C.M. No,1 of 2010 ' UMAR ATA BANDIAL, J.-- This application filed by election petitioner under section 46 read with section 64 of the Representation of People Act, 1976 (ROPA) seeks the recounting of valid ballot papers cast in the general elections of National Assembly Seat N.A. 65 Sargodha-II, wherefrom respondent No,1 was declared a returned candidate. According to the consolidated result issued by the Returning Officer, the petitioner secured 53257 votes while the respondent No,1 obtained 53518 votes thereby securing a lead of 261 votes. However, from a perusal of the record and the statement of CW-1 Returning Officer, recorded by the Tribunal, 213 votes obtained by the petitioner at Polling Station No,195 were mistakenly swapped for 59 votes secured at the said polling station by respondent No,2, thereby reducing the petitioner's tally by 154 votes in the consolidated statement of count. After adding the mistakenly excluded votes, the resulting lead of the respondent No,1 ahead of the petitioner in the election for NA 65 is reduced to 107 votes.
2. The learned counsel for the petitioner has referred to the order sheet of the Returning Officer -to demonstrate that the petitioner had agitated for a recount of the valid ballot papers cast in the election before the Returning Officer. The said plea was accepted vide order dated 23-2-2008 by the Returning Officer but he confined the recount proceedings to two polling stations only, namely Polling Stations Nos.66 and 67. However, without disclosure of grounds in the order sheet, the Returning Officer further restricted the recount to Polling Station No,67 A only, where five ballot papers were found to have been wrongly included to the credit of respondent No,
1. He submits that there are total of 275 polling stations in the constituency. The petitioner apprehends that a miscount or wrongful count was made at all the polling stations. He has exemplified his allegation by careless counting of ballot papers done by the Presiding Officers of several polling stations which became evident in the scrutiny of rejected ballot-papers conducted by the Returning Officer under section 39 of the ROPA, 1976. 250 votes were found to have been wrongly excluded by the Returning Officer and these were credited accordingly to the count of respective recipient candidates. This fact is noted in the order dated 22-2-2008 passed by the Returning' Officer. He has referred to a summary of the election result prepared by the petitioner (Exh.CW-1/2) which was accepted as correct by Returning Officer in his statement before the Tribunal. This summary shows that the combined errors in count made by the presiding officers in NA-65 whilst tabulating their polling station results is 1470 votes which was corrected by the Returning Officer in the section 39 ibid proceedings held in the presence of the contesting candidates.
3. On facts, learned counsel for respondent No,1 has opposed the plea for recount taken by the petitioner on the ground that the petitioner had expressed consent and satisfaction with the limited recount of valid ballot papers undertaken by the Returning Officer and noted in his order dated 23-2-2008. He has read from the statement of the Returning Officer CW-1 to highlight the consent attributed in this behalf to the petitioner. Therefore, submits that no ground is made out for the relief prayed. On the legal plane, however, learned counsel for the respondent No,1 has opposed the jurisdiction of this Tribunal to order a recount of votes. He submits that the Tribunal is a creature of statute and possesses only such powers that are vested in it by the statute itself. Since no express power to recount votes is vested in the Tribunal as opposed to such a power that is granted to the Returning Officer, he submits that the Tribunal has no jurisdiction to grant the relief prayed.
4. The learned counsel for the petitioner has countered the aforenoted legal objection; both the learned counsel have relied on considerable case-law in support of their respective contentions.
5. The learned counsel for the parties have been heard and the record been perused.
6. In the first place, it is appropriate jurisdictional objection taken by learned counsel for respondent is considered. The Hon'ble Supreme Court has addressed this point in a number of judgments and has acknowledged the existence of a jurisdiction with an Election Tribunal constituted under the ROPA, 1976 to order recount of votes cast in an election. However, the provision of law under which the Tribunal is said to be acknowledged to exercise jurisdiction to order recount differs from case to case depending on the context in which the relief has been prayed. It is salutary that a brief reference is made to the pronouncements of the Hon'ble Supreme Court on the subject to grasp the ambit of a Tribunal's jurisdiction under the ROPA, 1976. Reference may be made to Mian Ejaz Shafi v. Syed Ali Ashraf Shah and 12 others (PLD 1994 SC 867 at page 869) which is reproduced as under:- "At present it would suffice if we mention that under section 64 of the said Act Election Tribunal can order recount of votes in appropriate cases and on satisfaction of requisite conditions and in that context reference can be made to the case of Haji Muhammad Asghar v. Malik Shah Muhammad Awan PLD 1986 SC 542."
' The precedent quoted in the aforenoted opinion, namely, Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another (PLD 1986 SC 542 at page 547) also makes a strong statement on the present subject:- "Further, we are not convinced of the contention that in no case the Election Tribunal can order a recount of votes. On the other hand the law laid down by this Court in Mian Jamal Shah's case followed by Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 and in Col. Mukhtar's cas# recognizes such a jurisdiction and power of the Election Tribunal in appropriate cases and on satisfaction of the requisite conditions."
' Finally reference may also be made to the observations of the Hon'ble Supreme Court in Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCMR 284) at page 298:- "What, therefore, has to be ensured, once powers under section 46(1) and (2) of the Act come to be exercised, is that the jurisdiction is not over-stretched, that there is a prima facie case for a recount, that recount, if allowed, takes place scrupulously, without detracting from secrecy of the ballot and, finally that it can never be ignored that during the passage of time following upon the election and the recount a number of things may happen, having potential to throw up a picture that does not, in fact, correspond with the electoral process but depicts something of a later origin.
To put it differently, the power, though broad and extensive, is to be used sparingly and with circumspection, the only object being to, ensure a fair and lawful result of the electoral exercise.
Nothing short of that would serve the object of the legislation."
7. The above noted statement of law establishes that this Tribunal has jurisdiction to order recount in suitable cases. Recently, this Court has in the case of Sahibzada Muhammad Nazeer Sultan v.
Saima Akhtar Bharwana and others (PLD 2007 Lah. 141) derived the following salient grounds for ordering a recount of ballot papeRs, The relevant extract of the judgment at page 148 is reproduced below:- "The trend reflected from the authorities and precedents thus is that:--
(i) Whenever there is an allegation of miscount, the Returning Officer can undertake recount and the Election Tribunal order opening of packets, examination and inspection of the ballot papers in order to find out whether the statutory provisions were duly observed by the statutory functionaries.
(ii) While seized of the election petition, the Tribunal is vested with the power to order recount, which power, however, is to be exercised on the basis of some material prima facie establishing illegalities and irregularities in the count of polled votes.
(iii) A party is not entitled to claim recount as a matter of course and it is to be shown that there had been improper reception, refusal or rejection of votes.
(iv) Such power of the Tribunal though quite extensive yet it is to be exercised sparingly after satisfaction on the basis of material/evidence that there had been wrong inclusion or exclusion of ballot papers in the count."
The contra view propounded by learned counsel for the respondent No,1 on the basis of Sardar Abdul Hafeez Khan's case (supra) is therefore limited to the sufficiency of grounds to order recount and not the absence of jurisdiction to grant such relief.
8. Coming now to the substantive aspect of the dispute. It is clear from the consolidation of result made by Returning Officer as exemplified in Exh.CW1/2 that errors were committed in the counting of votes done by presiding officers of several polling stations. This is evident from the arithmetical mistakes that were corrected by the Returning Officer to; the extent of 1470 votes. Likewise 250 votes were wrongly rejected by the presiding officers which have been restored to the advantage of their respective beneficiary candidates in the section 39, ROPA proceedings. With regard to recount of the valid ballot papers, the Returning Officer accepted the plea raised by the petitioner to the extent of two polling stations. He was justified in ordering a sampling as visualized by the Hon'ble Supreme Court in Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCMR 284;. However, in fact the recount was limited to the result of only one polling station. No reason for such curtailment of the sample is available on record. To this extent therefore the recount contemplated by the Retuning Officer on record conflicts with the recount conducted by him. That default merits correction.
9. There is also a larger question arising on the factual plane. The order dated 23-2-2008 mentions consent of the parties for limiting the recount proceeding to two polling stations. The Returning Officer in his statement before the Tribunal has relied on a signed document reflecting consent of the parties, but no such document is available on record. Consequently, the consent of the parties, firstly, to the sampling and secondly, to the further restriction of the recounting of one polling station is not substantiated from the record. Be that as it may, even for the one polling station where recount was conducted, the Returning Officer concluded that five votes had been wrongly treated as valid and counted in favour of the respondent No,
1. The petitioner contends that there are a total of 275 polling stations and therefore the exercise of recount must be continued. The Returning Officer in his statement has mentioned that a difference of five votes resulting in recount of valid ballot-papers cast at a polling station was agreed by the parties to be disregarded for purposes of continuing the recount. He has relied on written agreement between the parties but again there is no such document on record.
10. In the circumstances, the record contains elements justifying a wider recount. There is however, one aspect which requires elaboration by learned counsel for parties before proceeding further.
That is the number of sample polling stations to be recounted and the characteristics, which should define a sample. Come up on 5-11-2010 for suhmissions of the learned counsel for the parties on the aforenoted point.