' Petitioner and respondents Nos.2 to 4 contested the election for electoral Unit No,5 of Municipal Committee, Kehror Pacca, District Lodhran held on 28-12-1991. The real contest was between the petitioner and Farooq Ahmad Khan, respondent No,2. Petitioner secured 493 votes as against respondent No,2 who polled 491 votes with the result that the petitioner was declared successful.
Respondent No,2 challenged the election of the petitioner in an election petition filed before the Election Tribunal, respondent No,l. His main grievance in the election petition was that his 34 votes (12 at the Male Polling Station and 22 at the Female Polling Station) were wrongfully rejected. It was alleged by respondent No,2 that he was winning during the count made at the Female Polling Station and in order to frustrate his success, supporters of the petitioner resorted to hooliganism.
They broke the doors and windows of the building and pressurised the Lady Presiding Officer to recount the votes and forcibly got his votes rejected from her in the absence of his Polling Agents.
Respondent, therefore, prayed in the election petition that the election record be summoned and the ballot papers be recounted/rechecked. Election petition was contested by the present petitioner which gave rise to the following issues:---
(i) Whether the ballot-papers in question have not been properly counted? If so what is the correct count of the votes and with what result? O.P.A.
(ii) Relief.
2. It appears that during the course of hearing on 25-1-1992, counsel for respondent No,2 made a request to the Election Tribunal for summoning the record for the purpose of recounting the votes stating that he did not wish to lead any other evidence. The Election Tribunal allowing this request directed the Returning Officer to produce the entire election record on 27-1-1992 on which date, the bags containing the record would be opened in the presence of the male and female Presiding Officers who were also directed to appear on that date. Feeling aggrieved, petitioner approached this Court through this Constitutional petition praying that the impugned order, dated 25-1-1992 passed by the Election Tribunal may be declared to be without lawful authority and of no legal effect.
3. I have heard the learned counsel for the parties. Learned counsel for the petitioner has contended that the Election Tribunal acted illegally in accepting the request of the respondent's counsel for summoning the election record for recounting the ballot-papers without first satisfying himself on the basis of some evidence/material on the record that the counting of the votes by the Presiding Officers, prima facie, suffered from some illegalities. Learned counsel has pointed out that the question whether the ballot papers were not properly counted by the Presiding Officers was already put in issue. It was, therefore, all the more necessary that the Tribunal should have taken some evidence on this aspect of the matter before passing the impugned order. It is further contended that the Election Tribunal gave no reasons for passing the impugned order and mechanically allowed the request of the respondent's counsel. In support of his submissions, learned counsel for the petitioner has placed reliance on Kanwar Ejaz Ali v. Irshad Ali and 4 others PLD 1985 Journal 283 and Mian Muhammad Farooq v. Election Tribunal etc. 1988 MLD 2949.
4. Learned counsel appearing for the contesting respondent has not disputed the legal proposition canvassed on behalf of the petitioner but contended that there was enough material on the record to justify the order for recounting the votes. He has particularly referred to the written statement of the lady Presiding Officer filed before the Election Tribunal (Annexure R.2/1) and pointed out that she had stated therein that after she had counted the votes, a dispute regarding the rejected votes erupted between the supporters of the petitioner and respondent No,2. People started breaking the doors and the windows and she recounted the votes in a state of turmoil and in the absence of respondent No,2 and, therefore, recommended the recount of the votes. Learned counsel has argued that the Election Tribunal was quite aware of the position stated in the written statement of the lady Presiding Officer and he in fact took note thereof in his order (Annexure R.2/1) disposing of the respondent's application for interim relief.
5. It is no doubt true that the lady Presiding Officer in her written statement filed before the Election Tribunal referred to the unruly conduct of the supporters of the rival contestants and the ensuing state of turmoil and disorder in which she had to recount the votes and that she also recommended for the recounting of the votes. The fact, however, remains that when passing the impugned order, the Election Tribunal did not refer to these averments of the lady Presiding Officer made in her written statement. The Election Tribunal in fact passed the impugned order in routine little realising that the ballot papers are not to be recountell as a matter of course but only when there are good grounds for believing that there has been some mistake in the counting by the Election authorities. Law by now is fairly well settled that before giving a direction for recounting, the Tribunal must satisfy itself on the basis of evidence that the allegations of commission of irregularities/illegalities by the Presiding Officer in the counting of votes are, prima facie, established and that recounting is, therefore, imperatively necessary. It was so held in Kanwar Ejaz Ali v. Irshad All and 4 others PLD 1985 Journal 283 which was a case decided by an Election Tribunal and the decision was later upheld by the Supreme Court in its judgment reported as Kanwar Ejaz All v. Irshad All and 2 others PLD 1986 SC 483. Case of Mian Muhammad Farooq supra also proceeded on the same view. In that case, the petitioner in the election petition got his statement recorded that his votes were wrongly credited to the rival candidate and the latter's votes which ought to have been rejected were illegally accepted and that he merely wanted the recount of the votes. After recording this statement, the Election Tribunal summoned the election record for the purpose of recount. This order was brought under challenge in a constitutional petition which was allowed by this Court reiterating the afore-noted view in the case of Kanwar Ejaz All and it was further held that the Election Tribunal had passed the impugned order in routine without referring to any material. It was observed that "it was the obligation of the Tribunal to have rendered a speaking order giving reasons in support of its decision regarding recounting".
6. In the present case, the Election Tribunal allowed the request of the respondent for recounting the votes without attending to any material on the record and without recording any reasons justifying the recount. The learned Tribunal passed the impugned order without realising that the question as to whether the ballot papers were not properly counted by the Presiding Officers was already put in issue and, therefore, it was all the more necessary for him to examine some evidence in support of the issue and order the recounting of votes only if he was satisfied that the ballot papers were not properly counted by the Presiding Officers. The Tribunal admittedly recorded no evidence and ordered recount without deciding the issue. This was wholly illegal. The learned counsel for the petitioner is right in contending that the impugned order was passed in routine, mechanically and without proper application of the mind to the material on the record. In the circumstances, it cannot be sustained.
' In view of what has been said above, writ petition is allowed, the impugned order of the Election Tribunal dated 25-1-1992 is declared to be without lawful authority and of no legal effect and the to the Election Tribunal, respondent No,1 for passing a fresh order in accordance with law and in the light of the observations made hereinabove. There will be no order as to costs.