The petitioners were candidates for the offices of Chairman and Vice Chairman, respectively, for Union Council No.61, Basal, Tehsil Jand, District Attock, in the elections conducted on 19.11.2015, in second phase of the Local Governments elections in Province of Punjab, and they were allocated symbol of "Tiger", whereas, respondents No.3 and 4, as one set for the same seats, were candidates and contested the same election under the election symbol of "Bicycle"; the third set of candidates consisted upon respondents No.5 and 6 and they contested the election under the election symbol of "Bucket".
2. In view of the Ballot Paper Account for Polling Station No.2 i.e. Government Girls Elementary School, Bhatiot, prepared by the Presiding Officer, in total, 1200 ballot papers were received at the polling station from serial No.1401 to 2600 and out of said ballot papers, a total number of ballot papers, which were taken out of the ballot box or boxes and were counted as '806'; the total number of tendered ballot papers were '02', the spoilt and cancelled were '04', as such total number of ballot papers under above three items came to '812'.
3. After receipt of the result from different Polling Stations, the petitioners were shown to have obtained 3694 votes, whereas, respondents No.3 and 4 were shown to have obtained 3692 votes.
The Polling Station, in question, is Polling Station No.2 i.e. Government Girls Elementary School, Bhatiot (Female) and Presiding Officer of the same Polling Station, by virtue of Form-XI, prepared and handed over the statement of the account, showing 444 votes obtained by the petitioners, 285 by respondents No. 3 and 4 and 33 by respondents No.5 and 6. In the same Form, total number of votes (including challenged votes), polled in favour of all contesting candidates were shown as 762, whereas, total out of doubtful votes excluded from the count (including the doubtful challenged votes), were shown as 44, total number of which came to 806.
5. During the night between 19/20.11.2015, the Returning Officer was approached by the candidates, asking for recounting of the votes and, therefore, on acceding to such request, recounting was ordered to be carried out on 20.11.2015 at 04:00 p.m., and as a result of such recounting, the petitioners' votes in Polling Station No.2 were reduced from 444 to 432, whereas, the votes of respondents No.3 and 4 were reduced from 285 to 283, whereas, respondents No.5 and 6 were shown to have obtained same number of 33 votes, even in recounting.
6. Such reduction in the ballot papers created doubts and presumably for that reason or in order to cover such glaring lapse, the Presiding Officer of concerned Polling Station i.e. Bibi Ayesha, Headmistress, Government Girls Secondary School, Mithial, District Attock, was asked to explain, who on 23.11.2015, produced a written explanation, wherein a strange plea was extended that while preparing the statement of account at Polling Station on the day of polling, 444 votes were inadvertently shown to have been obtained by the petitioners, which, in fact, were 435 votes.
Regarding loss of nine ballot papers, it was explained by the said Presiding Officer that either the voters took away the same with them or the same were torn out, but the Polling Staff did not know about the fate of such nine lost ballot papers. The Returning Officer, on 23.11.2015, intimated all such process to the District Returning Officer without any formal declaration in favour of any of the seat of candidates.
7. When a report was called for by the Returning Officer in the present writ petition, he, after placing reliance on the statement of Presiding Officer, termed the number of votes, shown to have been secured by the petitioners as '444' a result of arithmetic mistake and came forward with a novel kind of explanation that, since the Constituency of U.C.No.61, Basal, entirely consists of rural area and has very less literacy rate; therefore, possibility of non-tendering of seven ballot papers, cannot be ruled out and the same might have been concealed or brought out of Polling Station by the voters themselves.
8. The conduct shown to have been adopted by the election staff, deputed by the Election Commission of Pakistan, does not show that in their supervision, free, fair and just election was conducted and the process, as has been pointed out above, do indicate that neither there was any discipline maintained during polling time at the Polling Station nor the polling staff was careful enough while preparing the final result and, thus, no trust can be attached with such prepared counts. No explanation or justification has been extended by the polling staff as to where nine (9) or at least seven (7) missing ballot papers gone. Again there is no justification in accepting the belated explanation of the Presiding Officer, who on fourth day of the polling, in a very simple manner, has submitted that 444 votes were shown to have been obtained by the petitioners as a result of some inadvertence, whereas, in fact, it was a figure of 435, and ultimately, the Returning Officer has put every blame on the less literacy rate in the area of Constituency. If such illiteracy played its role in Polling Station No.2, it is a question as to how all other Polling Stations of the same Constituency were not affected badly on account of such less rate of literacy.
9. The learned counsel for respondents No.3 and 4 has objected to the maintainability of this Constitutional petition, mainly on the plea that "Election" can only be called in question by means of an election petition, to be preferred before the Election Tribunal.
10. To address such submission, it would be suffice to say that the "election", which is to be challenged before the Election Tribunal by way of an election petition is only the declaration notified by means of notification within the meaning of Rule 38 read with Rule 62 of the Punjab Local Governments (Conduct of Elections) Rules, 2013. Such stage was still to come as by now no such notification has ever been issued. The election, however, has not been challenged in the present writ petition. In fact, these are the acts done and proceedings taken by the Presiding Officer and the Returning Officer concerned, who in violation of the settled legal position, have proceeded in a manner, which has no lawful authority and the same are of no legal effect. The said authorities have been performing the functions in connection with the affairs of the Federation and also a Province and in view of the provisions of Article 199(1)(a)(ii) of the Constitution of Islamic Republic of Pakistan, 1973, this Court has a jurisdiction to make an order on the application of any aggrieved party declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and of no legal effect; therefore, it is declared that before the elections are notified, this Court has every jurisdiction to redress the grievance of any party and the authorities, as noted herein-above, are amenable to the Constitutional jurisdiction of this Court with regards to their acts or proceedings performed or taken prior to issuance of notification by the Election Commission of Pakistan relating to elections in question.
The term "election" has been defined in Section 2(na) of The Punjab Local Government Act, 2013, which means "an election held under this Act and includes a bye-election". Such election will be deemed as conclusive only, when a declaration in shape of notification published in Official Gazette is made by the Election Commission of Pakistan by meeting the requirements of Rule 53 of the Punjab Local Governments (Conduct of Elections) Rule, 2013, and once the elections are declared by publication in Official Gazette, only then it would be liable to be challenged by means of an election petition within the meaning of Rule 62 of Rules, 2013. However, before such publication, the election staff would not be in a position to claim immunity from any challenge to their illegal or unauthorized acts and an aggrieved person on account of such unauthorized and illegal acts on the part of the election staff, would certainly be competent to invoke the jurisdiction of this Court by calling in question such illegalities within the meaning of Article 199(1)(a)(ii) of the Constitution of Islamic Republic of Pakistan, 1973.
11. In view of above peroration, it is declared that the acts and proceedings taken by the respondents, as highlighted in paras supra, were without lawful authority and of no legal effect and result would be that the proceedings carried out in the conduct of elections of U.C.No.61, Basal, Tehsil Jand, District Attock, for the seats of Chairman and Vice Chairman, by means of Forms No.XI, XII and XIII, after recounting, are of no legal effect and are set-aside. Such process is required to be taken afresh for which purpose, the Election Commission of Pakistan (respondent No.7) will issue a fresh schedule, according to law.
Writ petition stands allowed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.