' IJAZ UL AHSAN, J.--- The petitioner is aggrieved of an order dated 13-5-2013 passed by the Returning Officer, NA-164 Pakpattan-I, through which he dismissed the application filed by the petitioner for recount. The said order was challenged before the Election Commission of Pakistan.
Vide order dated 15-5-2013, the application was dismissed.
2. The petitioner was a contesting candidate in NA-164 Pakpattan-I. According to the results declared at the close of polling, the petitioner was shown to have obtained 65,630 votes while respondent No.3, who was one of the rival candidates, was declared to have secured 67,984 votes.
According to the consolidated results, number of rejected votes was 6,212. The difference of votes between the petitioner and respondent No.3 was 2,354 votes.
3. The learned counsel for the petitioner maintains that there is a narrow margin of votes between the winning and losing candidates, which in itself furnishes justification for recount. He further submits that the said fact is further substantiated by a large number of votes which were rejected.
A large majority of these votes, according to the learned counsel for the petitioner, were cast in favour of the petitioner. He further submits that the Returning Officer did not fulfil his statutory obligation by failing to re-examine the rejected votes and order consolidation of results in terms of duty cast upon him under section 39(3) of the Representation of the People Act, 1976 ("ROPA"). The learned counsel relies on Haji Abdul Rehman Khan v. Returning Officer and 6 others (1997 CLC 1123) and Sahibzada Muhammad Nazeer Sultan v. Saima Akhtar Bharwana and others (PLD 2007 Lahore 141) to argue that non-compliance of the requirements of section 39 of ROPA furnishes sufficient basis to order recount.
4. The learned counsel for respondent No.3 on the other hand submits that recount can only be ordered if the Returning Officer or the Election Commission are satisfied that the request for recount is reasonable. He submits that just on the basis of vague allegations and without any evidence furnishing justification for the same, recount cannot be ordered. In this regard the learned counsel relies on Kanwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 SC 483). He further submits that the claim of recount must be based upon substantial evidence of error, mistake or wrong doing, which have been detrimental to the interest of the person seeking such recount. In this regard reference has been made to Zulfiqar Ali v. Election Tribunal/Civil Judge 1st Clas Khanpur and 5 others (2000 MLD 746). As far as the argument of the learned counsel for the petitioner that the recount should be ordered on account of narrow margin of votes between the winning and losing candidate, the learned counsel refers to Malik Nausher Khan Langerial v. Khalid Mahmood Chohan and others (2.004 CLC 1249) to argue that mere fact of narrow margin between the parties does not furnish sufficient basis for ordering recount. In this regard he has relied upon Muhammad Ahmad Siddiqui v. Zamir Ahmad Tunio and 20 others (2003 CLC 1224) and Muhammad Shabbir Abu Talib v. Dr. Abdul Aziz Bantwa and 18 others (2003 YLR 3039).
5. On the factual plane, the learned counsel submits that the ground of violation of section 39(3) of the Representation of the People Act was never agitated before the Returning Officer or before the Election Commission. The same cannot be raised at this stage. He finally submits that the jurisdiction of this Court does not extend to the election disputes of this nature raising factual issues which require an exercise of recording of evidence. In this regard reference has been made to Aurangzeb Khan v. Election Commissioner of Pakistan, Islamabad through Secretary and others (PLD 2010 SC 34), Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan, Islamabad and another (PLD 2005 SC 52) and Sadeed ur Rehman v. Election Commission of Pakistan, Islamabad and 12 others (PLD 2009 Peshawar 54).
6. I have heard the learned counsel for the parties and gone through the record. From a perusal of the application filed by the petitioner before the Returning Officer as well as before the Election Commission, it appears that the main ground agitated by the petitioner for seeking recount was that there was a narrow margin of votes between the petitioner and respondent No.3. Further the fact that 6212 votes were rejected, furnishes sufficient basis to recount the rejected votes which could lead to a different result.
7. I am afraid the mere fact that there was a narrow difference of votes does by itself not furnish sufficient justification for ordering recount in the absence of sufficient material available on record for the returning officer to be "satisfied" that the request of challenge is reasonable. The word satisfaction has been examined by the Hon'ble apex Court in (PLD 2008 SC 663) Moulana Ata ur Rehman's case. One of the paragraphs being directly relevant to the present controversy is reproduced below:--- "Satisfaction" is by no means a term of art and appears to have been used in its ordinary dictionary meanings. Further "satisfaction" is the existence of a state of mental persuasion much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes to observance of certain well-settled judicial principles and is a firm state of mind admitting of no doubt or indecision or oscillation. To be "satisfied" with a state of things is to he honestly convinced about it in one's own mind. According to Black's Law Dictionary apart from the "legal satisfaction" which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. "Satisfactory evidence" has been explained as sufficient evidence meaning an amount of proof which ordinary satisfied an unprejudiced mind beyond a reasonable doubt. In Corpus Juris Secundum word "satisfy " is held to be synonymous with, "convince beyond a reasonable doubt" and "satisfaction" has been explained as a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary "to satisfy" means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince."
' In this regard reliance of the learned counsel for respondent No.3 has correctly been placed on Malik Nausher Khan Langerial v. Khalid Mahmood Chohan and others (2004 CLC 1249), where the margin of votes was just 51 votes, however recount was not ordered.
9. A perusal of the record also indicates that the allegations made in the application before the Returning Officer as well as the Election Commission were of a general nature and no specific allegation was made relating to any illegal act on the part of the rival candidate, the polling staff or the Returning Officer, which could have necessitated the recount.
10. Further the ground that provisions of section 39(3) had not been complied with, was not raised at the earliest stage. This ground cannot be raised at this belated stage and before this Court which is exercising extraordinary constitutional jurisdiction, which is equitable and discretionary in nature. Even if for the sake of argument, the said ground had been raised before the Returning Officer or the ECP, the same would have required a factual inquiry, which could neither be undertaken by the said fora in their summary jurisdiction nor by this Court in exercise of extraordinary constitutional jurisdiction.
11. It appears that all steps leading to the election have already been concluded. Consolidated results have also been handed over to the petitioner. Further the representative of the Election Commission of Pakistan has informed this Court that the Election Tribunals have also been constituted, where the petitioner can agitate the matter of seeking recount of votes on the basis of various factual allegations that, have been raised by the learned counsel for the petitioner before this Court. The Election Tribunals are procedurally equipped to conduct factual inquiries and a trial can be conducted to resolve all disputed questions of law and facts. The said exercise cannot be undertaken by this Court. Therefore, relying on the wisdom of the judgments of the Hon'ble Supreme Court of Pakistan reported as Aurangzeb Khan v. Election Commissioner of Pakistan, Islamabad through Secretary and others (PLD 2010 SC 34), Ayatullah Dr. Imran Liaquat Hussain v.
Election Commission of Pakistan Islamabad and another (PLD 2005 SC 52), I do not consider it appropriate at this stage to interfere in exercise of powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
12. Notwithstanding anything stated above, it is clarified that the findings recorded and observations made herein are based only on a tentative assessment of the material before me, in the facts and circumstances brought to my notice by the learned counsel for the parties for the limited purpose of deciding this petition. The Election Commission of Pakistan as well as the Election Tribunal (if approached by either party) shall always be at liberty to independently exercise their powers on the basis of material before them and take appropriate proceedings and/or pass orders under the provisions of Representation of the People Act, 1976 and/or any other law without in any way being influenced by this order.
13. For the reasons recorded above, this petition fails. It is IC accordingly dismissed.