MUHAMMAD FARRUKH IRFAN KHAN, J.--- This order shall decide the aforesaid writ petition as well as Writ Petition No,37144/15 as common questions of law and facts are involved in both the matters.
Herein after the writ petitioners of instant petition shall be referred to as petitioners and that of the connected writ petition shall be called as respondents.
2. Facts of the case in brief are that respondents earlier filed a Writ Petition No,36052/15 to call in question the order of the Returning Officer dated 22.11.2015 regarding stoppage of result of U.C.
No,32 Burj Atari which was disposed of by this Court vide order dated 23.11.2015 with the following directions:- "A perusal of the impugned order shows that the application of respondents Nos,5 and 6 was filed prior to the consolidation of the results. Similarly, an application has also been filed by the petitioner regarding the same grievance prior to the consolidation of the results with respondent No,4. In the circumstances, the provisions of Rule 36(5) of the Punjab Local Governments (Conduct of Elections) Rules, 2013 provide that where an application is filed by either of the candidates or their polling agent to the Returning Officer, he may if so desired, order inter-alia for recounting of the votes or reassessment of the discarded votes, therefore, the applications of the petitioner and respondents Nos,5 and 6 are deemed to be pending before the Returning Officer. The petitioner as well as respondents Nos,5 and 6 will appear on 25.11.2015 at 11:00 a.m. before respondent No,4 who will hear them out and then pass speaking order within next three working days thereafter."
3. In compliance with the aforesaid order of this Court the Returning Officer decided the applications of the parties vide order dated 27.11.2015 in the following terms:- "The background of the matter in issue is that Local Bodies Election of Union Council No,32 Burj Attari, Ferozwala, District Sheikhupura was held on 19-11-2015 as per schedule and the petitioners of the writ petition namely Muhammad Altaf and Malik Imran Javed contested the election for the office of Chairman and Vice-Chairman. However, after the election hours, when the results was prepared, a misshape occurred at polling station No,9, Government Boys Primary School, Bullay Androon and regarding the said incident the Presiding Officer submitted his written complaint by giving the detail of the incident. In his statement the Presiding Officer stated that all the day polling at that particular polling station went very smoothly and I prepared the result in the presence of polling agents suddenly a person named Muhammad Ashraf came inside the room and pick the four number of rejected votes and ran away. I tried to stop him but he did not stop. I began to pack all the polling material in order to avoid to further misshape while 1 was packing all material Mr. Ashraf came again and put some ballot papers in the polling bags which were not counted by me due to fear for some more mishap 1 packed polling material and came to the office of the Returning Officer in supervision of Police.
In the meanwhile one of the candidates namely Sarni Ullah. candidate for Chairman, also lodged a complaint before the under signed wherein it was prayed that the votes be recounted.
Thereafter, after midnight one of the petitioners, Altaf Hussain, also submitted application before the undersigned and requested that final result of the polling be supplied to him.
On receipt of both the applications mentioned above, the matter was thoroughly probed into and it was considered necessary to stay the final results. Accordingly vide order No, TMA/F/15/155 dated: 20-11-2015 recorded at 3:00 am the final result of the Union Council 32 Burj Attari was stopped and the election material of the polling station No,9 (Bhullay Androon) was also sealed.
Copy of the order was transmitted to District Returning Officer, Sheikhupura and District Election Commission Sheikhupura. Thereafter both the parties again approached the undersigned and they demanded that the final result of Union Council 32 be announced and notified. The matter was reconsidered and it was found that in view of the incident at polling station Bhullay Androon as reported by the presiding officer it was not possible to consolidate and announce the final result of Union Council 32. So, it was considered necessary that re-election at polling station No,9 (Bhullay Androon) be conducted and thereafter final result be consolidated/notified.
Since the undersigned has got no powers for re-polling, therefore, vide letter No, TMA/F/15/156 dated: 20-11-2015 the matter was referred to District Returning Officer Sheikhupura and it was recommended that fresh polling at Polling Station No,9 (Bhullay Androon) be held. On receipt of the said letter the District Returning Officer vide his letter No,207/11/DRO/SKP dated 20-11-2015 addressed to the Provincial Election Commission, Lahore, endorsed the recommendation made by the undersigned and now the matter is pending before the Provincial Election Commission Punjab, Lahore. So far as the prayer made in the writ petition is concerned it appears that the writ petitioners have concealed the aforementioned facts before the Hon'ble Lahore High Court, Lahore. The writ petitioners have challenged order dated 20-11-2015 passed by the undersigned, whereas after passing of the said order the matter was referred to the District Returning, from where it was further referred to the Provincial Election Commission. As such no further action can be taken in the matter till the final order passed by the Provincial Election Commission regarding the re-poll at polling station No,9 (Bhullay Androon) or otherwise. As soon as the orders of the Provincial Election Commission are received the undersigned would comply with 'the same at once."
4. Both the parties are not satisfied with the aforesaid order. The petitioners in their writ petition seek direction to the Returning Officer for notification of the result of union council in question after recount whereas, respondents in their writ petition also want same direction but without recounting of ballot papers.
5. I have heard the arguments advanced by the learned counsels for the parties and gone through the record.
6. The circumstances in which repolling can be directed by Returning Officer are given in Rule 25(1)
(2) of the Punjab Local Governments (Conduct of Elections) Rules, 2013 which reads as under:-
25. Stopping of poll.--- (1) The Presiding Officer of a polling station shall stop the poll and inform the Returning Officer that he has done so if.
(a)the poll at the polling station is, at any time, so interrupted or obstructed for reasons beyond the control of the Presiding Officer that it cannot be resumed during the polling hours under rule 24: or (b)any ballot box used at the polling station is unlawfully taken out of the custody of the Presiding Officer, or is accidentally or intentionally destroyed or lost, or is damaged or tampered with, to such an extent, that the results of the poll at the polling station cannot be ascertained.
(2) Where a poll has been stopped under sub-rule (1), the Returning Officer shall immediately report the circumstances to the Election Commission, and the Election Commission shall direct a fresh poll at that polling station and fix a date for such poll, unless it is satisfied that the result of the election has been determined on the basis of the polling that has already taken place at that polling station, taken into account the results of the polling at other polling stations, in the same Union Council or Ward as the case may be."</i>
7. It is an admitted fact that neither any hurdle was created during polling hours nor any of the ballot box was taken unlawfully from the custody of the Presiding Officer. It is also evident from the record that the result had been prepared prior to the occurrence. Even it is known to the Presiding Officer that how many ballots were taken away by the culprit, in this scenario, there remained no justification for the Returning Officer recommending re-poll in the disputed ward. If such practice is allowed then every losing candidate may create some sort of disturbance in one particular polling station and on that basis succeed in obtaining order for repelling. Since the Presiding Officer had prepared the result prior to the occurrence, therefore, despite the said criminal act on the part of the alleged accused, the Presiding Officer was not hampered in forwarding the already compiled results, therefore, recommendation of the Returning Officer for repelling in the ward was not justified and cannot be allowed to sustain.
8. As far as prayer of the petitioners for recounting of ballot papers is concerned, it may be observed that as per report of the Presiding Officer their polling agent Muhammad Ashraf forcibly took away rejected votes and thereafter included some ballot papers in the bags, therefore, in this eventuality it would be very difficult to ascertain as to how many votes were included by Muhammad Ashraf polling agent of the petitioners illegally and unlawfully. Even otherwise, it is settled principle of law that no one can be allowed to take advantage of its own wrong. Act of the petitioners' polling agent is illegal, unlawful and this Court cannot condone such unruly attitude and a criminal act of a contesting candidate or its polling agent as this would undermine the sanctity of elections and would be a deep dent in the writ of the State. It is, therefore, directed that the DPO concerned shall personally pursue the FIR registered on the complaint of the Presiding Officer and submit progress report to the Addl. Registrar (J) of this Court on quarterly basis.
9. As per report of Presiding Officer petitioner No,1 namely Sami Ullah himself created law and order situation, therefore, a person having such a conduct is not entitled for discretionary relief from this Court. Thus on account of their own conduct, it does not lie in the, mouth of the petitioners to ask for recounting of the votes.
10. The upshot of the above discussion is that writ petition No,36970/15 filed by the petitioners is dismissed and that of the respondents bearing Writ Petition No,37144/15 is accepted. The Returning Officer is directed to announce the result of U.C.No,32, Burj Attari, Tehsil Ferozwala, District