P L D 2003 Peshawar 20 (PLP)

IJAZ‑UL‑HASSAN, J.‑‑‑Through instant writ petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, Syed Shah Jehan petitioner seeks setting aside of order dated 4‑6‑2001 of learned Sessions Judge/Election Tribunal for Swabi, whereby decision of Returning Officer Union Council Ismaila dated 26‑3‑2001 declaring Muslim Khan respondent No.4 as returned candidate' was treated final and the petition was rejected on the ground that "this Tribunal cannot look into the steps taken towards the recounting or refusal to recount by the Returning Officer. The Returning Officer is the best Judge to recount only those votes for which a valid reason has been shown to him. The decision of the Returning Officer is final in this regard".

2. Precisely narrated the facts leading to the filing of this writ petition are that petitioner alongwith respondents Nos. l to 11 contested election for the seat of peasants from Union Council, Ismalia, District Swabi. After election an unofficial counting of the votes was held on 21‑3‑2001 and vide order of respondent No. 12, petitioner alongwith respondents Nos. 1 to 3 were declared as returned candidates. The petitioner had secured 334 votes and on 24‑3‑2901 when the official counting was held instead of petitioner, Muslim Khan respondent No.4 was declared elected for having secured 335 votes. Mian Muhibullah Kakakhel, Advocate for the petitioner contended, inter alia, that the official, counting was restricted to only invalid votes and out of six packets of invalid votes from six polling stations only three packets/bags were opened and counted. He stated that during the official counting one vote marked in favour of the petitioner was also ignored and was not counted towards the votes of the petitioner. As the two results were at variance and the margin of votes was only one, the petitioner approached respondent No. 12 for recounting of the votes. The latter conducted the recounting of three bags of invalid votes and refused to recount the rest of the bags of invalid votes so much so that even one vote which was cast in favour of the petitioner was not counted towards his votes. The learned counsel reiterated that it was mandatory that the whole ballot papers should have been recounted and that refusal on the part of Election Tribunal to exercise jurisdiction vested in it has materially prejudiced the rights of the petitioner. The learned counsel prayed that on acceptance of this writ petition either the impugned order be set aside and the petitioner be declared elected or in the alternative matter may be remanded with direction to the Tribunal for recording evidence in order to do complete justice between the parties. To substantiate the contentions reliance was placed on an unreported judgment of this Court passed in Muhammad Sher Khan and another v. Muhammad Ishfaq and others Writ Petition No.322 of 2001 and Muhammad Tariq Zakhmi and another v. Election Tribunal/District and Sessions Judge Hafizabad and 13 others 2002 MLD 284 (Lahore).

3. Muslim Khan respondent No.4 the only answering respondent had entered appearance in Court during the early stages of the case but subsequently he decided not to contest the proceedings. Placed ex parte.

4. Having heard the arguments of learned counsel for the petitioner with reference to rules 42(5), 71, 72 and 73 of North‑West Frontier Province Local Government Election Rules, 2000 read with BNPS Local Government A Elections Ordinance, 2000 we find ourselves in agreement with learned counsel for the petitioner that the learned Tribunal has proceeded on wrong premises and misdirected itself to treat the decision dated 26‑3‑2001 of respondent No.12 as final, declaring Muslim Khan respondent No.4 as returned candidate. The refusal on the part of Election Tribunal to exercise jurisdiction in the matter has materially prejudiced the case of the petitioner. We feel that it was the primary duty of the Election Tribunal to have afforded an opportunity to the parties to adduce evidence in order to resolve the controversy involved in a. proper manner. It is not denied that Election Tribunal can order recount of votes in appropriate cases and on satisfaction of requisite conditions.

5. In view of above discussion, we accept the petition, set aside the impugned judgment/order dated 4‑6‑2001 of learned Sessions Judge/Election Tribunal for Swabi and remand the Election Petition to the learned Tribunal with direction to decide the same afresh after affording reasonable opportunity to the parties to adduce evidence in accordance with law. As the matter relates to election, same shall be decided as soon as possible not exceeding two months. Q.M.H./M.A.K./620/P Case remanded.