' This election petition has been filed under section 52 of the Representation of Peoples Act, 1976, challenging the election of respondent No,1 who has been declared successful as member of Balochistan Provincial Assembly from Constituency PB-4 Quetta-IV.
2. Briefly stated, facts of the case are that the petitioner as well as respondent No,1 alongwith other private respondents contested election held on 10-10-2002 for Balochistan Provincial Assembly from Constituency PB-4 Quetta-IV and respondent No,1 was declared returned candidate vide notification dated 20th October, 2002. The grievance of the petitioner is that the Polling Officers of different polling stations have not provided the results to the agents of the petitioner on prescribed pro forma as provided under the rules and directed by Election Commission of Pakistan, as such; the election of the Constituency is liable to be declared void. The petitioner is also aggrieved by the order of the Returning Officer, whereby his request for recounting of votes was rejected.
3. After receipt of petition from Election Commission of Pakistan, notices were served upon respondents. Except respondent No,1 the remining respondents did not contest the petition and failed to appear despite service, as such; they were proceeded ,against ex parte. The respondent No,1 filed rejoinder contesting the petition on legal as well as factual grounds.
4. Out of pleadings of the parties the following issue was framed.--(1) Whether Presiding Officer was bound to deliver provision final result on the prescribed form to the petitioner, if so to what effect?
5. The petitioner produced one witness Ejaz Ahmed apart from his statement on oath, whereas respondent No, 1 did not produce any witness and only got recorded his statement.
6. I have heard the learned counsel for the parties and also gone through the evidence on record. It is mainly contended by the learned counsel for the petitioner that the Presiding Officers have not supplied result to the polling agents of the petitioner on prescribed pro forma but issued the same on plain papers and chits etc. Which was in violation of rule 26 of the Representation of the People Act, 1976/Conduct of Election Rules, 1977. It was further contended that the results of three polling stations i.e, Quaid-e-Azam Pu6lic School, Railway Housing Scheme and WAPDA Office Polling Station were not counted in consolidated results and there was also miscalculation of about 68 votes in Form XIV. According to the learned counsel the election was not conducted fairly and in accordance with the rules, as such ; same is liable to be declared illegal and void . In support of his contention the learned counsel referred to the judgment reported in PLD 1989 SC page 396.
7. On the other hand, the learned counsel for the respondent No,1 urged that the petitioner has failed to prove the allegations that the results were not provided on the prescribed pro forma nor he has produced in his evidence those chits and papers on which allegedly the agents of the petitioner were provided the results. He further contended that there is also no evidence on record from which it could be inferred that the results of three polling stations as alleged by the petitioner, have not been included in the consolidated result. Even the petitioner has 'failed to mention the names of those polling stations in his petition, as. Such, the arguments in this regard are liable to be ruled out of consideration being beyond the pleadings. According to the learned counsel the petitioner also failed to make out a case for recounting which could only be ordered in exceptional circumstances.
8. I have carefully considered the contentions put forth by both, the learned counsel. It may be noticed that in election petition the petitioner has challenged the election of the respondent No,1 on the ground that his polling agents were not provided the results on the prescribed pro forma in violation of rules, as such; the election is liable to be declared void. It was further alleged that the Returning Officer illegally rejected the application for recounting. Therefore, the ground that the results of three polling stations were not included in the consolidated result, was not pleaded in the petition, as such; the petitioner could be not allowed to take any ground, which is beyond his pleadings. So far the allegations regarding not providing results on the prescribed pro forma is concerned, the petitioner has produced one witness Ejaz Ahmed besides his own statement who has stated that on the day of election he was Incharge of MMA in the Constituency PB-4, Quetta-IV and was informed by the female polling agent that the concerned official had not provided written results of polling stations. He also stated that other agents have also brought self-prepared results because they were not provided any result on the prescribed pro forma. The petitioner in his statement on oath deposed that after conclusion of polling., he was leading for about 300 votes till 1-00 a.m. But the Presiding Officers were not providing results to him on the prescribed pro forma.
Similarly, the results of 3-4 polling stations were not provided to him, whereupon he informed the Returning Officer about these irregularities who assured him that he would direct the concerned officials for providing the of results but despite direction results were not provided to him. He further deposed that on telephonic call of the Returning Officer, he went to him who informed him about non-receipt of result of one polling station which was provided by him and thereafter he was told that the petitioner had lost election by 300 votes. According to him, the Returning Officer informed him that he would again compile the result on 12-10-2002 and also asked him to be present on the said date. In response whereof he went there on the said date but instead of compiling the result the Returning Officer informed him that the result was the same as he was told on the night of election. He further deposed that on receipt of consolidated statement of the results it, was revealed that there was mistake of 100 votes in it, therefore, he asked for recounting, but his said request was rejected by the Returning Officer vide order Exh.P.1. So far statement of witness Ejaz Ahmed is concerned, it may be seen that his statement is based on hearsay evidence because according to him he was informed by female polling agent and other agents that the results were not provided to them on prescribed pro forma, as such; his evidence in this regard is not admissible. Surprisingly the polling agents to whom the result was not provided on prescribed pro forma as alleged by the petitioner, have not been produced to prove the allegations in this regard, as such; merely on the statement of P.W. Ejaz Ahmed or of the petitioner it is very difficult to hold that results were not provided on prescribed pro forma in violation of rules, particularly when no such chit or plain paper on which allegedly the results were provided have been tendered in evidence. It was for the petitioner to have brought on record tangible evidence to prove the allegations in this regard which he failed to produce, as such; in my considered view the petitioner has failed to discharge the onus which was heavily upon him.
' So far request for recounting of votes is concerned, it may be observed that under subsection (5) of section 38 of the Representation of the People Act, 1976 the Returning Officer may recount the ballot-papers upon the request or challenge in writing made by a contesting candidate or his election agent if the Returning Officer is satisfied that the request or the challenge is reasonable and for his satisfaction the candidate or his agent is required to show irregularity or illegality committed during the counting and same could not be ordered to be recounted merely on bald statement of the candidate that he was not satisfied with the counting. In the instant case the petitioner has failed to place on record the application whereby he has requested the Returning Officer for recounting in order to show the grounds on which he claims the recounting but only placed on record the order of the Returning. Officer as Exh.P.1. The perusal of order Exh.P.1 shows that the petitioner claimed for recounting of ballot-papers and postponement of results on the ground that the petitioner has secured more votes than the returned candidate according to the results furnished and provided by his polling agents without mentioning the irregularity or illegality committed during the counting by the Presiding Officers. Under such circumstances the Returning Officer was right in rejecting his application, which was without any proof.
' Similarly this Tribunal can order fox recounting provided that the 'election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in the counting are founded or on the basis of evidence adduced it is prima facie established that there was a mistake in counting and, the Tribunal is prima facie satisfied that the making of such an order is imperatively' necessary to decide the dispute and to do complete and affective justice between the parties. The perusal of contents of petition shows that it does not contain material facts regarding allegations of irregularity or illegality in counting except the allegation that the results were not provided to the polling agents of the petitioner on the prescribed pro forma, which as already discussed has not been proved. The petitioner has also failed to produce any evidence from which it could be inferred that some mistake has taken place in counting calling for recounting. According to the allegations of the petitioner there was mistake of 100 votes in consolidated result but he has failed to produce "statement of consolidated result" in his evidence.
Though the learned counsel tried to refer to a photostat copy of consolidated result appended with the petition but same was neither brought on record nor tendered in evidence, as such same could not be taken into consideration. Similarly the petitioner has failed to prove the fact that the results of three polling stations were not included in the consolidated result, as such; in my considered view the request of the petitioner for recounting cannot be acceded to. The Honourable apex Court in the judgment reported in 1999 SCMR page 284 while discussing the scope and discretion of Election Tribunal regarding recounting held as under:-- '"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.
' 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.
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 examine 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,"
The upshot of the above, discussion is that the petitioner has failed to prove the allegations challenging the validity of election, as such; the petition must fail, which is dismissed accordingly.
The file after completion be transmitted to Election Commission of Pakistan as provided under section 72(2) of the Representation of the Peoples Act, 1976, parties are left to bear their own costs.
Election .