MUNIR A.SHEIKH, J.--This constitutional petition, calls into question the order dated 13.1.1990 passed by respondent No. 1, whereby the election petition filed by respondent No.2 was accepted and the said respondent was declared as the returned candidate as against the petitioner.
2. The facts giving rise to this petition shortly stated are that the petitioner and respondents 2 and 3 contested election for Membership of Zila Council Sahiwal from electoral unit No.19. This election was held on 30.11.1987. According to the initial count of the votes prepared by the Presiding Officer, the petitioner was found to have secured 2602 votes whereas respondent No.2,2600 and respondent No.3 was found to have polled 695 valid votes. The Returning Officer, declared the petitioner to have been elected as member of the said Zila Council. After the notification of this result in the official gazette on 5.12.1987 the petitioner took prescribed oath and started acting as member of the said Zila Council.
3. The respondent No.2 challenged the said election by filing election petition before respondent No. 1. The election of the petitioner was challenged on various grounds such as that polling at Chak No. 101/9-L was held disorderly and for the convenience and advantage of the petitioner who was alleged to have indulged in multifarious irregularities with the active connivance of the Presiding Officer and the Police posted at the said polling station. It was also alleged that unfair advantage was given to the petitioner by the Presiding Officer by allowing his voters to enter the polling booth of Chak No. 101/9-L after 4 P.M. And his complaints made to the Returning Officer and Assistant Commissioner were not given any consideration. He also challenged the correctness of counting of votes in polling station Chak No. 101/9-L and stated that it was illegal and incorrectly held that the petitioner had poled 860 votes and respondent No.2, i.e. The election petitioner 71 votes. He also asserted that number of valid votes at various polling stations were not counted in his favour and that various valid votes polled by him were declared as invalid whereas invalid votes polled by the petitioner were declared valid. According to him these irregularities were committed by the polling staff due to influence of Member Provincial Assembly who allegedly used the Government Machinery to influence the voters to cast their votes in favour of the present petitioner who assured them that in lieu thereof they would be given proprietary rights over the lhatas illegally occupied by them. He also made allegations that the petitioner was guilty of casting of bogus votes specially at polling station in Chak No.l01/9-L. It has also been stated that on account of these highhandedness of the Presiding Officer and the Police the respondent No.2 and his polling agents left the station and polling agents of respondent No.3 the 3rd contesting candidate had also boycotted the count.
4. The respondent No.3 in his written-statement filed before the Election Tribunal supported the election petition. The election petition was contested by the present petitioner who raised various preliminary objections in the written-statement regarding improper verification of petitioner, nonverification of the documents attached with the election petition^ as also on delivery of copy of the petition to the present petitioner before presenting it before the Election Tribunal. Other allegations levelled in the Election Petition were also denied. It was asserted that the allegations as contained in the election petition were vague and full and necessary particulars of the allegations were not given. On merits it was stated that the election was held fairly and strictly in accordance with the rules and that neither the respondents 2 and 3 nor their agents raised any objection against the wrong counting of votes or illegal rejection of valid votes. The respondent No.2 was called upon to i.e replication. In the replication in order to remove the objection regarding vagueness of the allegations he pleaded that at polling station of Chak No. 101/9-L, the Presiding Officer illegally gave 20 votes to the present petitioner and he did not give the same number of votes to him. In other words his case was that at the polling station of Chak No.l01/9L he had actually polled 91 votes as against 71 which were held to have been polled by him whereas as against 860 votes counted in favour of present petitioner he had polled 840 votes.
5. The Election Tribunal reflected the controversies arising from the pleadings of the parties in the following issues: -
1. Whether the Election Petition has not been verified in accordance with law. If so prove its effect?
OPR.
2. Whether the documents attached with the Election Petition are annexures within the meaning of Election Petition Rules, despite that these have not been specifically marked? OPR.
3. If issue No.2 is answered in affirmative then what is the effect of nonverification of these documents? O.P Parties.
4. Whether the Election Petition is violative of Rule 5(1) of the Punjab Local Council Election (Petition)
Rules, 1979. If so prove its effect? OPR.
5. Whether the petitioner had furnished copy of the Election Petition in accordance with the Rules to the respondent OPR.
6. If issue No.5 is not proved, what is its effect? O.P Parties.
7. Whether the petitioner had polled votes more than the contesting candidates? OPP.
8. Relief.
The Election Tribunal treated issues 1 to 6 as preliminary issues and by order dated 3.4.1988 1988 the same was decided against the petitioner. On this date the respondent No.2 made an application that he would confine his case and the evidence only to the re-counting of the valid votes in favour of all the three candidates. This application was contested by the present who is reply pleaded that the same was mala fide. An allegation was made that one Muhammad Zulfiqar Khan Mardana a brother-in-law of respondent No.2 was an influential person, and during the pendency of the election petition, respondent No.2 in connivance with Muhammad Zulfiqar Khan Ntardana had got the election record of the said Halqa tampered with for his benefit and re-counting of votes, On the basis of the said tampered and manipulated record was objected to. The Election Tribunal passed an order on 21.5.1988 requiring the A.D.C(G) Sahiwal, the Returning Officer, to report whether the election bags are in-tact or not. The Returning Officer made a report on 28.5.1987 that the seals of the bags were intact and that there appeared to be no sign of tampering of the record. It is also in his report that election bags of the whole District are stored in the Malkana and are in-tact under the personal supervision of District Nazir. The Election Tribunal through order dated 7.6.1988 summoned the record of all the polling stations of this electoral units for re-counting. He started re-counting of votes of polling station of Chak No. 91/9L which was done in two days but finding that the job was time consuming the Election Tribunal appointed a Local Commissioner to open the bags and re-count all the votes in the presence of all the three candidates and separate those votes about which there were objections for determination by the Tribunal. The Local Commissioner counted the votes which took many days and he submitted his report along with the proceedings taken by him to the Election Tribunal on 12.7.1988. The petitioner filed objections against the report of Local Commissioner in which he repeated his previous objections about the tampering with of the record. The Election Tribunal on the basis of the report of Local Commissioner adjudicated upon the objected votes of all the polling stations except polling station of Chak No. 101/9-L. According to the re-counting of the said six polling stations by the Election Tribunal the petitioner was found to have poled 66 votes more as against the initial counting done by the Presiding Officer after the conclusion of the election. The respondent No.2 was found to have polled two votes more as a result of this re-counting by the Election Tribunal The Election Tribunal then started considering the report of the Local Commissioner regarding polling station of Chak No.l01/9L. He made observation about nature of objection raised by the candidates against the valid votes of each other as also objections against the rejected valid votes but did not record its findings on the I said objections. The learned Election Tribunal noted that 249 ballot-papers of this polling Station there was entry that these were cast in Halqa No.1 and a few votes did not at all contain the name of any Halqa. The objection of the present petitioner in respect of these votes was that respondent No.2/Election Petitioner was responsible for getting these bogus ballot-papers smuggled into the polling bag of this polling station to manipulate the result. The Election Tribunal summoned the polling staff of polling station No.91/9-L to record their statements, in respect of these 249 ballot papers. Statement of Allah Rakha Assistant Presiding Officer was recorded on 28.2.1989. After recording his statement the Election Tribunal observed that inadvertantly Halqa No. 1 was recorded on these ballot-papers whereas actually those had been issued in connection with Election of District Council Seat No.19. It may be mentioned here that on the same date election of Halqa. No. 1 Union Council was also being held simultaneously. The Election Tribunal directed the petitioner to produce evidence to establish his allegations that the record of polling station of Chak No. 101/9 was tampered with. The petitioner examined Syed Sibghat Ullah Presiding Officer as R.W.1 and Muhammad Siddique Assistant Presiding Officer as R.W.2 and examined himself as R.W3 to prove his allegations. He also produced documentary evidence such as R.W.1/ A.B and C.
Respondent No.2 was called upon to produce evidence in rebuttal who examined two witnesses namely Ch. Ghulam Ahmad, Advocate who was Local Commissioner and Muhammad Ali District Nazir D.COffice. The respondent No.2/Election Petitioner did not examine himself as his own witness.
When the case was fixed for arguments, the learned Presiding Officer i.e. District Judge Sahiwal declined to hear the case for personal reasons and transmitted the record to the Punjab Election Authority for transfer of the case to some other Tribunal. In the result, the case was entrusted to respondent No. 1 who through his judgment dated 13.1.1990 impugned in this writ the election petition of respondent No.2 and found him to have obtained 2602 valid votes as against 2530 obtained by the petitioner as a result of re-counting as such respondent No.2 was declared returned candidate and the election of the petitioner was declared as void.
6. learned counsel for the petitioner relying upon judgments reported as Kanwar Ijaz Ali Versus Irshad Ali and 2 others (P.L.D 1986 S.C. 483), Mubarik Ali Versus Election Tribunal, and another (1988 C.L.C. 1530) and Mian Muhammad Faruq Versus Election Tribunal etc (N.L.R. 1988 Civil. 599) argued that direction for re-counting of votes could not be given merely at the desire of the respondent/election petitioner unless the Election Tribunal was satisfied by such party desiring re- counting on the basis of evidence regarding alleged commission of irregularities by the Presiding Officer during the counting of votes. The argument has considerable force. The onus was all along on the election petitioner to have first produce some evidence to establish his allegations that there were irregularities in the counting of votes and it was only then if the Tribunal was satisfied that counting of votes could be done. In this case, the election petitioner gave up all the objections raised in the election petition and claimed mere re-counting of votes which was ordered mechanically without there (being any evidence to establish the allegations of irregularities as alleged in the election petition. The rule laid down in the aforementioned reported judgments is to the effect that the Tribunal could not at the mere desire of the party without their being any evidence of commission of irregularities have ordered the re counting of votes.
7. The petitioner also had filed objections against the report of Local Commissioner therefore, before acting upon the said report the Election Tribunal was legally bound to dispose of the objections against the said report filed by the petitioner. It appears that the Tribunal proceeded to decide the election petition on the basis of the report of Local Commissioner unmindful of the fact that the correctness of the same had been seriously objected to.
8. The learned Election Tribunal has not given due consideration to the objections of the petitioner against re-counting of votes at this stage on the ground that the record had already been tampered with. This aspect has engaged our serious consideration. The case of the election petitioner was that in Polling Station in Chak No.l01/9L he had secured 91 as against 71 according to the initial count and that the present petitioner had polled 840 votes as against 860 shown to have been polled by him in the count prepared by the Presiding Officer. The Election Tribunal merely on the report of A.D.C(G) Sahiwal assumed that the record was properly maintained. Since the petitioner had raised an objection that the record had been tampered with, the report of A.D.C(G) could not be read as piece of evidence in proof of authenticity of the record on the ground that the same was properly maintained, unless the maker of the report was examined in the Court as witness in support of his report and the petitioner was given opportunity to cross-examine him.
Likewise the learned Tribunal recorded the statement of Allah Rakha, Assistant Presiding Officer in respect of certain votes on which Halqa No. 1 was written and the petitioner did hot have the opportunity to cross-examine him as he was not examined as witness in the strict sense. In his statement Allah Rakha stated that those ballot papers bore his signatures. The learned Election Tribunal on the basis of this statement held that those ballot papers related to the election of District Council No.19 in dispute. The case of petitioner was that those ballot papers related to election of Union Council of Halqa No. 1 which was being held simultaneously with the election of District Counsel Seats and those votes were smuggled in this Halqa. The statement of Allah Rakha does not indicate that on those ballot papers he inadvertantly wrote Halqa No. 1 instead of 19 which was attributed to him. The petitioner should have been given opportunity to cross-examine Allah Rakha in view of the stand as mentioned above having been taken by the petitioner about smuggling of these ballot papers unauthorisedly.
9. Coming to the question whether the record of the election produced before the Election Tribunal was properly sealed and maintained in the treasury. It may be pointed out that according to rule 43 of the Punjab Local Council (Election Rules) 1979, the record of election was required to be kept by Deputy Commissioner in safe custody. According to paragraph 43 of the had-book issued by Election Authority containing directions and instructions relating to the election and the election record the Returning Officer was required to seal them and endorse on each packet the description of its contents date of election to which the contents related and the name of the electoral unit and forward them to Deputy Commissioner for safe custody. It has been the normal practice with the Deputy Commissioner that the documents pertaining to the Local Council Elections are kept by them in the strong room of the treasury etc. This is manifest from the Finance Department letter No IT(FD)6-27/83 dated 19.9.1988 through which he requested for the removal/disposal of old election record of 1979 and 1983 as also of 1987 owning to shortage of space in the strong room in the District treasuries(annexed as Annexure PB) In this case, the record was produced from the custody of Assistant District Nazir over which he exclusively had full control. It is in the evidence of P.W.2 a witness examined by the petitioner that Assistant District Nazir was the only person in possession of the election record and that he could if wanted tamper with the record from which it is manifest that the record was not kept by the Deputy Commissioner in safe custody. The Local Commissioner in his report observed that; "The paper bag was closed with gum, although the cloth bag covering it was slightly torn from one corner. Another packet of un-issued ballot papers was recovered from it. This packet was not closed with gum and it contained 4(four) booked of un-used ballot papers and four books."
About bag containing ballot papers of Polling Station of 98/9L his observation reads as under- "It was slightly torn at two places and part of seal was also not present. But nothing could be taken out from these holes. Out of this bag another small cloth bag was recovered over which the words District Council Sahiwal Wards No. 5, 6 and 10 are written. This bag was not sealed. Another envelop was found in the bag which was not sealed nor closed with gum."
At another place he observed as under:- "Envelop containing counter foils of issue ballot papers was taken out from the cloth bag. It was sealed from one side but two seals were damaged while two were intact. The other side of this envelop was not closed.: About election record of Polling Station No. 2 in Chak No. 101/9L it has been observed by the Local Commissioner as under:- "It was produced by Mr. Muhammad Sarwar, Assistant District Nazir. Only partial seal was present and about 2 inches unstitched hole was there in the bag. This big bag was opened in the presence of the parties and their learned counsel and a small cloth bag containing polling record of polling station No. 62, Unit No. 16 and 17 Chak No.101/9L District Council Sahiwal was found. This small bag was properly sealed and in proper condition".
About Polling Station 99/1 it was observed by the Local Commissioner as follows:- "A paper bag with doth lining properly dosed with gum, was opened. It contained another paper envelop with the words "Valid Ballot Papers" written on it. It was lying open from one side. Another paper bag with doth lining was opened which has two seals but in the middle of this bag its mouth was lying open about 8 inches in length".
From these findings and observations of the Local Commissioner, it can safely be held that the Election Record was neither sealed and retained nor was kept in safe custody in accordance with the directions and instructions issued by the Election Authority. Moreover, the respondent No.2 election petitioner did not examine himself as a witness which omission is very much significant in view of the fact that - allegation of tampering with the record was levelled against him by the petitioner in collusion with Muhammad Zulfiqar Khan Mardana who was also not examined as witness. The re-counting of the ballot paper in these circumstances was not justified in law. It does not stand to reason that Presiding Officer who was responsible to count the votes at the conclusion of the poll would have dared to count 214 ballot papers containing seals against the symbols of the three candidates. Learned counsel for the respondents placed reliance upon judgment reported as Wilavat Khan Versus Reham Dad and others (1985 S.C.M.R.532) to contend that once re-counting had been done by the Tribunal the same should not be interfered with. In the peculiar facts and circumstances of this case, when we have held that the record was not properly maintained in safe custody the rule laid down in this reported case would not be attracted to the present case.
4. For the foregoing reasons, we accept this writ petition. The order dated 13.1.1990 passed by Election Tribunal is hereby declared to have been passed without lawful authority and of no legal effect. In the result, the election petition stands dismissed. The parties are left to bear their own costs.