1998 PLP 64 (MLD)

4. On the other hand, Malik Muhammad Rafiq Rajwana, Advocate, learned counsel for the contesting respondent has argued that there is no justification in law available for the petitioner to pray for recounting of the votes as the requirements postulated by section 39 of People Representation Act, 1976 were not fulfilled. He has mainly relied upon: Kanwar Ijaz Ali v. Irshad Ali and 4 others (PLD 1985 Journal 283), Hakim Ali Bhatti v. Qazi Abdul Hakim and others (1986 CLC 1784), Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another (PLD 1986 SC 542) and Mian Ejaz Shaft v. Syed Ali Ashraf Shah and 12 others (PLD 1994 SC 867).

5. Section 39(6) of Representation of People Act, 1976 reads as under: "39(6). The Returning Officer may recount the ballot papers:‑‑ (a) upon the request of or challenge in writing made by a contesting candidate or his election agent, if the Returning Officer is satisfied that the request or the challenge is reasonable; or (b) if so directed by the Commission, in which case the recount shall be held in such manner and at such place as may be directed by the Commission. " 5‑A. Following principles pertaining to recount by/under .the order of Election Tribunal, are deducible from the case law referred to, during the course of arguments; (a) The election petition must contain an adequate statement of all the material facts on which the allegation of illegality or irregularity in counting is founded. (b) On the basis of evidence adduced such allegation is prima facie established that there was a mistake in counting. (c) The Tribunal is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. (d) Recount cannot be ordered on the basis of vague allegations. Case seeking recount will have to be set up with precision, supported by averments of material facts.

6. It is to be seen as to whether on the touch stone of the above principles the petitioner has been able to make out a case for recounting of the ballot papers as a whole or part thereof i.e. the rejected ballot papers/postal ballot papers.

7. As regards the plea of recount of ballot papers as a whole, I am afraid, no case at all is made out by the petitioner in the election petition. There is only vague and bald allegation in para. 4 of the petition that the polling agents of the petitioner were not allowed to participate in the proceedings of nine polling stations "situated within the area of influence of the alleged returned candidate that Town Committee Qadirpur Ran". It is further contended that whereas the results of other polling stations depicted close contest, at the said nine polling stations out of 7293 votes case, the petitioner was shown to have polled 1010 votes only. Neither the names of the polling agents who were allegedly prevented from "participating in the proceedings of nine polling stations" have been mentioned nor the numbers/addresses of the polling stations have been disclosed. No evidence whatsoever was led in support of this allegation. The assertions made in this paragraph stand duly controverted by the contesting respondent through his reply. Results of all the polling stations, inclusive of the "nine polling stations" have been placed on record by the petitioner himself, perusal whereof does not give even the slightest indication of non‑participation of the polling agent of the petitioner at even one polling station. Whether or not the petitioner got a lead over the respondent at certain polling stations or the respondent achieved better results at other polling stations cannot, per se, be taken to be a ground for holding that mal‑practice in the matter of recounting took place at one set of polling stations or the other. The allegations in para. 4 being vague and indefinite and not supported by evidence cannot be given any serious consideration so as to justify ordering of recount of all the votes cast in the election. It is clear that merely because there is discrepancy in the counts of rejected ballot papers as carried out by the Presiding Officers and the Returning Officer, per se, does not furnish the petitioner with a ground to seek recount of all the ballot papers. The plea for recount, as a whole, is repelled.

8. Coming to the question of recounting of rejected ballot papers there is discrepancy in the two counts of the rejected ballot papers, one by the Presiding Officers and the other by the Returning Officer, the same is quite glaring. According to the result announced by the Returning Officer as many 703 votes were considered/treated to be rejected and, thus, not included in the count. According to the petitioner, the total number of rejected votes, as per results supplied by the Presiding Officers, comes to 789 and, thus, there was a discrepancy of 86 votes. I have checked all the results submitted by the Presiding Officers to the Returning Officer and found that their total came to 812 votes.

9. However, nothing would turn upon the mere miscalculation of total number of rejected votes as it would not affect the result of the election in any manner. It is not the case of the petitioner that some invalid votes were treated as valid and then counted in favour of the opposite party. These invalid votes, whatever their actual number may be, were excluded from counting altogether. No case is made out for recounting of the rejected votes.

10. The only question that now remains to be attended to is whether a case has been made out for partial recount, which is to be confined to the ballot papers received by the Returning Officer through post. Taking up the case of the postal ballot papers in this regard, it may be noted that the objection taken with regard to their counting by the Returning Officer, as contained in para. 5 of the election petition is that "such ballot papers which did not contain any declaration provided in Rule 13(3) of the Rules", have also been counted illegally (though these merited outright rejection). The petitioner has mentioned the number of such votes as

150. In his reply, the respondent has termed these assertions to be false. He has referred to the application, which was alleged by the petitioner to have been moved before the Election Commission of Pakistan seeking relief for recount, and asserted that the Election Commission called for a report from the Returning Officer and after perusing the same rejected it. Neither the copy of the application nor the report of the Returning Officer nor the copy of the order passed by the Election Commissioner has been placed on record. It is clear that soon after the election, the petitioner has raised this plea and, thus, it cannot be rejected summarily as an afterthought. The denial on the part of the respondent to allegation of violation of Rule 13(3) of the Rules, in my view does. not absolve this Tribunal of its responsibility to unearth the truth. Interest of justice demands that the postal ballot papers be directed to be produced before this Tribunal for inspection to ensure that the same conformed to the relevant rules, so as to qualify for being counted. The denial of the respondent that postal ballot papers did not suffer from patent illegality, as alleged by the petitioner, is rather evasive in nature. Whether or not all these ballot papers or some of them merited to be included in the count can be decided only after their production and visual inspection.

11. It is accordingly ordered that the record of postal ballots shall be produced before this Tribunal for rechecking and re‑counting. A.A./M‑460/L Order Accordingly