This petition is directed against the judgment dated 6th November, 1980 passed in Election Petition No. 492/79 whereby the learned Election Tribunal District Judge, Sukkur, declared the election of the petitioner illegal and the respondent No. 1 was declared elected from Unit No. 7 Town Committee, Ghotki in place of the petitioner as returned. Candidate.
The brief facts of the case are that the petitioner, the respondents No. 1 and 2 were the candidates in the election held in Unit No. 7 Town Committee, Ghotki, District Sukkur. The election was held on 25 September, 1979, wherein the parties were found to have secured the votes as follows :------- --
(1) Petitioner (Muhammad Hafeez) 175 votes.
(2) Respondent No. 1 (Mohd. Umer) 158 votes.
(3) Respondent No. 2 153 votes.
(Haji Abdul Rasheed)
Accordingly the petitioner was declared successful candidate in the aforesaid election.
It may be mentioned that the election was held by secret ballot under Sind Local Council Election Rules, 1979 in the presence and under the arrangement supervision of the Presiding Officer who was provided necessary Ballot Boxes and was to ensure and make necessary arrangements at the polling station so that every elector be able to cast his vote in the manner provided under the Rules. According to the petitioner the ballot papers not bearing any marks except the official marks stamped on their back, were issued to the voters who put the same in ballot boxes after marking them by cross/ticks on the day when the election was held.th
2. After the polling, the ballot boxes were opened and valid votes were counted as required by the Rules. According to the petitioner no ballot-paper bearing any mark other than official mark, was found, and thus none was excluded for that reason. The valid ballot-papers cast in favour of each contesting candidate, were put in separate packets which were sealed and put in principal packet which was also sealed by the Presiding Officer. The Presiding Officer complying with the requirements of Rule 40 caused the packet sent to the Returning Officer.
3. The Returning Officer consolidated the result in the prescribed form after giving required notice to the contesting candidates their election agents of the day, time and place for the said purpose.
Before consolidating the results of the count the Returning Officer examined the ballot-papers as required by the Rules under which he was to exclude from the statement the ballot papers which were found in contravention of sub-rule (4) of Rule 40 (under which ballot-papers having any mark or writing other than official mark were to be excluded). The Returning Officer having thus obtained the result of the count, declared by public notice, the name of the petitioner who had received the highest number of votes received by the other contesting candidates were also notified. Result was submitted to the Deputy Commis--sioner in the required Form together with consolidated form and thereafter the Election Authority notified the name of the petitioner as the returned candidate of the council in the official Gazette.
4. The respondent No. I filed Election Petition No.- 492/79 challenging the election of the present petitioner before the Election Authority which after admission was referred to the learned District Judge Election Tribunal, Sukkur for disposal.
5. Before the learned Election Tribunal number of issues were framed. The result of the petition however turned on decision on Issues Nos. 2, 4 and 9 which read as follows :-----
(2) Whether the Returning Officer had committed any illegalities if so, what was their nature and with what effect ?
(4) Whether the result of election in any way has been affected ?
(9) What should the order be.?
The petitioner examined himself and also examined 9 other witnesses in support of his defence plea that the ballot-papers issued were stamped with official marks and bore no other marks or writings that no identifying marks were put by the Polling Personale including serial numbers of any voters when the same were issued and put in the ballot boxes according to the procedure prescribed under the Rules and that the Presi -,.Ng Officer and the Returning Officer had duly verified, checked and scrutinized the same at the time of counting and consolidation of the results.
7. Before the learned Election Tribunal an application was also made by the petitioner on 11th May, 1980 supported by an affidavit wherein prayer was made that Mr. Faiz Muhammad Memon, the Civil Judge, who had acted as the Returning Officer, and Mr. Allah Bachayyo Kalwar, lecturer in Government College of Education. Sukkur who was the Presiding Officer at the aforementioned elections, be summoned before opening, removing seals and examination of ballot papers to ensure that they were the same, that the seals were intact and that no tampering had been done.
The applica--tion, however, was rejected by the order passed on 11th May, 1980 by the learned Election Tribunal on the ground that bags would be produced by responsible officer and would be opened in the presence of the parties and their Advocates and that it could be seen whether the same were sealed or not.
Thus without summoning the Presiding Officer and the Returning Officer, after the election material had been sent for the learned Election Tribunal who passed the impugned order placed reliance on the notes dated 21-5-1980 and 31-5-1980 of his predecessor in office which showed that the seals on the bag were not intact and that there was an opening which was sufficient through which an envelope could be put in the bag.. The envelopes containing the votes cast in favour of the three candidates wer; found therein. The packets of all the contesting candidates containing ballot papers were opened and after excluding certain ballot-papers in the manner stated below the following figures were arrived at by the learned Election Tribunal showing the votes secured by each candidate
(1) In packet of Muhammad Umar (Respondent No. 1) 158 ballot papers were found. Out of them three ballot-papers bearing serial numbers of electoral roll were excluded with the result that the votes in his favour were treated as 155 instead of 158.
(2) From the bag of petitioner (Muhammad Hafeez) the learned Election Tribunal found 174 ballot papers out of them 24 ballot-papers bearing number of electoral list, were found. After rejecting these 24 votes the number of votes received by the petitioner were held to be 150 valid votes instead of 114 votes.
(3) From the bag of respondent No. 2 (Haji Abdul Rasheed) 153 ballot papers were found, out of them 5 ballot-papers were found to bear numbers of electoral roll. These 5 votes were excluded by the learned Election Tribunal.
8. On thus counting the votes and by excluding the votes in the manner mentioned above, the learned Election Tribunal on the ground that under Rule 40 (2) (i.e) (c) of the Election Rules, ballot papers having writing marks of identification of voters were liable to be excluded, came to the conclusion that valid votes obtained by parties were as follows Respondent No. 1 (Muhammad Umor) .155 Petitioner (Muhammad Hafeez) .150 Respondent No. 2 (Haji Abdul Rasheed) .148 Having given the aforestated finding, the learned Election Tribunal held that the petitioner was wrongly declared elected.
Proceeding further, the learned Tribunal declared the respondent No. 1 (Muhammad Umar) as elected and returned candidate from the above-men--tioned Unit No. 7 in place of petitioner Muhammad Hafeez.
9. The petitioner has now challenged the findings of the learned Election Tribunal by filing this petition invoking the constitutional jurisdiction of this Court.
10. The learned counsel for the petitioner at the very outset made grievance that the learned Election Tribunal excluded a number of votes out of the votes validly cast in favour of the petitioner on the sole ground that those ballot papers had some writings or marks of identification of the voters. The learned counsel submitted that there is no finding whatsoever that at the time when votes were cast, any of the ballot-papers rejected by the tribunal had any mark on the same except official stamp mark on its back.
The learned counsel also made grievance that the learned Election Tribunal has merely enumerated the names of the witnesses who were ex--amined by the petitioner but the evidence given by them has been totally omitted from consideration and that there is not even a reference to the petitioner's evidence much less any discussion. We may refer here to the affidavit of the petitioner himself and reproduce herein below paras Nos. 4 to 7 wherein it is stated on oath that ballot-papers when issued were in accordance with the rules and that there were no writings or identifying marks/numbers on any of the ballot papers either at the time the same were cast of even at the time of counting when each and every ballot papers was checked and scrutinized by the Presiding Officer in the presence of number of persons including the contesting candidates/their agents. The relevant paragraphs referred to above are reproduced hereinbelow :- "4. That the ballot papers were issued as per election rules and instruc--tions and there was no identifying mark put by the polling personale including the serial number of any voter which was never marked on any ballot-paper while it was issued to every voter. I myself or my polling agent namely Rao Asghar Ali Khan, Advocate and the voter himself verified the same, before it was handed- over to every voter.
5. That at the time of counting each and every ballot paper was verified, checked and scrutinized by the Presiding Officer in the presence of myself, petitioner, respondent No. 2, Mr. Teoram Advocate a candidate for minority seat of Unit No. 13 of Town Committee, Ghotki were same, besides the above Mr. Jiwat Ram, Mr. Arjandas the candidate for minority seat and the polling officers and the polling agents of all the contesting candidates of Unit No. 7 and Unit No. 13 of Town Committee, Ghotki were also present. The ballot which was without any identifying mark or, Electoral roll number or any other marks was treated as valid, and the ballot which contained any identifying mark was treated as invalid.
6. That after the counting the ballots were sealed as required under the rules by the election personale and I was declared successful candidate in the Unit No, 7 0l Town Committee, Ghotki, I secured 175 votes including one challenge vote which was decided in my favour by the Returning Officer, the petitioner secured 158 votes, whereas the respondent No. 2 got i53 votes, all the packets prepared were kept in one cloth bag which was also sealed as required by the Rules by the election personable and there was no opening in the cloth bag.
7. That the petitioner and the respondent No. 2 were satisfied with the result, proper counting and scrutiny etc. And therefore no application whatsoever was moved before the Returning Officer of the Presiding Officer for re-counting etc., by the petitioner and the respondent No. 2, and the result was therefore consolidated by the Returning Officer and I was declared successful."
11. In the affidavit sworn by the petitioner it was further expressly stated that the records and ballot- papers of the election had been deposited with the Mukhtiarkar Ghotki instead of leaving the same in the custody of the Deputy Commissioner as required by law. The petitioner further deposed that the inspection of the record clearly indicated that the record and ballot papers of the election to Unit No. 7 had been tampered with fraud and forgery by and at the instance of the respondent No. 1, after the counting by the election personable in the presence of all the contesting candidates of Unit Nos. 7 and 13 of Town Committee Ghotki and their polling agents.
The above statement of the petitioner was supported by witnesses produced by him. All the witnesses made statement that at the aforemen--tioned election the ballot-papers issued contained only the seals of the Election Authority and initial of relevant Officer in the seals on the back of the ballot papers and there were neither any electoral number or mark on any of them nor any of the voters had put any number or writing thereon before the same were put in the ballot- boxes and that the markings allegedly found were subsequently put by tamparing with the ballot- papers.
12. In view of the above serious allegations of forgery and fraud expressly made by the petitioner and his witnesses it was necessary for the learned Election Tribunal to have considered favourably the application of the petitioner which he had moved to summon the Presiding Officer and the Returning Officer to find out if ballot papers were the same, intact and had not been tampered with subsequently. It needs no emphasis that results at the elections are not to be interfered with merely on the basis of bare allegations of interested witnesses or mere assumptions. The proceedings before the Election Tribunal are of judicial nature and before reaching the conclusion, it was incumbent upon the learned Election Tribunal to have strictly scrutnised the evidence led by the parties in accordance with the established principles governing the trial of election petition.
Reference may here be made to the case of Shafique Ahmad v. M. S. Mian, Additional Deputy Commissioner and Election Tribunal, Chittagong (PLD 1908 Dacca 332) where the learned Judges of the High Court of Dacca held as follows :---------- It is now well established that the proceeding before the Election Tribunal constituted under the Election College Act is a judicial proceeding. The Tribunal is therefore required to conform to the fundamental procedures applicable to a judicial proceeding, that is, the procedure of basing its finding on legal evidence. In the present case, as indicated above, save and except the evidence of respondent No. 2, there is nothing on record to support the allegations raised therein and it is risky to act on the solitary statement of an interested man. The Presiding Officer and the Returning Officer who are material witnesses in the case have not been examined. Curiously enough the report of the Presiding Officer has been marked as Exh. 4 by the Tribunal without formal proof and it has been wrongly admitted into evidence. The tribunal which is bound to follow the principles of law of evidence and procedure applicable to a judicial proceeding has thus acted quite arbitrarily against the ordinary norms of law. In the circumstances on merits also we find no substance to uphold the order of the Election Tribunal."
13. In the light of the principles laid down above, with which we are in respectful agreement, we find that the learned Election Tribunal ought to have considered favourably and allowed the application filed by the petitioner to summon the Presiding Officer and Returning Officer in order to resolve the controversy involved in the case as to whether the ballot papers having any marks or writings other than the official marks had been tampered with after the polls and subsequent to the declaration of the result by the Election Authorities.
The examination of the independent and disinterested witnesses, namely the Presiding Officer, a lecturer in the Government College, and the Returning Officer, who is a Civil Judge, should not have been underestimated and the refusal to summon these witnesses in spite of application in the circumstances of the case, in our opinion was arbitrary and cannot be termed as judicial exercise of discretion.
13. Reference may also be made here to the case of Niaz Ahmad v. Azizullah (PLD 1967 SC 446) where the Hon'ble Supreme Court of Pakistan made the following observation :- "Would the further act to the Presiding Officer in endorsing a writing on the vote by which the voters could be identified, amount to something which destroys the value of the vote qua the voter, in the absence of any provision in the Act entitling such a consequence? The answer ought to be in the negative. The most important ground far taking that view is the absence of a provision in the Act, imposing such a penalty. Another reason would be that if contrary view is to prevail, of the candidate for whom he whished to voter whereas fault f delinquents officer is not amenable to his control. Such a result has to be avoided unless the Act itself leaves no room for escape."
14. We may also refer with advantage to the case of Muhammad Saeed v. Election Tribunal (PLD 1957 SC (Pak.) 91) where the hon'ble Supreme Court observed that :-- "Although the jurisdiction conferred upon the Tribunal is special, by reason of its being confined to Election matters, nevertheless it is a judicial jurisdiction, and the Tribunal were not at liberty when con--fronted with conflict of evidence upon the same question of fact, to resolve it according to their caprice or desire. The Tribunal appears to have acted on the assumption that the duty as to proof which lay upon the petitioner in the case with regard to the serious corrupt practices alleged by him, would have been sufficiently met by evidence raising a probability perhaps reasonable probability of the truth of that which was alleged. In so holding, the Tribunal have declined to follow the principle consistently adopted by similar Election Tribunals in the past and has laid down for itself a principle which, it must be stated with regret is clearly calculated to deflect the course of justice."
Keeping in view the above authoritative principle in view laid down by the Honourable Supreme Court of Pakistan we are constrained to observe that the learned Election Tribunal has not decided the question which goes to the root of the disputes involved in the case as to whether the marks and writing etc. Other than official marks appearing on the ballot papers, were put prior to the votes were cast or after the counting had been completed and result had been announced, by some parsons other than the petitioner (Muhammad Hafeez) and voters election 'authorities in order to destroy the result -of the election wherein the petitioner bad been declared to be elected having secured highest number of valid votes: It is significant to note here that neither before the Presiding Officer nor, at any time, before the Returning Officer, the respondent No. 1 ever made any complaint whatsoever that any of the ballot papers counted had any marks other than the official marks on the ballot-papers.
There is great force in the submission of the learned counsel that the petitioner could not have been penalised for any illegal acts, fraud and forgery for which he or voters were not responsible and which according to him happened after the petitioner had been declared elected. The learned Tribunal has failed to appreciate that before the election of the petitioner could be avoided, it was absolutely necessary for the learned Election Tribunal to have come to a definite conclusion that the marks or writings other then official marks on the ballot-papers had been put by some one before the votes were cast and that it was not an act of mischief or forgery done after the result had been declared, as alleged by the petitioner. In this connection reference may be made to the case of Abdul Sattar v. S. M. Zaidi (PLD 1968 SC 331) where it was observed :----------- " . ....If the election is set aside without a clear finding based on findings that the result of the election was materially affected it would amount to disenfranchising the genuine voters who had apparently favoured the appellant as compared with the respondent."
15. In the present case the learned Tribunal, also failed to appreciate that charges of corrupt practice in election Petition must be treated for purposes of evidence on the principle applicable to the trial of criminals charges and that in case of doubt raised upon the evidence, the benefit of reasonable doubt must go to the returned candidate Muhammad Screed v. Election Tribunal.
16. The respondents Nos. 1 and 2 have remained absent. Mr. Sarfraz Ahmed, Astt. Advocate General, it may be noted, opposed the petition.
17. On consideration of material on record for the reasons stated above we are of the confirmed opinion that the decision of the learned Election Tribunal suffers from error apparent on the face of the record and is without any lawful authority. We accordingly quash the decision given on 6 November, 1980 in Election Petition No. 492;1979 Muhammad Umar v. Muhammad Hafeez and another and consequently the order declaring that the election of the petitioner (Muhammad Hafeez) was illegal and further declaring the Respondent. No, 1 as the elected returned candidate, is also set aside.
We further directed that the case shall be remanded to the respondent No. 3 who should allow the petitioner Muhammad Hafeez an opportunity to examine the Presiding Officer and the Returning Officer as his witnesses and thereafter dispose of the case according to law.
18. This petition was disposed of by a short order passed on 16-11-1981. The above are the reasons for the same.
19. In the circumstances of the case, there shall be no orders as to costs.