Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the election of Union Council No, 76 of District Okara, held on 2-7-2001 by which respondent No, 4 has been declared as returned candidate unofficially. The constituency consisted of 7 polling stations. The polling station at village (Puran) did not exist according to the polling scheme and the petitioner claims that he came to know about existence of the said polling station on election day. The polling at the above-said polling station started without polling agents of the petitioner, who were arranged at 10 a.m. and the polling staff forcibly at 11.00 a.m. expelled them from the polling stations and the polling was held one sided. The votes have not been correctly counted by the polling staff. The valid votes have been rejected and the invalid votes of the respondent No,4 have been counted and there were irregularities committed by the polling staff in counting of votes, hence, respondent No,2 be directed to recount votes of polling stations of the constituency by summoning the record.
2. Learned counsel for the petitioner contends that the bare perusal of polling result as Annexure-F of C.M. No, 4 alongwith this petition shows that at Polling Station Qasim Kay Mahar 972 votes were casted and all were counted and not a single vote was found as invalid. On the other hand, certificate issued by the polling staff shows that the candidate with the symbol of Hockey has received 414 votes while the candidate having symbol of Moon obtained 558 votes in his favour and 58 votes have been cancelled being invalid and not counted.
3. Similarly, result of Polling Station Government Girls High School Poran shows that 1075 votes have been found valid while 47 votes have been found as invalid and total 1072 votes have been polled while according to the page 15 of this petition the candidate with the symbol of Hockey has obtained 235 votes while the candidate with the symbol of Moon was polled 790 votes and none of the vote was found as invalid during the counting. Similarly, the result of polling booth Jameel Bazeika shows that 695 valid votes were counted while 26 votes were declared as invalid but at page 13 of this C.M. it has been shown that 67 invalid votes were polled at this station.
4. Learned counsel for the petitioner further contends that the petitioner had timely moved an application for re-counting before respondent No,2 which is dismissed in spite of the material illegality committed during the counting by the polling staff, and it is crystal clear that counting has not been done in accordance with law. It is further contended that this Court vide order dated 11-7- 2001 has directed that declaration of result shall be subject to final decision of this writ petition, hence, writ petition may be accepted by directing the respondents to re-count the votes or this petition may be remitted as election petition to the Election Tribunal as due to its pendency the petitioner could not file election petition.
5. On the other hand, learned counsel appearing on behalf of respondent No, 4 has opposed this petition on the ground that the petitioner had alternate remedy by filing election petition which has not been availed, hence, writ petition is liable to be dismissed. It is further contended that in Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 Supreme Court 396), it has been held that only remedy after declaration of the result and issuance of notification is by filing the election petition and writ petition is not maintainable and is liable to be dismissed.
6. I have heard the learned counsel for the parties and also perused the documents attached with this petition. This writ petition was filed in this Court before the announcement of official result and before issuance of notification about the success of respondent No, 4 and in the main case parawise comments and report was called for and regarding stay matter this Court made the following order:- "Notice. In the meantime, any declaration of result, shall be subject to final decision of this writ petition."
It is pertinent to mention here that number of adjournments have been sought and the case was adjourned on number of occasions. Learned counsel for the petitioner has drawn my attention to the illegality and irregularity committed by the polling staff during the counting of votes at all the Polling Stations especially at polling stations Qasim Kay Mahar, Poran and polling staff Jameel Bazedika. The certified copies of the result have been appended with this petition, which on the face of it are contradictory with each other. For instance it has been shown in the official result that not a single vote of Qasim Kay Mahar was found invalid and total votes were polled as 972 which were found valid but accorcding to the result of said polling station which is at page 17 of this petition, 58 votes have been found invalid. Similarly, at Polling Station (sic) Jameel Bazedika, total 695 votes were polled as valid votes and 26 votes have been found as invalid but in the result announced at the polling station appended at page 13, it was found that 67 invalid votes were found during the counting. Similarly, at Polling Station Government Primary School Poran 1025 valid votes were polled and 47 votes were found as -invalid votes but the Presiding Officer at the time of announcement of result showed that not a single invalid vote was found during the counting.
These certificates have been duly issued by the polling officials are signed, hence, there is mistake on the face of the record which shows that counting has not been done properly by the polling staff and there is clear cut contradiction in the official result and the certificates issued by the polling staff of different polling stations, hence this is a fit case in which this Court can interfere in writ jurisdiction. Reliance is placed on Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N A. 158, Naushero Feroze and others (1994 SCM R 1299). the relevant portion is reproduce as under for ready reference:- "The upshot of the above discussion is that generally in an election process the High Court cannot interfere with by involving its Constitutional jurisdiction in view of Article 225 of the Constitution.
However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court."
7. Hence this Court due to the mistake and illegality apparent on the record has no alternate except to interfere in writ jurisdiction in spite of the availability of the remedy for filing of election petition but this Court Cannot itself decide the same case as in the peculiar circumstances of the case the re-counting is only solution for resolving the issue. Therefore, it is considered appropriate to remit this petition to Election Tribunal for treating the same as an election petition and decide the same within 60 days from the receipt of this order after affording equal opportunities to both the parties as the writ petitioner could not file the election petition due to the pendency of this writ petition and the notification vide order dated 11-7-2001 was subject to final decision of this writ petition. Order accordingly.
8. In the above said terms this petition is disposed of.