The petitioners, on the one hand, and Respondents Nos, 5 and 6, on the other, contested elections to the seats of Nazim and Naib Nazim in Union Council No, 10, District Lodhran. Results were prepared by the Presiding Officers and consolidated by the Returning Officer. The petitioners were declared returned with 2043 votes while the Respondents Nos, 5 and 6 got 1673 votes. The result was accordingly notified vide Annex: 'B'. Now according to the written statement of the Respondents Nos, 5 and 6, they approached the learned Chief Election Commissioner of Pakistan who directed a re-count. While proceedings were being undertaken by the Returning Officer for the said re-count, it was found that at Polling Station No, 4, a bag containing 349 ballot papers of the petitioners was missing. Upon receipt of a report from the Returning Officer, the learned District Returning Officer addressed a letter on 31.8.2005 to the Chief Election Commission of Pakistan (Annex: 'D') suggesting that a re-poll be ordered at Polling Station No, 4 and necessary funds be made available. Pursuant to this, a Deputy Secretary (LGE) addressed a letter (Annex: 'F') to the District Returning Officer on 19.9.2005 stating that the Hon'ble Chief Election Commissioner (CEC) has directed that re-polling at Polling Station No, 4 may be held on 26.9.2005 in terms of Rule 25 of the Punjab Local Government Elections Rules, 2005. Present writ petition was filed in this Court on 22.9.2005. It came up before the Court on 23.9.2005 when a preadmission notice was issued for 27.9.2005, it was further directed that the re-poll shall be subject to the final decision of the case.
The writ petition was admitted to regular hearing on 27.9.2005. Notices were issued.
2. Mr. Muhammad Arif Alvi, Advocate/learned counsel for the petitioners contends that upon a plain reading of the said Rule 25 of the Local Government Election Rules, 2005 having been relied upon in the said letter (Annex: 'F') would show that no circumstances existed warranting an order for a re-poll. He points out that all orders passed for re-count were recalled by the CEC vide general order issued on 1.9.2005. Learned A.A.G. is of the opinion that in the circumstances of the case, the re-poll was rightly directed. Mian Abbas Ahmad, Advocate/learned counsel for the Respondents Nos, 5 and 6 contends that notwithstanding the provision of the said rule, the learned CEC has sufficient jurisdiction to pass an order for re-poll under Article 4 of the Local Government Elections Order, 2000 and this Court would not be having jurisdiction to question the same.
3. I have given some thought to the respective contentions of the parties. Now the Local Government Elections Order, 2000, was promulgated as it was expedient to provide for the conduct of Local Government Elections by the CEC. Now under Section 150 of the Punjab Local Government Ordinance, 2001, the Local Government Elections under the said ordinance shall be conducted by the CEC in pursuance of the Local Government Elections Order, 2000. I deem it appropriate to reproduce the said Section 150 hereunder "150. Authority for Local Government Elections.--(1) The Local Government Elections under this Ordinance shall be conducted by the Chief Election Commissioner in pursuance of the Local Government Elections Order, 2000 (Order No, 8 of 2000).
(2)' The Chief Election Commissioner may require any person or authority to perform such functions or, render such assistance for the purpose of elections, including preparation of electoral rolls and disposal of election petitions and other disputes under this Ordinance as deemed fit.
(3) The Chief Election Commissioner may authorize any of his officers to exercise any of his powers and to perform any of his functions under this Ordinance.
(4) The elections to the Local Governments shall be held every four years so as to enable their installation on the 14th day of August of the year in which elections are held."
4. Now the Punjab Local Government Elections Rules, 2005, were made by the Governor in exercise of powers conferred upon him under Section 191 read with Section 150 of the said Ordinance. Now Rule 5 deals with the supplying of electoral rolls. Chapter IV deals with the conduct of elections in question. Rule 8 provides for appointment of District Returning Officers, Returning Officers. And Presiding Officers, under Rule 9 the CEC has to announce the schedule. Rule 10 deals with the matter of Polling Stations while Rule 11 deals with the appointment of Presiding Officers and Polling Officers. Rule 12 prescribes the mode of nomination, Rule 13 for candidature fee, Rule 14 provides for scrutiny of the papers, under Rule 15 the list of candidates is to be pasted, Rule 16 provides for withdrawals and retirements, Rules 18 and 19 deal with respectively postponement of election and uncontested election, Rule 20 provides for allocation of symbols, Rules 21 and 22 respectively provide for appointment of Election Agents and Polling Agents, Rule 24 prescribes the hours of the poll. Now Rule 25 lays down the circumstances in which polling at a particular Polling Station can be stopped and also where a re-poll is to be ordered by the District Returning Officer, Rule 26 deals with the provision of ballot boxes. Rules 27 and 28 deal with respectively with admission to Polling Station and maintenance of law and order. Rule 30 prescribes the voting procedure. Rules 31, 32 and 33 respectively prescribe the proceedings at the close of the poll. Rule 36 provides consolidation of results by the Returning Officer and Rule 38 prescribes the mode of declaration of results. Chapter X provides for settlement of election disputes and Rule 65(1) lays, down that no election shall be called in question except by an election petition made by a candidate for that election. It may be noted that the said petition is to be presented before and dealt with by a Tribunal to be appointed by CEC under the said Section 150 of the main Ordinance, 2001. I deem it appropriate to reproduce hereunder the said Rule 25: "25. Stopping of poll.--(1) The Presiding Officer of a polling station shall stop the poll and inform the Returning Officer that he has done so if--
(i) the poll at the polling station is, at any time so interrupted or obstructed for reasons beyond the control of the Presiding Officer such that it cannot be resumed during hours fixed under Rule 24; or
(ii) any ballot box used at the polling station is unlawfully taken out of the custody of the Presiding Officer, or is accidentally or intentionally destroyed or lost, or is damaged or tampered with to such an extent that the results of the poll at the polling station cannot be ascertained.
(2) Where a poll has been stopped under sub-rule (1), the Returning Officer shall immediately report the circumstances to the District Returning Officer, who shall direct a fresh poll at that polling station and fix a date for such polls, unless he is satisfied that the result of the election has been determined by the polling that has already taken place at that polling station taking into account the results of the polling at other polling station in the same union.
(3) Where an order under sub-rule (2) has been made, the Returning Officer shall notify the day for a fresh poll and fix the place at which and the hours during which such fresh poll shall be taken.
(4) Where a fresh poll taken under sub-rule (3) at a polling station, all voter, entitled to cast their vote shall be allowed to vote and no vote cast at the poll stopped under sub-rule (1) shall be counted: and the provisions of the Ordinance and these rules shall apply to such fresh poll."
5. Now the admitted facts of this case for purposes of this writ petition are that there is no allegation that poll at any of the polling stations was interrupted or obstructed or any ballot box used at the polling station was taken out unlawfully or otherwise from the custody of the Presiding Officer while the polling was in progress. There is no allegation that the polling at any polling station was stopped and report in the matter was made to the Returning Officer. It is also an admitted fact that the results had been prepared and consolidated and declared in the manner prescribed in the said rules.
6. In the above state of affairs, the order directing a re-poll in the terms of the said Rule 25 is wholly without lawful authority.
7. Now coming to the contention of Mian Abbas Ahmad, he relies on Article 4 of the Elections Order, 2000, which provides that anything required to be done for carrying out the purposes of the said order for which no provision or no sufficient provision exist shall be done by such authority in such manner as the CEC may direct.
8. Now under the said Rules, the process of a contested election has been provided for in detail. The mode in which it commences, continues and concludes has been stated with clear details in the said Rules. The provision for stopping a poll or to order a re-poll is also there. It cannot, therefore, be said that- there is no provision or sufficient provision in the matter of ordering a re-poll. Now once the process of the election is completed, the same is to be called in question only by filing of an election petition before a tribunal and it is a matter of record that such Tribunals have already been appointed and nominated by the learned CEC.
9. It is also a, matter of public knowledge that the learned CEC and withdrawn all orders for re- count by a general order notified on 1.9.2005 upon the publication of the results and appointment of the Election Tribunals.
10. It is further a matter of record that the said bag containing the valid votes of the petitioners at Polling Station No, 4 in the constituency disappeared at a point of time when the results had been prepared consolidated and declared. This being so, the requisite inquiry could have been instituted only by learned Election Tribunal having been moved in accordance with the said Rules. There is no manner of doubt that a re-poll could not have been ordered in the circumstances of the present case under Rule 25 of the said Rules as has been conveyed vide the said letter Annex: 'F' of the Deputy Secretary (LGE).
11. For all that has been discussed above, this writ petition is allowed, the impugned order/direction contained in letter dated 19.9.2005 (Annex: 'F') is declared to be without lawful authority and is accordingly set aside. No orders as to costs.