2002 PLP 623 (MLD)

Miss Azra Riaz for Respondent No.5. Rana Muhammad Arif on behalf of Qazi Muhammad Shafique for Respondent No.3. Ch. Muhammad Jehangir Wahla, A.A.‑G. Nayyar Iqbal DDO (R), Chunian. Through this Constitutional petition, the petitioner has challenged the order, dated 9‑7‑2001 passed by respondent No. 1 to be declared as illegal, void, unlawful, mala fide and of no legal consequence. It is further prayed that the rejected votes of the petitioner may be ordered to be re‑counted.

2. The brief facts of the case are that the petitioners Nos. 1 and 2 and respondents' Nos. 3 to 6 contested Election jointly for the Seat of Nazim and Naib‑Nazim from Union Council No.18, Tehsil Chunian, District Kasur held on 2nd Julys 2001. The petitioners after count of votes requested the Returning Officer of the said Union Council for counting of rejected votes who did not accept their request. The petitioners moved an application to Chief Election Commissioner, Islamabad who directed the respondent No. 1 tore‑count the votes of the candidates who have contested the Election in the said Union Council. This order was passed by the learned Chief Election Commissioner of Pakistan on 7‑7‑2001 and was duly faxed to respondent No.

1. Respondent No. 1 also issued notice to all the candidates who had contested the Election for the Seat of Nazim and Naib Nazim and fixed the date for re‑counting on 9‑7 2001. On 9‑7‑2001 instead of re counting the order was passed that as he has already notified the result on 7‑7‑2001. and the re‑counting was duly made under sub rule (3) of rule 40 of the Punjab Local Government Elections Ordinance, 2000.

3. Learned counsel for the petitioner has argued at length but finally he is satisfied if a direction is issued to the learned Chief Election Tribunal for re‑counting of the votes in the peculiar circumstances of the case as he has already filed the election petition under rule 70 of Punjab Local Government Elections Ordinance, 2000.

4. Learned counsel appearing on behalf of respondent No.3 who is successful candidate opposes the prayer which has been cut short by learned counsel for the petitioner that direction for re‑counting be issued on the ground that the Election Petition has been filed before the Chief Election Commissioner for re‑counting evidence is to be recorded by the Election Tribunal. He relied upon 1999 SCMR 299 and 1999 MLD 2602.

5. I have heard the learned counsel for the parties at length and also perused the documents attached with this petition and also kept in mind the case‑law cited in this Court. The peculiar circumstances of the case claims the early decision by the Election Tribunal and the ground taken in the election petition is that the votes have not been duly counted by respondent No.

1. The proceedings of respondent No. 1 were challenged immediately after the announcement of the result before Chief Election Commissioner who passed the directives to respondent No. 1 for re‑counting of the same and respondent No. 1 on 7‑7‑2001 issued notice to the other candidates and a date 9‑7‑2001 was fixed for re‑counting, but on 9‑7‑2001 a somersault had been taken by respondent No. 1 and he passed the order that as he has already notified the result hence he has become functus officio and cannot re‑count 'the votes. I am in full agreement with the learned counsel for the petitioners that the respondent No. 1 was bound to act upon the orders of the Chief Election Commissioner and the result was not duly notified. According to the learned counsel for the petitioners the petitioners were deprived of their right which accrued, before issuance of Notification, in their favour for re‑counting of votes. Hence, the order dated 9‑7‑2001 passed by respondent No. 1 is declared as illegal, void, without lawful authority and of no legai effect and is set aside. As the petitioners have filed an election petition, in view of the peculiar circumstances of the case the Election Tribunal directed to decide the election petition within 60 days after affording equal opportunities to both the parties.

6. With the abovesaid direction this petition is disposed of. Q.M.H./M.A.K:/J‑37/L Order accordingly.