' In the Local Councils Elections held on 28-12-1991, petitioner and Umar Draz Khan, respondent No,2 contested for the membership of Ward No,15, Union Council, Jallowali, Tehsil Taunsa, District D.G.
Khan. According to the result of the count made by the Presiding Officer, petitioner secured 267 rotes as against 246 votes of the respondent with the result that the petitioner vas declared successful. Respondent No,2 challenged the petitioner's election n an election petition filed under section 24 of the Punjab Local Government ordinance, 1979. Petitioner resisted the election petition by filing a written eply thereto. Respondent No,2 moved an application before the Election Tribunal for summoning the election record and for recounting of votes. This pplication was also contested by the petitioner and he also made an application for dismissal of the election petition on the ground that copy thereof was not delivered to him. The Election Tribunal framed the following issues on 19-1-1992:
(1) Whether the recounting should be called for or not if the answer is affirmative what action should be taken for further proceeding in regard of this petition? O.P.Ps.
(2) Whether this petition is not maintainable in its present form as raised in view of preliminary objection of written reply? O.P.R.
(3) Relief.
2. The Election Tribunal took up the case on 21-1-91 and without recording any evidence proceeded to hold on Issue No,1 that there was no legal hurdle to recounting and rechecking of the votes which exercise if undertaken would bring an end to the controversy between the parties. Application of respondent No, 2 for recounting and rechecking of the ballot-papers was accordingly allowed vide order, dated 21-1-1992 and the election record was summoned "for re-counting and rechecking on 25-1-1992". Issue No, 2 was decided against the petitioner:
3. It appears that the record was produced before the Election Tribunal on 25-1-1992. The Tribunal on rechecking/recounting the ballot-papers found 456 of them as bogus and it was held that Umar Draz Khan respondent secured 62 votes and the petitioner only 44 votes. Respondent No,2 was accordingly declared successful with a lead of 18 votes. His election petition was thus accepted by the Election Tribunal vide order, dated 25-1-1992.
4. Feeling aggrieved, petitioner has filed this Constitutional petition to call in question the validity of the aforementioned orders of the Election Tribunal dated 21-1-1992 and 25-1-1992.
5. I have heard the learned counsel for the parties. Learned counsel for the petitioner in the first instance assailed the order of the Election Tribunal passed on 21-1-1992 summoning the record for the purpose of rechecking/recounting the votes. It was contended that the Election Tribunal acted illegally in accepting the respondent's request for recount. It was argued that before ordering the recount, the Tribunal was required to satisfy itself on the basis of some evidence that the count made by the Presiding Officer was tainted with some illegalities but in the present case, the Tribunal neither recorded any evidence nor adverted to any other material on the record to justify its order for recount. Learned counsel pointed out that the question whether the recounting was called for or not was already put in issue, and, therefore, it was all the more necessary for the Tribunal to have recorded some evidence before giving the impugned direction for recounting the votes. With respect to the impugned order, dated 25-1-1992, contention of the learned counsel was that it was wholly arbitrary as the Tribunal gave no reasons whatsoever for holding 456 votes as bogus and for rejecting the bulk of votes of the petitioner and respondent No,
2. It was also pointed out by the learned counsel that according to the statement of count prepared by the Presiding Officer (Annexure A), total votes cast and counted in favour of the petitioner and respondent No,2 were 513 and no vote was rejected but according to the result of the recount made by the Tribunal, number of total votes comes to 562. Learned Tribunal, it was contended, did not attend to this major discrepancy.
6. Learned counsel appearing for the respondents had nothing to say to meet the aforenoted points raised on behalf of the petitioner. Law is fairly well settled that before giving a direction for recounting the votes, 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. Refer Kanwar Ejaz All v.
Irshad Ali and 4 others PLD 1985 Journal 283, a case decided by an Election Tribunal which was later upheld by the Supreme Court of Pakistan in its judgment reported as Kanwar Ejaz All v. Irshad All and 2 others PLD 1986 SC 483. Reference may also be made to a Division Bench judgment of this Court reported as Mian Muhammad Farooq v. Election Tribunal etc. 1988 MLD 2949 wherein 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". In the present case, the impugned order, dated 21-1-1992 was clearly without any basis. The Election Tribunal decided the relevant issue in favour of respondent No,2 and allowed his request for recounting the votes without recording any evidence and without attending to the question whether there was any mistake in the counting made by the Presiding Officer. Order dated 2-1-1992 cannot, therefore, be sustained in law.
Similarly, the order dated 25-1-1992 has also been subjected to valid criticism. It gave no reasons for declaring bogus as many as 456 votes nor was any reason assigned for reducing the petitioner's votes from 267 to 44 and those of respondent No,2 from 246 to 62. The Tribunal also did not care to notice that the number of votes according to his count far exceeded the total votes mentioned in the statement of count prepared by the Presiding Officer. The impugned order on the face of it appears to be arbitrary, perfunctory and without due application of mind to the facts, and the established principles of law. I am constrained to observe that the Election Tribunal has dealt with this case in a manner which leaves much to be desired.
7. In view of what has been said above, the impugned orders of Election Tribunal, dated 21-1-1992 and 25-1-1992 cannot be sustained and the same are accordingly declared to be without lawful authority and of no legal effect and the case is remanded to the Election Tribunal, respondent No,1 for passing fresh orders in accordance with law, keeping in view the observations made hereinabove. Case to be decided expeditiously. Writ petition is thus allowed but with no order as to costs.