' MUHAMMAD ALAM KHAN, J:--By this single judgment, we propose to dispose of Writ Petition No,236 of 2008 (Maulana Atta-urRehman v. Al-Haj Sardar Umer Farooq Miankhel and others) and W.P.
No,254 of 2008 (Habibullah Khan Hundi v. District Returning Officer, NA-25 Tank-cum-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 Writ Petition No,236 of 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 re-counting/re-checking of the entire votes/ballet papers, polled in the said constituency NA-25 Tank-cumDJ. Khan, In the connected Writ Petition No,254 of 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 Nos.1 to 11 contested the election as candidates for Constituency NA-25 Tank-cum-D.1. 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-urRehman, 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 manoeuvring 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 re-counting 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 re-counting 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 re-counting of votes. It was further mentioned in the impugned order that the recounting of 181 Polling Stations was completed while in 79 Polling Stations 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 re-counting, which was stopped.
9. It is alleged that the learned Returning Officer had already passed an order for re-counting of votes and the re-counting 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 re-counting 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 re-counting/re-checking of votes vide the impugned order dated 21-2- 2008 and thus in view of the provisions contained in section 39 subsection (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 re-counting was ordered in which Maulana Atta-ur- Rehman petitioner participated in the process of re-counting 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 re- counting as he participated in re-counting of 181 Polling Stations unreservedly and without objection, thus under the doctrine of approbation and reprobation he could not challenge the process of re-counting. 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 v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 3 others (1999 PLC (C.S.) 93), Abdul Qadir v. Abdul Karim through Chief Secretary and 4 others (1999 PLC (C.S.) 947) and Muhammad Hussain Munir and others v. 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 39 (6) of the Act ibid, the Returning Officer had the jurisdiction to order the re-counting 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 re-counting of votes. The provision of section 39 of the Act ibid is reproduced below-- "(6) The Returning Officer may re-count 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 re-count 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 candidates 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. Furthermore, when the petitioner participated in the re-counting for four days from 22-2-2008 uptil 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 v. Akram Khan and 3 others (PLD 1989 Peshawar 201).
16. With regard to Writ Petition No,254/2008, titled Habibullah Khan Kundi v. District Returning Officer and others, once the Returning Officer had passed an order of re-counting, 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 Writ Petition No,236 of 2008, which is dismissed in limine. The interim relief granted by this court on 28-2-2008, staying the process of re-counting is hereby vacated. The connected Writ Petition No,254 of 2008 titled Habibullah Kundi v. 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. Khan and submit the same to the Election Commission of Pakistan, respondent No,15. Parties are directed to bear their own costs.