IRSHAD HASAN KHAN, J.---This appeal under section 67(3) of the Representation of the People Act, 1976 (Act LXXXV of 1976) calls in question the decision of the Election Tribunal dated 16-11-1994 whereby the election petition filed by respondent No,1 was allowed and in the result election of the appellant Lachman Das to one of the five reserved seats for Hindu and Scheduled caste minorities in the Provincial Assembly of Sindh, was set aside and respondent No,1 was declared to be elected in place of the appellant from the said constituency.
2. The facts in brief are that the appellant and 66 others contested election to the above five seats held on 9-10-1993. The polling stations were grouped together according to general Provincial Assembly Constituencies, which were 100 in number. The first five candidates securing highest number of v9tes were to be declared as elected candidates for the five reserved seats. The appellant was one of the five candidates who were declared elected by the Election Commission vide Gazette notification dated 17-10-1993. Respondent No,1 amongst others challenged the election of the appellant by way of an election petition praying therein that the election of the appellant be declared as void and that instead he (respondent No,1) be declared to have been elected for the reasons that due to commission of errors and mistakes patent on the face of the record and by arithmetical miscalculation and erroneous tallying of the votes, the number of votes secured by respondent No,1 was wrongly reduced and that of the appellant was arbitrarily and capriciously increased.
3. The appellant vehemently denied the allegations. In view of the pleadings of the parties and the issues framed thereunder and mainly relying on the report and examination of the Returning Officer, the learned Tribunal came to the following conclusion:-- "... On account of bona fide errors in the tabulation of the votes, the votes were not recorded correctly and votes of some candidates were wrongly, but without involving any mala fides, credited to the accounts of others and there were some mistakes as to the tabulation of votes of respondent Lachmandas. He had embarked upon the task of rechecking the result as soon as he was directed to do so and submitted his report to the Commission on 22-11-1993 and I have no doubt in my mind that the Election Commission would have declared the election of the fifth elected member to be void had, in the meantime, the time limit within which it could act under section 103(2)-AA not expired and therefore it is the duty of the Tribunal to act under section 69 of the Act. Under issue No,2 1(b) I have observed that the evidence of Mr. Abdul Ghani Gazdar, Returning Officer, cannot be lightly taken. Although he had been cross-examined twice (once in Election Petition No, 93/93 and once in Election Petition No,95/93, but nothing which could make his evidence suspect has been brought in cross-examination and therefore his evidence inspires confidence. I have therefore no hesitation in relying on it. In view of this position there is no necessity to declare the election as a whole to be void. Correct position as to the number of votes secured by Lachmandas and Sarvanand having crystallised, I declare that Mr. Sarvanand with 11,935 votes comes fifth and Mr. Lachmandas with 11650 votes comes sixth and, as such, election of the fifth returned candidate (Mr. Lachmandas) is declared to be void and petitioner Sarvanand in Election Petition No, 95/93 is declared to be duly elected in place of Mr. Lachmandas."
Earlier, respondent No,1 pursued his remedy before the Election Commission for redress of his grievance whereupon the Election Commission by order dated 4-11-1993 passed on an application filed by him and two others directed the Returning Officer to examine tally sheets submitted by each Returning Officer to check with the entry made in Form XVI-B and thereafter to submit his report. Pursuant thereto report dated 22-11-1993 was prepared by the Returning Officer. It would be advantageous to reproduce the relevant portions of the report, which read thus: "5. Comparative statement of the votes found on examination and checking of both the statements is reproduced as under:-- ..........................................................................
5. servanand 6848 11935 6.Lachman Das11650 12040 ..........................................................................
8. As regards the result of Lachman Das, all the candidates and their representatives had pointed out some material discrepancies in the case of 5th successful candidate Lachman Das and on thorough scrutiny it was found 1161 votes shown for this candidate in column No,2 were incorrectly shown instead of 161 which was confirmed from photo copy of the statement count submitted by one of the candidates. Likewise for P.S. 57, 1327 votes are incorrectly recorded instead of 327. Hence on checking 2000 votes recorded incorrectly have to be deducted from total votes of this candidate. On checking it is also found that for PS 64 the candidate secured 1180 votes as against 1124 votes shown in column No,2. Hence he became entitled to the addition of 56 votes. Likewise for P.S. 66, he actually secured 2096 votes, which were incorrectly recorded as 542. Hence he is entitled to addition of 1554 votes. The overall effect of the above would be to add 1610 votes in the total of votes secured and then to deduct 2000 votes therefrom. The net result of votes would be 11650. ............................................................................
10. As regards the case of Sarwanand, it has been found that in all 5092 votes secured by him as per tally sheet of Assistant Returning Officer were not recorded in the statement from XVIB compiled by Returning Officer. It was due to omission, wrong posting of the figures in the name of other candidates. Such differences are found in P.S. 1, 2, 5, 6, 10/11, 27 and 46. The main omission was in P.S.2, in which he secured 1019 votes which was wrongly posted in the name of R. Acharya.
Similarly he actually secured 3311 votes in P.S.10/11 which figure due to mistake was shown in the name of candidate Sohraj. The other differences are specifically shown in the statement filed as Annexure 'Ato this report."
4. In the present case, the question whether any mistake had in fact occurred in calculation/recalculation of votes, was a question, which clearly required investigation with reference to Forms XVI-B. A further question that arose for consideration was whether the learned Tribunal had acted in proper exercise of his jurisdiction in dealing with the election petition on merits without examining the forms in question. We are unable to appreciate, how the learned Tribunal thought it fit not to allow the production of 100 sheets on record, and how it was justified in not checking or examining the same in order to satisfy itself whether there was any miscalculation of votes or not notwithstanding the fact that these forms were available with the Returning Officer during the course of his re-examination and moreso when the impugned decision is based in its entirety on the report of the Returning Officer. Thus, visualized, production and examination of the said documents were necessary in the interest of justice.
5. When faced with this, Raja Muhammad Anwar, learned counsel for respondent No,1 argued that since 100 sheets in question have not been placed on record by the appellant, he cannot be permitted to place reliance on the same in these proceedings. The learned counsel also relied on Noor Khan v. Member, Board of Revenue and others (1984 SCM R 681), to contend that it was the duty of the Advocate-on-Record for the appellant, under the Rules of this Court, to place on record the documents intended to be relied upon by him and since he failed to do so, he has disentitled himself to any relief. We are not impressed by the submission made by the learned counsel for respondent No,1. The appellant had been declared elected by the Election Commission and since respondent No,1 disputed the calculation of votes, the burden lay on him to prove miscalculation thereof. Be that as it may, Noor Khan's case (supra) is distinguishable. Here, the appellant has not sought any discretionary relief under the Constitution, but has invoked the appellate jurisdiction of this Court under section 67(3) of the Representation of the People Act, 1976. Further, rule 6 of Order XXXIII of the Supreme Court Rules, 1982 provides that nothing in the Rules would be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary in the ends of justice or to prevent the abuse of the process of the Court. To the same effect are the powers vested in an appellate Court under Order XLI, rule 33 as well as under section 151 of the Code of Civil Procedure. We are, therefore, not inclined to refuse relief to the appellant on a mere technical ground, having regard to the facts and circumstances of the present case.
6. In view of the above, we set aside the impugned decision and remand the case to the Election Tribunal for fresh decision in accordance with law, after re-examining the Returning Officer and the documents on the basis of which the report was submitted by him . It will be open to the Tribunal to allow production of additional documents by both the parties in accordance with law. We further direct that the proceedings should be completed within one month from today.
With the above observation, the appeal is allowed. The parties are left to bear their own costs.