' SH. AZMAT SAEED, J .---This Civil Appeal under section 67(3) of the Representation of the People Act, 1976, (ROPA) is directed against the judgment dated 31-12-2013, whereby an Election Petition bearing No, 76 of 2013, filed by respondent No,1, was partly allowed and repelling was directed in seven Polling Stations and the Notification issued by the Election Commission of Pakistan (ECP), declaring the appellant, as a Returned Candidate from NA-19, was suspended till the repelling was conducted and a fresh result calculated and declared.
2. The matter in dispute pertains to the elections held on 11th of May, 2013, in Constituency NA-19 Haripur, KPK. The appellant as well as the respondents contested the said election. After the tabulation of the result, the Returning Officer declared the appellant, as a Returned Candidate, having received the highest number of votes i,e, 1,16,979. Respondent No,1, as per the said result, secured 1,14,807 votes. Thus, there was a difference of 2,172 votes. On 13-5-2013, respondent No,1 moved applications both before the Returning Officer as well as the ECP seeking recounting of the votes. Vide Order dated 27-5-2013, the ECP directed the Returning Officer to conduct a recounting of all the votes cast. Pursuant to the said Order, the process of recounting of the votes commenced on 19-5-2013 and was concluded on 24-5-2013. As a result of the recounting the, appellant was stated to have received 1,17,612 votes and respondent No,1, 1,16,308 votes. The appellant again emerged victorious with a margin of 1,304 votes. Consequently, a Notification dated 27-5-2013, was issued by the ECP, declaring the appellant, as a Returned Candidate for the Constituency NA-19 Haripur, KPK.
3. Being aggrieved, respondent No,1 challenged the said election of the appellant through an Election Petition under section 52 read with section 68 of ROPA. Another Election Petition under section 76-A of ROPA was also filed by respondent No,1 before the Election Tribunal (hereinafter referred to as the Tribunal). Pursuant to notice, the appellant entered appearance and contested the afore-said two Election Petitions. Written reply was filed, controverting the contentions raised in the Election Petitions. Various preliminary objections were also raised. Both the Election Petitions were heard together and on the divergent pleadings of the parties, issues were framed, whereafter evidence, oral as well as documentary, was produced by both the sides. The TribunaL seized of the matter vide its consolidated judgment dated 31-12-2013 dismissed the Election Petition under section 76-A of ROPA, filed by respondent No,1, however, the Election Petition under section 52 of ROPA found favor with the Tribunal and was decided in terms mentioned hereinabove. The appellant through the instant Civil Appeal has challenged the judgment dated 31-12-2013, passed in the said Election Petition, filed by respondent No, 1 . However, respondent No,1 has neither challenged the said judgment nor called into question the dismissal of his Election Petition under section 76-A of ROPA by way of the impugned judgment.
4. Mr. Hamid Khan, learned Senior Advocate Supreme Court for the appellant referred to the impugned judgment and stated that repolling has been directed in seven Polling Stations for the following reasons:--
(i) 71 (GPS-Mamral)
' Thumb impression on voter list not obtained. 74 (GGHS-Bagra)
(a) Entries relating to the voters on the voter list were not struck off.
(b) 575 ballot papers issued as against 558 polled 17 ballot papers went missing/unaccounted for.
(iii) 256 (GHS-Alloli)
(a) 52 rejected votes were missing.
(b) Voter list also missing.
(c) 908 votes polled, whereas, counter foil of only 103 votes available.
(iv) 276 (GPS-No,3, Sec-DTS) Voter list missing.
(v) 289 (GPS-No,2, KTS) Voter list missing.
(vi) 342 (GPS-Dana Kalinger) Voter list missing.
(vi) 395 (GHS-Ghazi Hamlet) Voter list missing.
5. It is contended that by necessary implication all other requirements of Jaw obligatory for a free, fair and impartial election under the ROPA have admittedly been complied with even with respect to the aforesaid seven Polling Stations. It is added that there is no finding by the Tribunal that the appellant or any other person on his behalf indulged in any corrupt practice and at best there may have been some lapses on the part of the polling staff for which the appellant cannot be held responsible or deprived of his hard won victory in the election.
6. The learned counsel further contended with reference to the allegedly missing Voters Lists that the recounting was conducted at a venue, several kilometers from the place, where. The election material was stored, and NA-19, the Constituency in question, is one of the largest Constituency in Pakistan with over 5,00,000 registered voters and in the election in dispute more than 2,88,000 votes were cast. The entire process of the recounting of votes was spread over several days and there is every possibility that the Voters List in seven out of 437 Polling Stations could have been misplaced or stored in bags containing the material pertaining to the elections to the Provincial Assembly from the same area. Even otherwise, the absence of the Voters List could not vitiate the result of the Polling Station in question, as the sole purpose of the availability of the Voters List is to facilitate the identification of the voters so as to avoid double voting. In case of dispute with reference to any particular voter his or her identity could be ascertained by the counterfoils of the ballot papers whereupon the CNIC numbers are scribed and. Thumb impression obtained. In the instant case, there is no specific finding by the Tribunal that any unauthorized person had cast any vote or that there was double voting by any voter registered in the Constituency. It is further added that there is no requirement of law that the thumb impression of a voter be obtained on the Voters List and merely his or her name is to be struck off. Therefore, the findings arrived at by the Tribunal are based on surmises and conjectures and not sustainable in law.
7. It is next contended by the learned counsel on behalf of the appellant with regards to the alleged non-compliance of the legal provisions by the polling staff, that such provisions are not mandatory but directory in nature and any lapse in this behalf would not materially affect the outcome of the election or justify a repoll.
8. The learned counsel further contended that the very Election Petition, filed by respondent No,1, was defective in law and therefore not maintainable. It was contended that section 55(1)(b) requires that the allegations leveled must be specific and set out with particularity. In the instant case, the Election Petition contained vague allegations which were general in nature, in spite of the fact that the recounting of every Polling Station was conducted in the presence of the said respondent who had full knowledge of and access to the record of each Polling Station. In the circumstances, the Election Petition filed by respondent No,1 was liable to be summarily dismissed on this ground alone in view of section 55 of ROPA.
9. In the alternative, the learned counsel contended that the Tribunal had no jurisdiction in law to direct a repoll in a few Polling Stations. If convinced of non-compliance of provisions of ROPA by virtue of section 67, the Tribunal could only have set aside the election as a whole and directed a repoll in the entire Constituency.
10. Lastly, the learned counsel contended that the election results represent the will of the people and should not be interfered with or upset in the absence of compelling reasons which were not availed in the instant case.
11. In support of his contentions, the learned counsel for the appellant relied upon the judgments, reported as Muhammad Saeed and 4 others v. (1) Election Petitions Tribunal, West Pakistan, (2)
Mehr Muhammad Arif Khan (3) Ghulam Haider and (4) West Pakistan Government and others [PLD 1957 Supreme Court (Pak.) 911, Ch. Muhammad Abdullah v. Ch. Abdul Wakil and others (PLD 1986 SC 487), Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others (PLD 2012 SC 681), Dr. Sher Afghan v. Aamar Hayat Khan and 2 others (1987 SCM R 1987), Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCM R 284), Ehsanullah Reki v. Lt. General (R) Abdul Qadir Baloch and others (2010 SCM R 1271), T. A. Ahammed Kabeer v. A. A. Azeez and others (AIR 2003 SC 2271), and Mangani Lal Mandal v. Bishnu Deo Bhandari (AIR 2012 SC 1094).
12. The learned Advocate Supreme Court appearing on behalf of the contesting respondent i,e, respondent No,1 (Omar Ayub Khan) controverted the contentions raised on behalf of the appellant.
It was contended that it was a closely contested election and, at the very outset, discrepancies between the results of individual Polling Stations and the consolidated result of the Returning Officer, were noticed. In the above backdrop, upon an application, filed by respondent No,1, the ECP directed a recount of the votes cast. Several other Orders for the recount were also passed by the ECP in respect of various other Constituencies. During the process of the recount, the legal objections of respondent No,1 were neither taken into account nor adjudicated upon, as the same were beyond the pale of the Order for the recount. The Tribunal alone had the jurisdiction to entertain and decide such objections and grievances and therefore, after the recount respondent No,1 filed the Election Petitions in question.
13. It is the case of the learned counsel for respondent No,1 that the Election Petition, as filed, duly complied with the procedural requirements, as mentioned in ROPA and the Rules framed thereunder. It was his case that necessary particulars were mentioned in the Election Petition which included various annexures mentioned therein and forming part thereof and when read together, the case of respondent No,1 was disclosed with sufficient particularity both as to the grievance raised and the Polling Station in question. Even otherwise, it is contended, that the objection that the Election Petition did not conform with the procedural requirement, has not been agitated in the instant Civil Appeal and therefore, the learned counsel for the appellant cannot assert the same.
14. By referring to the various provisions of ROPA, the learned counsel contended that it was a mandatory requirement of law that the Voters List, be made available to and used by the Presiding Officers, at the Polling Stations and preserved thereafter, A failure in this behalf constitutes an omission sufficient to discredit the result of the election. The learned counsel next contended that in order to ensure a free, fair and impartial election, appropriate amendments had been made in the Electoral Roll, so as to add a Photograph of the voter as well as to provide space for his or her thumb impression. Vide Notification, dated 9-2-2012, such amendment had been effected prior to the election held on 11th of May, 2013. It was also contended that ECP had issued instructions for the identification of a voter with the help of his or her photograph on the Electoral Roll and for obtaining his or her thumb impression on the Voters List prior to the issuance of the ballot paper. The aforesaid exercise was the primary safeguard against bogus or double voting and in the absence of such Voters List or Voters List without the thumb impression of the voter to whom a ballot paper has been issued, would make the result of such Polling Station doubtful and impossible to verify in case of dispute.
15. The learned counsel vehemently disputed the contentions raised on behalf of the appellant that the Voters Lists were misplaced in the bags containing material of the election for the Provincial Assembly. He contended that respondent No,1 had made an application in this behalf which was allowed and the bags of the Provincial Assembly were examined but the missing Voters Lists were not found.
16. The learned counsel further added that if the votes obtained by both the candidates in the disputed seven Polling Stations were excluded then respondent No,1 would be the successful candidate, as respondent No,1 secured more votes than the appellant in the remaining Polling Stations. In the circumstances, the Tribunal in fact should have exercised its discretion in favor of respondent No,1 by declaring him a successful candidate instead of adopting a more cautious approach by directing a repoll in the said Polling Stations. It is next added that the Tribunal by virtue of section 67 of ROPA has the jurisdiction to declare the entire election as void and direct a repoll in the entire. Constituency. Therefore, it also has the jurisdiction to grant a lesser relief of directing a repoll in few disputed Polling Stations only, as has been done in the instant case. Such a course of action, it is contended, is not only permissible in law but also an efficient course of action, saving unnecessary public expense and also avoided inconvenience to the Electorate.
17. In support of his contentions, the learned counsel for respondent No,1, relied upon the judgments, reported in the cases of Jam Mashooq Ali v. Shahnawaz Junejo (1996 SCM R 426), Dr. Hamid Khan Achakzai v. Behram Khan Achakzai (2000 M LD 1832), Engineer Jameel Ahmad Malik v. Ghulam Sarwar Khan and 6 others (2004 CLC 914) and Syed Fakhar Imam v. Muhammad Raza Hayat Miraj and 5 others (2009 CLC 1).
18. Heard and the available record perused.
19. It would be appropriate to consider the preliminary legal objection raised on behalf of the appellant that the Election Petition filed by respondent No,1 merits summary dismissal for non- compliance of the requirements of section 55(1)(b) of the ROPA, in as much as the full particulars of the alleged illegalities and corrupt practices have not been set forth in the Election Petition. The aforesaid provision of law, reads as under:-- "55(1) Every election petition shall contain
(a) .
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act."
' The afore-quoted provision of law came up for consideration before this Court in the case, reported as Sardar Abdul Hafeez. Khan v. Sardar Muhammad Tahir Khan Lord and 13 others (1999 SCM R 284), wherein it was held as under:-- "While the rule as to specific pleadings is invokable in election petitions, such, as discernible form section 55 read with sections 78 and 83 of the Act, is necessarily confined to corrupt or illegal practices, attributable to the candidates or their representatives. It also goes only as far as matters of detail, which the candidate, in the ordinary course, knew or should reasonably have known. 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 all details of corrupt or illegal Practices coming to his knowledge, he should be free, within the parameters fixed by his own pleadings, to resort to the powers of Tribunal to come to his aid 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 unjustifiable by discouraged, by under strictness in applying the law of evidence from proving this 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. 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."
20. The objections raised by the appellant must also necessarily be examined in the context of the allegations of respondent No,1 which found favor with the Tribunal by way of the impugned judgment.
21. A perusal of section 55 of ROPA, as interpreted by this Court in the afore-quoted judgment, reveals that its provisions are primarily limited to illegal and corrupt practices attributable' to the candidates or their representatives. The failure of the Election Officers and Staff to conduct the elections in accordance with the applicable provisions is a separate matter and the requirements of section 55 of ROPA qua the particularity of the details thereof may not apply with the same force and rigor. Allegations in this behalf need only be detailed as far as is possible in the circumstances of each, case. In the instant case, by and large, the allegations of respondent No,1 which found favor with the Tribunal pertain to the non-compliance of the provisions of ROPA and the Rules framed there under by the election staff in the several Polling Stations.
22. With the assistance of the learned counsel for the parties, we have examined the Election Petition and discovered that in sub-para `m', it is alleged that in certain Polling Stations the Electoral List was lying unused while in other Polling Stations the Electoral Lists were missing, details whereof are annexed as Annexure "J". In sub-para 'o', it is also alleged that the Electoral Lists in some of the Polling Stations were missing, details whereof are annexed as Annexure "K". The said annexure Is a list of 13 Polling Stations. Likewise, in sub-para T, it is alleged that the envelope of the rejected votes of the Polling Stations detailed in annexure "I" were missing. The said annexure "I" contained a List of six Polling Stations, including Polling Station No,256. In sub-para 'k' allegations pertaining to Polling Station No,289, are detailed.
23. The aforesaid makes it clear and obvious, that a bare reading of the Election Petition along with the annexures mentioned therein reveals that the grievance of respondent No,1 with regards to failure of the election staff to comply with ROPA and the Rules which found favor with the Tribunal have been pleaded with sufficient particularity so as to constitute due compliance of the provisions of' section 55 of ROPA, therefore, the Election Petition could not be dismissed on this ground, as has been correctly held by the Tribunal by way of the impugned judgment while deciding Issue No, 1 .
24. That by way of the impugned judgment, repoll has been directed in seven Polling Stations, primarily on the ground that in five of such Polling Stations, the Voters Lists were not found in the bags containing the election material and in one of such Polling Station, 52 rejected votes were also missing and 908 votes were polled but counterfoils of only 103 votes were available. In another Polling Station, the Voters List had apparently not been used and the names of the voters to whom the ballot papers were issued were not struck off. In the same Polling Station, there was a discrepancy between the ballot papers issued and votes cast with 17 ballot papers unaccounted for. In yet another Polling Station, the thumb impressions of the voters had not been obtained on the Voters List. The afore-said findings of fact were proved in evidence primarily through the statement of the Returning Officer who appeared as P.W.1. The said findings of fact have not been disputed by the appellant by way of the instant Civil Appeal.
25. It is the case of the appellant that the afore-said acts and omissions of the election staff did not justify the repoll in the said Polling Station, especially as there is no finding of any corrupt practice having been committed by respondent No,.
1.
26. The significance of the availability of the Voters List/Copy of the Electoral Roll with the Presiding Officer and its proper Utilization by him cannot be overstated. The voting procedure to be employed is set out in section 33 of ROPA which clearly provides that a ballot paper should only be issued to an Elector after ascertaining that his name appears on the Voters List/Electoral Roll. His name and number as mentioned in the Voters List/Electoral Roll are to be called out [33(2)(b)]; and the entry relating to him in the Voters List/Electoral Roll is to be struck off signifying that a ballot paper has been issued to him [33(2)(c)]. An Elector is required to identify himself through his CNIC.
It may be pertinent to mention here that prior to the election in question held on 11th of May, 2Q13, vide Notification dated 9-2-2012, the Electoral Rolls Rules, were amended so as to include a photograph of the voter and a space was also provided for the thumb impression of such voter.
The scheme of the law appears to be that the primary and perhaps this most effective defense against bogus voting is to ensure that a ballot paper is only issued to a person whose name appears on the Voters List/Electoral Roll of the Polling Station in question, that too, after proper identification. To achieve the object of fair election the availability and proper utilization of the Voters List is therefore crucial. The ID failure of an effective filter for the issuance of ballot paper to a bona fide Elector would tantamount to leaving the barn door open and the Cow will run away. Any subsequent attempt to track down the proverbial Cow (the illegally issued ballot paper) is by no means easy if not impossible.
27. Yet another safeguard against the bogus voting is the counterfoils of the ballot papers. Any discrepancy in the number of votes cast and the counterfoils available would obviously make the result questionable. Similarly, rejected votes can become a bone of contention effecting the outcome of the election. It is no coincidence that Voters Lists, counterfoils of ballot papers and rejected votes are required to preserved along with other election material as mandated by section 38 of ROPA. The resolution of future dispute through verification appears E to have been catered for.
28. There can be no escape from the fact that in the instant case the requirement of the law has not been fulfilled. Section 70 of ROPA clearly provides that the Tribunal can declare an election to be void on account of failure of any person to comply with the provisions of ROPA or the Rules framed thereunder, if such failure materially affects the result. This Court in the case, reported as Jam Mashooq All v. Shahnawaz Junejo (1996 SCM R 426) set aside an election, inter alia, on the ground that up-to-date amended Voters List/Electoral Roll had not been made available to the Presiding Officer before the commencement of the voting process on the election day.
29. In Muhammad All v. Maulana Muhammad Zakria (PLD 1966 Journal 167), it has been held that if from the facts and circumstances of the case, it is not possible to assess as to what should have been the result of the election had the provisions of the law been correctly followed the result of the election stood materially affected.
' Lord Denning in the case, reported as Morgan and others v. Simpson and another [(1974) 3 All ER, 7221 observed, as follows:-- "If the election was so conducted that it was substantially in accordance with law, nevertheless, if there was breach of the rules or mistake in holding the polls, and it did affect the result, then the election is vitiated."
' Both the aforesaid observations have been noted with approval by this Court in the case of Jam Mashooq Ali (Supra).
30. The election in dispute in the instant case was very closely contested and after the second recount, only 1304 votes, separated the appellant and the respondent No,l. The lead obtained by the appellant in the seven Polling Stations where the requirements of law were not complied with, is more than the difference of 1304 votes, by which he had won. If the votes polled by both the appellant and respondent No,1 in the said Polling Stations are excluded from the total tally then it is respondent No,1 whose votes would exceed those cast in favor of the appellant. Thus, it is obvious that the non-compliance of the law in seven Polling Stations had materially affected the result of the entire election, as has been correctly held by the Tribunal by way of the impugned judgment.
31. Adverting to the alternative argument of the learned counsel for the appellant that the Tribunal on arriving at a conclusion that there had been a failure to comply with the provisions of ROPA and the Rules framed thereunder during the election process, the Tribunal in terms of sections 67 and 70 could only have declared the entire election process as void and directed a repoll for the entire Constituency rather than ordering a repoll in seven Polling Stations. We are afraid that in the facts and circumstances of the case, this contention cannot be accepted. Where the failure to comply with the mandatory requirements of the provision of ROPA with regards to the electoral process is limited to a few identifiable Polling Stations, it is the result of such Polling Stations which alone stands vitiated and the election conducted in the remaining Polling Stations, is not contaminated. If by isolating, the result of such Polling Stations in question does not materially effect the result of the election, as a whole, no order of invalidating the election-would be called for. However, if the votes cast at the isolated Polling Stations where the electoral process has been proved to be vitiated are excluded from the total tally and as a consequence thereof the originally losing candidate emerges as the victor, then, perhaps it may be appropriate for the Tribunal to declare such a candidate as the Returned Candidate for the Constituency. Such a course of action would be in line with the judgment of this Court, delivered in the case titled Ehsanullah Reki v. Lt. General (R)
Abdul Qadir Baloch and others (2010 SCM R 1271). Relevant portion of the same, reads as under:- "(32) We are mindful that the allegations leveled with regard to malpractices at some of the polling stations were such that it was difficult to identify the culprits and one obvious course to follow was to direct fresh polls of the entire constituency. However, we note that there were in all 220 polling stations and the dispute subject matter of this appeal is relatable to 11 polling stations only and with regard to four polling stations the appellant had alleged that in the recount carried out by P.W.1 on the direction of the Election Commission of Pakistan, the former had interpolated in the record, but this could not be proved. The objection of the appellant with regard to the report submitted by C.W.1, the Provincial Election Commissioner after the recount was duly addressed by this Court in remanding the case to the Tribunal. Parties were allowed to cross-examine him.
However, nothing adverse was brought in evidence which could discredit the testimony of C.W.1 and no mala fide was either alleged or could be inferred. We further note that notwithstanding the above even if all the rejected votes in all the eleven polling stations (although appellant had specific objection with regard to four only) are cast in favor of the appellant, the respondent still wins by a margin of 188 votes as is borne out from the break up given in Paras 25 and 26 above.
(33) In the afore-referred circumstances, we do not deem it proper to annul the entire election and instead concur with the finding of the Election Tribunal to declare the respondent as a Returned Candidate."
32. In the instant case, if the results of seven Polling Stations were to be excluded from the final tally; it is a mathematical certainty that respondent No,1 secured more votes than the appellant in remaining 430 Polling Stations. However, the Tribunal instead of declaring respondent No,1, as a Returned Candidate, directed a repoll in the said Polling Stations. We have noticed that respondent No,1 has not challenged the impugned judgment. Be that as it may, pursuant to the impugned judgment, a repoll was carried out in seven Polling Stations and we are informed by the learned counsel for respondent No,1 that as a consequence of such a repoll, now respondent No,1 has secured more votes than the appellant and is entitled to be declared, as a Returned Candidate, from the Constituency NA-19. In this view of the matter, we are not persuaded to interfere with the impugned judgment, as not only the purpose of the law stands achieved but also the will of Electors of the Constituency has found its true expression.
33. The afore-said are the reasons of our short Order of even date, which reads as follows:-- "For reasons to be recorded later in the detailed judgment, this appeal is dismissed and the judgment of the learned Tribunal is upheld."