HARCHAND RAI Versus MANGA RAM

1. On the last date of hearing i.e. 6‑5‑1985, my learned predecessor directed the counsel appearing in this petition to satisfy the Tribunal with regard to the maintainability of the petition particularly in view of provisions contained in section 55 of the Representation of the Peoples Act, 1976 (hereinafter to be referred as the said Act). I have heard the learned counsel and the interested parties in this petition on the question of maintainability of this petition.

2. Briefly stated the relevant facts giving rise to this Election Petition are that petitioner Harchand Rai contested against one of the seats to the Provincial Assembly of Sind reserved for Hindus and Scheduled Castes. According to the result five candidates have been declared as successful and the petitioner did not succeed. His main grievance in the petition is that 5,694 votes have been declared as invalid and if they are declared valid then he might succeed for the reason that according to the results announced by the Election Commission of Pakistan he. had secured 12, 758 votes and the last candidate declared successful namely Manga Ram has secured 13,012 votes which leaves only small margin of difference of 254 votes between them. The only short point involved in this petition is whether it is maintainable because the allegation is very vague in nature and requirements of section 55 of the said Act have not been fulfilled. Section 55(1)(b) requires that full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed shall be given. Petitioner is quite unable to furnish any details or reasons as to why these votes have been declared invalid. On the other hand he stated that it was not possible for him because the Constituency was so vast that he was quite unable to appoint Polling Agents in all the Polling Stations throughout Sind. On the other hand, learned counsel for respondent No. 1 has pointed out that most of the votes were declared invalid for the reason that they were spoilt votes. and marking in them was not correctly made. It was argued by him that in section 36 of the said Act procedure is prescribed and it was open to the voter to ask for fresh ballot‑paper if the ballot‑paper used by him was spoilt. It appears from the perusal of section 36 that the voter could exercise this right of demanding for fresh ballot‑paper before he had put the ballot‑paper in the ballot‑box and he had to show the spoilt ballot‑paper that it was spoilt on account of inadvertence. If the ballot‑paper is put in the ballot‑box then the vote stands cast. In any case, it appears that no such demand was made by any voter for issue of any fresh ballot‑paper.

3. Another point raised by Mr. Mobeen is that objection could have been raised at the time when these ballot‑papers were being declared as invalid. In this context perusal of section 38 of the said Act shows that after the close of the Poll, the Presiding Officer had to count votes in presence of contesting candidates, Election Agents and Polling Agents, who were present. According to this section reasonable opportunity has to be provided by the Presiding Officer to the contesting candidates or their agents for the purpose of count but no such objection was taken at that time. It is not open to the petitioner to raise objection now in this Election Petition which could have been raised by him at the time of count of votes at the Polling Stations. This is not the grievance of the petitioner that any illegal practice was adopted or permission was not given to him or his agents but his grievance is that he was unable to send Polling Agents to all the Polling Stations.

4. Counsel for the petitioner was quite unable to satisfy that even if votes were declared as not invalid how could petitioner presume that they were his votes.

5. Section 63 of the said Act provides that the Tribunal shall dismiss Election Petition if the provisions of section 54 or 55 have not been complied with. I am of the view that the allegation made in the petition is of a very vague nature and the petition is directly hit by section 55 of the said Act, which is mandatory in nature and even the prayer made in the petition is also vague because it is stated by the petitioner in paragraph 12 of the petition that the Tribunal may be pleased to direct that invalid votes are not invalid and that recount is necessary and on that account declare that the petitioner is one of the five successful candidates. One can possibly ask for recount only when no defect is alleged in the votes and not when votes have been declared as invalid. After having heard the learned counsel appearing for all the interested parties. I am of the view that the allegation made in the petition is of a very vague nature and no full particulars of any illegal practice or illegal act have been given as such the petition merits dismissal. The petition, therefore, stands dismissed as not maintainable.

6. A . A . Election petition dismissed.