The petitioners on the one hand, respondents Nos,2 and 3 on the other and Messrs Muhammad Bilal Khan and Sufi Muhammad Suleman contested election to the seats of Nazim and Naib-Nazim in Union Council No,49, District Mianwali. The respondents Nos,2 and 3 filed an election petition against the petitioners and said other candidates who were proceeded against ex parte while the petitioners filed a written statement. On 10-1-2002 following issues were framed:--
(1) Whether the Election Result of Union Council No,49 is void because while counting by the Returning Officer. double standard has been maintained regarding declaration of valid and invalid votes with reference to stamps by voters? OPP (2)Whether the recounting in these circumstances is required as alleged in the petition? OPP (3)Whether the petition is pre-mature and is liable to be dismissed ?OPR (4)Relief.
The case was adjourned to 4-2-2002 directing the production of the records and also the parties were called upon to produce evidence if any. on the said date. On 4-2-2002 record was not available and no evidence was produced. The matter was then taken up on 28-2-2002. After hearing the arguments of the learned counsel for the parties the learned Election Tribunal directed production of the records for a recounting on 18-3-2002.
2. The learned counsel argues that the Election Tribunal could not have ordered a re-counting without recording evidence on the said issues.
3. I have examined the copies of the record appended with this writ petition, with the assistance of the learned counsel. In the election petition, I find that the petitioners secured 2303 votes while the respondents secured 2254 votes. The other two candidates ended up with 449 votes, according to the unofficial results. It has been specifically pleaded that a large number of voters who are illiterate villagers have proceeded to mark the ballot papers with the wrong side of the startup provided and that these votes were rejected; that the said respondents filed an application for a re-counting on 1-1-2001 and the parties were summoned on 4-1-2001; that it was urged before the. learned Returning Officer that the votes could not have been rejected on the said ground i.e. marking of the ballots with the wrong side of the stamp, provided the intention of the voters could be gathered from the placement of the mark on the ballot paper. The precise plea is that 175 such votes had been rejected which carried mark on the symbol of the respondent. However, the Returning Officer rejected this plea. Be that as it may, the re-counting was held only in respect of Polling Station No,65 and it was found that 12 ballot papers marked with the wrong side of the stamp were counted as valid votes. The Returning Officer proceeded to take out the said ballot papers and to put them in a separate envelope. He then proceeded to reject the same and the result was that 6 votes each were deducted from the count of the petitioners as well as the respondents. The ultimate result was that the petitioners had 2297 votes while-the respondents had 2248 votes.
4. It was further stated that the counting of votes on all the Polling Stations was absolutely necessary. The plea taken was that either all votes rejected on the said basis be treated as valid votes and result prepared accordingly or all such votes treated as valid be also rejected and the results prepared accordingly. In their reply the petitioners admitted that several votes have been rejected on the said ground i.e. marking with the wrong side of the stamp. However, they stated that this was so because the voters did not want to cast votes in favour of any of the candidates.
5. Having thus examined the pleadings on record, I do find that there was no necessity to record evidence on the issues so framed by the learned Tribunal on 10-1-2002 and that the same could have been decided with reference to the said pleadings. So far as the Issue No,3 is concerned the same is purely pertaining to a question of law and will be decided by the learned Tribunal when he decides the main petition.
6. Before parting with this order, I deem it necessary to refer here to a judgment of the Honourable Supreme Court of Pakistan in the case of Ch. Nazir Ahmed and others v. Chief Election Commissioner (PLD 2002 SC 184). 1 particularly want to note here the observation made by the Honourable Supreme Court of Pakistan at page 194 of the said report"....primary purpose of a mark. on a ballot is to ensure that the intention of the voter is unambiguously expressed, a mark on the ballot paper which clearly reveals the -intention of the voter but does not disclose his identity has to be accepted as a valid exercise of votes and interpretation which would disenfranchise voters are to be avoided...." I do find that the said judgment was brought to the notice of the learned Tribunal as mentioned in his order dated 28-2-2002. Needless to state that there is no allegation that the said marks were not made on the symbols of -the respondents or for that matter of the petitioners or the said other candidates.
7. In this view of the matter the order of the learned Tribunal is not only lawful and in accord with the said dictum of the apex Court but to my mind the learned Tribunal was bound to order re- counting in the admitted circumstances of this case.
8. This writ petition accordingly is dismissed in limine. 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.