MUHAMMAD ZULOARNAIN vs MUHAMMAD ANWAR And OTHER

ORDER

MUHAMMAD AFZAL LONE, J.--In the election petition filed under section 24 of the Punjab Local Government Ordinance 1979, by Muhammad Anwar respondent against the petitioner, challenging his election as Member District Council Gujrat, the learned Election Tribunal by its order dated 8-10- -1988 allowed the respondent's request to summon the record for recounting. This order was preceded by the recording of the respondent's statement in which he alluded to the alleged illegalities committed in recounting the votes polled by him. Five months after this order, the petitioner moved application annexure `E' before the Tribunal, praying grant of opportunity to lead evidence to rebut the respondent's statement aforesaid. This application was turned down by the Tribunal on 3-5-1989. It is under these circumstances that the petitioner has come to this Court under Article 199 of the Constitution.

2. We have heard the learned counsel. Two contentions were raised by him on behalf of the petitioner. His first submission was that the Tribunal proceeded merely on the basis of respondent's allegations and there was no material before it to order recounting. Reliance was placed on Kanwar Ijaz Ali v. Irshad Ali and others (PLD 1986 SC 483) to contend that recounting in law, can be resorted to only if the request is reasonable. His second point was rested on Rule 8 of the Election Petitions Rules 1979 which ordains that an election petition shall be tried as nearly as may be, in accordance with the procedure for trial of suits under C.P.C. In the submission of the learned counsel, in order to decide the controversy as to whether or not recounting was called for, the Tribunal should have formulated an issue regarding the number of votes received by each party and then disposed of the same after recording evidence.

3. We are not persuaded by these arguments. In the election petition as well as the respondent's statement there are positive allegations that during count, the votes credited to the respondent were less than actually polled by him and in this respect he also named the polling stations. This statement was subjected to cross-examination by the petitioner. While giving a direction for recounting what is required, is the satisfaction of the Tribunal that the request is reasonable. It is not necessary that the record before it should be replete with over-whelming evidence to support such a request. We, feel, that the statement of the respondent coupled with the averments in the election petition furnishes sufficient basis for recount.

4. As regards the other objection we are of the view that for disposing of the request for recounting, the formulation of an issue, on the rectitude of Rule 8, B is indeed too much. This is merely an enabling provision and does not warrant conversion of an election petition into the trial of a full- fledged suit. Looked at C from any angle the impugned orders do not suffer from any illegality much less jurisdictional defect to justify interference through judicial review. Dismissed in limine.