' The petitioners and respondents Nos.1 and 2, contested the election for the seat of Nazim and Naib-Nazim for Union Council No,139, Mandi Warburton, Tehsil Nankana Sahib, District Sheikhupura.
As per the final results of count prepared by the Returning Officer, the petitioners secured 2811 votes, as against 2700, votes cast in favour of respondents Nos.1 and 2, (the respondents) and therefore, they were declared as returned candidates. Respondents Nos.1 and 2, challenged the election of the petitioners, through filing an election petition; number of grounds were taken in the petition, including that there has been amiss in counting of the votes. Anyhow, the petitioners earlier were served but did not appear and were proceeded ex parte; they moved an application for the setting aside of ex parte order, which was allowed and after filing of their written statement, issues were framed. But before the commencement of the trial, the respondents moved a separate application for recounting of the ballot-paper, which application was contested by the petitioners.
The arguments were heard by the learned Tribunal, yet the same was not being disposed of within reasonable time, therefore, the respondents were obliged to approach the Chief Election Commissioner and also this Court, seeking direction to the Tribunal to decide the application.
Anyhow, during this period, the Presiding Officer was transferred and the new incumbent desired to hear fresh arguments. The case was adjourned for some further date and ultimately on 1-3-2003, arguments of respondents' counsel were heard and as the petitioners or their counsel were not present, they were proceeded ex parte; the matter for the decision on the recounting application was fixed for 6-3-2003; the Tribunal for certain reasons could not announce the order, which was ultimately pronounced on 7-4-2003, and the application was accepted. During this period, the petitioners did not apply to the Court for the setting aside the ex parte order.
2. Anyhow, in the order, dated 7-4-2003, it was still directed that the notice of recounting, which was ordered to be held on 9-5-2003, be served upon the petitioners. Admittedly, this notice was served upon and received by the petitioners, yet they did not participate in the recounting process.
The learned Tribunal in the above situation in the presence of the Returning Officer, Reader, and Stenographer of the Tribunal, opened the sealed bags containing the ballot-paper and after recounting and rechecking, came to the. Conclusion that 159 invalid votes have been counted in favour of the petitioners, therefore, excluding these votes from their count, which stood reduced to 2652, as against 2700 votes validly polled in favour of the respondents. Thus, the election petition was allowed through the impugned order, dated 9-5-2003 and respondents Nos.1 and 2, have been declared as returned candidates in place of the petitioners. Hence the present petition.
3. Learned counsel for the petitioner by relying upon Kanwar Ijaz Ali v. Irshad Ali and others PLD 1986 SC 483, Haji Muhammad Asghar v. Malik Shah Muhammad Awan and others PLD 1986 SC 542 and Nawab Khan and others v. Qamar-ur-Din and others 1990 SCM R 299 states that the recounting either by the Returning Officer or by the Tribunal cannot be conducted as a matter of course, but a candidate seeking recounting has to establish on the record in unequivocal terms the facts justifying the recounting. In the absence of such material, the order directing the recounting and thereafter the final order allowing the election petition in consequence thereof, are illegal and invalid. It is also stated that neither in the election petition, which should have been supported by some prima facie evidence, any foundation was laid for the recount of votes nor alongwith the application for recounting, any data or material was provided by the respondents, resultantly, the Tribunal had absolutely no jurisdiction to direct the recounting.
4. In reply to the above, Dr. A. Basit, learned counsel for the respondents, has argued that the conduct of the petitioners highlighted in the narration of facts, disentitles them to file the present petition, because they were twice proceeded ex parte; moreover, in pursuance of the order, dated 7-4-2003, the learned Tribunal again sent a notice to the petitioner, for the date fixed for recounting, but they failed to appear. It is also stated that the recount of votes is the discretion of the Court and where the foundation for recounting has been reasonably laid down in the petition and the Tribunal has accepted the plea of recount, such order should not be interfered in the Constitutional jurisdiction. Dr. A. Basit further argued that the best evidence in the case involving the recount of votes are the ballot-papers itself, resultantly the Election Tribunal should always summon such record and examine the same; on the actual recounting of the votes by the Tribunal to which according to the learned counsel of the respondent, no serious objection has been raised in this petition, it was found that 159 votes have been invalidly counted in favour of the petitioners and this error has been corrected by the learned Tribunal with the result that the respondents have polled more votes and have been rightly declared returned candidate. In support of his contentions, the leaned counsel for the respondent, has placed reliance upon the following case- law:- ' Muhammad Zulqarnain v. Muhammad Anwar and others 1990 CLC 736, Malik Irshad Hussain v.
Muhammad Ashraf Nagra and others 2003 YLR 812, Sheikh Iftikhar-ud-Din and others v. District Judge, Bahawalpur/Election Tribunal and others 2002 SCM R 1523, Muhammad Tariq Zakhmi v.
Election Tribunal and others 2002 SCM R 1995, Muhammad Arif Chaudhry v. Election Tribunal, Okara PLD 1989 Lah.
110. Muhammad Tariq Zakhmi v. Election Tribunal and others 2002 M LD 284 and Bhabhi v. Sheo Govind and others AIR 1975 SC 2117.
5. Heard. To answer the question, whether the learned Election Tribunal, was justified in exercising its discretion vide order dated 7-4-2003, while directing the recount of the votes, suffice it to say that on account of the ratio of the judgments, cited by both the sides, it is settled law that the election petitioners cannot seek the recount of the votes as a right and the Tribunal should not direct the recount as a matter of course; for enabling the recount, the conditions sine qua non are that there must be specific factual foundation laid down in the election petition, it should be stated with accuracy as for as possible, the polling station if more than one, at which, the amiss and the nature thereof has been committed in the count at the time of close of polls. Not only that there should be some material in support of the facts stated in the petition/application, such as the affidavit of those, who were present at the time of counting and had reported this to the candidate who is aggrieved of the count or any other material such as the statements of counts. Prepared by the Presiding Officer and handed over to the polling agents of the candidates or the consolidated statement prepared by the Returning Officer showing prima facie an error in the count. Such material coupled with the factual foundation in the election petition would enable the Tribunal for assessing the genuineness and reasonableness of the request made in this behalf. Otherwise, it would mean that any loosing candidate who for good or bad reasons feels dissatisfied with the counting on the basis of his sophistry about the counting, can apply to the Tribunal and the Tribunal not on the basis of any prima facie proof, in its own whim and caprice decide the fate of the request. This obviously is not against the norm for the exercise of the discretion, but also against the very principle that the recount should not be directed as a matter of right and course.
The request for recount should not be allowed with an object to fish for the error in the recounting, even if the final and positive evidence are the ballot papers itself.
6. To ascertain if the requisite foundation and the material was available justifying in this case, reference can be made to ground No, (ii) of the election petition, in which it is stated "There exist a marked difference between the results of the counts at each polling station of the Union Council on Ballot Paper Account (Form XIV), statement of count (Form XIII) and consolidated statement of results (Form XV).". However, when required to substantiate as to what difference mentioned in the above statement necessitated, the recount of the ballot paper by meeting the above set out criteria, learned counsel for the respondent has not been able to satisfactorily answer, if from these statements alone which he is not sure, were the record of the Tribunal or not, any error can be pin- pointed, justifying the exercise of the discretion by the Tribunal. The other ground to which, reference as foundation for the recount has been made is No,(iv). From the careful perusal of this ground, it seems that the allegations are just general in nature and no specific error at a particular polling station, qua the specific number of votes, has been made out, this also is not supported by any material as to how the respondent came to know of the such illegality, who imparted this information to them. The argument of the counsel for the respondents that because the election petitioners have levelled the allegation in the petition, which is verified on oath and is also supported by an affidavit of the candidate himself: this therefore, justifies the recount is repelled, has no force: even if the election petitioners give up their other ground.
7. Now examining the separate application for recount filed by the respondent; in paragraph No,2, it is stated as under:- ' "That the petitioners have brought on record sufficient material which justify that there exist good grounds for believing that mistakes and illegalities were committed during the, process of counting. Such mistakes and illegalities are manifest and apparent on the face of the record."
' When required to show the material, which respondents have referred in the above statement, brought on the record after the framing of issues, learned counsel for the respondents has conceded that there was none. Therefore, at the time, when separate application for recount was also moved, coupled with the main election petition there was no such material, on the basis of which, learned Tribunal could exercise its discretion in a reasonable manner according to the judicial principles required for such exercise.
8. Anyhow, if during the course of trial, the election petitioners had examined any of the polling staff, the candidates other than the parties, who participated in the election; polling agents of anyone of the candidates, who were present at the time of count and had placed the statements of count envisaging the error in the counting, this would have given the election petitioners an opportunity to give up their other grounds during the trial and to request the Court to decide the matter, on the basis of the recount. But this is not the position in the instant case.
9. The argument of the learned counsel for the respondents that because the ballot papers are itself the best evidence, on the basis of which, the error of recounting can be determined and therefore, necessarily where a grievance of improper counting has been made in the election petition the Tribunal should recount the ballot papers, suffice it to say that this piece of evidence, would only be discovered by the Tribunal, when first, the foundation and the material prima facie establishing the error, if not to the extent 100 per cent. But at least in the context of "reasonableness" has been propounded, enabling the Tribunal to exercise its proper judicial discretion, being objectively satisfied about the reasonableness of the request and in order to verify the error from the direct evidence, ballot papers can be examined. If the law is otherwise laid down, this may give a licence to every losing candidate to simply make unsubstantiated allegation about the error in counting and seek the recounting as a matter of right, which is not in line with the true spirit of resolving the election disputes, including the recount.
In the light of above. I do not find that it was a fit case of recount, where the learned Tribunal should have exercised its discretion in favour of the respondents in a judicial manner.
10. Anyhow, the despite above, I am not inclined to exercise my Constitutional jurisdiction in favour of the petitioners for the reasons, firstly that the petitioners were proceeded ex parte, despite their service, but still the Tribunal showed indulgence in setting aside the order and permitting them to participate in the matter. Secondly when the application for recount was made by respondents, they again absented from the proceedings. The order on the recounting application was exparte passed against them on 1-3-2003, the case was adjourned for few dates and finally the application for recount was accepted on 7-4-2003. During this period, the petitioners never approached the Tribunal, for setting aside of the ex-parte order and for providing them the opportunity of hearing on the application. Thirdly, when the order dated 7.4.2003, was passed and the recount was directed to be held on 9-5-2003, the record was 'requisitioned from the concerned authority; the petitioners were duly served with a notice of the date on which, the recount was to be conducted, yet they failed to be present before the Tribunal on 6-5-2003. On this date, the Tribunal was constrained to conduct the recounting in the absence of the petitioner and the final order was passed against them on 9-5-2003. But the petitioners never sought the setting aside of the ex parte proceedings during this time and awaited till the final order is proved against them. This clearly shows that the petitioners -were deliberately intending to delay the matter and avoiding their appearance, meaning thereby that they were not coming forward to contest the application for recount of the votes. Thus the petitioners with this conduct, cannot be shown any indulgence in the Constitutional jurisdiction.
11. I have also been persuaded not to exercise my jurisdiction in favour of the petitioners, because after the actual result, which has emerged on account of the recount of votes by the Returning Officer, when there are no allegations that the recount has been conducted, partially or inaccurately, the mandate of the electorate is clearly in favour of the respondents. Therefore, to keep the loser intact would be against the will of the voters and highly inequitable.
' In the light of above, I hereby dismiss this petition, with no order as to costs.