SYED JAMSHED ALI, J.----The order, dated 15-4-2002 of the learned Single Judge, dismissing the writ petition of the appellants, has been assailed in this appeal which arises out of the following circumstances.
2. The appellants herein and respondents 1 and 2 (hereinafter referred to as the respondents) contested the election for the offices of Nazim and Naib Nazim respectively of Union Council No. 10, Chak Jhumra, District Faisalabad. The appellants were elected and a notification was accordingly issued. The election of the appellants was challenged by the respondents in a petition before the learned Election Tribunal which was contested on which issues were framed vide order, dated 4-1- 2002 and the case posted for evidence. On 6-2-2002 respondents filed an application for the review of the order, dated 4-1-2002 with a grievance that the Returning Officer was approached for the supply of copies of the relevant record but it was refused while the entire evidence of respondents was based on the record. A prayer was made in this application that the Returning Officer be directed to issue copies of the documents required by the said respondents. A further prayer in this application was that the Returning Officer should be directed to produce the entire sealed bags of polling record either for the purpose of evidence or for re-counting of votes to meet the ends of justice. This application was resisted. The learned Election Tribunal, after hearing the parties and noting the respective contentions, vide order, dated 20-3-2002 directed production of election material for the purpose of re-counting of votes and the case was fixed for 15-4-2002.
3 The appellants assailed the said order in Writ Petition No.6087 of 2002 which was dismissed by the learned Single Judge on the ground that the writ petition had been filed on 10-4-2002 (wrongly mentioned as 10-3-2002) and retiled on 12-4-2002 while the copy of the impugned judgment of the learned Election Tribunal was supplied to them on 1-4-2002. It was further observed that if the appellants felt aggrieved from the ultimate outcome of the election petition, they could raise all 'available objections while approaching this Court.
4. The learned counsel for the appellants contended that there was no material before the learned Election Tribunal to direct re-counting. It is contended that after agreeing with the proposition that an order for re-count of the ballot papers could not be passed without recording evidence dismissal of the writ petition was not justified. It is maintained that statements on oath of the respondents were not even recorded and only on the basis of the averments of the election petition, the learned Tribunal directed re--count of the votes. It was further contended that after the issues had been framed and the case posted for evidence the learned Election Tribunal had no jurisdiction to review the order. He submitted that in case such an approach is condoned, then in every case such a course may have to be adopted. Reliance was placed on Kanwar Ijaz Ali v.
Irshad Ali and 2 others (PLD 1986 SC 483), Mian Ejaz Shati v. Syed Ai Ashraf Shah and 12 others (PLD 1994 SC 867), Dilawar Hussain Butt v. Sheikh Zulfiqar Ali and 4 others (1999 M LD 2602) and Sardar Rehmat Ullah Dogar v. Additional District Judge, Kasur and 10 others (1999 M LD 2847).
5. On the other hand, the learned counsel for the respondents submits that the order of re-count is interim in nature and therefore, the constitutional petition was not maintainable. Reliance was placed on Sheikh Iftikhar-ud-Din and another v. District Judge, Bahawalpur Exercising Powers of Election Tribunal for Union Council of District Lodhran and 8 others (2002 SCM R 1523). It is further contended that a proper actual foundation was laid in the election petition particularly in paras 5 and 9 of the Election petition, the learned Election Tribunal had the necessary jurisdiction to direct re-count and that the order being one in discretion could not be interfered with. He next contended that the entire evidence of the respondents was based on the election record and in view of the fact that even copies of the record were refused by the Returning Officer on the ground that election material was sealed the controversy could only be resolved by directing re-count of the votes. It was next contended that it is not necessary in all cases to record evidence before directing re-count particularly in a case in which the evidence to be produced in support of an election petition is confined to the election record itself. Reliance was placed on Muhammad Zulqarnain v.
Muhammad Anwar and others (1990 CLC 736).
6. We have considered the submissions made by the learned counsel for the parties. The application moved by the respondents was for a direction to the Returning Officer to issue copies of the relevant record and in the alternative for summoning the Returning Officer with the record either for the purpose of evidence or for re-counting of votes. The learned Election Tribunal, while directing re--count relied on the observations of this Court to the case of Muhammad Zulqarnain supra according to which an order directing re--count could be passed by the Election Tribunal on being satisfied. It was further observed that the sealed bags had to be opened by providing attested copies of the documents and if the plea of the petitioners was accepted "it would cut short to resolve the controversy between the parties as the petitioners have given up all other claims".
7. Under rule 65 of the Punjab Local Government Elections Rules, 2000, an Election Tribunal has been specifically empowered to order opening of packets of counterfoils and certificates or the inspection of any counted ballot papers. While inspecting the ballot papers and examining the other record, the process of re-counting is necessarily involved. In fact as averred in the application moved by the respondents, the entire evidence comprised the election record itself. We may also add here that when the only dispute is about re-counting of the ballot papers, the election record itself is the best evidence. The power to direct re-count of ballot papers has, however, to be exercised if a proper factual foundation has been laid in the petition and the Election Tribunal is satisfied that a case for re-count is made out. There were specific averments in the election petition as to the counting of the votes in paras. 5, 8, 9 thereof which was verified on oath by the respondents. The learned Election Tribunal duly applied its mind to the respective contentions of the parties as borne out by paragraph 4 of the judgment and keeping in view the rule laid down in the case of Muhammad Zulqarnain supra directed re--count of the votes which was within the discretion of the Election Tribunal. It cannot be said that the discretion has been exercised in an arbitrary manner. We will like to observe that an election dispute is not necessarily a lis inter se parties because it involves the entire constituency, therefore, all efforts are required to be made to expeditiously dispose of an election petition and an election petition is not to be treated like a civil suit.
8. The judgment in the case of Kanwar Ijaz Ali supra arose out of an election held under the Representation of the People Act. 1976. In the said case request made to the Returning Officer for recount of the votes was declined. Refusal of the Returning Officer to direct re-count was also assailed before the learned Election Tribunal. The plea was repelled by the Election Tribunal on the ground that the allegations in the application for re-count were vague and did not contain an adequate statement of material facts. In the said case after the evidence was recorded the learned Election Tribunal found that the allegations in the election petition of illegal and corrupt practices were not established. The said case proceeded on its own facts. The case of Mian Ejaz Shaft supra also arose out of the Representation of the People Act, 1976. In the said case the Election Tribunal had allowed re-counting of the ballot papers. The petition directed against the said order was dismissed by the Hon'ble Supreme Court with the observation that Election Tribunal can order re-count of votes. In an appropriate case and on satisfaction of requisite conditions the case of Haji Muhammad Asghar v. Malik Shah Muhammad Awan (PLD 1986 SC 542) was also noted and it was further held that petition before the Hon'ble Supreme Court against an interim order was not maintainable. As far as the case of Dilawar Hussain Butt supra is concerned, the order of an Election Tribunal directing re-count of the ballot papers was not interfered with by this Court and it was observed that where an allegation has been levelled that valid votes cast in favour of the election petitioner were declared as invalid by the Presiding Officer materially affecting the result of the election it was not necessary for the Election Tribunal to frame an issue on the controversy and record evidence of the parties. An observation was, however, made in the said case that Election Tribunal cannot order re-count in routine and a candidate cannot demand re-count of ballot papers as of right. It was reiterated that if the Election Tribunal is satisfied on the strength of material placed before it that the request for re-count was reasonable and controversy can be resolved on re-checking the ballot papers, it could be ordered. Rule 44-A of the Local Councils (Election) Rules, 1979, which is in paramateria with rule 65 of the Punjab Local Government Elections Rules, 2000, was relied upon. As far as the case of Rehmat Ullah Dogar is concerned, this Court while relying on the case of Mian Ijaz Shaft supra held that a Constitutional petition to challenge an interim order of re-count was not maintainable. The plea raised in the said case that evidence should have been recorded was repelled on the basis of instructions of the Election Authority that a dispute about the counting of ballot papers should be treated as a preliminary issue.
9. In the case of Iftikhar-ud-Din supra relied upon by the learned counsel, for the respondents, in respect of election to Local Bodies, an order directing re-count of ballot papers was assailed in a Constitutional petition which was dismissed as incompetent and the Supreme Court had affirmed the said order.
10. We are of the view that it cannot be laid down as an inflexible rule that against an interim order of an Election Tribunal, a Constitutional petition will not be competent in any case. It will depend on the facts and circumstances of each case. If from the facts and circumstances, an interim order of the Election Tribunal is found to be arbitrary or against an express provision of law it will be open to judicial review in exercise of Constitutional jurisdiction. However, the present case has its own peculiar features. The entire evidence of the respondents is based on the election record itself and even ii' the Returning Office was summoned with the record for evidence, it would necessarily involve the exercise of re-counting of the votes. We are, therefore, of the view that not only proper factual foundation was laid in the Election Petition but also that the learned Election Tribunal applied its mind whether in the circumstances an order directing re-count was called for.
11. We do not find any merit in the contention of the learned counsel for the appellants that a direction for re-count of votes amounted to the review of the order, dated 4-1-2002 whereby issues were framed and case was posted for evidence for the reason that power to re-count ballot papers could be exercised at any stage of the proceedings by the Election Tribunal.
12. For what has been stated above, we find no merit in this appeal which is, accordingly, dismissed.
No order as to costs.