' MUHAMMAD JEHANGIR ARSHAD, J.---Since similar questions of law and facts are involved, hence the following fifteen Writ Petitions are disposed of through this single judgment:--
(i) W.P.No.5059 of 2005.
(ii) W. P . No. 5072 of 2005.
(iii) W.P.No.5138 of 2005.
(iv) W.P.No.5011 of 2005.
(v) W. P . No . 5024 of 2005.
(vi) W. P. No. 5055 of 2005.
(vii) W. P. No. 5065 of 2005. (viii)W . P. No. 5078 of 2005 .
(ix) W.P.No.5090 of 2005.
(x) W. P. No.5104 of 2005.
(xi) W. P. No . 5028 of 2005.
(xii) W.P.No.5061 of 2005. (xiii)W. P. No . 5064 of 2005. (xiv) W. P. No.5080 of 2005.
(xv) W.P.No.5125 of 2005.
2. The grievance being voiced through these Writ Petitions is that the concerned Returning Officers while consolidating the election results of respective Union Councils for the election of Nazims and Naib Nazims under rule 36 of the Punjab Local Bodies Elections Rules, 2005 failed to physically examine as to whether the excluded votes were rightly not counted as Ballot Paper cast in favour of the contesting candidates for whom the vote had otherwise been cast.
3. In all the above Writ Petitions, admittedly the excluded votes exceed in number of difference between the total valid votes counted in favour of the elected candidates as well as those who have lost the said election, hence, it was considered necessary to take notice of the abovementioned legal aspect of the case. In some of these petitions, it was directed that final Notification for the relevant Constituency shall not be notified, whereas other Writ Petitions have been filed even after the issuance of Notification within the meaning of section 164 of the Punjab Local Government Ordinance, 2001.
4. All these cases have been heard today. In some cases the respondents have been duly represented by their respective learned counsel whereas in other cases nobody opted to appear on behalf of the contesting respondents, though duly informed about the instant matters by their Returning Officers through the learned Additional Advocate-General.
5. The question requiring determination in these petitions is as to whether it was mandatory for the Returning Officers, concerned to have followed rule 36(3) of the Punjab Local Government Elections Rules, 2005 while consolidating the result of the count and see whether the excluded votes were rightly excluded and not counted as a Ballot Paper cast in favour of the contesting candidates for which the vote had otherwisq been cast.
6. Learned counsel for the parties agree that it was mandatory for the Returning Officers to follow the abovementioned Rule before consolidating the result. However, learned counsel representing the contesting respondents have vehemently argued that at this stage, the Returning Officers cannot be directed to carry out the said exercise as the same involves disputed question of facts and that if writ petitioners have any grievance against the consolidation of results, they can only challenge the same by way of filing Election Petitions before the relevant Election Tribunals and it is the Election Tribunal alone which has got exclusive jurisdiction to decide the disputes including the present controversy. To support their contentions, learned counsel for the said respondents have placed reliance on the case reported as "Ch. Nazir Ahmad and others v. Chief Election Commissioner and 4 others" (PLD 2002 SC 184), "Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others" (PLD 1989 SC 396) and "Emmanual Masih v. The Punjab Local Councils Election Authority and others" (1985 SCM R 729).
7. On the contrary Mian Abbas Ahmad, Advocate assisted by his other learned colleagues in respective writ petitions, has argued that unless the result of election is declared in the official Gazette, constitutional petition was the only remedy available to them, therefore, the objection qua maintainability of instant Writ Petitions at present has no force. In support of said contention, reliance has been placed on the case of "Dr. Liaqat Ali Khan and another v. District Returning Officer, District Sargodha and 3 others" (2002 SCM R 1632) and "Dr. Amjad Mustafa and another v.
Muhammad Fiaz and 9 others (2005 YLR 419). Learned counsel for the petitioners further argued that failure on the part of Returning Officers to comply with the requirement of rule 36(3) of Punjab Local Government Elections Rules, 2005 amounts to refusal in exercising statutory powers, hence in the interest of justice and fairplay this Court while sitting in constitutional jurisdiction can direct the Returning Officers to physically examine those excluded votes and by not issuing such directions this Court would also be guilty of failure to exercise jurisdiction vested in it by Article 199 of Constitution of Islamic Republic of Pakistan, 1973 by not directing the public functionaries to do anything which they are required by law to do and since in terms of rule 36(3) of the above Rules, as it was legal duty of Returning Officers to have physically examined the excluded votes, hence by not performing such duty by the respective Returning Officers have acted and this Court would act in aid of injustice done to the petitioners by manifest illegality. In this behalf reliance has been placed on the case "Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others" (PLD 1973 SC 230) and "Khiali Khan v. Haji Nazir and 4 others" (PLD 1997 SC 304).
8. I have considered the arguments of learned counsel for the respective parties, perused the available record and gone through the cited case-law.
9. So for, as maintainability of all these writ petitions on the ground of availability of alternate remedy by way of filing Election Petitions before the competent Election Tribunal, is concerned, I am afraid that in view of the provisions contained in rule 63 of Punjab Local Government Elections Rules, 2005 requiring presentation of Election Petitions to the Tribunals within thirty days of the publication of the official Gazette the names of Returned Candidates, the said objection is maintainable because so for neither any Tribunal has been appointed nor the names of the Returned Candidates have been published in the official Gazette, hence the said objection with regard to maintainability of these writ petitions, is overruled in the light of the judgments of the Honourable Supreme Court of Pakistan in Dr. Liaqat Ali Khan's case (2002 SCM R 1632) and also a Division Bench judgment of this Court in Dr. Amjad Mustafa's case (2005 YLR 419) referred to above.
10. Admittedly in all these Writ Petitions not a single Returning Officer followed the provisions of rule 36(3) of Punjab Local Government Elections Rules, 2005 before consolidating the results and blindly took the excluded votes out of consideration without their physical determination as required by the above referred Rules. Since the results in all these Writ Petitions are likely to be materially affected by the inclusion or exclusion of excluded votes after physical examination/ determination, hence I am satisfied that by not following the requirement of rules 36(3) above, all the Returning Officers have failed to perform their legal duty and such failure on their part cannot be ignored on the touchstone of mere convenience or inconvenience at this stage by directing them to do the exercise provided under the said rules because in such a situation this Court would not only be failing to exercise the jurisdiction conferred on it by Article 199(1)(a)(i) of the Constitution of Islamic Republic of Pakistan, 1973 but would also be acting in aid of injustice committed to the parties by the above failure on the part of the respective Returning Officers to perform their duty conferred on them under rule 36(3) of Punjab Local Government Elections Rules, 2005.
11. For what has been discussed above, these Writ Petitions are allowed in the following terms:-
(i) All the concerned Returning Officers on receipt of this order shall immediately issue notices to the writ petitioners as well as contesting respondents and fix a date not later than two days of receipt of this order, during which the relevant bags containing the excluded votes shall be requisitioned for the said date;
(ii) All the concerned Returning Officers shall first check out the total number of excluded votes cast in the relevant Union Council and if there are no such excluded votes at any of the Polling Station of the said Union Council, they shall not proceed any further;
(iii) After satisfying themselves about the existence of such excluded votes, the concerned Returning Officer will open the envelop containing such excluded votes in the presence of the parties available on the fixed date and shall physically examine the same as required by rule 36(3) of the Punjab Local Government Elections Rules, 2005 and if he finds that any of such vote was wrongly excluded from count he will count the same as a Ballot Paper for the contesting candidate for whom the same had otherwise been cast;
(iv) After conclusion of entire proceedings the concerned Returning Officer shall prepare the consolidated result afresh in Form (XV) and issue a Certificate to this effect to all the concerned parties; and finally
(v) If as a result of such exercise the earlier result declared by him is affected, he shall declare the final result afresh in terms of Rule 38 of the Punjab Local Government Elections Rules, 2005.
(It is made clear yet again that the above exercise would be limited to the excluded votes only).
12. Before parting with this judgment, I would like to record a note of warning to all the Returning Officers that already several illegalities and irregularities committed by them have come to the notice of the Court but no action was taken by considering the same either as a result of oversight or not due to some intentional act. However, this time if any such illegality or irregularity in the performance of abovementioned duty is brought to the notice of this Court, besides taking disciplinary action on departmental side, the same would also be taken note as an intentional violation of the order of this Court. It is further made clear that while performing the abovementioned specific duty if any gross illegality or irregularity is found to have been committed by Presiding Officers or their subordinates, the Returning Officers will be free to take them to task and they may lodge complaints against them not only to the heads of their respective Departments but also to the worthy Chief Election Commissioner of Pakistan for appropriate action.
13. All the concerned Returning Officers shall complete the above exercise on or before 5-9-2005 and shall submit their final results to the worthy Chief Election Commissioner of Pakistan without delay who will issue fresh Notification under section 164 of the Punjab Local Government Ordinance, 2001, as till date the Notification dated 23-8-2005 has not been published in the official Gazette which is mandatory requirement for filing Election Petitions under rule 65 of the Punjab Local Government Elections Rules, 2005.