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Petitioner: Dr. LIAQAT ALI KHAN and another VS Respondent: DISTRICT RETURNING OFFICER, DISTRICT JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Javaid Iqbal, Sh. Riaz Ahmad, Muhammad Nawaz Abbasi Title:Dr. LIAQAT ALI KHAN and another vs DISTRICT RETURNING OFFICER, DISTRICT
JUDGMENT
Reported As: 2002 SCMR 1632 Result: Appeal allowed Judgment JUDGMENT ' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, has been preferred against the judgment dated 7-8-2001 passed by a learned Single Judge of the Lahore High Court, Lahore, in a Constitution petition. The brief facts in the background are that the petitioners contested the election for the seat of Nazim and Naib Nazim of Tehsil Sargodha in a penal in the local bodies elections held on 2nd of August, 2001. They having secured 282 votes got second position in the contest whereas the panel of Sheikh Munir Ahmed obtained 371 votes and secured first position. The panels of Tasneem Ahmed Qureshi and Dr. Zulfiqar Ali Bhatti secured 280 and 200 votes respectively. In the count 25 ballot papers were declared invalid and 5 were found missing. However, none of the penal could get more than 50% of the total votes polled, therefore, the Returning Officer while declaring it run off election fixed 8-8- 2001 the date for fresh poll. The respondents Nos.3 and 4 moved an application on 3-8-2001 to the District Returning Officer for re-counting and the District Returning Officer forwarded their application to the Returning Officer for necessary action. The Returning Officer vide order dated 4- 8-2001 allowed the request of recounting of ballot papers made by the said respondents and on the same day, completed the process of re-counting. The Returning Officer declared 21 votes of the respondents Nos.3 and 4 invalid out of 280 valid votes and similarly he declared 23 votes of the petitioners invalid out of 282 votes on the ground that these ballot papers were not found correctly stamped in accordance with law by making aid rubber stamp. The result was that both panels of the petitioners and the respondents secured 259 valid votes each and the Returning Officer while
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invoking the provisions of Rule 41 of the Punjab Local Government Election Rules, 2000 (hereinafter to be referred to as 'the Rules') drew lot and declared respondents Nos.3 and 4 successful candidates in the run off election. The petitioners being dissatisfied with the result of re-count and drawing of lot by the Returning Officer filed a Constitutional petition in the Lahore High Court, Lahore, challenging the order dated 4-8-2001 passed by the Returning. Officer relating to the recounting and drawing of lot. The writ petition was dismissed by a learned Single Judge of the High Court with the following observations:-- "4. I have heard the learned counsel for the petitioners at length and also perused the orders. The orders passed by the Returning Officer prima facie are reasonable and are based on sound reasonings. The basic question in this case is that the petitioner has an alternate remedy by filing an election petition before Election Tribunal under Rule 70 of the Rules framed under Punjab Local Government Elections Ordinance, 2000. The contention of the learned counsel for the petitioners that the petitioners cannot file the election petition is incorrect as the holding of election on 3-8- 2001 is in continuation of elections which were held on 2-8-2001 and all the candidates who have lost the election and are not being allowed to contest the run off election can challenge the final results as well as the, results of 2-8-2001 through election petition as they are the aggrieved persons. This Court does not want to comment on the arguments of the learned counsel for the petitioners whether the votes which were declared invalid were rightly declared so by the Returning Officer or the decision is incorrect as it will definitely affect the rights of the parties if an election petition is subsequently filed and the Election Tribunal has to decide the same. It is now well-settled law that this Court cannot interfere in the results of an election due to the availability of alternate remedy by filing an election petition. Even if it is an interpretation of the principle of declaring of vote as valid and invalid for that purpose an exercise has to be taken and votes have to be examined after the opening of envelop and the parties can raise the objections about the authenticity of the votes in the envelop called and for that purpose, recording of evidence can be required which cannot be done in writ jurisdiction. In suchlike circumstances, exhaustive remedy by filing of election petition is available to the petitioners which is more exhaustive." ' The petitioners through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, have sought leave to appeal against the order of the Lahore High Court passed in Writ Petition No,14753 of 2001 inter alia on the following grounds:-- (a) That the provisions of rule 40 of the Rules cannot be invoked for recounting of the valid votes as the power conferred under the said rule is confined only to the extent of challenged ballot papers and in case of valid votes, subject to the satisfaction of the condition of reasonableness contained therein. (b) That the act of Returning Officer of declaring the valid votes as invalid in the re-count and drawing of lot for the purpose of run off election, being beyond the scope of the Results, was illegal. (c) That only a contesting candidate can challenge the election on the grounds mentioned in rule 81 of the Rules by filing an election petition under rules 70 and 71 of the. Rules and the petitioners being not a candidate in the run off election, would have no such remedy of challenge the illegality committed by the Returning Officer except to invoke the Constitutional jurisdiction of High Court for redressal of their grievance. ' The learned counsel has emphasized that under rule 40(6) of the Rules, the Returning Officer could not enlarge the scope of re-counting of the ballot papers which were declared valid and were not challenged by any candidate or agent at the count and the learned Judge in the High Court without attending the legal questions raised before him, dismissed the writ petition with the misconception that it being an election dispute could conveniently be resolved by the Election Tribunal in an election petition. The learned counsel, in nutshell, has contended that the petitioners having secured second position in the election, were entitled to contest the run off election but the
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Returning Officer through an illegal and improper exercise of jurisdiction, ousted them from the contest and in support of the proposition raised in this petition, has placed reliance on the following case-law:-- (1) Muhammad Saleem v. Provincial Election Authority, Karachi (PLD 1985 Karachi 135), (2) Wahid Bux v. Election Authority (1984 CLC 1294), (3) Pervaz Iqbal v. Provincial Transport Authority (1996 CLC 182), (4) Ittehad Cargo Service v. Syed Tasneem (PLD 2001 SC 116), (5) Kanwar Ijaz v. Irshad Ali (PLD 1986 SC 483), (6) Nasir Mahmood Mughal v. Muhammad Azam (1987 MLD 2526) and (7) Akbar Ali v. Razi-ur-Rehman (PLD 1966 SC 492). ' Learned counsel appearing on behalf of the respondents on the other hand, submitted that the Returning Officer in the process of counting and recounting was competent to declare any ballot paper invalid under sub-clauses (a), (b), (c) and (d) of sub-rule (4) of rule 39 by virtue of the powers available to him under rule 40(4) of the Rules. Learned counsel.While placing reliance on an unreported judgment of this Court passed in Civil Appeals Nos.1864 and 1865 of 2001, submitted that factual controversy relating to the validity and invalidity of votes being exclusively adjudicatable by the Election Tribunal, could not be agitated before the High Court in its Constitutional jurisdiction. The Returning Officer in exercise of his powers under rule 40(6) of the Rules on an application of respondents Nos.3 and 4, moved to the District Returning Officer initiated the process of re-count and upon consolidation of result while invoking the provisions of rule 41 of the Rules, drew the lot. The perusal of the rule relating to the procedure for re-count of the valid ballot papers would show that the. Returning Officer cannot exercise such power in his discretion rather it is done only in exceptional cases in which he is satisfied about the reasonableness of the ground for re-count. There is also no provision in the Rules for institution of an election petition before the issuance of notification in the official Gazette under rule 42 of the Rules and the election of a returned candidate can only be challenged through an election petition after the result is notified in the official Gazette. ' The questions for determination in the present case would be firstly, as to whether the re-count in the given situation, was legally justified and the procedure provided under rule 41 of the Rules \vas properly invoked and secondly, whether a candidate after losing in the run off election would still be a contesting candidate in terms of rules 70 and 71 of the Rules and can file an election petition against the returned candidate on the grounds mentioned in rule 81 of the Rules and thirdly, if such a candidate cannot successfully avail the remedy of election petition what is the remedy available to him to challenge an illegality if committed by the functionaries of Election Commission during the election. The contention of the petitioners that an election can only be declared void on one or more grounds mentioned in rule 81 of the Rules and that the petitioners having been excluded from the contest in the run off election were no more the contesting candidates to challenge the order of Returning Officer relating to the re-count and drawing of lot through an election petition, therefore, the question of their locus standi to file an election petition against the returned candidate would need consideration by the High Court, is not as such without force. The question of locus' standi to file an election petition left undecided by the High Court was not as such related to an election dispute, therefore, it would need determination by the High Court in exercise of its powers of judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. There is ample law on the point that notwithstanding the availability of remedy of election petition, an order passed by the Election Authorities affecting the right of parties at an intermediate stage, will be open to the judicial scrutiny by the High Court in its Constitutional jurisdiction in the suitable cases. However,
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the question relating to the exclusion or inclusion of the ballot papers from the count on any ground mentioned in rule 39 read with rule 40 of the Rules ordinarily would not be gone into by the High Court in its Constitutional jurisdiction but the exercise of power under the ibid rules by the Election Authorities being not discretionary, if such power is used in an illegal and improper manner, the legality of such an order can be questioned by way of filing a Constitution petition in the High Court and the objection that the Returning Officer not competent to invoke the provisions of rules 39 and 40 of the Rules after declaring the result under rule 42 of the Rules being a question relating to the jurisdiction of Returning Officer would need determination by the High Court. There can be no denial to the legal position that the Returning Officer in the process of count and re- count after the examination of the ballot paper, can exclude the invalid votes which were included in the count by the Presiding Officer and similarly he can exclude the votes from count which were wrongly declared valid and prepare the consolidated statement accordingly for declaration of result but this power is not unlimited to be exercised at his option or at the instance of one or the other party unless he is fully satisfied about the reasonableness of the challenge. In the present case, the perusal of the impugned order would show that the Returning Officer excluded 21 ballot papers of the respondents and 23 ballot papers of the petitioners in the re-count which were neither declared invalid in the first count nor were challenged in writing, therefore, it was necessary to examine the matter relating to the legality and validity of the action of Returning Officer and the exclusion of ballot papers- on the ground that same were not bearing correct mark of marking aid rubber stamp. The above remarks of the Returning Officer in general terms would not be sufficient to exclude the ballot papers declared valid in the count by the Presiding Officer without ascertaining the intention of the voters appearing on the ballot paper. The Returning Officer has not pointed out in the order, the defect for which the intention of the voter was not clear or the ballot papers were not bearing the stamp or the stamp was put in a manner which made the ballot paper invalid. It is settled law that if a wrong done by a public functionary to a person cannot be undone through an ordinary remedy, the extraordinary remedy of writ petition can be invoked. The perusal of rules would show that if a vote was not challenged in the prescribed manner at proper stage, it would not be challenged subsequently and presumption of correctness shall be attached with the consolidation of result prepared at the time of count. Under the rules, the election of a returned candidate can be challenged by a contesting candidate by way of an election petition before the Tribunal on any ground mentioned under rule 81 of the Rules but the said ground would not be available to Returning Officer for re-count and revise of the result. We having examined the matter in the light of the Rules find that the High Court has not given due consideration to the following questions:-- (i) Whether all candidates who participated in the election would have locus standi to challenge the election of the returned candidate in case of run off election or only the candidate who contested the run off selection, would be deemed to be the contesting candidate for the purpose of rules 70 and 71 of the Rules. (ii) What is the remedy provided under the law to challenge an order passed by the election functionaries during the process of election, adverse to the interest of a candidate at a stage when filing of an election petition under the rules is not possible. ' We have not been able to find out proper answer to the above question in the impugned judgment and these were also not raised before this Court in Civil Appeals Nos.1864 and 1865 of 2001 relied upon by the learned counsel for the respondents. The relevant portion dealing with the remedy of the election petition in the judgment above-referred appeal is reproduced as under:- "19. Now the point for determination is whether the remedy of an election petition is available to the appellants/petitioners or in other words whether the grievances of the appellants/petitioners can be redressed by the Election Tribunal. The main grievance of the appellants/petitioners is that the
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Returning Officers in the case of the appellants and the District Returning Officer in the case of the petitioners had declared valid the votes reiected by the Presiding Officers in the face of the mandatory provisions of sub-clauses (b) and (c) of clause (iii) of rule 39 of the Rules that those ballot papers shall be excluded from the count which, bear any writing or any mark other than the official mark and the mark of 'marking aid rubber stamp' or no mark of 'marking aid rubber stamp' indicating the contesting candidate for whom the elector has voted. Another grievance expressed by the petitioners is that the District Returning Officer had re-counted the votes after consolidation of results although he was duty bound to publish the names of the appellants/petitioners in the official Gazette as the returned candidates in view of sub-rule (5) of rule 42 read with rule 55 of the Rules. It was contended by the learned counsel for the appellants/petitioners that the Election Tribunal is not empowered to redress the grievances of the appellants/petitioners and even if it is presumed to be so empowered it is not invested with power to grant the relief of run off election i.e, fresh election in which the joint candidates securing the highest and the second highest number of votes shall be contestants. The result would be unsavoury as all the panels of candidates would become entitled to participate in the fresh election. 20. The contentions are misconceived. As envisaged by rule 80 of the Rules the Election Tribunal may upon the conclusion of the trial of an election petition make an order: (a) dismissing the petition, (b) declaring the election of the returned candidate to be void, (c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, (d) declaring the election as a whole to be void. The grounds for declaring election as a whole to be void are contained in rule 83 of the Rules which reads as under:-- ' 'The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of-- (a) the failure of any person to comply with the provisions of the Ordinance or the Election Rules, or (b) the prevalence of extensive corrupt or illegal practice at the election.' 21. The pith and substance of the grievances of the appellants/petitioners is that the result of the election has been materially effected on account of the failure of the Returning Officers, District Vehari and Mailsi as well as the District Returning Officer, Rahim Yar Khan to comply with the mandatory provisions of sub-clauses (b) and (c) of clause (iii) of Rule 39 of the Rules and failure of the District Returning Officer, Rahim Yar Khan to comply with the provisions of sub-rule (5) of Rule 42 read with Rule 55 of the Rules. The grievances of the appellants/petitioners thus squarely fall within the ambit of clause (a) of Rule 83 of the Rules and as such can be redressed by the Election Tribunal which in the event of declaring the election as a whole to be void can make any appropriate order, as a consequential relief, within the purview and framework of the Punjab Local Government Elections Order, 2000 and the Rules including an order. 22. In the light of what has been stated above, both the appeals and the petition are dismissed with no order as to costs." The remedy of election petition provided under the Punjab Local Government Elections Rules, 2000 is available to a contesting candidate after issue of the notification of result of returned candidate but no such petition can be filed by a person who is not a contesting candidate in the election. The petitioners being no more contesting candidates in the run off election, would not be in a position to challenge the election of returned candidate through an election petition. Undoubtedly, the Tribunal on the basis of grounds mentioned in rule 83 of the Rules, can declare an election as a whole to be void. Under the above rule, the Tribunal can exercise power only in an election petition which is filed by a contesting candidate and the petitioners being not the contesting candidates in run off election would not be in a position to avail such remedy against returned candidate, and therefore, they had rightly invoked the Constitutional jurisdiction of High Court for redressal of their grievance. It would not be out of place to mention here that even if the statutory remedy available
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under the law is considered inadequate and inefficacious as the relief being claimed cannot be granted to an aggrieved person in such remedy, the writ petition can be maintained. ' The petitioners as per results prepared by the Presiding Officer, secured second position in the election and accordingly Returning Officer having declared the result in terms of rule 42 of the Rules nominated the petitioners as successful candidates for run off election, later on the application of the respondents Nos.3 and 4, he proceeded for the re-count of votes and by declaring the valid ballot papers as invalid revised the result. In the process of re-counting in exercise of power under rule 40 read with rule 39 of the Rules, the Returning Officer if finds that a ballot paper was or was not suffering from the defect to be included or excluded from the count, he can include or exclude such ballot paper from the count but this power cannot be exercised after declaration of result under rule 42 of the Rules. The relevant rules relating to the count and re- count and consolidation of result, are reproduced hereunder:- ' "Rule 39. Proceedings at the close of the poll.--(1) The Presiding Officer shall count the votes immediately after the close of the poll, in the presence of such of the contesting candidates, election agents and polling agents as may be present. (2) The Presiding Officer shall give such of the contesting candidates, election agents and polling agents as may be present, reasonable facility of observing the count and give them such information with respect thereto as can be given consistent with the orderly conduct of the count and the discharge of his duties in connection therewith. (3) No person other than the Presiding Officer and Polling Officer, any other person on duty in connection with the poll, the contesting candidates, their election agents and polling agents shall be present at the count. (4) The Presiding Officer shall -- (i) open the used ballot box or ballot boxes and count the entire lot of ballot papers taken out therefrom; (ii) open the used packet labelled "challenged ballot papers" and include the ballot papers therein in the count; (iii) count the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear- (a) no official mark; (b) any writing or any mark other than the official mark and the 'marking aid rubber stamp' or to such piece of paper or any object of any king has been attached; (c) no mark of marking aid rubber stamp' indicating the contesting candidates for/whom the elector has voted, or (d) any mark from which it is not clear for whom the elector has voted: Provided that 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 'marking aid rubber stamp' appears clearly within, the space containing the symbol of that candidate; (e) and where the mark of 'marking aid rubber stamp' is divided equally between two such spaces, the ballot paper shall be deemed to be invalid. (5) The Presiding Officer may re-count the votes -- (i) of his own motion if he considers it necessary; or (ii) upon the request of a contesting candidate or an election agent present, if, in his opinion, the request is not unreasonable. (6) The valid ballot papers cast in favour of each contesting candidate shall be put in separate packets and each such packet shall be sealed and shall contain a certificate as to the number of ballot paper put in it and shall also indicate the nature of the contents thereof, specifying the name and symbol of the contesting candidate to whom the packet relates.
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(7) The ballot papers excluded from the count shall be put in a separate packet indicating thereon the total number of ballot papers contained therein. (8) The packets mentioned in sub-rules (6) and (7) shall be put in a principal packet which shall be sealed by the Presiding Officer. (9) The Presiding Officer shall, immediately after the count, prepare a statement of the count in Form XIII showing therein the number of valid votes polled by each contesting candidate and the ballot papers excluded from the count. (10) The Presiding Officer shall also prepare in Form XIV a ballot paper account showing separately-- (i) the number of ballot papers entrusted to him; (ii) the number of ballot papers taken out of the ballot box or boxes and counted; (iii) the number of tendered ballot papers; (iv) the number of challenged ballot papers; (v) the number of spoilt ballot papers; and (vi) the number of unissued ballot papers. (11) The Presiding Officer shall if so requested by any candidate or election agent or polling agent present, give to him a certified copy of the statement of the count and the ballot paper account. (12) The Presiding Officer shall seal in separate packets-- (i) the unissued ballot papers; (ii) the spoilt ballot papers; (iii) the tendered ballot papers; (iv) the challenged ballot papers; (v) the marked copies of the electoral rolls; (vi) the counterfoils of the used ballot…
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