' IQBAL HAMEEDUR RAHMAN, J-The petitioner, through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as "the Constitution"), has tailed in question the order dated 29.5.2013 passed by the learned High Court of Sindh, Karachi, in Constitution Petition No. D-2206/2013, whereby the Constitution Petition, filed by respondent No. 1, has been disposed of with a direction that "let the votes of Polling Station-38 (GPS Hawaldar Brohi II Female) be recounted and thereafter taking into consideration the vote count of PS-85, PS-46, PS- 152 and PS-131 as reflected in the statements of votes count submitted by the concerned Presiding Officers, the result should be tabulated. Let such exercise be completed within seven days from today. In case, any of the parties is aggrieved by recount, obviously the remedy is available under the election laws. The final official result of PS-14 Jacobabad-II shall be notified only after recounting of votes of Polling Station No. 38 and correction of mistake in the recording of vote count of PS-85, PS-152, PS-46 ' and PS-13". . . ,
2. The succinct facts, required to be' taken into consideration for the disposal of the matter are that the petitioner as well as respondent No. 1 contested for Provincial Assembly Seat from PS-14 Jacobabad-II and thereafter on consolidation of votes, respondent No. 1 was shown to have bagged 15640 votes whereas the petitioner had been shown to have bagged 15743 votes* on account of which respondent No. 1 filed Constitution Petition before the High Court stating that the petitioner bagged 117 votes from Polling Station No! 38, but on account of the fact that the figure of two votes secured by another candidate were written in such a manner that the figure of 117 was made to read as 197 whereby 80 extra votes were given to the petitioner. Respondent No. 1 further asserted that the statement of vote count with regard to Polling' Station No. 85 was 69 votes in his favour, but in the consolidated statement they were shown as "0". Similarly the statement of vote count of Polling Station No. 152 wherein respondent No. 1 had bagged 140 votes, but in the consolidated statement no vote had been shown in his favour on account of which he alleged that in Polling Station No. 38, 80 votes were shown in excess in favour of the petitioner. In view of the assertions of respondent No. 1, the learned High Court summoned the record of Election Commission of Pakistan (ECP), which showed the vote count of Polling Station No. 85 to be 69 votes and vote count of Polling Station No. 152 as 30 votes in favour of respondent No. 1, but in the consolidated Statement it was shown as 'O' votes in both the Polling Stations, therefore, the respondent No. 1 had submitted that there has been a miscalculation of vote count, and from the reports of the Presiding Officers it seems that arithmetical error has been crept at the time of preparing the final consolidated result and therefore, respondent No. 1 has been deprived of his right to be declared successful: The petitioner vehemently opposed. The same and asserted that under the provisions of Sections 38 and 39 of Representation of Peoples Act, 1976 (hereinafter to be referred as "the Act") and mere fact that the respondent No. 1 lost by narrow margin in vote count is no ground for seeking recounting of the votes. . After hearing the parties and holding the Constitution Petition to be maintainable, the learned High Court came to the conclusion that the grievance of respondent No. 1 is only to the extent that there was a clear incorrect recording of figures from the statement of vote count submitted by Presiding Officers at the time of making the consolidated result sheet which changed the result of the constituency and held that the said dispute is mainly with regard to Polling Station No.
38. The learned High Court further held that there is omission in recording of vote count of Polling Stations Nos. 85, 152, 46 and'131 as the votes bagged by respondent No. 1 from Polling Stations Nos.
85 and 152 had not been recorded in the consolidated result sheet and the votes bagged by the petitioner from Polling Stations Nos. 46 and 131 had also not been counted and the claim of both the sides pertaining to these Polling Stations has to be accepted being omission in the recording of votes. Whereas, with regard to Polling Station No. 38, the learned High Court held that there is every likelihood that votes bagged by the petitioner shown as 197 might have been 117 only and that requires that the votes of Polling Station No. 38 (GPS Hawaldar Brohi II Female) should be recounted. In the above perspective, the learned High Court had disposed of the Constitution Petition as stated above, hence this petition. This Court, after hearing the learned counsel for the petitioner, on 3.6.2013 has passed an order which reads as under:- "Learned counsel inter alia stated that there was no dispute at all in respect of the counting of the votes of Polling Station No. 38 between the parties, however in pursuance of direction of the learned Singh High Court, Karachi, recounting of. \ this polling station took place. The petitioner immediately questioned such direction before this Court by filing instant petition. Inasmuch as, it was pointed out to the concerned authorities that the matter has been challenged before the Supreme Court bun despite all that counting had taken place . And now* the Election Commission also issued notification of the Respondent No,
1. According to him the Election Commission at least should have inquired from the office of this Court in respect, of the fate of this petition because the learned AOR had also issued notice to the ECP about the filing of the instant petition. Office has informed that caveat has been filed by Mr. K. A. Wahab, learned AOR on behalf .Of Respondents Nos. 1,
2. Notice be issued to the respondents and in the interest of justice in the meanwhile Respondent No. 1, Sardar Muhammad Museum Khoso is restrained from taking oath as a Member of the Provincial Assembly, Sindh. This order be communicated to the Secretary, Election Commission of Pakistan as well as to the Secretary, Provincial Assembly, Sindh, through fax at the cost of the petitioner today positively;"
3. Learned counsel for the petitioner contended that on 14.5.2013. The respondent No. 1 had submitted an application to the Returning Officer, PS-14 Jacobabad-II, asserting that more or less at all the Polling Stations the results have not been given properly and in view of the same reference be made to the ECP for necessary instructions. Thereafter, another application had been submitted by the respondent No. 1 before the District Returning Officer, Jacobabad. In the background of the same, the learned High Court could not have disposed of the Constitution Petition with direction for recounting of votes at Polling Station No. 38 and the learned High Court should have desisted from interfering in. The proceedings of the ECP in view of the provisions of Article 225 of the Constitution of Islamic Republic of Pakistan, 1973. The only remedy available for the respondent No. 1 was to challenge the same through an Election Petition before the Election Tribunal. The Constitution Petition seeking only the recounting of votes by the Returning Officer after the conclusion of the consolidated proceeding was on the face of it not maintainable on account of law declared in the cases of Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396), and Ghulam Jatoi v. Additional District & Sessions Judge/Retuming Officer, N.A. 158, Naushero Feroze and others X1994 SCM R 1299). He further argued that even in the case of Aftab Skahban Mirani v. President of Pakistan and others (1998 SCM R 1863), relied upon by the learned High Court, the view taken in Javaid Hashim's ibid case was reiterated with the only exception that where no legal remedy is available to the aggrieved party, writ jurisdiction can be exercised. In the instant case, no question of disenfranchising a candidate is involved as such the learned High Court has wrongly relied upon the judgments by holding the Constitution Petition to bp maintainable. He also vehemently argued that once the process of consolidation of result is concluded, the copy of the result of the vote count be notified to the ECP.
The remedy, if any, is before the Election Tribunal. Further asserted that the same bench of the learned High Court in a similar case has refused to assume the jurisdiction and held that the Constitution Petition was not maintainable on the 'ground that factual controversies are involved and the matter cannot be decided in writ jurisdiction and the same can only be urged by filing Election Petition whereas in the instant case it has been done otherwise. In support of his arguments, the learned counsel for the petitioner placed reliance on the cases of Dr. Sohrab.
Ahmed Khan Sarki v. Mir Hassan Khoso and others (2011 SCM R 1084) and Habib Vllah \C Azmat Wah (PLD 2007 SC 271).
4. On the other hand, the learned counsel for respondent No. J at the very outset stated that the case of respondent No. 1 before the learned High Court was of a writ petition in, the form of Mandamus seeking a direction to the ECP for recounting of votes on account of miscalculation and arithmetical error which have crept in at the time of formulation of the consolidated results and in this regard the respondent No. 1 immediately without delay had approached the District Returning Officer as well as Presiding Officer through applications dated 13.4.2013 and 14.5.2013 respectively by invoking the jurisdiction of Section 103-AA of- the- Act, which were pending before the ECP and were supposed to be adjudicated upon, but the same were not considered by them on account of which the respondent No. 1, before the issuance of notification, had approached the learned High Court by filing a Constitution Petition wherein record of the ECP had been summoned and miscalculation and arithmetical error were duly depicted as a result of which die learned High Court arrived at the conclusion that recounting be conducted and thereafter the result be tabulated arid such process to be completed within seven days and final notification of PS-14 Jacobabad-II shall be notified only after recounting of the votes of Polling Station No.
38. As such the Constitution Petition had been disposed of with direction to the Election authorities and in order to substantiate his arguments learned counsel for the respondent No.-l has referred to the prayer clause of the Constitution Petition, which read as under:- "PRAYER It is respectfully prayed on behalf of the Petitioners that this Hon'ble Court may be pleased to: I. Declare that the Petition is the successful/ returned Candidate from PS-14, Jacobabad- II, Sindh in General Elections held on 11.5.2013.
II. Declare that Tentative Result of PS-14, Jacobabad-II (Annex PH) arid the Consolidated Statement of Results of the Count furnished by the Presiding Officers (Annex P/7), both prepared by the Respondent No. 4are incorrect, illegal and liable to be struck down as the same is based on . Erroneous calculation, typographical errors and has been prepared in violation of Sections 38 &-39 of the Representation of Peoples Act, 1976 and principles of natural justice.
III. Restrain the Respondents No. 2 & 3 from issuing any notification and/or declaration under Section 42 of the Representation of Peoples Act, 1976 or any other .Provision of law declaring the Respondent No. 5 as the returned or successful candidate from PS-14, Jacobabad II constituency till the decision of the Petitioner's Application filed under Section 103AA, Representation of Peoples Act, 1976 which is pending adjudication before the Respondent No .
1.
IV. Set aside/Suspend the, operation of impugned tentative result of PS-i4, Jacobabad II (Annex P/l) prepared by the Respondents Nos. 4 & 5.
V. Direct the Respondents No. 1, 2, 3&4 to hold recounting/Rechecking of votes in PS-14, Jacobabad II.
VI. Any other relief(s), which this Hon'ble Court may deem fit and proper under the circumstances of the case. VII. Cost of this petition."
' He vehemently argued that admittedly after the recounting a notification has now been issued and respondent No. 1 has been declared as a successful candidate, therefore, the process of election presently is deemed to have been completed and in the circumstances now the bar under Article 225 of the Constitution is attracted when the notification has been issued. Therefore, as per law, the petitioner now has to approach the Election Tribunal by filing Election Petition.
5. Heard. Learned counsel for the petitioner had been repeatedly confronted that how after, the issuance of' notification this Court can proceed in the matter, but he was unable to satisfy us. We have observed that the Constitution Petition filed by respondent No. 1 before the learned High Court was in the form of Mandamus seeking issuance of direction for deciding his applications, which Were filed under Section 13U-AA seeking rectification of erroneous and arithmetical errors, but the same were not attended to by the ECP, therefore, the learned High Court accordingly disposed of the Constitution Petition by issuing directions to the respondents in this regard and to issue final notification. The' said direction did not amount to disenfranchising the petitioner; therefore, the bar under Article 225 of the Constitution would not be applicable in the facts and circumstances of the instant case and the judgments relied upon by the petitioner in this regard are distinguishable and not attracted in the instant case. It is an admitted position that presently a notification has been issued declaring respondent No. 1 to be successful candidate. Therefore, the bar of Article 225 of the Constitution, would now come into operation on account of which an Election Petition, -is inquired to be filed before the Election Tribunal.
6. In view of what has been .Discussed above, we are not inclined to interfere in the impugned judgment of the High Court. Resultantly, we see no force in the instant petition, therefore, leave to appeal is refused and petition stands dismissed. These are the reasons of our short order of even date.
High Court Judgment Upheld/>