Muhammad Alam Khan, J.--By this single judgment, we propose to dispose, of W.P. No, 236/2008 (Maulana Atta-ur-Rehman Vs. Alhaj Sardar Umer Farooq Miankhel and others) and W.P. No 254/2008 (Habibullah Khan Kundi Vs. District Returning Officer, NA-25 TankCum-D.I.Khan and others), as both these pertain to one and the same constituency.
2. Maulana Atta-ur-Rehman son of Maulana Mufti Mahmood, petitioner in W.P. No, 236/2008. a contesting candidate for constituency NA-25 Tank-cum-D.I.Khan has filed the present Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, wherein he has challenged the order dated 21.2.2008, passed by Respondent No 12, Returning Officer of the above constituency, ordering the recounting/re-checking of the entire votes/ballet papers, polled in the said constituency NA-25 Tank-cum-D.I.Khan. In the connected W.P. No, 254/2008. Habibullah Khan Kundi, petitioner has prayed that the impugned order dated 27.2.2008, passed by District Returning Officer NA-25, Tank-cum-D.I.Khan, Respondent No, 1, be declared as illegal, without lawful authority and of no legal effect besides being without jurisdiction and coram- non-judice.
3. Briefly narrated the facts of the case are that the petitioners and Respondents No 1 to 11 contested the election as candidates for constituency NA-25 Tank-cum-D.I.Khan, in the recently held Election on 18.2.2008. It is alleged that when the polling was completed, each Presiding Officer after counting the votes submitted the statement of counts to Respondent No, 12, namely, Capt:
(Rtd) Muhammad Naseem Khan, Additional Sessions Judge, Tank.
4. It is further alleged that after consolidation of counting, un-official result was announced on 19.2.2008, wherein Maulana Atta-ur-Rehman, petitioner had secured the highest votes to the tune of 44,676/-and allegedly he was declared as a returned candidate.
5. Further averments in the petition are that on 20.2.2008, Engineer Dawar Khan Kundi, a contesting candidate, Respondent No, 2, submitted an application to the Returning Officer making certain objections to the counting of votes. It was, inter alia, objected that the consolidation or tabulation of results were neither prepared in presence of the applicant nor its polling agents; that the counting by the Presiding Officer was also carried out in the absence of applicant Engineer Dawar Khan Kundi. There was neither independent observer nor any media person was present at the time of preparation of statement of counts by the Presiding Officer. It was also objected in the application that an abnormal delay occurred in the results of said constituency, which suggests manoeuvering in the result.
6. That the above application was accepted by the Returning Officer on 21.2.2008, quoting Section 39(6)(A)(B) of the Representation of the People Act, 1976 and the recounting was ordered in the circumstances of the case.
7. That the petition came for hearing on 28.2.2008, wherein the Division Bench of this Court passed an order issuing pre-admission notice to the respondent for 5.3.2008 and an interim relief notice was given to the respondents for the date fixed and in the meantime the process of recounting was ordered to remain stayed.
8. That in the counter writ petition, Habibullah Khan Kundi petitioner is aggrieved from the order of Returning Officer/Respondent No, 1 dated 27.2.2008, wherein the same Returning Officer Cap: (Rtd)
Muhammad Naseem Khan stopped the recounting of votes. It was further mentioned in the impugned order that the recounting of 181 Polling Stations was completed while in' 79 Polling Station the recounting was going on. In the meantime Maulana Atta-ur-Rehman Respondent No, 2 raised an objection to the recounting vide his application dated 27.2.2008, requested for the stoppage of recounting which was stopped.
9. It is alleged that the learned Returning Officer had already passed an order for recounting of votes and the recounting was conducted from 23.2.2008 to 26.2.2008 in presence of Respondent No, 2 and the other contesting candidates, so the stoppage of recounting of votes which had already commenced, could not be stopped, so the impugned order dated 27.2.2008 is illegal, not in accordance with law and is liable to be struck down being without lawful authority and of no legal effect.
10.The learned counsel for the petitioner barrister Masaud Kausar, Bar-at-law, submitted that once the results were consolidated pursuant to the statements of counts submitted by the Presiding Officers to the Returning Officer, the Returning Officer had become functus officio and he had no jurisdiction to order the recounting/re-checking of votes vide the impugned order dated 21.2.2008 and thus in view of the provisions contained in section 39 sub-section (6) of the Representation of the 'People Act, 1976 The Returning Officer had no jurisdiction to order the recounts and thus the entire process of recounting was void and without jurisdiction, thus, it was prayed that the impugned order be set aside as without lawful authority and of no legal effect.
11.Mr. Abdul Latif Yousafzai, Advocate, learned counsel, appearing for the respondents submitted that the application submitted by Engineer Dawar Khan Kundi and Habibullah Khan Kundi respondents was based on solid reasons which prevailed with the Presiding Officer, Respondent No, 12 and vide the impugned order the recounting was ordered in which Maulana Atta-ur-Rehman petitioner participated in the process of recounting which continued for four days and the votes of 181 Polling Stations were counted and the subsequent stoppage of recounting on the application of Maulana Atta-ur-Rehman and the order passed on that application is without jurisdiction; that the petitioner was legally estopped by his conduct to challenge the process of recounting as he participated in recounting of 181 Polling Stations unreservedly and without objection, thus under the doctrine of approbation and reprobation he could not challenge the process of recounting. It was also submitted that in view of the provisions contained in Section 39(6) ibid, the Returning Officer, Respondent No, 6 had no jurisdiction to order the recounting of votes and the subsequent stoppage of the recounting specially when the counting was carried on for four days, was without jurisdiction. Reliance was placed on Umer Hayat Vs. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 3 others (1999 PLC (C.S) 93), Adul Qadir Vs. Abdul Karim through Chief Secretary and 4 others (1999 PLC (C.S) 947) and Muhammad Hussain Munir and others Sikandar and others (PLD 1974 SC 139).
12. We have gone through the record of the case with the assistance of the learned counsel for the parties and have considered their respective submissions.
13. Under the provisions of Section 30 (6) of the Act ibid, the Returning Officer had the jurisdiction to order the recounting of votes, if that upon the request or challenge in writing made by the contesting candidate or his agent, he was satisfied, could order the recounting of votes. The provision of Section 39 of the Act ibid is reproduced below:-- "(6) The Returning Officer may recount the ballot papers-- (a)upon the request of, or challenge in writing made by a contesting candidate or his election agent, if the Returning Officer is satisfied that the request or the challenge is reasonable; or (b)if so directed by the Commission, in which case the recount shall be held in such manner and at such place as may' be directed by the Commission."
14. The reproduction of the above provision of law would show that the Returning Officer had the jurisdiction to order the recounting especially when the allegations were that, the consolidation processes were not made in presence of the candidate or their agents and once the Returning Officer, Respondent No, 12, was satisfied about the genuine objections of the respondent, he could pass the impugned order which -was well within the jurisdiction of the Returning Officer.
15. Further more, when the petitioner participated in the recounting for four days from 22.2.2008 uptill 26.2.2008, and the recount of 181 Polling Stations was carried out, he cannot say that the process of recounting was without jurisdiction by the Returning Officer, Respondent No, 12, on the principles of approbation and reprobation, as held in the case of Said Ahmad Khan Vs. Akram Khan and 3 others (PLD 1989 Peshawar 201).
16. With regard to W.P. No, 254/2008, titled Habibullah Khan Kundi us. District Returning Officer and others, once the Returning Officer had passed an order of recounting, he was under the law to have completed the process of re-counting and could not withhold/stop the process by a subsequent order dated 27.2.2008, passed by the Returning Officer, impugned in this writ petition and the same was without jurisdiction.
In view of the facts and circumstances of the case narrated above, there is no force in W.P. No, 236/2008, which is dismissed in limine. The interim relief granted by this Court on 28.2.2008, staying the process of recounting is hereby vacated. The connected W.P. No, 254/2008 titled Habibullah Kundi Vs. Returning Officer etc: is accepted and the impugned order dated 27.2.2008 is held to be illegal, without jurisdiction and without lawful authority and the same is set aside. Resultantly, the District Returning Officer, Respondent No, 12 is directed to complete the process of recounting and consolidate the results of constituency NA-25 Tank-cum-D.I.Khar. and submit the same to the Election Commission of Pakistan, Respondent No,
15. Parties are directed to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.