SAAD SAOOD JAN, J.--This is an appeal from the judgment, dated 29-6-1985 of the Punjab Election Tribunal whereby the election petition of the appellant was dismissed.
2. In the last General Elections held in February 1985 the appellant and respondents Nos. 1 to 16 were candidates to a seat in the Provincial Assembly from Constituency No. PP-69-Faisalabad-III. The polling took place on 28-2-1985. At the end of the polling the appellant and respondent No.1 emerged as the major contestants. According to the preliminary count conducted by the Presiding Officers of the Polling Stations the appellant received 7,022 votes whereas respondent No. 1 obtained 6,6`3 votes. The Returning Officer who was also the Additional Deputy Commissioner (General) at Faisalabad fixed 2-3-1985 as the day for the consolidation of the final result. On the appointed day all the candidates attended his office. Before the consolidation started the candidates agreed to accept the statements of count prepared by the Presiding Officers. The Returning Officer opened the postal ballot-papers and credited them to the account of the relevant candidates. He found that 300 ballot-papers which had been cast in favour of appellant had not been added to his tally. He corrected this error. He examined 1,559 ballot-papers which had been rejected as invalid by the various Presiding Officers. Out of these 920 ballot-papers had been excluded from the count for the reason that instead of affixing the stamp in the rectangles containing the names and symbols of the candidates the voters had put the stamp in the column immediately opposite the rectangle of the candidate of their choice. In accordance with the instructions which he had earlier received from the Election Commissioner, he declared these ballot-papers to have been validly cast and credited them to the account of the relevant candidates. He postponed his decision in respect of 53 other ballot-papers. These suffered from the defect that instead of putting the stamp once the voters had affixed it twice against the names of the candidates of their preference. Out of the 920 ballot-papers which he had declared valid, 640 had been cast in favour of respondent No. 1 consequently he credited them to his account. He also corrected the discrepancies, which he had discovered in the statements of count prepared by some Presiding Officer. As a result of this exercise the difference between the votes cast in favour of the appellant and respondent No.1 narrowed down to less then 40. In view of this position respondent No.1 moved an application before the Returning Officer that the ballot-papers cast at all the polling stations be recounted. This prayer was opposed by the appellant and a few other candidates. The Returning Officer postponed his decision on the application and the further proceedings of consolidation till the following day. On 3-3-1985, he accepted the application of respondent No. l and directed a recount of all the ballot-papers. The appellant took exception to this decision and by way of protest he together with three other candidates walked out of the proceedings. The further proceedings were thus conducted in his absence. During the recount the Returning Officer found that 13 votes which had been cast in favour of another candidate, namely, Ghulam Nabi, had been wrongly credited to the account of the appellant. He declared the 53 ballot-papers in respect of which he had postponed his decision on the previous day to be valid.
Out of these, 39 had been cast in favour of respondent No.1, 4 in favour of the appellant and 10 in favour of the other candidates. After making the required corrections he found that the appellant had received 7,320 votes as against respondent No.1 who has secured 7,332 votes. Accordingly, he declared respondent No.1 as elected to the seat and on 4-3-1985 he informed the Election Commissioner of the final result. In due course a Notification by the Election Commission was issued declaring respondent No. 1 to be the elected member from the constituency in question.
3. The appellant filed an election petition challenging the election of respondent No.1. He alleged that the consolidation of the final result was completed by the Returning Officer on 2-3-1985 and he was declared to have been elected to the seat. The recount held by the Returning Officer of the following day was illegal and that the order of the Returning Officer in this regard had been procured by respondent No.1 by exercising extraneous pressure upon him. He also alleged that-- there was substantial differences between the final count as made by the Returning Officer and the results submitted by the Presiding Officers. He further averred that a large number of invalid and forged ballot-papers had been counted in favour of respondent No.1 and a large number of valid ballot-papers cast in his own favour had been left out of the recount.
4. On the pleadings of the parties the learned Election Tribunal framed the following issues:-
(1) Whether the acts and conduct alleged in paragraph 5 of the petition amount to undue influence or corrupt practice: If so, what is its effect?
(2) Whether the Returning Officer has counted in favour of respondent No.1 scores of invalid votes?
(3) Whether the Returning Officer has not counted valid votes in favour of the petitioner (now, appellant)? If so, what is its effect?
After considering the evidence led before it, including the statement of the Returning Officer, the learned Election Tribunal found all the issues against the appellant. At the trial a prayer was made by the appellant that the ballot-papers be recounted as the difference of votes between him and respondent No.1 was very narrow. This prayer too was rejected by the learned Election Tribunal for the reason that no ground had been made out in support of the prayer. Accordingly, it dismissed the election petition.
5. In this appeal, to begin with, it is contended on behalf of the appellant that Mr. Justice Haider A.I Pirzada who recorded the impugned judgment had ceased to function as Election Tribunal on the day he announced his judgment; as such his judgment suffered from lack of jurisdiction. We find no merit in this contention. It may be mentioned that an Election Tribunal is a single member tribunal appointed by the Chief Election Commissioner under section 57(1) of the Representation of the Peoples Act. 1976. By a Notification, dated 6-3-1985, the Chief Election Commissioner appointed four Judges of the Sind High Court as Election Tribunals for hearing election petitions relating to the Province of the Punjab. This Notification did not include Mr. Justice Haider A.I Pirzada. By another Notification, dated 26-3-1985 the earlier Notification4 was partially modified and only two Judges of the Sind High Court were appointed to act as Election Tribunal for the Punjab. One of the Judges now appointed was Mr. Justice Haider A.I Prizada. On 6-6-1985 a third Notification was issued by the Chief Election Commission. By this Notification the first Notification of 6-3-1985 was superseded and all the puisne Judges of the Lahore High Court were constituted as Election Tribunals for the Punjab. It will be noticed that third Notification did not supersede the second Notification of 26-3- 1985 whereby Mr. Justice Haider A.I Pirzada was appointed as Election Tribunal. Consequently, the judgment delivered by him on 26-6-1985 in this case could hardly be attacked on the ground of lack of jurisdiction. The contention on behalf of the appellant is that as the Notification of 26-3-1985 purported to modify the Notification on 6-3-1985, it got merged with the latter Notification with the result that when the Notification of 6-6-1985 superseded the Notification of 6-3-1985 the Notification of 26-3-1985 whereby Mr. Justice Haider A.I Pirzada was appointed as Election Tribunal also ceased to have effect. It is difficult to subscribe to this contention. Although the Notification of 26-3-1985 did state that it was being issued in partial modification of the Notification of 6-3-1985 it was an independent Notification representing a fresh exercise of his power by the Chief Election Commissioner under section 57(1) ibid, setting up new Election Tribunal for the Punjab. The question of its merger with the Notification of 6-3-1985 did not arise. Thus, the supersession of the Notification of 6-3-1985 by the Notification of 6-6-1985 did not affect the Notification of 26-3-1985 at all.
6. On merits, the learned counsel for the appellant did not press his plea that the recount held by the Returning Officer was illegal or that in ordering the recount he was not a free agent. On the other hand all that he argued was that the Tribunal should not have rejected his request for a recount. In support of his prayer for recount he has pointed out that the difference of votes between him and respondent No.1 was only twelve and a slight error in counting could have a material effect on the result of election. He referred to the discrepancies which the Returning Officer had admittedly discovered in the statements of count prepared by some Presiding Officer. He also contended that the possibility of some invalid votes having been counted in favour of the candidates could not be ruled out.
7. We are not impressed with the reasons advanced by the learned counsel in support of his prayer for recount. No doubt the difference in votes received by the appellant and respondent No.1 was very narrow, but then he was given an opportunity to participate in a recount by the Returning Officer for precisely this very reason. He turned down this offer and walked out of the proceedings.
After the result in the recount had gone against him it did not lie with him to claim a further recount before the Election Tribunal. It is true that the Returning Officer had found some errors in the statements of count prepared by the Presiding Officer of ten polling stations but in his deposition before the Election Tribunal he fully explained the nature of those errors and the manner in which he had corrected them. These corrections were reflected in the final result.
8. The learned counsel for the appellant was unable to show that in making the corrections the Returning Officer had in any way deviated from the relevant rules or exceeded his authority or that these corrections would justify a recount of all the ballot-papers cast in the constituency. As regards the apprehension that there was a possibility that some invalid votes might have been counted in favour of the candidates, we find no basis for the same. It may be mentioned that the purpose of the recount is not to start a fishing inquiry. As already mentioned the Presiding Officers of the various polling stations had rejected a total number of 1,559 ballot-papers as invalid. Out of these, ultimately 973 (that is 920 + 53) ballot-papers were found to be valid by the Returning Officer. The reasons why they were declared invalid by the Presiding Officers have already been mentioned above. Since the intention of the voter could be clearly made out from the ballot- papers the decision of the Returning Officer in declaring these ballot-papers as having been validly cast does not suffer from any error. No other instance of counting of invalid ballot-papers was mentioned by the learned counsel of the appellant before us. We should, therefore, think that the learned Election Tribunal had rightly rejected the appellant's prayer for a recount.
9.For the reasons stated above we find no merit in this appeal which is hereby dismissed with costs.