1. AMIR HANI MUSLIM, J.---Through this petition, the petitioner has impugned the order, dated 3-4- 2006 passed by the learned respondent No.4 by which he has declared the respondent No.1 as 'Returned' Candidate in the Election Petition No.1 of 2005 filed by him on the basis of the result of the recount.
2. The facts as they appear from the pleadings of the parties are that the respondent No.1 contested election for the office of Taluka Nazim Taluka Bharia District Naushahro Feroze, against the petitioner and other respondents 6 to 10.
3. The record shows that the respondent No.1 at the scrutiny stage had objected to the eligibility of the petitioner to contest the election before the Returning Officer which objection was overruled by the Returning Officer and such order was affirmed by the Appellate Forum. The elections were held and its results were announced on 6-10-2006 and the petitioner was declared as Returned Candidate. The petitioner according to the election results had secured 63 votes as against the respondent No.1 who had secured 62 votes. The record reveals that on 7-10-2005 the respondent No.1 had approached the respondent No.4 for recount of the votes, which application was apparently not decided by him. As a result of which the respondent No.1 filed C.P. No.457 of 2005 before the Principal Seat of this Court and by order, dated 25-10-2005, the said petition was disposed inter alia, on the ground that since the Election Tribunal has been constituted therefore, the respondent No.1 may avail his remedy by approaching the respondent No.4.
4. The respondent No.1 had filed Election Petition No.1/2005 before the respondent No.4 against the petitioner impleading respondents Nos. 6 to 10 inter alia, on the ground of his ineligibility to contest election and hold the office of Taluka Nazim. It was also pleaded in the election petition that the petitioner in connivance with the Presiding Officers of different polling stations has got excluded his three valid votes from count. Besides the aforesaid allegations, the respondent No.1 has further alleged that the petitioner has secured the votes by corrupt practice in connivance with the election staff.
5. Along with the election petition, the respondent No.1 has made an application for recount of votes, which application was allowed by the respondent No.4 against which, the petitioner preferred a C.P. No.34 of 2006 before this Court, which petition by order, dated 3-3-2006 was dismissed in limine, affirming the order of the respondent No.4.
6. The petitioner preferred a Civil Petition for Leave to Appeal (C.P.L.A. No.K-96 of 2006) before the Honourable Supreme Court impugning the order of the respondent No.4 and this Court passed in the C.P. No.34/2006 by which recount was ordered. The Honourable Supreme Court refused leave to the petitioner and dismissed the petition affirming the orders impugned in the petition. The respondent No.4 as a result of this had undertaken the exercise of the recount of votes in presence of the petitioner, respondent No.1 their counsel, besides the President and the Secretary of the District Bar Khairpur and the Senior Member Managing Committee of Khairpur Bar. The respondent No.4 on examination of the votes, respondent No.1 out of the 62 votes secured by him found that three ballot papers were bearing distinct mark of identification and had excluded it from count as invalid votes. The respondent No.4 held that since these three votes of the respondent No.1 were bearing different marks in addition to the stamp, he declared these 3 votes as invalid and as a result of which the respondent No.1 according to the recount was declared to have secured 59 votes instead of 62 votes.
7. As against this, the respondent No.4 has taken out from the petitioners envelope the votes which were 62 in number. On examination of these votes the respondent No.4 found that five votes out of 62 had double stamping. It was noticed by him that two of the such five votes which were stamped twice had a stamp against the name of the petitioner as well as against another candidate and remaining three votes which had double stamp, the stamp was appearing against the name of the petitioner as well as substantial portion of the second stamp was appearing against the name of the other candidate. The respondent No.4 therefore, held that these five votes counted in favour of the petitioner which had five double stamp were invalid votes and had excluded them from count.
8. In such manner on recount of the votes of the petitioner, it was found that the petitioner had secured 57 votes instead of 62 votes. The challenged vote which was cast in favour of the petitioner was also counted in his favour and the respondent No.4 has held that the petitioner in all has secured 58 votes. After the recount, the respondent No.1 had made an application that the election petition be disposed of in terms of the result of the recount, which application was allowed by the respondent No.4 and the election petition was allowed by declaring the respondent No.1 as returned candidate who was declared to have secured more votes (59 votes) as against the petitioner (58 votes).
9. This order of the learned respondent No.4 has been impugned in this petition with the following prayer:-
(a) Order, dated 30-4-2006 passed by the Election Tribunal/District Judge, Khairpur declaring the respondent No.1 a returned candidate be set aside and be declared null and void.
(b) The notification issued by Election Commission of Pakistan declaring the respondent No.1 as returned candidate be set aside and be declared null and void.
(c) Stay the operation of the notification pending final disposal of this petition.
(d) This Honourable Court may be pleased to call the record of ballot papers and appoint any other person/officer to examine the record/papers once again in the light of the objections' raised in the preceding paras. of this petition.
(e) Declare the action of recounting on the part of the Presiding Officer as illegal, ultra vires, showing total partiality.
(f) Any other relief or reliefs as this Honourable Court may deem fit and proper.
(g) As consequence thereof petitioner be declared as a returned candidate.
10. It has been contended by the learned counsel for the petitioner that the petitioner had in fact secured 63 votes under the previous results and the envelop containing the votes of the petitioner had only 62 votes of the petitioner and one vote was missing, therefore, he submitted that the Election Authority in connivance with the respondent No.1 has misplaced one vote of the petitioner as a result of which deprived the petitioner who has lost by one vote. The next contention of the learned counsel for the petitioner was that the respondent No.4 was in error when he excluded from count the five votes of the petitioner which were stamped twice. The petitioner's counsel submitted that mere double, stamping would not invalidate a vote from count. The last submission of the petitioner's counsel was that the respondent No.4 should have also counted the counterfoils while recounting the votes of the parties. According to him, the refusal to count and examine counterfoils by the respondent No.4 itself was sufficient ground to set aside the impugned order by which respondent No.1 was declared as returned candidate.
11. As against this, the learned counsel for the respondent No.1 submitted that the exercise of recount was undertaken by the respondent No.4 not only in presence of the parties and their counsel he even had invited the President and Secretary of the District Bar besides a Member of the Managing Committee of the Bar Council with the sole object to ensure transparency. He submitted that the arguments of the learned counsel for the petitioner are without force and are foreign to the provision of the Election Rules, 2005.
12. We have heard the learned counsel and have perused the record.
13. The first argument of the learned counsel of the petitioner that one vote of the petitioner was missing when the envelopes were opened is without force as we have noticed that in the Election Petition No.1 of 2005, the respondent No.1 had pleaded that the petitioner and the respondent No.1 both had secured 62 votes each and one vote of the petitioner, which was challenged by the respondent No.1 on the ground of his disqualification was kept in a separate envelope and on count of the said challenged vote, the petitioner had secured 63 votes, therefore, there was no discrepancy as far as the number of the votes of the petitioner was concerned.
14. The next contention of the learned counsel of the petitioner that double stamp on a vote by a voter by itself does not invalidate a vote from exclusion of count if mark of second stamp does not have full impression against the name of a different candidate. With profound respect, this argument is contrary to the language of rule 30(b)(ii) of the Election Rules, 2005. The said rule provides that a voter has to put the mark and rubber stamp on the ballot paper at the place within the space containing the symbol of contesting candidate of his choice. This sub-rule does not permit the voter to mark the stamp twice in such manner that its impression appears against the name of another candidate. We are clear in our mind that such double stamped votes are spoiled votes and were rightly excluded form count by the respondent No.4.
15. The last contention of the learned counsel for the petitioner was that the respondent No.4 should have also examined the counterfoils while undertaking the exercise of recount of the votes. The counting and re-counting of the votes is confined to the ballot papers which are detached from the counterfoils and given to the voter. The provision of rule 36 of the Election Rules, 2005 pertain to the count of ballot papers/votes and it does not include the examination and counting of counterfoils as has been contended by the petitioner's counsel.
16. We for the aforesaid reasons do not find any infirmity in the impugned order of the respondent No.4 which could warrant interference by us in exercise of constitutional jurisdiction. We, therefore, dismiss this petition in limine, along with the listed-application.