' AJMAL MIAN, J.-This petition is directed against the order dated 23rd November, 1982 passed by the learned Election Tribunal, Sanghar. The relevant facts leading to the filing of the above petition are that the present petitioner alone with respondent No, 1 and three other candidates contested election for the seat of Municipal Councillor for Blocks Nos. 3 and 6, Ward No, 3, Municipal Committee Shandadpur II. It seems that after the counting of the votes, the Returning Officer found that the petitioner and respondent No, 1 secured equal votes namely, 184 each and, therefore, on the basis of the drawing of lot as per rules declared respondent No, 1 ' as a successful candidate.
The petitioner being aggrieved by the above declaration filed an election petition, which was disposed of by an order dated 28th September, 1980. It was found by the learned Election Tribunal that the petitioner had secured at least 185 votes while respondent No, 1 had secured at the most 180 votes. On the basis of the above finding the learned Election Tribunal allowed the petitioner's aforesaid election petition and declared him as elected and unseated respondent No, 1.
Respondent No, 1 being aggrieved by the above order filed Constitutional Petition No, D-1423/1980, which was disposed of by a Division Bench of this Court by judgment dated 9th December, 1981, the operative portion of the above judgment reads as follows :- "As regards the challenged votes, which are four in number, we find that no decision at all has been given by the Election Tribunal in that regard. In fact a perusal of the impugned order shows that the Election Tribunal did not make any reference therein to these four challenged votes. We have seen these four challenged votes and we are of the view that as no decision has been given by the Election Tribunal, this matter may be remanded back to the Election Tribunal to take a fresh decision in the matter on the basis of his finding on these four challenged votes. We may observe that if all these four challenged votes are found by the Election Tribunal to have been validly cast in favour of the petitioners there would be equality of votes and as the lot had been drawn in favour of the petitioner, his election from that seat would be in accordance with law. However, if any one or more of these challenged votes are found by the Election Tribunal not having been validly cast in favour o the petitioner, then the votes in favour of respondent No, I will be more than the votes cast in favour of respondent No, 3 and in that event respondent No, 3 will be the winning candidate from the constituency in question. We may clarify here that by our present judgment we are not understood as holding that the decision that will be given on remand in terms of this judgment will not be subject to challenge. If any party feels aggrieved and under Article 9 of the Provisional Constitution Order, 1981 such decision of the Election Tribunal is liable to challenge, the aggrieved party will be free to file a constitutional petition."
2. In the circumstances, the impugned order dated 28th September, 1981 of the Election Tribunal is set aside and the matter is remanded to the Tribunal in terms stated hereinabove. The four challenged votes have been marked " A" , "B", "C" and "D" in red and have been signed by the Reader of this Court and these are placed in the same envelope, in which the challenged votes were received from the Election Authority by this Court. We may, however, observe that the envelope contains four other challenged votes which are not relevant for purposes of decision of this case.
The envelope has been further sealed by the seal of this Court which will be opened before the Election Tribunal at the time of final hearing of the Election Petition. There will be no order as to costs.
' The Provincial Election Authority is directed to send the case to the Election Tribunal concerned for decision within one month. The office directed to send the ballot-papers forthwith to the Provincial Election Authority."
2-A. After the case was received back by the learned Election Tribunal, it seems that the latter without holding any inquiry as to the validity of the four challenged votes referred to in the above quoted portion of the judgment disposed of the election petition by its order date 23rd February, 1982 and 'on the basis of the visual examination came to the conclusion that these four challenged votes were in fact cast in favour of respondent No, 1, who had secured equal votes namely, 182 with the result that the drawing of lot by the Returning Office was valid and that respondent No, 1 was validly declared elected. The petitioner being aggrieved by the above order has filed the present petition.
3. (a) In support of the above petition, Mr. Azhar Ali Siddiqui, learned counsel for the petitioner has contended that the learned Election Tribunal has failed to comply with the direction issued by this Court through the above-quoted portion of the judgment dated 9th December, 1981 inasmuch as it has not held any inquiry as to the reasons of the four challenged votes.
(b) On the other hand Mr. Naseem Farooqui, learned counsel for the respondent No, 1 has urged the following points :-
(i) That since the petitioner had not challenged the above four votes the same were challenged by some other candidate, the petitioner had no locus standi to rely upon the same ;
(ii) that the petitioner has not impleaded the other three candidates who had also participated in the above election in terms of rule 66 of the Sind Local Councils (Election) Rules, 1979 (hereinafter referred to as the election Rules) and, therefore, the above petition is not competent ; and
(iii) that in any case the learned Election Tribunal after hearing the parties has decided the case in terms of the direction given by this Court, and, therefore, the petitioner has no cause of action to challenge the above order of the Election Tribunal dated 23rd February, 1982.
4. Before considering the above contentions of the learned counsel for the parties it may be pertinent to quote hereinbelow rule 37 of the Election Rules, which. Reads as follows :- "37, (1) If, at the time a person applies for a ballot-paper for the purpose of voting, a candidate or his polling agent declares to the Presiding Officer that he has reasonable cause to believe that, that person has already voted at the election, at the same or another polling station, or is not the person against whose name entered in the electoral roll he is seeking to vote, and undertakes to prove the charge in a Court of law and deposits with the Presiding Officer in cash such sum as may be fixed by the Election Authority, the Presiding Officer, may, after warning the person of the consequences and obtaining his thumb-impression and, if he is literate also his signature on the counterfoil, issue a ballot-paper (hereinafter referred to as challenged ballot-paper) to that person.
(2) If the Presiding Officer issues a ballot-paper under sub-rule .(1) to such person he shall enter the name and address of that person in a list to be prepared by him (hereinafter referred to as the challenged votes list) in Form XII, and obtain thereon the thumb-impression and, if he is literate, also the signature of that person.
(3) A ballot-paper issued under sub-rule (1), shall, after it has been marked and folded by the elector, be placed in the same condition in a separate packet bearing label "challenged ballot- papers", instead of being placed in the ballot-box."
' It may by noticed that under the above-quoted rule a candidate or his polling agent can challenge a vote on the grounds mentioned therein namely :-
(i) that the person has already voted at the same or at another polling station ;
(ii) that the voter is not the person whose name is entered in the electoral roll ;
(iii) that upon receipt of the deposit in terms of sub-rule (1) a challenged vote is to be kept in a separate packet bearing the label, "challenged ballot-papers" in terms of sub-rule (3) of rule 37.
5. In the instant case we have examined the Form X in terms of rule 37, which contains the detail of the challenged votes including four votes in question, which were kept in a separate sealed envelope under the caption challenged votes". From the impugned order, it is evident that the learned Election Tribunal has failed to hold any inquiry in terms of rule 37 and has decided the case apparently on the basis of visual examination of the four votes, which were very much before the Division Bench and if no inquiry was contemplated, the above Division Bench could have decided the matter by visual examination as admittedly the above four challenged votes were purported to have been cast in favour of respondent No,
1. It is, therefore, clear that the Election Tribunal has failed to comply with the direction of this Court. It may be pertinent to deal with the alternate contention of Mr. Naseem Farooqui namely, that the parties were heard by the learned Election Tribunal and that they had not insisted upon any inquiry. It will suffice to observe that it was incumbent upon the learned Election Tribunal to carry out the direction of this Court, whether the parties had requested or not. Furthermore, there is nothing on record nor there is any indication in the impugned order to the effect that any of the parties had agreed otherwise than in terms of the directions of this Court.
6. As regards the other two contentions of Mr. Naseem Farooqui noted hereinabove namely, that the petitioner has no locus standi to rely upon the four challenged votes as he was, not the candidate, who had challenged these four votes, it may be observed that in support of his above contention he has referred to para. 9 of the election petition, the petitioner while narrating the facts stated the factum that respondent No, l's four votes were challenged but he had not raised any ground in respect thereof. In our view, it is not open now to respondent No, 1 to urge the above ground. This very ground was available to him if it was legally substantiable before the Division Bench at the time when the aforesaid judgment dated 9th December, 1981 was passed. The above judgment of the Division Bench proceeded on the assumption that the controversy in issue between the parties was as to the validity of the above four challenged votes, and the case was remanded to the learned Election Tribunal for resolving the above controversy.
7. Referring to the other contention of Mr. Naseem Farooqui that above writ petition is not competent as the petitioner has not impleaded the remaining three candidates in terms of rule 66 of the Election Rules, it may be pointed out that in the aforesaid writ petition filed by respondent No, 1, he had not impleaded the remaining three candidates. It may also be noticed that. The learned judges of the Division Bench . Made observation to the effect that the aforesaid three remaining candidates were not relevant for the purpose of decision of the said writ petition. The present impugned order has been passed in compliance with the aforesaid directions of this Court contained in the aforesaid judgment dated 9th December, 1981 passed in the aforesaid Writ Petition No, D-1423 of 1980. In our view it is not open to respondent No, 1 to urge that the above petition is bad for non-joinder of the aforesaid three remaining candidates. In fact the present writ petition is in continuation of the previous petition filed by respondent No, 1 (to which respondent No, 1 had not impleaded the remaining three candidates as pointed out herein-above), as it is the grievance of the petitioner that the learned Election Tribunal has not complied with the direction of this Court given in the aforesaid earlier petition, which grievance is justifiable as has been held by us.
8. For the aforesaid reasons we allow the petition, and quash the impugned order and remand the case to learned Election Tribunal with the direction to hold inquiry in respect of the four challenged votes in terms of rule 37 of the Election Rules, 1979 and to provide opportunity to the parties to lead evidence. In the circumstances of the case there will be no order as to costs. The office is directed to return the record to the Election. Authorities with the direction to forward the same to the Election Tribunal.