1. ' NASIM HASAN SHAH, J-This is an unusual case.
2. ' There appears to have been for condidates who desired to contest to election of Ward No, 7 Ghakhar Mandi, Town Committee, Ghakhar, namely, Ch. Abdul Hamid, petitioner herein, Muhammad Aslam, Respondent No, 4 and Mian Zahoor Ahmad, Respondent No, 3 and Makhdoomzada Ghulam Rabbani, Respondent No,
5. Strangely enough, the nomination papers of both Abdul Hamid, petitioner herein and Muhammad Aslam, Respondent No, 4 were seconded by one Sufi Rehmat Ali. These papers were filed on 31-8-1983. The nomination paper field by Muhammad Aslam, Respondent, was submitted at 9 a.m., while that of Abdul Hamid, petitioner herein, at 12-45 a.m. Since the nomination papers of both the candidates were shown to have been seconded by Sufi Rehmat Ali, on scrutiny thereof on 8-9-1983, the nomination papers of Muhammad Aslam respondent, which were received prior in time were accepted and those of Ch. Abdul Hamid were rejected. Ch. Abdul Hamid, therefore filed an appeal before the Deputy Commissioner, Gujranwala (the Appellate Authority) alleging that signatures of Soofi Rehmat Ali on the nomination papers of Muhammad Aslam, respondent No, 3, were in fact forged, with the result that the nomination papers filed by him alone seconded by Soofi Rehmat Ali, which bore him genuine signatures, were alone the valid papers. In fact, Soofi Rehmat Ali before the Appellate Authority swore on the Holy Quran that he had signed the nomination papers of Ch. Abdul Hamid only and that his signatures on the nomination papers of Muhammad Aslam were forged. Tne Appellate Authority thereupon accepted the appeal of Ch. Abdul Hamid, set aside the order of the Returning Officer and declared Abdul Hamid to be the nominated candidate in Ward No, 7 of Town Committee, Ghakhar, however, observing at the same time that the question whether on account of the acceptance of the nomination papers of Abdul Hamid, the nomination papers of Muhammad Aslam stood automatically rejected was a difficut question of law and that Muhammad Aslam might seek a clarification in this behalf from the Provincial Election Authority.
3. This order was passed on 12-9-1983.
4. ' Muhammad Aslam thereafter filed a petition before the Provincial Election Authority in this connection, which authority, by its order, dated 26-9-1983, held that the question whether the signatures of Soofi Rehmat All on the nomination papers of Hamid were genuine, required a detailed investigation and could not be decided in a summary manner, especially when there was only two days left for the commencement of the polls (which were scheduled for 28-9-1983). It, therefore, decided that both Abdul Hamid and Muhammad Aslam be allowed to contest the election and the dispute between the parties be referred afresh to the Appellate Authority, for decision after a thorough enquiry into the question. It was also ordered that the result of the election shall not be declared if any of the said two parties, namely, Abdul Hamid or Muhammad Aslam respondent secured the highest numbers of votes. In such an event the result of the election was to be declared subject to the decision of the Appellate Authority as to the validity of the nomination papers of the said two parties.
5. ' In the election held on 28-9-1983 Muhammad Aslam did not participate, by not bringing his ballot-box at the polls. This amounted to practically withdrawing from the contest. The main contest took place between Ch. Abdul Hamid, petitioner herein and Mian Zahoor Ahmed, respondent No,
3. However, Ch. Abdul Hamid secured the larger number of votes, namely, 247 votes to that of Mian Zahoor Ahmad, who secured 202 votes. He should, normally, have been declared elected. However, in view of the order of the Provincial Election Authority that the result of the election shall not be declared if either Ch. Abdul Hamid or Muhammad Aslam, respondent No, 4, secured the highest number of votes and it had made the said result subject to the decision of the Appellate Authority with regard to the validity of the nomination papers of the said two candidates, Ch. Abdul Hamid was not declared to be the successful candidate.
6. ' In the meanwhile, the matter was taken up by the Appellate Authority and by its order, dated 20- 11-1983 it held that the signatures of Soofi Rehmat All on the nomination papers of Muhammad Aslam, respondent No 4, were genuine and not forged. Consequently, the nomination papers of Ch. Abdul Hamid could not have been accepted nor could be participated in the election. In view of this finding, it noted that :-- "an interesting situation has arisen because the elections have been held in this Ward on 28-9- 1983 under the directions of the Punjab Local Councils Election Authority in which Abdul Hamid appellant participated but Muhammad Aslam did not take part. Abdul Hamid cannot be declared as elected from Ward No, 7 Ghakhar. The matter is, therefore, referred to the Punjab Local Council Election Authority, Lahore, for further direction about the holding of a re-polling or not."
7. ' The above order was passed on 20-11-1983.__ ' Despite the above reference by the Appellate Authority to the Punjab Election Authority for a direction about the question whether there should be a re-polling or not, the learned Returning Officer considering that after the disqualification of Ch. Abdul Hamid, respondent No, 3 (Mian Zahoor Ahmad) was left in the field alone, declared him on 22-1-1984 to be the successful candidate and the notification to this effect was issued on 8-2-1984. Feeling aggrieved by this action, the petitioner filed a writ petition before the Lahore High Court. This, however, was dismissed on 21-2.1984 on the ground, inter alia, that the petitioner had, in the meanwhile, also challenged the election of Mian Zahoor Ahmad by an election petition. Hence this petition for leave to appeal.
8. After hearing learned counsel for the petitioner, Dr. A. Basit and Ch. Muhammad Anwar Bhinder, learned counsel of Mian Zahoor Ahmad, respondent No, 3, who appeared in support of the caveat filed by him, we would convert this petition into an appeal, which shall be heard on the present record with liberty to the parties to add further documents, if any, for considering, inter alia, the question whether in the presence of the reference made by the Appellate Authority to the Punjab Election Authority for a direction whether, in the peculiar circumstances of this office, a fresh poll should not be held, the Returning Officer could have without waiting for a decision on the said reference, declared respondent No, 3 to be the elected candidate.
9. ' The appeal will be put up for hearing in the week commencing 7-4-1984.
10. ' During the course of the proceedings, orders were passed by this Court, at some stage, staying the election of the Chairman of the Town Committee. The Town Committee is, therefore, without Chairman during all these months. We consider, therefore, that the election for the Chairman of the Town Committee, Ghakhar, may be held that Mian Zahoor Ahmad, Respondent No, 3, shall not be allowed to participate therein. The stay order is modified accordingly,