' The Election Tribunal, Sialkot, has, vide impugned order, dated 28-9-1998 ordered re-count of the ballot papers. Hence, this Constitutional petition.
2. The facts, in brief, are that the petitioner and respondent. Sh. Zulfiqar Ali contested election from Wared No,4 of Municipal Committee, Sambrial, District Sialkot. The petitioner was declared as a returned candidate by a margin of two votes. Respondent No,1 through an Election Petition has challenged the petitioner's election on the grounds, that at Polling Both No,33 (Females) 19 votes cast in his favour were not counted in his favour and were illegally cancelled due to petitioners' collusion with the Presiding Officer and at males polling station the ballotting was stopped by the Presiding Officer for about two hours due to the riots and in these circumstances the Presiding Officer ought to have extended the time to enable the voters to cast their votes because at the time of close of poll 30/40 votes belonging to his group were present at the Polling Station and the time was not extended and they were not allowed to cast their votes because of the collusion of the polling staff with the petitioner, so much so, that even he himself was not given an opportunity to cast his own vote. In this background, it was prayed that election petitioner be declared as the returned candidate or re-poll be ordered at the Male Polling Station. Any other relief to meet the ends of justice was also prayed for. The election petition has been contested by the present petitioner through his reply, dated 9-7-1998. On 22-9-1998, learned counsel for respondent No,1 alongwith respondent gave a statement that if the recount of ballot papers is ordered, respondent No,1 would forego the other reliefs prayed for in the election petition and would not press the same.
The Election Tribunal after having heard the learned counsel for the parties, vide its impugned order, dated 28-9-1998, holding the election petition to be maintainable, has ordered recount of invalid votes.
3. I have heard the learned counsel for the petitioner and also learned counsel for respondent No,1 at this pre-admission stage.
4. It is contended by the learned counsel for the petitioner that recount of ballot papers cannot be granted as a matter of right but can be ordered only on the basis of evidence brought on the record to the effect that there has been a mistake in the counting, the Tribunal can order recount only after recording the evidence and after recording statements of the concerned Presiding Officers so it can come to a conclusion as to whether there has been any mistake in the counting or not, the request of recount has to be reasonable and the Tribunal should be satisfied of the genuineness of allegations and recount cannot be ordered on vague allegations, not containing adequate statement of material facts and the reasonableness of such a demand of recounting of votes can be determined by the Tribunal only after it has recorded the evidence in this regard and sufficient material has been placed before it, recount cannot be ordered unless and until the election petitioner is able to prove the corrupt and illegal practices which have materially effected the election results, before the recount can be ordered, the Election Tribunal must satisfy itself that the election record has been properly maintained and has not been tampered with and the result of election is not to be interfered with, merely on the basis of bare allegations or assumptions and the charges of corrupt practices must be treated and considered on the principles applicable to trial of criminal charges and benefit of reasonable doubt must go to the returned candidate and in the absence of any evidence recorded by the Tribunal, the impugned order of recount of ballot papers is illegal. Learned counsel has also placed his reliance on the judgments mentioned hereinafter in support of his respective contentions:-- ' Mehboob Ali Sani v. Additional District Judge and others (1991 SCMR 1880); Mina Ejaz Shafi v. Syed Ashraf Shah, 1st Additional Sessions Judges Karachi and Returning Officer, Karachi West-1 and 12 others (1996 SCMR 605); Kanwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 SC 483) Julius Salik v.
Returning Officer and others (1991 MLD 589); Mian Ghos Muhammad v. Syed Murad Ali Shah and others (1987 CLC 861); Abdul Sami v. Abdul Ghaffar (PLD 1990 Lahore 378); Malik Muhammad Munawar Khan v. Election Tribunal District Judge, Lahore and 8 others (1991 CLC 180 (D.B.) and Muhammad Hafeez v. Muhammad Umar and 2 others (1982 CLC 1213).
5. In Mahboob Ali Sani v. Additional District Judge and others (supra), the Election Tribunal summoned the election record, recounted the votes and gave a finding of fact holding that certain ballot papers were tampered with. The decision of the Tribunal was upheld by the High Court and the petition against the order of High Court was dismissed by the Honourable Supreme Court holding that High Court could not reappraise the evidence recorded by the Election Tribunal. This judgment is of no avail to the cause of the petitioner because the order of re-count was not set aside. Similarly Mian Ejaz Shafi v. Syed Ashraf Shah etc. (supra) is not relevant because in the said case, the provisions of Representation of People Act, 1976 have been discussed by the Honourable Supreme Court and even otherwise it involves a different controversy altogether. In Kanawar Ijaz Ali v. Irshad Ali and others (supra), the Honourable Supreme Court while discussing section 39 of the Representation of People Act, 1976, held that recount cannot be granted as a matter of right but only if the request is reasonable to the satisfaction of the Returning Officer and on the basis of the evidence to the effect that there are good grounds for believing that there has been a mistake in the counting. Similarly, in Julius Salik v. Returning Officer and others (supra), various provisions of Representation of People Act, 1976 have been interpreted and has no relevance to the case in hand which involves the Local Bodies Elections. However, it was held by a learned Member of Election Tribunal, Punjab that recounting can be ordered by the Tribunal if the Tribunal, on the material placed before it, is satisfied that the demand of recounting of votes is reasonable. In Mian Ghose Muhammad v. Syed Murad All Shah and others (supra), the procedure laid down by the Election Commission for conducting the elections under the Representation of People Act has been discussed by a member of the Election Tribunal Sindh and has not bearing to the controversy in hand.
' Abdul Sami v. Abdul Ghaffar (supra), a judgment delivered by a Division Bench of this Court is not relevant for resolving the controversy in hand as in the said judgment, the honourable Judges have held that the charges of corrupt practice and illegal practice must be proved beyond a reasonable doubt and that the Election Tribunal is not competent to declare the election void without finding that the result of the election had been materially effected due to any corrupt or illegal practice.
Similarly, Malik Muhammad Munawar Khan v. Election Tribunal (supra) has no bearing to the facts of the present case because in the said case, a learned Division Bench of this Court ,has held that Election Tribunal committed grave illegality in accepting election petition merely on the basis of recounting of votes based on record which was not properly maintained whereas in the present case, recounting of votes is yet to be held and obviously at the time of recount, the Tribunal shall satisfy itself that the record produced before it for the purposes of recount has been properly maintained. Muhammad Hafeez v. Muhammad Umar and others, a judgment delivered by the learned Single Judge of Sindh High Court has also no relevancy at all because in the said case, it has been held that the result of election is not to be interfered with merely on the basis of mere allegation of interested witnesses and in fact the criteria for reading the evidence produced before a Tribunal has been laid down whereas the issue in hand is recount of votes cast.
6. On the other hand while vehemently opposing this petition, learned counsel appearing for respondent No,1 has submitted that the petitioner has won the election only by the margin of two votes and allegation has been levelled that valid votes cast in favour of respondent No,1 have been illegally declared as invalid by the Presiding Officer and the only way to determine as to the ballot- papers which were declared as invalid were valid or not is to recheck the ballot-papers themselves and for this purpose the Election Tribunal need not record any evidence and need not record the statements of the Presiding Officers. Learned counsel has further submitted that although a candidate cannot demand recount of ballot papers as a matter of right but the Election Tribunal need not record evidence in every care before ordering recount. He has further submitted that a candidate need not prove the charge of corrupt and illegal practice before obtaining the relief of recount of ballot-papers and the Election Tribunal is empowered to open packets containing counted ballot-papers with a view to reexamine/scrutinize and recount them, the order of recount- papers passed by the Election Tribunal not suffering from any illegality much less a jurisdictional defect does not justify any interference through judicial review of High Court and the Election Tribunal can after the recount declare any person who has secured more votes to be the returned candidate. Learned counsel in support of his contentions has placed his reliance on the judgments mentioned below:-- ' Abdul Majid v. Election Tribunal (1993 MLD 2523); Muhammad Zulqarnain v. Muhammad Anwar and others (1990 CLC 736), Muhammad Arif Chaudhry v. Election Tribunal, Okara and others (PLD 1989 Lahore 110) and Dr. Sheela B. Charles v. Qaiser Ifraheem Soraya and another (1996 SCMR 1455).
7. In Abdul Majid v. Election Tribunal (supra), a Division Bench of this Court held that where only dispute agitated before the Election Tribunal related to alleged illegal rejection/acceptance of votes by Presiding Officer, the Election Tribunal was fully competent to resolve such a dispute by recounting of votes, as such power is spelt out from the provisions of rule 44-A of Punjab Local Councils (Election) Rules, 1979, which empowers Election Tribunal to open packets containing counted ballot papers with a view to re-examine/scrutinize and re-count them. In this case, the Election Tribunal took the view that no evidence was required for recounting the votes, as such, he directed the Returning Officer to produce the election record on the next date. This order of the Election Tribunal was challenged through the Constitutional petition and this Court upheld the order of the Election Tribunal and further observed that if during the re-count, the Election Tribunal on scrutiny of the ballot papers, finds that the valid votes of the election petitioner exceeded those of the returned candidates, he shall grant the relief claimed by the election petitioner. In Muhammad Zulqarnain v. Muhammad Anwar and others (supra), a Division Bench of this Court held that where election was challenged by filing election petition on ground of alleged illegality committed in counting the votes, only requirement for giving direction for recounting, was the satisfaction of the Tribunal that request for recounting was reasonable and it was not necessary that the record before Tribunal should be repelled with overwhelming evidence to support such a request. Learned Division Bench also held that for disposing of request for recounting of votes, formulation of issues regarding number of votes received by each party and recording of evidence in that respect was not necessary and that the order passed by the Tribunal not suffering from any illegality much less a jurisdictional defect would not justify interference through judicial review of High Court. In Muhammad Arif Chaudhry v. Election Tribunal (supra), a Division Bench of this Court upheld the order of recounting passed by the Election Tribunal and in Dr. Sheela B. Charles v. Qaiser Ifraeem Soraya and others, the Honourable Supreme Court, though considering various provisions of the Representation of People Act, 1976 repelled the argument that to succeed in an election petition, election petitioner must prove corrupt or illegal practice and held that grant of relief to the petitioner in an election petition was not dependent on any proof of corrupt or illegal practice on the part of returned candidate during process of the election but on the strength of his own entitlement to get elected in place of the returned candidate and where only allegation was that the election petitioner had secured more votes than the returned candidate, omission on the part of Election Tribunal to frame specific issue on allegation would not cause any prejudice to the returned candidate and the Election Tribunal on proof of such allegation (securing of more votes than returned candidate) could declare any person who had got more votes, to be elected.
8. In Wilayat Khan v. Raham Dad and others (1985 SCMR 532), the election of the returned candidate was challenged through an election petition and before the Election Tribunal, the challenger made the statement withdrawing all objections, except the objection relating to counting. Consequently, the Election Tribunal recounted the votes and found that one of the votes cast in favour of the returned candidate was invalid and, therefore, the Election Tribunal declared the election petitioner as having been elected from the constituency in the Local Council Elections.
The returned candidate filed a writ petition before the High Court which was dismissed and the Supreme Court while dismissing the petition of the returned candidate and while upholding the decision of the High Court repelled the plea that procedure laid down by rule 8 of the Punjab Local Councils (Election Petition) Rules, 1979 was not strictly followed as the Election Tribunal had given the decision without framing the necessary issue in respect of question in dispute and it was held by the Honourable Supreme Court that in such matters strict compliance with the procedure prescribed by the C.P.C. Was not necessary and the Election Tribunal did what was essential to resolve the dispute relating to all mistakes in the counting of votes." In Mian Muhammad Farooq v.
Election Tribunal, Punjab and others (f988 MLD 2949 (D.B.) (Lahore), it has been held that notwithstanding failure of aggrieved candidate to raise an objection to the counting of votes, before the Presiding Officer, he would be well within his right to challenge the election of his adversely before the Election Tribunal on the ground that illegalities were committed in counting and dealing with invalid votes.
9. The abovementioned discussion shows that where an allegation has been levelled that valid votes cast in favour of the election petitioner, have been illegally declared as invalid by the Presiding Officer materially effecting the result of the election, than it is not necessary for the Election Tribunal to frame an issue on the controversy and record evidence of the parties and record statements of the Presiding Officers of the Polling Stations before ordering recount. No doubt the Election Tribunal cannot order recount in routine and a candidate cannot demand recount of ballot papers as a matter of right but the Election Tribunal can pass an order of recount, if on the strength of the material placed before it, it is of the opinion that the request for recount is reasonable and the 'controversy can be resolved through recounting and re-checking the ballot papers. In the instant case, the petitioner has won the election only by the margin of two votes and an allegation has been levelled that at Polling Booth No,33 (Female), 19 votes cast in favour of the election petitioner were not counted in his favour and were illegally canceled due to petitioner's collusion with the Presiding Officer, materially effecting the result of the election. The only way to determine as to whether the ballot papers which were declared as invalid were, in fact, invalid or not is to recount/re-check and secrutinize the ballot papers themselves and for this purpose, the Election Tribunal has correctly ordered the recount, as such a power is spelt out from rule 44 of the Punjab Local Councils (Elections) Rules, 1979 empowering it to open packets ( containing counted ballot papers to re-examine them and if the Election Tribunal on strength of ballot papers, finds that valid votes of the election petitioner exceed those of the returned candidate, he is empowered to grant relief claimed by the election petitioner. It goes without saying that the Election Tribunal at the time of conducting the recount, will record its finding as to whether the record of election produce before it was properly maintained or not.
' In view of the above mentioned, I see no merit in this petition which is accordingly dismissed.