' MUHAMMAD AKHTAR SHABBIR, J.---The petitioners contested election of Nazim and Naib Nazim respectively from Union Council No.33 Lehri, Tehsil Sohawa, District Jhelum, held on 25-8-2005.
Respondents Nos.4 and -5 also contested the said election against the petitioners. After the conclusion of the poll of votes, the Presiding Officers of all the ten Polling Stations of the said Union Council counted the votes in presence of their agents and handed over the result to the concerned parties. The Returning Officer, respondent No.2, on the following day i.e. 26-8-2005 consolidated the result and communicated the preliminary result to the District Returning Officer, declared the petitioners as successful candidates.
2. The grievance of the petitioners is that on 27-8-2005, the Returning Officer on the application of respondents Nos.4 and 5 made recount of the votes despite the objection of the petitioners regarding recount by the Returning Officer and thereafter changed the result and declared respondents Nos.4 and 5 as elected candidates.
3. Learned counsel for the petitioners has challenged the said order of the Returning Officer, dated 27-8-2005 declaring the recount of the votes and declaring the respondents as successful candidates contending that after the consolidation of the result, the Returning Officer was not empowered being functus officio to recount the ballot-papers. He places reliance on Dr. Liaqat Ali Khan and another v. District Returning Officer, District Sargodha and 3 others (2002 SCM R 1632).
4. On the other hand, learned counsel for the respondents has vehemently opposed the arguments of the learned counsel for the petitioners and supported the order regarding recount of the votes by the Returning Officer.
5. I have heard the learned counsel for the parties and perused the record. Rule 35 of the Punjab Local Government Elections Rules, 2005, has provided the proceedings at the close of the poll which reads as under:-- "Rule 35.---Proceedings at the close of the poll.---(1) The Presiding Officer shall count the votes immediately after the close of the poll in the presence of such of the contesting candidates, election agents and polling agents as may be present.
(2) The Presiding Officer shall give such of the contesting candidates, election agents and polling agents as may be present, reasonable facility of observing the count and give them such information with respect thereto as can be given consistent with the orderly conduct of the count and the discharge of his duties in connection therewith.
(3) No person other than the Presiding Officer and polling officer, any other person on duty in connection with the poll, the contesting candidates, their election agents and polling agents shall be present at the count.
(4) The Presiding Officer shall Open the used and sealed ballot "lox of ballot boxes and count the entire lot of ballot papers taken out therefrom open the packet labeled "challenged ballot paper", and include the ballot papers therein in the count; and
(iii) count the votes cast in favour of each contesting candidates excluding from the count the ballot papers, which bear-
(a) no official mark;
(b) any writing or any mark other than the official mark and the mark of "marking aid rubber stamp" or to which a piece of paper or any other object of any kind has been attached;
(c) no mark of "marking aid rubber stamp" indicating the contesting candidate for whom the voter has voted; or
(d) any mark from which it is not clear for whom the voter has voted provided that a ballot paper shall be deemed to have been marked in favour of a candidate if the whole or more than half of the area of the mark of "marking aid rubber stamp" appears clearly within the space containing the symbol of that candidate; and (e)where the mark of "marking aid rubber stamp" is divided equally between two such spaces, the ballot, paper shall be deemed to invalid.
(5) The Presiding Officer may recount the votes-
(i) of his own motion if he considers it necessary; or
(ii) upon the request of a contesting candidate or an election agent present, if, in his opinion, the request is not unreasonable.
(6) The valid ballot papers cast in favour of each contesting candidate shall be put in separate packets and each such packet shall be sealed and shall contain a certificate as to the number of ballot paper put in it and shall also indicate the nature of the contents thereof, specifying the name and symbol of the contesting candidate to whom the packet relates.
(7) The ballot papers excluded from the count shall be put in separate packet indicating thereon the total number of ballot papers contained therein.
(8) The packets mentioned in sub-rules (6) and (7) shall be put in a principal packet, which shall be sealed by the Presiding Officer.
(9) The Presiding Officer shall, immediately after the count, prepare a statement of the count in Form-XIII showing therein the number of valid votes polled by each contesting candidate and the ballot papers excluded from the count.
(10) The Presiding Officer shall also prepare in Form-XIV a ballot paper account showing separately the number of--
(i) ballot papers entrusted to him;
(ii) ballot papers taken out of the ballot box or boxes and counted;
(iii) tendered ballot papers;
(iv) challenged ballot papers;
(v) spoilt ballot papers; and
(vi) un-issued ballot papers.
(11) The Presiding Officer shall if so requested by any candidate or election agent or polling agent present, give to him a certified copy of the statement of the count and the ballot paper account.
(12) The Presiding Officer shall seal in separate packets--
(i) the unissued ballot papers;
(ii) the spoilt ballot papers;
(iii) the tendered ballot papers;
(iv) the challenged ballot papers;
(v) the marked copies of the electoral rolls;
(vi) the counterfoils of the used ballot papers;
(vii) the tendered votes' list; (viii)the challenged votes list; and
(ix) such other papers as the Returning Officer may direct.
(13) The Presiding Officer shall obtain on each statement and packet prepared under this rule the signatures of such of the contesting candidates or their election agents or polling agents as may desire to sign it.
(14) A person entitled to sign a packet or statement under sub-rule (13), may, if he so desires, also affix his seal on it.
(15) After the close of the proceedings under the foregoing sub-rules, the Presiding Officer, shall, in compliance with such instructions as may be given by the Returning Officer in this behalf, cause the packets, the statement of the count and the ballot paper account prepared by him to be sent to the Returning Officer together with such other records as the Returning Officer may direct."
6. Rule 36 of the said Rules contemplated as under:- "Rule-36. Consolidation of results.---(1) The Returning Officer shall consolidate in Form-XV the result of counts furnished by the Returning 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 votes 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
(iii) 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 recount 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. From the plain reading of the above provisions of sub-rule 6 of rule 36 of the Punjab Local Government Elections Rules, 2005, it reveals that the Returning Officer is competent to recount the votes if the recount made by the Presiding Officer has been challenged in writing by the contesting candidate or his election agent and the Returning Officer is satisfied about the reasonableness of the challenge or directed by the Chief Election Commissioner or the District Returning Officer. Sub- rule 4 of rule 36 provides that the Returning Officer shall include the votes cast in favour of each contesting candidate in the consolidated statement.
8. The procedure for declaration of results envisaged in rule 38 of the aforesaid Rules, which his reproduced as under:-- "Rule-38.---(1) Save as provided in sub-rule (4) of rule 35, the Returning Officer shall, after consolidation of results under rule 36, or after the drawl of the lot under rule 37, declared by public notice, the name or names of such contesting candidate, or candidates in case of multi-member unions as have or are deemed to have received the highest number of votes.
(2) The public notice shall contain the name and total number of votes received by each contesting candidate.
(3) The Returning Officer shall, immediately after publication of the notice under sub-rule (1), submit to the District Returning Officer, a return of the election in Form-XVI together with a copy of the consolidated statement.
(4) The District Returning Officer shall forward to the Provincial Election Commissioner, the names of the returned candidates of a Union in a council for publication in the official Gazette by the Chief Election Commissioner."
9. Learned counsel for the petitioners while placing reliance on Dr. Liaqat Ali Khan and another v.
District Returning Officer, District Sargodha and 3 others (2002 SCM R 1632) contends that after consolidation of the result by the Returning Officer, he becomes functus officio and not competent to reopen the process of recount in Form-XIV. The relevant portion of the judgment of the Hon'ble Supreme Court is reproduced as under:-- "The Returning Officer before consolidation of result issued notice to the contesting candidates for 4-8-2001 under rule 40 of the Rules and on the same day he undertook the exercise of recount. The objection of the petitioners was that Returning Officer after consolidation and announcement of the result proceeded to invoke the provisions of rule 40 and revised the result. The perusal of order would not show as to whether the re-counting was done before the consolidation of result or after its declaration. The Returning Officer after declaration of result, under rule 42 of the Rules becomes functus officio and is not competent to re-open the process of re-counting in exercise of his power under -rule 40 read with 39 of the rules. Thus the essential question relating to the matter of exercise of jurisdiction by the Returning Officer and the locus standi of the petitioners to avail the remedy of election petition would need determination."
10. From the perusal of the above-referred judgment of the Hon'ble Supreme Court, it is clear that after declaration of result under rule 42 of the Rules, the Returning Officer becomes functus officio.
In the instant case, the present election schedule for the process of election has been published/announced by the Election Commission. The election date for the second phase of the Local Council was fixed as 25-8-2005 and after the close of the polls and performing the requirement of rules 35 and 36 of the rules, the date for declaration of the final result was fixed by the Election Commissioner as 27-8-2005.
11. Punjab Local Government Elections Rules, 2001, have been repealed by the Punjab Local Government Elections Rules, 2005, as the provisions for declaration of result in the Rules, 2001, were provided in rule 42 and this process had been substituted by rule 38 of the Punjab Local Government Elections Rules, 2005, and following the principle laid down by the Hon'ble Supreme Court in Dr. Liaqat Ali Khan's case cited above, after declaration of result as provided in Rule 38 of the Punjab Local Government Elections Rules, 2005, and submission of the return of the election in Form-XVI to the District Returning Officer, the Returning Officer would become functus officio and not competent to re-open the bag for recounting. In the instant case, as is evident from the election schedule, the final result was to be declared by the Returning Officer on 27-8-2005 and the alleged recount was made after the consolidated statement was made by the Returning Officer.
Thereafter, the consolidated statement of the result of re-count furnished by the Returning Officer in Form-XVI was made, copy of which is Annexure-F attached with this petition by the writ petitioners. The preliminary result was prepared by the Returning.Officer on 26-8-2005 and in this context, he has placed reliance on Annexure-C, which shows the communication of preliminary result, meaning thereby that it was not the final result. Now the controversy for determination is whether Annexure-C is the final result or the consolidated statement of the result of count furnished by the Presiding Officers or it is the result appearing at page 32 of the writ petition submitted by the Returning Officer, Sohawa in Form XV in shape of consolidated statement of the results of the count as provided in Rule 36 of the Punjab Local Government Elections Rules, 2005, is a question of fact, which requires recording of evidence and scrutiny of record, but the same cannot be gone into by this Court in exercise of its constitutional jurisdiction, as laid down in the cases of Muhammad Younas Khan v. Government of N.-W.F.P. Through Secretary and others (1993 SCM R 618), Benedict F.D. Souza v. Karachi Building Control Authority and 3 others (1989 SCM R 918) and Federation of Pakistan and 2 others v. Major (Rtd.) Muhammad Sabir Khan (PLD 1991 SC 476).
Therefore, this controversy can be resolved only by the Election Tribunal.
12. In view of the above discussion, this writ petition being devoid of any force is dismissed. The Election Commissioner may issue notification with regard to the winning party and the aggrieved party, may avail the alternate remedy by way of filing a petition before the Election Tribunal.