IHSAN-UL-HAQ CHAUDHRY, J.- The relevant facts for the decision of this Constitutional petition are that the petitioner and respondents No.5 to 7 were the candidates in the last Local Councils Elections held on 20th May, 1998 from District Councils constituency No. 18, Gujranwala. The respondent No.5 was declared as elected and notification was issued on 08.6.1998. The grievance of the petitioner is that the result prepared in Form-XII in respect of Polling Station No.76, Sulekhanabad, Peeru Chak was fake as one Shaukat Ali alongwith others took away the election material and the Presiding Officer by force. The petitioner's side lodged F.I.R. No. 526/98. The matter was also reported to the Returning Officer who referred the matter to the Election Authority. It is added that the petitioner approached the Election Authority and on 08.6.1998 it was ordered that no further action shall be taken on any reference of the Returning Officer regarding Electoral Unit No.18, Zila. Council, Gujranwala by the Election Officer-I Section till the disposal of the petition before the Election Authority. The petition then came up for hearing on 11.6.1998 and the same was disposed of with the observation that the aggrieved party to avail proper legal remedy under the law. The petitioner thereafter filed the present Constitutional petition. The same was admitted to regular hearing on 17.6.1998. Notices were issued to the respondents. Rana Muhammad Arif, Addl.
A.G. Appeared for respondents No.1 to 4 while Ch. Ameer Hussain, Advocate has appeared for respondent No.5 and nobody appeared for respondents No.6 & 7, therefore, they were proceeded ex parte.
2. Learned counsel for the petitioner argued that after the issuance of the stay by the Election Authority the direction of the Secretary and Notification declaring the respondent No.5 as successful candidate were illegal and of no legal consequence. It is added that the stay order becomes effective from the moment it is issued. In this behalf learned counsel has relied on Messrs National Electric Company (Pvt.) Ltd. v. The Commissioner of Income Tax, Gujranwala Zone, Gujranwala (1996 PTD 901) and Muhammad Afzal Sohail v. Government of Punjab (1983 SCM R 859).
It is argued that the petitioner as well as the Presiding Officer, respondent No.4, have lodged reports with P.S. Saddar, Gujranwala as to the taking away of the ballots and election material. The report to the same effect was also made by the Presiding Officer, respondent No.4, to the Returning Officer, respondent No.3. It is added that in the presence of this documentary evidence the result of Polling Station No.76, Sulekhanabad, Peeru Chak was clearly forged and fabricated.
3. On the other hand, Ch. Ameer Hussain, Advocate, counsel for respondent No.5 argued that F.I.R.
No. 525/98 lodged by one Ashiq Hussain, alleged Polling Agent of the petitioner, and F.I.R. No. 526/98 lodged by the Presiding Officer registered with P.S. Sadar Gujranwala were only an effort to prepare, forge and fabricated evidence regarding loss of election material. The purpose was to deprive respondent No.5 of his victory in the election. It was added that the injunction of the type issued in the present case would be effective from the time of its service and not from the time of its passing. In this behalf reliance was placed on Karam Ali v. Raja (PLD 1949 Lahore I0O) and the judgment of the Hon'ble Supreme Court relied by the counsel for the petitioner.
It is argued that the Presiding Officer not only tabulated the result in Form- XII but supplied the copy of the same to the Polling Agents. The copy of the same has been appended with the written statement while the original was produced for the perusal of the Court. It is added that the allegations of destroying the record are false and mere concoction.
4. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and gone through the record as well as precedent cases.
Before proceeding to record our findings, it is important to record note that we have sent for the Presiding Officer and recorded his statement on 22.10.1998 and in order to have clear cut position then we sent for the respondent No.3 who was directed to appear alongwith the election record. He was not present yesterday but today has appeared and produced the record which included original Form-XII submitted by respondent No.4 alongwith the election record. The same was contained in the polling sealed bag, which was opened in our presence.
5. The legal question for determination is that whether direction of Secretary to respondent No. 1 to declare the result was of no legal consequence in view of the injunction order issued by the Members of the Election Authority? The second question for determination is that whether the result was infact declared by respondent No.4 or not?
6. Before proceeding to discuss the above legal points it is worth while to re-produce the order dated 08.6.1998 passed by the Members of the Election Authority, which reads as under- "No further action shall be taken on any reference of the Returning Officer regarding Electoral Unit No.18, Zila Council Gujranwala by the Election Officer-I Section till the disposal of this petition."
It is clear from the order that this only retrained the Election Officer-I Section not to take any action on any reference of the Returning Officer regarding electoral unit No.18. This did not effect any way the working of the Secretary of the Election Authority. There is nothing on record to show that the Election Officer-I Section dealt with the matter in any manner after the issuance of this order. This is not at all. The Election Authority while disposing off the petition of the petitioner observed that the Secretary did not disobey the order.
7. It is argued that the stay order takes effect from the time it is passed irrespective of the fact that whether or not it has been served upon the person concerned. In this behalf learned counsel has referred to the case of Messrs National Electric Company (P\'t.) Ltd. (Supra). This case is not relevant as the order was passed in continuation of proceedings in lower forum therefore, in such cases the order operates from the moment it is passed. The other judgment relied upon was of Muhammad Afzal Sohail (Supra). Again the question was whether the stay order passed by the Appellate Court is prior to the ex parte order of ejectment passed by the Rent Controller on the same day. It was held that in the absence of any material on record to show that the stay order was passed prior to the ejectment order, therefore, the same cannot be said to have been passed during existing of stay order. Learned counsel for respondent No.5 has also relied on this judgment because even in the present case there was nothing on record to show that the Election Authority has already issued the order when the Secretary proceeded to direct the declaration of the result.
Learned counsel for the respondent No.5 thereafter referred to Full Bench judgment in the case of Karam Ali (Supra) where the distinction was made between stay order and injunction. The relevant portion reads as under: - "I respectfully agree with the cases where the distinction between a stay order simpliciter and an injunction or prohibitory order has been brought out. A prohibitory order or injunction restrains a party from doing something and is necessarily addressed to the person whose act is intended to be restrained. Such order is not, therefore, effective unless it is communicated. But an order under Rules 5 is not an injunction or, a prohibitory order in that sense but an order in the proceedings which give rise to a changed legal position the moment it is made. As pointed out by Woodroof and Mookerjee JJ. In Hukum Chand Boid v. Karmalanand Singh (I.L.R.
33. Cal. 927), the question of communication of an order arises only in these cases where absence of the knowledge of that order is under the substantive law a defence of any action proposed to be taken on the ground of disobedience of that order,"
We, therefore, held that the order dated 08.6.1998 being injunction order was not effective from the moment it was passed.
8. Now coming to the factual controversy. Respondent No.4 has categorically stated that the counting was over by 5.00 p.m. He prepared the result in the prescribed form, signed the same and handed over the election material in the prescribed manner to respondent No.3. He added that he was pressurized to make F.I.R. No. 526/98, which was recorded at 7.45 p.m. This fact alone is prima fade sufficient to prove the contention of respondent No.4. This is not at all. We proceeded to sent for respondent No.3 after recording the statement of respondent No.4. He has appeared and produced the election record which contained the result of Polling Station No.76, Sulekhanabad, Peeru Otak on the prescribed proforma. We have compared the same with the copy produced by Ch. Ameer Hussain, Advocate, learned counsel for respondent No.5. It talied exactly with the same.
We noted that somebody had signed in the right corner of Form-XII but the Presiding Officer who was present stated that he was not aware as to who has signed it and when he handed over this statement alongwith the other election material these signatures were not there. Thereafter we asked the respondent No.3 as to whose signatures the same were? He also showed ignorance. The admitted position is that nobody was supposed to sign at this place. Learned counsel for respondent No.5 however submitted that these are the signatures of the local M.P.A, who was the master mind behind the fabrication of false evidence as to the loss of election material. In view of the judgment we intend to deliver, it is not proper to discuss the merits and de-merits of the pleas raised by the two sides. Suffice it is to observe here that it is a factual controversy which is within the exclusive jurisdiction of the Election Tribunal. We would be failing in our duty if it is not recorded that the conduct of respondent No.3 requires a detailed inquiry if we want to strength the democratic set up in the Country. In case the allegations against respondent No.3 are correct then a case should be got registered against him for tampering with the election record besides manoeuvring protecting registered a false case and submission of. Fake report as to taking away and destroying the election material by respondent No.4.
9. The upshot of this discussion is that this writ petition is dismissed with no order as to costs.
However, following the judgment dated 25.6.1998 of the Hon'ble Supreme Court passed in C.P.No. 793 of 1998 title "Asghar Ali v. Punjab Local Councils Election Authority, Lahore etc.", we treat this writ petition as Election Petition and direct to send it to the District & Sessions Judge, Gujranwala who is directed to entrust the same to the concerned Election Tribunal for decision in accordance with law expeditiously in any case within two months of its receipt.