' Ch. Fateh Jang petitioner in EP-No, 85 of 1993 has filed this application under sections 46 and 38 of the Representation of People Act, 1976 (hereinafter referred to be as Act 1976) read with section 151, C.P.C. The application was also repeated in EP No, 86 of 1993 filed by Qaiser Ifrahim.
' I propose to decide both the C.Ms. Through this order and this is to be read in continuation of this Tribunal's order dated 9-8-1994.
2. The relevant facts briefly are that the petitioners in the two election petitions and 57 others contested elections for five Provincial Seats reserved for Christians. These were 'multi-member' seats and according to the result declared in the official Gazette dated 18-10-1993, Adil Sharif Gil, Johnson Michael, Peter Gill, Begum Raj Hameed Gil and Dr. Sheela B. Charles were declared as elected. The petitioner and Mr. Saroya filed two separate election petitions and each of the petitioners challenged the election on the sole ground that thd result has not been correctly tabulated by the Returning Officer in accordance with Forms XVI-A prepared by the Assistant Returning Officers of 240 constituencies. It was pleaded by each of them that, in fact, they had secured votes much more than Dr. Sheela but their votes in respect of some of the constituencies were wrongly posted in Form XVI-B. This way votes of the petitioners decreased while that of Dr. Sheela respondent were increased by some one while posting in Form XVI-B. It was explained that the Returning Officer failed to carry out the result in Form XVI-B on the basis of result in Form XVI-A of 240 constituencies in the Province, therefore, each of the petitioners prayed that he be declared elected instead of Dr. Sheela.
' On the other hand, Dr. Sheela respondent, returned candidate, although did not file any written- statement, yet it was maintained on her behalf that certified copies of Forms XVI-A placed by the petitioner on file are not correct and the same have been tampered with the collusion of the saff after declaration of result, therefore, no authenticity can be attached to it.
' In this view of the matter there was no way out to resolve the controversy between the parties except to order recounting of the ballots in respect of 35 constituencies pin pointed in the two election petitions. The recounting has been done and final report of the counting has been submitted.
3. The appellant earlier moved C.M. 2/95 in his own election petition while repeated it as C.M. 1/95 in the election petition filed by Mr. Saroya but later on sought permission to withdraw the same and file a fresh petition to the same effect as it contained some incorrect figures. Therefore, the C.M.
2/95 in Election Petition No, 85/93 and C.M. 1/95 in Election Petition No, 86 of 1993 are disposed of as withdrawn.
4. Now coming to the petitions in hand. The learned counsel for the applicant argued that the Provincial Election Commissioner (hereinafter to be called as Election Commissioner) has wrongly included invalid votes in the counting process. It is added that this mistake occurred because the Presiding Officers have not prepared separate packets of invalid votes. It is argued that recounting of votes was possible under section 39(6) of Act 1976 read with rule 26(6) of the Representation of People (Conduct of Election) Rules, 1977 (hereinafter to be called Rules 1977), while Form XVI-A is prepared by the Assistant Returning Officer in case of minority seats under rule 90 dealing with the preliminary consolidation of the results. This way, there was no stage for recounting of the votes as far as minority seats are concerned. It is added that in the recounting process following invalid votes have been counted:--
(1) Seven votes having double 'marking aid stamps' have been counted in favour of Mr. Saroya;
(2) Six votes which were cast alongwith the counterfoil have also been counted;
(3) There was no Polling Station 78 in Constituency 230 while in recounting 12 votes have been added from this Polling Station to Mr. Saroya.
(4) recounting incomplete as record of 13 polling stations not received.
' The arguments on this point were summed up with the submission that the invalid votes may be excluded from count and thereafter result tabulated and declared. No other objection was pressed.
5. On the other hand, Mr. Bilal Hassan Minto, Advocate argued that it was pleaded in the Election Petition and maintained throughout the proceedings by the applicant that the only grievance is miscalculation of votes by the Returning Officer. Therefore, he cannot be allowed to argue that some invalid votes have also found their way in the valid votes. It is vehemently argued that the objection as to the invalidity of votes was never raised in spite of opportunity provided under section 38 of Act 1976. It is added that the applicants cannot be allowed to approbate and reprobate.
6. It is submitted that the separate packets of invalid votes were prepared. It is explained that in many constituencies there were no invalid votes, therefore, there was no question of keeping separate packet. It is added that wherever there were invalid votes they were kept in separate packets and they have not been included in the recount.
7. On legal plane it is argued that the present application amounts to taking fresh plea in the election petition which cannot be allowed because a plea which is not permissible under the law to be taken directly cannot be allowed to be urged indirectly. In this behalf it is explained that in view of subsection (3) of section 62 of the Act 1976 a petitioner in an election petition is not entitled to take a new ground of attack through amendment and in the alternate it is maintained that the objection which was not raised at the time of counting of Presiding Officer under section 38 of the Act 1976 cannot be allowed to be raised in these proceedings. It is added that this section is equally applicable to Muslim and non-Muslim seats. This objection legally could not be taken even in original election petition. In this behalf reliance is placed on the judgments in the cases reported as Harchand Rai v. Manga Ram and others (1986 CLC 985) and Sardar Gul Khitab v. Javaid Iqbal Abbasi and 4 others (1988 CLC 945). It is vehemently argued that the election laws are strict and stringent and a party cannot be allowed to proceed against the specific provisions of law. It is submitted that the plea which could not have been legally taken in the election petition or in any case brought through amendment cannot be allowed to be raised indirectly through miscellaneous applications. The arguments are summed up with the submission that section 46 of Act 1976 is not attracted at all in the present case. Moreover, the application moved by Dr. Sheela has already been dismissed and strangely the same was opposed by the applicant. The application is also not covered either by section 38 of the Act 1976 or section 151, C.P.C. The controversy now being raised is beyond the scope of the election petition.
8. Mr. Tariq Latif, Election Commissioner explained that the entire record of all the 35 constituencies was requisitioned and received except 13 Polling Stations. He added that in spite of all efforts he could not get hold of this record. Thereafter, the matter was brought to the notice of this Tribunal.
The petitioners in both the election petitions notified that they do not require this record. The writing is appended as Annexure 'G' with the final report. It is thereafter that he proceeded to compare the Form XVI-A with the statements of count (Form-XIV) in respect of these polling stations and there was no inconsistency. It is added that he has also checked up the overall position of the constituencies and the figures recorded in these forms were correct. He added that none of the parties in spite of opportunity before him challenged the `'statements of count', which were seen and signed by them. The same have been placed on the file of the election petition alongwith the reports. He has further prepared comparative statement showing votes in Form XVI-B, Form XVI-A, the result of recounting and the result as declared in the statements of count in respect of ten constituencies, out of which record of 13 Polling Stations was not received. The same is appended as Annexure F/II while the list of 13 Polling Station's is Annexure F/III.
' He submitted that he did not include any invalid vote in the recounting. The same were contained in separate packets. In this behalf he supported the contention of Mr. Bilal Hassan Minto, Advocate.
It is added that he maintained the decision of the Presiding Officer on this point in view of the order of this. Tribunal that there is no dispute as to the validity of votes. In reply to the argument that there was no polling station 78 in Constituency 230 he produced the Gazette Notification, dated 20th September, 1993 (final list of polling stations). This polling station is mentioned at page 1177 of the Gazette. As to the 7 votes allegedly bearing double marking, he explained that the plea is not correct because he counted only valid votes. There may be impression due to folding of ballot by the voter before casting. If the marking aid stamp was fixed against names of more than one candidate, then according to the policy the vote was to be counted for the candidate against whom major portion of the marking stamp appeared. He added that it is beside the fact that the decision of the Presiding Officer was maintained. Therefore, these votes were not treated valid by him for the first time. The ballots which were put in the ballot-box together with counterfoils were again counted by him because the same were declared valid by the Presiding Officer as was clear from the statement of count for that polling station.
9. I have given my anxious consideration to the arguments of the learned counsel for the parties present and gone through the record, relevant provisions of the statute and rules as well as precedent cases. The objection as to the invalidity seems to be two-fold. The petitioner on one hand is alleging that some of the votes declared invalid by the Presiding Officer have been counted as valid votes by the Election Commissioner. The other side of the objection is that some invalid votes have been treated as valid throughout.
10. The first part of the objection is factual and seems to be misconceived because the basis is that in some of the polling stations there were no separate packets containing invalid votes. The Election Commissioner has categorically stated that he did not change the decision of the Presiding Officer declaring a vote Valid or, invalid. This was done in view of the observation of this Tribunal contained in order dated 9-8-1994 that there is no dispute as to the validity of the votes.
This Tribunal observed so in view of the clear and categorical pleadings of the parties. Now coming to the other side i,e, legal aspect of the objection that some invalid votes have been counted as valid votes. The admitted position is that the objection was not raised in the election petition or even at the time of arguments when recounting was directed on 9-8-1994. Mr. Bilal Hassan Minto, Advocate argued that new point cannot be allowed to be raised. In this behalf, he has referred to subsection (3) of section 62 of Act 1976. The same reads as under:- 62- Procedure before Tribunal.--(1)................
(2) .........................................
"(3) The Tribunal may, at any time, upon such terms and on payment of such fee as it may direct, allow a petition to be amended in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions at issue, so however, that no new ground of challenge to the election is permitted to be raised and the trial of election petitions shall proceed on day-to-day basis."
It is clear from subsection (3) reproduced above that fresh ground cannot be allowed to be raised in election proceedings. In the case of Sardar Gul Khitab (supra) it was held as under:- "(4) It may be mentioned that the arguments advanced by the learned counsel for the petitioner relating to the appointment of Presiding Officers and polling staff at various polling stations cannot be entertained as no such objection is taken in the election petition. It is also evident that the petitioner had taken part in the election and if there was any violation of the provisions of section 9 of the Representation of the People Act, 1976, he could have made representation to the concerned election authority which he could not under the provisions, of section 103 of the Act."
The proceedings before the Tribunal are summary in nature and quasi-criminal. The petitioner may be allowed to add particulars of the allegations contained in the petition but cannot be allowed to add fresh instances even. In this behalf reference can be made to the decision" of the Hon'ble Supreme Court in the case reported as Muhammad Saeed v. Election Petitions Tribunal West Pakistan etc. (PLD 1957 SC (Pak.) 91) wherein it was held that-- "While particular may be added to the allegations to corrupt practices contained in the petition, so as to make these allegations more specific, no fresh instances of the same or other corrupt practices may be added to the petition."
' Conversely speaking Mr. Bilal Hassan Minto, Advocate pointed out that since the objection was not raised before the Presiding Officer at the time of counting, therefore, the same could not be allowed to be raised in the election petition. Before proceeding any further it is relevant to refer to section 38 which reads as under --- "38. Proceedings at the close of poll. -(1) ******
(9) The Presiding Officer shall immediately after the count, prepare a statement of the count in such form as may be prescribed showing wherein the number of valid votes polled by each contesting candidate the ballot papers excluded from the count. *****10********
(11) 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.
(13) The Presiding Officer shall obtain on each statement and packet prepared under this section the signature of such of the contesting candidates or their election agents or polling agents as may be present and, if any such person refuses to sign, the Presiding Officer shall record that fact. ****0********** ' This provision was discussed in the case of Harchand Rai (supra) and it was held as under:- "Another point raised by Mr. Mobeen is that objection could have been raised at the time when these ballot-papers were being declared as invalid. In this context perusal of section 38 of the said Act shows that after the close of the poll the Presiding Officer had to count votes in presence of contesting candidates, Election Agents and Polling Agents, who were present. According to this section reasonable opportunity has to be provided by the Presiding Officer to the contesting candidates or their agents for the purpose of count but no such objection was taken at that time. It is not open to the petitioner to raise objection now in this Election Petition which could have been raised by him at the time of count of votes at the Polling Stations. This is not the grievance of the petitioner that any illegal practice was adopted or permission was not given to him or his agents but his grievance is that he was unable to send Polling Agent to all the Polling Stations."
' The above observation applies with full force to the cases in hand because in these election petitions also there was no allegation of illegal practices. This disposes first two objections. The same are without any merit.
11. This brings us to the other objection that since the ballot papers in respect of 13 polling stations were not received by the Election Commissioner, therefore, till those are available the result of the recounting as tabulated may not be declared. It is clear from the election petitions as well as the arguments of the learned counsel for the petitioners that their sole grievance was that the Returning Officer failed to tablulate the result in Form XVI-B in accordance with Forms XVI-A prepared by the Assistant Returning Officers of 240 constituencies in the Province; while, it was urged on behalf of Dr. Sheela that Form XVI-A has been tampered with after the tabulation of the result by the Returning Officer and certified copies of the tampered forms have been issued to Ch. Fateh Jang petitioners. It is clear from this that none of the parties have even indirectly challenged the voting and the statements of count prepared by the Presiding Officers of polling stations as required under section 38. This is commonly known as statement in Form XIV. It is also clear from subsection (11) of section 38 as reproduced above that candidates through their election agents or polling agents may obtain certified copies of the same. It is clear from the averments in the election petitions that the candidate had by and large obtained the same. It was for this reason that this miscalculation of votes by the Returning Officer was alleged only in respect of 35 constituencies out of 240 constituencies. None of the parties at any sage of the proceedings even during arguments of this petition challenged the authenticity of the statements of count prepared under section 38 by the Presiding Officer. On the other hand, the same were signed by them or their agents in token of correctness at the time of recounting. The same have been appended with the reports by the Election Commissioner. Therefore, it is absolutely safe to carry out the result of 11 polling stations, the record of which was not available, from Form XIV. It is as good as the recounting of the original ballots.
12. This is not all. The petitioner is estopped by his own conduct to raise this objection after notifying in writing through Annexure 'G' with the final report that record of no other polling station is required for recounting. Moreover, this difficulty was pointed out by the Election Commissioner and it was done as per direction of this Tribunal.
13. This brings us to the last objection that although there was no polling station 78 in Constituency 230 as is clear from Form XVI-A yet in recounting 12 votes have been credited to Mr. Saroya from the alleged polling station. The Election Commissioner has produced Gazette Notification dated 20-9-1993 in which final list of polling stations was published. Polling Station 78 is clearly mentioned therein. It seems that the Assistant Returning Officer missed the same while preparing the Form XVI-A.
14. The upshot of the above discussion is that there is no merit in these C.Ms. The same are dismissed.