' MAULVI ANWARUL HAQ, J.---This I.C.A. Proceeds against judgment, dated 25-6-2008 of learned Single Judge, in Chamber, of this. Court whereby Writ Petition No,205-06 filed by the appellants has been dismissed.
2. Learned counsel for the appellants contends that the prayer made by them for examination of the excluded votes could not have been rejected by the learned Tribunal upon plain reading of the law on the subject with reference to the specific contents of the election petition. Learned counsel for the contesting respondents supports the impugned judgments with reference to Rule 36(6) of the Punjab Local Government Elections Rules, 2005.
3. We have gone through the writ petition records. Private parties hereto contested elections to the seats of Nazim and Naib Nazim in U.C. No,4 Tehsil Gujjar Khan. At the close of poll respondents Nos. 1 and 2 were declared returned with 2230 votes and the appellants followed with 2227 votes. In the first instance appellant No,1 filed an application before, the learned Returning Officer, inter alia, stating that the ballot papers have been wrongly rejected. (It may be pointed out that as many as 339 votes were rejected at various polling stations), The learned Returning Officer instead of passing any order referred the said application along with several other applications to the D.R.O.
Vide order, dated 29-8-2005. Apparently this application was not decided. On 8-9-2005 the appellants filed an election petition. This was contested by respondents Nos.1 and 2. Vide judgment, dated 16-1-2006 the learned Election Tribunal dismissed the election petition summarily. Against this order Writ Petition No, 205 of 2006 was filed.
4. The learned Election Tribunal has found and impugned judgment affirms that the election petition was liable to be dismissed under rule 72 read with rule 67 of the said Rules, 2005.
5. We have examined the election petition accordingly with the assistance of the learned counsel for the contesting parties, as noted by us above, the prayer made in the election petition was that the excluded votes be examined and further valid votes cast in favour of respondents Nos. 1 and 2 be excluded as invalid.
6. A bare perusal of the judgment of the learned Election Tribunal as well as impugned judgment of this Court would show that only the second part of the prayer has been attended to. So far as the first part of the prayer is concerned, it has been specifically stated in the petition and admitted by the respondents that as many as 339 votes were excluded at various polling stations. Thereafter some specific allegations were made regarding exclusiOn of the votes. In para-15 of the election petition it was specifically stated that respondent No,5 (Returning Officer) did not give any notice for consolidation of results. The appellants as well as respondent No,3 filed a written application in this behalf but still no notice was issued whereas it was mandatory for Returning Officer to examine the excluded votes and to prepare the statement thereafter. The Election Commission of Pakistan issued order for re-count on 31-8-2005 but upon the establishment of Election Tribunals the process was not undertaken.
7. Rules 36(3) of the Punjab Local Government Elections Rules, 2005 provides in mandatory terms that before consolidating the results of the count, the Returning Officer shalt examine the ballot papers excluded from the count by the Presiding Officer and if he finds that any such ballot paper should have not been so excluded, he is to count it as a ballot paper cast in favour of the contesting candidates for whom the vote had otherwise been cast.
8. Having examined the contents of the election petition in the light of the said provisions of law there is no manner of doubt in our mind that the election petition contains sufficient particulars and specific allegations regarding exclusion of ballot papers and that these have not been examined by the learned Returning Officer. The learned Election Tribunal started discussion of the matter from Para. 5 onwards in his judgment and it starts with the observation that the appellants have specifically prayed for recounting of votes excluded from the count. The discussion, ends against with the observation that the Returning Officer has to examine the ballot papers excluded from count by the Presiding Officer in the manner stated above. It is rather shocking that the learned Tribunal thereafter non-suited the appellants by observing that he cannot. Believe the assertion that the Returning Officer had not issued notice at the time of consolidation of results.
What was to be ensured by the learned Tribunal was that the said statutory provision of la* has been complied with or not. The impugned judgment also revolves around the provision of rule 36(3) and fails to take notice of the provision of Rule 36(3) of the said Rules, 2005.
9. Learned counsel for the appellants states at the bar that they confine their prayer only to the extent of examination of excluded ballot papers.
10. For the reasons noted above, I.C.A. Is partly allowed inasmuch as the order passed by the learned Election . Tribunal on 16-1-2006 rejecting the prayer of the appellants for examination of the excluded ballot papers is declared to be without lawful authority and is set aside being void. The result would be that election petition shat be deemed to be pending. The parties shall appear before the Election Tribunal on 4-5-2009. The election records will be requisitioned and only excluded ballot papers shall be examined in strict accordance with Rule 36(3) of the Punjab Local Government Elections Rules, 2005 and election petition to be decided accordingly. No order as to costs.
' A copy of this judgment be immediately remitted to the learned Election Tribunal, who shall take all steps to conclude the matter before commencement of summer vacation 2009.