' MIAN ALLAH NAWAZ, J.---This judgment will govern three Constitutional Applications Nos.2744, 2745 and 2746/all of 1998. The first is by Zulfiqar Ali, second is by Ch. Munir -Ahmed and last is by one Qamar-ud-Din. All of these applications nave arisen out of electoi al disputes and embody Similar facts and impugned [tic wholly similar. Orders. Zuifiqar Ali, Ch. Munir Ahmed and Qamar- ud-Din were successful in election while Nisar Ahmad, Muhammad Akmal Nadeem and Nawab Khan were the losers. Dis-satisfied with electoral victory of applicants Nisar Ahmed, Muhammad Akmal Nadeem and Nawab Khan filed the election.. Petitions which were allowed. Zulfiqar Ali, Ch Munir Ahmad and Qamar-ud-Din, herein will be described as applicants while Nisar Ahmad, Muhammad Akmal Nadeem and Nawab Khan, herein respondent No,2, in each petition will be described as losers.
2. The facts, briefly stated, giving rise to these applications are not much in dispute. These are; that Zulfiqar Ali/applicant in Constitutional Application No,2744 of 1998/contested the election for membership of Town Committee Zahir Pir, Tehsil Khanpur, District Rahimyarkhan from electoral unit No,2. Nisar Ahmad, respondent No,2, Iftikhar Ahmad, respondent No,3, Shakeel Anwar, respondent No,4 also participated in that election from the same electoral unit. This election was held on 20-5- 1998. After the close of poll, counting was done and applicant was declared successful by securing 198 votes while Nisar Ahmad/respondent No,2 obtained 151 votes. Notification of his success was published by the Deputy Commissioner in the official gazette. Ch. Munir Ahmad/applicant in Application No,2745/participated in election of membership of the same Town Committee from electoral unit No,11. He was opposed by Muhammad Akmal Nadeem/loser and Abdul Qadeer/respondent No,3. In counting, he, secured 136 votes against 120 votes secured by Muhammad Akmal Nadeem. Consequently, his success was notified by Deputy Commissioner in official gazette. Qamar-ud-Din/applicant in Application No,2746 was opposed in election from electoral unit No,13 of the same Committee by Nawab Khan, respondent No,2 and was declared successful.
3. Feeling aggrieved Nisar Ahmad, Muhammad Akmal Nadeem and Nawab Khan/losers filed three separate election petitions under section 24 of the Punjab Local. Government Ordinance, 1979 (hereinafter described as Ordinance). This happened on 25-5-1998. Amazingly enough, it was alleged in all these petitions that respondents/losers were actually declared elected; that the result cards were given to them; that later on, the Presiding Officer recounted the votes and changed results wherein applicants were declared elected; that subsequent voting was fake in nature. It was prayed by all the said respondents that they be declared deserted. These election petitions were contested on the premises losers were being backed by Abdul Sattar M.P.A.; that the applicants had been duly notified as successful candidates. Meanwhile, the aforesaid respondents moved three separate applications in their respective election petitions for recounting of ballot papers.
These applications, filed on 28-5-1998 were resisted. On 16-6-1998 the learned Election Tribunal allowed the said applications and set down on 17-6-1998 for recounting.
4. Confronted with these circumstances, Zulfiqar Ali, Ch. Munir Ahmad and Qamar-ud- Din/applicants filed three Constitutional Petitions Nos.2717 of 1998, 2718 of 1998 and 2719 of 1998 with application for issuing injunctive orders. These were fixed for preliminary hearing on 17-6-1998.
However, these could not be heard due to lack of time. Notwithstanding filing of the petitions, the learned Election Tribunal called the petitioners on 17-6-1998 at about 9 a.m. And opened election bags produced before him. At this stage, the clerk of the counsel of the applicants entered appearance and stated that the applicants were before this August Court; that hearing of the election petitions be accordingly postponed.
' His oral request was turned down with direction to produce the applicants at 9-25 a.m. The said election petitions were again called at 9-30 a.m. The learned Election Tribunal declined to postpone the hearing of the election petitions and proceeded ex parte against the applicants. It will be highly useful to reproduce the order of Election Tribunal, dated 17-6-1998 passed at about 9- 30 a.m.:--- "Attendance as before but no one is present on behalf of the respondent No,1 although time was fixed while granting application for re-counting but nemo present on behalf of the respondent No,1 so he is proceeded against ex parte. Ex parte proceedings are initiated. Muhammad Abid Bashir, representative of Returning Officer (respondent No,4) has produced the election bag. Seal over the election bag of Ward Nos.2 and 3 is intact. Election bag of Nisar Ahmad is opened by the order of Tribunal in the open Court."
' At this time, written application was moved for adjournment of the hearing of the aforesaid election petitions but in vain. The learned Tribunal recounted the votes and allowed election petitions filed by losers/defeated Nisar Ahmad, Muhammad Akmal Nadeem and Nawab Khan holding that votes secured by the aforesaid respondents were more than the votes secured by the applicants. The Notification of their success was published in the official gazette by the election authority on 18-6-1998. This is how these Constitutional applications have come to this Court.
5. Sardar Muhammad Hussain Khan, Advocate, assisted by Mr. Masood Alum Khan, Advocate, assailed the impugned orders passed by the Election Tribunal, dated 16-6-1998 and 17-6-1998 on the following grounds : --- ' Firstly , that there was no material whatsoever before the Election Tribunal justifying the order for recounting of ballots. It was convassed that before ordering the recounting, it was imperative for the respondents to lead evidence or any cogent material showing the necessity for recounting.
Reliance was placed on Kanwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 Supreme Court 483), Muhammad Zulqarnain v. Muhammad Anwar and others (1990 CLC 736), Julius Salik v. Returning Officer and others (1991 M LD 589) and Nasir Mahmood Mughal v. Muhammad Azam and others (1987 M LD 2526).
' Secondly, that the learned Election Tribunal proceeded with extraordinary haste in allowing applications for recounting and accepting election petitions. It was brought to his notice that order, dated 16-6-1996 had been assailed before this Court; that the appellants as well as his counsel were present in this Court and so it was not possible for them to appear before it. Nevertheless, according to the learned counsel, learned Election Tribunal went to accept election petitions. On the strength of the above circumstances, it was suggested that the impugned orders passed by the Election Tribunal were merely abuse of the power and were perverse in nature.
' Thirdly, that Election Authority had no power to publish the success of aforesaid respondents in official gazette. This function was within the ambit of Deputy Commissioner, Rahimyar Khan.
6. Mr. Jaffar Hashmi, learned counsel for the said respondents vigorously supported the impugned orders. According to him, under section 24 of the Ordinance, 1979, it was within the jurisdiction of the Election Tribunal to order recounting and so the impugned orders were with jurisdiction and suffered from neither any excess of jurisdiction nor any abuse of authority. He relied upon Muhammad Shafi v. Muhammad Azam (1982 CLC 2111) and Haji Atta Muhammad v. Malik Shabbir Ahmad Khan and another (1985 SCM R 873). He further submitted that the applications for recounting were backed by the affidavits and so there were cogent material before the learned Election Tribunal to pass the impugned orders.
7. From the foregoing factual background of these constitutional applications, the arguments advanced by learned counsel for parties, following questions emerge for consideration.
(i) Whether Returning Officer had a power to allow applications for recounting of votes polled at electoral units Nos .2, 11 and 13 without any sufficient material.
(ii) Whether order passed by Election tribunal, dated 16-6-1998 and 17-6-1998 .Were hasty in nature and so were passed without due regard to provisions of law and procedure.
(iii) Whether Election Authority had a power to publish the result of success of the respondents/losers in election.
8. Before we proceed to deal with questions/points Nos.1 and 2, we find it expedient to reiterate a well-settled principle/having bearing upon resolution of points Nos.1 and 2. It is settled that Election Tribunal cannot order recounting of votes until and unless some evidence is adduced by the applicant claiming such recounting or there is some cogent material before the Tribunal.
Reference be made to Ch. Muhammad Abdullah v. Ch. Abdul Waked (PLD 1986 SC 483). Speaking for the Bench his lordship Naseem Hasan Shah, J., has observed as under:- "The recounting of ballot-papers can be ordered only under the provisions of section 39 of the Representation of People Act, 1976. The provisions of subsection (3) and subsection (6) of the said section are relevant to this connection:--- "(3) Before consolidating the result of the count, the Returning Officer shall examine the ballot- papers excluded from the count by the Presiding Officer and, if he finds that any such ballot-paper should not have been so excluded, count it as a ballot-paper cast in favour of the contesting candidate for whom the vote has been cast thereby."
"(6) The Returning Officer may recount the ballot-papers-
(a) upon the request of, or challenge in writing made by, a contesting candidate or his election agent, if the Returning Officer is satisfied that the request or the challenge is reasonable; or
(b) if so directed by the Commission, in which case the recount shall be held in such manner and at such place as may be directed by the commission. Recounting the ballot-papers can only be ordered if the conditions laid down in this behalf are fulfilled and the Returning Officer is "satisfied that the request is reasonable." The request of the appellant in this case, as has been explained by the learned Tribunal, with whom we entirely agree, was not reasonable and was rightly rejected by the Returning Officer and reason to differ with this eminently proper decision of the Returning Officer and upheld by the Election Tribunal."
' This rule was reiterated by the apex Court in Muhammad Asghar v. Shah Muhammad Awan (PLD 1986 SC 542), Muhammad Din v. Abdul Qayyum (1967 SCMR 324). This rule was followed by this Court in Muhammad Zulqarnain v. Muhammad Anwar (1990 CLC 736), Julius Salik v. Returning Officer (1991 M LD 589), Hakim Ali Bhatti, v. Qazi Abdul Hakim (1986 CLC 1786) and Sardar Gui Khitab v. Javed lqbal Abbasi (1988 CLC 945). Applying this rule to uncontroverted facts of the case in hand, it is quite clear that loosers/petitioners had not produced any iota of evidence before Election Tribunal while claiming recounting of ballots; that the aforesaid respondents simply banked upon a wague, uncertain affidavit which had been controverted. The the order, dated 16-6- 1998 clearly that there were, no material whatsoever except that affidavit. The question whether the affidavits of respondent., named above was sufficient material in law to warrant conclusion that recounting was necessary, we are afraid that this affidavit did not possess any such attribute. It is true that the Court/Tribunal has power to determine the controversies on the basis of affidavits by reference to affidavits but such document must satisfy the requirement contained in Order XIX, Rules 1 and 2 of C.P.C. This point came up for examination before Division Bench of Erstwhile West Pakistan High Court in Abdul Hamid v. Maram Dad (PLD 1966 (W.P.) Lahore 16. In this case petitioner, respondents Nos.2 and 3 contested election from electoral unit No,914 Mohallah Rajgarh Tehsil Gujjar Khan District Rawalpindi. Abdul Hamid/petitioner was declared elected. Respondents Nos.2 filed an election petition which was allowed on 16-3-1965 and order for fresh election was made.
Feeling aggrieved, petitioner filed constitutional petition which was allowed by Division Bench. In that case the value of the affidavit was examined by this Court. Speaking for the Bench his lordship Justice Muhammad Akram (as he then was) said:-- "From a careful study of the three last mentioned cases it follows that where the opposite party files a counter-affidavit or asks for the cross-examination of the deponent, it becomes obligatory for the party relying on the affidavit to produce the deponent in the witness-box for his cross- examination and in case he fails to do so the affidavit ceases to have any evidentiary value and cannot be acted upon. Under the Civil Procedure Code, the Court may order any fact to be proved by affidavit in the manner provided in Order XIX and there are provisions in the Civil and Criminal Procedure Codes (Order XI, Rule 8, Order XX, Rules 5, 18 and 19 Order XXXII, Rule 3, Order XXXVIII, Rules 1 and 5 and Order XXXIX, Rule 1, C.P.C., and sections 526 and 539(A) Criminal Procedure Code) which require certain allegations of fact to be supported by affidavit. Section 51, Divorce Act, 1889, also permits a party to verify his case by affidavit, but the opposite-party has a right to cross- examine him. These affidavits are generally used in support of applications to Court on interlocatory motions which are necessary to be disposed of at a short notice without finally deciding the rights of the parties. In England the rules for the admission of affidavits as proof of facts applies to interlocutory applications only. In this country the application of this rule is not necessarily confined to interlocutory matters only. The safeguard for truth in affidavits are the provisions for the production of the deponent for his cross-examination and the provisions of the Penal Law relating to giving of false evidence. Section 1 of the Evidence Act lays down that Act does not apply to affidavits is not the same as to say that the affidavits are not evidence. To sum up the position in law is that affidavits can be relied upon by the Courts in proof of particular facts under certain circumstances only. In proceedings which are not interlocutary nature, their admission in proof of facts is subject to the proviso (which is an important safeguard for the truth) that in case the opposite-party controverts the allegations by filing a counter-affidavit or demands the attendance of the deponent for his cross-examination, the party relying on the affidavit must produce him in the witness-box and if deponent fails to submit to the cross-examination, the affidavit shall loose all its force as a probative piece of evidence in the case and cannot be acted upon. This view is quite compatible with the principles of natural justice and fair play which confer a very ' valuable right on one party to cross-examine his adversely and his witnesses. It is also to be seen that under Order XIX Rule 1, Civil Procedure Code, evidence on affidavit in proof of particular facts is to be admitted in exceptional circumstances for sufficient reasons which should be recorded by the Court; but if either party bona fide desires the production of a witness for cross- examination and such witness can be produced and order. Shall not be made authorizing the evidence of such witness to be given by affidavit. We might add that normally a counter-affidavit by a party controverting the allegations the affidavit produced by his adversary is a sufficient indication of his intention that he is not prepared to admit the facts set out in the affidavit and would require the deponent to appear in the witness-box for his cross-examination.
From the above it clearly follows that a controverted/disputed affidavit is neither evidence nor a material within the terms of section 1 of Qanun-e-Shahadat Order of 1979.
9. Seen from the above perspective, we have no difficulty in reaching the conclusion that learned Election Tribunal had allowed the applications for recounting without any material/evidence whatsoever. The order passed by Tribunal, dated 16-6-1998 was wholly without jurisdiction and, therefore of no lawful consequences. The said order passed in each election petition is, therefore, declared as such. Resultantly, the-proceedings of recounting conducting by Election Tribunal on following day/17-6-1998 were totally coram non judice without any lawful support and are declared as such. This, however, will not prevent us from feelings of disapproved with regard to feelings of Tribunal, dated 17-6-1998. The learned Election Tribunal was informed that applicants had filed constitutional petitions against his order, dated 16-6-1998 and that the applicants were before this Court and request was made for postponement of hearing of the case. We are not able to understand as to why he did not postpone the hearing of election petitions. He was required to wait for some time as to save the parties from the agony of multiple litigation. Instead of it, he proceeded against ex parte counted the votes in absence of the applicants and declared them successful. It is also established proposition that law favours adjudication at merits and ex parte decision. This principle was thrown to wind by the learned Election Tribunal. We are, on this analysis, persuaded to agree with the learned counsel for the applicants that the proceedings conducted on 17-6-1998 were unusual, hasty and simply perverse in nature. Even guided by the rule of judicial constraint, we were compelled to observe that these were blemish on the part of administration of justice. The slip shot proceedings are, therefore, declared to be perverse in nature from beginning to finish. Having answered points Nos.1 and 2 we are not inclined to answer point No,3.
10. As a result of the foregoing discussion, these Constitutional applications are allowed with the requested reliefs. The orders passed by learned Election Tribunal, dated 16-6-1998 and 17-6-1998 are hereby set aside as being without lawful authority and of no lawful consequences. Resultantly, these cases are remanded to Election Tribunal with a 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 application for recounting. The said respondents shall bear the costs of proceedings throughout. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.