Through this petition the petitioner wants the relief in respect of an order passed by respondent No. l on 11-2-1997 wherein it was ordered that the recounting of the entire constituency in respect of PF- 5, Peshawar-5 shall be done at 10-00 a.m. On 12-2-1997.
2. The brief facts are that the petitioner and respondent No.4 along with others contested elections for the constituency given above. That according to the petition the petitioner won the elections by 48 votes as it was unofficially declared on 3-2-11997. The said lead of 48 votes of the petitioner was reduced to 43 votes on 6-2-1997 at the time of consolidation of the results by the Returning Officer.
It was further alleged that the counting for the reconsolidation could not be completed on 6-2-1997 and was postoponed to 11-2-1997 as in-between there were 'Eid Holidays'. It appears that on 11-2- 1997 when the Returning Officer resumed consolidation an application was moved by respondent No.4 requesting for the recount of the entire constituency. The said application was accepted vide order dated 11-2-1997 which is impugned in the petition. The application was based on the assertions that thin difference of votes between the unofficially declared returned candidate and .The runners up. Secondly on the ground that most of the valid votes were excluded from count and similarly the invalid votes were included.
3. The learned counsel for the petitioner in support of his contention referred to section 39 of the Representation of the People Act, 1976 and submitted that the election process was complete because in his view the election process starts when the voters are called upon to elect their representatives for the constituency and it ends on the day of polling whereas learned counsel for respondent No.4 who had accepted notice on 12-2-1997 submitted that section 39 shall be read in totality, i.e. Subsection (6) of the section ibid. His conention was that the consolidation of results will be held final only if in case of a request or challenge made in writing the recount process is also complete. The learned counsel for the petitioner also objected to the application and the impugned order on the ground that the allegations made therein are vague and not specific while the learned counsel for respondent No.4 contended that the Returning Officer is vested with the power to order recount of ballot papers upon request, or challenge in writing made by a contesting candidate only pre--condition for such order is the satisfaction of the Returning Officer in respect of request or challenge to be reasonable.
4The learned counsel for the petitioner does not dispute the power of the Returning Officer but was of the view that without cogent or sufficient material no order could have been passed to which view we cannot subscribe as section 39 subsection (6) does not cater for recording of evidence or sufficient material. The judgment reported as Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others (1994 SCM R 1299) was relied by the learned counsel for the petitioner on the point of maintainability of the writ petition in response to the objection raised by the learned counsel for respondent No.4 who relied on Election Commission of Pakistan through itsSecretary v. Javaid Hashmi and others (PLD 1989 Supreme Court 396). The two judgments of the Hon'ble Supreme Court were considered by us and it appears that some elbow room is left for the exercise of Constitutional jurisdiction of this Court in such matters. As we are not in agreement with the learned counsel for the petitioner as to the merits of the case in respect of the impugned order we will not enter into the arena of jurisdiction of this Court and would confine ourselves to the impugned order which appears to be within the ambit of law and rules which empowers the Returning Officer to pass any such order. We will also refer to section 103, sub-clause
(b) wherein any order passed by an officer A under this Act or the Rules may be reviewed by the Commission, as such, the petitioner has a remedy under the statute.
5. For the facts and reasons stated above, we would hold that there is no force in this petition and the same is dismissed in limine. C.M. No.206/97 also stands dismissed with the resultant vacation of the order with regard to interim relief.