MUHAMMAD JEHANGIR ARSHAD, J.--- Through this single order, I propose to dispose of the instant writ petition as well as Writ Petition No.3460 of 2006, as common questions of law are involved in both these matters. Through Writ Petition No.3500 of 2006 the order, dated 23-6-2006 and vide Writ Petition No.3460 of 2006 the order, dated 22-6-2006 passed by Election Tribunal in the election petitions filed by contesting respondents, have been challenged whereby recounting of votes without recording of evidence was ordered, on the strength of judgment of Honourable Supreme Court of Pakistan recorded in Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCM R 1699 holding (sic):-
2. The contentions raised in both these petitions against the impugned orders are:--
(i) That no doubt the power of recounting of votes without framing issues and recording of evidence is available to the Election Tribunal yet the fact remains that for exercising such power the Election Tribunal has to record sound and cogent reasons and not merely on the fact that as the Election Tribunal has got such jurisdiction it must be exercised arbitrarily and without discussing the merits of each case on the basis of the material available on record;
(ii) That despite the above mentioned judgment of the Honourable Supreme Court, the law declared by the Supreme Court in its earlier judgment rendered by five Honourable Judges in the case Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483 holding that recounting of ballot- paper could only be ordered if conditions laid down in that behalf are fulfilled and the Returning Officer is satisfied that request is reasonable and that vague allegations not containing the material facts cannot form a ground for recounting and further that recounting cannot be ordered as a matter of right but only on the basis of evidence to the effect that there are good grounds for believing that there has been mistake in counting, has not been overruled and still holds the field; and (i.e) That in view of the law declared by Honourable Supreme Court of Pakistan in the case of Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCM R 1201, the judgment rendered by a larger Bench would have a binding effect as against the judgment of a Bench consisting of Judges less than the Full Bench.
3. On the other hand, Mr. Muhammad Arif Alvi and Mr. Muhammad Khalid Ashraf Khan, Advocates for contesting respondents have vehemently argued that after recording of evidence the Election Tribunal has only to decide the necessity of recounting, therefore, no useful purpose would be served by framing issues or recording of evidence for deciding the question of recounting of votes which would be an exercise in futility and in order to avoid delay in the decision of the election petition and wastage of time, the law declared by Honourable Supreme Court in Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCM R 1699 was rightly followed by the Election Tribunal while passing the impugned order and these petitions have no force having been filed against interim orders which should be dismissed. To this effect reliance has been placed on the ease Nawab Khan and others v. Qamar-ud-Din and others 1996 SCM R 1165.
4. At the very outset, I have no hesitation in holding that case-law' declared by Honourable Supreme Court in Muhammad Naeem Kasi and A another v. Abdul Latif and 7 others 2005 SCM R 1699 does say that Election Tribunal has got jurisdiction to order recounting of votes without framing of issues or recording of evidence but the fact remains that before passing such order the Election Tribunal must give sound and sufficient reasons indicating requirements of recounting of votes without framing of issues and recording of evidence. In both these writ petitions the Election Tribunal' directed recounting of votes, without framing issues or recording evidence, just placing reliance on the above mentioned judgment of the Honourable Supreme Court, whereas through the said judgment the Honourable Supreme Court neither reviewed its earlier view taken in Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483 nor held the same mandatory that in every case the Election Tribunal must direct recounting of votes just on the desire of the parties. Even otherwise, a bare perusal of the judgment of Honourable Supreme Court in Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCM R 1699 shows that said judgment only explains the position that there is no prohibition under Baluchistan Local Council Election Rules, 2000 (similarly in Punjab Local Council Election Rules, 2005 that Election Tribunal cannot order recounting of votes without recording evidence. But it does not say that the Election Tribunal either cannot refuse to order recounting of votes without recording of evidence or must exercise such jurisdiction even at balled assertion of the election petitioner. The said judgment further indicates that same was given when parties expressly or impliedly consented about the decision of the dispute in a manner not involving lengthy procedure of law and such decision in such manner was not prohibited by law and the parties would be stopped B from subsequently raising objections to the disposal of the matter in such-like manner and same was the view taken by the Honourable Supreme Court in one of its earlier decisions in case Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542. I am, therefore, satisfied that the Election Tribunal in both these matters has not only misconstrued the law declared by Honourable Supreme Court in Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCM R 1699 but also acted illegally and without jurisdiction by directing recounting of votes even without framing of issues and recording of evidence and thus, exercised the jurisdiction in violation of the law declared by Honourable Supreme Court of Pakistan in the case Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483 which is a judgment given by a larger bench and still hold the field.
5. I am, therefore, inclined to agree with the contention of learned counsel for the petitioners that Election Tribunal can order recounting of votes even without recording of evidence but after recording strong and sufficient reasons for such exercise of jurisdiction. But as held above in both these petitions, the learned Election Tribunal proceeded to direct recounting of votes not only by misconstruing the law declared by the Honourable Supreme Court in Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCM R 1699 but also acted just at the whim and pleasure of the election petitioner. Resultantly, both these writ petitions are allowed, the impugned orders of the Election Tribunal dated 22-6-2006 and 23-6-2006 are declared as without lawful authority and of no legal effect. The Election Tribunal shall now proceed with the trial of election petitions afresh and in case the Election Tribunal feels that in a specific case recounting of votes can be ordered even without recording of evidence, the Election Tribunal may pass a fresh order by giving sound and sufficient reasons but not on the sole ground it has the jurisdiction to do so.