MUHAMMAD MUZAMMAL KHAN, J. --- Instant Constitutional petition assailed judgment/order dated 31.03.2006 passed by the Election Tribunal, Sargodha (Additional District Judge, Khushab) to be declared illegal, void and of no legal consequence, whereby application by respondents Nos. 2 and 3 for recount of ballot papers was accepted.
2. Succinctly, relevant facts are that petitioners and private respondents contested the last local bodies' elections for the offices of Nazim and Naib Nazim of Union Council-11, Tehsil Bhalwal, District Sargodha. In result of the election held on 18.08.2005 petitioners were declared to be successful and their nearest rivals, i.e, respondents Nos. 2 and 3 filed an election petition before the notified Election Tribunal, as they had lost the election with a margin of 151 votes, inter alia, on the grounds that election result was secured out of corrupt/illegal election practice; their valid votes were not counted or were illegally declared invalid; and the election result of different polling stations, especially at polling stations Nos. 3, 5 and 9 was not only wrongly tabulated but was also manoeuvred to support the petitioners' success. Election petition was contested by the petitioners and the contesting candidates by filing their written replies. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. At the conclusion of trial, petitioners moved an application for re- summoning of AW.1 for clarification of three documents on the file i.e. Exh.A.1, Exh.R.1 and mark-1.
Respondents Nos. 2 and 3 also moved an application for recount of ballot papers. The Election Tribunal opted to decide application of respondents Nos. 2 and 3 for recount of ballot papers and allowing the same, ordered recount of ballot papers through impugned order dated 31.03.2006.
Petitioners were not satisfied with the decision of the Election Tribunal and consequently filed instant petition with the relief, noted above. Petition was admitted to regular hearing and on notice by this Court respondents appeared and were represented through their respective counsel.
3. Learned counsel for the petitioners submitted that respondents Nos. 2 and 3 with ma/a fide intention filed a baseless election petition, without any clear- allegation of resort to illegal/corrupt election practice. According to him, respondents Nos. 2 and 3 prepared a fake document Exh.A.1, which was not in accordance with requirements of Rules applicable, thus on the basis thereof, order of recount of ballot papers could not have been passed after lapse of such a long period. It was further submitted that the Presiding Officer of polling station No. 9 had remitted correct result of the election on the prescribed Form XIII, according to which Retuning Officer correctly prepared consolidated C.L.R. statement in Form XV. His precise submission was that petitioners were rightly declared sucdessful. By the election staff (R.O. And D.R.0) and recount of ballot papers could-not have been ordered, relying on' result of count prepared by the Presiding Officers, which was not on the presc bed Form XIII, he further elaburated his arguments by urging that election result. As shown in Exh.A.1 was .Neither relied by respondents Nos. 2 .And 3. In their election petition nor the same was produced by them "alongwith their election petition, which was enough proof of its fakeness. It was also contended that respondents. Nos. 2 and 3 did not claim recount of ballot papers, in the election petition which has erroneously been Ordered without decision of petitioners! Application for re-summoning of AW.1. Non-forming of any issue on the question of recount of ballot papers was also asserted and consequently it was argued that impugned order has been passed, without recording of evidence and without there being any material in support thereof. It was also one of the submissions of the learned counsel for the petitioners that reliance ,on evidence recorded on the issues framed _wherein issue of recount was not framed, was unjustified leading to prejudice to the case of the petitioners.
4. Learned counsel for respondents Nos. 2 and 3 with the. Support of learned, :counsel representing other contestants of' the election, refuted arguments Of the petitioners and supporting the impugned order, urged :that respondents Nos. 2 and 3 had not only pleaded a clear case of recount of ballot. Papers but:- they had- also brought sufficient material on the second justifying the course adopted by the learned Presiding Office of the Election Tribunal. Reference to certain interim orders on the file of the Election Tribunal was made to contend that parties were also put to trial to the issue of recount of ballot papers.
According to the respondents, in view of two divergent results of count relating to one polling'station, was enough material justifying the order passed by the -Election Tribunal, as there was no other way out to resolve the controversy. They relied on C.L.R. statement of their on witness (AW.1) in support of the order under challenge and attempted to dig out support from the cross-examination offered by them to RW.1
5. I have heard the learned counsel for the parties and have examined the record of the Election Tribunal and the one appended herewith. With a view to ascertain whether respondents Nos. 2 and 3 had made out a case for recount of ballot papers in their election petition, the same was minutely examined and its paragraph No. 8 clearly narrated that at polling station No. 9 (Zainpur) they secured 613 votes whereas petitioners were bagged 242 votes but the Returning Officer wrongly mentioned their votes as 513 and against it, petitioners' votes Were enhanced to 342,- creating a discrepancy of 101 votes. Similar allegations: -.Regarding polling station No. 5 were narrated in paragraph No. 7 of the election petition. According to my analysis, paragraphs Nbs. 4 to 8 and 13 of the election petition, if read together would make out a case for recount of ballot papers, as far as, pleading of facts are concerned. Coming to the next assertion of the petitioners that they were not afforded an opportunity of leading evidence on the question of recount of ballot papers, respondents Nos. 2 and 3 on 17.01.2006 had moved an application under Order XIV, rule 5, C.P.C. Praying recasting of issues, including that of recount of ballot papers. Record revealed that the learned Presiding Officer of the Election Tribunal on 01.02.2006 passed an order with the consent of the parties, to the effect that matter of recount of ballot papers being covered by the issue of "Relief", there is no necessity of framing any separate issue on this point and simultaneously, issue No. 2 was corrected by adding a word "not" therein. Order dated 01.02.2006, which was signed by both the learned counsel representing the parties in its margin, left no room for the petitioners to claim that dispute of recount of ballot papers was decided without putting the parties to the issues or without recording of evidence. Even otherwise, law regarding framing of issues is firmly settled to the effect that when C.L.R. parties enter into trial of the case with all awareness of controversy between them, its framing or non-framing loses importance. Reference in this behalf can be made to the judgment by the Hon'ble Supreme Court in the case of Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others (1993 SCM R 2018). As regards opportunity of producing evidence, I have also anxiously noted that petitioners closed their oral evidence on 04.03.2006 whereas they by producing certain documents, concluded the same on 21.03.2006 and on both these occasions statements of learned counsel representing them were recorded, under his signatures.
6. Besides the lawful reasons, which weighed with the learned Presiding Officer of the Election Tribunal in ordering the recount of ballot papers, no doubt Presiding Officer of polling station No. - 9 Zainpur had issued two different results, one was in Form X111 wherein petitioners were shown to have secured 342 votes and respondents Nos. 2 and 3 were mentioned to have earned 513 votes: whereas his other result count was brought on file as Exh.A.1, which shows votes of the petitioners as 242 and those of the respondents Nos. 2 and 3 as 613. The Presiding Officer of this poling station was examined by respondents Nos. 2 and 3 as AW.1 who categorically deposed that result Exh.A.1 for the office of Nazim/Naib Nazim was prepared by him and is under his signatures. He further stated that result Exh.A.1 correctly reflected the resuit of polling station No. 9. This witness though was cross-examined by the petitioners in two lines but they did not confront their on result Exh.R.1 and opted to produce it at the time of closing their evidence, in the statement of their counsel dated 21.03.2006. Statement of AW.1 revealed that no suggestion about the alleged fakeness of Exh.A.1 or genuineness of Exh.R.1 was put to him and he was also not required to explain discrepancy in his two statements of count of the polling station where he was Presiding Officer. He was not even suggested that Exh.A.1 was subsequently prepared to help respondents Nos. 2 and 3. Now the statement Exh.A.1 was meant for communication of the election results by the Presiding Officers to the Retuning Officer and was to accompany the Form XIII but it is no body's case that it did not relate to polling station No. 9 or was not under the signatures of AW.1. According to my estimation in presence of these two opposing statements, the Election Tribunal was justified in ordering the recount of ballot papers, in order to trace correctness of any of those.
Stance of the petitioners that in presence of statement of count in Form XIII, which is prescribed by Rule 35 of the Local Government Election Rules, 2005, no credence could have been given to any such statement which was not prepared under the Rules, appeared to be very attractive but when statement of AW.1 kept in mind, whereby the latter mentioned statement was duly proved, irresistible result would be the one drawn the tough the impugned order. Similar is the position at polling. Station No. 3, where petitioners secured 221 votes and respondents Nos. 2 and 3 could get 137 votes, as per consolidate -1 statement of the Returning Officer Exh.R.2 but Presiding officer of this polling station while appearing' as AW.3 deposed that respondents Nos. 2 and 3 were polled 187 votes. This witness was not cross-examined by the petitioners on this point and no suggestion was even put to him that his statement of securing 187 votes by respondents Nos. 2 and 3 was false.
Muhammad Amir petitioner appeared as RW.1 and through his deposition he referred to votes polled in favour of the parties at polling, station No. 4 but in fact this part of his statement related to polling station No. 3 if the same is read in conjunction with Exh.R.2. Scan of record including evidence of the parties and the impugned order, revealed that correct conclusions were drawn by respondent No. 1 without committing any error of law/facts as there was sufficient material on the record justifying the recount of ballot papers, as ordered. Since there is sufficient evidence/material on the record justifying recount of ballot papers, case-law relied by the C.L.R. learned counsel -for, the petitioners was of no help to their case, rather those, judgments were in support of the impugned order. .
7. For the reasons noted above, no case for interference in Constitutional jurisdiction of this Court was made out. Even otherwise, a lawful 'decision within the ambit of conferred jurisdiction cannot be substituted on this 'petition, which being devoid of any merit, is dismissed with no order as to cost.