MIRZA VIQAS RAUF, J. The appellants contested the Elections of Punjab Local Government, 2015 as joint candidates for the seats of Chairman and Vice Chairman, Union Council 49, Naraghi, Tehsil Talagang, District Chakwal after being declared as qualified candidates. The respondents were their rival candidates in the said elections. For holding the elections, the Election Commission of Pakistan established nine polling stations and election was accordingly held on 31' October, 2015. After the poll, the appellants as per statement of counts/Form-XI, Form-XIII and Form XIV secured 3757 votes whereas respondent No.1 alongwith Malik Muhammad Mumtaz Khan obtained 3680 votes. The appellants were ultimately declared and notified as returned candidates through a notification dated 21' December, 2015.
The respondent No.1 and Malik Muhammad Mumtaz Khan, feeling aggrieved, filed a petition under Section 38 of The Punjab Local Government Act, 2013 (hereinafter referred as "The Act, 2013") before the Election Tribunal, Rawalpindi. The petition was though contested by the appellants but the same was allowed vide judgment dated 29 May, 2018 and as a result thereof, election of appellants was declared as null and void and the respondent No.1 and Malik Muhammad Mumtaz Khan were declared as returned candidates having been duly elected, hence this appeal under Section 46 of "The Act, 2013".
2. Learned counsel for the appellants submitted that through a valid process of elections, the appellants after obtaining highest votes were declared as returned candidates for the constituency. He added that through an election petition, a challenge was thrown on the result of elections, however, the Election Tribunal, without adverting to the procedure. adopted a novel way to declare the result of elections as null and void. Learned counsel emphasized that a commission was appointed with a reference in an illegal and unlawful manner. It is contended with vehemence that even Commission has travelled beyond the reference, who submitted a report, which was duly objected by the appellants but objections were not attended to. Learned counsel maintainedth that election petition was allowed in an illegal and unlawful manner and the impugned judgment is not tenable under the law.
3. Conversely, learned counsel representing the respondents, while defending the impugned judgment, vehemently argued that after giving consent for appointment of Commission, the appellants were precluded to challenge the report of Commission. He added that election petition was rightly accepted and the impugned judgment is unexceptionable.
4. After having heard learned counsel for both the sides at suf ficient length, we have perused the record.
5. The elections for the scats of Chairman and Vice Chairman for Union Council No.49, Naraghi, Tehsil Talagang, District Chakwal were held on 31' October, 2015, which were contested by the parties to the appeal and one Malik Muhammad Mumtaz Khan. The appellants were joint candidates, who participated in elections as independent and were allocated symbol of round table. The respondent No.1 alongwith Malik Muhammad Mumtaz Khan contested the elections as candidates of PML(N) having symbol of tiger. It is an admitted fact that as per notification dated 21 December, 2015, the Election Commission of Pakistan declared the appellants as successful candidates as they secured 3757 votes. The election process was challenged by the runner up candidates namely Malik Muhammad Mumtaz Khan and respondent No.1 through election petition under Section 38 of "The Act, 2013" read with Rule 62 of The Punjab Local Governments (Conduct of Election) Rules, 2013 (hereinafter referred as "The Rules, 2013") before the Election Tribunal, Rawalpindi. Before framing of issues, an application was moved by the respondents for appointment of local commission for re-count of ballot papers. On 17th August, 2016, the Election Tribunal, while accepting the application, appointed District Election Commissioner, Chakwal as Commission with direction to examine, inspect and scrutinize the record after serving notices on all the parties and submit a report to the Tribunal, which order was assailed by the appellants through W.P.No.2077 of 2016. The constitutional petition was allowed vide order dated 18 October, 2016 and the matter was remanded to the Tribunal with the following observations: - "3. In view of concession shown by the other side grievance of the petitioner stands redressed, therefore, this petition is allowed in the terms that Election Tribunal shall pass fresh order keeping in view the mandate of Rule 58 (i) (ii) of the Punjab Local government (Conduct of Elections) Rules 2013 on the next date of hearing i.e. 25.10.2016."
6. In post remand proceedings, the Election Tribunal again appointed District Election Commissioner, Chakwal as Commission with a specific reference. The appellants, through W.P.No.2761 of 2016. questioned the vires of said order, which petition was allowed vide judgment dated 21s December, 2016 and the Election Tribunal was directed to proceed with the matter in accordance with law. The respondent No.1 filed a Civil Petition No.267 of 2017 before the Hon'hle Supreme Court of Pakistan, which was converted into appeal and allowed with the consent of learned counsel for the parties in the following manner: - "3. Consequently, with the consent of the learned counsel for the parties, this Civil Petition is converted into appeal and the same is allowed in the above terms i.e. the order dated 25.10.2016 of the learned Tribunal and the impugned judgment dated 21.12.2016 of the learned High Court are. set aside. The matter is pending before the learned Tribunal, which shall record evidence expeditiously and conclude the matter including the question of re-count before the end of this month i.e. May, 2018. Both the parties shall cooperate with the learned Tribunal and shall not seek unnecessary adjournments. The compliance report, in this behalf shall be submitted by the learned Tribunal to the Registrar of this Court for our perusal in Chambers."
7. During post remand proceedings, Malik Muhammad Mumtaz Khan died, however, vide 'order dated 22 May, 2018, District Election Commissioner, Chakwal was appointed as Commission with direction to recount all -the used valid as well as rejected/invalid ballot papers on 24 May, 2018 in his office at 09:00 A.M in presence and view of both the parties including Muhammad Khan, brother of deceased petitioner No.1 and their counsel, if any, and submit his report on 25 May, 2018. The Commission accordingly submitted his report on 25 May, 2018, which was though objected by the appellants but the Tribunal, while discarding the objections, alloweds st th t nd th th th the election petition by way of impugned judgment, declaring the petitioners of election petition i.e. respondent No.1 and Malik Muhammad Mumtaz Khan as returned candidates.
8. Before coming to the vices of impugne d judgment, it would be advantageous to observe that on 21' May, 2018, when evidence of the respondents was in progress, both the parties and their learned counsel were shown to have mutually agreed that if the respondent No.1 and brother of Malik Muhammad Mumtaz Khan, who was in attendance, will offer the appellant oath in the Jamia Masjid Mohallah Awan Naragi at the time of `Asar prayer' between 05:15 P.M to 06:00 P.M today that they want recounting of entire' ballot papers. then appellants will accept this offer of recounting of petitioners in the election petition. It is also observed in the said order that both the parties further undertook that if any of the parties fails to comply with the above said agreement in any manner, then in case of default of' respondents, their election petition would be dismissed and in case of default of appellants, recounting order would straight away be passed and both the parties will not challenge this order/agreement at any forum. The parties have made request to the Tribunal that representative of the Tribunal be appointed to supervise the proceedings and to submit his report tomorrow. In view thereof, Irfan Ahad, an official of the Tribunal was appointed as representative to supervise the proceedings at the relevant time and place and to submit his report on the next date, which will be final and will not be called in question anywhere. On the following day i.e. 22 May, 2018, the Tribunal, on the basis of report of representative, proceeded to appoint the District Election Commissioner, Chakwal as Commission with the direction to recount all the used valid as well as rejected/invalid ballot papers on 24 May, 2018 in his office at 09:00 A.M in presence and view of both the parties including Muhammad Khan, brother of deceased petitioner No.1 and their counsel, if any and submit his report on 25 May, 2018. After holding the proceedings, the Commission, in terms of the said reference, submitted his report accordingly.
9. Before adverting to the issue of recounting and the admissibility of report of local commission, in the circumstances, it is observed that there is a consensus amongst both the counsel that proceedings conducted on 22 May, 2018 by the Election Tribunal were undertaken under The Oaths Act, 1873. It is an admitted position that Muhammad Khan. who is stated to be brother of Malik Muhammad Mumtaz Khan i.e. one of the petitioners in the election petition, was neither a party nor witness in the proceedings before the Tribunal. Thus there can be no second opinion that he was alien to the proceedings and any offer or acceptance on his behalf was of no legal value and was in contravention of Section 8 of The Oaths Act, 1873.
10. Leaving aside the above aspect, needless to observe that for carrying out the purposes of "The Act, 2013", the Government is competent within the meanings of Section 144 of the Act to make rules and by exercising such powers, the Government of Punjab promulgated the rules on 6 November, 2013 called as The Punjab Local Governments (Conduct of Elections) Rules, 2013. The process of recounting of the ballots is provided at two different stages, one by the Presiding Officer within the requirement of Rule 35 (5) of "The Rules, 2013" whereas the subsequent stage of such recounting is provided by empowering the Returning Officer to recount the ballot papers before consolidation of results as provided in Rule 36 (5) of "The Rules, 2013". Although the Election Tribunal has not specifically been empowered to enter into the process of recounting of ballot papers but since the Election Tribunal has been made competent to exercise the powers of a Civil Court trying a suit under "C.P.C" in view of Section 40 of "The Act, 2013" and Rule 68 of "The Rules, 2013", as such reference to the commission for the exercise of recounting was made within the meaning of the provisions of Order XXVI of "C.P.C". The Commission was shown to be appointed with the consent of both the parties with a specific reference, whose report was placed on record. The Tribunal, on receipt of the said report, without attending to the objections of the appellant, proceeded to allow the election petition on the ground that both the parties, while seeking appointment of Commission, have agreed to decide the election petition in accordance with result of the recounting/ scrutiny conducted by the Commission. We are afraid that such a procedure is aliennd th th nd th to law and highly unwarranted. A report of local commission can never be termed as per se admissible evidence. The same can only be treated as a piece of evidence, when a commission is examined as a witness in support thereof. After having gone through the report of commission, we are in agreement that even the commission has traveled beyond the reference, while proceeding with the matter in issue. Law is well settled that a Court or Tribunal cannot delegate its power of decision to the commission.
11. The Returning Officer and also the Presiding Officer, while made competent to enter the process of recounting, were restricted to recount the valid ballot papers and thus if the Election Tribunal, at any stage of the proceedings, reaches to the conclusion that the process of recounting is to be adopted again, it must be restricted to the recounting of the valid ballot papers and the Commission, at any cost, cannot be equipped with any power to include in the recount, the spoiled or tendered ballot papers. The Commission, however, proceeded to reject the ballot papers, which were considered as valid ballots by both the lower authorities i.e. Presiding Officer and Returning Officer and also included in the recount process some ballot papers, which were originally omitted to be taken into consideration as valid ballot papers. The Election Tribunal, on receipt of the report of Commission, has accepted the same as gospel truth and proceeded to treat the same as perse admissible evidence despite the fact that the report of the Commission was objected to by the appellants. The Commission and the Election Tribunal. both thus have failed to comply with the provisions of "The Act, 2013" and "The Rules, 2013".
12. After due deliberation and contemplative discussion made hereinabove, we are of the considered view that Election Tribunal, first by referring the matter to the Commission by extending a power in excess of the powers, which in fact was provided to the Election Tribunal and then secondly to entertain and accept the report of Commission without adverting to the objections raised upon the report of Commission, has in fact polluted the sacred process of elections and failed to comply with the provisions of "The Act, 2013" and "The Rules, 2013". The impugned judgment, in the circumstances, thus cannot sustain.
13. The nutshell of above discussion is that the impugned judgment dated 29th May, 2018 is tainted with material legal flaws and the Election Tribunal, while accepting the election petition, has committed illegally and material irregularity. We, thus, allow this appeal and set aside the judgment dated 29th May, 2018. As a result thereof. the matter is remanded to the Election Tribunal, who shall proceed afresh strictly in accordance with law from the stage of proceedings as were on 21st May, 2018.
14. Needless to observe that the Tribunal shall take all necessary steps for early conclusion of the proceedings, which shall be completed within three months. No order as to costs.