' IRSHAD HASAN KHAN, J.---This judgment will dispose of Civil Petitions Nos.1246, 1247, 1248 of 1998 alongwith C.M.As Nos.944 to 946 of 1998, arising out of the judgment dated 29-9-1998, passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Writ Petitions Nos.2746, 2744 and 2745 of 1998/BWP.
2. Facts, briefly stated, are that Nawab Khan petitioner (in C.P.No,1246/1998) contested election for membership of Town Committee, Zahir Pir, Tehsil Khanpur, District Rahimyar Khan from Electoral Unit No,13 and was opposed by Qamar-ud-Din, respondent No,1 herein, who was declared successful as a result. Nisar Ahmad, petitioner (in C.P. No,1247/1998), participated in the above election from Electoral Unit No,2 and was opposed by Zulfiqar Ali, respondent No,1 in C.P. No,1247 of 1998 and some others, in which Zulfiqar Ali, respondent No,1, was declared successful. Muhammad Akmal Nadeem, petitioners (in C.P.No,1248/1998) participated in the same election from Electoral Unit No,11, was opposed by Ch. Munir Ahmad, respondent No,1 in C.P.No,1248 of 1998 and another wherein the latter was declared successful. Their success was duly notified by Deputy Commissioner in the official Gazette.
3. Feeling aggrieved, each of the petitioners herein filed separate election petitions against the returned candidates under section 24 of the Punjab Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance) before the Election Tribunal (hereinafter referred to as the Tribunal).
Alongwith the petitions, separate applications were moved by each of the petitioners herein for recounting of ballot papers. Notwithstanding resistance of the said applications by the private respondents herein, the learned Tribunal, allowing the same by order dated 16--6-1998, fixed the date for recounting of votes therein for 17-6-1998. At about 9-00 a.m., on the same date, the request made by the clerk of the learned counsel for the private respondents before the Tribunal for adjournment on the ground that they were appearing before the High Court, was turned down.
Eventually, the learned Tribunal, behind the back of the private respondents and through ex parte proceedings recounted the votes and allowed the election petitions filed by the petitioners herein holding that the votes A secured by them were more than the votes secured by the respondents. In consequence, the notification of the success of the petitioners herein was published in the official Gazette by the Election Authorities on 18-6-1998.
4. Being aggrieved, the private respondents herein moved separate Constitutional petitions before the Lahore High Court. The learned Division Bench of the High Court, relying on Kanawar Ijaz v.
Irshad Ali and 2 others (PLD 1986 SC 483), Muhammad Zulqarnain v. Muhammad Anwar and others (1990 CLC 736), Julius Salik v. Returning Officer and others (1991 MLD 589), Nasir Mahmood Mughal v. Muhammad Azam and others (1987 MLD 2526), Muhammad Shafi v. Muhammad Azam (1982 CLC 2111), Haji Atta Muhammad v. Malik Shabbir Ahmad Khan and another (1985 SCMR 960), Muhammad Asghar v. Shah Muhammad Awan (PLD 1986 SC 542), Muhammad Din v. Abdul Qayyum (1987 SCMR 324), Hakim Ali Bhatti v. Qazi Abdul Hakim' (1986 CLC 1786), Sardar Gul Khitab v. Javed Iqbal Abbasi (1988 CLC 945) and Abdul Hamid v. Maram Dad (PLD 1966 (W.P.) Lahore 16), took the view that sufficient material was not available in law to warrant that recounting was necessary. It was observed that the proceedings conducted on 17-6-1998 were unusually hasty and simply perverse in nature. The learned High Court took the view that the learned Tribunal ought to have waited for some time to save the parties from the agony of multiple litigation, instead of counting the votes ex parte in the absence of the returned candidates. It was observed that law favours adjudication on merits and abhors ex parte decision. In this background, the orders of the learned Tribunal dated 16-6-1998 and 17-6-1998 were declared as without lawful authority and of no legal effect. The cases were remanded to the Election Tribunal with the direction:-- "To decide the election petitions filed by Nisar Ahmad, Muhammad, Akmal Nadeem and Nawab Khan. Election petitions filed by them shall be deemed to be pending. The learned Election Tribunal hereinafter shall proceed from the point where he had decided the applications for recounting . "
4. Raja Muhammad Ibrahim Satti, learned counsel for the petitioners placed reliance on Muhammad Shafi v. Muhammad Azam (i9h2 CLC 2111), Haji Atta Muhammad v. Malik Shabbir Ahmad Khan (1985 SCMR 960), Muhammad Asim Kurd alias Gailoo v. Nawabzada Mir Lashkari Khan Raisani (1998 SCMR 1597), Muhammad Arif Chaudhry v. Election Tribunal, Okara (PLD 1989 Lahore 110), Muhammad Zulqarnain v. Muhammad Anwar (1990 CLC 736), Kanwar Ijaz Ali v. Irshad Ali (PLD 1986 SC 483) and Haji Muhammad Asghar v. Malik Shah Muhammad Awan (PLD 1986 SC 542), to contend that the recounting of ballot papers could be ordered in appropriate cases and on satisfaction of requisite conditions and in conformity with the rules laid down by the superior Courts in the above decision. He further submitted that the order of recounting of votes dated 16- 6-1998 was neither illegal nor the order of recounting ex parts against the respondents herein vide order dated 17-6-1998 passed by the learned Tribunal, suffered from any legal infirmity.
5. Mr Abdul Shakoor Peracha, learned counsel for the contesting respondents resisted the petitions for leave to appeal and respectfully reiterated the reasons advanced by the learned Division Bench of the High Court in support of the impugned order.
6. After hearing the learned counsel for the parties and perusing the record, we are inclined to hold that the learned Tribunal should not have proceeded ex parte against the private respondents in the facts and circumstances of the case. There is, however, no cavil with the legal proposition enunciated in the case-law cited at the bar that in appropriate cases recounting of ballot papers can be ordered by the Tribunal. However, the discretion vested in the Tribunal for ordering recounting is subject to such conditions as it may consider expedient depending on the facts of each case. The discretion in such cases must not be exercised arbitrarily but justly, fairly and in conformity with the well-established rules laid down by the superior Courts. Although there is no specific provision either in the Ordinance or in the Punjab Local Councils (Election Petitions) Rules, 1979, for recounting of votes by the Tribunal, nevertheless, the Tribunal is not debarred from recounting of votes in appropriate cases under the scheme envisaged by the Punjab Local Councils (Election Petitions) Rules, 1979 and the powers vested in the Tribunal to decide the appeal under section 24 of the Ordinance read with the Rules made therein. Guidance may be sought from the case of Sardar Abdul Hafeez Khan v. Sardar Muammad Tahir Khan Loni and 13 others (Civil Appeal No,1538 of the 1997), decided on 23rd October, 1998, by this Bench, wherein one of us Wajihuddin Ahmed, J., while determining the scope of section 46 of the Representation of the People Act, 1976, observed:-- " ....What, therefore, has to be ensured, once powers under section 46(1) and (2) of the Act come to be exercised, is that the jurisdiction is not over-stretched, that there is a prima facie case for a recount, that recount, if allowed, takes place scrupulously, without detracting from secrecy of the ballot and, finally that it can never be ignored that during the passage of time following upon the election and the recount a number of things may happen, having potential to throw up a picture that does not in fact, correspond with the electoral process but depicts something of a later origin.
To put it differently, the power though broad and extensive, is to be used sparingly and with circumspection, the only object being to ensure a fair and lawful result of the electoral exercise.
Nothing short of that would serve the object of the legislation." (We reiterate the above rule).
6. After giving our careful consideration to the submissions made by the learned counsel for the parties, we are satisfied that the impugned order of the High Court does not suffer from any invalidity.
7. Pursuant to the impugned order passed by the High Court, the Election Petitions are still pending before the Tribunal. We would, therefore, not like to make any comment on the merits of the case, which could be raised by the parties before the Tribunal at the stage of the arguments. Presently, suffice it to say that the learned counsel for the parties have agreed for recounting of votes by the Tribunal in the presence of all the candidates subject to cross-examination of the petitioners herein/election petitioners and decision made thereon by the Tribunal. We also .
8. Resultantly, we convert these petitions into appeals and modifying the same direct the Tribunal to permit the private respondents to cross-examine the appellants herein/election petitioners on the applications moved by the latter for recounting of votes. The recounting of votes shall be subject to decision of the Tribunal in the light of the cross-examination of the appellant. The above exercise shall be completed by the Tribunal within 15 days from the receipt of this order. There shall be no order as to costs.