2007 PLJ 302

Sahibzada MUHAMMAD NAZEER SULTAN vs SAIMA AKHTAR BHARWANA etc.

Petitioner: Sahibzada MUHAMMAD NAZEER SULTAN VS Respondent: SAIMA AKHTAR BHARWANA etc.

Court: Lahore High Court Decision Date: 2006-11-03

Full Judgment Text & Judicial Ruling

Court Name: Lahore High Court Judge(s): Sayed Zahid Hussain Title: Sahibzada MUHAMMAD NAZEER SULTAN vs SAIMA AKHTAR BHARWANA etc. Case No.: Election Petition No. 121 of 2002 Date of Judgment:2006-11-03 Reported As: PLJ 2007 Lahore 302 Result: Petition accepted.

JUDGMENT

JUDGMENT This is petition under S. 52 of the Representation of the People Act, 1976 whereby the election of Respondent No. 1 as returned candidate has been assailed. After usual proceedings which I must say consumed a lot of time an effective order was passed on 6.10.2006. The said order by which the election record was ordered to be produced and inspected was as follows:-- "The petitioner and the two respondents herein contested the election held on 10.10.2002 for seat in the National Assembly, NA-90, Jhang-V. Since Respondent No. 1 was declared as the successful and returned, candidate this election petition has been filed by the petitioner praying the ."the election of the Respondent No 1 be declared null and void and the petitioner be declared as elected from NA/90 Jhang-V". According to him, the declaration of. Respondent No. 1 as a returned candidate was result of illegal/corrupt practices and non-compliance of statutory provisions by the statutory officials. He seeks production, inspection and examination of ballot papers, particularly, those declared invalid and rejected. 2. The total votes polled in the constituency as per result of count issued by. the Returning Officer on 12.10.2002 (Form XVII), were 119252. The valid votes polled were 116342, the number of votes polled in favour of the petitioner were 56180 whereas Respondent No. 1 secured 56647 votes. The number of rejected votes and declared invalid was 2910. Respondent No. 2 since had obtained only 3517 votes he has shown no interest in the matter. Since the difference of votes (obtained by the petitioner and Respondent No. 1) was of 467 only, the entire edifice of the case of the petitioner rests upon this that votes rendered invalid and rejected need to be examined and, scrutinized. It is pleaded that legality of rejection of a large number of votes casts in favour of the petitioner and those invalid votes counted in favour of Respondent No. 1 may determine the fate of the poll, which

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according to him was materially affected by reason of the failure of the Presiding Officer/Returning Officer in performing their duties in accordance with law. 3. In order to determine the scope and extent of powers and jurisdiction of the Tribunal, before embarking upon the other aspects of the matter, the relevant provisions of the Representation of the People Act, 1976 and Rules framed thereunder namely, the Representation of People (Conduct of Election) Rules, 1977, need to be perused. (Hereinafter to be referred to as the "Act and the "Rules"). According to the scheme of the Act, "Voting Procedure" is laid down in S. 33 whereas under S. 34 "Tendered ballot papers", under S. 35 "Challenged ballot papers" and under S. 36 "Spoilt ballot papers", are supposed to be placed in separate packets. S. 38 then deals with the. "Proceedings at the close of poll", and the Presiding Officer is to count the votes immediately after the close of the poll in presence of the contesting candidates, their election agents or polling agents as may be present, facilitating them to observe the count. It lays down a meticulous procedure and mechanism for undertaking and completing the count. On completion of the count he is. supposed to send the bags, the statement of count and the ballot paper account prepared by him to the Returning Officer together with all the records. Before the Returning Officer the consolidation of result takes place who is expected to give notice to the candidates and their election agents for such purpose and in their presence he is supposed to "examine the ballot papers excluded from the count by the Presiding Office''. This is the mandate of sub-section (3) of S. 39, Rule 26 of the Rules also empowers him to scrutinize the ballot papers meticulously and prepare and consolidate the result in Form XVI. On completion of the count he is required to reseal the bags as per. S. 40. He is then required to intimate the result of the count to the Commission for declaration of the result as envisaged by S. 42 of the Act. Another protision of vital importance is S. 46 of the Act, sub- sections (1) and (2) whereof are reproduced as under: "(1) A Tribunal may order the opening of packets of counterfoils and certificates of the inspection of any counted ballot papers. (2) An order under sub-section (1) may be made subject to such conditions as to persons, time, place and mode of inspection, production of documents and opening of packets as the Tribunal making the order may think expedient:" From these provisions the scheme, object, intent and purpose of the law is manifestly clear that the Returning Officer holds a vital position in the conduct and holding of election in a just and fair manner in accordance with A law. He performs an important duty for such purpose. It is also evident that whereas the Returning Officer has the power to recount the ballot papers (sub-section (6) of S. 39); the Tribunal can order the opening of packets, production of records and inspection of counted ballot paper under S. 46. 4. Where an election is called in question and the dispute is brought before an Election Tribunal through an election petition as is envisaged by Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 and S. 52 of the Act, the provisions of Chapter VII (S. 52 to S. 77) of the Act get attracted for the trial and decision of such petition. I need not at this stage dwell much about the procedure to be followed by the Tribunal inasmuch as the legal position is now well settled and known. The controversy, for the present, is limited about correctness and validity of count by the polling staff and the extent of powers of the Tribunal as to production, inspection and examination of the polled ballot paper. Apart from the provisions of S. 46, falling in Chapter IV (Conduct of Elections), in Chapter VII, (Election Dispute), S. 70 appears which enables the Tribunal to declare the election "as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of- (a)the failure of any person to comply with the provisions of the Act or the rules: or (b)the prevalence of extensive corrupt or illegal practice at the election". Number of rulings have been cited by the learned counsel for the parties as to the extent of powers

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of the Tribunal relating to the production of the record and recount of votes. In Syed Saeed Hussan V. Pyar Ali and 7 others (PLD 1976 S.C. 6) it was observed that "the Tribunal is not only authorized but is duty bound to give his finding on each allegation pressed before him including those of wrong inclusion or exclusion of a ballot papar. In Maulvi Abdul Ghani and another v. Election Tribunal, Balochistan and others (1999 SCM R 1) it was observed that the Election Tribunal while deciding election petition had got plenary power under S. 46 direct opening of packets or carry out inspection of ballot papers. In Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCM R 284) it was held that S. 46 of the Act confers an exclusive and wide discretion on an Election Tribunal to order opening of packets or inspection of any counted ballot papers. According to Paragraph 940 of Volume-15, Halsbury's Laws of England, Fourth Edition:--"A re-count is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of the returning officer". In Km. Shradha Devi v. Krishna Chandra Pant and others (AIR 1982 S.0 1569) it was observed:-- "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". In Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another (PLD 1986 S.0 542) it was laid down that though such a power vested with the Election Tribunal yet for exercise of the same there has to be some basis and not to be granted as a matter of course. Similar was the view expressed in Col. (Retd) Syed Mukhtar Hussain Shah v. Wasim Sajjad And 30 others (PLD 1986 S.0 178) and Kanwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 S.0 483). Some judgments rendered by the learned Election Tribunals and precedents arising from local bodies elections have also been cited by the learned counsel for the petitioner, which are sought to be distinguished by the learned counsel for Respondent No. 1. According to the learned counsel for Respondent No. 1 though such a power is broad and extensive, it is to be used sparingly with circumspection. For this purpose he also relies upon Abdul Hafeez Khan (Supra). At this juncture reference to some observations in Sardar Abdul Hafeez Khan case (Supra) may be of guidance, which are "Many an illegal or corrupt practices, within the knowledge of a candidate, due to on election being a closed door affair, may turn out only to be the tip of an iceberg, the bulk of the deviations coming to unfold during the trial of the election petition and duly established on record by evidence. Thus, once the candidate concerned had pleaded his case with all details of corrupt or illegal practices coming to his knowledge, he should be free, within the parameters fixed by his own pleadings , to resort to the powers of the Tribunal to come to his aid virtue of the jurisdiction of a Civil Court residing in the Tribunal, as extended by Section 64 of the Representation of the People Act, 1976. No candidate, who has adequately pleaded the corrupt or illegal practices at his election should unjustifiably be discouraged, by undue strictness in applying the law of evidence, from proving his case. As it is, holding free and fair elections is a duty cast by law and Judges can be doing no more than discharging their obligations to the electorate by ensuring that no one is returned to an elected office without having duly and lawfully been elected". 5. The trend reflected from the authorities and precedents thus is that:-- (i)Whenever there is an allegation of miscount, the Returning Officer can undertake recount and the Election Tribunal can order opening of packets, examination and inspection of the ballot papers in order to find out whether the statutory provisions were duly observed by the statutory functionaries. (ii)While seized of the election petition, the Tribunal is vested with the power to order recount, which power, however, is to be exercised on the basis of some material prima facie establishing illegalities and irregularities in the count of polled votes. (iii)A party is not entitled to claim recount as a matter of course and it is to be shown that there

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had been improper reception, refusal or rejection of votes. (iv)Such power of the Tribunal though quite extensive yet it is to be exercised sparingly after satisfaction on the basis of material/evidence that there had been wrong inclusion or exclusion of ballot papers in the count. 6. It is thus, now to be seen whether the petitioner in this case has succeeded to establish prima facie a case for production and inspection of ballot papers rendered invalid/rejected by the election officials and the correctness of their inclusion or exclusion in the process of count. Foundation for such purpose has been laid in the petition i.e. Paragraphs, 2 to 8 and clauses (i), (ii), and (iii) of the ground of petition. Due to their relevancy to the case setup by the petitioner in the petition and the stance of Respondent No. 1, the salient paragraphs of the pleadings of the parties are reproduced for facility of reference:--

Para Petition Reply That the total number of Polling Stations in the said constituency as set up by the Election _Commissioner of Pakistan was 219. That in accordance with the consolidated statement of the results sheet by the Returning Officer allegedly the total number of votes casts were 119252 and 116342 votes were stated to be valid out to which Petitioner secured 56180 votes, the Respondent No. 1 secured 56647 votes and 3517 votes were received by the Respondent No. 2. In the circumstances, the Respondent No. 1 was declared to be a returned candidate. It may be noticed that the number of votes rejected as invalid, is seven times more than the difference of votes between the Petitioner and the Respondent No. 1, the allegedly returned candidate.Para No. 2 is admitted correct to the extent that the answering respondent has secured more votes and has been declared elected representative from the said Constituency. That the process of election and its conduct was seriously flawed inasmuch as the mandatory provisions of the Representation of the People Act, 1976 were callously ignored and violated. It is submitted that the agents and supporters of Respondent No. 1 in connivance with the election staff indulged in large scale corruptionPara No. 3 is incorrect. There has been no violation of any provision of Representation of the People Act, 1976 and the allegations contained

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and illegal practices and violated the mandatory provisions of the Representation of the People Act, 1976 which materially affected the outcome of the elections to the prejudice of the petitioner. Double casting of votes was indulged in as a matter of routine more particularly in the areas in which the Respondent No. 1 had influence i.e. in all the 42 Polling Stations situated in Mauza Kakki Nau, Qaim Bharwana, Kot Mirza, Mehrum Sial, Jala Bharwana, Shore Kot City, Shore Kot Cantt. and Shore Kot City Cantt.therein are denied vehemently.

That at the time of counting of votes at various Polling Stations, the mandatory provisions of Section 38 of the Representation of the People Act, 1976 were violated. Innumerous votesPara No. 4 is denied. There is no violation of any provision of law. Only invalid Ballot Papers were rejected.which did not bear the seal and signatures of the Presiding Officer were counted to the benefit of the Respondents Nos. 1 & 2. Various ballots on which the intention of the elector was apparent inasmuch as the seal or a major part thereof was within the parameters of the space containing the petitioner's name and symbol (Tractor), were treated as invalid despite objections of the petitioner, his Polling Agents and the Election Agent. The aforesaid

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illegalities were committed during the process of counting throughout the constituency, but was more pronounced and blatant in all the polling stations at Mauza Kakki Nau, Qaim Bharwana, Kot Mirza, Mehrum Sial, Jala Bharwana, Shore Kot City, Shore Kot Cantt., and Shore Kot City/Cantt. It may be noticed that in the aforesaid Polling Stations, the manipulation of the results and the illegalities are more obvious from the facts that in some of such Polling Stations, the percentage of allegedly invalid votes is 5 to 6 times more than the percentage in the rest of the Polling Stations in the said constituency. It is submitted that such percentage of invalid votes increases into double digit figures which is most unnatural and speaks volumes for the mata fide and illegal manner in which the counting was conducted.

That the entire election result was deliberately and with rnala fide intentions manipulated. In fact the provisional result was declared by thePara No. 5 of the petition is incorrect. Hence denied. The results were prepared with great care and caution and the provisional result wasReturning Officer at about. 7:00 a.m. on 11th October, 2002 despite of the fact that the bags containing the ballot papers and the result sheet had not even reached the Returning Officer at that point of time. The said Ballot papers and the result sheets were deposited at about 2:00 a.m on the 12th of October, 2002.

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(8)That in the above perspective, the petitionerPara No. 8 is admitted to the extent that application for recounting was filed before the Returning Officer which was rejected on 12.10.2002. .through his Election Agent filed an application under Section 39(6) of the Representation of the People Act, 1976 brining to the notice of the Returning Officer, the illegal acts committed during the conduct of the elections and the fact that ballots in favour of the petitioner had not been counted in his favour and invalid papers in favour of the Respondents Nos. 1 & 2 had been counted to the account of the said Respondents. The said application was illegally and without any legal and factual basis rejected by the Returning Officer vide order dated 12.10.2002. GROUNDS REPLY (i)That the election has been conducted in a(i) & (ii) In reply to Grounds (i) & (ii), it ismanner, which is violative of the mandatory provisions of the Representation of the People Act, 1976. submitted that only such Ballot papers have been rejected which were found invalid by the Presiding Officer and the Returning Officer has rejected their application for recounting. There are only allegations not containing any

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adequate statement of material facts which could enable the Returning Officer to pass the order of recounting. It is

denied that any Ballot paper has been rejected against the petitioner in an illegal manner.

(ii) That the election has been conducted in all illegal and unlawful manner in violation of the mandatory provisions of the Representation of the People Act, 1976. The Respondent No. 1 in connivance and collusion manipulated the process to her benefit through illegal and corrupt practices. It is categorically provided by Section 38 of the Representation of the People Act, 1976 that only such ballots/votes would be counted which bear official seal and signatures of the Presiding Officer. In the instant case, innumerous ballot papers which on the face of it were invalid as they did not bear the official seal and/or signatures of the Presiding Officer were counted to the benefit of the Respondents Nos. 1 & 2 this illegal practice was committed at innumerous Polling Station more particularly.

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It is submitted that a fair ascertainment and counting of the votes in accordance with the law would clearly show that a substantial number of votes counted in favour of the Respondent No. 1 were in fact were invalid and could not be credited to her account. The aforesaid actions have materially affected the result inasmuch as the differential between the Petitioner and the Respondent No. 1 is only a few hundreds of votes. And it is further submitted that in addition to the above, innumerous votes which were cast in favour of the Petitioner have been declared as invalid and excluded from the count in site of the fact that the same not only bore the official seal and signatures of the Presiding Officer but also stamp affixed by the elector clearly evidenced

his intention to vote for the Petitioner. The said stamps or a substantial portion thereof was within the parameters of the space containing the petitioner's name and symbol. (Tractor). The said votes have been illegally excluded and declared invalid in obvious violation of the Section 38 of the Representation of the People Act, 1976. (iii)That the entire election result has beenGround (iii) is manipulated to the prejudice of the petitionerdenied. The and the benefit of the Respondent No. 1 as hasresult was been submitted above. The result was declareddeclared after prior to the receipt of the entire sheets andthe, receipt of bags of ballot papers from the Presidingtotal Ballot

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Officer. In fact, even till date, the entirePapers. It is material from every Polling Station is notsubmitted that

available. There was 219 Polling Stationseven under the established by the Election Commissioner ofresult sheet Pakistan. However, the bags deposited withannexed by the the Treasury Officer by the Returning Officerpetitioner under pertain only to 218. The bags of the ballotFrom XVI papers and other material of the Pollingindicates that Station No. 19 N.A-90, Jhang-V, situated at, Girls P/S Qadeemi to-date is not availablethe result of Polling Station with the Treasury Officer, Tehsil Shorkot, District Jhang. The aforesaid denudes theNo. 19 has been counted by the election result of any credibility whatsoever.Returning Officer and the certificate of Treasury Officer shows that 219 Sealed Bags containing election material was deposited in safe custody by the Returning Officer, a copy of which is annexed herewith as MARK-B.

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(8)That in the above perspective, the petitionerPara No. 8 is admitted to the extent that application for recounting was filed before the Returning Officer which was rejected on 12.10.2002. .through his Election Agent filed an application under Section 39(6) of the Representation of the People Act, 1976 brining to the notice of the Returning Officer, the illegal acts committed during the conduct of the elections and the fact that ballots in favour of the petitioner had not been counted in his favour and invalid papers in favour of the Respondents Nos. 1 & 2 had been counted to the account of the said Respondents. The said application was illegally and without any legal and factual basis rejected by the Returning Officer vide order dated 12.10.2002. GROUNDS REPLY (i)That the election has been conducted in a(i) & (ii) In reply to Grounds (i) & (ii), it is manner, which is violative of the mandatory provisions of the Representation of the People Act, 1976. submitted that only such Ballot papers have been rejected which were found invalid by the Presiding Officer and the Returning Officer has

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rejected their application for recounting. There are only allegations not containing any adequate statement of material facts which could enable the Returning Officer to pass the order of recounting. It is

denied that any Ballot paper has been rejected against the petitioner in an illegal manner.

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only such ballots/votes would be counted which bear official seal and signatures of the Presiding Officer. In the instant case, innumerous ballot papers which on the face of it were invalid as they did not bear the official seal and/or signatures of the Presiding Officer were counted to the benefit of the Respondents Nos. 1 & 2 this illegal practice was committed at innumerous Polling Station more particularly. It is submitted that a fair ascertainment and counting of the votes in accordance with the law would clearly show that a substantial number of votes counted in favour of the Respondent No. 1 were in fact were invalid and could not be credited to her account. The aforesaid actions have materially affected the result inasmuch as the differential between the Petitioner and the Respondent No. 1 is only a few hundreds of votes. And it is further submitted that in addition to the above, innumerous votes which were cast in favour of the Petitioner have been declared as invalid and excluded from the count in site of the fact that the same not only bore the official seal and signatures of the Presiding Officer but also stamp affixed by the elector clearly evidenced

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