2016 PLP 1280 (CLC)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Report has been submitted on behalf of the Returning Officer-respondent No.4. Case of the petitioner is that he had filed an application with the R.O for recounting of votes immediately after the closure of polling in Ward No.1 Municipal Committee, Jandanwala, Tehsil Kallur Kot, District Bhakkar. However, respondent No.4 did not pay any heed to the same due to which the petitioner was constrained to file a writ petition No.34912/2015 before this Court in which following order was passed on 13.11.2015:- "

2. Be that as it may, the Returning Officer is directed to decide upon the application filed by the petitioner in accordance with the tenor of Rule 36 of the Rules, 2013 if the consolidation of the result has already not taken place.

3. With this direction, this petition is disposed of." Pursuant to the aforesaid order of this Court, respondent No.4 has again passed an order which is impugned in this writ petition.

2. Learned counsel for respondent No.5 submits that the petitioner did not file any application before the Returning Officer for recounting as envisaged in Rule 36(5) of Punjab Local Government (Conduct of Elections) Rules, 2013 as such the R.O. was not obliged to undertake recounting. As regards directions of this Court vide order dated 13.11.2015 in W.P.No.34912/2015, learned counsel submits that the Returning Officer had become functus officio by submitting result to the District Election Commissioner, Bhakkar. Learned counsel further submits that onus was on the petitioner to establish that he had moved an application for recounting before the appropriate forum within time but he failed to do so. Further maintains that there is a margin of 154 votes between the petitioner and respondent No.5 while discarded votes of both the wards are 33, and if all these discarded votes are given in favour of the petitioner even then it will not change the result of polling.

3. Learned Deputy Attorney General submits that respondent No.4 has acted in accordance with law; that when he submitted result to the District Election Commissioner, there was no application for recounting before him.

4. Arguments heard. Record perused.

5. Rule 36 (5) of Punjab Local Government (Conduct of Elections) Rules, 2013 provides as under:- "The Returning Officer may recount the valid ballot papers before consolidation of results:- (a) upon the request or challenge in writing made by, a contesting candidate or his election agent and if the Returning Officer is satisfied that the request or the challenge is reasonable; or (b) if so directed by the Election Commission. In view of the above requirement of law application was to be made in writing by any of the contesting candidates. The application filed by the petitioner in this respect does not bear any signature of the receiver and it is not known whether it was filed prior to consolidation. In these circumstances this Court is not in a position to pass any observation because it might affect the cause of any of the party before appropriate forum. Prima facie it appears that there was no such application before the Returning Officer at the appropriate time. The Court would, however, like to observe that there seems to be no appropriate procedure that the Election Commission of Pakistan has adopted in order to receive and acknowledge any application filed by the contesting candidates in relation to the conduct of the elections on the election day and in relation to the subsequent events of tabulation and consolidation of results.

6. Secondly, learned counsel for the petitioner agitates that the Returning Officer did not perform the duties cast upon him under Rule 36(2) of the Rules ibid. On a query of the Court in this respect, the Returning Officer admitted that no such procedure was adopted. Rule 36(2) of Punjab Local Government (Conduct of Elections) Rules, 2013 is reproduced as under:- "Before consolidating the results of the count, the Returning Officer shall examine the ballot papers excluded from the count by the Presiding Officers and if he finds that any such ballot paper should not have been so excluded, count it as a valid ballot paper cast in favour of the contesting candidate for whom the vote had otherwise been cast." Learned Deputy Attorney General submits that the omission in this regard by the R.O. will be of no avail to the petitioner as total number of votes which have been discarded are 33 and if these votes stand proved valid in favour of the petitioner, even then it will not affect the final result.

7. Learned counsel for the petitioner has also pointed out sanctity of requirement of Rule 36(1) of the Punjab Local Government (Conduct of Elections) Rules, 2013 which provides as follows:- "The Returning Officer shall give the contesting candidates and their election agents a notice of the day, time and place fixed for the consolidation of the results and publish the same at a conspicuous place in his office." The Returning Officer also remained oblivious of fulfilling this duty which was cast upon him under the above said rule. The learned Deputy Attorney General is unable to justify this act on the part of the R.O.

8. In these circumstances, this Court feels it imperative that in future round of polling, Election Commission of Pakistan will issue directions to all the Returning Officers to ensure implementation of the requirements of the aforesaid rules in letter and spirit and to implement a protocol for the receiving and disposal of applications by the Returning Officers and the District Returning Officers where they are required to do so. A compliance report will be submitted with the Deputy Registrar (Judicial), who will place this file in the Court as a compliance case on December 15, 2015.

9. Upshot of the discussion is that disputed questions raised in this writ petition cannot be resolved at this forum, however, the petitioner is at liberty to agitate them before appropriate forum. Therefore, if and when election petition is filed before Election Tribunal, nothing observed in this order in relation to factual controversy will have any affect on that adjudication which is to be made on the basis of evidence and materials which the parties will produce along with the record of the elections. The Returning Officer is reprimanded for his failure to follow the dictum of law and rules which was incumbent upon him while performing his duties.

10. Disposed of. RR/M-359/L Order accordingly.