1987 PLP 2509 (MLD)

ABDUL SHAKURUL SALAM, J.--The petitioner and respondent No.1 amongst others contested the election. The Presiding Office found that the petitioner had more votes than the respondent. However, the Returning Officer after inquiry found that a large number counterfoils were missing and as a result of re-counting declared respondent No.1 as elected. This is vide order dated 8-9-1983. This is challenged by the petitioner through the present constitution a petition.

2. Learned counsel for the petitioner stated that at the time when he filed the petition there was no efficacious remedy available to the petitioner because there was no Election Tribunal functioning and the petition before the Election Authority was not pressed and withdrawn because there was no possibility of immediate relief. As regards the merits of the case the learned counsel for the petition vehemently contended that the Returning Officer did not figure the hierarchy of the authorities to re-count tree votes and his reliance on Rule 8 (4) of the Punjab Local Councils (Election) Rules, 1979, is inapt because the provision relates to executive actions and not to the counting of the votes. He submitted that under Rule 43 as amended the Returning Officer has no right even to open a packet of valid votes. The learned counsel submitted that the order of the Returning Officer is clearly beyond jurisdiction and, therefore, -the petitioner is entitled to maintain a constitutional petition notwithstanding than an alternate remedy of election petition is now available to the petitioner. He placed reliance on Muhammad Ayub Khuhro v. Pakistan (P L D 1960 S C (Pak.) 237), Nawab Syed Raunaq Ali v. Chief Settlement Commissioner ( P L D 1973 S C 236).

3. Learned counsel appealing for the contesting respondent has submitted that Election Tribunals are functioning and the petitioner should avail of the alternate remedy. He has placed reliance on Khan Shahzada v. Maulvi Fazal Rabi and 3 others (1983 S C M R 125). He has also referred to Rule 40 sub-rule (6) of the aforesaid rules to contend that it was for the Returning Officer to declare the elected candidates, therefore, in order to perform his duty, he could pass an order of the nature he has done and impugned in this petition.

4. We have heard the learned counsel for the parties at length. The facts stated in the impugned order require ascertainment and verification which function can best be performed by the appropriate authority created for the purpose, i.e., the Election Tribunal. Even if the Returning Officer who has passed the impugned order has acted not strictly in accordance with the authority conferred on him, nonetheless the order can now be examined and adjudged by the appropriate authority. In the circumstances of the case this is not a case for the exercise of constitutional jurisdiction. The petitioner file an election petition if so advised before the relevant Tribunal.

5. With the above observation, this petition is disposed of. In circumstances of the case the parties are left to bear their own costs. M.A.K./3268/L Writ refused.