' This order shall dispose of Writ Petitions Nos.6876 and 6875 of 2001 as common questions of law are involved.
2. In Writ petition No,6876 of 2001 petitioners and respondents Nos.4 and 5 contested election for the seat of District Nazim and District Naib-Nazim. As per Rules, a candidate was to secure at least 919 votes to win the election and to avoid a run off election i,e, a re-poll. Since none of the candidates secured the requisite number of votes (i,e, 919), run off poll was to follow. In terms of the unofficial count reflected in the order, dated 2-8-2001 (Annexure "E") passed by the Returning Officer, result was as under:--- "(Nazim) Khan Mumtaz Khan Khichi son of Muhammad Yar Khan Khichi. (Naib-Nazim) Sajid Mehdi 910 son of Syed Mehdi Hassan.
(Nazim) Nazir Ahmad son of Noor Muhammad Jat. (Naib-Nazim) Khalid 857 Mehmood Chohan
3. On an application filed by respondents Nos.4 and 5 (who secured 910 votes) there was a re- count by the Returning Officer, Tehsil Mailsi wherein it was found that 40 votes had been rejected by the Presiding Officer, Brewala merely because the voters had used the wrong side of the rubber stamp to convey their preference for the candidates in question. Those votes were declared valid and by adding the said votes, the total number of votes of both the petitioners and of the respondents increased and in the final count, the result was that respondents Nos.4 and 5 received 910+17=927 votes whereas the petitioners received 857+23=880 votes. The former were declared elected.
4. In Writ Petition No,6875 opf 2001 practically the same exercise was carried out by the Returning Officer though on a different polling stations and in different constituencies. In the unofficial count respondents Nos.4 and 5 received 313 votes whereas the required votes to win the election and to avoid run off election were 319. There was a re-count and on .3-8-2001, and in the final count, they received 332 votes by including 19 votes which were 'previously excluded on the same ground that the voters used the rubber stamp from the wrong side.
5. Learned counsel for the petitioners has challenged the re-count and the final result declared, on following grounds:--
(i) that the respondent candidates had not secured the requisite votes (919) to avoid run off poll in terms of the official result announced annexed with the petition, therefore, there had to be a re-poll amongst the run off candidates. To avoid the run off poll, the votes were re-counted and rejected votes were wrongly declared valid and added to declare respondents 4 and 5 as successful;
(ii) that the finding of the Returning Officer that the intention of the voters can be gathered even when rubber stamp is used from the wrong side, is conjectural as it cannot be said so unless the Returning Officer was a witness to the exercise of voting;
(iii) that in terms of rule 39(4)(iii) of the Punjab Local Government Election Rules, 2000, the Legislature has provided for the manner in which the Presiding Officer has to count and exclude the votes and the excluded votes could only be declared valid if they fell within the ambit of proviso to the afore-referred rule which, according to him, admittedly was not the case;
(iv) that if the intention of the voter was to be gathered, a presumption could equally be plausible that the voters, by using wrong side of the stamp, did not want to cast their vote in favour of those candidates;
(v) that the reference to the judgment of the august Supreme Court reported in Sahibzada Abdul Latif v. Sardar Khan and others 1996 SCM R 1496 is not relevant in the facts and circumstances of the present case as in the said case, th; point was different.
6. Malik Muhammad Rafique Rajwana, Advocate, who was on watching brief, entered appearance on behalf of the respondent candidates and with permission of this Court, submitted that the re- count was carried out in the presence of the candidate after a prior notice; that it was never the case of the petitioner before the Returning Officer that the voters had not stamped the relevant space of the candidate of choice. Their only objection was that the stamp had been used from the wrong side. The intention of the voters was clear and those votes were rightly included in the final count. He added that even if respondent candidates had not given any application for re-count, it was the bounden duty of the Returning Officer in terms of rule 40 of the Punjab Local Government Election Rules, 2000 to proceed in the manner he did and he had the power to see whether the votes which were excluded had been rightly excluded or not. He lastly submitted that the petitioners in the instant case have raised disputed questions of fact which cannot be raised in this petition, as the same entail factual inquiry which exercise is not tenable in these proceedings. In support of the submission made, learned counsel relied on Jamal Shah v. Election Commission etc. PLD 1986 SC 1, S.. Sivasawami v. Malaikannan 1984 PSC 648, Ghulzim Dastagir Bari v. Salahuddin 1986 CLC 2499, Khan Shahzada v. Raza Rabi 1983 SCM R 125 and Ijaz Ahmad Cheema v. Iftikhar Hussain 1995 CLC 1426.
7. Mr. Muhammad Sarwar Bhatti, the learned Assistant Advocate-General, who was called to assist the Court, has supported the impugned order and contended that the basic objective of the exercise of count and recount is to gather the intention of the voter and it was with this objective that the learned Returning Officer carried out the exercise as provided in law to which no exception can be taken in this Constitutional petition.
8. Heard.
9. There is no cavil to the proposition that a candidate can challenge the election through an election petition on grounds available to him under the law. However, before the final result is notified, the question whether the Returning Officer had, under the law, power to conduct the exercise which led to passage of the impugned order is a question which can be considered in a Constitutional petition. Admittedly, the initial result announced was unofficial and it is mandated under the law and the relevant rules that the Returning Officer shall consolidate the result in terms of rule 39 and sub-rules (3) and (4) of rule 40 of the Punjab Local Government Election Rules, 2000.
Sub-rule (3) of rule 4Q reads as under:- "(3) Before consolidating the results of the count, the Returning Officer shall examine the ballot papers excluded from the count by the Presiding Officer and if he finds that any such ballot paper should not have been so excluded, count it as a ballot paper cast in favour of the contesting candidate for whom the vote has been cast thereby.
' Sub-rule (4) to rule 40 mandates as under:-- "(4) The Returning Officer shall include the votes cast in favour of each contesting candidate in the consolidated statement except those which he may reject on any of the grounds mentioned in clause (iii) sub-rule (4) of rule 39."
10. The aforereferred exercise is to be carried out by the learned Returning Officer irrespective of any application made in this behalf. The Returning Officer, while passing the impugned order, was motivated by the afore referred mandate in law and I do not find any jurisdictional defect in this order to warrant interference.
So far as the intention of the voter is concerned, no doubt it is a question of fact and the petitioners would have a right to challenge the findings couched in the impugned order in a proper petition and before an appropriate forum. Prima facie, the finding that the voters by using the wrong side of the rubber stamp conveyed their intention is unexceptional. This Court sitting in the Constitutional jurisdiction would not like to interfere in the orders passed.
11. For what has been discussed above, I do not find any merit in both the Writ Petitions Nos.6875 of 2001 and 6876 of 2001 which are hereby dismissed in limine.