RAUF AHMED SHEIKH, J. --- The Iearned counsel for the petitioner has contended that ballot papers rejected by Presiding Officer and excluded from count were not checked at the time consolidation of results by Returning Officer as provided under Section 39(3) of the Representation of People Act, 1976 and Rule 26(2) of the Election Rules, 1977 and as such result was materially effected and gross miscarriage of justice was caused so recount is imperative. In support of the contention raised reliance is placed on Sahibzada Muhammad Nazeer Sultan v. Saima Akhtar Bharwana and others (PLD 2007 Lahore 141), Muhammad Sarvvar and another v. Ele'ction Commission of Pakistan through Secretary and 17 others (2006 YLR 502), and Muhammad Tariq Zakhmi and another v .
Election Tribunal District & Sessions Judge, Hafizabad and 13 others (2002 MLD284).
2. The learned counsel for the returned candidate (respondent No. 1) has contended that the consolidation was conducted in accordance with law and the rejected votes were duly checked as is reflected in the statement under Form-XVI. It is contended that the contesting candidates and their election agents were present at the time so no ground is available to recount the ballot papers.
3. The recount cannot be ordered in routine and it must be proved as a fact that the rejected votes were not checked at the time of consolidation. Without recording the evidence in this regard no order can be passed. In this respect reliance is placed on Kanwar and 2 others v. Irshad Ali and 2 others: (PD 1986 SC 483), Pervaiz Bashir Waraich and another v. Election Tribunal/District and Sessions Judge Hafizabad and 4 others (2006 CLC 1407), R.I Asghar A.I Khan v. District & Sessions Judge Kasur and 2 others (F'LJ 2002 Lahore 913), Muhammad Saeed Qazi and another v. Election Tribunal/Additional District & Sessions Judge Lahore and 16 others (2004 CLC 631), Nadeem Ahmad Wains and another v. Election Tribunal and 5 others (PLJ 2006 Lahore 209) and Zulfiqar A.I v.
Election Tribunal/Civil Judge 1st Class Khanpur and 5 others (2000 MLD 746). The Civil Miscellaneous is without merits and the same is hereby dismissed. An issue has already been framed in this regard and the matter would be decided after recording the evidence.
4. Raja Saim-ul-Haq Satti, Advocate High Court is appointed as Local Commission for recording the evidence of the parties. His fee would be Rs. 25,000/- to be paid by the parties equally. The parties would appear before him on 14.6.2010. He will given suitable date to the parties, record the evidence and submit the file within three weeks.