1996 PLP 1574 (CLC)

PP‑74 15 19 PP‑ 196 ' 17 77 Where his votet were shown less than appearing in the* Form XVI‑B while the other petitioner pointed out two other constituencies namely:‑‑ Counted by C.W.29 Actual PP‑67 8 0 PP‑178 195 185 where more votes were credited to the petitioner, Fateh Jang than actually recorded in Form XVI‑B. The interesting feature is that the learned counsel for Fateh Jang maintained that the figures should be corrected only in respect of first 3 constituencies pointed out by him while the other 2 should .not ‑ be touched.

16. On the other hand, the learned counsel for respondent No.47 frankly conceded that the figures should be corrected as per Exh.CW29/41 in respect of all the '5 constituencies. The petitioner cannot have two standards, therefore, the figures are corrected in all the 5 constituencies as per Exh.CW29/41. The Provincial Election Commissioner has placed on record complete statement of 'the votes obtained by 3 parties from 205 undisputed constituencies. The same has been appended as Annexure ' B' with this judgment. The total in the statement is after making the correction.

17. The next objection on behalf of Fateh Jang to recounting was that 59 invalid votes from 35 polling stations were counted in favour of Qaiser and 17 in favour of Dr. Sheela, therefore, the same should be excluded from their grand totals.

18. On the other hand, Mr. .Bilal Hassan Minto, Advocate argued that Fateh Jang, in all has raised objections to 20 votes in. favour of his client on account of invalidity. It was added that the story of 59 votes has been introduced only to tilt the balance in his favour. It is added that the objection to 13. votes out of 20 is to the effect that the ballot did not bear either the signatures of the Presiding Officer or his stamp. It was argued that a ballot remains valid even if either the stamp or signatures of the. Presiding Officer are missing from it. The learned counsel in this behalf has referred to Ch: Muhammad Abdullah v. Ch. Abdul Wakil and others (PLD 1986 ‑SC 487): It was added that since the objection was neither raised at the time of counting by the Presiding Officer nor in the Election Petition, therefore, the same could not be raised during the recounting. The learned counsel in this behalf has referred to Harchand Ravi v. Manga Ram and others (1986 CLC 985). The arguments were concluded with the submission that the validity of the votes was maintained by the Provincial Election Commissioner during the recounting as is clear from his reports as well as statement ' as C. W .29.

19. The perusal of the record shows that the objection is. misconceived for the reason that the Provincial Election Commissioner has categorically and repeatedly stated that he did not disturb the validity of votes as. determined by the Presiding Officer. This is not all. Whets we refer to the votes, in favour of Qaiser Ifrahim Saroya as shown in Form XVI‑A and compare the same with the result of recounting then the objection is proved without merit. The position is as under:‑‑ Sr. No. PP Votes in Form XVI‑A ' Votes in recount 1. 45 1 1 2. 75 99 99 3. 79 Nil Nil 4. 107 Nil Nil 5 119 42 42 6. 136 49 49 7 156 172 184' 8. 164 42 26 9. 177 620 624 10. 181 370 369 11 185 79 79 12 191 11 11 Sr. No PP Votes in Form XVI‑A Votes in recount 13. 197 55 53 14. 222 28 29 15. 223 141 155 16 237 56 56 It is clear from the above data that so far Constituencies Nos.45, 75, 79, 119, 136, 185, 191 and 237 are concerned votes in Form XVI‑A and recount are exactly the same, therefore, the question of counting invalid vote does not arise while the Constituencies Nos. 181 and 197 the votes to the credit of Qaiser are less than the votes shown in Forms XVI‑A which cuts at the root of this objection. He got more votes in recounting only in Constituencies Nos.156, 164, 177, 222 and

223. In PP‑222 Fateh Jang was shown having polled four votes in Form XVI‑A but in recount there were three votes to his credit. On the other hand, there were 28 votes shown against the name of Qaiser in Form XVI A but in recount he got

29. This fully explains the addition of one vote. It is clear from this constituency alone that the Provincial Election Commissioner has not disturbed the validity of the votes as determined by the Presiding Officer because Fateh. Jang has raised objections of invalidity to five votes of Qaiser but the increase was only of one vote. Similarly, it has been alleged that invalid votes were counted in favour of Qaiser in P.Ps. Nos:79 and 107 whereas according to the record his score was nil both in Form XVI‑A and recount. These facts are more than sufficient to prove that the validity of votes was not disturbed in recounting. .

20. Now coming to the legal aspect of the objection. Mr. Bilal Hassan Minto, Advocate, has pointed out that as to the 13 votes, out of 20 objections available with the reports of recounting, the objections were as to either stamp of Presiding Officer on the ballot was not fixed or signatures were missing. In this behalf, he has rightly relied on the judgment of the Hon'ble Supreme Court in the case of Ch. Muhammad Abdullah (supra). In this way at the most there were only 7 invalid votes.

21. The plea otherwise is not tenable because .invalid votes in accordance with the instructions were to be put in separate envelopes by Presiding Officers. It seems that during the recounting process the parties noted some discrepancies in some ballots. Since the margin was too close between them, therefore, they were trying to capitalise technical objections. The admitted position is that none of the contesting candidates has raised any objection to the validity of the votes as determined by the Presiding Officer.So much so no ground has been urged in the election petitions, therefore, the same cannot be allowed to be raised for the first time now as ruled in the case of Harchand Rai (supra). It is relevant to mention here that Fateh Jang earlier to remand moved C.M. No.3/95 to urge the ground of invalidity of the ballots but the same was dismissed vide order dated 16‑2‑1995. He again after remand moved C.M. No.16/95 to the same effect, which was dismissed vide order dated 2‑5‑1996. Above all C.W.29 on the question of invalidity was to be confronted with the statement of count in respect of, 35 polling stations where he allegedly counted the invalid votes. This was not done. Even the particular ballot papers were not got separated from lot for future reference. The objections as to the validity raised by three parties can be summed up as under:‑‑ ' Dr. Sheela Qaiser Fateh Jang (a) Double stamp 0 3 1 ' (b) With counterfoils. 0 . 4 0 (c) No stamp of P.O. 0 6 9 (d) No signature of P.O. 3 1 0 (e) No stamp and signature of P.O. 6 0 It is relevant.to mention here that Dr. Sheela has also made objections in respect of some votes without specifying the exact number and as to whose favour the) same were cast. The objections are too: general. This fact alone is sufficient to discard the same.

22. All these facts lead to the irresistible conclusion that the Election Commission did not disturb validity of the votes as determined by the Presiding Officer in the recount. In the. absence of Written objections it is not possible to accept the plea that the petitioner objected to 59 votes. Moreso when C.W.29 on Oath. categorically stated that whatever objections A were made by the parties were appended by him with the reports of recount Exhs. CW29/36 to CW29/39. It is interesting to note in this behalf that all the three parties have raised similar objections to the votes counted in favour of the others. This goes a long way to show that the statement of the Provincial Election Commissioner that he did not disturb the. validity of the vote as determined by the Presiding Officer is correct. It was clearly riot only one' way affair. ,

23. The two votes were found without marking stamp. Mr. Bilal Hassan Minto, Advocate argued that those remained ballots because a ballot becomes vote after the marking stamp is put on the same by the voter to indicate his intention. The learned counsel in this behalf referred to section 38(c). 24.‑ Now coming to the objection that a ballot without marking stamp is not invalid. It is difficult to agree with the learned counsel view of clause B (c) (iii) of subsection (4) of section 38 of the Representation of the People Act, 1976 (hereinafter to bereferred as Act of 1976). The same reads as under: ‑ "

38. Proceedings at the close of poll. (1) (4) (a) (b) (c) count, in such manner as may be prescribed, the votes cast in favbur of each contesting candidate excluding from the count the ballot‑papers which bear‑‑ (iii) no prescribed mark to indicate the contesting candidate for whom the elector has voted;" Therefore, C. W .29 rightly excluded the same. The same could not be counted in l favour of any of the contesting candidates. r

25. It is worthwhile to refer at this stage to C.M. No.2/96 moved today by Dr. Sheela under section ,151, C.P.C. .for adequate opportunity to address arguments on merits.. The application has been repeated in connected election petition, also. The election petitions were fixed for 8‑5‑1996 and it was made clear to .the. parties that in case the Transfer Application is dismissed by the Hon'ble Chief Election Commissioner then they should conclude their arguments on 8‑5‑1996. Yesterday the learned counsel on behalf of election petitioners made some submissions while the counsel, who was present on behalf of counsel for Dr: Sheela, neither advanced any argument nor made any request for opportunity to address arguments. The petitions were accordingly adjourned for judgment for today and at about 10.00 a.m. I was informed that C.Ms. have been made in both the petitions for opportunity to argue on merits. But again junior counsel was present with the request for. adjournment while the learned counsel himself did not appear at all.

26. The learned counsel for the election petitioners have opposed the request and argued that the applications were mala fide and the only purpose is not to let Election Petitions decided. It was added that if the learned counsel fpr the applicant genuinely wanted to argue then this application should have been made on 7‑5‑1996 and he should have appeared‑on 8‑5‑1996 or at least today and argued the matters. It is added that the applicant has been participating in the proceedings as to her convenience. The arguments are summed up with the submission that since after dismissal of her review' application by the Hon'bie Supreme Court vide order dated 10‑3‑1996 her learned counsel only appeared on 2‑5‑1996 to argue C.Ms., .which have already been dismissed long back and roved inability to argue on merits. It was, therefore, prayed that the petition is mala fide and the objection is to keep the seat in the Assembly which she is not entitled to at all. 27.. I have given my anxious consideration. The applicant has been afforde more than fair opportunity to address arguments but she failed to avail the same. No patty is entitled to address arguments at its own convenience as it would amount to controlling of proceedings. I am fortified in my view by the D judgments of this, Court reported, as Abdullah and another v. Mutt Tafazzul Hussain and another (PLD 1961 Baghdad‑ul‑Jadid 58) and Ghulam Rasool v. Ch. Din Muhammad (PLD 1967 Lahore 665). The applicant was fully aware of the time at the disposal of this Tribunal to decide these election petitions ‑as per direction of thd Hon'ble Supreme Court. In .this view of the matter,. these applications are dismissed. ' .

28. Now once again returning to the main election petition. The result of marathon proceedings is that: firstly, that Forms XVI‑A Exh. CW2/2 to CW2/36 were not tampered with by anyone as alleged by Dr. Sheela and the same were intact and authentic; , secondly,that the Returning Officer failed to tabulate the result in Form XVI‑B as per Forms XVI‑A received by him from the Assistant Returning Officers; ‑ . thirdly, that recounting was done by C.W.29.honestly, diligently and correctly. There Was nothing wrong with the same except incorrect figures noted by him in respect of 5 constituencies. Neither he has any, motive nor he blamed of the same; and fourthly, . that. the result was highjacked in the office ‑ of the Returning Officer and it was not a case of wrigging the election.

29. The election petition can be conveniently decided either on the basis of recounting or on the basis of Form XVI‑A. The final result of 3 contesting parties in accordance with recounting would be as under as is clear from Annexure ' C' with this judgment:‑ S. No Name Votes

5. Qaiser 9985

6. Fateh Jang 9927 7 Dr. Sheela 9318

30. The Forms XVI‑A in respect of disputed 35 constituencies have been proved by responsible Judicial Officers and most of them were not cross‑ examined at all by the parties. The minor discrepancies have been removed with reference to Forms XIV and recounting, therefore, the same would furnish sound and sure footing to decide the election petitions. The position of the 3 parties would be as under:‑‑ Dr. Sheela Fateh Jang Qaiser (i) . Total votes on the 8195 7663 7448 basis of Form XVI‑B in respect of 205 constituencies not disputed. . (ii) Votes on the basis of 1129 2256 2511 Form XVI‑A in respect of 35 constituencies as per para. 12 page 13 of ' this judgment. (iii) Total 9324 9919 9959

31. I would be failing in my duty if the assistance rendered by M/s. Nafeer . A. Malik and Bilal Hassan Minto, Advocates is not acknowledged. It is also recorded that Mr. Tariq Latif, Provincial Election Commissioner not only did recounting fairly and impartially but also rendered valuable assistance in tabulating the result.

32. The upshot of the above discussion is that E.P. No.85/93 is accepted partially while E. P. No. 86/93.is allowed iri toto with costs. The result is that the E election of Dr. Sheela B. Charles, returned candidate is declared void and instead Qaiser Ifrahim Saroya is declared as elected in her place having secured highest for fifth seat. ' A.A./F‑9/E Order accordingly.