2007 PLP 1737 (CLC)

SYED HAMID ALI SHAH, J.

The facts giving rise to this constitutional petition are that the petitioners were declared as retuned candidates for the seats of Nazim and Naib Nazim of Union Council No.235, Iqbal Town, Faisalabad. The petitioners secured, as per Form-XV, 2061 votes while respondents Nos.2 and 3 secured 2031. Recounting, under the direction of Chief Election Commissioner,' was conducted two days later by the Returning Officer and as result of which revised Form-XV was prepared, in view whereof the petitioner secured 1831 votes while respondents Nos.2 and 3 bagged 1813 votes. The petitioners remained the returned candidates. Respondents Nos.2 and 3 assailed the return of the petitioner through Election Petition, which was contested by the petitioner. Learned Election Tribunal vide order dated 14-12-2005 .ordered for recount of the votes. The petitioners assailed the order through Writ Petition No.19498 of 2005, which was dismissed by this Court vide order dated 28-12-2005. The petitioners then challenged the orders of this Court through Civil Petition No.8 of 2006. By the consensus of the parties, the orders dated 14-12-2005 passed by the learned Election Tribunal and of this. Court dated 28-12-2005 were set aside and the case was remanded to the Election Tribunal for proceedings in accordance with law and if during recording of evidence it is established that recount is necessary, the Tribunal was directed to pass an appropriate order. On remand, learned Election Tribunal framed issues on 25-2-2006. Thereafter four witnesses by each party were recorded. After recording the evidence, learned Tribunal found the necessity of recount of votes and passed order dated 21-12-2006 for recount of votes and requisitioned the polling bags containing ballot papers from Treasury though the concerned Returning Officer for 17-1-2007, hence this petition.

2. Learned counsel for the petitioner contended that recounting of votes can be directed only when there is sufficient evidence on record to show that recount of votes was not carried out in accordance with law and rules. Learned counsel added that recount in the instant case was conducted under the orders of Chief Election Commissioner of Pakistan. The recount was done thoroughly in accordance with law. Learned counsel submitted that recount of votes- was ordered mainly on the allegation of double stamping on the ballot papers, which have been counted as valid by the Returning Officer/Presiding Officer. The double stamp on ballot paper cannot be made basis for recount of the votes as the ballot papers remained lying in the Treasury office and in the course of opening of sealing on three earlier occasions, the possibility of tampering cannot be ruled out. It was then submitted that 165 votes were illegally excluded from the count on the ground that they do not bear signatures/seal of the Polling Officer. Learned counsel has then submitted that the dispute was with regard to Polling Station Nos.2 and 9 while the recounting has been ordered regarding whole of the polling stations of the constituency. Learned .counsel while referring to Rule 30(2)(iii) of the Punjab Local Government (Elections) Rules; 2005 contended that the ballot papers at its back had stamp with official mark and signatures by the Presiding Officer while the learned Tribunal has observed that these. votes had to be excluded from the count. Learned counsel supported -this contention by referring to the case of Ch. Fatehjang v. Punjab Election Commission and others 1996 CLC 1574, wherein it was observed that ballot papers without marking of stamp could not be counted in favour of any of the contesting candidates. Learned counsel referred to the case of Ghulam Hussain and another v. Attiq-ur-Rehman Awan and 5 others PLJ 2007 Lah. 340 to contend that recount of votes could be ordered on a specific allegation in the pleadings that illegality and irregularities were committed while counting the votes. The case of Pervaiz Bashir Warriach and another v: Election Tribunal/District and Sessions Judge, Mandi Baha-ud-Din and- 4 others 2006 CLC .1407 was referred to contend that recount of ballot papers cannot be claimed as of right, nor recount can be ordered in routine. Learned counsel concluded his arguments by submitting that the learned Tribunal has based its decision for recount on the plea that there were allegations against the Presiding Officer. He added that partiality of the Returning Officer has to be proved through evidence. Mere allegation against him would be of no legal consequence without nay proof to that effect. Learned counsel emphasized that double stamping on ballot 'papers to invalidate the valid votes, having been done after the declaration of the result, a candidate, must not be made basis to make a duly elected candidate suffer on such account. Learned counsel to support this contention has made reference to the case of Mian Ejaz Shafi v. Syed Ashraf Shah. 1st Additional Sessions Judge, Karachi and. Returning Officer, Karachi West-I and 12 others 1996 SCMR 605.

3. Learned counsel for the respondents Nos.2 and 3 on the other hand, has submitted that petitioners were declared retuned candidates by a negligible margin while 154 votes were rejected. The recount conducted under the direction of the Chief Election Commissioner, the petitioners were declared successful with a difference of 18 votes while 571 votes were rejected. The votes, which were double stamped were counted as valid votes in favour of the petitioners. The petitioners assailed the order of recount through Writ Petition No.19498 of 2005, which was dismissed by this Court vide order 28-12-2005. The petitioners assailed the order through Civil Petition No.8 of 2006 before the Honourable Supreme Court, where the parties agreed for remand of the case to the learned Tribunal. Learned Tribunal after recording four witnesses from each side, reached conclusion that recounting of votes will be right course to resolve the controversy. The impugned order was passed following the orders passed with the consent of the parties by the Honourable Supreme Court, in Civil Petition No.8 of 2006. Learned counsel further submitted that- in the first count 154 votes were rejected while in the second count 571 votes were rejected. The numbers of votes in the second count were further reduced. The votes, which have been declared invalid were pertaining to the ballot papers, which do not bear signatures of official stamp. Learned counsel has submitted that the law stands settled through the case of Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284, that a ballot paper may not be invalid if it bears either the official marks or the signatures of the Presiding Officer and if both are missing on a given ballot paper, such ballot paper cannot normally be held to be valid because it renders very issuance of the ballot papers, in the ordinary course as doubtful. While referring to the case of Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others PLD 1986 SC 178, learned counsel contended that once recount of votes is directed under the orders of the Chief Election Commissioner, it shall not debar the petitioner before the Election Tribunal to claim recount. Election Tribunal, which has the jurisdiction to decide and direct recount of the votes, can pass such order while the order of Chief Election Commissioner will not operate as res judicata qua the proceedings before the Election Tribunal. Learned counsel further submitted the petitioners in the instant case have agitated factual controversy, which falls outside the ambit of constitutional jurisdiction of this Court.

4. Heard learned counsel for the parties and record perused.

5. There is no cavil with the proposition that recount of votes by an unsuccessful candidate cannot be claimed as a matter of right nor such request is required under law to be allowed with an object to fish the error in recounting. Recounting of ballot can be ordered when a case in this respect is made out. The Returning Officer or the Election Tribunal when feel satisfied that the controversy through evidence on the available record cannot be decided, a recourse to recounting is made. Both the parties, in the case in hand, reached consensus before the apex Court, for the remand of the case and left it to the discretion of the learned Election Tribunal to decide for, recount after recording the evidence. While passing the impugned order, it was observed by the Election Tribunal that the total number of votes in second count reduced by 31 votes. In the first count 165 votes at Polling Station No.6 (Male) were counted towards respondents Nos.2 and 3 but adjudged as invalid by ignoring the fact that these ballot papers do not bear official mark or the signature of the polling officer. The objection of the respondents No.2 and 3 was turned down by the Returning Officer. The Returning Officer did not adopt a uniform policy of recounting of votes regarding all polling stations. The votes, which bore double stamped, were counted in favour of the petitioners, despite a stamp on another candidate's symbol, in addition to the symbol of the petitioners. These ballot papers mostly bore the second stamp mark on the symbol `Hokey', an election symbol of other candidate. The votes were challenged by the respondents, but these votes (48 votes in number) were counted by ignoring the procedure that challenged .votes cannot be counted towards a candidate. The proceedings recorded by the Returning Officer at the time of recount, under the orders of. Chief Election Commissioner, reflect that the Returning Officer rejected those votes, which were neither marked nor signed or which were marked but net signed. The Returning Officer while taking this exercise had ignored the dictum of law laid by the apex. Court in the case of Abdul Hafeez Khan Loni.(supra). Wide difference between two counts, rejection of valid votes and count of invalid votes justifies the learned Election Tribunal to order recounting. Learned Tribunal reached the conclusion of resorting to re-account, after thoroughly appraising the evidence of the parties and illegalities g committed in course of recounting of votes. Such conclusion which is neither perverse nor illegal, rather according to the terms of the order of the august Supreme Court, do not call for interference by this Court, in the exercise of constitutional jurisdiction.

6. This petition has no force and is accordingly dismissed, with no order as to costs. HBT/A-170/L????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.