' Mrs. Ayesha A. Malik, J.--Through this ICA, the Appellant has impugned the order dated 23.11.2015 passed by the learned Single Judge in WP Nos. 34418/2015.
2. The basic facts of the case are that the Appellant and Respondents No, 5 to 10 contested Local Government Election for the seat of General Councilor/General Member in Ward No, 4, U.0 No, 26 Olakh Hathar Tehsil and District Kasur held on 31.10.2015. The Respondent No, 10 moved an application for recount of votes on 2.11.2015 which application was entertained by the Returning Officer ("RO") in the presence of all the parties and an order was issued on 2.11.2015. Thereafter the result was consolidated on Form XIII on 3.11.2015. The Respondent No, 10 filed WP No, 34418/2015 praying therein that the RO to receive his application and decide the same as per law. On this writ petition, an order was issued on 23.11.2015 requiring the RO to announce the result of the U.0 after hearing the application for recount and including the valid votes.
3. Learned counsel for the Appellant submitted that Respondent No, 10 filed W.P, No, 34418/2015 for an order on his application for recount which had already been allowed and was undertaken in his presence. Learned counsel submitted that Respondent No, 10 totally misled the Court by saying that his application had not been decided as the same was decided on 7.11.2015. Subsequently the result was consolidated and Form XIII was filed. Learned counsel argued that after issuance of Form XIII, the Respondent No, 10 could not have then called for a second recount of' the votes after the consolidation of result.
4. Learned counsel for the Respondent No, 10 submitted that W.P. No, 34418/2015 was filed because Respondent No, 2 did not follow the procedure prescribed under Rule 36 of the Punjab Local Government (Conduct of Elections) Rules, 2013 ("Rules"). Learned counsel stated that Respondent No, 2 was bound to follow the law, hence the writ petition was filed. Further stated that the recount took place on 2.11.2015 which was not in accordance with law which the RO was obligated to follow.
Learned counsel further stated that there was no misrepresentation before the Court as the R.O.
Could have also informed the Court about consolidation of results. He argued that in fact the result was never consolidated on 3.11.2015.
5. Learned counsel for the Respondent ECP produced the original record before us. In terms of the original record, the result was consolidated on 3.11.2015, Form XIII was filed along with Form XIV.
Learned counsel for ECP stated that recount took place in presence of Respondent No, 10 which is evident from the attendance sheet of that day. In fact, Respondent No, 10 also gave a statement before the RO that the recount had taken place and that he had no grievance against the announced result.
6. We have heard the learned counsel for the parties and have gone through the original record. In terms of the original record, the consolidation of result took place on 3.11.2015. Prior to the consolidation of result, Respondent No, 10's application for recount was allowed and recount was undertaken by the RO on 2.11.2015. The original attendance sheet produced before us confirms the presence of Respondent No,
10. Learned counsel for Respondent No, 10 does not deny this fact.
Thereafter, Respondent No, 10 filed W.P. No, 34418/2015 on 9.11.2015. The prayer in the said writ petition was simply that the RO had not entertained his application for recount which he was obligated to do so. An order was passed on 23.11.2015 in the writ petition for the recount application to be decided as per law and all valid votes to be included. In terms of the original record, Respondent No, 10 could not have prayed for a second recount before the Court on the ground that his application had not been decided. In fact his application for recount was allowed, recount was undertaken in his presence and thereafter the result was consolidated. Once the result was consolidated, any grievance that the Respondent No, 10 may have had with the announcement of the result can be challenged before the Election Tribunal in an election petition under Section 38 of the Punjab Local Government Act, 2013 read with Rule 62 of the Rules. We note that the tribunals have been notified vide notification dated 4.12.2015 issued by the Addl: Director General (Legal), Election Commission of Pakistan, Islamabad.
7. Under the circumstances, the appeal is accepted and the impugned order dated 23.11.2015 passed by learned Single Judge is set aside.