2002 PLP 1324 (YLR)

Zafar Iqbal Chohan for Petitioner. Ms. Fauzi Zafar, A. A.‑G. Riaz‑ul‑Haq for Respondents Nos.2 and No.

3. Date of hearing: 11th March, 2002. To challenge the election to the seats of Nazim and Naib Nazims, Union Council No.22, Okara, the respondents Nos.2 and 3 filed an election petition. Inter alia it was alleged that the petitioner and his co -candidate have concealed their assets; that a proper count has not been made to cause wrongful loss to the said respondents Nos.2 and 3; that several ballot papers carrying double stamps were counted in favour of the winning candidates; that an unbelievably high percentage of electors exercised their right of vote in Polling Station 12; that the results were tampered with; that in all the 13 Polling Stations, the respondents were winning by 100 votes but results were tampered with; that there is a discrepancy between the votes cast for general seats and those for the seats of Nazim and Naib Nazim at Polling Station No.2; that a Polling Station No.2 out of 302 votes 71 votes in favour of the said respondents had been rejected; that at Polling Station 13 more than 80% votes were polled with forged thumb‑impression and that all this had been done at the behest of Rai Muhammad Aslam Kharal, a former M.N.A. who is a close relation of the petitioner. The petitioner and his co‑candidate filed a written statement denying the said allegations.

2. On 4‑2‑2002, while the petitioner was present, in person, the learned counsel for the respondents got recorded his statement without oath; that the purpose of filing the election petition would be served if re counting of Polling Stations 2,3,4 and 12 is made. Immediately thereafter the learned Tribunal passed an order that in view of the said request made by the said learned counsel, let the records of the said Polling Stations be summoned for re‑counting.

3. The learned counsel for the petitioner contends that in this case it was duly pleaded that a re‑count of the rejected votes had already been made under the orders of the learned Election Commissioner of Pakistan. According to the learned counsel, the learned Tribunal has proceeded in violation of law declared by superior judiciary in proceeding to order a re‑count on the bare request of the learned counsel when no foundations stand laid for the said order without recording of evidence. The learned counsel for the respondents Nos.2 and 3, on the other hand, relies upon a D.B. judgment of this Court in the case of Muhammad Zulqarnain v. Muhammad Anwar and others (1990 CLC 736) to urge that there was no requirement at all of recording evidence before passing the impugned order.

4. I have examined the copies of the records appended with this writ petition, with the assistance of the learned counsel for the parties. I have already referred to the several allegations made in the said election petition. To my mind, the learned Tribunal could not have proceeded to order a re‑count just to oblige the learned counsel for the respondents Nos.2 and

3. The allegations made in the election petition, having been denied by the petitioner and his co‑candidate, required evidence for their proof and not a request of the learned counsel. So far as the said judgment being relied upon by the learned counsel for the respondents Nos.2 and 3 is concerned, the statement of the election petitioner in the said case was recorded and was subject to cross‑examination and it was upon reading of the said evidence that the learned Tribunal in the said case had ordered a re‑count. In the present case, the learned Tribunal has simply assumed that a mere request of a learned counsel is enough to hold a re‑count. Be that as it may, I feel that the minimum requirement of the case was that in the first instance, the statement of any or both of the said respondents (election petitioners) ought to have been recorded on oath and subject to cross‑examination by the petitioner and thereafter the petitioner or his co- candidate ought to have been called upon to rebut the same by entering the witness‑box in a similar manner. This is the ratio of the judgment of the honourable Supreme Court of Pakistan delivered in the case of Nawab Khan and others v. Qamar ud Din and others (1999 SCMR 299). A recent judgment of this Court in the, case of Zulfiqar Ali v. Election Tribunal/Civil Judge 1st Class Khanpur and 5 others (2000 MLD 746), is, also to the similar effect and in line with the earlier decision of the Honourable Supreme Court of Pakistan in the case of Kanwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 SC 483).

5. The learned counsel for respondents Nos.2 and 3 has then objected that the writ petition at the instance of only the petitioner would not be maintainable. According to the learned counsel his co‑candidate ought to have joined. The objection is without any force. Under Article 199 of the Constitution it is an aggrieved person who can invoke the jurisdiction of this Court and the petitioner of course, is such an aggrieved person. There is thus no question of non joinder of parties and in any case the lis would not fail on the said ground even in terms of the Code of Civil Procedure.

6. For all that has been discussed above, this writ petition is allowed. The impugned order of the learned Tribunal dated 4‑2‑2002 is set aside. The result would be that the learned Tribunal shall now proceed further in the matter in terms of para. 4 of this judgment. I would like to clarify here that in case any of the parties i.e. the said election petitioners and the said respondents in the election petition wish to lead some more evidence, they will be at liberty to do so, in accordance with law and the Rules governing the proceedings in the election petition.

7. No order as to the costs.

8. A ropy of this judgment be immediately remitted to the learned Election Tribunal for information and compliance. M.A.R./A‑442/L Petition allowed.