1998 PLP 2033 (CLC)

55. Contents of petition.‑‑‑ (1) Every election petition shall contain‑‑ (a) a precise statement of the material facts on which the petitioner relies; (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and (c) the relief claimed by the petitioner. (2) A petitioner may claim as relief any of the following declarations, namely:‑‑ (a) That the election of the returned candidate is void; (b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or (c) that the election as a whole is void. (3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner arid verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings." It is manifest from its bare reading that the election can be called in question by the election petition as contemplated in section 52 of the Act ibid which has to be represented to the Commission within forty‑five days of the publication of the name of the successful candidate in the official Gazette and it shall be accompanied by a receipt of the deposit of Rs. one thousand whereas section 55 ibid provides that election petition shall contain material facts with full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full statement indicating the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date of place of the commission of such practice or act and the relief sought for. The petition appears to be in order as it contains the material facts and the grounds on which the election has been challenged. It is also accompanied by the affidavits of the witnesses and the receipt of Rs.1,000 as required under the law. Both these issues are decided accordingly. Issue No.3.‑‑‑ The case of the petitioner as enunciated in the petition and reiterated in the statement of the petitioner is that during the consolidation proceedings it came to light that some of the ballot‑papers did not bear initial/signature of the Presiding Officer but they only bore stamp marks which suggested manipulation and bogus casting of votes. He applied to the Returning Officer for the recount and exclusion of such votes being invalid. The Returning Officer started the recounting but it was stopped at the instruction of the District Returning Officer. Sajjad Anwar, Senior Civil Judge/Returning Officer appeared as P.W.2 who stated that he consolidated the election result on 6‑2‑1997 with notice to the petitioner. The petitioner applied for recount the votes polled at Polling Stations Nos.12, 13, 16, 17, 26, 27, 44, 45 and

46. He accepted the application and started recount and during checking nothing favourable to the petitioner was found. He stated that some counterfoils, of the ballot‑books were not carrying the signatures of the Presiding Officer but it only bore the stamp mark of the Presiding Officer. In cross‑examination he stated that the stamp of the Presiding Officer and thumb‑impressions affixed on the ballot‑papers were in haphazard manner and stated that he cannot say whether the stamp and the thumb‑impression suggest any manipulation. He stated that he did not recount the ballot‑papers relating to Polling Stations 44, 45 and 46 as he was repeatedly asked by the District Returning Officer to expeditiously submit the result of the Constituency. He stated that on the polling day he received a message from Deputy Commissioner, Kohat that the polling in Female Polling Station in Government High School, Tough Bala had not started. He visited the polling station at 8‑30 a.m. and asked the Presiding Officer as to why the election has not started, but he could not give any satisfactory answer. In cross‑examination he stated that except for the message of Deputy Commissioner, Kohat and the application of the petitioner, dated 3‑2‑1997 regarding the non‑starting of the polling at Female Polling Station, he received no other complaint regarding any irregularity, or any corrupt or illegal practice in the election. He admitted that respondent No. l obtained 9911 votes while the petitioner obtained 6762 votes and the difference between the two was 3149 votes. He also admitted that number of votes obtained by respondent No. l in all the Polling Stations objected to by the petitioner comes to 2278 votes and if the aforesaid votes are excluded from the total number of votes secured by respondent No.1 even then the respondent No. l would still win.

13. Ghulam Habib petitioner himself appeared as P.W.5 who stated that the election petition was drafted at his instructions and reiterated the contents thereof on oath to be correct. In cross‑examination he stated that on the polling day he made an application to the Returning Officer regarding late starting of the poll in Female Polling Station in Government High School, Tough Bala and no other application was made on the said date. He also admitted that he submitted an application to the Election Commission of Pakistan on 5th of February, 1997 and another application on 6th of February, 1997 pointing out certain discrepancies in certain polling stations on the date of consolidation of result.

14. Mr. Jehangir Khan, District and Sessions Judge/District Returning Officer appeared as P.W.6 and stated that he in his capacity as District Returning Officer made a round to the offices of the respect Returning Officers on the day of consolidation of results so as to ensure timely completion of such consolidation and deposit of election materials in the treasury. He visited the Office of Returning Officer of PF‑28 Kohat‑I and found that some election bags were lying in his Retiring Room and on his query from the Returning Officer, he was informed that he was to recount certain ballot‑papers on the application of the petitioner. He told the Returning Officer that it would be better if this exercise is done in the Court Room instead of the Retiring Room because the same was small and cannot accommodate the persons from the public. In the cross‑examination he denied the suggestion that he instructed the Returning Officer to stop the recounting and as a result thereof the recounting was stopped. He stated that due to sickness of his mother he could not attend the Tribunal for recording his statement in response to the notice of this Tribunal.

15. The assertions in the petition and the evidence show that certain ballot -papers did not bear the initial /signatures of the Presiding Officer but they bore the stamp mark of the Presinding Officer which ballot‑papers had been counted in favour of respondent No.

1. The second allegation is that the poll in the female Polling Station at Government High School, Tough Bala was started late. Both these allegations are against the polling staff of the polling station and respondent No.l cannot be held responsible for the said lapses/omission. Section 33(2)(d) of the Representation of the People Act, 1976 provides that the ballot‑papers shall on its back be stamped with the official mark and signed by the Presiding Officer whereas subsection (4)(c)(i) of section 38 of the Act ibid provides that the Presiding Officer shall count, in such manner as may be prescribed, the votes cast in favour of each contesting candidate excluding from the count the ballot‑papers which bear ‑ (i) no official mark and signature of the Presiding Officer.

16. The above‑quoted sections and Rules 23(i) and 64(3)(t) of the Representation of the People (Conduct of Elections) Rules, 1977, came under consideration before the Supreme Court of Pakistan in a case of Ch. Muhammad Abdullah v. Ch. Abdul Wahid reported as PLD 1986 SC 487 wherein it was observed as follows:‑‑ "

12. In the light of the decided cases cited at the Bar and on examining the statutory provisions hereinabove reproduced, we are of the view that a ballot‑paper can be rejected as invalid under section 38(4)(c) when neither the official mark nor the signature of the Presiding Officer are present on its back, so that if either it bears the official mark or the signature of the Presiding Officer, the ballot‑paper cannot be excluded from the count and has to be treated as a valid vote in favour of the candidate in whose name it has been cast. The change effected by the amendment in substituting the conjunction 'or' with 'and', in our view makes the position all the more clear, that for purposes of exclusion, both conditions must co‑exist that is, there should be no official mark and no signature on the ballot‑paper. Conversely if one condition exists, the ballot‑paper cannot be excluded from the count. In regard to elections to the seats reserved for women, Rule 58 makes similar provisions for stamping the ballot‑paper with the official mark and initials of the Presiding Officer. So far as rejection of invalid ballot papers Rule 64(3) lays down various situations in which the ballot paper in such an election is to be rejected as invalid. The language of Rule 64(3) takes the matter beyond any controversy by categorically providing that a ballot‑paper shall be invalid which does not bear both the official mark and the initials of the Returning Officer. Although this rule is not directly applicable in the case of election to the general seat which is the case before us, it provides unambiguous insight into the mind of the law‑maker, in that similar provisions made in connection with the different types of elections must have similar effect under the same law.

13. In this view of the matter we are unable to agree with the Tribunal that if both the official mark and the signature of the Presiding Officer were present on the ballot‑paper only then could it be counted as a valid vote, otherwise it was to be excluded. This in our view, would have been the effect if the provisions of section 38(4)(c) were couched in positive language to the effect that such ballot‑papers were to be counted which bear official mark and signature of the Presiding Officer. But the provisions are couched in a manner that the two conditions have been laid down for the purpose of exclusion, therefore, the power to exclude the ballot‑paper is dependent on both conditions co‑existing simultaneously, which is the effect of the conjunctive 'and' used in the provisions. " In view of the above ruling of the apex Court. of the country votes which were not bearing the signature of the Presiding Officer were treated as valid and were correctly included in the count by the Presiding Officer. Moreover, the candidate cannot be penalised for the omission or lapse of the official/Presiding Officer. It may be mentioned that even if those votes would have been excluded, even then the respondent No.l had the leading position and it would not have affected the election result. In another pronouncement by the Supreme Court reported in the same book cited above at page 178, it has been held that "the general principle is that where the matter is one in which the voter has no control he is not to lose his vote on account of an omission by the officer". In view of the above this issue is decided against the petitioner. Issue No.4. The petitioner has not alleged any illegal or corrupt practice either in the election petition or in his statement before the Tribunal. His only case is that the polling at Female Polling Station, Government High School, Tough Bala was started late whereas at the time of consolidation of result certain ballot‑papers were found without initial or signature of the Presiding Officer. It would be appropriate to reproduce the definition of corrupt practice and illegal practice:‑‑ "

78. Corrupt practice.‑‑‑ A person is guilty of corrupt practice if he‑‑‑ (1) contravenes the provisions of section 49; and (2) is guilty of bribery, presonation or undue influence; (3) makes or publishes a false statement‑‑ (a) concerning the personal character of a candidate or any of his relation 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; (b) relating to the symbol of a candidate whether or not such symbol has been allocated to such candidate;' (c) regarding the withdrawal of a candidate; or (4) calls upon or persuades any person to vote, or to refrain from voting, for any candidate on the ground that he belongs to a particular religion, Province, community, race, caste, Bradari, sect or tribe; (5) knowingly, in order to support or oppose a candidate, lets, lends, employs, hires, borrows or uses any vehicle or vessel for the purposes of conveying to or from the polling station any elector except himself and members of his immediate family; or (6) causes or attempts to cause any person present and waiting to vote at the polling station to depart without voting.

83. Illegal practice.‑‑‑ (1) A person is guilty of illegal practice if he‑‑‑ (a) ................................................................................... (b) obtains or procures or attempts to obtain or procure, the assistance of any person in the service of Pakistan to further or hinder the election of a candidate; (c) votes or applies for a ballot‑paper for voting at an election knowing that he is not qualified for, or is disqualified from, voting; (d) votes or applies for a ballot‑paper for voting more than once in the same polling station; (e) votes or applies for a ballot‑paper for voting in more than one polling station for the same election; (f) removes a ballot‑paper from a polling station during the poll; or (g) knowingly induces or procures any person to do any of the aforesaid acts. (2) Any person guilty of illegal practice shall be punishable with fine which may extend to two thousand rupees. " The petitioner has failed to highlight any corrupt or illegal practice committed in the elections within the meaning of sections 78 and 83 reproduced above, therefore, this issue is decided against him. Issue No.5.‑‑‑ The petitioner has prayed for the recounting of the entire ballot‑papers/counterfoils polled in the election and to declare the election as void. In the applications submitted on 6‑2‑1997 by the petitioner to the Returning Officer for the recount of ballot‑papers, the petitioner had levelled general and vague allegations which he could not substantiate through any evidence. Recount cannot be granted unless conditions laid down in section 39 of the Act ibid are fulfilled and the Returning Officer is "satisfied that the request is reasonable". Reference can be made to PLD 1986 SC

483. The petitioner in his statement has unambiguously stated that he applied for recount of the votes to the Returning Officer after the informal result of the election. Since the petitioner has failed to prove any corrupt or illegal practice, therefore, it is not required at this stage to recheck and recount the ballot‑papers which otherwise would not affect the election result already notified. Relief. The netshell of the above discussion is that this election petition is dismissed, with no order as to costs. A.A./G‑173/E Election petition dismissed