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Election Petition No. 45 of 1985, decided on 4th June, 1986.

---S. 52--Election petition--Valid votes, determination of--Ballot papers wherein marks were affixed in horizontal space next immediately below that of petitioner could validly be treated as those given in favour of such petitioner--Other ballot papers bearing marks in remaining blank compartments below could not be treated as given to petitioner.

P L D 1986 Jour. 84; P L D 1985 Jour. 89 and 1981 C L C 1332 ref. ,

---S. 52--Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977) , S . 45--Election petition--Failure to file certified copies of election record--Permission sought for securing and filing of such certified copies--Permission to secure and produce certified copies of Ballot Paper, Accounts Forms and marked list of electoral rolls were refused by Election Tribunal on ground that to permit certified copies to be brought on record would substantiate a case not adverted to by witnesses in their affidavits filed with petition.

---S. 52--Election petition--Production of evidence--Requirement--While declining to permit petitioner to secure and produce documents not filed with election petition, petitioner was directed to produce his other evidence by summoning witnesses through Election Commission-- Production, of private witnesses would be responsibility of petitioner.

Raja Muhammad Anwar and Ch. Muhammad Ashraf Azeem for Petitioner.

Eitzaz Ahsan and Khawaja Ahmad Tariq Raheem for Respondent No. 1..

Civil Miscellaneous Nos. 4 and 6 of 1986

By my judgment, dated 18-2-1986, I had decided issues Nos. 1, 2 and 4 and with regard to the last issue I had appointed a Committee of two officers, to be headed by Abdul Aziz, Provincial Election Commissioner and Mr. Muhammad Hamid, Registrar of the Election Tribunal, as the second Member, to re-examine all the invalid votes and to treat as valid those which by virtue of the principle laid down in Jamshed Ahmad's case P L D 1986 Jour. 84, Jamal Shah's case PLD 1985 Jour. 89 and Irshad Ahmad's case 1981 C L C 1332 and that laid down in my judgment itself, could be treated as those given in favour of Mian Ghulam Dastgir Bari, petitioner, and to submit its report stating how many of these votes it treated as valid and how many of these the Committee found that the intention of the voters was not to vote for the petitioner. Order directions were also given in the judgment. By my order, dated 13-3-1986, passed in C.M. No. 2/86, I had ordered that the Committee could, if it was convenient and reasonably possible, categorise the valid and the invalid votes under different heads, as may be required by the counsel for the consenting parties and to seal them in separate parcels; the same to be sent by the Committee with its report to this Trihunal afterwards.

2. Consequent to the above directions, the Committee submitted its report, dated 17-3-1986. Rai Salahud Din, respondent No. 1, filed objections thereto, vide C.M. No. 4/86. Mian Ghulam Dastgir, petitioner, also filed objections thereto, vide C.M. No. 6/86.

3. According to the report of the Committee, 1152 voters had placed their marks in the blank horizental compartment immediately below the compartment bearing the name of Mian Ghulam Dastgir Bari, petitioner, whereas 342 voters had placed their marks in the second horizontal blank compartment below that of the petitioner, 929 voters had placed their marks in the third horizontal compartment below that of the petitioner and 314 voters had placed their marks in the fourth horizontal compartment below that of the petitioner. The Committee treated 189 votes as of doubtful nature, as the marks were so placed that it could not be stated with any degree of certainty for whom the voters had voted. All these votes were categorized as falling in categories I, II, III, I V and "Disputed" respectively.

4. On behalf of Rai Salahud Din, the contesting respondent, it is urged that 1152 votes found by the Committee in the first blank compartment immediately below that of the petitioner, should be appropriated to Azhar Hussain, candidate, whose name and symbol was printed in the very first horizontal compartment of the ballot paper, that 335 votes found by the Committee in the second horizontal compartment below that of the petitioner, should be appropriated to Rai Salahud Din, candidate, whose name and symbol was printed in the second horizontal compartment of the ballot paper, that 929 votes found by the Committee in the third horizontal compartment after that of the petitioner, should be appropriated to Attiqullah Khan, candidate, whose name and symbol was printed in the third horizontal compartment of the ballot paper and 341 votes found by the Committee in the fourth horizontal compartment after that of the petitioner, should be appropriated to Mian Ghulam Dastgir Bari, petitioner, whose name and symbol was printed in the fourth horizontal compartment of the ballot paper.

5. On behalf of Mian Ghulam Dastgir Bari, petitioner, it is submitted that 325 votes listed in category II, 929 votes listed in category III and 314 votes listed in category IV should all be treated as that given in favour of the petitioner, in addition to the 1152 votes listed in category I.

6. I have given my anxious consideration to this case. In view of the judgment, dated 18-2-1986 given by me in respect of issue No. 4 and the rule as laid down in this respect in Jams had Ahmad's case (supra), Jamal Shah's case (supra) and Irshad Ahmad's case (supra), only those ballot papers where the marks have been affixed in the horizontal space next immediately below that of Ghulam Dastgir Bari, petitioner, can validly be treated as those given in favour of the petitioner. Other ballot papers bearing marks in the remaining blank compartments below, cannot fairly be treated as that given to the petitioner. In these circumstances, I would hold that 1152 votes given in favour of the petitioner, and wrongly declared in-valid by the Returning Officer, shall be treated as valid votes given in favour of the petitioner, for the purposes of this case. C.M. Nos. 4 and 6 of 1986 are disposed of accordingly.

Civil Miscellaneous Nos. 3 and 5 of 1986

7. These two applications have been filed on behalf of Mian Ghulam Dastgir Bari, petitioner. Through both these petitions, the petitioner desires inspection of the electoral rolls and the packets containing the counterfoils of the votes cast at 34 polling stations and permission to secure certified copies of the Ballot Papers Accounts Forms and the marked lists of the electoral rolls of the said polling stations.

8. Both these applications have been contested by Rai Salahud Din, respondent No. 1.

9. On behalf of the petitioner it is submitted that the contesting respondent, through his agents and servants, caused a large number of votes to be cast in respect of voters who had previously died, or who were not residents of the electoral areas concerned from where they gave votes, or which otherwise were bogus, or were doubly cast and that since the petitioner has already filed Annexures "D-I to D-26" covering list of the dead voters, Annexures "F-I to F-12" covering list of votes of non-residents, fictitious and absent persons, Annexures "G-I to G-3" covering list of persons who had given double votes and Annexure 'H' covering list of bogus votes cast, which annexures have been lodged with the petitioner, it is prayed that the petitioner now desires to inspect the election record and to secure certified copies from the Election Commissioner which he thereafter shall file with the Tribunal to corroborate the case.

10. On behalf of the contesting respondent No. 1, it is submitted that the petitioner should have inspected the election record under section 45 of the Houses and Parliamentary and Provincial Assemblies (Elections) Order 5 of 1977, and secured certified copies of whatever documents that he required, much before the filing of the present election petition and he should have attached and filed the said certified copies with the election petition, so that the respondent could have answered the full case of the petitioner. It is also submitted that since the petitioner did not inspect the record earlier or file the certified copies with the petition, that the petitioner now cannot be legally permitted to fill up any flaw or lacuna in his case. It is further submitted that actually the petitioner himself, through his servants and agents, caused a large number of votes to be cast in respect of voters who had previously died, or who were not residents of the electoral areas from where they voted, or which otherwise were bogus or were doubly cast, as this is obvious from the very Annexures "D-1 to D-26, F-I to F-12, G-1 to G-13 and H", which have been filed by the petitioner, which lists could not have been so- prepared by any candidate, unless it was by the very candidate who had caused these votes to be cast. It is also submitted that even assuming the certified copies of the documents, as required by the petitioner, are permitted tar be brought on the record, they do not ipso facto show that the said votes were cast at the instance of the contesting respondent, or through his agents or servants. It is lastly submitted that no affidavit of the petitioner, or his servants or agents, or of any of the Polling Officers or Returning Officers has been submitted by the petitioner with his petition, to show that the persons whose names have been given in Annexures "D-I to D-26, F-I to F-12, G-I to G-13 and H" were persons, who in their presence had cast their votes, to which objection was taken by the petitioner. Since there are no such affidavits, the petitioner cannot be permitted to enlarge the scope of his evidence by filing certified copies of documents, which he now proposes to secure.

11. I have given my anxious consideration to this case. It is too late in the day now for the petitioner to inspect the election records so as to obtain or secure certified copies of the Ballot Papers Accounts) Forms and the marked lists of the electoral rolls of 34 polling stations, so as to file the said certified copies with the present petition, in order to support his case. On behalf of the petitioner it is submitted that no application was made earlier to the Punjab Election Commission 'for the examination of the electoral records, as the Commission did not permo such inspection, due to a policy letter received from the Chief Election Commission which directed them not to permit such inspection, unless an order was obtained from an Election Tribunal. Be that as it may, the petitioner should have filed his petition for inspection of the records, before filing of the present election petition, and obtained the order of Punjab Election Commission refusing such permission. Against such a refusal, he should have made a representation to the Chief Election Commission or sought a mandamus from the High Court. In fact, it appears that the petitioner did not want to inspect the election records and, therefore, did not take any further steps in that behalf, but that finding himself in some predicament now, he wants to inspect the same and to secure some certified copies, for supporting his case. Even assuming, for a matter of argument, that I were to permit the petitioner to lodge certified copies of the Ballot-Papers, Account Forms or the certified copies of the marked lists of the electoral rolls of the 34 polling stations, referred to in the petition, the lists of the dead voters, non-resident voters, fictitious voters, absent voters, bogus voters and double voters, filed by the petitioner, obviously have no reference to persons who cast their votes at the instance of the contesting respondent, or his agents and servants. If they were so, that lists would be with the contesting respondent and .not with the petitioner. But even assuming that these are the names of the persons who cast their votes at the instance of the contesting respondent No. 1, or his agents and servants, the petitioner would have been the first person to have raised objection in respect of each one of them before the Presiding Officers at the relevant polling stations concerned and before the Returning Officer, during the final count. Since there is no affidavits of any person filed with the election petition showing that the petitioner, through his agents and servants, objected to the votes of the persons whose names are given in the annexures, before the Presiding Officers concerned or before the Returning Officer, at the time of final counting, I would not be able to permit any such certified copies being brought on the record to, substantiate a case not adverted to by any of the witnesses in their affidavits filed with the election petition.

11. For all these reasons, I would hold that the grant of inspection of the electoral records would only be an exercise in futility, as I would not be able to permit the petitioner to file the certified copies of the documents that he desires to secure, which have been mentioned in his present petition, and I would, therefore, dismiss both these petitions (Civil Miscellaneous Nos. 3 and 5 of 1986). _,

12. The petitioner shall now produce his evidence on the remaining issues. He may, if so required, summon his witnesses through the Punjab Election Commission, Lahore; it being understood that the responsibility for producing the private witnesses in his and he should personally see that they are present.

13. To come up on 17-9-1986 for evidence of the petitioner.

A. A. Order accordingly.

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