' GHULAM RABBANI, J Petitioner filed this petition on24-10-2002 with the following prayers:--
(i) Declare that after issuance of a Gazette Notification declaring the petitioner to be the returned candidate in respect of PS-11,Shikarpur-Ill, the Election Commission is devoid of the powers to alter the same under section 103(AA) and such powers areonly and exclusively available with the Election Tribunal.
(ii) Restrain the Election Commission of Pakistan, their agents, their servants, and all persons acting through or under them from passing any adverse order against the petitioner in respect of the Notification dated 20th October, 2002 declaring the petitioner to be the Returned Candidate from PS-11, Shikarpur III, Sindh.
(iii) Grant cost of the petition.
(iv) Grant any other relief(s) as deemed fit and proper in the circumstances of the case.
2. On 25-10-2002 when this petition came up for hearing Mr. Raza Hashmi, Advocate claiming himself to be the Advocate for respondent No,6 informed that the matter was already fixed on that day at 3-30 p.m. Before the Election Commission at Islamabad, as such, it was observed that the proper course for the petitioner was to appear before the learned Election Commission and the matter was adjourned.
3. On 30-10-2002, on behalf of petitioner, a Miscellaneous Application No,4648 of 2002 was tiled seeking permission to amend the petition as per the draft (captioned as "amended petition"), ostensibly in view of the fact that on 28th October, 2002, learned Election Commission passed order whereby the Gazette Notification No,8.2(35)/2002-Corp dated 20th October, 2002 to the extent of petitioner declaring him as a returned candidate from PS-11 Shikarpur-III was recalled and office was directed to issue a corrigendum notifying the same of Agha Tariq Khan as Returned Candidate from the said Constituency as he stood successful in the election by securing 17575 votes as against the petitioner who secured 15900 votes.
4. In the draft amended petition following prayer was made:--
(1) Declare that after issuance of a Gazette Notification declaring the petitioner to be the returned candidate in respect of PS-11, Shikarpur-HI, the Election Commission is devoid of the powers to alter the same under section 103(AA) and such powers are only and exclusively available with the Election Tribunal.
(1-A) Declare that after the issuance of Gazette Notification declaring the petitioner to be returned candidate in respect of PS-11, Shikarpur-III, the Election Commission of Pakistan was and is devoid of the power to alter the same under section 103(AA) and such powers are only and exclusively available with the ElectionTribunal and hence no Corrigendum could be issued reversing the Election of the petitioner as the Returned Candidate without framing issues and without recording such evidence as warranted by law.
(II) Restrain the Election Commission of Pakistan, their agents, their servants, and all persons acting through or under them from passing any adverse order against the petitioner in respect of the Notification dated 20th October, 2002 declaring the petitioner to be the returned candidate from PS-11 Shikarpur-III, Sindh.
(II-A) Suspend the operation of the order dated 28th October, 2002 passed by the Election Commission of Pakistan recalling the earlier Gazette Notification dated 20th October, 2002 to the extent of the petitioner as the Returned Candidate from PS-11, Shikarpur-III and directing the issuance of a corrigendum notifying the name of respondent No,6 as the Returned Candidate.
(II-B) Declare the Notification dated 20th October, 2002 in respect of the petitioner to continue to hold the field whereupon the petitioner continues to be the returned candidate from PS-11, Shikarpur-III.
Alternatively ' Direct the Election Commission of Pakistan to issue Notification reversing the Notification issued in compliance of the orders dated 28-10-2002 and declare the petitioner to be the Returned Candidate.
(III) Grant cost of the petition.
(IV) Grant any other relief(s) as deemed fit and proper in the circumstances of the case.
5. On 1-11-2002 when the matter came up for hearing, it was directed after hearing learned counsel for the petitioner, that notice be issued to learned D.A.-G. And to learned Advocate-General, Sindh to ascertain the fact in the matter. Ostensibly, the object was to bring on record all relevant facts.
6. In the above perspective of the matter, we have heard learned counsel for the parties and with their assistance we have gone through the material made available before us.
7. Relevant facts, in brief, are that petitioner and the respondentNo,6 contested the elections from PS-11, Shikarpur-III. The name of thepetitioner was published on 20th October, 2002 in the official Gazette as a Returned Candidate from the aforementioned constituency, however, on 22nd October, 2002 i,e, after publication of the aforementioned notification the Returning Officer is said to have informed the Election Commission of Pakistan that respondent No,6 Agha Tariq Khan had secured first position by securing 17575 votes inclusive of one postal vote and the petitioner, Imtiaz Ahmed Sheikh alias Tariq Shaikh, secured second position by obtaining 15900 votes. In such situation, learned Election Commission sent for report from the Provincial Election Commission, Sindh who, vide his letter dated 22-10-2002, confirmed the report of the Returning Officer and while doing so expressed that he was of the view that there was a bona fide typographical mistake which needed consideration for correction.
8. As it appears, respondent No,6 also moved an application to the effect that he was the winning candidate according to the preliminary results and prayed for issuance of corrigendum to rectify the error and also prayed for notifying his name as returned candidate from the abovementioned constituency.
9. On such matter so placed, learned Election Commission issued notice to the contesting candidates and the Returning Officer and after hearing learned counsel for the petitioner, Election Agent of respondent No,6 and the Returning Officer who had also brought relevant record passed on 28-10-2002 the above order (a copy whereof was supplied by learned counsel for petitioner) and in pursuance of said order, name of respondent No,6 as a returned candidate was published on the same day in the Gazette of Pakistan vide Notification No .F .2(37)/2002-Cord.
10. Mr. Muhammad Akram Shaikh, learned counsel for the petitioner, in his arguments heavily criticised the conduct of learned Returning Officer concerned and alleged that he was in collusion with respondent No,6 to whom, the former extended undue benefit at all stages. He argued that he had placed evidence before learned Election Commission that the air ticket of the Returning Officer was purchased by the cousin and Election Agent of respondent No,6 and that both of them had travelled to Islamabad in the same plane sitting side by side on two adjoining seats therefore, learned Election Commission ought not to have believed the report and statements of officer of such questionable character in view of his biased conduct. He argued that even otherwise Returning Officer is a part and parcel of Election Commission and, in fact, relying on the reports of its own functionary the Election Commission, by passing the order dated 28-10-2002, had decided its own cause. He expressed that it is well-settled principle of jurisprudence thatno one could be a judge of his own cause. Mr. Sheikh, next, contended that the name of petitioner as a returned candidate was duly published in the official Gazette which needed to be deemed as a terminus quo beyond which learned Election Commission having become functus officio could not travel to exercise powers to order for issuing corrigendum, moreso, when that it was not a fit case for interference the same apparently an election dispute. He argued that the order so passed by learned Election Commission amounted to a review which was, too, not permissible under the law as the Election Commission Order, 2002 or the Representation of People Act, 1976 did not confer any such power on the Election Commission. He argued that a full-fledged enquiry, in factual effect, was conducted by learned Election Commission which was beyond its scope and jurisdiction and it ought to have refused to proceed with the matter and change the result; instead the right course available was to have directed respondent No,6 to approach the Election Tribunal appointed for the said purpose in an eventuality where intricate investigation into disputed questions of facts including recount of ballot-papers and other issues were involved which could only be resolved by framing issues and recoding evidence by the Election Tribunal in an Election Petition under section 52 read with sections 68 and 69 of the Representation of the People Act, 1976.
He placed reliance on the following cases:-- ' Emmanual Masih v. The Punjab Local Councils Election Authority and others 1985 SCMR 729, Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447, Shaikh Mushtaq Ali, Advocate v. Khalid Anwar and others 1988 CLC 1138, Muhammad Yousaf v. The Government of Pakistan and others 1992 SCMR 1748, Ghulam Mustafa Jatoi v. Additional District Judge and others 1994 SCMR 1299, Ch. Nazir Ahmed and others v. Chief Election Commissioner and others PLD 2002 SC 184.
11. Mr. Raja Qureshi, learned Advocate-General, Sindh, argued the case on the following legal propositions framed by him which were placed on record. The same are as under:--
(a) Whether a corrigendum notifying the name of the respondent No,6 could have been issued, once the notification of the petitioner as returned candidate was holding the field and the Election Tribunals had been constituted to decide the election disputes?
(b) Whether issuance of a corrigendum emanating from an electiondispute could be issued without framing of issues, recording of evidence as a full-fledged trial?
(c) Whether scope; and application of corrigendum is restricted to contain correction of mistakes or to supply omission in the document earlier issued or the same shall apply to the extent of cancelling the previous document or rescinding or reversing the result altogether as has been done in the instant case?
(d) Whether power of review for issuance of a corrigendum reversing the result could be done by the Election Commission of Pakistan without conferment of jurisdiction by the statute itself i,e, the Election Commission Order, 2002 (Chief Executive's Order No,1 of 2002) in the absence of such powers available under the statutes conferred upon the Election Commission itself?
(e) Whether the provisions of Article 225 comes into operation once Election Tribunals are notified and scope of section 103-AA of the Representation of the People Act, 1976 is limited and resorting to do complete justice under section 6 of the Election Tribunal instead of usurping the jurisdiction of the Tribunal by the Election Commission of Pakistan?
' Elaborating the case on above lines Mr. Raja Qureshi placed reliance on the cases of Government of Pakistan v. Sikandar Khan and others PLD 1987 Pesh. 68, Election Commission of Pakistan v.
Javaid Hashmi PLD 1989 SC 396, Messrs Middle East Bank Ltd. v. Zubair Ahmed Khan Afghani 1990 MLD 909, Syed Muhammad Khalilur Rehman Chishti v. Shamshad Khan and others 1993 MLD 1225 and an unreported judgment of Lahore High Court in Writ Petition No,18942 of 2002.
12. Mr. Nadeem Azhar Siddiqui, learned Deputy Attorney-General, while adopting the above arguments of learned Advocate-General, Sindh further contended that learned Election Commission could not exercise its powers under section 103-AA of Representation of People Act, 1976 after publication of notification in Government Gazette declaring. The petitioner as a returned candidate moreso in view of the fact that for the purposes of the said exercise Election Tribunals were constituted. He further contended that learned Election Commission on the basis of application moved by respondent No,6 could not have taken up the matter as the said respondent had a remedy available in shape of Election Petition before the Election Tribunal. He has placed reliance on (1) Muhammad Ayoob v. Election Commission of Pakistan PLD 1991 Quetta 51.
13. Mr. Aitzaz Ahsan, learned counsel for respondent No,6, submitted in his arguments that there was nothing available either with the petitioner or with the Returning Officer or with the Provincial Election Commissioner, Sindh to indicate that petitioner had secured the first position except that a manipulated result in some surreptitious manner was managed to be placed before the Election Commission though the preliminary results received in the Commission on 11-10-2002 original results after consolidation in Form No,XVI and the result of count in Form No,XVII produced before Election Commission clearly bore the testimony that respondent No,6 had secured first position and the Petitioner had secured second posit on therefore, respondent No,6, in the first instance, ought to have been notified as returned candidate. Mr. Aitzaz, in support of his contention referred to the report of Returning Officer in his letter dated 19-10-2002 addressed to the Secretary, Election Commission of Pakistan wherein respondent No,6, as returned candidate was shown to have furnished election expenses. He submitted that petitioner never considered himself to be a winning candidate for the simple reason that he had not filed the expenses of the election as per requirement of section 42(3-A) of the Act, and had he done so the above letter would have mentioned his name and not of respondent No,6. He argued that the consolidation of the result is not based on the recount of the votes and that learned Election Commission, by passing the order dated 28-10-2002, only corrected the mistake to do complete justice which was in no way an exercise of powers of review. He submitted that it was the bounden duty of learned Election Commission to conduct the election fairly, honestly, in transparent manner and in accordance with law and that the passing of order dated 28-10-2002 was a part of process of the election directed towards that end for which learned Election Commission was the sole judge of the fact. He further submitted that by passing the said order only an apparent mistake was rectified in order to achieve the objects of fair and transparent elections to do the complete justice. He vehemently controverted that the proceedings before learned Election Commission which led to the passing of order dated 28-10-2002 were an exercise to decide an election dispute so also if such exercise could be termed so in view of case of Darayus Pestonjj v. Namsing and 2 others 1998 CLC 921 and Abdul Waheed Zaman Qureshi v. The Election Authority and others 1999 CLC 112. Mr. Aitzaz lastly submitted that learned Election Commission by passing the above order had not transgressed its powers. In support of his arguments, he submitted a number of documents with copies thereof supplied to learned counsel for other parties,
14. We have given our due attention to the arguments of learned counsel for the parties and among other material made available beforeus; with assistance of learned counsel, we have examined the order dated 28-10-2002 which has been sharply criticised before us. The events which led to the passing of the said order passed by the Election Commission briefly stated, reflect that according to the preliminary results which were received in the Commission through telefax/telephone on 11-10-2002, respondent No,6 Agha Tariq was shown to have won the elections from PS-11, Shikarpur-III by securing 17574 votes as against that petitioner lmtiaz Ahmed alias Tariq Shaikh who was shown to have secured second position by obtaining. 15900 votes, however, on the basis of result of count in Form XVII, said to have been sent by the concerned Returning Officer, name of petitioner as a returned candidate from the above constituendy was published in the official Gazette by the Commission as in the said form it was shown that respondent No,6 had secured less votes viz. 14996. It will be pertinent to note that no mode, for namesake, is mentioned through which such result could, as allegedly sent or transmitted by the Returning Officer, reach learned Election Commission. Be that as it may, as is evident from the above order, the said notification was published on 20-10-2002 where after learned Returning Officer by his letter dated 22-10-2002 clarified the position who by making such clarification, in factual effect, controverted the said report to the effect that respondent No,6 had secured less votes' than the petitioner. In his report, it may be noted, in categorical terms, he informed learned Commission that respondent No,6 by securing 17575 votes had secured first position whereas, petitioner secured second position by obtaining 15900 votes and that the position, according to said report remained the same even after consolidation on 12-10-2002. Learned Returning Officer further stated in his report that he had already submitted unofficial result to the Provincial Election Commissioner, Sindh on 11-10-2002 at 10-45 a.m. Through fax so also the results as were consolidated vide Forms Nos.XVI and XVII were delivered by hand to the concerned officer namely Mr. Ghulam Qadir Solangi, Assistant Election Commissioner, Shikarpur for onward transmission to Election Commission of Pakistan and to the Provincial Election Commissioner. The order dated 28-10-2002 also reveals that Provincial Election Commissioner, Sindh on the same day viz. 22-10-2002 on being asked by the Election Commission, confirmed the above position and expressed in his letter that there was a bona fide typographical mistake needing consideration for correction. Learned Election Commission with an object to do complete justice heard the parties and perused the relevant documents.
15. Further, it appears from the aforementioned order that learned Election Commission after questioning the learned Returning Officer has observed as follows:-- "Mr. Anarid Ram D. Sairani, the Returning Officer, PS-11,Shikarpur III stated that he prepared three documents during the conduct of the election in the said constituency. First document was prepared on 11-10-2002 while preparing the statement of preliminary results, according to which Agha Tariq Khan secured 17574 votes whereas Mr. Imtiaz Ahmed alias Tariq Shaikh secured 15900 votes. Second document was result of the count contained in Form XVII prepared after consolidation of results, issued on 12-10-2002, according to which Agha Tariq Khan secured first position with 17575 votes whereas Mr. 'Imtiaz Ahmed alias Tariq Shaikh stood second by obtaining 15900 votes. One vote was- added to the votes obtained by Agha Tariq Khan after consolidation.
The third document prepared by the Returning Officer was Result of the Count contained in Form XVI, which also indicated the same position.
' As such, having heard all the concerned as above learned Election Commission was of the view that 'the sum and substance of the controversy did not relate to election dispute but issuance of corrigendum of notification which was issued earlier by Commission and that it suffered from an error patent on the fact of record, therefore, directed the issuance of notification notifying the respondent No,6 as a returned candidate.
16. To sum up, having undertaken the exercise as above, what we feel to observe is that there is no cavil with the well-settled proposition of law that an election dispute within the meaning of section 52 read with sections 68 and 69 of the Representation of the People Act, 1976 falls within the exclusive jurisdiction of an Election Tribunal to be appointed for the said purpose by the Commission. However, the point which requires consideration will be if a mistake whether bona fide or unintentional on the part of the Returning Officer or any other functionary of Election Commission or otherwise such mistake found apparent on record having occurred for any other reason going against the object of holding just, fair, honest and transparent election declaring an incorrect result is deemed to be an election dispute. Also, a question arises whether learned Election Commission has no jurisdiction to correct or rectify such mistake apparent on the face of record. Having considered the arguments of learned counsel for -parties and on examination of the order dated 28-10-2002 so also the case-law Cited above, we are of the considered view that the reply to the above questions is in the negative. In this view, we are fortified by the case of Abdul Waheed Zaman Qureshi (supra) decided by a Division Bench of Lahore High Court in which it has been observed, rightly so, as follows:-- "4. It is clear from reading of provision of law that it is the duty of respondent No,1 to ensure that an election is conducted honestly, justly, fairly and in accordance with the provisions of the Ordinance and rules framed thereunder. This included declaration of result on the basis of votes polled. The first notification in favour of the appellant was declared on the basis of incorrect data, therefore, it could not be treated as a result of election. The respondent No,1 after verifying the contention of the respondent No,5 proceeded to hold that respondent No,5 had, in fact, obtained 962 votes, therefore, it rightly directed cancellation of the first notification in favour of the appellant and issuance of fresh notification. This was not an election dispute within the jurisdiction of an Election Tribunal.
6. In the case of Ch. Abdul Hamid referred to by the learned Single Judge in Chambers it was also one of the questions whether candidate securing less votes or the one who had secured the highest votes should be asked to invoke jurisdiction of the Election Tribunal. The Constitutional jurisdiction being the jurisdiction of equity and good conscience, therefore, the appellant should file the election petition against the election of respondent No,5. We may observe that the Presiding Officer did not compile the result correctly and faithfully. The result compiled by him was patently incorrect, incomplete, therefore, could not have furnished basis for issuance of notification, dated 23rd of May, 1998. The respondent No,1 in exercise of jurisdiction under section 17(1) of the Ordinance, 1979 correctly inferred and ordered issuance of fresh notification."
17. In view of the above, we do not find any mistake in the abovementioned order, dated 28-10-2002 passed by learned Election Commission.
18. From the foregoing pares. It is evident that a fresh Notification No,F.(37)/2002-Cord dated 28-10- 2002 was published in the Gazette of Pakistan of the same date, whereby respondent No,6 has been declared as returned candidate. A copy of this notification is available on record. We would, therefore, refrain ourselves from entering into detailed discussion on the other point raised by learned counsel for the parties lest it may cause prejudice to any party in any litigation, at subsequent stage. This petition is disposed of accordingly in view of the observations made above.
We shall however, leave it open for the petitioner to approach the Election Tribunal if he feels aggrieved by the notification dated 28-10-2002 notifying respondent No,6 as a returned candidate, more so, the contents of his pleading reflect that he has taken such extra grounds which could be basis of his case for an election petition under section 52 of the Act (ibid).
' Listed application also stands disposed of in view of above.