IFTIKHAR HUSSAIN CHAUDHRY, CJ. Writ Petitions Nos. 4947/2006, 5031/2006 and 7624/2006 shall be disposed of by this order.
2. The petitioners and respondents in the petitions contested Local Government Elections held in August, 2005 tor various officers and succeeded and were duly notified as returned candidates.
Their elections were challenged through election petitions. The Election Tribunals ordered recount of votes but without recording evidence and without answering any issue framed in this context. .Aggrieved of the orders passed by the Election Tribunals the petitions were filed which were admitted to hearing on 19.05.2006. 22.05.2006 and 13.07.2006.
3 Learned counsel for the parties have been heard today.
4. Learned counsel for petitioners contended that the Election Tribunal could not have ordered recount of ballot paper without recording of evidence and order was passed without taking into account material which was' brought on record on the aforesaid election petitions. According to learned counsel. The election petitions are to be heard as nearly as possible in' accordance with the provisions of Civil Procedure Code which requires filing of written statements, framing of issues, recording of evidence, 'oral as well as documentary, and then giving a finding on the basis of that justifying the .Recount. It was submitted that the views of the superior Courts in the country were consistent that recount of votes or ballot papers should not be ordered on .The mere asking of the parties. Reliance was placed on Sheikh lftikhar-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). Liaq'uat A.I 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. SCMR 1699)
5. Learned counsel for respondents on the other hand contended that the issue between the parties could be clinched speedily and equitably, therefore, recounting of ballot papers was recoursed to by the Election Tribunal and this procedure was adopted in the interest of justice and Election Tribunals had ,the power to pass the impugned orders.
6. Election of returned candidates can be called in question by an election petition filed- under Rule 65 of the Punjab Local Government Election Rules 2005. Rule 71 of the aforesaid rules prescribes that subject to provisions of Ordinance and these rules every election petition shall be tried, as nearly as may be in accordance with the procedure for the trial of suits under the Code of Civil Procedure. This rule mandates. That election petition has to be tried and decided by following the procedure prescribed in the Code of Civil Procedure. A written statement is required to be filed; necessary issues claimed by parties are required to be framed by the Tribunal and then parties are required to lead' evidence fore and against. Their claims in accordance with the onus placed on them by the Tribunal. The'issues thereafter are required to be answered on the basis of that material. Recount of ballot paper can only be ordered if it is proved by evidence that valid votes cast in favour of a particular party were erroneously rejected by the Presiding Officer or Returning Officer, or invalid votes were wrongly received in . Favour of a particular party and that this wrongful reception of invalid votes and wrongful rejection. Of votes had materially affected the final result. Recount of ballot paper cannot be ordered without answering that issue, as held in Parvez Bashir Warraich and another v. Election Tribunal for Gujrat District/District & Sessions Judge, Mandi Baha-ud-Din and 4 others (PLJ 2006 Lahore 958). This view was taken by relying on Nawab Khan and others v. Qamar-ud-Din and others (1999 SCM R 299), Muhammad Tariq Zakhmi. And others v. Election Tribunal and others (2002 SCM R 1995), Liaquat A.I's case (2003 SCM R 1313) and Muhammad Naeem Kasi's case supra (2005 SCM R .1699).
7. The electoral laws relating to general elections to elect members of Parliament or those relating to Local Government Elections are almost similar in our neighboring country i.e. India, as well. The issue relating to recount of votes was considered in a plethora of case-law and the Courts there had taken a consistent view which was succinctly stated in judgment rendered by Supreme Court of India reported as Vadivelu, appellant v. Sundaram and others, respondents (AIR 2000 Supreme Court 3230).
Afterdiscussing the following case-laws:---
(1) M.R. Gopalakrishnan v. Thachady Prabhakaran. (1995 AIR SCW 156: 1995 Supp (2) SC 101).
(2) Satyanarain Dudhani v. Uday Kumar Singh, (1992 AIR SCW 3449: AIR 1993 SC 36'7: 1993 Supp (2)
SCC 82).
(3) P.K.K. Shamsudeen v. K.A.M Mappillai Mohindeen, (AIR 1989 SC 640: (1989) 1 .SCC 526).
(4) D.P. Sharma v. Commissioner and Returning Officer, (AIR 1984 SC 654: 1984 Supp SCC 157).
(5) R. Narayanan v. S. Semmalai, (AIR 1980 SC 205: (1980).2 SCC 587).
(6) S. Raghbir Singh Gill v. S.Gureharan Singh Tohra, (AIR 1980 SC 1362: 1980 Supp SCC 53). -
(7) Jitendra Bahadur Singh v. Krishna Behari, (AIR 1970 SC 276).
(8) Ram Sewak Yadav v. Hussain Kamil Kidwai, (AIR 1964 SC 1249: (1964) 6 SCR 238).
The Hon'ble Court held as under:--- "The result of the analysis of the above cases would show that this Court has consistently taken the view that recount of votes could be ordered very rarely and on specific allegation in the pleadings in the Election Petition that illegality or irregularity, was committed 'while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the. Court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare. Allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do (Paragraph 16 page 3235)
8. The above statement of law is correct as regards the issues relating to recount of ballot paper and does not require any further exegesis.
9. The Election Tribunals in these cases had ignored the relevant law on the subject and passed orders, which did not have support of relevant law or rules or evidence on the subject.
10. Asa consequence the impugned orders are set aside, as having been passed without lawful authority. The Election Petitions shall be deemed to be pending before the Election Tribunals who shall follow Rule 71 of the Punjab Local Government Election Rules, 2005 and also the provisions of the Code of Civil Procedure 'and decide each case on merits.