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Civil Appeal No. 140 of 1985, decided 27th April, 1986.

(On appeal from the judgment, dated 21‑5‑1985 of the Election Tribunal Punjab, Lahore in Election Petition No. 9 of 1985).

------- S. 27‑Where election proceedings at any station are "interrupted" or. "obstructed" by any "riot or open violence", Presiding Officer shall report circumstances to Returning Officer who may adjourn poll to a date to be notified later‑Disturbance taking gplace at election proceedings was over in about 5/6 minutes and there was neither any riot nor any open violence nor was the polling either interrupted or obstructed‑Disturbance was handiwork of ' support tern of appellant himself :Appellant was doing poorly at relevant polling station and his supporters thought of stratagem to save the day by securing an adjournment of poll at relevant polling station‑Police report and other evidence proved :shat disturbance was result of ‑doings of appellant's supporters‑No. :incident of seriousness, held, had taken place which necessitated adjournment of poll in circumstances.

‑‑ S. 39‑Recounting of ballot‑papers‑Conditions‑Recounting of ballot‑paper can only be ordered if conditions laid down in that behalf are fulfilled and Returning Officer is "satisfied that request is reasonable''‑Vague allegations not containing adequate statement of material facts cannot be the grounds for recounting‑Recount cannot be granted as a matter of right but only on basis of evidence to the effect that there are good grounds for believing that there has been a mistake in the counting.

Raja Muhammad Anwar, Senior Advocate Supreme Court and M. Aslam Chaudhry, Advocate‑on‑Record for Appellant.

Malik Abdul Karim., Advocate Supreme Court with A. W. Butt and S. Abdul Asim Jaffri, Advocate‑on‑Record (absent) for Respondent No. 1

Date of hearing : 27th April, 1986,

This appeal under section 67(3) of the Representation of Peoples Act, 1976, is directed against the judgment, dated 21‑5‑ 976 passed by the Election Tribunal, Punjab, dismissing the election petition filed by the appellant, Kanwar Ijaz Ali.

The appellant, Kanwar Ijaz Ali and respondents Nos. 1 to 3 contested elections for Seat No. PP‑214 Okara‑IV in the Punjab Provincial Assembly. The elections were held on 28‑2‑1985 wherein Ch. Irshad Ali, respondent No. 1 obtained 23025 votes while the appellant Kanwar Ijaz Ali secured 22318 votes, There were two other candidates (respondents Nos. 2 and 3) who secured‑ 9994 and 1060 votes, respectively. Since Ch. Irshad Ali, No. 1 secured the largest number of votes, he was declared elected.

The contest was obviously a close one in which the appellant trailed behind respondent No.1 only by few hundred votes (to be exact 707 votes). He apparently could not accept this defeat easily after have reached so close to the winning post. He, therefore, challenged the election of Election Tribunal, an election was contested by respondent No. 1 only and after the preliminary skirmishes in the shape of disputes over preliminary objections, the following issues were ultimately settled on the merits :‑

(1) Whether the respondent No 1 is guilty of illegal and corrupt practices If so, what is its effect

(2) Whether the election was held in accordance with the provisions of Act 85 of 1916 or the Rules framed thereunder and whether result of the election has materially been affected

However, in concrete terms. the allegations by the appellant, levelled in support of his plea that illegal and corrupt practices were committed by respondent No. 1, were that at Polling Station No. 59 set up for the voters of Chak‑No. 5/1‑AL and 6/1‑AL for this election‑the polling agents, workers and supporters of respondent No. 1 did not allow his polling agents to sit at the said polling station during the election ; that the supporters of respondent No. 1 used rifles and dangs to scare the voters and the polling agents of the appellant forcing them to flee from the polling station, whereafter one‑sided voting was conducted in favour of the respondent No. 1 and bogus votes cast in a fictitious manner in his favour ; and that a violent incident also took place in the aforesaid polling station wherein fire‑arms and hockey sticks etc. were used and owing to this disturbance the voting at polling Station No. 59 was interrupted but the Presiding Officer failed to adjourn the poll, which he was under an obligation to do and thereby infringed the law, as prescribed under section 27 of the Representa tion of the Peoples Act, 1976.

The other limb of the attack of the appellant was that as the difference of votes between the successful candidate and the appellant was only 707 votes the Returning Officer acted against the provisions of the Act when he refused to order the recounting of the ballot‑papers on being approached to do so by the appellant.

Some other grounds were also advanced but these have not been repeated before us: hence it is not necessary to advert to them.

The learned Election Tribunal in a detailed judgment, after carefully analysing and scrutinizing all the evidence brought on the record and adverting to all the attending circumstances, found no merit in any of these allegations. The learned tribunal found that there was no cogent evidence on the record to establish that the supporters of respondent No. 1 had prevented the polling agents of the appellant from sitting at the polling booths of Chak No. 6/1‑AL or that the election was conducted here without his polling agents.

Coming to the charge of corrupt practice that the men of respondent No. 1 had used their rifles and dangs at mid‑day, on the election day, which resulted in the voters and the polling agents of the appellant fleeing from the polling station and that one‑sided voting was conducted thereafter wherein votes were cast in a fictitious manner in favour of respondent. No. 1, the learned Tribunal, after fully discussing the relevant evidence produced by both sides on this point including the report of the Superintendent of Police (Exh. 19/4) rejected this charge. The report of the Superintendent of Police, which was made by him after conducting a thorough probe was to the effect that‑

"it was established beyond any doubt that one occurrence took place at Chak No. 6/1‑AL and at this polling station Abdul Hamid supporter of the petitioner (appellant herein) inflicted hockey blow on the head of Muhammad Akhtar of first respondent party, while Muhammad Aslam also of petitioner group fired one shot in air to intimidate the voters of first respondent. A case F. I. R. (Exh. 17/3) No. 64, dated 28‑2‑1985 was registered against the supporters of the petitioner. The counter‑version narrated in the telegram (of the petitioner) is nothing but afterthought defence and a belated plea."

After full examination of the entire circumstances, as appearing from the evidence of the parties, the learned Tribunal concluded :‑

"However, in the instant case the petitioner (appellant herein) has failed to discharge the burden and he has failed to prove that the fight was started by the supporters of the first respondent."

Coming to the question of the polling having been suspended the learned Tribunal held that this was entirely incorrect, observing :‑

"The polling was not suspended because of the occurrence and (nor were) the voters (disturbed) in the queues at the polling booths of Chak No. 6/1‑AL."

His conclusion was expressed thus :‑

"I hold that no corrupt practice was established to have been com mitted by any worker or supporter with the connivance of the respondent or his election or polling agent."

He categorically rejected the allegation of the appellant that his polling agents were not allowed to sit at the polling station and one‑sided votes were cast in favour of the first respondent in their absence.

As regards the plea that his prayer for recounting was illegally refused, the Tribunal held that the allegations in the application, wherein recount ing was requested. Were vague and did not contain an adequate statement of the material facts. It was further observed that‑

"the petitioner has not adduced any evidence in this regard. No definite particulars have been given in the application for recount as to the illegalities alleged to have been committed in the counting of the ballot‑papers. I am of the humble opinion that a recount will not be granted as a matter of right but only on the basis off evidence (to the effect) that there are good grounds for believing that there has been a mistake in the counting."

In the result, the Election Tribunal held that the appellant had failed :o establish that any corrupt practice was committed by the workers and supporters of respondent No. 1 either with his connivance or with that of his election agent. Accordingly, it found that the election of first respondent could not be declared void. Furthermore, it also held that the appellant had failed to make out a case of "recount". In the result, the appellant's election petition was dismissed. Hence this appeal.

Raja Muhammad Anwar, learned counsel for the appellant, in support of this appeal Las only raised two contentions before us, namely, that in so far as a fight had taken place within the precincts of Polling Station No. 59, the Presiding Officer, therefore, was under an obligation to adjourn the poll in accordance with section 27 of the Representation of Peoples Act, 1976 and, secondly, that the Returning Officer had erred in trot granting the prayer of the appellant for recounting of the ballot‑papers and the Election Tribunal had similarly erred in law in not directing the Returning "Officer to recount the ballot‑papers in the counting whereof illegalities/irregularities bad been committed earlier.

The learned counsel for the appellant took us through the relevant evidence to establish that there was firing and disturbance during the poll at Polling Station No. 59 which had not only resulted in soaring away the voters of the appellant but also interrupted the smooth flow if polling. Hence, it was incumbent upon the polling officer to have adjourned the poll.

But, after having gone through, the relevant evidence we are of the opinion that the plea being raised by the appellant's learner' counsel is entirely against the weight of the evidence and on the other hand are inclined to agree with the conclusion arrived at by the Election Tribunal that no incident of any seriousness had taken place which necessitate the adjournment of the poll. According to section 27 of the Act if at a election the proceedings at any polling station are "interrupted" or "obstructed" by any‑ "riot" or "open violence", the Presiding Office shall, report the circumstances to the Returning Officer who may adjourn the poll to a date to be notified later. In the instant case, the disturbance which took place was over in about 5/6 minutes and there was neither any not nor any open violence nor was the polling at Polling Station No. 59 either interrupted or obstructed. Furthermore, this disturbance was the handiwork of the supporters of the appellant himself. It appears that the appellant was doing very poorly at this polling station and his supporters appear to have thought of this stratagem to save the day by securing an adjournment of the poll at this Polling Station. The report of the Superintendent of Police and other evidence makes it amply clear that the disturbance was the result of the doings of the appellant's supporters.

Coming to the other plea of the appellant that ballot‑papers of this Polling Station should have been recounted, the only argument addressed before us was that the appellant lost by only 707 votes and as his supporters and polling agents had been forced to flee from the polling station sod the field became open for one‑sided voting on the part of respondent No. 1, the appellant apprehended that irregularities must have occurred in the voting and in its counting.

The entire plea is based on assumptions and suppositions. Some of the assumptions have already been held to be unfounded such as the fleeing of polling agents and supporters of the appellant on account of the alleged rough tactics employed by the supporters of respondent No. 1; while the other supposition is merely based on subjective feelings of the appellant as to what must have happened in his absence.

The recounting of ballot‑papers can be ordered only under the provi sions of section 39 of the Representation of Peoples Act, 1976. The provisions of subsection (3) and subsection (6) of the said section are rele vant in this connection :‑

"(3) Before consolidating the results of the count, the Returning Officer shall examine the ballot‑papers excluded from the count by the Presiding Officer and, if he finds that any such ballot‑paper should not have been so excluded, count it as a ballot‑paper cast in favour of the contesting candidate for whom the vote has been cast thereby."

"(6) The Returning Officer may recount the ballo‑tpapers‑

(a) upon the request of, 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 ; or

(b) if so directed by the Commission, in which case the recount shall be held in such manner and at such place as may be directed by the Commission:

Recounting the ballot‑papers can only be ordered if the conditions laid down in this behalf are fulfilled and the Returning Officer is "satisfied that the request is seasonable". The request of the appellant .in this case, as has been explained by the learned Tribunal, with whom we entirely agree, was not reasonable and was rightly rejected by the Returning Officer and, therefore, his decision upheld by the Election Tribunal. We too see no reason to differ with this eminently proper decision of the Returning Office and upheld by the Election Tribunal.

There is absolutely no force in this appeal. It is, accordingly, dismissed with costs.

M.B.A. Appeal dismissed.

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