1. ZAFFAR HUSSAIN MIRZA, J.-Petitioner Shah Baig and respondent No. 3 Ghulam Nabi were candidates for election from Local Council, Unit No. 7, Laloo Ranwak Taluka Warrah, District Larkana.
2. The election was held on 25-9-1975. On the close of the poll, the Presiding Officer declared the result of the count, wherein respondent No. 3 had secured 266 votes and the petitioner had secured 216 votes, whereas 62 votes were found to be invalid. Accordingly at this stage, respondent No. 3 was the successful candidate: After the consolidation of the results, the Returning Officer, however, declared the petitioner as having obtained 256 votes as against respondent No. 3, who was declared to have obtained 251 votes and 36 votes were found to be invalid. The Returning Officer, therefore, declared the petitioner as the successful candidate. Aggrieved by the decision of the Returning Officer, respondent No. 3 filed an election petition, which was referred to the First Additional District Judge and Election Tribunal, Larkana, for decision. The Tribunal after recording the evidence of the parties, came to the conclusion that the results declared by the Presiding Officer were correct, and that certain manipulations had been made in the record after it was sealed and sent to the Returning Officer, at the time of consolidation of results in the absence of respondent No. 3. The Tribunal recorded the finding in the following words: -- "The above discussed evidence on record establishes that actually the petitioner Ghulam Nabi had secured highest number of votes but some manipulation was made later on at the time of consolidation by the Returning Officer. The record reveals that there were only two candidates viz. Respondent No. 2 and petitioner for the Union Council Seat. As per the result declared by the Presiding Officer, the petitioner stood elected having secured highest number of votes."
3. Accordingly, respondent No. 3 was declared to have been duly elected to the Union Council from the Constituency in question. The petitioner sought to challenge the decision of the Tribunal in a writ petition before the Sind High Court, which was dismissed in 1fmine by a Division Bench, vide their order, dated 19-11-1981. The petitioner, therefore, seeks special leave to appeal from the said order of the High Court.
4. In support of this petition, learned counsel appearing for the petitioner has contended that as a result of the finding arrived at by the Tribunal, that some manipulation had taken place in the election records, the Tribunal ought to have ordered re-election but could not have declared respondent No. 3 as the successful candidate. The perusal of the order passed by the Election Tribunal, however, shows that the case of respondent No. 3, who was the petitioner before the Tribunal, was that the Returning Officer had illegally counted the rejected and spoiled votes, which had previously been excluded from the count by the Presiding Officer and had thus tampered with the record in order to favour the petitioner. On the evidence produced before the tribunal by the parties including the testimony of the Presiding Officer, the Tribunal came to the conclusion not only that certain manipula--tion had been done at the stage of consolidation of results, but also that the evidence established the fact that respondent No. 3 had secured higher number of votes than the petitioner. This is clear from the following observation: - "The Presiding Officer also opened the envelope of ballot paper of Ghulam Nabi Mugheri which contained only 250 ballot papers whereas he deposed that he had sealed 266 ballot papers in the said envelope. The Presiding Officer has refuted and denied the suggestion that at the time of counting Shah Beg and his agent were not present."
5. It thus appears that the Tribunal reached a finding of fact that the respondent No. 3 bad secured 266 votes, as against which admittedly the number of votes secured by the petitioner was less than that. In view of this finding, it was quite competent for the Tribunal to declare respondent No. 3 as the returned candidate for the Constituency in question. Learned counsel was unable to refer us to any provision in the Sind Local Government Ordinance, 1979, or the Election Rules framed thereunder requiring the Tribunal to order a fresh election in case the election records are found to have been tampered with subsequently. Rule 67(2) of the Election Rules permits petitioner to claim as relief, either that the election of the returning candidate is void and that the petitioner or some other person has been duly elected; or that the election as a whole is void. In the present case respondent No. 3 had claimed relief of the nature first mentioned above and we find no legal bar to the Tribunal to grant such relief to respondent No. 3. There is, therefore, no substance in the first contention advanced on behalf of the petitioner.
6. It was then urged by the learned counsel, that the Tribunal having found signatures of the two Presiding Officers on the back of the ballot papers and also a third signature, the whole election was vitiated and should have been declared as void. It was argued that the Presiding Officer has disclosed this fact in his evidence before the Tribunal and this procedure was in violation of clause
(d) of rule 35(1). This is a new point sought to be raise before us and the learned counsel conceded that it was not urged either before the Election Tribunal or before the High Court. We are, therefore, not inclined to go into this question as it will amount to permitting the petitioner to plead a case different from the one taken in his pleadings. Before the Tribunal, he had justified his election as the returning candidate on the basis of the same ballot papers. He cannot, therefore, now be permitted to turn round and challenge the validity of the election on a point contrary to his pleadings. Be that as it may, it is not correct to say that the evidence on record discloses that all the ballot papers bore signature of the Presiding Officer. The only reference made to this fact is contained in the order of the Tribunal, which pertains to the opening of the envelope containing the valid ballot papers of the petitioner himself which were stated to contain the signatures on the back side of each ballot paper. Counsel was unable to point out anything on the record showing that such signatures were found on the ballot papers contained in the envelope, in which the valid ballot papers cast in favour of respondent No. 3 were kept. In absence of any proof that the ballot papers on which votes were cast in favour of respondent No. 3 contained such signatures, the contention loses all force that the election as a whole should be set aside.
7. No other point was urged by the learned counsel in support of this petition. In the result, there is no merit in this petition, which is accordingly dismissed.