MUHAMMAD JEHANGIR ARSHAD, J.--- The petitioner namely Mehdi Abbas Khan who was unsuccessful in the election held on 10-10-2002 from Constituency (PP-205/Multan-XII), has filed this election petition under section 52 of the Representation of People Act, 1976, with the following relief:- "It is therefore, most respectfully prayed this petition may kindly be accepted and all the impugned orders dated 19-10-2002, 20-10-2002 and Notification No,F.2(36)/2002- Cord. Dated 23-10-2002 may kindly be set aside and petitioner be declared as successful/returned candidate or in alternative whole of the election be declared void and re-election be ordered to be held awarding costs as well."
2. The facts in brief are that petitioner and Rana Muhammad Qasim Noon respondent No,3 along with respondents Nos.4 to 8 contested the election from said Constituency which was held on 10- 10-2002. According to the revised result Form No,XVII (Mark "A") prepared by the Returning Officer of the said Constituency on 20-10-2002 Rana Muhammad Qasim Noon respondent No,3 obtained 25902 votes as against the petitioner namely Mehdi Abbas Khan who obtained 25293 votes and thus, respondent No,3 Rana Muhammad Qasim Noon was declared elected and a Notification No,F-2(36)/2002-Cord. (Mark "B") was accordingly issued by the Election Commission of Pakistan on 23-10-2002 declaring Rana Muhammad Qasim Noon respondent No,3 as returned candidate from the said Constituency. The petitioner being aggrieved of the said Notification filed the present election petition with the above relief.
3. The main ground of the petitioner is that the final result was prepared by the Returning Officer on 12-10-2002 in Form No,XVI (Mark "C") according to which petitioner obtained 25295 votes as against Rana Muhammad Qasim Noon respondent No,3 who obtained 25135 votes and thus, the petitioner was declared elected from the said Constituency by the Returning Officer and success of the petitioner was properly advertised in the newspaper. Suddenly, the petitioner came to know that on the basis of some subsequent result prepared by the Returning Officer on 20-10-2002, Rana Muhammad Qasim Noon respondent No,3 was declared successful without any legal justification.
4. Rana Muhammad Qasim Noon respondent No,3 in his written statement has denied the allegation of the petitioner that the petitioner in fact obtained 25295 votes and that the result prepared by the Returning Officer on 12-10-2002 was based on miscalculation of count at Polling Station No,48 (Government Basic Health Unit Haveli Amin), where 768 votes obtained by the respondent were wrongly included in the count of Abdul Wahid respondent who had obtained only, one vote from the said polling station and said miscalculation took place due to wrong pasting of data in the computer by the operator and when respondent No,3 came to know of the said mistake/wrong pasting he firstly tried to approach the Returning Officer for reconsolidation/re- tabulation of result and on his failure, he filed application, (Mark "C/1") to the Chief Election Commissioner on 19-10-2002 seeking correction of consolidated result and on the said application the worthy Chief Election Commissioner and three other members of the Election Commission of Pakistan recorded the following directions:-- "The Returning Officer should call the concerned parties on 20-10-2002 at 3-00 p.m. And pass appropriate orders in accordance with law."
The above direction of the worthy Members of the Election Commission of Pakistan was telephonically conveyed to the office of District and Sessions Judge, Multan as District Returning Officer, by Rahim Nawaz Durani, Provincial Election Commissioner on the same day i,e,19-2-2002 and following office note (Annexure "D") to this effect was put by the Superintendent to District Returning Officer:-- "Respectfully submitted that today at 3-20 p.m., Mr. Rahim Nawaz Durani, learned Provincial Election Commissioner, telephonically conveyed the direction of Honourable Chief Election Commissioner of Pakistan that result of PP-205-Multan XII re-tabulate by tomorrow at 3-00 p.m. In presence of both the candidates namely Mehdi Abbas Khan and Rana Muhammad Qasim Noon.
(2) He has further directed that both the parties be bound down at the time of re-tabulation.
(3) It is, therefore, proposed that notice may very kindly be directed to be issued to both the candidates for tomorrow and Returning Officer may, also be directed to attend this office by tomorrow positively at 3-00 p.m."
Underneath the above office noting, the then officiating district Returning Officer passed the following directions:-- "The matter was discussed with worthy District Returning Officer on telephone. He has directed to issue notice to the candidates for compliance of the order on 20-10-2002 at 1-00 p.m. In the officer Chamber of the R.O. Issue notice immediately accordingly."
On receipt of the said direction the Returning Officer proceeded with the matter on 20-10-200 and since according to the proceedings conducted by the Returning Officer (Mark "D/1") the petitioner did not turn up despite service through affixation as well as news to this effect published in daily Jang and Khabrain, the Returning Officer in the absence of the petitioner perused the concerned record and finally came to the conclusion that due to clerical mistake appearing in Form No,XVII (Mark "B") regarding consolidated statement of result of count furnished by the Presiding Officer and as a result of re-tabulation, revised Form No,XVII (Mark "A") showing total votes of the petitioner as 25293 as against 25902 votes obtained by Rana Muhammad Qasim Noon respondent No,3 was prepared whereby Rana Muhammad Qasim Noon was declared elected, which according to learned counsel for respondent No,3 was based on correct, proper and valid exercise of jurisdiction by the Returning Officer and also in the light of the directions issued by the Members of Election Commission of Pakistan reproduced above, hence, this election petition was not maintainable.
5. It is contended by Syed Safdar Imam Bukhari, Advocate counsel for the petitioner that in terms of section 42 of the Representation of People Act, 1976 after consolidation of result, the Returning Officer is required to submit to the Commission (Election Commission of Pakistan) a copy of the consolidated statement of count in the prescribed Form (Form XVII) and on receipt of the said Form the Commission is required to publish in the official gazette the name of the returned candidate and since the present case the concerned Returning Officer had after completion of counts declared the petitioner as Returned Candidate and also issued From XVII on 12-10-2002 (Mark "C"), therefore, neither the Election Commission of Pakistan nor any of its learned Member could have interfered with except to publish the result per Farm XVII prepared by the Returning Officer, as such and any direction issued either by the Commission or any of its learned Member could firstly neither be issued at all nor be construed as a direction for recounting or re-tabulation, as wrongly construed by the Returning Officer on 20-10-2002 for preparing the revised Form No,XVII.
It is further argued that in case the order, dated 19-10-2002 issued by learned Members of the Election Commission of Pakistan is construed as valid one, even then the same was issued without any notice to the petitioner and without disclosing the reason for that, when the petitioner had already been declared elected on 12-10-2002 by the concerned Returning Officer, as mentioned above. It is next argued that Election Commission of Pakistan through order, dated 15-10-2002 (Mark "F") on the application of respondent No,3 and other applicants while requisitioning the report from the concerned Returning Officers, issued the following directions:-- "Without expressing any opinion as to the merits or maintainability of these applications, the interest of justice and fairplay demands that in the first instance reports be called for from the concerned Returning Officers immediately in each case separately through District Returning Officers. Order accordingly.
(2) While submitting his report, the concerned Returning Officer shall also state with particularity as to whether the procedure laid down in the counting of votes (General Elections) Order, 2002 (hereinafter called the Order 4), was observed in the matter of counting of votes at the polling stations by the Presiding Officers; during preparation of preliminary results and consolidation proceedings by the Returning Officer (copy of the order is annexed herewith for facility of reference). He would also state whether any application for recounting of votes was moved by the applicant at any state i,e, at the time of initial counting at the polling stations or during consolidation proceedings or any time thereafter and if so with what results.
(3) On -receipt of the reports from each Returning Officer, the Secretary, Election Commission shall place the reports individually in each case before the Commission, immediately for appropriate orders in accordance with law.
(4) Meanwhile, we arc not inclined-to grant any interim relief of withholding the results of the successful candidates at this stage."
But despite direction of this Tribunal no material has been placed on the record to show as to whether in the light of the above mentioned order of the Election Commissioner of Pakistan any report was submitted by the Returning Officer and any proceedings were conducted by the Election Commission of Pakistan on the said report. Even the learned Standing Counsel expressed his inability to place on record any minutes to this effect. It is further argued by learned counsel for the petitioner that even the subsequent proceedings conducted by the returning Officer 20-10- 2002 were held against the petitioner without notice and in his absence by wrongly holding that petitioner did not turn up despite affixation as well as publication of news in two daily newspapers, whereas, neither the petitioner was served nor issued any notice about the proceedings to be conducted on 20-10-2002 and all proceedings were conducted in haste and in a clandestine manner condemning the petitioner unheard which is against the principles of natural justice.
Reliance has been placed on the case Abdul Majeed Zafar and others v. Governor of the Punjab through Chief Secretary and others 2007 SCM R 330 and Pakistan and others v. Public-at-large and others PLD 1987 SC 304. Learned counsel further contends that in terms of section 39(6) of the Representation of the People Act, 1976 the Returning Officer after consolidation of resuk could only recount the ballot-paper, if so directed by the Election Commission of Pakistan but in the present case the Returning Officer exercised the jurisdiction without any specific direction to this effect by the Election Commission, therefore, the revised result issued by him was without lawful authority. It is next argued that in view of section 52 of the Representation of the People Act, 1976 as well as express provision contained in Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 ordaining decision of all the election disputes to the election of Provincial Election by presenting election petition before the Election Tribunal, neither the Election Commission of Pakistan nor any of its learned Member could issue any direction for revision of the result prepared and declared on 12- 10-2002 by the Returning Officer, therefore, the entire exercise made by the Returning Officer in the light of the direction of the Election Commission of Pakistan is not only without jurisdiction but also violative of express provisions of Article 225 of the Constitution of Islamic Republic of Pakistan.
Reliance has been placed on the case Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 and Ch. Nazir Ahmad v. Chief Election Commissioner and 2 others PLD 2002 SC 184.
6. On the other hand, Mr. Muhammad Asghar Bhutta, Advocate appearing on behalf of respondent No,3 Rana Qasim Noon has argued that since the consolidated result prepared on 12-10-2002 was without any notice to the respondent, in his absence and in violation of mandatory requirement of section 39 of the Representation of the People Act, 1976 providing that result shall be consolidated after notice to all the candidates and their Election Agents about the day, time and place, therefore, the result prepared, consolidated and declared on 12-10-2002 'was no result in the eye of law, hence, the respondent correctly approached the Election Commission of Pakistan and Election Commission issued a valid direction on 19-10-2002 which should be construed as a direction for recounting/re-tabulation and the same was rightly acted upon by the Returning Officer on 20-10- 2002 under section 39 of the Representation of the People Act, 1976. On the question of jurisdiction of the Election Commission of Pakistan or its members to pass such a direction, learned counsel for the respondent by placing reliance on Article 9-B of the Election Commission Order, 2002 submits that Election Commission of Pakistan was competent to issue such direction. Further argued that as there was a mistake patent on record whereby 768 votes polled in favour of respondent No,3 were wrongly included in the count of Abdul Wahid respondent at Polling Station No,48, therefore, the Returning Officer after perusal of the record and on coming to know of the said mistake rightly corrected the same and since the petitioner despite notice by the Returning. Officer did not opt to attend the proceedings on 20-10-2002 therefore, he was estopped from challenging the order of the Returning Officer, and even otherwise, wrong inclusion of 768 votes in the count of Abdul Wahid was a fact which requires investigation and evidence, hence, this Tribunal is to decide this petition after framing of issues and recording evidence because the election petition has to be decided as a suit in terms of section 64 of the Representation of the People Act, 1976.
7. I have considered the arguments of learned counsel for the parties and' have also gone through the material available on the record.
8. The foremost moot point in this election petition is as to whether the Returning Officer after preparation of consolidated result on 12-10-2002 in Form XVII (Mark "C") according to which petitioner obtained 25295 votes as against Rana Qasim Noon respondent No,3 who obtained 25135 votes, could reopen the matter by placing reliance on the alleged direction of Election Commission of Pakistan issued on 19-10-2002 (Mark "C") noted in para.4 above, by construing the same as -a direction for re-tabulation of result, if so, under what provision of law'?
9. The preparation of result and issuance of Form XVII by the Returning Officer on 12-10-2002 is neither disputed nor was eve challenged by respondent No,3. However, the only provision available in Representation of the People Act, 1976 regarding recounting of votes after preparation of consolidated result and issuance of Form XVII, is one covered by section 39(6)(b) of Representation of the People Act, 1976 reproduced as under:-- "section 39. Consolidation of results.
(1) .......................
(2) ..........................
(3) ...............................
(4) ....................................
(5) .........................................
(6) Returning Officer may recount the ballot-papers.,--- (a) ...................
(b) if so directed by the Commission, in which case the recount shall be held in such manner and at such place as may be directed by the Commission."
Now the question is as to whether the exercise made by the Returning Officer on 20-12-2002 was within the meaning of above said provisions of law or the Returning Officer held those proceedings beyond the scope of section 39(6)(b) of Representation of the People Act, 1976. Admittedly, there is no express direction by the Election Commission of Pakistan for recounting of ballot-papers and the Returning Officer only followed the telephonic message of Provincial Election Commissioner contained in Mark "D" conveying direction of Honourable Chief Election Commissioner for re- tabulation of the result of PP-205-MultanXII, whereas no such direction was ever issued by the Honourable Chief Election Commissioner and if any direction to this effect was issued by the Election Commission of Pakistan it was only the one dated 19-10-2002 as reproduced in para.4, above. Further there was already a direction issued by the Chief Election Commissioner dated 15- 10-2002 reproduced in para.5 (Mark "F") and the said direction was only to the extent of submission of report by the Returning Officer and on receipt of the said report the Secretary Election Commission was directed to place the reports individually in each case before the Commission, immediately for appropriate orders III accordance wan law, out as mentioned above, neither any report to this effect was submitted by the Returning Officer or placed by the Secretary before the Election Commission nor any appropriate order to this effect was passed by the Election Commission of Pakistan, therefore no room is left in holding that neither any direction for recounting/re-tabulation of votes was ever issued either by Election Commission of Pakistan or any worthy Member of the Commission nor the direction issued by the Commission on 19-10-2002 requiring the Returning Officer to call the concerned parties on 20-10-2002 at 3-00 p.m. And passing appropriate orders in accordance with law, could be construed as a direction either for recounting or re- tabulation of votes. On this score alone the entire exercise made by the Returning Officer on 20-10-2002 is liable to be struck down. This is however, not the end of the matter, rather the Returning Officer on 20-10-2002 acted in such a haste and arbitrary manner that despite direction of the Election Commission of Pakistan dated 19-10-2002 for calling the concerned parties on 20-10-2002 and passing appropriate orders in accordance with law, the Returning Officer proceeded to decide the matter on the said date even without making any serious effort for effecting service of the petitioner for the proceedings to be held on 20-10-2002 and merely relied upon the alleged service of the petitioner through some affixation and news to this effect allegedly published in two daily newspapers which cannot be construed as due service under law. This exercise on the part of Returning Officer also cannot be considered as granting proper opportunity of hearing to the petitioner on 20-10-2002 an it appears that Returning Officer misconstrued the telephonic direction of the then Provincial Election Commissioner namely Rahim Nawaz Durani, as direction either by the Election Commission of Pakistan or a binding direction on him to re-tabulate the election result whereas, no such direction was ever issued either by the Election Commission of Pakistan or any worthy Member of said Commission. Therefore, I have no option but to hold that the entire proceedings were conducted by the Returning Officer on 20-10-2002 without jurisdiction as well as in violation of principles of natural justice and the law declared by the superior Courts in Abdul Majeed Zafar and others v. Governor of the Punjab through Chief Secretary and others 2007 SCM R 330 and Pakistan and others v. Public-at-large and others PLD 1987 SC 304.
10. So far as the contention of learned counsel for respondent No,3 that consolidated result was prepared on 12-10-2002 without any notice to the respondent and in his absence as well as in violation of mandatory provision of section 39(6)(b) of Representation of the People Act, 1976 is concerned, I am not impressed with the said contention for the simple reason that respondent No,3 never agitated against the said result and perhaps it was only after obtaining knowledge of his defeat and in order to circumvent the result prepared' by the Returning Officer on 12-10-2002 the respondent No,3 thought it appropriate to approach the Election Commission of Pakistan for recounting/re-tabulation of result on 19-10-2002, whereas the result had already been prepared on 12-10-2002. Similarly, there is no force in the contention of learned counsel for respondent No,3 that direction issued by the Election Commission of Pakistan on 1'9-10-2002 should be construed as a direction for recounting/re-tabulation, as the Election Commission of Pakistan never issued any such direction nor the same could have been issued after preparation of consolidated result on 12- 10-2002 and thereafter, the only power vested with the Election Commission of Pakistan was to publish' the name of the Returned Candidate in the official gazette. Afterwards, if the respondent No,3 was aggrieved of wrong tabulation or miscalculation, the only remedy available to him was to file election petition in terms of Article 225 as well as section 52 of the Representation of the People Act, 1976 and the contention of learned counsel for the petitioner to this extent is also tenable on the basis of the two judgments of the apex Court in Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 and Ch. Nazir Ahmad v. Chief Election Commissioner and 2 others PLD 2002 SC 184.
11. So far as the last contention of learned counsel for respondent No,3 that there was a mistake patent on record, whereby 768 votes polled in favour of respondent No,3 were wrongly included to the count of Abdul Wahid at Polling Station No,48, therefore, the Returning Officer after perusal of the record on coming to know of the mistake rightly corrected the same is concerned, suffice it to say that since after preparation of consolidated result on 12-10-2002 the Returning Officer or even the Election Commission of Pakistan were left with no authority to reopen the matter at all and further in the absence of any express direction by the Election Commission of Pakistan in terms of section 39(6)(b) of Representation of the People Act, 1976, the said question could only be determined by way of filing election petition and the entire proceedings conducted by the Returning Officer on 20-10-2002 were not only corum non judice but also without notice/hearing to the petitioner, therefore, any mistake committed in the count either by the Presiding Officer or the Returning Officer whether patent on record or not, could not be made basis for holding the proceedings on 20-10-2002 and, The same could only be corrected by the Election Tribunal constituted under the Representation of the People Act, 1976, therefore, I am not inclined to accept the contention of learned counsel for respondent No,3 that for the determination of wrong inclusion of votes in the name of Abdul Wahid respondent and exclusion of the, same from the count of Rana Muhammad Qasim Noon respondent No,3 requires investigation or evidence and this petition be decided after framing of issues and recording of evidence, rather in the opinion of this Tribunal the illegality committed by the Returning Officer on 20-10-2002 is very much floating on the record and this election petition can easily be decided on the basis of the contents of the election petition, the written statement filed by respondent No,3 .And the other material available on the record, being a pure question of law.
12. The upshot of above discussion is that this election petition succeeds and the proceedings conducted by Returning Officer on 20-10-2002 and in consequence thereof the Notification No,F.2(36)/2002-Cord. Dated 23-10-2002 declaring respondent No,3 as Returned Candidate from PP-205/Multan-XII are set aside being without lawful authority and coram non judice; and by declaring the election of respondent No,3 as void it is held that consolidated result prepared and issued by the Returning Officer on 12-10-2002 was a legal and valid result and it was the petitioner who should have been declared as Returned Candidate, therefore, the prayer made in the election petition reproduced in the opening paragraph of this judgment, is allowed to this extent and Election Commission of Pakistan is directed to immediately publish in the official Gazette the name of the petitioner as Returned Candidate from PP-205/Multan-XII. The original record be returned to the Election Commission of Pakistan.