This Constitutional petition seeks notification dated 31-3-2004 issued by respondent No,3 to be declared as illegal, void and without any lawful authority whereby District Returning Officer, Sheikhupura in exercise of his powers under Rule 29(2) of the Punjab Local Government Elections Rules, 2000 directed fresh poll at Polling Stations No,4 (Girls Primary School, Malik Pur) and Polling Station No,5 (Government Girls Primary School, Towri Qasim) of Union Council No,148 Jogaykot Naubahar, Tehsil Nankana Sahib, District Sheikhupura.
2. Precisely, relevant facts are that seat of Nazim Union Council No,148, Jogaykot Naubahar, Tehsil Nankana Sahib fell vacant due to resignation by the elected Nazim Javed Manzoor Gill, for his contest to the general election of Provincial Assembly. Schedule for the bye-election to seat of Nazim thus falling vacant, was announced according to which the election was held on 28-3-2004.
The petitioner along with respondents No,7 to 10 submitted their nomination-papers, which were accepted after scrutiny, and election symbols were allotted to, them. 13 polling stations were allocated for the day of poll, on which, conduct of election went on smooth, as no unwanted incident was reported and poll was not stopped, during the polling hours, by any of the Presiding Officers of all the 13 polling stations. All the Presiding Officers prepared their respective statements of count in terms of Rule 39 of the Punjab Local Government Elections Rules, 2000 under their signatures who distributed the same to the candidates/polling agents. The statements of count prepared by the Presiding Officers at Polling Stations Nos.4 and 5, remitted to the Returning Officer carried "Notes" thereunder. The Presiding Officer of Polling Station No,4 mentioned on his statement of count that 174 votes were snatched by supporters of Shahid Manzoor Gill and that, according to counter foils, 179 votes were cast and instead, 183 votes came out of the ballot box. Similarly, Presiding Officer of Polling Station No,5 gave a "Note" on his statement of count that he issued 453 ballot papers where from 6 votes were spoiled and the rest were not issued by him and 113 votes were tender votes which were not issued by him and thus, may be considered, as cancelled.
3. Assistant Returning Officer Nankana Sahib on 28-3-2004 reported to the Returning Officer that he along with A.S.P Nankana Sahib, under the orders of Returning Officer visited Polling Station No,4 of Malik Pur and on his arrival at the polling station, many people were gathered outside the polling station and when they entered the polling station, the Presiding Officers along with his staff were sitting idle, on inquiry they told him that some people have snatched ballot papers and affixed the stamps themselves. According to this report, counting at the polling station started in their presence and the polling agents. Meanwhile, he deputed S.H.O., Faizabad and S.H.O., Mangtanwala to take care of the staff posted at the polling station and he left for Nankana Sahib where he handed over complaint of the Presiding Officer to the Returning Officer.
4. The Returning Officer on 29-3-2004 transmitted his report to the District Returning Officer, in continuation of his earlier interim report dated 28-3-2004 wherein certain illegalities without details, were reported at Polling Stations Nos.4 and 5, proposing re-poll of these both polling stations. In the subsequent report, the Returning Officer mentioned that Presiding Officer of Polling Station No,4 had reported to him that at about 4-20 p.m. Some persons had snatched ballot papers on gun-point and had forcibly put those ballot papers in the ballot boxes. He also referred to the report of the A.P.O. And to the "Notes" given by the Presiding Officers of Polling Station Nos.4 and 5 on their statements of count. The Returning Officer also mentioned in his report that according to information conveyed by the Presiding Officer of Polling Station No,5, number of ballot papers issued by him were 453 but at the time of counting, excess votes were recovered from the ballot box. A reference was also made to some application of the Presiding Officer wherein a scuffle at the polling station was reported and removal of the election material was also conveyed.
The Returning Officer after consolidating his report, recommended re-poll on both the above- referred polling stations on account of rigging on gun-point.
5. The District Returning Officer being influenced by the report of the Returning Officer dated 29-3- 2004, opted to exercise his powers under Rule 29 (2) of the Elections Rules, 2000 and directed fresh poll on 7-4-2004 from 8-00 a.m. To 4.00 p.m. Through notification dated 31-3-2004. The petitioner aggrieved of notification dated 31-3-2004 directing fresh poll by the District Returning Officer has filed instant Constitutional petition, for the relief noted above. Notification dated 31-3-2004 was suspended through an interim order dated 6-4-2004. Learned counsel for the petitioner submits that entire exercise by the Returning Officer, as well as, the District Returning Officer, is not only illegal and unauthorized but is also contrary to law and the factual position on the ground. He further submitted that the "Notes" on the statements of count prepared by the Presiding Officer at Polling Stations Nos.4 and 5 were subsequently engineered which do not furnish a lawful basis for either report of the Returning Officer or for the notification by the District Returning Officer. According to his submissions, Presiding Officer of Polling Station No,4 had given the result of final count on Form No,XIII under his signatures, at the close of counting, which did not carry any "Note", allocating 177 votes to the petitioner and none was cast in favour of his adversary. Similar is the position at Polling Station No,5 (Government Girls Primary School Towri Qasim), at this polling station, as well the Presiding Officer issued statement of count without any "Note". He further submitted that after preparing statements of count in terms of Rule 39 of the Punjab Local Government Elections Rules, 2000, the Presiding Officers were not equipped with any authority to inscribe there over any Note or to change it by any means whatsoever. It was also contended that even according to the report of the A.P.O., the polling was not stopped or interfered in terms of ,Rule 29 of the Elections Rules, 2000 warranting re-poll of the said two polling stations.
He further elaborated his arguments that even report of the Returning Officer is factually incorrect and has no legal basis for notification under Rule 29(2) of the Election Rules, 2000. He further contended that entire exercise of re-poll is illegal because after a proper count, preparation of statements in Form-XIII the only method to upset the result was an election petition.
7. Learned counsel appearing on behalf of respondents Nos.7 and 9 strenuously refuted the arguments of the petitioner, supported the notification dated 31-3-2004 issued by respondent No,3 and urged that both the respondents Nos.3 and 4 have acted correctly, according to the legal demands as the polling was not held fairly/justly and was interrupted by the petitioner and his party men by snatching ballot papers as is evident from the report of the concerned Presiding Officers. It was further submitted that the controversy raised by the petitioner cannot be decided in the Constitutional jurisdiction of this Court as the same requires recording of evidence and thus, the petitioner may be required to approach the Election Tribunal after completion of election process.
8. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Under Rule 39 of the Elections Rules, 2000, the Presiding Officer is required to count the votes immediately after the polling, in presence of the contesting candidates or their agents, facilitating them to observe the count and providing them information with regard to orderly conduct of the count and proper discharge of his duties. The Presiding Officer is required to prepare statement of count in Form-XIII immediately after the count, showing therein the ballot papers issued, the votes polled for each contesting candidates and ballot papers excluded from count besides preparing a list in Form-XIV showing separately, number of ballot papers entrusted to him, number of ballot papers taken out of the ballot boxes, number of tender/challenge ballot papers, spoilt/un-used ballot papers. The Presiding Officer is also required to give certified copies of the statement of count so prepared by him to the candidates/polling agents. In the instant case, the petitioner has produced statements of count prepared on both the Polling Stations Nos.4 and 5, which were issued by the respective Presiding Officers under their signatures. Both these statements of count do not carry any "Note" whereas statements of count of the same polling stations coming from the record of the Returning Officer have "Notes" on those, already noted above. Comparison of statements of count produced by the petitioner and those coming from the record of Returning Officer makes it clear, even to a man of ordinary prudence that after issuance of statements of count to the polling agents, the "Note" in question were subsequently inscribed. The point, which hinges for determination is, as to whether the Presiding Officer could add any "Note" on his statement of count after distributing the same to the candidates or their agents. There is no provision in the Elections Rules, 2000 or in the Punjab Local Government Ordinance, 2001, authorizing the Presiding Officer to change or to give subsequently any "Note" on his statement of count, on whatever ground it may be. In similar circumstances, this Court in the case of Muhammad Afzal v. District Judge/District Returning Officer (2000 CLC 310) held that the Presiding Officer, after issuance of statement of count, becomes Junctus officio and cannot change the result, already declared by him. In this precedent case, name of the writ petitioner was notified in the gazette notification as successful candidate for a general Muslim Seat and he took Oath of his office but District Returning Officer subsequently on the basis of a direction issued by the Provincial Election Commissioner, deprived him of his success, declaring his adversary as successful and this Court after scan of all the provisions of Election Rules, 2000 held that the entire activity after declaration of result, was unauthorized. In another case Division Bench of this Court in the case of Sharafat Ali Nisar v. Punjab Local Councils Election Authority and 3 others,(1999 MLD 1814) held that the election wherein candidates participated, whether it was illegal or void, was challengeable through an election petition before the Election Tribunal as after holding the election, all the functionaries become functus officio. In this case, re- poll order by the Election Authority was set aside. In another case decided by a Division Bench of Peshawar High Court in the case of Begum Tallat Jan and another v. Presiding Officer etc. 1988 CLC 819 decided that after declaring the result in the prescribed Form, the Presiding Officer becomes functus officio and loses jurisdiction over the matter. It was also observed that preparation of second result by any of the authorities carries no legal sanctity. It was also propounded in this judgment that even in the election matters, where the exercise of excess of jurisdiction or legal errors are apparent on the face of the record, Constitutional jurisdiction of the High Court is not barred for intervening in the matter. While interpreting Rule 29 of the Elections Rules, 2000, this Court gave a decision in the case of Malik Amjad Farooq Pracha v. Chief Election Commissioner of Pakistan and 12 others (2002 YLR 3283) and held that stopping of poll and failure of voters to turn up at polling stations or to participate in the election during the polling hours would neither materially affect the result of election nor would be a valid ground for issuance of a direction of re- poll in exercise of powers under Rule 29 of the Elections Rules 2000. It was further held that defeated candidate after declaration of official result could conveniently challenge the election through an election petition on such ground and can seek a declaration that the election as a' whole was void but in any case Rule 29 of Punjab Local Government Elections Rules, 2000 could not be invoked for the benefit of ' the losing candidate. In another Division Bench judgment of this Court in the case of Muhammad Arshad v. Punjab Election Authority, Lahore and 4 others (PLD 1999 Lahore 443) in which the election authority passed an order for fresh polling at two polling stations claiming those to be disturbed, while determining validity of order, it was held that where the result of the two polling stations was not only ascertained but duly compiled and sent to the competent authority in the manner prescribed, the Election Authority was not competent under Rule 29 of the Punjab Local Councils (Elections) Rules, 1979 to order fresh polls at such two polling stations and ultimately order of the election authority was declared to be without any lawful authority or jurisdiction. The Hon'ble Supreme Court in the case of Emmanual Masih v. The Punjab Local Councils Election Authority and others (1985 SCMR 729) mandated that after close of election, the Election Authority becomes functus officio and validity of the election could be challenged by the aggrieved persons only through .An election petition. The Hon'ble Supreme Court in another case of Hayat Muhammad and 4 others v. Election Authority and others (1985 SCMR 1909) while interpreting section 17 of the Punjab Local Government Ordinance, 1979 very graciously held that the Election Authority was not vested with power to pass an order for fresh poll.
9. Both the Presiding Officers of Polling Stations Nos.4 and 5 of Union Council No,148, Tehsil Nankana Sahib, District Sheikhupura not only counted the ballot papers under the guard of police officials, as reported by the APO but also compiled the same and transmitted the result in Form-XIII to the Returning, Officer, besides delivering copies of those to the contesting candidates/polling agents, as those have been produced by them before this Court and thereafter, they were not competent to add any "Note" as has been done by them. Tampering with the election record or interfering with election process is cognizable offence but both the Presiding Officers did not take any punitive action during the polling hours against the culprits. Rule 29 of the Punjab Local Government Elections Rules. 2000, provides that Presiding Officer shall stop polling and would inform the Returning Officer that he has done so, in case of interruption or obstruction in the polling beyond his control but no such report was remitted to the Returning Officer by any of the two Presiding Officers, during the polling hours. The learned Returning Officer has repeatedly emphasized that ballot papers were snatched on gun-point and were forcibly put in the ballot boxes but there is no evidence with regard to any such exercise on gun-point. Both the reports of the Presiding Officers which were subsequently engineered are absolutely silent about use of firearm. Report of the APO does not mention any such user. Telephonic message by Muhammad Ashgar Shah, SST, Headmaster Government Elementary School, Mangtanwala, presiding of Polling Station No,4 (Girls Primary School, Malikpur) to the Returning Officer does not find any clue, in black and white from any of the officers concerned and it appears that the Returning Officer in order to ornament his report trusted this fact just to give strength to his recommendations of re-poll on the Polling Stations Nos.4 and 5. None of the respondents Nos.3 and 4 have opted to issue any kind of notice to the contesting candidates or to undertake a pain of inquiry into those assertion disputed facts, themselves or through some official, by a visit at the polling stations. No incident of interruption in the polling, scuffle between the candidates or their supporters during that time, was ever reported to police on 28-3-2004 and in absence of any such reporter, action under Rule 29, above referred, the entire exercise of re-poll appears to be afterthought. The superior Courts have repeatedly held that after completion of poll and consolidation of result, the supervisory officials are denuded of authority to direct re-poll except by the intervention of the Election Tribunal established for the purpose.
10. Since pre-requisites for a fresh poll, as visualized by Rule 29 of the Punjab Local Government Elections Rules, 2000 were not fulfilled in the case in hand and the result of the election had been determined by the polling which had already taken place on both the polling stations, above referred, an illegal attempt has been made to direct fresh poll, thus, Icannot resist invocation of Constitutional jurisdiction to redress the unwarranted exercise which could only be undertaken by the Election Tribunal through an election petition, provided by law.
11. For what has been discussed above, I am constrained to hold that both the reports by respondent Nos.4 on 28-3-2004 and 29-3-2004 urging re-poll on Polling Stations Nos.4 and 5 are illegal, unfounded and without any legal basis, as result of which notification dated 31-3-2004 issued by respondent No,3 is also void and unauthorized, consequently this writ petition is accepted and writ as prayed is issued with the direction to respondents Nos.3 and 4 to prepare consolidated statements in terms of Rule 40 of the Punjab Local Government Elections Rules, 2000, on the basis of statements of count furnished by the Presiding Officers of Polling Stations Nos.4 and 5 in terms of Rule 39 of the Election Rules (ibid) and to declare the result of the election accordingly. There will be no order as to costs.