' JUSTICE MUHAMMAD BASHIR KHAN JEHANGIRI (MEMBER).---The petitioner and respondents 2 to 12 contested election from Constituency No,NA-184 Karachi West-I for the National Assembly seat.
Respondent No,2 Mian Ejaz Ahmad Shafi who had secured 32,937 votes was declared to have been returned from the aforesaid constitutency. The petitioner who had secured 32,670 votes has moved this petition for recounting of votes under section 39(6) read with section 103 of the Representation of the People Act (No, LXXXV of 1976 hereinafter referred to).
2. The petitioner averred in the petition that the provisional result showed 722 votes to have been rejected and that "according to the information received by him from his polling agents most of the rejected votes were in favour of the petitioner and have been wrongly rejected", that due to "closeness of the result and in view of the irregularities and illegalities committed in counting and rejection of the votes" the petitioner moved an application to the Featurning Officer for recount of the votes but the same was refused vide order, dated 11-10-1993, that in the meantime the petitioner received a notice for consolidation of results for 10-10-1993 but it was stayed vide order, dated 9-10-1993 on petitioner's application for recount, that after having rejected the petitioner's application for recount, respondent No,1 (Returning Officer) "promised to give fresh notice for consolidation of result to all the candidates but no notice was ever received by the petitioner for the aforesaid purpose with the result that the postal ballots have been counted and the rejected ballot papers have been scrutinized behind the back of the petitioner and other candidates" in violation of the provision of section 39(1) of the Act. The grounds taken up in the petition and pressed into service at the bar for recounting are as under:--- "(a) That with the consolidation of the results behind the back of the petitioner the only fair way to consolidate results is through recounting of the whole results.
(b) That in Polling Station 68 the result sheet duly signed by the Presiding Officer shows a number of significant differences to the detriment of the petitioner as against the result submitted by the Presiding Officer. There is a discrepancy of at least 130 votes to the detriment of the petitioner. In the same polling station the results show an additional 1 vote in favour of the respondent No,2 whereas the said vote is not given in the sheet signed by the Presiding Officer and given to the election agent of the petitioner. (Copies G1 to G4).
(c) That the respondent No,1, under the circumstances, has acted with obvious bias and with mala fides by consolidating the results behind the back of the petitioner and has proceeded with such haste which has frustrated the very purport of the provisions of section 39(1) of the Act, 1976. This has made it all the more necessary to recount the entire votes cast in the poll as there is no other mechanism to ensure the fairness, transparency and impartiality of the process of the election.
(d) That the narrow difference in votes is in itself a ground for allowing a recount so as to eliminate the human error factor.
(e) That in a number of cases, the Presiding Officers have not obtained the signatures of the petitioner's polling agents intentionally in violation of the instructions of the Election Commission which creates doubts as to the accuracy of the count and makes this a fit case for a recount."
3. In his parawise comments, the Returning Officer has admitted that the petitioner had requested for recounting of all the 173 polling stations which being unreasonable was rightly disallowed by him. He had categorically denied that no notice of consolidation of results was served upon the candidates. He had controversed the assertion of the petitioner qua counting of postal ballots in that "no postal ballot was received in this constituency", therefore, no question of any irregularity had arisen in counting of postal ballot papers or otherwise. The Returning Officer has referred to grounds (a) to (e) in pith and substance. In reply to para (b) of the grounds that is what the Returning Officer had to say-- ' Para. "B" The allegations appeared to be baseless as the Presiding Officer had prepared the result sheet in the presence of Polling Agents of all the contesting candidates and also in the presence of Army Commissioned Officers concerned. The Presiding Officer alongwith the result was brought by the Army Squad from Polling Stations to the Camp Office of Returning Officer/Respondent No,l."
4. It has been maintained that no complaint of the nature urged in para. (e) of the ground was made by the petitioner in his application for recounting.
5. Respondent No,2 (the Returned Candidate) in his parawise comments had also controverted the allegations made in the petition.
6. We have heard Mr. Muhammad Yousuf, Advocate, for the petitioner and Syed Iftikhar Hussain Gillani, Advocate, for respondent No,2 at length in support of their respective pleas.
7. In his application dated 7-10-1993 Annexure "A" for recounting of ballot papers, the petitioner, apart from raising objection of "irregularities and illegalities committed in the counting" generally has not taken up a specific ground either on legal or factual plane warranting recount of the entire constituency consisting of 173 polling stations. It was perhaps on this score that respondent No,2 in his reply has pleaded "allegations made in the complaint are quite vague and unspecific and do not contain statement of material facts".
8. Reverting to paras. (a) to (e) of the grounds for recounting it may be observed that apart from categorical denial of the Returning- Officer the petitioner has not been able to substantiate his plea that consolidation of the results was behind the back of the petitioner. Paras. (a) and (c) of the grounds are untenable. In para. (c) ante Respondent No,1 is said to have "acted with obvious bias and mala fides". Para. (b) ante of the grounds is also without substance. The photo copies Annexures G-I and G-II of result sheet showing some discrepancies in figures or totals are not in the prescribed Form XVI (statement of the count) under rule 24 of the Representation of the People (Conduct of Election) Rules, 1977, but it appears not only to be handwritten but also photo-copied.
In consequence the two photo copies aforesaid furnished no justification for recounting moreso where photo copy G-III is on the prescribed form and manifests no arithmetical discrepancy.
Conceding for a while that the documents Annexures G-I and G-II showing discrepancy in figures are worthy of some consideration, the same would call for evidence or at least the authors thereof will have to be confronted therewith as to whether those were issued by those purporting to have done so, and if it was so why were those not scribed on the prescribed Form XVI.
9. The learned counsel for the petitioner has vehemently contended that general recounting of votes through a petition under section 52 of the Act cannot be asked for and, therefore, the only legal remedy available to the petitioner is to invoke the jurisdiction of this Commission under section 39(6) read with section 103 of the Act. Reliance in this respect was placed on Nasir Mahmood Mughal v. Muhammad Azam etc. 1987 M LD 2526.
10. It is necessary at this stage to advert to the relevant provisions of sections 39(6) and 103(b) and
(c) which read 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. .
103. Commission to ensure fair election, etc.---Save as otherwise provided, the Commission may--
(b) review an order passed by an officer under this Act or the rules, including rejection of a ballot paper; and
(c) issue such instructions and exercise such powers, and make such consequential orders, as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly, and in accordance with the provisions of this Act and the rules.
11. The words "the request or the challenge is reasonable" employed in section 39(6)(a) are significant. The true import of these words is that recounting cannot be possibly claimed as of right or in routine but reasonableness of the request or challenge is a sine qua non for the exercise.
Reasonableness would call for some thing more than general allegations of irregularities. Mere allegations cannot be possibly be equated with reasonableness. The petitioner's request or challenge to counting of votes was not reasonable before the Returning Officer nor it was so before the Commission.
12. The ratio discernible in the precedent case of Nasir Mahmood Mughal cited by Mr. Yousuf is that "general recounting cannot be asked for through a petition (under section 52 of the Act)"; further that "it can be ordered if the conditions laid down in section 39 of the Act are satisfied regarding which there have been made specific allegations and those have been substantiated".
13. It appears that the contrary view expressed by Dorab Patel and Jamaluddin, JJ., as their Lordships then were, in Mahmood Azam Farooqi v. Moulana Muhammad Shafi Okarvi and others PLD 1976 Kar. 381 was not brought to the notice of the learned Tribunal wherein refusal by the Tribunal to undertake recounting was not approved and the case was remanded to the learned Tribunal for undertaking recounting of specified polling stations. It may not be out of place to point out that section 37(5) of the National and Provincial Assemblies (Elections) Ordinance (XIII of 1979) which was invoked by their Lordships is substantially in pari materia with section 39(6) of the Act.
Again while looking to the scheme of the Act and particularly the language employed in section 103(a) thereof we are of the considered opinion even the provisions of clauses (b) and (c) upon which the whole case of the petitioner is pedestalled would reveal that claim of recount within the contemplation of section 39(6) is not covered by one or more of the clauses of section 103 ibid. The provisions of section 103 ibid, in our view, could be invoked at the pre-polling stage and till the date of the polling and not to post polling stage.
14. We have already observed that condition of the request for or challenge to the recounting/counting from the point of reasonableness must be satisfied firstly before the Returning Officer and ultimately before the Commission. Clauses (a) and (b) of section 39 ibid cannot be read in isolation. The direction for recounting by the Commission without any basis or to be more precise, without any reasonableness cannot be visualized.
15. The learned counsel for the petitioner has pointed out that the margin between the petitioner and respondent No,2 was very narrow which by itself furnished reasonableness for recounting.
Narrow margin of votes between the two rival candidates in an election, we are afraid, does not satisfy the condition c of reasonableness. As stated earlier, it requires specific allegations which will have to be substantiated by evidence, which is not forthcoming in this case.
16. For the foregoing reasons, we find no merit in this petition and accordingly dismiss it.