' SYED SHABBAR RAZA RIZYI, J.---The petitioners contested election of the Union Council No.35, Rasool Nagar Teshil Wazirabad District Gujranwala. Petitioners were candidates of office of Nazim and Naib Nazim respectively. The elections were held on 18-8-2005.
2. At Polling Station No.8 of Union Council No.35, one ballot box was not opened for counting of votes and it was sealed in the office of the Returning Officer without being opened and votes counted therein.
3. The Presiding Officer Miss Sobia Asad, respondent No.2 submitted a written application to the Returning Officer. She stated that one ballot box remained closed and votes contained therein were not counted. She further stated that she opened only 5 ballot boxes and counted votes from only those ballot boxes. She stated that the mistake was inadvertent; no body from the contesting parties noticed the mistake either. She sought permission of the Returning Officer to count the votes in the said ballot box. A similar application was also made by Miss Parmila Gulzar, the Assistant Presiding Officer, respondent No.3. The petitioner also filed an application to the Returning Officer who vide his order dated 20-8-2005 turned down the request of the Presiding Officer, Assistant Presiding Officer and the petitioner. The Returning Officer declared votes in the sixth ballot box as spoilt votes without even opening the ballot box. In the said background, the present writ petition has been filed by the learned counsel for the petitioners.
4. Today, Miss Parmila Gulzar, Assistant Returning Officer, Union Council No.35, Polling Station, Rasool Nagar has appeared and supported the contentions of the learned counsel for the petitioners. She also states that she recognizes her application addressed to the Returning Officer attached with this writ petition, Annexure- ' C' .
5. The learned counsel for petitioners also submits that impugned order dated 20-8-2005 passed by the learned Returning Officer is against Rule 33 which has defined spoilt ballot-papers which is as under:-- "A voter who has inadvertently so spoilt his ballot paper that it cannot be used as a valid ballot paper may, upon proving the fact of inadvertence to the satisfaction of the Presiding Officer and returning the ballot paper to him, to obtain another ballot paper and cast his vote by such other ballot paper.
' The Presiding Officer shall forthwith cancel the ballot paper returned to under sub-Rule (1), make a note to that effect on the counterfoil over his own signature and sign the cancelled ballot paper and place it in a separate packet labelled "spoilt ballot papers."
' If a ballot paper issued to a voter has not been inserted by him into the ballot box and is found anywhere in or near the polling station, it shall be cancelled and accounted for as "spoilt ballot paper."
' The learned counsel also submits that result of the election has not been notified so far, therefore, this Court can pass an appropriate writ under its constitutional powers.
6. On the other hand, learned counsel appearing for respondents Nos.4 and 5 submits that in view of provisions of rule 65, this Court has no jurisdiction to entertain this writ petition after the election has been held. In this regard, the learned counsel for the respondents has referred and relied upon 1990 CLC 68. It may be pointed out that in the said judgment; the impugned order was passed by the demised/erstwhile Punjab Local Council Authority. The order of the Authority was set aside by this Court on the ground that after holding of election, the election dispute may be called in question by filing an election petition before the Election Tribunal.
7. Rule 3(f) of Punjab Local Government Elections Rules, 2005, provides powers and functions of the Chief Election Commissioner. Under sub-Rule (f) of rule 3 read the Chief Election Commissioner may constitute Election Tribunal and appoint its Presiding Officer for disposal of election petitions and other disputes. The word "dispute" is used as a noun as well as a "verb". In terms of rule 3(f) it is used as a noun and it means an agreement or disagreement between the two peoples, groups etc. In the facts and circumstances of the present case, there are two applications from the concerned Presiding Officer and Assistant Presiding Officer whereby they themselves say that they forgot to open one ballot box to count the ballot papers contained therein. Today, in the Court, respondent No.3, the Assistant Presiding Officer stated that the facts narrated by the learned counsel for the petitioner are correct. The learned counsel for respondents Nos.4 and 5 also has not disputed the above fact. Therefore, in my opinion, there is no dispute as such. In the facts and circumstances of the present case, the Presiding Officer , Assistant Returning Officer and Returning Officer failed to perform their function of counting and recounting of ballot papers as required under Rules 35 and 36 of the Punjab Local Government Elections Rules, 2005.
8. Another aspect of the matter is that Returning Officer vide impugned order declared ballot papers of the sixth ballot box spoiled ballot papers. As stated above, spoiled ballot papers have been defined in Rule 33. It is not understandable how could he declare the said ballot papers as spoiled ballot papers? Even without opening the ballot box.
9. Rule 65 says that no election shall be called in question except by an election petition. Rule 71 provides every election petition shall be tried, as nearly as may be, in accordance with the procedure for the trial of the suits under the Code of Civil Procedure Code, 1908. Therefore, it seems, in the facts and circumstances of the present case, remedy of filing election petition would not be an adequate remedy in terms of Article 199 of the Constitution. Article 225 of the Constitution reads as under:-- "No Election to a House, or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by an Act of (Majlis-eShoora (Parliament)). "
' Article 199 of the Constitution starts with expression, "subject to the constitution". Therefore, generally the High Courts in Pakistan have refused to exercise their constitutional jurisdiction whereby disputes relating to election to a House or a Provincial Assembly are challenged before them. Since Article 225 specifically provides a remedy. Provision of Rule 65 of Punjab Local Government Elections Rules of 2005 cannot be considered in pari materia with Article 225 of the Constitution. Despite that in case Election Commission of Pakistan v. Raved Hashmi PLD 1989 SC 396, Syed Naseem Hassan Shah, J. Wrote a minority judgment. The relevant portion reads as under:-- "In my humble opinion such width and amplitude cannot be read into the provision of Article 225. I am, on the other hand, of the opinion that aty decision or order made by a functionary charged with the conduct of election which is made in excess of the authority being coram non judice would still be subject to the control of the High Court in exercise of its jurisdiction under Article 199 of the Constitution."
' In a subsequent case Ghulam Mustaf Jatoi v. Additional District and Sessions Judge and others 1994 SCM R 1299, while discussing the earlier case, the Honourable Supreme Court held as under:-- "In view of the above peculiar features, the above reported case is distinguishable from the present case. In the above case, the minority view was referred by one of us (Syed Naseem Hassan Shah, J.
As he then was) in which it was held that the order of the Returning Officer altering the approved list and substituting it with a new list of the staff was without jurisdiction and the same was fit for interference under Article 199 of the Constitution. We are inclined to hold that the appellant in above constitutional petition was competent and the High Court by declining to exercise its constitutional jurisdiction for the reason herein above, has failed to exercise jurisdiction vested in it."
' After discussing some other cases, the Honourable Supreme Court concluded as under:-- "The upshot of the above discussion is that generally in an election process the High Court cannot interfere by invoking its constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an Election functionary which is patently illegal/without jurisdiction and the effect which is to disenfranchise a candidate he can press into service constitutional jurisdiction of the High Court." (Ghulam Mustafa Jatoi v. Addl.
District and Sessions Judge and others 1994 SCM R 1299).
10. As noted above, the Returning Officer, the Presiding Officer and the Assisting Presiding Officer failed miserably to perform their function as were required of them under rules 35 and 36 of the Elections Rules, 2005. Two of them i.e. The Presiding Officer and the Assistant Presiding Officer have also conceded their fault as it is evident from their applications addressed to the Returning Officer attached with this petition as Annexures-'B and C'. The Assistant Presiding Officer has also conceded the above fact in the open Court before me as well. The Returning Officer declared the uncounted votes contained in the ballot box which was never opened as spoilt ballot papers, the impugned order of the Returning Officer is patently illegal in view of unambiguous provision of rule 33 of the Punjab Local Government Elections Rules, 2005. Moreover, this fact of non-counting of ballot papers, contained in 6th ballot box has not been disputed or controverted by the learned counsel for the respondents Nos.4 and 5, Returning Officer, Presiding Officer and Assistant Presiding Officer. In another recent judgment, the Honourble Supreme Court has held as under:-- "There is an ample case law on the point that notwithstanding the availability of remedy of election petition, the order passed by the Election Authorities effecting 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". (Dr. Liaqat Ali Khan and another v. D.R.O. And others).
11. In view of the above discussion and reasons, this writ petition is allowed and the impugned order dated 28-8-2005 is set aside and declared without lawful authority. The learned Returning Officer is directed to open the 6th ballot box to count the ballot papers contained therein in the presence of the concerned parties and strictly in accordance with law and rules.