MUHAMMAD AKHTAR SHABBIR, J. --- The facts giving rise to the present petition are to the effect that Raja Najabat A.I petitioner alongwith Muhammad Haseen Anwar contested election foe the seats of Nazim and Naib-Nazim from Union Council No 46, Haranpur.
Tehsil Pind Dadan Khan, District Jhelum. Respondents Nos.4 and 5 also contested the election against the petitioner for the said seat of the Nazim and Naib-Nazim of the afore-said Union Council.
2. As per contention of the learned counsel for the petitioner, according to the consolidation of the results prepared by respondent No. 3/Returning Officer dated 26.8.2005, the petitioner and Muhammad Haseeb Anwar were declared as successful candidates for the seat of Nazim and Naib Nazim of Union Council No. 46, Haripur, Tehsil Pind Dadan Khan, District Jhelum. The petitioner's panel secured 2775 votes as per announcement of result. Learned counsel for the petitioner contends that after the announcement of the final result, Zia Ullah Khan, respondent No. 4, opponent of the petitioner, moved an application for recounting of the votes before the District Returning Officer/respondent No. 2 and on the basis of the said application, he directed respondent No. 3 for recount of the votes and on 27.8.2005, recounting was held as a result whereof respondents Nos.4 and 5 were declared as successful candidates. Learned counsel forcefully contended that after the consolidation of the result by the Returning Officer, the District Returning Officer or the Election Commission of Pakistan has no power to issue direction to the Returning Officer for recount of the votes. Learned counsel further contended that the power used by the Returning Officer after the consolidation of the result was without lawful authority as the Returning Officer having become "functus officio" was not competent to recount the votes. He vehemently argued that the recount of votes by respondents Nos. 1 and 2 be declared illegal, without lawful authority and the petitioner be declared as successful on the basis of the consolidated statement dated 26.8.2005 prepared for the Returning Officer.
3. I have heard the learned counsel for the petitioner and perused the record. The Election Commission of Pakistan has issued a schedule for holding of the election of the Local Councils for the second phase and the date for polling was fixed as 258-2005. As per schedule, the date for declaration of the final result was notified by the Election Commission as 27.8.2005.
4. Rule 35 of the Punjab Local Elections Rules, 2005, has provided the proceedings for the Presiding Officer for the count of the votes immediately after the close of the polls in presence of the contesting candidates or their election and polling agents. As per Rule 36 of the ibid Rules, the Returning Officer shall consolidate in Form-XV the results of counts furnished by the Returning Officer and 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. The Returning Officer has been empowered under sub-Rule (6) of Rule 36 of the afore-said Rules, to recount the votes of any Polling Station 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 is directed to do so by the Chief Election Commissioner or the District Returning Officer.
5. In the instant case, on 27.8.2005, the Chief Election Commissioner has directed the recount of the votes and withholding of the result till then. As per direction of the Chief Election Commissioner, recount- of the votes was made on the same day and as per recount, respondents Nos.4 and 5 secured 2743 votes qua 2709 votes of the petitioner's panel, which is evident from Form-XVI and the same was forwarded to the District Returning Officer by the Returning Officer.
6. Rule 38 of the Punjab Local Elections Rules, 2005 deals with the declaration of results which is reproduced below for ready reference and benefit:--- "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, declare 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."
7. After the declaration of the final result, a return of the election in Form-XVI together with a copy of the consolidated statement shall be submitted to the District Returning Officer and the District Returning Officer shall forward the same 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. As per election schedule, the date for declaration of the result by the Returning Officer was 27.8.2005 and after remitting the return in Form-XVI, he would become "functus officio. In context, we can guidance from the judgment of the apex Court reported as Dr. Liaqat - A.I Khan and another v. District Returning Officer, District Sargodha and 3 others (2002 SCM R 1632). The relevant paragraph of the judgment of the Hon'ble Supreme Court in 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 the undertook the exercise of recount. The objection of the petitioners was the 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 recounting 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.
8. On this point though final verdict has not been given by the Hon'ble Judges of the apex Court, but from the analogy, it cannot be presumed that the Returning Officer declare the final result under sub-Rule (1) of Rule 38 of the Punjab Local Election Rules, 2005 by public notice showing the names of such contesting candidates who deemed to have received highest number of votes, and submit the return of the election in Form-XV together with a copy of the consolidated statement to the District Returning Officer. After submission of the record to the District Returning Officer, no record remains in the custody of the Returning Officer, therefore, he becomes "functus officio" and would be incompetent to re-count the votes or re-open the bags. The District Returning Officer on receipt of the same would forward the names of the returned candidates to the Provincial Election Commission for publication in the official Gazette.
9. As per Form-XVI return of the election prepared by the Returning Officer in compliance with Rule 38 of the Punjab Local Election Rules, 2005, respondents Nos.4 and 5 have been declared as successful candidates by securing the highest votes i.e. 2743 on 27.8.2005, the date of final result and this Court in exercise of its writ jurisdiction would not interfere with this result.
10. The controversy involved in the matter, whether any rigging in the Polling Stations or tampering in the ballot-papers have been made at the instance of respondents is a question of fact, which requires detailed scrutiny and recording of evidence, which cannot be gone into by this Court in exercise of its Constitutional jurisdiction.
11. After the declaration of final result, the Returning Officer/District Returning Officer would not be the competent authority having become "functus officio", therefore, they cannot re-open the matter and make any inquiry in this regard. The controversy involved in the matter can only be resolved by another Forum/Election Tribunal constituted through the notification issued by the Chief Election Commissioner. In this view of the matter, I find no force in this writ petition which being devoid of any force is dismissed in limine. .