' MUNIR A. SHEIKH, J.---In this Constitutional petition order dated 11.3-1989 passed by the Election Tribunal whereby election petition filed by respondent No,2 was accepted and the election of the petitioner as member of Zila Council was declared to be void and instead respondent No,2 was declared to have been elected as member of the said Zila Council.
2. The facts leading to the present Constitutional petition shortly stated are that the petitioner and respondents Nos. 2 to 9 contested the election for membership of. Zila Council Lahore from electoral unit No,11. At the conclusion of the election according to the count prepared by the Presiding Officer the petitioner was found to have obtained 2,141 votes whereas respondent No,2 was held to have polled 1976 votes, therefore, the petitioner was declared as returned candidate and notification was accordingly issued.
2-A. Respondent No,2 feeling aggrieved filed an election petition challenging the election of the petitioner as returned candiate of Zila Council. The main ground urged in the election petition was that the Presiding Officer of polling station situated at Government Girls High School, Chung, for electoral units NosA, 5, 6 and 10 committed illegal practices when he counted 234 votes in favour of the present petitioner whereas in fact they were polled in favour of another candidate Malik Manzoor Hussain. According to his case the petitioner has polled only 58 votes at this, polling station. The election petition was contested by the petitioner who levelled allegation against respondent No,2 that he had tampered with the election record and filed the election petition. The Election Tribunal reflected the controversies arising from pleadings of the parties in the following issues:- (1)Whether Malik Manzoor Hussain respondent obtained 234 votes (against symbol ladder) at Government Girls High School Chung polling station, which were wrongly shown as obtained by Malik Muhammad Munawar Khan respondent (Tractor Symbol) though Malik Muhammad Munawar Khan respondent had obtained only 58 votes? OPP
(2) Whether there has been any illegal practice or under-hand means by any of the candidates in connivance with the polling staff in procuring the final effecting the election? O.P. Parties.
(3) Whether Muhammad Munawar Khan respondent obtained 78 votes against his symbol (Tractor) at. Government Boys Primary School Juliana and Malik Manzoor Hussain had obtained only 40 votes against his symbol (Ladder) but the Presiding Officer inter-changed these to the disadvantage of Malik Muhammad Munawar Khan? O.P.P. Respondent No,3
(4) Whether the petitioner is entitled to be declared elected? O.P.R.
(5) Relief
3. It may, however, be stated here that before framing the issues the. Election Tribunal summoned the election record. Mr. Iqbal Hussain Tehsildar after obtaining record from the Treasury under the orders of the Returning Officer produced the same before the Election Tribunal. The learned Election Tribunal observed that the polling record of polling station situated at Government Girls High School, when produced before it was in the following condition:- "None of the envelopes containing the votes cast either in the District Council or for the Union Council is closed, what to say of these being sealed. Four envelopes on which awards Nos.4, 7, 7 and 10 is written by the Presiding Officer, have been emptied of the ballot papers."
' The statement of Mr. Iqbal Hussain Tehsildar who produced the said record was recorded who stated that the record was in this very condition when he took it from the Treasury as observed by the Tribunal. The Election Tribunal counted the votes cast in favour of different candidates and found that the votes cast in favour of Tractor were 52, in favour of Ladder 234 and in favour of Fan
168. It may be mentioned here that the election symbol allotted to the petitioner was Tractor whereas that allotted to respondent No,2 was Fan and Munawar Hussain was allotted the symbol of ladder. Polling station Government Boys Primary School Juliana, Wards Nos.13, 14 and 15 and found that the Bag alongwith The seal was intact. According to the initial count prepared by the Presiding Officer the votes cast by the said three candidates at this polling station was as follows:- ' Petitioner 40 votes ' Manzoor Hussain 78 votes ' Respondent No,2 230 votes ' On the re-counting undertaken by the Election Tribunal these three candidates were found to have polled votes as follows:- ' Manzoor Hussain 78 votes ' Present petitioner 38 votes ' Respondent No,2 280 votes ' therefore, according to the re-counting respondent No,2 was found to have polled 50 votes more than shown to have been cast in his favour in the initial count prepared by the Presiding Officer.
5. The parties led evidence. Apart from oral evidence, respondent No,2 produced in evidence copy of Form-XII prepared by the Presiding Officer after counting of votes at the close of poll, as Ex.P,1.
This document shows that alongwith the names of the candidates election symbols of candidates were also mentioned on the right side of the name of each candidate. Against the name of the petitioner instead of Tractor the word "Ladder" has been mentioned whereas against the name of Manzoor Hussain instead of Ladder the word "Tractor" has been mentioned. The petitioner placed a certified copy of the same document on the record which did not indicate against the names of candidates their election symbols. The petitioner moved an application under Order 18 rule 17 C.P.C.
For re-calling PW.1 the author of the original document to clarify the ambiguity. This application was rejected through order dated 2-10-1988 with the observation that the ambiguity, if any, would be removed through scrutiny of the statement of P.W.1, the document as Ex.P.1 and a certified copy of the said document i,e. Form XII, as the recalling of the witness would further delay the disposal of the petition. The petitioner feeling aggrieved filed writ petition in this Court against the said order which was disposed of with the observation that since the Election Tribunal had observed that the ambiguity would be removed by scrutiny of evidence and certified copy of the said document, therefore, the said order did not call for any interference.
6. The Election Tribunal basing its decision on the counting done by the learned predecessor Presiding Officer of the Tribunal after calling the record and before framing issues held that respondent No,2 had polled 2,029 votes as against the present petitioner who polled 1,967 votes, therefore, election of the petitioner was declared as void and respondent No,2 was declared a returned candidate, as such, through order dated 11-3-1990 the election petition was accepted in the above terms.
7. We have heard learned counsel for both the parties and scrutinized. The evidence produced by them. We also summoned the original election record and Form XII prepared by the Presiding Officer regarding the counting of votes. According to respondent No,2 when he was issued certified copy of Form XII it contained the names of election symbol on the margin against the names of candidates which was produced in evidence as Ex. P.2. A certified copy of the same document produced by the present petitioner shows that no mention of election symbol was made on the margin of the said document though it is in the evidence of the petitioner when he appeared as his own witness that against his name election symbol "tractor' was mentioned in the said Form. In order to ascertain the true facts we summoned the said record which has been made available.
According to the record there is no mention in the margin of the said document about the election symbol of the candidates on the said Form which has been prescribed under the Punjab Local Council (Election Petitions) Rules, 1979, according to which there was no requirement of mentioning the election symbols of the candidates on this form. According to the prescribed Form serial, number, names of contesting candidates, number of voters polled by the contesting candidates, number of rejected ballot papers and number of valid ballot papers were required to be mentioned. According to this Form present on the record against the name of the present petitioner the number of valid votes cast in his favour was 234 whereas Malik Manzoor Hussain Khokhar was shown to have polled 58 votes. This result sheet relates to polling station situated at Government Girls High School, Chung. The learned Presiding Officer of the Election Tribunal after examining the record of this polling station observed that the envelopes containing the votes were not closed what to say of these being sealed. Four envelopes were found to have been emptied of the ballot papers. From this it was sufficiently clear that the record was neither properly maintained nor sealed as required by Rule 43 of the Election Rules which required that the packet containing the said record was to be sealed and an endorsement was to be made on each packet regarding the description of its contents, date of election to which the contents related and the name and number of electoral unit for which the election was held. The bag containing the said record was also found to have A been torn about the size of one `balishat'. In these circumstances in our view this record and the counting of the votes on its basis could not form the basis for declaring the election of returned candidate as void as it could safely be concluded that the same was tampered with. In these circumstances we are clear in our mind that one has to fall back upon the initial count prepared by the Presiding Officer at the conclusion of the polls which was reflected in Form XII prepared by him. Against the name of petitioner it was recorded that he polled 234 valid votes whereas Malik Manzoor Hussain was shown to have polled 58 votes and merely because in the margin against the name of the petitioner election symbol of Ladder was mentioned was not sufficient to conclude that 234 votes mentioned against the name of the petitioner were in fact polled by Manzoor Hussain who was allotted ladder as symbol. The document Ex.P.1 having been found to be not the true copy of Form XII was not credit-worthy which should not have been taken into consideration. The learned Election Tribunal though observed in the order dated 2-10-1988 dismissing the application of the petitioner for recalling P.W. 1 that certified copy of the said Form XII would also be considered failed to take into consideration the said copy produced by the petitioner which was the true copy of the original Form XII as compared by us.
8. So far as the recounting of polling station situated at Government Boys Primary School Juliana is concerned the bags were found to be properly sealed and as a result of recounting respondent No,2 was found to have polled 280 votes as against 230 shown to have been polled by him in initial count. Nothing turns on this inasmuch as if the count as made by the Election Tribunal regarding polling station situated at Government Girls High School is maintained the petitioner has still the lead of 115 votes. The learned Election Tribunal committed grave illegality in accepting the election petition merely on the basis of recounting of votes based on the record which was not properly maintained.
9. This writ petition succeeds. It is accepted. The impugned order dated 11-3-1989 passed by the Election Tribunal is hereby declared to have been passed without lawful authority and of no legal effect and quashed. There will be no order as to costs.