1987 PLP 1307 (MLD)

FAZL-I-MAHMOOD, J.--The admitted position which emerged at the hearing before us. is that the parties before the Election Tribunal agreed to have their election matter decided by re-counting of votes. Thereafter about 15 months were allowed to pass by before re-counting took place.

2. On the receipt of the election record, the petitioner before the Election Tribunal objected that the seals of the polling bags were tampered with. Two Assistant Directors Local Government were summoned. A former A.D.L.G. Muhammad Siddique admitted in his cross-examination that he had opened the bags for the purpose of supply of copies but put fresh seals on the bags. He further admitted that the seals affixed by him had also been tampered with and bag of polling station No.24 was torn. In such a situation, the writ petitioner objected to re-counting in terms of the compromise.

3. After hearing the learned counsel for the parties we feel that agreement for re-counting held good so long it was reached under the common belief that the record of election was intact and untampered. However, subsequently on being discovered that the election record had been undisputedly tampered with, by whomsoever it was done, the parties when arriving at the agreement in oblivion of this situation acted under a common mistake of fact. It was, therefore, absolutely unnecessary to hold an idle ceremony of re-counting on the basis of the record whose authenticity itself was very much in dispute. All exercises of jurisdiction and adjudications are meant to dispense justice between the parties on discovery of truth. The learned Additional District Judge fell into a serious legal error in pronouncing the judgment based on the record which was tampered with and shorn of authenticity. It is true that normally parties ought not to be allowed to resile from their commitments or compromise or agreement of that nature. In the facts of the present case once it had been established that the parties had agreed for re-counting relying on official record carrying the presumption of regularity of official acts which stood denuded of that presumption as a result of tampering of seals and rendered unreliable, it was open for the parties to object and it was the duty of the Election Tribunal to entertain this objection and duly apply its conscious mind to changed circumstances and its consequences. The Tribunal has failed to properly address itself to this crucial question and to take note of the tampering of official record and its effect. It is well settled that destruction of record is not to be allowed to prejudice the rights of the parties. The record ought to be reconstructed where it is possible. The same principle will apply mutatis mutandi to an official record which has been partly tampered with The Election Tribunal, in our view, fell into a patent error of law in ignoring these vital aspects.

4. In these circumstances, we would accept the writ petition and remand the case to the Election Tribunal for fresh decision in accordance with law. We leave it open for the parties to raise whatever pleas of law and fact are available to them before the Election Tribunal. However, there shall be no order as to costs. M.Y.H./M-325/L ??????????????????????????????????????????????????????????????????????????????? Case remanded