' MUHAMMAD JEHANGIR ARSHAD, J.---Through this writ petition, the petitioners who are candidates for the office Nazim and Naib Nazim from Union Council No,47 Tehsil and District Rahim Yar Khan seek quashment of the order dated 26-7-2005 passed by District Returning Officer whereby appeal filed by Samiudin Mazari and Muhammad Akram respondents Nos.2 and 3 against rejection of their Nomination Papers for the abovesaid election by the Returning Officer on 24-7-2005, was allowed and their Nomination Papers were restored.
2. The facts briefly stated are that during scrutiny the petitioners raised an objection to the effect that as the vote of Muhammad Akram respondent No,3 at Serial No,443 of the Electoral Roll of the said Union Council was entered on 30-6-2005 and also through forgery and manipulation, hence the said respondent could not be considered as a valid voter of the said Union Council on the date of Nomination therefore, his as well as the Nomination Papers of his other panellist Smaiuddin respondent No,2 be dismissed. The Returning Officer after hearing arguments of both the parties, recording his findings as "Record speaks that when the Election Commission Office, Rahim Yar Khan, sent the record of Union Council No,47 in which the last entry was 442. Later on, Entry No,443 was placed on file after the verification by Assistant Election Commissioner, Rahim Yar Khan. During course of arguments, candidate Mr. Samiuddin Mazari, Advocate and Mr. Muhammad Akram themselves admitted that Vote No,443 of said Muhammad Akram was enlisted by Election Commission Office, Rahim Yar Khan on 30-6-2005. This factum is quite strange and needs consideration. That after the preparation of revised lists as per law required, how Assistant Election Commissioner, Rahim Yar Khan can enrol further vote. This practice is totally against existing laws because after the closure of revising period and specially after the pronouncement of election schedule at least Assistant Election Commissioner, Rahim Yar Khan has no authority to enroll the new voter. Moreover, according to record, on front page of voter's list of Union Council No,47 only 442 male voters have been shown. I have also perused the concerned polling scheme which bears the same number of 442, male voters. All these facts speak that the enrolment of Mr. Muhammad Akram against Sr.
No,443 in concerned electoral roll is strongly doubtful as this practice should not be appreciated.
Consequently, nomination form in hand stands rejected."
' The respondents Nos.2 and 3 being aggrieved of the above order of the Returning Officer filed an appeal before the District Returning Officer which was allowed vide the impugned order dated 26- 7-2005, the order of the Returning Officer dated 24-7-2005 was set aside and Nomination Papers of said respondents Nos.2 and 3 were restored. This order of the District Returning Officer is now sought to be quashed through this writ petition.
3. Sardar Muhammad Hussain Khan, Advocate representing the petitioners contends that if without conceding, the entry of respondent No,3's vote on 30-6-2005 is admitted as correct, even then, since the schedule for the election of Local Bodies was also announced on the same day and in terms of section 5(3) of the General Clauses Act the said schedule would be deemed to have taken effect from the preceding midnight of the said date, whereas the said vote must have been entered during the office hours on 30-6-2005, so the same could not have been entered being later in time of the announcement of the schedule, hence he could not have been considered as a validly enrolled voter on the said date. In support of his contention about section 5 of the General Clauses Act, the learned counsel has placed reliance on the case "Muhammad Akram Nizami v.
Government of the Punjab and others" (1997 M LD 2489). He further submits that the polling scheme relating to the said Union Council till date did not contain the newly added vote of said respondent at Serial No,443 and according to the polling scheme the last vote is at Serial No,442, hence incorporation of respondent's vote at Serial No,443 appears to be a forged entry. Further it is argued that all the proceedings for transfer/inclusion of vote of respondent No,3 were conducted in a slipshod manner, haphazardly, collusively and without adopting the proper procedure required under rule 9 of the Electoral Roll Rules, 1974, under which transfer/inclusion of vote could only be possible through a prescribed Form accompanied by an affidavit but in the instant case entire proceedings were conducted on an application written on a simple paper not supported by any affidavit without proper inquiry about residence or property, etc. Of respondent No,3 in the said Union Council which was the basic requirement for said purpose. Learned counsel argued that respondent No,3 was already enrolled in the Electoral Roll of Mouza Abdul Rahim and his vote still exists in that Electoral Roll and has not been deleted after inclusion/transfer of his vote in the current electoral area. It is thus inferred that while transferring vote of respondent No,3 the provisions of rules 11(4) and 25 of the Electoral Roll Rules, 1974 were violated, hence inclusion/transfer of said respondent's vote was neither legal nor with lawful authority; therefore, his Nomination Papers were rightly rejected by the Returning Officer and wrongly restored by the District Returning Officer vide the impugned order.
4. On the other hand, learned counsel appearing on behalf of the contesting respondents argued that application for transfer/inclusion of vote of respondent No,3 was moved on 18-6-2005 i.e, 12 days before announcement of the schedule, the same was ultimately allowed by the Competent Authority on 25-6-2005, meaning thereby, the respondent No,3, had to be considered as a validly enrolled voter of the electoral area in question from the date of 25-6-2005 and since the schedule was announced 'on 30-6-2005, the order of the Registration Authority dated 25-6-2005 for inclusion of respondent's name was validly passed and if in the Electoral Roll the entry was made on 30-6-2005 it was not the fault of the respondent but due to the act of public functionary, for which respondent could not be penalized. Learned counsel further argued that it is an established principle of law that act of a public functionary should not prejudice any person, as held by the Hon'ble Supreme Court of Pakistan in the case reported in PLD 2003 SC 808. He has further contended that requirement of submission of application on requisite Form supported by an affidavit is only meant where there is regular reversion of the Electoral Roll but in case of any revision required in the existing Electoral Roll, application on simple paper is sufficient in terms of section 18 of the Electoral Roll Rules, 1974. Lastly, it is submitted that although it is the requirement of section 20 of the Electoral Roll Rules, 1974 that no revision or correction of any Electoral Roll for an electoral area can be made after the announcement of the schedule yet if the correction is made earlier to the announcement of the schedule, the same would be considered as valid correction and not in violation of the said section. To support his contention the learned counsel has placed reliance on the case "Saleem Zia v. Lt. Col. (Retd.) Mojib, Director Technical, Defence Housing Authority and 2 others" (1988 CLC 533).
5. I have considered the arguments of learned counsel for the parties and perused the relevant record including the documents produced by the Assistant Election Commissioner, concerned.
6. A perusal of the original application submitted by respondent No,3 indicates that said application was filed on 18-6-2005 when nobody even had slightest idea of publication of schedule on 30-6-2005. It was processed and finally order was passed on 25-6-2005. On Court query as to why vote of respondent No,3 was not entered in the Electoral Roll till 30-6-2005, the Assistant Election Commissioner, present in Court submitted that due to want of facilities in copying the said vote in the voters list and also due to rush of work in his office, as he had also to issue certificates of their Electoral Roll to the contesting candidate for different Union Councils, the same could not be entered in time. However, he has denied the allegation that vote of said respondent was incorporated in the list after announcement of election schedule in order to extend unlawful benefit to him. Even otherwise, this being a question of fact, this Court while sitting in constitutional jurisdiction is not supposed to substitute the same by giving its own findings without recording evidence which is neither reasonable nor possible at this stage. Mere fact that vote of respondent No,3 was entered at Serial No,443 i.e, at the bottom of the Electoral Roll, is not sufficient to doubt its genuineness/validity, especially when the same has been entered on a separate Form only meant for newly added votes. Had it not been entered separately, some doubt could have crept in one's mind but in the present situation the said entry cannot be questioned.
7. The case-law referred to by the learned counsel for the respondents, though supports the case of the respondents yet the said question is kept pending for the decision of the Election Tribunal at an appropriate stage and no findings as to whether the said vote of respondent No,3 was validly entered in the Electoral Roll on or before 30-6-2005 i.e, the dice on which election schedule was announced. At present this writ petition cannot succeed for the simple reason that same involves disputed question of fact which factual controversy can only be determined after recording of elaborate evidence which is not possible in present proceedings being summary in nature.
Reliance is placed on the case reported in (2003 SCM R 1848).
8. The upshot of above discussion is that this writ petition has no force and is dismissed. However, it is made clear that the findings/observations recorded in this order are purely tentative and would have no binding effect on the Election Tribunal. If, ultimately any Election Petition is filed, in such an eventuality the Election Tribunal would be free to decide the points raised in the said Election Petition on the basis of evidence led before it by the parties and uninfluenced by the order passed in the present proceedings either by the Returning Officer, District Returning Officer or by this Court in the instant writ petition.