1. Sr. No. Name Votes Secured
(1) Kishanchand Parvani33,717
(2) Dr. Khatumal 31,149
(3) Rana Chandar Singh27,459
(4) Kishan Bhee 27,179The petitioner Bhagwandas son of Khatu Mal was one of the contesting candidates alongwith Respondents Nos.3 to 29, for the four reserved seats for non-Muslims (Hindus and Scheduled Castes) for the National Assembly of Pakistan during the elections held on 2nd February, 1997. Four candidates, out of these contesting candidates securing the highest number of votes were declared elected by the Election Commission of Pakistan (the Commission). After the election process was over, the Commission notified the following four candidates, having secured the highest number of votes, shown against them, elected to the National Assembly of Pakistan: The petitioner, vide this Election Petition, under section 52 of the Representation of the People's Act, 1976 (the Act) has challenged the election of respondent No.6, Kishan Bheel, alleging that the provisions of law and the rules in respect of counting of votes were violated, the recounting and tabulation done by the Commission's staff and the copies of the results of counts in the necessary Forms were neither prepared nor copies thereof supplied to the petitioner or his agents in spite of his complaints sent prior to the official declaration of the results by the Commission, but the petitioner was neither heard nor given any chance to represent his point of view, with the result that incorrect tabulation was done resulting in declaring him as a candidate having secured lesser number of votes than Mr. Kishan Bheel, and thus, his name was placed at Serial No.5, although the number of votes secured by him were more than secured by Kishan Bheel. The petitioner further Claimed that the election as a whole be declared void under the Act. He specifically claimed that the results furnished by the Returning Officer in Form XVIB on 15-12-1997 to him showed that Kishan Bheel had secured 27,178 votes while the petitioner had secured 24,988 votes but, in fact, the petitioner had secured 27,404 votes. The petitioner had based this claim on the documents which were issued to him by the Commission, and he had pointed out the instances where he had actually secured more votes, but the same were incorrectly tabulated, and when a correct tabulation was made, it became clear that the number of votes secured by the petitioner was 27,404 and, thus, claimed that he had an edge to the extent of 227 votes over his next in line candidate, viz Kishan Bheel, who secured lesser votes than him: The petitioner, therefore, filed this petition with the following prayers to declare: '(i)The election as a whole Was void or (ii)That the election of the returned candidate viz Mr. Kishan Bheel, respondent No.6 was void and that the petitioner be declared to have been duly elected instead of respondent No.6."
2. Only respondent No.6 (Mr. Kishan Bheel), the last candidate among 'the four returned candidates, contested the petition while the rest of the candidates did not contest.
3. Respondent No.6, in his written statement, in general terms denied the allegations of the petitioner.
4. He denied the discrepancies in calculation or tabualtion or in the consolidation of the counting of the votes of the petitioner. He contended that Form XVIA, on which the petitioner relies, which shows the number of votes secured by him to be more than what was declared by the Commission earlier, was, manipulated by the petitioner himself. The respondent No.6 also took various legal pleas about the maintainability of the petition.
5. The Tribunal framed the following issues for decision of this election Petition: "(1)Whether the Petition is not maintainable on account of non-filing of the affidavit-in-evidence by the petitioner?
6. (2)Whether the petitioner had secured 27404 votes? It so, whether the petitioner is entitled to be declared as a successful candidate in place of respondent No.6?
7. (3)Whether the election of respondent No.6 is liable to be declared void as the votes in favour of respondent No.6 have been improperly calculated, documented and counted? If so, to what effect?
8. (4)Whether there exists discrepancy and miscalculation in counting and consolidation of the votes of the petitioner in Forms XIV, XVIA and XVIB? If so, to what effect?
9. (5)Whether the petitioner is entitled to the re-tabulation of the results?
10. (6)What should the order be?"
11. On the above Issues, the parties were called upon to lead their evidence From the side of the petitioner, Mian Muhammad Javed, Civil Judge, Islamabad, the Returning Officer concerned, was examined. In the evidence, he produced Form XVIB (Exh.l-A), which showed the final compilation, and consolidation of the results of the count of votes furnished by the Assistant Returning Officers to him, which showed total number of votes secured by the petitioner as 24,988 and the number of votes secured by respondent No.6 as 27,
178. However, he admitted in his deposition that the number of votes secured by the candidates during the above election from National Assembly Seats Numbers 151 to 195 (Commonly known as NA-151 to NA-195), belonging to Province of Sindh, were not mentioned in the Form XVIB (Exh. 1/A) separately against each Seat. He, however, stated that there was a note from the Returning Officer (Mr. Mehboob Qadir, Senior Civil Judge, First Class, Islamabad), that the total number bf votes secured by the candidates in the above described seats (NA-151 to NA-195) had been shown against the entry of NA-196 in consolidated form. He also stated that it was based on a Fax Message sent by Provincial Election Commissioner, Sindh. He admitted in his deposition that the petitioner had made applications to the Election Commission of Pakistan on 10-2-1997, 11-2-1997, 12-2-1997, 15-2-1997, 3-3-1997 and 15- 3-1997 and he produced such applications as Exhs. D/1 to D/6. In all these applications, the petitioner had disputed the correctness of the Count of votes, and had disputed the consolidation and tabulation of the votes and had stated that necessary copies of the count were not supplied to him or his agents by the respective AROs and that less number of votes were communicated to him, and that, therefore, he may be provided certified copies of Form XIV and Form XV so that correct tabulation and counting of the votes be possible and so the names of the actual successful candidates could be ascertained. The orders passed by the Returning Officer on such applications were to the effect that AROs concerned may be directed to furnish a station-wise result of the counts, meaning thereby constituency-wise. The witnesses, Mian Muhammad Javed, admitted that the copy of Form XVIB (Exh. 1/A), which shows the number of votes secured by the candidates in NA-151 to NA-195, in a consolidated form, did not bear signatures or initials of any authority, at the required place, where such note was added; although at the end of Form XVIB, signatures of the Returning Officer are present. Thus, correctness of the note was questioned. The said note, which is very crucial one for the purpose of tabulating the count of votes in respect of the votes secured by the candidates in the above constituencies of the National Assembly, has left a doubt whether the count in question is authentic or not.
12. The next witness examined by the petitioner was Mrs. Rubina Farooqui, Additional District and Sessions Judge, Karachi South, who was the Assistant Returning Officer for conducting elections for the non-Muslims Seats in National Assembly from the Province of Sindh. She, in her evidence in respect of Form XVIA, stated that no such Form was provided to her nor the same was available with her and she could not produce the same. She further stated that she had received the results of the candidates from the different constituencies of Sindh by Fax and consolidated the same in Form XVIA, (16-A). She stated that the Provincial Election Commissioner at Karachi, then communicated the results to the Election Commission of Pakistan at Karachi. As regards one constituency NA-190, of which the witness Rubina Farooqui was the Returning Officer. (at the same time she was Assistant Returning Officer of all the seats of National Assembly in Sindh for non- Muslims), she had received Form XVIA, prepared by all the Presiding Officers in Sindh, in respect of the minority votes, which were forwarded by her to the Election Commission of Pakistan through the Provincial Election Authority. This suggested that at least for one constituency (NA-190) Form XIV was available but the results thereof were not brought over in Form XVIA against even that seat.
13. From her cross--examination, it is gathered that in fact the petitioner Bhagwandas had protested/objected in respect of the consolidation of the votes before the Assistant Returning Officer, but such objection was not decided by the ARO and had been directed to the Returning Officer, Islamabad. The Returning Officer, Islamabad, had not given the chance to the petitioner to be heard on his objections. The results tabulated in Form XVI-A by this witness are actually not in Form SVIA, but there was form known as Form XVI, that Form was turned into Form XVIA in hand, by adding "A" in front of Roman "XVI". Thus', in fact, it cannot be said that the entries produced by this witnesses as Exh. 2/D are actually the entries in Form XVIA, because the columns of Form XVI are different from the columns of Form XVIA. In his affidavit before the Tribunal, petitioner claimed that in fact the number of votes secured by him in different National Assembly seats were incorrectly accounted' and less than actual votes secured by him were mentioned. He gave such example of NA-150/4, Rahimyar Khan, NA-156, Jacobabad-1, NA-159, Naushero Feroze-3, NA-205, Khuzdar and NA-206, Lastlella.
14. 9 Further, the Petitioner in his affidavit contended that by correct tabulation of the votes, it will be seen that Mr. Kishan Bheel had secured 27,178 votes while against Petitioner's name the number of votes stand at 27,404. Thus, according to him, the number of votes secured by him are more than the votes secured by Kishan Bheel, Respondent No.6.
15. Such contention of the petitioner stands fortified from the documents discussed above and some other documents which have been produced by the petitioner alongwith his Misc. Applications Nos.C-2 and C--3 which applications were moved during the pendency of the petition and were allowed by this Tribunal. The documents, being relevant, were held to be fit for consideration at the time of arguments. These documents consist of a letter from Mian Muhammad Javed, Returning Officer, non-Muslims seats, Islamabad, addressed to the petitioner dated 1-9-1998. According to this letter it is certified that in previous statement containing consolidated results of NA-151 to NA- 196, the number of votes secured by the petitioner in Constitutency NA-155, it was shown that the petitioner had secured 229 votes but on rechecking the second page of Form XIV it was found that petitioner had actually secured 299 votes. Thus, in many other respects the documents produced by the petitioner clearly suggest that grave mistakes were committed as regards the tabulation of the votes and, on top of all, no entries appear in Form XIV. at least this proves that copies of Form XIV were not available with the AROs to be filled in and, therefore, it is not known as to under what method and rule the ARO provided the lists of the votes secured by each candidate to the Election Commission for its tabulation in Form XVIA.
16. For all the reasons discussed above, my findings on the Issues are as under: Issue No. l This Issue is decided in Affirmative that the Petition is maintainable as subsequently the affidavit- art-evidence, filed by the petitioner was accepted and cross-examination on that affidavit was conducted and in the interest of justice, it was allowed.
17. Issue No.2: My finding on this Issue is that it cannot be ascertained as to what is the actual number of votes - secured by the petitioner and respondent No.6, unless fresh and correct tabulation is made after rechecking the necessary result sheets furnished by the Presiding Officers .in respect of the National Assembly seats where the petitioner and respondent No.6 had secured votes. Therefore, it is necessary to remand this case to the Returning Officer for retabulation of the votes secured by the petitioner and respondent No.6 so that correct result could be arrived at and notified by the Commission.
18. Issue No.3: My folding on this Issue is that till retabulation is made by the' Returning Officer, the result of the election in favour of the respondent No.6 cannot be declared to be void. This will be, however, subject to the retabulation made by the concerned Returning Officer, as observed in the finding of Issue No.2. .
19. Issue NoA The finding on this Issue is that certainly there existed discrepancies) and mis-calculations in recording and consolidation of the number of votes secured by the petitioner and respondent No.6 in the relevant Forms and therefore, it has been ordered that fresh tabulation of the votes secured by the petitioner and respondent No.6 has become necessary, as decided under Issue No.2.
20. Issue No.5: Finding on this Issue is in positive.
21. Issue No.6: The Petition is allowed to the extent that the matter is remanded to the Returning Officer for retabulation of the votes of the petitioner and the respondent No.6 and for declaring the result of these two candidates after such exercise and for asking the Commission to issue fresh notification, if there happens to be any change in the present result in respect of'the petitioner and, respondent No.6.
22. The Returning Officer at Islamabad is directed to carry out the retabulation, as directed above, within a period of fifteen days from the receipt of a copy of this Order.