' MAULVI ANWARUL HAQ, J.-- The petitioners, on the one hand, and respondents Nos.2 and 3, on the other, contested elections to the seats of Nazim and Naib Nazim, in Union Council No.45 urban Sahiwal. On the close of the polls, the petitioners were declared returned. The respondents Nos.2 and 3 filed an election petition on 20-9-2005. A written statement was filed by the petitioners on 24-10-2005. On 24-1-2006 the learned Election Tribunal proceeded to order a re-count at Polling Stations Nos.1 and 5 of the said constituency.
2. Learned counsel for the petitioners argues with reference to the contents of the election petition that no specific allegations were there which could be determined without recording any evidence and further that the contents of the election petition stood negated by the very documents appended with the same by the respondent Nos.2 and 3. The learned counsel for the respondents Nos.2 and 3, on the other hand, with reference to the case of Muhammad Naeem Kasi and another v. Abdul Latif and 7 others (2005 SCM R 1699) contends that the impugned order of the learned Election Tribunal cannot be held to be without lawful authority.
3. I have gone through the records of the learned Election Tribunal, with the assistance of the learned counsel for the parties. I have examined the election petition. Para 1 pertains to the factum of the contest of election by the said parties. In para.2 it was stated that under a pre-plan the Polling Agents of the respondents were not allowed to participate in the counting of votes at all the Polling Stations except Polling Stations Nos.1, 3 and 6 and that they were not provided with copies of Form-XIV. In para.3 it was stated that the result which was handed over to the respondents by the Presiding Officer of Polling Station No.1 was to the effect that the respondents had 518 votes while the petitioners had 274 votes. However, the Returning Officer entered 458 votes of the respondents and 334 votes of the petitioners. Similarly, at Polling Station No.5, 202 votes were told to be those of the respondents while 227 votes of the petitioners but according to the result issued by the Returning Officer the respondents had 102 votes while the petitioners had 327 votes.
4. Now on the record I do not find any such result stated to have been issued by the Presiding Officers. I further find that the respondents themselves appended the certified copies of the consolidated result in Form-XV as also of the results issued by the Presiding Officers at all the Polling Stations including Polling Stations Nos.1 and 5. Now at Polling Station No.1, the petitioners have 458 votes while the respondents Nos.2 and 3 have 334 votes. Similarly, at Polling Station No.5, the respondents have 327 votes while the respondents have 102 votes. These statements are available at pages 35 and 55 of the trial Court file.
5. It is but apparent that the learned Election Tribunal has proceeded to pass the impugned order without examining his file much-less applying the mind to the same. In the said circumstances, it cannot at all be said that any specific allegations were made and that some material was available to enable the learned Tribunal to proceed to order a re-count at Polling Stations Nos.1 and 5. Similarly, there is no material available on record to support the contention that an application for re-count had been filed by the respondents before the Returning Officer.
6. Now so far as the said judgment in the case of Muhammad Naeem Kasi and another is concerned, their Lordships took note of the admitted fact that the respondents before them had pointed out the irregularity in the counting of votes at the concerned Polling Station and the change of the result in writing to the Returning Officer and District Returning Officer before the commencement of the official result but the complaint remained unattended.
7. Having, thus, examined the matter, I do find that in the circumstances of the present case, the learned Tribunal had'acted without lawful authority by proceeding to pass the impugned order without going through his file and taking notice of the facts apparent on the face of the record. The writ petition accordingly is allowed. The impugned order dated 24-1-2006 of the learned Election Tribunal is declared to be without lawful authority and is set aside. The learned Tribunal will frame issues arising out of the pleadings, record evidence of the parties and thereafter decide the election petition and upon examination of the evidence so recorded if the learned Tribunal feels that a re-count is necessary, he may so order. The matter to be concluded preferably before the commencement of the Summer Vacations, 2006. No order as to costs.
8. A copy of this judgment along with the records be immediately remitted to the learned Election Tribunal.