MUHAMMAD MOOSA , K. LEGHARI, J.--- The election of Yawar All Khan, the petitioner (before us) was challenged by respondents Nos. 1 and 2 through Election Petition No. 50/2001 before the Election Tribunal for Mirpurkhas/District Judge, Tharparkar at Mithi. It seems that an application was moved on behalf of respondents for recounting of the votes, to which the objections were filed by the petitioner. After hearing the parties, learned Election Tribunal dismissed the application vide order dated 9.2.2002.
After the matter was finally concluded and was fixed for pronouncement of judgment. Learned Tribunal on perusal of record arrived at the conclusion that recounting of ballot papers of two polling stations was essential. Accordingly, learned Election Tribunal passed a suo motu order dated 2.10.2003 for recounting of the votes of the polling stations as mentioned in the order. The petitioner (before us) moved an application before the Election Tribunal for reviewing the said order on the ground that it was without jurisdiction, as, such request made by the respondent/petitioner was earlier disallowed and that it would amount to review of the earlier order which was not vested in the Election Tribunal. The Election Tribunal was, however, not obliged to review the order passed earlier and dismissed the said application vide order dated 23.10.2003.
Being aggrieved of the said order, this petition has been filed.
2. It was contended by Mr. Anwar Jamal, learned counsel for the petitioner, that as provided under Section 40 of the Sindh Local Government Elections Ordinance and the Rules, 2000, the Election Tribunal had no powers to recount the ballot-papers. He further argued that the Election Tribunal committed illegality in reviewing its own order, more particularly, when the application moved in this regard was already dismissed. Thus, the Tribunal acted without lawful authority.
3. Conversely, learned counsel appearing for the respondents argued that the Tribunal was vested with the powers of recounting. He drew our attention to the cross-examination of petitioner Yawar A.I, in which he has stated in clear terms that he has no-objection to the recounting of the votes at the Polling Stations Rabia Basri Primary School and Rabia Basri High School, Mirpurkhas.
4. Learned Addl. A.-G. Has referred the case of Iftikharuddin and another v. The State (2002 SCM R 1523) to contend that in the election matters it will be entirely in the interests of justice and fairplay if each ballot-paper is scrutinized by the Tribunal to examine and verify the validity of the same.
5. The arguments rendered by the respective counsel have been considered and the material placed on the record has been perused.
6. On perusal of the Election Petition, it transpires that in para. No. 10 of the petition, the petitioners have specifically stated that they reasonably believe that if the recounting is ordered and the illegalities and malpractices are observed, the petitioners will have the highest votes. it is true that Section 40 of Sindh Local Government Elections Ordinance and the Rules, 2000 have imposed certain restrictions on the powers of the Returning Officer in respect of recounting but reference thereof, so tar as the powers of the Tribunal are concerned, is absolutely misconceived.
The contention raised by learned counsel is untenable.
The Election Tribunal has ample powers to scrutinize the validity of the ballot-papers and the votes polled in favour of the contestants. The case law relied upon by learned Addl. A.-G., viz., Iftikharuddin and another v. The State (supra) is exactly on the same point. It has to be followed and we humbly do that.
7. Adverting to the second contention raised by learned counsel for the petitioner, it may be stated that no doubt the Election Tribunal has earlier rejected the application moved by the respondent/petitioner. But passing of the impugned order for recounting was necessitated as, at the time of recording the judgment, when the learned Tribunal perused the record, he formed an opinion that recounting was inevitable to arrive at a just legal and valid decision. Learned Tribunal has assigned very cogent and plausible reasons. Accordingly, we do not see any illegality and/or impropriety in such orders.
For the foregoing reasons, we do not find any merit in the petition, which is, accordingly, dismissed alongwith listed application. .