The petitioners and private respondents contested election to the seats of Nazim and Naib Nazim in Union Council No,113 Pasrur District Sialkot. As a result of polling held on 21-3-2001 the petitioners were declared elected. Respondents Nos,2 and 3 filed an election petition challenging the said election. The petitioners filed a written statement denying the allegation made in the election petition. This written statement was filed on 25-5-2001. On 9-6-2001 the learned Election Tribunal proceeded to pass the following order:- "Present:- Parties alongwith their counsel.
Re-count of the ballot paper record cast in favour of petitioners and the respondents Nos,l and 1-A of few polling stations including the four mentioned in the petition would be held on 17-7-2001.
Announced."
2. Learned counsel for the petitioners argues that the re-count could not have been ordered by the (earned Tribunal without recording evidence in support of the allegation made in the petition and giving a chance to rebut the same. Relies on the case of Nawab Khan and others v. Qamar-ud-Din and others (1999 SCM R 299). Learned counsel for contesting respondents on the other hand contends that the pleadings were complete when the said order was passed and thatcannot be said that learned Tribunal proceeded in the matter without application of mind.
3. I have gone through the copies of the records appended with this writ petition. I find that although the allegations are there that polling staff at the instance of the petitioner committed illegal and corrupt practices and that several valid votes cast in favour of the petitioners were declared to be invalid while several valid votes cast in favour of contesting respondents were declared to be invalid but I find that there are no details as to how many such votes were so counted. There is of course reference to the 5 and 10 votes in ground-C but nothing turns on the same as the same is with reference to result of the counting done by the learned Returning Officer.
Now petitioners have categorically denied the allegations made in the election petition. The order of learned Tribunal is also absolutely silent as to why and on what basis is he ordering re-count. In this state of affairs the said judgment in the case of Nawab Khan is squarely attract. I find that very prayer made in the main election petition itself is for re-count. The learned Tribunal has thus allowed the election petition without recording any evidence and stating any reason. I am afraid, learned Tribunal has no lawful authority to pass such an order in such a manner. By now there is a string of judgments of the superior Courts on the subject and consensus is that re-count is not to be ordered lightly. The minimum requirement A is laid down in the judgment of Nawab Khan which is that election petitioners are to enter witness-box in support of their allegations to be cross- examined by the contesting respondents and similarly the latter to enter witness-box to rebut the allegations and to be cross-examined by the election petitioners.
4. For all that has been discussed above, the impugned order of the learned Tribunal is without lawful authority and cannot be sustained. This writ petition is accordingly allowed and the impugned order dated 9-6-2001 of the learned Election Tribunal is set aside. The result would be that the parties shall appear before the learned Election Tribunal on 19-2-2002 which according to the learned counsel for the parties is next date fixed before the learned Tribunal. In the first instance the election petitioners shall enter the witness-box to make statement in support of their allegations and will be cross-examined by the respondents and then petitioners shall be allowed an opportunity to state in rebuttal and then opportunity to the election petitioners to cross- examined them. However, in case the learned Tribunal feels necessity of some more evidence or examination of record he shall call upon the parties to produce the same or requisition the record and thereafter to decide the question of re-count which in any case is the relief claimed in the election petition itself. The learned Election Tribunal shall take steps to undertake and complete said exercise and to record order thereafter before 31-5-2002. No order as to costs.