Nadir Khan Vs Munir Hussain Shah

BENCH ABBOTTABAjy.

Nadir Rhan 'Tehsil Councilor Son Muhammad Zahoor Kha.n, resident of Pa.iran presently, Lunda, House Mohallah Lower Jabri Tehsil & District Maxisehra Petitioner

Versus

Munir Hussain Shah Son of Ashiq Hussajn Shah, Resident of Village Parian, Tehsil and District Mansehra. Provincial Election Commissioner, KPK Peshawar.

District Election Commissioner, Mansehra.

District Returning Officer/Deputy Commissioner, Mansh.era.

Returning Officer for Ward, Union Council Parian/ District officer soil Conservation Mansehra.

Presiding Officer Polling Station No. 12, Government Middle School Janglan (Combined) Ahmed Saeed, SST,. Government High School Attar Shisha, Mansehra.

7)Presiding Officer, Polling Station, No 25, government Girls Primary School Reerh (Female), Amina, Sabeen, Assistant Professor, Government Girls to Degree College No. 1, Mansehra. A4ai( X 8) Malilc Muhammad Shahbaz Son of Abdul Razzaq, Resident of Reerh, Tehsil & District Mansehra. Additional district & Sessions Judge, Balakot District Mansehra/ Presiding Officer, Election Tribunal for Ward Union Council Parian, Tehsil and District Mansehra . .........Respondents

Judgment Sheet

IN THE PESHA WAR HIGH COURT,

ABBOTTABAD BENCH.

JUDiCIAL DEPA1?TMENT

W.P.No.368-A/201 7.

JIIOGMENT

Date of hearing......10.7.2017..........................................................

Petitioner ("42044 LiSa) 443 ...—'... ... Respondent fr/Unit Mza'.at.

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SYED ARSHAD AL!, J:- Through the instant writ petition, the petitioner has called in question the order of Additional District Judge, Balakot Acting as Election Tribunal for District Mansehra ("Tribunal"). The learned Tribunal has partially accepted the application of respondent No.1, for recounting of votes and accordingly Returning Officer concerned was directed to produce entire election record including election bags, ballot opy to papers, counter tiles before the Tribunal for the purpose or recounting and scrutiny of rejected votes.

_r t -- 2. Brief and relevant facts of the case are that ,rktd U

the petitioner and two others namely Munir Flussain Shah, respondent No.1 and Malik Muhammad Shabaz respondent No.8 contested election for Tehsil Ward Parian. According to the official result petitioner was declared successful candidate by securing 3728 votes

whereas Munir I- Iussain Shah, respondent No.1 was

runner up and secured 3714 votes, thus losing the election by a narrow margin of 14 votes.

3.The runner_up candidate feeling dissatisfied with the manner and mode of election process filed election petition before the Tribunal, wherein various allegations of Corrupt and corrupt practices were levelled against the returned candidate On 03.4.2016, Munir Hussain Shah

respondent No.1 filed an application for recounting of votes, ballot papers and opening of election bags. The petitioner contested the application and filed reply to the said application. Howevei- arguments on the said application could not be addressed due to pendency of other applications filed by the petitioner- for summary Wed to be True C EXAM(NER / dismissal of the election petition. Meanwhile, the 2 Ii SEflk statements of six witnesses appearing in Support of Bench 7 respondents recorded their statements The precise allegations in the election petition, as well as the applicai for recount relating to the Polling at GGMS Janglan combined polling station was, that respondent 110 .1 secured 357 votes whereas the returned candidate,

petitioner, had secured 235 votes and the result wag annoInced at the end of count, howevet- presiding officer

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had illegally added/counted 22 further votes in favour of the petitioner, returned candidate. To this effect the aftidavit of Zahid Iqbal, presiding officer of the aforesaid polling station, was placed on record whereby he not only confirmed the allegations of respondent No.!, Munir l-Iussairi Shah, but also stated that 48 votes were missing.

During the trial before the Tribunal the said Zahid 1-lussain appeared as PW-6. In his statement he has reiterated the aforesaid facts and was also thoroughly cross examined. The learned Tribunal vide order dated 03.4.2017 partially allowed the application of respondent No.1 and the returning officer concerned was directed to produce entire election record including election bags, ballot papers, counter tiles before the Tribunal for the purpose of recounting and scrutiny of rejected votes.

5.The learned counsel appearing on behalf of 1 the petitioner submitted that there is no provision either in Khyber Paklitunkhwa Local Government Act, 2013 ("2013 Act") or in Local Government Election Rules ("Rules") empowering the Tribunal to order recount of the votes. He has further submitted that Tribunal has decided the application in haste and has only relied upon xi partial evidence of the respondents and has notgiven opportunity to the petitioner to rebut the evidence

produced by the respondents. He relied on case of Zaliid mba! Vs. Haflz Muhammad Adnan and others (2016

SCMR 430).

2.. On the other hand, learned counsel for the respondents has vehemently controverted the arguments of learned counsel for the petitioner and stated that Tribunal has inherent jurisdiction to order recounting of ballot papers in appropriate case, despite the fact that the same has not been provided in the Rules. In support of his contention he placed reliance on Mithaninmil Naeem Kasi and another Vs. A hi/it! La/if one! 7 others (2005 SCMR 1699), Nasvah IC/ian and others Vs.

Qanraruddin and others (1999 SCMR 299) and Mon/a Jinx Vs. Mulianungu! RaJ,im (2003 CLC 310). The learned counsel rurther submitted that writ petition is otherwise not maintainable as the order impugned is

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interlocutoiy in nature. In support of his contention the nch worthy counsel sought reliance upon Ha/k Mien;

Mu/i eunnuad Riaz and another Vs. Election Tribunal for tin/on Council No.54 and sfr others (2007 CLC 860).

Arguments heard and record perused.

9.Although there is no speci lie provision in the Rules allowing the Tribunal to order for recount of the votes, however, the Rules do not debar the Tribunal

to carry out recounting of votes. In case of t'Jawab K/ian.

cci:pra, the august Supreme Court of Pakistan, while deciding a similar issue wherein the Tribunal had ordered recounting of votes that too in absence of the rival party, has laid down;

"After hearing the learned counsel for the parties and perusing the record, we are inclined to hold that the learned Tribunal should not have proceeded cx parte against the private respondents in the facts and circumstances of the case. There is, however, no cavil with the legal proposition enunciated in the case-law cited at the bar that in appropriate cases recounting of ballot papers can be ordered by the Tribunal. However, the (liscretion vested in the Tribunal for ordering recounting is subject to such conditions as it may consider expedient depending on the facts of each case. The discretion in such cases must not be exercised arbitrarily but justly, fairly and in conformity with the well- established rules lard down by the superior Courts. Although there is no ci to be Tru Co specific provision either in the Ordinance

EXAMNER

or in the Punjab Local Councils (Election '3- Petitions) Rules, 1979, for recounting of

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votes by the Tribunal, nevertheless, the Pcsh&x gh C.o eench Tribunal is not debarred from recounting of votes in appropriate cases tinder the scheme envisaged by the Pu njab Local Cou neils (Election Petitions) Rules, 1979 and the powers vested in the Tribunal to decide the appeal tinder section 24 of the Ordinance read with the Rules made therein."

10.This view was affirmed in Muizummad Naeein Kasi case (supra) in the lollowing words;

"%Ve have heard the learned counsel for the parties at length and perused the record with their assistance. The procedure for decision of election petition is provided in Chapter X of the Balochistan Local Government Election Rules, 2000 and the examination of rules contained in this Chapter would suggest that in absence of any prohibition contained therein, the Tribunal is not debarred to carry out recounting of votes without framing of issues and recording of evidence and if in the light of result of recounting of the votes.

Tribunal considers it not necessary to proceed further, can conveniently dispose of the election petition forthwith."

Furthermore, the aforesaid ratio was followed in Moula Bux case (supra), ffgfiz lilian Muban7nyl( RhIZ case (supr and Sardar Msihan,,i,au/ !-Inssai,j lilian Vs. Dr.

Najeeb Nap! Kit ((U and 12 others (2017 MLD ii. Hence, the consistent view of' the superior Courts o' this country is that despite the absence of specific provision empowering the Tribunal to order recount, the Tribunal has the jurisdiction to order recount ballot papers in appropriate cases. The case of Zabid Thbal j'siipr referred by the learned counsel for petitioner is distinguishable. In that case before the august Supreme Court the issue was as to whether the disqualification provided in the Constitution by

implication can be invoked which has not been provided under the provision of Punjab Local Government Act, 2013. In the aforesaid case, the Apex Court was dealing with a substantive penal provision for disqualifying a candidate and thus the ratio laid down by the august Supreme Court is in applicable to the present issue.

12.However, the moot and basic point for determination before this Court is whether under the facts and circumstances of this case, there was sufficient material before the learned Tribunal to order recount. We deem it appropriate to first dilate upon the parameters set by superior Courts of this country as well as that of. India structuring the discretion of the Tribunal/Court ordering recount of ballot paper. The august Supreme Court of Pakistan in Jan, Madat/ A/i Mc. Asghar A/i Junaju (2016 SCMR 251) thoroughly discussing the ratio enunciated in various cases of august Supreme Court more particularly the cases of Kainvar Ejaz A/i Vs. Irs/,adA/j am! 2 others (PU) 1986 Supreme Court 483) and Sari/ar Abduf Hafeez Vs Sari/ar .Mptham,nad Tithir K/nv, LoaF and 13 of/jets (1999 SCMR 284) and a famous case from the Indian jurisdiction Bind,!,! Vs.

/ S/wv Go rind and others (AIR 1975 SC 2117) has held in Para 9 of the judgment that;

"The purpose of a recount in in election dispute is to verify and determine the authenticity and truthfulness of the allegations on the basis whereof the election result is challenged, however, in order to secure the sanctity of the election result and with a view not to encourage the loosing candidates to attempt to frustrate the will of the people as expressed through the election and also in order to avoid creating an incentive for the loosing candidates to in any way, indulge in post poll tampering or manipulation of the election record, a Conscious effort is to be macIc that it is only in the circumstances which clearly justify, rather demand a recount, that the recount is allowed. As to what should be the criteria or the essential pre-requisites for satisfying the conscience of the Court for permitting a recount, perusal of the case law laying (town our jurisprudential principles in this regard, would show that the minimum criteria is that there should be specific allegation of tampering, ma nipulation and maneuvering in very clear terms along with the necessary details and prima facie material supporting such allegations. It should also be kept in minti that secrecy of the ballot should not be violated on the basis of frivolous, vague and totally unfounded allegations and that the primary object should be to do full justice in the matter. l'he learned Triljti nal should also be mindful that the discretion to exercise power of recount may not be exploited for a roving inquiry to fish out material for reversing the election or for declaring it void andthus it should be seen that as to whether in view of the statement of material Ihct, and the material llaced /11 before the Tribunal the request is Mr and reasonable or not."

Further in para 13 of the judgment (supra) the guidelines for the Court/Tribunal allowing recounting of ballot

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papers as laid down by the Supreme Court of India in case of B/nih! (supra) were reaffirmed and reproduced as

following;

"IS. Thus on a close and careftil consideration of the various authorities of this Court from time to time it is mani lest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers:

(I)That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations:

That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material Iuicts:

The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations macic for a recount;

That the Court mtist come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do ftill justice between the parties:

That the discretion conferred on the Court should not be exercised in such a way so as to enable e 'True the applicant to indulge in a roving inqtuiy with a red view to fish materials for declaring the election to be void; and 2€S 2m1 % That on the special facts or a given case sample inspection may be ordered to lend further assurance to the prima facie satistuiction of the Court regarding the truth of the allegations macIc for a recount, and not for the purpose of finishing out niaterials."

13.In the present case the respondent in his election petition in Para "oa" has alleged that after count the result was orally announced wherein the respondent

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No.1 secured 357 votes whereas the returned candidate,

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petitioner, had secured 235 votes. Later, the presiding officer manipulated the said result and has shown the petitioner to have obtained 257 votes. In support of the said allegations, the petitioner has placed on file the affidavit of Zahid lqbal who was the polling officer of polling station GGPS, Janglan combined. The said polling officer had confirmed the allegations of the petitioner in his affidavit and then while appearing as PW-6 reaffirmed his statement as given in the affidavit.

He also !bced lengthy cross examination, however, his testimony to this effect remained un-shattered. The Tribunal also considered the affidavits of village councilors .Javed Iqbal, Muhammad Liaqat, Liaqat All and Muhammad Babar who reaffirmed the contents of the affidavit of Zahid lqbal while appearing as PWs before the Tribunal. Hence, we hold that there was d to " - / sufficient material available before the learned Tribunal at the time of passing the impugned order allowing Sc:

recount only of votes cast at polling station, GOMS, Janglan combined. Therefore, the impugned order of the learned • Tribunal is neither suffering from any legal infirmity nor are the reasons that prevailed before the / Tribunal conflicting to the parameter/guidelines set forth

by the superior Courts for ordering recount of ballet papers.

15.Before palling with the judgment we hold that since an order for recounting touches upon the secrecy of ballot, therefore, the recounting should take scrupulously without detracting from the secrecy of the ballot, and finally it should never be ignored that the inspection of counter foils should be resorted to only when the same is required.

IS. With these observations the instant wit petition is dismissed.

A;ii,ouncec/. JUDGE

Afiab/*

JUDGE

I1ed to be True Coj EXAMpp

PesI1;1 :3CflctI