' The brief facts out of which the present writ petition arises are that the petitioners and respondents Nos.2 to 5 contested the election for the posts of Nazim and Naib Nazim from Union Council-88 Gohar Shah, Jhang Saddar, held on 31-5-2001 under the provisions of the local bodies election and rules framed thereunder. The petitioners being aggrieved filed an election petition before the Election Tribunal, Jhang, on the ground that votes were not counted by the Polling Staff, in accordance with law. Respondents Nos.2 and 3 filed independent written statements, controverted the allegations levelled in the election petition. Out of the pleadings of the parties the learned Election Tribunal framed the following issues:--
(i) Whether the petitioners have got no locus standi or cause of action to file this petition?
(ii) Whether the petitioners are estopped by their conduct to bring this petition?
(iii) Whether the petition is violative of Rules 70 to 72 of the Punjab Local Government Election Rules.
2000?
(iv) Whether the annexures and schedule annexed to the petition have not been verified in the manner laid down in the C.P.C. For verification of pleadings, as required under Rule 72(3) of the Election Rules, 2000?
(v) Whether the respondents procured the result of election in question in their favour through corrupt and illegal practice or illegal acts? If so, its effect?
(vi) Whether the petitioners' valid votes were rejected while preparing the result illegally and incorrectly and the sifting, sorting and scrutiny of the votes was not in accordance with the rules? If so, whether there exists sufficient ground for recount of ballot papers?
(vii) Whether the election of respondents Nos.1 and 2 is valid?
(viii)Relief.
' During the pendency of the election petition respondent No,2 has resigned from the post of Nazim to the competent authority for the purpose to contest the election for the seat of Provincial Assemby competent authority accepted the resignation of respondent No,2. Respondent No,3 also resigned from the post of Naib-Nazim for the purpose to contest the election for Nazim. The ex prate order was also passed against respondents Nos.4 and 5. The learned Election Tribunal passed the order for re-counting of votes of the parties to resolve the controversy between the parties vide order, dated 27-2-2003. Subsequently, the learned Election Tribunal had recounted the votes and proceedings qua recounting of votes is at pages 35 to 39 and this fact was also noted by the Election Tribunal in its judgment, dated 28-5-2003 in para.6. The petitioners secured 1812 votes whereas respondents secured 1608 votes but the learned Election Tribunal accepted the election petition and copy of the Judgment was sent to the Provincial Election Commissioner, Punjab, Lahore for arranging re-election in the concerned Union Council. The petitioners being aggrieved filed this Constitutional petition.
2. The learned counsel of the petitioners submits that respondents Nos.2 and 3 contested the election for the Seat of Nazim and Naib-Nazim of Union Council No,88 Gohar Shah, Jhang Saddar respectively. Respondents Nos.2 and 3 were declared as returned candidates. The petitioners being aggrieved filed election petition before the concerned Election Tribunal. The Election Tribunal directed the Government and Chief Election Commissioner to hold fresh election of concerned Union Council, which was not the prayer of the petitioners in the election petition. He further submits that respondents Nos.2 and 3 had resigned and did not contest the election petition filed by the petitioners. He further submits that respondents Nos.4 and 5 also did not contest the election petition filed by the petitioners. He further urges that on recounting the votes secured by the petitioners were more as compared with respondents Nos.2 and 3 but this fact was not considered by the Election Tribunal and disposed of the election petition, which is not in accordance with the mandatory provisions of election laws. He further submits that petitioners have filed election petition simply on the ground that Polling Staff did not count the votes in terms of the provisions of the election laws under Rule 82 of the Punjab Local Government Election Rules, 2000, therefore, Election Tribunal erred in law to declare the election void as a whole and directed the Provincial Election Commission to hold fresh election qua the seats in question, which is not valid and the requirement of rule 83 are not attracted in the present case but this fact was not noted and decided by the Election Tribunal in the impugned judgment. He further submits that once the Election Tribunal has come to the conclusion that petitioners have secured more votes as compared to respondents Nos.2 and 3, the Election Tribunal has no lawful authority to declare the election as a whole void. In fact it is the duty and obligation of respondent No,1 to declare the petitioners as returned candidate.
3. The learned counsel of respondent No,4 submits that votes were not properly counted by the Polling Staff, therefore, the Election Tribunal was justified to declare the election void as a whole. In support of his contention, he relied upon the reasoning rendered by the Election Tribunal in paras.l3, 14, 15 and 16 of the impugned judgment. He further submits that votes were not properly counted and secured and record is not properly maintained. In support of his contention, he relied upon Abdul Sami's case (PLD 1990 Lah. 378).
4. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record.
5. It is pertinent to mention here that the petitioners have taken a specific allegation in para.4 of the election petition that Polling Staff did not count the votes in accordance with the provisions of the election laws and rules framed thereunder. The Election Tribunal after proper appreciation of the evidence on record has given findings qua the corrupt and illegal practice committed by the parties with the connivance of the Polling Staff. In paras.l3, 14 of the judgment wherein the learned Election Tribunal has reappraisal the evidence on record and finally the Election Tribunal has given findings in the following terms in para.15:-- "As detailed in para. 6 of , this judgment, petitioners were shown to have obtained 2051 votes by the Polling Staff while during recounting of votes by this Tribunal 1812 votes have been found cast in favour of the petitioners. This being so 1 feel it necessary to declare the election as a whole to be void and as such reelection should be held."
' It is pertinent to mention here that the Election Tribunal has mentioned votes secured by the petitioners and respondents No,2 and 3. According to para.6 as mentioned above, the petitioners secured votes 2051 previous at the time of declaration of result of election. The Election Tribunal after recounting found the petitioners secured 1812 votes whereas respondents Nos.2 and 3 secured votes 2307 at the time of declaration of the result of the election on the basis of which respondents Nos.2 and 3 were declared as returned candidates. The Election Tribunal during recounting process found respondents Nos.2 and 3 secured 1608 votes. Mere comparison of the two figures of both the sets i.e, petitioners and respondents. Nos.2 and 3 clearly reveals that polling staff as well as Returning Officer could not count the votes in accordance with the mandatory provisions of the election laws and the rules framed thereunder, therefore, result was prepared/ declared in violation of the mandatory provisions of the Rules 39, 40, 42 and' 55 of the Punjab Local Government Elections Rules, 2000. In case the contents of the para.4 of the election petition be read then the pith and substances of the grievances of the petitioners is that the result of the election has been materially affected' on account of the failure of the Returning Officer as well as District Returning Officer to comply with the mandatory provisions of sub-clauses (b) and (c) of clause 3 of the rule 39 of the aforesaid rules and failure of the District Returning Officer to comply with the provisions of the sub-rule 5 of rule 42 read with rule 55 of the rules. The grievances of the petitioners thus securely fall within the ambit of clause (a) of rule 83 of the rules, therefore, the Election Tribunal was justified to declare the election as a whole to be void and was justified to give direction to the Provincial Election Commission to hold reelection qua the seats in question in the said Union Council. The judgment of the Election Tribunal is in accordance with the dictum laid down by the Honourable Supreme Court in Ch. Nazir Ahmad's case (PLD 2002 SC 184). It is settled principle of law that in case the Polling Staff failed to act in accordance with the provisions of the rules in such situation, the result of the election has been materially affected and election should be declared as a whole void as the law laid down in the following judgments:-- 'Sana Ullah's case (PLD 1996 Lahore 97); Bristol South's East Parliamentary Election (1961, Vol.III)
A.E.L.R. 354) and Rashid Rehmani's case (PLD 1968 SC 301). #TBS J #TBE ' By virtue of rule 82 of the aforesaid .Election rules it is condition precedent that Tribunal has to be satisfied that the petitioner before him or such order contesting candidate was entitled to be declared as elected, the election Tribunal after applying its independent mind and reappraisal of the evidence has satisfied that the election was not held in accordance with the mandatory provisions of the election law , therefore, he was justified not to declare the petitioners as returned candidates, which is in accordance with the law laid down in the following judgments:-- ' Manzoor Ahmad Butt's case (1999 CLC 1520) and Saeed Hassan's case (PLD 1976 SC 6)
' It is also settled principle of law that a corrupt or illegal practice in an election is not an isolated affair as between the petitioners. It is wrong to suppose that the affects of such practice are confined to the petitioners. It is a matter of vital public interest relating to, the purity of election that such practices should be brought to light and duly investigated as the law laid down by the Honourable Supreme Court in Jamal Shah's case (PLD 1966 SC 1). In case para.6 of the judgment be read with regard to the petitioners, votes secured on the basis of the result prepared by the Polling Staff and subsequently, result was declared on the basis of that result by the Returning Officer and votes secured by the petitioners after recounting are entirely different i.e, previous votes secured by the petitioners 2051 and after recounting reduced to 1812 votes. This fact brings the case of the petitioners in the area that the petitioners obtained this advantage for themselves by contravening a statutory rule, resultantly that the means adopted could fairly be described as "illegal" as the act was contrary to law as the law laid down by the Honourable Supreme Court in Dr. Niaz Ahmad v.
The State (PLD 1961 SC 224). In case the result of recounting be perused then it brings the case in the area that petitioners have not approached the Election Tribunal with clean hands. It is settled principle of law that this Court has no jurisdiction to substitute its own findings in place of the findings of the Tribunal below. The Election Tribunal has given finding of fact against the petitioners in paras.13 to 15 that result was prepared by the Poling Staff and Returning Officer in violation of the mandatory provisions of the election law, therefore, this Court has no jurisdiction to disturb the finding of fact of the Tribunal below while exercising power under Article 199 of the Constitution as the law laid down by the Division Bench of this Court and the Honourable Supreme Court in the following judgments:-- ' M. Musaddaq's case (PLD 1973 Lahore 600) and Syed Azmat Ali's case (PLD 1964 SC 260).
' It is also settled principle of law that Constitutional jurisdiction is discretionary in character.
Keeping in view the circumstances and facts of this case, I am not inclined to exercise my discretion in favour of the petitioners as the law laid down by the Honourable Supreme Court in Nawab Syed Raunaq Ail=s case (PLD 1973 SC 236).
' In view of what has been discussed above, this writ petition has no merit and the same is dismissed with no order as to costs.