This election appeal under Section 46 of the Punjab Local Government Act, 2013 is directed against order dated 07.12.2016 passed by the Election Tribunal, Multan whereby the election petition filed by Respondents No, 1 and 2 was accepted and the election of the appellants was declared void and re-polling was ordered in U.0 No, 76, Muzaffarabad, Multan.
2. Brief facts giving rise, to the filing of this appeal are that appellants being in the panel of chairman and Vice-Chairman jointly filed their nomination paper's for contesting the local bodies elections in U.C. No, 76 Muzaffarabad, Multan. Against the said seats, Respondents No, 1 and 2 also fired their nomination papers. After scrutiny of the nomination papers the elections were conducted and the appellants were declared as returned candidates. However, feeling aggrieved of the results, the said respondents filed an election petition before the Election Tribunal, Multan in which appellants appeared and contested, issues were framed and before recording of evidence Respondents No, 1 and 2 filed an application for re-counting of ballot papers and on 29.06.2016 the said application was accepted and Mr. Muhammad Siddique, District & Sessions Judge, was appointed as local commissioner for re-counting of the ballot papers. This order was assailed in W.P. No, 10376 of 2016 by the appellants which was dismissed on 14.07.2016 as non-maintainable, since no constitutional petition lied against an interim order passed by the Election Tribunal. The appellants joined the re-counting proceedings before the local commission who submitted his report on 18.07.2016 before the Election Tribunal. Both the parties did not raise any objection on the report of the local commission as according to the appellants recounting did not matter much.
The grievance is that despite the fact that local commission did not change the factual situation relevant for the results, the Election Tribunal vide impugned order dated 07.12,2016 declared the election of the appellants as void and ordered for re-polling in the constituency, hence this appeal.
3. Learned counsel for the appellants submits that election bags of Polling Station No, 5 (Government Boys Elementary School, Muzaffarabad) went missing yet the re-counting was conducted without probing and fixing the responsibility. Adds that local commission was only authorized to re-count the ballot papers but it proceeded beyond his mandate when he preferred to even check the seals and overall conditions of the polling bags on the basis of which Election Tribunal declared the whole election as void, He also submits that the appellants obtained 2463 votes at the time of election whereas Respondents No, 1 and 2 obtained 2187 votes but the local commission proceeded to re-count the votes in the absence of said polling bags of Polling Station No, 5, He also submits that without recording of evidence the Election Tribunal had wrongly accepted the election petition. He further submits that even by excluding the bags of Polling Station No, 5, the appellants were successful by 195 votes and that while physically carrying of polling bags from one place to another their seals might have been broken, and that the protection of the poling bags was the responsibility of Election Commission's officials. The appellants in no way played any negative role. Places reliance upon Jam Madad All versus Asghar Ali Junejo (2016 SCM R 251) and order dated 10.11.2016 passed in Civil Appeal No, 828 & 974 of 2014 titled "Usma4 Dar etc, venue Khawaja Muhammad Asif ete. " and prays for the acceptance of the appeal.
4. Conversely, learned counsel for Respondents No, 1 and 2 submits that the impugned order is a balanced order and was rightly passed in the facts on record and that by not raising any objections on the report of the local commission, the appellants have conceded to its findings.
Adds that there was no need to record any further evidence after when the report was submitted before the Election Tribunal exposing the illegalities committed for the benefit of the appellants.
Places reliance upon Muhammad Tariq Chaudhry versus Khalid Ahmad and 7 others (2007 M LD 1725), Sharjeel Khan and another versus Additional District & Sessions Judge, Kot Adds and 2 others (2006 CLD 1842), Muhammad neon Kasi and another versus Abdul Latif and 7 others (2005 SCM R 1699), Sheikh Iftihhr-ud-Din and another versus District Judge, Bahawalpur Exercising Powers Of Election Tribunal For Union Council Of District Lodhran and 8 others (2002 SCM R 1523), Ch. Muhammad Ashraf Warraich and another versus Muhammad Nasir Cheema and others (2016 SCM R 998), Kala Khan and another versus Qadir Bakhsh (1998 CLC 1861), Messrs United Bank Limited versus Bashir Engineering Industries and others (1996 M LD 729), Qaiser Hameed and another versus Ch. Ijaz Ahmed and 8 others (2007 M LD 1210) and Jam Madad Ali versus Asghar Ali Junejo (2016 SCM R 251).
5. Arguments heard. File perused.
6. After hearing the learned counsel for the parties and perusing the available record, it is noted that election petition was filed by the respondents in which the objections were filed by the appellants whereafter the following issues were framed on 27.04.2016 and the case was fixed for evidence on 11.05.2016.
ISSUES.
1. Whether this election petition is not maintainable as the same is based on wrong assumptions.
(OPR)
2. Whether the petitioners have not come to.
3. Whether this election petition is not maintainable due to mis-joinder of necessary parties. (OPR)
4. Whether the Respondents No, 1 and 2 obtained the result & success in their favour on the basis of their political influence and due to reason that they got prepared polling scheme as they wished.
(OPR)
5. Whether no ballot papers in the election were shown as rejected if so its effect (OPP)
6. Whether the ballot papers which had double stamps and cutting were counted in favour of Respondents No, .1 and 2 unlawfully. (OPP)
7. Whether the result of success of Respondents No, 1 and 2 was outcome of illegal and malpractice. (OPP)
8. Whether the petitioners are winning candidate instead of the Respondents No, 1 and 2. (OPP)
9. Whether the notification of the Election Commission of Pakistan dated 21.12.2015 to the extent of Respondents No, 1 and 2 is liable to be declared void being illegal. (OPP)
10. Relief.
On 19.05.2016 respondent filed an application for re-counting/re-examination which was contested by the appellants through their written reply dated 02.06.2016. On 29.06.2016, said application was allowed on merits after hearing the parties and Mr. Muhammad Siddique, District & Session & Judge, was appointed as local commission for re-counting and verification (Jaanch Partaal) of the elections and the report was required to be submitted on 19.07.2016. Consequently, the report was submitted in which no objections were filed. It was total 10 Polling Stations, seals of the bags from 6 Polling Stations were broken whereas the election bags of Polling Station No, 5 (Government Boys Elementary School, Muzaffarabad) was lost and could not be located. It was also observed that prior to the re-counting the votes of the appellants was 276 more than that of the respondents and that even after re-counting the appellants had 195 votes more than that of the respondent.
7. Election Tribunal is fully empowered to nullify any elections on the basis that it was based upon malpractice. The respondent has been raising objections regarding the transparency and malpractices during the said elections. In the application for recounting the reply was submitted by the appellants contesting the same and after submission of the report of the local commission no objection was raised owing to the fact that appellants still procured more votes than the respondent. The argument of the learned counsel for the appellants that in that situation evidence was required to be recorded and that non-appearance of the local commission and non- summoning of the officer of the Election Commission the responsibility of not protecting the polling bags cannot be fixed is convincing primarily for the reasons that Election Tribunal is fully empowered and therefore in this case is bound to record evidence. The minimum criteria or the essential pre-requisites for satisfying the conscience of the Court or Tribunal for permitting a re- counting was that there should be a specific allegation of tampering, manipulation and manoeuvering in very specific terms alongwith the necessary details and prima facie material supporting such allegations and that it should not be used for roving inquiry to fish out the material for reversing the election. In a reported judgment i,e, Civil Appeals No, 823 & 947 of 2014 titled "Usman Dar etc. versus Khawaja Muhammad Asif etc." it has been held that once the election material had been delivered to the election authority or an agency designated by it for safe custody of the polling bags after completion of the election process, consolidation and announcement of the result, the requirement of law is presumed to have been fulfilled. Any subsequent events could not have materially affected the result of election so as to form the basis to set aside the election as a whole. Furthermore, without clear and irrefutable evidence connecting the appellants to damage allegedly caused to the record, he cannot be held responsible. Even otherwise, the result after re-counting of the available record the appellants had a lead of 195 votes which could not reverse the result of election,
8. In the present case, I am of the view that findings of the Election Tribunal could not be entirely based on the report of the local commission particularly after framing of issues when the case was fixed for evidence, The report of the local commission might have added to the reason which may be given by the learned Presiding Officer to reach his conclusion, It is not denied by the parties that none of officials from Election commission was summoned, It is not the case of the respondent that appellants have committed certain acts directly with narration of particular facts resulting into manoeuvering of the votes, The precise details of malpractice have also not been mentioned in the election petition therefore, in the facts and circumstances it would be appropriate that while allowing this appeal the case should be remanded to the election Tribunal where the evidence may be recorded to see the effect of missing bags of polling Station No 5 (Government Boys Elementary School, Muzaffarabad) and also of broken strips of other polling bags and non-filing of objections on the report of the local commission as well as his non-appearance.
9. order accordingly.