1. MUSHIR ALAM, J.---- Brief facts as enumerated in the petition appear to be that, the petitioner along with respondent No,11 participated in the local body elections held on 18-8-2005 for the post of Nazim and Naib Nazim, from Union Council 6, Maripur, Keamari Town, Karachi. After close of polls consolidated statement in Form XV and XVI were prepared on the basis of result counts was furnished by the Presiding Officer in Form XIII, the petitioner and respondent No,11 (Jawaid Dad Rehman) having secured highest votes i.e. 1523 were declared successful. Respondents Nos,3 and 4 having secured 1488 votes were the runner-up. Respondent No,2 consolidated results in Form XV and Form XVI was announced on 20-8-2005. It is the case of the petitioner that, all of a sudden on 23-8-2005 the petitioner came to know that, respondent No,2 on his own has revised statement on Form XV declaring respondents 3 and 4 as returned candidates for the post of Nazim and Naib Nazim for UC-6. The petitioner along with petition has also annexed Form XV and Form XVI issued by respondent No,2 on 20-8-2005 and so also revised Form XV and XVI dated 23-8-2003. The petitioner being dissatisfied with the act of the respondent No,2 made representation to the Chief Election Commissioner of Pakistan on 23-8-2005 (available at page 27 of the file, Annexure "D". The Chief Election Commissioner, vide letter dated 31-8-2005 directed the respondent No,2 to withhold the result of UC-6 Mauripur, till recounting of votes is carried out by the Returning Officer. Such letter is available at page 29 of the file (Annexure "E"). The petitioner being aggrieved of the impugned order, dated 23-8-2005 has filed instant petition for the following relief;
(i) To set aside the orders revising the results of Union Council 6, Mauripur, Keamari Town, dated 23-8-2005 passed by the learned Returning Officer. The respondent No,2.
(ii) Restrain the respondents Nos,1 and 2 from giving oath to respondents Nos,3 and 4 and allowing them to resume their offices of Nazim and Naib Nazim in any manner and casting their votes in the forthcoming elections for the posts of Town, Districts Taluka and City Nazims.
(iii) Direct the respondents Nos,1 and 2 to issue the notification pursuant to result announced on 20-8-2005 in respect of UC-6, Mauripur Keamari Town, Karachi.
(iv) Any other and additional relief(s) as this Honourable Court may deem fit and proper in the circumstances of the case.
2. Mr. Ziaul Haq Makhdoom, learned counsel for the petitioner contended that, the impugned revision of result dated 23-8-2005 is illegal, void ab initio as it has been passed at the back of the petitioner without affording any opportunity of hearing.
3. According to Mr. Makhdoom, the moment petitioner was declared as returned candidate, the Returning Officer and the Election Commissioner had become functus officio. It was urged that the result could only be challenged through Election Petition. The Election Commission (respondent No,2) has no power to issue revised results therefore, the impugned order of revising result may be set aside. It is further urged by the learned counsel for the petitioner that, re-counting could be made suo motu or on the application if any aggrieved candidate. In this case no re-counting was sought by any of the candidate before the Presiding Officer. According to him after declaration of consolidation of vote counts in Form XV and XVI the Returning Officer and Election Commission have no authority to alter the result. Even if there was any mistake or error that cannot be rectified by the respondent No,2. It has been further pointed out that as per Rule 36 of the Local Government Election, 2005 re-counting is not permissible after issuance of Form XVI. Therefore, respondent No,2 was not authorized to revise the result, even if there was any error in counting. To support the proposition, learned counsel placed reliance upon the unreported judgment from the jurisdiction of this Court rendered in C.P. No,1116 of 2005 (Muhammad Hanif and others v. Election Commission of Pakistan and others).
4. In the cited case, it appears that after consolidation of result in Form XVI Election Commissioner directed re-counting. It was in the context held that no re-counting could be held under SLGE Rules, 2005. Unlike section 103-AA of the Representation of People Act, 1976, District Returning Officer or for that matter Chief Election Commissioner under S.L.G.E. Rules, 2005 have no authority to order re - count after consolidation of result in Forms XV and XVI.
5. It is pointed out by the learned counsel for the petitioner that, in earlier declaration of vote count in Form XVI dated 20-8-2005 notifying petitioner and respondent No,11 as successful as Naib Nazim and Nazim respectively is proper. According to him subsequent revision dated 23-8-2005 declaring the respondents Nos,3 and 4 as successful is liable to be set aside and may be declared as void and without jurisdiction.
6. Miss Saify Ali Khan, learned counsel for the respondents 3 and 4 has vehemently opposed this petition and supported the impugned revision. According to her, respondent No,2 had only rectified tabulation error; it is not a case of re-counting as claimed by the petitioner. It was further urged that the respondent No,11 who was declared Nazim has already challenged the impugned action before the Election Tribunal, all the pleas as claimed in the petition may be agitated before the Election Tribunal. Learned counsel further contended that, the Returning Officer being the Authority under the Sindh Local Government Election Ordinance, 2001 is authorized to revise, review and recall its order in exercise of powers under section 21 of the General Clauses Act. Therefore, the correction was made in good faith and in furtherance of mandate of law to hold fair and impartial election.
7. Mr. Ahmed Pirzada; learned Additional Advocate-General along with Mr. Ataur Rehman, Assistant Election Commissioner, Sindh has placed on record the parawise comments of the Returning Officer, the respondent No,2. along with comments has also filed Forms XIII and all the polling stations. Form XV, dated 20-8-2005 and Form XVI, dated 20-8-2005 and declaration of elected candidates as Nazim and Naib Nazim. Revised Form XV dated 23-8-2005, revised Form XVI dated 23-8-2003 containing names of candidates duly elected. Covering letter, dated 23-8-2005 of the Returning Officer to District Returning Officer. Reply of the Returning Officer dated 3-9-2005 to the Election Commission of Pakistan. Re-counting result sheet and Notification dated 1st September, 2005. Learned Additional Advocate-General while placing the Notification dated 23-8-2005 though that no re-counting could be made after issuance of From XVI, he is however, of the view that it is not a case of re-counting. It was urged that petitioner could challenge the result in election petition and grievance raised could only be considered in election petition before the Election Tribunal in accordance with law. It also appeared that the Returning Officer on 29-8-2005 received directions from the Chief Election Commissioner to carry out the re-counting. Notices were issued and re- counting was fixed on 1-9-2005 but it was stopped on the directions of Chief Election Commission.
8. Respondent No,2 in the comments stated that, on the scrutiny of Forms XIII from 'various polling stations one page of Form XIII from Polling Station No,16 was misplaced due to rush of work. Hence entry of page 6A pertains to other polling booth could not be entered in Form XV dated 20-8-2005.
9. Secondly, that the runner-up candidate respondent No,3 through application dated 23-8-2005 pointed out the clerical mistake that 224 votes cast in his favour and so noted in Form XIII of Polling Station No,5, GBPS Tikri Village has been wrongly shown against the symbol Hokey in Form XV. Such mistake was also carried forward in Form XVI. It is stated in the comment that such clerical mistake when brought to the notice of Returning Officer, after verification error was corrected, neither any re-counting took place nor carried out.
10. Mrs. Sabra Qaiser, Intervenor in this petition has also filed application under Order I, rule 10(2), read with section 151, C.P.C. seeking impleadment in the petition as a party as she also contested election in UC-6. She contends that, she participated in the election from reserved seat for women and obtained 10 votes and the winning candidate has only obtained 11 votes and votes of respondents 3 and 4 have been kept under sealed cover and she will suffer irreparable loss.
11. We have heard the learned counsel for the respective parties and examined parawise comments of respondents 2, 3 and 4 examined the material placed on record.
12. Elaborate procedure for the consolidation and compilation of the election result and vote count is provided under the Sindh Local Government Election Rules, 2005. After close of the polls Presiding Officer counts the votes, in presence of all the contesting candidates or their Election Agents who chose to remain present. First opportunity to claim re-counting is available at this stage, the Presiding Officer may carry out recount of votes suo motu, if he considers it to be necessary or on the reasonable request of the candidate or his agent. The Presiding Officer prepares result of the vote count in Form XIII (Rule 35(9), duly signed by all the candidates or their agents as the case may be. Presiding Officer also prepares ballot-paper account showing number of ballot-papers entrusted, ballot-papers taken out of ballot boxes and counted, challenged, spoilt, and unissued ballot-papers in separate Form No,XIV (Rule 35(10). Certified copy of Form XIII and XIV is also supplied to requesting candidate or their agents. The entire record is then sent in a sealed cover to the Returning Officer.
13. Returning Officer, in turn compiles the result of each polling station contained in Form XIII in a consolidated manner in Form XV. At this stage also second opportunity of re-counting could be carried out, if any candidate challenges the count of Presiding Officer and the Returning Officer is satisfied that challenge is reasonable. Re-counting could also be carried out under the direction of the Chief Election Commissioner or the District Returning Officer (Rule 36(6). After consolidation or in case there is draw of lot (Rule 37 (ibid) name of successful candidate is declared through Public Notice (Rule 38(1) Returning Officer after consolidation of result and public notice, submit to the District Returning Officer consolidated return of votes counts in Form XVI with copy of consolidated statement.
14. In the instant case, from record it appears that the respective Presiding Officers correctly prepared results of each polling station in Form XIII. The petitioner has also not challenged votes count prepared in Form XIII by the respective Presiding Officers. It seems that 224 votes secured by the Respondents 3 and 4 against symbol Basket from Polling Station No,5, G.B.P.S. K.S. Tikri Village (F) were shown against the symbol Football. Vote count of against the symbol Basket was shown as 28 votes only, such mistake also crept in Form XVI. It appears that on obtaining copy of Form XVII, the respondent No,3 Allah Bux noted the discrepancy in the consolidated statement in Form XV and XVI, through application dated 23-8-2005 pointed out such error to the Returning Officer. Which error after verification from Form XIII was corrected and revised Form XV and XVI were issued on the same date. District Returning Officer and the Chief Election Commissioner were notified on the same date.
15. In C.P. No,1116 of 2005 (Muhammad Hanif and others v. Election Commission of Pakistan and others) facts appears to be that after the result was notified, and result in Form XVI was issued in terms of Rule 38(3) of S.L.G.E. Rules, 2005, Election Commission directed re-counting. In the context, it was held:-- "It may be observed that after consolidation in terms of Rule 36 or after the drawl of the lot under Rule 37 (ibid) as the case may be, results are declared through public notice. Immediately on publication of the notice as above, the Returning Officer in terms of Rules 38(3) of S.L.G.E. Rules, 2005 submit to the District Returning Officer a return of election in Form XVI together with a copy of the consolidated statement. In the instant case such exercise has been carried out. Unlike powers of Commission under section 103-AA of the Representation of People Act, 1976, District Returning Officer or for that matter Chief Election Commissioner under S.L.G.E. Rules, 2005 become functus officio. Annulment, withholding of result of election or order re-counting after consolidation and publication of Result and issuance of return in Form XVI referred to above cannot be ordered. Any challenge to the election, after consolidation and publication of election result could be made through election petition and not otherwise."
16. Instant case is not of re-counting after consolidation, therefore, the dicta in cited case is distinguishable. Facts in case reported as Abdul Waheed Zaman Qureshi v. The Election Authority 1999 CLC 112 are somewhat similar. Appellant therein was declared successful and Notification was also issued. However, on pointation of opposing candidate, Election Authority was found that his 400 hundred votes were not counted due to some mistake. Consequently notification issued in favour of the appellant was withdrawn, which action was challenged. It was held at page 115 as follows:-- "4. It is clear from reading of provision of law that it is the duty of respondent No,1 to ensure that an election is conducted honestly, justly, fairly and in accordance with the provisions of the Ordinance and rules framed thereunder. This included declaration of result on the basis of votes polled. The first notification in favour of the appellant was declared on the basis of incorrect data, therefore, it could not be treated as a result of election. The respondent No,1 after verifying the contention of the respondent No,5 proceeded to hold that respondent No,5 had, in fact, obtained 962 votes, therefore, it rightly directed cancellation of the first notification in favour of the appellant and issuance of fresh notification. This was not an election dispute within the jurisdiction of an Election Tribunal.
5. The matter can be looked from another angle that the appellant has somehow or other been declared illegally as elected. We are not saying that it was as a result of collusion or attribute any sinister motive to the appellant but the fact remained that he was wrongly treated as a candidate securing highest votes. The anxiety of the appellant is now to protect the illegal benefits. This fact alone was sufficient to refuse relief to him in Constitutional jurisdiction.
6. In the case of Ch. Abdul Hamid referred to by the learned Single Judge in Chambers it was also one of the questions whether candidate securing less votes or the one who had secured the highest votes should be asked to invoke jurisdiction of the Election Tribunal. The Constitutional jurisdiction being the jurisdiction of equity and good conscious, therefore, the appellant should file the election petition against the election of respondent No,5. We may observe that the Presiding Officer did not compile the result correctly and faithfully. The result compiled by him was patently incorrect, incomplete, therefore, could not have furnished basis for issuance of notification, dated 23rd of May, 1998. The respondent No,1 in exercise of jurisdiction under section 17(1) of the Ordinance, 1979 correctly interfered and ordered issuance of fresh notification.
7. The cardinal principle is that nobody should suffer on account of official acts."
17. Under Chapter II the S.L.G.E. Rules, 2005, it is the duty of the Chief Election Commissioner to ensure fair and impartial election. All the polling agents, Returning Officers, District Returning Officers and other persons performing duties in connection with election act in furtherance to object of holding fair and impartial election. Immediately after close of poll, the Polling Officer prepare the count of vote secured by each candidate in Form XIII counts, it is the basic and fundamental record of the votes secured by the contesting candidate all subsequent result and consolidation is dependent on Form XIII. It is duty of the Returning Officer to correctly tabulate and "consolidate in Form XV the result of count furnished by the Presiding Officer" (Rule 36). The Returning Officer after consolidation of counts from different polling stations and in case of tie after draw of lot as the case may be through public notice announce the name of the successful candidate. Thereafter, the Returning Officer submits to the District Returning Officer return of the election in Form XVI. As noted above consolidation of result of count is based on primary count of votes contained in Form XIII. It appears from the record that, while tabulating and preparing consolidation of votes count in Form XV and XVI, at serial No,5 (polling station (G.B.P.S. Tikiri Village), the Returning Officer had mistakenly noted 28 votes against the Basket (election symbol of respondents Nos,3 and 4. Whereas, Basket had actually secured 224 votes, which count was erroneously shown against symbol Hokey. It is this error that crept in the Form XV and XVI that was corrected. The petitioner cannot be allowed to take advantage of bona fide error committed by the Returning Officer who noted incorrect count against Basket, which led to present unpleasant situation.
18. The petitioner, had not filed the copy of Form XIII, that contained the original vote count of each polling station, had it be filed, it would have exposed the fallacy of the claim of the petitioner. Copy vote count of each polling station contained in Form XIII, were placed on record by the Returning Officer along with her comments and so also by respondents Nos,3 and 4. Petitioner did not question nor doubted the veracity of vote count contained in Form XIII, the primary document on which consolidated vote count in Form XV and XVI is dependent. Even the Notification dated 23-8- 2003 declaring respondents Nos,3 and 4 as successful candidate from UC-6, has been issued.
19. Under given facts and circumstances we are of the considered view that typo and error could be corrected by the Returning Officer, such act is in furtherance to hold free and impartial election as mandated under the S.L.G.E. Rules, 2005. Even otherwise the respondent No,11 has already challenged the election results as revised by the official respondents in Election Petition No,53 of 2005 said to be pending adjudication. Under given circumstances, we are not inclined to exercise our discretion as no person could be made to suffer on account of official acts done in good faith, writ jurisdiction cannot be invoked in aid if injustice.
20. Petition along with all pending applications stand disposed of, all interim orders stand vacated.