2006 PLP 1890 (CLC)

MUHAMMAD JEHANGIR ARSHAD, J.

Petitioner Mulazim Hussain, Nazar Hussain contesting respondent No.2 along with respondents Nos.6 to 35 contested the election for seat of General Muslim Councillor from Union Council No.6 Mandi Town, Layyah and according to the result prepared and announced by the Presiding Officer the petitioner was declared as returned candidate whereas, respondent No.2 having secured votes less to the votes of the petitioner, was therefore, declared unsuccessful. Nazar Hussain-respondent No.2 filed election petition before the Election Tribunal, Rajanpur against the petitioner and other candidates. The learned Election Tribunal, however, 'during pendency of the said, election petition by placing reliance on the case in Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCMR 1699 vide order dated 13-6-2006 directed recounting of votes at Polling Station No.5 without framing issues and recording of evidence, etc. Pursuant to the said order, dated 13-6-2006 recounting took place on 1-7-2006 in the presence of learned counsel for the election petitioner as well as Mr. Riaz Ahmad Khan, Advocate counsel for the present petitioner (respondent No.7 before the Election Tribunal) and as a result of said recounting the election petition was accepted vide order, dated 1-7-2006, as such present respondent No.2/election petitioner having secured 389 votes as against 379 votes of Mulazim Hussain petitioner, was declared as successful candidate. Through this constitutional petition the order dated 13-6-2006 directing recounting of votes and the order dated 1-7-2006 declaring respondent No.2 as successful candidate, have been challenged.

2. It has been argued by Mr. Khizar Hayat Khan Punian, Advocate for the petitioner that in the light of the law declared by Honourable Supreme Court of Pakistan in the case Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483 and Nawab Khan and others v. Qamar-ud-Din and others 1999 SCMR 299, the Election Tribunal had got no jurisdiction to order recounting of ballot-papers as a matter of right without recording evidence to the effect that there were genuine grounds to believe that there has been some mistake in counting and that the case-law i.e. Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCMR 1699 was wrongly applied by the learned Election Tribunal in its order, dated 13-6-2006 while directing recounting of votes without framing issuance and recording of evidence. It is further argued that recounting was not properly carried out by the learned Election Tribunal; therefore, the order, dated 1-7-2006 declaring the respondent as successful candidate was not sustainable.

3. On the other hand, Mr. Tahir Mehmood, Advocate appearing on behalf of contesting respondent No.2 has argued that petitioner never objected against the order dated 13-6-2006 and that he participated in the recounting held on 1-7-2006, therefore, he was estopped from challenging the order, dated 13-6-2006. It is next contended that the order, dated 1-7-2006 was passed after carrying out physical scrutiny/examination of each and every ballot-paper in the presence of learned counsel for the writ petitioner and as the said exercise was made in exercise of jurisdiction vested in the Election Tribunal by Punjab Local Council Elections Rules, 2005, hence the order dated 1-7-2006 can neither be considered as without jurisdiction nor in wrong exercise of jurisdiction unless there is sufficient material on the record to hold so. It is further argued that findings recorded by the learned Election Tribunal in its order, dated 1-7-2006 after physical examination/scrutiny of each vote, being findings of fact cannot be interfered with by this Court in constitutional jurisdiction, as held by Honourable Supreme Court of Pakistan in the case Faiz Bakhsh and others v. Deputy Commissioner/ Land Acquisition Officer, Bahawalpur and others 2006 SCMR

219. Lastly it is contended that this Court in constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can interfere if wrong or illegal conclusion has been drawn by the Tribunal and which is not based on facts. Reliance has been placed on Mst. Mobin Fatima v. Muhammad Yamin and others PLD 2006. SC 214.

4. I have considered the arguments of learned counsel for the parties and have also gone through the record.

5. There is a considerable force in the contention of learned counsel for the petitioner that the Election Tribunal could not direct recounting of votes without recording of evidence and the Election Tribunal while passing the order dated 13-6-2006 just placed reliance on the judgment of Honourable Supreme Court i.e. Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCMR 1'&99, which judgment simply declares that Election Tribunal does possess jurisdiction to direct recounting of votes without recording of evidence but at the same time the said judgment does not make it obligatory for the Election Tribunal to order recounting of votes without recording evidence in any (sic) each, even without existence of sufficient reason and just on the whim of the election petitioner. The said judgment of the Honourable Supreme Court was therefore, wrongly applied by the Election Tribunal while directing recounting of votes, which could only be possible after fulfilling the requirements of law as declared in the earlier judgment of the Honourable Supreme Court consisting of five Judges Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483, therefore, to this extent there is considerable force in the contention of learned counsel for the petitioner that the order, dated 13-6-2006 was not a lawful order. Yet the writ petition cannot be accepted on this score, especially in view of the fact that petitioner joined subsequent proceedings held on 1-7-2006 and the physical recounting of votes was held in his presence but the petitioner has neither placed any material on record nor has been able to prove that physical recounting of votes was either not properly done or that mistake pointed by the Election Tribunal holding that in fact respondent No.2 secured 194 votes at Polling Station No.2 which was wrongly noted as 147 votes in consolidated statement of votes, was either not based on correct factual position or was against the record. Therefore, I am satisfied that despite the order dated 13-6-2006 directing recounting of votes without recording of evidence, was against law yet as A the subsequent proceedings were conducted in the presence of the petitioner and that petitioner having failed to point out ally illegality or irregularity in the said proceedings held on 1-7-2006, further the findings recorded by the Election Tribunal in its order, dated 1-7-2006 being findings of facts, cannot be interfered with by this Court in constitutional jurisdiction as held by Honourable Supreme Court of Pakistan in the cited judgment. Similarly, as the order, dated 1-7-2006 is neither against facts nor law, therefore, is sustained.

6. The upshot of above discussion is that this writ petition has no force and is accordingly dismissed. M.H./M-458/L Petition dismissed.