SH. ABDUL RASHID, J.--- This detailed judgment is in continuation of my short order, dated 2-11- 2005 whereby this petition has been dismissed.
2. The facts leading to the institution of this petition are that Faqir Abdul Majeed Khan petitioner and respondents Nos.3 to 5 contested election of Tehsil Nazim Piplan District Mianwali held on scheduled date. The Presiding Officer issued the following result:-- Name Symbol Votes Faqir Abdul Majeed Khan Pirch Piali 66 Faisal Mahmood Khan Boat 1 Ghiyas Mehdi Khan Flying Eagle 23 Malik Muhammad Feroze JoyaUmbrella 61 26 votes which did not bear the prescribed mark of rubber stamp provided by the Presiding Officer and instead were encircled in different style were excluded from the count being invalid. Out of the said 26 invalid votes, 13 had been cast in favour of Malik Muhammad Feroze Joya respondents No.5 and 5 had been cast in favour of the petitioner. The Presiding Officer/respondent No.2 handed over the statement of the above count to the agents of the contesting candidates. Respondent No.5 being dissatisfied with the said count-proceedings filed an application on 7-10-2005 before the District Returning Officer Mianwali for re-counting of the votes for the office of Tehsil Nazim Piplan which on the same day was allowed and direction was issued in the following terms:- "The Returning Officer is directed to look into the rejected votes of the contesting candidates and to decide their fate in accordance with law before consolidating the final result."
On the same day the Returning Officer/respondent No.2 issued notices to the candidates for consolidation of result for 8-10-2005 at 11-00 a.m. On the said date respondent No.5 and the petitioner joined the consolidation proceedings and vide the impugned order dated 8-10-2005 the Returning Officer/respondent No.2 observed that the Presiding Officer had wrongly excluded 13 votes of respondent No.5 and five 'votes of the petitioner which had been validly cast in their favour. In the said consolidation proceedings it was found that respondent No.5 had secured 74 valid votes as against 61 and the petitioner secured 71 votes instead of 66 as counted by the Presiding Officer and consequently Malik Muhammad Feroze Joya respondent No.5 was declared successful.
3. Feeling aggrieved, the petitioner who was declared successful in the initial count made by the Presiding Officer has assailed the orders dated 7-10-2005 and 8-10-2005 passed by respondents Nos.1 and 2 respectively on the following grounds:--
(a) That respondent No.1 had no authority to direct the Returning Officer/respondent No.2 to look into the rejected votes of the contesting candidates and the said order is violative of Rule 36 of Chapter IV of the Punjab Local Government Elections Rules, 2005;
(b) that the votes which were rightly rejected by the Presiding Officer had been illegally counted in favour of respondent No.5;
(c) that the order of the District Returning Officer/respondent No.1 being unlawful and void ab initio rendered the entire subsequent proceedings carried out by the Returning Officer/respondent No.2 violative of the law;
(d) that the petitioner having been found successful candidate by the Presiding Officer could not have been declared defeated in the re-count;
(e) that respondent No.2 had misinterpreted the judgment of the Honourable Supreme Court of Pakistan in favour of respondent No.5 and in the said judgment it has been clearly stipulated that the votes showing their identity could not be considered as valid votes; and
(f) that the votes counted by respondent No.2 in the re-count clearly disclosed their identity as those carried the identification marks in the shape of encircling the symbols and thus, could not be considered as votes validly cast. and consequently prayed for setting aside the impugned orders declaring respondent No.5 as returned candidate.
4. Respondent No.5 contested the petition and in his reply controverted the allegations and the grounds set forth in the petition. It had been pleaded that the Presiding Officer had illegally and without legal justification excluded 26 votes from the count and the matter was agitated before the District Returning Officer that the Returning Officer be directed to have recourse to the mandatory provisions of Rule 36 sub-rules (2) and (3) of the Punjab Local Government Elections Rules, 2005; that the District Returning Officer merely directed the Returning Officer to look into the rejected votes of the contesting candidates and to decide their votes in accordance with law before consolidating the final result and thereby had only directed him to comply with the provisions of Rule 36(2) and (3) of the Punjab Local Government Elections Rules, 2005 and that the Returning Officer only acted under the said provisions and consolidated the result in which he was bound to consider the fate of the rejected votes and he rightly observed in his order dated 8-10-2005 that 13 votes which stood cast in favour of respondent No.5 and five votes cast in favour of the petitioner had been wrongly excluded by the Presiding Officer; that the Returning Officer had rightly prepared the results and by order of District Returning Officer no illegality had been committed. It had been further argued that the final notification of the result had been made and the Election Tribunals stand constituted and all the matters pertaining to election process could be challenged only before the Election Tribunals and the said remedy being available the present writ petition was not maintainable in view of the principle laid down in Ch. Nazir Ahmad and others v. Chief Election Commissioner and 4 others PLD 2002 SC 184.
5. I have heard the learned counsel for the parties at length. Learned counsel for the petitioner had mainly raised the following contentions: That the Presiding Officer had found 26 votes as invalid and respondent No.5 had moved a petition before the District Returning Officer for re-counting of the said invalid votes which is violative of Rule 36 sub-rule (6) of the Punjab Local Government Elections Rules, 2005 whereby the Returning Officer in re-count ordered by District Returning Officer could only confine himself to the re-count of valid ballot-papers/votes and could not hold re-count about votes declared invalid by the Presiding Officer; that pursuant to the order of the District Returning Officer the Returning Officer held the re-count of invalid votes which led to the change of the result declaring the petitioner unsuccessful candidate when he already had been declared as successful by the Presiding Officer and that 26 invalid votes did not bear the marking aid of rubber stamp on them which under proviso (c) of clause (i.e) of sub-rule (4) of Rule 35 of the Rules could not have been counted in favour of any contesting candidate as it could not be discerned that for whom the voter had voted.
6. Perusal of the record attached with this petition reveals that the Presiding Officer after close of the poll for the seat of Tehsil Nazim Piplan District Mianwali made the count of votes and prepared its statement (copy Annexure "A") showing that the petitioner secured 66 votes and respondent No.5 secured 61 votes. 26 votes were excluded from the count. This count was made under Rule 35 of the Punjab Local Government Elections Rules (hereinafter to be referred the Rules). Under sub- rule (15) of the said Rule 35 after the close of the proceedings the Presiding Officer is required to cause the packets, the statement of the count and the ballot-paper account prepared by him under the preceding sub-rules to be sent to the Returning Officer together with such other record as the Returning Officer may direct. Under Rule 36 of the Rules the Returning Officer shall then consolidate in Form XV. The result of the counts furnished by the Presiding Officer. Rule 36 of Rules, for facility of reference, is reproduced hereunder:-- "36. Consolidation of results.--- {1) The Returning Officer shall consolidate in Form-XV the results of counts furnished by the Presiding Officer.
(2) The Returning Officer shall give the contesting candidates and their election agents a notice in writing of the day, time and place for the consolidation of the results.
(3) Before consolidating the results of the count, the Returning Officer shall examine the ballot- papers excluded from the count by the Presiding Officer and if he finds that any such ballot-paper should not have been so excluded, count it as a ballot-paper cast in favour of the contesting candidate for whom the vote had otherwise been cast.
(4) The Returning Officer shall include the vote's cast in favour of each contesting candidate in the consolidated statement except those, which he may reject on any of the grounds mentioned in clause (i.e) sub-rule (4) of Rule 35.
(5) The ballot-papers rejected by the Returning Officer under sub-rule (4) shall be shown separately in the consolidated statement.
(6) The Returning Officer shall not re-count the valid ballot-papers in respect of any polling station unless---
(i) the count by the Presiding Officer is challenged in writing by a contesting candidate or his election agent and the Returning Officer is satisfied about the reasonableness of the challenge; or
(ii) he is directed to do so by the Chief Election Commissioner or the District Returning Officer."
7. In the present case before the result could be consolidated by the Returning Officer, respondent No.5 made an application before the District Returning Officer seeking re-count of the invalid votes and consequently, the District Returning Officer merely directed the Returning Officer to look into the rejected votes of the contesting candidates and to decide their votes in accordance with law before consolidating the final result. Rule 36 sub-rule (3) made it mandatory for the Returning Officer to examine the ballot-papers excluded from the count by the Presiding Officer and if he finds that any such ballot-papers should not have been so excluded he would count it as a ballot- paper cast 4 in favour of the candidate for whom the vote had otherwise been cast. The District Returning Officer in his direction had only required the Returning Officer to carry out his legal duty as in regard to the consolidation of the result under Rule 36(3) (supra). The further proceedings taken by the Returning Officer respondent No.2 under the directions of the District Returning Officer only show that he had proceeded to consolidate the results of the contesting candidates and gave notice to the parties concerned for 8-10-2005 as required under Rule 36(2) and then he determined the fate of votes excluded from the count by the Presiding Officer as provided under sub-rule (3) of Rule 36 of the Rules. Thereafter he prepared Form-XVI (copy Annexure ,"B") showing the name of respondent No.5 as elected candidate. All these proceedings show that the Returning Officer was only directed by the District Returning Officer to proceed in accordance with the Rules to consolidate the result and consequently the Returning Officer proceeded in accordance with the said Rules.
8. The contention that the District Returning Officer had directed the Returning Officer to re-count the invalid votes appears to be misconceived. Under Rule 36, sub-rule (3) (supra) the Returning Officer while consolidating the results is obliged to examine and decide the fate of invalid ballot- papers and he appears to have carried out his legal duty in this case. The Returning Officer in this case had not held the re-count of the valid ballot-papers in respect of any polling station on the direction of the District Returning Officer. Under Rule 36, sub-rule (6) a Returning Officer has been bound not to re-count the valid ballot-papers in respect of any polling station unless he is so directed by the Chief Election Commissioner or the District Returning Officer. Thus, a Returning Officer while consolidating the result is bound to examine and decide the fate of invalid votes but he had been debarred from re-counting the valid ballot-papers unless so directed by the District Returning Officer. In the present case the re-count of valid ballot-papers cast in favour of each candidate was not made by the Returning Officer, therefore, all the proceedings in this case had been carried out under sub-rule (3) of Rule 36 and not under sub-rule (6) of the said Rule.
9. Learned counsel for respondent No.5 has placed on the file copy of the Notification No.F.19(1)/2005-Elec-1(2) dated 10-10-2005 issued by the Election Commission of Pakistan whereby Malik Muhammad Feroze Joya respondent No.5 has been declared as Tehsil Nazim Piplan District Mianwali. It is also an admitted position that the Chief Election Commissioner has appointed Election Tribunals to entertain election petitions for adjudication of the election matters. Rule 65 of the Punjab Local Government Elections Rules, 2005 provides that no election shall be called in question except by an election petition made by a candidate for that election. .All the questions which have been raised in this petition can be validly urged in the election petition before the Election Tribunal. D Thus, an, alternate and efficacious remedy is available to the petitioner absence of which is condition precedent for invoking jurisdiction under Article 199 of the Constitution. It has been held by the Honourable Supreme Court in Ch. Nazir Ahmad and others v.
Chief Election Commissioner and 4 others PLD 2002 SC 184 which is as follows: "Rule 70, Punjab Local Government Elections Rules, 2000 expressly prohibits any election held under the Punjab Local Government Elections Ordinance, 2000 to be called in question except by an election petition made by a candidate for that election before the Election Tribunal. The appellants and the present petitioners in the present case were candidates in the election in which the contesting respondents were notified as `returned candidates' by the competent authority under sub-rule (5) of rule 42 read with the rule 55 of the Rules and the Election Tribunals have also been admittedly appointed by the Chief Election Commissioner through a notification issued under Rule 73 of the Rules, therefore, there can be no dispute with the proposition that the writ petitions were squarely hit by the statutory prohibition contained in rule 70 of the Rules. Moreover, the embargo on grant of any relief in exercise of jurisdiction under Article 199 of the Constitution in presence of an alternate remedy was fully attracted. The relief claimed in the writ petitions could be allowed in election petitions, therefore, an alternate remedy was available to the petitioners which is certainly an adequate and efficacious remedy in view of the scheme and contents of the Punjab Local Government Elections Ordinance, 2000 and the Rules."
It may be mentioned here that the Punjab Local Elections Rules, 2005 are identical in substance and Rule 65 of these Rules is the same as it was Rule 70 of the Punjab Local Government Ordinance, 2000 which has been referred in the above quoted judgment which provides an adequate, alternate and efficacious remedy to a candidate for that election to call in question the said election.
10. In view of what has been noted and discussed above, this petition is not maintainable and is hereby dismissed.