' This judgment will dispose of W.P. No.4164 and 4169 of 1999 as also Criminal Original No.296-W-99 as common questions of fact and law are involved therein.
2. The Constitutional petitions aforenoted call in question the order dated 9-3-1999 passed by the Executive Committee of the Punjab Bar Council whereby recount of vote has been ordered while in the Criminal Original an information has been laid to the Court that despite the injunctive order issued by it, the recount was conducted by the Executive Committee of the Bar Council.
' The relevant facts as contained in W.P. No.4164-99 are to the effect that the election of Lahore Bar Association were held on 9-1-1999 under the supervision of respondent No.2 while the petitioner as also the respondents Nos.3 and 4 were the contesting candidates for the seat of Secretary.
According to the petitioner he alongwith respondent No.4 came out to be successful in the first count made after the conclusion of the polls. However, the poling agent of respondent No.3 insisted on a recount, therefore, the total effort of recount was repeated but the result remained the same wherein petitioner secured 984 votes, Mr. Ihtisham-ul-Haq Dar secured 983 votes and Mr. Abdul Latif Hanjra, respondent No.3 secured 976 votes. Unofficial declaration was also made. The respondent No.3 being still dissatisfied filed a petition/appeal before the Chairman, Appeal Committee, Punjab Bar Council, Lahore. The matter was however, taken up by the Executive Committee, Punjab Bar Council, who, according to the petitioner, proceeded therewith in a hurried and haphazard manner inasmuch as the said committee having heard the arguments on 8-3- 1999 reserved the judgment to be announced later in the day. It was, however, announced on 9-3- 1999. The petitioner having come to know about the order passed in this case at 5-00 p.m. On 9-3- 1999 rushed to the office of respondent No.1 but found that recount had been adjourned to 10-3- 1999 at 9-00 a.m. It is also the case of the petitioner that the Chairman and Members of the Executive Committee illegally and arbitrarily desealed the record in the absence of the petitioner and other rival candidates, therefore, the possibility of the record of the election being tempered with cannot be ruled out. It was then alleged that the apprehension abovenoted cannot be brushed aside because it is evident from the extreme bias displayed by the Chairman and the Members of the Executive Committee. The total proceedings taken by the Executive Committee were challenged by way of this writ petition on the ground that Rules 64 and 65 of the Punjab Rules of Business of Bar Associations, Memorandum of Association do not authorise the said committee to order recount. Alternatively it is submitted that a recount could only be made on the basis of evidence that a mistake has been committed in the counting and since no such exercise was undertaken nor any evidence was produced justifying the recount, therefore, the whole process was without lawful authority. It has also been pointed out that the order dated 9-3-1999 adjourning the case has been signed merely by the Chairman and a Member while the quorum required for the same is minimum of three.
Additionally, it was complained that the copy of the order dated 9-3-1999 was not supplied to the petitioner on the ground that it is still to be signed. In the background afore noted, the petitioner has prayed that the order dated 9-3-1999 whereby recounting has been directed by the Executive Committee of Punjab Bar Council be declared to be illegal and without lawful authority and of no legal effect.
3. Initially respondent No,3 contested the petition while respondent No,1 also submitted their comments. Since no other respondent opted to file any comments or written statement, therefore, they were proceeded against ex parte but subsequently respondent No,2 also submitted his written statement. I entertained the same despite the fact that he had been proceeded against ex parte for the pertinent reason that he was the Chairman of the Election Board.
' The respondent No,2 contested the application on the ground that an appeal against the order of Punjab Bar Council having been provided to the Pakistan Bar Council, the Constitutional petition is incompetent and that the writ petitioner has no cause of action and locus standi to file the same. It was also maintained that as per provisions of Rule 63 of the Memorandum of Association, the Election Board was mandatorily required to report the result to the President who shall then announce it and according to Chairman of the Election Board, the said mandatory requirement having not been complied with, the writ petition itself is incompetent. The filing of election petition was admitted with the rider that the same is legal and lawful. It was thereafter that the proceedings which were taken by the Executive Committee were lime lighted to maintain that the objections and the arguments of the parties were heard at length where after written arguments were also filed and then an order for recounting was made on 9-3-1999 but before the recount could take place the petitioner had rushed to this Court. The allegation that the order had not been signed was denied by explaining that it is usual practice that the order is dictated where after it is signed after the transcript is prepared by the Steno. As far the plea that the record has been tempered with", it was submitted that the same is lying in the safe custody. The plea that the Executive Committee had no power to order recount has also been denied by relying on Rules 64 and 65 of the Memorandum of Association Rules, i981 and it was submitted that there was sufficient evidence and material available on the record to order such a recount and that detailed reasons therefore had been given.
' The respondent No,1 also relied on section 13 (2) of the Legal Practitioners and Bar Councils Act, 1973 to submit that an alternative remedy of appeal being available to the petitioner, the writ petition is not competent and that Article 64 of the Memorandum of Association, 1981 did create an exclusive jurisdiction of the Punjab Bar Council to entertain applications and appeals regarding the election of the Bar Associations. It was also submitted that no final order as yet has been passed by the Executive Committee and it was only an interim order which has been assailed in the writ petition which could not be done. It was then submitted that the order of recounting was passed by the outgoing Executive Committee of Punjab Bar Council on 29-1-1999 which has not been assailed by the writ petitioner, therefore, the writ petition was not competent at all. The respondent No,1 relied on its proceedings to contend that they were regularly and lawfully taken. It was denied that the Executive Committee had any motive in withholding any copies of its orders or that the same were not signed.
' The Chairman of the Election Board, on the other hand, submitted that the result sheet being with the Bar Council, he cannot comment as to number of votes obtained by each and every candidate. It was, however, submitted by him that result remained the same after the second counting done by him personally. It was then maintained that in answer to summon by the Executive Committee he appeared before them and handed over complete record in the office but the key of the box remained with the answering respondent and that the box was sealed in the office of Secretary, Bar Council on the same day. As far what happened later on in the. Office of Bar Council, it would be relevant to reproduce the contents of para. Containing the narration as under:- - "5. Not within the knowledge of the answering respondent. The answering respondent was summoned on 9-3-1999 at 9-00 a.m. Through letter Annex. R/1. The answering respondent appeared and at the same day and time the keys of the ballot box were handed over to respondent No,5. After breaking the seal, the respondent No,5 asked the answering respondent to hand over the Result Sheet which was done. The answering respondent was then asked to come at 11-00 a.m. When his statement was recorded. After recording of statement the answering respondent was asked to come after 1-00 p.m. During this period the petitioner and respondent No,4 .Was not present in the room. As far as the answering respondent remembers the box was not sealed, in the presence of answering respondent on 9-3-1999. After 2-00 p.m. The order was announced and recounting was fixed sometime after 3-00 p.m. But due to the absence of concerned parties the counting could not take place. The answering respondent was asked to come on 10th at 10-00 a.m. The answering respondent reached there sometime after 9-00 a.m.
When he was informed that the counting time was changed to 9-00 a.m. At the instance of the parties. The members of the Committee informed the answering respondent that a writ petition had been filed and stay order had been issued by the Honourable High Court. An official of the Bar Council was sent especially to see as to whether the stay was granted for recounting, in general or only for the office of Secretaries. The information was conveyed that it was only for the office of the Secretaries and thus no counting of votes for the Secretaries was done. The recounting for the office of Vice-Presidents was done. After counting the ballot box was locked and sealed and the keys were returned to the answering respondent after 4-00 p.m. On 10-3-1999".
' Mian Muhammad Saeed, contesting candidate for the post of Vice-President and respondent No,3 in W.P. No, 4169-99 did also submit that the writ petition is incompetent in view of the remedy of appeal being available to the petitioner under the statute. It was also maintained that the petitioner having joined the proceedings before the Executive Committee of Punjab Bar Council could not maintain the petitioner which is tainted with ulterior motive of delaying the proceedings pending before the Punjab Bar Council. The conduct of the petitioner Misbah Kokab was also referred to submit that she knew date, time and place of the recount to be made by the Executive Committee of the Punjab Bar Council but intentionally abstained herself from joining the same. The re-count had already taken place, therefore, the petition under reply has become infructuous. It was then submitted that Mr. Ahmad Hassan Khan, made a categorical statement before the Executive Committee that he did not prepare and announce the final result, therefore, the petitioner could not validly maintain that she has been elected as Vice-President. As far the plea that the Executive Committee has no jurisdiction to order recount, it was submitted that such a jurisdiction did exist with the Executive Committee of Punjab Bar Council. The votes claimed to have been polled by the various candidates as mentioned by the petitioner were denied and it was submitted that recounting was not done by the Chairman, Election Board, therefore, the recount itself was doubtful. It was submitted that the entire petition of the respondent revolve around the plea of recount and that in the recount the respondent has emerged as winning candidate, therefore, this petition has been filed to thwart the actual result. It was then submitted that recount can be done by the Court itself. It was, however, asserted that the recount could not take place on 9th and was adjourned to 10th when ballot box were desealed in the presence of Mr, Ahmad Hassan Khan, Chairman, Election Board and another contesting candidate including the representative of the writ petitioner Mr. Ljaz Ahmad, who refused to sign the documents mala fide.
All in all, the contents of writ petition were denied.
' Ms. Tehseen Irfan another contesting candidate, respondent No,5 submitted somewhat similar reply therein maintaining that remedy of appeal being available to the petitioner and the same having not been availed by him, he has no locus standi to invoke the extraordinary jurisdiction of this Court. Adjournment of case from 9-3-1999 to 10-3-1999 was attributed to the non cooperative attitude of the writ petitioner and it was submitted that the election record was desealed in the presence of Chairman, Election Board and other contesting parties and that the same was sealed in the presence of Chairman, Election Board and other respondents, thus, sanctity of election record remained intact. It was maintained that the Executive Committee of the Punjab Bar Council has every power to resolve the controversy in election matters. She also maintained that since the Chairman, Election Board has not finalised the result and the President of Lahore Bar Association has not announced the result of election. Therefore, the claim of the writ petitioner that she and respondent No,4 arc winning candidate is incorrect. The number of votes mentioned against each candidate were also in dispute. As far the proceedings before the Executive Committee of Punjab Bar Council, it was submitted that all the candidates were given full hearing where after an order was passed which is self-explanatory.
' The Executive Committee as also Ahmad Hassan Khan, respondents Nos.1 and 2 respectively filed written statements in this case, the tenor whereof may not be repeated here for in pith and substance they related the same matter as noted in the earlier narration of facts.
4. Record of Punjab Bar Council was also summoned and perused. Statement of Ahmad Hassan Khan, Advocate, Chairman of Election Board as recorded by the Executive Committee of the Punjab Bar Council may be reproduced here for it has far-reaching effect on the controversy:-- ' STATEMENT ON OATH OF MR. AHMAD HASSAN KHAN, ADVOCATE/CHAIRMAN, ELECTION BOARD ON S.A.: "I have acted as Chairman, Election Board. The Election Board conducted the election proceedings on 9-1-1999. On the day of poll at the close of election the Election Board counted the votes in the presence of the agents of all the candidates. I opened the boxes and started counting ballot papers in three groups. One was headed by me which pertains to that of President. The other by one of the Members of the Election Board pertaining to the Vice-President and the third for the office of Secretary and other offices. This was headed by the third Member of the Election Board. At the time of counting, one Member on behalf of the Election Board and another as representative of the candidates were present to calculate the number of votes cast in favour of each candidate. I finished the counting of votes for the office of President at about 7-00 or 7-30 p.m. Thereafter I helped the other groups which were counting for other offices and after the final count I mentioned the number of votes cast in favour of each candidate on the ballot book and got the signatures of the representatives of each candidate. While considering the votes cast in favour of the Secretary.
There was a dispute amongst the representatives of the candidates for the office of Secretary. It was at about 10-30 p.m. Or 11 '0 Clock in the night I tried to get the matter settled by checking of counting sheets and asked the representatives of the candidates to settle the dispute otherwise the ballot papers will be recount. The representatives did not agree, so I started re-counting after about 11-00 p.m. And it was completed at about 2'0 Clock in the night. The number of votes cast in favour of each candidate were mentioned in the ballot book. Two of the representatives of the candidates namely Mian. Tariq Ahmad and Ehtisham-ul-Haq Dar, signed opposite the number of votes mentioned but the representative of Mr. Abdul Latif Hanjra, refused to sign. I thereafter informing the candidates announced the result on the loudspeaker for the information of all the candidates and other Members and deposited the ballot box in the Library and kept the keys in my custody, and on Monday or Tuesday I took the ballot box and brought it in my office and it remained in my custody till the time I deposited here in the Office of the Punjab Bar Council, and here the box was sealed in the presence of the contesting candidates, and I have just now opened the box in their presence and it was intact; I was told on Monday, the 11th that some of the candidates were going to file appeal. So, I did not compile the final result except the one that I had announced on 10th January, 1999 at 2-00 a.m. Neither I prepared the final result nor handed over to the President in office. My reply to the grounds of appeal filed by the appellants may kindly be read as a part of my statement."
5. At the hearing, learned counsel for the parties reiterated the grounds as mentioned and incorporated in the petition, the comments offered thereon as also the written statements filed by them. In the arguments based thereon reference was also made to various precedents of this Court and Hob'ble Supreme Court of Pakistan to canvass the proposition raised in the petition and rebutted in the comments and written statements but the exercise appears to be much ado about nothing. It is the case of every contesting candidate that final result of the election had not been announced by outgoing President of the Bar Association for the Election Board itself had not prepared the said final result nor handed over the same to the outgoing President as required by the provisions of Rule 63 of the Memorandum of Association Rules, 1981 while the petitioners are silent on the subject and have simply contended themselves by pleading that they have secured the highest votes without asserting that official declaration of the same was also made. This omission on the part of the petitioner is enough to conclude that no official declaration of the result was made on the election day or even thereafter. Needless to add that the Chairman of the Election Board has also made a statement to that effect which is available in the record of the Executive Committee of the Punjab Bar Council and has been referred to above. It would be seen that Rule 63 afore noted is followed by Rules 64 to 67 which pertains to the elections petition which in its terms lay down that Executive Committee. Of the Punjab Bar Council shall not only be competent to entertain and hear an application complaining about the irregularities and illegalities committed during the course of election but shall also inquire into the allegations and determine the same after allowing full opportunities to the parties of being heard in the matter thereby declaring the election as a whole or that of an individual member as void under the circumstances as enumerated under Rule 65 ibid.
6. A plain reading of Rule 63 afore-noted and the juxtaposition of Rules 64 to 67 ibid would manifestly establish that the Executive Committee of the Punjab Bar Council could assume jurisdiction to hear and determine a complaint about the election only when the result had been prepared and declared by the Election Board constituted for the said purpose and announced by the outgoing President and not before that for otherwise it would like entertaining an election petition in the general elections without there being a notification of the elected candidate. In the instant case, since no final declaration of the result of the election had been made as stated by the Chairman of the Election Board in his statement recorded before the Executive Committee of the Punjab Bar Council as also maintained and impliedly admitted by all the contesting candidates, the respondents prematurely had recourse to the Executive Committee of the Punjab Bar Council who in turn proceeded to determine the application of the aggrieved candidates without considering that they could not assume jurisdiction in the matter unless the final result had been prepared and declared by the Election Board and announced by the outgoing President of the Punjab Bar Council, therefore the very assumption of the jurisdiction by the Executive Committee of the Bar Council was illegal, resultantly, the total proceedings taken by the Executive Committee of the Punjab Bar Council are without jurisdiction and of no legal effect. It can be so held on the weight of authority for the proposition that a writ can be issued if the order or act complained of is found to be wholly without jurisdiction.
' Ms. Tehseen Irfan relying on Rule 46 of the Memorandum of Association 1981 then contended that since the Election Board was to remain in office for three months and the said period having elapsed, the total election has become void and should he declared as such with the further directions that fresh elections be ordered to be held. The argument looked plausible on the first blush but on deeper probe nothing turned on the same. It was because of the election petitions filed by the various candidates that the proceedings thereon were started and since the Executive Committee of the Punjab Bar Council assumed jurisdiction in the case, therefore, the said Board could not perform its function within the statutory period. While it is true that Rule 46 ibid. Mandatorily declares that the Board shall remain in office for three months, it is equally true that it does not provide as to what would happen, if it fails to perform its legal duty within the period prescribed therefor. In such circumstances, the clause should be held to be directory rather than mandatory, therefore, it shall be so construed and the Board shall be reconstituted so as to finalize the result for the seats of Secretary and Vice-President even if the Board has to recount the votes for the said seats and in the said exercise the contesting candidates shall be heard and allowed opportunities as were originally allowed to them at the time of original count.
7. In result, the total proceedings being taken by the Executive Committee of the Punjab Bar Council are declared to be without lawful authority and of no legal effect. The matter is remitted to the Election Board which shall be reconstituted for the purpose of declaring the final result in regard to the seats of Vice-President and Secretary. The rest of the election in regard to other seats shall remain intact as none has proceeded to challenge the same nor there is any dispute in regard thereto. Again such a course is permitted by the provisions of rule 65 ibid wherein it is contemplated that the election as a whole or election of any individual member can be declared void. The Board so reconstituted shall prepare the final result and hand over the same to the President, who in turn shall announce it in accordance with the rules. The effort afore noted shall be completed within 10 days from today. The two writ petitions are disposed of in the terms noted above with no order as to costs.
' As far the criminal original, suffice it to observe here that since the total proceedings of the Executive Committee of the Punjab Bar Council have been declared to be without lawful authority and of no legal effect therefore, the criminal original application has become infructuous and is disposed of as such.