1995 PLP 1426 (CLC)

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 the re‑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, 10'7, 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.

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 filets 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, 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. Basit, 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 that any mistake or error commuted by an officer in respect of marking or stamping of a ballot‑paper could trot be used against a candidate in whose favour the voter had indicated his choice. His argument was that a mistake or 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 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.l .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 then 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 respondent No.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 E.1 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.

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 (F.31) 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 F.31. 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. Con1ing 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 ba1Wt‑papers of respondent No.1 was opened it was found that there were only 36t 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 1:v which a Presiding Officer was required to place in the envelope alongwith to valid ballot‑papers was not present in the sealed packet. On the envelope there is a column which a Presiding Officer was required to rill 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 residing Officer has put his signatures on the said envelope and the signatures of polling agents of the candidates have also been obtained. As regards posing 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 pus 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 or 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 beer, opposed by Syed Talib H. Rizvi, Advocate, learned counsel for the petitioners on the strength of rule laid down in case reported as Ali Hussain v. Dr. Maqbool Ahmed arid others (1986CLC 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 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 on the envelope the number of valid ballot‑papers in the envelope before the same was sealed but it is significant that the said columns of valid ballot‑pairs of respondent No.1 of polling station No.158 were left blank. This indeed vas done in order to avoid the legal consequences of the act of counting in favour of respondent No.1 votes in excess of those actually polled by him.

21. Dr. A. Basit, learned counsel for respondent No.1 then submitted that the shortage of valid ballot‑paper occurred in respect of valid ballot‑papers of respondent No.1 only, therefore, a presumption can be raised that it was due to conspiracy to harm him.

22. I am afraid the argument is not supported by the record. In polling station No.46, as against 427 valid ballot‑papers of the petitioner, 377 were found in envelope. There is shortage of 50 votes. The inner envelope of the petitioner of this polling station like that of respondent No.1 of polling station No.44 were also found to have not been sealed though both the envelopes were placed in the bigger bags of canvas which had been sealed. According to the schedule attached with the report of recount it is manifest that in respect of a number of polling stations the number of valid ballot‑papers in the envelopes of valid ballot‑papers of the candidates as also the number of rejected votes in the envelopes of rejected ballot‑papers were either found less than shown in the initial count or they were found in excess thereof. In polling station No.209 the envelope containing valid ballot‑papers of Despondent No.1 was found to carry 346 votes as against 337 according to the initial count. I have already observed above that out of 210 polling stations in this Constituency the result of only 30 polling stations on the recount was found to be in accordance with the initial count whereas in respect of all the others polling stations the initial counting was proved to be incorrect. Dr. A. Basit, Advocate, did not question the correctness of the result of the recount in respect of any other polling station except the abovementioned polling stations of which the record was got opened and examined.

23. The record of polling station No.209 was also summoned because according to the original count prepared by the Returning Officer respondent No.1 was found to have polled 337 votes whereas on recount the envelope was found to have carried 344 valid ballot‑papers of the said respondent. As a result of recount two more votes of the said respondent out of the rejected ballot‑papers were held to be valid, as such, he was held to have polled 346 votes. The entries on the envelope of valid ballot‑papers of respondent No.1 indicated against the relevant columns that 333 ballot‑papers had been placed in the said envelope, thus there is addition of votes. This also furnishes strong evidence to hold that while placing valid ballot‑papers in the envelopes the Presiding Officer did not observe due care and caution and did not in fact give the details correctly, as such, neither the result of recount of polling stations Nos.158, 44 and any other polling station including polling station No.209 can be allowed to be questioned as it is based on careful counting by the Provincial Election Commissioner.

24. Dr. A. Basit, learned counsel for respondent No.1 submitted that those ballot‑papers carrying more than one stamps on columns of different candidates were mutilated later on after the preparation of the count by the Returning Officer, therefore, the same should be counted as valid votes of the said respondent. He pointed out that since this Tribunal cannot decides as to the validity of these ballot‑papers by examining the said ballot‑papers themselves, therefore, if the same are to be excluded from respondent No. 1's count he should be given opportunity to produce evidence of mutilation by the petitioner in collusion with the staff of the Election Commission. He has also moved C.M. No. 4/94 for that purpose. In this connection he earlier also filed C.M.No.2/94 in which it has been stated that the petitioner hatched a criminal conspiracy between 6‑10‑1993 and 11‑10‑1993 as a result which double stamps were placed on valid votes of respondent No.1. In support of his plea he has placed on record affidavits of Syed Asghar Abbas son of Syed Tufail Hussain, Babar Khan son of Nazar Hussain and Asif Mahmood Butt son of Abdur Rahim Butt. The sub and substance of the facts sworn by these deponents is that they were members of team of workers formed by the petitioner for the purpose of his election and he in collusion with Muhammad Shafi Secretary in lieu of certain amounts paid to him as bribe got the valid ballot‑papers of respondent No.1 mutilated on 9‑10‑1493.,In C.M. No.2/94 though it has been averred that this took place between 6‑10‑1993 to 12‑10‑1993 but it has not been disclosed as to on which date it came to the knowledge of respondent No.1. Even these deponents have not disclosed as to on which date and the time the respondent No.1 was informed of this alleged conspiracy of the mutation of the record. The Returning Officer prepared the count on 12‑10‑1993 under his signatures. C.M. No.1/94 was moved by the petitioner for recounting of the ballot‑papers on 14‑9‑1994 in reply to which no averment was made that the record had been mutilated rather it was pleaded in reply to this application as also in the written statement to the main petition that the record was in safe custody being under the surveilance of the Military Personnels, therefore, there was no question of interpolation or ground for questioning the correctness of the count. An order for recounting of ballot‑papers was passed by this Tribunal on 12‑7‑1994 and the counting started from 15‑8‑1994 and continued up to 25‑8‑1994. C.M.Nos.2/94 and 3/94 as is evident from the court‑fee stamp affixed on both of them were moved on 16‑11‑1994 though the same were typed on 25‑10‑1994. The affidavits of the said three persons were attested by the Oath Commissioner on 13‑11‑1994. There is no reason as to why respondent No.1 kept quiet from 25‑8‑1994 to 16‑11‑1994 and made these applications after such a delay even after coming to know of the result of the recounting. It is not difficult to hire any person and fabricate such oral evidence based on concocted stories. These three deponents have not disclosed in the affidavits ‑as to why they kept quite for such a long time as regards the alleged mutilation of the election record and they did not feel prick of conscious and abruptly came out with a story that the said record was mutliated in their presence. They have not also disclosed for reasons best known to them as to what compelled them at this stage now to come forward and disclose the said alleged incident of mutilation. After going through these depositions made by the these persons in the affidavits I am of the firm view that they have, been hired for giving evidence which on the face of it is obviously false. The depositions made in the affidavits do not inspire confidence rather it is a case of an attempt to fabricate the evidence. The acceptance of prayer of respondent No.1 to produce these persons as witnesses to give evidence of the facts disclosed in the affidavits would amount nothing but to encourage perjury. C.M.Nos.2 and 3 of 1994 are hereby rejected.

28. As indicated above all those ballot‑papers which carry more than one stamps have been examined. Learned counsel for respondent No.1 stated that they were mutilated in older to spoil valid ballot papers of the said respondent. He submitted that the stamps on each such ballot‑papers are of different sizes and the colour of the ink used in all of them do not tally with each other in that colour‑of one stamp is dim as compared to the other on the same ballot‑paper. The representative of Election Commissioner who is present when questioned stated that in the record rubber stamps are also available. Syed Talib H. Rizvi, learned counsel for the petitioner submitted that as a matter of fact there is no difference in the sizes of stamps on these ballot‑papers nor there is any difference in the colour of the ink. He demonstrated by using a rubber stamp in the Court to show that even ‑if there appears to be slight difference the same was due to the pressure one exerts in putting the stamp on the paper as also the dimension in doing so. His case was that the same rubber stamp with the same ink if used to put stamp on a paper there was slight difference in the colour of ink as also the size if one puts the same with lesser pressure and the other with greater pressure.

29. The argument has force. Firstly on the basis of the examination of the ballot‑papers it was not correct to say that the stamps on these ballots were of different sizes or of different colour. If there is any slight difference the same was due to the pressure with which the voter had put the same. None of the parties had access to the record of the Election which was kept in safe custody under lock and key. The voters had put stamps in more than one columns may be to indicate their liking for more than one candidates. The said ballot‑papers were invalid and should riot have been counted in favour of any of the candidates. In recounting they have been rightly rejected being invalid votes and have to be excluded, from the count. The Presiding Officer as also the Returning Officer while co0nting the same in favour of any of the candidates committed illegality. The conduct of the Returning Officer in this case is also not above‑board. Though ho was authorised under the law to open only the envelopes containing rejected ballot‑papers but according to his own note he opened the envelopes containing valid ballot‑papers also without indicating the number of polling stations in respect of which he opened these envelopes. This fact furnishes strong circumstantial evidence in support of the plea raised by the petitioner from the very start that he, i.e. the Returning Officer endeavoured to prepare the result against the record in order to declare respondent No.1 as successful as against the petitioner. After examining the result of counting I am of the view that in this case the result of the election was changed and declared against the actual number of votes secured by the candidates in the election.

30. As regards difference of 14 ballot‑papers in polling station No.143 it may be mentioned that the said ballot‑papers carry the stamp and signatures of the Presiding Officer. They were polled by the petitioner. These 14 papers were found to be in excess of the count made by the Presiding as also the Returning Officer as shown in the statement of count. There is no reason to hold that they were inserted later on as in view of the seal and signatures of the Presiding Officer it can safely be held that like other mistakes were also committed in preparing the count of this polling station due to which these ballot‑papers validly polled by the petitioners were not counted in his favour. Apart from this even if these additional ballot‑papers are excluded from the count of the petitioner nothing turns as the elections result which emerges in consequence of recounting would not be materially effected and the petitioner would remain a winning candidate. Dr. A. Basit, learned counsel for respondent No.1 maintained that the signatures of polling agents of the parties are present on the envelopes containing valid ballot‑papers of the candidate on which exact number of votes had already been indicated as regards this polling station as also polling station No.44, therefore, principle of estoppel should be made applicable against the petitioner. He also argued that in respect of polling station No.158, the figure of 497 votes counted in favour of respondent No.1 tally with the statement signed by the Presiding Officer as regards used and issued ballot‑papers, therefore, the said entry should be taken into consideration. The presence of signatures of any of the polling agents of the candidates does not amount to acknowledgement of correctness of the result of counting or the other entries and a candidate has a right to challenge the counting in an election petition and can prove that the same was wrong. The signatures of polling agents as a matter of fact are obtained on the envelopes in which the valid papers are placed and other documents in order to avoid any allegation that the same had been changed and substituted and not to obtain an acknowledgment of the correctness of the entries made. This principle finds support from judgment reported as Taj Muhammad v. Dr. Abdul Kadir and others (PLD 1982 Karachi page 780). As to the argument that the statement relating to ballot‑papers actually issued it may be observed that the same cannot be given any credence as the same Presiding Officer has been found to have not deliberately indicated in words and figures the number of valid ballot papers sealed in the packet of polling station No.158 deliberately as he knew that as a matter of fact the number of valid ballot‑papers actually put in the envelope was less than counted in his favour.

31. Respondent No.1 has placed on record affidavits of number of persons, including Advocate who represented him before the Punjab Election Commissioner at the time of recounting in which it has been alleged that the seals of the election record when opened ‑for recounting were not proper and had been either tampered with or broken which fact was brought to the notice of the Punjab Election Commissioner. The affidavits of another set of persons have also been placed on the record in which it has been deposed that at the time of announcement of result of polling stations they were present and no objection was raised by the petitioner about the correctness of the same.

32. I am not inclined to give any weight to these depositions as they are afterthought whereas the position as regards proper sealing of the record given by the Punjab Election Commissioner in his report cannot be doubted. None of the parties as observed above had access to the record, therefore, the allegations that the petitioner mutilated the record is not based on any firm reason.

33. After holding elaborate and careful scrutiny of the election record as also the result of recounting I am satisfied that the result consolidated by the Provincial Election Commissioner is correct and suffers from no illegality. As a result of this recounting the petitioner was found to have polled 68984 votes whereas respondent No.1, 68897 and respondent No.2, 2940. Since I have held that in polling station No.4, the ballot‑papers carrying more than stamps were 27 against 29 held by the Punjab Election Commissioner, therefore, the result of the recounting as regards ‑respondent No.1 is modified and he is held to have polled 68899 votes. As a consequence of this the petitioner has a lead of 85 votes.

34. The election petition for the foregoing reasons is accepted. The election of respondent No.1 as member of National Assembly from Constituency No.NA‑87 Sialkot‑III is set aside and the petitioner is declared to have won the said election by a majority of 85 votes as such declared to have been duly elected as member of the National Assembly from the said Constituency. There will be no order as to costs. M.BA./I‑144/L Order accordingly.