MUHAMMAD FARRUKH IRFAN KHAN, J.---Through the instant Election Appeal under section 46 of the Punjab Local Government Act, 2013 the appellant has assailed the order dated 7.8.2017 of the Election Tribunal, Gujranwala whereby the Election Petition filed by respondents Nos,2 and 3 has been accepted and they have been declared returned candidates of Chairman and Vice- Chairman, respectively of U.C. No,40 Behlolpur Bhattian, Tehsil Pindi Bhattian, District Hafizabad.
2. Brief facts of the case are that one Mian Babar Hassan (since deceased) and the appellant/Ghulam Hussain Bhatti contested the local bodies election for the seats of Chairman and Vice-Chairman, respectively, from Union Council No,40, Behlol Pur Bhattian, Tehsil Pindi Bhattian, District Hafizabad, which was held on 19.11.2015. Respondents No,2/Saifullah and respondent No,3/Qamar Abbas also contested the said election from the same Union Council for the seats of. Chairman and Vice-Chairman, respectively. After balloting the Presiding Officers prepared Form-XI according to which respondents Nos,2 and 3 were declared successful candidates. Thereafter the Returning Officer prepared the consolidated result and declared respondents Nos,2 and 3 as the returned candidates. Feeling dissatisfied with the result the appellant, who was contesting the election against the seat of Vice-Chairman made application to the District Returning Officer ("DRO") Hafizabad for recounting of the ballot papers, which was allowed. Pursuant to the order of the DRO, Recounting was conducted by the Returning Officer ("R.O.") on 23.11.2015 as a result of which the appellant and the said Mian Babar Hassan (since died) were declared as returned candidates. Respondents Nos,2 and 3 filed Election Petition against the appellant, which was accepted, vide order dated 7.8.2017 by the Election Tribunal, Gujranwala Region, and recounting statement dated 23.11.2015 prepared by the Returning Officer was declared null and void. The aforesaid order of the Election Tribunal is under challenge in this appeal.
3. Learned counsel for the appellant contends that the impugned order of the Election Tribunal is against law and facts on record; that the impugned order is the result of misreading and non- reading of evidence on record; that recounting was conducted by the Returning Officer in presence of respondents Nos,2 and 3 and they raised no objection to the process of recounting; that the application for recounting was submitted on 20.11.2015 and consolidation of result was done on 27.11.2015; that the Returning Officer had not committed any illegality by conducting recounting of valid votes; that though the appellant made application to the District Returning Officer but recounting was conducted by the Returning Officer in exercise of powers under Rule 36(5) of the Punjab Local Governments (Conduct of Elections) Rules, 2013; that the learned Election Tribunal misconceived the provision of Rule 36(5) of the Rules ibid and passed the impugned order dated 7.8.2017 without any legal justification; that findings of the learned Election Tribunal are based on surmises and conjectures, therefore, are not sustainable in the eye of law; and that the Returning Officer declared the appellant and (late) Mian Babar Hassan as returned candidates after fulfilling the requisite formalities as envisaged under the Punjab Local Governments (Conduct of Elections)
Rules, 2013, therefore, the impugned order of the Election Tribunal is liable to be set-aside.
4. Conversely, learned counsel for respondents Nos,2 and 3 submitted that the Returning Officer after having prepared the consolidated results became functus officio and as such he had no authority to conduct recounting of valid votes under Rule 36(5) of the Elections Rules, 2013; that the learned Election Tribunal has passed a valid and legal order declaring respondents Nos,2 and 3 as the returned candidates; that according to Rule 36(5) of the Elections Rules, 2013 application for recounting should be made to the Returning Officer but no such application was made to him rather it was presented before the District Returning Officer, who had illegally and unlawfully allowed the said application; that the Returning Officer while appearing as C.W.1 before the Election Tribunal admitted that the application for recounting was not made to him; and that the order of the learned Election Tribunal is based on the evidence on record and this being a lawful order does not call for interference in appellate jurisdiction.
5. Arguments heard. Record perused.
6. The argument of learned counsel for respondents Nos,2 and 3 in support of the impugned order is twofold, (i) that the appellant did not submit application before the Returning Officer and, (ii) that the process of recounting was done after completion of consolidation of results of valid votes, which was against the provision of section Rule 36(5) of the Election Rules, 2013. The plea of the respondents is not supported by the available record. Admittedly, the election was held on 19.11.2015. Though in the application for recounting the appellant has not mentioned any date of its submission but the Returning Officer while appearing as C.W.1 in his cross-examination admitted that he received the application of the appellant through DRO for recounting on 20.11.2016 .(wrongly written as 20.11.2016 instead of 20.11.2015). The District Returning Officer as per Rule 8 of the Elections Rules, 2013 has the supervisory role in connection with the local government elections. In this view of the matter, addressing the application to the District Returning Officer instead of the Returning Officer in no way can be termed against any provision of the Elections Rules, 2013. The process of recounting has not been conducted by the District Returning Officer. It has been done by the Returning Officer in exercise of his powers under Rule 36(5) of the Elections Rules, 2013. It is also noteworthy that prior to recounting process the Returning Officer has also issued notice dated 20.11.2015 to A all the contesting candidates for their presence on 23.11.2015 to participate in the process of recounting. Respondents Nos,2 and 3 signed the Code of Conduct of Recounting. They also reposed their confidence on the Returning Officer for the process of recounting by putting their signatures, which fact is evident from the document placed on record at page 23 of this file.
Recounting of votes was conducted on 23.11.2015. Respondents No,3 initially remained present at the time of recounting of votes but thereafter comprehending his defeat he disassociated himself from the process of recounting.
7. Rule 36 of Election Rules, 2013 provides as under: "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 the results of the count furnished by the Presiding Officers.
(5) The Returning Officer may recount the valid ballot papers before consolation 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.
It is the contention of the learned counsel for respondents Nos,2 and 3 that after declaration of the results the Returning Officer became functus officio and he had no authority and power to conduct recounting of the valid votes but there is nothing on the record to show that prior to recounting process the Returning Officer had completed the process of consolidation of results of valid votes.
The available record shows that the process of consolidation of results was completed on 27.11.2015 when Form No,XIII was issued by the Returning Officer. In this way the Returning Officer had not violated any provision of the Elections Rules, B 2013. He conducted recounting of valid votes in accordance with law.
Findings of the learned Election Tribunal that no application for recounting was made before the RO prior to the consolidation are found to be contrary to record. The impugned order based on such findings is not sustainable in the eye of law.
8. In the light of above discussion, this Court is of the view that while passing the impugned order the learned Election Tribunal has failed to apply its mind judiciously. Resultantly, the instant appeal is allowed and the impugned order of the Election Tribunal is set-aside and that of the Returning Officer is restored.