1998 PLP 523 (CLC)

46??????????????????????????????? ??????????????????????????????????? 0??????????????????????????????????? ??????????????????????? 419 53??????????????????????????????? ??????????????????????????????????? 41??????????????????????????????????? ??????????????????????? 47 56??????????????????????????????? ??????????????????????????????????? 0??????????????????????????????????? ??????????????????????? 31 57??????????????????????????????? ??????????????????????????????????? 0??????????????????????????????????? ??????????????????????? 51 60??????????????????????????????? ??????????????????????????????????? 0??????????????????????????????????? ??????????????????????? 27 62??????????????????????????????? ??????????????????????????????????? 0??????????????????????????????????? ??????????????????????? 112 64??????????????????????????????? ??????????????????????????????????? 21??????????????????????????????????? ??????????????????????? 30 65??????????????????????????????? ??????????????????????????????????? 3??????????????????????????????????? ??????????????????????? 32 66??????????????????????????????? ??????????????????????????????????? 7??????????????????????????????????? ??????????????????????? 37 68??????????????????????????????? ??????????????????????????????????? 4??????????????????????????????????? ??????????????????????? 186 69??????????????????????????????? ??????????????????????????????????? 2??????????????????????????????????? ??????????????????????? 8 71??????????????????????????????? ??????????????????????????????????? 13??????????????????????????????????? ??????????????????????? 78 72??????????????????????????????? ??????????????????????????????????? 3??????????????????????????????????? ??????????????????????? 16 73??????????????????????????????? ??????????????????????????????????? 0??????????????????????????????????? ??????????????????????? 3 97??????????????????????????????? ??????????????????????????????????? 0??????????????????????????????????? ??????????????????????? 20 98??????????????????????????????? ??????????????????????????????????? 20??????????????????????????????????? ??????????????????????? 116 Where he (Sarwanand) was shown to have secured more votes than the actual votes secured by him. Seat No.????????????????????? ??????????????????????? Votes credited??????????????????????? ??????????????????????? Actual votes secured

20??????????????????????????????? ??????????????????????????????????? 50??????????????????????????????????? ??????????????????????? 17 47??????????????????????????????? ??????????????????????????????????? 86??????????????????????????????????? ??????????????????????? 12 48??????????????????????????????? ??????????????????????????????????? 86??????????????????????????????????? ??????????????????????? 85 55??????????????????????????????? ??????????????????????????????????? 60??????????????????????????????????? ??????????????????????? 11 59??????????????????????????????? ??????????????????????????????????? 27??????????????????????????????????? ??????????????????????? 0 63??????????????????????????????? ??????????????????????????????????? 30??????????????????????????????????? ??????????????????????? 0 67??????????????????????????????? ??????????????????????????????????? 169??????????????????????????????????? ??????????????????????? 7 70??????????????????????????????? ??????????????????????????????????? 69??????????????????????????????????? ??????????????????????? 2 87??????????????????????????????? ??????????????????????????????????? 875??????????????????????????????????? ??????????????????????? 825 99??????????????????????????????? ??????????????????????????????????? 116??????????????????????????????????? ??????????????????????? 0 Errors in the votes secured by respondent No.45 Seat No.????????????????????? ??????????????????????? As recorded in Form 16‑B?? ??????????? Actual votes secured

4????????????????????????????????? ??????????????????????????????????? 7??????????????????????????????????? ??????????????????????? 1 13??????????????????????????????? ??????????????????????????????????? 10??????????????????????????????????? ??????????????????????? 1 23??????????????????????????????? ??????????????????????????????????? 0??????????????????????????????????? ??????????????????????? 15 26??????????????????????????????? ??????????????????????????????????? 1??????????????????????????????????? ??????????????????????? 0 43??????????????????????????????? ??????????????????????????????????? 188??????????????????????????????????? ??????????????????????? 88 46??????????????????????????????? ??????????????????????????????????? 0??????????????????????????????????? ??????????????????????? 19 47??????????????????????????????? ??????????????????????????????????? 72??????????????????????????????????? ??????????????????????? 48 49??????????????????????????????? ??????????????????????????????????? 80??????????????????????????????????? ??????????????????????? 8 50??????????????????????????????? ??????????????????????????????????? 639??????????????????????????????????? ??????????????????????? 642 53??????????????????????????????? ??????????????????????????????????? 141??????????????????????????????????? ??????????????????????? 143 54??????????????????????????????? ??????????????????????????????????? 1410??????????????????????????????????? ??????????????????????? 383 55??????????????????????????????? ??????????????????????????????????? 2584??????????????????????????????????? ??????????????????????? 97 56??????????????????????????????? ??????????????????????????????????? 0??????????????????????????????????? ??????????????????????? 161 57??????????????????????????????? ??????????????????????????????????? 0??????????????????????????????????? ??????????????????????? 327 64??????????????????????????????? ??????????????????????????????????? 1124??????????????????????????????????? ??????????????????????? 180 65??????????????????????????????? ??????????????????????????????????? 2755??????????????????????????????????? ??????????????????????? 2760 66??????????????????????????????? ??????????????????????????????????? 542??????????????????????????????????? ??????????????????????? 2096 68??????????????????????????????? ??????????????????????????????????? 1542??????????????????????????????????? ??????????????????????? 542 69??????????????????????????????? ??????????????????????????????????? 0??????????????????????????????????? ??????????????????????? 1 70??????????????????????????????? ??????????????????????????????????? 1??????????????????????????????????? ??????????????????????? 2 71??????????????????????????????? ??????????????????????????????????? 71??????????????????????????????????? ??????????????????????? 70 The Returning Officer clarified that Exhs.3/2 to 3/95 are actually not Form 16?A but unofficial tally‑sheets. Form 16‑A were later produced in evidence as Exhs.3/96 to 3/174. He also produced petition of Sarwanand (Exh.3/176) which he had preferred before Election Commissioner and his comments thereon are Exh.3/175, copy of Gazette Notification of 18th October, 1993 as Exh/3/177 and copy of letter, dated 4‑11‑1993 from Election Commissioner as Exh.17. He also produced copies of Gazette Notification of 23rd September pertaining to P.S. 10 as Exh.4/179 and pertaining to P.S. 11 as Exh.180. (Exh.3/180) were produced and brought on record at the instance of respondent No.45).

18. Form‑14 is the statement of count prepared by the Presiding Officers. Entries of Form‑14 have not been questioned by any of the parties and it was on the basis of these figures that the consolidated statement of the results of the count was prepared by the Assistant Returning Officers in Form 16‑A and these figures are also not questioned by any of the parties. It was the final compilation r by the Returning Officer in Form 16‑B in which discrepancies had arisen and for that reason a comparative chart was got prepared through the Provincial Election Commissioner which is on record.

19. A comparison of the report of the Returning Officer with the unofficial tally‑sheets Exh.3/2 to 3/95 (which were incorrectly mentioned in the deposition of the Returning Officer as "Form 16‑A") as well as with actual Form 16‑A Exh.3/96 to Exh.3/174 (which are wrongly described in the deposition as Form 16‑B), would show that the figures given in original Form 16‑B (Exh.3/1) were not correct and were the result of errors caused due to confusion which was, in turn, the result of short time available to the Returning Officer to compile the result and the vastness of the constituency which comprised' of the entire Province. Whatever doubts as to the authenticity of figures of the total number of votes secured by the petitioner and respondent No.45 existed, have been set at rest by the comparative chart of the figures in Forms 16‑A and 16‑B as prepared by the Provincial Election Commissioner at the directions of the Tribunal which shows that as per Form 16‑A the votes secured by the petitioner are 11879 and those secured by respondent No.45 are 9336. Since the entries of Form 14 and Form 16‑A had never been questioned by any of the parties, as already noted above, I see no reason to doubt the authenticity of these figures which were complied by the Provincial Election Commissioner. He was directed to compile them in the presence of and with the help of the parties and their counsel. We have already noted that respondent No.45 and his learned counsel did not appear before the Provincial Election Commissioner at the given time and date without any justification. I am sure that the result of the exercise would have been the same even if they had participated in the exercise.

20. Learned counsel for respondent No.45 argued that results of P.S. 11 Jacobabad, P.S. 47 Badin, P.S. 56, Tharparkar, P.S.

57. Tharparkar and of P.S. 86 Karachi South were missing and, therefore, the whole electoral process is doubtful. Such an argument was for the first time raised during final hearing and till then it had not been the stand of respondent No.45. Even so, there is no substance in this South‑II and no voting had taken place for that seat. Learned counsel for respondent No.45 was surely not unaware of this fact. Due to similar reasons voting could not take place in some other areas. As such Form 16‑A was not prepared in those areas. In some cases the Assistant Returning Officers had prepared one Form 16‑A for two seats‑‑‑for example, P.S. 46 and

47. It cannot, therefore, be said that any Form 16‑A was missing. Learned counsel for respondent No.45 also argued that how could the petitioner supply Form 16‑A when it was missing from the record of the Election Commission (page 3 of the comparative statement prepared by the Provincial Election Commissioner). He should rather have raised this objection when Form‑A of this seat was being produced. He cannot raise this objection at the time of final arguments.

21. In view of what is stated above, I have no doubt in my mind that no grave irregularities had been committed in the counting of votes but errors had been committed at the time of preparing Form 16‑B and posting therein the results given in Form 16‑A. It is clear from the deposition of the Returning Officer both before and after the remand. The issue is, therefore, decided in these terms.

22. Relief.‑‑‑Under these circumstances the original election results cannot be sustained. The error of calculation while complying the results in Form 16‑B had come to light shortly after the notification of the results. There were further mistakes in the report Exh.P.W.I/1 as clarified by the Returning Officer in his deposition after the remand. Since there were still some errors of calculation, it was to remove any doubt that the Provincial Election Commissioner was directed to undertake the exercise of recalculation. His findings are crystal clear. There are now only two alternatives before the Tribunal; either to declare the elections as a whole invalid and void or to declare the petitioner elected. In the light of the judgment in the case of Julius Salik v. Returning Officer, reported as 1991 MLD 589, the first option cannot be adopted. The whole Province of Sindh is one constituency in the case of non‑Muslim seats and fresh polling at this late stage when almost two years have already elapsed since the elections, is undesirable. Facts of the abovenoted reported case are similar to the facts of the present case. Even recounting of votes was disallowed in the reported case and the Tribunal had done the calculation itself. In the present case, the Tribunal had entrusted the re‑calculation to the Provincial Election Commissioner which amounts to re‑tabulation of the final compilation of the counts by the Tribunal itself. Form 16‑B, thus, stands amended and it is now clear that as per Form 16‑A prepared by the Assistant Returning Officers, in respect of whose entries there is no controversy, the petitioner has secured 11879 votes whereas respondent No.45 had secured 9336 votes. No plausible fault was shown in the calculations of the Provincial Election Commissioner and I had myself rechecked Form 16‑A ascertaining the veracity of the figures arrived at by the Provincial Election Commissioner and I have no reason to doubt the authenticity of the figures given by the Provincial Election Commissioner. I would, therefore, hold that the petitioner had secured 11879 votes whereas respondent No.45 had secured 9336 votes and declare the petitioner elected as the fifth successful candidate in place of respondent No.45. A.A./163/E????????????????? ??????????????????????????????????? ??????????? Election petition accepted