2006 PLP 17 (MLD)

MAULVI ANWARUL HAQ, J.

The petitioners on the one hand and the respondents Nos.4 and 5 on the other contested elections to the seats of Nazim and Naib Naizm in UC-10 Khanewal. As per result prepared in Form XV by the learned Returning Officer (Annex. A) the petitioner had polled 2821 votes while tally of the respondents Nos.4 and 5 was 2762. Vide judgment dated 25-8-2005, passed in W.P. No.5090 of 2005 this Court directed the learned R.O. to examine the rejected votes in case in hand and as also in several others cases.

2. In this W.P. the grievance being made out is that while the rejected votes were being so examined by the learned R.O. a FAX messaged Annex. B/1 was received under signatures of respondent No.6 directing the learned R.O. to recount all the votes for the seats of Nazim and Naib Nazim in the UC. Now the position is that recount orders have been withdrawn by orders of the learned Chief Election Commission of Pakistan vide notification dated 1-9-2005 and the aggrieved parties have been directed to approach the competent Election Tribunals constituted by the learned Chief Election Commission of Pakistan.

3. Learned counsel for the respondents Nos.4 and 5 states that pursuant to the receipt of the said message learned R.O. conducted recount and as a result whereof a revised return was prepared in Form XVI whereby the petitioners have polled 2689 valid votes while respondents Nos.4 and 5 have obtained 2759 votes.

4. Learned counsel for the respondents Nos.4 and 5 relies on the case "Pakistan International Airlines Corporation through Chairman v. Inayat Rasul (2003 SCMR 1128) to contend that the orders of the recount having been acted upon and his clients having been declared to have obtained majority of votes it could not have been recalled by the learned Chief Election Commission of Pakistan. To similar effect are the cases of "Messrs Ahmad Clinic v. Government of Sindh (2003 CLC 1196) and "Mir Ghulam Abid Khan v. Pakistan through Secretary and another (2000 CLC 443). He further contends that the petitioners having participated in the proceedings of recount cannot challenge the said proceedings on the said count. Relies on the case of "Mushtaq Ahmad v. Atta Muhammad and others (2002 CLC 409). Learned counsel for the petitioner, on the other hand, contends that the said rule only would be applicable to an order lawfully passed. His contention is that the settled rule is that a recount cannot 'be ordered even by the Election Tribunal unless and until there are specific allegations and valid proof in the matter of counting of votes.

5. I have examined the said FAX message (Annex-B/1) and I find that it does not disclose any reason or ground as to why a recount has been ordered. Learned counsel for the respondents Nos.4 and 5 is also not in a position to explain as to why a recount was ordered. Admittedly the order passed without even a notice to the petitioners much less hearing them. It is obvious that all such orders were recalled by the learned Chief Election Commission of Pakistan vide notification dated 1-9-2005.

6. Now so far as the said second contention of the learned counsel for respondents Nos.4 and 5 is concerned, the said rule can hardly be said to apply in circumstances of this case when the petitioners were confronted with the said message out of the blue. I do find that some objections were raised before the learned R.O. but these were disposed of with the observation that the objections have been raised after conclusion of the recounting proceeding. I further find that the learned R.O. proceeded to reject as invalid 133 votes cast in favour of the petitioners. Be that as it' may, respondents Nos.4 and 5 if aggrieved can file an election petition before a competent Election Tribunal constituted by the learned Chief Election Commissioner of Pakistan.

7. Writ petition accordingly is disposed of as having borne fruit. H.B.T./M-1307/L Petition accepted.