' MANZOOR HUSSAIN SIAL, J,---Mian Ejaz Shafi through this appeal under section 67 (3) of the Representation of the People Act, 1976 (hereinafter referred to as the Act) has assailed the decision of the Election Tribunal Sindh, at Karachi, dated 16-3-1995, whereby the Election Petition filed by Syed Masroor Ahsan, respondent, was accepted and he was declared duly elected as Member of National Assembly from Constituency No,NA. 184, Karachi West-I.
2. The relevant facts forming the background of this appeal are that appellant Mian Ejaz Shafi, Syed Masroor Ahsan, respondent No,2 herein, and respondents Nos. 3 to 12, contested election for the seat of National Assembly from the aforesaid constituency in the last General Elections held on 6th October, 1993. The appellant secured 32,937 votes, Syed Masroor Ahsan. Obtained 32670 votes, whereas rest of the candidates could secure only insignificant number of votes. As a result of the count, the appellant was declared duly elected from the Constituency. On 10-10-1993 the results of the election were consolidated in the office of the Returning Officer and notified as such on 24-10- 1993.
3. It appears that on 8-10-1993 Syed Masroor Ahsan filed an application under section 36 of the Act before the Returning Officer for recount of votes polled at all the 173 polling stations of the constituency. The Returning Officer rejected the application on 11-10-1993 on the ground that the allegations leveled in it, were general, vague and could hardly provide reasonable justification for recount of the votes polled in the entire constituency. The Returning Officer during the consolidation of the results confirmed that 722 votes cast at the various polling stations were invalid. He, however, observed that even if invalid votes were deducted from the total count, the result of the election remained unaltered.
4. Syed Masroor Ahsan then filed another application under section 103-AA of the Act before the Election Commission for the recount of the votes, which was rejected by the Election Commission on 27-11-1993, on the ground that there was no specific allegation justifying recount and that the determination of the allegations needed evidence which was wanting in the case.
5. On the following day viz. 28-11-1993 he filed Election Petition before the Election Tribunal, and during the pendency thereof, on 2-4-1994 he moved another application seeking recount of the votes. It was asserted in the application that 722 rejected votes excluded from the count be re- examined, as also prayed for recount of all the ballot papers polled at various polling stations of the constituency. The Election Tribunal seized of the Election petition, on 24-5-1994 passed order; the relevant extract therefrom is reproduced hereunder:-- ' Accordingly I order the Deputy Election Commissioner, Hyderabad to scrutinize ballot papers of 722 disputed votes rejected by the Returning Officer and to recount the votes in presence of the contesting parties and/or their representatives. The re-counting is required to take place in office of the Election Commission of Pakistan at Karachi, under the supervision of the Deputy Election Commissioner, Hyderabad, and in presence of Registrar/Assistant Registrar of the election Tribunal.
Needless to add that the Deputy Election Commissioner, Hyderabad shall give timely notice about the date, time and place of the scrutiny/re-counting. Such re-counting to be done preferably before the next date of hearing viz. 6-6-1994. The application moved by the petitioner under section 151, C.P.C. Stands disposed of accordingly."
6. The appellant challenged the aforesaid order of the Election Tribunal in appeal before this Court, through C.A. No, 425 of 1994, which was dismissed on 6-7-1994 on the ground that the appeal against the interim order passed by the Election Tribunal was not competent. Pursuant to the order of the Election Tribunal, the Deputy Election Commissioner rechecked 722 rejected votes and found the same rightly declared invalid by the Returning Officer. Nevertheless on further re-count of votes he found 625 ballot papers cast in favor of the appellant and 29 ballot papers polled in favor of the respondent No,2 invalid on account of repeated stamping. He accordingly made report to the Election Tribunal.
The Election Tribunal relying on the report of the Deputy Election 1ommissioner allowed the Election Petition vide order dated 18-10-1994; set aside the election of the appellant as Member of National Assembly from Constituency No,NA. 184, Karachi West-1 and declared respondent No,2 to be winning candidate from the said constituency.
7. Aggrieved by that order the appellant filed Civil Appeal No,851 of 1994 before this Court, which was allowed vide order dated 6-12-1994, in terms that the decision of the Election Tribunal dated 18-10-1994 was set aside and the case was remanded with the observation contained in para.6 of the judgment; relevant to the extent is reproduced hereunder:-- "In the circumstances, for the facts and reasons stated above, we set aside the impugned decision and remand the case to the Election Tribunal for compliance of requirement of proviso to subsection (2) of section 46 of the Representation of the People Act, 1976 and for that purpose check and scrutinize invalidated ballot papers in the recount in the presence of the parties and their counsel. For acquiring the satisfaction with regard to invalidity of those ballot papers, it is open to the Tribunal to record evidence to be produced by both the parties. We further direct that the proceedings should be completed and fresh. Election be announced within thirty days from the date of the first hearing."
8. Pursuant to the remand order passed by this Court, the Election Tribunal again accepted the Election Petition, vide impugned order referred to above; relevant portion of the impugned order is as follows:-- "There is no independent evidence available on the record to show that these double marking on ballot papers were made subsequently after the .Results of the election were announced. The ballot papers as they stood show that they contained double markings and obviously the same are invalid. It is the case of the respondent No,2 that these markings were made after the announcement of the result and, thus, the burden would be on the respondent No,2 to prove so and there being no evidence on the record available to substantiate in contention.
' In this view of the matter I am inclined to hold that the said 625 votes are invalid votes and the same are to be excluded from the votes counted in favor of the respondent No,2. Consequently, I find that actual votes cast in favour of the petitioner are more than the votes secured by the respondent No,2. Accordingly I accept this petition and set aside the election of the respondent No,2 as Member of National Assembly from Constituency N.A. 184 Karachi West-I and declare the petitioner to have been duly elected to the National Assembly from the Constituency NA-184 Karachi West-I."
9. Syed Iftikhar Hussain Gilani Advocate, learned counsel for tile-appellant contended that the learned Election Tribunal did not take into account the evidence available on the record which established beyond doubt that the result of the polls was validly declared in presence of the candidates/their agents by all the Presiding Officers; and that the election-petitioner led no evidence to substantiate that at the time of the count 625 ballot papers were counted in favor of the appellant, despite having double stamping thereon. It was argued that the burden in fact lay on the election-petitioner to show that 625 invalid votes were polled in favor of the appellant and counted as valid votes. On the contrary there is evidence on the record to indicate that at the time of counting only 722 votes were found invalid. The next contention raised by learned counsel for appellant was that in the first application moved by the election-petitioner for recount it was alleged that the Returning Officer at 2-00 a.m. Had announced him elected, but on the following day it was announced on the television that he was defeated. This allegation was made subject of an issue, but the respondent failed to prove the same. Similarly, the allegation that the result of the election was got changed by the appellant in collusion with the Returning Officer, was also not proved. It was also submitted that the order of the Election Tribunal, directing the Deputy Election Commissioner for recount, was set aside by this Court. The case was remanded to him for checking, scrutinizing the invalid ballot papers in the recount and for determination of invalidity thereof. It was, however, left open for the Election Tribunal to record evidence if adduced by the parties. The learned Tribunal did record evidence, but failed to determine as to whether the repeated stamps on 625 votes were marked prior or after the declaration of the result of the election. It was contended that the evidence on record established that the double stamping was made subsequent to the declaration of the result, therefore, the appellant, who had been duly elected could not be declared defeated by subsequent tempering with the ballot papers. It was lastly contended that the solitary uncorroborated statement of the election-petitioner on the record did not justify recount of the ballot papers and to declare the appellant who was duly elected as defeated candidate in the election.
10. Learned counsel for respondent, on the' other hand, submitted that this Court duly recognized the competency of the Election Tribunal to undertake recounting by remanding the case for rechecking 625 invalid votes and for the satisfaction of the Tribunal even to record evidence produced by the parties. It was contended that the Election Tribunal has given finding of fact that 625 votes were invalid which were cast in favors of the appellant, therefore, the same were rightly deducted from the total number of votes secured by him. It was also argued that the appellant led no evidence to show that double or multiple stamping on the invalid ballot papers was done at the instance of the election-petitioner, therefore, the Election Tribunal rightly held that the invalid votes having double stamps thereon were to be excluded from votes polled in favor of appellant.
' Raja Muhammad Anwar, Advocate, learned counsel for Syed Masroor Ahsan also contended that the Returning Officer was partial and he manipulated the result of election in favor of the appellant.
The last submission made by the learned counsel for the respondent was that 625 ballot papers cast in favors of the appellant could not be managed by Syed Masroor Ahsan to be doubly stamped as the election was conducted under the supervision of the Impartial Caretaker Government.
11. We have heard learned counsel for the parties at length and have perused the documents on the record with their assistance. Undoubtedly, this Court had remanded the case with a clear direction to the learned Election Tribunal to check and scrutinize invalid ballot papers in the recount in the presence of the parties and their counsel; as also for determining the invalidity of those ballot papers, and for that purpose it was left on for the Tribunal to record evidence to be produced by the parties. The learned Election Tribunal recorded evidence of the Presiding Officers who conducted the election. They categorically stated that the ballot papers were counted in the presence of the candidates or their representatives, and all the invalid ballot-papers were excluded from the count, and the result was accordingly declared in their presence. Forms XIV were duly filled in and signed by the authorized agents of the candidates testifying the correctness of the count. No objection whatsoever was raised by any one of them when the ballot papers were being counted on the polling stations; nor any objection to that effect was leveled in the election petition by the respondent. The allegation forming basis for recount pressed into service by the respondent was that the Returning Officer had wrongly cancelled 722 votes cast in his favors, and that he had been announced duly elected by him, but later on he was declared defeated on the television. These allegations were put to issue and the Election Petition could not prove the same as was held by the learned Election Tribunal. The learned Election. Tribunal did not appreciate the evidence on the record which conclusively proved that only 722 votes were found invalid, which were deducted from the total count. As to the additional discovery of 625 invalid votes, it was neither mentioned in the application for recount that the same were counted as valid votes in favors of the appellant nor even asserted as such in the Election Petition. The order of the Election Tribunal to the Deputy Election Commissioner for recounting the ballot-papers itself together with the subsequent discovery of 625 invalid votes made as consequence thereof was set aside on 6- 12-1994 by this Court, and the case remanded for rechecking the invalid votes found in the recount.
12. In the post-remand proceedings the question whether 625 votes subsequently discovered were invalid before or after the declaration of the result, required determination by the Election Tribunal.
Although evidence was adduced by the parties but the learned Election Tribunal did not evaluate the evidence to determine that question and felt content to hold 625 ballot papers, having double stamping thereon, as invalid and to deduct same from the total votes polled in favors of the appellant. 'The Presiding Officers who had conducted the election appeared before the Election Tribunal and deposed in clear terms that at the time of the original count they found only 722 invalid votes. None of the candidates or their authorized agents present at the time of counting raised any objection as to manner of count or process of counting itself to allow counting of invalid votes in favors of one or the other candidate. It is, therefore, difficult to assume that at the time of the original count, the Presiding Officers or the agents of the candidates or even the Returning Officer at the time of consolidation of the result, could not detect the double stamping on not less than 625 votes. Inevitably it leads to an irresistible conclusion that after lapse of over six months from the declaration of the result, if some ballot papers had double stamping thereon, it had taken place after and not before the declaration of the result. This being so, the double stamping of the ballot papers to invalidate the valid votes having been done after the declaration of the result, the appellant who had been duly declared elected cannot suffer. The burden of proving the allegation that the result of the count was changed adverse to the election-petitioner by counting invalid votes in favors of the appellant heavily lay on the election-petitioner and not on the appellant, as erroneously construed by the Election Tribunal.
13. The contention of the learned counsel for the election-petitioner that the Election Tribunal had no jurisdiction to review the previous order, refusing to summon official witnesses, is untenable, because the Election Tribunal recorded the evidence of Presiding Officers in terms of the observation made by this Court in the remand order to the effect that "for acquiring the satisfaction with regard to invalidity of these ballot papers, it is open to the Tribunal to record evidence produced by both the parties". The election-petitioner despite opportunity available led no evidence to prove that double stamps on the ballot papers were affixed during polling or before the declaration of the result and 625 invalid ballot papers were illegally counted in favors of the appellant. Similarly he led no evidence to prove that Returning Officer was partial and harbored malice against him. Mere allegation against the Returning Officer, 'however grave, it may be without proof would be of no legal significance.
14. We have examined the evidence on the record and perused the applications moved by the election-petitioner for recount together with the orders passed by the Returning Officer as well as the Election Commission, rejecting them and hold that tampering with the votes was made subsequent to the declaration of the result of election as such is of no consequence qua the appellant, who was duly elected. The will of the electorate expressed in favor of the appellant cannot be set at naught by mere allegation of the election petitioner, which he failed to prove.
15. The upshot of the above discussion is that the impugned order dated 6-12-1994 passed by the Election Tribunal is set aside and this appeal is allowed, with no order as to costs. In the result, the appellant continues to be duly elected Member of the National Assembly from Constituency No, (Sd.)
Saleem Akhtar, J.
(Sd.)
Manzoor Hussain Sial, J.
' I append herewith my separate note.
(Sd.)
Mir Hazar Khan Khoso, J.
' MIR HAZAR KHAN KHOSO, J.---I have had the privilege to read the draff judgment authored by my learned brother Mr. Justice Manzoor Hussain Sial; with all respects I do not subscribe to the view taken and conclusion 'arrived at by him in allowing the appeal and declaring the appellant to continue to be duly elected Member of the National Assembly from Constituency No,NA184 Karachi West-I. The reasons whereof are as under.
2. Before dilating upon the controversial issue it may be seen that relevant facts involved in the case and the contentions raised by the learned counsel for the contesting parties have been given in detail by my brother it would be indeed a futile effort on my part to repeat it.
3. However, on face of it the most crucial point involved in the appeal is the recovery of 625 double stamped votes which came on surface by recounting by the Deputy Election Commissioner. The same have been proved through evidence of Mr. Ahmad Ali Halepota, Deputy Election Commissioner, Hyderabad, who was examined after remand of the case by this Court. The Tribunal by its order dated 16-3-1995 accepted the above evidence and deducted the double stamped votes as being invalid from the count of the appellant and declared the respondent No,2 as successful candidate.
4. My learned brother in the proposed judgment by his irresistible conclusions did not agree with the finding arrived at by the Tribunal and has observed that the same have been double stamped after declaration of the result. My learned brother has relied upon the oral evidence of Presiding Officers who were examined in rebuttal.
5. It may be noted that besides the abovesaid oral evidence there is strong circumstantial evidence available on the record wherefrom it can be ascertained whether the double stamping of the ballot was done earlier than official declaration of the result or thereafter. In my humble view the same can be assessed from the intact seals, the bags containing the ballots at the time of recounting by the Deputy Election Commissioner in presence of the appellant/his representative, had. Presence of the appellant and his representative is not denied. However, it is also clearly reflected from the report of the Deputy Election Commissioner, Exh.
13. The same is reproduced for convenience:-- "During the process, the Registrar of Election Tribunal,. Mr. Sultan Nasir, candidates and their representatives remained present except the following candidates and their representatives:--
(1) Mr. Abdullah Baloch.
(2) Mr. Muhammad Irfan.
(3) Mr. Mustafa Kamal Rizvi."
' In his cross-examination to Mr. Naqi Mirza, Advocate, for the respondent No,2, the witness, Mr. Ahmad Ali Halepota, has stated on oath that the envelopes were 'duly sealed' at the time when he opened them. He could not say if the bags were tampered with earlier he was justified in saying so as there was no indication of tampering. Obviously desealing was done in presence of the candidates and their representatives and there was no complaint from them at that time. The evidence and report of the Deputy Election Commissioner). Even in cross-examination the appellant did not suggest that at the time of opening the seals of the bag were tampered with. In cross-examination there is only suggestion that double stamping was manipulated by D.C. And S.S.P., C.I.A. This suggestion by itself is not sufficient to establish that seals were tampered with. It may be observed that there is nothing in black and white on the record that at the time of the opening the seals of the bags were tampered with. Neither the appellant nor his representative lodged such protest with the witness at the relevant time. However, there is a Fax, Exh. 22, available on the record which was sent on 6-6-1994. It reflects to be after thought. However, for sake of convenience it is reproduced hereunder:--{{TABLE}} "ES/W325/94/D-280, June 6, 1994. By FAX. 5680880 ' The Deputy Election Commissioner, ' Hyderabad, Camp at Karachi, ' Election House, 44-A, Pakistan Secretariat, Shahrah-e-Iraq, Saddar, Karachi.
' Attention: Mr. Ahmed Ali Halipota.
' Subject: RECOUNTING OF 722 REJECTED VOTES.
' REFERENCE: ELECTION TRIBUNAL SINDH ORDER DATED 24-5-1994 IN ELECTION PETITION NO. 51 OF 1993.
' Dear Sir, ' Without prejudice it is respectfully submitted that today, during the process or recounting of votes, the seals of the bags containing ballot papers of Polling Stations Nos. 114, 117 and 118 were found broken. It is further submitted that the envelopes containing my valid votes of these polling stations did not have any seal on them. It is still further - submitted that at Polling Station No, 114, out of my 74 valid votes, after scruting were found to contain 31 ballot papers having double and triple stampings.
' At Polling Station No, 117, out of my 184 valid votes, 149 ballet papers were found having double and triple stampings. In Polling Station No,118 out of 46 valid votes, 41 ballot papers were found having double and triple stampings.
' You were supplied certified copies of the statement of the count by Mr. Jamshed Ahmad Khan, a contesting candidate alongwith objection to this regard wherein no such case has been mentioned.
' It may be worth mentioning here that during the process of counting and consolidation of results in front of Presiding Officer and Returning Officer as well as in the presence of Polling Agents of all the contesting candidates, no complaint of any nature/kind whatsoever was lodged with the officials.
' From the above, it is crystal clear that my valid votes have been turned into invalid votes by placing double and triple stamps on my valid votes/ballot papers.
' You are requested to kindly note my objections/protest in the matter and also note the fact that this double and triple stamping in such a huge quantity has been found only on my valid votes and that not a single such vote of the defeated candidate namely Mr. Masroor Ahsan.
' Thanking you, Truly yours, (Sd.)
(Mian Ejaz Shafi)" .7. I am fully satisfied that at the time of opening the bags containing the ballots the same were duly sealed. In Chambers' English Dictionary ' duly' has been defined as ' duly, adv. Properly; fitly; The word 'duly' carries much wight and significance. It cannot be taken or ignored lightly. The bags being duly sealed at the time of opening for recounting in presence of the appellant and his representative repels every possibility of tampering with the ballots. It is a strong circumstantial evidence. Ostensibly this strong piece of circumstantial evidence totally belies the oral evidence of Presiding Officers. No weight can be attached to their oral evidence as such. In the circumstances discussed hereinabove I do not find any defect with the terse judgment passed by the Election Tribunal. The appeal fails which as, such is dismissed with costs.
(Sd.)
Mir Hazar Khan Khoso, J.
ORDER OF THE COURT ' By majority opinion this appeal is accepted with no order as to costs.
(Sd.)
Saleem Akhtar, J.
(Sd.)
Manzoor Hussain Sial, J.
(Sd.)
Mir Hazar Khan Khoso, J.