' M.A. ZAFAR, J.---Tauseef Sarwar/petitioner was appointed as Presiding Officer for Polling Station No,2/285 Govt. Primary School Notheen, U.C. No,32. On the complaint of Waqar Ahmad Bhatti, Advocate, Mr. Pervez Iqbal Sipra, learned Civil Judge/Returning Officer U.C. Nos.32 to 37, Pindi Bhattian, visited the polling station, Mehmood Ali, S.-I. /S.H.O., Police Station Sukheke was also present at that time. From inquiring into the matter, it was found that the accused got polled 400 fictitious votes and in this way she became guilty of rigging and breach of her official duty. Show- cause notice was given to her by the Returning Officer, reply of the petitioner was not found satisfactory and the learned Civil Judge/Returning Officer after recording the statements of Rai Muhammad Ashfaq, Rai Muhammad Arshad, Ghulam Ali candidates for Nazim, Mehmood Ali, S.-I./ S.H.O. And Umar Hayat being witnesses of the occurrence, vide judgment, dated 26-8-2005 convicted the petitioner under sections 169, 172, 175 and 176 of the Punjab Local Government Ordinance, 2001 and sentenced her to three months simple imprisonment and fine of Rs,1000 and in default of payment of fine to further undergo simple imprisonment for 10 days. Feeling aggrieved from the aforesaid judgment of the learned Civil Judge/ Returning Officer, petitioner filed an appeal in the Court of Session, which was dismissed by the learned Addl. Sessions Judge, Pindi Bhattian, vide judgment, dated 15-9-2005. However, imprisonment of 21 days undergone by the petitioner was considered sufficient, sentence of fine was maintained.
2. After perusing the show-cause notice and its reply submitted by the petitioner as well as statements of Rai Muhammad Ashfaq, Rai Muhammad Arshad, Ghulam Ali candidates for Nazim, Umar Hayat, Mehmood Ali S.-I./S.H.O., I find that Tauseef Sarwar, the present petitioner in her reply has denied the allegation of fraudulently taking out of the polling station, any ballot paper and putting the same in any ballot box. She has further denied having recovered 400 votes from one ballot box and the code marks stamps and one ink-pad having been recovered from her hand purse. Rai Muhammad Ashfaq, the witness examined by the learned Returning Officer, has not stated in his statement that he himself saw the petitioner putting the ballot papers in the ballot box; same is the position of Rai Muhammad Arshad the other witness. Ghulam Ali, candidate for Nazim, stated that he himself saw ballot box having bogus ballots but who put the same in the ballot boxes, is not clear from his statement. Umar Hayat has stated that he saw Assistant Education Officer Muhammad Nawaz, present at the women polling station and talking obnoxious conversation with the Presiding Officer and the said Umar Hayat has political affiliation with Chand Shahzad Bhatti; and similarly, the last witness of the prosecution Mehmood All based his evidence on hearsay; according to him, he reached at the spot and on inquiry the agent of the candidate told him that the Presiding Officer has put 400 ballot papers in a box, which were produced before him and he produced the same to the Returning Officer, who took into possession; according to his statement, two stamps and an ink-pad was also recovered from the purse of the petitioner, who was acting as Presiding Officer. The learned Civil Judge/Returning Officer vide his judgment, dated 26-8-2005 gave finding against the present petitioner in the following words:--- ' "The reply given by the accused is not satisfactory and the statement of the persons namely Rai Muhammad Ashfaq, Rai Muhammad Arshad, Ghulam Ali and Umar Hayat being witnesses of the occurrence are trustworthy. The accused has not given satisfactory reply how these ballot papers were polled. From perusal of the whole record and comparison of the alleged thumb-impressions of the voters on the counter-foils, it becomes crystal clear that the accused Presiding Officer is involved in rigging and breach of her duty."
3. I failed to understand how the learned Returning Officer compared the thumb impressions of the voters on the counterfoils, he is not Handwriting Expert and there is also glaring illegality committed by him of not recording the statement of the accused under section 342, Cr.P.C. In the present case, after the submission of reply to show-cause notice the prosecution examined five witnesses, petitioner has not admitted her guilt and compliance with section 342, Cr.P.C. Is not dispensed with in summary trials. Reliance is placed on Choithram Menghraj v. Emperor AIR 1938 Sind 70. However, position is different when an accused pleads guilty under section 342, Cr.P.C., examination under section 342, Cr.P.C. Is A not necessary but the admission of guilt should be recorded in the words of the accused as nearly as possible. Since in the present case petitioner has not admitted her guilt and due to non-recording of her statement under section 342, Cr.P.C., her conviction and sentence recorded by the learned Civil Judge/Returning Officer, vide judgment, dated 26-8-2005 and confirmed by the learned Addl.: Sessions Judge Pindi Bhattian, vide judgment, dated 15-9-2005 are not sustainable. Even otherwise the statements of the witnesses do not inspire confidence and the evidence is not sufficient to prove the guilt of the petitioner. Hence the revision petition is accepted, conviction and sentence recorded by the learned Courts below are set aside and petitioner is acquitted of the charge. Amount of fine i.e. Rs,1000 deposited by her be refunded forthwith.