' Petitioner Tariq Kurd and respondents 2 to 15 were candidates for contesting general elections of the Provincial Assembly from constituency PB-24 Bolan-I (Kachi) held on 9-10-1994. On final counting respondent No, 13 Mr. Lashkri Raisani was declared as successful by obtaining 102 votes more than petitioner. Final result of above constituency concerning petitioner and contesting respondent contained in Final Result Count Form XVI Exh. PB published in the Gazette is mentioned below for convenience. {{TABLE}} S. No, Name of polling station Petitioner Tariq Kurd Respondent No,13 Mir Lashkri Khan Raisani Total valid votes carted 2 3 4 5
1. Middle School Kolpur 69 19 385 Girls High School Mach 331 80 1031 (Male)
Girls High School Mach 84 35 421 (Female)
Library Hall Mach 267 149 987 Inspector Mines Office 183 114 655 Machh Bibi Nani 57 5 112 Primary School Kirta 173 14 207 Model School Dhadar 313 214 762 Girls High School Dhadar 100 113 402 Jaibani Public School 404 51 475 Dhadar High School Rind Ali 404 75 589 S. No, Name of polling Petitioner Respondent Total valid station Tariq Kurd No,13 Mir votes Lashkri Khan casted Raisani {{TABLE}}
1. 2 3 4 5
12. Girls High School Rind Ali 329 21 400
13. Kot Khai at S.W.O. 250 210 578
14. Middle School Sibri 459 167 642
15. Middle School Mishkaf 207 420 848
16. Girls Primary School 87 112 248 Mishkaf
17. Union Council Office 17 481 566 Mithri
18. Kolachi Civil Dispensary 90 349 388 Mithri
19. High School Mithri 2 763 798
20. Girls Middle School Mithri 93 126 371
21. Primary School Dandoor 44 116 346
22. High School Haji Shahr 22 26 697
23. Primary School Haji Shahr 6 10 412
24. Gari Aurang Shah 9 132 811
25. Middle School Chandar 64 35 248
26. Dosa at Primary School 52 9 251 Habibabad
27. Middle School Ghani 108 21 419
28. Shahbazo Civil Dispensary 17 202 413 Ghazi
29. Primary School Masoo 68 195 484 Total Numbers of votes recorded at the polling station. 4228 4264 14946 Total votes recorded on postal ballot for the constituency 64 130 364 Grand Total: 4292 4394 15310
2. It is the case of petitioner that through electronic media he was shown to have been elected from constituency PB-24 Bolan-I but subsequently during final counting by including challenged votes and postal ballots which suffered from variety of defects and illegalities respondent Mir Lashkri Raisani was unjustifiably declared successful returned candidate for Provincial Assembly from said Constituency. It was asserted that three voters were supplied double postal ballot- papers and one voter supplied postal ballot-paper meant for National Assembly which too have been counted in favour of respondent. It was categorically asserted that respondent No,13 (Mir Lashkri Raisani) has been factually defeated but through manipulation he got himself declared as successful, by glaringly contravening essential requirements of election laws and rules which constitutes, malpractice. Feeling aggrieved from election results of PB-24 Bolan-I and official declaration of respondent No,13 as successful; the petitioner on 25-11-1993 filed an election petition under sections 52, 53, 54, 55 of 'the Representation of People Act, 1976' enumerating details of illegalities and malpractice committed by him. It was sought that election of respondent No, 13 (Mir Lashkri Raisani) being void, the petitioner be declared as duly elected from the seat of Provincial Assembly PB-24 Bolan-I. Respondent No, 13 contested the election petition, and filed written statement on 11-12-1993 repudiating all such allegations. It was expressly asserted that no illegality had been committed. Averments concerning manipulation were also specifically refuted. It was mentioned that votes living in far flung area did not have facility of post office, therefore, ballot- papers were directly delivered to Returning Officer. Similarly allegations about supplying double postal ballot-papers was also disputed. It was averred that counting was properly conducted by Returning Officer by correctly counting challenged votes and postal-ballots in the presence of authorized representatives of parties. However, keeping in view the pleadings of parties, following points for determination were frathed:- POINTS FOR DETERMINATION
(1) Whether petition is barred by time?
(2) Whether the petition has not been signed/verified in accordance with law, if so what would be its effect?
(3) Whether the petition is hit by the principle of res judicata?
(4) Whether the Returning Officer while consolidating the result, counted 52 challenged votes in favour of respondent No, 13 (Returned candidate) without adhering to the provisions of People Representation Act and the Rules framed thereunder?
(5) Whether the Returning Officer received 132 Postal Ballot Papers by hand and not from the postal authorities as it is required under the Law. If it is so, had the Returning Officer jurisdiction to count these votes in favour of respondent No,13 (Returned candidate).
(6) Whether the Returning Officer issued double postal ballot-papers to ten voters and if it is so can such votes be counted in favour of any candidate?
(7) Whether there were certain voters who exercised the right of their adult franchise both availing facility of Postal Ballot as well as casting the votes personally at the Polling Station?
(8) Whether the Electoral Roll relating to franchise from Nos. 153 to 354 Polling Station Mohallah Baghat Rind Ali registered fictiously? If so, has it any effect on the present proceedings?
(9) What should the nature of Relief?
Petitioner besides himself adduced four witnesses namely (P.W. 1) Javid Iqbal (P.W. 2) Dr. Muhammad Ishaq (P.W. 3) Sheikh Ghulam Farid and (P.W. 4) Abdul Manan son of Haji Muhammad Jan. Whereas contesting respondent Mir Lashkri examined (R.W. 1) Muhammad Arif (R.W. 2) Khair Muhammad (R.W 3) Muhammad Ibrahim (R.W. 4) Malik Dinar Khan and (R.W. 5) Muhammad Azam.
Respondent Mir Lashkri Raisani also got recorded his statement. Documents in the shape of (i) final counting result (ii) application for postal ballots (iii) Form VIII issued on the basis of said application
(iv) postal-ballot, Result Count of various polling stations (v) Record of Post-Master Sibi and some of the challenged votes etc. Were proved through some of the witnesses.
3. Mr. Maqbool Ellahi Malik learned counsel for petitioner emphatically urged that merely two points concerning validity of challenged votes and postal ballots and its effect on the final count require determination for the disposal of present petition. Thus arguments were advanced only regarding said points and remaining aspects were expressly dropped. Learned counsel strenuously urged that 130 votes were received by the office of Returning Officer, through postal ballots which were illegally counted to the benefit of respondent No,13. He maintained that all those 130 postal ballots were ex-facie illegal and ought to have been completely excluded from final counting. As regards other aspects it was emphatically urged that out of 66 challenged votes counted in favour of respondent No,13 (Mir Lashkri) only twelve were properly considered by the Returning Officer whereas 54 have been illegally counted in favour of respondent No, 13 without considering objection raised at relevant occasion or giving any cogent reasons. It was contended that after exclusion of said votes, certainly number of votes obtained by petitioner would be higher than respondent No,13 who, therefore, becomes entitled for being declared as validly elected candidate from PB-24 Bolan-I. Learned counsel stressed that by counting defective postal ballots, requirements of section 39 (1) and section 29 (4) of the People Representation Act, besides Rules 12 and 16 (4) (10) of the Representation of People (Conduct of Election) Rules, 1977, and requirement of Form XI have been flagrently disregarded. He further argued that essential requirements for receiving ballots through post, have been ignored in a trivsual manner. All the arguments centred around, only above discussed two points and no other legal or factual aspect was touched.
' Whereas on the other hand Mr. Yahya Bakhtiar, Advocate for respondent No, 13 vehemently opposing the petition emphatically urged that discrepancies showing invalidity of postal ballots did not form basis for challenging the election and absolutely new case was intended to be set up which cannot be permitted under the law. Reliance was placed on PLD 1973 (Tr. Cases) Karachi P.117. He maintained that there are 29 polling stations, where election was held properly and statements of count disclose clear winning position of respondent No,13. He maintained that absolutely no objection has been raised by petitioner concerning challenged votes at the time of final counting (consolidation of results before Returning Officer) nor any evidence adduced during trial of present petition. Showing defect or impropriety in entertaining, challenged votes. Learned counsel referred to procedure contained in sections 35 and 38 of Representation of People Act 1976 and argued that if at all serious defects or impropriety existed, a determinative order could be sought from Returning Officer or eventually from this Tribunal. He thus maintained that such objection has no significance at this stage. As regards other point of postal ballots it was expressed that 409 postal ballots were issued by the Returning Officer in PB-24 Bolan-I out of which the petitioner has secured only 64 postal votes whereas respondent No,13 Mir Lashkari Raisani had obtained 130 votes. Learned counsel canvassed that mostly postal ballots counted in favour of either side were considered by the Returning Officer which according to him did not suffer from any legal defect. Reliance was placed on the observation Mahmood Azam Farooqui v. Muhammad Shafi Okarvi (PLD 1977-Jour 211).
' Mr. Maqbool Elahi replied above contentions and argued that failure to raise specific objection ceases to be fatal, when evidence concerning those aspects has been brought on record, Reliance is placed on the observation in cases (i) Rasantilal Ratanlal Lain v. Umashankar Muljibhai Travedi and others (AIR. 1965 Madya Pardesh-94) (ii) Bhupendra Narain Mandal v. Ek Narain Lal Das etc (AIR. 1965 Patna-332) (iii) Bhagwan Datta Shastri v. Ram Ratanji Gupta and others (AIR. 1960 Supreme Court-200, (iv) Abdur Raziq Khan v. Abdul Aziz etc. PLD 1975 Journal 41 and (v) Balwan Singh v. Lakshmi Narain and others (AIR 1960 Supreme Court-770). He further canvassed that petitioner is expected to produce only such material which is within the knowledge and with regard to remaining obviously when evidence is led same became admissible and relevant. Reliance was placed on observation to S.M. Ayub v. Syed Yousuf Shah and two others (PLD 1967 Supreme Court page-486) (ii) Syed Zafar Ali Shah versus Muhammad Nawaz Khokhar (PLD 1986 Journal 160) (iii)
Balwan Singh v. Lahkshmi Narain and others (AIR 1960 Supreme Court P-770) and (iv) Ghulam Mustafa v. Akhtar All and others (1986 M LD 2143.) He further submitted that observation in the election matters reported as PLD 1977 Journal 211 forms an opinion therefore not binding.
4. For dilating upon various aspects discussed by learned counsel for parties it would be appropriate to give brief resume of evidence brought on record.
' P.W. I Javeed Iqbal was election agent of petitioner deposed, that bags containing postal ballot papers did not have stamp or seal of post office. According to the version of this witness postal ballots were unlawfully counted in favour of Mir Lashkari Raisani when result was finally consolidated by the Returning Officer, otherwise petitioner had obtained higher votes than him. The witness further deposed that objections were raised by Mr. Shakil Ahmad, Advocate about absence of postal stamp on the bag containing postal ballots but were ignored. He expressed that challenged votes were also counted without considering the objections. He mentioned about presence of Deputy Commissioner Bolan when final counting for consolidation of results was carried out by Returning Officer. During cross-examination witness stated that Presiding Officer has not counted the challenged votes, and in some cases envelopes containing challenged votes were not even opened. He deposed that 132 postal ballot papers were counted in favour of respondent Mir Lashkari by the Returning Officer despite their objections which affected election results.
' P.W. 2 Dr. Muhammad Ishaq who is also a contesting candidate from Constitutency PB-24 Bolan I Kachhi deposed that on the basis of initial counting, petitioner was declared successful taking lead of 15 votes, but Returning Officer wrongly counted 132 postal ballot papers in favour of Mir Lashkari Khan. Accordingly to this witness, Returning Officer unlawfully counted 52 challenged votes in favour of respondent No,13 Mir Lashkari Khan and unjustifiably declared him as successful. The witness is admittedly paternal uncle of petitioner Tariq Kurd. He admitted presence of Mr. Shakil Ahmad, Advocate at the time of consolidation of results. According to this witness Deputy Commissioner had presided over the process of consolidation. According to this witness Mr. Shakil Ahmed, Advocate raised objection about validity of postal-ballot-papers as they had not been received through post-office or concerned department. The witness also admitted that challenged votes were counted in favour of both; the petitioner and respondent Mir Lashkari Khan. The witness conceded that, he did not make any objection regarding re-scrutiny of challenged votes.
' P.W.3 Sheikh Ghulam Muhammad, Assistant Commissioner-Returning Officer PB-24 Bolan-I deposed that, approximately 401 postal ballot papers were issued. The applications made by voters are produced as Exh. P/A-1 Exh. PA-401. List of postal ballot-papers issued from time to time consisting of ten pages is brought on record as Exh. PA-402 to Exh. PA 411. Witness explained some of the voters had sent postal ballot-papers through post.
' P.W.4 Abdul Manan who functioned as Returning Officer PB-24 Bolan-I from 28-9-1993 onwards deposed that results of 29 polling stations were consolidated by him, copy whereof has been produced as Exh.PB. It was maintained by the witness that according to Exh.PB 130 votes were counted in favour of respondent No, 13 Mir Lashkri Raisani. He however admitted that requirement of Rule 12(2)(c) and FORM-XI were not examined by him. The witness produced 70 envelops of postal ballot-papers Exh.P/E-i to Exh.P/E-70 which had double postal stamp. Whereas 14 envelopes Exh.P/E-71 to Exh.P/E-84 bears single stamp. Additionally 298 envelopes of postal ballots which did not have any postal stamp were produced as P/E-85 to Exh.P/E-382. The witness explained that said envelopes were received in his office. The witness, however, expressed that none of the candidates or their Advocated at the time of consolidation of results raised objection for separating envelopes for postal ballot-papers which had not have stamps. However, seventeen
(17) ballot-papers Exh.P/E-383 to Exh.P/E-399 were rejected. Testimony of this witness further discloses that 384 declaration Forms under Form VII were received which have been produced as Exh.P/E-400 to P/E-783. Besides 130 votes carted in favour of respondent Mir Lashkari have been brought on record as Exhs.P/E-784 to P/E 914. Challenged votes of respondent No, 13 pertaining to six polling stations have been produced through this witness as Exh.P/E 915 to Exh. P/E 987. The witness admitted that some of the challenged votes were counted by the Presiding Officer of concerned Polling Station in favour of petitioner. Details recorded on Form XIV are produced as Exhs. R/1 to R/37. The witness, however, admitted that challenged votes are normally counted by Presiding Officer while compiling result of Form XIV for transmitting it to Returning Officer. The witness on the basis of Exh. P/B deposed that Mir Lashkari Khan had received 4394 votes whereas petitioner obtained 4292 votes. The witness categorically mentioned that during consolidation of results none of the candidates or their representatives raised any objection or sought re-scrutiny of challenged votes. The witness also stated that 17 postal ballot-papers were rejected on the objection of petitioner's counsel Mr. Shakil Ahmed, Advocate. It was also admitted that at certain places of constituency PB-24 Bolan-I postal service was not available. The witness also produced application made by Shakil Ahmed, Advocate Exh. R/38 for recounting of few polling stations which was carried out. However, further recounting was stopped on the written request of said counsel of petitioner which is also proved as Exh.R/39.
5. The petitioner in his affidavit submitted on 27-11-1993 gave details of irregularities committed by Presiding Officer an Returning Officer at the time of consolidating the Election Results. Ha gave description of violation committed as regards postal Ballot-papers and challenged votes. He maintained that 184 votes consisting of 132 postal ballot-papers and 52 challenged votes were illegally counted in favour of respondent Lashkari Khan for declaring him successful candidate."
Petitioner admitted that he did not participate in consolidation proceedings held on 8-10-1993. He admitted that Mr. Shakil Ahmed, Advocate had represented him before the Returning Officer for consolidation of results. He also mentioned that few postal vote were issued twice causing serious irregularities.
6. Whereas on the other hand respondent Mir Lashkari Khan apart from himself examined five witnesses.
' R.W.1 Mr. Muhammad Arif Post Master Mithri has produced receipt and despatch of postal Exhs.R /49. R/50 and R/51.
' R.W. 2 Khair Muhammad, Senior Post Master Sibi gave details of 63 envelopes despatched to Dhadar through Mail. He states these 63 postal ballot-papers were collected through post-box.
' R.W. 3 Muhammad Ibrahim, Post-Master Mach had not brought record, therefore, he was discharged.
' R.W. 4 Malik Dinar Khan Bangulzai, deposed that he was present at the time of re-counting and consolidation of final results concerning constituency PB-14 Bolan-I by Returning Officer. Mr. Shakil Ahmad, Advocate was authorised agent of petitioner. Witness deposed that sealed boxes and postal ballot-papers were opened in presence of all the agents and representatives of parties and counting was carried out properly in accordance with rules. He admitted that Mr. Kamran Murtaza, Advocate was also present on behalf of respondent Mir Lashkari Khan, besides Aminullah Raisani and Mr. Mohsin Javid, Advocate. The witness pointed out that only validity of few postal ballot- papers was challenged out of which 11 were rejected by the Returning Officer on the pointation of Mr. Shakil Ahmed, Advocate.
' R.W. 5 Mr. Muhammad Azam, Post-Master Mach stated that no ballot-paper was received in the post office Mach. Respondent Mir Kashkari Khan explained his stand and confirmed that he was validly declared successful on the basis of final consolidation of results. The respondent maintained that no defect or error existed in the announcement of final results. The question with regard violations committed at various polling stations were squarely denied. It was also refused, that after announcement on the television respondent procured postal ballots or made efforts for changing result of the election. Suggestion to the contrary made by opposite side during cross- examination were specifically disputed.
7. Firstly I would like to examine contentions relating to `CHALLENGED VOTES'. Apparently when elector presents himself at the polling stations for casting votes procedure is specified under section 33 of Representation of People Act, 1976 (Act LXXXV of 1976) (hereinafter referred as "People Act"). However, if a candidate or his polling agent raises an objection about elector having already casted or doubts his identity and undertakes to prove such charge then subject to depositing Rupees TWO and proof of such accusations his vote is deemed challenged as contained in section 35 of The People Act" which is reproduced below for ready reference:-- "35. Challenge of electors.--(1) If, at the time a person applies for ballot-papers for the purpose of voting, candidate or his polling agent declares to the Presiding Officer that he has reasonable cause to believe that person has already voted at the election, at the same or another polling stations, or is not the person against whose name entered in the electoral role he is seeking to vote and undertakes to prove the charge in a Court of law and deposits with the Presiding Officer in cash a sum of two rupees, the Presiding Officer may, after warning the person of the consequences and obtaining on the counterfoil, his thumb-impression and if he is literate also his signature issue a ballot-papers (hereinafter referred to as "challenged ballot-paper") to that person.
(2) If the Presiding Officer issues a ballot-paper under subsection (1) to such person he shall enter the name and address of that person in a list to be prepared by him (hereinafter referred to a "the challenged votes list") and obtain thereon the thumb-impression and, if he is literate, also the signature of that person.
(3) A ballot-paper issued under subsection (1) shall, after it has been marked and folded by the elector, be placed in the same condition in a separate packet bearing the label "Challenged Ballot- Paper", instead of being placed in the ballot box."
' The "Challenged Votes" are separately packed in a bag labelled "Challenged Ballot-Papers". The Presiding Officer after close of poles conducts counting in accordance with procedure providing under section 38 of "People Act" and condition contained in rules 21 and 23 of the Representation of People (Conduct of Election) Rules, 1977 (hereinafter referred as "The Election Rules"), Presiding Officer prepares statement of count in Form XIV contemplated by section 38(9) of "Peoples Act" and relevant rules, and eventually transmits the whole record to Returning Officer within the purview of subsection (15) of section 38, Returning Officer then consolidate the result after giving due notice to the contesting candidates or Election Agent and pronounces final result in FORM XVI by performing requirement contained in section 39 of the "People Act" and Rule 26 of the Election Rules.
' Mr. Maqbool Ellahi learned counsel for petitioner emphatically urged that Presiding Officer except at High School Mithri had completely ignored the objection whereby 54 "Challenged Votes" casted in favour of respondent Mir Lashkari Raisani had been wrongly counted. At this stage it is pertinent to mention here that petitioner and contesting respondent were represented by their respective counsel. Admittedly they had not pressed their objection concerning "Challenged Votes" before Returning Officer at the time of consolidation of results.
' Mr. Yahya Bakhtiar critically emphasised that absolutely no objection was raised by petitioner before Returning Officer when result was being consolidated in Form XVI. Therefore, any subsequent protest does not have legal sanctity. Learned counsel canvassed that absolutely no reasons showing invalidity of "Challenged Votes" was either asserted in the petition or proved through evidence.
8. Bare perusal of section 35 of "People Act" elaborately disclose responsibility of party challenging the vote of elector, to substantiate the charge showing inherent defect or disability of person casting the vote. Convincing material must be brought forth to establish legal justification, and plausible cause for excluding the vote of elector from final count. No doubt the Presiding Officer had initial responsibility to consider objections raised to the validity of any vote. But it was imperative for aggrieved party to substantiate grounds of disability, legal infirmity or invalidity concerning any vote when result was being finally consolidated by the Returning Officer in FORM LXVI. Lastly petitioner should have specifically pointed out exact nature of grievance regarding "Challenged Vote" so that by thorough analysis these objections could be appropriately scrutinized by the Election Tribunal". Even on enquiry precise objection concerning "Challenged Votes" which may require determination in the light of relevant law was not pointed out. Record is also conspicuously silent about any cause or reason for showing disability of elector, whose votes were challenged at the time of casting. Since there is absolutely not an iota of evidence to establish why "Challenged Votes" could be excluded from count, therefore, objection cannot be sustained. Thus, despite minor lapses or irregularities committed by the Presiding Officer fundamental right of franchise cannot be denied to elector merely because misconceived objections ,were raised by opponent, which otherwise have not been substantiated in the Court of Law. Observation in case Qamar Ali Khan v. Election Tribunal (1991 M LD 159) relied upon by petitioner does not help him.
Because Honourable Division Bench had remanded the cash to Election Tribunal for considering objection relating to "Challenged Votes". Whereas petitioner in the instant case despite reasonable opportunity available to him has .Not proved factum of invalidity concerning "Challenged Votes".
Before this Tribunal I have, therefore, no hesitation in holding that "Challenged Votes" were rightly counted at the time of consolidation of results under section 39 of the "People Act' read with Rule 26 of the Election Rules. Thus excluding votes pertaining to postal ballots" the total number of votes received in 29 Polling Stations by the petitioner come to 4228 (Four Thousand Two Hundred Twenty Eight). Whereas that of respondent Mir Lashkari Raisani comes to 4264 (Four Thousand Two Hundred Sixty-four) showing lead of 36 votes, which fact is clearly reflected from Exh.P/B Form XVI prepared under Rule 26(1). Extract whereof is reproduced in para. 1 above.
9. Now examining next contention, relating to postal ballots, wherein according to consolidated result Exh. P/B petitioner has obtained 64 votes, and respondent Mir Lashkari Khan second 130 votes, the validity of postal ballot counted in favour of respondent No, 13 had been vehemently disputed.
' Mr. Maqbool Ellahi Malik learned counsel for petitioner urged that both while issuing postal ballot or in the manner received by Returning Officer requirements of law have been glaringly flouted. It was emphasised that (i) majority of postal ballots which have been cases in favour of respondent Mir Lashkari were issued from 18th September to 23rd September, 1993 (ii) most of the application seeking postal ballots did not contain necessary particulars, (iii) corresponding declarations, in Form VIII under Rule 12(2)(a) of 'Election Rules' did not contain requisite details, proper attestation or certificate whereby statutory and mandatory requirements contained in Rule 12, 13, 16, 23, 26 and FORM XI of the Election rules were contravened, whereby postal ballot-paper ought to have been rejected, without counting in favour of respondent Mir Lashkari. It was also argued that Returning Officer at the time of consolidation of results, was bound to scrutinize relevant documents and count only those ballot-papers which had been received through post. Therefore, irrespective whether at the time of consolidating result objection was raised or not-Returning Officer should have excluded postal ballots from counting in favour of respondent Mir Lashkari Khan whereupon petitioner would automatically gain supremacy.
' Mr. Yahya Bakhtiar strenuously argued that petitioner has challenged the validity of postal ballot merely because same were not received by Returning Officer through post, which defect equally applies to the postal ballots counted in favour of petitioner Tariq Kurd. It was thus urged that petitioner could not be allowed to set-up a new case during arguments or raise self-contradictory pleas.
' Mr. Maqbool Ellahi Malik learned counsel for petitioner attempted to meet this objection by arguing that non-supply of particulars contemplated by section 55 of "People Act" and Notification issued by the Election Commission No, F.1(6) 85 CORD on 16-3-1985, specifying the procedure for trial of the election petition ceases to be fatal if evidence concerning those particulars is brought on record. To supplement his submissions reliance was placed on the observation in following reported judgment
(i) Basanti Lal Ratanlal v. Umashanker Travedi and others (AIR 1965 Madya Pradesh 94) Bhupendra Narain v. Ek Narain Lal (AIR 1965 Patna 332).
(iii) Bhagwan Datta Shastri v. Ram Ratanji Gupta and others (AIR 1960 Supreme Court 200).
(iv) Balwan Singh v. Lakshmi Narain and others (AIR 1960 Supreme Court 770).
(PLD 1975 Jaurnal. 41). He also took pains to argue, that other defects about glaring violation in FORM VIII and application for supplying postal ballots, were not within the knowledge of petitioner.
These defects revealed only evidence was brought on record, therefore, same could form basis for substantiating malpractices in the Election and Stand of Petitioner. Reference was made to observation contained in reported judgments mentioned below:--
(i) Balwan Singh v. Lakshmi Narain and others (AIR 1960 Supreme Court 770).
(ii) S.M. Ayub v. Syed Yousaf Shah and others (PLD 1967 Supreme Court 486).
(iii) Syed Zafar Ali Shah v. Muhammad Nawaz Khokhar (PLD 1986 Jour. 160).
' However, it was contended that under section 66 of "People Act" respondent cannot challenge the validity of any vote obtained by the petitioner unless recrimination was specifically claimed within stipulated period.
10. For comprehending true import of all aspects at first instance I have carefully perused applications given by various electors for obtaining Postal-Ballots issued in Constituency PB-24 Bolan-I which are Exhs.P/A-1 to P/A-401. It is noticed that except six applications Exhs. P/A-2 Exh.
P/A-3, Exh.P/A-204 Exh. P/A 224. Exh. P/A 243 and Exh. P/A-376 the Returning Officer had made direction for issuing postal ballot-papers. According to petitioner's own showing only two electors out of said applications being Exh. P/A-243 and Exh P/A 204, have cast their votes in favour of respondent Lashkari Raisani. The counter-foils of postal ballots Exh. R/48 to Exh. R/448 clearly contain name of electors, number of Identity Card, Serial of Voter list Ward to which he belongs and the constituency. However, most of the declarations of electors in FORM VIII Exh. P/E-400 to Exh. P/E 783 suffered from multiple imperfections including lack of attestation. Record discloses that only 64 postal ballot-papers were received through post office, learned counsel for parties affirmed that none amongst contestants of this Petition received benefit of said postal ballots. Evidently postal ballots which had been cast in favour of petitioner or respondent No, 13 were directly received by the Returning Officer.
Now in this context examining first limb of the arguments, it may be seen the Election Petition under section 55 of "People Act" and procedure prescribed by Notification issued by the Commission dated 16th March, 1985 require precise statement of material facts and complete particulars regarding corrupt or illegal practice allegedly committed in the conduct of election. Main petition admittedly does not contain details concerning glaring defects of declaration in FORM VIII of its attestations. Learned counsel for petitioner conceded that same were highlighted when exhibited in , Court through Returning Officer, as such detailed particulars showing improprieties of postal ballot votes, could not be specifically pleaded. Nevertheless, it has been stressed that Returning Officer was duty bound to scrutinize the same, irrespective whether representatives of either party raising objection in that behalf.
' Greater emphasis was placed on Rules 26(10) of "Election Rules" and FORM XI pointing out- obligation of Returning Officer to reject postal ballots which did not fulfil necessary requirement. To canvass said requirements are mandatory in nature reliance was placed on the observation in case Atta Muhammad Qureshi v. Settlement Commissioner (PLD 1971 Supreme Court 61) which lays down that if statute enacts that certain actions shall be implemented in particular manner, then same should be absolute and neglect thereof will invalidate whole procedure. With great humility it appears profitable to refer judgment of Honourable Supreme Court wherein considering import of Election Laws, question regarding mandatory and directory nature of various provisions has been discussed in its weighty dictum reported as Mukhtar Hussain Shah v. Wassim Sajjad (PLD 1986 Supreme Court 178): which expounds that functions and duties required to be performed by the officials are deemed directory. Relevant portion from said report is reproduced below:-- "Two principles of interpretation of statutes get attracted to the controversy. The first such principle some what broadly expressed is that so far as election laws are concerned the requirements of law is so far as officers conducting the election are concerned are usually taken to be directory and so far as these requirements concern the voter they are usually taken to be mandatory. This principle actually follows from a more general principle expressed (Maxwell, Interpretation of Statutes, 11th Edition, page 369) as follows:-- `Where the prescription of a statute relates to the performance of a public duty and where the invalidation of the acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and Government of those on whom the duty is imposed, or, in other, words as directory only. The neglect of them may be penal indeed but it does not affect the validity of the act done in disregard of them'.
' The principle was recognized in the case of the Election ' for Thornbury Division of Gloucester: (1988) 2 TLR 489) by observing that 'the general principle is that where the matter is one in which the voter has no control he is not to lose his vote on account of an omission by the officer'.'
There is no denying the fact that parties did not raise any objection specially concerning postal ballot-papers while results were finally consolidated by the Returning Officer. Therefore, by their own conduct they are estopped from taking any summersault or challenging the validity thereof at subsequent stage. However, even if it were boundand duty of Returning Officer to essentially examine propriety or validity of Postal ballots, than none can claim exception from such scrutiny regarding postal ballot cast in his favour. Because section 66 of "People Act" for pressing principle of recrimination is operative at post election stage and has absolutely no applicability when results were to be consolidated by the Returning Officer.
' Now considering next arguments, concerning despatch of postal ballots through post, as contemplated under sections 29(4) and 39(4) of the "People Act' legislature in its wisdom contemplated, popular and convenient method through impartial agency for receiving "Postal Ballot" in due course. This was necessary because normally electors issued postal ballots, are not personally available at the specified polling station to cast their votes on account of exigencies of service. Therefore, law has allowed reasonable facility, for ensuring their participation through device of 'Postal Ballot,' which is certainly in consonance with, spirit of franchise. Nowhere, in the enactment any prohibition has been prescribed in receiving back postal ballot by any other method than post. Therefore, real intent and purpose of said facility, appear to promote right of franchise by making necessary safeguard, so that postal ballot-papers of the elector may not be substituted or misutilized. Therefore, elector has been provided primary option of availing agency of Postal Department, to ensure delivery at destination, within stipulated period. But if elector, to Ward Off possibility of delay adopts suitable measures for ensuring safe delivery of his Postal Ballot Paper 'to the Returning Officer without intervention of their contesting party without their exercising corrupt or illegal practice, or influence same in my opinion cannot be invalidated to defranchise the elector. Sometimes this may be attributable to a situation, where postal facility may not be available to elector, or for sufficient reasons he believes that delivery of envelope containing ballot-paper through post might be delayed, thereby depriving him right of vote guaranteed by law and Constitution. In this view I derive support from the observation of Mr. Justice aad Saood Jan, Member Election Commission of Pakistan (as he then was) in case Mahmood Azam Farooqi v.
Muhammad Shafi Okarvi (PLD 1977 Supreme Court page 211 at page 214). Relevant portion is reproduced here: "12. Out of 133 validly cast postal ballots received by Mr. Mahmood Azam Farooqui, 89 were delivered to the Returning Officer by hand. Similarly in respect of Maulana Muhammad Shall Okarvi out of total of 12 postal ballot-papers cast in his favour 11 were received by hand. It was contended before me by the representative of Maulana Muhammad Shafi , Okarvi that the postal ballot- papers which were delivered to the Returning Officer by hand ought to be rejected. I cannot accept this contention. It is true subsection (4) of section 27 of National and Provincial Assemblies (Election) Ordinance, 1970 does state that the elector shall after recording his vote cost the ballot- paper to the Returning Officer, but this provision must be treated as one of the directory nature, it is to be noticed that a ballot-paper is to be rejected if it is received by the Returning Officer after the time fixed for consolidation of results. The right to vote is too valuable to depend upon the vagarise of the Postal Department. If the elector considers the postal deliveries to be too erratic to ensure the receipt of his ballot-paper by the Returning Officer before the dead line, the provisions of subsection (4) ibid, should not be construed so rigidly so as to deprive him of the other modes of delivering his postal ballot to the Returning Officer. It may well be that therein is not just enough time available to the elector for sending his ballot-paper to the Returning Officer by post before the time fixed for the consolidation of result, It is to be noticed that persons employed on election duties are entitled to receive postal ballot-papers shortly after their appointment. The appointment can be made till the closing of the poll. An elector appointed to perform election duties on the polling day will hardly have any time left to send his ballot-paper by post to the Returning Officer so as to reach the latter before the time fixed for consolidation of results. I may also mention that more than 90% of the postal ballot-papers cast in this election were by persons engaged on election duty."
' Without prejudice, if arguments addressed on behalf of petitioner are accepted, obviously votes which had not been received through post must be completely excluded from 'Final-Count' by the Returning Officer on this solitary defect. This principle of inherent invalidity at the stage of consolidation must necessarily apply to all votes whether received by petitioner, respondent No, 13 or any other candidate. There cannot be partial deviation to ideology and party cannot be permitted to blow hot and cold in the same breath, by claiming advantage of such votes but seeking exclusion thereof as regards other side. The Court while dispensing justice must keep the scales 'EVEN' and maintain perfect balance between rights of the parties. It cannot apply different standard when parties are placed in absolutely similar circumstances or display discriminatory treatment for counting votes of either side, which otherwise have common defects. As already observed, that objection of section 66 'People's Act' has absolutely no relevancy while examining role of Returning Officer, concerning consolidation of result in FORM XVI. Therefore, by whatever angle stand of petitioner is analysed postal ballots, which have not been received through post, must either be counted in favour of all the candidates of Constituency PB 24 Bolan-I or excluded in toto. In both the situations, position of petitioner does not improve because, the votes obtained by respondent No, 13 as discussed above would certainly rank higher.
' Looking to next limb of arguments, it is petitioner's own case that glaring defect appearing in the declaration Form VIII could not be pleaded because same transpired, when documents were exhibited before the Tribunal. On the basis of case-law, relied upon by the petitioner including observation contained in case Bostan Ali Hoti v. Haji Aziz Karim (1988 MLD 2116) the petition cannot be deemed defective. Similarly their is no cavil to the proposition that once evidence has been brought on record the Tribunal is bound to examine the same for ascertaining illegal or corrupt practice vitiating the Election. But at the same time it is fundamental rule of jurisprudence and 'principle pertaining to appreciation of evidence, that such material must be considered as a whole. Petitioner cannot be permitted to make pick and E choose for relying merely on the part of evidence, favouring him and requiring the Court to close its eyes regarding common weakness fatal to him. I am afraid, such piecemeal evaluation of evidence or discriminatory approach, would tend to defeat justice rather than promoting the same. Similarly section 66 of "People Act" pertains to recrimination, which in the peculiar circumstances has absolutely no applicability. Primarily because objections relating to declaration Form VIII, were not pleaded in the petition. Evidently this plea cannot be attracted when petitioner himself is basing claim on the knowledge acquired subsequent to evidence brought on record. The proviso to section 66(1) merely creates a clog on the elected candidate in producing evidence unless petition for recrimination has been filed. But in the instant case, whole evidence suggestion alleged defects has been mainly produced by petitioner himself. Therefore, he cannot be allowed to approbate and reprobate on the same facts and similar circumstances. It is pertinent to mention that none of the electors relating to postal ballots has come forward to challenge correctness of casting his vote in the Constituency.
Absolutely no evidence has been produced to establish that any of said votes was manipulated by contesting party, exercising corrupt or illegal practice. Similarly identity of the electors who have cast vote through postal ballots has also not been challenged by any means. It leads to unflinching inference that electors who were issued postal ballot had validity exercised their franchise and despatched the vote to Returning Officer within stipulated period.
From the accumulative effect of above discussion, I am persuaded to G hold that petitioner has not been able to substantiate any material defect in the consolidation of final results by the Returning Officer.
' Leaned Additional Advocate-General also attempted to contend that electors had violated the requirements of law by not sending postal ballots through post. But he was not able to answer the situation discussed above. No other point has been raised from either side. Accordingly for the foregoing reasons, I do not find any merits in this petition, which is consequently dismissed, ' Parties are left to bear their own costs.