' Ghulam Habib, petitioner herein, through this Election Petition has challenged the election of Constituency No,PF-28 Kohat-I, held on 3-2-1997 wherein Hidayatullah Khan Afridi, respondent No,1 was declared as returned candidate for the membership of the Provincial Assembly of N.-W.F.P.
2. Succinctly stated, the facts of the case as given in the petition are that the Constituency PF-28 Kohat-1 consists of 46 Polling Stations; that the result of Election-1997 held on 3-2-1997, was unofficially announced on 4-2-1997, whereby the petitioner secured 6762 votes as against respondent No,1, who secured 9901 votes and thus, respondent No,1 was declared successful by a margin of 3139 votes; that on the following day i,e, 5-2-1997, the petitioner submitted an application to the Election Commission of Pakistan through a fax message, stating therein that massive and blatant rigging had taken place in the election and prayed for setting aside the result of the election, which was not responded by the Election Commission of Pakistan; that on 6-2-1997 the Returning Officer held the consolidation of the election result with a notice to the petitioner, who submitted an application for recount of votes polled at Polling Stations 12, 13, 16, 17, 26, 27, 44, 45 and 46, which was accepted by the Returning Officer and started recount of votes; that during the process of recount, it was found that most of the ballot-papers had no initial/signature of the Presiding/Polling Officer. The petitioner immediately submitted another application to the Returning Officer for declaring the said votes to be invalid and to exclude them from the count but no order was passed thereupon. However, recount was stopped on the direction of District Returning Officer; that another application was submitted by the petitioner to the Returning Officer for continuing the recount process, but no order was passed on it; that on the direction of District Returning Officer, the Returning Officer completed the consolidation of result and sent it to the Election Commissioner of Pakistan. The petitioner on 11-2-1997 moved another application to the Election Commission of Pakistan with similar request which he had been doing since 5-2-1997, but to no effect; that on 16-2-1997 the petitioner made a detailed application to the Election Commission of Pakistan giving reference of the previous applications which he had made to the Returning Officer and District Returning Officer and requested for setting aside the result of the election and sought for recount of the entire votes polled in the said Constituency and till then respondent No,1 should not be notified as returned candidate. The Election Commission vide its letter, dated 16-2-1997 communicated him that he may file an Election petition, if so advised, hence the Election petition in hand.
3. The Election petition was strenuously resisted by respondent No,1, who not only controverted the allegations of corrupt and illegal practices asserted therein but also raised certain preliminary objections in his written statement.
' Preliminary objection No,3 was with regard to the maintainability and competency of the petition.
On 5-5-1997 arguments were heard on the preliminary objections. Learned counsel for respondent No,1 contended that the Annexures annexed with the petition have not been signed by the petitioner, hence the compliance of section 55 has not been made. Further contended that even if the votes polled at Polling Stations 13, 14, 16, 17, 26, 27, 44, 45 and 46 are excluded from the total count, even then respondent No,1 stands returned, therefore, the petition being without any merit deserves dismissal. On the other hand learned counsel for the petitioner submitted that the respondents cannot go into the merits of the case at this stage as the second plea requires evidence. The first objection had no base to stand upon as the Annexures annexed with the petition have been duly signed by the petitioner and the second plea required evidence, therefore, the petition could not be disposed of on preliminary objections, hence preliminary objections were ruled out. In view of the pleadings of the parties the following issues were framed:--
(1) Whether the petition is misconceived being incompatible with the provisions of sections 52 and 55 of the Representation of the People Act, 1976 and as such is not competent?
(2) Whether the petitioner has suppressed material facts in this petition and has not approached this Tribunal with clean hands?
(3) Whether the ballot-papers bearing no initial and stamp of the Presiding Officer, suggest manipulation and bogus polling, if so, its effect?
(4) Whether respondent No,1 has committed any illegal/corrupt practice, if so, its effect?
(5) Whether petitioner is entitled to the rechecking and recounting of the ballot-papers as prayed for in the present petition?
(6) Relief.
4. The petitioner produced Gul Akbar, Assistant Election Commissioner (P.W.1), who appeared on behalf of the Secretary, Election Commission of Pakistan, Islamabad and Provincial Election Commissioner, N.-W.F,P., Peshawar. To this effect he produced authority letter, dated 5-6-1997. He had brought the application submitted by the petitioner under section 103-AA of the Representation of the People Act, submitted to the Election Commissioner of Pakistan, which is Exh.P.W.1/2 and to the Returning Officer, dated 5-2-1997 Exh.P.W.1/3. He also produced extract taken from the minutes of the Election Commission of Pakistan held on 16-2-1997 which is Exh.P.W.1/4. In cross-examination the witness stated that he had not been given any authority by the Election Commissioner of Pakistan to appear on his behalf and testify before this Tribunal. He had also not brought the record of all those Constituencies in which the Commissioner has ordered the recounting of the votes in similar objections. At this stage learned counsel for the petitioner stated that the witness would not be examined further and he be directed to produce the list of the Constituencies, wherein recount was ordered by the Commissioner, which request was acceded to and on Court direction the witness produced the details of Constituencies in which the orders for recount were made alongwith the letter, which is Exh.P.W.1/5.
5: Sajjad Anwar, Senior Civil Judge/Returning Officer PF-28 Kohat-I, (P.W.2), deposed that he consolidated the election result on 6-2-1997 with notice to the petitioner, who gave an application for recounting of votes polled at Polling Stations 12, 13, 16, 17, 26, 27, 44, 45 and 46. The witness checked the polling bags of Polling Stations, 12, 13, 16, 17 and 26 but nothing favourable to the petitioner was found.
6. Malik Muhammad Iqbal (P.W.3) and Jumma Khan (P.W.4) deposed that they had given their statements on affidavit, annexed with the petition, wherein they have stated that they were present before the Returning Officer concerned when District Returning Officer came to the office of Returning Officer and questioned that why he started opening ballot-papers bags and District Returning Officer further directed and ordered Returning Officer not to open further bags and stop official counting of ballot-papers and the Returning Officer complied with the orders of District Returning Officer.
7. Ghulam Habib, petitioner herein, appeared in the witness-box as P.W.5 and deposed that the petition was drafted on his instructions. He reiterated the entire contents of the petition and verified the same to be true and correct to the best of his knowledge.
8. Jehangir Khan, District and Sessions Judge, the then District Returning Officer deposed that he was District Returning Officer of District Kohat in the General Election-1997. He made round of the offices of the respective Returning Officers on the day of consolidation of result so as to ensure timely completion of such consolidation and deposit of election material like ballot-papers etc. In the Treasury. In this process he visited the Office of Returning Officer PF-28 Kohat-I and found that the Returning Officer was having some election bags lying in his retiring room, he was sitting alongwith some persons from the public and the remaining election bags of the Constituency were lying in the Court Room. He asked him what was he doing, who stated that on the application of the petitioner he was recounting certain ballot-papers of certain Polling Stations. The witnesses told the Returning Officer that it would be better and safe if such recounting was done in the Court Room instead of Retiring Room. In reply to a question from the Returning Officer, the witness also made reference to the relevant provisions of law and the rules which were supplied at the time of election regarding election matter and recounting etc. He advised the Returning Officer to record reasons to justify the recounting either of one Polling Station or more than one or of the whole, as the case may be. The Returning Officer was busy in the recounting of votes and the witness left his Court and proceeded to other Returning Officers.
9. Mr. Yahya Khan Afridi, Advocate counsel for respondent No,1 did not wish to produce any evidence.
10. Learned counsel for the petitioner contended that the Returning Officer under section 39(6)(a) and (b) of the Representation of the People Act, 1976 should have completed the recounting process which was initiated on the written request of the petitioner and he should not have acted on the directions of the District Returning Officer by leaving the count incomplete. The Returning Officer thus, failed to exercise his jurisdiction independently by not acting with his independent application of mind and thus, the stoppage to recount the votes without taking it to its logical conclusion was against the election law/rules. He contended that the interference of the District Returning Officer in the exercise of powers by the Retiring Officer under section 39(6)(a) of the Act ibid was patently mala fide. Further contended that the Election Commission of Pakistan under section 39(6)(b) read with section 103-AA of the Act ibid should have directed the Returning Officer to recount the ballot-papers as requested by the petitioner in his application and its refusal amounted to failure to exercise its powers conferred on it under the law. He submitted that the Returning Officer has observed in writing on the application of the petitioner that there was no signature of the Presiding Officer on the ballot-papers but they were only stamp marked. He urged that the ballot-papers were to be stamped and signed by the Presiding Officer under the law and omission of any of the two would render the votes invalid which have to be excluded from the count. He contended that respondent No,1 has been returned due to corrupt and illegal practices as well as for non-compliance of the provisions of Act and the Rules, therefore, his election be declared void and the petitioner be declared returned being next to respondent No,1 and/or election as a whole be declared void.
11. On the other hand, learned counsel for respondent No,1 contended that respondent No,1 has been declared successful for securing 9901 votes whereas the petitioner obtained 6762 votes in the said elections. He contended that polling was conducted peacefully and neither the petitioner nor any of his Polling Agents in any one of the Polling Stations raised any objection to the polling staff about any illegal or corrupt practice in the election except for one application made for late starting of female polling in Polling Station, Government High School, Togha Bala, and it was after the declaration of success of respondent No,1 that the so-called objections on imaginative and hypothetical grounds were made by the petitioner. He contended that there has been no interference of any nature whatsoever and no illegal practice has been committed by respondent No,1. He submitted that if some ballot-papers have not been signed by the Presiding Officer although they bore the stamp mark, the same could be included in the count. He urged that for the lapse or omission of the official/Presiding Officer, respondent No,1 cannot be penalised, and in this respect reliance was placed on PLD 1986 SC pp.178 and 487. During the polling not even a single complaint was made to the polling staff by any of the Polling Agents of the petitioner, for any illegal or corrupt practice. He contended that the Election Commission of Pakistan has rightly refused to entertain the application for recount as the same did not disclose any grave illegality or violation of the provision of the Act or the Rules and the same was neither competent nor maintainable.
Learned counsel for respondent No,1 submitted that even if the alleged votes of disputed Polling Stations are kept out of the counting, even then the number of votes of respondent No,1 exceed the number of votes of the petitioner and he stands successful and returned.
12. I have given my due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case. My issue-wise findings are as under:-- Issues Nos.1 and 2. Both these issues are interlinked, hence are taken together. Respondent No,1 failed to establish that the election petition is misconceived in any manner being incompatible to the provisions of sections 52 and 55 of the Representation of the People Act, 1976 and that the petitioner has suppressed material facts in this petition and has not approached this Tribunal with clean hands. Sections 52 and 55 of the Representation of the People Act, 1976 read as under:-- "52. Election petition.--- (1) No election shall be called in question except by an election petition made by a candidate for that election (hereafter in this Chapter referred to as the petitioner).
(2) An election petition shall be presented to the Commissioner within (forty-five) days of the publication in the official Gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury of sub-Treasury in favour of the Commissioner, under the prescribed head of account, as security for the costs of the petition, a sum of one thousand rupees.
55. Contents of petition.--- (1) Every election petition shall contain--
(a) a precise statement of the material facts on which the petitioner relies;
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and
(c) the relief claimed by the petitioner.
(2) A petitioner may claim as relief any of the following declarations, namely :--
(a) That the election of the returned candidate is void;
(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or
(c) that the election as a whole is void.
(3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings."
' It is manifest from its bare reading that the election can be called in question by the election petition as contemplated in section 52 of the Act ibid which has to be represented to the Commission within forty-five days of the publication of the name of the successful candidate in the official Gazette and it shall be accompanied by a receipt of the deposit of Rs,one thousand whereas section 55 ibid provides that election petition shall contain material facts with full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full statement indicating the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date of place of the commission of such practice or act and the relief sought for. The petition appears to be in order as it contains the material facts and the grounds on which the election has been challenged. It is also accompanied by the affidavits of the witnesses and the receipt of Rs,1,000 as required under the law. Both these issues are decided accordingly.
Issue No,3.--- The case of the petitioner as enunciated in the petition and reiterated in the statement of the petitioner is that during the consolidation proceedings it came to light that some of the ballot-papers did not bear initial/signature of the Presiding Officer but they only bore stamp marks which suggested manipulation and bogus casting of votes. He applied to the Returning Officer for the recount and exclusion of such votes being invalid. The Returning Officer started the recounting but it was stopped at the instruction of the District Returning Officer. Sajjad Anwar, Senior Civil Judge/Retunring Officer appeared as P.W.2 who stated that he consolidated the election result on 6-2-1997 with notice to the petitioner. The petitioner applied for recount the votes polled at Polling Stations Nos.12, 13, 16, 17, 26, 27, 44, 45 and 46. He accepted the application and started recount and during checking nothing favourable to the petitioner was found. He stated that some counterfoils. Of the ballot-books were not carrying the signatures of the Presiding Officer but it only bore the stamp mark of the Presiding Officer. In cross-examination he stated that the stamp of the Presiding Officer and thumb-impressions affixed on the ballot-papers were in haphazard manner and stated that he cannot say whether the stamp and the thumb-impression suggest any manipulation. He stated that he did not recount the ballot-papers relating to Polling Stations 44, 45 and 46 as he was repeatedly asked by the District Returning Officer to expeditiously submit the result of the Constituency. He stated that on the polling day he received a message from Deputy Commissioner, Kohat that the polling in Female Polling Station in Government High School, Tough Bala had not started. He visited the polling station at 8-30 a.m. And asked the Presiding Officer as to why the election has not started, but he could not give any satisfactory answer. In cross- examination he stated that except for the message of Deputy Commissioner, Kohat and the application of the petitioner, dated 3-2-1997 regarding the non-starting of the polling at Female Polling Station, he received no other complaint regarding any irregularity, or any corrupt or illegal practice in the election. He admitted that respondent No,1 obtained 9911 votes while the petitioner obtained 6762 votes and the difference between the two was 3149 votes. He also admitted that number of votes obtained by respondent No,1 in all the Polling Stations objected to by the petitioner comes to 2278 votes and if the aforesaid votes are excluded from the total number of votes secured by respondent No,1 even then the respondent No,1 would still win.
13. Ghulam Habib petitioner himself appeared as P.W.5 who stated that the election petition was drafted at his instructions and reiterated the contents thereof on oath to be correct. In cross- examination he stated that on the polling day he made an application to the Returning Officer regarding late starting of the poll in Female Polling Station in Government High School, Tough Bala and no other application was made on the said date. He also admitted that he submitted an application to the Election Commission of Pakistan on 5th of February, 1997 and another application on 6th of February, 1997 pointing out certain discrepancies in certain polling stations on the date of consolidation of result.
14. Mr. Jehangir Khan, District and Sessions Judge/District Returning Officer appeared as P.W.6 and stated that he in his capacity as District Returning Officer made a round to the offices of the respect Returning Officers on the day of consolidation of results so as to ensure timely completion of such consolidation and deposit of election materials in the treasury. He visited the Office of Returning Officer of PF-28 Kohat-I and found that some election bags were lying in his Retiring Room and on his query from the Returning Officer, he was informed that he was to recount certain ballot-papers on the application of the petitioner. He told the Returning Officer that it would be better if this exercise is done in the Court Room instead of the Retiring Room because the same was samll and cannot accommodate the persons from the public. In the cross-examination he denied the suggestion that he instructed the Returing Officer to stop the recounting and as a result thereof the recounting was stopped. He stated that due to sickness of his mother he could not attend the Tribunal for recording his statement in response to the notice of this Tribunal.
15. The assertions in the petition and the evidence show that certain ballot-papers did not bear the initial/signatures of the Presiding Officer but they bore the stamp mark of the Presinding Officer which ballot-papers had been counted in favour of respondent No,
1. The second allegation is that the poll in the female Polling Station at Government High School, Tough Bala was started late. Both these allegations are against the polling staff of the polling station and respondent No,1 cannot be held responsible for the said lapses/omission. Section 33(2)(d) of the Representation of the People Act, 1976 provides that the ballot-papers shall on its back be stamped with the official mark and signed by the Presiding Officer whereas subsection (4)(c)(i) of section 38 of the Act ibid provides that the Presiding Officer shall count, in such manner as may be prescribed, the votes cast in favour of each contesting candidate excluding from the count the ballot-papers which bear - (i) no official mark and signature of the Presiding Officer.
16. The above-quoted sections and Rules 23(i) and 64(3)(f) of the Representation of the People (Conduct of Elections) Rules, 1977, came under consideration before the Supreme Court of Pakistan in a case of Ch. Muhammad Abdullah v. Ch. Abdul Wahid reported as PLD 1986 SC 487 wherein it was observed as follows:-- "12. In the light of the decided cases cited at the Bar and on examining the statutory provisions hereinabove reproduced, we are of the view that a ballot-paper can be rejected as invalid under section 38(4)(c) when neither the official mark nor the signature of the Presiding Officer are present on its back, so that if either it bears the official mark or the signature of the Presiding Officer, the ballot-paper cannot be excluded from the count and has to be treated as a valid vote in favour of the candidate in whose name it has been cast. The change effected by the amendment in substituting the conjunction 'or' with ' and', in our view makes the position all the more clear, that for purposes of exclusion, both conditions must co-exist, that is, there should be no official mark and no signature on the ballot-paper. Conversely if one condition exists, the ballot- paper cannot be excluded from the count. In regard to elections to the seats reserved for women, Rule 58 makes similar provisions for stamping the ballot-paper with the official mark and initials of the Presiding Officer. So far as rejection of invalid ballot-papers Rule 64(3) lays down various situations in which the ballot-paper in such an election is to be rejected as invalid. The language of Rule 64(3) takes the matter beyond any controversy by categorically providing that a ballot-paper shall be invalid which does not beat both the official mark and the initials of the Returning Officer.
Although this rule is not directly applicable in the case of election to the general seat which is the case before us, it provides unambiguous insight into the mind of the law-maker, in that similar provisions made in connection with the different types of elections must have similar effect under the same law.
13. In this view of the matter we are unable to agree with the Tribunal that if both the official mark and the signature of the Presiding Officer were present on the ballot-paper only then could it be counted as a valid vote, otherwise it was to be excluded. This in our view, would have been the effect if the provisions of section 38(4)(c) were couched in positive language to the effect that such ballot-papers were to be counted which bear official mark and signature of the Presiding Officer. But the provisions are couched in a manner that the two conditions have been laid down for the purpose of exclusion, therefore, the power to exclude the ballot-paper is dependent on both conditions co-existing simultaneously, which is the effect of the conjunctive ' and' used in the provisions."
In view of the above ruling of the apex Court of the country votes which were not bearing the signature of the Presiding Officer were treated as valid and were correctly included in the count by the Presiding Officer. Moreover, the candidate cannot be penalised for the omission or lapse of the official/Presiding Officer. It may be mentioned that even if those votes would have been excluded, even then the respondent No,1 had the leading position and it would not have affected the election result. In another pronouncement by the Supreme Court reported in the same book cited above at page 178, it has been held 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".
' In view of the above this issue is decided against the petitioner.
Issue No,4. The petitioner has not alleged any illegal or corrupt practice either in the election petition or in his statement before the Tribunal. His only case is that the polling at Female Polling Station, Government High School, Tough Bala was started late whereas at the time of consolidation of result certain ballot-papers were found without initial or signature of the Presiding Officer. It would be appropriate to reproduce the definition of corrupt practice and illegal practice:-- "78. Corrupt practice.--- A person is guilty of corrupt practice if he---
(1) contiavenes the provisions of section 49; and
(2) is guilty of bribery, presonation or undue influence;
(3) makes or publishes a false statement--
(a) concerning the personal character of a candidate or any of his relation calculated to adversely affect the election of such candidate or for the purpose of promoting or procuring the election of another candidate, unless he proves that he had reasonable grounds for believing, and did believe, the statement to be true;
(b) relating to the symbol of a candidate whether or not such symbol has been allocated to such candidate;
(c) regarding the withdrawal of a candidate; or
(4) calls upon or persuades any person to vote, or to refrain from voting, for any candidate on the ground that he belongs to a particular religion, Province, community, race, caste, Bradari, sect or tribe;
(5) knowingly, in order to support or oppose a candidate, lets, lends, employs, hires, borrows or uses any vehicle or vessel for the purposes of conveying to or from the polling station any elector except himself and members of his immediate family; or
(6) causes or attempts to cause any person present and waiting to vote at the polling station to depart without voting.
83. Illegal practice.--- (1) A person is guilty of illegal practice if he--- (a)
(b) obtains or procures or attempts to obtain or procure, the assistance of any person in the service of Pakistan to further or hinder the election of a candidate;
(c) votes or applies for a ballot-paper for voting at an election knowing that he is not qualified for, or is disqualified from, voting;
(d) votes or applies for a ballot-paper for voting more than once in the same polling station;
(e) votes or applies for a ballot-paper for voting in more than one polling station for the same election;
(f) removes a ballot-paper from a polling station during the poll; or
(g) knowingly induces or procures any person to do any of the aforesaid acts.
(2) Any person guilty of illegal practice shall be punishable with fine which may extend to two thousand rupees."
The petitioner has failed to highlight any corrupt or illegal practice committed in c the elections within the meaning of sections 78 and 83 reproduced above, therefore, this issue is decided against him.
Issue No,5.--- The petitioner has prayed for the recounting of the entire ballot-papers/counterfoils polled in the election and to declare the election as void. In the applications submitted on 6-2-1997 by the petitioner to the Returning Officer for the recount of ballot-papers, the petitioner had levelled general and vague allegations which he could not substantiate through any evidence. Recount cannot be granted unless conditions lay down in section 39 of the Act ibid are fulfilled and the Returning Officer is "satisfied that the request is reasonable". Reference can be made to PLD 1986 SC 483. The petitioner in his statement has unambiguously stated that he applied for recount of the votes to the Returning Officer after the informal result of the election. Since the petitioner has failed to prove any corrupt or illegal practice, therefore, it is not required at this stage to recheck and recount the ballot-papers which otherwise would not affect the election result already notified.
' Relief. The netshell of the above discussion is that this election petition is dismissed, with no order as to costs.
Election .