' SHAHID KARIM, J.--- This petition, W.P No.36004-15 (First Petition), under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 lays a challenge to the order dated 20.11.2015 passed by the respondent No.1, District Returning Officer, Hafizabad as having been passed without lawful authority and of no legal effect.
2. The matter was adjourned for today when the petitioner filed an application for seeking an amendment in the Constitutional petition. The basis for seeking the amendment was that during the pendency of the petition, an order dated 22.11.2015 had been passed by the Returning Officer by which an application for recount of the valid ballot papers filed by the respondent No.3 had been accepted and an order had been made for the recount of the votes in respect of Union Council-8, Kolo Tarar, Distt. Hafizabad.
3. The petitioners as well as the respondents Nos.3 and 4 were candidates for the seat of Chairman and Vice Chairman respectively in the elections to the local bodies held on 19.11.2015. The controversy in the instant petition relates to the recount of votes sought to be undertaken by the respondent No.3.
4. This order shall also decide a connected petition W.P No.36384 of 2015 (Second Petition), which too has been filed during the pendency of the First Petition and it lays a challenge to the consolidated result prepared by the Retturning Officer after consolidation of the results of the count furnished by the presiding officers for the said constituency in Form XIII. The primary prayer in the petition filed by Afzal Hussain Tarar and Tariq Khursheed is for a direction to be issued to respondent No.4 (Returning Officer in that petition) to hold a recount in terms of the order of 22.11.2015 passed by the said respondent on the application of the petitioner and thereafter to proceed with the process of consolidation of the result.
5. A synoptical resumption of the relevant facts may be brought forth in order to lend some actuality to the controversy in hand. The polling for the constituency ended at 5:30 p.m. An application for recount of the valid ballot papers was immediately moved on 19.11.2015 by Afzal Hussain Tarar. On this application, there is a noting by the Returning Officer signifying the receipt of the application on the same day i.e. 19.11.2015. The learned counsel for the petitioners in the second petition submits that since no headway was made on the application moved to the Returning Officer, an application to the District Returning Officer was also made which was received on 20.11.2015 and on the same day the said application was allowed and referred to the Returning Officer for immediate action. However, it is common ground that this order passed by the District Returning Officer was later withdrawn on 22.11.2015 as having been made under a mistake. On 22.11.2015, the Returning Officer passed an order (which is called in question by way of amendment in the first petition) by which it was directed that the recount of the valid ballot papers shall take place as the Returning Officer felt satisfied that the request for the recount was reasonable.
6. However, the situation was rendered more complicated by the issuance of a purported consolidated result and the ground furnished by the Presiding Officers in Form XIII. This document makes an interesting reading. The consolidated result on Form XIII was issued by the Returning Officer on 20.11.2015. It contains a note at the foot of the results which is to the following effect: "Note: ' Recount of ballot papers will be made as per request of the contesting candidate namely Mian Afzal Hussain by notice to all the contesting candidates as per law/ rules."
7. Two aspects would starkly come to fore by a reading of the consolidated result of the count by the Returning Officer. One, that it is brought home without doubt that application for recount had been moved by the petitioner in the second petition and was pending with the Returning Officer at the time when the Form XIII was issued. Second, the consolidated statement of the results of the count was made subject to the recount of the ballot papers and a decision on the application for the purpose moved by the petitioner in the second petition.
8. The provision at the heart of the instant petition is rule 36 of the Punjab Local Government (Conduct of Elections) Rules, 2013. It reads as follows: "36. Consolidation of results.-- (1) The Returning Officer shall give the contesting candidates and their election agents a notice of the day, time and place fixed for the consolidation of the results and publish the same at a conspicuous place in his office.
(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.
(3) The ballot papers rejected by the Returning Officer under sub-rule (2) shall be shown separately in the consolidated statement.
(4) The Returning Officer shall consolidate in Form-XIII, separately for each category of seats, the results of the count furnished by the Presiding Officers.
(5) The Returning Officer may recount the valid ballot papers before consolidation of results:-
(a) upon the request or challenge in writing made by, a contesting candidate or his election agent and if the Returning Officer is satisfied that the request or the challenge is reasonable; or
(b) if so directed by the Election Commission."
9. The rule and the procedural formalities explicated in the said rule are important and substantial rights which have come to inhere in the candidates for the Local Government elections. These rights can neither be wrested away nor be stunted at the whim of the Returning Officer and by taking the substantive procedural formalities as mere formalities and nothing more. These are important safeguards and have a purpose to their promulgation.
10. Herein lies the scheme that underpins the rule 36. As a prefatory it is emphasized that by its terms it places onerous and solemn duties on the Returning Officer. Firstly, the consolidation of results is a sacred task and must be preceded by issuance of notices on the contesting candidates and such notices shall be published at conspicuous place in the office of the Returning Officer.
Before consolidation of the results of the count the Returning Officer is obliged to examine the ballot papers excluded from the counts by the presiding officers and in case he finds that any 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 votes had otherwise been cast. Thereafter, the ballot papers rejected by the Returning Officer under sub-rule (2) should be shown separately in the consolidated statement.
11. The ineluctable conclusion is that the consolidation of results is an elaborate procedure and casts obligation on the Returning Officer to perform certain acts mandated by law to presage the consolidation of the results. These procedural formalities are in the nature of basic rights vested in the contesting candidates and cannot be brushed under the carpet. The candidates are entitled to notice and to participate in the process of consolidation of the results. Irrespective of any candidate attending the process of consolidation, sub-rule (2) of rule 36 requires the Returning Officer to examine the ballot papers excluded from the count by the presiding officers. This is mandatory to be done before the consolidation of the results of the count takes place. Therefore, the conditions enumerated in rule 36 have to be carried out and must be complied with in order to lend credence and legality to the result consolidated and submitted in Form XIII. If the Returning Officer fails to follow the procedure substantially, the process of consolidation will be ultra vires and this Court will interfere to declare it non est.
12. Rule 36 of the Rules, 2013 has a purpose and therefore, a purposive interpretation has to be given to the said rule. A statement as to the rule of purposive interpretation which is of recent origin, has been brought forth in Reading Law: The Interpretation of the Legal Texts by Antonin Scalia and Bryan A. Garner:- "Of course, words are given meaning by their context, and context includes the purpose of the text.
The difference between textualist interpretation and so-called purposive interpretation is not that the former never considers purpose. It almost always does. The subject matter of the document (its purpose, broadly speaking) is the context that helps to give words meaning---that might cause draft to mean a bank note rather than a breeze. And even beyond that, it can be said more generally that the resolution of an ambiguity or vagueness that achieves a statute's purpose should be favored over the resolution that frustrates its purpose. But the textualist insists on four limitations: ' First, the purpose must be derived from the text, not ,from extrinsic sources such as legislative history or an assumption about the legal drafter's desires.
' Second, the purpose must be defined precisely, and not in a fashion that smuggles in the answer to the question before the decision-maker...."
' Third, the purpose is to be described as concretely as possible, not abstractly...."
' Fourthly, except in the rare case of an obvious scrivener's error, purpose---even purpose as most narrowly defined-cannot be used to contradict text or to supplement it..."
13. Rule 36 has two parts. The first relates to the duty cast on the Returning Officer, as alluded to hereinbefore, to compulsorily follow certain steps leading to the consolidation of results. This duty is mandatory by law and does not require an application by a candidate to trigger it. This constitutes the first plank of the rule 36. The second plank relates to the recount of the valid ballot papers. This can only be set in motion by an application filed by a contesting candidate. It will be seen that the two processes entail different forms of examination to take B place. In the first, the Returning Officer examines the ballot papers excluded from the count and in the second (recount of votes) the Returning Officer merely recounts the valid ballot papers. Therefore, the two have different connotations and purpose. An amalgam of these two processes broadly and substantially covers the analysis of the excluded as well as the valid ballot papers. This, in essence, is the purpose of rule 36 and sheds light on the provenance to the process and its setting in the elections. It affords an opportunity to the Returning Officer to rectify any mistake of the presiding officer that may have crept in the process of recount. Correspondingly and more importantly, it satiates and puts to rest the anxiety and questions of irregularity that may arise in the minds of the candidates. It must be borne in mind that once the process of consolidation is complete, the only remedy for the losing candidate is by way of election petition. That remedy, we are all aware, is a long-drawn process and is agonisingly cumbersome. This fact in itself accentuates the significance of the process of consolidation. To reiterate, the purpose of enacting rule 36 and the rights conferred thereby seems to be that the contesting candidates must be dealt with fairness and due process at the stage prior to the consolidation of the results takes place. One of the purposes as stated above is to obviate the chances of an irregularity having been committed by the presiding officers, which can be corrected by the Returning Officer who is primarily in charge of the constituency for which the poll is being conducted. Obviously, the intention is that the Returning Officer should not act mechanically and without proper application of mind and must bring his own independent decision to bear on the final result to be submitted.
14. The Returning Officer who was required to be present in Court has made a statement that he did not follow the procedure prescribed in rule 36, which must precede the consolidation of the results. He goes on to state that no notice in writing to the candidates was issued. The Returning Officer also acknowledges that the application for the recount was received on 19.11.2015 and was entered in a file properly maintained for receiving such applications. In view of the statement by the Returning Officer that he did not follow the procedure adumbrated in rule 36, he purported consolidation of results in Form XIII is ultra vires and without lawful authority. The Returning Officer's apparently contradictory orders betray a lack of understanding of the process envisaged by rule 36 and its unique place in the scheme of the elections. Either the Returning Officer was a complete novice or was pressured into making these mistakes. Irrespective of the underlying reason, he swung from one end of the spectrum to the other to the utter chagrin of the candidates.
15. The consolidation of results in Form XIII by the Returning Officer is also liable to be set aside on the ground which has been urged in the second petition. The learned counsel for the petitioner in the second petition has made, a frontal attack on the consolidation or results by the Returning Officer without deciding the application for recount made by the petitioner, in the second petition.
According to the learned counsel, this would render the consolidation of results as unlawful and does not clothe the consolidation of results with any legality. The purported consolidation of results by the Returning Officer must be set aside for failure to adhere to the twin conditions contemplated by rule 36. One, the Returning Officer did not give notice under sub-rule (1) and also that he omitted to examine the ballot papers excluded from the count by the presiding officers. Two, that he did not decide the application for recount under sub-rule (5) prior to consolidation of result although it was admitted to have been filed in time.
16. Sub-rule (5) of rule 36 deals with the count of valid ballot papers. Once again this provision confers an important substantive right on a contesting candidate to make a request for the recount of valid ballot papers. The right is merely to the extent that the contesting candidates may request the Returning Officer that a recount be made. However, the Returning Officer may accede to that request if he is satisfied that the request or the challenge is reasonable. That satisfaction by the Returning Officer is upon objective assessment and is not subjective and must be based upon reasonable criteria. The Returning Officer must come to the conclusion that the request is reasonable or otherwise by referring to the entire facts and circumstances of the case as also the averments made in the application by the contesting candidate. The Returning Officer has on 22.11.2015 passed an order that the\ recount of the ballot papers and the request made in this case by the petitioner in the second petition was reasonable and thus proceeded to order for the recount to be held. While accepting the application of the petitioner, in the second petition, the Returning Officer has referred to the contents of the application moved for the recount of votes and has held as a fact that the allegations made in the application necessitate the recount to take place. I am not inclined to interfere in the discretion exercised by the Returning Officer which seems to be based on cogent and rational grounds.
17. The learned counsel for the petitioner in the first petition, takes strong exception to the order passed by the Returning Officer on 22.11.2015. According to him, the Returning Officer had become denuded of his powers to order a recount when the consolidation of results had already taken place. However, from the facts which can be culled out from the statement of the Returning Officer at best, mutually contradictory orders were passed which are difficult to reconcile. While making the consolidation of the results he added a foot note to the Form XIII that the recount on the application of the petitioner in the second petition shall be held in accordance with the rules. This was confusion worse compounded to say the least. Obviously, the Returning Officer was not aware of the true import of the law as also the powers which he was required to exercise. He acted without jurisdiction while adding a foot note to the consolidation of results and ought to have proceeded to consider the application for the recount of the votes before the consolidation of results. However, the Returning Officer did not follow the procedure provided in rule 36 of the Rules, 2013 which he was obligated to follow and it could not be condoned to the detriment of the contesting candidates. This would apply 'a fortiori' when the Returning Officer passed an order on 22.11.2015 granting the request for the recount of valid votes.
18. The learned counsel for the petitioner in the first petition, retorted that the entire record was ante-dated as also the application for the recount of votes. He has cast serious doubt on the veracity of the consolidation made by the Returning Officer. I am afraid, these contentions of the learned counsel for the petitioner in the first petition cannot be considered or determined in the constitutional jurisdiction of this Court.
19. The learned counsel. For the petitioner in the first petition has alto attacked the order passed by the District Returning Officer dated 22.11.2015 by which the earlier order was withdrawn. Nothing turns on the illegality or otherwise of the said order passed by the District Returning Officer as admittedly, he did not have the jurisdiction in the first place to pass the order and its withdrawal at a later stage would make little or no difference. In any case, the said order does not impact the outcome of this petition.
20. Both the learned counsel for the parties have relied upon a cluster of case law in order to substantiate the arguments put forth by them. The learned counsel for the petitioners in the first petition, refers to the case of Rana Wakeel Ahmad Khan v. Chief Election Commission and 9 others (PLD 2004 Lahore 794). This was a case under the Punjab Local Government Elections Rules, 2000 and the challenge was to the direction for fresh poll issued by the District Returning Officer who had the powers under the Rules, 2001 to make such an order. The learned counsel for the petitioners in the first petition has, in particular, referred to the observations at sideline `D' of page 798 made by this Court that the presiding officer is not authorized to change or to give subsequently any note on his statement of account on whatever ground it may be. Also that the presiding officer after issuance of statement of count becomes functus officio and cannot change the result already declared by him. This case is not relevant for our purposes as it relates to the order of fresh poll as also to the powers of the Presiding Officer in this regard.
21. In Liaquat Ali and another v. Election Tribunal, Sialkot (2003 SCMR 1313) the issue was regarding the upholding of the fresh recount during the pendency of the election petition. The matter was pending with the election Tribunal which ordered the recount of the ballot papers. This power is materially different from the power of the Returning Officer which is in issue in the instant case and, therefore, this judgment is an authority for its own facts.
22. The learned counsel for the petitioners in the first petition, next cited Nawab Khan and others v.
Qamar ud Din and others (1999 SCMR 299). This judgment of the Supreme Court of Pakistan once again arose from a matter which was pending before the election Tribunal and out of the election petitions filed by the contesting candidates. It was held that power for recount of votes by the Tribunal is not specifically conferred yet in appropriate cases, the Tribunal is not debarred from recount of votes. In this regard, support was sought from the judgment of the Supreme Court of Pakistan in the context of section 46 of the Representation of the People Act, 1976 to hold that the same principles would be attracted in the case of an election petition set up under the Punjab Local Government Ordinance, 1979 for the exercise of powers of recount of votes. This judgment too does not advance the case of the petitioner in the first petition.
23. Faqir Abdul Majeed Khan v. District Returning Officer and others (2006 SCMR 1713) was relied upon for the proposition that a recount of votes by the Returning Officer can be undertaken. This judgment conclusively holds that a Constitutional petition in the matter of recount of votes or the exercise or failure to exercise that power by the Returning Officer is maintainable. It was further held that the High Court had wrongly not exercised its jurisdiction in order to see that the jurisdiction was validly exercised by the Returning Officer. In the final analysis the Supreme Court of Pakistan set aside the entire recount of votes conducted by the Returning Officer.
24. The last judgment of the Supreme Court of Pakistan lays down seminal issues of law. Firstly, it establishes the powers of the High Court to be exercised in such matters. Secondly and more importantly, the Supreme Court of Pakistan considering the importance of the procedure for recount of the votes by the Returning Officer at the stage prior to the consolidation of results, interfered and set aside the conduct of, recount done by the Returning Officer. While doing so, the Supreme Court of Pakistan analysed the material in considerable detail and the votes which had been cast and which ought to have been taken into consideration by the Returning Officer in setting aside the entire process of recount, done by the Returning Officer, This lends credence to and by necessary implication the importance- that the Supreme Court of Pakistan attaches to the process of recount and the powers so conferred on the Returning Officer in terms of rule 36 of the Rules, 2013.
25. Mr. Azam Nazir Tarar, Advocate, the learned counsel for the petitioners in the second petition quoted Syed Nayyar Hussain Bukhari v. District Returning Officer, N.A. 49, Islamabad and others (PLD 2008 Supreme Court 487) in support of his arguments. Once again, the Supreme Court of Pakistan in the cited precedent held that a Constitutional petition against the act of recount of votes or its refusal would be maintainable. It was held by the Supreme Court of Pakistan that the application of the petitioner in that case for the recount of votes was not considered in its proper exercise of jurisdiction and the High Court while dismissing the Constitutional petition acted in a perfunctory manner. The matter was remanded to the Election Commission of Pakistan for reconsideration. This judgment too is a precedent for the proposition that the exercise of powers of recount of votes must be scrupulously and meticulously dealt with by the Returning Officer and it is not to be exercised in a whimsical manner without proper application of mind. Once again the importance of the process of recount of votes at the stage prior to the consolidation of results can be culled out collaterally from this judgment and must be taken to be the basis on which the Supreme Court of Pakistan proceeded to analyze the proposition. Therefore, in the case of Abdul Majeed Khan and Syed Nayyar Hussain Bukhari, the issue of the pre-eminence attached to the recount of votes under rule 36 of the Rules, 2013 was resoundingly and firmly established.
26. The learned counsel for the petitioner in the second petition lastly cited Liaqat Abbas Bhatti v.
Election Commission of Pakistan through Secretary ECP and others (PLD 2013 Lahore 610) to contend that the High Court does not interfere in the order for recount made by the Election Commission of Pakistan as this was a right vesting in the person requesting for recount.
27. In view of the above, the first petition is dismissed and the second petition is accepted. In the result, the purported consolidation of result in Form-XIII made on 20.11.2015 by the Returning Officer is set aside. The Returning Officer shall proceed to recount the valid ballot papers and thereafter to consolidate the results in accordance with law.