' NASIR SAEED SHEIKH, J.---This election petition has been instituted by Pir Haider Zaman Qureshi who was a candidate in the general elections held in the year 2008. The relevant constituency is NA-158 Khanewal-III Tehsil Mian Channu District Khanewal. The respondents Nos.1 to 4 were also the contesting candidates. Pir Muhammad Aslam Bodla respondent No, I was declared as the returned/ elected candidate by the Election Commission of Pakistan. As per election results the following numbers of votes were respectively secured by all the candidates:-- S. No,Names of contesting candidatesNumber of valid votes polled
1. Pir Aslam Bodla (PML Q) 57777
2. Pir Haider Zaman Qureshi (PPP) 56821
3. Nawab Farhat-Ullah Khan (PML N)39357
4. Kanwar Tehseen Asharf (Independent)137
5. Wing Commander (R)
Muhammad Nawaz Asim (MQM)1512 ' The petitioner lost the election by 957 votes as against the returned candidate. During the polling process 4137 votes were rejected. The petitioner moved an application, for getting the recounting of the ballot papers/votes cast in the election. The Returning Officer rejected this application vide order dated 20-2-2008. The petitioner also moved the Election Commission of Pakistan through an application dated 22-2-2008 for recounting of the votes and the request of the petitioner was turned down by the Election Commission of Pakistan vide order dated 24-2-2008. The petitioner assailed the orders dated 20-2-2008 and 24-2-2008 respectively passed by the Returning Officer as well as the Election Commission of Pakistan through a Writ Petition No,612 of 2008 instituted before the Lahore High Court Multan Bench, Multan which was also dismissed vide order dated 27- 2-2008. The petitioner then assailed the order passed by the learned Division Bench dated 27-2- 2008 through a C.P.L.A. No,294 of 2008 but withdrew the same on 6-3-2008 in order to avail the remedy provided in the form of filing of an election petition.
2. The petitioner then instituted the instant election petition before the Election Commission of Pakistan which was transmitted to this Court for' decision in accordance with law.
3. The petitioner raised numerous grounds for declaring the election of the constituency NA-158 Khanewal-III as null and void on the grounds enumerated in clauses (a) to (h) of the. Election petition. In the prayer clause the petitioner prayed as follows:- "It is, therefore, respectfully prayed that present election petition may kindly be accepted and result of respondent No,1 being returned candidate of the Constituency NA-158-KWL-III, Tehsil Mian Channu, District Khanewal be declared as null and void and recount of the ballot paper of the said constituency may very graciously be ordered or in the alternate examination of rejected invalid ballot papers be directed in the interest of justice. The Notification issued in favour of respondent No,1 may also very kindly be set aside.
' Any other relief which, is just and proper may also be awarded to the petitioner, in the interest of justice, equity and fair play."
' The respondent No,1 contested this election petition by submitting a written statement. The following issues were framed out of the pleadings of the parties:- ISSUES
(1) Whether the election petition is not maintainable in view of preliminary objections Nos.1 to 5?
OPP
(2) Whether the election of respondent No,1 was procured through corrupt and illegal practices?
OPP
(3) Whether the result was not consolidated in accordance with the provisions of sections 39(3) and 39(6) read with Rule 26 of the Representation of Peoples Rules 1976? OPP
(4) Relief.
' The election petition was later on transferred to the Principal Seat from the Multan Bench of this Court.
4. On 15-6-2010 the following order was passed by this Tribunal:-- "The learned counsel for the election petitioner wants to make a statement that the instant election petition can be decided after recounting of the ballot papers and he would restrict his request to the above only, if during recounting and after considering the valid votes, the respondent No,1 is found successful and the number of votes cast in his favour is correct, the election petition be dismissed.
2. The learned counsel- for respondent No,1 has raised following objections to the request made by the learned counsel for the petitioner:-
(1) That a formal application be moved for the purpose of getting the recounting before the Tribunal.
(ii) According to the learned counsel, recounting cannot be claimed as a matter of right by the election petitioner.
(iii) That the case for recounting has to be established by producing the s. Evidence by the election petitioner and that if such an evidence is produced, then the returned candidate has a right to rebut the said evidence and it is only then that the Tribunal if satisfied with the situation can pass an order.
(iv) According to the learned counsel for the respondent No,1 in the instant case, the election petitioner has not placed on record any list of witnesses along with his election petition nor affidavit of the witnesses, therefore, he will not be able to establish the case of recounting.
However, learned counsel for the petitioner submits that the petitioner can appear in his own evidence undoubtedly. '
3. The learned counsel for respondent No,1 makes a request that he wants to address the arguments on the point and is available on 23-6-2010. The case is fixed for arguments on the above proposition for 23-6-2010."
' On 5-7-2010 the following order was passed:-- "This election petition is pending before this Tribunal wherein issues were framed on 5-12-2008.
Vide order dated 15-6-2010, the learned counsel for the election petitioner made a statement before the Tribunal that the instant election petition be decided simply through the process of recounting and that after considering the validity or otherwise of the rejected votes, if the respondent No,1 is found successful by the number of votes cast in his favour, the election petition be accordingly dismissed.
2. The learned counsel for respondent No,1 has argued that respondent No,1 secured 57777 votes whereas the election petitioner secured 56821 votes and the difference of votes between the two candidates i,e, the election petitioner and the respondent No,1 was of 957 only. The learned counsel for respondent No,) further states that 4137 votes were rejected by the Presiding Officer of the Constituency. The learned counsel for respondent No,1 has candidly stated before the Tribunal that the rejected votes 4137 be examined and the question of validity or invalidity of those votes be decided and then on the basis of such a determination the recounting to the extent of rejected votes be conducted and he has no objection upon the election petition being decided. The learned counsel for respondent No,1 further contended that earlier Writ Petition No,612/2008 was instituted by the election petitioner before a Division Bench of this Court which writ was also pressed inter alia on the ground that the recounting of the ballot papers be directed and the learned Division Bench of this Court dismissed the said writ petition and the prayer of recounting was also disallowed in the judgment dated 27-2-2008 passed in Writ Petition No,612/2008. It is further stated by the learned counsel for respondent No,1 that against the judgment dated 27-2- 2008 passed by the Division Bench of this Court in Writ Petition No,612/2008, C.P.L.A.No,294/ 2008 was preferred by the petitioner before the Hon'ble Supreme Court which was later not pressed as is reflected from the order dated 6-3-2008 placed as Annexure G/ 1.
3. On this offer, learned counsel for the petitioner stated that the entire process of election suffers from the illegalities and even in the total votes cast in favour of the two rival candidates many procedural corrupt practices were committed by the Presiding Officers and he does not want to restrict his case to the determination of the validity of rejected votes of 4137 only and he wants that the entire ballot papers of the Constituency which were cast in favour or against the candidates be examined and it is only then the recounting is acceptable to the election petitioner."
' Through~ the same order a Local Commission was then appointed by this Tribunal for recording of evidence of the parties which process was completed by the Local Commission appointed.
5. It is contended by the learned counsel for the petitioner that the entire polling process was full of massive rigging manoeuvred by the respondent No,
1. The polling staff and the Returning Officer were in league with the respondent No,
1. The petitioner kept on protesting against the adverse and negative attitude of the polling staff as well of the Returning Officer but no heed was paid to the objections of the petitioner. It was further argued that the petitioner requested for recounting of the votes as the valid votes polled in favour of the petitioner were illegally rejected and the recounting was not undertaken by the Returning Officer. The learned counsel for the petitioner thus contended that the provisions of section 39 Rule (3) of the Representation of Peoples Act, 1976 were flagrantly violated which has resulted into the returning of the respondent No,1 as a successful candidate. The learned counsel for the petitioner contended that the provisions of sections 34, 35 and 36 of the Representation of the People Act, 1976 were also violated. Thus it was prayed that the election of the respondent No,1 as returned candidate be declared null and void. It was further prayed that the petitioner be declared as successful candidate. In the alternative it was prayed that fresh election be directed to be held again so that a fair and transparent method could be made available to the voters of the constituency to elect their representative for the NA-158 Khanewal-III.
6. The learned counsel for the respondent No,1 has controverted the contentions of the learned counsel for the petitioner and has argued that in spite of an offer made by the learned counsel for the respondent No,1 during the hearing of the election petition that the matter be decided on recounting of the votes, the learned counsel for the petitioner did not agree to this option and elected to get election petition decided on merits on the grounds of massive rigging allegations.
The learned counsel for the respondent No,1 contended that no convincing evidence was produced by the petitioner for proving any specific ground of corrupt and illegal practice having been committed during the polling process. The learned counsel contends that the election petitioner miserably failed to prove the issues which onus was the legal obligation of the petitioner to discharge. The learned counsel for the respondent No,1 contends that election petition be dismissed.
7. I have considered the arguments of the learned counsel for the parties.
8. The basic issues Nos.2 and 3 as reproduced above were framed and these issues are regarding the allegations of corrupt and illegal practices having been committed during the polling process of the election .Of the constituency in question. During the polling process and immediately thereafter the petitioner has been building up a case of recounting of the rejected votes numbering 4137. The prayer of the petitioner to get recounting was declined by the Returning Officer and then by the Election Commission of Pakistan. The petitioner instituted a writ petition for the purpose and it was dismissed by the Lahore High Court, Multan Bench, Multan vide order dated 27-10-2008 passed by a learned Division Bench of this Court. Paragraph Nos.7, 8 and 9 of the order passed by the learned Division Bench of this Court in Writ Petition No,612 of 2008 are important and are reproduced:- "7. The right to seek recounting of votes, on the request of the candidate or election agent, is available under Section 38(5). The Presiding Officer can entertain such request if he is of the opinion that request is not unreasonable. The counting of votes starts immediately after close of the poll in presence of candidates or their election agents. Any request made at this stage is considered as reasonable, as it is an immediate response of an agent or the candidate. A statement of count is prepared in a prescribed manner in a prescribed form i,e, Form XIV and it's certified copies are provided to candidates or their agents.
8. The Returning Officer has the power to re-count the ballot papers if he is satisfied that request or the challenge is reasonable. Law has provided that the remedy of recount is available at the time of consolidation of result or immediately thereafter. There is nothing on record to show that objection, which have now been raised, were urged at the time of counting of ballot papers before the Presiding Officer or at the time of consolidation of results, before the Returning Officer. Close or narrow margin has been held in the case of "Malik Nausher Khan Langrial v. Khalid Mahmood Chauhan and others" (2004 CLC 1249), as no valid ground for recount. A candidate or an election agent can seek count, if they satisfy, in a legal manner that request for recount is reasonable and is not based on vague, general or scanty assertions. Definite information or a cogent proof is required, to justify order for recount.
9. The recount cannot be allowed as a matter of routine. It gives rise further controversies and such power must be used sparingly. If the allegations levelled by a candidate or his election agent, requires proof, matter of recount must be left to election Tribunal. It has already been held in the case of "Mehdi Abbas Khan v. Rana Muhammad Qasim Noon and others" (2007 CLC 1330) that candidate, who is aggrieved of wrong tabulation of votes or miscalculation, has only remedy and that is filing of election petition before the Tribunal."
' The petitioner assailed the order of the learned Division Bench of the High Court, Multan Bench Multan through C.P.L.A.No,294 of 2008 which was not pressed on 6-3-2008 in order to approach the Election Commission of Pakistan or the Election Tribunal for the redress of grievance by the petitioner. During the hearing of the election petition the learned counsel for the petitioner first made a statement on 15-6-2010 which has been reproduced above for getting election petition decided only through recounting of the ballot papers and restricted his request to the recounting only. This issue of recounting was taken up on 5-7-2010. The learned counsel for the respondent No,1 made a statement which was recorded in para-2 of the order dated 5-7-2010 as reproduced above and for the sake of repetition the relevant portion is reproduced:-- "The learned counsel for respondent No,1 further states that 4137 votes were rejected by the Presiding Officer of the Constituency. The learned counsel for respondent No,1 has candidly stated before the Tribunal that the rejected votes 4137 be examined and the question of validity or invalidity of those votes be decided and then on the basis of such a determination the recounting to the extent of rejected votes be conducted and he has no objection upon the election petition being decided."
9. Upon this offer having been made by the learned counsel for the respondent No,1 the learned counsel for the petitioner went back upon his offer and insisted that as the entire process of election suffers from illegalities and procedural corrupt practices having been committed by the Polling staff therefore the learned counsel for the petitioner prayed for the decision of the election petition on merits after recording the evidence. Consequently the evidence of the parties was got recorded in the matter. In view of the fluctuating stand having been taken by the learned counsel for the petitioner the request of the decision of the election petition simply on the ground of recounting has lost its importance.
10. In order to prove the issues Nos. 2 and 3 the petitioner produced Mehr Muhammad Yousaf, Additional District Judge Lahore as 'P.W.1. And got his own statement recorded as P.W.2. In the statement as P.W.1 Mehr Muhammad Yousaf, Additional District Judge Lahore who was then Returning Officer NA-158 Khanewal, it was stated that although he was requested by the petitioner to hold recounting of the rejected votes but no ground was made out for the recounting and therefore he rejected the request. This Returning Officer also stated in cross-examination that no complaint of any irregularities or of any alleged rigging was made to him during election process.
While A appearing as P.W.2 the petitioner did not level any specific allegation of corrupt and illegal practice in his evidence having been committed during the polling process. The petitioner in his examination in chief built up a new case that the brother of the respondent No,1 was a Naib Nazim who exerted his influence upon the polling staff during the election process but in cross- examination admitted that he did not take this precise ground in the writ petition before the High Court to that effect. The petitioner also admitted that he did not send any written application either to the Returning Officer or the Election Commission of Pakistan of having found any irregularities in the election polling process. A specific question was put to the petitioner by the learned counsel for the respondent in the following manner:- "Question by Counsel for respondent No,1:---Please see the election petition and point out the precise paragraph wherein you had taken up the above objection?
' The reply to the above question was specifically recorded which is reproduced:-- ."Ans: The specific allegation of preventing my agents from taking part in the counting of ballots is not a part of my Election Petition"
' The respondent No,1 appeared in his evidence as DW-1 and controverted all the allegations as raised by the petitioner and stated that the election was conducted in calm and quiet manner and even during the counting of the ballot process no untoward happening took place. A lengthy cross examination was conducted upon the respondent No,1 but nothing important or material could be brought on the record by the petitioner which could prove the allegations of rigging as raised by the petitioner having been committed by the respondent No, 1.
11. The onus to prove the factual controversy of corrupt and illegal practice having been committed during the election/polling process was upon the petitioner. He did not successfully prove the issues as framed by this Tribunal. Resultantly the election petition as moved by the petitioner is found to be baseless and unproved. Consequently the election petition is dismissed.