1992 PLP 1666 (MLD)

In this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 Jamil petitioner has challenged order, dated 15-1-1992 passed by Mr. Khakan Babar, Civil Judge/Election Tribunal, Depalpur District Okara, whereby his application seeking an injunctive order against the issuance of Notification of Election of Muhammad Umar respondent No. 3 herein, as Councillor from Ward No. 12 of Union Council No. 79, Gudar Malkana and prohibiting him from acting as Councillor was dismissed during the pendency of the election petition.

2. Learned counsel for the petitioner argued that the impugned order, dated 15-1-1992 is final within the contemplation of section 24 of the Punjab Local Government Ordinance, 1979 and therefore, the same can be interfered with by this Court in its Constitutional jurisdiction. According to him, as the respondent Presiding Officer had not enclosed the valid ballot papers cast in favour of the petitioner and Muhammad Umar respondent in two packets as required under rule 42 of the Punjab Local Councils (Election) Rules, 1979 and as the said situation has been verified 1)% the Election Tribunal itself on 15-1-1992, Muhammad Umar respondent is liable to be stopped from acting as a Councillor and from participating in the forthcoming Election of Chairman and Vice-Chairman of Union Council No.79, Gudar Malkana.

3. I am afraid the contention being raised has little merit. The parties before the Election Tribunal had agreed to the desealing of the polling bag and it is not the case of the petitioner that any ballot paper cast' in favour of the parties was found in the polling bag. A perusal of the impugned order, dated 15-1-1992 further shows that the respondent Presiding Officer had stated before the Election Tribunal that the valid ballot papers cast in favour of the parties in Ward No.12 might have been put in the envelope containing the ballot papers cast in favour of the candidates for Zila Council seat from the same ward. It was on this statement of the Presiding Officer that it was pleaded on behalf of the petitioner before the Election Tribunal that petitioner's application for temporary injunction be heard and decided without opening the record pertaining to the Election of District Council. The Election Tribunal rightly observed that resealing of the record of District Council should not be undertaken at this stage because such action can create complications, in future, if the District Council Election is challenged by the concerned candidates. The inspection of the District Council record was therefore, deferred until the time of recording of evidence of the parties in this case which cannot be successfully challenged by the petitioner in these proceedings.

4. As regards the contention that the Presiding Officer had failed to perform his statutory duty of enclosing the valid ballot papers of the parties in two separate bags, suffice it to say that no such plea was raised either in the Election Petition or in the application for temporary injunction by the petitioner. His only plea was that the counting of votes had not been done properly and that 43 votes had been illegally rejected by the Presiding Officer. This plea was also considered by the Election Tribunal in the impugned order and the same was repelled with the observation that even it' he is allowed the benefit of 43 votes at this juncture, he will have no prima facie case in his favour in that Muhammad Umar respondent had led the poll by a margin of 54 votes.

5. No other point was argued. In view of the foregoing, this petition lacks merit and is dismissed in limine. A.A./J-12/L Petition dismissed.