' MUHAMMAD MUZAMMAL KHAN, J.---This judgment proposes to decide two constitutional petitions, one in hand and the other Writ Petition 6730 of 2006 filed by respondents Nos. 2 and 3, as both of these raise similar questions of law/facts; require similar determination and arise out of one and the same judgment by the Election Tribunal, dated 17-6-2006, directing re-poll at Polling Station No,7 of Union Council-65, Shadiwal, District Gujrat. According to the petitioners, re-count of ballot papers and re-poll has incorrectly been ordered and they should have been allowed to continue with their offices, whereas respondents Nos. 2 and 3 in their writ petition prayed that they should have been declared as returned candidates on the basis of re-count of ballot papers and there was no necessity of re-poll.
2. Succinctly, relevant facts are that the writ petitioners (Parvez Bashir Warraich and Javed Aslam Warraich) contested the local bodies elections held on 25-8-2005 to the offices of Nazim/Naib Nazim of Union Council-65 Shadiwal, District Gujrat against respondents Nos. 2 and 3 (Qalb Hussain and Ch. Nasrullah Khan) and respondents Nos.4 and 5. The Returning Officer prepared the consolidated statement in Form-XV according to which, petitioners were declared as returned candidates with 2731 valid votes, whereas their adversaries (respondent Nos.2 and 3) were shown to have secured 2644 votes and the other set of contestants (respondents Nos. 4 and 5) could get only 165 votes. The Returning Officer concerned transmitted his consolidated result to the District Returning Officer/Election Commission of Pakistan for notification under the relevant provisions of Punjab Local Government Ordinance, 2001. Respondents Nos. 2 and 3 being not satisfied with the consolidation of result by the Returning Officer/District Returning Officer, approached the Election Commission of Pakistan and successfully obtained an order of re-count of ballot papers but earlier to its implementation, the same was recalled through a general notification, dated 3-9-2005 as the Election Tribunals had been notified by that time. Respondents Nos. 2 and 3 then filed an election petition before the notified Election Tribunal (respondent No,1) with the prayer that recount of ballot papers may be ordered/done. The election petition was withdrawn on 14-9-2005 on the ground that it suffered from some legal infirmities and permission to file a fresh petition was allowed. Respondents Nos.2 and 3 on 21-9-2005 filed fresh election petition and raised allegations of corrupt/illegal election practice by the petitioners during the course of election.
3. Petitioners opposed the election petition by filing their written reply, wherein they refuted the assertions made by respondents Nos. 2 and 3. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. During the course of recording of evidence, respondents Nos. 2 and 3 moved an application for re-count of ballot papers under the orders of the Election Commission of Pakistan which was contested by the petitioners with reference to notification, dated 3-9-2005. The Election Tribunal ultimately accepted application of respondents Nos. 2 and 3 and ordered re-count of ballot papers, requiring production of concerned polling bags on 22-3-2006. Petitioners filed Writ Petition No,2652 of 2006, which was accepted by this Court on 15-5-2006 and order of re-count of ballot papers, dated 14-3-2006was adjudged, allowing the Election Tribunal to pass any such fresh order after conclusion of evidence of the parties. In the post remand proceedings, evidence of the parties was recorded and re-count was again ordered/done but in view of theft of 235 ballot papers no definite result at Polling Station No,7 could be given, re-poll to its extent was ordered through impugned judgment, dated 17-6-2006. Both the rival parties were not satisfied with the order of re-poll and consequently filed their respective constitutional petitions with the prayers, noted above. Both the parties were represented through their respective counsel and with their concurrence on 3-6-2006 through an interim order passed on C.M.1 of 2006 in Writ Petition No,6730 of 2006, the re-poll was stayed. Both the writ petitions, after completion of record, have now been fixed for final determination.
4. Learned counsel for the petitioners attacking impugned judgment by the Election Tribunal, submitted that once process of polling had completed and the result was consolidated by the polling staff, re-poll could not have been ordered particularly at Polling Station No,7 where the Presiding Officer had prepared his statement of count. He further submitted that in support of the impugned judgment respondents Nos. 2 and 3 were required to make out a case of re-poll, within, the parameters of Rule 25 of the Punjab Local Government Election Rules, 2005. According to him, poll at Polling Station No,7 undisputedly went smooth as there had been no interruption/obstruction at any time during the poling hours prescribed and at the same time, ballot boxes were not removed from the custody of the Presiding Officer. He emphasized that ballot papers were also not destroyed, lost, damaged or tampered, thus in the light of statement of the Presiding Officer (Exh.A.14) promptly made at 11-30 p.m. On 25-8-2005 before the Returning Officer, the impugned order of re-poll and that took with regard to part of the constituency, is not justified.
Reliance was placed on the judgment in the case of Rana Wakeel Ahmed Khan v. Chief Election Commissioner and 9 others (PLD 2004 Lahore 794). Learned counsel for the petitioners further contended that the Election Tribunal while deciding the issue regarding theft of ballot papers fell in illusions, as documentary evidence (Exh.A.14) on the file showing forcible removal of ballot papers after compiling of result in Form XIII was of material significance but remained unattended.
5. Learned counsel for respondents Nos. 2 and 3 refuted submissions of the petitioners and supporting the conclusions drawn by the Election Tribunal regarding consolidation of result, prayed that respondents Nos. 2 and 3 being the runners-up, should have been declared successful in place of the petitioners. He also opposed re-poll at one polling station and submitted that on the basis of re-count done in presence of the parties by the Election Tribunal, there was no otheroption except to declare respondents Nos. 2 and 3 as returned candidates. He assertively argued that petitioners underwent illegal/ corrupt election practices as they had moved an application to the District Returning Officer for change of Polling Station No,1 from Ahmed Boys Primary School, Shadiwal on 17-8-2005 which was rejected the next day but by concealment of refusal to change the polling station, they repeated application before the District Returning Officer and out of misrepresentation, earned order to change of polling station contrary to the polling scheme.
According to him, the voters of the area were not aware of the change of polling station ordered at the back of respondents Nos. 2 and 3. It was also urged that respondents Nos. 2 and 3 had informed the Election Authorities at Gujrat about missing voters list which was provided at 4-30 p.m. On 25-8-2005 to their disadvantage/ prejudice.
6. I have heard the learned counsel for the parties and have examined the record. Earlier order of re-count of ballot papers passed by the Election Tribunal was adjudged by this Court vide judgment, dated 15-5-2006, permitting the Election Tribunal to pass any fresh order after conclusion of evidence of the parties. The Presiding Officer of the Election Tribunal in compliance of judgment by this Court, recorded evidence of the parties and on the basis of material on record, again ordered re-count which was done in presence of the parties and their respective counsel on 8-6-2006. Respondents Nos. 2 and 3 had pleaded in para. 4(v) of their election petition that ballot papers pertaining to Polling Station No,7 at Government Girls Primary School, Shadiwal were snatched/stolen and the matter was reported to the Returning Officer which was confirmed by the concerned President Officer, as well. Petitioners in their written reply took the defence that a packet of ballot papers had been snatched after the count and preparation of statement by the Presiding Officer showing 437 valid votes in their favor and 261 valid votes in favor of respondents Nos. 2 and
3. Respective pleadings of the parties clearly depict that certain ballot papers were really snatched and in presence of these averments the question which hinged for determination was as to whether result at Polling Station No,7 was materially effected or not? The re-count of ballot papers done by the Election Tribunal on 8-6-2006 spelled out that 735 votes were cast at the polling station in question out of which 236 valid votes of respondents Nos. 2 and 3 were available whereas 264 valid votes of the petitioners were found in the election record which means that 235 ballot papers for the offices of Nazim/Naib Nazim were missing. In the original consolidated statement of the Returning Officer there was a difference of 87 votes between the contestants and non- availability of 235 votes materially affected the result of the election. Mufti Muhammad Arshad, Presiding Officer of Polling Station No,7 hadappeared before the Returning Officer on 25-8-2005 and reported snatching of packets containing ballot papers by certain unknownvagabonds/rascals. This statement was recorded at the back of respondents Nos. 2 and 3 but they did not object when a certified copy of it, was tendered in evidence as Exh.A.14, thus cannot be excluded from consideration, as per law laid down by the Apex Court in the case of Malik Din and another v. Muhammad Aslam (PLD 1969 SC 136). Exh. A.14 reveals that Polling Agent of Parvez Bashir Warraich/ petitioner No,1 after the occurrence, managed to get back certain envelopes but in spite of it, certain votes were not brought back to the custody of the Presiding Officer. This statement of Presiding Officer goes a long way to support the conclusions drawn by the Election Tribunal in the impugned judgment. Besides it, F.I.R.No, 541, dated 31-8-2005 (Exh.A.1) registered under the orders of Returning Officer is reproduction of statement of the Presiding Officer (Exh.A.14) but none of the parties opted to produce him in the witness box to negate the narrations in his statement before the Returning Officer on 25-8-2005. As regards attack of the parties to the order of re-poll at Polling Station No,7 their reliance on Rule 25 of the Punjab Local Government Elections Rules, 2005 is not only unwarranted but is also misplaced. The rule relied only deals within the powers of the Returning Officer to direct fresh poll at the poling station where the poll was interrupted/ obstructed for the reasons beyond the control of the Presiding Officer or ballot boxes were taken out of the custody of the Presiding Officer or were destroyed accidentally/ intentionally or the ballot papers were damaged/tampered. This Rule does not envisage or restrict unbridled powers of the Election Tribunal to direct re-poll at any or all polling stations, if inevitable on the basis of evidence on the file. Reference to Rules 75 and 77 of the Rules, 2005 in support of the claim of respondents. Nos. 2 and 3 for declaring them as returned candidates in place of the petitioners was of no help to them, as election of the returned candidates/writ petitioners was not declared void by the Election Tribunal and after re-poll at Polling Station No,7, the Returning Officer shall prepare fresh consolidated statement in Form XV appended with the above referred Rules which will decide who out of the contestants, are the returned candidates. My analysis is that the Election Tribunal rightly ordered re-poll at Polling Station No,7 in presence of 235 missing votes and in absence of any proof of the fact that how and from where Parvez Bashir Warraich petitioner No,1 managed to bring back the snatched packets containing ballot papers and without there being any evidence that those ballot papers were brought back intact. Judgment in the case of Rana Wakeel Ahmed Khan( supra) relied by the learned counsel for the petitioners proceeds on altogether different facts and has no applicability to the instant case because in the precedent case. District Returning Officer had exercised his powers under Rule 29(2) ofthe Punjab Local Government Elections Rules, 2000 which is equivalent o Rule 25 of the Punjab Local Government Elections Rules, 2005, whereas in the instant case re-poll has been ordered by the Election Tribunal and the Rule relied or any other provision of the law applicable, does not restrict invocation of this power by the Election Tribunal. Scan of record and impugned judgment revealed that controversy was correctly put to rest without committing any error of law/facts.
7. For the reasons noted above, no case for interference in constitutional jurisdiction of this Court was made out.Even otherwise, lawful decision within the ambit of conferred jurisdiction cannot be substituted on both these petitions, which being devoid of any merit, are dismissed with no order as to cost.