' This is an election petition under section 52 of the Representation of the People Act, 1976 by Fredric Azeem who was one of the nine contesting candidates to a seat in the Provincial Assembly N.- W.F.P. Reserved for Christians. It calls in question the election of the returned candidate Walter Masih whose name was published as such by the Election Commission of Pakistan vide Notification No, F.2 I (5)197-Elec-11(2), dated Islamabad, the 27th February, 1997.
2. The election was held on 3-2-1997 and according to the unofficial result announced by the Election Commissions of Pakistan the votes obtained by the petitioner and the returned candidate were 1504 and 1679. Respectively. Taking. Exception to the unofficial result the petitioner sought recounting of votes of the entire Constituency through an application moved before the Returning Officer but without any success. Thereafter, he submitted a petition before the Election Commission of Pakistan for recounting of votes which was allowed and the Returning Officer was asked to carry out recounting of votes polled in PF-1 Peshawar- ' I, PF-2 Peshawar-II, PF-3 Peshawar-III, PF-4 Peshawar-IV, PF-9 Nowshera-I, PF-28 Kohat-I, PF-29 Kohat-II, PF-34 Abbottabad-I and PF-53 D.I. Khan-I. The decision of the Election Commission of Pakistan was communicated to the Returning Officer through Letter No,F.3(25/96-Els(PEC), dated 17th February, 1997 issued from the Office of the Provincial Election Commissioner, N.-W.F.P.
Peshawar. It is worded thus:-- "The District and Sessions Judge, Peshawar/Returning Officer for Election to Non-Muslims Seats in Provincial Assembly of N.-W.F.P.
' Subject:- Recounting of Ballot Papers of Christians Seat in N.-W.F.P.
' The petition filed by Mr. Fredrick Azeem, candidate was considered by the Election Commission of Pakistan, Islamabad and it has been decided that the Returning Officer-concerned may be asked to carry out the recounting of votes relating to Christians seat polled, in PF-1 Peshawar-1, PF-2 Peshawar-II, PF-3 Peshawar-III, PF-4 Peshawar-IV, PF-9 Nowshera-I, PF-28 Kohat-1, PF-29 Kohat- IIPF-34 Abbottabad-1 and PF-53 D.I. Khan-I.
2. You are, therefore, requested to recount the ballot papers of Christian seat of the said constituencies as under:--
(i) The recounting should be completed by you in one sitting.
(ii) The process of recount should not be adjourned or postponed on request of any candidate on any pretext.
(iii) The recounting should be carried out in the presence of the contesting candidates and/or their duly authorised election agents.
(iv) The recounting should be done by you in the presence of Deputy Election Commissioner, Peshawar Division, Peshawar, the representative of the Election Commission of Pakistan duly nominated by the Provincial Election Commissioner, N.-W.F.P. Peshawar. After the completion of recounting proceedings, a detailed report regarding result of recounting should please be sent to the Election Commission of Pakistan, immediately without any loss of time."
3. The Returning Officer completed the recounting of votes in as many as eight days and according to the Result of the Count prepared by him in Form-XVI-B and submitted to the Election Commission of Pakistan the petitioner had obtained 1343 votes while 1450 votes were obtained by the returned candidate.
4. Feeling aggrieved the petitioner filed this election petition wherein he challenged the validity of the election of the returned candidate on the following grounds:-
(i) Success of the returned candidate was the result of rigging, corrupt and illegal practices committed by him.
(ii) The Returning Officer was directed by the Election Commission of Pakistan to recount the votes in one sitting without any adjournment but he had completed the exercise in eight days. The directive of the Election Commission of Pakistan was blatantly violated.
(iii) The recounting was done in a slipshod manner. Besides, the envelopes containing ballot papers of the petitioner in respect of the following. Polling Stations were missing from the bags but the Returning Officer did not care to trace the same- and compiled the result on the basis of recounting of the available ballot papers:-
(a) PF-1 Peshawar-1: Polling Station No,2 (Female), District Council Office Nauthia. Polling Station No,8 (Male), Government Girls High School Civil Quarters.
(b) PF:2 Peshawar-II: Polling Station No,9 (Male), Government Middle School Ganj Gate. Polling Station No,11 (Female), Government High School.
(c) PF-3 Peshawar-III: Polling Station No,30 (Female) Islamia Collegiate School Peshawar University.
Polling Station No,32 (Female), Islamia Collegiate School for Girls.
(d) PF-4 Peshawar-IV: Polling Station No,47 (Male), F.G. College Peshawar Cantonment Polling Station No,48 (Male), F.G. C011ege. Polling Station No,62 (Female) Government High School No,2 Peshawar Cantt.
(e) PF-34 Abbottabad-I: Polling Station No,2. F.G. School (Boys), Abbottabad. Polling Station No,1 Cantt. Library Abbottabad. Polling Station No,33 Government Primary School, Jalalpura.
' The result would have been otherwise had the votes cast in favour of the petitioner at the above Polling Stations been made available and recounted.
(f) The Returning Officer had declined to provide a list of the missing envelopes.
5. The returned candidate controverted the allegations made in the petition and strenuously resisted the same by raising several legal and factual pleas. The main thrust of his contentions was that the petition could not proceed further on account of the petitioner's failure to annex therewith the list of witnesses and affidavits of the witnesses, the election as well as recounting of votes was fair and transparent, the votes obtained by the petitioner were found to be less than him at all stages and the result was supported by the statements of the Count received from the Polling Stations and a few envelopes containing his ballot papers as well as the ballot papers of the petitioner had perhaps got mixed up with other ballot papers, therefore, non-availability of the same at the time of recounting of votes was immaterial and the result declared after recounting of' votes had confirmed the correctness of the earlier result.
6. At the outset the following preliminary issue was framed:-- ' Whether the list of witnesses as well as affidavits of the witnesses have not been annexed with the election petition? If so to what effect?"
7 The preliminary issue was decided against the returned candidate vide order, dated 28-4-1997 which reads as under:- "This order is meant to decide the following preliminary issue:- ' Whether the list of witnesses as well as affidavits of the witnesses have not been annexed with the election petition, if so, its effect?'
(2) The issue was not seriously pressed by the learned counsel for the contesting respondent and rightly so because the omissions alluded to therein are not fatal for reasons that are not far to seek.
(3) According to subsection (1) of section 62 of the Representation of the People Act, 1976 an election petition is to be tried by the Election Tribunal in accordance with the procedure laid down by the Election Commission of Pakistan. The procedure laid down by the Election Commission of Pakistan is contained in Notification No,F.(7)85-Cord, dated 16th March, 1985 which, inter alia, provides that an- , election petition shall be accompanied by affidavits of the witnesses which the petitioner desires to produce.
(4) The aforementioned Notification has only empowered the Secretary, Election Commission not to entertain an election petition in case it is not in accordance with the procedure laid down therein and has not empowered the Election Tribunal to dismiss an election petition on the ground of non- compliance with any direction. The powers of the Election Tribunal to dismiss an election petition during trial under section 63 are also restricted to non-compliance with the provisions of section 54 and 55. This would mean that the directions are directory and not mandatory in so far as the Election Tribunal is concerned.
(5) There is no dearth of case-law regarding ascertainment of mandatory or directory nature of a provision. It was held in Farid-unNisa Begum v. Chairman, Federal Land Commission, Rawalpindi (PLD 1984 Karachi 449) that a provision is mandatory if its disobedience entails a serious legal consequence. In Maj. Shujait Ali v. Mst. Surraya Begum (PLD 1978 SC (AJ&K) 118) it' was observed that in the absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory. Another authority on the subject is reported as Muhammad Ismail v. Flaji Muhammad & Sons (PLD 1978 Karachi 926) wherein it was observed that the normal rule of construction is that when the statute does not provide for consequences of failure to comply with the direction contained in it, such direction is to be interpreted as directory and not mandatory.
(6) The election petition in hand was cleared by the Secretary,. Election Commission and at the time of framing of the issues it had transpired that its accompaniments did not include the list of witnesses of the petitioner. Be that as it may, the omission despite being glaring cannot entail dismissal of the petition, therefore, the matter is to be dealt with in accordance with the provisions of section 64 of the Representation of the People Act, 1976 which clearly spell out that the Election Tribunal shall have all the powers of a Civil Court trying a suit -under the Code of Civil Procedure.
(7) A Civil Court is fully empowered to provide an opportunity to the parties to submit their list of witnesses within a specified time, therefore, the preliminary issue is decided against the respondent and the petitioner is directed to submit the list of witnesses on 5-5-1997. "
8. In the wake of decision of the preliminary issue the following issues were framed to adjudicate the matter:--
(1) Whether the petition is competent and maintainable?
(2) Whether the petition has not been drafted and filed in accordance with the provisions of the Representation of the People Act, 1976 and the Rules framed thereunder. If so, with what effect?
(3) Whether votes were cast at the Polling Stations mentioned in Para. No,7 of the petition but the envelopes containing the same were found missing at the time of counting/recounting of the votes? If so, with what effect?
(4) Whether votes were not re-counted by the Returning Officer in accordance with the instructions of the Chief Election Commissioner. If so, its effect?
(5) Whether illegal and, corrupt practices were resorted to by respondent No,1? If so, what were- those and to what effect?
(6) Relief.
9. It will be pertinent to mention here that when the petition came up for hearing at the stage of arguments the learned counsel for the returned candidate made a that as a corollary to appointment last the Chief Justice the reemrtitmay be sent to the Chief Election Commissioner for further orders as under section 58 of the Representation of the People Act, 1976 only a Judge of a High Court can be appointed and act as an Election Tribunal. The submission is misconceived because it overlooks the definition of 'Judge' contained in Article 260 of the Constitution which reads as under:- " "Judge' in relation to the Supreme Court or a High Court, includes the Chief Justice of the Court."
10. The evidence produced by the petitioner consists of his own statement as well as the statements of Presiding Officers of eight Polling Stations, namely, Shahnaz Begum (P.W.1), Miss Sabina (P.W.2), Fazle Subhan (P.W.3), Miss Nishat Afzal (P.W.4), Dr. Muhammad Adeek Bangesh (P.W.5), Ghulam Sadiq (P.W.6), Dr. Abdul Rashid (P.W.7), Muhammad Nazir (P. W.8) and the Returning Officer Mr. Attaullah Khan Bangesh, District and Sessions Judge (P.W.9). The evidence of the returned candidate, on the other hand, consists of his own statement.
' Issues Nos.1 and 2
11. The objections incorporated in these issues can be conveniently termed as objections for the sake of objections in as much as the petition has been filed by a contesting candidates and squarely meets the requirements of sections 52 and 55 of the it presentation of the People Act, 1976. It has also been duly verified on solemn affirmation. As regards non-verification of the Annexures it will be enough to say that the omission is not fatal because the Annexures do not spell-out any additional allegation of substantial character. If an authority is needed on the point then reference may be made to S.M. Ayub v. Syed Yousaf Shah (PLD 1976 SC 486), Both the issues are, therefore, decided against the contesting respondent.
' Issue No,5
12. The allegations of corrupt and Meal practices are vague and general and twit, precise and specific. Besides, there is Oat evidence on record to substantiate the saint, This issue is, therefore, decided against the petitioner.
' Issue No,3
13. This is the most important issue on which the fate of the petition hinges. According to the provisional result compiled on the basis of statements of the count provided by the Presiding Officers the petitioner had secured 1521 votes while the returned candidate had obtained 1664 votes. The petitioner approached the Returning Officer for the recounting of votes but the recounting did not go beyond one Polling Station on which he made a petition before the Election Commission of Pakistan which was allowed and the Returning Officer was directed to recount the votes in accordance with the instructions contained in the aforementioned letter, dated 17th February, 1997, copy Exh.P.W.10/1, issued from the Office of the Provincial Election Conyelisziorer, N.- W.F P. The grievance of tote petitioner is that the Returning Officer had carried out the recounting of votes notwithstanding the fact that several envelopes containing the votes obtained by him were found missing from the grievance is well-founded because the statement of the Returning Officer Attaullah Khan, District and Session judge, i,e Peshawar (P.W.9) makes it reunifies that the time of the recounting of votes papers in respect of as many as Penieeiti, Polling Stations were not available in the respective bags. The particulars of the Polling Stations are as under:--
(I) PF-1 Peshawar-I:
(i) Polling Station No,2, Office of the District Council, Peshawar.
(ii) Polling Station No,1, Government High School for Boys Civil Quarters, Peshawai
(2) PF-2 Peshawar-II:
(i) Polling Station No9 Government Middle School, Gunj Gate, Peshawar.
(ii) Polling Station No,3 Government High School for Girls, Peshawar.
(iii) Polling Station No,6 Marriage Hall, Gar Gatlin, Peshawar,
(3) PF-3 Peshawar-III:
(i) Polling Station No,30 Islamia Collegiate School for Girls, Peshawar.
(ii) Polling Station No,32 Islamia Collegiate School for Boys, Resha.War.
(4) PF-4 Peshawar-IV:
(i) Polling Station No,47 Federal Government Girls College, Peshawar.
(ii) Polling Station No 48 Federal Government Girls College, Peshawar.
(iii) Polling Station No,52 Government High School No:2, Peshawar Cantt.
(5) PF-34 Abbottabad-1:
(i) Polling Station No,2 Federal Government Boys School, Abbottabad.
(ii) Polling Station No,1 Cantt. Library, Abbottabad.
(iii) Polling Station No,33 Government Primary School, Jalal Pura, Abbottabad.
(6) PF-53 D.I. Khan-I:
(i) Polling Station No,30 Government High School No,1, D.I. Khan.
14. The statement of the. Returning Officer in regard to the above Polling Stations, which was not challenged by the returned candidate, is by itself sufficient to set the controversy at 'rest and there is no need to look for further confirmatory and supporting evidence. However, the allegation made by the petitioner gets further support from the stance taken by the returned candidate in part. No,7 of his written statement that "the envelopes of the ballot papers of the answering respondent as well as the petitioner were perhaps mixed-up with the other ballot papers".
15. The returned candidate has not only admitted this fact tacitly that some ballot papers were found missing at the time of the recounting of votes but has also not raised an objection with regard to voting at the Polling Stations mentioned in the statement of the Returning Officer. Be that as it may, it, is evident from the statements of Miss Sabina (p.W.2) Presiding Officer, Polling Station No,32, Fazle Subhan (P.W.3), Presiding Officer Polling Station No,9, Dr. Muhammad Adeek Bangesh (P.W.5), Presiding Officer Polling Station No,4S, Dr. Abdur Rashid (P.W.7), Presiding Officer Polling Station No,1 and the result of the count in Form XVI-B, Annexure-A, prepared by the Returning Officer during the first round, that voters were duly assigned to and voting had taken place at the Polling Stations regarding which the ballot papers were found missing at the time of the recounting of votes.
16. The number of the missing ballot papers can be easily worked out in the light of the material available on record. According to the result of the count in Form XVI-B (Annexure-'A'), prepared by the Returning Officer during the first round, total number of votes recorded at all the Polling Stations in the Constituency was 5442 whereas the result of the count in Form XVI-B (copy Exh.P.W.912), prepared by the Returning-Officer after the recounting of votes, shows that the total number of votes recorded at the Polling Stations was 4922. The number of missing ballot papers. Thus, comes to 520.
17. The returned candidate had won the election by a thin margin of 107 votes, therefore, there can be no dispute with the proposition that the scenario might have changed had the missing 520 votes been available, and recounted at the time of the recounting of votes. A case for declaring the election as a whole to he void is, thus, made out.
18. The matter. However, does not end here because the power to declare the election as a whole to be void conferred on the Election Tribunal by clause (d) of subsection (1) of section 67 of the Representation of the People Act, 1976 cannot be exercised unless there exists the ground for declaring election as a whole to be void envisaged by section 70 of the Representation of the People Act, 1976 which reads asunder: "Ground for declaring election as a whole void.-- The Tribunal shall declare the election as a whole to be void if satisfied that the result of the election has been materially affected by reason of ---
(a) the failure of any person to comply with the provisions of the Act or the rules; or
(b) the prevalence of extensive corrupt or illegal practice at the election."
19. The result of the election was certainly affected materially owing to non availability of 520 votes, cast at fourteen Polling Stations, at the time of the recount of votes. The issue in regard to adoption of corrupt and illegal practices by the respondent has been decided against the petitioner therefore, the point for determination is whether the result of the election was materially affected by reason of the failure of any person to comply with the provisions of the Act or the Rules.
20. It appears that the envelopes containing the missing ballot papers were not put in the principal packets by the concerned Presiding Officers or the Assistant Returning Officers after preliminary consolidation of the results had not put in separate bags all the packets received from the Presiding Officers concerned or the same were misplaced or removed during the exercise of the recounting of the votes by the Returning Officer which was carried out in eight days. In the first case the Presiding Officers had failed to comply with the provisions of subsections (6) and (8) of the Representation of the People Act, 1976 and clauses (f) and (h) of Rule 23 of the Representation of the People (Conduct of Election) Rules, 1977 under which they were required to put in separate packets the valid ballot papers cast in favour of each contesting candidate, seal each packet and enclose all such packets in a principal packet and seal the same. In the second case the Assistant Returning Officers had not complied with the provisions of Rule 90 (3)(b) of the Representation of the People (Conduct of Election) Rules, 1977 under which an Assistant Returning Officer is required to put in a separate bag all the packets received from the Presiding Officer of each Polling Station and not opened together with those opened and resealed by him, In the third case the Returning Officer had failed to comply with the provisions of section 7(4) of the Representation of the People Act, 1976 under which. He was obliged to do all such acts and things as may be necessary for effectively conducting an election in accordance with the provisions of the, Act and the Rules. The recounting of votes was carried out by him .Pursuant to the order of the Election Commission of Pakistan, therefore, he was bound to bring the factum of missing votes to the notice of the Commission and seek directions within the contemplation of section 104 of the Act but he kept mum and concluded the recount in the absence of votes cast at fourteen Polling Stations. It would thus follow that the election as a whole is liable to be declared to be void. This issue is, therefore, decided accordingly in favour of the petitioner.
' Issue No,4
21. The recount was not carried-out by the Returning Officer strictly in accordance with the directions of the Election Commission of Pakistan because he had completed the exercise in eight days instead of one sitting without adjournment as directed by the Commission. However, in view of the intricate and complex nature of election to a seat reserved for non-Muslims the order of completion of the recount in one sitting appears to be directory and not mandatory, therefore, its non-compliance is not by itself sufficient to set the election at naught. This issue stands decided accordingly.
In the result the election petition is accepted and the election in question is declared as a whole to be void. The seat of the returned candidate having become vacant shall be filled through . Bye- election. The record be sent immediately to the Election Commission of Pakistan through the Provincial Election Commissioner N.-W.F.P. Parties to bear their own costs.
Election .