' MUHAMMAD JEHANGIR ARSHAD, J.--- This I.C.A. Is directed against the judgment, dated 13-3-2006 whereby Writ Petition No,5790 of 2005 filed by Malik Ahmad Nawaz Bhutta respondent No,5, was allowed and the impugned order contained in letter dated 19-9-2005 (Annexure "F" to the writ petition), issued on behalf of Chief Election Commissioner of Pakistan regarding re-polling at Polling Station No,4 Government Girls Primary School Chak No,98/M of Union Council 10- Bhutaiji, Lodhran, to be held in terms of Rule 25 of the Punjab Local Government Elections Rules, 2005 was declared as without lawful authority and accordingly set aside.
2. The facts in brief are that appellants and respondents Nos.5 and 6 contested the election as Nazim and Naib Nazim of Union Council 10, Lodhran dated 18-8-2005. The appellants in the said election secured 1673 votes as against respondents Nos.5 and 6 who having secured 2043 votes were declared successful. The appellants moved an application to the worthy Chief Election Commission on 22-8-2005 seeking recounting of votes and through order/direction contained in letter No,F.3(1).2005 Elect-I(6) dated .23-8-2005 issued on behalf of Chief Election Commissioner the recounting of votes on all polling stations was ordered and till then the result of the said Union Council was withheld. In terms of the abovementioned direction the Returning Officer of the said Union Council held recounting in the presence of the parties in terms of Rule 36(6)(ii) of the Punjab Local Government Elections Rules, 2005 on 30-8-2005. However, the Returning Officer through a letter dated 31-8-2005 reported that polling bag of Polling Station No,4 was missing and on receipt of the said report of the Returning Officer, the District Returning Officer sought permission from the Election Commission of Pakistan for re-polling at Polling Station No,4 (Government Girls Primary School Chak No,98/M) of the said Union council. On receipt of the said letter from District Returning Officer, the worthy Chief Election Commissioner through the impugned letter, dated 19-9-2005 directed that re-polling at Polling Station No,4 (Government Girls Primary School Chak No,98(M) be held on 25-9-2005 in terms of Rule 25 of the Punjab Local Government Election Rules, 2005. The abovementioned order/direction dated 19-9-2005 was sought to be annulled by respondent No,5 through Writ Petition No,5790 of 2005 which was heard and ultimately allowed by learned Single Judge in Chambers through impugned order dated 13-3-2006, resultantly the order of re-polling issued by the worthy Chief Election Commissioner through letter dated 19-9-2005 was declared to be without lawful authority and accordingly set aside. The said order of the learned Single Judge in Chambers has now been challenged through the present I.C.A.
3. Before proceeding further, we would like to point out that the order dated 23-8-2005 directing recounting of votes in the present Union Council as well as several other Union Councils in the country, was however, withdrawn subsequently by the learned Chief Election Commissioner through a Notification issued on 1-9-2005, reproduced below:-- "No,F.3(2)/2005.Elec.(I) Local Government Elections have been held in two phases on 18th August and 25th August, 2005. The official results of elections held in both phases have been published in the Gazette on 23rd August and 30th August respectively. Since Election Tribunal have also been notified in the Gazette for deciding election disputes in accordance with law, thus, all orders for recounting of ballot-papers issued by this office have become infructuous, therefore, the candidates, if so advised, may approach appropriate forum for redressal of their grievances."
' This I.C.A. Inter alia also involves legality of order, dated 23-8-2005 as Well as the effect of order dated 1-9-2005.
4. It has been argued by Mian Abbas Ahmad, Advocate learned counsel for the appellants that as the order, dated 23-8-2005 was acted upon on 30-8-2005 and recounting took place in the presence of the parties including respondents Nos.5 and 6 who also never raised any objection against the order, dated 23-8-2005, therefore, even if the said order had subsequently become infructuous by virtue of order, dated 1-9-2005 issued by the Chief Election Commissioner, the subsequent order could not invalidate the proceedings conducted by the Returning Officer on 30- 8-2005 i,e, prior to the issuance of the subsequent order. Further argued that the learned Single Judge in Chambers was also not right in holding that as exigencies laid down in Rule 25 of Punjab Local Government Elections Rules, 2005 were not attracted, therefore, the order of the learned Chief Election Commissioner dated 1-9-2005 directing re-polling at Police Station No,4 in terms of Rule 25 of the Punjab Local Government Elections Rules, 2005 was not sustainable. The contention of learned counsel is that in fact the said election was held under the Local Government Election Order, 2000 and by virtue of Articles 2 and 4 of the said Order, Chief Election Commissioner had the power and authority to take all such steps and measure and to adopt such procedure, do such acts, pass such orders, issue such directions and take all such ancillary, incidental and consequence steps as he may deem necessary for effectively carrying out the elections; and the order dated 19-9-2005 directing re-polling was passed by the Chief Election Commissioner in exercise of above Articles of Local Government Election Order, 2000 and that the reference to Rule 24 of the Punjab Local Government Elections Rules, 2005 in the said order was inconsequential as the same was attracted in the facts and circumstances of the present case. It is further argued by learned counsel for the appellants that respondents Nos.5 and 6 never challenged order of recounting before any competent forum and that a Writ Petition No,4508 of 2005 was filed by the present respondents seeking direction to the Chief Election Commissioner to withdraw its order to the extent of withholding the election result and as the said writ petition was dismissed by this Court on 6-9-2005, therefore, respondents were estopped from filing the present writ petition after voluntarily participating in the recounting process but this fact has been ignored by the learned Single Judge. It is lastly argued that as it was established during recounting held on 30-8-2005 that a bag containing ballot-papers of a particular polling station was missing and recounting of those ballot-papers was likely to materially affect the result, hence, holding of fresh election in the said polling station had become necessary and the learned Chief Election Commissioner correctly and validly directing re-polling at the concerned polling station through letter, dated 19-9-2005, therefore, the writ petition filed by respondents Nos.5 and 6 was wrongly allowed by the learned Single Judge in Chambers.
5. On the other hand, Mr. Muhanunad Arif Alvi, Advocate learned counsel for respondents Nos.5 and 6 has argued that respondents did raise the objection before the Returning Officer at the time of recounting but the learned Returning Officer did not attend to the objections of the respondents on the ground that he was performing his duties under the directions of the worthy Chief Election Commissioner. Further submits that even the order, dated 23-8-2005 directing recounting of ballot-papers, was passed by the worthy Chief Election Commissioner ex parte, without notice to them and without disclosing any justification for recounting. It is next argued that contention of learned counsel for the appellants that as the order, dated 23-8-2005 stood implemented on 30- 8-2005 with the recounting of ballot-papers, therefore, its subsequent withdrawal on 1-9-2005 being inconsequential, is neither legal nor factually correct, in fact on 30-8-2005 recounting was never complete and the entire exercise had to be stopped when it was found that one bag containing ballot-papers of Polling Station No,4 was missing and as no final result on the basis of the said alleged recounting was prepared, therefore, to say that the order, dated 23-8-2005 was a past and closed transaction having been acted upon on 30-8-2005 and subsequent order, dated 1-9-2005 recalling the earlier order, dated 23-8-2005 was not sustainable in law. It is further argued that since the result of this polling station was notified by the Chief Election Commissioner himself through Gazette of Pakistan Extraordinary dated 23-8-2005, therefore, there was no justification for the Chief Election Commissioner to have withheld the result of the present Union Council. To support his contention, learned counsel for the respondents has placed on record a copy of the said Gazette notification. It is further argued that even the very order of the learned Chief Election Commissioner dated 23-8-2005 was violative of the judgment of Honourable Supreme Court of Pakistan in the case of Ch. Nazir Ahmad v. Chief Election Commissioner' and 4 others PLD 2002 SC 184 holding "after establishment of Election Tribunals all the election disputes are to be exclusively dealt with by the Election Tribunal and no other authority including the High Court in terms of Article 199 of the Constitution can interfere or exercise any jurisdiction over such dispute" and following the said judgment of the Honourable Supreme, Court the worthy Chief Election Commissioner also issued Notification dated 3-9-2005 directing all the District Returning Officers of the country to ignore the order of recounting, if any, in the light of notification issued on 1-9-2005.
6, We have considered the arguments of learned counsel for the parties and have also examined the record with their assistance.
7 It would not be out of place to mention here that on 21-2-2007, we had directed the learned Standing Council namely Ch. Saghir Ahmad to make arrangement for the production of original record of. Chief Election Commissioner directing recounting. Today, learned Standing Counsel has placed on record an attested copy of the said order purportedly issued by the then Chief Election Commissioner, Islamabad, but failed to produce the original order passed by the then Chief Election Commissioner under his own signatures. However, learned Standing Counsel has produced the original application submitted by respondents Nos.5 and 6 before the Chief Election Commissioner on 22-8-2005 but nowhere in the said application any such order is mentioned except some noting by someone from the office of, learned Chief Election Commissioner. We are, therefore, satisfied to hold that there is a considerable force in the contention of learned counsel for the appellant that the then Chief Election Commissioner never issued such order under his own signatures and it was in fact one Nazar Abbas, Section Officer in the office of Chief Election Commissioner who issued such-like orders in abundance by referring the same to have been issued by the Chief Election Commissioner at the relevant time.
8. The foremost point requiring determination in this appeal is as to whether the learned Chief Election Commissioner could issue any order/ direction for recounting of ballot-papers either without issuing notice to the other party (present respondents Nos.5 and 6), affording opportunity of hearing or disclosing any reason and further whether after the publication of result in the official Gazette noted above and after the establishment of Election Tribunals within the meaning of Rule 65 of the Punjab Local Government Elections Rules, 2005 and the law declared by the Honourable Supreme Court in Ch. Nazir's case PLD 2002 SC 184, our answer is in the negative. The reason for recording such answer is that after publication of result in the official Gazette the worthy Chief Election Commissioner seized to have any control over the election process and if there was any illegality or irregularity committed by any party during elections, the only competent authority thereafter was the Election Tribunal constituted in terms of Rules 65 and 68 of the Punjab Local Government Elections Rules, 2005 and since in this case the result stood published in the extraordinary Gazette on 23-8-2005, therefore, the order directing recounting of votes could not be validly issued at all. As observed earlier, the order, dated 23-8-2005 which has not been produced before this Court despite our direction and in the absence of any such original order our assessm ent is that same was fictitiously issued by Nazar Abbas, Section Officer in colourable exercise of jurisdiction by referring the same to have been issued under the orders of the worthy Chief Election Commissioner and said order dated 23-8-2005 is also indicative of its issuance by Nazar Abbas Section Officer, otherwise, the worthy Chief Election Commissioner who is also a Honourable Judge of the apex Court of Pakistan could not have issued such-like order after the publication of official Gazette Notification and in the presence of law laid down in the cited Ch. Nazir's case PLD 2002 SC 184. We have also noticed that as the said order was issued in abundance throughout the country, the affectees at least in the Punjab rushed to this Court and in some of such-like cases the exercise of recounting on the basis of order of the learned Chief Election Commissioner especially when the same was subsequently recalled through notifications dated 1- 9-2005 and 3-9-2005, was declared as illegal. We have also noticed that the said order, dated 23- 8-2005 was issued without any notice to respondents Nos.5 and 6, without affording them opportunity of hearing and also without disclosing the reason for the same, whereas, after incorporation of section 24-A in General Clauses Act, it is now duty of every public functionary to issue orders after proper application of mind, notice to the parties and also supporting the order with reasons. Reliance. Is placed on the cases Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport Karachi and others -1998 SCMR 2268 and 2006 SCMR 496 2006 PLC (C.S.) 355. We have, therefore, no hesitation in holding that the order, dated 23-8-2005 directing recounting in the present Union Council was neither passed in legal exercise of jurisdiction nor after notice or affording opportunity of hearing to respondents Nos.5 and 6 and also in flagrant violation of rules contained in section 24 of the General Clauses Act as well as the law declared by this Court in Ahmad Khan and another v. Election Commission of Pakistan through its Secretary, Islamabad and 8 others 2006 YLR 392, and in Ch. Nazir's case PLD 2002 SC 184 and the said order was therefore, rightly C withdrawn on correct legal premises by the worthy Chief Election Commissioner on 1-9-2005.
9. after declaring so, we are now left with the question of legal impact of the order, dated 23-8- 2005 on the proceedings conducted by the Returning Officer on 30-8-2005 regarding recounting of votes. 'As we have held that the very order, dated 23-8-2005 was without jurisdiction, therefore, even if it was acted upon by the Returning Officer en 30-8-2005 and also even without any objection having been raised by respondents Nos.5 and 6, we hold that proceedings conducted by the Returning Officer on 30-8-2005 and the request made by the Returning Officer through District Returning Officer for re-polling at Polling. Station No,4 and its acceptance by the worthy Chief Election Commissioner, were also without jurisdiction, and are declared as without lawful authority being based on a void superstructure. By holding so we are guided by the law declared by Honourable Supreme Court in Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD .1958 SC 104, holding that "no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must unless some statute or principle of law recognizing as legal the changed position of the parties is in operation fall to the ground because such orders have as little legal foundation as the void order on which they are founded." The same view was adopted by Honourable Supreme Court of Pakistan in subsequent judgment reported PLD 1990 SC 1070.
10. Since, we have held the very order, dated 23-8-2005 of the worthy Chief Election Commissioner as without jurisdiction, we do not feel it appropriate to enter into controversy as to whether the subsequent order of the worthy Chief Election Commissioner dated 19-9-2005 was passed in exercise of Rule 25 of Punjab Local Government Elections Rules, 2005 or was result of purported exercise of jurisdiction under Articles 3, 4 of the Election Order, 2000.
11. So far as the objection of learned counsel for the appellants that Writ petition No,5408 of 2005 earlier filed by present respondents Nos.5 and 6 was dismissed and they were directed to first approach the Election Tribunal is concerned, we feel that said order was passed due to poor legal assistance, as the points raised in the said writ petition had no nexus with the jurisdiction of the Election Tribunal and in case proper guidance had been made available to this Court, the order, dated 6-9-2005 would have been on 'different footings. Therefore, this objection of learned counsel for the appellants is overruled being not sustainable.
12. We are, therefore, satisfied that the learned single Judge in Chambers while accepting writ petition of respondents Nos.5 and 6 through the impugned order neither acted illegally or irregularly nor without jurisdiction. This appeal, therefore, has no force and is dismissed with no order as to costs.
13. Before parting with this judgment, we would also like to bring to the kind notice of the worthy Chief Election Commissioner the conduct of Nazar Abbas, who at the relevant time while acting as Section Officer in the office of Chief Election Commissioner issued letter dated 23-8-2005 in a wholesale manner directing recounting of votes in several Union Councils of the country without disclosing any reason, in the name of the then Chief Election Commissioner of Pakistan, which order we suppose was neither passed by the then worthy Chief Election Commissioner under his signatures nor is available or produced before this Court despite direction to the learned Standing Counsel. The office shall therefore, send copy of this order to the Secretary Election Commission of Pakistan with a direction to place the same before the worthy Chief Election Commissioner for perusal and appropriate action.