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Petitioner: MUHAMMAD ARIF CHAUDHARY VS Respondent: ELECTION TRIBUNAL and others
Court Name: Supreme Court of Pakistan Judge(s): Ali Hussain Qazilbash, Shafi-ur-Rehman Title: MUHAMMAD ARIF CHAUDHARY vs ELECTION TRIBUNAL and others Case No.: Civil Petition for Leave to Appeal No, 22 of 1989 Date of Judgment:1989-06-17 Reported As: 1990 SCMR 547 Result: Leave granted
JUDGMENT
JUDGMENT ' 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.
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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.