P L D 1994 Supreme Court 867 (PLP)

SAJJAD ALI SHAH, C J: ‑This is a direct appeal filed under section 67 of the Representation of the People Act, 1976 (to be referred hereinafter as the said Act) against the order passed by Election Tribunal in Election Petition No.51 of 1993 on application of respondent No.3, Syed Masroor Ehsan, under section 151, C.P.C., whereby Deputy Election Commissioner, Hyderabad is directed to scrutinize the ballot papers of 722 disputed votes rejected by the Returning Officer and to recount the votes in presence of contesting parties and/or their advocates or representatives.

2. Election was held on 6‑10‑1993 in which for NA‑1.84 Karachi West‑1, appellant and respondent No.3 were the main contestants. Upon the close of the polls appellant was declared returned candidate by announcement on Television as having secured highest number of votes. Respondent No.3 tiled an application for stay of consolidation of results and requested recount before the Returning Officer on the ground that initially he was declared successful candidate with a lead of 833 votes and subsequently different result was announced on Television declaring appellant as successful candidate after rejecting 722 votes. This application was dismissed vide order dated 11‑10‑1993. Respondent No.3 filed application before the Election Commissioner for stay of notification of the result until recount of the votes was done but the same was dismissed vide order dated 27‑11‑1993 on the ground that request was not reasonable as allegation was of general nature. Finally respondent No.3 filed the election petition in which he filed application under section 151, C.P.C. with prayer which is allowed as mentioned above, hence this appeal.

3. Mr. Imam.Ali G. Qazi, learned counsel for the appellant, submitted that appellant had won the election and secured 32,937 votes while respondent No.3 secured 32,670 votes and there was margin between them of 267 votes. 722 votes were invalidated which were cast for all the candidates. Allegations levelled by respondent No.3 are vague in nature and not specific. On behalf of the appellant following contentions have been raised: "(1) Request for recounting, having been rejected by the Returning Officer end Election Commission, could not be granted by the Election Tribunal, hence such order was incompetent and without jurisdiction in view of sections 38, 39 and 103 of the Representation of the People Act, 1976.

4. On the other hand Mr. Fakhruddin G. Ebrahim, learned counsel for respondent No.3, has submitted that this appeal is not maintainable for the reason that it is filed against the interlocutory order passed by the Tribunal before which election petition is still pending for final disposal. In the circumstances this appeal is not filed against the final order as contemplated under section 67 of the said Act. 1n support of the proposition reliance is placed on the following cases: . (1) Mahmood Azam Faruqui v. Moulana Muhammad Shari Okarvi and others 1974 SCMR 471. (2) Mian Zahid Sarfaraz v. Raja Nadir Pervaiz Khan and others 1987 SCMR 1107. . (3) Habibul Wahab Alkhairi v. Sheikh Rashid Ahmad and 5 others PLD 1989 SC ?60. (4) Bhagwandas v. The Returning Officer and others 1990 SCMR 1228

5. Objection with regard to non‑maintainability of appeal against interlocutory order of the Tribunal is correct as per scheme of the said Act and legal position enunciated in the case‑law on the subject mentioned above. The petition is still pending before the Tribunal and final order is yet to be passed against which appeal could competently be filed in this Court. In . such circumstances we would not like to make any comment on the contentions raised on behalf of the appellant, which could be raised by him before the Tribunal at the stage of the arguments. At present it would suffice if we mention that under section 64 of the said Act Election Tribunal can order recount of votes in appropriate cases and on satisfaction of requisite conditions and in that context reference can be made to the case of Haji Muhammad Asghar v. Malik Shah Muhammad Awan PLD 1986 SC

542. In any case final order is yet to come from the Tribunal against which appeal is competent. For the facts and reasons mentioned above this appeal is dismissed as non maintainable. In any case 722 invalidated votes were disputed and recount of all the votes was not justified. . In the prayer clause of the election petition filed before the Tribunal, there is no mention or request for recount and such relief cannot be granted by the Tribunal as contemplated under sections 67 and 68. of the said Act:" M.BA:/E‑47/: Appeal dismissed