' SYED ASGHAR HAIDER, J.---The petitioner contested the elections for the Local Bodies on a seat for General Councillor in Union Council No,12, Kala Bagh, Tehsil Esa Khel, District Mianwali, he secured 39 and 21 votes from Polling Stations Nos. 6 and 7 whereas respondent No,7 secured zero vote from the said polling stations, after count the petitioner was declared as a returned candidate. After consolidation of result respondent No,7 filed an application before the Returning Officer for rechecking and recounting, it was dismissed. Thereafter notification of the petitioner as returned candidate was issued. Respondent No,7 filed an election, petition before the Election Tribunal.
Mianwali, inter alia, stating that he secured 98 votes from Polling Stations Nos.6 and 7, a statement was issued to this effect by the Presiding Officer but when the result was consolidated it reflected that he obtained nil votes. The petitioner contested the election petition, of the divergent pleading of the parties the following issues were framed:--
(1) Whether this election petition is liable to be dismissed for noncompliance of the legal requirement? OPR-6.
(2) Whether in the statement of the count prepared by the learned Returning Officer had incorrectly shown zero votes polled in petitioner's favor qua polling stations Nos.6 and 7 of Union Council No,12 and thus petition was illegally not shown to a returned candidate? OPA.
(3) Relief.
' The parties led their evidence, after recording the evidence and hearing the parties the Tribunal accepted the petition and respondent No,7 was declared as elected candidate. Aggrieved thereof the present petition.
2. Learned counsel for the petitioner contended that the impugned judgment is not in consonance with law, election petition emanates of a special law and has to be made in the format ascribed in Rules 66 and 67 of the Punjab Local Government Elections Rules, 2005, the Tribunal is required to follow the procedure ordained under Rule 71 and can only grant relief as contained in Rule 78, the present petition was not in the format ascribed, it was merely an application for recount, the grounds also are not seeking declaration of annulment of election, but mere recount, therefore, the Tribunal exceeded its authority while declaring respondent No,7 as elected candidate. He relied on Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others (PLD 2005 SC 600)..
3. Learned counsel for the respondent contended that the parties were fully aware of the dispute, after perusing the contents of theelection petition and the reply tendered, thereto issues were formulated and thereafter for all intents and purposes the legal requirements stood fulfilled. Even otherwise the tribunal is required to follow the procedure ordained in the Code of Civil Procedure, 1908, and it is wide enough to cover the present petition under Rule 76(c) if the election of the returned candidate has been procured by an illegal practice, it can be declared void.
4. I have heard the learned counsel for the parties and perused the impugned judgment, it is clear from the contents of the election petition that it is not in consonance with the format ascribed; however, it is equally clear that the petitioner did not take clear and unambiguous exception to the maintainability of the petition. A clear and specific objection to this effect is not on record, though a vague reference has been made that the petition is not in consonance with Rule 65, therefore, it is not maintainable, but Rule 65 merely states that election can be called in question by filing an election petition, the requirements of an election petition and the time frame in which it is to be filed, thus, the petitioner took exception to maintainability of election petition on the touchstone of these requirements. This position is further fortified from the fact that when issues were framed no specific issue qua Rule 67 was got framed. Thereafter the parties led evidence and during the whole trial no endeavor was made to get the issues amended and the effect of noncompliance of Rule 67 determined. Arguments were also addressed on these issues and no other, point was urged, therefore, the 'parties were fully aware of the dispute, the matter was tried as an election petition on merits and not as an application for recount, the grounds of this petition clearly reflect also that the petitioner termed the pendency of he proceedings before the Election Tribunal as an Election petition, there is repeated reference to this effect in the present petition, especially para, 4 even if all objections raised are accepted, the Tribunal is required to follow procedure ordained in C.P.C., therefore, it is bestowed with powers to rectify a procedural deviation. Issue No,2 confined the dispute of the parties, they led detailed evidence in this context, the Tribunal also summoned the record, and thereafter rightly concluded that there was an error in the consolidated statement.
The respondent obtained 98 votes from Government Girls High School Kala Bagh, the Presiding Officer issued statement of count to this effect, unfortunately an error crept into record at the time of consolidating the result and by B inadvertence it reflected, that the respondent had obtained zero vote from the polling stations referred. If these 98 votes are counted to the votes obtained by the respondent he gets 349 votes, so he clearly qualifies and succeeds. De novo offer for recount was made by the respondent but was declined by the petitioner; this in fact proves that petitioner does not expect a favorable result. The election petition reflects that thepetitioner has sought recount and also a declaration to his success, he has successfully established that he has won the election, therefore, the matter falls within the ambit of Rule 76, and the Tribunal is, empowered under Rule 77 to declare the respondent No,7 as successful, thus there is no irregularity in this context. Election is a process to determine the will of the people, mere procedural deviation and irregularities cannot defeat C the will of the electorate, there is preponderance of evidence to establish that the respondent obtained a clear majority and was, therefore, elected. The other grounds raised by the learned counsel for the petitioner were not urged before the Tribunal, therefore, they cannot be permitted to be raised now. The precedent referred to by the learned counsel for the petitioner is distinguishable on facts. Resultantly, this petition has no merits and is dismissed.