2002 PLP 1523 (SCMR)

SYED DEEDAR HUSSAIN SHAH, J. ‑‑‑‑Petitioners seek leave to appeal against judgment dated 14‑5‑2002 passed by the Lahore High Court, Multan Bench, Multan, in Writ Petition No.2527 of 2002.

2. Briefly stated the facts of the case are that Sheikh Iftikhar‑ud‑Din and Muhammad Hafeez‑ur‑Rehman petitioners, Rana Muhammad Aslam and Muhammad Tahir Yameen respondents Nos.2 and 3 herein, alongwith others, contested the election to the office of Nazim and Naib Nazim of Union Council No.28. Gagay Wala, Tehsil and District Lodhran. This election was held under Punjab Local Government Elections Ordinance, 2000 (Punjab Ordinance No. V of 2000). Petitioners were declared/elected with a lead of 144 votes. The success of petitioners was notified and they were inducted into their respective offices, after taking oath. Petitioners had been performing their duties since their induction.

3. Feeling dissatisfied, respondents Nos.2 and 3 filed election petition before the learned Election Tribunal on 2‑7‑2001, alleging therein that their Polling Agents had pointed out to the Presiding Officer of Government Girls College (M), Lodhran that the ballot papers counted in favour of petitioners did not carry the official mark and were wrongly counted; that such ballot papers were 90 in number; that at the Polling Station Government Primary. School, Lodhran, 85 ballot papers were cast in favour of the petitioners which did not carry symbol of Hockey stick; that at the Polling Station Girls High School, Lodhran, a large number of ballot papers carried mark other than the official stamp on the symbol, and number of said ballot papers were more than

35. This petition was contested on a number of legal as well as factual grounds. Written statement tiled by petitioners is available at page 29 of the Paper Book. On the pleadings of the parties, following issues were framed: (i) Whether the petitioners have come to this Tribunal with unclean hands? If so, its effect? OPR (ii) Whether the corrupt and illegal practice has been exercised which has materially affected the result of the Election? OPA (iii) Whether reasonable grounds exist for recount? OPA (iv) Relief?

4. The case was fixed for evidence on 1‑12‑2001, when respondents Nos.2 and 3 moved an application for recounting of ballots before the Returning Officer. This application was resisted by the petitioners on the grounds that it suffered from the rule of prematurely and no evidence whatsoever had been adduced before the Tribunal for making an order for recount. Election Tribunal after hearing learned counsel for the parties and examining the record allowed the application vide order, dated 2‑4‑2002.

5. Feeling dissatisfied with this order petitioners preferred Writ Petition No.2527 of 2002 which after hot contest came to be dismissed. It may be observed that respondents Nos.4 to 9 were not served with the notice in the proceedings before the Election Tribunal and they were proceeded against ex parte. However, for the purpose of keeping the record straight they have been impleaded in this petition for grant of leave to appeal. It may further be pointed out that the aforesaid respondents received small number of votes in their favour, therefore, they were not interested in the proceedings of election petition before the Election Tribunal.

6. After hearing learned counsel, leaned Single Judge of the Lahore High Court/Multan Bench came to the conclusion that the order passed by the learned Election Tribunal was interim in nature and was not open to interference in Constitutional jurisdiction of the Court. Furthermore, there was no necessity of recording evidence of the parties in deciding the election petition, hence this petition.

7. Learned counsel for the petitioners, inter alia, contended that the learned Single Judge had erred in law in treating the order of recount as an interim order; and had not taken into consideration that the decision rendered by this Court in a number of cases regarding order for recounting were in fact not applicable to the facts of the case in hand; and that the learned Single Judge fell into error of law in holding that the Election Tribunal had authority to order for recounting of votes cast at all the polling stations.

8. We have considered the arguments advanced by the learned counsel and minutely perused the material available on record.

9. Admittedly, respondents filed the election petition before the Election Tribunal alleging that they were made to loose the elections mainly on account of miscount of the ballot papers at the respective Polling Stations because concerned Presiding Officer counted the ballot papers, which did not carry the official marks as such violation of sub‑rules (3) and (4) of rule 39 of Punjab Local Government Election Rules 2000, was committed.

10. Returning Officer also directed concerned Presiding Officer as required under rule 40, sub‑rule (6) of Election Rules for recounting of the votes. which were originally entertained but later on rejected. Respondents for very cogent and sound reasons and substance had prayed for the recounting of votes. Indeed there was no ground for rejecting the application as determined by the Returning Officer concerned. In election matters, it will be entirely in the interest of justice and fair play if each ballot paper is scrutinized by the Tribunal to examine and verify as to whether Presiding Officers of all the Polling Stations had correctly counted the ballot papers or not. The application was resisted by petitioners and the allegations were denied but Election Tribunal in order to do complete and equitable justice with the parties, allowed the application with the following observations: "

6. In view of the above discussion I am of the considered opinion that re‑counting/re‑checking of ballot papers and election material shall meet the ends of justice, therefore, the petition under discussion is accepted in consequence whereof the election material of the Union Council concerned be accordingly summoned for the purposes of re checking/re‑counting. Now to come up for summoning of the election material for recounting on 12‑4‑2002."

11. Learned High Court also considered the entire case in its proper perspective and maintained the order of Tribunal. The impugned judgment is based on the law laid down by this Court and is in consonance with the Punjab Local Government Elections Rules, 2000. Respondents seriously challenged the validity of ballot papers for which proper course for the Tribunal was to examine and recount the ballot papers so that complete justice may be done.

12. We do not find any misreading or non‑reading of material by the High Court. Likewise, there is no misconstruction of facts and law. Moreover, no substantial question of law of public importance as contemplated under Article 185(3) is made out.

13. For the facts, circumstances and reasons stated hereinabove, we are of the considered opinion that the petition is without merit and substance, a which is hereby dismissed alongwith the Civil Miscellaneous Application, and leave declined. Q.M.H./M.A.K./I‑53/S Petition dismissed.