1986 PLP 1784 (CLC)

The allegations regarding this issue in ground "A" are that as a matter of fact the petitioner had bagged highest number of votes in the election but for erroneous and improper counting by the Presiding Officers posted at various polling stations, his number of votes has been shown less and of respondent No. 1 more. Not only that, even the votes in favour of the petitioner were wrongfully kept out of the count and those meriting rejection were counted in favour of the first respondent. The respondent filed written statement. He denied the contents of ground "A" of the petition. He averred that the first respondent got the highest votes which the voters, electorates cast through adult franchise in favour of the first respondent. He averred that no votes were kept out by any Polling Officer or Returning Officer. All votes were counted precisely in accordance with law. No influence was exercised by the first respondent. The votes cast in favour of petitioner were never counted in his favour, not a single instance has been cited in this regard. The petitioner and his election agent did not lodge any complaint in writing except an application for recounting. Their grievance was that the Returning Officer had power to order recount. The election agent of the petitioner filed his affidavit‑in‑evidence. In paragraph 9 of the affidavit he has stated that after the close of the poll, the Presiding Officers of each of the Polling Stations counted the votes, prepared the statement of count and sent them to the Returning Officer with other record, but the count had not been properly made by most of the Presiding Officers, therefore, he made a written request for recounting of the votes. The petitioner has failed to establish that the count had not been properly made by mast of the Presiding Officers. The allegations in the petition are more or less vague and general. They are lacking in material facts. The evidence adduced in regard to this issue also does not make out a prima facie case for a recount. When a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegations are of improper count by most of the Presiding Officers, petitioner must furnish prima facie proof of errors. True it is that a recount is not granted as of right but on evidence of good grounds for believing that there has been a mistake or, the part of the Returning Officer (See Halsbury's Laws of England, 4th Edition, Volume 15 para. 946 page 508). I am of the humble opinion that prima facie proof of error complained of must be given by the petitioner and it must further be shown that the errors or mistakes are of such magnitude that the result of the election so far as it affects the returned candidate is materially affected, then recount is directed. What was broadly alleged by the petitioner in the election petition was that most o' the Presiding Officers committed mistakes in counting. Instances of mistakes are not set out in the petition. But an order for recount cannot be granted to' support vague pleas made in the petition not supported by material facts or to fish out evidence to such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for recount may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for recount. It must be remembered that the provisions of the Act set up an elaborate machinery relating to the stage of counting of votes by the Presiding, Officers, and provide ample opportunity to the candidate who has contested the election or his election agent or agents to remain present and to keep an eye on any improper action which may be taken by the Presiding Officers. Subsection (3) of section 38 provides for the admission of only certain class of persons to the place fixed for counting and amongst such persons are expressly included candidates, their agents who may be counting subject to the directions of the Presiding Officers who may give. Subsection (4) of section 38 deals with the proceedings for scrutiny and opening of ballot‑boxes. Subsection (6) provides that valid ballot‑papers cast in favour of each contesting candidate shall be put in separate packets and each such packet shall be sealed and shall contain a certificate as to the number, both in letters and figures of the ballot‑papers put in it and shall also indicate the, nature of the contents thereof, specifying the name ands symbol of the contesting candidate to whom the packet relates. Subsection (?) provides that ballot‑papers excluded from the count shall be put in a separate packet indicating thereon the total number both in letters and figures, of the ballot‑papers, contained therein. There can, therefore, be no doubt that at every stage in the process of scrutiny and counting of votes the candidates or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the Presiding officers, inspecting any rejected votes. Therefore, a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot‑boxes were scrutinized and opened and the votes were counted. He has also opportunity of inspecting rejected ballot‑papers, and of demanding a recount. It is in the light of the provisions of section 55 which requires, a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a recount that the application for recount must be considered. In the instant case, the Returning Officer was examined by the petitioner and not a single question was put to him about alleged mistakes committed by some of the Presiding Officers. In this view of the matter, this issue is decided in the negative and against the petitioner. Issue No. 5.‑‑ Whether the contesting respondent, his agent and supporters are guilty of illegal and corrupt practices? If so what is it effect? The issue No. 5 canvassed before me relates to the alleged corrupt and illegal practice of making or delivering a false speech in relation to the personal character or conduct as contemplated by section 78(3)(x) and (b) of the Act. The aforesaid issue covered the plea contained in paragraph B(i) and (ii) of the election petition. It was averred in that sub‑para. that at a public meeting held on 22nd February, 1985 at Masjid Sher Khan, Sadar Bazar, Lahore at which the first respondent was present, Mr. Faqir Muhammad Dogar, Malik Arif, Malik Zulfiqar, Mian Umar Hayat, Hafiz Irshad and Mr. Mansoor Ahmed in the course of their speeches, made statements relating to the personal character of the petitioner and to the symbol allocated to him for the purpose of promoting and proving the election of the first respondent. Faqir Muhammad Dogar was alleged to have said:‑ "My Brothers‑‑you are fond of car and book. Do not go towards "Candle" which is burning itself and it will burn you. Beat the drum, put the Chairs, eat Bhattis food and cast vote for first respondent. People, this is time for thinking, do not put your hand on Candle if the hand is burnt, it will be of no use for the whole life." Again at page 86. "If 5 "Marlas" of land is to be given then ask the Councillor to give from the property of the father, Government will not give. They are not true. Not true. They make false promises. Go to that lane, a child has died by falling in a gutter. Shows himself to be a Chairman, he cannot get any work done properly from the Board, what would be got done tomorrow." Page No. 87: "This candle had not supported even the. mother of the nation. At that time Bhutto won." Page No. 89: "Even today the Umbrella is roaming in "Mohallas" and lane. This umbrella has taken Rupees One lac, at this time from Hakim Ali Bhatti, of yours, and says to give vote to you." Page No. 104: "You have to select those representatives." Page No. 104: "From these friends that I had got sanctioned Rs.18 lacs from the Centre for education for Lahore Cantt. It is their second year. Have they utilised these Rs.18 lacs in Cantt. Have they got built any College or School. Why it has not yet been built and got opened 600 accounts; by making efforts, in the office of the L.D.A." Page No. 110: "This place was being obtained only so that buildings be constructed on this. If it is not believed, then in the morning get the files taken out from the Cantonment then the fact of this place shall become clear to you." Same Page 110 and Page 111: "Book is also called the Book of the God, from which the Muslim of the entire world receive guidance. That is also a Book from which the world Politicians only, receive guidance. That is that same book which has laid the costly foundation of your country. After all you have to decide that you wish to have sincere leadership and wish to settle your own problems at your own level. " According to the written statement on behalf of the first respondent all the speeches at the meeting held on 22nd February, 1985 did not make any objectionable speech raising objectionable remarks about the conduct and character of the petitioner and his symbol because this was not the motive of the first respondent in the election campaign. The first argument of Mr. Chouhan is that under section 78(2) of the Act the burden is upon the person who seeks to impute corrupt practice described thereunder to establish all the ingredients of corrupt practice laid down therein. He has not only to prove that speeches delivered by the first respondent and his supporters on 22nd February, 1985 are false in relation to personal character of the petitioner. He has to prove that the said statement was calculated to prejudice the prospects of petitioner's election, that the voters had the knowledge that the corrupt practices were attributed to him and because of the knowledge did not vote for him. Section 78 (3)(a). "A person is guilty of corrupt practice if he makes or publishes a false statement: "concerning the personal character of a candidate or any of his relations calculated to adversely affect the election of such candidate or for the purpose of promoting or procuring the election of another candidate, unless he proves that he had reasonable grounds for believing, and did believe, the statement to be true:" The clause (a) of subsection (S) of section 78 may be dissected into the following component parts relevant to the present enquiry: "(1) makes a false statement concerning the personal character of a candidate or any of his relation calculated to adversely affect of the election of such candidate; (2) unless he proves that he had reasonable grounds for believing; (3) did believe the statement to be true." An election is the expression of a popular will. The object cannot be achieved unless freedom of speech is assured at the election and the merits and the demerits of a candidate are prominently brought to the notice of the voters in the constituency. At the same time it shall not be allowed to degenerate into a vilification campaign aimed at bringing down the personal character of the candidates without any basis whatsoever. The clause is designated to achieve this dual purpose, namely, freedom of speech and prevention of malicious attack on personal character of the rival candidate. The purity of an election is sought to be maintained without affecting the freedom of expression. The clause prohibits any statement of fact in relation to personal character of any candidate making it either believes it to be false or does not believe it to be true. To be within the mischief of the clause (a) of subsection (3) of section 78 of the Act such statement shall satisfy another test, namely, it shall be a statement calculated to adversely affect the election of the candidate against whom it is made. The word "calculated" means designated; it denotes more than mere likelihood and imports a design to affect voters. It connotes a subjective element, though the actual effect of the statement on the electoral mind reflected in the result may afford a basis to ascertain whether the said statement was calculated to achieve that effect. The emphasis is on the calculated effect, not on the actual result, though the latter proves the former. In my opinion the transcript Exh. 14/1 has no relation to the personal character of the petitioner and it only criticises him for asking for votes from the voters when he has not 4one any good to them; nor as there any statement to the effect that the petitioner has misappropriated any money. I am not inclined to accept this interpretation sought to be placed on these statements in the transcript. The evidence relating to first respondent and his supporter's speeches consisted of cassette or tape‑record and transcripts of tape record speeches prepared after tape‑recording and the statement of P. W. Haji Taj Din present at the meeting who had actually heard what was said by the first respondent and his supporters. The learned counsel for the petitioner has relied on Yousaf Ali Ismail Nagrea v. State of Maharashtra A I R 1968 S C 147 at 149 and N . Shri Rama Reddy v . V . V . Giri A I R 1971 S C 1162, R . V . Maqsud Ali v . R. V. Ashiq Hussain 1965 (2) A E R 464 P L. The first respondent raised objection to the admissibility of this type of evidence. In the case of S. Pralap Lenjh v. State of Punjab A I R 1964 SC

72. The Supreme Court of India accepted conversation or dialogue recorded on a tape‑recording machine as admissible evidence. In the case of Yousuf Ali Ismail Nagrea v. State of Maharashtra.The facts are that the appellant had walked into a pre‑arranged trap. Mahajan and other police officer had hidden themselves in the inner rooms. Sh. Nagrea know that the police officers were recording conversation and was naturally on the guard while talking to the appellants. The evidence of conversation was tendered at the trial of :‑~e offence. The contemporaneous dialogue between them formed part of the res gestae and is relevant and admissible under section 8 of the Evidence Act. The dialogue is proved by Sheikh. The tape‑record of the dialogue corroborates his testimony. In the case of N. Shri Rama Reddy v. Shri V.V. Giri A I R 1971 S C 1162. In this case the election petition had recorded on tape the conversation that had taken place between a witness Jagal Narain and petitioner. Objection was taken to admissibility of the recorded conversation. It was held by the Supreme Court of India that it was admission. In the case of R.M. Malkani v. State of Maharashtra A I R 1973 S C 1.57. It was held by the Supreme Court of India that the tape‑‑recorded conversation was admissible in evidence. In the case of R.V. Maqsud Ali 1965 (2) A E R

464. In that case a conversation which took place in Punjab dialect between two persons and which had been recorded on the tape was played before the Jury and was admitted in evidence by the trial Judge. Objection was taken before the Court of Appeal regarding the admissibility in evidence of the tape‑recorded conversation between the accused. Therefore, the point that specifically arose before the Court of appeal was "Is a tape‑recording as such admissible in evidence, as a matter of law?" After referring to the observation in Mills Case 1962 (2) AER 298 the Appellate Court noted that the question regarding the admissibility of a tape‑record was not actually decided in that case. The decision of High Court of Judiciary in Hopes Case 1960 Scots Law Times 264 was referred to and it was noted that the evidence of the police officer who listened to the .tape‑recorded was held to be admissible. The Court laid at p. 469:‑ "We think that the time has come when this Court should state its views of the law on a matter which is likely to be increasingly raised as time passes. For many years now photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the prints are taken from negatives that are untouched. The prints as seen represent situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted, and now there are devices for picking up, transmitting and recording, conversations. We can see no difference in principle between a tape‑recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voice's recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape‑recording as admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged." In consequence, the Court held that the tape‑recorded conversation was admissible in evidence, subject to the limitation mentioned in the above extract. In the case of Islamic Republic of Pakistan v. Adul Wali Khan PLD 1976 S C 57, the Hon'ble Supreme Court laid down the following dictum: "So far as tape‑records of speeches of some of the N.A.P. leaders are concerned, they stand on firmer ground. They are actual record of the speech as and when it was made. The officer recording the speech has been produced. He has produced the necessary tape and the tapes have been played in the Court. The officer concerned has identified the voice of the person speaking. Therefore, we see no reason not to accept these reports. They stand on the same footing as the transcripts of speeches personally recorded by officers attending the meetings at which the speeches complained of were delivered. The learned amicus curiae have also conceded that such tape‑records are admissible in evidence and that they have been so admitted by the Courts in this Country." 1 hold that the tape‑record and its transcript are not admissible in evidence for the following reasons namely:‑ (1) The tape‑record had been prepared and preserved by the nephew of the petitioner. He is not an independent person and he does not belong to independent authority. (2) The transcript from the tape‑record was not prepared under independent supervision and control. The P.W. Haji Taj Din who prepared the tape‑record stated in his affidavit that he handed over the cassette or tape‑record to the petitioner. It was not annexed to the petition but it was produced before me by the witness himself. (3) The voice of the person alleged to be peaking must be duly identified by the maker of the record or by others who know it. (4) Accuracy of what was actually recorded had to be proved and satisfactory evidence, direct or circumstantial had to be there so as to rule out possibilities of tampering with the record. (5) The witness who had made the tape‑record was not part of his routine duties in relation to election speeches but it was actually made for the purpose of laying trap to procure evidence. (6) The first respondent disputed that the tape‑recorded voice was his and stated that there had been interpolation in the record. The issue is decided in the negative and against the petitioner. Issue No. 6.‑‑ The petitioner in sub‑para. (iii) of paragraph 'C', has alleged that the ballot‑papers besides containing names of the contesting candidates were also to properly show symbols allocated to each candidate, the object, amongst others, being that the illiterate and other class of electors by noticing the symbol could put the prescribed mark against the candidate of his/her choice. In the case of the petitioner, no doubt the ballot‑papers did contain the symbols but ex facie the symbol of the petitioner appearing on the ballot‑papers was so dim that it was hardly visible, The petitioner has reasons to believe that the dimness of the petitioner's symbol on the ballot‑papers has materially affected the result of the election. The respondent denied the allegation. The petitioner besides himself examined Ch. Nawab Din Exh. II, Muhammad Siddiq Exh. 12, Sardar Muhammad Exh. 13 who filed their affidavits‑in‑evidence and have stated in para. 4 that the deponents marked against the symbol of 'Fountain', believing it to be 'Candle'. I sent for the ballot‑papers and inspected the same. The symbol "Candle" printed on the ballot‑papers is clearly visible and it dim as alleged in the petition. This issue is also decided against petitioner. Issue No. 7.‑‑ The allegations of the petitioner is the election petition, which gave rise to the above issue, was whether the persons other than the electors were issued the ballot‑papers and allowed to cast votes. He submitted that the various persons enlisted from serial No. 15227 to 16313 (female) and from serial No. 17921 to 19201 (male) are residents and enrolled as voters on the electoral roll for the area beyond the limits of the constituency. The first respondent denied the allegation and submitted that an objection was raised before the Returning Officer but the same was rejected by him. The Election Commission rightly included in PP‑99, Lahore‑VI. He further submitted that when delimitation was finalised no objection was raised by any candidate. In order to appreciate the controversy it is necessary to mention the relevant provisions of the Delimitation of Constituencies Act, 1974 and the Electoral Rolls Act, 1974, section 8(2) of the Delimitation of the Constituencies Act lays down that for the purposes of election to Provincial Assemblies, the Commission shall divide each Province into as may separate territorial Constituencies as the member of Muslim seats fixed under paragraph (a) of clause (i) of Article 6 of the Houses of Parliament and Provincial Assemblies (Election Order 1977). Section 9 provides that all constituencies for Muslim seats shall be delimited having regard to the distribution of population, including non‑Muslim, in geographically compact areas, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of constituencies. Subsection (3) of section 10 of the Act provides that the Commission shall after hearing and considering the representation, if any, received by it, make such amendments, alterations or modifications, the preliminary list published under subsection (1) as it thinks fit or necessary, and shall publish in the official Gazette the final report and list of constituencies showing the areas included in each constituency. Section 10‑A provides that notwithstanding anything contained in this Act, the Commission may, at any time, of its own motion, make such amendment, alteration or modification in the final list of constituencies published under subsection (3) or in the areas included in a constituency, as it thinks necessary. Sections 8 to 10‑A are integrated provisions. They form a complete code by themselves in the matter of delimitation of constituencies for elections of the National Assembly and Provincial Assemblies. It is clear from those provisions that the validity of the delimitation of any constituency or any proceedings taken or anything done by or under the authority of the Commission under this Act shall not be called in question in any Court. The provisions of the Electoral Rolls Act, 1974 deal with the preparation and revision of electoral rolls for electors to the National and Provincial Assemblies. The provisions contained in section 6(2) prescribed the qualification for being registered as a voter. The provision of section 6(1) provide for preparation of preliminary electoral rolls. The provision of section 17 provide for revision of electoral rolls. Section 18 provides for correction of entries on the electoral rolls. Section 2(2) defines "electoral area" and which reads as under: "(a) in rural areas, a village; and (b) in urban areas.‑‑ (i) where there is a municipal ward, such ward, (ii) where there is no municipal ward a well‑defined Mohallah or street, and (iii) where the ward, Mohallah or street is too big a well‑defined part thereof; or (c) such other areas as may be determined by the Commissioner; Sections 7 to 23 are integrated provisions. They form a complete code by themselves in the manner of preparation and maintenance of electoral rolls. It is clear from these provisions that the entries found in the electoral rolls are final and they are not open to challenge either before civil Court or before a tribunal which considers the validity of any election. The contention of the learned counsel for the petitioner is that the notification was not implemented as such the election is void. The petitioner sent a legal notice Exn. 2/1 upon the Returning Officer stating therein about the deletion of voters from serial No. 15227 to 16313 (Female) and votes serial Nos. 17921 to 19201 (Male) from voters lists of Sitara Colony No.

2. The Returning Officer sent a reply and stated therein that the electoral roll could not be amended by the Returning Officer and under the law after the announcement of the Election Schedule. It is also stated, therein, that those voters are the part of Electoral Roll No. Ward 8, Lahore Cantt: and on account of that reason those were included in the polling scheme pertaining to N.A. 83 Lahore‑III and PP‑99 Lahore‑VI. It would appear that under the Electoral College Act, 1974 and the Representation of Peoples Act, 1976 the election of members of National Assembly and Provincial Assembly is to be held on the basis of adult suffrage and there shall be an electoral roll prepared in the manner prepared by the Act and its Rules framed thereunder, I have already stated that under subsection (e) of section 8 of the Delimitation of Constituencies Act, 1974 the Commission was authorised to delimit territorial constituencies for elections to the National Assembly and Provincial Assemblies in accordance with the Provisions of the (House of Parliament and Provincial Assemblies (Election) Order, 1977. Under the provisions of section 10‑A of the Delimitation of Constituencies Act, 1974, the Election Commission issued a Notification No. F‑6 (1)/85 Cord, dated 6‑1‑1985. Section 6(2) says that every person shall be enrolled who is citizen of Pakistan and is not less than eighteen years of age on the first January in the year in which preparation or revision of the electoral rolls commences under this Act. For the election to PP‑99 Lahore‑VI the Election Commission and the Returning Officer thus accepted the voters listed at serial Nos. 15227 to 16313 (female) and 17921 to 19021 (male) of Sitara Colony No. 2 as part of PP‑99 Lahore‑V

1. By the application of sections 8(2), 10 of the Delimitation Constituencies Act, 1974 and sections 6(1), 16 and 20 of the Electoral Rolls. The same rolls became the rolls for electing members of the Punjab Provincial Assembly. In short the electoral roll is to be deemed final and conclusive so far as fulfilment of qualification of a voter is concerned and also the voters were included in the constituency. The notification was given due effect by the Commission. The Returning Officer appeared before me and no question was put to him that no effect was given to the Notification. The subject of questioning Election petition is dealt with in section 8 of Halsbury's Laws of England Vol. 15 4th Ed: Item (vii) deals with scrutiny and after considering its history it is stated at the bottom of paragraph No. 925: "Accordingly, it would appear that the votes of persons who were not entitled to be registered because they did not have a resident or non‑resident or a service qualification would not be questioned on a scrutiny." The above statement is based on two cases. I propose to refer to only the latter of the two cases namely, Petersfied case, Stowe v. Jolliffe 1874 L.R. 9 C.P.

734. After consideration of the history of legislation on the point, Lord Coleridge, C.J. expressed the opinion that from the Reform Act to the Ballot Act the tendency of Legislation had been to make the register of voters conclusive with certain exceptions. He then says at p. 750: "I think the true construction of these sections, which alone remain, is, to make the register conclusive not only on the Returning Officer, but also on any tribunal which had to inquire into elections, except in the case of persons ascertained by the proviso. These are, persons, prohibited from voting by any statute or by the common law of Parliament." The law laid down above still holds the field in England; it is well‑settled there that it is not open to a Tribunal which has to enquire into elections to consider the correctness of the entry in a register of voters except in so far as to see whether the person whose name is entered was prohibited from voting by any statute or by the common law of Parliament. Article 9 of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 says:‑ (1)‑‑At any election to a Muslim seat or a non‑Muslim seat in Assembly or a Provincial Assembly, only such persons shall be entitled to vote in a constituency as are enrolled on the electoral roll prepared in accordance with law on the principle of separate electorate for any electoral area, in that constituency." The above provision confers a right on a. person whose name is entered in the electoral roll, to exercise his franchise. The right to vote that has been conferred is simply by virtue of the, fact that his name is entered in the electoral roll or a constituency. This obviously means that it is not possible to go behind the roll either for proving that a person's name should have been entered but has been wrongly omitted or for showing that a person's name should not have been entered but has been wrongly entered. For the reasons given above, I have come to the conclusion that the contention of the learned counsel for the petitioner has no force and the election is not void. The voters at serial Nos. 15227 to 16313 (female) and voters at list No. 17921 to 19201 are part of this constituency and cannot be challenged in this petition. I hold that the voters exercised their right of votes rightly. This issue is decided against petitioner. In the result the petition fails and is dismissed. However there will be no order as to costs. A. A . Election petition dismissed.