' AYESHA A. MALIK, J.--- Through this judgment, we have decided upon the matters raised in ICA Nos.1692 and 1689 of 2015 as both the ICAs arise out of a consolidated order of the learned Single Judge dated 26.11.2015 passed in WP Nos.36004 and 36384 of 2015.
2. The facts of the case are that the Appellants and Respondents Nos.5 to 6 contested Local Government Election for the seats of Chairman and Vice Chairman in U.C. No,8 Kolo Tarar, District Hafizabad held on 19.11.2015. As per the unofficial result, the Appellants were announced as successful candidates. Thereafter, Respondent No,5 moved an application for recount of votes on 19.11.2015. On this application, the District Returning Officer ("DRO") issued an order dated 20.11.2015 while allowing the application and required immediate action from the Returning Officer ("RO") of U.C. No,8. This order of 20.11.2015 was challenged by the Appellants in W.P. No,36004/2015 filed on 21.11.2015. The main grievance of the Appellants in the writ petition was that the DRO has no jurisdiction to order recount of votes and as such he could not have allowed the application moved by Respondent No,5 nor ordered for recount of votes. In the meanwhile, Form XIII was filed on 20.11.2015 with a note attached to it stating therein that Form XIII is subject to the recount of ballot papers made at the request of the contesting candidate Mian Muhammad Afzal Hussain Tarar.
The DRO on 22.11.2015 recalled his order of 20.11.2015 allowing the application for recount and placed the same before the RO to decide it as per law. The RO decided the application on the same date i.e, 22.11.2015 whereby he allowed the recount and deputed Muhammad Arshad, Superintendent, Zila Council Secretariat, Hafizabad/Assistant Returning Officer UCs 1-8, District Hafizabad to conduct the recount. The Appellants then moved an application under Order VI, Rule 17 of the Code of Civil Procedure, 1908 ("C.P.C.") for amendment in their petition enabling them to challenge the order of 22.11.2015 passed by the RO of U.C. No,8. The amendment in the petition was allowed and subsequently, on 26.11.2015 writ petition of the Appellants was dismissed and writ petition of Respondents Nos.5 and 6 were allowed. Hence, ICA Nos.1692 and 1689 of 2015.
3. Learned counsel for the Appellants argued that W.P. No,36384/2015 was filed on 25.11.2015 by Respondents Nos.5 and 6 challenging Form XIII issued on 20.11.2015 on the ground that the RO could not consolidate the result subject to any decision on their application. It was their case that the recount had to be decided first before consolidation of result could be carried out. Learned counsel argued that the impugned order has allowed this writ petition set aside the consolidation order of 20.11.2015 and directed the RO to proceed with the recount of the valid ballot papers. Learned counsel argued that in terms of the order dated 26.11.2015, the RO in a hurried manner recounted the votes and filed a fresh Form XIII on 28.11.2015. Learned counsel argued that essentially the DRO could not have allowed the application for recount filed by Respondent No,5 and that is why on realization of this fact, the DRO himself withdrew his order of 20.11.2015 and placed the application before the RO. Therefore, for all intents and purposes, the application for recount was moved before the RO on 22.11.2015 after the consolidation of result on 20.11.2015. Learned counsel argued that the result has admittedly been consolidated and the note attached to the consolidation is of no consequence, when the order allowing the recount application was withdrawn by the DRO. Learned counsel argued that filing of W.P. No,36384/2015 by Respondents No,5 itself testifies to the fact that the consolidation of result was made on 20.11.2015 by filing Form XIII, hence he argued that the recount application could not have been subsequently decided by the RO on 22.11.2015.
4. Learned counsel for Respondents Nos.5 to 6 first raised an objection on the maintainability of both the ICAs. His basic contention is that Rule 78(b) of the Punjab Local Government (Conduct of Elections) Rules, 2013 ("Rules") provides statutory remedy of review before the Election Commission.
Therefore, in view of the fact that the remedy of review is provided, both the ICAs are not maintainable in terms of the proviso to Section 3(3) of the Law Reforms Ordinance, 1972 ("Ordinance"). In support of his arguments, learned counsel has placed reliance on the cases titled "Multiline Associate v. Ardeshir Cowasjee and others" (1995 SCM R 362), "Vice Chancellor/Chairman Admission Board University of Health Science, Lahore v. Breeha Zainab and another" (2011 M LD 1652) and "Muhammad Riaz v. Province of Punjab and others" (2014 CLC 817). Learned counsel argued that the Appellants have a remedy available to them under Rule 78 (b) of the Rules for review of the order passed by the RO under the Punjab Local Government Act, 2013 ("Act") including the rejection of ballot papers.
' Learned counsel argued that since the remedy of review is available to the Appellants and in fact they have availed the remedy of review, therefore, both the ICAs are not maintainable.
5. On merits the learned counsel for Respondents Nos.5 and 6 argued that the RO was obligated in terms of Rule 36 of the Rules to decide upon the application for recount pending before him.
Learned counsel argued that admittedly this application was received by the RO on 19.11.2015, hence the result could not have been consolidated without a decision on the application of Respondent No,5. In this regard, the RO hastily consolidated the result as he was under the tremendous pressure exerted by the Appellants. Further argued that the impugned order itself records the statement of the RO in paragraph No,14 wherein he admits that he did not follow the proper process for consolidation of the result and that he did not follow the procedure given in Rule 36 of the Rules for the purposes of consolidation of result. Learned counsel argued that the RO has admitted that he received the application on 19.11.2015 meaning thereby that he was obligated to decide the same and without a decision on the application, the result could not have been consolidated. Reliance is placed upon the cases titled "Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49, Islamabad and others" (PLD 2008 SC 487) and "Mst. Karim Bibi and others v. Hussain Bakhsh and another" (PLD 1984 SC 344).
6. The learned counsel for the Election Commission produced the original record before us. He stated that Form XIII was filed on 20.11.2015 and therefore the result was duly consolidated under Rule 36 of the Rules. Subsequently pursuant to a recount by the RO another Form XIII was filed on 28.11.2015.
7. The first question to address is that of maintainability. It is the case of the Respondents that both the ICAs are not maintainable as the remedy of review is available under Rule 78 of the Rules, which provides as follows:-- "78. Powers of Election Commission. - Save as otherwise provided, the Commission may:
(a) stop the polls at any stage of election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion, intimidation and pressures, prevailing at the election.
(b) review an order passed by an officer under the Act or the rules, including rejection of a ballot paper; and
(c) issue such instructions and exercise such powers, and make such consequential orders, as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Act and the rules."
' The relevant words used in Rule 78 of the Rules "save as otherwise provided" have been interpreted by the august Supreme Court of Pakistan in a case titled "Batha Ram v. Lala Mehar Bheel and another (1995 SCM R 684). In the said judgment, the word "save as otherwise provided" were considered in the context of Section 103 of the Representation of the People Act, 1976 ("ROPA").
It is noted that Rule 78 of the Rules is para materia of Section 103 of the ROPA. In this regard, the august Supreme Court of Pakistan held that "the words "Save as otherwise provided" used in Section 103 of the Act will show that if something otherwise is provided in the Act, then this section will not apply. Furthermore, the reading of Clauses (a) to (c) of this section will show that this section deals with the power of the Commission at the time of election". This means that the power of review given in Rule 78 of the Rules is not statutory remedy available to the Appellants as contemplated in the proviso to Section 3(3) of the Ordinance. It is a special power for a specific purpose. The powers and functions of the Election Commission of Pakistan as provided in Rule 78 of the Rules essentially are administrative in nature for the purposes of conducting election. The august Supreme Court of Pakistan held in a case titled "Dr. Raja Aamer Zaman v. Omar Ayub Khan and another" (2015 SCM R 1303) that the provisions of Section 103 of the ROPA enable the Election Commission to carry out its administrative and policing functions for the purposes of conducting elections honestly, justly, fairly and in accordance with law. These administrative powers are not judicial in nature and are exercisable without any deep probe of facts. The issue may be ascertainable on the face of the record or after a summary inquiry, if deemed necessary by the Commission. Therefore, Rule 78 of the Rules is an administrative power resulting in an executive order and not a judicial order.
8. Furthermore, the Election Commission of Pakistan derives its power to carry out local government elections under Article 140-A of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"), which provides as follows:- "140A. (1) Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local government.
(2) Elections to the local governments shall be held by the Election Commission of Pakistan.
(Emphasis added)."
' Article 218 (3) of the Constitution is also relevant which provides as under:- 218 Election Commission.....................................................
"(3) It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against."
Therefore, Rule 78 of the Rules when read with Articles 140-A and 218(3) of the Constitution suggests that the power to review under Rule 78(b) of the Rules is essentially and executive function related to the functions of the Election Commission to organize and conduct local government elections so as to ensure they are carried out honestly, justly, fairly and in accordance with law. Based on the aforesaid, it is our opinion that both the ICAs are maintainable.
9. On the merit, the basic grievance of the Appellants is that the impugned order of 26.11.2015 set aside the consolidation order of 20.11.2015 and allowed recount of votes. Admittedly, the election in this case was held on 19.11.2015, consolidation took place on 20.11.2015 and application for recount of votes was filed by Respondent No,5 before the RO on 19.11.2015, which was allowed by the DRO on 20.11.2015. Thereafter, on 22.11.2015 the DRO withdrew his order of 20.11.2015 and placed the application for recount of votes before the RO, who on the said date allowed the recount application after the order of consolidation dated 20.11.2015. By way of the impugned order dated 26.11.2015, the learned Single Judge set aside the consolidation of result directing the RO to recount the valid ballot papers and thereafter, to consolidate the results in accordance with law.
10. Essentially the reason for interference which prevailed with the learned Judge was procedural impropriety. The learned Single Judge relied upon the statement of the RO, who admitted that he did not follow the prescribed procedure under Rule 36 of the Rules. We are of the opinion that any decision on the application for recount was subject to consolidation of results. Once the result is consolidated, the Respondents Nos.5 and 6 have to wait for the declaration of the result in the Official Gazette under Rule 46 of the Rules. Thereafter they have remedy available to them to challenge the result or the process, as the case may be, before the Election Tribunal in an election petition under Section 38 of the Act read with Rule 62 of the Rules. We note that the remedy of appeal is provided in the Act for which the Election Tribunals have been constituted by the Election Commission of Pakistan vide notification dated 04.12.2015. Furthermore the failure of the RO to comply with the process given under the Rules should be challenged before the Election Tribunal in terms of Section 44(a) of the Act. The Section reads as follows:--- 44, Ground for declaring elections as a whole void:--- ' The Election Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reasons of:
(a) the failure of any person to comply with the provisions of this Act or the rules; or
(b) the prevalence of extensive corrupt or illegal practice at the election.
Consequently any procedural impropriety can be challenged before the Election Tribunal in terms of Section 44 of the Act.
11. The learned counsel for Respondents Nos.5 and 6 has relied upon PLD 2008 SC 487 (supra) to argue the point that the remedy of filing a constitution petition is available to the Respondents to challenge the consolidation of result which was not done in accordance with the present Rules. In that case, the orders of the Election Commission and the RO were challenged before the Islamabad High Court with a request for recount of ballot papers in the general election. The august Supreme Court of Pakistan held that the power of judicial review of the High Court is certainly not available as an alternate remedy in the election matter but if the aggrieved person has no other remedy, the bar of jurisdiction contained in Article 225 of the Constitution, may not affect the jurisdiction of the High Court to entertain a petition involving question of law or interpretation of law in respect of an election dispute. It was further held that it is difficult to agree with the proposition that in all election matters at all stages, the jurisdiction of the High Court under Article 199 of the Constitution or that of Election Commission of Pakistan, a Constitutional forum is completely ousted by virtue of Article 225 of the Constitution. We therefore, hold that Election Commission of Pakistan can conveniently take notice of an irregularity/ illegality committed during the process of election in an appropriate case in exercise of its powers under Section 103 read with Section 103-AA of the Representation of the People Act, 1976. Similarly the High Court in a suitable case can interfere in the order passed by the election authorities during the election process in its constitutional jurisdiction under Article 199 of the Constitution. Therefore, the august Supreme Court of Pakistan held that where the election process had come to an end appropriate remedy was before the Election Tribunal or before the Election Commission under Section 103-AA of the ROPA. In the present case, the election process came to an end with the consolidation of result by filing Form XIII. Any challenge thereafter to the process could only be made before the Election Tribunal in terms of Section 44 of the Act. Hence this case does not support the contentions of Respondents Nos.5 and 6.
12. We have also gone through the complaint pending before the Election Commission filed by the Appellants. The said complaint relates to the conduct of the RO and tampering of the election result and does not specifically challenge the orders impugned in the writ petitions. Even otherwise, the order impugned before us is a consolidated order in two petitions, one filed by the Appellants (WP No,36004/2015) and the other by Respondents Nos.5 and 6 (WP No,36384/2015). Therefore, its pendency will not bar the Appellants from challenging the impugned order of 26.11.2015.
13. Under the circumstances, both the ICAs are accepted and the impugned order dated 26.11.2015 passed by learned Single Judge is set aside.