' The Election Petitions Nos.85 and 86 of 1993 raise exactly the same controversy as to the counting of the votes wrongly and illegally, therefore, the same are being taken up together.
2. The petitioner and respondents contested the general elections on 9-10-1993 for the Provincial Assembly for the five minority seats reserved for Christians. The respondents Nos.3, 13, 16, 17 and 42 secured the highest number of votes and were declared elected vide notification dated 18-10-1993.
3. The petitioners have challenged the election of respondent No,8 through these election petitions.
It is prayed that the petitioners be declared having been elected instead of Dr. Sheela B. Charles.
These petitions were filed before the Election Commission of Pakistan and the same have been sent to this Tribunal vide order dated 14-12-1993 by the Election Commission for decision in accordance with law.
4. The petitions were placed before this Tribunal on 20-12-1993 when notices were issued to the respondents for 9-1-1994. Most of the respondents remained unserved. It was not possible to serve all of them through ordinary process, therefore, they were ordered to be served through publication of notice in the Daily `Nawa-i-Waqr in addition to the notice through registered post, acknowledgement due for 16-2-1994. The notice was duly published but only respondents Nos.1, 2, 3 and 47 etc. Appeared while rest of the respondents still remained absent, therefore, they were proceeded ex parte.
5. The contest is only between the petitioner, the respondents Nos.3 and 47, who has filed the connected Election Petition. The others are only pro forma respondents. The respondent No,47 has filed the written statement alongwith the documents. The petitioners in both the election petitions have claimed that the votes polled in their favour have not been properly reflected in Form XVI-B and while preparing the official result. It is argued that the Assistant Returning Officer submitted the result in Form XVI-A on the basis of which the result was to be prepared by the Returning Officer but in order to deprive them of the seat the results in respect of about two dozen constituencies were illegally changed to detriment of the petitioners. The petitioner Fateh Jang in support of this contention has placed on record certified copies of Form XVI-A. It is added that according to the unofficial result Fateh Jang was declared elected and the same result was supplied to the electronic media and press as is evident from clipping of the Daily "JANG". However, subsequently the result was illegally and mala fide changed in the office of Returning Officer and as a result thereof the respondent No,3 was declared elected instead of the petitioner. It is maintained that the result was prepared by the Returning Officer at the back of the petitioner in utter disregard of the Rule 91 of the Representation of the People (Conduct of Election) Rules, 1977. It is added that the petitioner was mala fide kept unaware of the date and time of the counting by the Returning Officer.
6. The learned counsel for the petitioner in Election Petition No,86 of 1993 argued that the votes of his client as well as Dr. Sheela B. Charles-respondent No,7 and Fateh Jang-respondent No,8 have not been counted properly and there are patent errors and omissions in preparation of the final result on the basis of Form XVI-A.
7. Both the petitioners have claimed that since they secured highest votes next to No,4, therefore, they should have been declared elected for the last seat instead of Dr. Sheela B. Charles.
8.
8. On the other hand, the learned counsel for Dr. Sheela B. Charles argued that recount of the ballots is not the solution. He vehemently argued that before feeding of the result to the computer the Returning Officer did not allow access to any unauthorized person to Form XVI-A. However, after the result was fed to computer the security was not that tight and the forms have been tampered with. It is submitted that Head Clerk of the Election Commission, not named, approached his client to settle the deal so she could not be unseated but she did not accept any suggestion from him. It is added that thereafter said Head Clerk issued the certified copies of Form XVI-A placed on record by Fateh Jang. The same are tampered with and not correct. On the legal plans it is argued that the recounting cannot be directed until illegal and corrupt practices are alleged and proved. In this behalf, the learned counsel has referred to section 68 after referring to sections 39(6) and 103-AA of the Representation of the People Act, 1976 (hereinafter' to be referred as Act of 1976). It is argued that at the best ballots can be ordered to be produced in view of the provision of section 46 of the Act of 1976. The learned counsel in this behalf proceeded to refer to judgments reported as Kanwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 SC 483), Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another (PLD 1986 SC 542), Hakim All Bhatti v. Qazi Abdul Hakim and others (1986 CLC 1784) and Peter Gill v. Returning Officer and others (1991 CLC 169). The arguments are concluded with the submission that no fishing exercise in the form of recount of the ballots can be ordered because if there was grain of truth in the allegations levelled by the petitioners in their petitions then they should have specified and pin-pointed the constituencies. The last submission is that whether the result has been legally and correctly prepared on the basis of Form XVI-A or not is the question of fact, which should be proved through evidence and the learned counsel in this behalf proposed that before ordering any re-count of the ballots record of the Election Commission should be sent for.
9. On the other hand, Mr. Nafeer A. Malik, Advocate on behalf of Fateh Jang-petitioner submitted that section 39(6) of the Act, 1976 is not applicable in case of non-Muslim seats. In this behalf, he has referred to subsection (4) of section 47-A. It is added that the minority seats have been dealt separately under Chapter V-A of Act 1976. It is submitted that the case of the petitioner is covered by section 69 of the Act, 1976, therefore, the petitioner need not have alleged illegal and corrupt practices. While summing up the arguments Mr. Bilal Hassan Minto, Advocate submitted that the petitioner need not alleged corrupt and illegal practices where he has prayed that he be declared as successful candidate. In this behalf, he has referred to judgment of Hon'ble Supreme Court reported as Syed Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 SC 6). It is argued that the provisions of section 39(6) are only permissive and this Tribunal is not debarred from ordering recount of the ballots. It is added that there is nothing wrong with the ballots as is clear from the fact that none of the parties have challenged or raised any controversy in respect of the same. The petitioner has not claimed recounting rather prayed for declaring Nhim successful on the basis of computation of votes as given in Form XVI-A. The arguments are concluded with the submission that the procedure to be adopted by this Tribunal has been provided in section 62 while powers are specified in section 64 of Act, 1976. It is, therefore, maintained that this Tribunal has all the powers of a Civil Court trying civil suit under C.P.C. As such this Court can order recount under section 151, C.P.C. Since the discrepancy is only alleged in the computation of the votes at the level of Returning Officer and that too in respect of limited number of constituencies, therefore, it is not a fishing exercise rather only way to do justice between the parties. The learned counsel in this behalf has referred to Malik lqbal Ahmad Khan Langrial v. Rai Ahmad Nawaz and others 1990 CLC 595.
10. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record and precedent cases. The Presiding Officers, in accordance with the procedure for preparation of result, at the end of the polling counted the votes, prepared statement in Form XIV and sent it along with the ballot papers to the Assistant Returning Officers, who prepared consolidated statements of the polling stations located within their jurisdiction in Form XVI-A and in turn sent the same to the Returning Officer, who prepared consolidated result in Form XVI-B, which was fed to the computer maintained by the Election Commission of Pakistan at Islamabad. The result so prepared was notified in the official Gazette.
11. In the present petitions there is no dispute as to the votes polled. The petitioners in their election petitions have alleged illegal and wrong counting by the Returning Officer. The claim of the petitioners is that the result be computed on the basis of Form XVI-A and each of them has prayed that he be declared as successful instead of Dr. Sheela B. Charles. This prayer is resisted, amongst others, on the ground that since in the election petitions corrupt and illegal practices, as required under section 68, have not been alleged, therefore, question of re-counting does not arise. The argument is clearly misconceived because the election of a returned candidate could be challenged by any of the contesting candidates through election petition on three sets of grounds specified in sections 68, 69 and 70 of Act, 1976 while the Tribunal, as per section 67 of the Act of 1976, can make either of orders:---
(i) dismiss the petition, or
(ii) declare the election of returned candidate to be void; or
(iii) declare the election of turned candidate to be void and the petitioner or any other contesting candidate who has been duly elected; or
(iv) declare the election as a whole to be void.
' The cumulative effect of section 67 read with sections 68, 69 and 70 is that the election could be challenged on three sets of grounds and the Tribunal can grant either of the relief as detailed above. It is clear from the election petitions that the contesting candidates have prayed that actually they secured more votes than the returned candidate, therefore, the election of the returned candidate be declared void and instead each one of them may be declared as elected.
This way, if it is established that either of the petitioners polled more votes than the returned candidate then the election of the returned candidate is to be declared void and candidate securing more votes than her to be declared as returned. This is squarely covered by clause (c) of section 67(1) of the Act of 1976 while the ground for this relief are contained in section 69, which reads as under:--- "69. Ground for declaring a person other than a returned candidate elected.---The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contestin candidate was entitled to be declared elected."
' It would be seen that while invoking the powers of the tribunal under section 69 there is no condition precedent for the petitioner allege and prove illegal and corrupt practices as in the case when election of the returned candidate is to be declared void under section 69. It is only the 'satisfaction' of Tribunal which is the requirement of the section and nothing more. Therefore, the objection that the petition cannot proceed in the absence of allegation of corrupt and illegal practices is clearly misconceived. Mr. Bilal Hassan Minto, Advocate rightly referred to the judgment in the case of Syed Saeed Hassan (supra), wherein it was held as under:--- "No doubt unlike the provision contained in section 67, where the election has to be declared as wholly void, having been materially affected by either the non-compliance with the provisions of the Ordinance and the rules or the prevalence of extensive illegal practices at the election, no such conditions have been laid down in the provision contained in section 66 reproduced above and from its plain reading, it is clear that for the award of the seat to another candidate only two requirements are to be satisfied: firstly, the petitioner or any of the respondents should claim the seat, and secondly, the Tribunal should be satisfied as to his entitlement to be so declared elected, which in turn would depend on several considerations including recriminatory petition and the evidence led in support of the allegation contained therein. For a proper and reasonable interpretation of the provision, one has to closely examine in the first instance the connotation and implication of the two key expressions 'satisfaction' and 'entitlement'."
' It is needless to add here that section 69 of the Act of 1976 is verbatim copy of section 66 of the National and Provincial Assemblies Ordinance (XIII of 1970). The learned counsel for the returned candidate while referring to the contents of the election petition candidly admitted that Ch. Fateh Jang in his petition has referred to illegal acts but not the other petitioner. Now if one petition is competent the election of the returned candidate would be subject to scrutiny because this Tribunal can declare either the petitioner or any of the contesting candidates as elected in view of the provisions of section 67 read with section 69 of the Act of 1976.
' The prayer of the petitioners is that the votes should be counted on the basis of the entries in Form XVI-A while according to the learned counsel for the returned candidate, these certified copies are not correct. In the circumstances, there is no option or way open to determine the controversy except to order recounting. It is needless to add here that none of the parties either in pleadings or during the arguments have raised any objection whatsoever as to the validity of the ballots.
Therefore, recounting is the only mode for this Tribunal to satisfy itself as to the merit of the ground on which election of the returned candidate has been challenged.
12. The learned counsel argued that recount cannot be ordered but even the cases cited by him do not lay this rule absolute. In the case of Haji Muhammad Asghar it was held that recount not to be ordered as a matter of routine but for reasons. It is clear from the foregoing paragraph that there is no option or mode for this Tribunal to resolve the controversy except to order recount of the ballots.
Similarly it was held in the case of Peter Gill (supra) that recount is to be ordered only in appropriate cases. In my humble view there cannot be a more appropriate case than the case in hand for directing recounting.
13. This Tribunal while deciding an election petition enjoys all the powers of a Civil Court trying a civil suit under the Code of Civil Procedure. The result thereof is that the procedure not provided for by the Election Commission under section 62 is to be governed by the Code of Civil Procedure. The Court is fully competent to invoke powers under section 151 and section 94, C.P.C. This is beyond the legal position that there is no provision either in the Act of 1976 or Rules framed thereunder or the procedure prescribed which excludes the jurisdiction of this Tribunal to order recounting of the votes.
14. The learned counsel for the returned candidate also objected that recounting amounts to fishing which is not permissible. The argument is against the record because Ch. Fateh Jang has sought recalculation in respect of only seven constituencies while the other petitioner has asked for the following constituencies:--- {{TABLE}} PP No.Result declared by Assistant Returning officers on Form XVI-AChanged consolidated results declared by the Returning Officer on FormVI-B Ch. Fateh Jang Dr. Sheela B. CharlesCh. Fateh JangDr. Sheela B.
Charles 184192 Nil Nil 192 185272 1 1 272 {{TABLE}} 'This data is supported by the certified copies of Form XVI-A. Besides this there is provisional counting-sheets issued by the Election Commission and the result given to the Press and electronic media to conclude that somebody had illegally interfered with the result either at the time of preparation of Form XVI-B and final result by the Returning Officer or thereafter. It is nobody's interest that the matter should be hushed up. Therefore, to keep the election process transparent and clean it has to be found out as to when there was interference in the election result. This is also essential to ward off such illegalities recurring in future. There are other ways but not safe and sure except the recounting of the ballots in respect of thirty-five constituencies mentioned in para. 14 above.
15. In the end it was argued that before ordering recount to computerised result be sent for from the Election Commission of Pakistan. This would be of no use because it is clearly pleaded and demonstrated with reference to certified copies of count by Assistant Returning Officer and provisional result prepared by the Commission that it is a case of incorrect counting/totalling of the ballots at the time of the preparation of the Form XVI-B and wrong feeding to the computer.
Therefore, sending for the record of final result from Election Commission of Pakistan would serve no purpose.
16. The learned District and Sessions Judge, Lahore has been appointed as Additional Judge of the Lahore High Court and his successor has not so far been appointed. The office has reported that on account of summer vacation the Additional District and Sessions Judges at Lahore are setting in rotation and Mr. Muhammad Latif Qureshi, Additional District and Sessions Judge would be working w.e.f. 21-8-1994, therefore, parties are directed to appear before him on 23-8-1994 at 11-00 a.m. The respondent No,1 is directed to ensure that the ballots pertaining to constituencies mentioned in para. 14 are produced before the learned Additional District and Sessions Judge, who is directed to complete recounting by 31-8-1994 and submit the report to this Tribunal on 1-9-1994. The respondent No,1 is further directed to seal the ballot papers immediately after their recount and keep them in his custody till further orders by this Tribunal.
17. The petition now to come up on 15-9-1994.