' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- This petition calls in question judgment, dated 7th September, 2005 of the Lahore High Court.
2. Precisely stating facts of the case are that the Returning Officer of UC-71, Chak No,45, Padhana, Tehsil Pattoki, District Kasur in exercise of powers conferred upon him under Rule 25 of the Punjab Local Government Election Rules, 2005 ordered re-polling in Polling Stations Nos.1041 and 1043 because on account of disturbance polling at these polling stations could not take place. To justify re-polling, reliance was placed on the material placed before him, including two F.I.Rs, and next date for polling was fixed to be 31st August, 2005. Statedly on this day again there was disturbance at both the police stations, therefore, Returning Officer vide his Report No,280 dated 31st August, 2005, referred the matter to the District Returning Officer for seeking guidance in respect of declaration of result. It seems that D.R.O. Referred the matter to the Election Commission of Pakistan who directed re-polling on these two polling stations and fixed the date of polling to be 21st September, 2005. Meanwhile petitioners approached the High Court for seeking direction to the Returning Officer for declaring the election result on the basis of polling which according to him had taken place on 31st August, 2005 at both the polling stations and the voters had exercised right of their votes as per the count statement handed over to the candidates by the Presiding Officers, copies of which have also been placed on record, but despite of it, result was not announced. On this petitioner filed writ petition, which has been dismissed by the High Court with the observation that they may approach Election Tribunal for redressal of their grievance. Concluding para. Therefrom is reproduced hereinbelow for reference:-- "For all these reasons, we are of the considered view that this petition is not maintainable and the petitioners may, if so advised, have redress of their grievances from the competent forum constituted in this behalf. This petition is accordingly dismissed in limine.
3. Learned counsel for the petitioners contend that as polling had taken place according to statements of count, handed over to the candidates by the Presiding Officers, therefore, District Returning Officer, from whom guidance was sought by the Returning Officer for declaration of the result, had no authority to refer the matter to the Election Commission. According to him it is not necessary that a turn over of the votes must be on the higher side to hold that election had taken place without any disturbance and minimum number of votes, which have been cast by the voters, are to be taken into consideration for compiling the result. Learned High Court erred in law in holding that remedy is available to the petitioners to approach Election Tribunal, because Election Tribunal would assume jurisdiction when there is an election dispute after the issuance of notification by the Election Commission. Whereas in the instant case no notification has been issued, therefore, no election petition would be competent.
4. On the other hand learned counsel for the respondents contended that disturbance had taken place at the polling stations as per the parawise comments, which have been filed by the Returning Officer before this Court on 20th September, 2005, therefore, in such situation R.O. Is not bound to declare the result.
5. Learned Assistant Advocate-General supported the order of the High Court.
6. We have heard the parties' counsel and have also gone through the relevant documents so made available. It is to be observed that the letter No,280, dated 31st August, 2005 addressed by Imran Khurshid (Returning Officer) to District Returning Officer, Pattoki is important. Relevant paras.
Therefrom are reproduced hereinbelow:-- "I have the honour to submit that repolling order was made by your honour at the above said polling station vide Notification No,1853/e-I, dated 6-8-2005, the police and the administration were directed to make all adequate arrangements for holding the polling peacefully. At about 9-00 a.m. I was informed by the Presiding Officers of the concerned polling stations that polling had been interrupted. I talked to the S.D.P.O. And the concerned S.H.O. Police Station Srai Mughal present there. They ensured me that they were going to resume the polling but they failed to do so. The D.P.O. Was also informed by fax that the arrangements are inadequate and the step be taken to resume the polling but no reply was received. At 4-00 p.m. Your honour was informed that the polling was not resumed till then.
' At about 6-30 p.m. Presiding Officer Inam-ul-Haq Arshad and Ikram-ul-Haq arrived and while handed over the result, they narrated ugly situation faced by them throughout the day. They were asked to hand over the statement in writing. At this day opened their bags and handed over the carbon copy of their statements. On query they disclosed that this statement was got dictated by police about polling station at the time of close of polling hours. They further disclosed that one copy of the statement was given by them to the polling agents and the other to the officer of the police. Copies of the statements of the Presiding Officers are annexed herewith."
7. It is important to note that Returning Officer had sought guidance and direction regarding declaration of the result from the District Returning Officer who, instead of giving guidance, referred the matter to the Election Commission of Pakistan. Parawise comments submitted by the Returning Officer before this Court are also important One of the paras. Therefrom is reproduced hereinbelow:-- "The matter was referred to the Secretary, Election Commission of Pakistan by the District Returning Officer, Kasur vide Letter No,1559/E-I, dated 1-9-2005 (Annexure "K") -with the request for placing the matter before the Honourable Chief Election Commissioner to solicit order of his Lordship in this respect so that further action may be taken for re-poll at the said polling stations. The Honourable Chief Election Commission of Pakistan has directed for re-poll at the said two polling stations on 21-9-2005 vide Letter o.F.27(17)/2005/Elec. Dated 13-9-2005.
8. Taking into consideration both the reports of the Returning Officer in juxta-position, it is abundantly clear that there is lot of contradiction. As far as the first report is concerned he had mentioned that D.P.O. And S.D.P.O. Had ensured him that polling will be resumed and in the same report also mentioned that Presiding Officer did not submit report in respect of the disturbance or request for stopping the election except saying that there was ugly position in the polling stations.
It is interesting to note that the report/statement with regard to the disturbance on the polling stations was got prepared by the police as per the version of the Returning Officer in his report.
Contrary to the parawise comments in his report, dated 31-8-2005 he had not referred to the statement of Presiding Officer but mentioned that he was told by S.D.P.O. And S.H.O. That polling had not taken place at the polling stations.
9. From the perusal of these two reports it emerges that in fact polling had taken place as per schedule and result was issued to the candidates by the Presiding Officers, copies of which are available on record. According to which, at one polling station i,e, 1041 total fourteen votes were cast whereas at Polling Station No,1043, thirty votes were polled. Therefore, it would mean that in fact election had taken place and the police, for the reasons best known to them, persuaded the Returning Officer not to declare the result because disturbance had taken place on both the polling stations. There is no independent report of the Presiding Officers, who were incharge of the polling stations, that A disturbance had taken place. Under these circumstances we are of the opinion that the Returning Officer instead of seeking guidance from the District Returning Officer should have declared the result, leaving the parties to approach the Election Tribunal if anyone of them was aggrieved from the same. Essentially under Rule 3(g)(h) of the Election Rules, 2005, Election Commission of Pakistan is competent to pass appropriate order for re-polling in view of circumstances of the case. In the instant matter, we are of the opinion that as correct information was not laid before it, therefore, any order passed by the Commissi n for re-polling would have no legal sanctity. Now we would examine whether findings of the learned High Court are correct that petitioners may approach Election Tribunal for redressal of their grievance. In this context section 150(2) of the Local Government Ordinance, 2001 provides that Election Tribunal shall be competent to decide the election disputes, relating to corrupt or illegal practices or other illegal act alleged to have been committed etc. Since in instant case petitioner are demanding declaration of result at this stage, therefore, they cannot file election petition for seeking relief in view of the provisions of Rule 67 of the Punjab Local Government Elections Rules, 2005.
10. Thus, for the foregoing reasons the petition is converted into appeal and disposed of, leaving the parties to bear their own costs.
11. Returning Officer who is present in Court, is directed to declare the result of the election without any further delay on or before 29th September, 2005 enabling the Election Commission to issue the notification as early as could be possible.
12. Needless to observe that observations made hereinabove are tentative in nature and would not cause prejudice to the case of either of the parties if the matter is placed before the Election Tribunal