' UMAR ATA BANDIAL, J.---Learned counsel for the petitioner has assailed the order dated 30-3- 2006 passed by the learned respondent No,1, Election Tribunal on the ground firstly, that there is no jurisdiction for Election Tribunal to order recount of votes and secondly, assuming such jurisdiction to exist, that the application by the respondents Nos.2 and 3 seeking recount of votes does not disclose any valid and sufficient ground for granting the relief.
2. Learned counsel for respondents Nos.2 and 3 have at the outset referred to the judgments of the honourable Supreme Court given in Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCMR 1099 and Sh. Iftikhar-ud-Din and another v. District Judge, Bahawalpur 2002 SCM R 1523 to assert that the learned Tribunal has jurisdiction to order recounting of votes because there is no specific legal bar in granting such relief. Furthermore by relying upon a judgment of the Division Bench of this Court given in Muhammad Iftikhar and another v. District and Sessions Judge, Faisalabad 2003 CLC 254 learned counsel for the respondents have urged that jurisdiction to grant such relief is available with the learned Tribunal which has power to grant relief ancillary to the main relief enumerated in Rule 67 of the Punjab Local Government Elections Rules, 2005 ("Rules"). In addition learned counsel for the respondents submit that a general power has been conferred upon the Tribunal contained in Rule 60(1) of the Rules Wherein the opening of packets containing ballot papers and inspection of ballot papers is permissible to a learned Tribunal at any stage.
Such a wide power can be exercised in order to carry out recount of the votes cast. They rely on the judgment in the case of Malik Irshad Hussian v. Muhammad Ashraf Nagra 2003 YLR 812. Having considered the foregoing position in the law, it cannot be contended that the order for recount of votes passed by the learned respondent No,1 is without jurisdiction and illegal. Therefore the first objection is rejected.
3. However, turning to the facts learned counsel for the petitioner has read the application for relief of recount filed by the respondents Nos.2 and 3 which is indeed general, if not vague in its contents.
However, the impugned order gives a fairly clear ground for grant of the relief in question. The learned Election Tribunal has observed as follows:-- "From the perusal of the statement of count it is very much clear that the Returning Officer has acted with carelessness and with irresponsibility as the total of the count does not tally at the actual votes cast at polling stations Nos. 1, 3, 4, 7, 8, 9, 10, 13, 14, 18, 20 and 22 which necessitates re- counting."
4. Learned counsel for the petitioner has not disputed the fact that in the result sheet compiled by the learned Returning Officer, total votes counted at the polling stations is different from the total of the votes cast in favour of different candidates. This position is true for 12 out of 20 polling stations.
Learned counsel for the petitioner, however submits that the foregoing ground noted by the impugned order is not mentioned in the respondents' application nor is consistent with the grounds of relief mentioned in Rule 67 supra. Learned counsel has disputed the relief granted also on the ground that evidentiary proof meeting the standard of criminal trial ought to be brought before the trial Court in order for making a case for declaring the election of candidates to be void.
He has further, relied on the judgment in the case of Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542 and Liaquat Ali and another v. Election Tribunal, Sialkot and others 2003 SCM R 1313 to urge that recount is to be allowed only if a substantive evidentiary ground is made out before the Tribunal and not otherwise.
5. The Court hears present dispute between the parties in exercise of its constitutional jurisdiction. It is concerned with the legality of the impugned order and propriety in exercise of jurisdiction by the learned Tribunal subordinate to it. The Court ensures that no injustice is done to a party as a result of a decision made in the lawful exercise of jurisdiction by, inter alia, a statutory tribunal. In the present case there is ample authority with the learned Tribunal to grant relief of recount under the Rules. Even judgments cited by the learned counsel for the petitioner acknowledge such a jurisdiction. The difference, if at all, between the parties is with reference to the grounds upon which the impugned order has been passed. That difference is also narrowed down to the point that the ground adopted in the impugned order is not mentioned in the application for recount. However, the substantive round taken by the learned Election Tribunal is accepted as being correct, namely, that the total votes counted by the learned Returning Officer suffers from error in respect of at least 12 polling stations out of 20. This admission constitutes the essential evidentiary basis to order recount. More so because the difference in the count far exceeds the winning margin of 50 votes by the petitioner.
6. Therefore in the facts and circumstances of the case, the impugned order is fair and just, indeed in exercise of writ jurisdiction the Court ensures that substantial justice is done between the parties.
In the present case insistence that the ground taken in the impugned order should also have been mentioned by the respondents Nos.2 and 3 in their application for recounting is a technical point.
Both the learned Election Tribunal and Court have granted the petitioner an opportunity to rebut the operative ground which has not been done because it is self evident from result sheet prepared by the learned Returning Officer. Consequently, the Court finds no reason to interfere with the approach adopted by the learned Election Tribunal in the impugned order dated 20-3-2006 which order is passed in exercise of lawful jurisdiction and there is no illegality about it. Resultantly, this petition is dismissed.