UMAR ATA BANDIAL, J.--- The premise upon which the impugned order by the learned Election Tribunal proceeds is that total votes cast for the other seats at the common polling stations is different from the total votes cast in the election for the seat of Nazim/Naib Nazim of the Union Council. The consideration is that variation in the total of votes reflects a material irregularity which the learned Tribunal ought to examine through a recount of votes cast.
1. Learned counsel for the petitioner/incumbent submits that the learned Election Tribunal has no grounds for concluding that in the case of Nazim's election the total is wrong but in the case of the election held for other seats in the same polling stations it is correct. The impugned order can be given effect only if entire election for the other seats as well as for the Nazim's seats is revisited. But neither the tenor of the impugned order nor purport the election petition suggests that result. He submits that no material facts to sustain relief of recount have been laid before the learned Tribunal in accordance with rule laid down in the case of Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483 and therefore, the impugned order is illegal. The matter in question should therefore go to trial upon the issues already framed by the learned Election Tribunal.
2. Learned counsel for the respondent has relied upon the judgment of Honourable Supreme Court in Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCM R 1699 and analogous case-law referred in the learned Tribunal's order. He further submits that impugned order is interim in nature and cannot be assailed in writ jurisdiction.
3. The precedent of the Honourable Supreme Court does not exonerate an election petitioner from setting out the material facts in his election petition for seeking recount of votes. In the present case, the election petition does not make any such disclosure or prayer. The allegations made therein are sweeping in nature without specific mention of any illegal acts that may invite an order of recount. Indeed the controversy about an election need not to be dragged unnecessarily in Court but at the same time when such a controversy is raised, it should be decided on evidence in accordance with law, unless a case is made out for recount of votes. In the present case, the allegations are vague and sweeping and fall foul of the rule laid down in Kanwar Ijaz's case. The short cut approach adopted by the learned Tribunal fails to record the factual justification for the relief given which is capable of having a terminal effect and is therefore not an interim order as contended.
4. Resultantly, in the absence of respondent placing material before the learned Tribunal to justify recount of votes the impugned order dated 22-5-2006 is declared to be illegal and void.
Consequently, the election petition shall be decided on merits in accordance with law after recording evidence of the parties. .