Tribunal shall also decide the preliminary objections first of all. The petitioner aggrieved by the order of learned Single Judge in Chambers preferred an I.‑C.A. No.1013 of 1999 which was also dismissed on 25‑1‑1999. The grievance now is that the Election Tribunal has decided the preliminary objections but not passed any fresh order for re‑counting. The petition was admitted to hearing. Notices were issued to the respondents who are represented.

2. It is argued that it was clear that the Election Tribunal as to decide the preliminary objections first and then to pass the fresh order of re‑counting. It is added that the petitioner has raised preliminary objection to the effect that the election petition was not verified in accordance with law. In this behalf reference is made to Rule 9 read with Rules 3, 4 and 5 of the Punjab Local Councils (Election Petitions) Rules, 1979 and case of Peter John Sohotra v. Returning Officer (1995 CLC 394). It is argued that the affidavit cannot be considered as substitute of verification. In this behalf reliance is placed on Alam Zaib Khan v. Muhammad Nawaz Khan (1998 CLC 83). It is argued that the re counting could not be ordered legally as well as on facts. In this behalf reliance is placed on Nawab Khan v. Qamar ud Din (1999 SCMR 299), Kanwar Ijaz Ali v. Irshad Ali (PLD 1986 SC 483) and Mian Muhammad Farooq v. Election Tribunal, Punjab (1988 MLD 2949).

3. On the other hand, Rana Muhammad Arif, Additional Advocate‑General has argued that the petitioner has not mentioned the filing of earlier writ petition as well as I.‑C.A. This amounted to misconduct on his part. It is added that in spite of the direction the Tribunal has failed to decide the petition.

4. Mian Mehmood Rashid, Advocate for respondent No.1 adopts the arguments of learned Additional Advocate‑General.

5. I have given my anxious consideration to the arguments and gone through the record. The re‑counting has already been ordered. The direction of this Court was only that the preliminary objections should be decided before proceeding with re‑counting. The direction has been fully complied with. After the decision of I.‑C.A. the petitioner is debarred to re‑agitate the matter as to the order of re counting.

6. Now coming to the other ground that the election petition was not verified in accordance with law, therefore, was liable to be dismissed. The judgments in the cases of Nawab Khan, Kanwar Ijaz Ali and Mian Muhammad Farooq (supra) relied by the learned counsel for the petitioner are not relevant because those pertain to the election to Assemblies where the word used is "shall" while in Rule 9 of the Punjab Local Councils (Election Petitions) Rules, 1979 the word is "may". This was considered in the judgment of Allah Ditta in Writ Petition No.19406 of 1998. However, there is merit in the argument of the learned counsel for the petitioner that the Election Tribunal should have got the election petition properly verified. The defects in presentation, signing, non‑signing and verification and others are not fatal and such defects can be cured at any stage. In this behalf reference can be made Mian Muhammad Khan v. Mian Fazal (PLD 1974 SC 134), Mian Manzoor Ahmad Watoo (1987 CLC 1167) and Tariq Mahmood Bajwa v. Muhammad Afzal Sahi (1994 CLC 1366).

7. The upshot of this discussion is that there is no merit in this petition. The same is dismissed with costs. Q.M.H./M.A.K./J‑71/L Petition dismissed.