1995 PLP 917 (CLC)

(iii) that the statements of count and form XVI‑A were not in accordance with the ballots found in the bag in two or three cases; and (iv) that some invalid votes have been included in the counting. The objection that record of about 200 polling stations has not been received does not hold good. In fact this objection was raised at the initial stage of the recounting while under the direction of this Tribunal the record .of the remaining polling stations was also requisitioned. It was ultimately only 13 polling stations mentioned in Annexure `F/III' of which record was not traceable. This objection was also raised by Ch. Fateh Jang through C.Ms. filed on 9‑2‑1995, which have been dismissed today vide a detailed order suffice it is to record here that not only the parties did not raise any objection, whatsoever, as to statements of count but the same were signed by them in token of correctness and same have been placed on record alongwith the reports. Even there is no discrepancy, therefore, it is absolutely safe to proceed on their basis and include their result in the recounting. Moreover, the result of constituencies as is clear from Annexure `F/I1' tallied, therefore, the objection is without any merit. The other objection that the bags were not properly sealed is of no significance because votes etc. tallied with the statement of counts (form XIV) which, as already noted, were not challenged by either of the parties. The objection in absence of any proof or even allegations of tampering with is meaningless. It is otherwise impossible to conceive of any tampering within such a triangular contest. The third objection that the statement of count and form XVI‑A were not in accordance with the ballots in two/three cases was examined and found incorrect. The last objection as to counting of alleged invalid votes has been examined at length in the C.Ms. moved by Ch. Fateh Jang and dismissed today vide a detailed order. Suffice it is to record here that the Provincial Election Commissioner categorically stated that he had not included any vote in recounting which was declared invalid by the Presiding Officer. He submitted that in fact he maintained the decision of the Presiding Officer as to invalidity of votes as directed by this Tribunal. It is clearly recorded in order dated 9‑8‑1994 of this Tribunal that there is no dispute about the validity of votes. In any case even if those votes are excluded it would not change the position.

5. Now coming to the plea of the respondent Dr. Sheela that form XVI‑A has been tampered with after the declaration of the result and as such not reliable. It is not possible to accept this sweeping statement. The basic fallacy is that even after reopening of the election material the respondent or anyone else did not object to statements of count, prepared by the Polling Officers spread over the whole of the province, therefore, even if forms XVI‑A as prepared by the Assistant Returning Officer were tampered with still we have the basic record to correct the mischief. This is not all. The Polling Officers were civil servants while Assistant Returning Officers were the judicial officers. The statements of count and form XVI‑A were duly signed by them. This was their official act, therefore, presumption of truth is attached to the same. In this behalf, reference can be made to the case of Syed Fakhar Mahmood Gilani v. Abdul Ghafoor (1995 SCMR 96) especially when none of the parties during recounting process could point out to a single statement of count or form XVI‑A which according to it was forged, fabricated or tampered with, therefore, the presumption remained unrebutted. In these circumstances, there is no merit in this plea. In fact this was the only plea available to the respondent Dr. Sheela otherwise it was obvious from the report of recounting that the result has been fabricated at the level of the Returning Officer. This also gets support from the fact that none of the petitioners have found fault with the election process rather they have relied on the same and throughout contended that their grievance is of wrong and incorrect counting by the Returning Officer. This controversy need not be discussed any further as the petitioners have not alleged this in their election petitions while Dr. Sheela has not filed any written statement.

6. The election of the respondent‑Dr. Sheela was challenged on the sole ground that the votes obtained by the present three parties were not correctly posted in the form XVI‑B. It is clear from Annexure 'R/III' with the final report submitted by the Provincial Election Commissioner that the allegations are correct. These figures which are supported by the original record are clear proof that the election was not rigged but the result was high‑jacked and somebody was very kind to the returned candidate to present fifth seat to her. The process of election has been polluted in a very crude manner otherwise the author should have kept in mind that the candidates by and large have the copies of statements of count and roughly they knew their positions as is clear from data given in he two election petitions. Even according to the 'provisional result' the Election Commission and result appearing in the Daily 'Jang' dated 15‑10‑1993 Dr. Sheela was at No. 7.

7. The recounting has proved that the allegations are correct as is clear from the following data: Positing in recounting. P.P. No. Dr. Sheela Fateh Jang Dr. Sheela Fateh Jang XVI‑A XVI‑B XVI‑A XVI‑B 184 0 192 192 ‑ 0 0 191 185 1 272 272 1 0 272 The returned candidate according to the result declared in the official Gazette had only edge of 219 votes over the petitioner whereas from these two constituencies she was wrongly given credit of 462 votes. It is not a case of human error because name of Dr. Sheela is at serial No. 26 of the ballot paper while that of Ch. Fateh Jang is at serial No. 18, therefore, there is no question of interchanging their result. This proves that it was all mala fide. The applicant as well as the other election petitioner gave in writing on 9‑2‑1995 that recounting has been done and they do not want ballot papers of any other polling station. The statement is appended as Annexure 'G' with the final report. The result as tabulated by the Election Commissioner in the recounting is as under:‑ Sr. No. Name Votes obtained

1. Qaisar Ifrahim Saroya 9985

2. Ch. Fateh Jang 9878

3. Dr. Sheela B. Charles 9319

8. Before parting with the order I find it my duty to point out that there is a provision to suitably deal with the Returning Officer and other staff in section 91 of Act of 1976 but there is no provision to deal with the candidate and others found involved in such misdeeds. The moral fibre has gone too low and at least we have a very crude example of high‑jacking the result in this case, therefore, the Election Commission of Pakistan and Ministry of Justice and Parliamentary Affairs (Justice Division) may think of proper legislation to cure this tendency. Besides this I would suggest some administrative measures to avoid such situations in future. The same are as under:‑ (i) the constituency of minorities may be divided into single member seat. It would also help the electorate to elect their representatives in the true sense. It is clear from the result as noted in the opening para of this order that all the returned candidates belonged to Lahore, Gujranwala .and Faisalabad Divisions. The remaining divisions of the province remained unrepresented; (ii) the moment an election petition is received by the Secretary, Election Commission of Pakistan, instructions should be issued preferably to the Provincial Election Commissioner to secure the election record forthwith; (iii) the Election Commission should have its own Record Room/arrangements for safe custody of the election material; (iv) the Staff particularly the Presiding Officers, Assistant Presiding Officers and Polling Officers should be imparted training for one week before elections otherwise they would continue committing mistakes like‑ (i) issue polling paper alongwith the counterfoil; and (ii) failing to sign or stamp the ballot or both.

9. I would be failing in my duty if the devotion with which Mr. Nafeer A. Malik, Advocate and Mr. Bilal Hassan Minto, Advocate assisted this Tribunal is not appreciated. They very ably prepared their briefs and assisted the Tribunal to clear legal and factual controversy involved in these election petitions. It was keen contest. I am also thankful to the officials of the Election Commission especially Mr. Tariq Latif, Provincial Election Commissioner for rendering all the assistance.

10. The upshot of the above discussion is that this election petition is partially allowed in view of my findings in para.

7. The result is that election of Dr. Sheela B. Charles, the returned candidate, is declared void but instead of petitioner, Qaisar Ifrahim Saroya respondent No. 47 and petitioner in E.P. No.86/93 is declared duly elected in her place. AA./133 Order accordingly.