1. AMIR HANI MUSLIM, J.--- Through this petition, the petitioner has impugned the judgment passed in Election Petition No,5 of 2005 whereby the respondent No,4 has allowed the petition of the respondent No,5 declaring him as "returned" candidate.
2. The facts as they appear from the record are that petitioner contested the Local Bodies Election, 2005 for Councillor on minority seat from Union Council Baberloi Taluka. Khairpur, against the respondent No,5.
3. According to the result announced by the respondent No,4, the petitioner secured 1724 votes whereas the respondent No,5 secured 1500 votes. The petitioner was declared as "returned candidate".
4. On 24-9-2005 the respondent No,5 filed Election Petition No,D-5 of 2005 before respondent No,4 challenged the election of the petitioner. In the election petition petitioner has prayed for the following reliefs:--
(i) This Honourable Court may be pleased to order re-counting and re-checking of the votes of the petitioner and his rival candidate Hashmat Mal (respondent No,5) and thereby announce the final result of U.C. Baberloi.
(ii) To grant stay order restraining the respondents 1 to 4 from taking oath from respondent No,5 till disposal of main petition.
(iii) To award costs and other relief deemed fit and proper in circumstances.
5. The petitioner was served with the notice of the petition and he filed the written statement/counter-affidavit disputing the averment made by respondent No,5 in the election petition. The impugned judgment reflects that the parties consented that the election petition be disposed of on the basis of the results of the re-count. The respondent No,4 apparently on this arrangement undertook the exercise of re-count in presence of the parties and on re-count declared that the petitioner has secured 1631 votes whereas the respondent No,5 had secured 1434 votes. The learned respondent No,4 instead of dismissing the petition on the results of the re-count had travelled beyond the prayers made in the election petition and without framing the issues and recording evidence has allowed the petition inter alia on the ground of the allegation made in petition and held the election nullity and respondent No,5 as the returned candidate which judgment is impugned in these proceedings.
6. It has been contended by the learned counsel for the petitioner that the learned respondent No,4 has travelled beyond the reliefs claimed by the respondent No,5 in the election petition by allowing the petition on the basis of the allegations pleaded by the petitioner in the memo. of election petition. The learned counsel submits that the parties consented to the disposal of the petition on the basis of the result of the re-count. In re-count the petitioner was declared to have secured. 1631 votes whereas the respondent No,5 has secured 1434 votes and the petition should have been dismissed after the re-count. Instead the respondent No,4 in the impugned judgment has observed that the allegations pleaded by the respondent No,5 in the election petition that the petitioner in collusion with the Polling Officers had ousted the agents of the respondent No,5 and cast bogus votes which fact according to the respondent No,4 was proved by scrutinizing counterfoils. The learned counsel for the petitioner submits that during re-count such an exercise cannot be undertaken to unseat the petitioner and the respondent No,4 in law, was required to frame issues and allow the parties to lead evidence in terms of the procedure laid down in the Sindh Local Government Election Rules, 2005. He submits that the respondent No,4 was in error to give such a finding against the petitioner on the mere allegations of corrupt or illegal practice proving such facts by way of evidence.
7. The next contention of the learned counsel for the petitioner was that the vote/ballot-paper are distinct then the counterfoil and for the purpose of 're-count' only ballot-paper which has valid stamp/seal and signature of the official has to be counted. Once such exercise was completed, the respondent No,4 was in error in falling back on the counterfoils of votes to unseat the petitioner against the procedure provided in law.
8. It was further contended by the learned counsel for the petitioner that respondent No,4 has erroneously held that non-compliance of voting procedure by the Presiding Officers would entail the election as nullity.
9. As against this counsel for the respondent No,5 has argued that the impugned judgment was just and according to him the ballot-papers include counterfoils and therefore, the re-count includes the re-count of counterfoils.
10. Mr. A.R. Faruq Pirzada the learned D.A.-G. did not support the impugned judgment and submitted that ballot-paper is defined under Rule 30 clause 6(3) and excludes, counterfoils. He submitted that the impugned judgment has been passed in ignorance of the provisions of the Election Laws and is liable to be set aside.
11. We have heard the learned counsel and have perused the record. Admittedly the reliefs granted to the respondent No,5 was beyond the prayers of the election petition. The respondent No,5 has confined his reliefs in the election petition for re-count of the votes which re-count was done with the consent of the parties as it appears from the first para. of typed page 2 of the impugned judgment. The learned respondent No,4 had declared that the petitioner has secured more votes than the respondent No,5. The learned respondent No,4 should have dismissed the election petition at this stage alone. What is more interesting is that the respondent No,4 instead of dismissing the petition on the basis of the result of re-count had travelled further by holding that illegal and corrupt practice was committed by the election staff in connivance with the petitioner. The impugned finding in the judgment can be split in two parts. In the first part the Tribunal found the election were rigged and the petitioner was guilty of corrupt practice and in the second part he declared the respondent No,5 as duly elected candidate. The conclusion of the Tribunal was incomprehensible as to the basis the petitioner was found to have been involved in gross rigging and have committed corrupt practices. No doubt certain allegations of corrupt practices were levelled against the petitioner in the election petition filed by the respondent No,5. But the respondent No,5 has confined the prayer for the relief of re-count only which relief was granted by consent. The corrupt and illegal practice is required to be proved by affirmative evidence which has to be direct on the issue. In the present case the allegations pleaded in the petition by the respondent No,5 were held to be the proof of corrupt practice against the petitioner. The Tribunal has neither framed issues nor allowed the parties to lead evidence. In absence of such procedure as laid down in law under the Sindh Local Government Elections Rules, 2005, no finding of corrupt practice can be given by the Election Tribunal against the petitioner. Examination of counter-foils would not lead to establish that the petitioner in connivance with the Election Staff had committed corrupt practice. There was no material before the respondent No,4 to hold that the petitioner has committed any illegal or corrupt practice. Additionally the respondent No,4 has completely overlooked the provisions of Rule 76(2)(a) of the Sindh Local Government Elections Rules, 2005 which provide that even if any corrupt or illegal practice has been committed by the Election Staff and if the Tribunal is satisfied that it was not committed with the consent or connivance of the Returned Candidate then the election of such Returned Candidate cannot be nullified. The word "satisfaction" used in Rule 76 means "objective satisfaction" and not merely based by the allegation of the candidate made in the election petition. A Returned Candidate cannot be unseated on the basis of mere allegations contained in the election petition. In the present case the learned respondent No,4 under the garb of re-count had exceeded his authority by examining the counterfoils which has no nexus with the re-count and had allowed the petition. The respondent No,4 had travelled fell in error by declaring the respondent No,5 as Returned Candidate which prayer was not even made in the election petition. In this regard this Court has already given detailed judgment in Constitution Petition No,D-162 of 2006, dated 26-4-2006 in which incidentally the order impugned was passed by the same Presiding Officer, who has passed the impugned judgment. In the present case we find that there was no material before the respondent No,4 to declare the respondent No,5 was the Returned Candidate. The impugned judgment has been passed without giving any reasons as to why the respondent No,5 has been declared successful.
12. Before parting with the judgment we are constrained to observe again that we would be failing in our duty if we do not record that the Additional Sessions Judge (respondent No,4) while performing the functions of the Election Tribunal did not merely commit an error of law but violated the essential norms of judicial conduct in recording such perverse judgment. The order does not merely reflect inefficiency and ignorance of law but prima facie appears to be tainted with ulterior motive. We would, therefore, recommend that appropriate action may be initiated against him on the administrative side. A copy of this judgment be communicated to M.I.T. for placing it before the Honourable Chief Justice for appropriate orders. These are the reasons of our short order, dated 11- 5-2006 by which we have allowed the aforesaid petition. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.