' SAJJAD ALI SHAH, C J.---This is a direct appeal filed under section 67(3) of the Respresentation of the People Act, 1976, calling in question the decision of the Election Tribunal dated 18-10-1994, whereby Election Petition No,51 of 1993, filed by respondent No,2, Syed Masroor Ehsan, is allowed and in the result election of appellant, Mian Ejaz Shafi as member of the National Assembly from NA-184, Karachi West I, is set aside and respondent No,2, Syed Masroor Ehsan, is declared as winning candidate from the said constituency.
2. It was contended before the Election Tribunal on behalf of respondent No,2 that after close of polling at about 2-00 a.m. In the night between 6th and 7th October, 1993, he was declared as returned candidate by the Returning Officer in presence of the public in the office of Deputy Commissioner (West), but later at 8-00 a.m. In the morning on television appellant was declared as returned candidate with a lead of 273 votes. Respondent No,2 submitted written petition before the Returning Officer for recounting.
3. Respondent No,2 pursued remedies before the Election Commission for redressal of his grievance, but without success and finally he filed the election petition, which was seriously contested by the appellant. On 24-5-1994, the Election Tribunal passed the order, portion from relevant paragraph is reproduced as under:-- ....Accordingly I order the Deputy Election Commissioner, Hyderabad to scrutinize ballot papers of 722 disputed votes rejected by the Returning Officer and to re-count the votes in presence of the contesting parties and/or their representatives. The re-counting is required to take place in office of the Election Commission of Pakistan at Karachi, under the supervision of the Deputy Election Commissioner, Hyderabad and in presence of Registrar/Assistant Registrar of the Election Tribunal.
Needless to add that the Deputy Election Commissioner, Hyderabad shall give timely notice about the date, time and place of the scrutiny/re-counting. Such re-counting to be done preferably before the next date of hearing viz. 6-6-1994. The application moved by the petitioner under section 151, C.P.C. Stands disposed of accordingly."
4. Needful was done by the Deputy Election Commissioner in compliance with the order of the Election Tribunal and report was submitted, which was brought on the record. According to the report on scrutiny 722 rejected votes were found to be rightly rejected and further on recount of votes 625 ballot papers of the appellant and 29 ballot papers of respondent No,2 were found to be invalid on account of repeated stamping. This Court has heard in detail counsel appearing for both the parties, who have advanced a large number of contentions in support of and against the decision of the Election Tribunal on factual as well as legal plane.
4. During the hearing of the appeal we sent for the ballot papers, which were declared invalid during the election count and also those declared invalid in the recount by the Deputy Election Commissioner in compliance with the order of the Election Tribunal. Ballot papers were in sealed bags and the seals were opened in the Court and some ballot papers from the bunch, which were declared invalid during the recount were examined by us in presence of the parties and their counsel. After which the ballot papers were ordered to be sealed again in the Court. It appears from the impugned decision that the Election Tribunal included in the record report of the Deputy Election Commissioner as Exh.13, and acted upon it in totality without checking or examining the ballot papers, which were invalidated in the recount. Our attention has been drawn to section 46 of the Representation of the People Act, 1976, which pertains to powers of the Tribunal to order the opening of packets of counterfoils and certificates or the inspection of any counted ballot papers.
Proviso to subsection (2) of section 46 of the abovementioned Act, is reproduced below:-- "... ... ...Provided that in making and carrying 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."
5. It, therefore, appears very clearly that after recount 625 votes of the appellant and 29 votes of respondent No,2 were declared invalid by the Deputy Election Commissioner, who had no authority under the law to do so as these votes could be invalidated by the Election Tribunal and for that purpose the Election Tribunal should have called for the sealed bags containing those invalidated votes in order to satisfy itself whether it was properly done or not and, if satisfied, should have declared itself these votes to be invalid. ,
6. In the circumstances, for the facts and reasons stated above, we set aside the impugned decision and remand the case to the Election Tribunal for compliance of requirement of proviso to subsection (2) of section 46 of the Representation of the People Act, 1976 and for that purpose check and scrutinize invalidated ballot papers in the recount in the presence of the parties and their counsel. For acquiring the satisfaction with regard to invalidity of those ballot papers, it is open to the Tribunal to record evidence to be produced by both the parties. We further direct that the proceedings should be completed and fresh decision be announced within thirty days from the date of the first hearing. In consequence, the appeal is allowed.