1. Amir Hani Muslim, J.--Through this petition the petitioners have impugned the order dated 18-3- 2006 passed by the Respondent No. 13 whereby he has declared the whole elections as void as a consequence the petitioners who were declared as returned candidate were unseated.
2. The facts as it appears from the record are that Respondents Nos. 1 and 2 contested election for the seat of Nazim and Naib Nazim of U.C. Shah Abdul Latif District Khairpur and the Respondents Nos. 1 to 10 were also contesting candidates. The petitioners secured 1726 votes and were declared returned candidates, whereas Respondents Nos. 1 and 2 had secured, 1576 votes.
3. The Respondents Nos. 1 and 2 had challenged the election of the petitioners by way of Election Petition No. 7 of 2005, before the Respondent No. 13 inter alia on the ground of corrupt and illegal practice. The petitioners on service of the notice filed their written statement denying the averments made in this petition and in the intervening period the Respondents Nos. 1 and 2 made an application before the Tribunal which is reproduced as under: "For the reasons mentioned in an appended affidavit, it is prayed on behalf of the petitioners that this Honourable Court/Tribunal may be pleased to conduct re-checking and re-counting of the ballot papers cast during the poll, after calling the same from concerned returning officer and scrutiny thereof."
4. This application was supported by the affidavit of the Respondent No. 1 in which it was prayed that the Respondent No. 13 may undertake exercise of re-count of ballot papers cast during the polls.
5. This application was consented to by the petitioners and apparently it was agreed between the parties that the petition would be disposed of in terms of the result of the proposed re-count.
6. However, we have noticed that in the order dated 21-102005 the Respondent No. 13 while disposing of the application of the Respondents Nos. 1 and 2 had inadvertently added the word "with counterfoils which prayer was missing in the original application for which no explanation of the Respondent No. 13 is available on record. It appears that the ballot papers were counted in the recount by the Respondent No. 13 in presence of the parties and the petitioners secured 1611 votes whereas the Respondents Nos. 1 and 2 secured 1445.
7. The grievance of the petitioners is that instead of dismissing the petition in terms of the result of recount, the Respondent No. 13 travelled further by recounting the counter-foils of ballot papers and held that there were irregularities in the counter-foils and influenced by such irregularities the Respondent No. 13 in absence of proof against the petitioners had declared the election as a whole void inter alia on the ground that the petitioners adopted corrupt, illegal practice, illegal acts in collusion with the polling staff. According to the learned counsel for the petitioner the findings recorded in the impugned order by the Respondent No. 13 in absence of the proof was nullity. He submits that this was done on the mere allegation contained in the election petition 'which cannot be equated as evidence.
8. As against this the learned counsel for the Respondents Nos. 1 and 2 submits that such finding "could be recorded by the Respondent No. 13 in absence of proof. He submits that even Hon'ble Supreme Court has endorsed such an action and he has relied upon the case of Muhammad Naeem v. Ashraf reported 2005 SCM R 1130 and in the case of Rana Muhammad Mustafa v. Javed Iqbal Siddiqui reported 2004 YLR. 993.
9. Mr. Shahani learned Addl. A.-G. has not supported the impugned judgment.
10. We have heard the learned counsel and have perused the record. We find that the Respondent No. 13 has travelled beyond the scope of the application made to him by the Respondents Nos. 1 and 2 for disposal of the election petition inasmuch as the word counter-foils introduced by him in his consent order dated 21-10-2005 was not there in the original application of the respondent Nos. 1 and 2. We are further surprised to notice that Respondent No. 13 without providing the opportunity to parties to lead evidence and had proved allegation of corruption on the part of the petitioners gave finding against the petitioners on an interlocutory application holding that they were responsible for corrupt and illegal practice. There is nothing on record which could show that any person either from the respondents side or from the side of Election. Commission were examined by the Respondent No. 13.
11. The Respondent No. 13 has no basic knowledge of election laws and finding of such a nature unseating the petitioners was misuse and abuse of judicial power. We have further noticed that the Respondent No. 13 had treated the allegations made in the petition as proof against g the petitioners evidence to unseat the returned candidates defeating the intent of the voters of the constituency in absence of any proof. Pleadings of the parties can never be treated as evidence.
12. There was no occasion for the Respondent No. 13 to hold that any irregularity committed in the counter-foil by the election authority or violation of any rule by them would unseat petitioners unless it was proved by evidence. Even otherwise the Respondent No. 13 has overlooked the provision of Rule 76(2)(a) of the Sindh Local Government Elections Rules, 2005, which provides that even if any corrupt or illegal practice has been committed if the Tribunal is satisfied that it was not committed by or with the consent or connivance of that candidate. The satisfaction of the Tribunal has to be objective satisfaction which in the case is missing. The returned candidate on the basis of allegations contained in an election petition cannot be un-seated on the basis of examination of counterfoils which reflect that election staff has not followed the rules, in absence of proof that the Returned candidate was instrumental in commission of such violation. The judgments cited are distinguishable on facts. We for the aforesaid reasons allow this petition.
13. Before parting with the order we feel that the Respondent No. 13 has passed the impugned order, overlooking the provisions of election laws, ] and ignoring the settled principles that party which alleges a fact has to prove it. The impugned order passed by the Respondent No. 13 was passed on the outcome of an interlocutory application for recount. The Respondent No. 13 did not record evidence and gave finding against the petitioners which alone speaks volumes. We therefore recommend disciplinary action against the Respondent No. 13 and direct the office to send this order to the M.I.T. for placing it before the Hon'ble Chief Justice for appropriate orders.