1988 PLP 1530 (CLC)

Seerat Hussain Naqvi for Petitioner Nemo for Respondents. FAZL‑I‑MEHMOOD, J.‑‑This writ petition is directed against the order of an Election Tribunal dated 23rd December, 1987 whereby it reversed the result of the election declared by the Returning Officer and held the election petitioner to have won the election by a margin of nine votes.

2. The facts necessary to be stated are that Mubarak Ali petitioner before us was declared elected by the Returning Officer having secured 214 votes as is mentioned in form XII which has been produced before us by the leaned counsel on our asking. Ghulam Rasool respondent had secured 210 votes. The petitioner thus won the election by a nominal margin of four votes.

3. We have gone through the impugned order of Election Tribunal who merely entered into an exercise of re‑counting. He has in the process held seven votes obtained by the petitioner to be invalid and reduced his votes to

207. On the contrary he has held six votes to be valid and given their benefit to the respondent. The picture of votes thus emerges out to be as under:‑ Mubarak Ali petitioner 207 Ghulam Rasool respondent 216

4. It is rather strange that according to form XII which contains the original declaration of the election by the Presiding Officer the votes mentioned are 214 in favour of Mubarak Ali and 210 in favour of Ghulam Rasool. The column regarding the invalid votes is blank. In other words it means that there was no invalid vote. In the impugned order the Election Tribunal has mentioned that there were 45 invalid votes. What is very strange in the whole process is that he has assigned no reasons or basis for accepting or rejecting votes as valid or invalid. The reason or basis for 45 rejected votes is also not given.

5. The so‑called inquiry held and the impugned judgment on the face of it appears to be arbitrary, fanciful and perfunctory without due application of mind to the facts and the material which should have engaged the attention of the Election Tribunal to arrive at a just decision. He was required to give reasons or at least basis for either accepting or rejecting a valid vote once he took upon himself the exercise to determine the character of votes. It must be understood by the Election Tribunal that recounting does not mean giving numerical number without adverting to the legal requirements or the true character of votes. In our view he has shown scant regard for the law which he was bound to observe and he has left matters undecided which he was bound to decide in accordance with Election Petition Rules, 1979. In such a situation the proper course to be followed is that the impugned order be declared without lawful authority and of no legal effect and the case remanded to the Election Tribunal for disposal in accordance with law. He will desist from passing a perfunctory order. He will give reasons and basis for adding to or substracting votes from the count of either party.

6. We called the case several times but none has appeared on behalf of the respondents. They are accordingly ordered ex parte.

7. Since none has contested the case we will spare respondents the costs. The case is decided in above terms. M.B.A./M‑763/L Order accordingly