CH. MUHAMMAD ARIF, J.- In this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, challenge has been made to the judgment of a Division Bench of the Lahore High Court, Multan Bench, dated 1.10.1998 in Writ Petition No. 6963 of 1998, dismissing appellant-Ghulam Qadir Khan's Constitution Petition against the order, dated 29.7.1998 made by Election Tribunal, Mailsi with the result that the conclusion drawn by the Election Tribunal that the disputed ballot paper was cast in favour of respondent Haji Bashir Ahmed and as both the candidates had polled equal number of votes, drawing of lot should be resorted to.
2. The dispute relates to election to Municipal Committee, Mailsi from Electoral Unit No. 12.
Petitioner-Ghulam Qadir was declared successful on 20.5.1998 having secured 125 votes as against 124 votes of respondent-Haji Bashir Ahmed. In Haji Bashir Ahmed's Election Petition, the Election Tribunal directed recount of votes on 20.6.1998. The petitioner remained unsuccessful in his challenge to order, dated 20.6.1998 before the High Court in Writ Petition No. 5660 of 1998 on 21.7.1998. The Election Tribunal proceeded with recount of the votes and it was found, that at Food Grain Polling Station, one vote cast, in favour of respondent-Haji Bashir Ahmed was wrongly declared as invalid. This finding led to the decision that the said-respondent's count of votes came to 51, instead of 50 as declared by the Presiding Officer at the said Polling Station, it was in this scenario that both, the petitioner and respondent No. 2/Haji Bashir Ahmed, were found to have polled 125 votes each and, therefore, the Election Tribunal directed draw of lot vide order, dated 29.7.1998 which was unsuccessfully assailed by the petitioner in Writ Petition No. 6963 of 1998 vide the impugned judgment, dated 1.10.1998.
3. Dr. M. Mohyuddin Qazi, learned Senior Advocate Supreme Court appearing in support of this, petition, has objected to the very institution of Election Petition by respondent No. 2 without the issuance of notification in that regard in the Official Gazette, as required under Rule 3 of the Punjab Local Councils' (Election Petition) Rules, 1979. According to him, even the learned Additional District Judge, Vehari had not been duly notified as Election Tribunal within the contemplation of Section 25 of the Punjab Local Government Ordinance (No. VI of 1979). His further submission was that the Election Tribunal had summoned the petitioner as also other contestants for 9.6.1998, when appropriate reply to the Election Petition was filed by him. On 9.6.1998, the application of respondent-Haji Bashir Ahmed seeking recount of votes was illegally allowed by the learned Election Tribunal without framing any issue in respect of alleged illegal and/or corrupt practices or even allowing the parties to establish their- respective cases, vide order, dated 20.6.1998. The Election Tribunal summoned the record, proceeded with recounting of ballots and reached the conclusion to the effect that the petitioner-Ghulam Qadir Khan and respondent-Haji Bashir Ahmed have obtained equal number of votes in the disputed election, therefore, a draw of lot between them was to be gone ahead on 8.8.1998. He has relied upon Kunwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 SC 483) in support of his plea that recounting of ballot- papers can only be ordered if conditions laid down in that behalf are fulfilled as also concerned Returning Officer is satisfied that the request for such recount is reasonable.
4. We have considered the arguments addressed at the bar and have also gone through the material appended to this petition. The case of Kunwar Ijaz Ali (supra) arose in relation to 1985- Elections and the powers of the Returning Officer in terms of Section 39 of the Representation of the People Act (No. LXXXV of 1976). This Court came to the conclusion that recounting of ballot papers can only be ordered if the conditions laid down are fulfilled and Returning Officer is "satisfied that the. Request is reasonable". It was ruled that as the learned Election Tribunal in the said precedent had held that the request of the appellant therein was not reasonable, the same was rightly rejected by the Returning Officer. Here, the application of respondent/Election Petitioner to hold recount of votes was allowed by the learned Election Tribunal and the present petitioner remained unsuccessful in challenging the same before the High Court vide judgment, dated 21.7.1998 passed in his earlier Writ Petition No. 5660 of 1998. It was thereafter that the learned Election Tribunal summoned the record and took his earlier order, duly sanctified by the judgment of the High Court, dated 21.7.1998 in petitioner's earlier Writ Petition No. 5660 of 1998, to its logical conclusion i.e. That the recount of the ballots yielded the result afore-referred.
5. We find that petitioner's earlier Writ Petition No. 5660 of 1998 was dismissed by the High Court on 2L7.1998 by repelling the arguments that (1) respondent No. 2's Election Petition was premature as the requisite Notification had not been issued and (2) the learned Election Tribunal had not framed any issue in the Election Petition respectively observing that it was stated at the bar by the learned Law Officer that the Election Petition was maintainable as the Gazette Notification had already been issued and that according to Notification No. EAP-LO.18/19, dated 20.1.1992 issued by the Punjab Local Council Election Authority to the Election Tribunal for the disposal of election petitions wherein it was directed that the Election Tribunal may, therefore, consider the desirability of deciding the question of recounting as a preliminary issue. It is not the case of the petitioner that he challenged the order, dated 21.7.1998 any further. Thus, he cannot be permitted to challenge the earlier order of the High Court, dated 21.7.1998, now.
6. Moreover, the learned Judges of the Division Bench upheld the order, dated 29.7.1998 with the following observations:- "8. We have examined the said ballot paper. It was also shown to the learned counsel for the parties. The learned counsel for the petitioner was of the view that the mark of the stamp appears equally in the column of a Motorcar and the Umbrella. The learned counsel for respondent No. 2, however, submitted that major portion of the stamp mark appears in the column of Umbrella. On examination of the said ballot paper, we find that had the full impression of the stamp appeared on this ballot paper, the major portion of it will fall in the column of Umbrella by a very small fraction. Our examination of this ballot paper with the help of a magnifying glass confirms this conclusion. There being no candidate with the symbol of Motorcar, the intention of the voter, clearly was to vote for respondent No. 2, resultantly, the conclusion arrived at by the learned Election Tribunal is correct."
The learned counsel did not dispute the above finding of the High Court and, to our. Mind, rightly so as the finding of the learned Election Tribunal in that regard, at page 31 of the Paper Book, is duly supported by the Explanation to Rule 40(4) of the Punjab Local Council (Election) Rules, 1979 which reads thus:- "... a ballot paper shall be deemed to have been marked in favour of a candidate if the whole or more than half of the area of the mark of the rubber stamp provided for the purpose by the Presiding Officer appears clearly within the space containing the symbol of that candidate...."
7. Looked at from all angles, the instant petition is bereft of any merit and is liable to be dismissed.
So, be it. Leave is refused.