2005 PLP 419 (YLR)
Dr. AMJAD MUSTAFA and another‑‑‑Appellants Versus MUHAMMAD FIAZ and 9 others‑‑‑Respondents
| Citation | 2005 PLP 419 (YLR) |
| Forum / Court | Lahore |
| Bench Members | Ch. Ijaz Ahmad and Mian Hamid Farooq, JJ. |
| Parties | Dr. AMJAD MUSTAFA and another‑‑‑Appellants Versus MUHAMMAD FIAZ and 9 others‑‑‑Respondents |
| Primary Law | (e) Constitution of Pakistan (1973)‑‑‑, (b) Interpretation of statutes‑‑‑, (c) Punjab Local Government Elections Rules, 2003‑‑‑ |
Q1: What are the key laws and sections cited in 2005 PLP 419 (YLR)?
This judgment primarily cites: (e) Constitution of Pakistan (1973)‑‑‑, (b) Interpretation of statutes‑‑‑, (c) Punjab Local Government Elections Rules, 2003‑‑‑, (d) Punjab Local Government Elections Rules, 2003‑‑‑, (a) Punjab Local Government Elections Rules, 2003‑‑‑ as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2005 PLP 419 (YLR)?
The case was heard and decided by the Lahore bench comprising: Ch. Ijaz Ahmad and Mian Hamid Farooq, JJ..
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2005 PLP 419 (YLR) (Dr. AMJAD MUSTAFA and another‑‑‑Appellants Versus MUHAMMAD FIAZ and 9 others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Dr. M. Mohy‑ud-Din Qazi and Muhammad Kazim Khan for Appellants.
- S. M. Masud for Respondents.
- Dates of hearing: 28th September, 6th, 7th and 12 October, 2004.
- Muhammad Kazim Khan, Advocate, submits in rebuttal that the prayer clause of the Constitutional petition read with para.1 of the impugned judgment clearly show that both are contradicting each other.
- Saeed‑ul‑Hassan Jaffari, Advocate, also submitted application with regard to the change of result under duress with the connivance of the Presiding Officer before the Returning Officer on 29‑3‑2004, which is at page 31. Respondents also submitted application before the Returning Officer with the prayer that the statement of count having been submitted by all the Presiding Officers on 28th of March, 2004, may be consolidated in terms of the rule 40 of the Election Rules and simultaneously it may be conveyed to the Election Commission in terms of rule 42 thereof, so that the Gazette Notification may be made. The Returning Officer accepted the application of the appellant and has given findings that the respondents secured 120 votes instead of 469 votes at Polling Station No.5, which are at page 34. The Returning Officer also sent reference to the Provincial Election Commission through the District Returning Officer on 30‑3‑2004, which is at page 39 of the paper book with the prayer to advise in the light of the aforesaid circumstances. The Returning Officer passed the following order on 31‑3‑2004:‑‑
- 13. In view of the peculiar circum stances of the case we have asked the counsel for the parties qua recounting of the votes with regard to Polling Station No.5 in question, which was not accepted by the counsel for respondents Nos.1 and 2. As mentioned above, the circumstances of the case in hand are of such a nature that it was appropriate for the Returning Officer to recount ballot papers of the polling station in question in presence of the parties. The Returning Officer has not adopted this method to resolve the controversy, which tantamounts refusal to exercise statutory power. We are of the view that it is in the interest of both the parties to resolve the controversy in the interest of justice and fair play to direct the Returning Officer to recount votes in presence of the parties ands thereafter law will take its own course on account of the result of the recounting, therefore, we direct the Returning Officer to recount the votes of Polling Station No.51 within 15 days from the date of, receipt of the judgment after notice to the parties and thereafter proceed in the matter in accordance with law.
Headnotes / Summary
‑‑‑‑Rr.39(9) & 40‑‑‑Law Reforms Ordinance (XII of 1972), S.3(2)‑‑‑Intra‑Court appeal‑‑‑Maintainability‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Proceedings at the close of the polls‑‑‑Consolidation of results ‑‑‑Vires of result prepared by the Presiding Officer was challenged under Constitutional jurisdiction before High Court which was subsequently changed by the Returning Officer and also changed the declaration of result prepared by the Returning Officer on the basis of the results submitted by the Presiding Officers‑‑ Returning Officer was duty bound to consolidate the results of all the Polling Stations in view of R.39(9), Punjab Local Government Elections Rules, 2003‑‑‑There being no appeal, revision or review against the order of the Returning Officer under the Punjab Local Government Elections Rules, 2003, Intra‑Court appeal against the judgment passed under Constitutional jurisdiction was maintainable‑‑‑Every provision, which had the effect of taking away the right of appeal is to be construed strictly and in case there is any doubt as to the availability of such right that doubt has to be resolved in favour of the existence of the right. Shafique Ahmad Butt v. Punjab. Labour Appellate Tribunal and others 1983 CLC 1352 and Messrs Modern Continental Business (Pvt.) Limited through Chief Executive v. Government of Pakistan through Secretary, Ministry of Finance, Revenue and Economic Affairs, Pak Secretariat, Islamabad and another 2002 CLC 233 ref. ‑‑‑‑Every provision, which had the effect of taking away the right of appeal is to be, construed strictly. ‑‑‑‑Rr.39 & 40, Form XIII & Form Appendix B‑‑‑Constitution, of Pakistan 1973), Art.199‑‑‑Law Reforms Ordinance IXII of 1972), S.3‑‑‑Intra‑Court appeal‑‑ Consolidation of results‑‑‑Documents pertaining to number of valid votes, if read as a whole, required to decide the controversy between the parties after recording the evidence, which was not permissible in the eye of law in Constitutional proceedings under Art. 199 of the Constitution‑‑‑High Court (Single Judge) therefore, was not justified to resolve the disputed questions of facts while exercising Constitutional jurisdiction. Muhammad Younus Khan and 12 ethers v. Government of N.‑W.F.P., through Secretary, Forest and Agriculture Peshawar and others 1993 SCMR 618 ref. ‑‑‑‑Rr.39 & 40‑‑‑Consolidation of results‑‑ Circumstances in the present case were of such a nature that it was appropriate for the Returning Officer to recount ballot papers of the Polling Station in question in presence of the parties‑‑‑Returning Officer had not adopted such method to resolve the controversy, which would tantamount to refusal to exercise statutory power‑‑‑High Court, in the interest of justice and fair play directed the Returning Officer to recount votes within 15 days in presence of the parties and thereafter law would take its own course in the light of the result of the recounting. ‑‑‑‑Art.199‑‑‑Constitutional petition‑‑ Maintainability‑‑‑Election dispute‑‑ Constitutional petition was fled before the result of the election was declared in the official Gazette‑‑‑Constitutional petition being the only remedy available to the aggrieved party was maintainable‑‑ Objection qua maintainability of the Constitutional petition in presence of alternative remedy of election petition was repelled having no force.
Judgment & Decree
Candidate valid votes (1) Raffat Ullah 136 Khan (2) M. Fayyaz 469 (3) Amjad Mustafa 64 (7) Total 669 (8) No. of votes 669 excluded from the count (9) Total No of 353 votes polled (total of items Nos.7 and 8) Page 29 (Statement of count). (1) Raffat Ullah Basket 36 Khan (2) Muhammad Crescent 120 Fayyaz (3) Amjad Hockey 64 Mustafa Rule 39 sub‑Rules (1), (2), (9) and (15) reads as under:‑‑ "
39. Proceedings at the close of the poll:‑‑‑ (1) The Presiding Officer shall count the votes immediately after the close of the poll, in the presence of such of the contesting candidates, election agents and polling agents as may be present. (2) The Presiding Officer shall give such of the contesting candidates, election agents and polling agents as may be present, reasonable facility of observing the count and give them such information with respect thereto as can be given consistent with the orderly conduct of the count and the discharge of his duties in connection therewith. (9) The Presiding Officer shall, immediately after the count, prepare a statement of the count in Form XIII showing therein the number of valid votes polled by each contesting candidate and the ballot papers excluded from the count. (15) After the close of the proceedings under the foregoing sub rules, the Presiding Officer, shall, in compliance with such instructions as may be given by the Returning Officer in this behalf, cause the packets, the statement of the count and the ballot paper account prepared by him to be sent to the Returning Officer together with such other records as the Returning Officer may direct. Rule 40 sub‑Rules (1), (2) and (6) reads as under:‑‑
40. Consolidation of radius: (1) The Returning Officer shall consolidate in Form XV the results of the counts furnished by the Presiding Officer. (2) The Returning Officer shall give the, contesting candidates and their election agent a notice in writing of the day, time and place for the consolidation of the results. (6) The Returning Officer shall not recount the valid ballot papers in respect of any polling station unless:‑‑ (i) The count by the Presiding Officer is challenged in writing by a contesting candidate or his election agent and the Returning Officer is satisfied about the reasonableness of the challenge; or (ii) he is directed to do so by the Chief Election Commission or the District Returning Officer; Rule 42 Sub‑Rules (1), (3), (4) and (5) read as under:
42. Declaration of results:‑‑‑ (1) Save as provided in sub‑rule (4) of rule 39 the Returning Officer shall, after consolidation of result under rule 40, or after the drawl of the lot under rule 41, declare by public notice the names of such contesting candidate, or candidates in case of multi‑member wards as have or are deemed to have received the highest number of votes. (3) The Returning Officer shall, immediately after publication of the notice under sub‑rule (1), submit to the District Returning Officer, a return of the election in Form XVI together with a copy of the consolidated statement. (4) In case of elections of Nazim and Naib Nazim if the joint candidates of a Zila Council securing highest votes failed to secure the majority of the total votes of the members of Union Council in the District the names of the joint candidates securing the highest and the second highest votes shall be sent to the Chief Election Commissioner, immediately after the consolidation of results in Form XVI. (5) The District Returning Officer shall arrange to have names of the returned candidates of an electoral ward in a council published in the official Gazette:
10. We would firstly like to decide preliminary objection qua the maintainability of the ICA in view of proviso to section 3(2) of the Law Reforms Ordinance, 1972, raised by the learned counsel for the respondents. Respondents have basically challenged the vires of the result prepared by the Presiding Officer on 28‑3‑2004, which was subsequently changed by the Returning Officer vide order dated 30‑3‑2004, and also changed the declaration of result prepared by the Returning Officer on the basis of the results submitted by the Presiding Officers on 29‑3‑2004, which was revised on 31‑3‑2004. The Returning Officer is duty bound to consolidate the results of all the polling stations in view of rule 39(9), therefore, there is no appeal, revision or review of the Returning Officer under the provisions of the Election Rules in question. It is settled rule of interpretation, of statute that every provision which has the effect of taking away the right of appeal is to be construed strictly and in case there is any doubt as to the availability of right of appeal that doubt be resolved in favour of the existence of right of appeal. In arriving to this conclusion we are fortified by the following judgments:‑‑ (1) Shafique Ahmad Butt v. Punjab Labour Appellate Tribunal and others 1983 CLC 1352. (2) University of the Punjab and 2 others v. Rehmatullah PLD 1982 Lahore 729. (3) Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and another PLD 1966 SC 276. (4) Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman/M.D. Karachi PLD 2001 SC 182. (5) Messrs Modern Continental Business (Pvt.) Limited through Chief Executive v. Government of Pakistan through Secretary, Ministry of Finance, Revenue and Economic Affairs, Pak Secretariat, Islamabad and another 2002 CLC
233. It is pertinent to mention here that the Honourable Supreme Court has considered the basic case Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 .in Syed Arif Raza Rizvi's case, supra and held in that case that the I.C.A. is maintainable.
11. In view of what has been discussed above, the preliminary objection has no force. It is pertinent to mention here that the basic documents relied upon by the respondents wherein the respondents secured 469 votes and the appellants Amjad Mustafa secured 64 votes is not on a proper Form XIII in terms of the Election Rules mentioned above coupled with the fact that the respondents relied upon the communication of results by the Presiding Officer to the Returning Officer on Form Appendix‑B, which contain the following entries:‑‑ (5) Total Votes cast male 660 female Total (6) No of valid votes including Challenged valid votes cast in favour of Name of No of candidate valid votes (1) Raffat Ullah 136 Khan (2) M. Fayyaz 469 (3) Amjad Mustafa 64 (7) Total 669 (8) No. of votes 669 excluded from the count (9) Total No. of 353 votes polled (total of items Nos. 7 and 8) In case this document is read as a whole then it requires to decide the controversy between the parties after recording the evidence, which is not permissible in the eye of law in Constitutional proceedings, therefore, the learned Single Judge was not justified to resolve the disputed questions of facts while exercising the Constitutional jurisdiction.
12. In case all the documents are put in juxta position then it brings the case of the respondents in the area of disputed questions of facts. This Court has no jurisdiction to resolve the disputed questions of facts while exercising powers under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, as the law laid down by the Honourable Supreme Court in Muhammad Younus Khan and 12 others v. Government of N.‑W.F.P., through Secretary, Forest and Agriculture Peshawar and others 1993 SCMR 618.
13. In view of the peculiar circum stances of the case we have asked the counsel for the parties qua recounting of the votes with regard to Polling Station No.5 in question, which was not accepted by the counsel for respondents Nos.1 and
2. As mentioned above, the circumstances of the case in hand are of such a nature that it was appropriate for the Returning Officer to recount ballot papers of the polling station in question in presence of the parties. The Returning Officer has not adopted this method to resolve the controversy, which tantamounts refusal to exercise statutory power. We are of the view that it is in the interest of both the parties to resolve the controversy in the interest of justice and fair play to direct the Returning Officer to recount votes in presence of the parties ands thereafter law will take its own course on account of the result of the recounting, therefore, we direct the Returning Officer to recount the votes of Polling Station No.51 within 15 days from the date of, receipt of the judgment after notice to the parties and thereafter proceed in the matter in accordance with law. It is also admitted fact that the respondents have filed Constitutional petition when the result in question was not declared in official Gazette, thus, the Constitutional petition was the only remedy available to the respondents, therefore, the objection of the appellants qua the maintainability of the Constitutional petition in presence of alternative remedy oil election petition has no force.
14. In view of what has been discussed above, the judgment of the learned Single Judge is, set aside and the Intra‑Court Appeal is disposed of in terms of preceding paragraphs. It is pertinent to mention here that some of the contentions raised by the learned counsel of the parties have no relevancy to resolve the issue in question in view of the aforesaid discussion, Office is directed to send copy of this judgment to the Returning Officer concerned immediately. Copy Dasti on payment of usual charges to the parties. M.B.A./A‑334/L Order accordingly.