Atir Mahmood, J.: This single judgment will dispose of Writ Petitions No.17949/2015 and 17933/2015 simultaneously as common questions of law and fact are involved therein.
2. The cause of action as given in this writ petition is that the petitioners as well as respondents No.4 to 7 submitted their nomination papers to contest elections of Chairman and Vice Chairman of Union Council No.25, Marri Sahu, Tehsil Kabirwala, District Khanewal. After due process, the election was conducted on 19.11.2015 and result was announced wherein the petitioners remained the runner-up. Petitioner No.1 Haji Karamat Hussain filed application for re-counting/verification of rejected votes on 20.11.2015 which was duly accepted by the Returning Officer. However, later on, the Returning Officer consolidated the result on 22.11.2015 and vide order of the even date recommended for re-polling. The Writ Petition No. 17949/2015 assails both the said order and recommendation whereas Writ Petition No.17933/2015 challenges the recommendation of re- polling.
3. Arguments heard. Record perused.
4. The moot point in this case is as to whether the Returning Officer could review/recall his own order of acceptance of application of petitioner No.1 for recounting/verification of rejected votes.
When confronted with, the Returning Officer, present in person, submits that he did so as the applicant/petitioner No.1 vide another application dated 21.11.2015 showed his no confidence upon him.
5. On 04.12.2015, both the parties developed consensus on the point that they will not press the re- polling in the Polling Station, however, they stuck to the prayer of recounting of 205 rejected votes.
Today, learned Legal Adviser for the Election Commission of Pakistan has raised objection upon the said consensus by submitting that the result has already been consolidated and Election Tribunals stand appointed, therefore, the aggrieved party(s) should approach the concerned Election Tribunal for redress of their grievance(s), if any. He submits that the jurisdiction of this Court is barred in the said circumstances. In my opinion, mere appointment of election tribunals neither curtails nor bars the jurisdiction of this Court, particularly when the matter is already under adjudication before this Court, the appointment of election tribunals afterwards is of no consequence in this regard.
6. Sub-rule (2) of Rule 36 of the Punjab Local Government (Conduct of Elections) Rules, 2013 is very much relevant in this case which is reproduced below: "(2) Before consolidating the results of the count, the Returning Officer shall examine the ballot papers excluded from the count by the Presiding officers and if he finds that any such ballot paper should not have been so excluded, count it as a valid ballot paper cast in favour of the contesting candidate for whom the vote had otherwise been cast."
Bare reading of above provision reveals that the Returning Officer before consolidation of results of the count is under legal obligation to examine the ballot papers rejected/excluded and after such examination, if he reaches the conclusion that such votes should not have been rejected/excluded, he will count them in favour of the candidate(s) to whom they have been cast. Meaning thereby, the consolidation of results could not take place before such exercise.
7. In this case, petitioner No.1 had moved an application for re-counting/verification of rejected votes on 20.11.2015 before the Returning Officer who accepted the same in the following words:
8. Afterwards, the Returning Officer without implementing his own order not only declared the consolidated results in Form XIII but also recommended for re-polling vide order dated 22.11.2015 on the plea that the applicant/petitioner No.1 had shown no confidence upon him vide another application dated 21.11.2015. I am of the view that the Returning Officer had no powers to review/recall his own order whereby he had accepted application of petitioner No.1 for recounting/examination of rejected votes as no such provision has been given in the electoral laws. Even if there was any objection by either party upon recounting/verification of rejected votes, the Returning Officer could not go beyond his jurisdiction described in sub-rule (2) of Rule 36 ibid, i.e. He will scrutinize the rejected votes and if he finds that these votes should not have been rejected, he will count them in favour of the candidate in whose favour these have been polled. In this regard, judgment of this Court reported as Muhammad Anwar vs. The Deputy Commissioner Delimitation officer, Faisalabad and 2 others (1985 M LD 1154 Lahore) and judgment dated 26.11.2015 passed in Writ Petition No.36004/2015 tilted Muhammad Mamoon Tarar etc. District Returning Officer etc. Are referred.
9. Regarding contention of learned Legal Adviser for the Election Commission that the constitutional jurisdiction is barred in this case, suffice it to say that the instant writ petition was filed in the form of writ of mandamus as it seeks direction to the Returning Officer to implement his order passed in application of petitioner No.1 for recounting/verification of rejected votes whereby application was accepted by the Returning Officer. If there is any illegality or error on the part of the officer dealing with affairs of the state, a writ of mandamus can be issued to the concerned officer, as such, there is no bar on this Court to deal with the matter in hand in constitutional jurisdiction.
Reliance is placed on the law laid down by the Hon'ble Supreme Court of Pakistan in case titled Muhammad Aslam Abro vs. Sardar Muhammad Muqeem Khosa and others (2013 SCM R 1676).
10. Learned Legal Adviser for the Election Commission has mainly relied upon the judgment of this Court passed in ICA No.1584/2015 titled Murdan Ali Zaidi etc. Vs. Election Commission of Pakistan etc. I am afraid that this judgment does not apply to the case in hand as facts and circumstances of both the cases are different from each other, particularly the application for recounting/examination of rejected votes had already been accepted by the Returning Officer in this case but in the referred case, this was not the situation.
11. In a nutshell, since there is no provision of law provided in the electoral laws, the Returning Officer did not have powers to review/recall his own order of acceptance of application of petitioner No.1 for recounting/examination of rejected votes. Rather he was under legal obligation to examine the rejected votes and count them in favour of the candidate in whose favour these were polled if Returning Officer finds that these should not have been excluded. Only after such exercise, the Returning Officer could consolidate the results as provided in Sub-rule (2) of Rule 36 of the Punjab Local Government (Conduct of Elections) Rules, 1976.
12. Resultantly, the Returning Officer is directed to recount/examine the rejected votes first in accordance with Sub-rule (2) of Rule 36 of the Punjab Local Government (Conduct of Elections) rules, 1976 and then declare the consolidated results in Form XIII. The consolidated result earlier declared by the Returning Officer in Form XIII on 22.11.2015 as well his recommendation for re-polling of the same date are set aside. The writ petitions in hand are disposed of in the said terms.