' Through this Constitutional petition the petitioners seek setting aside of order dated 18-6-2001 passed by the learned Election Tribunal/District Judge, Hafizabad, by which he has directed responents Nos.3 and 4/election petitioners to deposit a security amount of Rs,10,000 for re- counting of votes and record was summoned through the District Returning Officer who was to make arrangements for the prodution of record for the re-counting on the said date.
2. The brief facts of the case are that the petitioners contested the election of Union Council No,43/7 Urban, Gujranwala, against respondents Nos.3 to 14 held on 21-3-2001. The petitioners were declared as successful and according to them they secured 730 votes while Mian Attique-ur- Rehman secured 711 votes. Mian Attique-ur-Rehman and Qaiser Rashid filed an election petition in which allegations have been levelled against the Presiding Officer of unfair practices and it has been alleged that the election has been manouevred by the petitioners and actually they had not won the election and the votes of the respondents were rejected while the votes of the petitioners being on the same score were not rejected. The notice was issued to the petitioners who raised preliminary objections about the maintainability of the petition and denied the allegations levelled in the election petition. On 18-6-2001 the following orders were passed by the District Judge/Election Tribunal, Hafizabad: -- "The learned counsel for the petitioners has made statement to the effect that the decision of the election petition be made on the basis of re-counting of votes polled at polling stations of Union Council No, 43/7 Urban Gujranwala for the seat of Nazm/Naib-Nazim. He also stated that he forgoes other grounds of his petition. The contention of the learned counsel for the petitioners has been contested by the respondents Nos.5 and 6. The learned counsel for the said respondents contended that the petitioners have not made a prima facie case for recounting and that no result has been annexed with the petition. Since the petitioners have sought decision of the election petition on the basis of re-counting only and by this act the respondents Nos.5 and 6 would not be caused any grievance, therefore, the contention of the petitioners is accepted and the case is fixed for re-counting of polls for 19-7-2001. This order is subject to deposit of security amounting to Rs,10,000 by the petitioners who shall produce the receipt of security on the next date of hearing.
The record of polls of the said Union Council for the said seat be summoned through the District Returning Officer who shall make arrangements for the production of record positively for the purposes of re-counting on the said date."
3. Learned counsel for the petitioners contends that without deciding the preliminary objections the Election Tribunal directed the re-counting of the votes which cannot be done without any substantial evidence as it is well-settled law that the re-counting cannot be done without any evidence. He relied upon Kanwar ljaz Ali v. Irshad Ali and 2 others (PLD 1986 SC 483) in which it has been held that vague allegations not containing adequate statement of material facts cannot be the grounds for re-counting and the same cannot be granted as a matter of right and can only be granted on the basis of the material evidence. He also relies on Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another (PLD 1986 SC 542) in which it has been held:-- "Election Tribunal can order re-count of votes in appropriate cases and on satisfaction of requisite conditions.
Jurisdiction. "whether consent of parties confer jurisdiction on authority to a Court/Tribunal which law creating it did not confer on it."
' He also relied upon judgment reported as Zulfiqar Ali v. Election Tribunal/Civil Judge 1st Class, Khanpur and 5 others (2000 MLD 746), in which it has been held "that the basis for re-counting was affidavits of the unsuccessful candidates without any iota of evidence before the Election Tribunal while re-counting the ballots and banked upon vague and uncertain affidavits which have been controverted. Such affidavits were not a sufficient material in law to warrant conclusion that re- counting was necessary. He also relied upon Julius Salik v. Returning Officer and others (1991 MLD 589). He further contends that in the election petition the other grounds have not been pressed in paras. 4, 5 and 6. The contentions have been raised by the petitioners since the election petition has been withdrawn hence no order can be passed for the re-counting be asked as a matter of right but only on the basis of evidence which is not available in the case in hand hence the order is illegal and unlawful. He further contends that paras. 2,3 and 4 have also not been pressed and will be considered as delected hence there is no ground available for the re-counting. The petition is liable to be accepted on this score alone and the order of re-counting be set aside. He further contends that the writ petition was admitted for regular hearing and is supported by the affidavit.
No counter-affidavit has been filed and on this ground the writ petition can be accepted. He further contends that the remedies were available to respondent No,3 but he has not filed any application before the Presiding Officer or before the Returning Officer who were empowered under rule 39 sub-rule (5) and rule 40 of sub-rule (6) of the Punjab Local Government Election Rules, 2000, hence they failed to avail the same remedies available to them, as such re-counting cannot be held by the Election Tribunal as is prayed for by respondent No,3. It is further contended that the representative agent/agent of respondent No,3 was present and he has sworn affidavit that the polling boxes were empty and were shown by the Presiding Officer and subsequently the proceedings have been held in a peaceful manner, therefore, now respondent No,3 cannot claim that the votes have not been correctly counted. It is also contended that respondents Nos.3 and 4 got deleted the names of the Presiding Officers who were at the first instance made as respondents hence the paras. Against these Presiding Officers in the election petition automatically stand deleted hence the election petition cannot proceed as the main para. Has been deleted due to the abovesaid reasons. It is further contended that the re-counting could not be ordered by the Election Tribunal without recording the evidence and without deciding the questions of maintainability of the election petition due to the abovesaid reasons. It is also contended that the other respondents except respondent No,3 are not supporting the re-count.
4. On the other hand learned counsel for respondent No,3, the petitioner in the election petition has opposed this writ petition on the ground that re-counting has been held and according to the result of the re-counting respondent No,3 has become successful as he obtained 19 more votes than the petitioners votes now he cannot be deprived of its fruit and canot be restrained from functioning as Nazim and NaibNazim as they have won the election. It is further contended that the re-counting has been ordered as the main ground in the election petition was that the votes have not been correctly counted by the Presiding Officer hence on this ground the re-counting can be held without the recording of the evidence because the consistent stand of respondents Nos.3 and 4 was that it is a case which is fit for recounting because of the illegalities committed by the Presiding Officer. It is further contended that the order of re-counting is an interim order and no petition lies against the interirm orders. In support of these contentions he has relied upon judgment reported as Muhammad Asim Kurd alias Galoo v. Nawabzada Mir Lashkari Khan Raisani and 11 others (1998 SCMR page 1597).
5. Learned counsel appearing on behalf of other respondents except respondent No,4 has supported the writ petitioner.
6. I have heard the learned counsel for the parties and also pursued the documents attached with this petition. I am not impressed by the arguments of the learned counsel for the petitioners that the recounting could not be ordered without the recording of the evidence in this case.
Respondents Nos.3 and 4 have filed the election petition in which specific allegations have been levelled that their votes have not been counted by the Presiding Officers correctly and their valid votes have been rejected illegally and unlawfully. This is the main ground in the election petition.
Respondent No,3 has appeared and made categorical statement that if the re-counting is ordered he will not press the other grounds taken in the election petition and decision shall be made on the basis of the re-counting of the votes but the petitioners contested the re-counting because according to the petitioners re-counting cannot be ordered without the recording of the evidence.
Of course the petitioners have been declared as successful candidates and they want to play delaying tacits to remain as elected representatives and they are not interested in the early decision of the election petition. Hence they were summoned and were frightened the reasons best known to them for the re-counting of votes. No such allegation has been levelled of the tampering with of the votes after the election by the petitioner at that time. Hence there was no need for recording of the evidence before passing the order impugned in this writ petition. The case-law cited by the learned counsel for the petitioners in the peculiar circumstances of this case does not attract and is not applicable to the facts of this case. On the other hand the case-law cited by the learned counsel for respondent No, 3 i,e, Muhammad Asim Kurd (supra) is fully applicable in the circusmtances of the case in which the august Supreme Court has held that the interim orders cannot be challenged in writ jurisdiction. It has also been held that the remedy appeal against the final order of the Election Tribunal will be available. The petitioners have been afforded an opportunity of hearing at the time of re-counting and they were at liberty to raise all the objections during the proceedings if they had any grievance now it cannot be said that the re-counting has not been held justly, fairly and in accordance with law. No ground has been taken that the re- counting has been held without affording any opportunity of being heard to the petitioners. The re- counting has been held in the presence of the parties in which the petitioners have lost the election. As the consistent stand of respondent No,3 was that the votes have not been correctly counted hence the impugned order passed by the Election Tribunal does not suffer from any illegality or infirmity. I am in agreement with the learned counsel for respondent No,3. The arguments of the learned counsel for the respondent No,3 are fully supported by the case reported in "1998 SCMR 1597".
7. For the foregoing reasons this writ petition has no merit and is accordingly dismissed, leaving the parties to bear their own costs.