' To challenge the election of the petitioners to the seats of Nazim and NaibNazim in U.C.
158/3(Urban) Kamoke, Gujaranwala, respondents Nos.1 and 2 filed an election petition which is presently pending with Election Tribunal for the said constitutency. The petition was filed on several grounds enumerated in election petition (Annex.D). The learned Election Tribunal issued notices to the respondents named in the election petition. In response the petitioners put in appearance on 24-5-2001. The case was adjourned to 8-6-2001 with direction to the petitioners to file written statement, which was filed on the said date, when the respondents Nos.1 and 2 made statement that they gave up all other grounds slated in their petition and that the matter be decided on recount. The petitioners resisted the said prayer. Learned Election Tribunal vide order, dated 8-6- 2001, proceeded to adjourn the matter to 2-7-2001, for recounting.
2. Learned counsel for the petitioners contends that neither any ground stood made out for re- count nor was there any allegation and of course evidence, even prima facie on the file to enable the learned Tribunal to pass the impugned order for recounting. He relies on case of Zulifqar Ali v.
Election Tribunal Khanpur and 5 others (2000 M LD 746). Rana Muhammad Arif, Advocate, for the respondents Nos.2 and 3 on the other hand argues that the learned Tribunal had the jurisdiction to pass the impugned order. He relies on the cases of Abdul Majid v. Election Tribunal (1993 M LD 2523), Muhammad Dilshad Khan v. Ch. Arshad Ali, Civil Judge/Election Tribunal and 3 others (1999 M LD 2874) and Bashir Ahmad v. District Judge, Malakand and others 1985 SCM R 533). Records have been summoned and I have gone through the same. Before I proceed to examine the election petition I may state that the accumulative effect of the judgments relied upon by both the parties is that the Election Tribunal has the jurisdiction to order recount. However, the recount is to be ordered only upon the recording of satisfaction of the learned Election Tribunal that the grounds within the meaning of law exists for resorting to the recount. I may here refer to the case of Kanwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 SC 483). The Bench comprising of 5 Hon'ble Judges expressed complete agreement with the following observations of the learned Tribunal they reproduced at page 485 of the report:---- "the petitioner has not adduced any evidence in this regard. No definite particulars have been given in the application for recount as to the illegalities alleged to have been committed in the counting of the ballot-papers. I am of the humble opinion that a recount will not be granted as a matter of right but only on the basis of evidence (to the effect) that there are good grounds for believing that there has been a mistake in the counting."
' As against the findings the learned Tribunal has proceeded to deal with the matter as follows:-- "Since the petitioners have sought decision of the election petition on the basis of recounting only and by this Act, the respondents Nos.1 and 2 would not be caused any grievance, therefore, the contention of petitioners is accepted and the case is fixed for recounting."
' It will thus, be seen that on the face of it the order has been passed by the learned Tribunal in oblivion of the said law laid down by the Supreme Court of Pakistan and followed by the Division Bench of this Court in the said case of Zulfiqar Ali (2000 M LD 746). He has obviously not taken into consideration any material available on record and particularly the very contents of the election petition itself.
3. I may now refer to the cases relied upon by the learned counsel for contesting respondents in the case of Muhammad Dilshad (1999 M LD 2874), I do not find any reference to the exact allegations that were made in the election petition necessitating the recounting. However, I find that matter was referred back to the learned Tribunal to decide the application for recount a fresh. In the said case 'Abdul Majeed (1993 M LD 2523) the precise allegation was made that 11 votes were illegally rejected by the Presiding Officer while 50 invalid votes were treated as valid illegally. It was to determine this precise allegation that recount was ordered.
4. Now I come to the election petition in hand (Annex.D). I have carefully perused the said petition. I do find some serious allegations have been made against the. Election Staff. It have also been alleged that a brother of petitioner No,2 was D.E.O. Gujaranwal, who appointed his subordinates at the various polling stations. Then it has been alleged that polling agents of respondents Nos.1 and 2 were not allowed to sit and join counting. Thereafter, it has been alleged in paras.10, 11, 12 and 13 that there are some discrepancies in the results of some of the polling stations. In para.15 it has been repeated that the polling agents were not allowed to join counting procedure. Now in the entire election petition there is no allegation that some votes which ought to have been counted in favour of respondents Nos.1 and 2 or that some votes which ought not to have been counted in favour of the petitioners had been so counted or not counted. There is no allegation that unexplained discrepancies regarding some votes at various polling stations pertain to votes which ought to have been counted in favour of respondents Nos.1 and 2. Material is also available on record that recount in fact was held by the learned R.O. On the application of respondents Nos.1 and 2 (Annex.B) regarding Polling Station No,24 and count was found to be correct. Apparently the learned R.O. Held count in presence of all concerned and obtained their signatures on the order sheet (page 13 of the paper book).
5. So far as the other allegations are concerned, respondents Nos.1 and 2 withdrew the same. The learned Tribunal even failed to take note or to consider the impact of the said withdrawal. To my mind in view of the withdrawal of the other material allegations the election petition becomes sans cause of action as it fails to show any ground which may be made basis for setting aside election of returned candidates within the meaning of rule 81 or for declaring the election as whole void in terms of rule 83 of the Rules framed under the P.L.G.E.O.
2000.
6. In view of the above discussion, I do not find any ground within the ambit of either rule 39(5) or rule 40(6) being made out to warrant the order passed by the learned Tribunal to hold recount.
This writ petition is accordingly allowed and the impugned order of the learned Election Tribunal being without lawful authority is set aside. The result would be that the election petition shall be deemed to be pending before the Election Tribunal, who shall decide the same in accordance with law. No order as to costs. The records of the Election Tribunal be immediately remitted back.