AMJAD ALI SAHITO, J.---By this common order, we intend to dispose of C.M.As. Nos. 791 and 794 of 2021 filed in C.P No.D-6592 and in C.P. No.D-6741 of 2020 by Applicant Ayaz Ali Rajpar, against alleged contemnor/Advocate General Sindh/Returning Officer of Sindh Bar Council Election 2020-21 on the ground that he has willfully and deliberately violated the order passed by this court in the matter directing the alleged contemnor not to finalize recounting process till next date of hearing.
2. The gist of the case as unfolded in the captioned C.M.As. is that Petitioner Ayaz Ali Rajper filed C.P.
No.D-6592 of 2020 before this court wherein he Challenged the letter dated 16.12.2020 whereby the learned Advocate General Sindh/Returning Officer of Sindh Bar Council Election, 2020, intimated to all the contesting candidates for recounting of votes in all Districts of Karachi and for three Seats of Hyderabad and its adjoining Districts from 18.12.2020 on day to day basis till its completion. After filing of the petition, the matter was fixed before the Court on 21.12.2020, the notices to respondents were issued and the matter was adjourned for 31.12.2020. But an ad-interim order directing the learned Returning Officer not to finalize the recounting process till the next date of hearing was passed. It is appropriate to reproduce the order dated 21.12.2020.
21.12.2020 4&5. It is inter alia contended that the elections of Sindh Bar Council were conducted on 28.11.2020 in which the Returning Officer was Advocate General Sindh. At page 19 of the notification of the returned candidates is available, however, the petitioner has challenged the letter dated 16.12.2020 available at page 25, whereby, Advocate General, Sindh as Returning Officer of Sindh Bar Council 'Elections 2020 intimated to all contesting candidates for the recounting of votes in all districts of Karachi and for three seats of Hyderabad and its adjoining districts from 18.12.2020 and that shall continue day to day till completion. Learned counsel argued that there is no provision for recounting after declaring the result of the returned candidates even nothing has been mentioned in the letter what was the actual nature of complaint received by the Advocate General for recounting the result of all districts of Karachi and for three seats of Hyderabad.
Issue notice to the respondents as well as A.A.G. and D.A.G. for 31.12.2020. Till the next date of hearing learned Returning Officer shall not finalize the recounting process.
3. On 22.12.2020 Mr. Ayaz Hussain Tunio filed an application Under Order I, Rule 10, C.P.C. read with Section 151, C.P.C. with the prayer that he may be joined as a necessary party and on his request the matter was adjourned. Meanwhile, another constitution petition bearing No.D-6714 of 2020 was filed by Mr. Ayaz Hussain Tunio. Notices thereon were issued to the respondents as well as Deputy Attorney General and Additional Advocate General. On 29.12.2020 after hearing the parties, both Petitions were disposed of by leaving the parties at liberty to seek a remedy before the proper forum. It is appropriate to reproduce the order dated 29.12.2020.
29.12.2020
1. In pursuance of section 7 of the Legal Practitioners and Bar Councils Act, 1973 elections of the Sindh Bar Council were held on 28.11.2020 and the results were declared on 3.12.2020.
2. In terms of rule 28 of the Legal Practitioners and Bar Council Rules, 1976 the names of Candidates who were elected as members of the Sindh Bar council were notified/published in the Sindh Government Gazette on 10.12.2020.
3. On 12.12.2020 the Honorable Chief Justice of this Court nominated a learned Judge of this Court as Election Tribunal for hearing of objections arising out of the elections conducted, as was required by rule 61 of the Act of 1976.
4. On 16.12.2020, the Returning Officer, due to complaints received regarding certain irregularities, ordered a recount of votes in certain districts of Sindh.
5. Through the various petitions that have been filed the exercise of recount by the Returning Officer has been called into question.
6. We have heard the learned counsel for the parties. Our observations are as follows: --
7. The fact that the election was conducted in accordance with the procedure prescribed by law is admitted by all the parties. That the notification dated 10.12.2020 has been made by the competent authority declaring the winners of the election is also an admitted fact.
8. We are of the view that once the names of the winning candidates were declared and their names notified in the Gazette, any objections to the election cannot be gone into by this court in its writ jurisdiction. The parties are at liberty however to seek their remedy at the proper forum.
9. The petitions stand disposed of in the above terms.
4. In C.P. No.D-6714 of 2020 petitioner Ayaz Hussain Tunio filed a review application bearing [C.M.A.
No.14542 of 2021], notices were ordered to be issued to the respondent and once again the matter was fixed before the same Bench which had decided the earlier Petition and was disposed of vide order dated 01.02.2021 [C.M.A. No. 1442 of 2021]. It is appropriate to reproduce the relevant order.
1st February, 2021 C.M.A. No. 1442 of 2021: Through this review application, the petitioner has prayed for a review of paragraph 7 of the order dated 29.12.2020. There are two observations made in paragraph 7 in two sentences. First one is that the election which was conducted in accordance, with the procedure prescribed by law is admitted by the parties and the second is that the notification dated 10.12.2020 has been made by the competent authority declaring the winners of the election is also an admitted fact.
C.M.As. Nos. 791 and 794 of 2021: These are contempt and injunction applications filed in C.P.No.D-6592/2020 which this Bench has not been assigned. Even the administrative order for the constitution of the special bench specifically confines us to hear the review application. Let this matter be placed before the Hon'ble Chief Justice for orders as he deems appropriate i.e. whether the Bench assigned such matters according to roster shall hear this application or whether the same should be placed before a special bench to, be constituted by him or any other orders he deems appropriate.
Office to place a copy of this order in the connected petition.
5. On 07.01.2021 Mr. Salman Talibuddin Advocate General Sindh/ Returning Officer published the list of declared elected candidates as members of Sindh Bar Council from all five groups of Province of Sindh, in the Sindh Government Gazette, which includes the name of Mr. Ayaz Hussain Tunio as a member of Sindh Bar Council (SBC).
6. Being aggrieved with the notification dated 07.01.2021, Mr. Ayaz Ali Rajper, Petitioner filed an application (C.M. No.791 of 2021) Under Article 204 read with Article 199 of the Constitution of Pakistan. Meanwhile, another application (C.M No.794 of 2021) Under Article 199 4-A of the Constitution of Pakistan was filed with a prayer to suspend the operation of the notification dated 07.01.2020 issued by the alleged contemnor. Notices were issued to the alleged contemnor (C.M.S. bearing Nos. 794 and 791 of 2021 filed in C.Ps. Nos. D-6592 and 6741 of 2021).
7. Learned counsel for the petitioner inter alia contended that as soon as the first notification dated 10.12.2020 (the official result of Sindh Bar Council Elections, 2020) was published in the official gazette, the Returning Officer/Advocate General, Sindh, had become functus officio; that there is no provision provided under the rules/statues for recounting, so the applications filed for such purpose could not have been entertained and such applications are beyond the scope of legal Practitioners and Bar Council Rules, 1976; that notification dated 10.12.2020 was published in accordance with Law and after the Advocate General had done a count as mandated by Rule 25 of the Rules 1976; that since the notification dated 10.12.2020 was not illegal, it could not have been revoked; that it is also important to point out that Ayaz Ali Rajper had filed his objections to the recounting exercise, and those objections ought to have been decided before the recounting exercise was carried out; that the first notification was done in accordance with the Law; that vide order dated 29.12.2020 the parties were left at liberty to seek their remedy at the propel- forum.
However instead of doing that the recounting was done and then a new notification was published; lastly learned counsel prayed that the contempt proceedings may be initiated against the alleged contemnors and respondents shall be dealt with in accordance with the Law. Learned counsel has relied upon the case law reported in 2002 CLC 310 (LHC), [A], 342, 2005 CLC 650 [LHC], 2006 MLD 43
[LHC] 45 and 47, 2002 SCMR 1632 [SC] - [E], 1651, PLD 2006 Lahore 29 [C], 2017 MLD 1209 [LHC] 1211 and 1212, 2007 CLC 1275[LHC] Para-8, 1986 CLC 1284 [A], 1289, PLD 2008 SC 663 [SC] 671-673, PLD 1960 West Pakistan 751, 2008 CLD 149 [SC], PLD 2003 Lahore 486, 1980 SCMR 89, 1991 SCMR 2457, PLD 2019 Sindh 624, PLD 2018 SC 538, 2015 SCMR 321, PLD 2008 SC 663, PLD 1958 SC 104 and 2013 CLC 792.
8. Learned Advocate General Sindh, alleged contemnor, contended that he never became functus officio as the recount done by him was done because certain candidates had filed applications fora recount; that the authority which issues a notification has the power to modify it as well; that the counting stated in Rule 25(2) was done; he essentially admitted that a recount was done by him to first see whether the rejected votes were rejected correctly by the Presiding Officer and also to see whether the accepted votes were accepted correctly by the Presiding Officer; that the interim order was merged in the final order wherein he was not restrained from the announcement of the result of the recount; that there was a confusion in vote counting as both contestants name is "AYAZ" hence recounting had become necessary to once for all settle the controversy; lastly learned Advocate General contended that no contempt has been committed which seems to have violated verdict of this Court.
9. Mr. Salahuddin Ahmed, advocate, Learned council for petitioner Ayaz Hussain Tunio in C.P. No.D- 6714 of 2020 contended that the present applications are not maintainable as the relief sought cannot be granted in a contempt proceedings of a disposed of matter; that petitioner ought to have filed fresh constitutional petition challenging the notification dated 07.01.2021; no injunction had been passed and neither there is an observation that the Returning Officer had become functus officio; that a mistake was made in the counting process and that mistake was notified through the first notification dated 10.12.2020 and then that mistake was rectified through the second notification whereby his client Mr.Ayaz Tunio won the elections; that the Returning Officer had become functus officio after publication of notification dated 07.01.2021 and therefore any subsequent dispute qua election could only be raised by way of an election petition before the Election Tribunal; lastly learned counsel prayed that the both applications may be dismissed.
10. We have heard learned counsel for the parties and perused the record.
11. The prime contention of the learned counsel for the petitioner was that after results were compiled and announced in the official gazette, the role of the Returning Officer (Respondent No.1) ends and he becomes functus officio. In support of his contention, he has relied upon the case laws cited above. The case law relied on by the Learned council for the petitioner pertains to the election of National Assembly/ Provincial Assembly so also local government. Section 92 of the Elections Act 2017 provides that on receipt of the result of the count from all presiding officers of a constituency, the Returning officer shall forthwith prepare and announce a provisional consolidated statement of the result of the constituency (excluding postal ballots) in the prescribed manner, in the presence of such contesting candidates, their election agents or authorized observers as may be present, affix a copy of the provisional consolidated statement of result signed by him at a conspicuous place in his office and send a copy of thereof to the Commission. Whereas sub-sections (8) and
(9) of Section 95 of the Election Act, 2017 provide that the returning officers shall, within twenty-four hours after the consolidation proceedings sent to the Commission, sign copies of the Consolidate statement of the result of the count and final consolidated result together with the result of the count and ballot paper account as received from the presiding officers, and shall retain copies of these documents for the record. After sending the final result to the commission, if he/Returning officer orders for recounting of the votes of any constituency that is illegal as he has become functus officio. The case laws relied by the learned council for the petitioner is distinguishable from the facts and circumstances of the present case or not helpful for him.
12. The case in hand has to be looked through the prism -of the Pakistan Legal Practitioners and Bar Councils Rules, 1976. Rule 25 thereof empowers the Returning officer to carry on counting and clearly states that after giving notice to the contesting candidates as to the date time and place for the counting of votes, open the sealed packets received from the polling officers, in the presence of such contesting candidates or their agents as may be present. He shall then proceed to count the ballot papers received from the various stations. Learned Advocate General Sindh/Returning Officer contended that he has also received a number of applications from the contesting candidates for recounting of votes. It is appropriate to reproduce Rule 25 of the Legal PR actioners and Bar Councils Act, 1973, which reads as follows: -
25. (1) At the close of the polling, the 1[Polling Officer] shall count in the presence of the candidates or their agents the votes cast for the various candidates and shall forward the ballot papers and the result of counting in a sealed cover to the Returning Officer.
(2) The Returning Officer shall after giving notice to the contesting candidates as to the date, time and place for the counting of votes, open the sealed packets received from the Polling Officers, in the presence of such of the contesting candidates or their agents as may be present. He shall then proceed to count the ballot papers received from the various polling stations.
(3) The Returning Officer shall reject a ballot paper, if--
(i) The voter has put a cross 2[(x) or tick ( )] against more candidates than the number of members to be elected.
(ii) The ballot paper contains a mark other than a cross 54[(x) or tick( )] put against, the name of candidates which is not found to be accidental.
13. Whereas Rule 26 says that the Returning officer shall prepare a report of the votes received by each candidate and the votes held to be invalid and shall declare the result. The learned Advocate General Sindh by exercising such power issued notice dated 16.12.2020 to all the contesting candidates of Sindh Bar Council Election, 2020, for counting of votes of Sindh Bar Council Election, 2020, albeit on the complaints of irregularities in the first counting. The Returning Officer/A.G. Sindh admits that sub-rule (1) of rule 25 of the Legal Practitioners and Bar Councils Act, 1973 provides that at the close of polling the Polling Officer shall count votes in the presence of the candidate or their agents cast for the various candidates and shall forward the ballot paper and the result of counting in a sealed cover to the Returning Officer. Learned Advocate General candidly admitted that instead of writing the word "Counting", he had written a word recounting in the letter dated 16.12.2020, which is bona fide mistake otherwise he has exercised his powers in accordance with law and rules. By looking at the above provisions of law coupled with his explanation, we find no illegality having been committed by him.
14. Further the rule 26 of Pakistan Legal Practitioners and Bar Council Rules, 1976, provided that after counting the votes the result shall be announced, which reads as follows: -
26. The Returning Officer shall prepare a report of the votes received by each candidate and the votes held to be invalid and shall, declare the result. In case of equality of votes the decision shall be taken by drawing of lots. The ballot papers as well as report shall be preserved in a sealed box for the term of the members elected.
27. All candidates as well as their agents shall be entitled to be present at the counting.
28. A list of candidates declared elected shall be prepared and signed by the Returning Officer and 2[.....] shall cause the list to be published in the official gazette 3[of the Province]" [and the ICT as the case may be]. Copies of the list shall also be sent to the Presidents of all the Bar Associations to be affixed on their notice boards.
15. It needs no reiteration that the contempt proceeding cannot be initiated at the desire or whim of a litigating party and before proceeding against the alleged contemnor the court has to be satisfied as to whether the alleged contemnor has done any act coming within the mischief of the law of contempt. It would suffice to say that the contempt would lie where there is a deliberate act on part of the contemnor which within judicial conscious of the court itself falls within the meaning of a contempt. Learned Advocate General Sindh/alleged contemnor submits that the interim order passed by this Court on 21.12.2020, the same was finally merged into the final order dated 29.12.2020 and in the order, there was no direction restraining him from exercising his powers as returning officer. It is settled law that interim order would always merge in the final order and would not survive after the final verdict has been announced in the matter. In the final order wherein, the Court has observed that once the name of the winning candidate was declared and notified in the gazette, any objection to the Election cannot be gone into by this court in its writ jurisdiction. The parties were left to seek the remedy at the proper forum and the petition was disposed of without recording any finding concerning the final counting process. In the case of Gen. (Retd.) Pervez Musharraf through Attorney v. Pakistan through Secretary Interior and others reported in PLD 2014 Sindh 389 (The Judgment authored by one of us Mr. Muhammad Ali Mazhar J.) this court has held that,-
26. The distinction between the interlocutory order or the final is based on the premise that no interlocutory order will survive after the original proceeding comes to an end and interim order which does not finally conclusively decide an issue cannot be precedent. Interim orders are made in the aid of the final order that the court may pass and which merges into final order and does not survive after final adjudication.
16. In view of the foregoing discussion, we see no merits in the listed application (C.M.As. Nos. 791 and 794 of 2021) and dismissed the same accordingly. However the petitioner is at liberty to file proper application before the Returning Officer/A.G. Sindh for recounting of votes to the extent of petitioner namely Ayaz Hussain Rajper and Ayaz Hussain Tunio, respectively. The learned Advocate General Sindh/ Returning Officer shall consider the same and in the presence of both parties recount the votes. Such exercise if undertaken shall be completed within fifteen days after announcement of this Judgment.