' The petitioner has contested election from PP-196 Multan-III and according to the consolidated results had lost the election with the difference of 73 votes. He agitated the matter of recounting before the Returning Officer but the Returning Officer declined to entertain the request of the petitioner. Petitioner thereafter approached the Election Commission of Pakistan but his representation under section 39(6) (b) of Representation of the People Act. 1976, met the same fate. Hence this petition.
2. It is contended by learned counsel for the petitioner that total votes cast in the constituency were 57438, while the votes, which were rejected, were 70. He has however submitted that number of rejected votes was 700 and the Returning Officer, while counting the rejected votes has not taken due care, which has tilled the result in favour of respondent No,3. Learned counsel has submitted that, in Polling Station No,5, rejected votes were zero, while according to the consolidated statement of count prepared by Returning Officer, the number of rejected votes rose to 13, but this increase in number has not changed the votes cast towards various candidates. He has referred to Polling Station-7, where according to the result prepared by Presiding Officer rejected votes were 03, but there was no rejected vote in the consolidated statement prepared by Returning Officer, again despite difference in rejected votes, there is no difference in the number of votes cast in favour of various candidates. Learned counsel has submitted that the result prepared by the Presiding Officer and consolidated statement of count prepared by the Returning Officer, are different and thus, variations give rise to suspicion. In such circumstances, when there was narrow margin and there were variations in two results, the right course was recounting of ballot-papers.
Learned counsel besides referring to section 39 of the Representation of the People Act, 1976, has submitted that a writ petition despite bar of section 52 of the Act of 1976, is competent and in support of this contention, has referred to an unreported case titled Intesar Hussain Bhatti v. Vice- Chancellor, University of Punjab, Lahore and others C.Ps. Nos.2 to 5 of 2008).
3. Learned Law Officer has submitted that the request of the petitioner was thoroughly examined by the Returning Officer and he was not satisfied with the contentions of the petitioner and rightly declined the request of recounting.
4. Respondent No,4 is represented by Rana Asif Saeed Khan, Advocate, who stood behind the orders passed by the Returning Officer and the Election Commission of Pakistan.
5. Heard learned counsel for the parties and record perused.
6. Petitioner has repeated the grounds, which he has urged before the Returning Officer. Returning Officer, after hearing the petitioner and thoroughly examining the controversy, has found that recounting of ballot-papers was sought on the grounds, which require evidence to be recorded and cannot be decided at this stage. Returning Officer found that reasons for recounting are not proper and thus, rejected the request. The recounting of ballot-papers, according to section 39(6) of the Representation of the People Act, 1976, upon the request of a candidate, can be allowed, only when Returning Officer is satisfied with the request or the challenge is reasonable. The Returning Officer while passing the order was not satisfied with the grounds and was right in holding that the grounds raised for recounting required evidence to be recorded.
7. We have already held in Writ Petition No,612 of 2008 titled Peer Haider Zaman Qureshi v. Chief Election Commissioner and others that:-- "The right to seek recounting of votes, on the request of the candidate or election agent, is available under section 38(5). The Presiding Officer can entertain such request if he is of the opinion that request is not unreasonable. The counting of votes starts immediately after close of the poll, in presence of candidates or their election agents. Any request made at this stage is considered as reasonable, as it is an immediate response of an agent or the candidate. A statement of Court is prepared in a prescribed manner in a prescribed form i,e, Form XIV and its certified copies are provided to candidates or their agents.
' The Returning Officer has the power to recount the ballot-papers if he is satisfied that request or the challenge is reasonable. Law has provided that the remedy of recount is available at the time of consolidation of result or immediately thereafter. There is nothing on record to show that objections which have now been raised, were urged at the time of counting of ballot-paper before the Presiding Officer or at the time of consolidation of results before the Returning Officer. Close or narrow margin has been held in the case of Malik Nausher Khan Langarial v. Khalid Mehmood Chauhan and others 2004 CLC 1249 as the valid ground for recount. A candidate or an election agent can seek recount, if they satisfy in a legal manner that request for recount is reasonable and is not based on vague, general or seeks assertions. Definite information or a cogent proof is required to justify order for recount.
' The recount cannot- be allowed as a matter of routine. It gives rise further controversies and such power must be used sparingly if the allegations levelled by a candidate or his election agent, requires proof, matter of recount must be left to Election Tribunal. It has already been held in the case of Mehdi Abbas Khan v. Rana Muhammad Qasim Noon and others 2007 CLC 1330 that candidate who is aggrieved of wrong tabulation of votes or miscalculation, has only remedy and that is filing of election petition before the Tribunal.
8. We, therefore, are not convinced with the arguments of learned counsel for the petitioner that different results were prepared by the Presiding Officer and consolidated statement of count prepared by the Returning Officer gives rise to suspicion. Returning Officer has the authority to reject ballot-papers according to Rule 26(1) of the Representation of the People (Conduct of Election) Rules, 1977. Controversy in hand is a factual controversy and determination thereof lies through a regular petition before the Election Tribunal constituted under the Act.
9. This petition has no force and is accordingly dismissed.