P L D 2008 Lahore 178 (PLP)

SYED SHABBAR RAZA RIZVI, J.

According to the learned counsel for the petitioners, panel of petitioners won seats of Nazim and Naib Nazim respectively in local bodies election held in August, 2005, securing 1866 votes against the panel of respondents Nos.1 and 2 who had secured 1715 votes. Respondents Nos.1 and 2 filed an application before the Returning Officer for re-polling at Government High School No.1, Ghakhar on 20-8-2005 which was dismissed on the same day.

2. That on 21-9-2005, election petition was filed by respondents Nos. 1 and

2. During the pendency of the election petition an application for recounting of votes was filed of all the polling stations. However, the Election Tribunal allowed re-counting of polling stations at Government Normal Boys High. School and another polling station of Town Committee Ghakhar. Writ petition No.969 of 2006 was filed by the petitioners against the above orders. The writ petition was dismissed. Re-counting was conducted on 29-4-2006 whereby votes of respondents Nos. 1 and 2 were increased to 1750, whereas votes of the petitioners were decreased to 1609. Another Writ Petition No.4341/2006 was filed, which was dismissed on the ground that the re-counting was allowed by the High Court itself in its decision in the earlier Writ Petition No.969 of 2006. Against the above orders of the High Court petitioners filed C.P. No.319 of 2006 in the Honourable Supreme Court of Pakistan which was allowed and the case was remanded to the High Court on 11-?-2006: The Writ Petition No. 4341 of 2006 was re-heard and allowed on 17-4-2007.

3. Against the order of this Court dated 17-4-2007 passed in Writ petition No.4341 of 2006, respondents Nos.1 and 2 and petitioners also filed C.P. No.427/2007 and C.P. No.452 of 2007 respectively. The Honourable Supreme Court of Pakistan While disposing of the C.Ps. directed the Election Tribunal to decide the election petition on its merits.

4. After recording the evidence the learned Election Tribunal framed an additional issue 6-A on 22-6-2007 and finally passed an order of re-polling at four polling stations out of total eight polling stations. Polling was held and notification has been issued whereby respondents Nos.1 and 2 have been declared returned candidates, during the pendency of this petition.

5. According to the learned counsel for the petitioners the order of the learned Election Tribunal is against the law and rules. In this regard he referred to the statement of A.W.1, A.W.2. and also referred to the contents of F.I.R. Exh.A/1. He also referred to the statement of R.W.2, the Presiding Officer. According to him the impugned order of the learned Election Tribunal dated 26-6-2007 is not sustainable.

6. According to the learned counsel for the respondents, issue No.6-A was framed with the mutual consent of the parties as it reflects from the impugned order itself. The petitioners have not submitted any affidavit to controvert that petitioners had not agreed to framing of additional issue No.6-A, therefore, the order of the learned Election Tribunal has to be given full credence. According to the learned counsel for the respondents, the impugned order has been passed in the light of guidance provided by the Hon'ble Supreme Court. The learned counsel prays for the dismissal of the writ petition, particularly, when fresh polling has taken place at two polling stations in pursuance of the order of the learned Election Tribunal and result has also been notified by the Election Commission of Pakistan. The learned counsel referred to I.C.A. No.243 of 2004 in support of his contention as well as order in Writ Petition No.6764 of 2006.

7. The learned counsel for the petitioners added into his earlier arguments and submitted that partial re-polling is not contemplated under the rules and in this regard he also referred to decision in Writ Petition No.10507 of 2006.

8. I have heard the learned counsel for the parties and considered their arguments carefully. I have examined the impugned order of the learned- Election Tribunal as well as case-law submitted by the parties and otherwise.

9. I allow this writ petition for the reasons to follow hereafter.

10. In para-12, the learned Election Tribunal noted that Rule 75 of the Punjab Local Government Elections Rules, 2005 clearly empowers the Election Tribunal to make decision. He also referred to Rule 35(3) & (5) which clearly provides that all the ballot papers shall be opened and sealed in presence of contesting candidates/agents duly appointed by the Presiding Officer and Rule 36(6) provides that the count of the Presiding Officer can be challenged if the Returning Officer is satisfied about reasonableness of the challenge or he is directed to do so by the Chief Election Commissioner. According to the Tribunal the mandatory provisions in the above context were not followed by all the concerned quarters.

11. It is observed and made clear that powers mentioned in Rule 75 relates to powers of the Election Tribunal, whereas, power mentioned in Rules 35 and 36 relate to powers/functions of Presiding Officer and Returning Officer.

12. The learned Tribunal further observed in para-13 of his judgment that Rules 75 to 78 of the Punjab Local Government Elections Rules, 2005 provide sufficient guidance in the present context and according to Rule 78 failure of any person to comply with the provisions of Ordinance and Rules thereto is sufficient to declare the election `as a whole to be void'. I must observe that while referring to Rule 78, correctly so, there is no mention of declaring such election void at one or two polling stations. To give power to the Tribunal to declare the election `as a whole to be void' means election of the whole constituency. Thus, in my opinion, the learned Election Tribunal has ascribed wrong interpretation to. Rule

78. I further disagree with the finding of the learned Election Tribunal given in para-14, which reads as under: -- "The election of UC No.32/3 Urban Ghakhar is hereby declared void to the extent of polling station i.e. G.B. Normal High School No.1 (Male and Female) Town Committee Ghakhar (Male & Female)." As I mentioned above, the learned counsel could not appreciate connotation of expression `as a whole to be void'. This expression cannot be interpreted `as a whole to be void' to the extent of two polling stations only.

13. At this point, referred to powers of decision of the Tribunal are relevant to mention. According to Rule 75, the Tribunal may upon conclusion of the trial of an election petition, make an order: (a) dismissing the petition; (b) declaring the election of the returned candidate to be void; (c) declaring the election of the returned 'candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or (d) declaring election as a whole to be void. The order of the learned Election Tribunal in concluding para-14 refers to Rule 75(d) and as I observed above; Rule 75(d) refers to the whole constituency and not to one or two polling stations only.

14. The learned counsel for the respondents referred to a decision in I.-C.A. No.243 of 2004. 1t may be pointed out that in the said judgment, the impugned order was passed by the District Returning Officer whereby he had ordered re-polling at two polling stations. To avoid repetition, it is sufficient to hint at that in the instant writ petition, matter relates to power of the Election Tribunal and not of a Returning Officer. Similarly, the learned counsel for the respondents has referred to an order of this Court passed in Writ Petition No.6764 of 2006. In my view, said judgment is also not applicable to the facts and circumstances of the present case, because in the said case, election was not declared void by the Election Tribunal. The relevant portion from the judgment is reproduced as under:- "Reference to Rules 75 to 77 of the Rules, 2005 in support of the claim of respondents Nos.2 and 3 for declaring them as returned candidates in place of the petitioner was of no help to them, as election of the returned candidates/writ petitioners was not declared void by the Election Tribunal and after re-poll at Polling Station No.7, the Returning Officer shall prepare fresh consolidated statement in Form XV appended with the above referred Rules which will decide who out of the contestants are the returned candidates." Whereas, in instant case, the learned Election Tribunal has declared election as a whole void. I again reproduce the relevant lines from the impugned order as below:-- "In view of my issue-wise finding, this election petition is hereby accepted. The election of UC No.32/3 Urban Ghakhar is hereby declared void to the extent of polling stations i.e. G.B. Normal School No.1 (Male & Female) and Town Committee (Male & Female)."

15. On the other hand, I agree with the finding of the learned Single Bench of this Court rendered in Writ Petition No.10507/2006, wherein it was held as under:-- "The upshot of the above discussion is that the Election Tribunal, in the facts and circumstances of the case, had no jurisdiction to declare the result of one Polling Station as void. Having come to the conclusion that the election process had been hampered by violence and conducted in violation of the law thereby subverting the will of people, the entire election should have been declared as null and void resulting in a run of 'election to the entire constituency." The Election Tribunal has highlighted in the impugned order particularly in paras-11 to 13 that provisions of Rules 35 and 36 were not complied with by the concerned persons and on the same basis he referred to Rule 78 of the Punjab Local Government Elections Rules, 2005 and concluded as under:-- "In view of the above discussion, whereas, Rules 75 to 78 provide sufficient guidance in the present context and according to Rule 78 of the Punjab Local Government Elections Rules, 2005, failure of any person to comply with the provisions of the Ordinance and Rules thereto, it is sufficient to declare the election as a whole null and void."

16. In view of the above observations of the learned Election Tribunal himself and his reliance on Rules 35, 36 and 78, he should have ordered fresh election of whole constituency. Similarly in the above background and conclusion of the Election Tribunal itself for framing of issue No.6-A (even with consent of the parties) has no legal backing and cannot be countenanced.

17. Pursuant to the above discussion and reasons, the impugned order passed by the learned Additional Sessions Judge/Election Tribunal, Hafizabad, dated 26-6-2007 is set aside and declared without lawful authority and of no legal effect. It is further declared that election as a whole to be void means elections of the whole constituency void instead of one or two polling stations only. The concerned election authorities are directed to make arrangement for a fresh election of the whole constituency/UC No.32/3 Urban Ghakhar, Tehsil Wazirabad, District Gujranwala, within stipulated period. M.H./Q-12/L Petition allowed.