' This order shall dispose of the election petition in hand, namely, Election Petition No, 40 of 1988 as well as Election Petition No, 38 of 1988.
2. Election Petition No, 40 of 1988 has been filed by Julius Salik. Petitioner in the other election petition (Election Petition No, 38 of 1988) is Lt.-Col. (Retd.) W. Herbert, who is respondent No, 11 in the election petition of Julius Salik. They contested election to four seats in the National Assembly which are reserved for Christians under clause (2-A) of Article 51 of the Constitution. They were, however, defeated and the said four seats were won by the following gentlemen, who contested election with the petitioners and several others:-
(i) Father Rufin Julius
(ii) George Clement
(iii) Peter John Sahotra
(iv) Capt. (Retd.) Sanaullah
3. It was stated by Lt.-Col. (Retd.) W. Herbert, who has made Election Petition No, 38 of 1988, that initially he was declared to be elected, with 15,920 votes, by the Pakistan Election Commission, on the Pakistan Television and the Radio Pakistan, on 19th November, 1988, against one of the Christian seats, by placing him at No, 3 and Peter John Sahotra (respondent No, 9) at No, 4, for his having secured 15,796 votes but subsequently in the Gazette Notification, dated the 26th November, 1988, to his utter surprise, he was placed at No, 5 with 15,449 votes and Peter John Sahotra was shown at No, 4 with 15,465 votes.
4. It was also averred by Lt.-Col. (Retd.) W. Herbert that there were discrepancies in the record of votes supplied by the Provincial Election Commissioner, Sindh, to the Chief Election Commissioner and, therefore, on 30th November, 1988, he made a complaint to the Chief Election Commissioner, in this regard. The Chief Election Commissioner "directed all the Provincial Election Commissioners for making a re-examination of the arithmetical calculation of the number of votes secured by all the candidates overall in each Province". On this, the Provincial Election Commissioners of Sindh and Punjab examined the records, and found and confirmed arithmetical errors whereupon they submitted a revised chart/summary of the votes secured by the candidates. According to Lt.-Col. (Retd.) W. Herbert, no discrepancies were reported by the Provincial Election Commissioners of N.- W.F.P. And Balochistan. It was further submitted by Lt.-Col. (Retd.) W. Herbert that the record clearly showed that he had secured 2,811 votes from Sindh as against 1,035 shown in the initial chart/summary, and 14,377 votes from Punjab as against 14,208 shown earlier. As for Peter John Sahotra, it was pointed out by Lt.-Col. (Retd.) W. Herbert that, from Sindh, the former secured 393 votes as against 520 shown in the earlier result chart. It was added by him that in view of the correct figure of votes secured from Sindh and Punjab he had obtained a total number of 17,395 votes in the aggregate, thus securing 2,042 votes more than Peter John Sahotra (respondent No, 9).
Lt.-Col. (Retd.) W. Herbert disclosed that he filed an application before the Chief Election Commissioners of Pakistan requesting for the notification of his success, in the light of the revised calculations, whereupon the Chief Election Commissioners summoned him and Peter John Sahotra and, after hearing them decided that he may file an election petition. Lt.-Col. (Retd.) W. Herbert, therefore, pleaded that in view of the aforementioned facts the declaration of Peter John Sahotra as successful candidate was void on the ground that the results were wrongly calculated and submitted by the Provincial Election Commissioners of Punjab and Sindh to the Chief Election Commissioners. He, accordingly, prayed that the election of Peter John Sahotra be declared as null and void, that a new notification of the revised results be issued by the Election Commissioner of Pakistan, and the petitioner be declared as an elected member of the National Assembly for one of the Christian seats in place of Peter John Sahotra (respondent No, 9).
5. Similarly, Julius Salik, who has filed Election Petition No, 40 of 1988, complained of incorrect compilation of statements in the Provinces of Punjab and Sindh. According to him, in fact, he secured 15,904 votes whereas Peter John Sahotra (respondent No, 9) and Capt. (Retd.) Sanaullah (respondent No, 22) got 15,352 and 15,889 votes respectively. He, therefore, prayed that since he obtained more votes than both of them, the Election Commission may declare the result of Peter John Sahotra and Capt. (Retd.) Sanaullah as null and void, and that a fresh notification be issued on the basis of the revised results declaring him as an elected member of the National Assembly for one of the Christian seats in place of the aforesaid two respondents.
6. Although there are as many as 28 respondents in each election petition yet the petitions were contested, before me, by Ilyas Khan, Peter John Sahotra and Capt. (Retd.) Sanaullah only. Ilyas Khan, Peter John Sahotra and Capt. (Retd.) Sanaullah are respondents Nos. 2, 9 and 22 respectively in the election petition of Julius Salik. Ilyas Khan did not file written statement in either of the election petitions. Robin Masih, who is respondent No, 17 in the election petition of Lt.-Col. (Retd.) W.
Herbert (Election Petition No, 38 of 1988) submitted written statement in that election petition stating that he did not want to participate in proceedings relating to the said election petition.
Returning Officer, who is respondent No, 1 in each election petition, filed written statements in both the election petitions. He was represented by an official of the Election Commission. On the last date of hearing, Provincial Election Commissioner, Punjab, appeared on behalf of respondent No, 1.
7. Respondents other than the Returning Officer, Ilyas Khan, Peter John Sahotra and Capt. (Retd.)
Sanaullah were proceeded against ex parte througout the period for which I was seized of the matter.
8. Initially, the election petitions were entrusted to Mr. Justice Rustam S. Sidhwa for trial and disposal. He was then an Honourable Judge of the Lahore High Court and has since been elevated to the Supreme Court.
9. Peter John Sahotra and Capt. (Retd.) Sanaullah, who really contested the election petitions, raised certain legal objections which were reproduced by Mr. Justice Rustam S. Sidhwa as under:-- "(1) That on the basis of the averments made in the petitions, no case whatsoever is made out under section 68 of the Representation of the People Act, LXXXV of 1976, and that section 69 of the said Act is only attracted if the election is held to be void on any of the grounds mentioned in section 68 and that since no allegation whatsoever has been made by the petitioners within the meaning of section 68, the petitions are liable to be dismissed for want of any cause of action. In this connection, it is submitted that sections 68, 69 and 70 of the Act, LXXXV of 1976 have to be read together and unless the election of a returned candidate can be declared void under section 68, sections 69 and 70 are not attracted.
(2) That there exists no provision of law either in the Representation of the People Act, 1976, or in the Representation of the People (Conduct of Elections) Rules, 1977, for a recount of votes in respect of elections to the non-Muslims seats, after the results have been finally compiled and consolidated.
In this connection it is submitted that under section 47-A(3) of the Act, election to seats reserved for non-Muslims have to be held and conducted by the Commission in a separate manner, as may be prescribed by it, and that under section 47-A (4) of the Act, sections 18, 20 and 39 to 43 of Chapter IV of the Act are not applicable, though the other provisions of the Act apply to the election to the non-Muslim seats. It is submitted that since section 39 of the Act is excluded, which permits the Returning Officers to recount the ballot-papers upon the request of and challenge in writing made, by a contesting candidates or their election agents and if so directed by the Commission, it is submitted that the Election Tribunal is legally barred from conducting any form of exercise which would amount to a recounting of the votes. In this connection Harchand Rai v. Manga Ram and others 1986 CLC 985, Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784 and Sardar Gul Khitab v. Javaid Iqbal Abbasi and others 1988 CLC 945 have been cited.
(3) That since section 47-A of the Representation of the People Act, 1976, which provides a separate procedure for election to seats reserved for non-Muslims, relates to a constituency which covers the whole country and since the petitioners have not claimed that the whole election should be declared void, therefore, the petitions are incompetent, as one or two respondents' elections alone cannot be held to be void, as they do not have any separate constituencies. It is submitted that since a provision like section 69 is not incorporated in Chapter V-A of the Representation of the People Act, 1976, relief cannot be granted by the Election Tribunal against one or more respondents, for it must be claimed against all. Since the two election petitions merely claim relief against only two returned respondents and not all the returned candidates, the petitions are incompetent and should be dismissed as non-maintainable.
(4) That since one of the petitioners invoked, the jurisdiction of the Election Commission of Pakistan under section 103-AA of the Representation of the People Act, 1976, claiming recounting of the votes, but the Chief Election Commissioners, who had residuary powers refused to interfere, it is submitted that the Chief Election Commissioners has wider jurisdiction conferred on him than the Election Tribunal under the Act, the powers of the Election Tribunal are very much restricted and the Tribunal should not attempt to expand its jurisdiction.
(5) That the annexures filed with the two election petitions have not been verified by the petitioners, as required by section 55(3) of the Representation of the People Act, 1976, and, therefore, the petitions deserve to be dismissed under section 63 thereof. Syed Niamat Shah v. Sabir Shah 1988 CLC 1906 has been cited in this respect."
10. Petitioners' submissions, in reply to the above legal objections, were spelt out by Mr. Justice Rustam S. Sidhwa as follows:-- "(1) That section 69 of the Representation of the People Act, 1976, is totally independent of section 68 thereof and since both are intended to meet different situations, the present petitions are maintainable.
(2) That the jurisdiction of the Election Tribunal to order a recount is unfettered and in appropriate cases can be, resorted to. In this connection, Haji Muhammad Ashgar v. Malik Shah Muhammad Awan and others PLD 1986 SC 542 at 547 is cited. In this connection it is also submitted that there is no discrimination in the Representation of the People Act, 1976, between Muslims and non- Muslims, where powers of the Tribunal are concerned to order a recount.
(3) That since the petitioners have impleaded all the contesting candidates and have only claimed relief as against those returned candidates who would be displaced, if the rechecking of the votes is put into effect, the question of seeking a declaration against all the returned candidates that their election should be declared void, does not arise.
(4) That the powers of the Election Tribunal in respect of ordering recount in appropriate cases has been recognised by the Supreme Court, in the case stated above, and, therefore, the 4th objection raised on behalf of the respondents has no meaning.
(5) That as the petitioners in their election petitions have referred to the mistakes made by the Sindh and the Punjab Election Commissions in respect of votes secured by the two petitioners in those Provinces, which have been clearly set out in the petitions, the annexures filed by them with their petitions, which only go to support the averments made in the petitions, are only of an ancillary character and if they are not verified, the petitions do not merit summary dismissal. In this connection Mian Ghulam Dastgir Bari v. Rai Salahuddin & others 1986 CLC 2499 has been cited."
11. After hearing arguments, all the legal objections were repelled by Mr. Justice Rustam S. Sidhwa, vide his order, dated the 13th June, 1989, recorded in Election Petition No, 38 of 1988 and announced on 20th June, 1989.
12. It was then prayed by one of the petitioners, namely, Lt.-Col. (Retd.) W. Herbert that "a Committee of two officers of the Pakistan Election Commission be appointed to recheck the consolidated statements of the votes cast in favour of the various candidates in the Provinces of Sindh and Balochistan, by tallying it with the certificates of votes given by the respective Presiding Officers of Polling Stations situated in the said two provinces and thereafter a final compilation be made to determine the votes cast in favour of the various candidates on an all Pakistan basis". He further prayed that the said re-examination and compilation be conducted by the members of the Committee, in the presence of the parties and/or their counsel. His suggestion was not opposed by the other petitioner, namely, Julius Salik and Mr. Nasir Mahmood Khokhar (respondent No, 25). Ch. Muhammad Ashraf, Advocate, learned counsel for Peter John Sahotra (respondent No, 9) submitted that he had no instructions on this particular matter. There was none to represent Capt.
(Retd.) Sanaullah. On this, Mr. Justice Rustam S. Sidhwa, vide his order dated the 20th June, 1989 (appearing in Election Petition No, 38 of 1988) appointed a Committee with Mr. Hassan Muhammad, Joint Secretary (Admn.), Election Commission of Pakistan, as its Chairman and Ch. Bashir Ahmad, Deputy Secretary, Election Commission of Pakistan, as member of the Committee, for the purpose.
His precise order in this regard reads as follows:-- "The dispute in this case merely relates to the consolidated statements of the votes submitted by the Sindh Election Commission and the Punjab Election Commission to the Election Commission of Pakistan for the four Christian National Assembly seats. According to the petitioner, it is submitted that these two consolidated statements contained mistakes, as their totals did not tally against the certificates of votes issued to the Polling Agents of the petitioner by the Presiding Officers of the various Polling Stations in Sindh and Punjab respectively. In view of this position, I hereby appoint a Committee of two officers to be headed by Mr. Hassan Muhammad, Joint Sercretary (Admn.)/Returning Officer for election to seats reserved for non-Muslims in the National Assembly, and Ch. Bashir Ahmad, Deputy Secretary, Election Commission of Pakistan, as the second member, to prepare a full and final consolidated statement of the result of the count of votes furnished by the Returning Officers of the various constituencies in respect of each of the two provinces of Punjab and Sindh, on the basis of certificates of votes issued to the Polling Agents of the various candidates by the Presiding Officers of the various Polling Officers Stations in each of the said two provinces. Thereafter, the Committee shall prepare the final consolidated statement of the votes secured by the various candidates on an all Pakistan basis in all the four provinces. The said rechecking shall be conducted and compilations made by the Members of the Committee in the presence of Lt.-Col. (Retd.) W. Herbert, petitioner, and the four contesting respondents, Peter John Sahotra, Capt. (Retd.) Sanaullah, Julius Salik and Nasir Mahmood Khokhar and/or their legal counsel. The said consolidated statements with regard to each of the two provinces and the consolidated statement with regard to the whole of Pakistan shall be submitted by the Committee, with its report, to this Tribunal, or its successor, by or before the next date of hearing. The report of the National Assembly till the disposal of his election petition. This petition for stay order was made by him when a no-confidence motion was tabled against the Prime Minister of Pakistan. His prayer was, however, disallowed by me, vide order, dated the 29th October, 1989. Mainstay of Julius Salik in this regard was that according to the said report of the Committee, Capt. (Retd.) Sanaullah and Peter John Sahotra could not be treated as members of the National Assembly. While withholding the stay order, it was pointed out by me that the report of the Committee was not complete in the sense that the Committee wanted to examine some record, with the permission of this Tribunal, before giving a definite verdict.
15. After the stay order was disallowed, election petitions came up before me on 10th January, 1990, when it was felt that the report of the Committee was deficient in contents and there were also three pending miscellaneous petitions made by Julius Salik for summoning of some record, etc., with a view to supporting his view point. After some discussion, the Committee was asked to give a fresh report by examining the record which was desired to be seen by it. The Committee was also directed to take care of the miscellaneous petitions made by Julius Salik. This order, which was made with the consent of all those present, on 10th January, 1990, runs as follows:- "As pointed out by me, in my order, dated 29th October, 1989, with regard to the petitioner's prayer for stay order restraining respondents Nos. 9 and 22 from acting as members of the National Assembly, the Committee appointed by my learned predecessor, R.S. Sidhwa, J., as he then was, wanted to examine some record with a view to making proper checking of the votes. In view of their repeated remarks in this regard, it appears that they were not able to make due checking, perhaps due to the paucity of time allowed to them for the purpose. Now, by means of three separate applications, the petitioner has asked for certain records with a view to establishing his point of view. As indicated by me in the aforementioned order, looking at the remarks of the Committee reproduced therein, this report is lacking in several respects and this has also been admitted by the petitioner. All those present agree that the Committee should submit a complete report, to assist this Court in reaching the correct conclusion, by examining all the record to which reference has been made in its report. Such a course would also obviate the necessity of remand of the matter by the Supreme Court, if it is taken to that august Court by any of the parties, after its disposal by me. Reexamination of the matter is also likely to take care of three miscellaneous applications submitted by the petitioner for summoning of the record because the parties and/or their counsel would be before the Committee at the time of further action by it in pursuance of the order of my learned predecessor. With the agreement of all those present I, therefore, direct that fresh report shall be re-submitted by the Committee after checking of the record in the light of the above observations. Needless to say that the Committee shall hear the parties and/or their counsel during the course of conduct of further inquiry in It the matter.
16. The Committee then submitted its second report, dated the 10th February,1990.According to this report, position of six highest scoring candidates, on an all Pakistan, basis was as under:--
(1) Father Ruffin Julius 55,618
(2) George Clement 25,234
(3) Lt.-Col. (Retd.) W. Herbert 17,374
(4) Julius Salik 16,551
(5) Peter John Sahotra 16,364
(6) Capt. (Retd.) Sanaullah 15,887 ' This result is recorded in Annexure 'S' to the second report in which votes obtained by respondent No, 2, Ilyas Khan are shown as 2,074. Parties were allowed to file objections, if any, to the second report of the Committee. Such objections were put in by Peter John Sahotra (respondent No, 9) and Capt. (Retd.) Sanaullah (respondent No, 22) only.
17. No evidence was produced by any of the parties.
18. On 25th April, 1990, Mr. Bashir Ahmad Ansari, Advocate, learned counsel for Peter John Sahotra, concluded his arguments and as the time was over, the matter was adjourned for remaining arguments. On 6th May, 1990, when the case again came up for arguments, Capt. (Retd.)
Sanaullah made an application which was accompanied by as many as 43 statements of the count in Form XIV (certificates alleged to have been issued to his Polling Agents by Presiding Officers of certain Polling Stations), hereinafter referred to as Forms. He prayed that the said Forms may be taken into consideration while deciding the matter. Out of these Forms two related to the Province of the Punjab and remaining forty-one were in respect of the Province of Sindh. His petition was opposed by learned counsel for the petitioners on the ground that it was a belated attempt to prolong the proceedings. Subject to this objection, however, they agreed to the examination of the said Forms by the Committee. After scrutiny of the above Forms, the Committee submitted a supplementary report on 14th May, 1990. In the supplementary report, which is, in a way, the third and last report of the Committee, final result of count, on an all Pakistan basis, was recorded as under:--
19. (1) Lt.-Col. (Retd.) W. Herbert 17,376
20. (2) Julius Salik 16,551
21. (3) Peter John Sahotra 16,357
22. (4) Capt. (Retd.) Sanaullah 15,898
19. Thereafter, the matter was argued at considerable length by Ch. Muhammad Ashraf, learned counsel for Capt. (Retd.) Sanaullah. Mr. Muhammad Hanif Zahid, learned counsel for respondent No, 2, endorsed his arguments. Mr. Bashir Ahmad Ansari presented further arguments with reference to the supplementary report of the Committee and other matters. In the end, arguments were advanced by Mr. Abid Hussain Minto, learned counsel for Lt.-Col. (Retd.) W. Herbert, and Mr. Ahmer Bilal Soofi, learned counsel for Julius Salik. Mr. Muhammad Rashid was also heard on behalf of the Returning Officer, who is the first respondent in each petition.
20. When arguments were thus concluded on 29th May, 1990, the order was reserved.
21. I had partly recorded the order when it was reported in a section of the Press that Capt. (Retd.)
Sanaullah had expired. I, therefore, thought of confirming the news-item in this behalf and also hearing parties with regard to the effect of his death on the two petitions. For this purpose, the petitions were fixed for 4th June, 1990. It was confirmed by all those present that Capt. (Retd.)
Sanaullah had breathed his last. They also made submissions with regard to the effect of his death on the election petitions in hand. The order was then again reserved.
22. Before proceeding further, I would like to examine impact of the death of Capt. (Retd.)
Sanaullah on the election petitions under examination. In this connection, it was submitted by Mr. Ahmer Bilal Soofi, learned counsel for Julius Salik petitioner, that the two petitions could be decided by this Tribunal, on merits, despite the death of Capt. (Retd.) Sanaullah, who was one of the several respondents herein. He placed reliance on section 75 of the Representation of the People Act, 1976, which reads as follows:-- "75. Death or withdrawal of respondent.---If, before the conclusion of the trial of an election petition, a respondent dies or gives notice in the prescribed form that he does not intend to contest the petition, and no respondent remains to contest the petition, the Tribunal shall, without any further hearing, or after giving such person as it may think fit an opportunity of being heard, decide the case ex parte."
23. Mr. Abid Hussain Minto, learned counsel for the other petitioner, Lt.-Col. (Retd.) W. Herbert, supported the plea of Mr. Ahmer Bilal Soofi. He also invited my attention to section 74 of the Representation of the People Act which provides that in the event of the death of the petitioner, the election petition would abate. Section 74 is to the following effect:-- "74. :Abatement on death of petitioner.---(1) An election petition shall abate on the death of a sole petitioner or of the sole survivor of several petitioners.
(2) Where a petition abates under subsection (1) after a Tribunal has been appointed, notice of the abatement shall be given by the Tribunal to the Commissioner."
' Argument of Mr. Abid Hassan Minto was that section 74 is the only provision relating to abatement of an election petition and, therefore, it could not be contented that an election petition would also abate on the death of one of the respondents. Aditionally, it was pointed out by him that even under the genera law the death of a respondent, in the circumstances of the present case, was of consequence: For this proposition, he made reference to rule 6 of Order XXII o the Code of Civil Procedure in which it has been provided that if a party dies after the conclusion of trial but before the pronouncement of judgment, the judgmen can be pronounced notwithstanding the death.
Rule 6 runs as follows:-- "6.No abatement by reason of death after hearing.---Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwith. standin the death and shall have the same force and effect as if it has been pronounced before the death took place."
(Underlining is by me).
' Argument proceeds that in the present case also, Capt. (Retd.) Sanaullah die after the conclusion of the hearing of the election petitions and before th pronouncement of order by me and, therefore, order could be pronounce notwithstanding his death. It was further submitted by Mr. Abid Hassan Mint that election rules relating to Muslim seats and seats reserved for non-Musli were different in certain respects. It was pointed out by him that according t rule 46 of the Representation of the People (Conduct of Election) Rules, 1977, a Muslim candidate dies before the completion of the proceedings relating to t election, the Returning Officer is required to terminate such proceedings an then commence fresh proceedings as if for a new election; but according to ru 86 of the said rules if a candidate for seats reserved for non-Muslims expir before the completion of the proceedings relating to an election, the proceedin shall not be terminated and shall be confined to the remaining candidates. It w pointed out by Lt.-Col. (Retd.) W. Herbert that in the election in dispute, H. Hayat was one of the candidates and he died a day before the poll but t election proceedings were not disturbed due to his death. It is noteworthy th H.L. Hayat figures as one of the respondents in the two election petitions also.
24. From the respondents' side, Mr. Muhammad Hanif Zahid, learn counsel for Ilyas Khan (respondent No, 2) supported the arguments of learn counsel for the petitioners. Ch. Muhammad Ashraf Khan, learned counsel f Peter John Sahotra (respondent No, 9), however, presented a different vies point. His submission was that section 75 of the Representation of the Peep Act would apply when there is only one respondent in an election petition but no to cases where there are several respondents. It was also added by him that section 75 would be attracted if death of the respondent takes place during the trial of the petition but it could not be made use of after the conclusion of its trial. He was, therefore; of the view that since Capt. (Retd.) Sanaullah was not the sole respondent in the two election petitions and the trial of the election petitions had also finalised, the election petitions could not be decided on merits, on the strength of the provisions of section 75. According to him, the election petitions had abated to the extent of Capt. (Retd.)
Sanaullah and a bye-election deserved to be held for the seat vacated by him.
25. Ch. Muhammad Ashraf, who was counsel of late Capt. (Retd.) Sanaullah during his life-time, argued that according to the scheme of relevant law, namely, Representation of the People Act, section 75 would apply to election petitions relating to Muslim seats and it had no bearing on election petitions in respect of seats reserved for non-Muslims. He, therefore, endorsed the plea of Ch. Muhammad Ashraf Khan that the election petitions, as against Capt. (Retd.) Sanaullah, could not be decided on merits and the holding of a bye-election in consequence of his death could not be helped.
26. Provincial Election Commissioner, Lahore, who was specially summoned by me to give his opinion with regard to the effect of the death of Capt. (Retd.) Sanaullah on the election petitions in hand, did not like to offer any comment in the matter and submitted that he would leave it to the Tribunal to decide the issue as it deemed fit.
27. I am afraid it is not possible for me to agree with Ch. Muhammad Ashraf Khan that section 75 is intended for those election petitions only in which there occurs the death of the sole respondent.
What I feel is that section 75 deals with a situation of extreme nature and provides that an election petition can be decided on merits even if there is only one respondent and he too breathes his last.
If the makers of the law had decided that an election petition be disposed of on merits even if the sole respondent in the petition dies, it could not be their intention that it should not be decided on merits when there are other respondents to contest it, after his death. It also does not appeal to reason that a petition may be decided on merits when there is none to contest it but not when there are respondents to oppose it. Section 75 is not happily worded but intention of the legislature seems to be very clear. It is obvious that the legislature was keen for disposal of an election petition on merits if the maker of the petition was available to prosecute it. Had their intention been otherwise, they would have enacted that the petition would abate when no respondent is left to contest it, as done by them in the case of a petition in which the petitioner's death occurs. It has been indicated above that provisions relating to abatement of a petition on the death of the petitioner are contained in section 74 of the Representation of the People Act. As pointed out by Lt.- Col. (Retd.) W. Herbert petitioner, H.L. Hayat is one of the respondents in two petitions. It is not disputed that he died before the election was held. In the election petitions he is shown to be dead.
Although in his written statement, filed in Election Petition No, 40 of 1988, it was submitted by Capt.
(Retd.) Sanaullah that respondent No, 3 (H.L. Hayat) died even before the election and as such the election petition was bad for misjoinder of the said respondent yet, according to the record, it was never argued by any of the respondents, including Capt. (Retd.) Sanaullah, that the election petitions could not be decided on merits due to his (H.L. Hayat's) inclusion in the list of the respondents. Thus, by his conduct, Capt. (Retd.) Sanaullah had abandoned his plea in respect of misjoinder of parties. It is, therefore, hardly open to any of the surviving respondents or to learned counsel for late Capt. (Retd.) Sanaullah to object to the disposal of the election petitions on merits, due to the death of Capt. (Retd.) Sanaullah.
28. It is a well-settled cannon of interpretation of statues that provisions thereof should be construed in a reasonable manner keeping in view the intention of framers of the statute. In this connection, reference can be made, with advantage, to Interpretation of Statutes, by M. Farani (1977 Edition), in which following comment has been made, at pages 562 and 567, on the basis of case-law on the subject:-- "(g) Reasonableness or unreasonableness of provision---How far relevant in determining intention of legislature. Though a Court of law has nothing to do with the reasonableness or unreasonableness of a statutory provision, the reasonableness or otherwise of the interpretation is relevant to interpret what the Legislature has said, and in determining either the general object of the Legislature or the meaning of its language in any particular passage it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles, should in all cases of doubtful significance, be presumed to be true one.
(z) Literal construction should not prevail if opposed to intention of Legislature. It is well-recognised cannon of construction that the more literal construction ought not to prevail if it is opposed to the intention of the Legislature as apparent from the statute, and if the words are sufficiently flexible to admit of some other construction by which the intention will be better appreciated."
' The aforementioned case-law has been enunciated in The Woking Muslim Mission and Literary Trust, Lahore and the Civil & Military Gazette, Ltd. Lahore v. The Crown PLD 1956 FC 209, Bachoo Kandero v. Emperor AIR 1938 Sindh 1 and Parmanand v. Emperor AIR 1939 Lah.
81.
29. Following the above principle, and in view of the aforesaid reasoning, the argument that section 75 is applicable to those election petitions only in which the sole respondent dies or withdraws from contest but not to the petitions in which a respondent dies or withdraws leaving behind other contesting respondents is not acceptable. Accordingly, I reject this plea and hold that the petitions before me can be decided on merits despite the death of one of the respondents therein, namely, Capt. (Retd.) Sanaullah.
30. I am also unable to appreciate the contention of Ch. Muhammad Ashraf Khan, learned counsel for Peter John Sahotra (respondent No, 9), that provisions of section 75 would be attracted when a respondent dies at the stage of trial of an election petition but not when the trial is over and the judgment is yet to be announced. My feeling is that if the respondent dies after the conclusion of the trial of an election petition, such a situation is much more conducive for a just and proper decision of the election petition than the one in which he expires at the stage of trial, because in the first case the Tribunal would be able to give its verdict in the light of the cards placed before it by both sides but in the second case, both sides of the picture would not be before the Tribunal. It will also look odd, if not absurd, to hold that a petition can be decided at the stage of trial, without their being any one to contest it, but it cannot be so decided after it has been hotly contested. A statute should be interpreted in a reasonable manner so as to avoid all absurd interpretations. It has been so ruled in Mian Bashir Ahmad v. Mrs. Mary Minck 179 IC 755. I am, therefore, unable to subscribe to the view that under section 75 a pending petition can be decided at the stage of trial but not after the conclusion of the trial.
31. As indicated above, in the present case Capt. (Retd.) Sanaullah had fought the batlle to the end, and the order stood reserved before he breathed his last. Therefore, there is,no justification for not deciding the election petitions on merits.
32. I am not oblivious of the fact that the provisions of the Code of Civil Procedure are not applicable to election petitions but there will be little harm in taking guidance from the principle embodied in rule 6 of Order XXII of the Code of Civil Procedure which provides that if a party dies after the conclusion of proceedings but before the pronouncement of judgment, the judgment can be pronounced notwithstanding the death, even if the cause of action does not survive. In the instant case also, Capt. (Retd.) Sanaullah expired after the conclusion of proceedings but before the pronouncement of order by me. Therefore, on general principles also, the conclusion of proceedings in the two election petitions does not operate as a bar to their decision on merits.
33. This brings me to the submissions made by Ch. Muhammad Ashraf, learned counsel for Capt.
(Retd.) Sanaullah. It was not his case that section 75 is not applicable to the present petitions because Capt. (Retd.) Sanaullah was not the sole respondent herein and the trial of the petitions had concluded. His plea was that in view of the scheme of the law on the subject, namely, Representation of the People Act, section 75 is applicable to election petitions relating to Muslim seats and not to election petitions in regard to seats reserved for non-Muslims. According to Article 225 of the Constitution, no election to a House of Parliament or a Provincial Assembly can be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of Parliament. National Assembly is one of the two Houses of Parliament (Majlis-e-Shoora). The Act made in this behalf is the Representation of the People Act. Chapter VII of the above Act deals with election petitions. This chapter opens with section 52 which provides, obviously in the light of Article 225 of the Constitution, that no election shall be called in question except by an election petition made by a candidate for that election. There is no provision relating to election petitions in the said Act or in any other Act of Parliament except those contained in Chapter VII of the Representation of the People Act. It is amazing that till the death of Capt. (Retd.)
Sanaullah it was never pleaded by him or by his learned counsel that the election petitions before me were not competent because Chapter VII, whereunder they have been made, was not applicable to seats reserved for non-Muslims. Plea in this regard is, therefore, an afterthought.
34. Section 75 figures in Chapter VII. There is nothing in section 75 to suggest that it is applicable to Muslim seats and not to seats reserved for non-Muslims. Although it was demonstrated by Mr. Abid Hassan Minto, learned counsel for Lt.-Col. (Retd.) W. Herbert, that if a candidate for any Muslim seat dies before the election, the election proceedings are required to be terminated and started afresh but in the case of death of a candidate for any seat reserved for non-Muslims, the proceedings are to be confined to the remaining candidates yet, in my opinion, the aforesaid difference in the consequences of the death of a candidate is of little help in determining the scope of the applicability of section 75. As I read section 75, it is abundantly clear from its phraseology that it is as much applicable to election petitions against Muslim members of the National Assembly as to such petitions against non-Muslim members thereof. I am, therefore, unable to share the view of Ch. Muhammad Ashraf, learned counsel for Capt. (Retd.) Sanaullah, that section 75 is not attracted to election petitions in respect of seats reserved for non-Muslims.
35. What emerges from the above discussion is that in the absence of any other provision dealing with the death, of a respondent in an election petition, section 75 is fully applicable to the petitions before me. This, as stated earlier, was also frankly conceded by Mr. Muhammad Hanif Zahid, learned counsel for respondent No,
2. I, therefore, hold that these petitions can be decided on merits notwithstanding the death of Capt. (Retd.) Sanaullah who was one of the respondents herein.
36. Now, I proceed to consider the merits of the two election petitions. As indicated earlier, controversy raised in these petitions is confined to incorrect compilation of the consolidated statements of the count of votes. What actually happens is that when polling is concluded at a Polling Station, the Presiding Officer of the Polling Station prepares statement of the count in Form XIV, as required by rule 24 of the Representation of People (Conduct of Election) Rules, 1977, mentioning therein, inter alia, the votes polled by each candidate. On the basis thereof, preliminary consolidated statements of the result of the count are prepared, by the Assistant Returning Officers (AROs), in Form XVI-A, in pursuance of sub-rule (1) of rule 90 of the said rules. Then, on the basis of such consolidated statements, final consolidated statement of the result of the count is drawn up in Form XVI-B by the Returning Officer in terms of the provisions of rule 91. Form XIV is for Muslims seats as well as seats reserved for non-Muslims but Forms XVI-A and XVI-B are for seats reserved for non-Muslims only.
37. Subsection (11) of section 38 of the Representation of the People Act provides that, after the poll, the "Presiding Officer shall give a certified copy of the statement of the count and the ballot paper account to such of the candidates, their election agents or polling agents as may be present and obtain a receipt for such copy". This certified copy has been referred to by my learned predecessor, in his order dated the 20th June, 1989, as certificates issued to the Polling Agents.
38. Main grouse of the petitioners before me is that the consolidated statements did not tally with the certificates issued to the Polling Agents. The aforementioned Committee was, therefore, constituted by my learned predecessor to "prepare a full and final consolidated statement of the result of the count of votes furnished but the Returning Officers of the various constituencies in respect of each of the two Provinces of Punjab and Sindh, on the basis of certificates of votes issued to the Polling Agents of the various candidates by the Presiding Officers of the various Polling Stations in each of the said two Provinces".
39. During the course of arguments, in reply to my query, it was verbally stated by the Chairman of the Committee that Julius Salik, Lt.-Col. (Retd.) W. Herbert and Capt. (Retd.) Sanaullah produced some certificates issued to their respective Polling Agents but not all such certificates in respect of Polling Stations in the Provinces of the Punjab and Sindh. Chairman of the Committee was not sure that Peter John Sahotra produced any such certificate. Lt.-Col. (Retd.) W. Herbert, however, said that Peter John Sahotra produced some certificates relating to the district of Faisalabad and none else. William Sharaf, attorney for Peter John Sahotra, said that Peter John Sahotra did not produce an certificate anywhere. Julius Salik and Lt.-Col. (Retd.) W. Herbert submitted tha they produced some certificates but not all of them. They further stated that Capt. (Retd.) Sanaullah did not produce any certificate. In this state of affairs the Committee carried out the mandate, given to it by my learned predecessor with the help of statements in Form XIV, available in the record of the AROs. I has already been explained that the certificates referred to above are certifie copies of such statements.
40. As noted earlier, Capt. (Retd.) Sanaullah produced 43 Form (certificates alleged to have been issued to his Polling Agents), at a very lat stage, after the submission of second report by the Committee. Out of them, tw relate to the Province of the Punjab and 41 are in respect of the Province o Sindh. In this supplementary report submitted by the Committee, after the examination of said certificates, it was reported, in regard to certificates relating to the Province of Sindh, that certificates in respect of Polling Stations mentioned at Serial Nos. 5 to 14, 16, to 25 and 28 of the statement, annexed to the said report, appeared to be fake because as per polling stations lists notified on 31st October, 1988 and as per electoral rolls, there existed no Christian voters in the areas assigned to these Polling Stations. According to the Committee, the above fact was certified by the concerned AROs in the certificates furnished by them on 8th and 9th May, 1990. It was further noted by the Committee that the name and number of NA Constituency, as written on Forms XIV attached with Capt. (Retd.) Sanaullah's application, in respect of Polling Stations at serial Nos. 7 and 10 of Annexure "A" to the report of the Committee, were incorrect. It was also pointed out by the Committee that a few Forms were repeatedly attached as enclosures at different sequences of Capt. (Retd.) Sanaullah's application. Remarks of the Committee in this behalf are as follows:-- "Another fact worth noticing is that copies of a few Forms XIV are repeatedly attached as enclosures at different sequences of Capt. (Retd.) Sanaullah's application. In this connection entries at SI. Nos. 6, 8, 9, 11, 12, 13, 14, 18, 19, 20, 21, 31, 32, 33, 34, 35, 37, 38 and 39 of Annexure 'A', may kindly be seen. The words 'male' and 'female' have been wrongly written, e.g., entries at Sl. Nos. 40 and 41."
' Other snags pointed out by the Committee in the Forms produced by Capt. (Retd.) Sanaullah are as under:-- "In some cases, e.g., Polling Stations mentioned at SI. Nos. 26, 27, 29, 30, 31, 34, 35, 36, 37, 38, 39, 40 and 41 figures as mentioned in Forms XIV attached with Capt. (Retd.) Sanaullah's application, are different from ARO's record (i.e, Forms XIV and XVI-A). One PS, i.e, SI. No, 42 of Annexure 'A' could not be located because of lack of particulars (i.e, Constituency number, name, etc.)."
41. As indicated above, no evidence was led in the petitions in hand, which were, in the first instance, argued by Mr. Bashir Ahmad Ansari, learned counsel for Peter John Sahotra (respondent No, 9). His contentions mainly centred around the legal objections. These objections were disposed of by my learned predecessor, vide order, dated the 13th June, 1989 which was announced on 20th June, 1989. Mr. Bashir Ahmad Ansari wanted me to review the said order but did not cite any authority enabling me to do so.
42. It was also urged by Mr. Bashir Ahmad Ansari that real position of each candidate could not come to light without recounting all the votes in respect of four seats reserved for Christians. In other words, he desired that all the polling bags, containing ballot-papers, with regard to the election in question, may be opened and the votes recounted afresh.
43.
43. Another point canvassed by Mr. Bashir Ahmad Ansari was that the Committee had given different results in its three reports and, therefore, no reliance could be placed on any of its reports.
44. Ch. Muhammad Ashraf, learned counsel for Capt. (Retd.) Sanaullah (respondent No, 22), too asked for the recounting of all the ballot-papers and so did Mr. Muhammad Hanif Zahid, learned counsel for Ilyas Khan (respondent No, 2). It was further complained by Ch. Muhammad Ashraf, learned counsel for Capt. (Retd.) Sanaullah, that the Committee did not listen to the respondents but attended to all what was urged by the petitioners and thus the respondents did not get a fair deal. Besides, he objected to the opening of two polling bags by the Committee before submission of its second report. These were polling bags of Polling Station No, 44 in Constituency No, NA-94 Lahore III and Polling Station No, 94 in Constituency No, NA-186 Karachi, Central I. According to him, polling bag of the said Polling Station No, 94 was torn when it was opened. In regard to the reasoning of the Committee that some Forms filed by Capt. (Retd.) Sanaullah were fake because there was no Christian voter in the relevant area, it was submitted by Ch. Muhammad Ashraf, learned counsel for Capt. (Retd.) Sanaullah, that relevant Polling Stations lists and electoral rolls were freshly printed with a view to showing that Forms produced by Capt. (Retd.) Sanaullah were not genuine. In addition, he pointed out discrepancy in the note recorded by the Committee against Serial No, 37 of the statement prepared by it with reference to Form No, 26(38), relating to Polling Station No, 24 (Government Primary School Chak 41) in Constituency No, NA-180, Sanghar I, filed by Capt. (Retd.) Sanaullah. That statement is annexed to supplementary report of the Committee. In the said Form, which has been marked "Z" by me, total number of votes polled by contesting candidates are shown as 248 and the number of doubtful votes excluded from the count is given as 5. Number of valid votes obtained by the contesting parties are given as follows:- - "Jan Peter 11 Sanaullah 148 Col. Herbert 17 Julius Salik 3"
' In the note recorded by the Committee, in respect of the said Form, it is mentioned that total votes polled as shown in Form XIV, in the A.R.O's. Record, were 57 but in Form XVI-A, only one vote was shown to have been polled. Learned counsel for Capt. (Retd.) Sanaullah argued that the correct position relating to the said Form could not be ascertained without opening the relevant polling bag but that bag was not opened by the Committee. It may be explained here that Constituencies Nos. Given in this order are the numbers of Muslim constituencies. As for the seats reserved for Christians, the whole of the country constitutes a single constituency.
45. In reply to the above arguments of learned counsel for the respondents, Mr. Abid Hassan Minto, learned counsel for Lt.-Col. (Retd.) W. Herbert petitioner, submitted that the order made by my learned predecessor with regard to the aforementioned legal objections could not be reviewed by me. He cited Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542 to support his plea. As for the recounting of ballot-papers it was submitted by him that, in their written statements, the contesting respondents had opposed recounting of the ballot-papers instead of asking for a recount. It was added by him that controversy involved in the two petitions related to the preparation of the consolidated statements in disregard of the counts mentioned in the statements in Form XIV, and this Tribunal could not enlarge the scope of the controversy by ordering recount of ballot-papers. Mr. Abid Hassan Minto also invited my attention to the second report of the Committee in which it was stated that although in the first instance the respondents asked for re-checking of the ballot-papers yet this plea was subsequently not pressed by them. In regard to opening of two polling bags by the Committee, it was maintained by him that it was necessary to do so with a view to removing ambiguities in respect of the Polling Stations to which they relate. It was denied by him that one of the two bags was torn. As for Form No, 26(38), mentioned at Serial No, 37 of the statement annexed to the supplementary report of the Committee, Mr. Abid Hassan Minto submitted that he would not like the proceedings to be delayed by asking the Committee to open the relevant polling bag. He maintained that he would have no objection to the award of all the 57 votes mentioned at Serial No, 37 to Capt. (Retd.) Sanaullah. He also refuted the other arguments presented by learned counsel for the respondents and asserted that the Committee displayed complete impartiality in conducting the exercise entrusted to it. He supported the findings of the Committee with regard to the Forms furnished by Capt. (Retd.)
Sanaullah and its reasoning in support thereof. As for the plea that electoral rolls and Polling Stations lists relating to some of those Forms had been re-printed, Mr. Abid Hassan Minto submitted that it was a lame excuse. He argued that if there was any force in the plea in this behalf, Capt. (Retd.) Sanaullah should have produced copies of the electoral rolls and the Polling Stations lists which were supplied to him at the time of election, but he did not do so.
46. Mr. Ahmer Bilal Soofi, learned counsel for Julius Salik petitioner, generally endorsed the contentions of Mr. Abid Hassan Minto.
47. As for arguments of Mr. Bashir Ahmad Ansari with regard to the aforementioned legal objections, the said objections were rejected by my learned predecessor, vide his order, dated the 13th June, 1989 which was announced on 20th June, 1989. Mr. Ansari did not cite any law or authority allowing me to review the order of my learned predecessor in this behalf. On the other hand, according to the law laid down by the Supreme Court in the case of Haji Muhammad Asghar, cited by Mr. Abid Hassan Minto, power of review is not possessed by this Tribunal. Relevant observations made in the cited case read as follows:-- ' The contention that the Election Tribunal, was possessed of the power of review on the strength of section 64 of the Act, is untenable because the power of review is possessed and exercised not as a necessary adjunct of the power to try a cause but as an exception to the principle of finality firmly embedded in the judicial system. A slimilar question arose recently in SA. Rizvi v. Pakistan Atomic Energy Commission and another, Civil Appeal K-277 of 1980, and Abdul Wali M.J. Makhdoom v. Government of Sindh and another, Civil Appeal K-278 of 1980. The law provided that the Service Tribunal, 'shall, for the purpose of deciding any appeal be deemed to be a Civil Court and shall have the same powers as are vested in such Court under Civil Procedure Code'. Power of review was held not to be included in the power to entertain and dispose of the appeal."
It is also a matter of common knowledge that even if review is permissible, it is generally done by the officer who has passed the order sought to be reviewed and not by his successor. This is true of the Judges of the High Court as well. Order passed by a Judge can be reviewed by him only and if he is not available due to his having retired or for any other reason, the review application is disposed of by a Bench of two Judges. Although the order sought to be reviewed in the instant petitions was made by Mr. Justice Rustam S. Sidhwa not as a Judge but as an Election Tribunal yet propriety demands that it should not be reviewed by me, even though order passed by a Tribunal is open to review, because at the time of the making of the order, he was a Judge of the same High Court of which I am a Judge at the present moment. For these reasons, I am not inclined to review his order which has been assailed by Mr. Ansari not on the ground that it suffers from any clerical or typographical mistake but on merits. He, in fact, wants me to sit in appeal over his order which I am unable to do, I, therefore, would not like to make any comment with regard to arguments in respect of order by which the aforementioned legal objections were rejected by my learned predecessor.
48. There was vehement demand by the contesting respondents for recounting of votes relating to the Provinces of the Punjab and Sindh, if not in respect of the whole of the country. As indicated above, recounting of votes was not demanded by the contesting respondents in their written statements. Instead, it was pleaded by Peter John Sahotra (respondent No, 9) and Capt. (Retd.)
Sanaullah (respondent No, 22) that recounting of votes could not be ordered in this case. Demand for recount by the contesting respondents is, therefore, not only beyond the scope of their pleadings but is also opposed to their pleadings. Relevant portions of their written statements in the election petition of Julius Salik are reproduced below:-- Preliminary objection No, 3 raised in the written statement of Peter John Sahotra (respondent No, 9).
"(3) That there exists no provision of law either in the Representation of the People Act, 1976 or in the Representation of the People (Conduct of Election) Rules, 1977 for a recount, after the results have been finally compiled and consolidated. Final compilation and consolidation of results is prepared by the Returning Officer under Rule 91 ibid after giving the contesting candidates and their election agents, a notice in writing, of the day, time and place fixed for final consolidation of results, and, in the presence of such of the contesting candidates and election agents as may be present. The results are finally compiled and consolidated by the Returning Officer in Form XVI-B on the basis of the results as furnished by the Assistant Returning Officer in Form XVI-A.
' It is submitted that no recount can be taken, evidence produced or ballots examined in proceedings before the learned Election Tribunal or anywhere else. The results compiled in Form XVI-B attained finality."
Preliminary objection No, 4 raised in the written statement of Capt. (Retd.) Sanaullah (respondent No, 22) and paragraph 9 thereof, on merits.
"(4) That a bare perusal of the petition reveals that in its essence the petitioner desires re-counting of votes which, it is humbly submitted, is not within purview of sections 39, 68 and 69 under which the election can be declared void. The said provisions of Act LXXXV of 1976 confine the field of adjudication with the Tribunal for the purpose of declaring the election to be void. Ay prayer beyond the scope of the said provision of law is not entertainable and the petition deserves to be dismissed for this reason.
(9) Para. 9 of the petition is incorrect and is denied. The answering respondent received 502 votes from Province of Sindh as per official results which are otherwise correct and correctly reflected the factual position. Rest of the para is denied. The answering respondent was correctly and validly declared successful as his votes were much in excess of votes polled in favour of the petitioner.
' It is most respectfully submitted here that the petitioner by entering into arithmetical calculations actually desires this Honourable Tribunal to exercise powers of re-counting and to set aside the Election on that score which is beyond the scope of sections 68 and 69 of Act LXXXV of 1976 under which provision this Honourable Tribunal can declare the elections to be void."
' Recounting of votes was also opposed by Peter John Sahotra (respondent No, 9) and Capt. (Retd.)
Sanaullah (respondent No, 22) in the written statements filed by them in the election petition of Lt.- Col. (Retd.) W. Herbert, as under:-- Preliminary objection No, 2 raised in the written statement of Peter John Sahotra and paragraph 5 thereof. On merits.
"(2) That there exists no provision of law either in the Representation of the People Act, 1976 or in the Representation of the People (Conduct of Election) Rules, 1977 for a recount, after the results have been finally compiled and consolidated. Final compilation and consolidation of results is prepared by the Returning Officer under Rule 91 ibid after giving the contesting candidates and their election agents, a notice in writing, of the day, time and place fixed for final consolidation of results, and, in the presence of such of the contesting candidates and election agents as may be present. The results are finally compiled and consolidated by the Returning Officer in Form XVI-B. The results are furnished by the Assistant Returning Officer in Form XVI-A.
' It is submitted that no recount can be taken, evidence produced or ballots examined in proceedings before the learned Election Tribunal or anywhere else. The results compiled in Form XVI-B attained finality.
(5) Para. 5 of the Election Petition is admitted to the extent that the petitioner filed a petition before the learned Election Commission, raising the same plea, but the learned Election Commission after hearing the parties refused to interfere. It is submitted that after final compilation and consolidation of results no authority had any jurisdiction to the recount."
Preliminary objection No, 4 raised in the written statement of Capt. (Retd.) Sanaullah.
"(4) That a bare perusal of the petition reveals that in its essence the petitioner desires re-counting of votes which, it is humbly submitted, is not within purview of section 39, sections 68 and 69 under which the election can be declared void. The said provisions of Act LXXXV of 1976 confine the field of adjudication with the Tribunal for the purpose of declaring the election to be void. Any prayer beyond the scope of the said provision of law is not entertainable and the petition deserves to be dismissed for this reason."
49. Objections of Peter John Sahotra and Capt. (Retd.) Sanaullah against the recounting of votes were taken notice of by my learned predecessor while dealing with their legal objections. Their objections against recounting of votes were disposed of by him as under:- "(7) With regard to the second and fourth objections, the jurisdiction of the Election Tribunal to order a recount is neither provided by any provision in the Representation of the People Act, 1976, or the Representation of People (Conduct of Elections) Rules, 1977. However, the power and jurisdiction of the Election Tribunal in appropriate cases to order a recount is inherent in the power of the Tribunal to do justice between the parties, unless through necessity or by implied construction it can be invoked out of any provision of law. In Muhammad Asghar v. Shah Muhammad Awan PLD 1986 SC 542 and Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad PLD 1986 SC 178, the Supreme Court has recognised such a jurisdiction and power of the Election Tribunal in appropriate cases. In one of the two cases it must not be forgotten that what the petitioner is claiming is not the recount of votes. What he is claiming is that the consolidated statements prepared by the Provincial Election Commissioners of Sindh and Punjab be rechecked, so that they tally with the certificates delivered to the Polling Agents of various candidates by the Presiding Officers of various areas within their jurisdiction. These objections, therefore, of the respondents have no merit and are rejected."
50. As stated earlier, Ilyas Khan (respondent No, 2) did not file any written statement. Question of his asking for a recount, in his pleadings, therefore, does not arise.
51. As is clear from his order, dated the 13th June, 1989, (announced on 20th June, 1989) and order dated the 20th June, 1989, although it was held by my learned predecessor that in appropriate cases recounting of votes could be resorted to yet in the election petitions in hand he simply ordered rechecking of consolidated statements of the count relating to the Punjab and Sindh with the help of certificates delivered to Polling Agents of the candidates. In other words, he did not order or permit general or partial recounting of votes by opening polling bags and examining the ballot-papers contained therein. When the first report of the Committee was remitted to the Committee by me with the direction that a fresh report be submitted after taking some further steps, I made order in this regard with the consent of the contesting parties. At that stage also, there was no demand for recounting of votes nor any direction or permission in this behalf was given by me. Seemingly, the adverse verdict of the Committee prompted the respondents to demand recounting of votes. The first report was in favour of Lt.-Col. (Retd.) W. Herbert petitioner and the second one was in his favour as well as in favour of Julius Salik petitioner. It is, therefore, manifest that demand for a recount is clearly an afterthought.
52. It is also noteworthy that even if the respondents had demanded recounting of votes in their written statements, they could not ask for it as a matter of right. There is lot of case-law on the point that before such a demand is allowed, the party praying for recount should satisfy the Tribunal, by producing evidence or placing other material before it, that he has a reasonable case, therefor. The cases of Kanwar Ijaz All v. Irshad Ali and 2 others PLD 1986 SC 483, Nasir Mahmood Mughal v. Muhammad Azam and others 1987 MLD 2526 (Election Tribunal Punjab), Ch. Muhammad Din v. Abdul Qayyum and 16 others 1987 SCMR 324, Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784 and Sardar Gul Khitab v. Javaid Iqbal Abbasi and 4 others 1988 CLC 945 are some of the several authorities in point. In the case of Kanwar Ijaz Ali, it was observed by the Election Tribunal that the petitioner had failed to make out a case for a recount. While recording its finding, the Tribunal (Mr. Justice Ch. Amjad Khan of the Lahore High Court) gave following reasons in the support thereof:- "the petitioner has not adduced any evidence in this regard. No definite particulars have been given in the application for recount as to the illegalities alleged to have been committed in the counting of the ballot-papers. I am of the humble opinion that a recount will not be granted as a matter of right but only on the basis of evidence (to the effect) that there are good grounds for believing that there has been a mistake in the counting."
' In result, the election petition was dismissed by the Tribunal and its decision was upheld by the Supreme Court. In the case of Nasir Mahmood Mughal, it was held by the Tribunal (Mr. Justice Muhammad Aslam Mian of the Lahore High Court) that general recounting of votes can be ordered if conditions laid down in section 39 of the Representation of the People Act are satisfied regarding which specific allegations are made and substantiated. His relevant observations are to the following effect:-- "(11) So far as the general recounting is concerned, the law about that as settled by the superior Courts is that through a petition, a general recounting cannot be asked for. It can be ordered if the conditions laid down in section 39 of the Representation of the People Act, 1976 are satisfied regarding which there have been made specific allegations and those have been substantiated."
' Subsection (6) of section 39 of the Representation of the People Act, which deals with recounting of votes by the Returning Officers, reads as follows:-- "(6) The Returning Officer may recount the ballot-papers:--
(a) upon the request of, or challenge in writing made by, a contesting candidate or his election agent, if the Returning Officer is satisfied that the request or the challenge is reasonable; or
(b) if so directed by the Commission, in which case the recount shall be held in such manner and at such place as may be directed by the Commission."
' In Ch. Muhammad Din's case, it was held by the Supreme Court that "some errors in the statements of count" could not be a valid ground for ordering recounting of votes nor the purpose of recount was to start a "fishing inquiry". Speaking for the Court Mr. Justice S.S. Jan observed as follows:-- "(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 Officers. 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 Officers 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 Officers. 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 Officers 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."
53. In Hakim Ali Bhatti's case recounting of votes was not allowed to establish "vague pleas not supported by material facts" or to fish out evidence to such pleas". In that case, the Tribunal (Mr. Justice Haider Ali Pirzada of the Sindh High Court) ruled as follows:-- "The petitioner has failed to establish that the count had not been properly made by most of the Presiding Officers. The allegations in the petition are more or less vague and general. They are lacking in material facts. The evidence adduced in regard to this issue also does not make out a prima facie case for a recount. When a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegations are of improper count by most of the Presiding Officers, petitioner must furnish prima facie proof of errors. True it is that a recount is not granted as of right but on evidence of good grounds for believing that there has been a mistake on the part of the Returning Officer (See Halsbury's Laws of England, 4th Edition, Volume 15 para.940 page 508) I am of the humble opinion that prima facie proof of error complained of must be given by the petitioner and it must further be shown that the errors or mistakes are of such magnitude that the result of the election so far as it affects the returned candidate is materially affected, then recount is directed. What was broadly alleged by the petitioner in the election petition was that most of the Presiding Officers committed mistakes in counting. Instances of mistakes are not set out in the petition. But an order for recount cannot be granted to support vague pleas made in the petition not supported by material facts or fish out evidence to such peas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for recount may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for recount."
54. Acting as a Tribunal, Mr. Justice Inayat Ilahi Khan, a Judge of the Peshawar High Court, decided the case of Sardar Gul Khitab. While so doing, he recorded the following opinion with regard to recounting of votes:-- "Further, it is well-settled that the prayer for scrutiny and recount of votes cannot be granted when there are general allegations that the counting was incorrect or invalid votes were taken into account without any supporting evidence. The relief of recounting cannot be granted merely on the possibility of there being an error."
55. As stated earlier, the contesting respondents have challenged genuineness of certain Polling Stations' lists and the electoral rolls, which are printed documents, by contending that they had been re-printed. In view of their said plea, it was submitted by learned counsel for the petitioners that as their (respondents') allegation in this regard was totally baseless, if a recount was directed but the result of the recount turned out to be against the respondents, there was likelihood of their assailing the genuineness of the ballot-papers also, without any justification whatsoever, and thus even the recounting of votes may prove to be an exercise in futility. It is noteworthy that learned counsel for the parties were unanimous that if a recount is ordered and it emerges therefrom that respondent No, 10, George Clement and respondent No, 21, Father Rufin Julius (who are occupying two of the four seats, reserved for Christians, in the National Assembly, and against whom there is no election petition) are not amongst the four top scorers in the order of number of votes secured by candidates in the election to the said four seats, they (George Clement and Father Rufin Julius) can also be unseated and instead the defeated candidates, who would be amongst the four top scorers, could be declared to be elected notwithstanding the fact that such defeated candidates have not filed election petitions. It was also submitted by the Chairman of the Committee that general recounting of votes, cast in the entire constituency, which means the whole of the country, would be a time consuming exercise and, therefore, the same may not be resorted to. Similar remarks were recorded by the Committee in its first report in the following words:-- "(27) However, a few of the candidates have demanded that the whole exercise should be done on the basis of polling record by counting the ballot-papers,It may kindly be noted by the learned Election Tribunal that this will be a long-drawn exercise. Which will require continuous daily working for many months because of special nature of non-Muslim seats on all Pakistan basis. Thus, such an exercise may not be practicable and cannot be resorted to."
(Underlining is mine).
' Looking at all these factors, a recount should not be lightly ordered.
56. In view of the aforementioned case-law and the reasons given above, therefore, I reject the plea for recounting of votes.
57. As for differences in the final results furnished by the Committee in its reports, to which exception was taken by Mr. Bashir Ahmad Ansari, it was convincingly explained by the Chairman of the Committee that the first report was made by the Committee without inspection of some important record, for examination whereof permission of the Tribunal was sought. It was thus an incomplete report as observed by me in my order, dated the 29th October, 1989, by which stay order was refused by me. The second report was submitted by the Committee after examination of the above record in pursuance of the permission accorded by me, and by making further investigation in view of the miscellaneous petitions of Julius Salik petitioner. The second report was, therefore, substantially different from the first one, especially to the extent of Julius Salik petitioner.
According to the first report Capt. (Retd.) Sanaullah got more votes than Julius Salik but position in the second report was to the contrary. Exercise which reversed the position of Capt. (Retd.)
Sanaullah was carried out by the Committee in obedience to a consent order passed by me. The attorney of Capt. (Retd.) Sanaullah as well as his learned counsel had also agreed to the making of that order. The Chairman of the Committee pointed out that there was negligible difference between the second report and the supplementary report because of further examination carried out by the Committee on the filing of 43 Forms by Capt. (Retd.) Sanaullah, at the belated stage of the proceedings. In the supplementary report too, Capt. (Retd.) Sanaullah trailed behind Julius Salik. As for the other election petitioner, namely, Lt.-Col. (Retd.) W. Herbert he is at the top in all the three reports. No doubt, there is slight variation in the number of votes awarded to him in each report but this is also due to the developments enumerated above. There are thus cogent reasons for differences in the three reports of the Committee and as such they are of little consequence.
58. I do not see much force in the argument of Ch. Muhammad Ashraf, learned counsel for Capt.
(Retd.) Sanaullah, that the Committee did not show due regard to the case of Capt. (Retd.)
Sanullah. A perusal of all the reports submitted by the Committee would reveal that whatever was said on behalf of Capt. (Retd.) Sanaullah was taken care of by the Committee. It has also made increase in the votes of the respondents where they were entilted to it, and it has ordered reduction in the votes of the petitioner where such reduction was necessary. For instance, in its supplementary report, while dealing with two Forms relating to the Punjab, which were filed by Capt. (Retd.) Sanaullah at a very late stage, the Committee reduced the votes of Lt.-Col. (Retd.) W.
Herbert petitioner by 2 and increased those of Capt. (Retd.) Sanaullah and Peter John Sahotra respondents by 11 and 7 respectively. In the said report, the Committee also dealt with some objections raised by Ch. Muhammad Ashraf, learned counsel for Capt. (Retd.) Sanaullah. In paragraph 11 of its first report the Committee took notice of the plea of Capt. (Retd.) Sanaullah as follows:-- "11. The Committee has doubts that results of polling stations No,22 and 24 have been omitted by the Assistant Returning Officer concerned in the statement of count for Constituency No,NA-90 because 'Nil' entries have been shown against the abovementioned polling stations whereas according to photo copies (Annexure F&G) produced before the Committee by the representative of Capt. (Retd.) Sanaullah 11 and 41 valid votes have been polled at the above-said polling stations, respectively. Suitable order may also be passed by the Election Tribunal in respect of these two polling stations."
' In paragraph 17 of its second report too, the Committee attended to objections raised by Mr. John Peter Wilson on behalf of Capt. (Retd.) Sanaullah relating to the opening of polling bag of Polling Station No,94 in Muslim Constituency No,NA-186 Karachi Central-I. I am, therefore, unable to accept the argument that the Committee did not give even-handed treatment to the parties.
59. As for the opening of two polling bags, it may be pointed out that these bags relate to Polling Station No,44 in Constituency No,NA-94 Lahore-III and Polling Station No,94 in Constituency No,NA- 186 Karachi, Central-I. It was explained by the Chairman of the Committee that the said bags were opened to remove ambiguities with regard to the result of voting at the said Polling Stations.
Relevant extract from second report of the Committee is as follows:--
(8) The Form XIV relating to Polling Station No,44 falling in Muslim Constituency No,NA-94 Lahore-III appeared to be doubtful because it indicated the number of votes obtained by the Muslim candidates with an ambiguous entry at its bottom being read as under:- {{URDU TEXT}} 86/only Julius Salik" Mr. Julius Salik verbally claimed that he had obtained 86 valid votes at this polling station. In order to clear any doubts, the polling bag relating to this Polling Station was called for so that the original ballot-papers polled by the candidates could be inspected. The Polling Bag was withdrawn from the Treasury by the Deputy Election Commissioner, Lahore Division, and was made available to the Committee on its verbal orders at 3.00 p.m. On the next day i.e, 28-1-1990. The position of votes polled by the various candidates at this Polling Station emerged as under:--
(1) Mr. Julius Salik = 44
(2) Mr. Jams M. = 01
(3) Mr. M.L. Michal = 04
(4) Capt. (Retd.) Sanaullah = 07
(5) Mr. Ilyas Khan = 01
(6) Lt.-Col. (Retd.) W. Herbert = 02
(7) Mr. Nazir S. Bhatti = 01
(8) Mr. Robin Masih = 01
(9) Father Rufin Julius = 17
(10) Mr. Nasir Mahmood Khokhar = 01 Total: = 79 ' The above result was recorded by the Committee on the back of a copy of Form XIV, which previously showed 86 votes polled by Mr. Julius Salik. The photo copy of the said Form (both sides) may kindly be seen at Annexure "D". The above result has accordingly been incorporated in the result sheet compiled afresh by the Committee.
13. Thereafter, the record (Form XIV) relating to Polling Station No,94 APWA GGSS falling in Muslim Constituency No,NA-186 Karachi Central-I was checked. The first entry showing 237 valid votes polled by a candidate whose name was mentioned at Sl. No,1 appeared to be doubtful and ambiguous. The name of the candidate was not clear. A copy of Form XIV relating to this PS is at Annexure "0". Mr. Julius Salik claimed that this entry related to him and that he had polled 237 votes at this Polling Station. This situation demanded the inspection of the original ballot-papers. Thus, the Committee was forced to call for the Polling Bag to be made available to it at Karachi on the 3rd February, 1990. The PEC, Sindh was accordingly requested over telephone to make available the polling bag to the Committee at Karachi on the 3rd February, 1990."
' In C.M. No, 4 of 1989, Julius Salik also, inter alia, asked for the following record:-- "(viii) Statement of count in Form No,XIV of Polling Station No, 44/6 Municipal Corporation Girls Training Model School Dars Mian Wadda, Moghalpura NA-94 Lahore alongwith consolidated statement of accounts in Form XVI.
(x) Statement of count in Form No,XIV relating to polling stations Nos. 74, 94, NA.-186 Karachi alongwith consolidated statement of count in Form No,XVI." Besides, he made a petition to the Chief Election Commissioner with regard to the said Polling Stations, on 6th August, 1989, and the Chief Election Commissioner returned the application for being filed before this Tribunal. As stated above, in its first report it was submitted by the Committee that real position in respect of certain areas could not be correctly ascertained without examining some more record. I, therefore, allowed the Committee to examine the record, for which permission was sought by it in the first report, and also directed the Committee to deal with the miscellaneous petitions of Julius Salik. It was in the aforesaid circumstances that the Committee opened two polling bags, perhaps, in good faith, for the reasons stated by it, with a view to having a true picture of things; but since there was no clear direction or permission by my learned predecessor or by myself in this regard, I would not approve of the opening of the said bags by the Committee especially when the contesting respondents were not agreeable to general recounting of votes much less the partial recounting thereof, by opening some of the polling bags. In the written statement filed by Peter John Sohatra in Election Petition No,38 of 1988, after opposing recounting of votes, it was stated by him that "strictly in the alternative and without prejudice to what has been submittd above, if at all recount is to be taken which, however, the answering respondent does not concede, the ballots in the entire Constituency be recounted". In his objections to the first report of the Committee, it was urged by Capt. (Retd.) Sanaullah that there is no provision in law for recounting of votes in the circumstances of the election petition before this Tribunal (particularly for non-Muslim seats); but "if at all, recounting of votes was permissible under any provision of law, in the present case, the recounting of entire votes (each ballot paper cast in the entire country) would have been recounted in the interest of justice." Similar plea was raised by him as well as by Peter John Sahotra in their objections to the second report of the Committee. In the miscellaneous petitions made by him, even Julius Salik had not prayed for the opening of polling bags relating to the said polling stations Nos. 44 and 94. In its first report although the Committee sought permission to examine some record yet there was no request or suggestion with regard to opening of polling bags of the said two Police Stations. In this state of affairs, opening of the two polling bags was not in order. I would, accordingly, decide the matter on the assumption that the bags in question were not opened. In other words, I would exclude from consideration the votes awarded to the candidates on the opening of the polling bags of the said Polling Stations Nos. 44 and 94 and instead take into account the statements in Form-XIV relating to those Polling Stations.
60. Allegation of learned counsel for Capt. (Retd.) Sanaullah that polling bag relating to Polling Station No, 94, in Constituency No,NA-186 Karachi, Central-I, was torn, was controverted by learned counsel for the petitioners as well as by the Chairman of the Committee. No application was made by Capt. (Retd.) Sanaullah or by his representative, before the Committee, at the time of opening of the said bag, stating that it was torn. Report of the Committee also does not say that any verbal objection was raised in this regard. Capt. (Retd.) Sanaullah did not produce any evidence to substantiate his allegation. I am, therefore, unable to accept his plea that the said polling bag was torn before it was opened. Assuming, without conceding, that it was torn, it would be immaterial because I am going to take into consideration the votes recorded in Form XIV relating to the said Polling Station No,94 by overlooking the votes awarded by the Committee on opening the polling bag of the above Polling Station.
61. As indicated above, the Committee had pointed out that Forms relating to certain Polling Stations in the Province of Sindh, which were produced by Capt. (Retd.) Sanaullah, were fake because according to the relevant Polling Stations lists and the electoral rolls there were no Christian voters in the areas assigned to the said Polling Stations. Explanation given by Ch. Muhammad Ashraf, learned counsel for Capt. (Retd.) Sanaullah, in this regard, namely, that the said lists and the electoral rolls were re-printed does not appeal to reason. He levelled a very serious allegation which cannot be accepted without strong evidence; but there is not an iota of evidence in support thereof. The least he could do was to place on record the Polling Stations' lists and the electoral rolls which were with Capt. (Retd.) Sanaullah at the time of poll and then show that they were different from those on which the Committee has placed reliance. This, however, he had failed to do. Since reasoning of the Committee in support of its finding that the Forms in question are fake is quite impressive, I uphold the verdict of the Committee in the matter.
62. Mr. Abid Hassan Minto, learned counsel for Lt.-Col. (Retd.) W. Herbert, pleaded that criminal proceedings may be launched against Capt. (Retd.) Sanaullah for fabricating the said Forms but since Capt. (Retd.) Sanaullah is dead, I would not like to say anything on this point.
63. Strangely enough, learned counsel for Capt. (Retd.) Sanaullah did not utter a word against observations of the Committee that some of the Forms produced by Capt. (Retd.) Sanaullah were "repeatedly attached as enclosures at different sequences" of his application. Similarly, he did not dispute the Committee's remarks to the effect that in certain cases figures as mentioned in Forms, attached with Capt. (Retd.) Sanaullah's application, were different from those given in the Forms on the ARO's record. Thus, in a way, he accepted its report with regard to the repetition of some Forms and the aforementioned variation in the figures.
64. The very fact that Capt.(Retd.) Sanaullah suddenly produced 43 Forms at a very late stage of proceedings (after the second report, when the matter was being argued), creates serious doubt with regard to the genuineness thereof. No explanation whatsoever has been offered in the application accompanying the said Forms or otherwise, for such a long delay in placing the Forms on the record. Their late production was also objected to by learned counsel for the petitioners.
65. For the aforementioned reasons, therefore, I am inclined to agree with the findings of Committee in regard to 43 Forms belatedly produced by Capt. (Retd.) Sanaullah.
66. Now, I attend to the discrepancy in entry at Serial No,37 of the statement, annexed to the supplementary report of the Committee, to which reference was made by Ch. Muhammad Ashraf, learned counsel for Capt. (Retd.) Sanaullah. This entry relates to Form 26(38), filed by Capt. (Retd.)
Sanaullah, in respect of Polling Station No,24 (Govt. Primary School, Chak No,41) in Constituency No,NA-180, Sanghar-I. According to the said Form, produced by Capt. (Retd.) Sanaullah, the contesting parties secured the following votes:--
67. Peter John Sahotra = 11
68. Capt. (Retd.) Sanaullah = 148
69. Lt.-Col. (Retd.) W. Herbert = 17
70. Julius Salik = 3 ' In Form-XIV (Annexure C-XLII to the supplementary report), which was on the ARO's record, 57 votes were shown to have been polled. Names of all the candidates are not given in this Form.
Number of votes secured by each candidate is also not indicated except that there is entry of one challenged vote against the name of Major (Retd.) Victor Samuel. In the preliminary consolidated statement in Form XVI-A (Annexure C-XLIV to the supplementary report), however, there is no mention of 57 votes of Polling Station No,24 and only one vote has been entered in column 17, relating to Major (Retd.) Victor Samuel, against the above Polling Station. No vote has been awarded to any other candidate in respect of the said Polling Station. Grievance of Ch. Muhammad Ashraf, learned counsel for Capt. (Retd.) Sanaullah, is that polling bag of the said Polling Station No,24 was not opened. According to him,it would have been on the opening of the said polling bag that it could be ascertained as to how many votes, out of 57 votes, were obtained by each candidate. As stated earlier, Ch. Muhammad Ashraf, learned counsel for Capt. (Retd.) Sanaullah, had objected to the opening of polling bags of the aforementioned Polling Stations Nos. 44 and 94.
It does not, therefore, lie with him to take exception to the omission of the Committee to open the polling bag of the said Polling Station No,24. He cannot be allowed to blow hot and cold in the same breath. When asked as to why the polling bag in question was not opened, it was stated by the Chairman of the Committee that since Form 26(38), produced by Capt.(Retd.) Sanaullah in respect of the said Polling Station No,24, was fake the Committee did not open the polling bag thereof. As stated earlier, it was submitted by Mr. Abid Hassan Minto, learned counsel for Lt.-Col. (Retd.) W.
Herbert, that with a view to clinching the matter, he would have no objection if all the 57 votes of the said Polling Station No,24, mentioned in Form XIV on the ARO's record, were awarded to Capt.
(Retd.) Sanaullah.
67. It is difficult for me to appreciate the reason given by the Chairman of the Committee for not opening polling bag of the said Polling Station No,24. Even if the Form relating thereto, which was tendered by Capt. (Retd.) Sanaullah, was fake, the Committee had itself noticed inconsistency in the official record, namely, the statement of the count in Form-XIV on the ARO's record and the preliminary consolidated statement of the result of the count in Form XVI-A, containing a mention of said Polling Station No,24. If polling bags of aforementioned Polling Stations Nos. 44 and 94 were opened on the plea of removing ambiguities relating thereto, why similar care could not be taken of the above inconsistency in connection with the said Polling Station No,24. This question has not been answered by the Committee in its supplementary report or otherwise. To my mind, the only justification for omission of the Committee to open polling bag of the said Polling Station No,24 is that there was no direction or permission of this Tribunal for opening that polling bag, and the contesting respondents had objected to the opening of polling bags of the said Polling Stations Nos. 44 and 94 earlier. In view of this justification, therefore, I do not take exception to the omission of the Committee to open the polling bag of the said Polling Station No, 24.
68. I have already disclosed my mind that I would like to decide the matter by excluding from consideration the votes awarded by the Committee, by counting ballot papers contained in polling bags of the said Polling Stations Nos.44 and 94, which were opened by the Committee without having been authorised by this Tribunal to do so. I have also pointed out that the Committee was justified in not opening polling bag of the said Polling Station No,24, inter alia, for the reason that it was not directed or permitted to do so. This, however, I feel, will make little difference to comparative position of contesting parties as set out in the supplementary report of the Committee. This report is based on second report of the Committee which was submitted by the Committee by taking into consideration what was found by it on opening the polling bags of the said Polling Stations Nos. 44 and 94. While ignoring the votes awarded to the contesting parties on the opening of the said two bags, the correctness or otherwise of the consolidated statements would have to be determined on the basis of statements of the count in Form-XIV, prepared for the Polling Stations to which the polling bags in dispute relate. According to Form-XIV (Annexure `D' to the second report of the Committee) relating to the said Polling Station No,44, Julius Salik alone had secured all the Christian votes numbering 86, cast at that Polling Station. Position of From-XIV in respect of the aforementioned Polling Station No,94 is not clear. This Form is Annexure '0' to the second report of the Committee. The candidate mentioned at the top secured 237 votes. His name is not clearly legible. Julius Salik claims that it is his name but in the statement of the count in Form XVI-A (Annexure `P' appended to second report of the Committee) the said 237 votes were awarded to another candidate, namely, Issac Jimmy Dean in column 6(F). That name at the top cannot be the name of Lt.-Col. (Retd.) W. Herbert, Peter John Sahotra or Capt. (Retd.) Sanaullah. In the said statement in Form-XIV, the names of Lt.-Col. (Retd.) W. Herbert, Capt. (Retd.) Sanaullah and Peter John Sahotra are at Serial Nos. 3, 13 and 19 respectively. Votes secured by Lt.-Col. (Retd.)
W. Herbert are 20. As for Capt. (Retd.) Sanaullah and Peter John Sahotra one vote was obtained by each of them. Name of Julius Salik does not appear to be there in Form XIV relating to Polling Station No,
94. This means that he got no vote at that Polling Station.
69. On opening of polling bags of Polling Stations Nos. 44 and 94 the contesting candidates before me got following valid votes, as spelt out at the back of Annexure 'D' (Form XIV relating to Polling Station No, 44), and in Annexure `OB' (Form XIV in respect of Polling Station No, 94) appended to the second report of the Committee:-- Polling Station No, 44
(1) Lt.-Col. (Retd.) W. Herbert = 2
(2) Julius Salik = 44
(3) Peter John Sahotra = Nil
(4) Capt. (Retd.) Sanaullah = 7 Polling Station No, 94
(1) Lt.-Col. (Retd.) W. Herbert = Nil
(2) Julius Salik = 232
(3) Peter John Sahotra = 1
(4) Capt. (Retd.) Sanaullah = 4
70. By taking into account the said votes, the Committee furnished the final result, on an all Pakistan basis, in the supplementay report, as under:-
(1) Lt.-Col. (Retd.) W. Herbert = 17,376
(2) Julius Salik = 16,551
(3) Peter John Sahotra = 16,357
(4) Capt. (Retd.) Sanaullah = 15,898
71. Now, if the advantage accruing, or disadvantage caused, to any of the contesting parties on the opening of the two bags in respect of the said Polling Stations Nos. 44 and 94 is to be overlooked and we are to go by entries in the statements in Form XIV relating to the said Polling Stations Nos.
44 and 94, the position will emerge as follows:--
72. As already stated, if Capt. (Retd.) Sanaullah had been given the benefit of aforementioned entry at Serial No, 37, relating to the said Polling Station No,24, in respect of his Form 26(38), which was found to be fake by the Committee, he would have gained 57 votes in terms of the offer of Mr. Abid Hassan Minto, learned counsel for Lt.-Col. (Retd.) W. Herbert. With the addition of the said 57 votes to 15,898 votes, given to him in the supplementary report of the Committee, by taking into account the votes awarded to different candidates on opening of the polling bags of the said Polling Stations Nos. 44 and 94, the total number of his votes would be 15,955 (15,898 + 57). According to calculations made by me in paragraph 71 at prepage (page 69), by taking into consideration the votes mentioned in Form XIV, against the name of each candidate, instead of taking into account the votes awarded by the Committee on opening the said two bags, Capt. (Retd.) Sanaullah gets 15,888 votes. If 57 votes are added thereto, his score would go upto 15,945 (15,888 + 57) votes. Votes obtained by Lt.-Col. (Retd.) W. Herbert, Julius Salik and Peter John Sahotra each are more than 16,000, both in the supplementary report of the Committee as well as according to the aforesaid calculations by me. In any case, therefore, Capt. (Retd.) Sanaullah remains at No, 4 in the matter of scoring the votes.
73. As stated at the outset, there are four seats in the National Assembly of Pakistan which are reserved for Christians. Two of those seats are held by George Clement and Father Rufin Julius, who are respondents Nos. 10 and 21 respectively. According to the reports submitted by the Committee, they secured far more votes than any of the candidates. There is also no dispute with regard to their election. In the election petitions before me, election of Capt. (Retd.) Sanaullah and that of Peter John Sahotra has been challenged. George Clement and Father Rufin Julius are, therefore, not affected by any exercise done in the election petitions in hand.
74. It has already been stated that no evidence was produced in the election petitions in hand.
There are only the reports of the Committee constituted by this Tribunal to look into the controversy raised in these petitions. Election dispute in an unreported case Qaiser Ifrahim Saroia v. Peter Gill and others (Civil Appeal No, 766 of 1988), which related to Christian seats in the Provincial Assembly of the Punjab, was ultimately decided on the basis of report of the Chief Election Commissioner who was directed, by the Supreme Court, to recount the votes with the assistance of two officers of the Pakistan Election Commission. As for the Committee constituted in this case to examine the grievances voiced by the petitioners before me, it was comprised of the two senior officers of the Pakistan Election Commission. Its Chairman, Mr. Hassan Muhammad, is a Joint Secretary of the Pakistan Election Commission. The Member of the Committee, Ch. Bashir Ahmad, was Deputy Secretary of the Commission at the time when the Committee was formed. At present, he is Provincial Election Commissioner of Balochistan. Being the officers of the Pakistan Election Commission, which is an independent organisation set up under the Constitution, they have no political affiliations. They are experts in the field of elections. The Committee has taken pains to assist this Tribunal, in its own way, in resolving the controversy involved in the election petitions before me. Towards the close of the proceedings, the Chairman of the Committee, Mr. Hassan Muhammad, who appears to be a religious person, voluntarily stated, on Quranic oath, that he had carried out the mandate given to him by this Tribunal justly and fairly without being influenced by any extraneous consideration. To my mind, nothing substantial has been pointed out against the final verdict of the Committee except that it was given after opening polling bags of the aforementioned Polling Stations Nos. 44 and 94 without having been directed or permitted by this Tribunal. Matter relating to those bags has already been discussed at great length.
75. As indicated earlier, according to final verdict of the Committee, as embodied in its supplementary report, which, in effect, is its fmal report, out of contesting parties before me, the highest scorers got the following votes on an all Pakistan basis:---
(1) Lt.-Col. (Retd.) W. Herbert = 17,376
(2) Julius Salik = 16,551
(3) Peter John Sahotra = 16,357
(4) Capt. (Retd.) Sanaullah = 15,898 ' This result was furnished by the Committee after opening the said polling bags of Polling Stations Nos. 44 and 94. For reasons stated earlier, I have not approved of the opening of the said polling bags and would like to proceed on the assumption that they were not opened. I have, accordingly, made my own calculations by taking into account votes recorded in the statements of the count in Form XIV, prepared for the said two Polling Stations, instead of taking into consideration the votes awarded by the Committee to the candidates on opening the said polling bags. According to my calculations, the highest scoring candidates on an all Pakistan basis are as under:-
(1) Lt.-Col. (Retd.) W. Herbert = 17,394
(2) Julius Salik = 16,361
(3) Peter John Sahotra = 16,357
(4) Capt. (Retd.) Sanaullah = 15,888
76. Thus, the two top scorers are Lt.-Col. (Retd.) W. Herbert and Julius Salik, both according to final award of the Committee, as embodied in its supplementary report, as well as according to my calculations. I would, however, for reasons spelt out earlier, prefer to go by my own calculation and hold that in the final compilation and consolidation statement of the result of the count prepared for the whole of the country, votes secured by the said four contesting candidates should have been shown according to my calculations. As explained earlier, even the award of the aforementioned 57 votes to Capt. (Retd.) Sanaullah, in terms of the offer of Mr. Abid Hassan Minto, learned counsel for Lt.-Col. (Retd.) W. Herbert, would not give him an edge over any of the three top scorers. Looked from any angle, amongst the above our candidates, Lt.-Col. (Retd.) W. Herbert is the top scorer while Julius Salik is the second top scorer and as such they, instead of Peter John Sahotra and Capt. (Retd.) Sanaullah, deserve to occupy the two seats in dispute in the National Assembly.
77. In this view of the matter, I declare the election of Peter John Sahotra and Capt. (Retd.)
Sanaullah to be void. I also declare Lt.-Col. (Retd.) W. Herbert and Julius Salik to have been duly elected as members of the National Assembly. Election petition filed by Lt.-Col. (Retd.) W. Herbert as well the election petition of Julius Salik are, accordingly, accepted.
78. It was prayed by Mr. Abid Hassan Minto that lavish costs may be awarded to the petitioners due to the filing of fake and false Forms by Capt. (Retd.) Sanaullah, at the fag-end of the proceedings, with a view to thwarting justice. I am, however, not inclined to allow his prayer because Capt.
(Retd.) Sanaullah is no longer alive and the trouble caused to the petitioners, in fact, arose out of errors in the consolidated statements which were prepared by the functionaries of the Pakistan Election Commission. The respondents are not to blame for these errors inasmuch as there is no evidence to the effect that they had manipulated incorrect compilation of consolidated statements. Also, some of the points canvassed by the contesting respondents have found favour with me although the ultimate decision is against them. In the circumstances, I do not accede to the prayer made by Mr. Minto, and leave the parties to bear their own costs.
79. As provided in section 75 of the Representation of the People Act, this order shall be treated as an ex parte order against late Capt. (Retd.) Sanaullah.
(Sd.)
(Muhammad Ilyas), Election Tribunal, Punjab, Lahore.
' Announced in open Court in the presence of the following:-- ' Mr. Muhammad Rashid, Lower Division Clerk, Office of the Provincial Election Commissioner, Lahore, on behalf of respondent No, 1.
Julius Salik petitioner.
' Lt.-Col. (Retd.) W. Herbert petitioner in the connected election petition (Election Petition No, 38 of 1988).
' Mr. S.M. Javid, Advocate, for late Capt. (Retd.) Sanaullah (respondent No, 22).
2. Since respondent No, 9 (Peter John Sahotra) has been adversely affected by this order, operative part of the order shall be conveyed to him (at his home address and at the National Assembly address) as also to both of his learned counsel and the attorney telegraphically as well as by means of registered post, acknowledgment due, at the expense of the Pakistan Election Commission.
3. Respondent No, 2, Ilyas Khan and his learned counsel shall also be informed as aforesaid.