1. Petitioner Dr. Hamid Khan Achakzai son of Abdul Samad Khan Achakzai, contested Election held in 1997, from PB-9 Qilla Abdullah-II, on the ticket of Pashtoon Khawa Milli Awami Party (P.M.A.P). He was opposed by respondents, including Behram Khan Achakzai son of Sultan Muhammad, the Returned Candidate, who contested election on the Ticket of Jamiat Ulema Islam (J.U.I.). As per the official result petitioner and Respondent No. 1, polled following number of votes: ---
(i) Petitioner Dr. Hamid Khan Achakzai 6703
(ii) Respondent No. l Behram Khan Achakzai 7546 After issuance of Gazette Notification petitioner challenged the result of election, by pointing out grave illegalities and irregularities. Petition was contested by respondent No. 1, whereas other respondents, excluding respondents 3, 10 and 11, were declared ex parte, as despite service they did not opt to appear and contest the petition. It may be noted that at initial stages, learned counsel Mr. Aminuddin Bazai, appeared for respondents 3,10 and 11, but later on he did not take interest in the case, and substantially the petition was contested by respondent No. 1, through his counsel.
2. During pendency, of petition on 24th June, 1997, on behalf of petitioner, an application under section 46 read with section 64 and all other enabling provisions of the Representation of the People Act, 1976 (hereinafter referred as 'the Act') was moved for ordering the opening of packets etc. for purpose of inspection and counting the valid ballot papers of the following Polling Stations:
(i) Polling Station No.39, Killi Tore Muhammad Aghberg;
(ii) Polling Station No.31, Tore Tangi Hessanzai;
(iii) Polling Station No.27, Civil Dispensary Spin Tiza Killi Zafran;
(iv) Polling Station No.29, Skan Kan;
(v) Polling Station No.26, Killi Haji Qayyum; and
(vi) Polling Station No.64, Killi Shaloon.
3. Respondent No. l contested the application. However, on hearing arguments, it vas allowed on 31st July, 1997 whereby the Provincial Election Commissioner was appointed as 'Authorized Officer' to inspect the packets of counterfoils, certificates and counted ballot-papers, on summoing the record of the polling stations, named hereinabove in presence of the Representatives of (i)
4. National Registration Office, Pishin; (ii) Provincial Election Commission; (iii) Election Commission of Pakistan and (iv) Finger Print Expert of Police Department.
5. Respondent No. l challenged the above order, before the Hon'ble Supreme Court of Pakistan in Civil Petitions 135-Q and 136-Q of 1997. (It may be noted that as in another case being Election Petition No.6 of 1997 under title 'Mehmood Khan Achakzai v. Moulvi Abdul Ghani and others identical order was paused, therefore, latter also questioned the same before Hon'ble Supreme Court. The Hon'ble Supreme Court disposed of the above petitions, vide judgment dated 20th August, 1998. Operative para. therefrom is reproduced hereinbelow:--- "19. On the background given above, it is clearly established that the Tribunal at any stage had the jurisdiction to exercise its power under section 46 of the Representation of the People Act, 1976.
6. However, it is not understandable that for what purpose representatives of the Finger Print Expert of Police Department and Assistant Director, National Identity. Card Department were required to be present while carrying out recounting. This portion of the order is clearly beyond the scope of afore-quoted provisions and powers vested in the Election Tribunal, therefore, directly contravenes requirements of law. Their presence with Authorized Officer or observation with regard to nature or type of balloted vote, would certainly perpetuate illegality, which is not cureable. Therefore, for advancing interest of public policy, spirit of law and fostering complete justice, besides avoiding serious prejudice or ultimate frustration of proceedings, eventually to be finalized by Election Tribunal, it is expedient to rectify said jurisdictional error and legal infirmity. Accordingly, we are inclined to observe that presence of aforementioned two representatives is unnecessary. Their names be deleted from the list of persons to be present alongwith 'Authorized Officer' for purpose of recounting of votes etc. on the basis of impugned order. Thus modifying the impugned order in the terms of short order referred to above petitions are converted into appeals and disposed of accordingly. However, parties are left to bear their own costs."
7. As the Hon'ble Supreme Court has held that the presence of Finger Print Expert of Police Department and Assistant Director, National Identity Card Department, with the Authorized Officer, is clearly beyond the-scope of section 46 of the Act, thus, to this extent the order was modified.
8. In view of the above observations, the Authorized Officer/Provincial Election Commissioner, got exhibited his Report as 'P/1' in his examination-in-chief. Further during his examination, used ballot papers examined by Authorized Officer in presence of parties, pertaining to above Polling Stations, were also got exhibited. It may be noted that examination of documents, which was scrutinized by Authorized Officer, was also undertaken, at the time of recording .of his statement. On completion of his statement, opportunity of cross-examination was also afforded to learned counsel for respondent No. 1, as well as the Additional Advocate-General.
9. It may be noted that respondent No.1's counsel did not put a single question relating to the observations made by Authorized Officer in his report, in respect of the counterfoils and used ballot-papers.
10. On 7th April, 1999, petitioner's Advocate, Syed Iftikhar Hussain Gilani, was asked to prepare a pro forma, polling station-wise, indicating the number of votes, polled by petitioner as well as respondents 1 and 2, and to mention objection, admissible under the relevant provisions of law, on used counterfoils, ballot papers etc. which have been examined by the Authorized Officer, because, in absence of such pro forma, it was not considered possible to examine all the documents, in one hearing. Accordingly, such pro forma was prepared, copy whereof was handed over to respondent No.1's counsel. Thereafter examination of the counterfoils, used ballot-papers, was carried out polling station-wise, at different dates of hearing. On completion of examination of documents, case was adjourned from time to time, mostly at the request of learned counsel for respondent No. 1.
11. Syed Iftikhar Hussain Gilani assisted by Messrs Ehsanul Haq and S.A.M. Qadri, Advocates, appeared on behalf of petitioner. Whereas initially Mr. Basharatullah, Advocate appeared on behalf of respondent No. 1, but at later stage, he was replaced by Malik Maqbool Ellahi, Advocate, assisted by Chaudhry Muhammad Hussain, Advocate. Mr. Aminuddin Bazai, Advocate, appeared on behalf of respondents 3,10 and 11 for fixed date of hearing, at initial stage, but later on did not appear. Malik Sikandar Khan, learned Advocate-General appeared to assist the Tribunal.
12. At this juncture, it is noteworthy that after submission of report by Authorized Officer, as well as recording of his statement, learned counsel for petitioner, submitted an application, With the request, to summon the official witnesses i.e. Representative of the National, Identity Card Department, with the record of District Pishin-Qilla Abdullah and the finger expert of the Government Department or the private practitioner. Notice of the application was given to other side, who contested the same. No order was passed on the application and it was kept pending, subject to the decision of application under section 46 of the Act, and it was pointed out to learned counsel for petitioner, that as Tribunal instead of disposing of main petition, had agreed to decide the application, under section 46 of the Act, therefore, pending its decision, it is not necessary to summon both these witnesses. In view of such observations, learned counsel for petitioner, did not press: for disposal of application.
13. On behalf of petitioner, it has been argued that in view of the judgment of Hon'ble Supreme Court in the case of Sardar Abdul Hafiz Khan v. Sardar Muhammad Tahir Khan Looni and 13 others (1999 SCM R 284) the Tribunal is empowered to declare the votes invalid, if substantial compliance of the procedure of voting, as contemplated by section 33 of the Act, has not made. According to learned counsel, on applying the test, laid down by Hon'ble Supreme Court, there are two thousand nine hundred and sixty-five defective and lost counterfoils. Therefore, by rejecting the total votes from the count of petitioner, respondent No. l and other candidates, petitioner can be declared as successful candidate in place of respondent No. 1.
14. On the other hand, Malik Maqbool Ellahi, learned counsel for respondent No. 1, argued that in instant case, petitioner himself has' not entered in witness-box, to allege, that respondent No. 1, indulged in corrupt/illegal practice, to make out a case of declaring the result of election of respondent No. 1, as void. Therefore, in absence of such evidence, on account of the conduct of officials, responsible to manage the election at different polling stations, respondent No. 1, cannot be deprived of.
15. Inasmuch as, none of the official, responsible for non-compliance of the procedure of voting, has been made party in petition nor has been summoned. Since it is the bounden duty of the petitioner, to give evidence to prove, that the respondent No. 1, has procured his election, by adopting corrupt and illegal practice, therefore, in absence of such evidence, no relief, as has been prayed for, can be granted. To support his contentions, learned Counsel placed reliance on PLD 1963 SC 553, PLD 1972 SC 25, NLR 1985 (Civil) 790, PLD 1986 Journal 46, PLD 1987 SC 213, AIR 1987 SC 1577, 1987 SCM R 1987, 1988 CLC 944 and 1996 SCM R 336.
16. Malik Sikandar Khan, learned Advocate-General, supported the arguments of Malik Maqbool Ellahi, Advocate, and added, that the allegations of connivance of respondent No. 1, with officials, has not been proved, therefore, in absence of any evidence, no relief can be granted to petitioner. He made reference to the judgments reported in PLD 1957 SC (Pak.) 301 and 1994 SCM R 446 (Supreme Court of India).
17. I have heard the learned counsel for parties at length, and examined the election record thoroughly.
18. It may be noted, as observed hereinabove, that during pendency of main petition under section 52 of the Act, normal procedure of hearing the case was discarded, when an application under section 46 of the Act was filed. There cannot be any dispute with regard to exercising of jurisdiction by the Tribunal, under section 46 of the Act, at any stage, as it has been held Court in the instant case, while disposing of C.Ps. 135-Q and 136-Q of 1997, on 20th August, 1998, relevant para. wherefrom, has already been reproduced hereinabove. Thus, for the time being, instant proceedings shall be dealt 'with only under section 46 of the Act and if petitioner failed to succeed on this score; then it would be seen; whether petitioner is entitled to press for disposal of petition on merits.
19. It would be appropriate at this stage, to examine the judgments, relied upon by learned counsel for respondent No. 1.
20. In Budho and others v. Ghulam Shah (PLD 1963 SC 553), it has been held that "under Order VI, rule 2, C.P.C., the plaintiff is bound to state the facts and is confined to a statement of facts. He is presumed to rely upon all the facts which he states in the plaint".
21. In Said Rehman of Shagai v. Muhammad Iftikhar Khan and others (NLR 1985 Civil 790), it has been held that 'Election Tribunal cannot examine the plea which is neither pleaded in petition nor supported by evidence'.
22. In Jamaluddin Shah v. Abdul Sattar and 13 others (PLD 1986 Jour. 146) it has been held that 'non- inclusion of particulars of illegal and corrupt practices in petition would not be sufficient to prove the charge of illegal and corrupt practices.'
23. In Sardar Gul Khitab v Javaid Abbasi and 4 others (1988 CLC 945) it bas been again held that" allegations of illegal and corrupt practices, were to be proved by affirmative evidence on the analogy of criminal trial to the exclusion of all reasonable hypotheses consistent with non- commission of a corrupt practice, benefit of doubt whereof, was to go to the person against, whom such allegations had been made'.
24. In Binyameen and 3 others v. Chaudhry Hakim and another (1996 SCM R 336), the Hon'ble Supreme Court has held that party can plead the case if it had been made out by it in its pleadings. No evidence can be led or looked into in support of plea which had not been taken in pleadings.
25. Variation in pleadings and proof is not permissible in law.
26. Learned Advocate-General on this very subject, has relied on PLD 1957 SC (Pak.) 307. In this case, it was held that 'Election Tribunal had no power to raise suo motu an issue quite independent of the points raised in the petition'. He has also relied on 1994 SCM R 446, wherein the judgment of High Court was upheld, who disbelieved the testimony of the Returning Officer and other official witnesses and concluded that no illegality or irregularity was committed in the counting of votes, objection in respect thereof was neither raised by contesting candidate nor any of their counting agents, before the Returning Officer, during course of counting or thereafter.
27. In my opinion, since in the instant matter presently application under section 46 of the Act is being disposed of, therefore, the principles discussed/laid down in the cited judgments are of no help to learned counsel for respondent No. 1, as well as the Advocate-General.
28. At this stage, it would be appropriate to reproduce section 33 of the Act:--- "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) ...............
(b) the number and name of the elector as 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 the 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 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 has one or more ballot-papers in his possession, the Presiding Officer may require the elector to satisfy him 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 papers in the ballot box.
(5) On receiving the ballot-paper, the elector shall--
(a) forthwith proceed to the place reserve for marking the ballot paper;
(b) put the prescribed mark on the ballot paper at any place within the space 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 arid 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."
29. According to learned counsel Malik Maqbool Ellahi, the provisions of Election Laws, so far as it relates to the officials, responsible for conducting the elections, are usually considered to be directory and as regards these requirements concerning the voters, they are usually taken to be mandatory, as it has been held in the case of Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others (PLD 1986 SC 178) and Jamshed Ahmad Khan and 2 others v. The SDM/Assistant Commissioner, Garden Sub-Division, Karachi and others (PLD 1987 SC 213) as well as in the case of Dr.Sher. Afghan v. Aamar Hayat Khan and 2 others (1987 SCM R 1987).
30. Syed Iftikhar Hussain Gilani, learned counsel contended that in view of the latest judgment of Hon'ble Supreme Court in the case of Sardar Hafeez Khan (1999 SCM R 284), reference to these judgments is not necessary, because in this reported case, the Hon'ble Supreme Court, has itself relied on the case of Col. (Retd.) Syed Mukhtar Hussain Shah.
31. I have carefully examined the last-mentioned judgment. A perusal whereof indicates that following two principles, relating to mandatory or directory provisions, have been laid down:--- 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 signatures of the Presiding 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 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 thumb-impression of the elector himself a vote may remain valid if there be a substantial compliance with such requirement but in case that is not so, making it plausibly suspect, the validity of the vote can be questioned with success; and 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. failure of any person(s) to comply with the provisions of the Act or the Rules, the entire- election has to be decided void."
32. In the instant case although the Authorized Officer had submitted report (Exh. P/1) and he was subjected to cross-examination by the counsel of respondent No. l and the Tribunal itself has also examined the counterfoils, used ballot papers, certificates etc. with the assistance of learned counsel for parties, but so far none of them, has been found invalid, to declare the election of respondent No. 1, illegal. Therefore, I am inclined to test the ballot papers and the counterfoils, at the touchstone of the principles, laid down by Hon'ble Supreme Court, in the case of Sardar Hafeez Khan.
33. In this behalf, it may be noted that a detailed exercise has been done, spreading on number of dates of hearing, during which, each and every document of the disputed six polling stations, was examined in presence of parties' counsel. On basis of such examination, polling station---wise, following position emerges, in respect of defective counterfoils and ballot papers, vis-a-vis votes, polled by the candidates:--- CATEGORY ' A'
34. COUNTERFOILS WITHOUT STAMP AND SIGNATURES OF PRESIDING OFFICERS S. No. Polling Station Ex- NumbersDefective Counterfoils
(1) Killi Shaloon No. 11 Exhs.P/173 to 177446
(2) Civil Dispensary Spina Tiza No. 27.Exhs. P/193, 194 and 198261
(3) Skam Khan No. 29 Exhs.P/204 and 208.136
(4) Killi Noor Muhammad Aghberg No. 39Exhs.P/247, 250 and 255101
(5) Killi Haji Qayyum Pinaki No.26Exhs.P/268 to 271273, 274 and 315 Total700 1644 CATEGORY ' B'
35. COUNTERFOILS, WITHOUT THUMB-IMPRESSION OF VOTERS S. No. Polling Station Ex- NumbersDefective Counterfoils
(1) Civil Dispensary Spina Tiza No.27.Exhs.P/196, 195 and 19782
(2) Skam Kan No. 29 Exh.P/205 01
(3) Killi Noor Muhammad Aghberg No. 39.Exhs.P/246, 250, 256, 258 and 259 Total50 133 CATEGORY' C'
36. COUNTERFOILS, WHEREIN SERIAL NUMBER OF VOTER USED MORE THAN ONCE S. No. Polling Station Ex-Numbers Defective Counterfoils
(1) Civil Dispensary Spina Tiza No.27Exhs.P/195,196,197 and 19832
(2) Skam Khan No. 29 Exhs. P/206and 20704
(3) Killi Noor Muhammad Aghber No.39Exhs.P/246, 248 to 256 and 259.142
(4) Primary School Hassanzai No.31Exhs.P/307 Total09 187 CATEGORY ' D'
37. COUNTERFOILS WHEREIN NUMBER OF N.I.C. USED MORE THAN ONCE, OR INCOMPLETE OR WITHOUT N.I.C.
38. NUMBER S. No. Polling Station Ex-Numbers Defective Counterfoils
(1) Skam Kan No.29 Exhs.P/204,207 and 209 08
(2) Killi Noor Muhammad Aghber No.39Exhs.P/246,251,252,254,255, 258 and 25923
(3) Primary School Hasanzai No.31Exhs.P/307.
39. Total01 32 CATEGORY ' E'
40. BLANK COUNTERFOILS S. No.Polling Station Ex-Numbers Defective Counterfoils
(1) Civil Dispensary Spina Tiza No.27Exhs. 195 307
(2) Skam Kan No.29 Exhs.P/205 01
(i) Category ' A' 1644 (ii)Category ' B' 133 (iii)Category ' C' 187
(iv) Category ' D' 32
(v) Category ' E' 02 (vi)Category ' F' 307Total 02 CATEGORY ' F'
41. COUNTERFOILS WITHOUT MENTION OF SERIAL NUMBER OF VOTER AND ELECTORAL AREA S. No.Polling StationEx-Numbers Defective Counterfoils
(1) Primary School Hassanzai No.31 TotalExs.P/308,309,310 and 311307 307 (Note.---In the Defective Counterfoils of this polling station, names of voters are mentioned and it is not known; whether their votes are recorded or not, therefore, such votes cannot be accepted.
42. Even otherwise, by disclosing their names the same is against the concept of secret ballot. It is also to be noted that three electoral lists P/212, 213 and 214 were found but so far the electoral list of this polling station is concerned, it was not found in the election bag).
43. Note.---As defective counterfoils are numerous in number, therefore, it is not possible to note down, separately the number of each counterfoil, however, on thorough examination of books, these were found defective.)
44. It may, also be noted that while making counting as regards the counterfoils, wherein Serial Number of voter and NIC Number has been used more than once; a right of vote has been allowed to the extent of one vote and as far as other such counterfoils are concerned, those have been treated as defective.)
45. The counterfoils, which are suffering from the above defects are to be examined for the purpose of declaring the ballot papers used against these counterfoils, being valid or otherwise, in the light of clauses (d) and (e) of subsection (2) of section 33 of the Act, which provides; that before the ballot paper is issued to an elector, the same shall be stamped on its back with the official mark and signed by the Presiding Officer; and the Presiding Officer shall record on the counterfoil of the ballot paper; the number of elector on the electoral roll, the number of Identity Card of the elector, stamp it with the official mark, sign it and obtain on it the thumb-impression of the elector. Object of enacting such provision, is to avoid bogus voting, because if these conditions are fulfilled, they will provide a guarantee, that a ballot paper has been handed over by the Presiding Officer to an elector, whose name finds mention in the Electoral Roll of the area. It may be seen that such e laws are promulgated with an aim to ensure fair election, amongst the candidates. Therefore, to achieve the object, it is necessary to comply with each condition laid down by the Statute strictly, because departure from such provision tantamount to make the law ineffective, which would of course pave way for bogus voting. However, substantial compliance of these provisions obviously would be sufficient to meet the object of same, as it has been held by Hon'ble Supreme Court in the case of Sardar Abdul Hafeez Khan.
46. On categorization of the defective counterfoils of above six polling stations, the grand total of the above would be as follows:--- Total Defective Votes2305 CATEGORY ' G'
47. This category pertains to those counterfoils, which were found missing in the election bags. As per the statement of Authorized Officer, 197 counterfoils were found missing in the election bag of polling station Primary School Hassanzai No.31. Thus, in absence of these counterfoils, no other inference can be drawn, except that ballot papers were not detached from the counterfoils, by the Presiding Officer because had he issued the ballot papers, there was no reason for him, for not placing the same in the bags. As such, unrebuttable presumption would be, that the candidate contesting the election, managed to remove the books from the possession of concern polling staff and after detaching the ballot papers, same were put in the ballot box, and their counterfoils, must have been taken away by them. As such, in absence of counterfoils, 197 votes are ought to be minus from the count of contesting candidates.
48. Thus the votes, pertaining to Defective Counterfoils and lost Counterfoils, are liable to be deducted from the count of contesting candidates.
49. CATEGORY ' H'
50. This category pertains to defective ballot papers. As per the statement of Authorized Officer, from the bags of following polling stations, defective ballot papers used in favour of respondent No. 1, were taken out from the election bag of respondent No. l:-- S. No.Polling Station Ex-Numbers Defective Counterfoils
(1) Killi Shaloon No. l lExhs.P/2 to 172 171
(2) Spina Tiza No. 27Exhs. P/178 to 192 15
(3) Skam Kan No. 29Exhs. P/199 to 20305
(4) Killi Haji Qayyum Pinaki No. 26Exhs. P/260 to 26708
(5) Killi Noor Muhammad Aghberg No. 39Exhs. P/210 to 24536
(6) Hawsanzai No. 31Exhs. P/275 to 306 32 Total 267 At the time of recording of statement, no objection was raised by learned counsel for respondent No. 1, on the defective used ballot-papers, referred to hereinabove.
51. I have myself also independently examined each ballot-paper carefully and am of the opinion, that the same should have not been counted in favour of respondent No. 1. Thus all these votes are held to be invalid.
52. Now the question is; under what order the defective votes are to be deducted from the count of each candidate.
53. In this behalf, first of all, votes pertaining to defective ballot-papers i.e. 267, used in favour of respondent No. 1, are to be deducted from the total votes, pertaining to defective counterfoils and lost counterfoils, because these are to be exclusively deducted from the count of respondent No. 1, only. Thus the calculation would be in this order: --
(i) Defective Counterfoils 2305
(ii) Lost Counterfoils 197 plus Total 2502
(i) Total Defective and Lost Counterfoils2502
(ii) Defective ballot-papers267 minus Total 2235 So now we are left with 2235 defective votes, liable to be deducted, at the first instance from the count of petitioner and other candidates, excluding respondent No. 1, because it is being presumed that the total votes polled by them in the disputed six polling stations, are defective. In these six polling stations, the petitioner and other candidates secured following number of votes:---- Petitioner 290 Other Candidates391 plus Total 681 As noted above the votes pertaining to defective and lost counterfoils-are 2235 which are liable to be deducted from the count of petitioner and other candidates i.e. 681, the votes polled by-them in six polling stations. Thus on deducting 681 votes from 2235 the left over defective votes will be 1554.
54. Now taking up- the case of respondent No. 1, from his count left over defective votes i.e. 1554 and the votes pertaining to defective ballot-papers i.e. 267 are liable to be deducted. It may be noted that in the whole constituency, he obtained 7546 votes. So. the deduction would be in Left-over defective votes 1554 Votes pertaining to defective ballot-papers267 plus Total 1821 Total defective votes 1821 Total votes polled to respondent No.1 in whole Constituency7546 Minus Total 5725 From the above calculation, following final picture emerges, in respect of valid votes, polled by petitioner and respondent No.1 in the whole constituency:-- .
55. Dr. Hamid Khan .. . 6703-290=6413 votes.
56. Respondent No.1 .. .. 7546-1821=5725 votes The above calculation shows that the petitioner in this way has a lead of 688 votes over respondent No. 1.
57. As a result of above calculation and for the discussion made hereinabove, I am inclined to hold; that petitioner has secured more votes than respondent No. 1.
58. Now the question is; whether petitioner can be declared successful candidate or re-election in the disputed six polling stations be ordered? In this behalf, once again - reference is made to the judgment of Hon'ble Supreme Court delivered in the case of Sardar Abdul Hafiz Khan. In this case, the Hon'ble Supreme Court has held as follows:-- "Accordingly where so many votes, as recorded above 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 to 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.
59. For such reasons, we declared the entire election from PN-10 Loralai-I, to be void and thought it fit to call upon the constituency to go for a fresh poll."
60. The above principle perhaps would not be attracted' in the instant case, because in the reported judgment, the election of whole of the constituency was declared void by Hon'ble Supreme Court, in view of serious illegalities and irregularities, with the process of polling, which was established through evidence of Presiding Officers etc. But in instant case, the re-calculation of the votes has been made, in absence of Presiding Officer, only in respect of six polling stations. As far as the election of remaining polling stations is concerned, that cannot be considered void, because no objection of whatsoever nature has been raised and the opinion expressed by the voters m those polling stations cannot be disrespected, merely for the reason that in disputed six polling stations, illegalities and irregularities during process of polling, have been noticed while considering application under section 46 ofthe Act. Therefore, with utmost respect to the judgment of Hon'ble Supreme Court, I am inclined to hold that in view of peculiar circumstances of instant case, petitioner deserves to be declared- successful candidate.
61. As a result, the application under section 46 of the Act, is allowed Impugned notification, in pursuance whereof, respondent No.1, Behram Khan was declared as successful candidate from PB- 9 (Qilla Abdullah-II) is set aside and Pakistan Election Commission is directed to issue notification in favour of petitioner, Dr. Hamid Khan Achakzai, declaring him Member, Balochistan Provincial Assembly, from the Constituency PB-9 (Qilla Abdullah-II).
62. No order as to costs.