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Petitioner: IJAZ AHMED CHEEMA VS Respondent: Syed IFTIKHAR HUSSAIN and another
Court Name: Election Tribunal Judge(s): Munir A. sheikh Title: IJAZ AHMED CHEEMA vs Syed IFTIKHAR HUSSAIN and another Case No.: Election Petition No, 9 of 1993 Date of Judgment:1995-04-24 Reported As: 1995 CLC 1426 Result: Order accordingly
JUDGMENT
JUDGMENT In this election petition the election of respondent No,1 as member of National Assembly from Constituency No,NA-87 Sialkot-Ill in the general election held in October, 1993 has been challenged. 2. Petitioner and respondents Nos.1 and 2 contested election for a seat in the National Assembly from NA-87 Sialkot-III in the general elections held on 6-10-1993. According to the count prepared by the Returning Officer on the close of the poll the petitioner was found to have polled 69168 votes as against 69559 polled by respondent No,1 Syed Iftikhar Hussain and 2945 by respondent No,3 Nazir Ahmed Khan, therefore, respondent No,1 was declared a returned candidate having won the election with the majority of 391 votes. The petitioner was not satisfied with the counting carried out by the Returning Officer, therefore, he approached the Election Commission of Pakistan with the prayer that the ballot-papers should be re-counted. This request was not accepted at that stage and it was observed that the petitioner could challenge the election through election petition and raise such a plea if he wanted to do so. 3. In this election petition the petitioner has challenged the election of respondent No,1 mostly on the ground that the counting of the ballot-papers was not done in accordance with law by the Returning Officer whereas he dishonestly in order to help respondent No,1 so that he may be declared elected committed illegal and corrupt practices as regards counting of the ballots. An exception has been taken in this petition as to the manner in which the ballot-papers were placed in the envelopes and taken out of them and then re-adjusted, therefore, a serious question has been raised as regards the counting of the ballots. It has been pointed out that a number of invalid votes were counted in favour of respondent No,1 about which an objection was raised before the Returning Officer. During the hearing of the petition learned counsel for the petitioner brought it to
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my notice that according to a note given by the Returning Officer on Form-XIV i,e, the consolidated statement of the results of the count which is to the following effect:-- (a) During the examination of the excluded ballot-papers it was found that in a number of cases the same had not been placed by the Presiding Officer concerned in the prescribed envelope as a result of which other envelopes had to be opened. (b) In few cases the excluded ballot-papers were not found at all while in many other cases the figure mentioned in the statement of the count did not tally with the actual number contained in the cover. 4. An application was made by the petitioner praying that since the main dispute raised in the election petition was about the counting of the votes and the act of the Returning Officer of counting certain invalid votes in favour of respondent No,1, therefore, this Tribunal should in view of this note given by the Returning Officer pass an-order for there-counting of the ballots so that the correct position may be placed before the Tribunal. This request was objected to by respondent No,1 and vide order dated 12-7-1994 the Provisional Election Commissioner was directed to re- count the votes in the presence of the parties or their representatives including their learned counsel and the result of such re-count should be transmitted to the Tribunal. It was, however, observed that in case there was any dispute regarding validity or otherwise of any of votes between the parties the said ballot-paper or papers should be separated for decision by this Tribunal regarding these objections. The Provincial Election Commissioner Punjab after re-counting the votes submitted his report on 28-8-1994. It has been pointed out in this report that the record placed in the large size sealed canvas bags was taken out from the sealed premises by the Returning Officer with authorised representatives of the candidates and it was found that these seals were intact. In each convas bag, polling record relating to 10 polling stations was found sealed in cloth bags. The seals on these bags were shown to the candidates and their counsel before the start of re-counting of ballot-papers contained in each bag. It has also been pointed out that in those cases where the parties objected to the non-sealing or improper sealing of the envelopes, their statements have been appended with the report. After the conclusion of recounting of ballot-papers in each bag, these were sealed under the signatures of the parties and keys of the garrage were with the Returning Officer and guard provided by the Provincial Government for duty. The Provincial Election Commissioner has also pointed out that the envelopes containing excluded rejected ballot-papers in 4 polling stations Nos.41, 53, 97 and 200 were not found in the cloth bag alongwith other record. In some other cases, the rejected ballot-papers were not found in the concerned envelope but some rejected ballot-papers were found in other envelopes. The number of such rejected ballot-papers were shown in the statement of recount attached with the report as Annex. 'A'. According to the report the number of each votes in many cases differ from the figures shown in the consolidated statement of count, earlier prepared by the Returning Officer at his level. It goes on saying that in seven polling stations (Nos.17, 50, 73, 77, 107, 109 and 210), one disputed ballot-paper in the bag of each polling station was found which has been consolidated separately after obtaining the signatures of the concerned parties. According to the report the record relating to eight polling stations i,e, Nos.34, 54, 57, 69, 93, 131, 143 and 158) where other disputes arose have also been sealed in a cloth bag, under the signatures of the parties. The parties according to the report mutually agreed not to recount the postal ballot- papers as they were satisfied with the counting already done by the Returning Officer in respect of these ballot-papers, therefore, recounting of postal ballot-papers was not undertaken. 5. Since the dispute as to the re-counting of ballot-papers according to the report has been raised regarding polling stations Nos. 17, 50, 73, 77, 107, 109, 210, 34, 54, 57, 69, 93, 131, 143 and 158, therefore, the record of the said polling stations was placed in a sealed steel trunk and handed over to the Registrar of this Tribunal for safe custody which was summoned and is available.
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6. As is evident from the statement showing the result of the recount of ballot-papers by the Provincial Election Commissioner as shown in Annex. 'A' 747 ballot-papers of both the contesting candidates i,e, the petitioner and respondent No,1 were found to carry either the number of National Identity Cards of the voters or the serial numbers of the voter in the voters' list. According to the note given by the Provincial Election Commissioner this act amounted to disclosure of the secrecy of the ballot-papers. 7. Out of 442 valid ballot-papers of respondent No,1 from polling station No,4, according to the report 29 were found to be carrying double stamps. Since according to the report no objection was taken for the exclusion of these votes from his count by respondent No,1 on the date when the counting of the said polling station took place; therefore, Punjab Election Commissioner did not include the same in the disputed ballot-papers which were separated for decision by this Tribunal. However, on the request of Dr. A. Basit, Advocate, learned counsel for respondent No,1 an order was passed for summoning the record of the said polling station in order to examine the said 29 ballot- papers. Learned counsel for respondent No,1 could not deny that on the date when the counting of ballot-papers of this polling station took place no written objection was filed whereas on the next day when the counting of polling station No,34 was undertaken in which it was found that out of 346 valid ballot-papers of respondent No,1, 248 ballot-papers were carrying two or three stamps in the column of different candidates, therefore, an abjection was raised to the exclusion of those 248 votes as also the earlier exclusion of 29 of polling station No,4. Counting of ballot-papers started from 15-8-1994 and continued up to 25-8-1994. As a result of this recounting the petitioner was found to have polled 68984 votes as against 68897 votes polled by respondent No,1 and 2940 secured by respondent No,2. According to this count the petitioner has a lead of 87 valid votes. In this recounting 747 ballot-papers carrying National Identity Card number of the voters or serial number of the voters in the list of the voters have been counted as valid votes in favour of the respective candidates. According to Syed Talib H. Rizvi, Advocate, learned counsel for petitioner originally respondent No,1 did not object to the exclusion of 29 votes carrying double stamps in two columns of different candidates at polling station No,4 but after having seen that similar was the position about a large number of ballot-papers of Polling Station No,34, he as an after thought started raising objections against the exclusion of the said 29 votes of Polling Station No,4 also. 8. Be that as it may, since the question as regards validity or otherwise of any ballot-paper was left open for decision by the Tribunal, therefore, I would agree with learned counsel for respondent. No,1 that even if an objection had been raised at the time of counting of polling station No,34 regarding counting of polling station No,4 the same has to be decided by this Tribunal, therefore, respondent No,1 is not debarred from raising objections regarding exclusion of 29 ballot-papers from his count in polling station No,4 and the validity of the same shall be determined by the Tribunal. 9. There were in all 210 polling stations in this Constituency. It is manifest from the statement of recount that excepting polling stations Nos.7, 15, 19, 20, 21, 22, 25, 35, 42, 43, 45, 51, 52, 53, 55, 56, 74, 83, 87, 113, 114, 118, 138, 142, 153, 156, 172, 177, 194 and 199 which are 30 in number, the recounting of none of the others tallies with the initial counting of the Returning Officer. This itself furnished strong evidence that the counting done by the Returning Officer on the basis of which the result of election was declared had not been correctly done particularly when Dr. A. Basit, Advocate, learned counsel for respondent No,1 himself during arguments did not object to the correctness of the result of the recounting in respect of any polling station other than polling stations Nos. 4, 34, 54, 69, 131, 143, and 158 of which record was got opened in the Court and examined. Each and every ballot- paper of these polling stations rejected in the recounting was scrutinized thoroughly. Since it was indicated in the report of recounting that as regards polling station No,209 the number of ballot- papers found in the envelopes were in excess of the number of ballot-papers used/issued,
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therefore, record of the said polling station was also summoned by me to satisfy myself though no objection was raised by Dr. A. Basit, learned counsel for respondent No,1. 10. Dr. A. Basil, learned counsel for respondent No,1 moved C.M. No,3/94 under proviso to section 46(2) of the Representation of the People Act, 1976 read with Article 226 of the Constitution of the Islamic Republic of Pakistan praying for rejections of 747 ballot-papers from the count of both the contesting candidates because 210 out of them bore Identity Card Numbers of the voters whereas on the remaining 535 serial number of the voters in the voters' list had been indicated either on the face of the ballot-papers or on their back, out-rightly as it is violative of the command of the Constitution as contemplated by Article 226 that the election under the Constitution shall be by secret ballot. According to Dr. A. Basit, learned counsel for respondent No,1 these ballot-papers themselves are the evidence of disclosure of identity of the voters casting their votes in favour of an ascertainable candidate out of the three, therefore, the mandate of the Constitution has been violated. 11. I have heard learned counsel for both the parties in detail on this question. Syed Talib H. Rizvi, learned counsel for respondent No,1 relied upon judgment reported as Dr. Syed Sultana Ibrahim v. Mrs. Afroz Nazir Ahmed and others (1988 CLC page 728), Sardar Ikramullah Khan v. Haji Attaullah Khan and others (1989 MLD page 4882), Mian Zia-ud-Din v. Punjab Local Government and others (1985 SCMR page 365) and Jan Muhammad v. Collector, Jacobabad and others (PLD 1963 (W.P) Karachi page 433) to argue I e that any mistake or error committed by an officer in respect of marking or stamping of a ballot-paper could not be used against a candidate in whose favour the voter had indicated his choice. His argument was that a mistake or 8 an error in the official act during the performance of statutory duty could not be used to the prejudice of any of the parties. 12. The argument has force. According to law it was the duty of the staff employed for conducting the election to enter the number of Identity Card of voters as well as serial number.Of the voters in the voters list on the back of the counter-foil of each ballot-paper which was to be retained by the office in the record and not open for public inspection. If in doing so, by mistake the members of the staff in discharge of their function instead of recording the same on the back of the counter- foil, instead recorded it on the ballot-paper itself, the same being not an act of the voter himself, therefore, he cannot be held to have violated the law of secrecy of the ballot and for an act of the officer he could not be disfranchised. In a case where on account of the act of the voter himself secrecy of ballot was violated even in such a case settled principle of law by the Superior Courts is that before rejection of such ballot-papers it has to be pleaded firstly and then proved through evidence that the same was the result of prior understanding between such voter and the candidate. Some of the judgments laying down this principle as relied upon by Syed Talib H. Rizvi, Advocate, are Mir Nabi Bakhsh Khan v. The Election Petitions Tribunal etc. (PLD 1957 SC 301), Mian Jamal Shah v. The Member Election Commission etc (PLD 1966 SC 1), Ch. Muhammad Abdullah v. Ch. Abdul .Wakil and others (PLD 1986 SC 487) and Jamshed Ahmed Khan and 2 others v. The S.D. M/Assistant Commissioner, Garden Sub-Division Karachi and others (PLD 1987 SC 213). 13. Dr. A. Basit, Advocate, learned counsel for respondent No,1 faced with this situation then argued that respondent No,1 may be allowed to produce evidence that there was such prior arrangement or understanding, therefore, it was a case of recording evidence on the said point. I am afraid the argument has lost sight of the fact that firstly there was no plea raised by any of the parties in the pleading in this case and secondly such evidence as observed above could only be allowed to be produced if it was due to the act of the voter himself that the identity of the voter stood disclosed whereas in this case it was the official act, therefore, in regard thereto it could not by any stretch of imagination be assumed that there could be any prior understanding or arrangement. Prior understanding or arrangement in this respect could only be where a voter himself was required to enter the identity card numbers etc. Whereas no such arrangement could possibly be made in
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respect of an official act over the performance of which the person concerned i,e, the voter had no control. The ballot-papers carrying either the number of National Identity Card of the voters or serial number of voters in the voters list for the above reason are valid, therefore, they were rightly counted in favour of the respective candidate. C.M. No, 3/94 moved by respondent No,1 seeking exclusion of the said ballot-papers from the count being invalid votes is hereby rejected. 14. I would now proceed to examine and determine the validity or otherwise of the ballot-papers carrying more than one stamps in different columns and others regarding which objections were raised by learned counsel for respondent No,1 and record of which was summoned and is available. In polling station No,4 according to the original count by the Returning Officer respondent No,1 polled 442 valid votes. According to the result of recount out of these, 29 ballot-papers were carrying more than one stamps against columns of the contesting candidates. I have taken out these ballot-papers from the sealed envelope in which they had been placed, out of which 13 ballot-papers marked A.1 to A.13 carry two stamps one each over the column of petitioner and respondent No,1. One ballot-paper carries three stamps, one each over the column of all the three candidates which has been marked A.14 13 ballot-papers also carry two stamps, one each on the column of respondent No,1 and respondent No,2 which have been marked as A.15 to A.27. The total number of ballot-papers carrying more than one stamps, therefore, is 27 and not 29. It may be mentioned here that out of 159 valid votes of the petitioner, one was excluded from the count as invalid. 15. Likewise the sealed envelope containing 248 ballot-papers carrying more than one stamps were taken out from the sealed envelope relating to polling station No,34. According to the original count done by the Returning Officer respondent No,1 polled 346 valid votes whereas out of them according to the recount 248 were carrying more than one stamps against different candidates contested the election, out of which 157 ballot-papers carry two stamps, one each in the columns reserved for petitioner and respondent No,1 which have been marked B.1 to B.157. Five ballot-papers carry three stamps,. One each on the column of all the three candidates which have been marked as B.158 to B.162. The remaining 86 ballot-papers also carry two stamps, one each on the columns of respondent No,1 and respondent No,2. They have been marked as C.1 to C.86. Out of 270 valid ballot-papers of petitioner one was excluded from his count being invalid. According to the re- count of polling station. No,57 out of 486 valid ballot-papers of respondent No,1, 58 were carrying stamps in more than one columns. These 58 ballot-papers sealed in separate packet have been taken out and secrutinsed. Out of these 56 ballot-papers carry two stamps, one each over the column of petitioner and respondent No,1 which have been marked as D.1 to D.56. One ballot-paper carry six stamps, four of which are over the column of respondentNo,1 and the remaining two to the column of the petitioner. It has been marked as D.57. One ballot-paper carry two stamps on two columns, one each over the column of respondent No,1 and respondent No,2. It has been marked as D.58. Out of 299 valid ballot-papers of the petitioner one was found to be carrying two stamps over two columns, therefore, the same was excluded from the count in the recounting. 16. In polling station No,69 the petitioner was found to have secured 356 valid votes whereas respondent No,1 polled 430 according to the count of the Returning Officer. In the recount, out of 356 valid ballot-papers of the petitioner two were found to be carrying two stamps over different columns, therefore, excluded from the count whereas 26 out of the valid ballot-papers of respondent No,1 were carrying more than one stamps. These have been taken out of the sealed packet and examined. Out of these six ballot-papers carry two stamps, one each over the column of petitioner and respondent No,1 which have been marked as EA to E.6 whereas two ballot-papers carry three stamps one each over the three columns of the contesting candidates which have been marked as E.7 and E.8 whereas the remaining 18 ballot-papers carry two stamps, one each on the column of respondent No,1 and respondent No,2 which have been marked as E.9. To E.26.
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17. In the recounting of ballot-papers of polling station No,131 out of 312 valid ballot-papers of petitioner one was rejected being invalid and excluded from his count whereas out of 405 valid ballot-papers of respondent No,1, 41 were found to carry two stamps over two columns of the contesting candidates. The sealed packet carrying these 41 ballot-papers was opened and they were examined. Out of these 27 ballot-papers carry two stamps, one each over the column of petitioner and respondent No,1 which have been marked as F.1 to F.27. One ballot-paper carries three stamps, one each on the columns of three candidates which has been marked as F.28. Two ballot-papers carry three stamps, two stamps on column of respondent No,1 and one each on the column of respondent No,2 which have been marked as F.28 and 39. One ballot-paper (F31) carries three stamps, two over the column of respondent No,1 and the third-one over the column of the petitioner which has been marked as F31. One ballot-paper carries four stamps, two over the column of respondent No,1 and one each over the columns of petitioner and respondent .No,2 which has been marked as F.32. The remaining nine ballot-papers carry two stamps, one each over the column of respondent No,1 and respondent No,2 which have been marked as F.33 to F.41. 18. On the recount of polling stations Nos. 73, 77, 107 and 109 one ballot-paper in each polling station out of the valid ballot-papers of respondent No,1 was excluded as invalid on account of having carried two stamps against two columns of the two candidates. Since the correctness of the finding recorded by the Punjab Election Commissioner based on recounting about the invalidity of these ballot-papers was not questioned by Dr. A. Basit, learned counsel for respondent No,1 during the hearing of the petition for which reason he did not press for the opening of the sealed packet containing the said ballot-papers for examination by the Tribunal, therefore, the same were not examined. 19. Coming to polling station No,158 it may be mentioned that according to the original count respondent No,1 polled 479 votes. At the time of recounting when the sealed envelope of valid ballot-papers of respondent No,1 was opened it was found that there were only 366 ballot-papers available in it. There is a shortage of 115 ballot-papers. This engaged my serious consideration. According to the report of the Recounting Officer the statement of count in Form XIV as prescribed under the law which a Presiding Officer was required to place in the envelope alongwith the valid ballot-papers was not present in the sealed packet. On the envelope there is a column which a Presiding Officer was required to fill after putting valid ballot-papers of a candidate which is to the following effect:-- Number of ballot-papers in (figure.... ) Number of ballot-papers in (words -.... ) ' These columns have been left blank though the Presiding Officer has put his signatures on the said envelope and the signatures of polling agents of the candidates have also been obtained. As regards polling station No,44 according to the, original count respondent No,1 was found to have polled 369 votes whereas the envelope contains 355 votes. There is thus a shortage of 14 votes. 20. Dr. A. Basit, learned counsel for respondent No,1 submitted that the said respondent should be given opportunity to produce evidence and in particular the permission to examine the Presiding Officer of these polling stations to establish that in fact they put 479 and 369 respectively valid ballot-papers of respondent No,1 in the envelopes meant for his valid ballot-papers in these polling stations and the same were stolen later on through conspiracy hatched by the petitioner in collusion with the Election Commission staff. This prayer has been opposed by Syed Talib H. Rizvi, Advocate, learned counsel for the petitioners on the strength of rule laid down in case reported as All _ Hussain v. Dr. Maqbool Ahmed and others (1986 CLC 609) in which it was held that the evidence of Presiding Officer as to the correctness of the contents of envelope of valid ballot- papers of a candidate was not accepted as against the facts emerging from the envelope itself. The rule laid down in this reported judgment in my view is based on sound judicial principles. As
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against the record itself no oral evidence can be allowed to be produced to establish a fact contrary to it. As has been observed above the Presiding Officer was required to indicate in figures and words against columns…
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