2005 PLP 1699 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred against the judgment dated 13-8-2002 passed by a learned Division Bench of the High Court of Balochistan Quetta, in a Constitution petition arising out of an election matter.

2. The relevant facts giving rise to this petition in the background are that the petitioners and respondents Nos.1 and 2 contested election for the seat of Nazim and Naib Nazim hum Union Council No.48, Industrial Area, Quetta and in the official result, the petitioners were declared successful. The respondents Nos.1 and 2 being not satisfied with the result, filed an election petition and the main ground urged by them was that the polling staff at Polling Station No.174 Union Council, Quetta, at the instance of petitioners committed irregularities in the counting of ballot-papers and engineered the result in their favour. The respondents also moved a miscellaneous application along with election petition wherein they prayed for recounting of the votes of Polling Station in question at the first instance. The Election Tribunal in view of the nature of allegation in the election petition before proceeding further, considered it necessary to carry out the recounting of votes and consequently, in the presence of the parties, opened the sealed envelopes containing ballot-papers of the above said polling station and carried out recounting of votes. In the recounting, respondents secured 283 votes as against 72 obtained by the petitioners and the Tribunal in view of the change in result, declared respondents Nos.1 and 2 successful and allowed the election petition. The petitioners being aggrieved of the order of the Tribunal and manner of disposal. of election petition invoked the Constitutional jurisdiction of the High Court of Balochistan at Quetta and a learned Division Bench, seized of the matter, having come to the conclusion that there was no substance in the writ petition, dismissed the same vide impugned judgment.

3. Learned counsel for the petitioners has contended that the recounting of the votes before framing the issues and recording of evidence was not legal and that the summary disposal of the election petition without proper decision of controversial questions of facts in accordance with the procedure provided in Balochistan Local Government Election Rules, 2000 for adjudication of the election disputes, would render the judgment coram non judice. The learned counsel vehemently argued that as per result of official counting declared by the Returning Officer, the petitioners secured 72 votes and the respondents obtained 71 votes at ,the Polling Station No.174. Union Council, Quetta but the difference of 212 votes in the recounting carried out by the Tribunal, being not understandable, would evidently suggest the tampering with the ballot-papers and consequently, it was incumbent upon the Tribunal to record the evidence and decide the election petition on merits. Learned counsel for the respondents-caveators while opposing this petition, has contended that the recounting of the votes was carried out in presence of the parties and neither any objection by the recounting was raised by the petitioners nor the tampering with the ballot-papers was pointed out, therefore, in view of the result of recounting the disposal of election petition without further proceeding would not be suffering from any legal defect.

4. We have heard the learned counsel for the parties at length and perused the record with their assistance. The procedure for decision of election petition is provided in Chapter X of the Balochistan Local Government Election Rules, 2000 and the examination of rules contained in this Chapter would suggest that in absence of any prohibition contained therein, the Tribunal is not debarred to carry out recounting of votes without framing of issues and recording of evidence and if in the light of result of recounting of the votes. Tribunal considers it not necessary to proceed further, can conveniently dispose of the election petition forthwith.

5. It is an admitted fact that the respondents pointed out the irregularity in the counting of votes at Polling Station No.174 and the change of result in writing to the Returning and District Returning Officer, before the announcement of the official result but their complaint remained unattended. The perusal of record would show that the present petitioners did not, at any stage, raise an objection that ballot-papers were tampered with before recounting of votes by the Tribunal and consequently, the assertion that the record was tampered with, was unfounded, therefore, the objection that without framing the issues and recording of evidence, the recounting of votes and disposal of election. petition was not proper, could not be entertained. The learned counsel for the petitioners has not been able to show us that any prejudice was caused to the case of petitioners on merits by the disposal of election petition in the light of result of recounting without framing the issues and recording the evidence of the parties. The Election Tribunal having exclusive jurisdiction certainly cannot be the Tribunal of unlimited and indefinite jurisdiction and its ambit of operation is confirmed strictly within the four corners of law under which it is created but a procedural irregularity, which causes no prejudice to the case of either party on merits will not render the judgment of Tribunal illegal. The jurisdiction means a power to hear and decide the legal controversy between the parties to pronounce judgment as per requirement of law and in a case in which the parties expressly or impliedly consented for decision of dispute in a manner which does not involve the lengthy procedure of law and decision of the dispute in such manner is also not prohibited in law or beyond the jurisdiction of Tribunal, the parties would be estopped to subsequently raise an objection to the disposal of the matter in such manner.

6. The examination of record in the light of rules on the subject, would not indicate that the summary disposal of election petition by the Election Tribunal was an illegal exercise of jurisdiction. We, therefore, while taking no exception to the judgment of the High Court, dismiss this petition. Leave is refused. S.A.K./M-845/S Leave refused.