2008 PLP 593 (CLC)

The grievance voiced by the petitioner through the present constitutional petition is that petitioner and , respondents Nos.3 to 22 contested the general election held on 18-2-2008 from PP-77 Jhang-V and the polling agent appointed by the petitioner at Polling Stations Nos.27, 35, 37, 38, 42, 48, 51, 55, 58, 60, 62, 66, 70, 71, 74, 75, 79, 81, 84, 86, 87, 88, 90, 91, 94, 96, 102, 108, 111, 112, 113, 114, 115, 120, 124, 125, 126, 129, 135, 136 and 146 were not provided the statement of account at the time of accounting of the votes despite demand and later on prepared fake result in the office of respondent No.1 with the connivance of respondent No.2 and the Presiding Officers of respective polling stations. Some statements of polling stations including Polling Stations Nos.147, 154 and 1257 have been prepared in same handwriting by one person and that too with some cuttings without signatures or initials. The statements of account issued to the petitioner have been changed by enhancing the votes in favour of respondent No.2.

2. The petitioner brought the aforesaid illegalities in the notice of respondent No.2 demanding recount of the votes in the presence of all the contesting candidates but the application was rejected by the learned Returning Officer vide order, dated 20-2-2008 holding that as per requirement of law, the votes excluded from the count by the Presiding Officers would be minutely examined during the consolidation of result. The petitioner was not associated at the time of consolidation process and was malafidely deprived to participate in the consolidation Process only to support respondent No.2. It was 'further asserted that due to the illegalities the whole election has become doubtful and the success of the petitioner has been converted into defeat by violating the election rules. The petitioner has prayed that the process and the results of the constituency be declared null and void and fresh election be ordered to be held in the constituency.

3. We have heard the learned counsel for the petitioner and perused the available record. Upon the examination of the available record, we find that the petitioner has raised factual controversies. Obviously these controversies cannot be decided without recording the evidence of the parties, which exercise cannot be undertaken by this Court in exercise of its constitutional jurisdiction. It is settled law that this Court can in exercise of its jurisdiction vested in it under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, neither enter into factual controversies nor decide the disputed questions of fact. Reference is made to Muhammad Ali and another v. Government of Sindh through. Chief Secretary and 2 others 1986 CLC 1123, Umar Hayat Khan v. Inayat Ullah Butt and others 1994 SCMR 572 and Secretary to the Government of Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415.

4. Even otherwise according to subsection (6)(a) of section 39 of the Representation of the People Act 1976, the Returning Officer may recount the ballot-papers if he is satisfied that the request or challenge is reasonable. The Legislature has also empowered the Election Commission under clause (b) of subsection (6) of section 39 of the Representation of the People Act, 1976 to direct recount of the ballot-papers. Subsection (6) of section 39 of the aforesaid Act is reproduced below: "(6) The Returning Officer may recount the ballot-papers

(a) upon the request of, or challenge in writing made by, a contesting candidate or his election agent, if the Returning Officer is satisfied that the request or the challenge is reasonable; or (b) if so directed by the Commission, in which case the recount shall be held in such manner and at such place as may be directed by the Commission." It is thus, clear from the language of the foresaid provisions of law that since the Returning Officer was not satisfied to hold recounting. He has, therefore, rightly dismissed the application filed by the petitioner for recounting. Since the petitioner has not approached the Election Commission under clause (b) of subsection (6) of section 39 of the Representation of the People Act, 1976, therefore, the Commission has not passed any direction for recounting of ballot-papers, as such, the provisions of clause (b) of subsection (6) of section 39 of the aforesaid Act are not attracted in the present case.

5. For what has been discussed above, we find no merit in this constitutional petition which is hereby dismissed in limine. M.H./Z-1/L Petition dismissed.