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SYED KHURRAM ABBAS BUKHARI versus ELECTION COMMISSION OF PAKISTAN

- Sections 37, 38, 39 and 41 - Punjab Local Government (Conducting Elections) Rules, 2013, Rr 36, 62 and 78 - Constitution of Pakistan, Arts 140A, and 218 votes Counting of votes - Election Commission, Options - Applicants The candidates were returned but the Election Commission declared the respondents as the returning candidates after counting the votes - Justification fixed under the executive duties of the Punjab Election Commission, R 78 of the Punjab Local Government (Election of Conduct) Rules 2013 In order to conduct the elections in a fair manner. Article 218 of the Constitution read, according to the mandate of Article 40, the exercise of powers under the Rule 78 of the Punjab Local Government (Election of Conduct) Rules, 2013 in relation to conducting elections in a fair and lawful manner. And not to decide on election disputes - Once the election results were notified under Section 37 of the Punjab Local Government Act, 2013, any subsequent election dispute was to be sent to E. The Liquidation Tribunal, which involved a dispute in relation to the counting of votes - the Election Commission could not intervene in this matter because the applicants were declared the winning candidates for the Union Council and any dispute in relation to such victory The Election Tribunal also had to take the matter. The remedy proposed under the law - such an act of the Election Commission was without jurisdiction and illegal - the High Court rejected the Election Commission's order and issued a notification announcing the respondents' return to the candidates, Consequently, the oath will be taken by oath in advance of the notification

P L D 2017 Lahore 470

Before Ayesha A. Malik and Jawad Hassan, JJ

Syed KHURRAM ABBAS BUKHARI and others—Petitioners

versus

ELECTION COMMISSION OF PAKISTAN and others-—Respondents

Writ Petition No.39505 of 2016, heard on 22nd February, 2017.

Punjab Local Government Act (XVIII of 2013)—

—-Ss. 37, 38, 39 & 41—Punjab local Government (Conduct of Elections) Rules, 2013, Rr. 36, 62 & 78—Constitution of Pakistan, Arts. 140-A, & 218—Recounting of votes—Election Commission, powers of—Petitioners were returned candidates but Election Commission after recounting of votes declared respondents as returned candidates—Validity—Executive functions of Election Commission, under R.78 of Punjab Local Government (Conduct of Election) Rules, 2013 were prescribed to ensure that elections were carried out justly, fairly and in accordance with law as per mandate of Art.l40-A read with Art.218 of the Constitution—Exercise of power under R.78 of the Punjab local Government (Conduct of Election) Rules, 2013 was to be exercised in relation to the conduct of elections and not to adjudicate on election disputes—Once election result was notified under S.37 of Punjab Local Government Act, 2013 any election dispute that had arisen thereafter was to be referred to Election Tribunal which included any dispute with respect to recount of votes—Election Commission could not have interfered in the matter as petitioners were declared winning candidates for Union Council in question and any dispute in relation to such victory had to be raised before Election Tribunal as that was remedy prescribed under law—Such act of Election Commission was without jurisdiction and illegal—High Court set aside order passed by Election Commission and notification declaring respondents to be returned candidates, consequently earlier notification was revived along with oath of office taken by petitioners—Constitutional petition was allowed under circumstances, [pp. 477, 478]A&B

Ch. Muhammad Abdullah v. Ch. Abdul Wakil and others PLD 1986 SC 487; Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396; Jam Madad Ali v. Asghar Ali Junejo and others 2016 SCMR 251; Muhammad Mamoon Tarar v.

Election Commission of Pakistan and others 2016 CLC 1708; Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681 and Aftab Shahban Mirani and others v. Muhammad Ibrahim and others PLD 2008 SC 779 ref.

Mahmood A. Sheikh for Petitioners.

Nasir Javed Ghumman for Respondent Election Commission of Pakistan.

Mubeen-ud-Din Qazi for Respondents Nos. 5 and 6.

Date of hearing: 22nd February, 2017.

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