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Petitioner: Punjab JULIUS SALIK VS Respondent: RETURNING OFFICER and others
Court Name: Lahore High Court Judge(s): Muhammad Ilyas Title: Punjab JULIUS SALIK vs RETURNING OFFICER and others Case No.: Election Petitions Nos. 40 and 38 of 1988 Date of Judgment:1990-06-20 Reported As: 1991 MLD 589 Result: Petitions accepted
Judgment ORDER ' This order shall dispose of the election petition in hand, namely, Election Petition No, 40 of 1988 as well as Election Petition No, 38 of 1988. 2. Election Petition No, 40 of 1988 has been filed by Julius Salik. Petitioner in the other election petition (Election Petition No, 38 of 1988) is Lt.-Col. (Retd.) W. Herbert, who is respondent No, 11 in the election petition of Julius Salik. They contested election to four seats in the National Assembly which are reserved for Christians under clause (2-A) of Article 51 of the Constitution. They were, however, defeated and the said four seats were won by the following gentlemen, who contested election with the petitioners and several others:- (i) Father Rufin Julius (ii) George Clement (iii) Peter John Sahotra (iv) Capt. (Retd.) Sanaullah 3. It was stated by Lt.-Col. (Retd.) W. Herbert, who has made Election Petition No, 38 of 1988, that initially he was declared to be elected, with 15,920 votes, by the Pakistan Election Commission, on the Pakistan Television and the Radio Pakistan, on 19th November, 1988, against one of the Christian seats, by placing him at No, 3 and Peter John Sahotra (respondent No, 9) at No, 4, for his having secured 15,796 votes but subsequently in the Gazette Notification, dated the 26th November, 1988, to his utter surprise, he was placed at No, 5 with 15,449 votes and Peter John Sahotra was shown at No, 4 with 15,465 votes. 4. It was also averred by Lt.-Col. (Retd.) W. Herbert that there were discrepancies in the record of votes supplied by the Provincial Election Commissioner, Sindh, to the Chief Election Commissioner
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and, therefore, on 30th November, 1988, he made a complaint to the Chief Election Commissioner, in this regard. The Chief Election Commissioner "directed all the Provincial Election Commissioners for making a re-examination of the arithmetical calculation of the number of votes secured by all the candidates overall in each Province". On this, the Provincial Election Commissioners of Sindh and Punjab examined the records, and found and confirmed arithmetical errors whereupon they submitted a revised chart/summary of the votes secured by the candidates. According to Lt.-Col. (Retd.) W. Herbert, no discrepancies were reported by the Provincial Election Commissioners of N.- W.F.P. And Balochistan. It was further submitted by Lt.-Col. (Retd.) W. Herbert that the record clearly showed that he had secured 2,811 votes from Sindh as against 1,035 shown in the initial chart/summary, and 14,377 votes from Punjab as against 14,208 shown earlier. As for Peter John Sahotra, it was pointed out by Lt.-Col. (Retd.) W. Herbert that, from Sindh, the former secured 393 votes as against 520 shown in the earlier result chart. It was added by him that in view of the correct figure of votes secured from Sindh and Punjab he had obtained a total number of 17,395 votes in the aggregate, thus securing 2,042 votes more than Peter John Sahotra (respondent No, 9). Lt.-Col. (Retd.) W. Herbert disclosed that he filed an application before the Chief Election Commissioners of Pakistan requesting for the notification of his success, in the light of the revised calculations, whereupon the Chief Election Commissioners summoned him and Peter John Sahotra and, after hearing them decided that he may file an election petition. Lt.-Col. (Retd.) W. Herbert, therefore, pleaded that in view of the aforementioned facts the declaration of Peter John Sahotra as successful candidate was void on the ground that the results were wrongly calculated and submitted by the Provincial Election Commissioners of Punjab and Sindh to the Chief Election Commissioners. He, accordingly, prayed that the election of Peter John Sahotra be declared as null and void, that a new notification of the revised results be issued by the Election Commissioner of Pakistan, and the petitioner be declared as an elected member of the National Assembly for one of the Christian seats in place of Peter John Sahotra (respondent No, 9). 5. Similarly, Julius Salik, who has filed Election Petition No, 40 of 1988, complained of incorrect compilation of statements in the Provinces of Punjab and Sindh. According to him, in fact, he secured 15,904 votes whereas Peter John Sahotra (respondent No, 9) and Capt. (Retd.) Sanaullah (respondent No, 22) got 15,352 and 15,889 votes respectively. He, therefore, prayed that since he obtained more votes than both of them, the Election Commission may declare the result of Peter John Sahotra and Capt. (Retd.) Sanaullah as null and void, and that a fresh notification be issued on the basis of the revised results declaring him as an elected member of the National Assembly for one of the Christian seats in place of the aforesaid two respondents. 6. Although there are as many as 28 respondents in each election petition yet the petitions were contested, before me, by Ilyas Khan, Peter John Sahotra and Capt. (Retd.) Sanaullah only. Ilyas Khan, Peter John Sahotra and Capt. (Retd.) Sanaullah are respondents Nos. 2, 9 and 22 respectively in the election petition of Julius Salik. Ilyas Khan did not file written statement in either of the election petitions. Robin Masih, who is respondent No, 17 in the election petition of Lt.-Col. (Retd.) W. Herbert (Election Petition No, 38 of 1988) submitted written statement in that election petition stating that he did not want to participate in proceedings relating to the said election petition. Returning Officer, who is respondent No, 1 in each election petition, filed written statements in both the election petitions. He was represented by an official of the Election Commission. On the last date of hearing, Provincial Election Commissioner, Punjab, appeared on behalf of respondent No, 1. 7. Respondents other than the Returning Officer, Ilyas Khan, Peter John Sahotra and Capt. (Retd.) Sanaullah were proceeded against ex parte througout the period for which I was seized of the matter. 8. Initially, the election petitions were entrusted to Mr. Justice Rustam S. Sidhwa for trial and disposal. He was then an Honourable Judge of the Lahore High Court and has since been elevated
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to the Supreme Court. 9. Peter John Sahotra and Capt. (Retd.) Sanaullah, who really contested the election petitions, raised certain legal objections which were reproduced by Mr. Justice Rustam S. Sidhwa as under:-- "(1) That on the basis of the averments made in the petitions, no case whatsoever is made out under section 68 of the Representation of the People Act, LXXXV of 1976, and that section 69 of the said Act is only attracted if the election is held to be void on any of the grounds mentioned in section 68 and that since no allegation whatsoever has been made by the petitioners within the meaning of section 68, the petitions are liable to be dismissed for want of any cause of action. In this connection, it is submitted that sections 68, 69 and 70 of the Act, LXXXV of 1976 have to be read together and unless the election of a returned candidate can be declared void under section 68, sections 69 and 70 are not attracted. (2) That there exists no provision of law either in the Representation of the People Act, 1976, or in the Representation of the People (Conduct of Elections) Rules, 1977, for a recount of votes in respect of elections to the non-Muslims seats, after the results have been finally compiled and consolidated. In this connection it is submitted that under section 47-A(3) of the Act, election to seats reserved for non-Muslims have to be held and conducted by the Commission in a separate manner, as may be prescribed by it, and that under section 47-A (4) of the Act, sections 18, 20 and 39 to 43 of Chapter IV of the Act are not applicable, though the other provisions of the Act apply to the election to the non-Muslim seats. It is submitted that since section 39 of the Act is excluded, which permits the Returning Officers to recount the ballot-papers upon the request of and challenge in writing made, by a contesting candidates or their election agents and if so directed by the Commission, it is submitted that the Election Tribunal is legally barred from conducting any form of exercise which would amount to a recounting of the votes. In this connection Harchand Rai v. Manga Ram and others 1986 CLC 985, Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784 and Sardar Gul Khitab v. Javaid Iqbal Abbasi and others 1988 CLC 945 have been cited. (3) That since section 47-A of the Representation of the People Act, 1976, which provides a separate procedure for election to seats reserved for non-Muslims, relates to a constituency which covers the whole country and since the petitioners have not claimed that the whole election should be declared void, therefore, the petitions are incompetent, as one or two respondents' elections alone cannot be held to be void, as they do not have any separate constituencies. It is submitted that since a provision like section 69 is not incorporated in Chapter V-A of the Representation of the People Act, 1976, relief cannot be granted by the Election Tribunal against one or more respondents, for it must be claimed against all. Since the two election petitions merely claim relief against only two returned respondents and not all the returned candidates, the petitions are incompetent and should be dismissed as non-maintainable. (4) That since one of the petitioners invoked, the jurisdiction of the Election Commission of Pakistan under section 103-AA of the Representation of the People Act, 1976, claiming recounting of the votes, but the Chief Election Commissioners, who had residuary powers refused to interfere, it is submitted that the Chief Election Commissioners has wider jurisdiction conferred on him than the Election Tribunal under the Act, the powers of the Election Tribunal are very much restricted and the Tribunal should not attempt to expand its jurisdiction. (5) That the annexures filed with the two election petitions have not been verified by the petitioners, as required by section 55(3) of the Representation of the People Act, 1976, and, therefore, the petitions deserve to be dismissed under section 63 thereof. Syed Niamat Shah v. Sabir Shah 1988 CLC 1906 has been cited in this respect." 10. Petitioners' submissions, in reply to the above legal objections, were spelt out by Mr. Justice Rustam S. Sidhwa as follows:--
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"(1) That section 69 of the Representation of the People Act, 1976, is totally independent of section 68 thereof and since both are intended to meet different situations, the present petitions are maintainable. (2) That the jurisdiction of the Election Tribunal to order a recount is unfettered and in appropriate cases can be, resorted to. In this connection, Haji Muhammad Ashgar v. Malik Shah Muhammad Awan and others PLD 1986 SC 542 at 547 is cited. In this connection it is also submitted that there is no discrimination in the Representation of the People Act, 1976, between Muslims and non- Muslims, where powers of the Tribunal are concerned to order a recount. (3) That since the petitioners have impleaded all the contesting candidates and have only claimed relief as against those returned candidates who would be displaced, if the rechecking of the votes is put into effect, the question of seeking a declaration against all the returned candidates that their election should be declared void, does not arise. (4) That the powers of the Election Tribunal in respect of ordering recount in appropriate cases has been recognised by the Supreme Court, in the case stated above, and, therefore, the 4th objection raised on behalf of the respondents has no meaning. (5) That as the petitioners in their election petitions have referred to the mistakes made by the Sindh and the Punjab Election Commissions in respect of votes secured by the two petitioners in those Provinces, which have been clearly set out in the petitions, the annexures filed by them with their petitions, which only go to support the averments made in the petitions, are only of an ancillary character and if they are not verified, the petitions do not merit summary dismissal. In this connection Mian Ghulam Dastgir Bari v. Rai Salahuddin & others 1986 CLC 2499 has been cited." 11. After hearing arguments, all the legal objections were repelled by Mr. Justice Rustam S. Sidhwa, vide his order, dated the 13th June, 1989, recorded in Election Petition No, 38 of 1988 and announced on 20th June, 1989. 12. It was then prayed by one of the petitioners, namely, Lt.-Col. (Retd.) W. Herbert that "a Committee of two officers of the Pakistan Election Commission be appointed to recheck the consolidated statements of the votes cast in favour of the various candidates in the Provinces of Sindh and Balochistan, by tallying it with the certificates of votes given by the respective Presiding Officers of Polling Stations situated in the said two provinces and thereafter a final compilation be made to determine the votes cast in favour of the various candidates on an all Pakistan basis". He further prayed that the said re-examination and compilation be conducted by the members of the Committee, in the presence of the parties and/or their counsel. His suggestion was not opposed by the other petitioner, namely, Julius Salik and Mr. Nasir Mahmood Khokhar (respondent No, 25). Ch. Muhammad Ashraf, Advocate, learned counsel for Peter John Sahotra (respondent No, 9) submitted that he had no instructions on this particular matter. There was none to represent Capt. (Retd.) Sanaullah. On this, Mr. Justice Rustam S. Sidhwa, vide his order dated the 20th June, 1989 (appearing in Election Petition No, 38 of 1988) appointed a Committee with Mr. Hassan Muhammad, Joint Secretary (Admn.), Election Commission of Pakistan, as its Chairman and Ch. Bashir Ahmad, Deputy Secretary, Election Commission of Pakistan, as member of the Committee, for the purpose. His precise order in this regard reads as follows:-- "The dispute in this case merely relates to the consolidated statements of the votes submitted by the Sindh Election Commission and the Punjab Election Commission to the Election Commission of Pakistan for the four Christian National Assembly seats. According to the petitioner, it is submitted that these two consolidated statements contained mistakes, as their totals did not tally against the certificates of votes issued to the Polling Agents of the petitioner by the Presiding Officers of the various Polling Stations in Sindh and Punjab respectively. In view of this position, I hereby appoint a Committee of two officers to be headed by Mr. Hassan Muhammad, Joint Sercretary (Admn.)/Returning Officer for election to seats reserved for non-Muslims in the National Assembly,
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and Ch. Bashir Ahmad, Deputy Secretary, Election Commission of Pakistan, as the second member, to prepare a full and final consolidated statement of the result of the count of votes furnished by the Returning Officers of the various constituencies in respect of each of the two provinces of Punjab and Sindh, on the basis of certificates of votes issued to the Polling Agents of the various candidates by the Presiding Officers of the various Polling Officers Stations in each of the said two provinces. Thereafter, the Committee shall prepare the final consolidated statement of the votes secured by the various candidates on an all Pakistan basis in all the four provinces. The said rechecking shall be conducted and compilations made by the Members of the Committee in the presence of Lt.-Col. (Retd.) W. Herbert, petitioner, and the four contesting respondents, Peter John Sahotra, Capt. (Retd.) Sanaullah, Julius Salik and Nasir Mahmood Khokhar and/or their legal counsel. The said consolidated statements with regard to each of the two provinces and the consolidated statement with regard to the whole of Pakistan shall be submitted by the Committee, with its report, to this Tribunal, or its successor, by or before the next date of hearing. The report of the National Assembly till the disposal of his election petition. This petition for stay order was made by him when a no-confidence motion was tabled against the Prime Minister of Pakistan. His prayer was, however, disallowed by me, vide order, dated the 29th October, 1989. Mainstay of Julius Salik in this regard was that according to the said report of the Committee, Capt. (Retd.) Sanaullah and Peter John Sahotra could not be treated as members of the National Assembly. While withholding the stay order, it was pointed out by me that the report of the Committee was not complete in the sense that the Committee wanted to examine some record, with the permission of this Tribunal, before giving a definite verdict. 15. After the stay order was disallowed, election petitions came up before me on 10th January, 1990, when it was felt that the report of the Committee was deficient in contents and there were also three pending miscellaneous petitions made by Julius Salik for summoning of some record, etc., with a view to supporting his view point. After some discussion, the Committee was asked to give a fresh report by examining the record which was desired to be seen by it. The Committee was also directed to take care of the miscellaneous petitions made by Julius Salik. This order, which was made with the consent of all those present, on 10th January, 1990, runs as follows:- "As pointed out by me, in my order, dated 29th October, 1989, with regard to the petitioner's prayer for stay order restraining respondents Nos. 9 and 22 from acting as members of the National Assembly, the Committee appointed by my learned predecessor, R.S. Sidhwa, J., as he then was, wanted to examine some record with a view to making proper checking of the votes. In view of their repeated remarks in this regard, it appears that they were not able to make due checking, perhaps due to the paucity of time allowed to them for the purpose. Now, by means of three separate applications, the petitioner has asked for certain records with a view to establishing his point of view. As indicated by me in the aforementioned order, looking at the remarks of the Committee reproduced therein, this report is lacking in several respects and this has also been admitted by the petitioner. All those present agree that the Committee should submit a complete report, to assist this Court in reaching the correct conclusion, by examining all the record to which reference has been made in its report. Such a course would also obviate the necessity of remand of the matter by the Supreme Court, if it is taken to that august Court by any of the parties, after its disposal by me. Reexamination of the matter is also likely to take care of three miscellaneous applications submitted by the petitioner for summoning of the record because the parties and/or their counsel would be before the Committee at the time of further action by it in pursuance of the order of my learned predecessor. With the agreement of all those present I, therefore, direct that fresh report shall be re-submitted by the Committee after checking of the record in the light of the above observations. Needless to say that the Committee shall hear the parties and/or their counsel during the course of conduct of further inquiry in It the matter.
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16. The Committee then submitted its second report, dated the 10th February,1990.According to this report, position of six highest scoring candidates, on an all Pakistan, basis was as under:-- (1) Father Ruffin Julius 55,618 (2) George Clement 25,234 (3) Lt.-Col. (Retd.) W. Herbert 17,374 (4) Julius Salik 16,551 (5) Peter John Sahotra 16,364 (6) Capt. (Retd.) Sanaullah 15,887 ' This result is recorded in Annexure 'S' to the second report in which votes obtained by respondent No, 2, Ilyas Khan are shown as 2,074. Parties were allowed to file objections, if any, to the second report of the Committee. Such objections were put in by Peter John Sahotra (respondent No, 9) and Capt. (Retd.) Sanaullah (respondent No, 22) only. 17. No evidence was produced by any of the parties. 18. On 25th April, 1990, Mr. Bashir Ahmad Ansari, Advocate, learned counsel for Peter John Sahotra, concluded his arguments and as the time was over, the matter was adjourned for remaining arguments. On 6th May, 1990, when the case again came up for arguments, Capt. (Retd.) Sanaullah made an application which was accompanied by as many as 43 statements of the count in Form XIV (certificates alleged to have been issued to his Polling Agents by Presiding Officers of certain Polling Stations), hereinafter referred to as Forms. He prayed that the said Forms may be taken into consideration while deciding the matter. Out of these Forms two related to the Province of the Punjab and remaining forty-one were in respect of the Province of Sindh. His petition was opposed by learned counsel for the petitioners on the ground that it was a belated attempt to prolong the proceedings. Subject to this objection, however, they agreed to the examination of the said Forms by the Committee. After scrutiny of the above Forms, the Committee submitted a supplementary report on 14th May, 1990. In the supplementary report, which is, in a way, the third and last report of the Committee, final result of count, on an all Pakistan basis, was recorded as under:-- 19. (1) Lt.-Col. (Retd.) W. Herbert 17,376 20. (2) Julius Salik 16,551 21. (3) Peter John Sahotra 16,357 22. (4) Capt. (Retd.) Sanaullah 15,898 19. Thereafter, the matter was argued at considerable length by Ch. Muhammad Ashraf, learned counsel for Capt. (Retd.) Sanaullah. Mr. Muhammad Hanif Zahid, learned counsel for respondent No, 2, endorsed his arguments. Mr. Bashir Ahmad Ansari presented further arguments with reference to the supplementary report of the Committee and other matters. In the end, arguments were advanced by Mr. Abid Hussain Minto, learned counsel for Lt.-Col. (Retd.) W. Herbert, and Mr. Ahmer Bilal Soofi, learned counsel for Julius Salik. Mr. Muhammad Rashid was also heard on behalf of the Returning Officer, who is the first respondent in each petition. 20. When arguments were thus concluded on 29th May, 1990, the order was reserved. 21. I had partly recorded the order when it was reported in a section of the Press that Capt. (Retd.) Sanaullah had expired. I, therefore, thought of confirming the news-item in this behalf and also hearing parties with regard to the effect of his death on the two petitions. For this purpose, the petitions were fixed for 4th June, 1990. It was confirmed by all those present that Capt. (Retd.) Sanaullah had breathed his last. They also made submissions with regard to the effect of his death on the election petitions in hand. The order was then again reserved. 22. Before proceeding further, I would like to examine impact of the death of Capt. (Retd.) Sanaullah on the election petitions under examination. In this connection, it was submitted by Mr. Ahmer Bilal Soofi, learned counsel for Julius Salik petitioner, that the two petitions could be decided
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by this Tribunal, on merits, despite the death of Capt. (Retd.) Sanaullah, who was one of the several respondents herein. He placed reliance on section 75 of the Representation of the People Act, 1976, which reads as follows:-- "75. Death or withdrawal of respondent.---If, before the conclusion of the trial of an election petition, a respondent dies or gives notice in the prescribed form that he does not intend to contest the petition, and no respondent remains to contest the petition, the Tribunal shall, without any further hearing, or after giving such person as it may think fit an opportunity of being heard, decide the case ex parte." 23. Mr. Abid Hussain Minto, learned counsel for the other petitioner, Lt.-Col. (Retd.) W. Herbert, supported the plea of Mr. Ahmer Bilal Soofi. He also invited my attention to section 74 of the Representation of the People Act which provides that in the event of the death of the petitioner, the election petition would abate. Section 74 is to the following effect:-- "74. :Abatement on death of petitioner.---(1) An election petition shall abate on the death of a sole petitioner or of the sole survivor of several petitioners. (2) Where a petition abates under subsection (1) after a Tribunal has been appointed, notice of the abatement shall be given by the Tribunal to the Commissioner." ' Argument of Mr. Abid Hassan Minto was that section 74 is the only provision relating to abatement of an election petition and, therefore, it could not be contented that an election petition would also abate on…
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