' Muhammad Azam Khan, C.J--The above titled appeal by leave of the Court arises out of the judgment of the High Court dated 31st October, 2013, whereby writ petitions; one, filed by the appellant herein, and the other filed by Respondent No. 2 have been accepted with a direction to the Election Tribunal to pass fresh order after hearing both the parties in the light of rule of law laid down in Sardar Abdul Hafeez Khan's case (1999 SCM R 284).
2. Precise facts for disposal of this appeal are that the appellant and Respondent No. 2 contested the General Elections for the Legislative Assembly of the Azad Jammu & Kashmir from constituency LA-XXI, Sudhnooti 1. Respondent No. 2 was declared returned candidate. The appellant filed an election petition before Election Tribunal. During pendency of the election petition, the appellant on 14th May, 2013, filed an application before the Election Tribunal for recounting of the votes for the whole constituency with the submission that if the recounting of the votes is made then he is ready to withdraw from all the points agitated in the election petition. After seeking objections and hearing the arguments of the parties, the Election Tribunal ordered for recounting of the votes for Polling Station No.
185. Dissatisfied from the said order, the appellant filed a writ petition in the Azad Jammu & Kashmir High Court. Respondent No. 2 also filed a writ petition, whereby he challenged the order for recounting of the votes for Polling Station No.
185. After necessary proceedings, the learned Chief Justice of the High Court through the impugned judgment on 31st October, 2013, -accepted both the writ petitions and directed the Election Tribunal to pass fresh order-in the light of the judgment of the Supreme Court of Pakistan delivered in the case reported as Sardar Abdul Hafeez Khan vs. Sardar Muhammad Tahir Khan Loni & 13 others [1999 SCM R 284]
3. Mr. Asghar Ali Malick, Advocate, the counsel for the appellant argued that in 'Muhammad Asim Kurd alias Gailoo vs. Nawabzada Mir Lashhari Khan Raisani and 11 others, (1998 SCM R 1597), the Supreme Court of Pakistan while interpreting Section 46 of the Representation of People Act, 1976, has observed that Election Tribunal has power to order for opening of packets of counterfoils and recounting of votes. Therefore, writ petition from this order is not maintainable. On a query by Court that if the writ petition against the order of Election Tribunal dated 4th July, 2013 filed by respondent, was not competent, how the writ petition filed by the appellant is competent? He submitted that the writ petition filed by the appellant is also not competent. It is astonishing that how the appellant himself after filing writ petition can advance such an argument? The learned counsel further submitted that he will have no objection if his writ petition is dismissed.
4. Sardar Muhammad Hussain, Khan, appellant himself came on the rostrum and argued that the matter has already been prolonged due to the Court for a number of years. He also argued that if the ballot-papers of all the Polling Stations are counted and after counting as such the decision is made, then he will not produce any other evidence. In this regard, if a direction is issued, he will be satisfied and his grievance will be redressed.
5. While controverting the arguments of the counsel for the appellant, Raja Muhammad Hanif Khan, Advocate, the counsel for Respondent No. 2, Dr. Najeeb Naqi Khan, argued that the application for recounting of votes cannot be made at preliminary stage. Before framing of issues, such, application is not maintainable. The Election Tribunal is empowered to order for inspection of ballot papers and record under Section 43 of AJ&K Legislative Assembly (Elections) Ordinance, 1970, but such order can be made when evidence has completely been led and the petitioner proves that an illegality has been committed in the counting of votes. Before that the Tribunal has no jurisdiction to make an order for recounting of votes. He submitted that Section 46 of the Pakistan's Representation of People Act, 1976 is an analogous provision to Section 43 of the AJK Legislative Assembly (Elections) Ordinance, 1970. Section 46 of Representation of People Act, 1976 has been interpreted in a number of judgments. The law was settled in a case reported as Sardar Abdul Hafeez Khan vs. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCM R 284) and the same is consistently being followed. He relied upon cases reported as Mustafeezuddin vs. Arshad Mahfooz and 18 others (2004 CLC 687), Malik Nausher Khan Langerial us. Khalid Mahmood Chohan and others (2004 CLC 1249), 2004 CLC 1360, and 2007 MLD 746. The learned counsel further argued that proviso (2) to Section 43 of AJK Legislative Assembly (Elections) Ordinance, 1970 imposes a condition that in making and carrying out into effect an order for the inspection of counted ballot papers, care shall be taken that no vote shall be disclosed until it has been held by the Tribunal to be invalid. He submitted that the tribunal has ordered that the inquiry officer shall determine how many votes have been polled and how many of those are invalid. The Tribunal has no jurisdiction to order to an inquiry officer for determining the validity of votes. It is only the tribunal which has competency to declare a vote valid or invalid, therefore, the order passed by the. Tribunal was not competent.
6. Raja Amjad Ali Khan, Advocate, has adopted the arguments of Raja Muhammad Hanif Khan, Advocate
7. We have heard the learned counsel for the parties and also perused the record. As the facts have already been narrated in the preceding paragraph, therefore, there is no need to repeat; the same. During the pendency of election petitions, the appellant moved an application to the Election Tribunal on l0th June, 2013 for recounting of votes through commission polled in the Constituency. He further stated in the application that Dr. Muhammad Najeeb Naqi, Respondent No. 2, had filed application on 27.6.2011 for re-poling on 7 Polling Stations and he has consented to the application. He further' stated in that application that he will not contest the petition on the other points if recounting of votes is made. Respondent No. 2 filed objection on the application. After hearing the parties, the Tribunal through order dated 4th July, 2013 passed the following order: "Nutshell of the above discussion is that application filed by Sardar Muhammad Hussain for rechecking/recounting of votes is accepted to the extent of Polling Station No. 185 in Constituency No. LA 21 Sudhnutil. Raja Rashid Mehmood, Deputy Election Commissioner, Kotli is appointed as Local Commissioner to recheck and recount the votes polled at Polling Station No. 185 of the Constituency in the office of Election Commission at Muzaffarabad. Local Commissioner is authorized and directed to observe the process of rechecking/recounting of the ballots polled on aforementioned station on 22.7.2013, in presence of the parties. He is further directed to submit a detailed report by ascertaining as to whether the ballots on this polling station have been polled in accordance with law. He shall also ascertain that ballot papers have been counted and the result has been prepared in accordance with law and rules. Report of the Local Commissioner shall also contain that how much of the votes are correct and how much of them are liable to rejection, in his view. Local Commissioner shall submit a report to Deputy Registrar High Court Circuit Rawalakot within a month. File shall be placed before the tribunal on 6th August, 2013."
' It reveals that the Tribunal ordered for rechecking/ recounting of votes for Polling Station No. 185 Raja Rashid Mehmood, Deputy Election Commissioner, Kotli was appointed as local Commissioner to recheck and recount the votes polled, on Polling Station No. 185 of the constituency in the office of Election Commissioner at Muzaffarabad. He was authorized and directed to observe the process of rechecking/recounting of the ballots polled on the aforementioned Polling Station on 22nd July, 2013 in the presence of the parties. He was further directed to submit a detailed report by ascertaining as to whether the ballots on this polling station have been polled in accordance with law. He was also directed to ascertain whether ballot papers have been counted and the result has been prepared in accordance with law and rules. Report shall also contain that how much votes are correct and how many of those are liable to be rejected?
8. Under Section 43 of the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970, (hereinafter to be referred as Ordinance, 1970) the Tribunal has power to make orders for opening of the packets of counterfoils and certificates or inspection of any counted ballot papers. A proviso has been attached to Section 43 of Ordinance, 1970 that while carrying into the effect an order of the Tribunal for the inspection of counted ballot papers, care shall be taken that no vote shall be disclosed until it has been held by the Tribunal to be invalid. It is only the Election Tribunal which has power to declare a vote as invalid. The Inquiry officer or commission has no power to declare that a vote is invalid. In the judgments of Supreme Court of Pakistan referred to by both the parties provides Section 46 of the Pakistan's Representation of People Act, 1976, (which is analogous provision of Section 43' of Elections Ordinance) it has been declared that the Tribunal has power to order for opening of the packets of counterfoils and certificates or the inspection of any counted ballot papers. It was observed in case reported as Sardar Abdul Hafeez Khan vs. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCM R 284) that after inspection and report made to the Election Tribunal by the Inspecting Officer, the Tribunal shall provide an opportunity to the parties to file objections on the said report and after tendering the report in evidence, the case shall be finally disposed off. The judgment lays down that the petition cannot be decided C merely on the basis of report of a person appointed by the Tribunal for inspection and making report thereof. In Sardar Abdul Hafeez Khan supra case, the Supreme Court of Pakistan while interpreting the powers of Election Tribunal under Section 46 of the Representation of People Act, 1976, observed that this section confers an exclusive and a wide discretion in the Election Tribunal to order opening of packets of counterfoils and certificates or the inspection of any counted ballot papers subject to the conditions provided in proviso to Section 46. It was further observed that the Tribunal should have some basis for taking recourse to its exclusive and essentially discretionary powers under Section 46(1), opening the way to a recount. Thus, it would be for a petitioner in an election petition to lead the initial evidence for the Tribunal to take resort to the powers under discussion. It is only then that the Tribunal may summon the relevant record and examine the corresponding official witnesses at the petitioner's behest, unless, of course, the Tribunal is acting suo motu in the midst of the petition. It was observed at page 297 of the report as under:- "What, therefore, emerges is that the Tribunal, should have some basis for taking recourse to its exclusive and essentially discretionary powers under Section 46(1), opening the way to recount.
Thus, it would be for a petitioner in an election petition to lead the initial evidence for the Tribunal to take resort to the powers under discussion. It is only then that the Tribunal may summon the relevant record and examine the corresponding official witnesses at the petitioner's behest, unless, of course, the Tribunal is acting suo motu in the midst of the petition, something which does not appear to be precluded. In the instant case, however, the ordinary procedure seems to have been reversed largely because none of the respondents objected to the summoning of the official witnesses and sending for the record. Indeed the election bags were opened without any demur.
The procedure adopted, accordingly, may thus have been regularized. Once, however, the counterfoils of the ballot papers, the relevant certificates and the ballot papers cast have been opened, the concomitant care, which the statue requires to be observed, is that a counterfoil is not to be shown to the contestants in the election petition unless the matching vote has been invalidated. In other words, while the Tribunal is free to itself examine and compare the counterfoils which the ballot papers actually cast the secrecy of ballot can be maintained only if the contesting parties initially are not made privy to the comparison of the counterfoils with the ballot papers because such would instantaneously identify an elector and expose the secrecy of the ballot. We have no doubt that the Tribunal must have been mindful of this mandatory requirement and it was only after it found specific votes to be invalid that the parties were made privy to the conclusion."
' It has further been held in the supra report at page 298 that:- "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 or, 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."
' The learned Chief Justice in the High Court accepted both the writ petitions and directed the Election Tribunal to pass the order in the light of Sardar Abdul Hafeez Khan's case (1999 SCM R 284).
The authorities referred to by the counsel for the respondents or judgment of the Election Tribunals where rule of law laid down in the case 1999 SCM R 284 has been followed, need not to be discussed. There is no illegality in the impugned judgment of the High Court. The appeal is dismissed with a direction to the Election Tribunal to decide the election petition within a period of four months from the receipt of judgment of this Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.