SYED SHABBAR RAZA RIZVI, J.---The learned counsel for the petitioners submitted that in Local Bodies Election for the post of Nazim and Naib Nazim of Union Council No.. 32, Gakhar, Tehsil Wazirabad, both the petitioners were declared as returned candidates. However, an election petition was filed on 21-09-2005 by respondents Nos. 2 and 3. After filing election petition an application for recounting was filed on 10-12-2005 by respondent No. 2. Recounting was ordered by the learned Election Tribunal on 24-01-2006. The said order of recounting was challenged before this Court through Writ Petition No. 969/2006 which was dismissed on 28-03-2006. After dismissal of the above-mentioned writ petition recounting was conducted on 27-04-2006. As a result of the said recounting the respondents Nos. 2 and 3 were declared as returned candidates. The petitioners challenged the proceedings of the recounting and order of.The learned Tribunal passed on the basis of recounting, being violative of law and rules.
2. The learned counsel submitted that in the given circumstances, the recounting was not required under the law and rules. He further submitted that order of recounting was passed at pre-mature stage as written reply to the election petition had not been filed by, but the order of recounting was passed on 24-01-2006. The written statement was filed on 29-04-2006. The learned counsel submitted that the application did not mention any specific , ground for the recounting. It only stated that the contents of application should be read with the contents of election petition, and if recounting was conduced it would save the precious time of the learned Election Tribunal. In ground "C" of the Election Petition it was alleged that agents of respondents Nos. 1 and 2 (petitioners) case invalid and bogus votes in their favour, in connivance of the Presiding Officer and the staff, nor rubber stamp was affixed on back side of ballot papers. The learned counsel further drew my . Attention to ground " "F" which disclosed that votes cast in favour of Nazim and Naib Nazim were declared 4627, for other categories i.e. Minority communities 4304, therefore, there was difference of 323 votes in the above-mentioned C.L.R. two categories." The learned counsel submitted that there were eight polling stations in the constituency but bags for recounting were summoned from four polling stations. The learned counsel pointed out that the seals on election bags of Normal High School (Male) were partially found broken. Another bag (blue) was found without any seal. The learned counsel also pointed out that the election bag of Normal High School (Female) was also found with partially broken seal.
The learned counsel submitted that votes after 'recounting from Normal High School were declared in favour of petitioner as 229, instead of 381 votes declared prior to the recounting. The learned counsel referred to rule 35(6) of the Punjab Local Government Elections Rules, 2005 which reads as under:--- "The valid ballot papers cast in favour of each contesting candidate shall be put in separate packets and each such packet shall be sealed and shall' contain a certificate as to the number of ballot paper put in it and shall also indicate the nature of the contents thereof, specifying the name and symbol of the contesting candidate to whom the packet relates."
3. The learned counsel also referred to 1991 CLC 180 at page 184 side line "A". He further refer to Rule 36(3) which reads as under:--- "Before consolidating the results of the count, the Returning Officer shall examine the ballot papers excluded from the count by the Presiding Officer and if he finds that any such ballot paper should not have been so excluded, count it as a ballot paper cast in favour of the contesting candidate for whom the vote had otherwise been cast."
4. The learned counsel finally pointed paras. 4 and 5 of the impugned order. In addition to the above, learned counsel relied upon orders delivered in Writ Petition . No. 1/06 which has been upheld in ICA 47/06.
5. The learned counsel for respondents Nos. 2 and 3 submitted that no irregularity or illegality was committed by the Presiding Officer etc. As all polling bags were in the best shape. All envelopes were intact and sealed, however, added that two bags were intact and two were partially broken.
The learned counsel further submitted that recount of four polling stations was conducted in accordance with law. He further stated that ballot papers on which more than one marks of "and rubber stamps" were found, were counted in favour of the petitioners, therefore, the petitioners had no grievance on that count. The learned counsel referred to rule 78. According to him, this rule is attracted when failure of any person to comply with the provision of the Ordinance or the Rules is established. He further submitted that facts of the present case are distinguishable from facts and circumstances of Writ Petition No. 1758/2006 already decided by this Court.
6. I have heard the learned counsel at length and also perused the documents on the file from both sides. l have also carefully studies the relevant rules on the subject.
7. The learned counsel for the petitioners stated with emphasis that invalid votes were counted in favour of respondents Nos. And 3 with connivance of the Presiding Officer. In this regard, he categorically pointed out that on some ballot papers no mark of "said rubber stamp" was affixed or had more than some marks yet were counted as valid votes. He further submitted that there were eight polling stations in the constituency but only bags of four polling stations were summoned.
Even out of these four polling stations, sea* on election bags of Normal High School (Male) were partially found broken. Another bag was found without any seal or partially found broken. Likewise, seals on election bags of Normal High School (Female) were also found partially broken. According to him, on his polling station after recounting votes of the petitioners were decreased from 381 to
229. The above illegality or the factual position cannot be countenanced in the presence of C.L.R. provisions of rule 35(6) of the Punjab Local Government Elections Rules, 2005.
8. To the above contentions, the learned counsel for the respondents Nos. 2 and 3 submitted, as noted above" that only two bags were found partially broken. The learned counsel for respondents Nos. 2 and 3 also stated that ballot papers on which more than one marks of and rubber stamp were found were counted in favour of the petitioners. So the learned counsel for the respondents Nos. 2 and 3 did not entirely disagree with the learned counsel for the petitioners, he only disagreed whether any loss was caused or not by the above violation of the rule 35(4)? Rule 35(6) clearly requires as following:---
(i) the valid ballot papers cast in favour of each contesting candidate shall be put in separate packets;
(ii) each such packet shall be sealed; (i.e) each packet shall contain a certificate as to the number of ballot papers put in it; and
(iv) such certificate shall indicate nature of the contents thereof, specifying the name of the symbol of the contesting candidate to whom the packet relates.
9. Similarly, rule 35(4) requires that the presiding officer shall:- (I)
(ii) (i.e) - Count the votes cast in favour of each contesting candidate excluding from the count the ballot papers, which bear:---
(a) no official marks;
(b) any writing or any mark other than the official mark and the mark of marking and rubber stamp or to which a piece of paper or any other object of any kind has been attached; and
(c) no mark of marking and rubber stamp -indicating the contesting candidate for whom the voter has voted.
10. The contention of the learned counsel for the respondents Nos. 2 and 3 that seals as well as bags of the polling stations were only partially broken cannot be accepted in defence of the impugned order as no such distinction or conversion has been made by Rule 35, which requires a strict compliance. Likewise, Rule 35(4) does not permit counting of ballot papers in favour of any candidate if it contains more than one marking of the rubber stamp or no marking at all. Therefore, the contention of the learned counsel for respondents Nos. 2 and 3 that such ballot papers were cast and counted in favour of the petitioners has no legal effect and clearly indicates that the polling staff at such polling station failed to perform their functions as required under the Punjab Local Government Elections Rules, 2005. Rule 35(6) clearly requires that each packet shall he sealed , and contain a certificate as to the number of ballot papers put in it and shall also indicate the nature of the contents thereof. The arguments of the learned counsel failed to point out that such certificate were found from the packets prepared by the Presiding Officer. A judgment of a Division Bench of this Court has already dealt with these points reported as Malik Munawar Khan v.
Election Tribunal District Judge, Lahore (1991 CLC 180) and another recent judgment to this Court Ghulam Mustafa Gujjar v. Election Commission of Pakistan. Writ Petition No. 1758/06.
11. Rule 43 of the Punjab Local Council (Election Petition) Rules, 1979 was in pari materia with Rule 35 of the Punjab Local Government Elections Rules, 2005. The learned Division Bench held as below:--- "From this it was sufficiently clear that the-record was neither properly maintained nor sealed as required by Rule 43 of the Election Rules which required that the packet containing the said record was to be sealed and an endorsement was to be made on each packet regarding the description of its contents date of election to which the contents related and the name and number of electoral unit for which the election was held. The bag containing the said record was also found to have been torn about the size of one "balishat". In these circumstances in our view this record and the counting of the votes on its basis could not form the basis for declaring the deletion of returned candidate as void as it could safely be concluded that the same was tampered' with."
12. On the other hand, the impugned order dated 04-05-2006 indicates that learned Election Tribunal did not give any finding. Or even discussed the above issues raised by the parties at all.
Whereas, Rules 75 to 78 provide sufficient guidance in present context. According to Rule 78 of the Punjab Local Government Election Rules, 2005 failure of any persons to comply with the provisions of the Ordinance or these rules provide ground to declare election as a whole void. The learned Election Tribunal as well as the learned counsel for 'respondents Nos. 2 and 3 himself pointed out partial broken seals of bags of Normal High School (Male) and Normal High School (Female), therefore, I have no doubt in my' mind that provisions of Rule 45(4) and (6) have not been considered judicially by the learned Election Tribunal, thus, the impugned order is not enable.
13. In view of the above reasons, this writ petition is allowed and the impugned order of the learned ElectionTribunal dated 04-05-2006 is set aside. The election of Union Council No. 32/3 Urban Ghakhar is declared as a whole void. The concerned Election Authorities are directed to make arrangement for fresh election as required under the law and rule.