MUHAMMAD EJAZ SWATI, J.--The petitioner through the instant petition has sought the following relief: "It is therefore respectfully prayed that it may be declared: a) that the order dated 05.06.2014 passed by the Tribunal is illegal, void, in excess of authority and of no legal effect; b) pending disposal of the petition, the operation of impugned order dated 05.06.2014 may be suspended; c) the notification dated 20th October, 2014 issued by the Election Commission of Pakistan is patently illegal and of no legal effect, and d) any other order as may be deemed fit and appropriate in the circumstances of the case may also be passed, in the interest of justice."
2. The facts of the case arising out of the instant petition are that the petitioner along with the private respondents contested the Local Bodies' Election 2013, to the Metropolitan Corporation (Quetta City), from ward No,12, Ghilzai. Upon counting of the votes, the petitioner secured 713 votes, and the respondent No,1, the nearest rival got 696 votes. The Election Commission of Pakistan, through Gazette notification dated 26th December 2013, notified the petitioner as returned candidate. The respondent No,1 by way of filing Election Petition, before the Election Tribunal, Quetta (hereinafter referred as to "the Election Tribunal") against the petitioner, challenged the candidature of the petitioner. The petitioner contested the Election Petition by filing written statement. The respondent No,1 in the Election Petition at paragraph No,6 has pleaded that he was informed by the Presiding Officer of the Polling Station No,34. Government Primary School Nichari (Female) Portion-II, that he had got 6 to 8 more votes, as compared to the petitioner. The Election Tribunal without framing issue and recording any evidence on 22nd May 2014, ordered for recounting of the votes of the Polling Station, mentioned therein, on the following grounds: "Since there was close competition between the petitioner and the respondent No,1 with margin of 17 votes as the respondent No,1 had won the election by 17 votes. The petitioner had approached the Returning Officer for redressal of his grievances, but in vain. Therefore, the contention of petitioner and his counsel for recounting of votes has force."
On 27th May 2014, during recounting of the votes of disputed Polling Station, the Election Tribunal, straightaway rejected 32 votes of the petitioner. After excluding the 32 votes of the petitioner and 04 votes of the respondent No,1, the Election Tribunal, vide order dated 5th June 2014 (hereinafter referred as to "the impugned order") declared that respondent No,1 has successfully obtained 692 votes and petitioner votes were calculated as 681.
3. After filing the instant Constitutional Petition by the petitioner, against the impugned order, the respondent No,7 vide notification dated 20th October, 2014 (hereinafter referred as to "the impugned notification") has notified the respondent No,1 Hayatullah Khan as returned candidate, where after, vide order dated 13th November 2014, amended title of the petition was filed, whereby, the respondent No,7 was arrayed as a party and the impugned notification was also assailed.
4. The learned counsel for the petitioner strenuously urged that the Election Tribunal has committed a serious error of law by directing for recounting of the ballot papers, merely, on the premise that there was narrow difference of votes between the winning and losing candidates, which does not constitute valid reasons to order for recounting of the votes; that the recounting cannot be done on the basis of general and bald allegations and the election petition must contain specific detail regarding illegality, irregularity, alleged to have been committed, either in respect of challenge, excess or invalid votes and in this respect no averment was made in the election petition, therefore, the respondent was not entitled for the relief beyond the pleadings; that at the close of poll and prior to consolidation of result, where, none of the contesting candidate raised any objection, therefore, in absence of any material on record, the impugned recounting was contrary to law; that the Election Tribunal rejected 32 votes of the petitioner in violation of Rule 40 of the Balochistan Local Government Election Rules. 2013 (hereinafter referred as to "the Election Rules"); that there was no allegation of violation of any clause of the Election Rules, either during the poll, or at close of the poll, or prior to consolidation of the result, before the Returning Officer; that admittedly, prior to recounting of the votes conducted by the Election Tribunal. The envelope of ballot paper of the petitioner was not sealed within the meaning of Rule 45 of the Election Rules.
But despite of these discrepancies, the Election Tribunal in violation of Rule 47 of the Election Rules, has completed the process, which caused grave prejudice to the petitioner; that 32 votes of the petitioner were excluded, but no reference of violation of relevant provision of law has been made thereof even .Otherwise, deficiencies erupted in this respect, was on the part of the polling staff, for which the petitioner could not have been burdened; that the impugned order is patently illegal, unlawful and also infringed 'the vested right of the petitioner and is liable to be declared as such.
The learned counsel for the petitioner placed reliance on the case reported in 1995 CLC 1426.
5. The learned counsel for the respondent No,1 while defending the impugned order and notification contended that the interim order of recounting was not challenged by the petitioner before the competent Court of law and the present Writ Petition in this respect is not maintainable; that the respondent No,1 in the election petition, specifically averred illegality and irregularity in respect of count of the votes, pertaining to the Polling Station No,34, Government Primary School Nichari (Female) Portion-H; that the Election Tribunal in view of Rule 47 of the Election Rules, is competent to make an order of recounting; that the recounting of votes was carried out in presence of the parties, which was neither objected, nor any objection of tampering with the ballot papers was raised; that the Election Tribunal, after rejection of 32 votes of the petitioner had rightly accepted the election petition, as there was no need for further proceedings. He placed reliance on 2005 SCM R 1699.
6. The learned State counsel appearing for the respondent No,7, contended that the respondent No,7, issued notification of the respondent No,1 pursuant to the impugned order in accordance with law.
7. We have heard the learned counsel for the parties and have gone through the record of the case. Before dilating upon the merits of the case, it would be appropriate to focus the relevant provisions of law regarding challenging of votes and recounting of the votes, during the process of election and after close of election. Rule 36 of the Election Rules, provides the procedure for challenging of the voters, during poll. The relevant is reproduced herein below: "36. Challenge of Voters.-(1) If, at the time a person applies for a ballot paper for the purpose of voting, a candidate, his election agent or his polling agent declares to the Presiding Officer that he has reasonable cause to believe that such person has already voted at the election, at the same or another polling station, or is not the person against whose name entered in the electoral roll, he is seeking to vote, and undertakes to prove the charge in a court of law and deposits with the Presiding Officer in cash a sum of twenty rupees for each such challenge, the Presiding Officer may, after warning the person of the consequences and obtaining his thumb impression and, if he is literate, also his signature, on the counterfoil, issue a ballot paper to that person.
(2) If the Presiding Officer issues a ballot paper under sub-rule (1) to such person he shall enter the name and address of that person in a list to be prepared by him in Form XIV (hereinafter referred to as the "challenged votes list'), and obtain thereon the thumb impression and if he is literate, also the signature of that person.
(3) A ballot paper issued under sub-rule (1) shall, after it has been marked and folded by the elector. He placed in the same condition in a separate packet bearing the label "challenged ballot paper" instead of being placed in the ballot box.
(4) The Presiding Officer shall soon after the close of poll, hand over against receipt in Form XV such sum as has been deposited with him under sub-rule (1) to the Returning Officer who shall after making necessary entries in the deposit register in Form VII deposit the amount in favour of the Election Commission in the Head of account as may be communicated to him."
8. After close of the poll, Rule 40 of the Election Rules, prescribed procedure for count of the votes in presence of contesting candidates, his election agent, or polling agent. ' The relevant sub-rule (4) of Rule 40 of the Election Rules, is reproduced herein below: "(4) The Presiding Officer shall open the used ballot box or ballot boxes and count the entire lot of ballot papers taken out therefrom: b) open the packet labeled "challenged ballot paper" and include the ballot papers therein in the count: c) count the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear
(i) no official mark;
(ii) any writing or any mark other than the official mark and the mark of "marking aid rubber stamp" or to which a piece of paper or any other object of any kind has been attached:
(iii) no mark of "marking aid rubber stamp" indicating the contesting candidate for whom the elector has voted; or
(iv) any mark from which it is not clear for whom the elector has voted: Provided that a ballot paper shall be deemed to have been marked in favour of a candidate if the whole or more than half of the area of the mark of "marking aid rubber stamp" appears clearly within the space containing the symbol of that candidate; and
(v) where the mark of "marking aid rubber stamp" is divided equally between two such spaces, the ballot paper shall be deemed to be invalid."
9. After completion of the count of the votes, the sub-Rule (5) of Rule 40 of the Election Rules, provides a second opportunity to the contesting candidate, or his election agent to make reasonable request to the Presiding Officer, for recounting of the votes. In the third place, if the contesting candidate or his election agent raises any objection of the recounting of the votes by the Presiding Officer, they may challenge the same in writing before the Returning Officer, as provided under sub-Rule (10) of Rule 40(1). Rule 45 of the Election Rules, further states about statutory checks and effective safeguards. The relevant is reproduced herein below:.
"45. Documents to be sent and to be retained by the Officer authorized by the Election Commission.-(1) The Returning Officer shall under intimation to the Provincial . Election Commissioner forward to the officer authorized by the Election Commission.
(a) Packets containing the ballot papers each of which shall be sealed with the seal of the Presiding Officer, or if opened by the Returning Officer, with the seal of the Returning Officer.
(4) The documents received under sub-rule (1) and retained under sub-rule (3) shall be kept in the safe custody in a treasury or such place as is directed by the Election Commission."
10. The Election Tribunal under Rule 47 of the Election Rules, may order the opening of packet of the counterfoils and certificates or the inspection of any accounted ballot papers. Provided that in making and carrying into effect an order for the inspection of counted ballot papers. Care shall be taken for no vote shall be disclosed until it has been held by the Tribunal to be invalid. In the instant case, the petitioner had secured 264 votes in Polling Station No,34, Government Primary School Nichari (Female) Portion-II. The impugned order reveals that the envelope of the accounted ballot paper of the petitioner, when held by the Election Tribunal, it was not sealed, as provided under Rule 45 of the Election Rules. The Election Tribunal, while counting the votes of the accounted ballot papers of the petitioner, excluded/rejected 32 votes. The relevant para of the order is reproduced herein below: "Similarly, the envelope of the votes of respondent No,1 Rajab Ali was opened. The envelope was not properly sealed rather it was closed with gum. The envelope was bearing the signature of concerned Presiding Officer and two Election/Polling Agents of the candidates. The number of votes of respondent No, 1 Rajab Ali on the envelope were written as 264. Recounting of votes contained in the envelope of respondent No,1 Rajab Ali was made. Detail whereof is as under:- RESPONDENT NO.1'S ENVELOPE Total number of votes fond in the envelopeTotal Valid votesNumber of Votes having stamp on election symbol of more than one candidateNumber of votes without official stamp and signature of Assistant Presiding OfficerNumber of votes without signature of Assistant Presiding OfficerTotal rejected/ excluded votes after recounting 264 234 28 04 02 32 After recounting, 232 votes of the respondent No,1 Rajab Ali were found valid, while on 28 votes stamp was affixed on the election symbol of more than one candidate. On 04 votes, the official stamp and signatures of Assistant Presiding Officer were not found and on 02 votes, the signatures of Assistant Presiding Officer were not available, but the said 02 votes were included in count in favour of the respondent No,1. I am fortified by unreported judgment dated 27th May 2014, passed by the Hon'ble High Court of Balochistan, Quetta in C.P. No, 282/2014, titled as Abdul Manan v. Muhammad Ayub and others. Therefore, total 32 votes of the respondent No,1 Rajab Ali were rejected and excluded from count."
The preceding paragraph of the impugned order manifest that the envelope of the petitioner accounted ballot paper was not sealed in view of Rule 45 of the Election Rules. In these circumstances, it was essential for the Election Tribunal to fix the responsibility of the above material discrepancy. In absence of fixing of responsibility there appeared a reasonable presumption of manipulation, which should have been exercised against the respondent No,1, because, there was no material on record on the basis whereof Election Tribunal could have arrived at a positive findings that a case to exclude 32 votes of the petitioner had been made out.
Admittedly, throughout the election process, the respondent No,1 had neither raised any objection at the close of the polling, nor objected the process of voting prior to consolidation of result, therefore, in view of the facts that the envelope of petitioner's accounted ballot paper when held was already unsealed by the Election Tribunal, the sanctity of Rule 45 of the Election Rules, was not attached to it and presumption of any benefit in these circumstances within the purview of Rule 47 of the Election Rules, should have been extended to the petitioner. Even otherwise, the Election Tribunal, has not considered this aspect of the matter in the light of the relevant provision of law and no reference of sub-Rule (4)(c) of Rule 40 of the Election Rules has been adhered and in contrary to the said provision, 32 votes of the petitioner were excluded. If there was any mistake or error committed by any officer, in making or stamping of ballot paper that could not be used against the petitioner. The mistake or error in the official act during the performance of statutory duty could not be used to prejudice to any other party, as the same being not the act of the candidate and he should not be disfranchised. Reference in this respect is to be made to the case reported in 1985 SCM R 365,
11. In the case in hand, it appears that the respondent No,1 had neither challenged the votes of the petitioner as per Rule 36 of the Election Rules, nor objected the count at the close of poll, as required under sub-Rule 4(c) of Rule 40 of the Election Rules, or challenged the count in writing before the Returning Officer, prior to .Consolidation of the result, as provided under sub-Rule 10 of the Rule 41 of the Election Rules, nor pleaded violation of any of the aforesaid Rules.
' It appears that there was no averment in the Election Petition, regarding violation of any of the aforesaid Rules, but the Election Tribunal held that since there was close competition between the petitioner and the respondent No,1, with margin of 17 votes and it was a fit case for recounting of votes. The Election Tribunal was not justified in directing recounting of the votes merely on the premise of close competition. It is pertinent to mention here that the Election Tribunal can permit scrutiny of ballot paper and order recounting, on two basic requirements viz. i. The Election Petition seeking recounting of the ballot paper must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and; ii. On the basis of evidence relied or adduced in support of the allegation, the Tribunal must be prima facie satisfied with all the facts placed prove, the cause of action and making of such an order is imperatively necessary. In the case of Suresh Prasad Yadav v. Jai Parkash Mishra AIR 1975 SC 376.
Principles regarding granting prayer for inspection and recounting of ballot paper has been summarized and has observed as under: "....This Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made as a matter of the course. The reason is two-fold. Firstly such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. Secondly, the Rules provide an elaborate procedure .For counting of ballot papers. This procedure contains so many statutory checks and effective safeguards against mistakes and fraud in counting, that it can be called almost trickery foolproof.
' Although no hard and fast rule can be laid down, yet the broad guidelines, as discernible from the decision of this Court, may be indicated thus: ' The Court would be justified in ordering a recount of the ballot papers only where:
(1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded,.
(2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and,
(3) the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties."
12. In Vadivelu's case, AIR 2000 SCW 3664 (Para 16), a case pertaining to an election result was challenged on the ground of various illegalities in voting and counting. The difference of votes secured by the winning candidate and its nearest rival was only one vote. The election petition by the losing candidate was allowed by the Election Tribunal and a recounting was ordered. As a result, the election petitioner got 1002 votes and the elected candidate got only 975 votes. Revision Petition filed against the order of the Tribunal was allowed by the High Court and it was held that, "a recount ought not to have been ordered, because the election petition did not contain material facts and did not make out a prima facie case for recounting". Affirming the decision of the High Court, it was observed as under: ....Recounting of votes could be ordered very rarely and on specific allegation in the pleading in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting."
13. In the case in hand, we are constrained to hold that the Election Tribunal lost site of the parameter to be applied while considering the election petitioner, seeking recount of votes. It is manifest from the extracted para No,6 of the Election Petition contain the ground of challenge, there is no allegation of violation of any Rule of the Election.
Rules and the allegations raised in the petition for the recount of the votes were not only vague, but prima facie satisfaction that recounting of ballot was necessary, were also missing in the petition and only ground taken by the petitioner was that, he was told by the Presiding Officer of the Polling Station No,34, Government Primary School Nichari (Female) Portion-II, that he had got 6 or 7 more votes than the respondent No,1, which clearly shows that the respondent No,1 had failed to state any material facts regarding the failure of the election officers, or Returning Officer to reject or accept invalid votes and the consideration of the Election' Tribunal that since there is narrow margin of votes between the returned candidate and the respondent No,1, does not per se give rise to a presumption that there had been any illegality 'or irregularity in the counting of the votes.
Having held so, in our view, the election petition should have been dismissed on this short ground alone.
14. The other aspect of the case that upon consideration of the envelope of the petitioner accounted ballot paper, the Election Tribunal itself observed that the envelope was not sealed.
Thus, sanctity of Rule 47 of the Election Rules, was not attached to such recounting by the Election Tribunal, therefore, in the aforesaid circumstances, the exclusion of 32 votes of the petitioner by the Election Tribunal was unwarranted illegally and in utter violation of sub-Rule 4(c) of Rule 40, Rules 45, 47 and 72 of the Election Rules, therefore, the impugned order cannot be sustained.
In view of the above, the Writ Petition No,419 of 2014 is allowed. The impugned order dated 5th June 2014, passed by the Election Tribunal, Quetta, and pursuance to that notification dated 20th October, 2014, issued by the Election Commission of Pakistan, are hereby declared illegal, having no legal effect resultantly, the notification dated 26th December, 2013, notifying the petitioner as a returned candidate stands restored. Parties are left to bear their own cost.