MUHAMMAD MUZAMMAL KHAN, J. --- Instant constitutional petition prayed order dated 31.8.2005 passed be the Chief Election Commissioner (respondent No, 1 to be declared illegal, void and of an legal consequences, whereby re-poll of polling stations Nos, 1 and 11 of Union Council-56, District Sheikhupura, was directed.
2. Petitioners contested the local bodies election's held on 25.8.2005 for the offices of Nazim/Naib Nazim of Union Council-56, Bahuman, District Sheikhupura. Constituency of Union Council-56, Bahuman was allocated 11 polling stations. One the election day voting was reportedly interrupted at polling stations Nos, 6, 7 and 9 and the Returning Officer on 25.8.2005 ordered re-poll of these three polling stations. Respondents Nos, 4 and 5 who were opposing candidates of the petitioners having secured comparatively less votes on polling stations Nos, 1 and 11, as petitioners belong to these areas. moved an application on 30.8.2005 before the Chief Election Commissioner praying re-poll on these polling stations, on the ground that general percentage of votes had been very high on these polling stations of the constituency as against others. .The Chief Election Commissioner requisitioned a report from the District Returning Officer, who un his turn supported the stance of respondents Nos 1 and 5 and consequently re-poll on these two polling stations was also ordered on 31.8.2005. Petitioners being aggrieved of the order of re-poll by the Chief Election Commissioner, filed instant constitutional petitioner. Respondents in response to notice be this Court have appeared and vehemently opposed the petition and refuted the arguments of the learned counsel for the writ petitioners, as re-poll on polling stations Nos, 1 and 11 was suspended through interim order dated 7.9.2005.
3. We have heard the learned counsel for the parties and have examined the record. Undisputedly, District Returning Officer through his general order No,1566/E-6, dated 26.8.2005 had directed re- poll in all categories of seats at different polling stations in different constituencies including Union Council-56, Bahuman, requiring re-poll at polling stations Nos, 6, 7 and 9 only It is also not disputed by the respondents during the hearing of this petition that there had been no complaint of rigging the election interruption/obstruction of voting or any kind of mismanagement at the polling stations Nos, 1 and 11. The District Returning Officer in his report/parawise comments furnished to the Chief Election Commissioner vide letter No 267-D, dated 3.8.2005 had specifically mentioned. that Presiding Officers or Returning Officer had not reported any incident of firing, kidnapping or use of bogus ballot papers etc. at the polling station Nos, 1 or 11 of the constituency in question. He simply recommended re-poll on these polling stations on the ground that turn up of the votes being 70/80", was abnormal. In the above narrated factual backdrop, we will have to look into relevant provisions of Punjab Local Government Elections Rules, 2005, where-under re-poll could have been ordered and that being Rule 25 is reproduced for ready reference/convenience, as under:--- "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:---
(1) 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 the polling 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 poll, 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 stations 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 held.
(4) Where a fresh poll is held under sub-rule (3) at a polling station, all voters entitled to cast their vote shall be allowed to vote but the votes cast earlier at the poll so stopped under sub-rule (1) shall not be counted; and the provisions of the Ordinance and these rules shall apply to such fresh poll."
A bare study of above reproduced Rule revealed that Presiding Officer was to stop the poll and was to inform the Returning Officer of his having done so, in case the poll at his polling station had been interrupted/obstructed for the reasons beyond his control and the same could not be-resumed during the polling hours already fixed OR any ballot box used at the-polling' station is unlawfully removed or is accidentally/intentionally destroyed, lost, damaged or tampered to such extent that result of the poll could not be ascertained. None of these incidents took place on, any of the polling stations Nos, 1 and 11 and at the same time, so such report was remitted to or received by the Returning Officer/District Returning Officer. Under sub-Rule (2) of Rule 25 (ibid) the Returning Officer was to immediately report to the District Returning Officer, had any -such incident taken place, who then was to direct fresh poll, by evaluating the matter within the parameters fixed thereunder. There was no other provision in the Punjab Local Government Elections Rules, 2005 equipping the Chief Election Commissioner or the District Returning Officer to direct re-poll on all or any of the polling stations, but in the given circumstances none of the pre-requisites of Rule 25 occasioned for an order of re-poll.
4. In absence of any interruption/obstruction in the poll or removal/damage of ballot boxes re-poll could not have been ordered merely on the ground that vote turn up, at these police stations had been abnormal. Since the law - applicable has not prescribed any average of turn up of votes, re- poll on this basis cannot be justified on the basis of any canon known for administration of justice, especially when the same is not covered by the only applicable provision i,e, Rule 25 of the Punjab Local Government Election Rules, 2005. It is amazing that' District Returning Officer in his report dated 30,8.2005 reported to the Chief Election Commissioner that turn up of votes on these polling stations had been more than 70/80% which shows that he was not aware of exact difference of cost of votes at different polling stations. We have examined with great interest, average of cast of votes at' different polling stations and noted that it was slightly on higher side on both these polling stations but it could be for many other reasons, including the one urged by the petitioners that they bail from these areas and their following was much more than the respondents Nos, 4 and 5. First order of re-poll by the District Returning Officer dated 26.8.2005 cannot also be lost sight of as he did not order re-poll on polling stations Nos, I and. II, at that time.
5. For the reasons noted above, we are of the considered view that matter of re-poll at polling stations Nos, I and II of Union Council-56, Bahuman, District Sheikhupura, was not covered by Rule 25 of the Punjab Local Government Elections Rules,. 2005 and the same could not have been ordered especially after the order of District Returning Officer dated 26.8.2005, thus this petition is bound to succeed and the same is accordingly accepted with the result that the order of re-poll dated 31.8.2005 passed by the Chief Election Commissioner of Pakistan as declared to be void and writ as prayed is issued, with no order as to costs.