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Petitioner: HAKIM ALI BHATTI VS Respondent: Qazi ABDUL HAKIM And OTHER
Court Name: Election Tribunal Judge(s): Haider Ali Pirzada Title: HAKIM ALI BHATTI vs Qazi ABDUL HAKIM And OTHER Case No.: Election Petition in Re: PP-99 Lahore VI Date of Judgment:1985-06-28 Reported As: 1986 CLC 1784 Result: petition dismissed
JUDGMENT
JUDGMENT The petitioner and respondents 1 to 6 had contested the election for a seat in the Provincial Assembly (Punjab), from Constituency No.PP-99, Lahore VI. The polling took place on 28th February, 1985. According to the result, the final count showed the first respondent had secured 16,276 votes as against 15,012 votes of the petitioner. The second respondent to the sixth respondent had secured 1,993; 957; 134; 1277 and 303 votes, respectively. The election has been challenged under section 52 of the Representation of the People's Act, 1976, on the ground that mistakes in counting were made by most of the Presiding Officers. The first respondent and his election agents and supporters have committed corrupt and illegal practices resulting in procuring his -lection as a returned candidate. The persons other than the electors were issued the ballot-papers. His application for recount was dismissed by the Returning Officer holding that "The Returning Officer has not to recount all the votes unless he is directed by the competent authority." This petition is opposed by the first respondent. He filed the written statement and denied the various allegations made in the petition. For the purpose of deciding the petition. I framed the following issues: (1) Whether the petition has been filed with mala fide intentions? If so, with what effect? O. P . R . (2) Whether in view of preliminary objections 2 and 3, the petitionmerits rejection? (3) Whether the Returning Officer did not enjoy the power to recount the votes? (4) Whether the votes were counted properly and in accordance with law? (5) Whether the contesting respondent, his agent and supporters are guilty of illegal and corrupt practices? If so what is it effect?
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(6) Whether the petitioner's symbol is not properly printed on the ballot-papers? If so with what effect? (7) Whether the inclusion of the voters enlisted from Serial No. 15227 to 16313 (Female) and 17921 to 19201 (Male) on the electoral roll for constituency in question is illegal and if so with what effect? Issues Nos. 1 and 2.-- The first respondent did not press. Issue No. 3.-- Whether the Returning Officer did not enjoy the power to recount? Mr. Chouhan, the learned counsel for the petitioner has contended that the Returning Officer cannot undertake the recount himself but can only do so after seeking direction from the Commission. Mr. Nisar Ahmed, learned counsel for the respondent No. 1 .Has submitted that the Returning Officer can recount the ballot-papers without seeking any direction from the Commission. The powers of the Returning Officer are set out in subsection (6) of section 39 of the Representation of the People's Act, 1976 (hereinafter called the said Act). Subsection (6) reads as under:- "(6) The Returning Officer may recount the ballot-papers:- (a) upon the request of, or challenge in writing made by, a contesting candidate or his election agent, if the Returning Officer is satisfied that the request or the challenge is reasonable; or (b) if so directed by the Commission, in which case their count shall be held in such manner and at such place as may be directed by the Commission." On plain reading of lanbuage of subsection (6) a recount must be carried out by the Returning Officer if he is directed to do so by the Commission in which case the recount shall be held in such manner and at such place as may be directed by the Commission or if he is satisfied about the reasonableness of the challenge. The satisfaction contemplated by this provision is an objective satisfaction; therefore, a Returning Officer cannot reject an application for a recount arbitrarily and in the instant case it is alleged in paragraph 5 of the Petition that as the count had not properly been made by most of the Presiding Officers, therefore, the petitioner, acting through his Chief Election Agent, namely, Haji Taj Din made a written request for recounting of votes. The written application was entertained by the Returning Officer and being satisfied that the request was reasonable, was pleased to order "the request is genuine. The official counting would be held on 2nd March, 1985 at 11-00 a.m." On 2nd March, 1985, the first respondent through his learned counsel objected to the recounting pleading that it was not within the power of the Returning Officer to recount the ballot-papers. Accepting the plea, the petitioner's above referred application was dismissed by the Returning Officer holding that "the Returning Officer has not to recount all the votes unless he is directed by the competent authority". According to subsection (6) of section 39 of the said Act recount of ballot-papers may be claimed on behalf of a contesting candidate or his election agent. An application should be made to the Returning Officer. The application should state the grounds on which the recount is claimed. The Returning Officer shall decide the question of recount and made an order either accepting or rejecting application. The order should set forth the reasons. The application for recount made by the petitioner states that he has objection regarding counting as such it has to be recounted. His application is for recounting as he has a doubt that (1) there are no signatures and stamps of the Presiding Officer on the back of the ballot-papers. (2) He is also doubtful that his votes counted in favour of other contesting candidates. (3) He is doubtful that apart from affixing stamps, some other mark was affixed on the ballot-papers. For understanding the import and object of subsection (6) of section 39 of the Act, it would be appropriate to have a short and swift glance at the scheme of the proceedings at the close of poll. Section 38 makes provision with regard to counting of votes by the Presiding Officer. Section 39 of the Act provides for consolidation of results.
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Section 40 provides that the Returning Officer shall immediately after preparing the consolidated statement and the return of election, reseal in the prescribed manner the packets and statements opened by him for the purpose of consolidation, permitting such of the candidates and their election agents as may be present to sign the packets and affix their seals to such packets. Section 44 read:- "44. Documents to be sent to, and retained by the Commission. (1) The Returning Officer shall forward to the Commission.---- (a) the packets containing the ballot-papers each of which shall be sealed with the seal of the. Presiding Officer or, if opened by the Returning Officer; (b) the packets containing the counter-foils of issued ballot-paper; (c) the packets containing the marked copies of the electoral rolls; (d) the packets containing the ballot-paper account; (e) the packets containing the tendered ballot-papers, the challenged ballot7papers, the tendered votes list and the challenged votes list; and (f) such other papers as the Commission may direct. (2) The Returning Officer shall endorse in each packet forwarded under subsection (1) the description of its contents, the .Date of the election to which the contents relate and the name and number of the constituency for which the election was held. (3) The Commission shall retain the documents contained in the packets received under subsection (1) for a period of one year from the date of their receipt and thereafter shall, unless otherwise, directed by a Tribunal cause then to be destroyed." Section 107 of the Act empowers the Commission with the approval of the President to make rules for carrying out the purposes of this Act. The Election Commission has compiled a handbook for the use of District Returning Officer, Returning Officers and Assistant Returning Officers containing instructions for their guidance at various stages of the election. The Election Commission has also compiled hand-book for the use of candidates of National and Provincial Assemblies election and election agents and polling agents for their guidance at various stages of election. Instruction No. 129 in the Manual of Instructions for the guidance of District Returning Officers, Returning Officers and Assistant Returning Officers issued by the Election Commission also indicates that section 144 operates at post-election stage. Under this instruction, the Returning Officer is required to reseal all the packets opened by him and put them in the bag in which the packets were received by him from the polling station. The bag shall also be sealed. The candidates and the election agents may also be allowed to sign the packets and affix their seals to packets and the bags if they so desire. It has been contended by Messrs Chouhan and Khalilur Rehman learned counsel for the respondents that it is incumbent upon the Returning Officer to refer the application for recount to the Commission for direction. In other words, it was canvassed at the bar that the word 'or' appearing after the words 'if challenge is reasonable' and before the words 'if so directed by the Commission' should be read 'and' and not as 'or'. The meaning of the word 'or' given in Black's Law Dictionary 5th Edition is quoted below:- "A disjunctive practice used to express an alternative or to give a choice of one among two or more things. The word 'or' is to be used as a function were to indicate an alternative between different or unlike things. The words 'or' and 'and' interpreted by Maxwell on the Interpretation of Statutes (10th Ed.) page 238-- "To carry out the intention of the legislature, it is occasionally found necessary to read the conjunctions 'or' and 'and' one for the other. The 43 Eliz, 1, c 3(t), for instance, in speaking of property
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to be employed for the maintenance of sick and maimed soldiers, referred to soldiers who were either the one 'or' the other, and not only to those who were both (u)." In ordinary use, the word 'or' is a disjunctive that marks an alternative which generally corresponds to the word 'either'. In face of this meaning, however, the word 'or' and the word 'and' are often used interchangeably. As a result of this common and careless use of the word in legislation, there are occasions when the Court, through construction, may change one of the other. This cannot be done, if the Statute's meaning is clear or if the alteration operates to change the meaning of the law. It is proper only in order to more accurately express, or to carry out the obvious intent of the legislature, when the statute itself furnishes cogent proof of the error of the legislature, and especially where it will avoid absurd or impossible consequences, or operate to harmonize the statute and give effect to all of its provisions. Mr.. Chouhan has contended that the Returning Officer cannot recount himself without seeking direction from the Commission and without laying down the manner and the place of recount. It cannot be denied that the Returning Officer has power to recount on the application of the contesting candidate or his election agent. The words in subsection (6) of section 39 of the Act that "if the Returning Officer is satisfied that the request or the challenge is reasonable or if so directed by the Commission" cannot mean that the, word 'or' is used in a disjunctive sense. The sections 40 and 41 of the Act not only support that construction but also makes it clear. In clause (b) of subsection (6) it is mentioned that the Returning Officer may recount the ballot-papers if so directed by the Commission. It indicates that both powers can separately be exercised by the Returning Officer. The last clause "in which case the recount shall be held in such manner and at such place as may be directed by the Commission" is only applicable to clause (b) and it has nothing to do with clause (a) of the subsection. Again the language of subsection (6) shows that the Act uses the words 'Upon the request or challenge', 'or' occurring between the words 'upon the request or challenge is reasonable' and the words 'if so directed by the Commission' cannot be read 'and' in conjunctive sense. I am of the humble opinion that the Returning Officer is empowered to recount ballot-papers without seeking any direction from the Commission. He can also recount if so directed by the Commission in which case the recount shall be held in such manner and at such place as may be directed by the Commission. The contention is untenable that the Returning Officer is not empowered to recount without seeking necessary direction from the Commission. Equally untenable is the contention that the recount shall be held in such manner and at such place as may be directed by the Commission. As this can only be done when the Commission directs the Returning Officer in which case last clause will be applicable, that is, in which case the recount shall be held "in such manner and at such place as may be directed by the Commission". Issue No. 4.-- Whether the votes were counted properly and in accordance with law. The allegations regarding this issue in ground "A" are that as a matter of fact the petitioner had bagged highest number of votes in the election but for erroneous and improper counting by the Presiding Officers posted at various polling stations, his number of votes has been shown less and of respondent No. 1 more. Not only that, even the votes in favour of the petitioner were wrongfully kept out of the count and those meriting rejection were counted in favour of the first respondent. The respondent filed written statement. He denied the contents of ground "A" of the petition. He averred that the first respondent got the highest votes which the voters, electorates cast through adult franchise in favour of the first respondent. He averred that no votes were kept out by any Polling Officer or Returning Officer. All votes were counted precisely in accordance with law. No influence was exercised by the first respondent. The votes cast in favour of petitioner were never counted in his favour, not a single instance has been cited in this regard.
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The petitioner and his election agent did not lodge any complaint in writing except an application for recounting. Their grievance was that the Returning Officer had power to order recount. The election agent of the petitioner filed his affidavit-in-evidence. In paragraph 9 of the affidavit he has stated that after the close of the poll, the Presiding Officers of each of the Polling Stations counted the votes, prepared the statement of count and sent them to the Returning Officer with other record, but the count had not been properly made by most of the Presiding Officers, therefore, he made a written request for recounting of the votes. The petitioner has failed to establish that the count had not been properly made by mast of the Presiding Officers. The allegations in the petition are more or less vague and general. They are lacking in material facts. The evidence adduced in regard to this issue also does not make out a prima facie case for a recount. When a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegations are of improper count by most of the Presiding Officers, petitioner must furnish prima facie proof of errors. True it is that a recount is not granted as of right but on evidence of good grounds for believing that there has been a mistake or, the part of the Returning Officer (See Halsbury's Laws of England, 4th Edition, Volume 15 para. 946 page 508). I am of the humble opinion that prima facie proof of error complained of must be given by the petitioner and it must further be shown that the errors or mistakes are of such magnitude that the result of the election so far as it affects the returned candidate is materially affected, then recount is directed. What was broadly alleged by the petitioner in the election petition was that most o' the Presiding Officers committed mistakes in counting. Instances of mistakes are not set out in the petition. But an order for recount cannot be granted to' support vague pleas made in the petition not supported by material facts or to fish out evidence to such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for recount may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for recount. It must be remembered that the provisions of the Act set up an elaborate machinery relating to the stage of counting of votes by the Presiding, Officers, and provide ample opportunity to the candidate who has contested the election or his election agent or agents to remain present and to keep an eye on any improper action which may be taken by the Presiding Officers. Subsection (3) of section 38 provides for the admission of only certain class of persons to the place fixed for counting and amongst such persons are expressly included candidates, their agents who may be counting subject to the directions of the Presiding Officers who may give. Subsection (4) of section 38 deals with the proceedings for scrutiny and opening of ballot-boxes. Subsection (6) provides that valid ballot-papers cast in favour of each contesting candidate shall be put in separate packets and each such packet shall be sealed and shall contain a certificate as to the number, both in letters and figures of the ballot-papers put in it and shall also indicate the, nature of the contents thereof, specifying the name ands symbol of the contesting candidate to whom the packet relates. Subsection (?) provides that ballot-papers excluded from the count shall be put in a separate packet indicating thereon the total number both in letters and figures, of the ballot- papers, contained therein. There can, therefore, be no doubt that at every stage in the process of scrutiny and counting of votes the candidates or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the Presiding officers, inspecting any rejected votes. Therefore, a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of
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acquainting himself with the manner in which the ballot-boxes were scrutinized and opened and the votes were counted. He has also opportunity of inspecting rejected ballot-papers, and of demanding a recount. It is in the light of the provisions of section 55 which requires, a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a recount that the application for recount must be considered. In the instant case, the Returning Officer was examined by the petitioner and not a single question was put to him about alleged mistakes committed by some of the Presiding Officers. In this view of the matter, this issue is decided in the negative and against the petitioner. Issue No. 5.-- Whether the contesting respondent, his agent and supporters are guilty of illegal and corrupt practices? If so what is it effect? The issue No. 5 canvassed before me relates to the alleged corrupt and illegal practice of making or delivering a false speech in relation to the personal character or conduct as contemplated by section 78(3)(x) and (b) of the Act. The aforesaid issue covered the plea contained in paragraph B(i) and (ii) of the election petition. It was averred in that sub-para. That at a public meeting held on 22nd February, 1985 at Masjid Sher Khan, Sadar Bazar, Lahore at which the first respondent was present, Mr. Faqir Muhammad Dogar, Malik Arif, Malik Zulfiqar, Mian Umar Hayat, Hafiz Irshad and Mr. Mansoor Ahmed in the course of their speeches, made statements relating to the personal character of the petitioner and to the symbol allocated to him for the purpose of promoting and proving the election of the first respondent. Faqir Muhammad Dogar was alleged to have said:- "My Brothers--you are fond of car and book. Do not go towards "Candle" which is burning itself and it will burn you. Beat the drum, put the Chairs, eat Bhattis food and cast vote for first respondent. People, this is time for thinking, do not put your hand on Candle if the hand is burnt, it will be of no use for the whole life." Again at page 86. "If 5 "Marlas" of land is to be given then ask the Councillor to give from the property of the father, Government will not give. They are not true. Not true. They make false promises. Go to that lane, a child has died by falling in a gutter. Shows himself to be a Chairman, he cannot get any work done properly from the Board, what would be got done tomorrow." Page No. 87: "This candle had not supported even the. Mother of the nation. At that time Bhutto won." Page No. 89: "Even today the Umbrella is roaming in "Mohallas" and lane. This umbrella has taken Rupees One lac, at this time from Hakim Ali Bhatti, of yours, and says to give vote to you." Page No. 104: "You have to select those representatives." Page No. 104: "From these friends that I had got sanctioned Rs.18 lacs from the Centre for education for Lahore Cantt. It is their second year. Have they utilised these Rs.18 lacs in Cantt. Have they got built any College or School. Why it has not yet been built and got opened 600 accounts; by making efforts, in the office of the L.D.A." Page No. 110: "This place was being obtained only so that buildings be constructed on this. If it is not believed, then in the morning get the files taken out from the Cantonment then the fact of this place shall become clear to you." Same Page 110 and Page 111: "Book is also called the Book of the God, from which the Muslim of the entire world receive guidance. That is also a Book from which the world Politicians only, receive guidance. That is that
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same book which has laid the costly foundation of your country. After all you have to decide that you wish to have sincere leadership and wish to settle your own problems at your own level. " According to the written statement on behalf of the first respondent all the speeches at the meeting held on 22nd February, 1985 did not make any objectionable speech raising objectionable remarks about the conduct and character of the petitioner and his symbol because this was not the motive of the first respondent in the election campaign. The first argument of Mr. Chouhan is that under section 78(2) of the Act the burden is upon the person who seeks to impute corrupt practice described thereunder to establish all the ingredients of corrupt practice laid down therein. He has not only to prove that speeches delivered by the first respondent and his supporters on 22nd February, 1985 are false in relation to personal character of the petitioner. He has to prove that the said statement was calculated to prejudice the prospects of petitioner's election, that the voters had the knowledge that the corrupt practices were attributed to him and because of the knowledge did not vote for him. Section 78 (3)(a). "A person is guilty of corrupt practice if he makes or publishes a false statement:-- "concerning the personal character of a candidate or any of his relations calculated to adversely affect the election of such candidate or for the purpose of promoting or procuring the election of another candidate, unless he proves that he had reasonable grounds for believing, and did believe, the statement to be true:" The clause (a) of subsection (S) of section 78 may be dissected into the following component parts relevant to the present enquiry: "(1) makes a false statement concerning the personal character of a candidate or any of his relation calculated to adversely affect of the election of such candidate; (2) unless he proves that he had reasonable grounds for believing; (3) did believe the statement to be true." An election is the expression of a popular will. The object cannot be achieved unless freedom of speech is assured at the election and the merits and the demerits of a candidate are prominently brought to the notice of the voters in the constituency. At the same time it shall not be allowed to degenerate into a vilification campaign aimed at bringing down the personal character of the candidates without any basis whatsoever. The clause is…
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