Malik NAUSHER KHAN LANGERIAL Versus KHALID MAHMOOD CHOHAN

ORDER

This order will dispose of preliminary Issue No.4 and Civil Miscellaneous No.652 of 2003 for recounting of votes polled in the election of PP‑235, Vehari‑IV.

2. The relevant facts for the purpose of disposal of above-said issue and application are that in the general elections held in October, 2002, petitioner and respondents Nos. 1 to 7 were candidates to a seat in the Provincial Assembly from Constituency No.PP‑235 Vehari-IV. According to final result, respondent No. 1 was declared as a returned candidate securing 21772 votes as against the petitioner who secured 21721 votes and thus, he lost the election by a narrow margin of 51 votes. Through the instant election petition, he challenged the election of respondent No. 1 by filing election petition before the Election Commission of Pakistan, which was referred to this Tribunal for decision.

3. After having received the petition, the same was registered and notices were issued to respondents. Pursuant to notices issued, respondents Nos.1, 4, 8 and 9 appeared and submitted written statement/comments. Respondent No.4 Mr. Nazar Muhammad Dogal, Advocate, submitted his written reply but thereafter did not appear. Respondent No.8, Registrar, University of the Punjab and respondent No.9 Manager, National Bank of Pakistan, Branch Burewala City, District Vehari, also submitted their comments, they have been made respondents for the purpose of production of record. The remaining respondents did not appear therefore they were proceeded against ex parte.

4. After going through the pleadings of the parties, following issues were framed.

(1) Whether the election of the returned candidate, respondent No.1 is void on account of illegal practices mentioned in para.2‑A to H of the petition.? OPP

(2) Whether the returned candidate respondent No.1 was not qualified to Contest the elections for the reasons of being bank defaulter? OPR

(3) Whether the returned candidate respondent No. 1 was not qualified to contest the elections for the reasons of being non -graduate? OPP

(4) Whether the election of respondent No. 1 is the result‑ of incorrect counting of ballot‑papers? OPP

(5) Whether the election petition is liable to be dismissed in view of objections Nos.1 to 6 of the written statement of respondent No. 1? OPR

(6) Whether the petitioner is estopped by his conduct from filing this petition in view of preliminary objections Nos.3, 4 and 5? OPR

(7) Relief.

5. With the consent of the parties, Issue No.4 was treated as preliminary issue and both the parties led evidence in support of their respective claims.

6. The petitioner produced Mian Muhammad Javed Baitu as P. W.2, Muhammad Sarfraz P.W.3, while the petitioner himself appeared as P.W.1 and after tendering in evidence copy of FI.R. No.71 of 2003 Police Station Danewal, District Vehari, copy of order of remand papers, copy of bail order dated 23‑4‑2003 and affidavits of seven persons namely Mian Muhammad Ajmal, Furqan Yousaf, Pir Bakhtiar Alam Masood Chishti, Munir Ahmad Anjum, Iftikhar Ali, Anwaar Ahmad and Muhammad Yar Tahir, closed his evidence on preliminary issue.

7. Crux of the evidence produced by the petitioner is as follows:‑‑

(i) That initially petitioner and his companions were informed by the Returning Officer (R. W. 1) that the petitioner had won the election but when the petitioner returned after Fajar prayers he was informed by Returning Officer that he had lost the election by a narrow margin.

(ii) That polling agents of the petitioner also informed him in the evening that he had won the election. Consequently sweets were distributed.

(iii) That an application seeking recounting of rejected votes and that of votes secured by respondent No. 1 was allowed but during the process of recounting of rejected votes recounting of votes was abruptly stopped on false pretext.

(iv) That some supporters of respondent No.1 paid a huge amount to secure the success of respondent No. 1, after some time a dispute arose among those supporters and one of the supporters got a case registered against others vide F.I.R No.71 for offences under sections 406/506‑B, P.P C. It was alleged in the F.I.R. that aforementioned supporters had received Rs.6 lacs to ensure the success of respondent No. 1.

(v) P. W.2 Mian Muhammad Javed Baitu and P. W 3 Muhammad Sarfraz who claim to be supporters of petitioner, also deposed, in line with the petitioner.

8. On the other hand, respondent No. 1 produced Mr. Javed Iqbal Warraich, Returning Officer, as R.W.1. Mr. Mumtaz Ahmad Wattoo, Advocate, as R. W 2 while he himself appeared as R. W. 3 and closed his evidence on preliminary issue. R.W.1 while appearing in witness‑box stated that petitioner lost the election by a margin of 51 votes; that recounting of rejected ballot‑papers/votes was stopped on the request of the petitioner as he felt satisfied with the result that he did not declare the petitioner as returned candidate before Fajar prayer; and that he correctly and honestly prepared the official result. R. W. 2 Mr. Mumtaz Ahmad Wattoo, Advocate and Khalid Mehmood Chohan (respondent No. 1) while appearing as R.W.3 deposed that the election was fair and no unfair means were adopted.

9. Learned counsel for the petitioner has argued in line with the evidence produced by the petitioner and raised following points;‑‑

(i) that at one time the Returning Officer, announced the victory, of the petitioner;

(ii) that though the Returning Officer did not admit yet something happened during Fajar prayer interval which forced the Returning Officer to turn the scales in favour of respondent No. 1 ;

(iii) that case F. I.R. No.7 of 2003 registered with Police Station Danewal on 22‑4‑2003 at the instance of Ch. Saeed Ahmad, a supporter of respondent No.1 (Mark "A") clearly shows that the victory of respondent No. 1 was manoeuvred. He has referred to the relevant portion of the abovesaid F.I.R., which is being reproduced for ready reference:‑‑

(iv) that the learned counsel while referring to para. Reproduced above, has further argued that honesty and impartiality of the Returning Officer was questionable.

(v) that the learned counsel has referred to the application Annexure "B" and argued that through the said application the petitioner has prayed for recounting of rejected votes and the votes polled in favour of respondent Khalid Mehmood Chohan, the Returning Officer vide his order, dated 12‑10‑2002 Annexure "D" allowed the application of the petitioner but for some unknown reasons did not recount the votes obtained by respondent No. 1. Learned counsel argued that after allowing the application of the petitioner the Returning Officer abruptly stopped the recounting vide order, dated 12‑10‑2002 Annexure "A/1". Learned counsel submitted that the Returning Officer had wrongly recorded in the above noted order that voting was stopped on the request of the petitioner himself, as he felt satisfied with the result. Learned Court event on to argue that the Returning Officer did not record any statement of the petitioner about the request of the petitioner to stop recounting of votes that he felt satisfied.

(vi) learned counsel for the petitioner has lastly argued that there was very narrow margin between the votes obtained by the petitioner and respondent No. 1 and it would be in the interest of justice if recounting of votes obtained by respondent No. 1 is ordered.

10. Learned counsel for the petitioner has placed reliance on the following cases:‑‑

(1) Muhammad Asim Kurd alias Gailoo v. Nawabzada Mir Lashkari Khan Raisani and 11 others 1998 SCMR 1597. In this case the Tribunal had directed recounting of votes, the same was challenged but the order of the Tribunal was maintained mainly on the ground that the Election Tribunal had the authority to order recount of votes in appropriate cases.

(2) Sh. Iftkhar‑ud‑Din and another v. District Judge, Bahawalpur Exercising powers of Election Tribunal for Union Council of District Lodhran and 8 others 2002 SCMR 1523. In this case the Election Tribunal had allowed the application for recounting of votes without recording of evidence. This order was challenged. The Honourable High Court refused to interfere on the ground that it was an interim order. The order of the learned High Court was upheld by the apex Court as well. The matter related to the Punjab Local Government (Election) Rules, 2000.+

(3) Muhammad Iftikhar and another v. District and Sessions Judge, Faisalabad and 7 others 2003 CLC 254. In this case it was held that it was within the jurisdiction of Election Tribunal to order recount of votes.

(4) Haji Abdul Rebman Khan v. Returning Officer and 6 others 1997 CLC 1123. In this case the Returning Officer accepted the application for recount on account of thin difference of votes between rival candidates and that most of valid votes had been excluded from count and invalid votes were included. The above noted order was held to be within the jurisdiction of the Returning Officer.

(5) Muhammad Tariq Zakhmi and another v. Election Tribunal/District and Sessions Judge, Hafizabad and 13 others 2002 MLD 284. In this case it was held that order passed by the Election Tribunal relating to recounting of votes was within its jurisdiction.

(6) Abdul Majid v. Election Tribunal 1993 MLD 2523. In this case it was held that the Tribunal was competent to resolve the dispute by recounting of votes.

11. Conversely, the learned counsel for respondent No. 1 has argued that:‑

(i) The petitioner has failed to make out a case for recount of votes. To substantiate his point learned counsel has referred to certain portions of the statement of P. W.1 and argued that the petitioner admitted during cross‑examination that he did not keep any written record relating to number of Polling Stations, which were 124 in number and that he could not give the details about the vicinity of different polling stations. The petitioner also admitted that he or his Secretary did not keep any written record relating to the information furnished by their Polling Agents about votes received. He did not keep the record relating to the official result complied by different Presiding Officers and furnished to him by the Polling Agents. He further stated in cross‑examination that he had been complaining to the Returning Officer against certain Presiding Officers but could not specify their names and that he had been making complaints to the Returning Officer through telephone. The learned counsel went on to point out that though according to the statement of the petitioner he had gone to Islamabad and filed a written complaint before the Election Commission on the very next day after announcement of official, result and the Election Commission had received his application yet he had not placed the attested or photo copy of the above noted complaint on the record of the case; that though the petitioner claimed that he had issued a press release stating about the facts that initially he was declared successful and the same was published in all the leading newspapers of the country yet the petitioner did not place single newspaper to substantiate his claim on the record of the case and was not in possession of the press release he had issued. On the point that the petitioner was initially declared to be successful, he during cross‑examination stated that the Returning Officer informed about his success at 4‑00 a.m. and had also informed him that he had won by a margin of 132 votes. However, he was not informed about the number of votes polled in his favour nor he was informed about the number of votes polled in favour of respondent No.1. The petitioner also conceded that he had not mentioned in his application seeking recount of votes that he had been declared winner, earlier. The petitioner also conceded in his statement that 71 bags containing invalid votes were opened while 53 bags were not opened and that out of the bags opened 19 votes were declared valid votes in his favour while 16 were declared valid in favour of respondent No.1. The petitioner stated that he did not know as to whether out of the remaining bags i.e. 53 bags 22 did not contain any invalid votes, according to the statement of the Presiding Officers. However, petitioner denied this suggestion that on his request the remaining bags i.e. 53 were not opened and recounting was stopped.

(ii) The learned counsel then pointed out to the relevant portion of the F.I.R. Mark "A" and submitted that it showed that respondent had won the election. He has referred to the statement of P. W.2 and submitted that according to this P. W the Polling Agents had brought result from all the Polling Stations and he alongwith other had counted the total number of votes polled in favour of the petitioner but no such document was produced before this Tribunal and the witness did not remember the number of votes cast in favour of the petitioner.

(iii) The learned counsel lastly argued that mere narrow margin of votes would not constitute a valid ground for recount of votes. Specially when the petitioner agreed to recounting of invalid votes only and recounting was stopped at his request, as is evident from the orders passed by the Returning Officer on 12‑10‑2002.

12. In support of his arguments the learned counsel for respondent No. 1 has placed reliance on the following cases:‑‑

(1) Chaudhry Muhammad Din v. Abdul Qayyum and 16 others 1987 SCMR 324,

(2) Mian Ejaz Shafi v. Syed Ashraf Shah, 1st Additional Sessions Judge, Karachi and Returning Officer, Karachi West‑1 and 12 others 1996 SCMR 605,

(3) Kanwar Ejaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483,

(4) Sardar Gul Khitab v. Javaid Iqbal Abbasi and 4 others 1988 CLC 945 and

(5) Islam‑ud‑Din v. Munir‑ud‑Din and others 1994 MLD 368.

13. I have carefully perused and analyzed the evidence produced by the parties and the documents brought on the record and heard the learned counsel for the parties.

14. It is true that petitioner unfortunately lost the election by a narrow margin of 51 votes but it is also true that mere narrow margin of votes cannot be made basis for recount of votes. The petitioner though claimed that he was unofficially declared winner by the Returning Officer but in support of his claim the petitioner failed to produce any convincing evidence. He admitted during cross‑examination that he did not keep the record relating to official results compiled by the different Presiding Officers and furnished to his Polling Agents. No written complaint was made against any of the Presiding Officers to the Returning Officer. The petitioner, who is a learned Advocate stated that he had his Poling Agents at all the Polling Stations, who had informed him about his success but he was unable to state that as to how many votes were secured by him initially. No record of receipt of votes at different Polling Stations was kept at the Election office of the petitioner nor the same was produced before this Tribunal. The whole evidence relating to the declaration of the petitioner as winner earlier by the Returning Officer rests on the oral evidence, which stands refuted by the Returning Officer, who appeared as R. W. 1 and stated on Oath that he never declared the petitioner to be winner. This witness was thoroughly cross‑examined but his partiality could not be brought on the record of the case. Only a bald suggestion was made to this witness that in order to favour respondent No.1 he did not pass order for recount of all votes, which the witness denied. However, nothing was suggested to this witness as to why he wanted to favour respondent No.1. This has also not been suggested that this‑witness was under any pressure to favour respondent No.1. Though the petitioner claimed in his statement that after the declaration of result he had gone to Islamabad and filed a complaint before the Election Commission, yet neither certified copy of the complaint not photo copy was placed on record of the case. Similarly the petitioner claimed that he protested against the result by issuing press statement but neither a copy of his press statement nor any copy of newspaper was placed on record to subsp6fitiate his claim.

15. The petitioner did move an application (Annexure "B") seeking recount of rejected votes and the votes polled in favour of respondent No. 1, which was contested and allowed by the Returning Officer vide order, dated 12‑10‑2002. A perusal of this order reveals that the same was allowed for rechecking of rejected votes only on the ground that the votes polled in favour of the petitioner had wrongly been rejected. The Returning Officer during cross examination stated that he had accepted the application of the petitioner to the extent of recounting of rejected ballot‑papers. This order was passed in the presence of the petitioner who himself had moved application but he did not challenge the order of the Returning Officer before any forum rather he participated in the recounting of rejected votes. The subsequent order, dated 12‑10‑2002 whereby recounting of rejected votes was stopped by the Returning Officer on the request of the petitioner is available on the record of the case as Annexure "A/1" with the rejoinder filed by the petitioner. A perusal of this order reveals that:‑‑

(i) the order was passed in the personal presence of the petitioner, who was accompanied by Rana Muhammad Asif, Advocate.

(ii) the total number of rejected votes was 2737.

(iii) after examination of 71 bags, 78 votes were declared as valid. From the valid votes three votes were included in the aggregate of Masood Amin, 30 in favour of Nazar Muhammad Duggal, 4 Ramzan Jatt, 16 Khalid Mehmood Chohan (respondent No. 1), 6 Abdul Haq Duggal and 19 in favour of petitioner Malik Nausher Khan.

(iv) at that stage, at the request of the petitioner further recounting was stopped, as the petitioner was not likely to benefit out of it.

The Returning Officer, who appeared before this Tribunal, as, R. W 1, as already noted above, defended his orders successfully. No reason was advanced as to why this P .W. wanted to favour respondent No. 1. Presumption of correctness is attached to the record prepared by the Returning Officer and it was the duty of the petitioner to prove through solid evidence that the same was fabricated, which is lacking in this case.

16. Learned counsel for the petitioner while referring to the aforementioned F.I.R. Mark "A" has laid stress on the point that respondent No. 1 in connivance with the Returning Officer had manoeuvred his victory through corrupt practices but a perusal of the F.I.R. speaks otherwise. According to relevant para. Khalid Mehmood Chohan‑respondent had won the election as is evident from the word (successful candidate) and that there was apprehension that the result might not be changed. Thus, the petitioner cannot take any benefit out of the contents of the RI.R. It was held by the apex Court in the case of Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 at pare‑D page 26 that:‑‑ "while agreeing with the proposition that the analogy of a criminal trial would hold good in the matter of a corrupt or illegal practice which must be affirmatively proved to a exclusion of a reasonable hypothesis consistent with the non‑commission of a corrupt practice and the benefit of doubt must go to the person against whom a corrupt or illegal practice is alleged."

Thus, in the light of the above noted dictum laid down by the apex Court it cannot be said in the absence of strong evidence that respondent No. 1 with the connivance of Returning Officer tilted the result in his favour. The facts of the case in Ch. Muhammad Din (supra), relied upon by respondent No. 1 are somewhat similar. In this case request for recounting on ground of narrow difference of votes between rival candidates and possibility of incorrect counting was rejected by the Election Tribunal. The same was challenged in the Honourable Supreme Court and the Honourable Supreme Court while dismissing appeal held in para. 7 as follows:‑‑ "we are not impressed with the reasons advanced by the learned counsel(?) in support of his prayer for recount. No doubt that the difference in votes received by the appellant and respondent No. 1 was very narrow, but then he was given an opportunity to participate in a recount by the Returning Officer for precisely this very reason. He turned down this offer and walked out of the proceedings. After the result in the recount had gone against him it did not lie with him to claim a further recount before the Election Tribunal."

In the case in hand the petitioner accepted the order of the Returning Officer whereby his application seeking recount of votes was accepted to the extent of rejected votes only and he participated in the recounting of rejected votes, which was stopped on the request of the petitioner himself. The evidence produced by the petitioner is vague and general in nature, therefore, does not inspire any confidence as against the documentary evidence available against him. Thus, I see no occasion for ordering recount of votes, resultantly the issue is decided against petitioner.

17. As a consequence of my findings on above issue C.M. No‑652 of 2003 is also dismissed.

H.B.T./N‑33/L Petition dismissed.