' MUNIR A. SHEIKH, J.---This petition is directed against thejudgment dated 27-3-2002 of the Lahore High Court, Lahore through which Constitutional petition filed by the petitioners against the order of Election Tribunal of allowing recount of all the ballot papers has been rejected.
2. Petitioners and respondents Nos.2 and 3 contested elections for the posts of Nazim and Naib- Nazim of Union Council 115, Muslim Town, Lahore, in the last Local Bodies Elections. After the count of votes, the result was prepared by the Presiding Officer according to which, the petitioners obtained 3251 votes whereas respondents Nos.2 and 3 obtained 3241 votes. 191 votes were found to be invalid, therefore, they were not counted in favour of any of the contesting panels. Before the consolidation of result by the Returning Officer, an application was made by the respondents that all the ballot papers should be recounted. The Returning Officer declined this request even qua those 191 ballot papers which were excluded from the count on the ground of their invalidation though he was required to do so under rule 40(3) of the Election Rules. The Returning Officer consolidated the result on the basis of proforma prepared by the Presiding Officer and declared the petitioners as successful candidates as against respondents Nos.2 and 3 and notification was issued. The respondents filed election petition before the Election Tribunal in which they mainly prayed for reexamination of invalid 191 votes by stating that most of them were polled in their favour but the same had been illegally excluded from the count. The Election Tribunal decided issue as regards commission of corrupt and illegal practice against respondents Nos.2 and 3. It, however, passed order for recounting of all the ballot papers and summoned the record for this purpose through judgment dated 15-3-2002.
3. The petitioners feeling aggrieved, filed Constitutional petition which has been dismissed through the impugned judgment dated 27-3-2002. Apart from re-examination of 191 invalid votes which had been excluded from count, the order of recounting of other ballot papers of the Tribunal was upheld on the assumption that under rule 39(4) of the Election Rules, it was also the duty of the Returning Officer at the time of consolidation of results to recount even those votes which had been considered as valid in favour of the parties.
4. We have gone through rule 39(4) ibid and find that the said rule, relates to the duties of the Presiding Officer in relation to preparation of results after conclusion of the election and does not relate to the Returning Officer, therefore, the impugned judgment of the High Court to this extent is contrary to law. We also find that in the election petition, no ground was raised against count of the valid votes of the parties apart from the fact that no evidence whatsoever was brought onthe record to justify the recounting of the valid votes, therefore, both the Election Tribunal and the High Court committed illegality in ordering recounting of those ballot papers which were counted as valid votes in favour of the petitioners or the respondents.
5. On examination of rule 40(3) of the Election Rules, we find that it was obligatory on the part of the Returning Officer before consolidation and declaration of result to have examined 191 votes declared to be invalid by the Presiding Officer, as such, excluded from count to determine whether the decision of the Presiding Officer was legally correct which was not done by him. The application of the respondents for re-examination of the said ballot papers was rejected by the Returning Officer with the observation that he had consolidated result on the basis of entries made by the Presiding Officer in the proforma prescribed under the law on which the results of the count had been recorded which means that he followed whatever had been done by the Presiding Officer, as such failed to perform his legal duties.
6. For the foregoing reasons, this petition is converted into appeal, the same is partly accepted to the extent that orders of the Election Tribunal dated 15-3-2002 and the impugned judgment of the High Court dated 27-3-2002 allowing recounting of valid votes are set aside and order of the Election Tribunal for re-examination of 191 invalid votes is hereby declared to be valid, therefore, the appeal qua it is hereby dismissed. The Election Tribunal shall proceed to re-examine 191 ballot papers which were excluded from count on the ground that they were invalid and decide whether the said decision of the Presiding Officer was in accordance with law and thereafter decide the election petition in accordance with law.
7. The parties are, however, left to bear their own costs.