1. ' Mrs. QAISER IQBAL, J.---This petition has been filed on 19-11-2007 seeking following prayer:-- "(i) A writ declaring that the impugned judgment dated 11-10-2007 passed by the learned Election Tribunal, the respondent No,3, dismissing the Election Petition of the petitioners, is not in accordance with law and facts on record and is liable to the set aside.
(ii) A writ setting aside the impugned judgment dated 11-10-2007, passed by the learned respondent No,3, and allow the Election Petition of the petitioners and declare them as duly and lawfully elected /returned candidates or alternatively remand the case back to the learned Election Tribunal, the respondents Nos.3, with directions for recounting of the votes of all the Polling Stations of UC 8, Maghopir, Gaddap Town, District West, Karachi, secured by all the. Contesting candidates i.e, the petitioners, and respondents Nos.4 to 15 for the offices of Nazim and Naib Nazim, and announce the result, declaring the successfully / returned candidates for the said offices of UC- Nazim and Naib Nazim and dispose of the Election Petition accordingly."
2. ' Succinctly the facts leading to the case are that petitioners were candidate of the post of Nazim and Naib Nazim of UC-8, Maghopir, Gaddap Town, District West, Karachi, contested the election held on 18-8-2005. They were allotted symbol of Hockey. Respondents Nos.8 and 9 also contested the election and were allotted symbol of peacock, were declared returned candidate. The anomaly has occurred on the day of polling, in 13 Polling Stations of UC-8, on account of corruption and material illegalities practised during the course of polling as well as at the time of counting of ballot papers by the respondent No,1, it is averred that the respondent No,1 in form XVI have shown the vote secured by the petitioners which were more than shown in from No, XVI by the respondent No,1, enumerated as under:-- Polling StationVote shown in form XV P.S. No.4 20 P.S. No.5 3 P.S.No.6 9 P.S.No.7 11 P.S.No.8 5 P.S.No.9 35 P.S.No.10 27 P.S.No.12 18 P. S. No.13 23 151 ' The petitioners along with their polling agents lodged protest with the respondent No,1 about corruption and corrupt practices during the polling in improper counting of votes and rejection of unfavorable votes to the petitioners, respondents No,8 and 9 were declared as returned candidate having secured 1762 valid votes whereas the petitioners had secured 1235 valid votes therefore petitioners were constrained to challenge the election through Election Petition No,1/2007 (6/2005) before the Election Tribunal which was dismissed through the impugned judgment.
3. ' The respondents Nos.6 and 7 filed the joint written statement pleaded manifold legal pleas denied the corruption, material illegalities and irregularities having committed at any polling stations with the connivance of respondent No,1 or staff whereby the petitioners were disfranchised on the basis of manipulated statement nor any valid grounds under Sindh Local Government Elections Rules, 2005 were initiated by the petitioners to invalidate the Election process or for counting of the votes.
4. It is specifically denied that they were not aware of knowledge about any complaint lodged with Chief Election Commissioner Sindh and District Returning Officer for recounting of the votes.
5. ' On the basis of the pleadings the learned Election Tribunal has framed the following issues:--
(1) Whether any corruption and material illegal practice has been committed during polling and counting of the ballot papers.
(2) Whether petitioner prayer for recounting of ballot papers from ballot box is of Polling Nos. 3, 4, 5, 6, 7, 8, 9, 10, 12 and 13 according to law?
(3) Whether the provisions of rules 67, 72 & 70 of the Sindh Local Government Election Rules, 2005 have been complied with by the petitioners?
(4) Whether allegations contained in the petition are vague and do not disclose the commission of any corrupt practice, material irregularity and or illegal act and or any connivance against the answering respondents?
(5) Whether the petitioner is bad for joining returning officer UC-8 Gadap Town as respondent No,1, to the petition and is contrary to rule 66 of the Sindh Local Government Elections Rules, 2005, petition is liable to be dismissed on this count alone?
(6) Whether the schedule and annexute of the petition are not signed by the petitioner (s) and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for verification of pleadings?
(7) Whether a mere assertion of the petitioners that they secured more votes does invalidate the election process and is a ground under the Sindh Local Government Elections Rules, 2005 to set aside the election?
(8) Whether the petition has been verified and made on oath if not is liable to be dismissed on this count alone?
(9) Whether the petition disclose any cause of action?
6. (10)Whether petition as framed is maintainable?
7. (11)What should judgment/order be?
8. ' Respondent were served through the prescribed modes did not appear ultimately served by way of publication would be appear to contest the petition.
9. ' Learned counsel for petitioner contends that the order of the Election Tribunal to the extent of recounting of the valid votes was in consonance with the prayer made in the petition, learned Election Tribunal ordered for recounting of votes without recording of the evidence, after the recounting it was entirely in the interest of justice that Election Tribunal was required to pass final order on the basis of proposed recounting. The findings recorded by the Election Tribunal on issue Nos. 1, 2, & 4 are absolutely misconceived in view of the result of recounting of votes of Polling Stations Nos.4 to 15 whereby the petitioners secured valid votes 1964 while the valid votes of respondents Nos. 8 and 9 were 925 which clearly shows corruption and material illegal practice during polling and counting of the ballot papers. It is next urged that the findings recorded on Issues Nos.3, 6 and 8 are in favour of the petitioners whereas the finding recorded by the Election Tribunal on issue No,5 is based upon the sole ground that incorrect counting of the votes was under the control/supervision of the returning officer but on the request of the petitioners, recounting of the votes secured by the petitioners were not held as a result whereof incorrect result was incorporated in Form No,XV & XVI. So for as finding on issue No,7 is concerned learned Election Tribunal has failed to examine the testimony of petitioner No,1 Muhammad Jan Afridi who was thoroughly cross examined by the counsel for respondents Nos.8 and 9, the allegations of corruption were proved as well as recounting of the votes prima facie has proved the case, therefore the findings are perverse and liable to be set aside. In support of the above contention reliance is placed on the case of Moula Bux v. Muhammad Rahim (2003 CLC 310). A Division Bench of this Court while adjudicating the issue regarding the vote cast to Nazim and Naib Nazim arrived at the conclusion that Election Tribunal has the power to summon the record and scrutinize the ballot papers for determination of the valid votes and to segregate their invalid votes in order to check the forgery if any committed during the counting. It was observed that in election matters it will be entirely in the interest of justice and fair play if such ballot paper is scrutinized by the Tribunal to examine and verify as to whether presiding officer of all the polling stations had correctly counted the ballot papers or not.
10. ' In case of Moula Bux v. Muhammad Rahim (2003 CLC 310) wherein the question of recounting of the votes was agitated, scrutiny of each election papers by election Tribunal in order to examine and verify as to whether the Presiding Officers of all polling stations had correctly counted ballot papers or not would be in the interest of justice. It was further held that Election Tribunal could pass such an order without recording the evidence.
11. ' We have considered the arguments advanced at bar, it is manifestly borne out that learned Tribunal, on 23 December 2006 on the basis of an application moved by the petitioners directed returning officer for recounting of the votes of Polling Stations 4 to 13 of UC-8, Maghopir, Gaddap Town, District West, Karachi, to ascertain the actual and factual position of the cast votes, as a consequence thereof recounting statement shows that the petitioners prior to recounting had secured 1235 votes and after recounting number of cast votes increase to 1964 whereas the respondents Nos. 8 and 9 before recounting secured 1762 votes and after recounting 925 votes were secured, objections to the recounting and its result were submitted by the respondents Nos.6 and 7 statement was filed that on account of alleged recounting of ballot papers and its result through newspaper on 23-2-2007 published in daily UMMAT respondents Nos.6 and 7 did not expect any fair and impartial justice therefore the matter be transferred from one Tribunal to another, which was acceded. Learned Tribunal through the impugned judgment had not taken into consideration recounting of casted votes for determination of the pleas raised based upon corruption and corrupt practices, collusion and connivance, excess use of authority. The record shows that respondents Nos.8 and 9 applied for the review of the order dated 23-12-2007 did not participate in the recounting chosen to remain absent. From the results of the recounting the allegation of corruption and corrupt practice stood proved. There is no hard and fast rule to determine the acts and omissions of the parties in election process. The benefit of doubt can only be extended to the returned candidate as is extended to an accused in a criminal trial. On the face of the record learned Election Tribunal had overlooked the recounting statement, dismissed the election petition of flimsy grounds. We are, therefore, of the opinion that the impugned judgment passed by learned Election Tribunal is not in consonance with law and' is liable to be set aside.
12. However, the matter is remanded back to the respondent No,3 with a direction, to hold recounting of votes of Polling Stations No,4 to 13 of UC8 Maghopir, Gaddap Town, District West, Karachi, secured by all the contesting candidates for the office of Nazim and Naib Nazim subsequent thereof announce the result of successful candidates Constitutional Petition stand disposed of accordingly.