' KAZIM ALI MALIK - Barrister Shahid Masood, petitioner (for short, 'the petitioner') and his chief political rival Malik Ahmed Saeed Khan, respondent No, 1 besides respondents No, 2 to 17 contested the General Elections 2013 held on 11.5.2013 from constituency No, PP-178, Kasur-IV for the position of Member, Provincial Assembly, Punjab. On the basis of statements of the count in form XIV furnished by the Presiding Officers, the Returning Officer drew up consolidated statement of the results of the count in form XVI according to which the petitioner secured 17815 votes whereas Malik Ahmed Saeed Khan, respondent No, 1 obtained 34335 votes. In this way the respondent No, 1 defeated the petitioner (runner up) by 16520 votes. Election Commission of Pakistan notified Malik Ahmed Saeed, respondent No, 1 as the returned candidate from the above-said constituency.
2. Before filing this election petition, the petitioner/runner up, inspected the election record in terms of Section 45 of the Act, 1976 with the permission of Election Commission of Pakistan and then filed election petition No, 237/2013 on the basis of allegations set up therein.
3. Out of the respondents/contesting candidates, only the returned candidate and petitioner's brother Humayun Masood, respondent No, 17 entered appearance. The returned candidate dismissed all the allegations through his written reply. Respondents No, 2 to 16, opted to remain absent and were proceeded against ex parte. Respondent No, 17 sided with the petitioner.
4. In the light of counter versions laid before the Election Tribunal through the election petition and the written reply, the petitioner and the returned candidate were put on trial on the following issues:---
1. Whether the petitioner failed to transmit prior copy of election petition and attached documents to the returned candidate respondent No, 1, if so, its effect? OPR 1.
2. Whether the petitioner failed to verify the election petition and the attached documents as per law, if so, its effect? OPR 1.
3. Whether the petitioner failed to put forward specific instances of corrupt and illegal practice and instead introduced vague and general allegations, if so, its effect? OPR 1.
4. Whether the irregularities/illegalities/mal-practices/corrupts practices/illegal practices, set up in the election petition, if proved and established with evidence, would provide a legal basis to declare the election in question and the Notification issued by the Election Commission of Pakistan declaring respondent No, 1 as returned candidate, void as a whole? OPP
5. Relies? OP Parties.
5. The petitioner examined Muhammad Waqar Saeed, PW-1; Muhammad lqbal, PW-2 and Hamayun Masood, respondent No, 17, PW-3. He also made an application u/s. 46 of the Act, 1976 for production and inspection of election record with the plea that he himself saw bad state of election record during its inspection u/s. 45 of the Act, 1976 with the permission of Election Commission of Pakistan. The petitioner filed his affidavit (Ex.PW-4/A-1 to 14) in the form of inspection report wherein he depicted polling station wise state of record with the claim on oath that its contents were based on facts. The petitioner further claimed on oath that Mr. Muhammad Saleem, Additional District & Sessions Judge/Returning Officer also prepared inspection note as a result of inspection of record u/s. 45 of the Act, 1976. Before deciding the fate of petitioner's application u/s. 46 of the Act, 1976, the Returning Officer was summoned as Tribunal witness and examined on 27.11.2013, when he disclosed that he neither inspected the election record nor prepared inspection report and that he simply arranged inspection of election record by the contesting candidates under the order of the Election Commission of Pakistan. The Returning Officer (Tribunal Witness No, 1) further stated that while consolidating the results of the count he neither opened the election bags nor examined the rejected votes excluded from the count by the Presiding Officers. It appears that the Returning Officer was not equipped with required legal knowledge and professional skill and that is why he failed to discharge his legal obligations in terms of Section 39(3) of the Act, 1976, which is reproduced below for facility of reference:- 39(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."
' Keeping in view petitioner's affidavit, Ex.PW-4/A-1 to 14 containing his stance qua inspection of election record u/s. 45 of the Act, 1976 and admission of the Returning Officer (Tribunal Witness No, 1) that he did not examine the rejected votes in terms of Section 39(3) ibid, the petitioner's request for inspection of election record u/s. 46 ibid was allowed at his risk and cost. Mr. Sultan Ahmad, Additional District & Sessions Judge (Retd) was appointed as Commission, who inspected the election record of the polling stations excepting that of polling stations No 165 169, 199, 242 and 249, which could not be made available for inspection. The Commission/TW-2 submitted his report, Ex.TW-2/A. Subsequent to this, the five missing bags were also traced out by the District Returning Officer, Kasur and were produced before the Commission on 28.3.2014 and were inspected by him in presence of the parties. The Commission (TW-2) submitted second inspection report, Ex.TW-2/B.
In this way entire election record of the constituency was inspected by the Commission.
6. I have already observed that petitioner's request for inspection of election record u/s. 46 ibid was allowed at his risk and cost by means of order No, 18 dated 24.12.2013, key lines of which are reproduced below in verbatim:--- "During the course of arguments, petitioner Barrister Shahid Masood stated to a question that inspection of election record may be ordered in terms of Section 46 of the Act, 1976 at his risk and cost. To another question, the petitioner has stated that in case the inspection report is received adverse to his claim set up in the affidavit (Ex.PW-4/1 to 14) and not sufficient to affect result of the election, the election petition may be dismissed without further trial of the election dispute."
' The returned candidate also opted to have the election dispute decided in the light of inspection reports, Ex.TW-2/A and Ex.TW2/B. In this regard his learned counsel made statement on 12.2.2014, which reads as under:--- "On instructions, I state that fate of the election petition may be decided in the light of report of the Commission already adduced in evidence without recording evidence of the returned candidate."
' Although, petitioner's request for inspection of election record was allowed at his risk and cost, he opted to assail the inspection reports and attempted to back out of his commitment on the ground that the Commission did not prepare inspection reports in line with the terms of reference. I am unable to attach any importance to the oral and written grounds of attack against the inspection reports, Ex.TW-2/A and Ex.TW-2/B with an observation that the petitioner is bound to honour his words. His own undertaking reproduced above stands in his way to challenge the inspection reports.
7. ' Keeping in view the aforesaid offer by the petitioner and its acceptance by the returned candidate, the inspection reports, Ex.TW-2/A and Ex.TW-2/B hold the field. Hence, both sides are under legal obligation to agitate their respective case and cause while remaining within the boundaries of election dispute already defined and determined by the Commission (Tribunal Witness No, 2) through his inspection reports, referred to above.
8. Learned counsel for the petitioner has contended that as per inspection reports, Ex.TW-2/A and Ex.TW-2/B a sizeable number of counterfoils were found without stamp and signature of the Presiding Officer or the Assistant Presiding Officer. Before adverting to the merits of the contention, I find it appropriate to tabulate the figures of such counterfoils:- {{TABLE}} Sr. No Polling Station No, Total number of counterfoils without stamp and signatures of the concerned officer.
1. 144 99
2. 145 179
3. 147 185
4. 149 646
5. 153 239
6. 155 489
7. 157 900
8. 158 765
9. 160 255
10. 161 744
11. 163 99
12. 168 366
13. 171 146
14. 175 98
15. 176 181
16. 189 547
17. 190 184
18. 192 282
19. 194 1298
20. 196 98
21. 198 96
22. 200 433
23. 206 465
24. 211 96
25. 215 466
26. 216 100
27. 217 792
28. 221 989
29. 222 456
30. 226 357
31. 228 537
32. 231 538
33. 233 298
34. 236 1099
35. 238 99
36. 244 83
37. 253 267
38. 255 499
39. 256 906
40. 262 1101
41. 266 195
42. 267 611
43. 268 13
44. 269 423
45. 272 500
46. 169 99 Grand Total 18988
9. Now, I bring on record in tabulated form other irregularities committed by the polling staff and highlighted by the Commission through aforesaid inspection reports.
Statement showing the counterfoils without bearing voter number.
Sr. No, Polling Station No, Number of use counterfoils without voter number
1. 144 84
2. 147 185
3. 149 21
4. 155 393
5. 156 292
6. 190 184
7. 252 199 Grand Total 1359 Statement showing the number of counterfoils, which had been stamped but not signed.
Sr. No, Polling Station No, Number of use counterfoils without voter number 32 248 55 99 257 289 268 256 108 98 Grand Total 990 {{TABLE}} ' It is not in dispute that 18988 counterfoils are without stamp and signature of the Presiding Officers/Assistant Presiding Officers. Likewise, 1359 counterfoils do not bear vote number. 990 counterfoils were stamped, but not signed by the Presiding Officer/Assistant Presiding Officer. The Commission found 137 and-20 counterfoils from the election bags of polling stations No 70 and 268 respectively which had been signed but not stamped by the concerned officer. The -total number of above-said four categories of counterfoils depicted separately to the above effect comes to 21454. Learned counsel for the petitioner contended that 21454 ballot papers issued to the electors against aforesaid counterfoils should have been excluded from the count and that the Presiding Officers and the Returning Officer erred in law while treating 21454 ballot papers as validly polled votes. The learned counsel for the petitioner has further argued that the members of polling staff violated the voting procedure laid down by Section 33 of the ROPA, 1976, therefore, result of the election favourable to the returned candidate has been materially affected. Reliance has been placed on the case-law laid down in Sardar Abdul Hafeez Khan 'v. Sardar Muhammad Tahir Khan Looni, 1999 SCM R -284. Before adverting to the argument, I find it advantageous to reproduce below Section 33 of the Act, 1976, which lays down voting procedure as under-
33. Voting procedure. -
(1) Where an elector presents himself at the polling station to vote, the Presiding Officer shall issue a ballot paper to the elector after satisfying himself about the identity of the elector 1 lar-1 shall, for that purpose, require the elector to produce his identity card provided for in the National Registration Act, 1973 (LVI of 1973) 2[or issued under the Nation Database and Registration Authority Ordinance, 2000 (VIII of 2000)].
(2) Before a ballot paper is issued to an elector--- (a)
(b) the number and name of the elector as entered in the electoral roll shall be called out;
(c) the entry relating to the elector on the electoral roll shall be struck off to indicate that a, ballot paper has been issued to him] [(cc) he shall be required to receive a personal mark, made with indelible ink, on any finger of either hand as indicated by the Commission,]
(d) the ballot paper shall be stamped on its back with the official mark and 6[signed] by the Presiding Officer; and
(e) the Presiding Officer shall record on the counterfoil of the ballot paper the number of the elector on the electoral roll2the number of National Identity Card of the elector], stamp it with the official mark 6[sign it and obtain on] it the thumb impression of the elector,
(3) 1[A ballot paper shall not be issued to a person who---
(a) fails or refused to produce his identity card provided for in the National Registration Act, 1973 (LVI of 1973)2 [or issued under the National Database and Registration Authority Ordinance, 2000 (VIII of 2000)];
(b) 3[
(c) refuses to put his thumb impression on the counterfoil or whose thumb bears traces of its having already been used for putting an impression; or
(d) refuses to receive the personal mark with indelible ink or who already bears such a mark or traces of such a mark.]
(4) If a contesting candidate or his election agent or polling agent alleges that an elector to whom a ballot paper is about to be issued already has one or more ballot papers in his possession, the Presiding Officer may require the elector to satisfy him that he does not have any other ballot paper in his possession and may also take such measures as he thinks fit to ensure that such elector does not insert more than one ballot paper in the ballot box.
(5) On receiving the ballot paper, the elector shall
(a) forthwith proceed to the place reserved for marking the ballot paper;
(b) put the prescribed mark on the ballot paper at any place within the space containing the name and symbol of the contesting candidate for whom he wishes to vote; and
(c) after he has so marked the ballot paper; fold and insert it in the ballot box.
(6) The elector shall vote without undue delay and shall leave the polling station immediately after he has inserted his ballot paper in the ballot box.
(7) Where an elector is blind or is otherwise so incapacitated that he cannot vote without the assistance of a companion, the Presiding Officer shall allow him such assistance and thereupon such elector may do with such assistance anything which an elector is required or permitted to do under this Act.
' It is not disputable that the electors to whom 21454 ballot papers in question had been issued by the Presiding Officer or the Assistant Presiding Officer, established their identity by producing National Identity Card in terms of Section 33(1) ibid. Compliance of the voting procedure in terms of Section 33(2)(b)(c)(cc)(d)(3)(c)(d)(5)(a)(b)(c) qua the ballot papers under challenge is not in dispute or disputable. This is a matter of record that the Presiding Officer or the Assistant Presiding Officer concerned failed to stamp and sign 18988 counterfoils. They also did not record vote number of the elector on 1359 counterfoils. Combined examination of inspection reports and Section 33(2)(e) ibid would show that the concerned officers complied with the requirements of law to great extent as they recorded vote number, National Identity Card number of the elector and obtained their thumb impressions on 18988 counterfoils of first category. They omitted to stamp and sign the said counterfoils. However, it is worth mentioning that the ballot papers issued against 18988 counterfoils had been stamped and signed on the back as laid down in Section 33(2)(d) ibid. When- confronted with the aforesaid state of record, learned counsel for the petitioner argued that Hon'ble Supreme Court of Pakistan treated the aforesaid irregularities as fatal to the result of election in the case of Sardar Abdul Hafeez Khan. I have minutely gone through the precedent case (1999 SCM R 284) and would say without any fear of contradiction that the contention by the petitioner does not qualify the legal test laid down by the apex Court of the country. For facility of reference key lines of the precedent case are reproduced below in verbatim:- -- "The Section is elaborate enough and we may pause only to observe that production of the elector's identity card at the time of seeking the ballot paper is a pivotal fact and that being done the ballot paper to be issued is required to be stamped on its back with the official mark and signed by the Presiding Officer, lie Presiding Officer simultaneously recording on the counterfoils the number of the elector on the electoral roll together with the number of the relevant national identity card. The thumb impression of the elector is also to be obtained on such counterfoil and the Presiding Officer is thereupon to sign it. Correspondingly the voter is to be required to receive a personal mark with indelible ink and the entry relating to him on the electoral roll is to he scored off in token of the issuance of the ballot paper.
' Here it may bear mention that whereas election laws concerning voters are mandatory, such so far as the officers conducting the elections are concerned are usually directory: Mukhtar Hussain Shah v. Wasim Sajjad, PLO 1986 SC /78. Two things, however, have to be noted now. Firstly, where specific vote as to its validity or invalidity is involved, such may not be invalidated because a requirement of law has not been met, if law, in essentials, has been adhered to. Thus, when a law requires that a ballot paper shall be stamped on its back with the official stamp and signed by the Presiding Officer, the ballot paper may not be invalid if it either bears the official mark or the signature of the Presiding Officer but if both are found to be missing on a given ballot paper, such cannot normally be held to be valid because in that event its very issuance in the ordinary course would become doubtful Likewise, when law requires the counterfoil of a ballot paper to bear the number of the elector on the electoral roll, the number of his National Identity Card. Stamp of the official mark signature of the Presiding Officer and the thumb impression of the elector himself, a vote may remain valid if there be a substantial compliance with such requirements but in case that is not so. Making it plausibly suspect, the vilidity of the vote be questioned with success.
Secondly. While upon the invocation of the principles, non-compliance with the . Basic requirements of law, pertaining to specific votes, may result either in condonation or invalidity of such votes, in cases where the non-compliance is so pronounced as to attract the provisions of Section 70(a) of the Representation of the People Act, 1976, viz. The result of the election is shown to have been materially affected by reason, of failure of any person (s) 'to comply with the provisions of the Act or the rules, the entire election has to be declared void. Relevant outcome.
Here lies also the difference between Section 70 and its preceding Sections namely, 68 and 69, where the challenge is limited to qualification of a candidate or for corrupt or illegal practices, relatable to a candidate, of an identifiable nature or for entitlement of another to be declared elected in which event the electoral exercise can be allowed to stand but the election of the returned candidate may be declared to be void and another, if found to be entitled, declared as elected."
' I have re-examined the case in hand in the light of the case-law, referred to above and would say for the following reasons that the polling staff made substantial compliance with the requirements of voting procedure provided in Section 33 of the Act, 1976:-
(i) 21454 ballot papers issued against the counterfoils under challenge had been stamped and signed on the back in terms of Section 33(2)(d), ibid.
(ii) The Presiding Officers or Assistant Presiding Officers obtained thumb impressions of the electors on all the counterfoils in question as provided in Section 33(2)(e).
(iii) The Presiding Officers or the Assistant Presiding Officers recorded National Identity Card number of the electors to whom ballot papers had been issued against the aforesaid counterfoils as required by Section 33(2)(e).
(iv) The Presiding Officers or the Assistant Presiding Officers mentioned vote number of the electors on 18988 counterfoils as laid down in Section 33(2)(e).
(v) 1359 counterfoils do not bear vote number of the electors, but their thumb impressions and National Identity Card Number do exist on the counterfoils.
Seeking guidance from the statutory provisions of Section 33 ibid and the case-law, referred to above, I see no reason to through away 21454 votes.
10. At the time of first inspection of election record, polling bags of polling stations No, PP-108 (NA- 249), PP-101 (NA-242), PP-24 (NA-165), PP-58 (NA-199) and PP-28 (NA-169) could not be made available for inspection by the Commission. Later on, the District Returning Officer, Kasur traced out missing bags of aforesaid five polling stations from the District Treasury and produced them before the Commission on 28.3.2014 for inspection. The Commission/TW-2 inspected the election record of aforesaid five election bags and prepared second inspection report, Ex.TW-2/B. Learned counsel for the petitioner took exception to the above-said state of affairs with the plea that someone withheld the aforesaid five election bags dishonestly at the time of first inspection of election record and that their delayed inspection has adversely affected credibility of the election record found from the said bags. For multiple reasons, no importance can be attached to the argument. First, before filing the election petition in hand, the petitioner inspected election record of the constituency in terms of Section 45 of the Act, 1976 with the permission of Election Commission of Pakistan and adduced in evidence his affidavit in the form of inspection report, Ex.PW-4/A-1 to 14 wherein polling stations No, PP-108 (NA-249) and PP-28 (NA-169) do not find mentioned, meaning thereby that after inspecting the election record of aforesaid two polling stations, the petitioner did not find anything adverse to the election process. Had the petitioner observed something objectionable after inspecting the election record of aforesaid two polling stations, he would have mentioned so in his affidavit, referred to above. Secondly, the petitioner took contradictory stance qua the record of polling station No, PP-101 (NA-242). In his affidavit, Ex.PW-4/A-1 to 14 the petitioner says that counterfoils, form XIV and form XV were missing. At the time of inspection of election record of the said polling station by the Commission, the petitioner did not adopt and agitate the aforesaid ground of attack and instead raised the only objection that 900 ballot papers had been allocated to the polling station with which 931 registered voters were attached. It appears that the state of record forced the petitioner to change his earlier stance. The Commission (TW-2) certified vide his inspection report, Ex.TW-2/B that the election record found from the election bag was in order and correct. Allocation of 900 ballot papers to the polling station is not open to any exception because out of 931 registered voters of the polling station, only 38 electors exercised their right of vote.
Thirdly, in his affidavit, Ex.PW-4/A-1 to 14 the petitioner claimed that all the counterfoils were missing. At the time of inspection of record by the Commission in presence of the petitioner and the returned candidate, the aforesaid claim of the petitioner stood rebutted as complete election record was available. Contrary to his initial stance set up in the affidavit, the petitioner raised an objection before the Commission that 300 ballot papers were allotted to the polling station for 373 registered voters. A bare perusal of the consolidated statement of the results of the count would show that only 238 votes were polled to all the candidates at the above-said polling station. Hence, the allocation of 300 ballot papers to the polling station where 238 electors exercised their right of vote should not have hurt the petitioner. Fourthly, in his affidavit, Ex.PW-4/A-1 to 14 the petitioner claimed that all the counterfoils, statements in form XIV and form XV were not available in the election bag. The Commission/TW-2 found said claim of the petitioner offensive to the record. The counterfoils, the balls, papers and statements in form XIV and XV were available. However, the Commission observed that the Returning Officer wrongly mentioned the rejected votes as zero in the statement in form XVI because on recounting 88 votes were excluded from the count without any objection from both sides.
11. For the aforesaid reasons. The mere fact that aforesaid five election bags were not laid before the Commission at the time of first inspection of record would not adversely affect evidential value of the second inspection report, Ex.TW-2/B regarding the five election bags.
12. It was next contended by the learned counsel that the Returning Officer did not consolidate the results correctly in line with the statements of the count in form XIV and that on recounting the Commission through his inspection reports pointed out a number of calculation mistakes committed by the Returning Officer. Before analyzing the contention, I find it convenient to tabulate below the polled votes to the petitioner and the returned candidate in the light of consolidated statement of the results of the count and the inspection reports, Ex.TW-2/A and Ex.TW-2/B:--- {{TABLE}} Statement regarding polled votes to the returned candidate.
Sr Poling Total Total number of Increase Decrease Final No, Station number of polled votes to in the in the result No, polled votes the returned polled polled of the to the candidate as per votes to votes to returned inspection report the the recount candidate by the returned returned as per Cammission/TW- candidates candidate consolidated 2. statement of the results of the count prepared by the Returning Officer,
1. PP- Zero 455 455 455 25(NA- 166)
PP- Zero 237 237 237 37(NA- 178)
3 PP- 07 207 200 207 89(NA 230)
4 PP- 360. 348 12 348 108(NA- 249)
Grand Total 367 1247 892 12 1247 Statement regarding polled votes to the petitioner.
Sr Poling Total Total number of Increase Decrease - Final, No, Station number of polled votes to in the in the result No polled votes the petitioner as polled polled of the to the per inspection votes to votes to recount petitioner as report by the the the per Commission/TW- petitioner petitioner. consolidated 2. statement of the results of the count prepared by the Returning Officer.
PP- 09 30 21 30 25(NA- 166)
2. PP- 270 271 01 271 108(NA- 249)
Grand Total 279 301 22 301 {{TABLE}} ' In the light of above-said statements, the polled votes to the returned candidate have increased from 34335 to 35227, whereas the polled votes to the petitioner increased from 17815 to 17837. In other words, the returned candidate is still ahead of the petitioner by 17390 votes.
13. Although, learned counsel for the petitioner did not agitate the other irregularities observed by the Commission/TW-2, yet I have minutely gone through the inspection reports, which reveal that 900, 02 and 1000 counterfoils were not available in the election bags of polling stations No, PP-79 (NA-220), PP-96 (NA-237) and PP-110 (NA-251) respectively. 11 counterfoils of polling station No, PP- 70 (NA-211) and 71 counterfoils of polling station No, PP-76 (NA-217) were without thumb impressions of the voters. CNIC number of the electors had not been mentioned on 75 counterfoils of polling station No, PP-72 (NA-213). Here I must say that ballot papers issued against the aforesaid categories of counterfoils cannot be treated as validly polled votes. The evidence adduced by the petitioner and the inspection reports do not tell to whom 2059 votes were polled.
For the sake of arguments, if it is presumed for a moment that 2059 votes had been polled to the returned candidate, the result of the election is not materially affected. In case, 2059 votes are excluded from the vote account of the returned candidate, he is still possessed with 33168 valid votes against 17837 votes of the petitioner.
14. For what has been stated above, it is not difficult to conclude that inspection of election record u/s. 46 of the Act, 1976 as per request of the petitioner has demolished his case and cause.
Resultantly, issue No, 4 is answered against the petitioner. In view of the findings under issue No, 1, it would be a futile exercise to answer issues No, 1, 2 and 3, which were not pressed at the time of final arguments.
15. Learned counsel for the petitioner lastly argued that boundaries of the constituency had been changed by the Election Commission of Pakistan unauthorizedly. The Election Tribunal has nothing to do with the de-limitation of the constituency. In case, the petitioner was aggrieved of the de- limitation of the constituency, he should have availed of legal remedy before the competent forum.
16. The upshot of the above discussion is that, in my opinion, the petitioner has failed to prove his cause against the election of the returned candidate. I, therefore, dismiss the Election Petition with no order as to costs. Election .