1989 PLP 3377 (MLD)

(2) P L D 1986 Journal 22 and (3) A I R 197(1 S C

276. On behalf of the petitioner it has been contended that looking to the facts and circumstances of the case, the petitioner moved an application dated 28th February, 1985 before the Returning Officer which application was rejected by him on 2nd March, 1985. On 2nd March, 1985 his election Agent Sayed Ashfaq Hussain Shah also moved an application for recount and the same was rejected. His contention is that this is a fit case in which an order for recount could be ordered as all the concise material facts have been placed on the record. On behalf of the petitioner reliance has been placed on the following cases:- (1) PLD1966SC and (2) 1972 S C M R

496. Section 22 of the Representation of the People Act, 1976 (hereinafter called the said Act) provides that a candidate may appoint a person qualified to be elected as a member to be his election agent. Section 38 provides that the presiding officer shall count the votes immediately after the close of the poll in the presence of the contesting candidates, election agents and polling agents as may be present. Subsection (2) provide;, that the presiding officer shall give such of the contesting candidates, election agents and polling agents, as may be present, reasonable facility of observing the count and give therein such information with respect thereto as can be given consistent with the orderly conduct of the count and the discharge of his duties in connection therewith. Subsection (3) provides that no other persons shall be present at the time of count except the presiding officer, the polling officer, any other person on duty in connection with poll, the contesting candidates, their election agents and Polling Agents. Subsection (5) provides that the presiding officer may recount the votes of his own motion if he considers it necessary; or upon the request of a contesting candidate. Section 39 (1) of the said Act provides that the Returning Officer shall give the contesting candidates and their election agents a notice in writing of the day, time and place fixed for the consolidation of results, and, in the presence of such of the contesting candidates and election agents as may be present, consolidate in the prescribed manner the results of the count furnished by the presiding officers including therein the postal ballots received by him before the time aforesaid. Section 55 of the said Act provides that every petition shall contain a precise statement of the material facts on which the petitioner relies. A bare perusal would show that an order for recount may not be granted as a matter of course having regard to the insistence upon the secrecy of the ballot papers. The Tribunal would be justified in granting an order for inspection provided two conditions are fulfilled: (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the,, ballot-papers is necessary. Section 64 of the said Act which defines the powers of the Tribunal in terms, confers on it, by a Civil Court trying a suit under the Code of Civil Procedure, 1908. Therefore, in a proper case, the Tribunal can order the inspection of the ballot-papers and may proceed to examine the objections raised H by the parties in relation to the improper acceptance or rejection of the ballot papers. But in exercising this power, the Tribunal has to bear in mind certain, important considerations. Section 55 of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies, and in every case, where a prayer is made by a petitioner for the inspection of the ballot papers the Tribunal must enquire whether the petition or application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. An application made for inspection of ballot papers must give material facts which would enable the Tribunal to consider whether in the interest of justice the ballot papers should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the provisions of the Act and the Rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting, it may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot papers, and to consider his objection about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice care must be taken to see that the election petitioners do not get a chance to make a roving or fishing enquiry in the ballots papers so as to justify their claim that the returned candidate's election is void. No hard and fast rule can be laid down in this matter for, attempt to lay down such a rule would be inexpedient and unreasonable. The provisions of the Act and the Rules framed thereunder emphasize the point that the election petitioner who is a defeated candidate has ample opportunity to examine the ballot papers before they are counted, and in case the objections raised by him or his election agent have been improperly over-ruled, he knows precisely the nature of the objections raised by him and the ballot 1 papers to which these objections related. It is in the light of this background that section 55 of the Act has to be applied to the petition made for inspection of ballot papers and such a petition must contain a concise statement of material facts. In the case of Bahadur v. Krishna Behari (A I R 1970 SC 276) it has been held as under:-- "The basic requirements to be satisfied before an election tribunal can permit the inspection of ballot papers, are (1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case and (2) the tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition. If an election petitioner in his petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material facts when the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the unsuccessful candidate cannot afford the necessary basis." In Kanwar Ejaz Ali v. Irshad Ali and 4 others (P L D 1985 Journal 283), it has been held by me as under: "I am of the humble opinion that a recount will not be granted as a matter of right but only on the basis of evidence of good grounds for believing that there has been a mistake in the counting. The reason is two-fold. Firstly such an order affects the secrecy of ballot papers which under the law is not to be lightly disturbed. Secondly, the Act and its Rules and instructions issued by the Election Commission provide an elaborate procedure for counting of ballot papers. This procedure contains so many statutory checks and effective safeguards against trickery, mistakes and frauds in counting, that it cannot but be called almost fool proof." Again at page 299 it is held as under:-- "All that has been stated therein is that the petitioner was not satisfied with the counting and, therefore, a recount was sought and as such did not comply with the mandatory requirement of section 39 (6) which provides that a candidate or his election agent may request in writing to the Returning Officer to recount the ballot papers. A whimsical and bald statement of the candidate that he is not satisfied with the counting is not tantamount to a statement of the grounds within the contemplation of section 39(6). The application was thus not a proper application in the eye of law. It was not supplemented even by an antecedent or contemporaneous oral statement with regard to any irregularities in the counting. It was rightly rejected by the Returning Officer." In Fawad Khan v. Ihsanullah and others P L D 1986 Journal 22 Mr. Manzoor Hussain Sial, J. (Election Tribunal N.-W.F.P. held as under:-- "In the instant case the petitioner could not prove failure of any person to comply with any provision of the Act or the Rules thereunder nor the prevalence of extensive corrupt or illegal practice at the election materially affecting the result of election." In these circumstances, neither the voters of the constituency who had exercised their right of franchise nor the respondent who had polled highest number of votes can be penalised for the mistake or the negligence of the petitioner, as otherwise it would amount to disenfranchising the genuine voters who had apparently favoured the respondent as compared to petitioner during the election." On behalf of the election petitioner, reliance has been placed on Mian Jamal Shah v. The Member, Election Commission and 3 others (PLD 1966 S.C. 1): "With respect to the learned, Judges, the division of jurisdiction between the Member under section 53 and the Election Tribunal, is not, in respect of the count, intended to be so completely water-light as they have declared it to be. "Reference to section 73 of the Act will show that counting of votes, that is exclusion of invalid votes and inclusion of valid votes, which have been wrongly excluded, is not outside the purview of the Tribunal. Section 73 provides that when after the conclusion of the trial `it appears there is an equality of votes between two or more contesting candidates,' the Tribunal is to inform the Commissioner accordingly, who shall thereupon direct that a fresh poll shall be taken. This clearly implies that an inequality of votes had been reduced to an equality by inclusion of votes which should not have been rejected, and/or exclusion of votes which should not have been included, as a result of the Tribunal finding certain corrupt or illegal practices or illegal acts to have been committed. In the present case, the question raised was as to whether ballot papers which included foreign objects should be excluded from the count under section 38, subject to appeal under section 53 for that reason alone. The Member was of the view that reason was not sufficient, for it was necessary to produce evidence of a design behind the inclusion of such foreign objects, before they could be excluded. This clearly implied the requirement of proof of a corrupt practice or of an illegal act as indicated above. It was the view of the Member that he had no jurisdiction to enquire into these matters and further he has used expressions indicating that it was proper that such matters should be taken before an Election Tribunal under section

57. If it were found that the ballot papers in question were tainted by corrupt practice or an illegal act, it would be for the Tribunal to exclude them for the purpose of their final decision. Thus, the power given to the Tribunal by section 73 of the Act would be attracted. Consequently, I am unable. speaking with respect, to support the conclusion of the Full Bench that the count of votes must be finalised under section 53, qua the jurisdiction of the Election Tribunal under the later provisions of the Act." In Mian Jamal Shah v. The Sind Election Tribunal West Pakistan through Chairman and another (1972 S C M R 496) it has been held:-- "From the above it is abundantly clear that the Tribunal was justified in coming to the conclusion that it did on the materials before it and as such its decision was not susceptible of interference in writ jurisdiction. Lastly, we may mention that no objection as to particulars was taken at any stage before the Tribunal. The appellant fully knew of the allegations that he had to meet and as such he cannot be permitted to make any grievance as to the insufficiency of the particulars." In the instant case the petitioner moved an application dated 28th February, 1985 before the Returning Officer wherein it: was stated that "there is suspect that great rigging in counting of the ballot papers and invalid votes of the opposite candidate has been committed by the presiding officers." The Returning Officer after hearing the petitioner and the returned candidate passed the orders on 2nd March, 1985. The Returning Officer while dismissing the application observed that "the applicant was heard at length, and was advised to quote some authentic instance of the rigging but he could not be able to adduce any evidence in support of his version." Syed Ashfaq Hussain Shah, Election Agent of the petitioner moved an application before the Returning Officer stating therein that "according to his source of information some invalid ballot papers bearing thumb impression over the ballot papers have been included as valid votes at Polling Station No. 3 GPS Bagodero". He also added in his application that this has also been done at the other polling stations which need thorough verification. The application was also dismissed vide order dated 2nd March, 1985 (Exh. 10/3). The application was dismissed with the following remarks: "Since the allegations of applicant to thumb impression on the ballot papers shown valid is not proved, as such the verification of the other ballot papers in other polling stations is not found justified and the request is therefore rejected." A bare perusal of the provisions of sections 38 and 39 of the Act would show that at counting of votes the candidates, their election agents are allowed to be present. They are in a position to note down numbers of ballot papers, which had been wrongly accepted or wrongly rejected." Subsection (5) of section 37 provides that any candidates or his election agent present at the counting may at any time during the counting of votes request the presiding officer to recount the ballot papers of all or any of the candidates including himself and the presiding officer shall therefore recount the same. Subsection (6) of section 39 also provides that if a contesting candidate or his election agent request the Returning Officer to recount the votes, the Returning Officer shall recount the ballot papers if the request is reasonable. In the instant case the allegations made against the returned candidate l are not clear and specific and are not supported by adequate statements of material facts. I am not prima facie satisfied on the material produced before me regarding the truth of the allegations made for a recount. "As stated in earlier part of the judgment the petitioner did not give any specific allegation of rigging in counting of the votes. His election agent in his application simply stated that from his source of information some invalid ballot papers containing thumb impression over the ballot papers have been included as valid votes at polling station No. GPS Bagodero. This allegation was found as not proved. In these circumstances I am of the view that I am not prima facie satisfied on the material produced before me about the truth of the allegations made for a recount and a recounting cannot be made out only with a view to fish out materials for declaring the election to be void or for indulging in roving inquiry. I have no hesitation in rejecting the petition. For the reasons stated above, the Election Petition is dismissed with no order as to costs. M.Y.H./38/E Election petition dismissed.