' The relevant facts for the decision of this Constitutional petition, briefly put, are that Sardar Rehmatullah Dogar petitioner, Sadiq Ali respondent No,2 and Sardar Muhammad Tayyab Shaheen respondent No,11 contested the elections for membership of Zila Council, Kasur held on 20-5-1998 from Electoral Unit No,63. The petitioner was allegedly notified as returned candidate on 23-5-1998.
Respondent No,2 proceeded to challenge this election through Election Petition (copy Annexure 'A') before the Election Tribunal Zila Council Kasur, respondent No,1 on 13-6-1998 praying for the cancellation of this notification. The petitioner resisted this petition and submitted a reply (copy Annexure 'B'). Respondent No,2 had also submitted an application alongwith the election petition for recount of the cast votes. It is claimed in this writ petition that the case was adjourned for reply on behalf of respondent No,11 to 8-10-1998 but on that date the Election Tribunal passed an order for summoning the election record for the purpose of recount of the cast votes. This order, dated 8- 10-1998 has been impugned on the grounds inter alia (i) that respondent No,1 did not frame any issue on the divergent pleadings of the parties and also did not record any evidence before passing the said order and, thus, violated the decisions of the Superior Courts which enjoin that the basis for the recount must be laid by the defeated candidate before the recount could be ordered;
(ii) that the petitioner has apprehensions that respondent No,2 has managed to tamper with the election record, especially the votes cast in the election because he happens to be a political worker of the ruling party while the petitioner is in opposition; and (iii) if the order for recount is mechanically complied with without ascertaining the reasonableness with the help of evidence, it would encourage the defeated candidates to change the record of elections in connivance with the election staff, after the results had been announced and that for all these reasons this order, dated 8-10-1998 is liable to be declared to have been passed without lawful authority and being of no legal effect.
2. The operation of the impugned order was suspended on 21-10-1998 subject to notice for 24-11- 1998. On 25-11-1998 respondent No,2 Sadiq Ali moved an application (C.M.No,2 of 1998) for vacation of the stay/suspension order alleging inter alia that the order, dated 21-10-1998 is liable to be recalled because (i) recounting of votes is a legal process and one which claims equity must do equity and the petitioner who had come for equitable relief in the exercise of extraordinary writ jurisdiction must not resist the judicial process for arriving at a just conclusion; (ii) according to the result of electoral unit No,63 although Sardar Rehmatullah Dogar petitioner had allegedly obtained 1816 votes while Muhammad Sadiq applicant had obtained 1761 votes yet the perusal of Annexures 'F' and 'J' would reveal that figures of Form XIII had been tampered with and the digits 339 had been made to look like 399 which showed that the writ petitioner had obtained fake results through fraud, misrepresentation and tampering with the record and had he not done so he would have lost the election and in the circumstances the writ petitioner has no prima facie case in his favour;
(iii) the clippings of daily 'Nawa-e-Waqt' and daily 'Pakistan' (copies Annexures R/1 and R/2) would show that the applicant had been elected in the first instance; (iv) there are instructions from the Election Authority, dated 20-1-1992 to the effect that Election Tribunals should decide the question of recounting as a preliminary issue and it was on the basis of this very instruction that an earlier Writ Petition No,5661 of 1998 was dismissed by a Division Bench of this Court on 21-7-1998.
3. I have heard the learned counsel for the parties not only on C.M. 1 and 2 of 1998 but also on the main writ petition. The learned counsel for the petitioner has first of all contended that it was imperative for the Election Tribunal to ask the petitioner to submit a written reply of the application with regard to the summoning of the election bag for the purpose of recounting appended by Sadiq Ali with his election petition and then to frame issues arising out of the pleadings and if a base for recounting had been made, frame a preliminary issue with regard thereto as per the instructions contained in Letter No,EAP-LO(19)/98, dated the 15th June, 1998 from Punjab Local Councils Election Authority to all the Election Tribunals. He has further contended that the writ petitioner has in fact been condemned unheard in violation to the maxim audi alteram partem which applies to judicial as well as administrative bodies as laid down in Chief Commissioner Karachi and another v. Mrs. Dina Sohrab Katrak (PLD 1959 Supreme Court (Pak.) 45) and also that the impugned order is totally non-speaking and being devoid of any reasons it is liable to be set aside. He has added that under the relevant law prior notice should have been served on the writ petitioner and he should have been given an opportunity to submit a written reply of the application. In order to meet the contention raised in C.M.No, 2 of 1998 that the writ petition is not competent against an interim order he has placed reliance on Lt. Col. Mohsin Shah v. Mst.
Qaseema Wahid and 4 others (PLD 1995 Lah. 385) for asserting that the interim order being illegal the High Court can interfere under its Constitutional jurisdiction. He has further contended that the allegations of illegal and corrupt practices were to be proved by affirmative evidence on the analogy of criminal trial to the exclusion of all reasonable hypotheses consistent with non- commission of a corrupt practice,. Benefit of doubt whereof, was to go to the person against whom such allegations had been made. For this he has placed reliance on Sardar Gul Khitab v. Javaid Iqbal Abbasi and 4 others (1998 CLC 945).
4. The learned counsel for the respondent Sadiq Ali (applicant in C.M. No,2 of 1998) has, on the other hand, urged that it is crystal clear from a reference to paragraph 5 of the Election Petition (copy of which is available at pages 8 to 10 as Annexure 'A') that copies of the election petition has been sent to the respondents including the present writ petitioner as per registered post and it, therefore, does not lie in the mouth of the petitioner to contend that the relevant provisions of law had not been complied with. He has then referred to the contents of the writ petition for asserting that no such plea has been raised by the petitioner therein. According to him the very fact that the order passed by the learned Election Tribunal on 15-6-1998 (photo copy of which has been placed by him on record) has not been challenged by the writ petitioner gives raise to an inference that the writ petitioner had nothing to say against the summoning of the original record alongwith the sealed bag containing all votes cast in the said election and that the order regarding recount of the votes was a corollary of the first order, dated 15-6-1998 which could not have been challenged either by the writ petitioner. It has been stressed by him with vehemence that the distinction between a Court and a Tribunal has to be kept in mind while dealing with such matters and the Tribunal is not as much bound by the Rules of procedure and the evidence, as Courts of law are and as held in Iftikhar Ahmad v. The Muslim Commercial Bank Limited and another (1983 KLR Civil Cases 297) an Administrative Tribunal may act judicially but still remains an administrative tribunal distinguished from a Court. He is of the view that although it is true that judgments are expected to be written by all judicial and quasi judicial officers in such a manner as to disclose the working of the mind of the writer, yet this does not mean that a defect in this respect makes the order either a nullity or capable of being ignored as eminently observed in Syed Alam Hussain and others v.
Government of Pakistan and others (PLD 1969 Karachi 60). For contending that election tribunal may decide a matter without framing an issue in respect of a question in dispute and the strict compliance with procedure prescribed by the C.P.C. Was not essential as he has sought assistance from Wilayat Khan v. Rehman Dad and others (1985 SCMR 532) According to him, the Election Tribunal had done what was essential to resolve the dispute after recording the statement of the election petitioner on 8-10-1998 in respect of the decision of the election petition on the basis of the recount of votes and, as such, there was nothing wrong with the summoning of the record of votes because the satisfaction of the tribunal is the rationale for deciding such matters. Reliance in this behalf has been placed on Abdul Majid v. Election Tribunal (1993 MLD 2523 Lah.).
5. I have given my anxious consideration to all what has been argued before me and have also gone through the documents available on record including the copies of the order-sheets and the letter, dated 15-6-1998 from the Election Authority to all t'he Election Tribunals in the Punjab and I am of the convinced view that the condition precedent for ordering recount is the satisfaction of the tribunal that the request for recounting was reasonable, which is made under sub-rule (4-A) of Rule 33 of the Punjab Local Councils (Election) A Rules, 1979. The satisfaction should only be that the request is not without substance. The whole scheme of the Election Laws is expeditious disposal of the election disputes and in the instant case it appears that the grievance of the election petitioner is that the votes were not legally and properly counted and that is exactly the request of the respondent Sadiq Ali which was taken down in black and white on 8-10-1998. I feel inclined to agree with my learned brother Ihsan-ul-Haq Chaudhry, J., who observed in the judgment in Writ Petition No,19406 of 1998, decided on 9-10-1998 that it is a matter of common knowledge that anxiety of the elected candidate is to prolong the proceedings in the election petition and this has to be discouraged. It was probably keeping this tendency in view that the Election Authority issued the notification/letter that in the case of dispute is to the recounting, the same should be resolved as preliminary issue. The procedure prescribed by the C.P.C. Is not necessary as held in Wilayat Khan v. Rehman Dad and others, referred to above. The apprehension of the writ petitioner that respondent No,2 has managed to tamper with the election record appears to be ill founded.##TE#
6. I also find myself in agreement with the learned counsel for the respondent that this writ petition is not competent against an interim order. That is why the legislature did not provide for an appeal against the interim orders passed by the Election Tribunal. The authority cited at the Bar by the learned counsel for the writ petitioner in this behalf (Lt. Col. Mohsin Shah v. Mst. Qaseema Wahid and 4 others) has no bearing on the facts of the present case. In the reported case the interim order was illegal in its inception and it was keeping in view the facts and circumstances of the said case that it was held that Constitutional petition was comp. Tent and the High Court called interfere under its Constitutional jurisdiction even in connection with an interim order and involving the parties in superficial technicalities rather than affording justice was deprecated. In Sheila B.
Charles v. Election Tribunal and another (1997 SCMR 941) the High Court declined Constitutional petition against order of recount of ballots on the ground that order in question was interlocutory one and with jurisdiction and that Election Tribunal had yet to pass final orders. It was also held therein that proceedings of election petition could not be stayed during its pendency and in the circumstances Supreme Court declined to grant any interlocutory stay order. Similarly in Mian Ejaz Shafi v. Syed Ali Ashraf Shah and 12 others (PLD 1994 Supreme Court 867) where the election petition was still pending before the Election Tribunal, appeal to Supreme Court against interlocutory order was said to be not maintainable and, inter alia, it was observed that the Election Tribunal could order recount of votes in appropriate cases.
7. For all these reasons, I have come to the conclusion that this writ petition is misconceived and is totally without force. It is, therefore, dismissed in limine.
8. C.M. No,1 of 1998 and C.M.2 of 1998 also stand disposed of accordingly and the suspension order, dated 21-10-1998 stands vacated.