2006 PLP 392 (YLR)

MAULVI ANWARUL HAQ, J.

The petitioners on the one hand and respondents Nos.4 and 5 and the other sets of respondents Nos.6 to 9 contested elections to the seats of Nazim/Naib Nazim UC No.49 District D.G. Khan. After receipt of results from the Polling Stations, the Returning Officer consolidated result in form XVI and declared the petitioners as returned candidate with 1973 votes and respondents Nos.4 and 5 as runners up with 1887 votes. Respondents Nos.6 and 7 polled 1715 votes and respondents Nos.8 and 9 polled 545 votes. The results were sent vide declaration of result annex-A and this result was duly notified by the Election Commission of Pakistan on 23-8-2005. On 23-8-2005 a letter (Annex-B) was received in the office of the Returning Officer issued by Section Officer in the Election Commission of Pakistan, conveying the orders of the Honourable Chief Election Commissioner of Pakistan for the recount at all the polling stations in UC No.49 for the seats of Nazim/Naib Nazim. The Returning Officer conducted the proceedings and reported on 30-8-2005 to the Secretary to the Election Commissioner of Pakistan that in Polling Station No.8, 164 votes came out of the envelope of the petitioners but all these were found mutilated by duplication and triplication of the stamps. These were found to be valid votes by the Presiding Officer and the Returning Officer at the time of consolidation of results. The opinion expressed by the Returning Officer was that the said interpolation has taken place after the close of polls. Similarly he reported that at Polling Station No.13 he found 121 votes shown as valid by the Presiding Officer missing in the polling bag in the prescribe envelope. The Returning Officer expressed his doubts in this matter as well. Be that as it may, he prepared a revised statement in form XVI whereby after exclusion of the mutilated and missing votes the petitioners were stated to have obtained 1684 valid votes, while respondents Nos.4 and 5 had 1879 votes. Respondents Nos.6 and 7 were found with 1699 votes and respondents Nos.8 and 9 with 545 votes. He suggested an inquiry in the matter and punishment of the culprit involved. On 31-8-2005, the District Returning Officer was directed vide letter dated 31-8-2005 of the Election Commission of Pakistan to hold an inquiry into the matter. This matter was disposed of by the District Returning Officer D.G. Khan vide order dated 5-9-2005 (annex-D12) by observing with reference to notification dated 3-9-2005, issued by the Election Commission of Pakistan, that all these matters are to be exclusively dealt with by the Election Tribunals.

2. Learned counsel for the petitioners contends that apart from the fact that till date no reasons are forthcoming as to why the recount was ordered, the law is well settled that even an Election Tribunal has to be satisfied of the specific allegations and some prima facie material before ordering the recount. Apart from this the learned Chief Election Commissioner had himself withdrawn all such orders for recount. Learned counsel for the contesting respondents Nos.4 and 5 contends that the notification of his clients has since been issued on 23-9-2005 and the said orders having been implemented could not have been withdrawn.

3. I have examined the several documents appended with this writ petition. Now the order dated 23-8-2005 is a stereo type order and such like orders have been dealt with in several other cases as well. One thing is certain that not a single reason is there as to why recount was ordered besides it is a matter of record that on 1-9-2005 learned Election Commissioner for Pakistan had issued a general notification declaring all such orders to be infructuous and further referring the parties to Election Tribunals constituted by him, after the notification of the results on 23-8-2005. So far as the proceedings of recount are concerned, the facts are apparent on the face of the said report of the Returning Officer, already referred to by me above. The writ petition accordingly is allowed. The impugned direction for recount having been withdrawn and otherwise .having not been issued in a manner prescribed by law, and the proceedings of recount conducted pursuant thereto including the notification of respondents Nos.4 and 5 as returned candidates by modification of notification dated 23-8-2005 publishing the names of the petitioners as returned candidates are declared to be without lawful authority and are set aside. No orders as to costs. Any of the aggrieved contesting candidates may approach the Election Tribunal constituted by the learned Chief Election Commission of Pakistan with a properly instituted Election Petition. A copy of this order be immediately remitted to the office of the Secretary to the Election Commission of Pakistan and the District Returning Officer, D.G. Khan. F.M./A-610/L????????????????????????????????????????????????????????????????????????????????????? Petition allowed.