2007 PLP 1156 (CLC)

SYED HAMID ALI SHAH, J.

By-elections of Nazim and Naib Nazim of Union Council No.74, Chak Rasoolpur, District Jhang were held on 22-11-2006. Election extended to twelve polling stations but the dispute arose only in respect of Polling Station No.5 namely Boys Middle School Kala Bali. The petitioners secured 357 votes as against respondents Nos. 1 and 2, who secured 107 votes, according to statement of count (Form XIII) statedly issued by the Presiding Officer. Result conveyed to the Returning Officer on a plain paper, being part of various documents sent through polling bag, duly signed by the Presiding Officer, showed a different figure. It reflected 327 votes begged by the petitioners and 215 votes tasted in favour of respondents Nos. 1 and

2. This state of affairs, aggravated the issue because declaration of the result as per statement of count (Form-XIII) tilts the balance in favour of the petitioners, while the result submitted by the Presiding Officer on plain paper tilts the balance in favour of respondents Nos.1 and

2. The petitioners moved an application before the Returning Officer, on the same day, and requested for clarification of ambiguity and for comparison of result. The Returning Officer summoned the Presiding Officer and on his non-appearance, his attendance was procured through issuance of non-bailable warrants. The Presiding Officer appeared, explained that his non-appearance was due to death in the family and clarified that the result conveyed to the Returning Officer on blank paper is correct and disowned the result on the prescribed form. He, however, admitted his signature on Form-XIII, while the contents of the Form-XIII were denied.

3. The Returning Officer in view of divergent results of Poling Station Kala Bali, considered recount of votes as inevitable to resolve the controversy. All the three candidates and their respective counsel, except counsel of Syed Shahid Mustafa, respondent No.3, were present. The Returning Officer after passing the order of recount, dated 25-11-2006, obtained signatures of the candidates as well as their thumb impression at the margin of order sheet. Learned counsel for the parties also signed the order sheet. The Presiding, Officer concerned, opened ballot box by de-sealing it and recounting of the votes was completed in the presence of the parties and their respective counsel. According to recount the petitioners secured 324 votes and respondents Nos. 1 and 2 secured 220 votes. The Returning Officer after recounting proceeded with the task of consolidation and announced the result on 25-11-2006 whereby respondents Nos. 1 and 2 were declared returned candidates.

4. Learned counsel for the petitioners has contended that Ghulam Qasim, Presiding Officer of polling station No.5, Middle School Kala Bali, is involved in many criminal cases. Seven F.I.Rs. are placed on the record to prove that Presiding Officer (respondent No.5), has a bad reputation and is not a law abiding citizen. Respondent No.1 and the Presiding Officer (respondent. No.5) have close connections. The latter had prepared fake result on a blank paper, in league with former to gain illegal advantage. While referring to Rule 35(9) of Election Rules, 2005, it was submitted that Form-XIII, is the document, required under law to be prepared after the count of ballots. Election result on a. plain paper has no sanctity, such document can neither be relied, nor has any precedence over Form-XIII. The Returning Officer has to prepare the consolidated result, on the basis of Form-XIII, it was next contended that recount of votes, is legally permissible only when such demand is made by a candidate/candidates through a written application. The mandatory requirement of Rule 36(6) of Election Rules, 2005, has not been complied with. Recount was ordered without any written application. Learned counsel clarified that application dated 23-11-2006 was moved for the purpose of removal of ambiguity and not for the purposes of recount. Various judgments were cited in support of the contentions made. Plethora of case law was referred in support of contention that writ, before the constitution of Tribunal is the only efficacious remedy.

5. Learned counsel for respondents Nos. 1 and 2 has argued with vehemence that question of recount of ballots without a written application, has not been raised in writ petition, therefore, same cannot be urged subsequently, being an afterthought, it was submitted that order for recount was made in presence of the parties with their consent and that is why the parties as well as their learned counsel have signed the margin of order-sheet. Learned counsel added that it is reflected from order, dated 25-11-2006 that proceedings which culminated into passing of the impugned order, were commenced on the application of the petitioners. The recount was ordered on the application of the petitioners, which meets the requirement of law. 'Learned counsel referred to the case of Asghar Ali v. Punjab Local Councils Election Authority, Lahore and 4 others 1999 SCMR 1123 to contend that the question as to whether any manipulation or alteration had been done in figure of votes, allegedly committed by unsuccessful candidate, was a question of fact which was within competence of Election Tribunal and this Court cannot interfere in the constitutional jurisdiction.

6. Heard learned counsel for the parties and record perused.

7. The controversy inter se the parties, pertains to the result of Polling Station No.5 (Government Middle School, Kala Bali) and disputed result at this polling station, has titled the result. There is no dispute or allegation by the petitioner, with regard to rigging or casting of bogus votes. The polling throughout the day of election, was up to the satisfaction of rival candidates. Parties disputed the result compiled by the Presiding Officer. The result of count on Form-XIII, has been disowned by him on the score that the Form was snatched along with other material, by an agent of a candidate namely Tasawar. The statement of count of ballots on plain paper, dispatched by the respondent No.5 to Returning Officer in the relevant polling bag, was admitted by the Presiding Officer as correct.

8. The petitioners moved an application before the learned Returning Officer on 23-11-2006, with the following prayer:

Returning Officer proceeded in the matter, on receiving the application of the petitioner, and summoned the Presiding Officer. He verified that result/statement of count, on plain paper was the correct result and the same was sent along with other material, in the polling bag to the Returning Officer. He attributed his act of submitting statement of count, on plain paper instead of prescribed Form-XIII, to the snatching of printed Form-XIII by the agent of a candidate. He explained that he was left with no option except to submit result/statement of counts on plain paper. Returning Officer, after examining the version (in writing) of Presiding Officer, passed the impugned order, dated 25-11-2006, whereby he directed the de-sealing of polling bag for recount of ballot papers. The recount was ordered, in the presence of parties and their respective counsel and the object was to resolve the controversy. The petitioners have signed the margin of the order sheet, with other candidates. Signing the margin of order sheet, signifies the assent of the petitioners for recount. Their counsel has also signed the order sheet, which is indicative of the fact that recount was ordered with the consent of the petitioners. The acceptance of recount, for resolution of controversy, creates the bar of estoppel against the petitioners. The petitioners cannot turn around, at a subsequent stage, when result of recount has gone against them, to challenge the validity of order. It is settled law that a party when persuade a Court to adopt a procedure for resolution of dispute, is debarred from challenging its validity on the ground of non-compliance of prescribed procedure.

9. The plea that the recount is legally permissible only when an application in writing in this respect is moved has no relevance to the case in hand. The application, dated 23-11-2003 with the specific prayer that a comparison of result be made to remove the ambiguity, was a written request on behalf of the petitioners. Respondent No.7 entertained the application, summoned the Presiding Officer and then passed the impugned order with the consent of the parties. Provisions of Rule 36(6) of Election Rules, 2005 was sufficiently complied.

10. Additionally the questions that Form-XIII with other material was snatched by one Tasawar; that contents of Form-XIII of the concerned Polling Station (P.S. No.5) were not entered by Presiding Officer; that Presiding Officer was not in possession of prescribed Form-XIII and has sent the statement of count on plain paper for that reasons; that result was, prepared by Presiding Officer to favour respondents Nos.1 and 2 are questions of fact and cannot be determined in writ jurisdiction. The petitioners can agitate the controversial question of fact through filing the election petition.

11. For the foregoing, this petition has neither any force nor maintainable. It merits dismissal and is accordingly dismissed with no orders as to costs. M.H./I-22/L Petition dismissed.