Through this Constitutional petition the petitioner seeks setting, aside of .the impugned order dated 15-9-2001, by which election petition of the petitioner has been dismissed and order dated 14-7- 2001 by which re-counting of six polling stations was ordered' for decision of the election petition. It is further prayed that impugned notification dated 28-3-2001 passed by District Returning Officer, respondent No,2 may be set aside and it may be declared that respondents Nos,7 and 8 are not successful candidates and the petitioners may be, declared successful returned candidates for seat of Nazim and Naib Nazim of Union Council No,2. Kachi Maand, Tehsil and District Sialkot.
2. Brief facts of the case are that respondents Nos,7 and 8 were candidates for seat of Nazim and Naib Nazim from the Union Council No,2 Kachi Maand. Tehsil and District Sialkot in Local Government election. which was held on 21-3-2001. The petitioner obtained 3559 votes and respondents Nos,7 and 8 were declared as successful candidate having secured 3635 votes and 76 more than votes of the petitioner. The petitioners preferred election petition against respondents Nos,7 and 8 before Election Tribunal respondent No, 1.
3. As result of consent between the parties order dated 14-7-2001 was passed by Election Tribunal respondent No,1 operating part of the order is reproduced as under:-- "Both the parties agreed that recounting of polling stations Government Girls P/S Looni No,2, Government Boys M/S Kachiman, Government Girls Elementary School, Balipur, Government Girls M/S. Pul Bajwan, Government Girls P/S Pindi Bajwan and Government P/S Chak Southal be conducted in presence of the parties. The parties give up all the rest objections or counter objections taken in the pleadings. The parties are directed to appear before this Tribunal at Sialkot on 31-8-2001."
Re-counting of the votes started in presence of the parties. Votes of the polling stations Government Girls P/S, Looni No,2, Government Boys M/S Kachiman, Government Girls Elementary School, Balipur, Government Girls M/S Pul Bajwan, and Government Girls P/S Pindi Bajwan were re- counted and the lead was decreased from 76 to 35, but both the parties, according to the impugned judgment, agreed to give up re-counting of votes of remaining Polling Stations, as a result whereof election petition was dismissed and declaration of result of respondents Nos,7 and 8 as 'successful returned candidates was upheld.
4. The learned counsel for the petitioners contends that the impugned order of Election Tribunal dated 15-9-2001 is illegal and unlawful and is liable to be set aside as according to consenting statement of both the parties recorded on 14-7-2001 votes of polling station of Chak Southal were to be counted in presence of the parties, but it was not counted by the Election Tribunal and without compliance, of consent, which was arrived at between the parties. the result was declared in favour of respondents Nos,7 and 8, which is liable to be set aside. According to him respondents Nos,7 and 8 are influential persons who managed rigging in the said election with the collusion of concerned election officer and staff. It is contended that respondent No,8 got posted his brother namely Talib Hussain as well as respondent No,7 got posted his nephew namely Zahid in the Polling Station Government Boys Middle School, Looni, respondent No,7 got posted his brother namely Khalid Chaudhary and a favourable teacher namely Bagh Ali of Chak Southal adjacent to residential locality of respondents Nos,7 and 8 in Polling Station Chak Southal. Respondents Nos,7 and 8 got posted their favourable teacher namely Muhammad Akram of the school og their own residential locality/Kachi Mand in the polling station Kachi Mand. Respondents Nos,7 and 8 also got posted their favourable teachers namely Master Younas and Master Naseem of their residential locality in the polling staff, Looni. The learned counsel further contends that the petitioners made applications for transfer of Presiding Officers and staff but no positive action was taken in any manner. It is further contended that the learned Election Tribunal has failed to count votes of Chak Southal illegally whereat Tallab Hussain brother of respondent No,8 and real nephew of respondent No,9 were posted as polling staff, therefore, it was necessary to count the votes of Chak Southal. It is further contended that it has been wrongly mentioned by Election Tribunal in the impugned order dated 15-9-2001 that the consent was given by the petitioners for not counting the votes of Polling Station of Chak Southal and there is no expressed consent available on record: difference was decreased from 76 to 35 votes and there was no reason to give up re-counting and giving of any consent for stoppage of it, hence the re-counting may be ordered by the setting aside the impugned order.
5. On the other hand, the learned counsel for respondents Nos,7 and 8 has opposed this petition on the ground that the learned Election Tribunal has specifically mentioned that when the votes of five polling stations were re-counted and only counting of votes of polling station of village Chak Southal was to be done, the parties gave up prosecution to the extent of re-counting of boxes relating to said polling station, hence difference between the petitioners and respondents Nos,7 and 8 was of 35 votes and they were, therefore, declared successful candidates. It is further contended that presumption of truth is attached to the judicial record. He has relied upon Abdullah v. Shaukat and others (2001 SCM R 60). It is further contended that other contention, raised by the learned counsel for petitioners that brother and nephew of respondents Nos,7 and 8 were posted at Polling Station Chak Southal is question of fact, which cannot be decided in writ jurisdiction as the matter requires recording of evidence. He has further relied upon Mst. Shaheen v. Jaffar Khan and anothers (PLD 1986 SC 483) and Sedco Forex International v. Muhamamd Nawaz and others (2000 M LD 914).It is further contended that re-counting is not right of any party and certain conditions have been laid down for re-counting of votes. Relies upon Kanwar ljaz Ali v. Irshad Ali and 2 others (PLD 1986 SC 483).
5. I have heard the learned counsel for parties and perused the record. The election petition was filed by the petitioners. in which certain illegalities have been mentioned and it was alleged that relatives of respondents Nos,7 and 8 were got posted against different polling stations and respondents Nos,7 and 8 have won the election due to illegal practice, but when respondents Nos,7 and 8 filed reply; they denied the allegation levelled in the election petition. During the pendency of election petition both the parties agreed having been agreed re-counting of votes of polling stations Government Girls P/S, Looni No,2, Government Boys M/S Kachiman, Government Girls Elementary School, Balipur, Government Girls M/S Pul Bajwan and Government Girls P/S Pindi Bajwan was done in the presence of the parties and all the polled votes rejected or accepted votes were checked and re-counted. After the re- counting of polled votes of said five polling stations out of six polling stations. it was agreed between the parties that the recounting of the Polling Station of Chak Southal might be given up. About giving up of prosecution to the extent of rest of the boxes by the parties, it has been duly mentioned in the judgment of the learned Election Tribunal and the presumption of genuineness is attached to this judicial record, which cannot be altered on the oral assertion of the learned counsel for petitioners and it has not even been specifically mentioned in the contents of writ petition as well. Sanctity and presumption of truth is attached to the judicial record and oral assertions are not sufficient to hold that the learned Trial Court/Election Tribunal has wrongly mentioned this fact. I am fortified by the verdict of Honourable Supreme Court in case Abdullah v. Shaukat and others (2001 SCM R 60) in which it is concluded as under:- Even otherwise , genuineness of judicial record cannot be sacrificed at the altar of expediency of litigants is fact with regard to the alleged oral assertion was also made in the memo. of regular first appeal before High Court will not alter the shapes of things. We have look in vain of any such affidavit of the learned counsel for appellant in support of plea, which is being raised for the first time in this Court after dismissal of regular First Appeal by the High Court."
6. The petitioners had not moved an application and had not raised any objection at the time of stoppage of re-counting of the remaining boxes relating to polling station of village Southal after re-counting of five polling stations by the Election Tribunal. No application was made by the petitioner and even in the writ petition any assertion to this extent has not been taken. From the bare perusal of contents of this petition it is crystal clear that respondent No,7 according to petitioners got posted his brother namely Khalid Chaudhary and nephew Bagh Ali at Polling Station of Chak Southal adjacent to residential locality of respondents Nos,7 and 8. This assertion made in para. 7 of the writ petition clearly shows that Polling Station of thak Southal was located near the residential locality of respondents Nos,7 and 8 and when the result of 5 polling stations did not come in favour of petitioner then the possibility of giving up of re-counting of remaining polling station, being situate adjacent to the residential locality of respondents Nos,7 and 8 cannot be ruled out. It is also averment of the writ petition that order dated 14-7-2001 may also be set aside.
This is a consent order and both the parties accepted the same, which was never challenged by the petitioner and the petitioner joined the re-counting process which was held on 15-9-2001.
Therefore, they cannot now raise objection that the consent order is illegal. The petitioners had given consent and on their consent recounting was held and the order dated 14-7-2001, therefore, has been acted upon. Respondents Nos,7 and 8 has won the election by the margin of 35 votes than the petitioners.The petitioners themselves having given up all the grounds and offered for re-counting of polled votes now cannot go back and claim for decisior of the case on merits after dismissal of the election petition as a result of re-counting. This petition has no merit. I do not find any illegality in the impugned order for interference of this Court by exercising power under Article 199 of the Constitutional of Islamic Republic of Pakistan. This petition is dismissed having no merit.