' The petitioner on the one hand and private respondents on the other contested election to the seat of Provincial Assembly (Punjab) PP-205 (Multan According to the petitioner as per result tabulated by the Returning Officer on 12-10-2002 and announced by respondent No,2 he was declared elected with 25,293 votes while the tally of respondent No,3 was 25135 votes. This result was revised by respondent No,9 and according to the revised statement of count respondent No,3 was shown to have bagged 25,902 votes. This writ petition was filed in this Court on 23-10-2002.
Some objections were raised by the office and same were disposed of on 23-10-2002 . The case came up on 24-10-2002 when after noting the contention of the learned counsel for the petitioner notice'was issued for today.
2. Meanwhile the Election Commission for Pakistan issued a notification declaring respondent No,3 to be returned candidate from the said seat.
2-A. Learned counsel for the petitioner contends that. Election Commission of Pakistan could not have directed Returning Officer to retabulate the results and only recount could have been ordered. Learned counsel for respondent No,3 on the other hand contends that the results have been notified and since Election Tribunals have been constituted, the matter can be decided only in election petition.
3. Learned counsel for the petitioner rejoins by citing cases of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/ Returning Officer 1994 SCMR 1299 and Sardar M. Jamal Khan Leghari v.
Sardar Zulfiqar Ali Khan Khosa PLD 1997 Lah. 250 to state that in the circumstances of this case election petition would not be adequate remedy.
4. I have given some thought to the respective contentions of the learned counsel for the parties.
Before I proceed further I may state here that Mr. Muhammad Akram Sheikh, learned counsel for respondent No,3 has tried to explain that the said retabulation was ordered on legal and equitable grounds and that a clerical error was corrected. Learned counsel for the petitioner on the other hand has tried to argue that several other violations of law and rules had been committed in the course of election proceedings that may necessitate of further correction/ amendment of the result. However, for order I propose to pass I have restrained myself from commenting upon respective pleas of the learned counsel for the contesting parties lest the case of any of the parties before appropriate forum may be prejudiced.
5. It is admitted position that the result of respondent No,3 has been notified by the Election Commission of Pakistan and further that the Election Tribunals have also been constituted. Article 225 of the Constitution ordains that all matters pertaining to the result of election are to be dealt with by \the Election Tribunal to be constituted. In a recent judgment, although in the matter of Local Government Election the provisions of said Article 225 also came up for consideration before the Honourable Supreme Court of Pakistan in the case of Ch. Nazir Ahmad and others v. Chief Election Commissioner and 4 others PLD 2002 SC 184. It will be noted that the said case of Ghulam Mustafa Jatoi 1994 SCMR 1299 was also considered and their lordships observed that the election petition is only appropriate remedy. It Js true that the principles laid down in the case of Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396 were held to be not applicable in the said cage of Ghulam Mustafa Jatoi. However, it was made clear that it is not intended to overrule the majority view in the said case of "Javaid Hashmi". Now what happened in the said case of "Ghulam Mustafa Jatoi" was that the order challenged was one passed by Returning Officer who proceeded to drop the name of the said appellant from the published list of candidates on 15-9-1993. Now according to the schedule for the said elections the last date for filing of appeal against the rejection of nomination papers was 5-9-1993 while last date for deciding appeal by the concerned Tribunal was 12-9-1993. It was in the said circumstances that it was held that since the appellant would not at all be in a position to file an election petition or for that matter the said appeal before the said Tribunal, writ petition would be the only adequate remedy. Similarly in the circumstances of said case of Sardar M. Jamal Khan Leghari PLD 1997 Lah.
250 it was again a case wherein order passed by the Returning Officer and affirmed by the Election Tribunal accepting the nomination papers of opposing candidate was challenged. Now it was held that election petition would not be proper remedy, as it cannot be said that the said opposing candidate will succeed and his nomination could be challenged in the election petition. This is not the case here. A pure question of fact is involved which better be resolved in the election petition.
This writ petition is accordingly disposed of with the observations that the petitioner may approach learned Election Tribunal and in the said ejection petition he will be at liberty to raise all legal and factual objections as are available to him including one raised in this writ petition. No order as to costs.