M.A. ZAFAR, J. --- In an election for the office at Nazim and Naib Nazim of Union Council No. 11, Mirza Tehsil and District Attock petitioners were elected as Nazim and Naib Nazim of the said Union Council. Respondents Nos. 1&2 filed an election petition under Rules 65 of the Punjab Local Government Election Rules, 2005 before the Election Tribunal/District Judge, Rawalpindi.
2. During the pendency of the election petition respondents Nos. 1 and 2 moved an application for recounting of votes and similarly petitioners filed an application for dismissal of the election petition on account of violation of the Rules 67 of the Punjab Local Government Election Rules, 2005.
3. Learned Election Tribunal vide impugned order dismissed the appreciation moved by the petitioners but accepted the application moved by the respondents Nos. 1 and 2 and ordered for re-counting of the votes. Needless to mention here that there is difference of only three votes.
Petitioner obtained 2412 votes while the respondents Nos. 1 and 2 obtained 2409 votes.
4. Learned counsel for the petitioners submits that the respondents could not seek the re-counting of the votes as a right and necessary conditions for the re-counting of votes is that there must be specific foundation laid down in the election petition and the fact of misconduct and nature thereof at a particular polling station.
5. On the other hand, Learned counsel for the respondents Nos. 1 and 2 contends that there is only difference of three votes between the parties and that the criminal case was registered whereby the Presiding Officer had levelled the allegation of snatching of unused ballot paper of the seat of Nazim. Respondent has mainly relied upon an undated report from the Presiding Officer U.C. 11 Polling Station No. 16/82 Government Boys High School Mirza, Middle Section (Female) District Attock which was received by the Returning Officer on the next day of election i.e. 26.8.2005 and according to the said report when the Presiding Officer has compiled- the result. Some unknown persons after scaling over the wall entered into school and took on unissued ballot papers for the seat of Nazim and similarly the learned counsel for the respondent has relied upon an application dated 26.8.2005 submitted before the District Returning Officer levelling allegation against Sajid lmtiaz and Shahid Imtiaz who alongwith unknown persons created the law and order situation after the announcement of the result at 11.45 p.m. Alongwith Jamshed Shah respondent No. 1.
6. The learned Election Tribunal without recording any evidence passed an order of re-counting.
Most probably due to the reasons that there is difference of only three votes. The allegation made in the Election Petition on the basis of which re-counting was ordered by the Election Tribunal, were vague and sweeping in nature without specific mention of any illegal acts that could invite an order of re-count. In absence of any material before Election Tribunal to justify re-count of votes, the learned Election Tribunal without framing issues and recording of evidence of parties proceed to direct recount of votes and thus the procedure adopted by the learned Tribunal is not in conformity with the dictum laid down in Kanwar ljaz Ali v. Lrshad Ali and 2 others (PLD 1986 S.C. 483) in which it has been held that re-count cannot be granted as a matter of right but only on basis of evidence to be effect that there are good grounds for believing that there has been a mistake in the count.
6. For the foregoing reasons, the impugned order dated 30.3.2006 passed by the learned Election Tribunal/District Judge, Rawalpindi, (respondent No. 11) directing to re-count Of votes is set aside.
The Election Tribunal is directed to decided the Election Petition on or before 31st of March, 2009 after recording evidence of the parties in support of their respective versions. No order as to costs. .