MAULVI ANWARUL HAQ, J. --- The petitioner' contested elections to a National Assembly seat in NA- 69 Khushab, District Khushab. At the close of polls, the respondent No. 4 was declared returned with 61076 votes with the petitioner following in second position with 60443 votes. In the writ petition, several allegations have been made , as to commission of illegal and corrupt practices on the election day by or at the behest of respondent No. 4. Illegalities allegedly committed by the Returning Officer in the course of consolidation of the results have also been pointed out. The respondent No. 4 has put in appearance through her learned counsel in response to a notice issued to her and has filed a written statement denying the said allegations.
2. Learned counsel for the petitioner in the very beginning have stated that for the purposes, of this Writ-petition, they will be restricting their submissions to some illegalities, according to them, patent on the face of the record, committed by the R.O. And to confine their prayer to .a direction to the Election Commission to examine the record which according to the learned counsel would be sufficient to enable the respondent No. 1 to pass orders as envisaged in Section 103-AA of the Representation of People Act, 1976. They have taken us through the result statements prepared by the Presiding Officers in juxta position to the consolidated statement of results prepared by the R.O.
To point out several discrepancies therein. According to them, several hundreds of votes have been shown as rejected in the said consolidated statement whereas no such vote is depicted in the statements prepared by the P.Os. Primary reliance has been placed on the cases of Faqir Abdul Majeed Khan v. District Returning Officer and others (2006 SCMR 1713) and Muhammad Ayub v.
Election Commission of Pakistan, Islamabad and 7 others (PLD 1991 Quetta 51).
3. Learned counsel for respondent No. 4, on the other hand, contends that the documents being relied upon to question the consolidated statement prepared by the R.O. Are not admissible per se and reference cannot be made to the said documents without their production and proof in accordance with law governing the production -and admission of evidence. He also draws our attention to the result of the election held in 2002 to demonstrate that, the percentage of the rejected votes is almost similar. The primary contention of the learned counsel is that since the results have been notified and Election Tribunals have been constituted, several allegations raised in the writ petition including those pressed at the bar can be gone into only by the said competent Tribunal. According to him, even the allegation as to violation of the mandatory provisions of the said Act of 1976 can be taken cognizance of only by the said Tribunal. He relies on the cases Of Ch. Nazir Ahmed and others v. Chief Election Commissioner and -4 others (PLD 2002 SC 184) and Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396)
4. We have gone through the writ petition and the several documents accompanying it, with the assistance of the learned counsel for the parties. We do find that in the matter of Polling Station No. 232, the results i:e. The number of votes as stated in document purporting to be a statement of count in Form-XIV, in favour of the candidates mentioned therein are different from the statement prepared by the R.O. (at page 117 regarding the same Polling Station). As against . 7.4 votes in the former document in the latter 161 votes are -recorded in favour of respondent No. 4 and as against 114 votes in favour of the petitioner, 83 votes are recorded in the consolidated statement. Whereas Malik Irfan Ahmad candidate is shown to have polled 141 votes in the consolidated statement nil vote is recorded while the votes of Malik Tanvir Sultan candidate are recorded as 105 by the R.O. As against 4 votes recorded in the document at page 36. At several Polling Stations, whereas in the corresponding statements stated to have been supplied by the P.Os., no rejected vote is mentioned, various number of rejected votes are mentioned in the consolidated statement against the same Polling Stations. However, there is no difference' in the validly polled votes shown in both the statements. There is also a discrepancy of about 30 votes in the matter of P.S. No. 259. 'Relying on the said state of affairs it is being urged that the Election Commission ought to have exercised its jurisdiction and to have passed orders under Section 103-AA of the Representation of People Act, 1976, by allowing prayer of the petitioner for a partial re-poll and a direction to re-count the rejected ballot papers. According to them, the provisions of Sections 38 and 39 of the said Act of 1976 have accordingly been violated and the violation being patent, the dismissal of the application filed by the petitioner by the respondent No. 1 is without lawful authority.
5. We have also examined the said three cases decided by the Hon'ble Supreme Court of Pakistan and being relied upon by the learned counsel for the parties. The consensus appears to be that primarily this Court would not interfere in an election matter in view of the provisions of Article 225 of the Constitution. However, in the case of Faqir Abdul Majeed Khan cited by Mr. Imtiaz Rashid Siddiqui an exception has been made to the said rule. We may note that in the said case of Faqir Abdul Majeed khan provisions of Rule 36. Of the Punjab Local Government Election Rules, 2005, came up for interpretation. Sub-Rule (6) of the said Rule 36 stands reproduced at page 1722 of the report and we find that sub-section (6) of Section 39 of the Representation of People Act, 1976, is almost couched in the same words except the mention of the District Returning Officer. The precise finding recorded by their Lordships is that a District Returning Officer had no lawful authority 10 direct a R.O. To re-count the rejected votes. This is so he! a in para-1 0 of the report at the same page. It is further observed by their lordships in para-14 of the report that the Returning Officer wrongly included the rejected votes in favour Of the respondent before their lordships under the influence of the said direction issued by the District Returning Officer. Another striking aspect of the said case is that not only had the R.O. Proceeded to treat some votes as valid but this Court dismissed the writ petition filed by the said Faqir Abdul Majeed Khar, hot only with reference to Article 225 of the Constitution but proceeded to uphold the decision on its merits as well. It was contended before their lordships that the petitioner before them would not be having any case to take to the Tribunal in view of the findings recorded by this Court.
6. Reverting back to the present case, Annexure- G is the application, which was filed by the petitioner before the R.O. It alleges that some Presiding Officers are missing and it is apprehended that attempt has been made to change the results and a re-count be made and the results be prepared afresh. This supplication was filed on 20.2.2008 and was dismissed by the R.O. With the observation that the results have been consolidated and sent to the Election Commission. The Election Commission in its order dated 23.2.2008 has observed that it is unable to record its satisfaction within the meaning of Section 103-AA of the said Act of 1976.
7. Going by the finding recorded in the said case of Faqir Abdul Maieed Khan with reference to a provision which is in pan materia, the Election Commission would not be having the jurisdiction to direct a count or examination of .The rejected/invalid votes. So far as the matter of said discrepancy being pointed out is concerned, the matter of determination has been entirely left 'to the respondent No. 1, of course, subject to recording of satisfaction within the bounds of the said Section 103-AA and further as to whether any such illegality or violation is grave, presumably also has nexus with its effect on the result of the election. We, therefore, do not find any ground or reason being made out to interfere with the orders passed by the respondent No. 1 within the confines of these proceedings. Needless to state that the results of the elections have already been notified and Election Tribunals stand constituted, the petitioner can, of course, approach such a competent Tribunal with a properly constituted election petition where the entire allegations and objections can be gone into and determined in accordance with law. With these observations, the writ petition is disposed of. No orders at to costs. .