' MUNIR A. SHEIKH, J.---The respondents contested election for the post of Nazim and Naib-Nazim of Union Council No,7 in the last Local Bodies Elections. After count of ballot papers, the petitioner was found to have succeeded by 09 votes but subsequently, however, he was found to have succeeded by a majority of 6 votes. The respondents were declared elected and a notification issued and they took oath and had been performing functions as Nazim and Naib-Nazim, respectively. The respondents failed in election petition in which they challenged the election of the petitioners on the ground that some invalid ballot papers had been counted in favour of the petitioners. No ground expressly or even by implication was taken that any of the ballot papers of the petitioners bore double stamp marks. During the pendency of this election petition before framing of the issues, the respondents made an application for re-counting of the ballot papers of the parties. This application was rejected by the Tribunal on 6-11-2001 by holding that there was no ground to re-count ballot papers and the petitioners in the election petition should lead evidence in support of their petition. It may be noted that even in the application for re-counting, no specific plea was raised that any of the ballot papers of the petitioners bore double stamp marks.
2. The respondents filed Constitutional petition before the High Court against the order dated 6-11- 2001 through which their application of recounting of the ballot papers had been rejected by the Tribunals in which an observation was made while disposing of the said writ petition that the Tribunal should decide the election petition and question of re-counting within a period of one month. The present petitioners tiled I.C.A. Against the said judgment objecting to the observations made as regards re-counting of the ballot papers and this I.C.A. Was disposed of with the remarks that none of the observations made by the learned Single Judge in the Constitutional petition about re-counting of ballot papers and decision of the election petition within one month were mandatory but the same were to be treated as directory and the Election Tribunal was free to decide the election petitions according to its own discretion and in accordance with law.
3. In spite of this clear clarification made by the Division Bench of the High Court the Tribunal proceeded as if it had been directed by the learned Single Judge of the High Court in the Constitutional petition to re-count the ballot papers and decide the election petition within, a month, therefore, it had mechanically proceeded to recount the ballot papers of only two polls, and after excluding from the count of petitioners some ballot papers, the respondents were declared elected.
4. Against this declaration about the success of the respondents, the present petitioners filed a Constitutional petition alongwith application for interim relief. At the time of disposal of the said application the respondents had not yet taken oath of office of Nazim and Naib-Nazim. The writ petition of the petitioners, was admitted to full hearing but the application for temporary relief has been rejected through the impugned order dated 26-2-2002 against which this petition has been filed.
5. Learned counsel for the petitioners submitted that mere admission of the writ petition to full hearing establishes that the petitioners were found to have a strong prima facie case in their favour. They having been already declared elected and were holding the office of the Nazim and Naib-Nazim and working as, such therefore, order of suspension of the order of the Tribunal about the success of respondents should have been issued particularly when on the saithdate the respondents had not yet been notified as successful candidates.
6. We have heard learned counsel for the respondents and find considerable force in the submissions made by the learned counsel for the petitioners. In this case, the petitioners had already been declared elected and they were holding the posts and the Election Tribunal acted in haste to proceed to recount the votes and declared the respondents as successful against which writ petition had been admitted. The exercise of discretion of refusal to issue temporary injunction is not based on application of judicial mind. It also suffers from arbitrariness, therefore, this petition is converted into appeal, it is accepted and order dated 26-2-2002 passed by the Lahore High Court is set aside and the operation of order passed by the Tribunal dated 6-11-2001 declaring the respondents as successful candidates and notification based on the said order are hereby suspended and the present petitioners shall continue to hold the offices of the Nazim and Naib- Nazim till the disposal of the writ petition by the High Court. Needless to say that above observations ,made in this order has been made for the purpose of determining whether the petitioners have got prima facie case for temporary relief and the petition shall be decided on its own merits in accordance with law.