' HAMID FAROOQ DURRANI, J.---The petitioner contested general elections from Constituency PF-4, Peshawar along with other candidates on 18-2-2008. Respondent No,5 was declared as returned candidate through the initial results, having secured 6320 votes, while the number of votes polled in favour of the petitioner was 6103. Pertinently, the statement of consolidation of results showed a total of 553 votes under the column 'rejected'. In this manner, the number of rejected votes was more than the difference of 217 votes between those secured by petitioner and respondent No,5, respectively.
2. The petitioner, on 20-2-2008, submitted an application to the concerned Returning Officer requesting therein for re-count of votes on the ground that a large number of bogus ballot papers were polled in the concerned Constituency. It was also requested that the rejected votes of the petitioner be shown to him. The said application was rejected by the respondent No,3 mainly on the ground that the petitioner could not produce copy of statement of result claimed by him to have carried different result. It was also mentioned that the statements of count, furnished by the concerned Presiding Officers, were re-screened and tabulated, however, with no change emerging therefrom.
3. The petitioner thereafter filed a petition before the learned District Returning Officer/respondent No,4 on 21-2-2008. The said petition was also rejected the same day. It was noted by the learned District Returning Officer that there was no provision of law authorizing him for entertaining the petition, therefore, it was liable to dismissal. A further petition for the purpose was submitted to Election Commission of Pakistan which, according to petitioner, was not decided till date.
4. Qazi Muhammad Anwar, Advocate learned counsel for respondent No,5/returned candidate appeared at the motion stage, filed his vakalatnama and at the outset raised a preliminary objection regarding maintainability of the writ petition in hand. He contended that as the election process had started with the announcement of election schedule and was to complete through issuance of Notification by Election Commission of Pakistan in respect of success of returned candidates, therefore, in the light of provisions of Article 225 of the Constitution, only a Tribunal constituted for the purpose was competent to exercise jurisdiction in the like matters. Learned counsel also referred to the judgment delivered by Apex Court in the case of "Makhdoom Javed Hashmi", reported as PLD 1986 SC 396, and contended that the constitutional jurisdiction of this Court was to be exercised under Article 199 thereof which started with the words "subject to the Constitution", therefore, other provisions of Constitution were not to be read in isolation but in conjunction with each other. As Article 225 conferred exclusive jurisdiction upon a Tribunal in case of election disputes, this court was not vested with any jurisdiction to entertain a writ petition in the circumstances.
5. On the other hand, learned counsel for the petitioner, while addressing the court regarding facts as well as preliminary objection, submitted that under the provisions of section 39 'of Representation of the People Act, 1976, the Returning Officer was obliged to have examined ballot papers rejected/excluded from the count by the Presiding Officers. In case, any of the said ballot papers were found to have been unlawfully rejected, the same should have been counted towards the candidate in whose favour those were polled. The Returning Officer concerned did not observe the said mandatory provision of law' before issuing consolidated statement of count, therefore, he failed to perform an act which he was under the law obliged to. It was further contended by learned counsel that the difference of votes, bagged by petitioner and respondent No,5, was much less in number than the total count of rejected votes. For that reason too, it was all the more necessary for the Returning Officer to have acted upon the application of petitioner and have counted the rejected votes in presence of the parties.
6. Addressing the court on the point of jurisdiction, the learned counsel referred to the dissenting note by one of the Hon'ble Judges deciding the case of "Makhdoom Javed Hashmi" supra. It was noted therein that any decision or order made by a functionary, charged with conduct of elections, which is made in excess of his 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. The learned counsel also referred to the case of "Ghulam Mustafa Jatoi" reported through 1994 SCM R 1299 and stated that a larger bench of the Apex Court distinguished from the case of "Makhdoom Javed Hashmi" supra and held that in exceptional circumstances the High Court could interfere in the election process through constitutional jurisdiction where the order of an election functionary was patently illegal/without jurisdiction.
7. We have gone through the relevant provisions of law and the judgments cited by learned counsel for the parties.. Admittedly, the Returning Officer of concerned Constituency, while deciding the application of petitioner, abstained from mentioning the factum of recount/re-examination of ballot papers declared rejected by the Presiding Officers. Similarly, there was no attempt on the part of contesting respondent to dislodge the claim/allegation of the petitioner regarding the said fact. It is, however, noted that no good ground was made by the petitioner in respect of his prayer for re-counting of the entire votes polled for the Constituency.
8. A perusal of sections 38 and 39 of Representation of the People Act, 1976 discloses that the entire process of count of polls and B consolidation of results has been provided therein which exercise is to be undertaken by the polling staff and the Returning Officer, respectively. The Act, being a special Statute, would demand strict compliance of its provisions as the right to cast vote or contest the elections is not a civil C right but is provided through the said special Statute.
Subsection (3) of section 39 requires the Returning Officer to compulsorily examine and count the ballot papers excluded by the Presiding Officers from count at the close of polls. Further, the ballot papers so examined are to be credited to the lot of a candidate to whom those are polled provided they are found to have been wrongly rejected. The entire process has to be completed before preparation of statement of consolidated results. In the instant case, the re-count of rejected votes, does not seem to have been carried out whereas the consolidated results have been issued by the R.O.
9. We, in the light of judgment in "Ghulam Mustafa Jatoi" case, are firm in our view that as the Returning Officer refrained from doing an act which he was required by law to do, the jurisdiction under Article 199 of the Constitution could be conveniently exercised by this court.
10. As a sequel to the above, we consider it appropriate to accept the petition in hand and strike down the order of Presiding Officer/respondent No,3 whereby the application of the petitioner for recount of ballot papers was turned down. We while holding so, would restrict the order of re-count to the extent of rejected votes as the same was apparently not done by the Returning Officer concerned.
11. Resultantly, we direct that respondent No,3/Returning Officer shall carry out process of checking/examination/re-count of all the rejected votes in presence of candidates or their authorized polling agents. The said exercise shall be completed within two days strictly in accordance with relevant provision of law.
12. Petition allowed.