' RUSTAM S. SIDHWA, J.--This is a constitutional petition filed by Ali Muhammad, petitioner, calling in question the judgment of the Election Tribunal, Faisalabad, respondent No, 6, dated 9-2-1984.
2. The facts of this case in brief are that Ali Muhammad, petitioner, and Muhammad Bashir, respondent No, 1, apart from four others, contested the seat from Unit No, 65 Municipal Corporation, Faisalabad. Ali Muhammad, petitioner, Secured 1251 votes, whereas Muhammad Bashir, respondent No, 1, secured 1249 votes. The rest of the four candidates secured much lesser number of votes.
Accordingly, the petitioner was declared duly elected. Muhammad Bashir, respondent No, 1, thereupon filed an election petition claiming that in Female Polling Station No, 190; the Presiding Officer had wrongly rejected 61 ballot papers of his, as against 53 of the petitioner, and if they were added to the count of the ballot papers accepted, he .Would win the election. The petitioner did not file any recrimination under rule 11 of the Election Petitions Rules within fourteen days of the commencement of the trial, nor in his written statement took up the plea that in respect of the Female Polling Station No, 189, the Presiding Officer had wrongly rejected fourteen of his ballot papers, as against 8 of respondent No, 1, and that if they were also added, he would continue to retain his seat. The Election Tribunal framed a number of issues, and after recording evidence of the parties in the matter and hearing arguments, accepted the election petition of respondent No,
1. It appears that during the course of recording of the evidence, an attempt was made on the part of the petitioner to introduce a statement of count prepared by the petitioner's own Polling Agent (annexure C to the petition) and alleged to have been signed by the Presiding Officer of Polling Station No, 189, to show that 14 ballot papers of the petitioner and 8 ballot papers of respondent No, 1 had been rejected, when the statement of the petitioner's own Polling Agent Almas Akhtar was being recorded. It appears that since the said Statement of Count (annexure C to the petition) was not relied upon at the time of the filing of the written statement, nor was placed on the record at the earliest opportunity, and it also did not bear the number of the Polling Station and the Presiding Officer who had allegedly signed it was also not produced, the same was rejected from being received in evidence. Accordingly, by the impugned judgment, the Election Tribunal neither permitted the petitioner to prove this case nor accepted it during arguments. The petitioner being aggrieved by the attitude of the Election Tribunal, filed a writ petition in this Court, which is now before us for disposal.
3. On behalf of the petitioner it is submitted that once the Election Tribunal validly permitted the petitioner to take up the case regarding the Female Polling Station No, 189, it could not refuse to receive in evidence the Statement of Count relating to Female Polling Station No, 189 (annexure C to the petition), In the alternative, it is stated that the Tribunal should have inspected the actual Statement of Count in Form XIII relating to that Polling Station, which was in the sealed bag relating to the Polling Station, after checking it itself and verifying the authenticity of the petitioner's contentions, it should have recorded and dealt with the same in its judgment. Since the Election Tribunal did not inspect the official Statement of Count in Form XIII of the said Female Polling Station, nor referred to the same in its judgment, which omission was a grave illegality, the case should be remanded back to the Tribunal for the said purpose.
4. On behalf of respondent No, 1 .It is submitted that neither the petitioner filed any recrimination under rule 11 of the Election Petitions Rules within the period of time prescribed for that purpose, nor in his written statement he referred to the fact that the Presiding Officer of Female Polling Station No, 189 had wrongly rejected 14 of his ballot papers, as opposed to 8 of respondent No, 1, on the same legal ground as pleaded by respondent No, 1 in his election petition and that he may also be granted the credit for the said ballot papers wrongly rejected. It is further submitted that when respondent No, 1 produced all his witnesses before the Election Tribunal, the Statement of Count (annexure C to the petition) was not put to any of them in their cross-examination, but it was only when the petitioner produced his own Polling Agent, Almas Akhtar, in the witness box, that he tried to prove the said Statement of Count through her, which, on objections raised by his opponent was rejected by the Election Tribunal. In this connection it is submitted that the petitioner was rightly disallowed to prove his own Statement of Count, as respondent No, 1 had no earlier notice of the same in the written statement, for, if he had so, he would have called upon the Lady Presiding Officer of Female Polling Station No, 189 to disprove all the writing in the fourth column of the said Statement of Count, which were written after the issue of the said statement and were, therefore, fabricated. It is next contended that the official Statement of Count in Form XIII (annexure R/A to the petition) clearly shows that there were no ballot papers rejected by the Presiding Officer at the Female Polling Station No, 189, which also stands reflected in the Statement of total Count of all the Polling Stations in Form XIV (annexure R/B to the written statement) relating to Unit No, 65 of the Municipal Corporation, Faisalabad.
5.We have given our anxious consideration to this case. Having read the election petition (annexure A to the writ petition) filed by respondent No, 1 against the petitioner, it is clear that respondent No, 1 only took up the plea that the Presiding Officer of the Female Polling Station No, 190 had wrongly rejected 61 ballot papers of his, as opposed to 53 of the petitioner, on the ground that the thumb impressions of the voters on the same had spread and had covered more space than the impressions. In the written statement (annexure B to the writ petition) filed by the petitioner, the petitioner took up the plea that the ballot papers rejected by the Presiding Officer were validly rejected, as the marks on them identified the voters, No plea, in the alternative, was taken up by the petitioner that in case the plea of respondent No, 1 was held to be correct, that ballot papers rejected for the same reasons by the Presiding Officer of Female Polling Station No, 189 be also accepted and taken into consideration in the Statement of Count. It is admitted by the learned counsel for the petitioner that no such plea was taken in the written statement. It is also admitted by him that no recrimination was filed by the petitioner in that connection. However, it is submitted that both were not necessary, as the Election Tribunal permitted the petitioner to raise this plea in proceedings before it, which stands proved by the observations made by it, in pars 10 of its impugned judgment. In the first instance, we are not very certain that the Election Tribunal permitted the petitioner to take up the new plea. On the contrary, it appears that the Tribunal refused to permit the petitioner to do so, by rejecting to receive on record the Statement of Count (annexure C to the writ petition) prepared by the petitioner's own Polling Agent. The mere fact that some reasons have been given by the Election Tribunal showing why it refused to receive in evidence the said document, does not mean that the Election Tribunal permitted the petitioner to raise the plea, which in turn absolved the petitioner from either filing his recrimination or seeking an amendment of his written statement. But even assuming, for a matter of argument, that the Election Tribunal permitted the petitioner to take up this plea, we would observe that it was improper, as the petitioner could not have been permitted to raise a plea not taken up by him either in his written statement or in recrimination. Had such a plea been taken in the written statement or in recrimination, the petitioner would have been bound to produce in advance the Statement of Count (annexure to the writ petition) prepared by his own Polling Agent, which in turn would have compelled respondent No, 1 to disprove the same by calling the Presiding Officer. Since the petitioner neither took up this plea in his written statement or recrimination, nor filed the statement of Count with his written statement in advance, it was rightly rejected by the Tribunal.
Even otherwise, respondent No, 1 has filed certified copies of the official Statement of Count in Form XIII of Female Polling Station No, 189 and the official Statement of Count in Form XIV of all the four Polling Stations (annexures R/A and R/B to the written statement), which show that no ballot papers were rejected at all in Female Polling Station No,
189. The contention of the learned counsel for respondent No, 1 that the writing in the fourth column of the petitioner's own Statement of Count (annexure "C" to the petition) has been written much afterwards and is a fabricated document, cannot be totally excluded. The submission that the said Statement of Count was not put to any of the witnesses produced by respondent No, 1 and the fact that the petitioner tried to prove the statement when his own Polling Agent, Almas Akhtar, was in the witness box, much after the evidence of respondent No, 1 was closed, does support the plea of the respondent that the petitioner's Statement of Count is not free from taint. Taking all circumstances into consideration, the impugned judgment appears to be legal and proper. There is no need to remand the case at all to the Election Tribunal. The object of this petition is only to prolong the stay of the petitioner on the council seat, which, otherwise, he would have to vacate. We are afraid, we cannot permit this state of affairs to continue any longer.
6. For the foregoing reasons, there is no merit in this petition. The same is dismissed.