' The petitioner, who was a candidate for one of the five:seats reserved for non-Muslims for Punjab Provincial Assembly, filed this election petition under section 52 of the Representation of People Act 1976 seeking the relief that election of Qaiser Ifraheem Saroia respondent be declared void and in his place the petitioner be declared to have been duly elected to the Provincial Assembly. The aforesaid relief was sought on the ground that after the voting on 22-11-1988 according to the results announced on the Television and also in the "Pakistan Times" the votes polled by each of the winning candidates were as under:- {{TABLE}} S.No, Names of the returned candidates Votes polled Begum Raj Hamid Gill ... ... 10,449 Shamaun Kaiser ... .... 9,386 Peter Gill (the petitioner) .... ... 8,364 Sharif Masih Gill ... 8,316 Dr. Sheela B. Charles ... 7,895 ' It was asserted that the victory, of the petitioner was turned into defeat on 27-11-1988 at the time of final compilation of the consolidated results as the petitioner was placed at Serial No,6, which means that the petitioner was not a returned candidate and instead Qaiser Ifraheem Saroia was declared to have won the election by getting a place at Serial No,5. It was added that on going through the consolidated statement and results of the Court furnished by the Presiding Officers, it was found that factual error and mistakes were committed as the votes polled in PP-120 (Lahore), PP-123 (Lahore), PP-133 (Lahore) and PP-134 (Sheikhupura) were not correctly recorded in the final Consolidation statement of Count.
2. The case of the petitioner is that in PP-120 (Lahore) the petitioner had secured 67 votes, in PP-123 (Lahore) the petitioner got 165 votes, in PP-131 (Lahore) the petitioner obtained 212 votes and these very number of votes were submitted by the Returning Officer, but upon compilation due to factual error the petitioner was shown to have polled 25, 21 and 16 votes in PP-120 (Lahore), PP-123, Lahore) and PP-131 (Lahore) respectively instead of 67, 165 and 212 votes. Thus in this manner 382 votes were not counted in favour of the petitioner. It was also averred that in PP-134 (Sheikhupura) the petitioner obtained 612 votes but the final statement showed that the petitioner had polled only 70 votes, and that 612 votes polled by the petitioner were mistakenly mentioned against the name of Mr. Pitras Masih, another candidate. The following table as per the petition reflects the effect of the mistakes committed and the number of votes which were not included in the final Count. {{TABLE}} S. No, Number of the Constituency Votes actually Votes showed obtained wrongly
(1) PP-134 (Sheikhupura) ... 612 70
(2) PP-120 (Lahore) 67 25
(3) PP-123 (Lahore) 165 21
(4) PP-131 (Lahore) ... 212 16 Total 1,056 132
3. This Tribunal issued notices to all the 84 respondents the contesting candidates, but most of them chose to remain absent. Only Dr. Sheela B. Charles respondent No,6 and Qaiser Ifraheem Saroia respondent No,7 out of the returned candidates as per Notification issued by the Election Commission contested the petition without, however, filing a written statement. The Election Commission, respondent No,2, filed written statement, wherein the commission of major miscalculation in the final Result of Count as well as non-counting of 865 votes were admitted. The Election Commission (respondent No,2) submitted alongwith the written statement a copy of Form XVII-Result of the Count (revised). According to this form the candidates received votes as under:- {{TABLE}} S.No, Name of the contesting candidate Number of votes Begum Raj Hamid Gill ... .., 10,459 Shamun Kaiser 9,560 Sharif Masih Gill ... ... 8,488 Peter Gill ... 8,274 Qaiser Ifraheem Saroia ... 7,926 Dr. Sheela B. Charles ... 7,909 ' From the above table it is apparent that the claim of the petitioner has been conceded and as per, the Commission the seats for non-Muslim (Christians) being five only, the candidate, namely, Dr. Sheela B. Charles having now been placed at Serial No,6 is to be treated as having not been elected.
4. The petitioner in the petition claimed, not the re-counting of the votes polled by each candidate but only the re-checking of the consolidated statement as according to him this statement did not tally with result prepared by the Presiding Officers and transmitted to the Returning Officer. At this stage it will be appropriate to reproduce the relevant part of the order dated 21-10-1989 passed by this Tribunal:- "The Election Commission has filed the written-statement and therein has conceded that 865 votes cast in favour of the petitioner could not be counted in his favour. It is further stated in the written statement that major miscalculation happened in Constituency No, PP-134 Sheikhupura-I because the Assistant Returning Officer of the said Constituency by mistake, mentioned 70 votes instead of 612 votes cast in favour of the petitioner by showing the figure of 612 votes as having been cast in favour of another candidate. It is added that this mistake was rectified at late stage by forwarding the revised result vide letter No,F7 (5)/88-Elec, dated 7-12-1988. In view of the circumstances explained in the written statement of Election Commission a case of recounting is made out. Let the record of Polling Stations No, PP-120 Lahore-V, PP-123, Lahore-VIII, PP-131 Lahore XVI, PP-133 Lahore-XVIII and PP-134 Sheikhupura-I of the petitioner and other returned candidates be produced before the Tribunal. At this stage, learned counsel for the petitioner and the two contesting returned candidates agree that the Ballot papers cast in favour of petitioner and Dr. Sheela B. Charles may be recounted by the Provincial Election Commissioner, Punjab, Lahore, in the presence of the petitioner and those of the returned candidates who may choose to remain present at the time of recounting and the result of recounting be submitted to this Tribunal as it will save the time of the parties as well as of the Election Tribunal. This proposal, as has been made jointly by the parties, is accepted. Let recounting of the votes cast in favour of the petitioner and Dr. Sheela B. Charles at the aforenoted Polling Stations be conducted and result of recounting be intimated to this Tribunal by the next date of hearing."
5. Learned counsel for Qaiser Ifraheem Saroia, respondent No,7 states that he accepts the votes which have been declared to have been cast in favour of Qaiser Ifraheem Saroia by the Provincial Election Commission.
6. The petitioner and the contesting respondents may appear before the Provincial Election Commissioner, Punjab on 26th instant when a date for the purposes of recounting will be fixed. To come up with the report of recounting on 13-11-1989."
' The. Provincial Election Commissioner, Punjab, submitted the report in compliance with the directions made and the same came up for consideration before this Tribunal on 13-11-1989. Ch. Muhammad Anwar Bhinder, learned counsel for Dr. Sheela B. Charles respondent No,6 on this date of hearing sought permission to file a written statement and to bring on record copy of the final consolidation-Form XVI and the result of count Form XVII. These two documents were brought on record with the consent of the learned counsel for the parties but not the written statement. It may be noted that learned counsel Ch. Muhammad Anwar Bhinder, Advocate, did not then insist on the filing of the written statement. The arguments were heard and the order passed, after hearing the learned counsel and with their consent reads as under:- "Learned counsel for Peter Gill, petitioner, states that if the votes reported to have been polled vide report dated 6-11-1989 are included in the votes cast in favour of Peter Gill in other Polling Stations the total votes polled come to 8,232. It is added that the effect of recounting, keeping in view the revised result indicated by the Provincial Election Commission in its written statement, is that Dr. Sheela B. Charles respondent No,6 received 7,793 votes and Qaiser Ifraheam Saroya received 7881 votes.
(2) Ch. Muhammad Anwar Bhindar, Advocate for Dr. Sheela B. Charles, respondent No,6 argued that the result as to number of votes polled by the candidates indicated in the written statement, cannot form basis for declaration of final result after recounting by the Election Tribunal, as after compilation of the Consolidated Statement and preparation of final result of counting (Form XVII), the Provincial Election Commission has no jurisdiction to revise the result. He submitted that if the recounting made under the order of the Tribunal is given effect to in the Consolidation Statement, the votes polled by Dr. Sheela B. Charles would be 7,939 and she will have to be declared as one of the five successful candidates as Qaiser Ifraheem Saroia, respondent No,7 through mistaken calculation of the Consolidated Statement has been shown to have polled 7,881 votes whereas actually he received 6,881 votes. He added that if the votes entered in the Consolidated Statement are counted correctly, these will come to 6,881 and not 7;881 votes. He submitted that as a result of recounting by the Election Tribunal, it is Qaiser Ifraheem Saroia, respondent No,7, who will have to be declared as having not been elected.
(3) Learned counsel for respondent No,7 refutes the aforesaid assertion and states that Qaiser Ifraheem Saroya, respondent No,7 had obtained 7,881 votes. He has, however, no objection if the votes entered in the Consolidated Statement (Form XVI-B) on the basis of which the results were originally declared, are recounted by the Provincial Election Commissioner in the presence of Begum Raj Hamid Girl, respondent No,3, Shamun Kaiser, respondent No,4, Sharif Masih Gill, respondent No,5, Dr.Sheela B. Charles respondent No,6, Qaiser Ifraheem Saroya, respondent No,7 and Peter Gill, petitioner. The votes from the Consolidation Statement will be so counted after incorporating the votes cast, as reported in the report dated 6-11-1989 submitted to this Tribunal by the Provincial Election Commissioner. The parties may appear before the Provincial Election Commissioner on 20th instant for the purpose. The job assigned shall be completed before the next date of hearing.
6. To come up with the report of Provincial Election Commissioner on 16-12-1989". The Provincial Election Commissioner re-checked the consolidated statement after incorporating the votes cast as reported vide report dated 6-11-1989 submitted to the Tribunal. The result of the re-checking as shown in the report dated 20-11-1989 is as under:- ' Name of the Candidates Votes Secured Begum Raj Hameed Gill 10,469 Mr. Shamoon Kaisar 9,524 ' As originally counted. The parties admitted that their counted votes need not be recounted and admit them to be correct as declared.
' Mr. Sharif Masih Gill Mr. Peter Gill Dr. Sheila B. Charles 8,470 8,311 .... 7,940 Ch. Muhammad Anwar Bhinder Advocate pointed out that in Constituency No, PP-77-Dr. Sheila B.
Charles had obtained 368 votes and the same number is mentioned in the result statement received from the Assistant Returning Officer on Form 16-A but in the consolidation statement this figure has been written as 318. It is pointed out that the figure 318 is written with pen and the figure 368 is written in the consolidated statement with pencil but the number of votes counted in the recount is 318 as declared result.
' Mr. Ifraheem Saroia 7,881
7. According to the above-noted report the five candidates, who have received highest number of votes are Begum Raj Hameed Gill, Mr. Shamoon Kaiser, Mr. Sharif Masih Gill, Mr. Peter Gill and Dr. Sheila B. Charles, and, therefore, Qaiser Ifraheem Saroia comes at No,6 whereas the seats reserved for the non-Muslims are five only. Faced with this situation learned counsel Mr. Nafeer A. Malik, Advocate, for Qaiser Ifraheem Saroia submitted that some mistake appears to have been committed somewhere as in the revised Form XVII filed alongwith the written statement of the Election Commission, Mr. Saroia was shown to have received 7,926 votes but according to the report submitted by the Provincial Election Commissioner after re-checking Mr. Saroia has been shown, to have obtained 7,881 votes. He argued that recounting of the ballots should, therefore, be ordered by the Tribunal to find out the exact number of votes polled by each candidate, This plea is not available to Mr. Saroia respondent No,7 as in the proceedings held on 13-11-1989 his learned counsel stated that Qaiser Ifraheem Saroia had obtained 7,881 votes. This very number i,e. 7,881 votes were at the polling stations of the particular Constituencies was directed with the consent of the parties. The re-checking of the Consolidation Statement as corrected (after incorporating the votes cast in favour of the petitioner and Dr. Sheila B. Charles in the specified Polling Stations) was also directed with the consent of the parties. The entries of the consolidation statement of all the candidates mentioned in the report including Mr. Saroia were also checked and after checking the votes polled as per report by Mr. Saroia were 7,881. The correctness of the counting was not challenged before me. This respondent cannot, therefore, at this stage seek recounting of the Ballot papers, on the mere supposition that some mistake may have been committed somewhere. It is well-established that recount of the ballot papers can be ordered only in appropriate cases and on satisfaction of the requisite conditions as laid down in Syed Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 SC 6) and Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others (PLD 1986 SC 178).
' The net result of the above discussion is that the petitioner having polled 8,311 votes is entitled to be declared elected and Dr. Sheila B. Charles having polled 7,940 votes and Mr. Qaiser Ifraheem Saroia having polled 7,881 votes are to be placed respectively at No, 5 and 6 with the result that seats for the Christians being five only, election of Mr.Qaiser Ifraheem Saroia as a returned candidate is declared void. Mr. Peter Gill, petitioner, is declared to have been duly elected. The five returned candidates to the Provincial Assembly for the non-Muslims Seats are, Begum Raj Hamid Gill, Shamoon Kaiser, Sharif Masih Gill, Mr. Peter Gill and Dr. Sheila I3 Charles. The petition thus succeeds and is accepted. The parties are, however, left to bear their own costs.
"Note: ' The aforementioned judgment of the Election Tribunal was modified by the Supreme Court vide Judgment dated 14-2-1990, passed in Civil Appeal No,766/89 to the extent that Mr. Qaiser Ifraheem Saroia was declared elected in place of Dr. Sheila B. Charles".