' MUHAMMAD JEHANGIR ARSHAD, J.---The petitioners who are returned/ successful candidates of Union Council No,13 City Bahawalpur are aggrieved of the order dated 31-1-2006 passed by learned District and Sessions Judge, Bahawalnagar as Election Tribunal of District Bahawalpur, whereby the learned Election Tribunal during trial of the Election Petition filed by respondents Nos.1 and 2 against the petitioners, on the oral statement of learned counsel for the respondents Nos.1 and 2 dated 31- 1-2006, directed recounting of votes.
2. The facts in brief are that as a result of election of Union Council No,13, City Bahawalpur contested beiween the petitioners and respondents Nos.1 and 2, the petitioners were declared successful as Nazim and Naib Naizm of the said Union Council having secured 2203 votes as against respondents Nos.1 and 2 who secured 2187 votes. Against the said election of the petitioners, the respondents Nos.1 and 2 filed Election Petition before the Election Tribunal in terms of rule 65 of the Punjab Local Government Elections Rules, 2005 on various grounds mentioned in the Election Petition (Annex-C to this petition). The petitioners filed written reply (Annex-D to this petition). However, respondents Nos.1 and 2 through their learned counsel made a statement on 31- 1-2006 that they would confine their grievance to the extent of recounting of votes only and would not agitate any other ground. The learned Election Tribunal recorded statement of Mian Muhammad Anwar, Advocate learned counsel for respondents Nos.1 and 2 on 31-1-2006 and after brushing aside the objection of learned counsel for the petitioners for completion of trial on merits, passed the following order:-- "In view of the request and statement of learned counsel for the petitioners duly signed by petitioner No,1, a letter be sent to the District and Sessions Judge/District Returning Officer ,Bahawalpur with the desire to communicate the direction of this Tribunal to the Returning Officer Union Council No,13 City Bahawalpur to send the Polling Bags of Union Council No,13 Bahawalpur City for 15-2-2006."
' The above order of the learned Election Tribunal, is subject-matter of this writ petition.
3. As directed by this Court on 13-2-2006 the respondents Nos.1 and 2 entered appearance through their learned counsel Malik Muhammad Aslam Channar, Advocate. On Court query whether respondents Nos.1 and 2 would like to file written statement in view of admission of writ petition, the learned counsel for the contesting respondents in expressed terms made statement that respondents do not intend to file any written statement as according to him the writ petition could be decided after hearing the arguments of learned counsel for the parties only.
4. It has been argued by Mr. Masud Ahmad Khan, Advocate learned counsel for the petitioners that respondent No,1/learned Election Tribunal could not direct recounting of votes without the conclusion of trial which includes recording of evidence in terms of rule 75 of the Punjab Local Government Elections Rules, 2005, as well as in view of series of following judgments of the superior Courts; the Election Tribunal had no jurisdiction to order recounting of votes without either recording consent of the parties or evidence necessitating recounting of votes and not otherwise:- - "Nawab Khan and others v. Qamar-ud-Din and others" (1999 SCM R 299).
"Mian Muhammad Farooq v. Election Tribunal Punjab and others" (1988 MLD 2949 Lah.).
"Abdul Majeed and another v. Election Tribunal/District Sessions Judge and 7 others" (PLD 2002 Lahore 654); "Rai Asghar Ali Khan v. District and Sessions Judge, Kasur and 2 others" (2002 YLR 1324).
"Kanwar Ijaz Ali v. Irshad Ali and 2 others" (PLD 1986 SC 483); and "Zulfiqar Ali v. Election Tribunal/Civil Judge 1st Class, Khanpur and 5 others" (1999 YLR 355).
4-A. On the other hand, Malik Muhammad Aslam Channar, Advocate appearing on behalf of respondents Nos.1 and 2 by placing reliance on the case "Sheikh Iftikhar-ud-Din and another v.
District Judge, Bahawalpur Exercising Powers of Election Tribunal for Union Council of District Lodhran and 8 others" (2002 SCM R 1523) has argued that the learned Election Tribunal committed no illegality by directing recounting of votes even without recording of evidence and that the said order of the Election Tribunal being interim in nature, was not amenable to constitutional jurisdiction of this Court. Learned counsel in support of his contentions has also placed reliance on the case "Haji Noor Muhammad Khan v. S.A. Majeed and another" (2002 CLC 254), "Muhammad Afzal v. District Judge/ District Returning Officer, Sargodha and 3 others" (2002 CLC 310) and Sardar Rehmat Ullah Dogar v. Additional District Judge, Kasur and 10 others (1999 M LD 2847).
5. The arguments of learned counsel for the parties mentioned above have been considered in the light of the law declared by the superior Courts in the above cited judgments.
6. Although this Court is slow in exercising constitutional jurisdiction against the interim order yet the same is not the rule of thumb and in case where the impugned order had decided the controversy finally on a specific point and the same prima facie suffer from jurisdictional defect this Court cannot sit as an idle spectator on the technical bar of non-interim matter as the same would amount, to perpetuating the illegal order/illgotton gain as held by the apex Court in "Secretary to the Government of the Punjab, Forest Department, Punjab Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 SC 415) and "Mst. Kaniz Fatima through legal heirs v. Muhammad Salim and 27 others" (2001 SCM R 1493), hence the objection of learned counsel for the respondents about no-maintainability of this writ petition is overruled. Similarly the reliance by learned counsel for the respondents on the judgment "Sheikh Iftikhar-ud-Din and another v.
District Judge, Bahawalpur Exercising Powers of Election Tribunal for Union Council of District Lodhran and 8 others" (2002 SCM R 1523) cited above, is not only inapt but also has no application to the facts and circumstances of the present case. In an unreported judgment dated 24-10-2005 passed by my learned brother Maulvi Anwarul Haq, J., in Writ Petition No,6209 of 2005 at Multan Bench the above judgment of the Hon'ble Supreme Court has been observed to be distinguishable by holding:-- "Now it will be seen that in the said case of Sheikh Iftikhar-ud-Din and another being relied upon by the learned counsel for the respondents, the categorical allegation was that in the Polling Station in question, the Presiding Officer had treated as valid the ballot papers which did not carry official marks and the background brought to the notice of their Lordships was that earlier the Returning Officer himself had directed the concerned Presiding Officer to recount the votes which he had earlier treated as valid and then proceeded to reject. The rule laid down earlier by their Lordship was, thus, attracted. However, in the present case, as noted by the above, the matter could not have been decided without recording evidence.
7. On the other hand, a perusal of rule 75 and the law laid down by the superior Courts in the judgments cited by learned counsel for the petitioners, no ambiguity is left at all that recounting votes is possible only with the consent of both the parties or after the conclusion of trial including recording of evidence and not otherwise. In present of following observation of the Hon'ble Supreme Court of Pakistan in the case "Kanwar Ijaz Ali v. Irshad Ali and 2 others" (PLD 1986 SC 483) and followed in all the subsequent judgments i.e, "recount cannot be ordered a a matter of right but only on basis of evidence to the effect that there are good grounds for believing that there has been a mistake in the counting", one cannot approve the method adopted by the learned Election Tribunal through the impugned order and this Court has no option but to declare the same as without lawful authority.
8. Before parting with this order, I would also like to mention that the Hon'ble Supreme Court of Pakistan in the case "Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another" (PLD 1986 SC 542) also approved the jurisdiction of the Election Tribunal to order recounting of votes even without recording of evidence, where the parties enter into an agreement of its own free-will for disposal of the matter, and the party agreeing- for recounting without recording of evidence was held guilty of approbation and reprobation except where the party denies of having given consent or pleads mistaken view of the situation or alleges to have been otherwise duped or taken in. Since in the present case the petitioners neither gave their consent for recounting of votes without recording of evidence rather they pleaded for decision of the Election Petition after recording of evidence, nor are guilty of approbation and reprobation, hence, the impugned order cannot be considered as a legal order on this score also.
9. The upshot of above discussion is that this writ petition is allowed and by declaring the impugned order of the learned Election Tribunal dated 31-1-2006 as without lawful authority and of no legal effect, it is held that Election Petition filed by respondents Nos.1 and 2 shall be deemed pending before respondent No,3/Election Tribunal and the same shall be decided in accordance with law. The learned Election Tribunal shall however, ensure accelerated hearing of the Election Petition and try to decide the same within shortest possible time but not disturbing the timeframe of its schedule.
Petition allowed.