' MUHAMMAD AKHTAR SHABBIR, J.--- This single judgment will dispose of Writ Petitions Nos.2367 and 2380 of 2005 as a common question of law and fact is involved in both these petitions.
2. The facts giving rise to the filing of Writ Petition No.2367 of 2005 are to the effect that the writ petitioners and respondents Nos.5 and 6 contested Local Bodies election held on 25-8-2005 for the seats of Nazim' and Naib Nazim respectively for Union Council No.54, Sarai Kala Taxila, Tehsil Taxila, District Rawalpindi. The petitioners were allotted the symbol of Hockey and the respondents Nos.5 and 6 as Crescent. After close of the polls, the concerned Presiding Officers made counting of the votes and prepared the preliminary results and copies of the same were delivered to the Poling Agents who were present at respective polling stations. As per the result, the respondents Nos.5 and 6 secured 3205 votes which were 31 more than the votes obtained by the petitioner. The grievance of the petitioner is that the rigging was made in the polling process purposely by the .Rival contesting candidates of the petitioner and respondents Nos.5 and 6 manoeuvred the elections' results in their favour with the connivance of the election staff. The petitioner being aggrieved of the illegal action of respondents Nos.5 and 6 approached respondent No.1 on the very next day of the polling through an application explaining his grievance about the unfair and rigged election process, especially the process of counting of votes which was dismissed vide order, dated 27-8-2005. Thereafter, the petitioner voiced his grievance before the Chief Election Commissioner-respondent No.3 who directed the respondent No.1 to conduct the recounting of votes which was not complied with by the District Returning Officer as well as the' Returning Officer.
The petitioners have invoked the constitutional jurisdiction of this Court by impugning the order, dated 1-9-2005 of Returning Officer, declaring to have been passed illegally or without lawful authority and directing the respondent No.1 to recount the votes of the Union Council No.54 of Sarai Kala, Taxila.
3. The facts of Writ Petition No.2380 of 2005 are to the effect that the petitioners submitted their nomination papers to contest the Local Government Elections held on 25-8-2005 for the seats of Nazim and Naib Nazim respectively and respondents Nos.3 to 25 also contested elections for the seats of councillors from Union Council No.11, Mankiala Muslim, Tehsil Gujjar Khan, District Rawalpindi which is comprising of seven wards. The elections were conducted by respondents Nos.26 to 32 being the Presiding Officers of the concerned polling stations. According to the petitioners as per counting of the votes by the Presiding Officers of different polling stations the petitioners won their seats with a difference of 129 votes and they were declared as Nazim and Naib Nazim of Union Council No.11 Mankiala Muslim, Tehsil Gujjar Khan, District Rawalpindi and their success was published in the different newspapers, but surprisingly enough, on the next day, due to the reasons best known to the Returning Officer (respondent No.33), respondents Nos.1 and 2 have been shown as the returned candidates of the seat of Nazim and Naib Nazim.
4. Feeling aggrieved the present petitioners approached the Chief Election Commission of Pakistan and as a result thereof Mr. Nazar Abbas, Section Officer directed the Returning Officer i.e. Respondent No.33 for the recounting of the ballot-papers with regard to the Polling Station Barki Chouhanwali of Union Council No.11, Tehsil Gujjar Khan, Rawalpindi and made a further direction of submission of report within two days. But the counting has not been made. The petitioners have voiced their grievance declaring the result of respondents Nos.1 and 2 as successful candidates, as null and void and directing the recounting of the votes of the Union Council No.11, Tehsil Gujjar Khan, Rawalpindi
5. I have heard the learned counsel for the petitioners and perused the record.
6. In both the cases a letter dated 27-8-2005 was issued by Mr. Nazar Abbas Section Officer, Election Commission of Pakistan directing the Returning Officer as under:-- "I am directed to state that the Honourable Chief Election Commissioner has been pleased to order that result of the following union council shall be withheld till recounting of votes is carried out by the Returning Officer concerned in accordance with law after issuing notice to the contesting candidates in respect of categories, polling stations of union council(s) as detailed below.
' Union council. No.---------- ' Polling station --------------- ' Category Nazim/N. Nazim
(2) It is, therefore, requested that the needful may kindly be done in compliance with orders of the Honourable Chief Election Commissioner and the report may be submitted within two days from the issue of this letter along with revised Form XVI, is so required. (Sd.)."
7. Mr. Muhammad Aslam Bhatti, R.O. Union Council 54 vide his order, dated 1-9-2005, declined to recount the votes in compliance with the letter dated 27-8-2005 issued by Nazar Abbas Section Officer stated that recounting of the votes was not possible. Similarly, Mr. Azhar Iqbal Ranjha, respondent No.33/the Returning Officer of Union Council No.11, did not conduct the recounting of votes in compliance with letter dated 27-8-2005 issued by Nazar Abbas, Section Officer.
8. The programme for the elections to be held on 25-8-2005 was issued/published by the Election Commissioner and the date for declaration of the final results by the Returning Officers was 27-8- 2005. Rule 38 of the Punjab Local Government Elections Rules, 2005 provides the process of decal- ration of results which reads as under:-- "38. Declaration of results.---(1) Save as provided in sub-rule (4) of rule 35, the Returning Officer shall, after consolidation of results under rules 36, or after the drawl of the lot under rule 37, declare by public notice, the names 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. After submission of the return of the election on Form XVI to the District Returning Officer, the Returning Officer becomes functus officio and is not competent to reopen the ballot-box and recount the votes in view of dictum laid down in 2002 SCMR 1167.
' The most important aspect of the case is that the Election Commission of Pakistan issued notification dated 1-9-2005 regarding the recounting of ballot-papers which is reproduced as under:-- ' Notification No.F.3(2)/2005- ' Elect.---(1) Local Government Elections have been held in two phases on 10th August an 25th of August, 2005. The official results of elections held in both phases have been published in the Gazette on 23rd of August and 30th of August, 2005 respectively. Election Tribunal has also been notified in the Gazette for deciding election disputes in accordance with law, as such, applications for recounting of ballot-papers may be treated as election petitions and be referred to the relevant Election Tribunal for disposal in accordance with law. By order of the Chief Election Commissioner.
(Sd.)."
10. As per the above notification the Chief Election Commissioner has himself restrained the recounting of votes and directed that the applications made before the election authorities for recounting of the votes be referred to relevant Election Tribunal for disposal in accordance with law. The learned counsel for the petitioners have not been able to persuade this Court to grant discretionary relief in their favour. Resultantly, both the petitions fail and are dismissed in limine.
' However, the petitioners are directed to approach the Election Tribunal for the redressal of their grievance regarding recounting of the votes. It is made clear that in case, the petitioners approach the said forum and make statement only to the extent of recounting of the votes, the Election Tribunal will decide the matter expeditiously within a period of sixty days.