MUHAMMAD MUZAMMAL KHAN, J.--- Instant constitutional petition challenged order dated 14-3- 2006 passed by the learned District and Sessions Judge, Mandi Bahauddin with the powers of Election Tribunal, to be declared illegal, void and of no legal consequence, whereby recount of ballot-papers was ordered and Returning/Treasury Officers were directed to arrange production of polling bags.
2. Precisely, relevant facts are that writ petitioners being joint candidates for the office of Nazim/Naib Nazim of Union Council 65 (Shadiwal) District Gujrat, contested the recent local bodies elections held in August, 2005 and as per result consolidated by the Returning Officer in Form XVI prepared under rule 38 of he Punjab Local Government Election Rules, 2005, were declared successful by securing 2731 valid votes. Opponents of the petitioners (respondents Nos,2 and 3) secured 2644 votes, whereas the other set of contestants (respondents Nos,4 and 5) could only secure 165 votes. This result was transmitted to the District Returning Officer and to the Election Commission of Pakistan for notification under the relevant provisions of the Ordinance, 2001.
3. Respondents Nos,2 and 3, being aggrieved of the result of the election, approached the Election Commission of Pakistan praying recount of votes and successfully got an order of recount but earlier to its implementation, the same was recalled through a general notification dated 3-9- 2005, mainly on the ground that after notification of results the only available forum for recount of ballot-papers was the Election Tribunal. On the basis of this notification the Returning Officer vide his order, dated 14-9-2005 consigned the reference sent to him, in this behalf.
4. Respondent No,3 thereafter filed an election petition before the notified Election Tribunal (respondent No,1) seeking recount of ballot-papers etc. which was allowed to be withdrawn vide order, dated 14-9-2005 as certain legal formalities were not observed and respondent No,3 was permitted to file fresh election petition. Then respondents Nos,2 and 3 on 21-9-2005 filed fresh election petition, wherein they raised certain corrupt/illegal election practices and prayed for fresh polls.
5. Petitioners being respondents in the election petition contested the same by filing their written replies, controverting the allegations in the election petition, besides raising certain preliminary objections. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Respondents Nos,2 and 3 produced two witnesses (A.W.1 and A.W.2) whereafter they moved an application for recount of ballot-papers under the orders of the Election Commission of Pakistan, dated 30-8-2005 but this prayer was opposed by the petitioners, relying on notification dated 3-9-2005.
6. The learned Presiding Officer of the Election Tribunal after hearing the parties on application of respondents Nos,2 and 3 directed recount of ballot-papers and required the Returning Officer/Treasury Officer to arrange production of concerned polling bags on the next date i,e, 22-3- 2006. Petitioners being aggrieved of the order of recount, filed instant constitutional petition with the relief, noted above. This petition was listed for urgent hearing on 22-3-2006, and a pre- admission notice was ordered to be issued to respondents Nos,2 to 5 and order of recount was suspended, allowing the proceedings on the election petition to continue. Order of suspension of recount was required to be conveyed to the Election Tribunal telephonically at the expense of writ petitioners. Respondents in response to notice by this Court appeared and were represented through their counsel.
7. Respondents Nos,2 and 3 who are real contestants, have also filed their parawise comments in form of written statement, wherein they claimed that recount was done by the Election Tribunal on 22-3-2006, wherein the writ petitioners participated by agreeing to recount of only one Polling Station No,7. It is further narrated by respondents Nos,2 and 3 that at the time of recount of ballot- papers, no injunctive order had been issued by this Court and the learned Presiding Officer of the Election Tribunal relying on statement of the learned counsel for the writ petitioners, undertook the exercise of recount.
8. I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, this Court on 22-3-2006 had suspended order of recount of ballot-papers passed by the Election Tribunal and the recount was also done the same day. Proceedings of the recount revealed that order passed by this Court was not in the notice/knowledge of the Presiding Officer. I had requisitioned a report from the Deputy Registrar (Judicial) of this Court about the fact that at which time the restraint order dated 22-3-2006 was conveyed to the Election Tribunal, according to which the order was conveyed telephonically and fax message at about 2-30 p.m.
There is nothing on the file to the effect that at what time the recount was done by the Election Tribunal but in the ordinary course of events, the Presiding Officer who was to discharge dual functions of District and Sessions Judge and as an Election Tribunal must have undertaken the exercise of recount the ballot-papers in latter part of the working hours of this Court i,e, till 3-00 p.m. In this factual background two primary questions hinge for determination by this Court, first being that at what time injunctive order of this Court would become effective/operative/binding and the other being that in absence of any evidence/material, justifying recount of ballot-papers, the same could have been ordered on the basis of an order, dated 30-8-2005 passed by the Election Commission of Pakistan.
9. Earlier to taking up the above-referred questions for their answers, it is not disputed by the parties that application of respondents Nos,2 and 3 whereby recount of ballot-papers has been ordered, was taken up midst of recording of their evidence and statements of only two witnesses had been recorded by that time. It is also not controversial that except statements of A.W.1 and A.W.2, there is no other material on the file in support of recount ordered by the Election Tribunal.
Depositions of A.W.1 and A.W.2 are only to the effect that at Polling Station No,7 established in Girls Primary School, two unknown persons entered and took away certain votes forcibly and both of these witnesses were unanimous that counting of votes was done at Polling Station No,7 at their back. Statements of these witnesses even if accepted to be true might have furnished some basis for redpoll of votes at Polling Station No,7 but did not justify recount of ballot-papers especially when the petitioners had not been granted an opportunity of leading evidence in rebuttal. Law regarding recount of ballot-papers is firmly settled by this time to the effect that the same cannot be ordered unless it is justified on the basis of evidence/material on the file and this view had been formed on the basis of consistent judgments by the Honourable Supreme Court in the cases of Nawab Khan and others v. Qamar-ud-Din and others 1999 SCM R 299; 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; Muhammad Tariq Zakhmi and others v. Election Tribunal and others 2002 SCM R 1995; Liaquat Ali and another v. Election Tribunal, Sialkot and others 2003 SCM R 1313 and Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCM R 1699.
10. From the resume of above formed questions, order of recount by the Election Commission of Pakistan dated 30-8-2005 stood rescinded through a general notification by the Election Commission itself dated 3-9-2005 requiring the parties interested in recount to approach the Election Tribunals already notified where recount of ballot-papers could not be claimed as of right and the same, was not to be ordered in routine but to be decided in light of above referred judgments by the Honourable Supreme Court. Notification dated 3-9-2005 was aptly issued by the Election Commission, as power of the Returning Officer to recount ballot-papers under Rules 36(6)
(ii) of the Rules (bid) even under the directive of Chief Election Commission stood revoked by his transmission of election results in Form-XVI of Rule 38(3) of the same Rules. Besides it, reference received by the Returning Officer under order of recount dated 30-8-2005, was dropped/answered in negative on 14-9-2005, thus, by this order/notification, chapter of recount of ballot-papers under the direction of the Election Commission of Pakistan stood closed and thereafter, this exercise was to be undertaken on the basis of evidence brought by the desirous candidates in their respective cases, which was lacking in the case in hand at the time of passing of impugned order, dated 14-3- 2006.
11. Answer to the above formed first question brings me to determine the fate of recount of ballot- papers returned by the Election Tribunal on 22-3-2006, on which date the restraint order was also issued by this Court. There is no cavil about the proposition that prohibitory injunctions issued by the subordinate Courts under Order XXXIX rules 1 and 2, C.P.C. becomes operative on service of the persons to whom those are directed but as regards stay orders issued by the superior judiciary of this country including this Court and the Honourable Supreme Court, those become operative the moment those are passed. Said petition was got marked by the petitioners for hearing the same day and the restraint order must have been issued earlier to 1-00 p.m. as according to the report of Deputy Registrar (Judicial) file of the case after dictation of the order, its typing/writing and signing by the Honourable Judge in Chamber of this Court reached office at about 2-15 p.m. and all this exercise involved at least two hours time. Writ petitioners who were marked present by the Election Tribunal during his proceedings might not be aware of the injunctive order passed in this petition at the time of recount of ballot-papers but the same must have been passed earlier to the exercise of recount of ballot-papers. Submissions of the learned counsel for the respondent that the recount of ballot-papers was done with the concurrence of the writ petitioners, thus, this petition required no further determination, has not impressed me to decline invocation of constitution jurisdiction for the simple reason that petitioners did not accept initial order of recount dated 14-3- 2006, which was disputed by them by filing instant constitutional petition before this Court. As far as their consent noted by the learned Presiding Officer of the Election Tribunal in his order, dated 22-3-2006 passed at the time of recount of ballot-papers is concerned, they only agreed to opening of polling bags received from Polling Station No,7 and this consent cannot deprive them to challenge the initial order of recount which had no basis in form of evidence or other material, as noted in the foregoing paragraphs. Scan of record and impugned order clearly depict that order of recount was opposed to the canons firmly settled under the judgments by the Honourable Supreme Court and no such exercise could have been undertaken under the garb of order, dated 30-8-2005 passed by the Election Commission of Pakistan, which was subsequently recalled by it through notification, dated 3-9-2005.
12. For the reasons noted above, impugned order, dated 14-3-2006 was patently unwarranted, illegal and unauthorized and in result thereof, exercise of recount of ballot-papers was also unjustified and in the circumstances of this case, impugned order cannot be allowed to be sustained, thus by accepting instant petition, writ as prayed is issued, with the result that respondent No,1 will, in the first instance, conclude evidence of the parties and thereafter may opt exercise of recount of ballot-papers within a period of one month. Parties are directed to appear before the Election Tribunal for further proceedings on election petition by respondents Nos,2 and 3 on 30-5-2006.