The petitioner and Respondents No, 3 to 12 were the candidates for the Election to the National Assembly from NA-57, District Attock. The petitioner bagged almost 60,000/- votes and Respondent No, 3 was a runner up with approximately 56,000/- votes. Respondent No, 3 made an application before the Election Commission of Pakistan for recounting of the ballot-papers: The Election Commission directed the Returning Officer to recount the complete ballot-papers in presence of the petitioner and the other contesting candidates and to submit a report to it on 17.05.2013. Aggrieved by the said order, the petitioner has filed the instant petition. On receipt of the petition, this Court sent notices over the Radio and Television. Respondent No, 3 has put in his appearance. Rest of the respondents are ordered to be proceeded against ex parte, as none represents them.
2. It is contended by the learned counsel for the petitioner that the impugned order has been passed without affording an opportunity of hearing to the petitioner; that the Commission has not given the reasons for ordering recounting of the ballot-papers. Relies on 2011 CLC 48 titled Mst.
Ashifa Riaz Fatyana Vs. Mst. Nazia Raheel and 10 others, PLD 1986 Supreme Court 483 titled Kanwar Ijaz Ali Vs. Irshad Ali and 2 others and PLD 2008 Supreme Court 663 titled Moulana Atta-urRehman Vs. Al-Hajj Sardar Umar Farooq and others.
3. On the other hand, it is contended by the learned counsel appearing on behalf of Respondent No, 3 that under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 and under Section 52 of the Representation of the People Act, 1976, no election to the Parliament shall be called in question except by an election petition and that under Section 105 of the ROP, Act, 1976, the jurisdiction of the Courts is barred against any order passed or action taken by the Commission and that under Section 103 of the Act ibid, the Commission may issue such instructions and exercise such powers, as may be necessary for ensuring that an election is being conducted honestly, justly and fairly. Relies on 2000 SCM R 907 titled Abdul Haque Indhar and others Vs. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others and 2005 SCM R 1814 titled Nazir Ahmad Panhwar Vs. Government of Sindh through Chief Secretary, Sindh and others.
4. I have heard learned counsel for the parties and gone through the impugned order and the case law.
5. The order passed or an action taken by the Election Commission of Pakistan enjoys an indemnity as long it is taken in good faith by or under the Authority of the Commission and is not coram non judice. The instant order has been passed without hearing the petitioner. No reason whatsoever has been mentioned in the impugned order while directing recounting of the ballot-papers. In my view, the Commission has not exercised the powers vested in it in a fair and legal manner. In this view of the matter, the impugned order is set aside. However, the parties are directed to appear before the Election Commission at 1030 hours today, who will pass an order on the application made by Respondent No, 3 after hearing both the parties. This petition is accepted in terms of the observations made above.