1986 PLP 1284 (CLC)

S. Name of the contesting Party No. of valid Percent No. candidate affiliation votes polled age 1. Mr. Badi‑ul‑Hasan Zaidi. P.P.P. 24,901 31.86 2. Mr. Ahad Yousuf JUP (UF) 23,765 30.40 3. Mr. Abdul Majid Abbasi N.A.P. 644 0.82 (Awami) 4. Mr. Shaukat Ali. (Ind.) 389 0.50 5. Mr. Nawabzada Hamid Ali SKMPPM 96 0.12 Khan. Mr. Ahad Yousuf, who secured the second highest number of votes with a difference only of 1136 votes between him and the successful P.P.P. candidate has, in his written application to me, made some very grave allegations which he has stressed before me, during the hearing. Some of these are: (a) That the Presiding Officers refused to supply the copies of the statement of count in respect of used/unused ballot papers, complete statement of count of votes secured by each candidate and other relevant information which they were bound, under the law, to provide to the candidates/ agents. In spite of demands made in this behalf; (b) that the Presiding Officers did not pack and seal the packets properly as required by law, did not sign them nor did they obtain the signatures of the agent in spite of their insistence to do so; (c) that the Presiding Officers went away in jeeps to Circuit House where a Minister of the Ruling Party was present and the entire bungling took place; (d) that there were over‑writing on the envelopes of the ballot papers to inflate the figures of the number of votes polled by the P.P.P. candidate, (e) that in the packets hundreds of unfolded ballot papers were found which were obviously and apparently added after the polling. In hundreds of cases the ballots were folded in such a way that they could not be put in the ballot boxes through the slits meant for putting them in the ballot boxes. As concrete instances of the illegalities committed, it is pointed out that at Polling Station No.9 only 89 votes were secured by Syed Badi‑ul‑Hasan Zaidi which figure was written on the sealed packet by the Presiding Officer, but when the official counting was done by the Returning Officer, 1089 ballot papers were found in the packet of Mr. Zaidi. At Polling Station No.7, the same thing happened. As per preliminary count Mr. Zaidi had secured only 81 votes, whereas in his packet of that Polling Booth 481 votes were found. At Polling Station NoJ1, Mr. Zaidi had secured only 253 votes, whereas 1053 votes were found in his packet and that over‑writing on the packet demonstrates this fact. At Polling Station No.17, four packets were taken out, two of which, allegedly of Mr. Zaidi, were neither sealed nor signed by the Presiding Officer or the election agents. I made it clear to the petitioner, Mr. Ahad Yousuf and his companions, that even if were satisfied that 11 or any of his allegations were true, it is not within my powers, under the existing law, to call in question the election of the candidate who has been declared successful by the Returning Officer by a public notice after the consolidation .of the results by him under section 39 of the National and Provincial Assembles (Elections) Ordinance, 1970, hereinafter referred to as the Ordinance. According to the constitutional mandate as contained in Article 225 of the Constitution of the Islamic Republic of Pakistan no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of Parliament. Section 50 of the Ordinance which is in consonance with this constitutional mandate, is as follows:-- "No election shall be called in question except by an election made by a candidate for that election

" Faced with this difficulty and fully appreciating it, Mr. Ahad Yousuf reduced his, prayer and relief to a direction by me under section 37 (5) (b) of the Ordinance for a re‑count of the ballot papers which he contended would yield the result in his favour and show that he had won the election by en overwhelming majority. To consider this submission, it is necessary to reproduce section 37 (5) (a) (b) of the Ordinance, which is as follows:-- "37 (5) . The Returning Officer shall not recount the valid ballot papers in respect of any polling station unless (a) the count by the Presiding Officer is challenged in writing by a contesting candidate or his election agent and the Returning Officer is satisfied about the reasonableness of the challenge; or (b) he is directed so to do by the Commission. A plain reading of this provision makes it clear that the Commission cannot undertake the count itself but can only direct the Returning Officer to do so in case the latter has refused the recount after a candidate or his election agent has challenged in writing the count made by the Presiding Officer, and the Returning Officer is satisfied about the reasonableness of that challenge. In the present case, it is conceded that the recounting of the whole lot of the valid votes as also, of the invalid votes, had been done by the Returning Officer at the request of the parties, although it is also alleged that at one stage when the petitioner, requested the Returning Officer by a written application to stop the count, he refused to entertain the application. The use of the word "or" between the two clauses of subsection (5) of section 37, is disjunctive and not conjunctive and the remedy, therefore, as provided in this provision is alternate, coeval and co‑existent. A contrary view would come in conflict with Article 275 of the Constitution because if after the declaration of the result by the Returning Officer the Commission were to direct a recount and the result attained is dif ferent from the one reached by the Returning Officer on his count, it would amount to upsetting the result of the election as declared by the Returning Officer. The election would thus lie called in question by the Commission which it cannot do under the constitutional provisions cited above. It is a totally wrong impression which appears to obtain in some quarters that the Election Commission has the powers under the existing law to revoke an election even if it is of the opinion that it is tainted with fraud and illegalities. There is no doubt that such a power should vest in the Election Commission which, as contemplated by the Constitution, is high‑powered body presided over by a sitting or a retired Supreme Court Judge with two sitting Judges of the High Court as its members. But this is not the position under the existing law as no power resides in the Commission to revoke an election. Again, it is an erroneous impression that the result of the election can be stalled or defeated by the Election Commission by refusing to publish the name of the returned candidate in the official Gazette as required by section 39 (4) of the Ordinance. The publication of the name of the candidate has to follow the result as declared by the Returning Officer who has also to submit to the Commission a return of the election in the prescribed form together with copy of the consolidated statements. The notification by the Commission is a mere formality which is not a part of the election. Under section 37 (4) of the Ordinance, it is the Returning Officer who has to declare the result of the election by public notice and to announce the name of the candidate who has been elected by securing the highest number of votes. The election becomes complete with the declaration of the result by the Returning Officer. In the case of Muhammad Nazir Hakim v. Bukhtiar Said Muhammad and another, a Full Bench of the Lahore High Court, presided over by the late Mr. Justice M.R. Kayani, it was held as follows:

"An election is not complete until the entire election programme is over, but notification of the result is no part of the election programme as detailed in rule 4, sub‑rule (3) of the Basic Democracies Election Rules, 1959. An election ends with the declaration of the result, and since the Government does not fix any particular date for its notification, the date on which an election becomes complete will remain a matter of uncertainty if the notification of the result were also regarded as a part of the election." In the case of Manzur‑ul‑Haq v. Controlling Authority, Local Councils, Montgomery and others P L D 1963 S C 625, the Supreme Court has held that the notification is not a condition precedent to the holding of office. The following observation from that judgment is pertinent: "Unless there be something in the language of a statute which shows that the person concerned will not commence to hold an office till there is a notification in the Gazette a provision for a notification should not be interpreted as a condition precedent to the holding of an office." In the case of Muhammad Shan Okarvi v. Returning Officer N.W.131 Karachi‑IV which arose in the 1970 general elections, an issue was raised with regard to the powers of the Commission to Order a recount. Not satisfied with the result of the count as made by the Returning Officer, Maulana Okarvi filed a petition under section 37(5)(b) before the Commission praying that the Returning Officer be directed to recount the valid votes. The Commission held that the prayer made for recount could not be accepted after the declaration of the result by the Returning Officer as it would amount to calling into question the election of the returned candidate which under the law can only be done by means of an election petition before an Election Tribunal. The position under the 1962 Constitution, however, was different which under Article 171 had empowered the Election Commission or the Chief Election Commissioner to hear appeals against the count by the Returning Officer. Thereunder, the Election Commission or the C.E.C. could determine the disputes arising from the count of the votes at an election by the Returning Officer. That was, indeed, a wholesome provision which has not been incorporated in the 1970 Ordinance. Under the 1962 Constitution, the Commission could in its appellate jurisdiction readily and pre‑emptorily undo the mischief done by a fallacious count by the Returning Officer. It is generally felt, and very genuinely so, that the tardy remedy of an election petition is almost reduced to a farce, as, on the average, the trial of an election petition is dragged on for years, particularly owing to the privilege that has been accorded to the members of the Assemblies that no proceedings by the Tribunal or Court can be held in which they are involved during the period when the House of which he is a member, is in session and for 15 days preceding and 15 days following it. The tribunals have, in consequence, to play a game of hide and seeks, to find intervals for proceeding with their work to avoid conflict with this legal bar. The new law for the elections is shortly to be enacted and I hope this wasteful and time‑consuming provision will not remain on the Statute Book. The matter requires serious consideration as to how best to make the election laws more effective and efficacious for eradication of illegal practices during the election and for speedy resolution of election disputes. Corrupt and illegal practices during an election can be eliminated to a large extent if a candidate who wins an election by foul and underhand means were to know that his membership is short‑lived as it can be terminated quickly and pre‑emptorily by the Election Commission or the Election Tribunal. Mr. Ahad Yousuf has pressed into service Article 218 (3) of the Constitution which lays down that it is the duty of the Election Commission constituted in relation to an election to organize and conduct the election and to make such arrange ments as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against. This is true so far as the preparatory and operational effort of the Election Commission is concerned, to produce the result as envisaged in Article 218 of the Constitution. But, it should be realized that the Election Commission can at best set up the machinery for this purpose which is available to it, to hold the election in a fair manner and for this it has, of necessity, to entrust the various functions in connection with the processes of an election or a by‑election to the public servants who have to be borrowed in large number from the relevant Provincial Administrations. The Commission has primarily to depend on their integrity, probity and loyalty to the Constitution and the laws of the land. The matter has to be left to their good conscience and to their sense of duty and patriotism to the State. If they fail, the Commission can do nothing except to report their conduct to their respective administrations or to invoke remedies under the ordinary law of the land. Under section 87 of the Ordinance, if a public servant misuses his official position in a manner calculated to influence the result of the election, he is guilty of an offence punishable with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both. Similarly, under section 86, a Returning Officer, Assistant Returning Officer, Presiding Officer Assistant Presiding Officer or any other person employed by any such officer in connection with his official duties imposed by or under this Ordinance, is guilty of an offence punishable with fine which may extend to five hundred rupees if he wilfully and without reasonable cause, commits breach of any such official duty, by act or omission. Courts can take cognizance of such offences upon al complaint in writing made by or under an order of the authority of the' Chief Election Commissioner. Since specific allegations have been made in connection with this bye‑election which are of serious character, I have decided to hold an inquiry to consider it and what action can be taken. I shall be in Karachi for this purpose from the 17th to the 20th instant, in particular to examine the records of this bye‑election which are in the safe custody of the Provincial Election Commissioner, Sind (Karachi), in the light of the allegation that tempering with the election records has taken place. Notices shall issue td all the contesting candidates and other persons who have made allegations to be present if they so desire. They should be ready to adduce proof in support of their complaints. Obviously, no action will be possible in the absence of solid and convincing proof. A. A. Order accordingly.