1987 PLP 1072 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑This is a petition for leave to appeal against the order of the Lahore High Court, dated 23‑11‑1986, whereby the constitutional petition of the petitioner was dismissed in limine.

2. The petitioner and respondent No.2 contested election to the Union Council Chakka Meeter, Tehsil Wazirabad, from Ward No.8 on 28‑9‑1983. The result of the election was announced by the Presiding Officer declaring the petitioner as elected with 184 valid votes. The votes cast in favour of respondent No.2 were

174. On 6‑10‑1983, respondent No.2 challenged the election of the petitioner through an election petition before respondent No.1 and it was during the pendency of the petition that both the parties agreed for recounting of the ballot papers polled in favour of each of the contesting candidates. A Magistrate 1st Class, Gujranwala, was deputed to recount the ballot papers who submitted a report to the effect that 174 votes were cast in favour of respondent No.2, of which two were without signatures of the Presiding Officer and one without mentioning the ward number, whereas on the other hand, 184 votes were cast in favour of the petitioner, out of which 7 votes did not bear the signatures of the Presiding Officer and another 20 votes were found without mentioning the ward number and also without the signatures of the Presiding Officers. As a result of the recount, the valid votes counted in favour of respondent No.2 were 171 and that of the petitioner

157. On this ground, on 2‑9‑1984 Muhammad Hussain respondent No.2 was declared duly elected to Ward No.8 Pathanwali Union Council Chakka Meeter, Tehsil Wazirabad, District Gujranwala. The petitioner challenged the order of the Election Tribunal, dated 2‑9‑1984, through a constitutional petition. The case of the petitioner in the High Court was that 20 votes cast in favour of the petitioner could not be rejected for want of mention of ward number. As against this, the case of respondent No.2 was that the 20 ballot papers were rejected not only for want of ward number but also because the same did not bear the signatures of the Presiding Officer. The High Court after examining found that the latter part relating to non‑signatures on 20 ballot papers of the petitioner was not incorporated in the order of the Tribunal dated 2‑9‑1984, therefore, the High Court vide its order dated 6‑5‑1986 remanded the case to the Tribunal for decision afresh in accordance with law.

3. On taking up the case on remand, the Election Tribunal held that the 20 votes in fact did not carry the signatures of the Presiding Officer but by a clerical mistake this was not taken note of and the same was rectified by him and vide his order dated 11‑11‑1986 declared respondent No.2 as elected by having secured 171 votes as against 157 obtained by the petitioner. The petitioner once again took up the matter to the High Court in constitutional petition but the same was dismissed through the impugned order.

4. Before us the learned counsel for the petitioner contended that the Election Tribunal as well as the learned Judges of the High Court have erred in excluding 20 votes which did not bear the signatures of the Presiding Officer inasmuch as the provision of Rule 40 of the Punjab Local Body Election Rules, 1979, was only directory and not mandatory. He further submitted that the High Court was wrong in dismissing the constitutional petition of the petitioner on the ground that fresh election is likely to be held in the near future in that no such date is yet fixed. Leave is granted to consider the points raised. Security Rs.1,

000. No case for stay has been made out the stay application is rejected. M.I./A‑33/S Leave granted.