SAVED ZAHID HUSSAIN, J. --- This is petition under S. 52 of the Representation of the People Act, 1976 whereby the election of respondent No. 1 as returned candidate has been assailed. After usual proceedings which I must say consumed a lot of time an effective order was passed on 6.10.2006.
The said order by which the election record was ordered to be produced and inspected was as follows:--- "The petitioner and the two respondents herein contested the election held on 10.10.2002, for seat in the National Assembly, NA-90, Jhang-V. Since respondent No. 1 was declared as the successful and returned candidate this election petition has been filed by the petitioner praying "the election of the Respondent No. 1 be declared null and void and the Petitioner as elected from NA/90 Jhang-V".
According to him, the declaration of respondent No: 1 as a returned candidate was result of illegal/corrupt practices and non-compliance 'of statutory provisions by the statutory officials. He seeks production, inspection and examination of ballot papers, particularly, those declared invalid and rejected.
2. The total votes, polled in the constituency as per result of count issued by the Returning Officer on 12.10.2002 (Form XVII), were 11925. The valid votes polled were 116342, the number of votes polled in favour of the petitioner were 56180 whereas respondent No. 1 secured 56647 votes. The number of rejected votes and declared invalid was 2910. Respondent No. 2 since had obtained only 3517 votes he has shown no interest in the matter. Since the difference of votes (obtained by the petitioner and respondent No. 1) was of 467 only, the entire edifice of the case of the petitioner rests upon this that votes rendered invalid and rejected need to be examined and scrutinized. It is pleaded that legality of rejection of a large number of votes cast in favour the petitioner and those invalid votes counted in favour of respondent No..1 may determine the fate of the poll, which according to him was materially affected by reason of the failure of the Presiding Officer/Returning Officer in performing their duties in accordance with law.
3. In order to determine the scope and extent powers and jurisdiction of the Tribunal, before embarking upon the other aspects of the matter, the relevant provisions of the Representation of the People Act, 1976 and Rules framed thereunder namely, the Representation of People (Conduct of Election) Rules, 1977, need to be perused (hereinafter to be referred to as the "Act" and the "Rules"). According to the scheme of the Act, "Voting Procedure" is laid down in S. 33 whereas under S. 34 "Tendered ballot paper", under S. 35 "Challenged ballot paper" and under S. 36 "Spoilt ballot papers", are supposed to be placed in separate packets. S. 38 then deals with the "Proceedings at the close of poll', and the Presiding Officer is to count the votes immediately after the close of the poll in presence of the contesting candidates, their election agents or polling agents as may be present, facilitating them to observe the count. It lays down a meticulous procedure and mechanism for undertaking and completing the count. On completion of the count he is supposed to send the, bags, the statement of count and the ballot paper account prepared by him to the Returning Officer together with all the records. Before the Returning Officer the consolidation of result takes place who is expected to give notice to the candidates and their election agents for such purpose and in their presence he is supposed to "examine the ballot papers excluded from the count by the Presiding Officer'. This is the mandate of sub section (3) of S. 39, Rule 26 of the Rules also empowers him to scrutinize the ballot papers meticulously and prepare and consolidate the result in Form XVI. On completion of the count he is required to reseal the bags as per S. 40. He is then required to intimate the result of the count to the Commission for declaration 'of the result as envisaged by S. 42 of the Act. Another provision of vital importance is S. 46 of the Act. Sub- sections (1) and (2) whereof are reproduced as under:--- "(1) A Tribunal may order the opening of packets of counterfoils and certificates or the inspection of any counted ballot papers.
(2) An order under sub-section (1) may be made subject to such conditions as to persons, time, and mode of inspection, production of documents and opening of packets as. The Tribunal making the order may think expedient:"
From these provisions the scheme. Object, intent and purpose of the law is manifestly clear that the Returning Officer holds a vital position in the conduct and holding of election in a just and fair manner in accordance with law. He performs an important duty for such purpose. It is also evident that whereas the Returning Officer has the power to recount the ballot papers (sub-section (6) of S. 39); the Tribunal can order the opening of packets; production of records and inspection of counted ballot papers under S. 46.
4. When an election is called in question and the dispute is brought before an Election Tribunal through an election petition as is envisaged by Article 225 of the Constitution of 'Islamic Republic of Pakistan, 1973 and S. 52 of the Act, the provisions of Chapter VII (S. 52 to S. 77) of the Act get attracted for the trial and decision of such petition. I need not at this stage dwell much about the procedure to be followed by the Tribunal inasmuch as the legal position is now well settled and known. The controversy, for the present, is limited about.Correctness and validity of count by the polling staff and the extent of powers of the Tribunal as to production. Inspection and examination of the polled ballot papers. Apart from the provisions of. S. 46, falling in Chapter IV (Conduct of Elections), in Chapter VII (Election Disputes), S. 70 appears which enables the Tribunal to declare the election "as a while to be void if it is satisfied that the result of the election has been Materially affected reason of:-
(a) the failure of any person to comply with the provisions of the Act or the rules; or
(b) the prevalence of extensive corrupt or illegal practice at the election.
Number of rulings have been cited by the learned counsel for the parties as to the extent of powers of the Tribunal relating to the production of record and recount of votes. In Syed Saeed Hassan v.
Pyar Ali and 7 others (PLD 1976 S.C. 6) it was observed that "the Tribunal is not only authorized but is duty bound to give his finding on each allegation pressed before him including those of wrong .
Inclusion or exclusion of a ballot paper". In Maulvi Abdul 4 Ghani and another v. Election Tribunal, Balochisia n and others (1999 SCM R 1) it was observed that the Election Tribunal while deciding election petition had got plenary power under S. 46 to direct opening of packets or carry out inspection of ballot papers. In Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCM R 284) it was held that S. 46 of the Act confers an exclusive and were discretion on an Election Tribunal to order opening of packets or inspection of any counted ballot papers. According to paragraph-940 of Volume-5, Halsbury's Laws of England, Fourth Edition:- re-count is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of the returning officer." In Km. Shradha Devi v.
Krishna Chandra Pant and others (AIR 1982 S.C. 1569) it was observed:- "When a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered". In Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another (PLD 1986 S.C.
542) it was laid down that though such a power vested with the Election Tribunal yet for exercise of the same there has to be some basis and not to be granted as a matter of course. Similar was the view expressed in Col. (Retd) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others (PLD 1986 S.C. 178) and Kanwar ljaz All v. Lrshad All and 2 others (PLD 1986 S.C. 1483). Some judgments rendered by the learned Election Tribunals and precedents arising from local bodies elections have also been cited by the learned counsel for the petitioner, which are sought to be distinguished by the learned counsel for respondent No. 1. According to the learned counsel for respondent No. 1 though such a power is broad and extensive, it is to be used sparingly with circumspection. For.This purpose he also relies upon Abdul Hafeez Khan (Supra). At this juncture reference to some observations in Sardar Abdul Hafeez, Khan's case (Supra) may be of guidance, which are "Many an illegal or corrupt practices, within the knowledge of a candidate, due to an election being a closed door affair, may turn out only to be the tip of an iceberg, the bulk of the deviations coming to unfold during the trial of the election petition and duly established on record by evidence. Thus, once the candidate concerned had pleaded his case with alt details of corrupt or illegal practices coming to his knowledge, he should be free; within the parameters fixed by his on pleadings, to resort to the powers of the Tribunal to come to his and in virtue of the jurisdiction of a Civil Court residing in the Tribunal, as extended by Section 64 of the Representation of the People Act, 1976. No candidate, who has adequately pleaded the corrupt or illegal practices at his election should unjustifiably be discouraged, by undue strictness in applying the law of evidence; from proving his case. As it is, holding free and fair elections is a duty cast by law and Judges can be doing no more than discharging their obligations to the electorate by ensuring that no one is returned to an elected office without having duly and lawfully been elected."
5. The trend reflected from the authorities and precedents this is that:---
(i) Whenever there is an allegation of miscount, the Returning Officer can undertake recount and the Election Tribunal can order opening of packets, examination and inspection of the ballot papers in order to find out whether the statutory provisions were duly observed by the statutory functionaries.
(ii) While seized of the election petition, the Tribunal is vested with the power to order recount, which power, however, is to be exercised on the basis of some material prima facie establishing illegalities and, irregularities in the count of polled votes.
(i.e) A party is not entitled to claim recount as a matter of course and it is to be shown that there had been improper reception, refusal or rejection of votes.
(iv) Such power of the Tribunal though quite extensive yet it is to be exercised sparingly after satisfaction on the basis of material/ evidence that there had been wrong inclusion or exclusion of ballot papers in the count.
6. It is thus, now to be seen whether the petitioner in this case has succeeded to establish prima facie a case for production and inspection of ballot papers rendered invalid/rejected by the election officials and the correctness of their inclusion or exclusion in the process of count.
Foundation for such purpose has been laid in the petition i.e. Paragraphs 2 to 8 and clauses (i), (ii) and (i.e) of the grounds of petition. Due to their relevancy to the case set up by the petitioner in the petition and the stance of respondent No. 1, the salient paragraphs of the pleadings of the parties are responded for facility of reference:- Para Petition Reply
(2) That the total number of Polling Stations in the said constituency as admitted correct to set up by the Election Commission extent that the of Pakistan was 219 That in answering accordance with the consolidated respondent has statement of the results sheet by secured more votes the Returning Officer allegedly the and has been total number of votes 'cast were declared elected 119252 and 116342 votes were representative from stated to be valid out of which the said Petitioner secured 56180 votes, the Constituency Respondent No 1 secured 56647 votes-and 3517 votes were received by the respondent No. 2. In the circumstances the Respondent No.1 was declared to be a returned candidate . It may be noticed that the number of votes rejected as invalid , is seven timesPara No. -2 is admitted correct to extent that the answering respondent has secured more votes and has been declared elected representative from the said constituency more than the difference of votes between the Petitioner and the Respondent No. 1, the allegedly returned candidate.
(3) That the process of election and its conduct was seriously flawed inasmuch as -the mandatory provisions of the Representation of the Peoples .Act, 1976 were callously ignored and violated.
It is submitted that the agents and supporters of Respondent No 1 in connivance with the election staff indulged in large scale corruption and illegal practices and violated the mandatory provisions of the Representation of the Peoples; ct, 1976 which materially affected the outcome of the elections to the prejudice of the Petitioner. Double casting of votes was indulged in as a matter of routine more particularly in the areas in which the Respondent No. 1 had influence i.e. in all the 42 Polling Stations situated in Mauza Kakki Nau,"Qaim Bharwana, Kot Mirza, Mehrum Sial, Jala Bharwana; Shore Kot City Shore Kot Cantt.Para No. 3 is incorrect There has been no violation of any provision of Representation of the People Act, 1976 and the allegations contained there in are denied vehemently.
(4) That at the time of counting of votes at various .Polling Stations, the mandatory provisions of Section 38 of the Representation of thePara No. 4 is denied. There is no violation of any provision of law . Only invalid Ballot Papers were rejected.
People Act, .1976. Were violated Innumerous votes which did not bear the seal and signatures of the Stations (8) That in the above perspective, thePresiding Officer were counted to the benefit of the Respondents Nos. 1 &
2. Various ballots on which the intention of the elector was apparent inasmuch as the seal or a major part thereof was within the parameters of the space containing the Petitioner's name and symbol_ .
(Tractor), were treated as invalid 'despite objections of the Petitioner, his Polling Agents and the Election Agent The aforesaid illegalities were committed during the process of counting throughout the constituency, but was more pronounced and blatant in all the polling stations of Mauza Kakki Nau, Qaim Bharwana, Kot Mirza, Mehrum Sial, Jala Bharwana, Shore Kot City, Shore Kot Cantt. and Shore Kot City/Cantt.
It may be noticed that in the aforesaid Polling Stations, the manipulation of the results and the illegalities are more obvious from the facts that in some of such Polling Stations, the percentage of allegedly invalid votes is 5 .to 6 times more than the percentage in the rest of the Polling Stations in the said constituency. It is submitted that such percentage of invalid votes increases into double digit figures which is most unnatural and speaks volumes for the male fide and illegal manner in which the countin_g_was conducted
(5) That the entire election result was deliberately and with' mala fide intentions manipulated. In fact the _provisional result was declared by the Returning Officer is about 7.00a.m. on 11th October, 2002 despite of the fact that the bags on training the ballot papers and the result sheet had not even reached the Returning Officer at that point of time. The said Ballot papers and the result sheets were deposited in about 2.00 a.m. on the12th of October, 2002..Para No. 5 of the petition is incorrect. Hence 'denied.
The results were prepared with great care and caution and the provisional result was intimatedto the Election Commission on 11.10.2002 whereas consolidation was made on 12.10.2002.The final result was prepared adding the number of postal Ballots secured by Returning Officer after the declaration of result.
(6) The Presiding Officers concerned neither issued the signed certified copies of the result sheets to the Polling Agents of the Petitioner nor affixed the same as required by Section 38 of the presentation of the Peoples Act, 1976.Para' No.6 is incorrect The Presiding Officer had issued signed certified copies of result sheet to the polling agents of all the candidates.
(7) That the Returning Officer was enjoined by law to examine the ballot papers, excluded from the count and recede the validity thereof in the presence of the parties. It is Submitted that thePara ' No.6 is in correct Hence denied. The application for recounting the Ballot Paper was rejected by the Returning Officer on 12.10.2002 a copy of which is already annexed with the petition.
Returning Officer did not conduct the aforesaid exercise nor was the Petitioner or his Election Agent associated with any Such exercise: In fact, as has been submitted herein above, the Returning Officer provisionally announced the result even prior to the receipt of all the bags of the ballot papers and other material from all the Polling. Stations,
(8) That in the above perspective, Petitioner through his Election Agent filed an - application under Section 39_(6) of the Representation. of the People Act .1976 bringing to the notice of the Returning Officer, the illegal acts committed during the conduct of the elections and the fact that 'ballots in favor of the Petitioner had not been counted in his favor and invalid papers in 'favour of the Respondents No. 1 &2 had been counted to the account of the said Respondents The said application was illegally and without any legal and factual basis rejected by the Returning Officer vide order dated 12 10.2002.
2002,Is admitted to the extent that application for recounting was filed before the Returning Officer which was 'rejected on 12.10.2002 GROUNDS GROUND REPLY
(i) That the election has been conducted in a manner which is violate of the mandatory provisions(i)& (ii) In reply to Grounds
(i) & (ii), it is submitted that only such Ballot papers have been rejected which' were found invalid. By the of the presentation of the Peoples Act, 1976:Presiding Officer and the Returning Officer has rejected there. Application for counting. There are only allegations not containing .any adequate statement of material facts which could enable the Returning Officer to pass the order of recounting. It is denied that any Ballot paper has been rejected against the petitioner in an illegal manner.
(ii) That the election has been conducted in an illegal and unlawful manner in violation of the mandatory provisions of the Representation of the Peoples Act 1976. The respondent No.1 in connivance and collusion Manipulated the process to her benefit through illegal and' corrupt practices.
It is categorically provided 'by Section 38 of the presentation of the People Act, 1'976 that only such . ballots/votes would be counted which bear official seal and signatures of the Presiding Officer.
In the instant case innumerous ballot papers 'which on the face of it were invalid as they did not bear the official seal and/or signatures of the Presiding Officer were counted to the benefit of the respondents Nos.1&2i this illegal practicewas committed at innumerous Polling Stations more particularly.
It is submitted that a fair ascertainment and counting of the votes in accordance with the law would clearly show that substantial number of votes Counted in favor of, the Respondent No. 1 were in' fact were invalid and could not be credited to her ccount. The aforesaid actions' have" materially affected the result inasmuch as the 'differential between the Petitioner and the respondent No.1 is only a few hundreds of votes.
And it is further Submittedthat in addition to the bove innumerous votes which were cast in favour of the Petitioner have been declared as invalid and excluded from the count in spite of the fact that the same not only bore the official seal and signatures of the Presiding Officer but also stamp affixed by the elector clearly evidenced his intention to vote for the Petitioner. The said stamps or a substantial portion thereof was within the parameters of the space containing the Petitioners name and symbol (Tractor). The said votes have been illegally excluded and declared invalid in obvious violation of Section 38 of the Representation of the People Act, 1976.
(iii) Submitted that in addition to the above, innumerous votes which were cast in favour of the Petitioner have been declared as invalid and excluded from the count in spite of the fact that the same not only bore the official seal and signatures of the Presiding Officer but also stamp affixed by the elector clearly evidenced his intention to vote for the Petitioner. The said stamps or a substantial portion thereof was within the parameters of the space containing the Petitioners name and symbol (Tractor). The said votes have been illegally excluded and declared invalid in obvious violation of Section 38 of the Representation of the People Act, 1976.
That the entire election result has been manipulated to the prejudice of the petitioner and the benefit of the Respondent No. 1 as h as has submitted above. The result was declared prior to the receipt of the entire sheets and bags ' of ballot papers from the Presiding Officer.
In fact, even till date, the entireGround (iii) is denied.
The result was declared after the teceipt of total Ballot Papers. It is submitted that even under the result sheet annexed by the petitioner under Form XVI indicates that the result of Polling Station No. 19 has been counted by the Returning Officer and the certificate ' of Treasury Officer shows that 219 Sealed Bags containing election material was deposited in safe custody by .the Returning Officer, a copy of which is annexed herewith as Mark-B material from every Polling Station is not available. There was 219 Polling Stations established by the Election Commission of Pakistan.
However, the bags deposited with the Treasury Office by the Returning Officer pertain only to
218. The bags of the ballot papers and other material of the Polling Station No. 19 N.A-90, Jhang-V, situated at, Girls P/S Qadeemi to date is not available with the Treasury Officer, Tehsil Shorkot, District Jhang. The aforesaid Denudes the election result of any credibility whtsover.
(Portions underlined by me due to their relevance).
7. From the perusal of the above, it is manifest that the petitioner has been demanding and clamoring for recount due to his above stance and the large number of rejected votes. He even applied to the Returning Officer and the Election Commission of Pakistan and also filed W.P. No. 18868/02, in which certain directions were given on 22.10.2002 while disposing of the same.
Out of the pleadings of the parties following issued were framed on 27.3.2003:--- (1 ) Whether the election petition is liable to be dismissed in view of the preliminary objection No. 1 of the written statement? OPR.
(2) Whether the election petition is within time? OPP.
(3) Whether the respondent No. 1 has been declared elected on the basis of bogus, illegal and invalid votes? If so to what effect? OPP
(4) Whether the respondent No. 1 has committed corrupt and illegal practices. If so its effect? OPP.
(5) Whether the petitioner is entitled to be declared as returned candidate from Constituency N.A.
90 Jhang? OPP.
(6) Relief.
PW-1 is Khadim Hussain, who was polling agent of the petitioner at Polling Station Shorkot Cantt. In his affidavit Mark-A, he had particularly, deposed in paragraphs-3 and 4 as follows: "3. That during the course of counting, it was observed that numerous ballot papers did not bear the Official Seal and signatures of the Presiding Officer. Some ballot papers bore other marks.
Despite objections of the Deponent, the said ballot papers were included in the count to the benefit of Respondents Nos. 1 & 2, i.e. (Saima Akhtar Bhaaana and Shahbaz,_Ahmed Gujjar) by the Presiding Officer who ignored the objections of the Deponent.
4. During the course of the counting, there were many ballot papers whereupon the intention of the voter was obvious, as the stamp or more than half of the portion thereof was within the space containing the name and symbol (Tractor) of ,Sahibzada Muhammad Nazeer Sultan. The said ballot papers were treated as invalid by the Presiding Officer despite the objections of theDeponent."
PW-2 Haji Abdul Sattar who was also a pooling agent at Polling Station and had sworn affidavit Mark-B. His deposition in paragraphs-3 and 4 is as follows:--- "3. That during the course of the counting, it was observed that numerous ballot papers did not bear the Official Seal and signatures of the Presiding Officer. Some ballot papers bore other marks.
Despite objections of the Deponent. The said ballot papers were included in the count to the benefit of Respondents Nos. -1 & 2 i.e. (Saima Akhtar Bharwana and Shahbaz 'Ahmed Gujjar) by the Presiding Officer who ignored the objections of the Deponent.
4. During the course of the counting, there were many ballot papers whereupon the intention of the voter was obvious, as the stamp or more-than half of the portion thereof was within the space, containing the name and symbol (Tractor) of Sahibzada Muhammad Nazeer Sultan. The said, ballot papers were treated as invalid by the Presiding Officer despite the objections of the Deponent."
PW-3 is Muzaffar Ali who was 'polling agent of petitioner at Polling Station Budh Rajbana and had sworn affidavit Mark-C and his deposition in paragraphs-3 and 4 was as follows:- That' during.The course of the counting, it was observed that numerous ballot papers did not bear the Official Seal and signatures of the Presiding Officer. Some ballot papers' bore other marks.
Despite objections of the Deponent. The said ballot papers were included in the count to the benefit of Respondents Nos. 1 &. 2, i.e. (Saima Akhtar -Bharwana and Shahbaz Ahmad Gujjar) by the Presiding Officer who ignored the objections of the Deponent.
During the course of .The counting, there were many ballot papers whereupon the intention Of the voter was obvious, as the stamp or more than half of the portion thereof was within the space- containing the name and symbol (Tractor) of Sahibzada Muhammad Nazeer Sultan. The said ballot papers were treated as invalid by the Presiding Officer despite the objections of the Deponent"
These witnesses though were cross-examined on some other aspects yet nothing could be brought out from them contrary to the contents of their affidavits.
PW-4 Riaz Hashmat, who was Union Nazim, Union Council No. 51, had sworn his affidavit Mark-D.
PW-5 Zafar Ahmed had sworn affidavit Mark-E, PW-6 Ghulam Akbar Khan was polling agent of the petitioner at Polling Stations 56 and 57 and had sworn affidavit Mark-F, PW-7 Muhammad Iqbal had sworn affidavit Mark-G, PW-8 Muhammad Iqbal, Chairman, Khushal Community Board, Union Council Chak No. 485 had sworn affidavit Mark-H, PW-9 Mian Umar Ali Jajiana, the election agent of the petitioner, had sworn affidavit Mark-J, who though had been cross-examined at length, yet the sum and substance of his deposition remained consistent, PW-10 was Muhammad Jamshed, who had sworn affidavit Mark-K, PW-11 Dilbar Hussain, was the polling agent of the petitioner had sworn affidavit Mark-L, PW-12 was Muhammad Ismail Sabir whose affidavit was Mark-M. The petitioner then appeared, himself, who had sworn affidavit Mark-N. He gave the detailed version about his efforts for recounting of votes before the Returning Officer, the Election Commission of Pakistan and filing of writ petition.
As against that, the evidence led by respondent No. 1 is in the form of testimony of RW-1 (Mehl- Noor Muhammad Sial, the worth of which his determinable from the fact when he stated that he did not remember the polling station where he cast the vote. RW-2 Liaqat Ali was polling agent of respondent No. 1 at polling station No. 404 who stated that he could not say anything about other polling stations. RW-3 Mu.In Ahmad had remained at the polling station only for ten-fifteen minutes and was not present at the time of counting of votes. RW-4 Umar Draz was polling agent of respondent No. 1 at polling station Kot Lal who denied the suggestion of double voting at that polling station. RW-5 Muhammad Manzoor who was polling agent at Polling Station Government Girls High School and denied the suggestion of double voting in the polling station. RW-6 Rana Waseem Ahmed Khan has stated that he had gone merely to cast vote at the polling station'and was not present . At the time of the counting. RW-7 Muhammad Ramzan also makes statement on the same line. RW-8 Pehiwan Khan was polling agent of respondent No 1 at polling station Primary School Kot Dewan. In cross-examination he states that the polling agents of the petitioner had raised some objections before the Presiding Officer Respondent No, 1, herself appeared as RW-9. In her cross-examination she had disclosed that she had obtained about 500 votes more than the petitioner and affirmed that 2910 votes had been rejected as per consolidated statement of count issued by the Returning Officer. She admitted that she was not present at the time of tabulation of result before the Presiding Officer or the Returning Officer. She, of course, denied the suggestion that some votes which did not bear the seal and signature of the Presiding Officer were counted in her favour.
This is the entire evidence produced by the parties, apart from the application of the petitioner before the Returning Officer and order passed by him rejecting the same on 12.10.2002 and his application before the Election Commission of Pakistan.
8. So far as the earlier orders made by the Tribunal at the initial stage of the petition declining such a request when even the issues had not been framed .Or the evidence had not yet beerf completely recorded the same cannot be invoked to circumvent such a prayer as now the complete evidence has been recorded. Now was the occasion to consider the propriety of exercise of such power C.L.R. in the light of the pleadings and the evidence. There has been a great insistence by the learned counsel for respondent No. 1 that there was inconsistency in the stance of the petitioner to the extent that firstly the recount for the entire votes was claimed whereas now it is confined only to the invalid and rejected votes. According to him the petitioner cannot change stance now. The perusal of the application filed by' the petitioner before the Returning Officer, however, shows that in the said application apart from other allegations it was alleged that valid votes cast in favour of the petitioner were illegally rejected whereas invalid votes were counted in favour of respondent No. 1 but the said application was dismissed on 12.10.2002 by the Returning Officer observing that allegations were vague and general in nature. Suffice it to observe that the application - was quite comprehensive and could not be termed as vague and even the stance of the petitioner does not suffer from any such inconsistency, as is being pleded.
9. The consideration of the respective pleadings. and the perusal and appraisal:of the evidence produced by the parties persuades me to reach the conclusion that the petitioner has discharged the burden for an order of production, examination and inspection of invalid/rejected ballot papers to make determination as to whether there was.
Any miscount. It also become necessary when the difference of the votes secured. By the petitioner and . The returned candidate/respondent No: 1 is meager and not very large.
During the course of hearing of this matter, the learned counsel for respondent No. 1 pointed out that the custodian of the record is a supporter, of the petitioner. In order to ward of any doubt/apprehension or to avoid any untoward situation, the Provincial Election Commissioner, Punjab, Lahore is directed to ensure the safe custody and transmission of the record before this Tribunal on 09.10.2006. The Provincial Election Commissioner, Punjab, Lahore will also depute a senior official to be present at the time of opening of the bags/packets and inspection of the relevant records on 09.10.2006."
10. As a sequel to the above, on 9.10.2006 the order passed was as follows:--- "The record as per order dated 06.10.2006 has been received this morning. The Assistant Election Commissioner, who took the said record into his custody at Jhang has prepared an inventory report thereof according to which some of the bags do not have seal. The Registrar of the Tribunal will ensure its custody and safety by all possible means till such time it is opened and examined.
As requested by the learned counsel the Returning Officer of the Constituency NA-90 Jhang-V should be called f6r 12.1.0.2006."
On the adjourned date i.e 12.10.2006 the following order was passed:- "10:25 a.m. The Returning Officer is present. The learned counsel for the parties have been provided opportunity to inspect the bags containing the election record in presence of the Returning Officer, the Registrar of the Tribunal and the officials of the Provincial Election Commission.
Let the matter be taken up again.
The case has been called again. The learned counsel for the parties state that the statement of the Returning Officer may be recorded. Let his statement be recorded.
After the statement of the Returning Officer was recorded a question as to the effect of noncompliance of provisions of S. 39, in particular sub- section (3) thereof read with Rule 26 of the Representation of the People (Conduct of Election)
Rules, 1977 has arisen and engaged my attention. The effect of such non-compliance need to be considered first. The learned counsel for the parties want to address arguments on this aspect. To come up on 27.10.20Q6.
Before recording of the statement of the Returning .Officer, the election record of polling stations Nos. 145 and 147 was opened, which has been ordered to be resealed. These two bags have been accordingly resealed in presence of the learned counsel for the parties, the Returning Officer and the Election Officers present here, and if necessary to be reopened."
11. Since S. 39 of the Representation of the People Act, 1976 read with R. 26 of the Representation of the People (Conduct of Election) Rules, 1977 envisaged an essential duty of the Returning Officer, the learned counsel for the parties have addressed arguments on this aspect.
12. While making order dated 06.10.2006, I had the occasion to consider certain provisions of the election laws i.e. Representation of the People Act, 1976 and Representation of the People (Conduct of Election) Rules, 1977. In the light of the contentions of the learned counsel for the parties now. I feel some other aspects also need to be kept in view. The learned counsel for the petitioner has emphasized upon the fact that margin of votes obtained by the petitioner and respondent No 1 is very narrow and the C.L.R. number of votes rejected and excluded from the count was very high. According to him the failure on the part of the Returning Officer to comply with the provisions of the Representation of the People Act, 1976 and rules (The Representation of People (Conduct of Election) Rules, 1977) in the performance of his duty has not only materially affected the result of the election it also vitiates the whole election process in the constituency. It is contended that the provisions of S.. 39(3) and (5) read with R. 26 cast a duty upon the Returning Officer to consolidate the result on examination of the excluded ballot papers and consequences for .Non-performance of such a duty have been mentioned in S. 70 of the Representation of the People Act, 1976. According to him it means that it was imperative for the Returning Officer to have acted in accordance with S. 39 which is a mandatory provision, non-compliance whereof renders the election void. Reference has been made by him to Hukam Singh v. Banwari Lal Bipra and others (AIR 1965 Allahabad 552), Syed Qurban Ali Shah v. Anis Ahmed Khan and. 10 others (1993 CLC 849), Jam Mashooq Ali v. Shahnawaz Junejo (1996 SCM R 426), Sardar Abdul Hafiz Khan v. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCM R 284), Faqir Abdul Majeed Khan v. District Returning Officer and others (2006 SCM R 1713), Jan Muhammad v. Collector, Jacobabad and others (PLD 1963 (W.P.) Karachi 433) and Morgan and others v. Simpson and another (1974) 3 All ER 722).
13. The learned counsel for respondent No. 1 has taken me through the provisions of the Representation of the People Act, 1976 such as Ss, 55, 63, 67, 68, 69 and 70 to contend that whenever the legislature meant provision of law to be of mandatory nature consequences for breach thereof were mentioned in the law itself. According to him, it is for the Tribunal now to satisfy itself as to the effect of noncompliance of proviions of S. 39. His contention is that even if the Returning Officer did not observe the provisions of S. 39 that itself does not vitiate the election. He cites Syed Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 S.C. 6 (30)), Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others (PLD 1986 S.C. 178), Niaz Muhammad Khan v. Mian Fazal Raqib (PLD 1974 S.C. 134), Mgsood Textile Mills Ltd., through Ch. Muhammad Amin, Director v.
Ishan-ul-Haq, Commissioner of Income-Tax, Companies Zone, Faisalabad and 6 others (2003 PTD 2653), and Messrs R.C.D. Ball Bearing Limited v. Sindh Employees Social Security Institution, Karachi (PLD 1991 S.C. 308). It is further contended by him that the petitioner has been changing stance from time to time and is not entitled to any relief.
14. The principal legislation, relating to elections is the Representation of the People Act, 1976 (Act LXXXV of 1976). In view of the enabling provisions of S. 107 thereof the Representation of the People (Conduct of 'Election) Rules, 1977 have been framed. The primary duty of holding elections is that of the Election Commission of Pakistan ' constituted under Article 218 of the Cone ConstitutioXIslamic 'Republic of Pakistan, 1973. All executive authorities in the Federation and Provinces are obliged to render assistance to the Commission in the discharge of their functions. Under S. 7 of the Act, the Commission makes appointment of District Returning Officer and Returning Officer for each District and for each constituency. According to sub-section (4) thereof, it is the duty of the Returning Officer "to do all such acts and things as may be necessary for effectively conducting an electi n in accordance with the provisions of this Act and the Rules." The observance and compliance of statutory provisions for conducting an election is thus inviolable duty of the Returning Officer. The other provisions in the Act such as S. 8 (Polling Stations), S. 9 (Presiding Officers and Polling Officer), S. 10 (Supply of Electoral rolls), S. 11 (Notification for election), S. 12 Nomination for election), S. 14 (Security), S. 15 publication of list of candidates), S. 16 (Withdrawal), S. 17 (Retirement from election, etc.), S. 18 (Death of a candidate after nomination), S. 19 (Postponement etc., under certain circumstances), S. 20) Uncontested election), S. 21 (Contested election and allocation of symbols), S. 22 (Election Agent), S. 26 (Hours of the poll), S. 27 (Stopping of the poll), S. 29 (Postal ballot). And S. 30 (Ballot Boxes) all go to show the pivotal position, role and importance of the Returning Officer .In arranging, holding, conducting and ensuring election to be held in accordance with law. Then appearthe provisions of S. 38 for count at the close of the poll. Its detailed methodology is laid down in R. 23 as well. The provisions of S. 39, in the context now need to be reproduced, in extensor--- "S. 39 Consolidation of results: - (1) The Returning Officer shall give the contesting candidates and their election agents a notice in writing of the day, time and place fixed for the consolidation of the results, and, in the presence of such of the contesting candidates and election agents as may be present consolidate in the prescribed manner the results of the count furnished by the Presiding Officers, including therein the postal ballots received by him before the time aforesaid
(2) The consolidation proceedings shall be Held (without any avoidable delay as soon as possible after the polling day.
(3) Before consolidating the results of the count, the Returning Officer shall examine the ballot papers excluded from the count by the Presiding Officer and, if he finds that any such ballot paper should not have been so.Excluded, count it as a ballot paper cast in favour of the. contesting candidate for whom the vote has been cast thereby.
(4) The Returning Officer shall also count the ballot papers received by him by post in such manner as may be prescribed and include the votes cast in favour of each contesting candidate in the consolidated statement except those which he may reject on any of the grounds mentioned in sub-section
(4) of Section 38.
(5) The ballot papers rejected by the Returning Officer under sub-section (4) shall be shown separately in the consolidated statement.
(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 places may be directed by the Commission."
Coupled with the above provisions is R. 26, which also because of the relevance to the subject- matter assumes significance and is reproduced hereunder:- "R.'
26. Consolidation of results - (1) The Returning Officer shall consolidate in Form XVI the results of the count furnished by the Presiding Officer. ,(2) Before consolidating the results, the Returning Officer shall open the packet containing the ballot papers excluded from the count by Presiding Officer, as also the packet containing the challenged ballot papers and scrutinize each such ballot paper as was excluded from the count by the Presiding Officer.
(3) If the Returning Officer finds that any ballot paper excluded from the count, by the Presiding Officer should not have been so excluded, , he' shall count it as a valid ballot paper cast in favour of the contesting candidate for whom it was cast: Provided that in so doing the Returning Officer shall not mix up the ballot papers taken out from the packet labelled "challenged ballot papers" but shall' keep keep the lot of challenged ballot papers in a separate packet.
(4) The Returning Officer shall reject a ballot paper, hereinafter referred to as "rejected ballot paper", recording thereon the fact of such rejection if itsuffers from any of the defects mentioned in subsection (4) of Section 38.
(5) If any contesting candidate or election agent objects to the rejection of a ballot paper; the Returning Officer shall and to his endorsement the ' words "rejection objected to."
(6) In consolidating the results of the count, the Returning Officer shall record the number of valid ballot papers cast in favour of each contesting candidate as shown by the Presiding Officer in the statement of the count, unless the figures thereof have undergone'a change as a result of recount under sub-section (6) of Section 39, in which case he shall record the figures as arrived at after the recount.
(7) Before recording the number of valid votes in the consolidated statement against the name of each contesting candidate, the number of ballot papers, if any, which were treated by him as valid but had been excluded from the count by the Presiding Officer shall be taken into account, including those treated as valid from the challenged votes.
(8) The ballot papers rejected by the Returning Officer under sub-rule (4), shall he shown separately in the consolidated statement.
(9) The consolidated statement, shall be so completed that the figures in respect of one polling station are completed before the incorporation of the figures, in respect of any other.
(10) The Returning Officer shall deal with the postal ballot papers, in the following manner namely:-
(i) . No cover in Form X containing a postal ballot paper received by the Returning Officer after the expiry of the time fixed in that ballot paper shall be counted;
(ii) the Returning Officer shall close and seal in a separate packet all the packets referred to in sub- rule (2) of rule 16; (i.e) all other covers in Form X containing pdstal ballot papers shall then be opened one after another;
(iv) as each cover is opened, the Returning Officer shall scrutinize the declaration in Form VIII contained therein and shall reject the ballot paper and make an appropriate endorsement on the cover in Form VIII contained therein and shall. reject the ballot paper and make an appropriate endorsement on the cover in Form IX without opening the same:-
(a) if the said declaration is not found in the cover Form X or
(b) if the said declaration is substantially defective or
(c) if the serial number of the ballot paper entered in the said declaration differs from such number endorsed on the cover in Form IX; ,(v) each cover so endorsed and the declaration received with shall be replaced in the cover in Form X and all such covers in Form X shall be kept in a separate packet which shall be sealed and on which the following particulars shall be recorded namely:---
(a) the name of the constituency;
(b) the date of counting; and
(c) a brief description of its contents;
(vi) the Returning Officer shall then place all the declarations in Form VIII which he has found to be in order in a separate packet which shall be sealed before any cover in Form IX is opened and on which shall be recorded the particulars referred to in clause (v);
(vii) all covers in Form IX containing postal ballot papers which have not already been dealt with under the foregoing provisions of this rule shall then be opened one after another and the Returning Officer shall scrutinize each ballot paper and decide the validity of the vote recorded thereby;
(viii) a postal ballot paper shall be liable to rejection on the grounds mentioned in sub-section (4) of Section 38, reference in that sub-section to prescribed mark being construed as reference to cross mark mentioned in sub-rule (1) of rule 13;
(ix) the Returning Officer shall count all the valid votes given by postal ballot in favour of each contesting candidate and record the total thereof as well as the number polled by each such candidate in the consolidated statement in Form XVI; and
(x) all valid, postal ballot papers shall, after they have been counted, be placed in a separate packet which shall be sealed and on which shall be recorded.---
(a) the name of the constituency;
(b) the date of counting); and
(c) a brief description of its contents."
A Booklet in the form of Manual of Instructions for the guidance of District Returning Officer, Returning Officer and Assistant Returning Officers was also issued by the Election Commission of Pakistan in English and Urdu for the Elections 2002, which provided guidelines for the officials conducting the election. Paragraphs 108, 109, 110, 111, 112, 113 and 114 of the Manual of Instructionj again C.L.R. highlight the duty of the Returning Officer to examine ballot papers excluded from the count by the Presiding Officer before the consolidation of the result. Paragraph 108 for facility of reference is reproduced hereunder:-- "108 Before the results of the count furnished by the Presiding Officer are consolidated in Form XVI, the Returning Officer shall examine the ballot papers excluded from the count by the Presiding Officer and, if he finds that any ballot paper should not have been excluded, he shall count it as valid ballot paper in favour of the candidate for whom it was cast. Similar action shall be taken by the Returning Officer in case of challenged votes, but in doing so, he shall not mix up the ballot papers taken out from the packet labelled "challenged ballot papers" and should keep them separate from the other ballot papers".
It is thus absolutely and abundantly clear that the Returning Officer is duty, bound and expected.
To examine each ballot paper so excluded from count by .The Presiding Officer and find out whether it had rightly been so done. He is also empowered to undertake recount (Paragraph-117 of Manual). Such is the importance of the Returning Officer in the scheme of the law and meticulous statutory provisions empowering him to perform functions and discharge duties right from the commencement of the election process till its completion.
15. It is thus, now to be seen whether the non- compliance of these statutory provisions in particular; S. 39 render the election process void as visualized by S. 70(a), which is as follows:-- "S. 70 Ground for declaring election as a whole void The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of a ) the failure of any person to comply with the provisions of the Act or the rules; or"
(b) the prevalence of extensive corrupt or illegal practice at the election.
16. The question as to whether a statutory provision/requirement is mandatory or directory, depends on its effect. 'If no substantial rights depend on it and no injury can result from Ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed and substantially the same results obtained, then the status will generally be regarded as directory; but if not, it will be mandatory." (Miller v. Lakewood Hsg Co, 1932 the 125 Ohio Court 152).
N.S. Bindra in his "Interpretation of Statutes" Ninth Edition, deals with this subject at page-935. A further passage at the same page is as follows:--- "There can be no rule of universal application for the determination of the question whether a provision in a statute is imperative or.Merely directory, the question in each case being one to be decided on a consideration of the scope, object and nature of the statutory provision. There is no fixed rule that will give an exact answer to the question of mandatory and directory provisions... .....
A realistic approach to the problem is to utilize the recognized aids to construction with a view to ascertaining the actual legislative intent. One of such sources is the purpose of the statute, that is, the purpose with which the law was made. In Re Cuddeback, the Court said:- It has further been commented that: "It is the duty of the Court to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. The use of the expression `shall is not considered decisive and the question whether the provision is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed.'"
At page-945 a passage reads like this:--- 'A command to' do a thing in a particular manner would imply a prohibition to do it in any other manner, otherwise the whole aim find object of the law would plainly be defeated. When power is given under a statute to do a certain thing in a certain way the thing must be done in that way or riot at all."
"Voting - Where a right to 'cast any kind of vote is given by statute, the duty to comply with the conditions laid down is usually mandatory. Failure to comply, except in an immaterial respect, will cause the vote to be void..
Example 10.9. The Local Government Act, 1972 S. 99 and Sch. 12 para 39(2) states that it the case of an equality of votes at a meeting of a local authority the person presiding at the meeting shall have a second or casting vote. The Act also states that at any meeting of the council the chairman, if present, shall preside. In Re Wolverhampton Borough Council's Aldermanic Election (1962) 2 QB 460, a case under corresponding provisions of the Local Government Act, 1933 expressed in terms of the mayor rather than the chairman, the mayor, though present, had allowed another council member to preside.
Held The casting note of the person presiding was void."
17. Somewhat identical provisions appearing in the National and Provincial Assemblies (Elections) Ordinance, 1970 under which the elections were held in the year 1970, came to be considered by their lordships of the Supreme Court in Syed Saeed Hassan v. Pyar All and 7 others (PLD 1976 S.C. 6) After noting the historical background of the election laws it was observed at Page-33 that "Under Section 37, the Returning Officer has to prepare a consolidated result of: the count. While doing so, he has been authorized to include votes cast in favour of a contesting candidate which according to him were wrongly excluded by the Presiding Officer, or vice versa. Significantly enough under sub-section (4) of Section 37, he is required to show separately the ballot papers rejected by him. On the declaration of the result, the Returning,Officer has to submit to the Commission a report of the election in the prescribed form together with a copy of the consolidated statement." After taking note of the rules (ft 25 of the National and Provincial (Elections) Rules, 1970), it was observed that "It is simply inconceivable that having regard to the extraordinary importance of each single vote, the law-giver should have in utter disregard of this paramount consideration either deprived the Tribunal of the, foundational jurisdiction of going into validity of votes cast in favour of a candidate thus investing the Returning Officer with unchallengeable authority to finally determine the question of validity or. Invalidity of votes so as to make his findings completely sacrosanct or left the matter to his discretion whose arbitrary exercise could not be interfered with." The failings on the part of the polling staff ultimately resulted in the declaration that election as a whole was void directing the election to be held afresh. In Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Squad and 30 others (PLD 1986 S.C. 178) the dispute concerned with the election to the Senate held under the Senate (Election) Act 1975. At page-188 "Principle somewhat broadly expressed" was mentioned that "so far as election law are concerned the requirements of law insofar as officers conducting the election are concerned are "usually" taken to be directory and so far as these requirements concern the voter they are "usually" taken to be mandatory" A passage from Corpus Juris Secundum was referred by their Lordships that "It is a general rule that a statute which is negative or prohibitory: even though it provides no penalty for non-compliance, or which contains peremptory and exclusive terms, shows a legislative intent to make the provision mandatory............................... In the final analysis, the intention of the Legislature must control C L. R. irrespective of the use' of affirmative or negative words, where such intention can be otherwise ascertained." It is thus evident that while construing a particular provision of law the Court is obliged to get at and ascertain the legislative intent irrespective of the phraseology used. . In Jam Mashooq Ali v Shahnawaz Junejo (1996 SCMR 426) the 'election of the returned candidate was challenged before the Election Tribunal and was declared as a whole void. While noting the role of the Returning Officer in the conduct and holding of election it was observed that "failure to provide the amended Electoral Rolls to the Presiding Officers of the various polling stations in the constituency till afternoon time on the polling day by election authorities attracted the provisions of Section 70' of the Act for declaring the election as a whole void." Likewise the non issuance of postal ballots was held to be a ground under S. 70(a) to have "vitiated process of election as a- whole." In . Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan , Loni and 13 others (1999 SCM R 284), which has earlier as well been cited, it was observed that "The rule pertaining to non-compliance of the applicable provisions of law by the officers. And staff conducting an election figure at yet another plane. Indeed where, in a constituency, there is a general failure of the election machinery, involving non-compliance with the provisions of the Act and the Rules the allegations" can be only as much detailed as is plausible in the given circumstances of a case."' It was observed at page-298 that "In our opinion the official conduct"of the election was flawed to an extent where the entire electoral process should have been declared to be void." It was held that "nothing short of the whole election being void could be the verdict."
"Collecting all these cases together,_ I suggest that the law can be stated in these propositions.(1)
If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected, or not. That is shown by the Hackney case, where two out of 19 polling stations were closed 611 day, and 5,000 voters were unable to vote. (2) If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls - provided that it did not affect the result of the election. That is shown by the Islington case where .14 ballot papers were issued after 8 p.m. (3) But, even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls - and it did affect the result-. Then the election is vitiated. That is shown by Gunn v. Sharpe, where the mistake in not striping 102 ballot papers did affect the result. Applying these propositions, it is clear that in this case, although the election was conducted, substantially in accordance with the law, nevertheless the mistake in not stamping 44 papers did affect the result. So the election is vitiated. The election of Mr. Simpson must be declared invalid."
18. All the authoritative pronouncements and opinions of the authors in the above-mentioned celebrated works have one thing at least common that irrespective of the language and phraseology used by the legislature the legislative intent and end result to be attained is to be discovered in order to reach the conclusion that a particular provision is mandatory or of directory nature.
19. Reverting again to the provisions of S. 39 and R. 26, I am left in no doubt whatsoever that the intendment of the legislature is abundantly clear that before consolidating the results of the count the Returning Officer, had to examine the ballot papers excluded from the count by the Presiding Officers and to reach his on conclusion as to the correctness of the exclusion or. Otherwise. Not only in _ sub-section (3) the phraseology "the Returning Officer shall examine the ballot papers excluded from the count by the Presiding Officer", lends support to this view, the provisions of S. 70(a) fortify such a conclusion as the consequences of failure: "to comply with the provisions of the Act or the rules" are clearly mentioned by the law itself i.e. Election to be rendered void as a whole.
Such a view also finds support from Syed Qurban Ali Shah v. Anis Ahmed Khan and 10 others (1993 CLC 849), wherein the learned Election Tribunal, Sindh had noted the deposition of the Returning Officer that "he did not examine 'or consider 872 rejected votes (Exh.A/4/1) while he announced final results. In doing so he violated mandatory directions contained in Section 39(3) of the Representation of the People Act, 1976 requiring a Returning Officer to examine the ballot paper excluded from the Court by the Presiding Officer and to decide if it was rightly excluded or not." The inescapable conclusion thus, as to the import and effect of the duty of the Returning Officer as per S. 39, R. 26 and paragraph-108 of Manual of Instructions is that it was his imperative duty to have acted strictly in accordance with the statutory Provisions while holding and conducting the election.
20. Now the contention of the learned counsel for respondent No. 1 that since initially the petitioner had claimed relief that the election of respondent No. 1 be declared null and void and the petitioner be declared as elected from NA-90 Jhang-V. Therefore. He cannot ask for the election to be declared void as a whole, may be adverted to . According to him no foundations had been laid by the petitioner either in the pleadings or in the evidence. It may -be reiterated that the election was held on 10.10.2002, the date for consolidation of the results before the Returning Officer was 12.10.2002 when the application of the petitioner came before him that number of valid votes cast in favour of the petition& had illegally been rejected and excluded from his count, whereas large number of votes were wrongly included in favour of respondent No. 1, but such a request was turned down by rejecting the said application, the same_ day. It was indeed a "failure" as envisaged by clause (a) of S. 70 of the Representation of the People, Act, 1976 on the part of the Returning Officer whose non-performance of duty and non-compliance of the provisions of the Act has given rise to this whole episode, who despite pointation by the' petitioner failed to perform his duty. Not only before the Returning Officer but before the Election Commission of Pakistan in the petition filed by the petitioner such a stance was repeated wherein it was also pleaded that mistakes committed by the Returning Officer and the Presiding Officers" had invalidated the votes of the petitioner. In the same series W.P. No. 18868/02 had been filed with similar grievance of the petitioner. In the present election petition, in paragraph No. 7 it has specifically been pleaded that "That the Returning Officer was enjoined by law to examine the ballot papers excluded from the count and re-decide the validity thereof in the presence of the parties. It is submitted that the Returning Officer did not conduct the aforesaid exercise nor was the Petitioner or his Election Agent associated with any such exercise." It has further been elaborated in the grounds of the petition "That the election has been conducted in an illegal and unlawful manner in violation of the mandatory provisions of the Representation of the Peoples Act, 1976." In clause (v) and clause (yi) of the grounds the respective violation of the statutory provisions of S. 38 by the Presiding Officer and mandatory provisions of S. 39(3) of the Representation of the People Act, 1976 by the Returning Officer have been highlighted. It thus, cannot be successfully pleaded on behalf of respondent No. 1 that no specific plea/grounds had been taken by the petitioner in this regard. In his deposition as well the petitioner has affirmed the averments so made in the petition.
21. Apart from the respective pleas of the parties the statement of the Returning Officer, which he made before this Tribunal cannot be overlooked or lost sight of. He admitted that an application Ex.D-1 was made by the petitioner, which was rejected by him, on the same date and that "I did not inspect or examine the ballot papers excluded from the count by the Presiding. Officer ". It was further stated by him that "I had not opened or de-sealed any of the packets/bags, which were produced by the Presiding Officers before me." This is the deposition of the statutory functionary who was charged with the duty to do all acts and things "as may be necessary for effectively conducting an election in accordance with the provisions of the Act and the rules" as envisaged by S. 7(4) of the Representation of the People Act, 1976 and who had to ensure,the conduct of the election "honesty, justly, fairly and in accordance with law" as ordained by Article 218 of the Constitution of Islamic Republic of Pakistan, 1973. Indeed the lapses and violations are so serious, which takes the issue out of the purview and scope of the pleadings of the parties. The non- compliance of the statutory provisions of law and violations are so flagrant, visible and obvious that provisions of S. 70(a) of the Representation of the People Act, 1976 fully get attracted.
22. As to the prayer and relief it only need to be observed that the petitioner had prayed for his declaration as a returned candidate. Now if he is seeking declaration of election void as a whole, he is not asking for more than what he had prayed. In fact he is claiming lesser relief; to which no legitimate exception can be taken. There is no dearth of precedents where the Election Tribunal or the Court itself altered the relief and declared the election void as a whole and fresh election was ordered. For reference see Syed Saeed Hassan v. Pyar Ali and 7 others (PLC 1976 S.C. 6), Jam Mashooq Ali v. Shahnawaz Junejo (1996 SCM R 426) and Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCM R 284). It may be observed that clause (d) of S. 67 of the Representation of the People Act, 1976 itself empowers the Election Tribunal to declare the election as a whole to be void. Thus, in the light of the statutory provisions and the precedents the Tribunal is fully justified to declare an election as a whole void and order fresh election in. The constituency.
Thus the overall appreciation of the pleadings of the parties the material/evidence . On the record and consideration of the legal provisions in the context of settled principles, persuade me to be "satisfied" in terms of S. 70(a) of the Representation of the People Act, 1976 that the noncompliance and violation of statutory provisions mentioned above has rendered the election void as a whole. It is so declared.
As a result, the petition is accepted declaring the election in NA-90 Jhang-V void as a whole.
Consequently, fresh election may be held in that constituency in accordance with law.
At the conclusion of the proceedings the learned counsel for respondent No. 1 has pointed out that she is the sole lady from the Province of Punjab in the National Assembly, who acquired that status after tough campaign and contest in the election. The object perhaps, was to evoke some sort of indulgence. It may be observed that the effort put in by her for reaching. The Parliament may be commendable, however, it needs no reiteration, that such aspects can have no relevance while deciding a lis between two contesting parties as for due administration of, justice and upholding the rule of law no such consideration can weigh or prevail. In the fresh elections to be held she would also be free to participate and return if Mandated by the people of the constituency.