This Constitutional petition seeks to declare the revised consolidated statement dated 31.3.2004 of the Returning Officer in Form XV to be void, illegal and of no legal consequence, having been prepared unauthorizedly on the basis of foreign information, ignoring real and lawful statement of counts furnished by the Presiding Officer in Form XIII and- for a direction to Respondent No, 4 (Returning Officer of Union Council No, 128), to consolidate the result on the basis of statement of count prepared and furnished in Form XIII on 28.3.2004 at the close of the Poll by the Presiding Officer of Polling Station No 5, Union Council No 128 Faisal Town, Lahore, ignoring ,his revised consolidated statement prepared on 31.3.2004 and to declare the petitioners as returned candidates as Nazim and Naib Nazim of the said Union Council.
2. Precisely relevant facts are thafin result of recent bye-election of local bodies held on 28.3.2004, the, petitioners claim to have succeeded as Nazim and Naib Nazim of Union Council No, 128 Faisal Town Lahore by securing 1945 votes with their symbol of Crescent whereas Respondents Nos, 5 and 6 according to the petitioners, stood runners up by securing lessor votes with their symbol of Hockey. A provisionally notification notifying the above result, according to the petitioners, was issued by the Returning Officer on 28.3.2004 at 11.55 p.m. which was based on the result provided/transmitted in the 'prescribed Forms by all the Presiding Officers including the Presiding Officer of Polling Station No 5 who had transmitted result at his polling station in the manner. i,e, (1)
Rifat Ullah Khan 136 (2) Muhammad Fiaz 469 (3) Amjid Mustafa 64. The total number of votes assigned to this polling station were 1022 out of which total votes cast were 669.
3. Respondent No, 6 on 29.3.2004 submitted an application to Respondent No, 4 after compiling of result by him with the prayer that Respondents Nos, 5 and 6 may be declared as successful because the statement of count remitted by the Presiding Officer of Polling Station No, 5 was tampered by inclusion of 469 votes in favour of Muhammad Fiaz, and Ejaz Ahmad Maharvi (the petitioners) on the same day. Presiding Officer of Polling Station No, 5 also appeared before the Returning Officer, with an application for making of his statement because, according to him, a few persons abducted him and changed the election result. The Returning Officer on 29.3.2004 at 2.45 p.m. recorded the statement of Mr. Tahir Butt son of Abdul Hafiz Butt, the Presiding Officer of Polling Station No, 5 wherein, he stated that he was abducted when he was waiting for some transport as his motorcycle was not in working condition. He deposed that a number of votes were tampered/inserted in the election bags. This exercise was done without notice of all the candidates but in the presence of Respondents Nos, 5 and 6. The Returning Officer did not take any instant action against the culprits and waited till 30th of March, 2004 when he summoned the petitioners who basing on the consolidated statement of the Returning Officer dated 28.3.2004 exclaimed themselves to be winners. The petitioner, as well, moved an application under Rule 40 of the Punjab Local Government Elections Rules 2000 with an affidavit refuting the claim of the Presiding Officer of change of the result,.The Returning Officer thereafter, prepared a fresh consolidated statement in Form XV excluding earlier statement of count of Polling Station No, 5 and including a fresh statement of that polling station, wherein, the petitioner's votes were revised and were shown as 120 in place of 469. Respondent No, 4 prepared a consolidated statement in Form XVI purportedly under Rule 40 of the Elections Rules 2000 declaring Respondents Nos, 5 and 6 as Returned Candidates on 31.3.2004.
4. The petitioners aggrieved of the change of the result by Respondent No, 4 filed the instant petition with the prayer noted above. In response to notice, the Respondents Nos, 5 and 6 who are the real contestants, have appeared and are represented through their counsel. Since Respondent No, 4 issued 2 consolidated statements, one on 28.3.2004 declaring the petitioners as returned candidates and the other on 31.3.2004 showing the Respondents Nos, 5 and 6 as successful candidates, he was 'required to appear before this Court, in order to verifying whether both these statements were prepared by him and if so what coerced him to prepare the second consolidated statement. Respondent No, 4 appeared and admitted that both these statements were prepared and issued by him. According to his version both the Respondents Nos, 5 and 6 and the Presiding Officer of Polling Station No, 5 moved two separate applications for determination of tampering of election record and the second statement was prepared after recording statement of Mr. Tariq Butt on 29.3.2004. He further informed that on the directive of the Chief Election Commissioner he got a criminal case registered against the persons involved in the tampering the election record/bags of Polling Station No,
5. Respondent No, 4 further stated before this Court that his entire exercise is reflected in his order dated 30.3.2004.
5. The learned counsel for the petitioner submits that the Presiding Officer of Polling Station No, 5 at the close of Poll on 28.3.2004 provided under his signatures result of final count in Form XIII for communication of the result, which is the only valid and lawful document for preparing a consolidated statement in Form XV. According to him the first consolidated statement is based on statement of count given by the Presiding Officer in Form XIII hence the same is final. He further submitted that after preparing the consolidated statement Respondent No, 4 had become functus officio and thereafter he could not undertake an illegal, unwarranted, and unjustified exercise of preparing the second consolidated statement and that 100 on the basis of irrelevant material like the application, statements or affidavits. It was also contended that the exercise undertaken by Respondent No, 4 after preparing a final consolidated statement is ill-motivated and has been undertaken at the behest of defeated candidates and under an illegal external political pressure.
He further elaborated his arguments by submitting that after communicating the statement of count and handing over the baggage to the Returning Officer, Mr. Tahir Butt was no more a Presiding Officer who at a belated stage manoeuvred a fake story in order to give strength to Respondent No, 4 for. undertaking an illegal activity which can in no manner be justified under any provision of the Punjab Local Government Ordinance 2001 or the Rules applicable. It was also submitted that the impugned order by Respondent No, 4, subsequent to consolidation of result is not only without jurisdiction but is also flagrant, disregard of the law actual/factual statement of count furnished by the Presiding Officer. According to him incorporation of 120 votes in the fresh unauthorized consolidated statement instead of 469 votes of the petitioners is without any lawful backing and on the face of it, is out come of serious illegality and error of facts as well. Relying on Rules 40 of the election rules, it was assertedly urged that subsequent step of issuance of the gazette notification by the Election Commission of Pakistan is also not warranted because its basis i,e, the action of Respondent No, 4 is itself illegal. The learned counsel for the petitioner relied on the judgment in the case of Muhammad Afzal Versus District Judge/District Returning Officer (2002 CLC 310). The learned counsel further submitted that though the dispute canvassed through the petition in hand cannot be made basis of an election petition yet it does not debar jurisdiction of this Court especially when the illegality is flouting on the face of the record. He in this behalf relied on the Court in the case of "Ch. Abdul Hameed Versus Deputy Commissioner and others (1985 SCM R 359) and on the judgment by the Peshawar High Court in the case of "Begum Talat Khan and another versus Presiding Officer etc." (NLR 1988 Civil 383). He further elaborated his arguments regarding the maintainability of the Constitutional petition on the matters of elections by saying that the ordinarily Courts in exercise in their jurisdiction declined to interfere in the election matters but in peculiar circumstance of the case where officials responsible for holding fair elections have acted in -derogation of the law applicable, jurisdiction of this Court cannot be said to have ousted.
Reliance in this behalf was made to the judgment in the case of "Ahmad Saeed Kirmani versus Muhammad Nawaz Cheema and another". (PLD 1966 (W.P) Lahore 88) and to another judgment by the Honourable Supreme Court in the case of Dr. Liaqat Ali Khan and another versus District Returning Officer (2002 SCM R 1632).
6. The learned counsel appearing on behalf of the respondents refuted the arguments of the petitioners and opposing their prayer, urged that consolidated statement dated 28.3.2004, being not on any prescribed Form, is to be simply ignored because under the Rule 40 consolidation of the election result was to be made in Form XV which was prepared by Respondent No, 4 on 31.3.2004 and this is the only valid statement for declaration of result. He further submitted that since the election record was tampered while in the custody of Presiding Officer, he competently reported the matter to the Returning Officer in terms of Rule 29 of the Punjab Local Government Elections Rules 2000, on the basis of which consolidated statement in Form XV was correctly prepared by the Returning Officer on 31.3.2004. It was also urged that the dispute regarding tampering of election record revolves around the factual controversy which can only be decided by recording of evidence and this course being not permissible in the Constitution jurisdiction, should be left open for decision through an election petition and that, he election tribunal having been nominated petitioner may be required to file on the election petition for the relief claimed from this Court.
According to his submissions, exercise undertaken by Respondent No, 4 being within his limits of authority, no interference is permissible on a Constitutional petition.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. Respondent No, 4 in his order dated 30.3.2004 and while appearing before this Court, has admitted preparation of both his consolidated statements dated 28.3.2004 and 31.3.2004. His stance is that after compiling result on 28.3.2004. Presiding Officer of Polling Station No, 5 appeared before him and stated tampering of election record on the basis of which fresh "consolidated statement" was issued on 31.3.2004. He also conceded that Presiding Officer of Polling Station No, 5 in his statement of count mentioned votes of the petitioners as 469 whereas votes of Respondents Nos, 5 and 6 were given as 64. The petitioners have also produced a copy of the statement of count of Polling Station No, 5 prepared by the Presiding Officer duly attested by the Returning Officer. It Also carries similar figures. The sole question which hinges for determination is as to whether after transmitting the final count, the Presiding Officer could make a statement before the Returning Officer that the election record was tampered and his earlier statement was wrongly got prepared, under some threats and as to whether Returning Officer could lawfully change his consolidated statement prepared by him and notified for notice of the candidates and public at large, under Rule 40 of the Punjab Local Government Election Rules 2000, relying on some alien material. Under Rule 39 of the Rules 2000 the Presiding Officer is required to count the votes immediately after the close of Poll in presence of the contesting candidates or their agents, facilitating them observation of the count and providing them information with regard thereto, orderly conduct of the count and proper discharge of his duty. The Presiding Officer is required to prepare statement of count in Form XIII immediately after the count, showing therein the ballot papers issued the votes polled for each contesting candidate and the ballot papers excluded from count, besides preparing a list in Form XIV showing separately number of ballot papers entrusted to him, number of ballot papers taken out of the ballot boxes, number of tender/challenge ballot papers, spoilt/un-used ballot papers and shall on request by the candidate or his agent give him a certified copy of the statement of count so prepared. Under this rule the Presiding Officer is required to seal in separate packets, the ballot papers the above noted, indicating different categories of ballot papers, specifying names and symbol of the contesting candidate and would transmit it the entire record to the Returning Officer whereafter his role in the election comes to an end under Rule 40 of the Rules ibid, the Returning Officer shall consolidate in Form XV the result of count furnished by the Presiding C. officers and would give the contesting candidates or their agents a notice in writing of the day, time and place for consolidation of result.
The Returning Officer is required under this rule to examine the ballot papers excluded from the count by the Presiding Officers. The Returning Officer after discharging his obligation under Rule 40 is needed to declare by public notice the names of contesting candidates alongwith number of votes received by them and is required 'to immediately submit to the District Returning Officer a return, of election in Form XVI to alongwith a copy of the consolidated statement. Respondent No, 4 in the case in hand, received result from all the Polling Stations including Polling Station No, 5 and prepared a consolidated statement in Form No, XV under Rule 40 on 28.32004, wherein, the petitioners were shown to have secured total votes 1945 with election symbol crescent. Respondent No, 4, the Returning Officer has admitted this consolidated statement to have been issued by him and its transmission to the District Returning Officer, as it was requirement of the rules noted above.
There isno provision in the- Elections Rules 2000 or Punjab Local Government Ordinance, 2001, authorizing the Returning Officer to change his consolidated statement on whatever ground. In similar situation this Court in the ease of Muhammad Afzal versus District Judge/District Return/no Officer (2002 CLC 310) held that the Returning Officer or the Presiding Officer alto. publication of result of election in gazette had become functus officio and the only remedy available was that of filing of an election petition under Rule 70 of the Ptinjab Local Government Elections Rules 2000. In this precedent case name of the writ petitioner was notified in the gazette. Notification as successful candidate for a Muslim General Seat and he took oath of his office but District Returning Officer, subsequently, on the basis of the direction issued by the Provincial Election Commissioner, deprived him of his success, declaring his adversary as successful candidate of non-Muslim seat and this Court after scanning of all the provisions of the elections Rules, 2000 held that provincial election commissioner did not figure anywhere in the Ordinance, 2000 and. thus, he could not pass any direction to the District Revenue Officer for change of result which neither the Presiding Officer nor Returning or the District Returning Officer could do after preparing the consolidated statement.
In another case of Division Bench of Peshawar High Court in the case of Begum Talat Jan and another versus Presiding Officer etc. (NLR 1988 Civil 383) held that after declaring the result in the prescribed Form, the Presiding Officer becomes functous officio and looses jurisdiction over the matter. It was also observed that the preparation of, second result by any of these authorities carries no legal sanctity. It was also propounded in this judgment that even in the election matters, where the exercise of excess of jurisdiction or legal errors are apparent on the face of the record, Constitutional jurisdiction of the High Court is not barred. In another case of Ahmad Saeed Kirmani versus Muhammad Nawaz Cheema (PLD 1966 W.P. Lahore 88) it was held that the Constitutional jurisdiction can be invoked where the functionaries responsible for holding fair elections, act in derogation of law applicable.
8. Since there was no provision for change of the consolidated statement originally prepared by the Returning Officer on 28.3.2004 and the same could not have been interfered by him specially when he had notified it, thus the entire exercise of entertaining of application from the Presiding Officer or Respondents Nos, 5/6 and recording of statement, without notice to all the contesting candidates in terms of Rule 40(2) of the Elections Rules, 2000, is absolutely unwarranted, illegal, unauthorized and of no legal consequence. Respondent No, 4 instead Of embarking upon the complained action, should have directed the parties to avail their other remedies provided by law and should not have become a party to the dispute even on application of the Presiding Officer.
The claim of the Presiding Officer on the face of it, appears to be engineered because neither he nor Respondent No, 4 immediately re-acted by taking some punitive action against the culprits and it also remains a mystery that how the Presiding Officer coincided with the Respondents Nos, 5 and 6 the loosing candidates, after one day long, to approach Respondent No, 4 for correction of consolidated statement It is also amazing that a fixed number of votes which were needed for the success of the Respondents Nos, 5 and 6 were included in their count in the fresh consolidated statement, unauthorizedly prepared on 31.3.2004. Though respondents have urged that the consolidated statement prepared on 28.3.2004 was based on a forged statement of count which was got fakely prepared from the Presiding Officer of Polling Station No, 5 but this matter should have been sorted out before the election tribunal as the same required detailed inquiry, investigation and recording of evidence. Be that as it may, I avoid detailed discussion on respective stands of the parties regarding their conduct after preparation of consolidated statement dated 28.3.2004 lest mind of the Presiding Officer of the Election Tribunal, if the matter ultimately comes before, him, may not be prejudiced.
9. Consolidated statement dated 28.3.2004 un-deniably prepared by Respondent No, 4 though does not demonstrate that it was in Form XV yet for all intents and purposes it was prepared by him under Rule 40 of the elections Rules 2000 and cannot be simply ignored. I have no doubt in my mind that Respondent No, 4 was not equipped with any authority to change his this consolidated statement and hence his entire exercise thereafter is illegal and unauthorized. Since the action of the Respondent No, 4 is patently void and for its determination, no further exertion of recording of evidence is required, I am constrained to hold that the Constitutional jurisdiction is available to undo the illegal and unfounded complained action of Respondent No, 4.
10. For what has been discussed above, I accept this writ petition and issue the writ, as prayed, declaring the subsequent consolidated statement prepared by Respondent No, 4 on 31.3.2004 his order dated 30.3.2004 and notification of result on the basis thereof, as void, non-existent and of no legal effect, with the result that consolidated statement of Respondent No, 4 dated 28.3.2004 shall be deemed to be lawful and will be given effect. There will be no order as to costs.