MUHAMMAD ARIF CHAUDHARY vs ELECTION TRIBUNAL and others
The petitioner sought leave to appeal against the judgment of the Lahore High Court dismissing his Constitution Petition, which challenged an order of the Election Tribunal (Additional District Judge) limiting a previously ordered recount of votes. The Election Tribunal had initially ordered a complete recount of votes from an electoral unit, but subsequently allowed an application by a respondent restricting the inspection and recount, excluding the ballot papers of the petitioner on the ground that no recrimination had been claimed in the written statement. The core legal question concerned whether the omission of a recrimination plea precludes the recounting or inspection of votes initially ordered. The Supreme Court observed that in pleading the correctness of the count, a petitioner could not simultaneously plead its incorrectness as the pleas would be mutually destructive and inconsistent, explaining the absence of a recrimination ground. Finding merit in examining the full implications of the matter, the Supreme Court granted leave to appeal.
- Whether an order for recounting of votes once passed can be subsequently limited or made conditional?
- Can a party plead the correctness of a count and simultaneously claim its incorrectness without seeking recrimination?
- Does the absence of a recrimination plea bar the inspection and recounting of ballot papers in an election petition?
' SHAFIUR RAHMAN, J.--The petitioner seeks leave to appeal against the judgment of Lahore High Court dated 5-11-1988 whereby the Constitution Petition filed by the petitioner was dismissed.
2. During the course of hearing of an Election Petition, the learned Additional District Judge passed an order on 24-5-1988 to the following effect:-- ' I hereby accept the applications and pass an order for recounting of votes from Electoral Unit No, 26 of Municipal Committee, Okara. Complete record including Election bags he summoned for 4- 6-1988. The parties are directed to appear personally before this Court on the next date of hearing."
3. When the recount in compliance with this Order was taking place, the respondent No,3 submitted an application objecting to total recount by reciting as hereunder:- "That the valid ballot papers of the petitioner cannot be inspected during re-counting because neither the respondent No,1 has taken this plea in his written statement nor he claimed recrimination. Reliance is placed on:- ' PLD 1975 J (sic) p. 41 and A 1 R 1964 (sic) p.
1200. So it will be useless to open the envelope containing the ballot papers of the petitioners.
' So it is respectfully prayed that the ballot papers of the petitioner should kindly not be inspected."
' This was contested. The learned Additional District Judge passed an order to the following effect on 10-7-1988:-- "The upshot of the above discussion is that the application filed by the applicant is accepted. Ballot paper of Rao Talib Ali will not be inspected. To come up on 17-7-1988 for remaining recounting of valid votes of Ch. Muhammad Arif respondent and also of invalid votes?
' The Constitution Petition against this order was dismissed. Hence this petition.
4. Ch. Khalilur Rahman, Advocate, the learned counsel for the petitioner contended that the order of the recounting had been passed leaving no scope for subsequently limiting it or making it conditional or partial. On merits it is also contended that it was a case of total recount, if at all recounting had to take place.
5. The learned counsel for the respondents on the other hand relied heavily on the pleadings to show that no recrimination application had been filed and no such ground taken which may justify the recounting of the votes obtained by the respondent.
6. In pleading the correctness of the count, the petitioner could not have possibly also pleaded incorrectness of the count. The two pleas would have been mutually destructive, inconsistent and untenable. That explains the absence of a ground in the form of recrimination to that effect.
7. In order to examine full implications of it, leave to appeal is granted. The matter be heard at an early date on the present record with liberty to the parties to file additional documents. Security in the sum of Rs,5,000. The interim order made on 5-1-1989 to continue.