' The petitioner has assailed the order dated 23-2-2008, of the Election Commission of Pakistan in refusing to direct re-count of the votes, re-tabulation of the result as received from the Presiding Officers and its comparison with the consolidated results issued by the Returning Officer and sought the following reliefs:-- "(i) It is therefore, most respectfully prayed that this Honourable Court may graciously be pleased to accept this Writ Petition and set aside the orders dated 23-2-2008 refusing to exercise jurisdiction to annul unlawful consolidation of results dated 19-2-2008, which may graciously be declared manifestly without jurisdiction and without lawful authority and the same may kindly be set aside.
(ii) It is also prayed that this Honourable Court may kindly be graciously direct respondent No,1 to depute one of its independent functionary to re-count and retabulate and scrutinize the ballot papers particularly with respect to rejected and invalid votes of NA 153;
(iii) It is further prayed with great respect that pending the above exercise which may kindly be ordered to be done as early as possible respondent No,1 may be restrained from notifying result of this constituency.
2. Facts giving rise to this petition are that petitioner and respondents No,4 to 6 contested election to National Assembly Seat from NA 153 Multan. Respondent No,4, Dewan Ashiq Hussain Bukhari, was declared successful with a margin of 484 votes. The petitioner claims that notice under section 39(6)(b) read with Article 6 of the Election Commission Order was not served upon the petitioner and the consolidation of the result was in deviation from the result sheets supplied by the Presiding Officers, particularly of Polling Stations Nos.94,115,122 and 197. Polling Station 109 was changed over night without permission of the Election Commission of Pakistan. Results on various Polling Stations were obtained by stuffing fake votes in favour of the winning candidate. Consolidation of result was contrary to the law and obligation provided in Article 218(3) of the Constitution as well as Representation of the People Act, 1976, and Election Commission Order, 2002.
3. Notice was issued to the Returning Officer as well as respondent No,4, who entered appearance through counsel while returning officer has produced record of Forms XIV of Polling Stations Nos.94, 115, 122 and 197.
4. Learned counsel for the petitioner contended that consolidation statement prepared by the Returning Officer is in variation to the statements of the count supplied to him by the Presiding Officers of Polling Stations Nos.94, 115, 122 and 197; that about 6271 votes were rejected, but in spite of an application by the petitioner for re-count, same was not done by the Returning Officer as well as the District Returning Officer on grounds, not sustainable in law.
5. On the other hand, learned counsel for the contesting respondent submitted that copies of statement of the count in Form No, XIV annexed by the petitioner with the Constitutional petition, in respect of Polling Stations Nos.94, 115, 122 and 197, do not reflect correct position and are result of fabrication.
6. Heard. Record perused.
7. We have examined the original statements of the count of Polling Stations Nos.94, 115, 122 and 197 and find that the statement of the count filed by the petitioner does not tally with record.
Consolidation statement correctly reflects the statements of count issued by Presiding Officers and examined by us from the record produced by the Returning Officers. Thus the contention of the petitioner that consolidation statement of the results of the count in Form XVI deviates from the statement of count of Presiding Officers, is without any force and same is therefore, repelled.
8. Next contention voiced is in regard to violation of section 39(6)(b) of the Representation of the People Act by not serving mandatory notice before the consolidation of result. We have examined this contention in depth. The Returning Officer, present in court, stated that notice was served upon the petitioners, who failed to attend the court at the stipulated time on 19-2-2008 for consolidation of the statements of count. Result of the count was prepared in Form XVI and final result was announced in terms of Form XVII, on 19-2-2008. An application was submitted by the petitioner before the Returning Officer on 20-2-2008, which was dismissed on the ground that the consolidation statement of result of count has been prepared, bags have been sealed and record sent to the District Returning Officer. The District Returning Officer on 21-2-2008, chose not to interfere in affirmance to the order of the Returning Officer. The Election Commission of Pakistan has held that Returning Officer has already finalized the exercise of consolidation of result of count and in absence of commission of grave illegalities, apparent on the face of record, no ground for re-counting is made out.
9. The petitioner failed to attend the office of the Returning Officer at the time of consolidation of statement of count, in spite of the notice, hence, he has to blame himself.
10. Section 39(6) of the Act is reproduced below for the sake of convenience:--
(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 places as may be directed by the Commission.
11. Legislature in its wisdom has used the words "the request or the challenge is reasonable" in section 39 (6) (a). The petitioner has to make out a case for re-counting by crossing the hurdle in his way of "reasonableness". Simple allegation couched in general without specific instance and not substantiated cannot be made basis to direct re-counting. The Hon'ble Supreme Court in a case titled Kanwar Ejaz Ali v. Irshad Ali and two others, (PLD 1986 SC 483) observed that "Re-counting of the ballot-papers can only be ordered if the conditions laid down in this behalf are fulfilled and the Returning Officer is satisfied that the request is reasonable"
' In this case the appeal arose out of Election Petition, after recording of evidence by the Election Tribunal, yet the request of recounting was not allowed and the said order was affirmed by the august Supreme Court on the touchstone of "reasonableness", on the ground that a recount will not be granted as a matter of right but only on the basis of evidence; that there are good grounds for believing that there has been mistake in the counting.
12. Reliance by the learned counsel on Judgment of Lahore High Court, in Writ Petition No,1478 of 2008 is not helpful to the petitioner, inasmuch as, in that case District Returning Officer had recommended re-polling in 8 Polling Stations but ignored to pass such recommendations in regard to three other Polling Stations, where F.I.Rs, were registered at the instance of one or the other contesting candidate. During hearing of the Constitutional Petition, respondents recorded their concessions for re-polling.
13. Judgment in Writ Petition No,12058 of 2007 in case of Raees Munwer Ahmed Versus Returning Officer and others, relates to pre-election rejection of objections against the candidature, by Election Tribunal and has no relevance to the present controversy. Order in Writ Petition 12011/07, too, relates to pre-election dispute.
14. Re-count cannot be directed after finalization of consolidation of results in the absence of commission of grave illegalities apparent on the face of record. Peoples have expressed their voice which must be given respect and be not deprived of the representation by keeping the constituency vacant. An adequate machinery is provided in the Representation of the People Act to challenge the election of a returned candidate through Election Petition.
15. In view of what has been discussed above, this petition is without merit and is dismissed accordingly,