MUHAMMAD TARIQ CHAUDHRY Versus KHALID AHMAD
SYED HAMID ALI SHAH, J.--- Election of Nazim and Naib Nazim of Union Council No.139, Green Town, Lahore were held on 28-5 2005. The petitioner and Shabbir Hussain were joint candidates, they were allocated basket as election symbol, while respondents Nos. 1 and 2 were rival joint candidates who were allotted symbol of hockey. Besides the aforesaid candidates; there were two other sets of candidates who are respondents Nos. 3 to 6. The petitioner and Shabbir Hussain, were declared returned candidates who secured 2925 votes as against respondents Nos. 1 and 2 who bagged 2283 votes. The return of the petitioner and Shabbir Hussain, was challenged through election petition, mainly on the ground that election result was changed, through tampering by incorporating illegal additions and deletions, in the count sheet.
2. Election petition was contested by -the petitioner and out of divergent pleadings of the parties, five issues were framed. Respective evidence of the parties was recorded and on conclusion of the trial, learned Tribunal vide order, dated 30-9-2006, accepted the election petition. The decision of the learned Election Tribunal was assailed in Writ Petition No. 10595 of 2006, which was allowed vide order, dated 19-12-2006, whereby the Tribunal was directed to summon record of disputed Polling Stations recount votes in presence of the parties or their Polling Agents and prepare the result afresh. Election Tribunal summoned the Polling Bags, pertaining to Polling Stations Nos. 5, 12, 18, 20 and 21. The petitioner made a request for adjournment on 16-1-2007 to engage a counsel.' Learned Tribunal took the exercise of recounting on 17-1-2007, in presence of the parties. The result was tabulated in the course of recount and in view whereof, respondents Nos. 1 and 2 secured 2364 votes, while the votes cast in favour of the petitioner and Shabbir Hussain were to 2349. Resultantly respondents Nos. 1 and 2 were declared returned candidates with a lead of 15 votes in place of the petitioner and Shabbir Hussain. Order of Tribunal, dated 17-1-2007, has been assailed in this petition.
3. Learned counsel for the petitioner has submitted that it is evident from order, dated 17-1-2007 of the Tribunal that Polling Bags of disputed Polling Stations, were not sealed. The only Polling Bag which was sealed pertained to Polling Station No.20, but the seal was not readable. It was also noted by the Tribunal that Ashtar Abbas, Returning Officer, his predecessor, has also made similar report. Learned counsel emphasized that recount of votes from the unsealed bags, could- not lead to authentic result. Having referred to Rules 57 and 58 of the Punjab Local Government Election Rule 2005. It was submitted that the Polling Bags were not sealed by Presiding and Returning Officer according to mandatory requirement of these rules. The votes in the bags which are neither sealed nor kept in the safe custody, according to above-referred rules, do not depict true picture and no result can validly be announced on the basis of defective record. Learned counsel supported his contention by placing reliance on the case of "Malik Muhammad Munawar Khan v. Election Tribunal District Judge, Lahore and 8 others" (1991 CLC 180). Learned counsel added that according to referred judgment, the recounting of votes was held to be .unsafe in respect of bags which were torn and unsealed. He went on to argue that learned Tribunal has erroneously undertaken the exercise of re-counting of votes from the bags which were unsealed. Learned Tribunal instead of adopting the right course of dismissal of the petition, preferred accounting of votes on defective and unauthentic material. Learned counsel further submitted that 36 valid votes in favour of the petitioner, were wrongly excluded by respondent No.7. Since there was no evidence on record to prove that the petitioner had manipulated the casting of votes in illegal manner, therefore, holding the petitioner responsible for such an act, is unjustified. He went further to submit that respondents Nos. 1 and 2 remained involved in manipulation and tampering with the record.
4. Learned counsel for respondents Nos. 1 and 2, on the other hand, has submitted that scope of writ petition is limited. Constitutional jurisdiction can be exercised in the matter where order/action impugned is wholly without jurisdiction, constitutional petition cannot be invoked to set aside an erroneous decision on facts or law. Learned counsel supported his contention by referring to the cases of "Badarul Haque Khan v. The Election Tribunal, Dacca and others" (PLD 1963 SC 704) and "Muhammad Hussain Munir and others v. Sikandar and others" (PLD 1974 SC 139). It was then contended that the case was remanded to the Election Tribunal for re-counting of votes at the disputed Polling Stations. The petitioner has not assailed the order of this Court before any other higher forum. The order has attained finality. Learned Tribunal has undertaken the exercise of re-counting of votes, in view of, the decision of this Court. The order of re-count is not open to any exception. Learned counsel has summed up his arguments by submitting that the petitioner is estoped by this conduct to raise objection on re-counting of ballots, as the petitioner has agreed to it and raised no objection when the recounting of votes, was ordered.
5. I have heard the learned counsel for the parties and perused the material available on the record.
6. It was observed by this Court in its order; dated 19-12-2006, in earlier petition (W.P. No. 10595 of 2006), that overall assessment of record shows that statements of count prepared by Presiding Officer and copies thereof provided to the agents of the candidates, were discrepant, which has materially affected the outcome of result. The Court in this background found that learned Tribunal ought to have undertaken the exercise of re-count of votes polled, during elections at the disputed Polling Stations. Specific direction was given to the Election Tribunal to prepare election result, afresh after re-count.
7. The impugned exercise of recounting of votes was carried out by the learned Tribunal, strictly in accordance with order, dated 19-12-2006 of this Court. Learned Tribunal has to proceed in the manner, as it was directed by this Court. There was neither any room, nor any justification to deviate from the course/manner which was suggested by this Court.
8. Admittedly, Polling Bags of the disputed Polling Stations, were not sealed according to Rule 57 of Rules, 2005. The possibility of tampering of record, if any stands negated by the conduct of the petitioner. Relevant part of order, dated 16-1-2007 needs mention here, which is re-produced below for ready reference:--
The case was then adjourned to 17-1-2007. The parties and their learned counsel present before the learned Tribunal, agreed for re-count and signed the margin of order sheet to that effect. It will be appropriate that this order may also be re-produced:--
9. Perusal of the above two orders brings me to conclude that the petitioner has agreed for re-counting of votes. Firstly, when he accepted the decision of this Court, dated 19-12-2006, by not assailing the same in any higher forum. Secondly, when the petitioner appeared before the Tribunal on 16-1-2007, agreed for re-counting and raised objection that this .exercise must be done in presence of his .counsel. Lastly on 17-1-2007, when the petitioner signed the order sheet in .due acceptance of process of recount of votes pertaining to disputed Polling Stations, from the election record summoned by the Returning Officer. The petitioner having agreed before the Election. Tribunal- for .recounting from election record, is now estopped by his conduct to turn around- and say that recounting of ballot papers from unsealed bags is unfair exercise.
10. Learned counsel has submitted that consent recorded on 17-1-2007, by the Returning Officer, was added subsequently by manipulation.. He went on to argue that no such statement was recorded by the petitioner. This argument of the petitioner is neither convincing nor there is any justification to accept such logic. Court record ,has the precedence over any other material to the contrary, unless strong and unimpeachable evidence is brought on the record in rebuttal. The case of Fayyaz Hussain v. Akbar Hussain and others" (2004 SCMR 964) can be referred in this respect wherein the apex Court has held, as under: --
"....Learned counsel attempted to persuade us, to accept the. affidavit of Ch. Muhammad Afzal Kahloon, Advocate over the judicial proceedings recorded in the Court of Additional District Judge in view of unfair reputation of the Presiding Officer but we are not inclined to adopt this course of action which may lead to a large number of legal complications. In any event this being an essentially a disputed question of fact could neither be resolved by the High Court nor by this Court in the exercise of extra-ordinary Constitutional jurisdiction. There is always a presumption of correctness in favour of juridical proceedings and credibility is attached to the proceedings before a judicial forum. Strong and unimpeachable evidence is required to rebut the presumption."
11. The petitioner has not moved against the Presiding Officer of learned Tribunal, for incorporating in order, dated 17-1-2007, unauthorized addition as to his consent, in his absence. So much so, no such allegation finds mention in the instant petition, in this respect. The petitioner is, therefore, bound by -his consent and cannot wriggle out of it, by merely saying that unauthorized additions were made in the order B sheet. Bar of estoppel can be applied to case of the petitioner with its vigor. The petitioner has no right to challenge re-count of votes from unsealed bags, when he has himself consented to it, at the time of recount before the learned Tribunal.
12. For the foregoing, I see no merit in this writ petition, which is accordingly dismissed with no orders as to costs.
M.H./M-426/L Petition dismissed.