' AKHTAR SHABBIR, J.---This Intra-Court Appeal is directed against the order, dated 29-6-2001 passed by the learned Single Judge in Chamber in Writ Petition No,11652 of 2001, setting aside the order, dated 8-6-2001 passed by the Election Tribunal Hafizabad, directing the recount of ballot papers.
2. The appellants and respondents Nos.1 to 6 contested the election for the seats of Nazim and Naib Nazim of Union Council 158/3 (Urban) Kamokee, Gujranwala held on 21-3-2000. The pair of respondents Nos.1 and 2 namely, Inayat Ali and Amjad Frooq was declared as successful (elected) by the Returning Officer securing 1200 votes as Nazim and Naib Nazim of the concerned local council. The appellants (herein) challenged the election of respondents Nos.1 and 2 by filing the election petition before the Election Tribunal Gujranwala (Hafizabad). Respondents Nos.1 and 2 contested the election petition before the Election Tribunal. During proceedings the election petitioners-appellants made a statement that the decision of election petition be made on the basis of recounting of ballot papers of all the Polling Stations of Union Council No,158/3 City Kamonkee. They foregone all other grounds of their petition and the Election Tribunal vide its order, dated 8-6-2001 accepted the prayer and fixed the date for recounting of votes on 2-7-2001.
3. The winning candidates of Nazim and Naib Nazim namely, Inayat Ali and ,kmjad Farooq had challenged the order of Election Tribunal through Writ Petition No,11652 of 2001 and the learned Single Judge vide his order, dated 29-6-2001 accepted the same and set aside the order of the Election Tribunal, declaring the same to have been passed illegally and without lawful authority.
4. Learned counsel for the appellants objected that the learned Single Judge while passing the impugned order has illegally ignored the dictum laid down in cases of Abdul Majid v. Election Tribunal (1993 M LD 2523), Muhammad Dilshad Khan v. Ch. Arshad Ali, Civil Judge/Election Tribunal, Town Committee Sara-e-Sidhu Kabirwala (1999 M LD 2874). Learned counsel further contended that the Election Tribunal is competent to order of recount of the votes and can base its findings on the basis of the result of recount.
5. We have anxiously considered the arguments addressed by the learned counsel for the appellants and examined the case-law referred to above by the appellants.
6. The general allegation in the election petition are that at the time of counting, with the connivance of the election staff the representative of the election petitioners were not allowed to join the counting proceedings and that after the result the certified copies of the result were not provided to the Polling Agents of the appellants. The election petitioners/appellants have levelled general allegations of illegal and corrupt practice during the election proceedings that the brother of one of the contestant was D.E.O., Gujranwala who has appointed his subordinates at various polling stations and according to paragraphs Nos. 10, 11 and 13 of the election petition there were some discrepancies in the result of some polling stations. There is no specific allegation in the election petition that how much votes of the appellants were illegally rejected and excluded from the counts or how much votes were illegally included in the count of the winning candidate.
Whatever the allegations have been levelled by the appellants in their election petition that requires recording of evidence by the Election Tribunal, to reach at a correct conclusion that the election procedure or counting of votes have prejudiced the result of the appellants. There is no specific allegation or material available on the record to establish the ballot papers which ought to have been counted in favour of the appellants. To establish a case of recount of ballet papers the election petitioners/appellants have to prove on record that the recount of ballot papers is must, and this can only be achieved by the election petitioners/appellants by producing the record and evidence on the file before the Election Tribunal.
7. There is no cavil with the fact that the Election Tribunal has the jurisdiction of recounting of ballot papers to resolve the dispute before him but the Tribunal before giving direction for recounting of votes must satisfy itself on the basis of evidence that the allegation of commission of irregularities, illegalities by the Presiding Officers in the counting of votes were prima facie established and that the recounting of votes is necessary. For this purpose the Election Tribunal has to frame issue with regard to recounting of votes and record evidence of the parties. The recounting of votes, although, could not be claimed as-of right yet if proper foundation was laid in the election petition or application for recount and the Election Tribunal is satisfied relevant election record would be summoned. For inspection of recount as observed in Muhammad Dilshad Khan's case (supra).
' In another case of Mian Muhammad Farooq v. Election Tribunal Punjab (1988 MLD 2949), a Division Bench of the Court has held as under:-- "The Tribunal's power to open the packets containing the counted ballot papers obviously, with the object of scrutiny, including the counting thereof, is to be found in rule 44-A of the Election Rules, 1979 but this power cannot be exercised untrammelled by limitation. Before giving a direction for recounting the Tribunal must satisfy itself on the basis of evidence, that the allegations of commission of illegalities by Presiding Officer during counting is prima facie, establishment and that, therefore, the recounting is necessary."
' The same view was followed by a Single Judge of this Court in Jewan Khan v. Election Tribunal (1993 M LD 2519).
8. The controversy in dispute was also discussed in Malik Munawar Khan v. Election Tribunal District Judge Lahore (1991 CLC 180). The dictum laid down in the case referred to above has followed the decision of apex Court in case of Kanwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 SC 483) wherein it has been observed that the petitioner has not adduced any evidence in this regard and 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.
9. The ratio decidendi in all the cases is that the Election Tribunal is competent to direct the recount of ballot papers subject to its satisfaction that case of recounting is made out which can only be established by recording of evidence of the parties and the relevant record pertaining to election process.
10. Learned counsel for the appellants has not been able to point any illegality, material irregularity and jurisdictional defect in the impugned order passed by the learned Single Judge of this Court and has not persuaded us to interfere with the impugned order. In our view, the learned Single Judge has exercised his discretion in accordance with law to which no exception can be taken in this appeal.
11. For the foregoing reasons, we find no merit in the instant appeal, hence, the same is dismissed in limine.