1. ' WAJIHUDDIN AHMED, J.---Assailed in this direct appeal is an order dated 26-12-1997 whereby the Election Tribunal, Balochistan, set aside the election of Sardar Abdul Hafeez Khan as member Balochistan Assembly from PB-10, Loralai, in the general elections held on 3-2-1997 and declared respondent, Sardar Muhammad Tahir Khan, as elected from the said constituency.
2. ' The facts of the case are elaborately recorded in the impugned order of the Tribunal and need not be repeated. In short, the appellant (hereinafter also referred to as the successful candidate) had secured 4999 votes in the election whereas the respondent had polled 4900 such votes, a difference of only 99 votes. The respondent (hereianfter also referred to as the contesting candidate) questioned the election from the very outset and, pursuant to section 103-AA of the Representation of the People Act, 1976, seems to have registered his grievance with the Election Commission of Pakistan. He alleged that, relative to a number of ballot papers, either no initials of the presiding officer had been put or the prescribed mark, indicating the candidate for whom the elector had voted was missing or the ballot paper did not carry the thumb-impression of the voter.
3. In respect of the following polling stations, according to him, there was discrepancy in the statements of count and the votes actually counted:--
(i) Polling Station No,4 - Killi Faqir Muhammad.
(ii) Polling Station No,8 - Killi Karim-Dad
(iii) Polling Station No,12 - Jalal Chenna
(iv) Polling Station No,30 - Jafer Walyani
(v) Polling Station No,34 - Hosri
(vi) Polling Station No,7 - Killi Jangle
(vii) Polling Station No,9 - Naserabad (Male)
(viii) Polling Station No,10 - Naserabad (Female)
(ix) Polling Station No,3 - Killi Karim Khan.
4. ' The respondent No,1 further alleged in his representation to the Commission that the presiding officers of all the polling stations, without any lawful authority, discarded/rejected about 1116 votes polled by him and it was for such reason that the respondent figured at the losing end. Reiterating the foregoing, a copy of the respondent's representation to the Election Commission was appended with the election petition, subsequently brought. In such election. Petition the respondent further pleaded that the Election Commissioner refused/avoided to supply him the necessary documents to enter the polling stations at the time of counting of the votes and for such reason as well the appellant was enabled to steal a march over the respondent. While the respondent No,1 generally alleged other malpractices, he specifically alleged that 67 of his voters were not allowed to cast their votes at Polling Station No,22 Wahli and another 44 at Polling Station No,20 Nizamabad. Inter alia, on the above re-capitualted pleas, the respondent No,1 in his election petition sought reliefs in the following terms: "(a) That the election of respondent No,2-Sardar Abdul Hafeez Khan be declared as void and the petitioner be declared as successful returned elected Member from PB-10 Loralai-1;
(b) recounting of all the Polling Stations be ordered to be conducted and thereafter result be declared as valid in accordance with the law;
(c) that the election of the Constituency PB-10 Loralai-1 be declared void as a whole;
(d) any other relief as is deemed fit and proper in the circumstances of the case with cost of the petition in the interest of justice."
5. ' The returned candidate namely, Sardar Abdul Hafeez Khan, contested the petition, whereas the four remaining unsuccessful candidates supported the respondent. The allegations were denied by the successful candidate and in addition it was claimed that the petitioner before the Tribunal had tampered with the official documents and particularly the results of the count, issued by the presiding officers of various polling stations.
6. The Tribunal on the pleadings of the parties framed the following points for determination:-- "(i) Whether the respondent No,2, has procured or induced the result of election of PB-10 Loralai-I by any corrupt or illegal practice as provided under section 68(1)(c)(d) of the Representation of the People Act. If it is so, the result deserves to be declared void?
(ii) Whether respondent No,1, has produced/induced the result of PB-10 Loralai-I, in violation of section 70(a)(b) of the Representation of the People Act, 1976?
(iii) Whether the petitioner is entitled for the relief claimed in the memo. Of petition?
(iv) Whether the respondent No,2, is entitled for the special cost?"
7. ' Alongwith the petition affidavits of the proposed witnesses together with a list of the officials was submitted. Somewhat curiously, however, the petitioner chose to examine the official witnesses first and himself thereafter.
8. ' Muhammad Younas (P.W.1), Presiding Officer, Polling Station Killi Faqir Muhammad, produced the election bag, which he was allowed to open. He produced ballot papers Exhs. P/25 to P/39, which bore no stamp or signatures on their back. He acknowledged that it was the duty of the Presiding Officer/the Assistant Presiding Officer or any other authorized officer to apply the same on the back of a ballot paper. Exhibits P/40 to P/162, produced by him, carried the stamp as well as the signatures of the relevant officer. All such ballot papers were taken out by the witness from the envelope containing the votes of returned candidate, Sardar Abdul Hafeez Khan. Muhammad Hasan Iqbal (P.W.2) was the Presiding Officer at Polling Station Jalal Chenna. He produced the election bag as Article 2 (seals intact). He was allowed to open the bag. Exhibit P/163 was the envelope containing the valid votes cast in favour of the returned candidate but the envelope was open also did not have any seals. The witnesses said that when he forwarded the envelope. The same had been sealed by him. Ballot papers Exhs. P/164 to P/169 found in the envelope did not bear either the stamp or the signatures of the concerned officer. Exhibits P/170 to P/172 though stamped were unsigned. Exhibits P/173 to P/174, votes of another candidate, were also recovered from the said envelope and it was acknowledged that the same were counted in favour of the returned candidate. The envelope containing the votes of other candidates were found duly sealed and the seals were intact. Muhammad Akram (P.W.3) was Presiding Officer of Polling Station No,8, Killi Karam Khan. He produced the election bag as Article 3 and was required to open the same. The envelope containing the votes of the returned candidate was produced as Exhibit P/177 and the witness was directed to open the same. Out of the ballot papers found in the envelope Exhs. P/178 to P/183 were neither stamped, nor signed by the concerned officer. On Exhs. P/184 to P/189 while no signatures were available, stamps were visible. On Exhibits P/190 to P/199 double stamps were found. The witness acknowledged that during the polling there was a quarrel between the Tehsildar and the voters but said that the potting had continued uninterrupted. Amna Nasreen (P.W.4) was the Presiding Officer of Female Polling Station, Nasirabad. She produced the polling bag as Article 4 and was allowed to open the same. Exhibit P/206 was the envelope containing the votes of the returned candidate. Out of the votes found in it Exhs. P/207 and P/208 were ballot papers cast in favour of another candidate. Exhibits P/209 carried the stamp of the National Assembly election on its back. Exhibits P/210 to P/212 did not contain any signatures. Exhibit P/213 had neither the stamp nor the signature on it. She admitted that there was a complaint that the lady voters were not getting their thumbs-marked with indelible ink. On hearing this, she handed over the bottle of ink and required it to be duly applied. Therefore, she did not receive any complaint. Ghulam Nabi (P.W.5) was the Presiding Officer of Nasirabad (Male) Polling Station. He produced the polling bag of such polling station (Article 5). Ballot papers Exits. P/711 to P/760 carried the stamp of the election for the National Assembly and not that of the provincial legislature. Abdullah Jan (P.W.6), Statistical Assistant, Registration Office, Loralai, was next examined by the Tribunal. Pursuant to the order of the Tribunal dated 20-6-1997 he had checked the registration forms for issuance of the questioned national identity cards and produced a list with relevant observations, containing 22 pages, as Exh.P/1252. He also produced photostat' copies of the registration forms, as per list Exh.P/1253. The witness was not cross-examined. At this stage the Tribunal examined the contesting candidate.
9. Lastly, the successful candidate was examined, the remaining candidates not offering themselves.
10. It was on the date of arguments that a request was made to entertain the voters' list or alternatively to summon the returning officer on behalf of the petitioner to produce such list. Such was declined by the Tribunal. For the reasons, which appear below, the voters' list should not have been rejected even at such a late stage. If its authenticity was doubted, a certified copy could easily have been summoned. The Tribunal is invested with ample powers in that behalf.
11. ' On close examination of the case the Tribunal found that the contesting candidate had not adequately and specifically pleaded the purported corrupt and illegal practices, alleged in the petition but on the basis of the record concluded, in terms of section 69 of the Act, that the election of the successful candidate was liable to be declared void and the nearest candidate entitled to be declared elected. In doing so the Tribunal classified the votes, improperly cast for the successful candidate, in Categories A to F, Category A, covering votes without the thumb-impression of voters on the counterfoils, Category B, missing the signatures and stamp of the presiding officer, Category C, identifying the votes to have been cast twice, thrice and even four times, Category D, showing the particulars of national identity cards of male voters though females were relevantly registered as electors, Category E, depicting male identity cards to have been used by females twice over and Category F, indicating female voters whose names did not figure in the electoral list at all. In Category ' A' were 8 votes, in Category 'B' 21, in Category 'C' 75, in Category 'C' 67, in Category 'E' 12 and in Category 'F' 13 such votes. Analyzing these votes of the returned candidate the Tribunal invalidated 154 votes therefrom. The Tribunal also observed that the consolidation statement of results of the count, Exh.R/10, indicated that at Polling Station Nasirabad (Females) while the successful candidate had polled 494 votes and the others in all 39 votes, the contesting candidate did not secure even a single vote.
12. ' We have heard the learned counsel of the parties at length, besides examining the record minutely.
13. ' It seems to us that the allegations contained in the petition only remotely touched upon corrupt or illegal practices, since, skirting the legal requirements of sections 78 and 83 of the Representation of the People Act, 1976, Tittle or no specific role was assigned to the successful candidate or his representatives for what, allegedly, had actually come to transpire at the polls. The contesting candidate had, essentially, directed his attack on the failure of the election staff to comply with the provisions of the Act, possibly, attracting section 70(a) of the Act, something which, if established, could have occasioned the declaration of the election as a whole to be void.
14. ' Emphasis, however, was laid before the Tribunal from the side of the returned candidate that the allegations in the election petition were not specific and, therefore, no relief could be granted. The rule has been identified and summarized by Muhammad Munir, C.J., in Muhammad Saeed v.
15. Election Petitions Tribunal, PLD 1975 SC (Pak.) 91 as follows:-- "The law relating to the trial of elections petition, though volumes have been written on it, in so far as it is relevant to the present case, is so simple that it can be summed up in one sentence, namely, that where an election is sought to be set aside on the ground of commission of corrupt practices, the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices; that no fresh charge or instance of. a corrupt practice can be added at the trial, that the burden of proof of corrupt practices is on the petitioner; that the evidence in proof of such practices must be restricted to the charges or instances mentioned in the petition and the particulars; that each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial; and that where the evidence is wholly circumstantial, the commissioners before finding a corrupt practice proved must exclude all reasonable hypotheses which are consistent with that corrupt practice having not been committed. In the present case each and every one of these basis principles have been violated and as result of the trial held in contravention of these principles six returned candidates have been unseated. A clear case for the interposition of this Court therefore exists."
16. While the rule as to specific pleadings is invokable in election petitions, such, as discernible from section 55 read with sections 78 and 83 of the Act, is necessarily confined to corrupt or illegal practices, attributable to the candidates or their representatives. It also goes only as far as matters of detail, which the candidate, in the ordinary course, knew or should reasonably have known. Many an illegal or corrupt practices, within the knowledge of a candidate, due to an election being a closed door affair, may turn out only to be the tip of an iceberg, the bulk of the deviations coming to unfold during the trial of the election petition and duly established on record by evidence. Thus, once the candidate concerned had pleaded his case with all details of corrupt or illegal practices coming to his knowledge, he should be free, within the parameters fixed by his own pleadings, to resort to the powers of the Tribunal to come to his aid in virtue of the jurisdiction of a Civil Court residing in the Tribunal, as extended by section 64 of the Representation of the People Act, 1976. No candidate, who has adequately pleaded the corrupt or illegal practices at his election should unjustifiable be discouraged, by undue strictness in applying the law of evidence, from proving his case. As it is, holding free and fair elections is a duty cast by law and Judges can be doing no more than discharging their obligations to the electorate by ensuring that no one is returned to an elected office without having duly and lawfully been elected. The rule pertaining to noncompliance of the applicable provisions of law by the officers and staff conducting an election figure at yet another plane. Indeed where, in a constituency, there is a general failure of the election machinery, involving noncompliance with the provisions of the Act and the Rules the allegations can be only as much detailed as is plausible in the given circumstances of a case. To that extent, keeping in view the brevity and preciseness enjoined by section 55(1)(a), the petition seems to have satisfied such requirements as there may have been.
17. ' We would now advert to the basic essentials which were required to be fulfilled by the election staff in the conduct of the elections. Section 33 of the Act is relevant there and the same reads: "33. Voting Procedure.--(1) Where an elector presents himself at the polling station to vote, the Presiding Officer shall issue a ballot paper to the elector after satisfying himself about the identity of the elector and shall, for that purpose, require the elector to produce his identity card. Provided for in the National Registration Act, 1973 (LVI of 1973).
(2) Before a ballot paper is issued to an elector--
(a) xxxxxxxxxxxx
(b) the number and name of the elector a: entered in the electoral roll shall be called out;
(c) the entry relating to the elector on the electoral roll shall be struck off to indicate that a ballot paper has been issued to him;
(cc) he shall be required to receive a personal mark, made with indelible ink, on any finger of either hand as indicated by the Commission;
(d) the ballot paper shall be stamped on its back with the official mark and signed by the Presiding Officer; and
(e) the Presiding Officer shall record on the counterfoil of the ballot paper the number of the elector on the electoral roll the number of National Identity Card of the elector, stamp it with the official mark, sign it and obtain on it the thumb-impression of the elector.
(3) A ballot paper shall not be issued to a person who--
(a) fails or refuses to produce his identity card provided for in the National Registration Act, 1973 (LVI of 1973);
(b) refuses to have his identity card punched by the Presiding Officer or Polling Officer to indicate the issue of a ballot paper to him;
(c) refuses to put his thumb-impression on the counterfoil or whose thumb-bears traces, of its having already been used for putting an impression; Or
(d) refuses to receive the personal mark with indelible ink or who already bears such a mark or traces of such a mark.
(4) If a contesting candidate or his election agent or polling agent alleges that an elector to whom a ballot paper is about to be issued already had one or more ballot papers in his possession, the Presiding Officer may require the elector to satisfy hm that he does not have any other ballot paper in his possession and may also take such measures as he thinks fit to ensure that such elector does not insert more than one ballot paper in the ballot-box.
(5) On receiving the ballot paper, the elector shall--
(a) forthwith proceed to the place reserved for marking the ballot paper;
(b) put the prescribed mark on the ballot paper at any place within the containing the name and symbol of the contesting candidate for whom he wishes to vote; and
(c) after he has so marked the ballot paper, fold and insert it in the ballot box.
(6) The elector shall vote without undue delay and shall leave the polling station immediately after he has inserted his ballot paper in the ballot box.
(7) Where an elector is blind or is otherwise so incapacitated that he cannot vote without the assistance of a companion, the Presiding Officer shall allow him such assistance and thereupon such elector may do with such assistance anything which an elector is required or permitted to do under this Act."
18. The section is elaborate enough and we may pause only to observe that production of the elector's identity card at the time of seeking the ballot paper is a pivotal fact and that being done the ballot paper to be issued is required to be stamped on its back with the official mark and signed by the Presiding Officer, the Presiding Officer, simultaneously recording on the counterfoil the number of the elector on the electoral roll together with the number of the relevant national identity card. The thumb-impression of the elector is also to be obtained on such counterfoil and the Presiding Officer is thereupon to sign it. Correspondingly the voter is to be required to receive a personal mark with indelible ink and the entry relating to him on the electoral roll is to be scored off in token of the issuance of the ballot paper.
19. Here it may bear mention that whereas election laws concerning voters are mandatory, such so far as the officers conducting the elections are concerned are usually directory: Mukhtar Hussain Shah v. Wasim Sajjad, PLD 1986 SC 178. Two things, however, have to be noted now. Firstly, where a specific vote as to its validity or invalidity is involved, such may not be invalidated because a requirement of law has not been met, if law, in essentials, has been adhered to. Thus, when a law requires that a ballot paper shall be stamped on its back with the official stamp and signed by the Presiding Officer, the ballot paper may not be invalid if it either bears the official mark or the signature of the Presiding C Officer but if both are found to be missing on a given ballot paper, such cannot normally be held to be valid because in that event its very issuance in the ordinary course would become doubtful. Likewise, when law requires the counterfoil of a ballot paper to bear the number of the elector on the electoral roll, the number of his National Identity Card, stamp of the official mark, signature of the presiding officer and the thumb-impression of the elector himself, a vote may remain valid if there be a substantial compliance with such requirements but in case that is not so, making it plausibly suspect, the validity of the vote can be questioned with success. Secondly, while, upon the invocation of the foregoing principles, non-compliance with the basic requirements of law, pertaining to specific votes, may result either in condonation or invalidity of such votes, in cases where the non-compliance is so pronounced as to attract the provisions of section 70(a) of the Representation of the People Act, 1976, viz, the result of the election is shown to have been materially affected by reason of failure of any person(s) to comply with the provisions of the Act or the rules, the entire election has to be declared void. Relevant outcome, here lies also the difference between section 70 and its preceding sections namely, 68 and 69, , where the challenge is limited to qualification of a candidate or for corrupt or illegal practices, relatable to a candidate, of an identifiable nature or for entitlement of another to be declared elected in which event the electoral exercise can be allowed to stand but the election of the returned candidate may be declared to he void and another, if found to be entitled, declared as elected.
20. ' This leads us to the next question in the case. Mr Pirzada, referring to Bhabhi v. Sheo Govind, AIR 1975 SC 2117. As reiterated in Hari Ram v. Hira Singh, AIR 1984 SC 396, has pointed that a candidate, without levelling clear and specific allegations supported by due evidence, cannot be permitted to impinge on the secrecy of ballot, synonymous with being allowed unfettered inspection of the election record and recounting of votes, since a roving enquiry, to unearth material, for declaring an election to be void, is not permissible and an Election Tribunal, even when a prima facie case is established, can permit only a sample inspection to determine whether or not the whole record can be opened up. In a state of law where the Representation of the People Act, 1951, in India, in essentials, is not very different from our Representation of the People Act, 1976, the legal position in Pakistan should, more or less, be similar. Section 46 of the .1976 Statute is directly in point here and provides: "Order for production of documents.--(1) A Tribunal may order the opening of packets of counterfoils and certificates or the inspection of any counted ballot papers.
(2) An order under subsection (1) may be made subject to such conditions as to persons, time, place and mode of inspection, production of documents and opening of packets as the Tribunal making the order may think expedient: ' Provided that, in making and carrying into effect an order for the inspection of counted ballot papers, care shall be taken that no vote shall be disclosed until it has been held by the Tribunal to be invalid.
(3) Where an order is made under subsection (1), the production by the Commission of any document in such manner as may be directed by the order shall be conclusive evidence that the document relates to the election specified in the order and any endorsement on any ballot papers or packet or ballot papers or documents so produced shall be prima facie evidence that the ballot papers or documents are what the endorsement states them to be.
(4) The production from proper custody of a ballot paper purporting to have been used at an election and of a numbered counterfoil bearing the signature or thumb-impression of the elector shall be prima facie evidence that the elector whose vote was given by that ballot paper was the elector who had on the electoral rolls the same number as was written on the counterfoil.
(5) Save as is provided in this section, no person shall be allowed to inspect any rejected or counted ballot papers in the possession of the Commission."
21. It will at once be seen that the quoted section confers an exclusive and a wide discretion on an Election Tribunal to order opening of packets of counterfoils and certificates or the inspection of any counted ballot papers. The same, however, may be subject to such conditions as the Tribunal, making the order, considers expedient though, at all times, care has to be taken to ensure that no vote is disclosed until it has been held by the Tribunal to be invalid. Relevant to the exercise, certain presumptions and elements of ex facie evidence are also invocable.
22. What, therefore, emerges is that the Tribunal should have some basis for taking recourse to its exclusive and essentially discretionary powers under section 46(1), opening the way to a recount.
23. Thus, it would be for a petitioner in an election petition to lead the initial evidence for the Tribunal to take resort to the powers under discussion. It is only then that the Tribunal may summon the relevant record and exmine the corresponding official witnesses at the petitioner's behest, unless, of course, the Tribunal is acting suo motu in the midst of the petition, something which does not appear to be precluded. In the instant case, however, the ordinary procedure seems to have been reversed largely because none of the respondents objected to the summoning of the official witnesses and sending for the record. Indeed the election bags were opened without any demur.
24. The procedure adopted, accordingly, may thus have been regularized. Once, however, the counterfoils of the ballot papers, the relevant certificates and the ballot papers cast have been opened, the concomitant care, which the statute requires to be observed, is that a counterfoil is not to be shown to the contestants in the election petition unless the matching vote has been invalidated. In other words, while the Tribunal is free to itself examine and compare the counterfoils with the ballot papers actually cast the secrecy of ballot can be maintained only if the contesting parties initially are not made privy to the comparison of the counterfoils with the ballot papers because such would instantaneously identify an elector and expose the secrecy of the ballot. We have no doubt that the Tribunal must have been mindful of this mandatory requirement and it was only after it found specific votes to be invalid that the parties were made privy to the conclusion.
25. Another aspect of the matter is that a recount may not always be an absolute or fool proof answer.
26. Three cases from this jurisdiction have contextual relevance. Such are Ejaz Shafi v. Ali Ashraf' Shah, PLD 1995 SC 43; Ejaz Shafi v. Ali Ashraf Shah, 1996 SCM R 605 and Iftikhar Hussain v. Ijaz Ahmad Cheema, 1996 SCM R 943. The first two of these cases involved a recount pertaining to the same election and the same constituency. Initially, the recount having taken place by an agency other than the Tribunal, the case was remanded by this Court for the Tribunal to undertake that exercise but when that happened and the proposed recount did take place, a number of votes, on account of duplicate markings, were rejected and the election result was reversed. On a repeat appeal to this Court it was found that the double markings hand, probably, occurred after t'he election had taken place and not at the time the poll was being undertaken. As a result, such discrepancies were discarded and the original result maintained. In the third case, the power of the Tribunal to undertake an examination of interpolations in the election record was recognized. What, therefore, has to be ensured, once powers under section 46(1) ,and (2) of the Act come to be exercised, is that the jurisdiction is not over-stretched, that there is a prima facie case for a recount, that recount, if allowed, takes place scrupulously, without detracting from secrecy of the ballot and, finally that it can never be ignored that during the passage of time following upon the election and the recount a number of things may happen, having potential to throw up a picture that does not, in fact, correspond with the electoral process but depicts something of a later origin. To put it differently, the power, though broad and extensive, is to be used sparingly and with circumspection, the only object being to ensure a fair and lawful result of the electoral exercise.
27. Nothing short of that would serve the object of the legislation.
28. ' Keeping all the above aspects in view, we are satisfied that the Tribunal proceeded with the matter in accordance with the letter and spirit of law. No fault can be found with the exercise undertaken by the Tribunal. Having said as much, it seems to us that this was not a fit case in which the Tribunal should have merely declared the election of the returned candidate to be void or that of the contesting candidate, not only to have been valid but entitling him also to be declared elected. In our opinion, the official conduct of the election was flawed to an extent where the entire electoral process should have been declared to be void. Mr. Ahmed Raza Kasuri for the contesting candidate himself identified several violations and prayer (c) in the election petition itself seeks the entire election of the constituency to be declared void. Accordingly, where so many votes, as above recorded, were to be invalidated on account of the essential requirements of section 33 of the Act to have been persistently and flagrantly violated, where the bag from one polling station had envelopes of votes of all candidates intact except that of the successful one (which was shown never to have been sealed), where, against the run of the poll, the successful candidate secured as many as 494 votes from a particular polling station and the nearest one none at all, where the envelopes of votes of the successful candidate contained ballots cast for others, where at a polling station the National Assembly and not the provincial seal was generally affixed, and where females were shown to have voted on the basis of National Identity Cards issued to male voters, nothing short of the whole election being void could be the verdict. Mere invalidation of some of the votes of the successful candidate, in our view, may not have resulted in the election being rendered free and fair. In cases where disregard of law by the officials entrusted with the job of conducting an election. Is so widespread, no sanctity could have been attached to the votes polled by candidates other than the successful one as well.
29. For such reasons, we have declared the entire election from PB-10, Loralai I, to be void and thought it fit to call upon the constituency to go for a fresh poll. In the result, the Election Commission is required to hold the relevant election afresh within the time prescribed as from the date of communication of this order to the Commission. To this extent the order of the Tribunal is modified.
30. The parties shall bear their own costs.