1. ' The petitioners have filed the present proceedings challenging the order dated 28-5-2002 passed by the Election Tribunal in Election Petition No,5 of 2001, which petition was filed by the respondents Nos.1 and 2.
2. ' The facts as pleaded in the petition were that the petitioners, and respondents Nos.1, 2, 3 and 4 contested the elections for the office of Nazim and Naib-Nazim of Union Council No,34, Perini-jo- Par, Taluka Chachro. The elections were held on 31-5-2001. The Mukhtiarkar Chachro/respondent No,5 was the notified Returning Officer.
3. ' The initial result was announced by the respondent No,5, whereby the petitioners secured 1289 votes whereas the respondents Nos.1 and 2 secured 1365 votes. The votes secured by the respondents Nos.3 and 4 were insignificant. Both the petitioners and the respondents made application before the Returning Officer/respondent No,5 for recount of votes. The petitioners made application for recount of votes of Polling Stations Bolero, Kubri, Lakhriyoon, and Peerani-jo-Par. The respondents Nos. I and 2 had filed application seeking recount before the respondent No,5 in respect of Polling Stations, namely, Bolero, Peeranijo-Par, Sajan-jo-Par and Khemen-jo-Par. The application of the petitioners was allowed whereas that of the respondents Nos.1 and 2 was dismissed by the Returning Officer. According to the petitioners, the recount was to be done on 4- 6-2001 but on account of law and order situation it was postponed to 6-6-2001. On 6-6-2001 the recount was carried out and the petitioners were found to have secured 1289 votes, whereas the respondents Nos.1 and 2 were found to have secured 1287 votes. The Returning Officer after recount declared the petitioners as returned candidates.
4. ' The respondents Nos.1 and 2 challenged the election of the petitioners before the Election Tribunal/respondent No,6 in Election Petition No,5 of 2001, pleading therein that the Returning Officer without issuance of notice to the respondents Nos.1 and 2 had cancelled their 78 votes declaring the present petitioners as returned candidates. They, also challenged that the votes shown in Form XV were different than the votes the parties secured under Form XVI. The respondents Nos.1 and 2 prayed the following reliefs in their election petition:--
(a) Declare that the election of respondents Nos.l-A and 1-B as successful candidates is void on the above supra grounds and the petitioners are successful candidates.
(h) Declare that respondents Nos.l-A and 1-B were not qualified under the meaning of section, 14 of Elections Ordinance.
5. 2000.
(c) Declare that recounting by respondent No,3 without notice to the petitioner was illegal, mala fide without jurisdiction and on the recounting basis result of the election is void.
(d) That this Honourable Court may be pleased to order of inspection of ballot-papers of all polling stations.
(e) Award cost of the petition.
(f) Grant any other relief which this Honourable Court deems fit and proper.
6. ' The petitioners filed their written statement, whereafter the following issues were framed by the Election Tribunal:--
(I) Whether respondent No,3 had illegally excluded 78 votes of the petitioners from count at Polling Station Bhojro and Piraney-joPar Polling Stations?
(2) Whether without notice to petitioner recounting was made by respondent No,3 in absence of petitioner seventy-five votes of petitioner were cancelled, respondents Nos.1-A and I-B were declared successful candidates thereby act of respondent No,3 is illegal, mala fide, unjust, improper and against the law?
(3) Whether the rigging is made by other respondent No,3 in favour of respondents. Nos.1-A and 1-B which appears from Form Nos.XIV, XV and XVI thereby respondent No,3 has violated rules 39 and 40(3) of Election Ordinance?
(4) Whether actually petitioners had succeeded in election but they were illegally not declared successful?
(5) Whether the petitioner is entitled for relief claimed?
(6) What should the order be? '
7. ' After the framing of issues and before the parties could lead evidence, the respondents Nos.1 and 2 made application under section 151, C.P.C. Praying therein that the entire election petition may be disposed of on the basis of recounting of the votes in respect of Polling Stations, namely Bhojero, Pirani-jo-Par, Lakhenio and Kubri. This application was resisted by the petitioners, The respondent No,6 after hearing the parties ordered recount in respect of Polling Stations, namely, 13hojero, Pirane-jo-Par, Lakhenio and Kubri. Against the said order the present petition has been filed by the petitioners, ' It has been contended by the petitioner's counsel that the Election Tribunal did not have the jurisdiction to pass order of recount unless conditions laid down in section 40 of the Sindh Local Government Elections Rules, 2000 are fulfilled. He has further submitted that even no prayer of the nature has been made by the respondents Nos.1 and 2 in the election petition, which could justify the order of recount and that too before leading evidence. He submitted that neither in the pleadings nor in the application under section 151, C.P.C. The four polling stations, for which the recount has been ordered, were mentioned, therefore, the order of the Returning Officer impugned in these proceedings was without lawful authority. Mr. Jhamat Jethanand has relied upon the case of Kanwar ljaz Ali v. Irshad Ali and 2 others reported in PLD 1986 SC 483 in support of his contentions.
8. ' As against this, the learned counsel appearing for the respondents Nos.1 and 2 submitted that the order impugned is not an order under Rule 78 of the Sindh Local Government Elections Rules, 2000.
9. The order impugned is interim order. He submitted that all the four polling stations find mention in the two applications made by both the parties. He further submitted that he has.Placed on record before the Election Tribunal that Form XV, which is consolidated statement of results, was tampered with by the election staff in connivance with the petitioners, He further submitted that there is no bar under the Sindh Local Government Elections Rules, 2000 which could restrain the Election Tribunal from passing an order of recount before recording of the evidence. He has relied upon the judgment of Iftikharuddin v. District Judge, Bahawalpur and others reported in 2002 SCM R 1523, judgment of Dr. Liaquat Ali and another v. District Returning Officer and others .Reported in 2002 SCM R 1632 and the judgment of Muhammad Asim Kurd alias Gailoo v. Nawabzada Mir Lashkari Khan Raisani and 11 others reported in" 1998 SCM R 1597.
10. ' We have heard the learned counsel and have perused. The record and the case-law cited by them.
11. ' In the case of Kanwar ljaz Ali (supra) the Honourable Supreme Court on distinguishable facts has held that unless the party discharges the burden by leading evidence, the tribunal cannot pass an order in regard to alleged corrupt practice. In the said judgment their Lordships have held that no evidence was produced by the parties which could authorize them for seeking an order of recount.
12. Even otherwise, the said judgment of the Honourable Supreme Court was passed in appeal against the judgment of the Election Tribunal. The said judgment on the facts is distinguishable and, therefore, has no applicability as far as the present proceedings are concerned. As far. As the judgment reported in 2002 SCM R 1523 is concerned, it is directly on point in issue. Their Lordships while interpreting rules 40(6) and 70 of the Sindh Local Government Elections Rules, 2000 have held that order of recount passed by the Election Tribunal is of interim nature. The Election Tribunal can pass such an order without recording any evidence. In election matters it will be entirely in the interests of justice and fairplay if each ballot-paper is scrutinized by the Election Tribunal in order to examine and verify as to whether the Presiding Officers of all the Polling Stations had correctly counted the ballot-papers or not.
13. In view of the above findings of the Honourable Supreme Court the order impugned being interim in nature could not be assailed by invoking the writ jurisdiction. The final order/judgment of the Election Tribunal has yet to be passed on the basis of the proposed recount, therefore, there is no infirmity in the impugned order. The impugned order is in consonance with the spirit of Election Laws, as recount would not prejudice either party. We, therefore, in view of the above ' reasoning have dismissed the petition in limine by our short order passed in Court.