' IRSHAD HASAN KHAN, J.---This petition for leave to appeal is directed against the order dated 10- 9-1997 passed by a Division Bench of the High Court of Balochistan, Quetta whereby Constitutional Petition No,349 of 1997, was dismissed in limine, against the order dated 28-5-1997, passed in Civil Miscellaneous Application No,29 of 1997 in Election Petition No,4 of 1997 passed by the Election Tribunal, Balochistan (hereinafter called, the Tribunal), whereby directions were issued for re- counting of the votes during the pendency of Election Petition filed by respondent No,1 against the petitioner.
2. The brief facts are that the petitioner and private respondents contested elections from Constituency PB-24 Bolan (Karachi-I) on 3-2-1997. The petitioner was declared as a returned candidate. Respondent No,1 moved an Election Petition No,4 of 1997 against the petitioner. During the pendency of the Election Petition, a Civil Miscellaneous Application No,39 of 1997 was also moved seeking re-counting of votes cast in favour of the petitioner. The Tribunal by order dated 25-8-1997 appointed Provincial Election Commissioner, Balochistan, Quetta (hereinafter called the Commission) for re-counting of votes obtained by the returned candidate, checking of counterfoils, seal and signature of Presiding Officer/Assistant Presiding Officer on ballot papers/counterfoils, to check the number of National Identity Card after summoning the record.
The representatives of the parties were directed to be associated during the course of re-counting.
3. Being dissatisfied with the said order, the petitioner filed a Constitutional petition in the High Court, which was dismissed in limine, vide impugned judgment. The High Court was of the view that the Election Laws provide hierarchy for impugning the election and the order passed by the Tribunal and the right of appeal against the impugned order was available to the petitioner under subsection (3) of section 67 of the Representation of People Act, 1976, which disentitled him the Constitutional jurisdiction of the High Court.
4. Sardar Muhammad Latif Khan Khosa, learned Advocate Supreme Court appearing for the petitioner vehemently pleaded that the Tribunal should have made judicious determination of the dispute between the parties relating to recounting of votes, specifying therein reasons for arriving at a decision that recounting was necessary, which is lacking here. He emphasised that the impugned judgment is wholly shorn of reasons, inasmuch as, the Tribunal merely highlighted the powers vested in the Tribunal to direct re-counting in its discretion but failed to record a specific finding as to whether this was a fit case for re-counting and, therefore, the order of the Tribunal was not proper.
5. There is no cavil with the proposition of law canvassed by the learned counsel for the petitioner that order of the Tribunal ought to have been self-contained, unambiguous and lucid, specifying therein reasons for judicious determination of the dispute raised before it. In the instant case, no specific findings were given on merits. However, the decision was rendered after examining the respective contentions of the parties with reference to the relevant provisions of the law as is apparent from paragraph 3 of the judgment rendered by the Tribunal, which reads thus:-- "I have carefully examined the respective contentions as adduced on behalf of the parties in the light of relevant provisions of law, specially section 46 of the Act, relevant portion whereof is reproduced hereinbelow for ready reference: '46. Order for production of documents.--(1) A Tribunal may order the opening of packets of counterfoils and certificates or the inspection of any count ballot papers,
(2) An order under subsection (1) may be made subject to such conditions as to persons, time, place and mode of inspection, production of documents and opening of packets as the Tribunal making the order may think expedient: ' Provided that in making any 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 ' The learned Tribunal also observed, "By accepting this application no harm or prejudice would be caused to the returned candidate, rather it would be benefited for all those who believe in fair and impartial election, fairplay and equity".
6. Viewed in this perspective, the impugned order when read in the context of the pleadings of the parties, indubitably shows that the same was passed as respondent No,1 specifically alleged that the petitioner tampered with the result of statement of accounts in connivance with the subordinate persons. Thus, visualized, on this technical point simpliciter the impugned order of the Tribunal cannot be declared invalid.
7. Sardar Muhammad Latif Khosa next relied on Mian Ejaz Shafi v. Syed Ashraf Shah, 1st Additional Sessions Judge, Karachi and Returning Officer, Karachi West-I (1996 SCM R 605), Sardar Gul Khitab v. Javid Iqbal Abbasi (1988 CLC 945), Syed Manzoor Hussain Shah v. Syed Zafar Ali Shah (1989 MLD 3377), Julius Salik v. Returning Officer (1991 M LD 589), Peter Gill. v. Returning Officer (1991 CLC 169) and Syed Ali Shah v. Syed Qamar Abbas (1996 M LD 1806), to contend that this was not a fit case for grant of recounting by the Tribunal.
' In the case of Mian Ejaz Shafi (supra), the facts relevant for the purpose of controversy involved in this case, are that this Court dismissed the appeal against the order of the Election Tribunal seized of the Election Petition against the order of re-counting of votes, on the ground that the appeal against the interim order passed by the Election Tribunal, was not competent. However, the final decision of the Election Tribunal accepting the report of the Deputy Election Commissioner declaring rejection of certain votes being invalid, was allowed by this Court vide order dated 6-12- 1994 in C.A.No,851 of 1984 and the case was remanded with the observation that "for determining the invalidity of those ballot papers, and for that purpose it was left open for the Tribunal to record evidence to be produced by the parties". In the post-remand proceedings, the learned Election Tribunal did record evidence but failed to determine as to whether the repeated stamps on the ballot papers were affixed during polling or before the declaration of the result of the Election. The decision rendered by the Tribunal in the post-remand proceedings was again challenged before this Court, wherein it was observed:- "The burden of proving the allegation that the result of the count was changed adverse to the election-petitioner by counting invalid votes in favour of the appellant heavily lay on the election- petitioner and not on the appellant, as erroneously construed by the Election Tribunal."
' The majority decision in the ratio of 2 to 1 was summed up in the following terms:-- "14. We have examined the evidence on the record and perused the applications moved by the election-petitioner for recount together with the orders passed by the Returning Officer as well as the Election Commission, rejecting them and hold that tampering with the votes was made subsequent to the declaration of the result of election as such is of no consequence qua the appellant, who was duly elected. The will of the electorate expressed in favour of the appellant cannot be set at naught by mere allegation of the election petitioner, which he failed to prove."
' In the case of Sardar Gul Khitab (supra), the Election Tribunal took the view that relief of re- counting cannot be granted merely on the possibility of there being an error. The prayer for re- counting of votes in the said case was declined by the Election Tribunal on the ground that the petitioner therein had failed to discharge the burden by convincing and cogent evidence that returned candidate was guilty of illegal or corrupt practices as mentioned in the Election Petition.
' In the case of Syed Manzoor Hussain Shah (supra), it was observed that the Election Commission dismissed the prayer for re-counting of votes as it was of the view that the allegations made against the returned candidate were not clear and specific nor were supported by adequate statements of material facts, therefore, re-counting could not be made with a view to fish out materials for declaring election to be void or for indulging in roving inquiry.
' In the case of Julius Salik (supra), it was held that before demand of recounting of votes is allowed the party praying for re-count should satisfy the Tribunal, by producing evidence or placing other material before it, that he has a reasonable case, therefor.
' In the case of Peter Gill (supra), the Election Tribunal held that recount of ballot papers could be ordered only in appropriate cases and on satisfaction of requisite conditions.
' In the case of Syed Ali Shah (supra), the Election Tribunal dismissed the prayer for re-count on the ground that the Returning Officer had given sufficient reasons in his order rejecting application of the petitioner therein for re-count, who had failed to make out a case for re-count of ballot papers/votes cast in election, in that, no evidence was brought on record to prove prevalence of extensive corrupt and illegal practices in the conduct of election by returned candidate or at his connivance by someone else including functionaries of Election Commission.
' After hearing the learned counsel for the petitioner and the learned Advocate-on-Record for respondent No, 1 /caveator at considerable length, perusing the impugned judgment and the material on record, we think it would not be in aid of justice to comment upon the question whether in the circumstances of the case, the learned Tribunal was justified to order the recounting of the votes in the manner it had directed as it may prejudice the petitioner. In the case of Mian Ejaz Shafi v. Syed Ali Ashraf Shah (PLD 1994 SC 867), this Court declined to interfere with the order passed by the Election Tribunal whereby re-counting of votes was ordered, keeping in view its earlier decisions in the cases of (1) Mahmood Azam Faruqui v. Moulana Muhammad Shafi Okarvi (1974 SCM R 471), (2) Mian Zahid Sarfaraz v. Raja Nadir Pervaiz Khan (1987 SCM R 1107), (3) Habibul Wahab Alkhairi v. Sheikh Rashid Ahmad (PLD 1989 SC 760) and (4) Bhagwandas v. The Returning Officer (1990 SCM R 1228). The relevant passage in the report reads thus:-- "5. Objection with regard to non-maintainability of appeal against interlocutory order of the Tribunal is correct as per scheme of the said Act and legal position enunciated in the case-law on the subject mentioned above. The petition is still pending before the Tribunal and final order is yet to be passed against which appeal could competently be filed in this Court. In such circumstances we would not like to make any comment on the contentions raised on behalf of the appellant, which could be raised by him before the Tribunal at the stage of the arguments. At present it would suffice if we mention that under section 64 of the said Act Election Tribunal can order re-count of votes in appropriate cases and on satisfaction of requisite conditions and in that context reference can be made to the case of Haji Muhammad Asghar v. Malik Shah Muhammad Awan (PLD 1986 SC 542). In any case final order is yet to come from the Tribunal against which appeal is competent.
For the facts and reasons mentioned above this appeal is dismissed as non-maintainable."
8. We have gone through various decisions of the Election Tribunal cited by Sardar Muhammad Latif Khan Khosa, on the question of re-counting of votes referred to in paragraph 7 above. Suffice it to say that the Election Tribunal can order re-count of votes in appropriate cases and on satisfaction of requisite conditions. Guidance may be sought from the case of Haji Muhammad Asghar v. Malik Shah Muhammad awan (supra). The case of Mian Ejaz Shafi (supra), strongly relied upon by the learned counsel for the petitioner, does not advance his case, inasmuch as, paragraph 6 of the aforesaid judgment reveals that the appellant therein challenged the order of the Election Tribunal regarding recounting of votes before this Court through C.A. No,425 of 1994, which was dismissed on 7-6-1994 on the ground that the appeal against the interim order passed by the Election Tribunal, was not competent. In the instant case also, the final order is yet to be passed by the Tribunal seized of the Election Petition filed by respondent No,1 against the petitioner.
Admittedly, appeal against the final order of the Tribunal lies before this Court. The petitioner shall also be at liberty to file objections to the report of the Commission on re-counting of 'votes. Clearly, if such objections are raised the same shall be considered by the Tribunal justly, fairly and in accordance with law, after providing an opportunity of being heard to the parties and allowing them to lead evidence in support of their respective contentions, if so desired, before final disposal of the Election Petition.
9. Resultantly, the petition is dismissed and leave is refused.