P L D 2011 Supreme Court 310 (PLP)

TASSADUQ HUSSAIN JILLANI, J.-This judgment shall dispose of Civil Petition Nos. 298-Q and 299-Q of 2010 both filed by Mir Saleem Ahmed Khosa who was declared successful candidate of Balochistan Provincial Assembly (constituency PB-27, Jaafarabad-III) as these arise out of two interim orders passed by the Election Tribunal seized of respondent No.3's election petitions who remained unsuccessful in the election in question.

2. Facts in brief are that respondent No. 3 tiled Election Petition No.13 of 2008 against the petitioner alleging irregularities and malpractices and prayed that the election result be set aside. In terms of divergent pleas raised in the written statement tiled by the petitioner, the learned Election Tribunal framed following issues on 10-10-2008:-- (1)?? Whether respondent No.1 has been declared successful candidate illegally having secured more votes in 17 Polling Stations as stated in the petition? (2)?? Whether the respondent in connivance with the official staff has committed illegal and corrupt practice, which has resulted into declaration of the result of returned candidate? (3)?? Whether the reasonable grounds exist for recounting the votes of the disputed Polling Stations? (4)?? Whether the petition is competent in view of the objections raised in the written statement? (5)?? Relief?"

3. Both the parties led evidence. In the meantime petitioner filed an application under section 63(a) of the Representation of the People Act, 1976 (C.M.A. 1685 of 2010) raising objections to the maintainability of the election petition which learned Tribunal dismissed on 26-11-2010 on the ground as follows:-- "It also needs mentioning here that the petitioner after examining 13 witnesses, filed an application bearing No.C.M.A. No.1207 of 2010 on 16-9-2010 for recounting of the votes of 17 Polling Stations, which was heard on 1-11-2010 and fixed .for orders, meanwhile the applicant/respondent No. 1 filed C.M.A. No.1593 of 2010 under section 63(a) of the Representation of the People Act, 1976 and prayed for decision of Issue No.4 first instead of Issue No.3, after filing the rejoinder to the application the same was fixed for 25-10-2010 for arguments, however on 1-11-2010 when the said application was fixed for argument, the learned counsel did not press the same and requested for withdrawal of the said application, which request was allowed subject to cost of Rs.2000 and the instant application has been filed by the counsel for the respondent No.1."

4. The afore-referred order was challenged by the petitioner in Writ Petition No.116 of 2010. The Tribunal passed yet another order on 12-11-2010 whereby respondent No.3's application for recount of the ballot papers pertaining to 17 polling stations was allowed. Petitioner challenged this order as well through a separate constitutional petition bearing No.114 of 2010. Both the afore-referred constitution petitions against interim orders were dismissed by the learned High Court by a consolidated judgment primarily on the ground that since the petitions had arisen out of interim orders, the writ petitions were not competent. Reliance was placed on a judgment of this Court reported at Muhammad Asim Kurd v. Mir Lashkari Khan Raisani (1998 SCMR 1597).

5. Learned counsel for the petitioner in support of these petitions, made following submissions:-- (i)???????? that having framed Issue No.3 as to whether any ground existed for recount of the votes of disputed polling stations, it was not open for the Tribunal to direct recount and that too without assigning any reason whatsoever. (ii)??????? that petitioner had filed application raising preliminary objection with regard to maintainability of the petition as the election petition filed by the respondent was violative of the mandatory provisions of sections 52(2) and 55 of the Representation of the People Act, 1976 and without deciding this preliminary objection, the court could not have directed recount. (iii)?????? that the learned High Court dismissed petitioner's application under a misconception that petitioner's application under section 63(a) of the Representation of the People Act, 1976 was withdrawn as not pressed. in holding so, the court did not appreciate that the said application to which reference has been made by the Tribunal in the order dated 26-11-2010 was not pressed as it was unnecessary as the issue of maintainability had been raised in C.M.A. No.1685 of 2010 which is still pending which was duly taken note of by the Election Tribunal in its earlier order dated 1-11-2010 wherein the court had observed as follows:-- "Learned counsel for respondent No.1 submits that in view of C.M.A. No.1685 of 2010 filed today, he will not press the C.M.A. No.1593 of 2010. Other side has strongly opposed the request for withdrawal of said application. Copy of C.M.A. No.1685 of 2010 has been provided to the counsel for petitioner. In the interest of justice request for withdrawal of C.M.A. No.1593 of 2010 is allowed subject to cost of Rs.2000, matter is to be fixed for tomorrow i.e. 2-11-2010 for filing of rejoinder to the application of C.M.A. No.1685 of 2010." (iv) that the order of recount passed by the Election Tribunal is not sustainable being violative of section 46(1) of the Representation of the People Act, 1976 as there is a specific proviso to the effect "that in making and carrying into effect an order for the inspection of counted ballot papers, care shall be taken that no vote shall be disclosed until it has been held by the Tribunal to be invalid." (v) that the learned High Court has not decided the issues raised before it and has summarily dismissed the constitution petitions as not maintainable as according to it, the same were directed against interlocutory order, notwithstanding the fact that the orders of the learned Tribunal had the effect of deciding the main petition.

6. Learned counsel for the respondents, on the other hand, defended the impugned judgment mainly on following grounds:-- (i)???????? that during the pendency of the election petition both the parties had examined several witnesses and the petitioner had acquiesced in the proceedings and was not keen to pursue the application to be decided in the first instance. (ii)??????? that even otherwise the conduct of the petitioner had been contumacious as it was the third application filed by the petitioner raising similar question of maintainability and the earlier two applications were disposed of by the Tribunal and the orders passed were not challenged by the petitioner (iii)?????? that the Tribunal is empowered under section 46(1) of the Representation of the People Act, 1976 to direct recount to which no exception can betaken (iv)?????? that the order passed by the learned Tribunal directing recount, is a well reasoned order, a bare reading of which would indicate that the court had considered the allegations levelled and the evidence led before him in the election petition in directing recount; (v)??????? that since the Election Tribunal had passed both the orders with jurisdiction and those being interim in nature could not have been challenged in terms of Article 199 of the Constitution. The learned High Court had rightly dismissed both the petitions because no question of law had been raised either which could warrant interference.

7. In support of the submissions made, learned counsel relied on Zahid Sarfraz v. Nadir Pervez Khan (1987 SCMR 1107 at 1114) and Fahnida v. State (1997 SCMR 947).

8. Having argued the case at some length and in view of the fact that the election petition is pending for the last more than two years, both the learned counsel on court query/suggestion, agreed that these petitions be dispose of in terms as follow: (i) the order of recount passed by the Election Tribunal dated 12-11-2010 is modified and it is directed that while carrying out the exercise in terms of the afore-referred order, the Commission (appointed under the said order) shall ensure that it proceeds strictly in terms of section 46(1) of Representation of the People Act, 1976 and in particular, the proviso attached to it which mandates as follows:-- "Provided that in making and carrying into effect an order for the inspection of counted ballot papers, care shall be taken that no vote shall be disclosed until it has been held by the Tribunal to be invalid." (ii) both the parties shall be allowed to raise objection qua the report of recount and may lead evidence. The Tribunal shall consider the report, the evidence led and the relevant law while deciding all the issues framed in the main petition along with C.M.A. No.1685 of 2010.??

9. As the election petition is pending for the last more than two years and almost half of the term of the Assembly is over, we are persuaded to direct the Election Tribuual to decide the election petition within 30 days of the receipt of this order. Both the petitions are converted into appeals and partly allowed in terms noted above. M.A.K./M-12/SC??????????????????????????????????????????????????????????????????????????????? Order accordingly.