' Vide its order, dated 16-11-1994 this Tribunal had disposed of the following three petitions:
(1) Mohandas Dev v. Aloo Mal and others (E.P. No,93/1993),
(2) Sarvanand v. Alloo Mal and others (E.P. No,95/1993), and
(3) Arjun Das Chawla v. Hari Ram and others (E.P. 100/1993).
' Abovenoted first and third petitions were dismissed while the petitioner at No,2 (Sarvanand v. Alloo Mal and others, E.P. No,95/1993) was allowed and Sarvanand was declared successful. Petitioner in E.P. No,93/1993 and petitioner Arjun Das in E.P. No,100/93 did not go in appeal and as against them the order of the Tribunal has become final. However, respondent No,45 Lachman Das (the returned candidate) went in appeal before the hon'ble Supreme Court and his appeal was accepted and the case was remanded vide order, dated 11-1-1995 with the direction to decide it afresh "after re- examining the Returning Officer and the documents on the basis of which the report was submitted by him". On receipt of the file on remand, the Returning Officer Mr. A.G. Gazdar, District and Sessions Judge, was re-examined and cross-examined. He produced the original Form 16-B as Exh.3/1, all the unofficial tally sheets (which he described as the original Form 16-A) as Exhs. 3/2 to 3/95 and all Form 16-A (which is wrongly written as "Form 16-B" in the deposition) received from Assistant Returning Officers as Exhs.3/96 to 3/174. Petitioner Sarwanand had submitted a petition to him and he produced it as Exh. 3/176 and on this petition he had submitted comments to the Chief Election Commissioner and he produced its copy as Exh.3/175. He also produced copy of Gazette Notification of 18th October, 1993 as Exh. 3/177, copy of letter, dated 4-11-1993 from the Election Commission as Exh.3/178 and copies of Gazette Notification of 23rd September, 1993 pertaining to P.S-10 and P.S-11 as Exh.3/179 and Exh.3/180 respectively. This completed the exercise enjoined by the hon'ble Supreme Court vide the remand order.
2. When arguments commenced on 15th March, necessity was felt to make comparative study of the figures in Forms 16-A and 16-B and Provincial Election Commissioner, Karachi was directed to undertake this exercise with the help and in the presence of Mr. Imam Ali G. Kazi for the petitioner and Mr. Raja Qureshi for respondent No,45. This he has done, although respondent No,45 or his counsel did not appear before the Provincial Election Commissioner, as would be narrated in detail later on in the judgment.
3. Arguments of learned counsel for the petitioner were heard on 19-4-1995 and for lack of time the hearing was adjourned and learned counsel for respondent No,45 was heard on 23-4-1995. He has also filed written arguments and alongwith them he has also filed an application for summoning the Provincial Election Commissioner, Karachi for cross-examination.
4. I shall first take up the objections filed by respondent No,45 on the report of Election Commissioner.
5. First objection is that the exercise entrusted to the Provincial Election Commissioner is beyond the scope of the order of remand passed by the hon'ble Supreme Court. This argument is rejected for the following reasons:---
(a) On 15-3-1995 learned counsel for the petitioner commenced his arguments and during the course of his submissions referred to the figures given in Forms 16-A and 16-B and necessity was felt to prepare a chart of comparative study of the figures in the two forms. It was a time- consuming clerical exercise and to save the time of the Tribunal, Provincial Election Commissioner, Karachi was directed to undertake it for the Tribunal. Any reference to the remand order is totally irrelevant and misleading. It was within the power of the Tribunal to look into Forms 16-A and 16-B and compare their figures and prepare a chart and the Tribunal could also entrust this clerical exercise to Provincial Election Commissioner, Karachi.
(b) Although the order of 15-3-1995 does not say so, Mr. Imam Ali G. Kazi and Mr. Raja Qureshi (learned counsel for the parties) had not only not raised any objection to the appointment of the Provincial Election Commissioner, Karachi as Commissioner to undertake this exercise, both of them had, in fact, given their consent to the entrustment of this exercise to the Provincial Election Commissioner, Karachi. Mr. Raja Qureshi is now estopped from raising this objection.
(c) On 19-3-1995 learned counsel for respondent No,45 moved an application (page 37 of the file) seeking enlargement of the scope of the exercise entrusted to the Provincial Election Commissioner. How could such application have been moved unless learned counsel for respondent No,45 was of the view that the exercise entrusted to the Provincial Election Commissioner was valid and legal and was not in conflict with the scope of the order of remand passed by the hon'ble Supreme Court? This objection is, therefore, contradictory in terms.
6. Second objection is that "in the process of re-examination of Returning Officer, glaring irregularities had surfaced which has belied the report of the Returning Officer and, therefore, in order to ascertain the truth of the matter this Court ought to have directed the preparation of the comparative statement on the basis of the tally sheets and Form 14 in addition to Forms 16-A and 16-B". But how could this be done if the whole exercise was beyond the scope of remand order as per first objection. Learned counsel for respondent No,45 is blowing hot and cold in the same breath. Secondly, the exercise entrusted to the Provincial Election Commissioner, Karachi was not to ascertain the truth, the exercise was entrusted to him to save the time of the Tribunal in comparing the entries of Form 16-A with the entries of Form 16-B. Learned counsel for respondent No,45, in fact, pretends not to know the scope of the reference made to Provincial Election Commissioner. He cannot pretend so.
7. He last objection is that the results of PS. 11, 47, 56, 57 and 86 were missing. But what this has to do with the exercise entrusted to Provincial Election Commissioner. Results in Form 16-A were incorporated in Form 16-B. It was for the Tribunal to see and determine whether Form 16-B had been strictly in accordance with the contents of Form 16-A. Missing results, if any, had nothing to do with the exercise entrusted to Provincial Election Commissioner. Learned counsel for respondent No,45 is at liberty to refer, at the appropriate time, to the missing results. (In fact there is no missing of record of any constituency). The result of some of the constituencies had been tagged with others as Assistant Returning Officers had prepared consolidated result of two constituencies and in case of P.S. 86 Karachi South. No voting took place in said constituency because one of the candidates was murdered under these circumstances, it cannot be stated that the result of P.S. 86 or of any other constituency, is missing.
8. If respondent No,45 or any of his learned counsel (he had two Mr. Raja Qureshi and Mr. Abdul Haleem Pirzada) had taken the trouble to appear before the Provincial Election Commissioner, Karachi when he undertook the exercise entrusted to him, almost all the objections now being raised by Mr. Raja Qureshi would have been thrashed out on the spot. However, as I have earlier noted in the judgment, respondent No,45 and his counsel adopted a very objectionable attitude in this regard. In compliance with the order of the Tribunal, dated 15th March, the Provincial Election Commissioner issued notices, the same day, to the counsel of the parties to appear before him on 19th March at 09-30 hours. (The file was forwarded to the Provincial Election Commissioner immediately after the order was passed entrusting him to undertake the exercise). Both the learned counsel were served the same day. However, neither Mr. Raja Qureshi nor Mr. Haleem Pirzada nor respondent No,45 appeared before the Provincial Election Commissioner on 19th March.
When this position was brought to the notice of the Tribunal on 21st March by Mr. Ataur Rehman of the Election Commission, in the presence Mr. Haleem Pirzada, Advocate, no explanation was offered for the absence of respondent No,45 and his counsel before the Provincial Election Commissioner on 19th March. Even so, the latter was directed to proceed forthwith with the exercise entrusted to him, complete his assignment by the afternoon of the next day and submit his report immediately thereafter and the file was handed over to Mr. Ataur Rehman at 11-20 hours and counsel of both the parties were directed to appear before the Provincial Election Commissioner within one hour. The latter proceeded with his work at 12-30 hours but neither respondent No,45 nor any of his counsel appeared before the Provincial Election Commissioner who after recording their absence commenced and completed his assignment by 18-30 hours. After thus, wantonly and wilfully avoiding to appear before the Provincial Election Commissioner to assist and advise him in his work, it does not lie in the mouth of respondent No,45 or his counsel to point out any infirmity in the comparative chart prepared by Provincial Election Commissioner.
9. I find no merit in the objections raised by respondent No,45 which are hereby rejected.
10. This brings us to the application under section 151, C.P.C., filed by respondent No,45, alongwith the written arguments, on 23rd April, 1995. It may be mentioned that the learned counsel of the petitioner had been heard on 19th April, 1995 and the petition was fixed for the hearing of learned counsel of respondent No,45 of 20th April, 1995 and when the petition was taken up at 13-30 hours as schedules, both the learned counsel for respondent No,45 were absent although respondent No,45 was present in person and Mr. Neil Kishore, Advocate merely held brief for Mr. Raja Qureshi and explained that Mr. Raja Qureshi (who was present in the Court-room till 12-30 hours and had conducted many cases) had gone away as he had received a message from home that his mother was sick but neither Mr. Neil Kishore nor respondent No,45 could explain the absence of Mr. Abdul Haleem Pirzada nor could they explain as to why Mr. Raja Qureshi could not inform the Tribunal of his emergency and take its permission. As a result, learned counsel for the petitioner having been already heard, the petition was adjourned to 23rd April, 1995 for announcement of judgment and on this date Mr. Raja Qureshi appeared before the Tribunal early in the morning and prayed that he might be heard and his request was granted and he was granted and he was heard in detail and, on the conclusion of his arguments, he also placed on record his written arguments alongwith this application under section 151, C.P.C. In this application he prays that Provincial Election Commissioner may be summoned for being cross-examined by him on behalf of respondent No,45 on his report, dated 21st March, 1995.
11. The proper time and occasion to pray for calling the Provincial Election Commissioner for the purpose of cross-examination was when objections to his report were submitted on 12th April, 1995 but no such request was made on that occasion. The next proper time and occasion to make this request was when the "objections" were fixed for hearing on 16th April, 1995 and the last proper occasion to do this was on 19th April, 1995 when learned counsel for the petitioner was heard. This request would have made some sense even on 20th April, 1995 when the petition was fixed for the hearing of counsel for respondent No,45. This request was, however, made through this application on 23rd April, 1995 after even the learned counsel of respondent No,45 was heard. It was not realised that if this application were to be allowed at this stage, the arguments of the learned counsel of the parties would be washed off as fresh hearing would be necessitated after the cross- examination of the Provincial Election Commissioner or may be the application was moved to achieve this specific purpose or to make out a ground of appeal. Any way, learned counsel of the parties could not be heard on this application as it was moved at the conclusion of the hearing.
12. The so-called report of the Provincial Election Commissioner is, in fact, not a report. It is merely a statement (or it may be called a covering letter) where under the comparative table of the figures given in Form 16-A and Form 16-B was submitted to the Tribunal and the Tribunal was informed that respondent No,45 and his counsel did not appear before the Provincial Election Commissioner to assist him. Since this so-called report is not really a report there is no room to call the Provincial Election Commissioner to enable respondent No,45 to cross-examine him. This so-called report does not say a word on the subject-matter of the petition and does not require to be looked into at all and can be safely ignored. The comparative statement prepared by the Provincial Election Commissioner speaks for itself. If it contains any error---and in my opinion does not---it is due to the fact that respondent No,45 and his counsel did not care to appear before the Provincial Election Commissioner to help and assist him in the discharge of his duties and respondent No,45 cannot be suffered to raise any objection to the comparative statement prepared by the Provincial Election Commissioner. Moreover, cross-examination must follow examination-in-chief and since the Provincial Election Commissioner has not been examined-in-chief, the propriety to cross- examine him is rather questionable. There is hardly any merit in the request to cross-examine the Provincial Election Commissioner. This application is, therefore, dismissed.
13. This brings us to the main election petition.
14. The following issues had been framed by the Tribunal:--- (1)(a) Whether objection as to counting was raised at the time of the consolidation of results? If not, its effect.
(b) Whether grave irregularities were committed in the counting of the votes?
(2) Whether grave irregularities and corrupt practice were adopted by the Returning Officer in the conduct of the elections?
(3) Relief.
15. Findings on Issues Nos.1(a) and 2 were neither agitated before the hon'ble Supreme Court nor were re-agitated before this Tribunal after the remand and are, therefore, maintained and need not be discussed.
' This leaves Issue No,1(b) which is discussed in the following lines--- 16 . Issues No . 1(b) : ' This issue was earlier decided on the evidence of Returning Officer/District and Sessions Judge Mr. A.G. Gazdar and on the basis of his report Exh.P.W.1/1 which he had submitted to the Election Commissioner at its directions given on the complaints submitted to it by some of the defeated candidates but hon'ble Supreme Court was of the, view that this evidence was not enough and it directed this Tribunal to make fresh decision "after re-examining the Returning Officer and bringing on record) the documents on the basis of which he had prepared his report. It was left to the discretion of the Tribunal to allow both the parties to produce additional documents. This has been done.
17. At page 2 of his further examination-in-chief the Returning Officer gives the basis on which his report Exh.P.W.1/1 was prepared. He stated that he had prepared Form 16-B on the basis of Form 16- A prepared by Assistant Returning Officers and after re-checking the entries in his Form 16-B, he found that he had made mistakes pertaining to the votes secured by each candidate. He had tabulated these mistakes in the Annexure to his report Exh.P.W.1/1 and he, in his deposition after the remand, pointed out the following mistakes in the total of the votes secured by the petitioner and respondent No,45:-- ' ERRORS IN THE VOTES SECURED BY SARWANAND/PETITIONER (Where he was shown to have secured less votes) {{TABLE}} Seat No, Column No,1 of comparative statement (votes given in Form 1-B) Column No,2 votes actually secured per Form 16-A.)
1 2 3 1 17 50 2 0 1019 5 1 68 6 1 129 10 & 11 3 3311 21 133 159 24 850 851 27 303 393 Seat No, Column No,1 of comparative Column No,2 votes statement (votes actually secured per given in Form 1-B) Form 16-A.) {{TABLE}}1 2 3 36 15 65 38 82 87 44 183 199 45 190 199 46 0 419 53 41 47 56 0 31 57 0 51 60 0 27 62 0 112 64 21 30 65 3 32 66 7 37 68 4 186 69 2 8 71 13 78 72 3 16 73 0 3 97 0 20 98 20 116 {{TABLE}} Seat No, Votes credited Actual votes secured 20 50 17 47 86 12 48 86 85 55 60 11 59 27 0 63 30 0 67 169 7 70 69 2 87 875 825 99 116 0 Errors in the votes secured by respondent No,45{{TABLE}} Seat No, As recorded in Form 16-B Actual votes secured 4 7 1 13 10 1 23 0 15 26 1 0 43 188 88 46 0 19 47 72 48 49 80 8 50 639 642 53 141 143 54 1410 383 55 2584 97 56 0 161 {{TABLE}} Seat No, As recorded in Form 16-B Actual votes secured 57 0 327 64 1124 1180 65 2755 2760 66 542 2096 68 1542 542 69 0 1 70 1 2 71 71 70 {{TABLE}} ' Where he (Sarwanand) was shown to have secured more votes than the actual votes secured by him.
' The Returning Officer clarified that Exhs.3/2 to 3/95 are actually not Form 16A but unofficial tally- sheets. Form 16-A were later produced in evidence as Exhs.3/96 to 3/174. He also produced petition of Sarwanand (Exh.3/176) which he had preferred before Election Commissioner and his comments thereon are Exh.3/175, copy of Gazette Notification of 18th October, 1993 as Exh/3/177 and copy of letter, dated 4-11-1993 from Election Commissioner as Exh.17. He also produced copies of Gazette Notification of 23rd September pertaining to P.S. 10 as Exh.4/179 and pertaining to P.S. 11 as Exh.180.
(Exh.3/180) were produced and brought on record at the instance of respondent No,45).
18. Form-14 is the statement of count prepared by the Presiding Officers. Entries of Form-14 have not been questioned by any of the parties and it was on the basis of these figures that the consolidated statement of the results of the count was prepared by the Assistant Returning Officers in Form 16-A and these figures are also not questioned by any of the parties. It was the final compilation by the Returning Officer in Form 16-B in which discrepancies had arisen and for that reason a comparative chart was got prepared through the Provincial Election Commissioner which is on record.
19. A comparison of the report of the Returning Officer with the unofficial tally-sheets Exh.3/2 to 3/95 (which were incorrectly mentioned in the deposition of the Returning Officer as "Form 16-A") as well as with actual Form 16-A Exh.3/96 to Exh.3/174 (which are wrongly described in the deposition as Form 16-B), would show that the figures given in original Form 16-B (Exh.3/1) were not correct and were the result of errors caused due to confusion which was, in turn, the result of short time available to the Returning Officer to compile the result and the vastness of the constituency which comprised of the entire Province. Whatever doubts as to the authenticity of figures of the total number of votes secured by the petitioner and respondent No,45 existed, have been set at rest by the comparative chart of the figures in Forms 16-A and 16-B as prepared by the Provincial Election Commissioner at the directions of the Tribunal which shows that as per Form 16-A the votes secured by the petitioner are 11879 and those secured by respondent No,45 are 9336. Since the entries of Form 14 and Form 16-A had never been questioned by any of the parties, as already noted above, I see no reason to doubt the authenticity of these figures which were complied by the Provincial Election Commissioner. He was directed to compile them in the presence of and with the help of the parties and their counsel. We have already noted that respondent No,45 and his learned counsel did not appear before the Provincial Election Commissioner at the given time and date without any justification. I am sure that the result of the exercise would have been the same even if they had participated in the exercise.
20. Learned counsel for respondent No,45 argued that results of P.S. 11 Jacobabad, P.S. 47 Badin, P.S. 56, Tharparkar, P.S.
57. Tharparkar and of P.S. 86 Karachi South were missing and, therefore, the whole electoral process is doubtful. Such an argument was for the first time raised during final hearing and till then it had not been the stand of respondent No,45. Even so, there is no substance in this South-II and no voting had taken place for that seat. Learned counsel for respondent No,45 was surely not unaware of this fact. Due to similar reasons voting could not take place in some other areas. As such Form 16-A was not prepared in those areas. In some cases the Assistant Returning Officers had prepared one Form 16-A for two seats---for example, P.S. 46 and 47. It cannot, therefore, be said that any Form 16-A was missing. Learned counsel for respondent No,45 also argued that how could the petitioner supply Form 16-A when it was missing from the record of the Election Commission (page 3 of the comparative statement prepared by the Provincial Election Commissioner). He should rather have raised this objection when Form-A of this seat was being produced. He cannot raise this objection at the time of final arguments.
21. In view of what is stated above, I have no doubt in my mind that no grave irregularities had been committed in the counting of votes but errors had been committed at the time of preparing Form 16-B and posting therein the results given in Form 16-A. It is clear from the deposition of the Returning Officer both before and after the remand. The issue is, therefore, decided in these terms.
22. Relief.---Under these circumstances the original election results cannot be sustained. The error of calculation while complying the results in Form 16-B had come to light shortly after the notification of the results. There were further mistakes in the report Exh.P.W.1/1 as clarified by the Returning Officer in his deposition after the remand. Since there were still some errors of calculation, it was to remove any doubt that the Provincial Election Commissioner was directed to undertake the exercise of recalculation. His findings are crystal clear. There are now only two alternatives before the Tribunal; either to declare the elections as a whole invalid and void or to declare the petitioner elected. In the light of the judgment in the case of Julius Salik v. Returning Officer, reported as 1991 M LD 589, the first option cannot be adopted. The whole Province of Sindh is one constituency in the case of non-Muslim seats and fresh polling at this late stage when almost two years have already elapsed since the elections, is undesirable. Facts of the above noted reported case are similar to the facts of the present case. Even recounting of votes was disallowed in the reported case and the Tribunal had done the calculation itself. In the present case, the Tribunal had entrusted the re-calculation to the Provincial Election Commissioner which amounts to re-tabulation of the final compilation of the counts by the Tribunal itself. Form 16-B, thus, stands amended and it is now clear that as per Form 16-A prepared by the Assistant Returning Officers, in respect of whose entries there is no controversy, the petitioner has secured 11879 votes whereas respondent No,45 had secured 9336 votes. No plausible fault was shown in the calculations of the Provincial Election Commissioner and I had myself rechecked Form 16-A ascertaining the veracity of the figures arrived at by the Provincial Election Commissioner and I have no reason to doubt the authenticity of the figures given by the Provincial Election Commissioner. I would, therefore, hold that the petitioner had secured 11879 votes whereas respondent No,45 had secured 9336 votes and declare the petitioner elected as the fifth successful candidate in place of respondent No,45.
Election .