' NASIRUL MULK, J.--- Writ Petitions Nos.710 and 717 of 2002 are disposed of by this single judgment as they arise out of the same judgment and order of the Election Tribunal, Mardan, dated 20-6- 2002, in an election petition filed by Haji Muhammad Naqeeb and Mian Waris Khan, the joint unsuccessful candidates for the office of Nazim and NaibNazim respectively of Union Council, Daman-e-Koh, Tehsil Takht Bhai, District Mardan. The petitioners before the Election Tribunal had questioned the declaration through Notification, dated 29-3-2001 of Haji Zaffar Khan and Hafeez- ul-Wahab as duly elected candidates for the office of Nazim and Naib-Nazim respectively. By the impugned judgment of the Election Tribunal, the election petition was allowed to the extent that the election of the returned candidates was declared void and the Provincial Election Commissioner was directed to hold fresh election to the said offices. Haji Muhammad Naqeeb and Mian Waris Khan have filed Writ Petition No,710 of 2002 assailing the impugned order of the Tribunal for not declaring them as duly elected in place of Haji Zaffar Khan and Hafeez-ul-Wahab. The latter two have filed Writ Petition No,717 of 2002 questioning the very declaration of the Tribunal of the whole election as void.
2. In the election in question, apart from the two contesting pairs, there were three other pairs of joint candidates. The case of the petitioners filing the election petition before the Tribunal was that in the first announcement of the election result by the Returning Officer, based on the consolidated statement of count, the petitioners had polled the highest number of votes of 1411 and the runners- up Haji Zaffar Khan and Hafeez-ul-Wahab had secured 1394 votes. That the Returning Officer subsequently conducted recount with the result that the petitioners' votes were reduced to 1381 and that of the runners-up to 1386, with the result that Haji Zaffar Khan and Hafeez-ul-Wahab were declared elected instead of the petitioners and thus, duly notified. The petitioners before the Tribunal had questioned the very legality of the recount on the ground that there was no written application made to the Returning Officer by any candidate for recount, which was a pre-requisite for ordering recount under Rule 40 Sub-Rule (6) clauses (i) and (ii) of the N.-W.F.P. Local Government Elections Rules, 2000 (hereinafter referred to as "The Election Rules). The petitioners further alleged that the two returned candidates were even otherwise disqualified from contesting the election on the ground that they had not made true declaration of their assets at the time of filing of their nomination papers. The returned candidate filed written statement to the election petition denying the factual and legal assertions therein.
3. The Election Tribunal framed 8 issues on the pleadings of the parties. However, on the verbal request of the counsel for the returned candidate the Election Tribunal heard arguments on the maintainability of the election petition. By order, dated 16-7-2001, the Tribunal dismissed the election petition on the ground that the allegations made in the petition of illegal and corrupt practices were vague. The petitioners before the Tribunal filed Constitutional petition against the order of dismissal of their petition. That petition (Writ Petition No,946 of 2001) was allowed and the case remanded to the Tribunal for recording evidence and deciding the ease issuewise. That was done, which resulted in the impugned judgment and order of the Tribunal.
4. Out of the seven issues framed by the Tribunal, Issues Nos.2 and 6 related to the powers of the Returning Officer to order recount, and that if he did not have such power, what would be its effect on the changed result as a consequence of the recount. Issues Nos.3 and 4 pertained to the alleged concealment of assets by respondent No,
1. Haji Zaffar Khan and Issue No,5 related to the concealment of assets by respondent No,2 (Hafeez-ul-Wahab). On Issues Nos.2 and 6, the Tribunal held that as no application was made to him by any of the contesting candidate for recount, the recount was not authorsied under sub-rule 6 of Rule 40 of the Elections Rules. On Issue No,3 relating to the declaration of agriculturaltproperty by respondent No,1 in the declaration of the assets form, the Tribunal found that the respondent had failed to disclose all his interest in the property and thus violated the provisions of sub-rule 4 of Rule 16 of the Election Rules. The Tribunal however, held that the petitioners had failed to produce any evidence in support of Issue No,4, which pertained to the lease of petrol pump to respondent No,
1. The findings on that issue went against the petitioner.
As regards non-disclosure of property by respondent No,2, the Tribunal gave a finding against the respondent on Issue No,5.. Resultantly, the election of the returned candidate was declared void on two counts. Firstly, that the Returning Officer, in the absence of any application by any contesting candidate had no authority to order recount and thus to change the result. And secondly, that respondents Nos.1 and 2, the two returned candidates, had not disclosed their assets. The Tribunal however, did not accept the petitioners prayer for declaring them as elected as there were extensive corrupt and illegal practice during the recount. Consequently, the election as a whole was declared void and reelection ordered.
5. The question of the authority of the Returning Officer to order recount is taken first. As already stated, Haji' Muhammad Naqeeb and Mian Waris Khan, the petitioners before the Tribunal, had been declared elected through an unofficial result by the Returning Officer by a margin of 17 votes and after the recount by the Returning Officer, the said petitioners lost by 5 votes to Haji Zaffar Khan and Hafeez-ul-Wahab. The Returning Officer is, under Rule 40, sub-rule 6 of the Election Rules invested with the powers to recount the ballot-papers in respect of any polling station, on an application made by the candidate or his election agent when the Returning Officer is satisfied of the reasonableness of the allegations made in the application; or when there is a direction by the Chief Election Commissioner or the Returning Officer. The Election Tribunal has held that no formal application was made to the Returning Officer for recount. The case of the returned candidate, Haji Zaffar Khan, is that an application was moved through his authorized agent Farid Khan, Advocate.
The application or its copy was not found on the record of the Returning Officer and thus the Tribunal held that the making of the application has not been established.
5. On the above question, the learned counsel representing Haji Zaffar Khan and Hafeez-ul-Wahab submitted that Khalid Hussain (P.W.1), the Returning Officer has stated in cross-examination that Farid Khan, Advocate, had submitted application for recount on behalf of Haji Zaffar Khan. That he also stated that he was satisfied about the reasonableness of the application before ordering recount. The learned counsel further submitted that the other party Haji Muhammad Naqeeb and Mian Waris Khan participated in the recount without any objection and were, therefore, estopped by their conduct from questioning the result on the recount.
6. Responding to the above arguments, the learned counsel representing Haji Muhammad Naqeeb and Mian Waris Khan submitted that though specifically alleged in the election petition that there was no application made for recount there was no denial thereof in the written statement by the contesting respondents. That even otherwise the findings by the Tribunal that no such application was made was purely a question of fact which cannot be interfered with a Constitutional petition.
The learned counsel also referred to Rule 39 of the Rules relating to proceedings at the close of the poll and contended that under sub-rule 13 thereof the contesting candidates or their election agents or polling agents put their signature on each statement of count and the packets prepared as a mark of satisfaction of the count. He further pointed out that rule 40, under which the Returning Officer had exercised the powers of recount, relates to consolidation of results, which does not empower the Returning Officer to undertake a whole-sale recount.
8. The results received by the Returning Officer are consolidated by him in the manner laid down in Rule 40 of the Election Rules. Though there is no clear powers conferred on the Returning Officer to recount the votes but such power is implicit in sub-rule 6 of Rule 40, which is couched in the negative terms and reads as follows:-- ' The Returning Officer shall not count the valid ballot-papers in respect of any polling station unless;
(i) the count by the Presiding Officer is challenged in writing by a contesting candidate or his election agent and the Returning Officer is satisfied about the reasonableness of the challenge, or
(ii) he is directed to do so by the Chief Election Commissioner or the District Returning Officer.
' There is no such direction from the Chief Election Commissioner or the District Returning Officer.
The case of the returned candidate before the Election Tribunal was that they had applied to the Returning Officer for recount in accordance with clause (i), sub-rule 6 of Rule 40. Their case is that the application was moved by their counsel Mr. Farid Khan, Advocate, who also appeared as a witness before the Tribunal as R.W.4. He claimed that he remained associated with the election on behalf of Haji Zaffar Khan right from the filing of the nomination papers, acted as his polling agent and then latter on moved an application before the Returning Officer for recount of the votes. The polls were held on 21-3-2001, and according to him he appeared before the Returning Officer with the application on 24-3-2001. He stated that the Returning Officer wrote an order on this application and gave notice for recount for 26-3-2003, which was the date fixed for consolidation of the result. The Returning Officer, Khalid Hussain, who appeared as P.W.1, stated that he did receive an application for recount on behalf of Haji Zaffar Khan, He further explained in cross- examination that from the contents of the application he was satisfied that a case for recount was made out. He however, conceded that the application for recount made to him was not available on the file. During his cross-examination, Farid Khan, Advocate, stated that he had not obtained attested copy of the application with the order thereon made by the Returning Officer. He however, wanted to produce a photo copy of the application retained by him, which, after perusal by the Tribunal was returned to him. The making of the application to the Returning Officer, which is a pre- requisite for ordering of recount by the Returning Officer was not proved. The Returning Officer is also to make a speaking order on the application giving the grounds regarding the reasonableness of the application. In view of the absence of the application and the order of the Returning Officer, the conclusion drawn by the Tribunal that no application within the meaning of sub-rule 6 of Rule 40 of the Election Rules does not warrant any interference in Constitutional jurisdiction. Resultantly, the Tribunal was legally justified in holding that in the absence of an application for recount, the Returning Officer had no authority to undertake the exercise of recount of the votes.
9. An argument was advanced before us, and it was also stressed before the Election Tribunal, that the recount was done in accordance with the instructions received through a fax message from the Chief Election Commissioner. A glance of this fax message (Exh.P.W.1/16) would immediately reveal the fallacy of this argument. This letter dated 24-3-2001 issued from the Election Commission of Pakistan and addressed to all the Provincial Election Commissioners is only reminder to the Returning Officers about their powers under sub-rule 6 of Rule 40 that they can entertain applications for recount, which shall be disposed of on merits.
10. On account of the unauthorized recount by the Returning Officer, which had changed the result, the Tribunal had declared the election as a whole void and ordered re-election instead of declaring as duly elected Haji Muhammad Naqeeb and Mian Waris Khan as elected who had been declared as the returned candidate after the original count. If the recount was to be declared void, then generally the first result should have been declared valid. The Tribunal at the request of the counsel for the petitioners before it opened two bags pertaining to Polling Station No,1, Government Girls High School, Takht Bhai and Polling Station No,4 (Government Girls Primary School, Aslam Killi) after the conclusion of the statement of P.W.1 Khalid Hussain. For Polling Station No,1, there are two statements of count. One Exh.P.W.1/8, which appears to be original shows that Muhammad Nageeb Khan and his partners polled 79 votes and Zaffar Khan and his partner 146 votes. However, both were crossed and the figure 79 was changed to 69 and 146 to 145. The other statement, Exh.P.W.1/19 shows Haji Nageeb Khan to have polled 79 votes and Zaffar Khan to have polled 146 votes. Both are of the same date, 21-3-2001, which is the date of polling, though the recounting was done on 24-3- 2001. The Returning Officer had neither signed the change made in Exh.P.W.1/8 nor did he indicate that Exh.P.W.1/19 was prepared after the recount. Furthermore, he had excluded 10 votes cast in favour of Muhammad Nageeb at Polling Station No,4 which did not carry the stamp and signature of the Presiding Officer, thus, reducing his votes from 164 to 154. From the testimony of the Returning Officer it does appear that a lot of changes had been brought about in the recount of most of the polling stations. Since the margin of difference in the votes between the winner and the runners up in the first count and also in the recount was very small, the Tribunal in all fairness rightly declined to declare Muhammad Nageeb and his partners as returned candidates in view of the flaws that were detected in the original count and at the time of recount. Rule 84(a) of the Election Rules furnishes the legal basis for declaring the election as a whole void. Under the said provision the Tribunal is to declare the election as a whole void if it is satisfied that the result has been materially affected on account of failure of any person to comply with the provision of the Ordinance or the Rules. The recount by the Returning Officer, as held above, was in violation of sub-rule 6 of Rule 40 of the Elections Rules and by such recount the election as a whole was materially affected. The decision of the Tribunal to declare the election as a whole void does not call for any interference.
11. In the light of the above discussion, it is not necessary to dilate upon the findings of the Tribunal regarding the disqualification of the returned candidate on account of their failure to file correct statement of their assets. consequently, the impugned judgment and order of the Tribunal of declaring the election as a whole void and ordering reelection is upheld. As a result, both the Constitutional petitions are dismissed with no order as to costs.