Petitioners and respondents Nos. 1 and 2, inter alia, contested the election for the seat of Nazim and Naib-Nazim, for Union Council No,116 of Sokan Wind, Tehsil Pasroor, District Sialkot, held on 21-3- 2001. Petitioners procured 2429 votes, as against respondents Nos. 1 and 2 who secured 2076, thus were declared returned candidates. Respondents Nos.1 and 2 challenged the aforesaid election through filing an election petition, which was contested by the petitioners. On 28-7-2001, learned Tribunal passed the order that on perusal of the pleadings, the election petitioners have not been able to make out a case for erroneous allotment of symbol or illegal and corrupt practice. However, held that "the only point concerning which the prima facie proof is annexed with the petition and requires consideration is running of ballot papers short on different polling stations, what made a lot of electorates restrained from exercising their right of franchise". Respondents examined four witnesses A.W.1 to A.W.4, who are the Presiding Officers of Polling Stations Nos.228, 233, 229 and 230; besides respondent No,1 has himself appeared as P.W.5. All the four Presiding Officers have proved in their statements the certificates issued by them Exh.A-1 to Exh.A-4, in which it is mentioned that on such Polling Stations,ballot papers pertaining to Kissan seats, were short and thus large number of voters had returned without casting their votes. A.W.5, has also corroborated the above evidence. Conversely, one of the petitioners namely Suleman (Naib-Nazim), appeared and made a statement to the effect that the election was conducted according to law and there was no shortage of the ballot paper for the seat of Nazim and 'Naib-Nazim. Learned Tribunal on account of the above evidence through the impugned judgment dated 8-12-2001, has declared the election to be void as a whole, on the ground that ballot papers at the aforesaid polling stations were short and therefore, number of voters were deprived of their franchise right, this has materially affected the result of the election.
2. Learned counsel for the petitioners states that according to the provisions of rule 81 of the Election Rules, 2000, the election of a returned candidate as a whole can be declared as void, if the returned candidate had procured or induced the election by corrupt or illegal practices or a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his authorized agent. It is submitted that this is not a case of the respondents Nos.1 and 2, in the election petition. Moreover, during the course of hearing, as is clear from the order of the learned Tribunal dated. 8-9-2001, this ground was given up by the said respondents. It is also submitted that if on account of the shortage of ballot papers, the poll was stopped, it was the duty of the Presiding Officer under rule 29 to have reported the matter to the D.R.O., but there is no evidence on the record that the Presiding Officer, in writing reported this to the D.R.O. Obviously, because there was no shortage of the ballot papers for the seat of Nazim and Naib-Nazim and a story has been concocted by the respondents in connivance with the Presiding Officer.
3. Learned counsel for the petitioner, also by relying upon rule 76, argued that an election petition should be adjudicated nearly as possible in accordance with the procedure for the trial of the suit under the provisions of Civil Procedure Code, but in the instant case, no issue was framed by the Tribunal, besides, as per the mandatory rule 76(b) the Tribunal did not require the parties to file within fifteen days of the date for which the case was fixed for evidence, a list of witnesses, whom they propose to produce to give evidence or to produce documents, mentioning against the name of each witness a precise of the evidence that witness is expected to give. This according to the learned counsel for the petitioner is mandatory provisions and the non-compliance has resulted in vitiating the trial of the election petition. Learned counsel has also argued that for the seat of Nazim and Naib-Nazim. Total 5918 votes were cast, out of which 5736 were found valid. For the seat of Kissan 5312 votes were cast and 4997 were declared valid. There is difference of 606, resultantly, the reasoning given by the Tribunal that there was a shortage of the votes for Kissan seat and therefore, the ballot papers were also not issued to the voters who intended to cast votes for Nazim and Naib-Nazim is absolutely incorrect, and erroneous. He further submitted that neither it is case of the respondent .Nor it is proved on the record, that there was any shortage of the ballot papers qua Nazim/NaibNazim, resultantly, even if there was shortage for the Kissan ballot papers that would in no manner prevent the voters to cast their votes, for Nazim and Naib-Nazim. Last contention is that the respondents moved an application for the summoning of the record pertaining to Kissan and Labour seat for the purpose of elucidating the shortage of ballot paper for these seats, though the Tribunal passed the order allowing this application yet this record was not summoned.
4. I have heard the learned counsel for the parties. As regards the submission that according to rule 81, the election of the returned candidate can be declared as void on the ground mentioned therein, suffice it to say that as per Rule 83, the election can also be declared void as a whole, if the Tribunal is satisfied that the election has been materially affected by reasons of the failure of any person to comply with the provisions of the Ordinance or Rules. The very basic purpose/object of the Punjab Local Government Elections Ordinance, 2000 is to provide for holding elections for the Best ablishment of Local Government in the Province. Election means the act of choosing or selecting one or more froma greater number of persons; the selection of a person/persons from a specified class to discharge certain duties attached to an office. It is an expression of choice by the voters of a body politic or a mean by which a choice is made by the elector. In general terms an elector is a person who is a duly qualified voter; the one who has a vote in the choice of any candidate to an office. Section 2(3) of the Ordinance, defines elector to mean "a person whose name for the time being appears on the electoral roll for a ward prepared under the Ordinance".
According to rule 34, where an elector presents himself at the polling station to vote, the Presiding Officer subject to certain conditions laid down in the Rules shall issue him the ballot paper. From the collective reading of the above definition and rule 34, it is crystal clear that in the conduct of an election, an elector is a key player and without enabling him to validly exercise his right of franchise, there can be no election at all. Therefore, it is the duty of the Presiding Officer to issue to an elector the ballot paper, of course subject to law, when he approaches him at a Polling Station; the failure in this behalf would amount to failure in complying with the provisions of the Ordinance and particularly rule 34 (ibid), bring the case squarely within the mischief of rule 83.
5. According to Exh.A-1 to Exh A-4, which are the certificates issued by the Presiding Officer of the above Polling Stations, who have also appeared as witnesses to prove and testify the documents, have categorically stated, that because of the shortage of the ballot papers of the Kissan seat, large number of the voters, who had come to cast votes, were prevented to do so. It is admitted by the learned counsel for the parties, that voters were entitled to simultaneous issuance of the ballot papers for the election of Nazhn/Naib-Nazim, Kissan, Labour seats and some others for which the election was being conducted the same day. Thus if there was any shortage of the ballot papers of one category, the Presiding Officer would not issue ballot papers for the other, even if for that category the papers were available. The statements of AM.1 to A.W.4 have duly highlighted and proved the shortage of ballot papers for the Kissan seats and there is no effective cross- examination to these depositions.
6. Conversely, the petitioners only examined one of them and did not produce in evidence any other member of the election staff of the relevant polling stations, the polling agents or even summoned the record of the Returning Officer or the Election Commission to establish and disprove that sufficient number of ballot papers were available in all the categories, therefore, the learned Tribunal after proper appraisal of the evidence and on the rule of preponderance has reached a factual conclusion, about the shortage of the ballot papers; number of voters returning without casting their votes. Such finding of fact, when not shown to be perverse, result of error in reading the record cannot be interfered in the Constitutional jurisdiction.
7. As regards the argument that according to rule 29, it was the duty of the Presiding Officer to have informed the D.R.O. About the shortage of the ballot papers and stoppage of polls, but this was not done, therefore, on account of lapse in this behalf, the election of the petitioners cannot be annulled, I am afraid, this argument in fact, goes against the petitioners, because when it is proved on the record that the ballot papers were short, thus it was the duty of the Presiding Officer to have reported the D.R.O., about the stoppage of polls, the failure to do so, brings the case within the mischief of rule 83, and the election on the above basis must be declared void, rather giving benefit to the petitioners.
8. The submission that issues have not been framed the learned counsel for the respondents has provided the answer by relying upon the case reported as Fazal Muhammad Bhatti and others v.
Mst. Saeeda Akhtar etc. 1993 SCM R 2018, a judgment to the effect, that even if the proper issues are not framed but the parties participate in the trial, and no prejudice is shown to have been caused to them, the omission in this behalf, would not vitiate the trial or render the judgment, as illegal on that account. Even otherwise, in the present case, learned Court while passing the order dated 28- 7-2001, in clear words elucidate that "only point concerning, which prima facie proof is annexed with the petition and requires consideration is running of ballot papers short on different polling stations, what made of a lot of electorates restrained from exercising their right of franchise. Parties are directed to adduce their respective evidence on the point". This is proper compliance of the law; as regards the rule of framing the issues, is concerned. The parties were well-aware as to what is the exact nature of controversy between them and what facts are required to be proved or disproved. Moreover, the petitioner without any objection participated in the trial; the respondents examined their witnesses, who were cross-examined by the petitioners; thereafter the petitioner produced their evidence and at no stage of the trial, ever took exceptions that because of the non- framing of issues, the trial cannot be proceeded. It may be stated that even when asked today, learned counsel for the petitioner, has not been able to satisfy this Court, if for specific non-framing of the issues, which position otherwise is not correct in view of the order dated 28-7-2001, any prejudice has been caused to the petitioner, and they have been prevented to adduce any further evidence.
9. As regards the submission that the Tribunal has not directed 'the parties to submit list of witnesses under Rule 76(b) it may be held that the said rule is procedural and directory in nature, the non-compliance thereof, when not shown to have affected the trial, is of no legal significance.
10. Before parting with the matter, it may be held that in view of the clear and positive evidence on the record, that there was shortage of ballot papers qua Kissan seat, this Court is unable to draw any inference, on account of some discrepancies in the valid votes, cast in favour of the Nazim, Naib-Nazim and Kissan seats, as has been argued by learned counsel for the petitioners and mentioned in paragraph No,3 of this judgment.
11. As regards another submission that because the respondents have sought election of the petitioners declared as void on account of shortage in the .Ballot paper of the Kissan seat, but the candidates for such seat, have not been impleaded . As party, resultantly, the election petition was incompetent, suffice it to say that according to law, the election petitioner is supposed to implead the candidate with regard to the election, which is under challenge. In the instant case, election of the Nazim and Naib-Nazim, was being assailed by the respondents, therefore, in such circumstances, the candidates for other category, were neither necessary nor proper party, therefore, implement in no manner, has any adverse affect upon the election petition.
In the light of above, I do not find this to be a fit case for exercise of my Constitutional jurisdiction, resultantly, this petition has no merits and the same is hereby dismissed.