2012 C L C 469
[Election Tribunal Balochistan]
Before Justice Mrs. Syeda Tahira Safdar, Election Tribunal
Haji ATTAULLAH BALOCH ----Petitioner
Versus
ASADULLAH BALOCH ----Respondent
Election Petition No.2 of 2008, decided on 14th January, 2012.
Representation of the People Act (LXXXV of 1976) ---
----Ss. 9, 24, 42, 52, 78 & 83 ---Election petition ---Challenging election of returned candidate on
allegations of committing illegal and corrupt practice and using of un due influence ---Main
allegation of the petitioner was that Presiding Officer being real uncle of respondent/returned
candidate his appointment was made due to the influence exercised by the respondent; that
Presiding Officer had used illegal means to get t he respondent successful and for that purpose the
Polling Agent of the petitioner was turned out and votes were cast without observing legal
formalities and that statement of count was also not prepared in presence of the Polling Agent of
the petitioner ---Burden to prove all such allegations was on the petitioner but most of the
evidence produced by petitioner was circumstantial in nature ---No direct evidence was available
to the effect that Presiding Officer himself cast the votes and committed the acts fa vourable to
the respondent and disallowed the petitioner and his agents to participate in the legal process of
the election, as alleged by the petitioner ---Blood relationship though existed between the
respondent and the Presiding Officer, but mere existen ce of such relationship, would not by itself
invalidate the election process and the result thereof; it was to be established that the Presiding
Officer was appointed without approval of the Election Commissioner by using undue influence,
with intention to obtain favourable result by the respondent ---Existence of such blood
relationship was not a disqualification, but it could be a circumstance for establishing the act of
illegal or corrupt practice, for which some more evidence was required ---Petitioner ha d also
alleged that result of the questioned Polling Station was withheld with mala fides, while on initial
result the petitioner was found successful and declared as such ---No evidence was available to
the effect that the result was withheld and thereafte r changed ---None of the witnesses had spoken
about the same ---Section 24 of Representation of the People Act, 1976 specifically provided that
absence of the candidate or his authorized Agent would not invalidate the acts done in the
election process ---Petitioner was not able to establish the case of illegal or corrupt practice ---
Evidence produced by the petitioner was not of such level to fulfil the requirement of law ---
Petitioner had failed to establish using of undue influence by the respondent for appoi ntment of
Presiding Officer, thereby inducing him to act on his behalf for obtaining a favourable result ---
Petitioner having failed to make out a case in his favour to entitle him for grant of
relief as prayed for, his election petitio n was dismissed, in circumstances.
Mian Shah Jehan v. Haji Lal Karim 1993 CLC 929; Rehmatullah Khan v. Dilawar Khan 1987
MLD 1395; Dr. Haji Misal Khan v. Maulana Gohar Rehman 1987 MLD 1321; Riaz Ameer alias
Abdul Haq v. Aamar Sultan Cheema 1991 CLC 870 , Abdul Hafeez Pirzada v. Agha Ghulam Ali
Buledi 1991 CLC 2093 and Nawab Ali Khan v. Syed Inayat Ali Shah 1987 CLC 535 ref.
Abdullah Baloch for Petitioner.
Kamran Murtaza for Respondent.
Date of hearing: 5th October, 2011.
JUDGMENT
MRS. SYEDA TAHIRA. SAFDAR, J. --- This Election Petition has been filed by the petitioner
Haji Attaullah Baloch, whereby the election of PB -43 Panjgoor -II was questioned with the
prayer that the election at the Polling Station No.25 PB -43 Panjgoor -II be declared as vo id, and
re-poll at the Polling Station be made, or the election as a whole may be declared as void. It is
the case of the petitioner that both the petitioner, and respondent No.1 contested the election for
Provincial Assembly from the Constituency PB -43 Pa njgoor -II held on 18th February, 2008,
whereby the respondent Asadullah Baloch was declared as Returned Candidate through Gazette
Notification dated 1st March, 2008. Further, according to the Statement of Consolidation of
Count (Form -XVI) issued by the Ret urning Officer under section 39 of the Representation of the
People Act, 1976 (hereinafter referred as the Act 1976), the Returned Candidate secured 6335
votes, while the petitioner secured 6131 votes. The petitioner challenged the result of the Polling
Station No.25 Boys Middle School, Gar on grounds that the respondent being, an influential
person, as prior to the election hold the office of the District Nazim Panjgoor, thereby, using his
influence violated the Rules and Regulation, and cleverly changed t he result in his own favour.
Further, as per requirement of law the Returning Officer appointed one Hassan Jan ADLO Live
Stock Department, Panjgoor as Presiding Officer of the questioned Polling Station, but at the
instance of the respondent, the Presiding Officer of the questioned Polling Station was changed,
and substituted a day before the polling day i.e. 18th February, 2008. The act was done without
any lawful basis, legal justification, and also without approval of the Commission. While the real
uncle of the respondent namely Dr. Hussain Ahmed, an employee of Live Stock Department,
was appointed as Presiding Officer of the Polling Station with intention to get undue favour for
the respondent. It was contention of the petitioner that this act of substit ution was objected by
him (petitioner) immediately, thereby raising serious allegations against appointment of Dr.
Hussain Ahmed on grounds of being prejudicial, biased, partial, and had pre -determined mind,
and appointment had been made just to damage, ha rm, and hurt the petitioner, and his voters.
Furthermore, during the polling process due to this act of substitution 353 votes were cast
in favour of the Returned Candidate, without using any of National Identity Cards. Further, the
petitioner wa s shown to have secured 78 votes, with a difference of 275 votes, which caused
serious prejudice to him, and resulted in grave miscarriage of justice. The petitioner further
contended that the Presiding Officer namely Dr. Hussain Ahmed by doing illegal pra ctice,
facilitated the Returned Candidate.
2. The instances of illegal practices as described in the petition are that the Polling Agent of
the petitioner namely Naseer Ahmed was brutally beaten, and was turned out of the Polling
Station at 12 -00 noon, a nd thereafter, he was not allowed to re -enter the Polling Station. While
taking advantage of his absence, unidentified persons were allowed to vote, without having any
National Identity Cards in their names. Further, fraudulent persons were allowed to cast votes
just to make way for the respondent to win the seat at any cost. Furthermore, 30 -votes of the
Provincial Assembly were found excessive from the number of votes casted for the National
Assembly. On basis of these facts it was contended that this corr upt practice clearly speaks out
manoeuvring, and illegalities on the part of the Returned Candidate with the connivance of the
Election Staff. It was also alleged that in absence of the Polling Agent of the petitioner, the
Presiding Officer himself put sta mps on the ballot papers, and cast votes in favour of the
respondent. In addition pre -poll rigging was made in the Polling Station, and the respondent in
collusion with the officials, deputed at the Polling Station, used all illegal means to get himself
successful. Further, on completion of the polling process even no Form -XVI was issued from the
questioned polling station. Furthermore, after counting of the votes from the polling stations, the
petitioner was declared successful, but thereafter, on move of the respondent the result of the
constituency was withheld till 6 -00 a.m. by the Presiding Officer Dr. Hussain Ahmed, and during
this span of time the result was changed. Further, feeling aggrieved he approached the concerned
Authorities including the Elec tion Commissioner of Balochistan, but his grievance was not
redressed.
3. It was further contention of the petitioner that the fraudulent acts were taken to replace
the appointed Presiding Officer, and this fact was very much apparent from letter dated 1 2th
December, 2007. According to this letter the Presiding Officer of the Polling Station No.25 was
shown to have been changed, whereas inability of the Department to make available Hassan Jan
was forwarded on 13th February, 2008, and was received by the R eturning Officer on 15th
February, 2008, and through same letter the Live Stock Department made nomination of Dr.
Hussain Ahmed as such, whose name did not exist in the list of the staff initially prepared by the
Returning Officer. It was further contended that the name of the uncle of the respondent No.1
was proposed, in presence of other senior officers, and this fact shows mala fide on the part of
the Department. Furthermore, large numbers of Presiding Officers were changed in the last
moment, which seri ously prejudice the process of election. Furthermore, the Returning Officer
failed to adopt the procedure, and to do the act as required to be done under section 7 of the Act
1976. Therefore, in view of the facts all the process looses its legal sanctity.
4. The respondent in his written statement strongly contested the plea taken, and the
allegations made in the petition. He further raised several legal objections on maintainability of
the petition. It was objected that the petition is filed beyond the s cope of section 52 of the Act,
1976. Further, the allegation made in the petition does not constitute an election dispute. The
maintainability of the petition was further objected on the grounds that the petition is bad for
non-joinder of necessary parties , and filed without any cause of action, therefore, not
maintainable. On merits the respondent denied having any relation with Dr. Hussain Ahmed,
being his real uncle. It was his contention that he had no concern with the appointment of
Presiding Officer, nor the appointment was made on his request or on his interference. It was his
contention that the petitioner did not raise any objection regarding the appointment of the polling
staff at the relevant time, rather this objection was only raised when he (pe titioner) loses the
election. He further denied event of beating of the Polling Agent of the petitioner, or turning him
out from the polling station. It was his contention that if any untoward incident would have been
taken place, the matter should have be en reported to the concerned police, or law enforcing
agencies, which was not done. According to him the election process in the constituency was
completed in fair and transparent manner, while the votes were polled smoothly. As far as
assertion about diff erence of (30) thirty votes is concerned, it was his contention that the
petitioner cannot take advantage of the fact, because it depends upon the voters to properly cast
their votes. Furthermore, the polling process was carried out in presence of the Poll ing Agents of
the contesting candidates. While unofficial count was also made in presence of the Polling
Agents, and Form -XVI was issued by the Presiding Officer. He prayed for dismissal of the
petition.
5. Following issues were framed on 24th July, 2008: ---
(1) Whether the petition is not maintainable in view of preliminary legal objections 'A' to 'H'
raised in rejoinder/ written statement?
(2) Whether Dr. Hussain Ahmed, Presiding Officer was uncle of the returned candidate
(respondent No. 1), if so, whether he was appointed with the approval of the Election
Commission as Presiding Officer of Polling Station No.25, if so, whether he assisted the
returned candidate (respondent No.1) illegally and through corrupt practice in becoming the
successful candidate?
(3) Whether bogus votes were cast in favour of returned candidate by the said Presiding
Officer, if so, whether 30 votes were found excessive from the number of ballot paper book for
the candidate of National Assembly (NA -271), if so, to what effect?
(4) Whether the election has been procured through corrupt and illegal practice by the
returned candidate, as alleged in the petition, and whether the result was withheld with mala
fides, if so, to what effect?
(5) Whether in the in itial result, the petitioner was found successful and later on respondent
No.1 was declared as successful candidate with mala fides?
(6) What should be the relief?
6. Before going into merits of the case, and recording findings on the issues it deemed
appropriate to decide an objection raised by the counsel for the respondent about eligibility of the
petitioner for contesting the election. During course of cross -examination while replying to a
question the petitioner stated that he done his Bachelor fro m University of Balochistan, while
obtained degree of Masters from Madina University Saudi Arabia. He further admitted it to be
correct that he had done his Bachelor after election of 18th February, 2008. At the relevant time,
and during the course of fina l arguments the learned counsel for the respondent raised contention
that at the time of holding of the election section 99(cc) of the Act, 1976 was in field, therefore,
the petitioner was not having the required educational qualification, therefore, he wa s not
qualified to contest the election. It was his contention that in view of the fact, and the admission
made by the petitioner, the relief claimed by him through instant petition cannot be granted in his
favour. The learned counsel stressed that in view of the fact the present petition is not
maintainable, and without going into merits of the case the petition is liable to be rejected. The
learned counsel for the petitioner though admitted that clause (cc) of Section 99 of the Act 1976
was in field at re levant time, but he further referred to section 12(2) (a) of the Act 1976, and also
to subsections (6) and (7) of the section. It was his argument that the respondent was required to
raise objection to the effect at the time of filing of the nomination pap ers, or even at the time of
scrutiny of the same, as required by section 14 of the Act, 1976. But, at the relevant time no such
objection was raised, and process had already been completed, therefore, at this stage this
objection cannot be raised, nor ente rtainable. He further emphasized that no such objection was
taken in the written statement. The learned counsel further argued that on same point an election
complaint was filed before District and Sessions Judge, Quetta in year 2010, which was disposed
of through order dated 21st February, 2011, but this order was never challenged by the
respondent. Further, the same ground was taken in the Constitutional Petition No.457 of 2010
which is still pending before the High Court, therefore, as the matter is sub judice, this objection
cannot be taken in the instant petition. The learned counsel also produced the compliant made
before the District and Sessions Judge, Quetta, and its decision, and constitutional petition,
which are placed on record. Copies of Second ary School Certificates pertaining to Matriculation,
and Intermediate level in the name of Attaullah, the petitioner, were also produced. While copy
of the certificate of Islamic University of Al -Madina -ul-Munawara confirming Bachelor degree
in favour of A ttaullah bearing dated 13th June, 2001, along with an equivalence certificate issued
by the Higher Education Commission of Pakistan, were also produced, and retained on record.
7. Articles 62 and 63 of the Constitution of Islamic Republic Pakistan 1973 d escribe
qualification, and disqualification for the Membership of Majlis -e-Shoora (Parliament). While
section 99(1) of the Act, 1976 also describes the qualifications required for a person, who intends
to be elected or chosen as member of any Assembly of t he country. While subsection (1A) of the
Section enumerate the grounds on which a person shall be disqualified from being elected as, and
from being a member of an Assembly But, subsection (1) clause (cc) of section 99 of the Act
will be relevant in determ ination of the issue in hand. Because at the time of holding of the
election in 2008, this clause was in field, which was thereafter, omitted through Act -III of 2009
Before omission this clause reads as under: ---
"Section 99 (1) (cc). he is at least a gr aduate, possess a bachelor's degree in any discipline or any
degree recognized as equivalent thereto by the University Grants Commission under the
University Grants Commission Act, 1974 (XXIII of 1974); or any other law for the time being in
force; "
In reply to the objection the petitioner has produced equivalence certificate being covered by the
quoted clause, coupled with the fact that no objection was raised on genuineness of these
certificates. Therefore, in the circumstances, the petitioner was in p ossession of required
qualification at the time, and unless established otherwise he cannot be deprived of his right. If it
was so the respondent was required to adopt the procedure provided in the Act, 1976 for
challenging the nomination of any of the con testing candidate at relevant time. Further, the
nomination papers submitted under section 12 of the Act, 1976, are made public by the
Returning Officer as per requirement of subsections (6) and (7) of the section. While the
procedure of scrutiny of the pa pers is specifically provided in section 14 of the Act, 1976
Further, all such objections can be made, and be disposed of by a Tribunal constituted under
subsections (5) and (5a) of the section. But, admittedly the respondent did not raise any objection
to the effect at relevant time, nor the matter was referred to the Tribunal constituted for the
constituency. Therefore, at this stage this objection; in view of above discussion, is not
entertainable, therefore, rejected.
7. ISSUE NO.1.
This issue perta ins to the legal objections A to H taken in the written statement filed by
respondent No.1.
Legal objection "A" is to the effect that the petition is beyond the scope of section 52 of the Act,
1976, therefore, liable to be dismissed. The learned counsel for the petitioner while arguing the
matter urged that the legal objections are without force, as the requirement of the section were
fulfilled, therefore, this objection was removed. The learned counsel for the respondent did not
argue this objection. It is to be noted that my learned Predecessor in office dispose of the petition
through order dated 26th May, 2010 on same ground, but the honourable Supreme Court through
order dated 26th April, 2011 set aside the order, and remanded the case to proceed with the
matter. Therefore, this objection has already been decided, and no further findings are required in
same respect.
As far as objection "B" is concerned, it is to the effect that the petition does not constitute an
election dispute, therefore, not mai ntainable But the learned counsel for the respondent advanced
no arguments, nor made it clear that why the allegations taken in the petition failed to constitute
an election dispute. Rather in the instant petition the petitioner challenged the result on th e
allegations of committing illegal practice, corrupt practice and using of undue influence by the
Returned Candidate for procuring of favourable result. The matter in hand is covered by election
dispute, and the petitioner has approached the proper forum for redressal of his grievance. The
objection being baseless therefore, rejected.
As far as remaining objections "C", "D", "E", "F" and "H" are concerned, all of them pertain to
the factual aspects of the case, and not based on any provision of law, ther efore, do not constitute
a legal objection. Therefore, no findings are required to be made on these objections; rather
findings on facts will be recorded while discussing the issues framed on factual aspect of the
case.
As far as objection "G" is concern ed, it is to the effect that the petition suffers from non -joinder
of necessary parties. This objection though had been taken, but without clarification that who
being necessary party, had not been joined, and in whose absence no effective order can be
made. No arguments were advanced on this objection too, which is hereby overruled.
8. ISSUE NO.2.
This issue pertains to appointment, and acts committed by the Presiding Officer namely Dr.
Hussain Ahmed, but it is to be noted that issue No.3 also related with this issue, as it also
pertains to the act allegedly committed by the Presiding Officer Dr. Hussain Ahmed during the
course, therefore, it deemed proper to decide these both issues together.
9. This issue consists of three parts. On first instance i t is to be established that Dr. Hussain
Ahmed, the questioned Presiding Officer, was uncle of the respondent No.1. Secondly he was
appointed in violation of relevant provisions, without approval of the Election Commission. And
lastly he assisted the Return ed Candidate through illegal, and corrupt practice to become the
successful candidate. While Issue No.3 elaborate the further acts of the Presiding Officer that he
cast bogus votes in favour of Returned Candidate, and while doing so 30 votes were found
excessive from the ballots of National Assembly. In the petition it was plea of the petitioner that
the respondent by using his influence got appointed Dr. Hussain Ahmed, being his real uncle, as
Presiding Officer of the Polling Station No.25 Gar in place of Dr. Hassan Jan through the
Returning Officer. Further, this act was done in order to get favourable result. It was further his
case that as per relevant law the appointment of the Presiding Officer is to be made 15 days prior
to the polling day, and no cha nge can be made except with the approval of the Election
Commission. But there was complete violation of this provision. It was further his plea that this
Presiding Officer not only committed illegal practice, but by doing so facilitated the Returned
Candi date to become successful.
10. In view of the pleadings the acts for which this Presiding Officer was accounted for
were that the Polling Agent of the petitioner namely Naseer Ahmed was brutally beaten, and
turned out from the polling station a t about 12 -00 noon, and thereafter, he was not allowed to
enter the polling station. Further, by taking advantage of the absence of the Polling Agent of the
petitioner, the Presiding Officer allowed casting of votes by unidentified, and fraudulent persons
without provision of CNIC. Further, due to the fact 30 votes were found in excess from the votes
cast for National Assembly. Secondly, the Presiding Officer himself stamped the ballot papers,
and cast votes in favour of the respondent. The onus to establis h the same was on the petitioner.
Therefore, to substantiate the same the learned counsel for the petitioner while arguing the matter
contended that the existence of relationship between the respondent, and Dr. Hussain Ahmed are
established as specific evi dence had been produced. The learned counsel referred to the
statements of the petitioner's witness No.1 (P.W.1) Muhammad Sadiq, who deposed about the
fact, and also produced the pedigree -table, which shows existence of relationship between them.
P.W.4 Ghu lam Rasool and P.W.5 Haji Jameel also affirms the same. P.W.12 Kafayatullah was
also referred in same context. While in reply there was simple denial of the fact.
11. The onus was on the petitioner to establish that there exists some relationship between the
respondent, and Dr. Hussain Ahmed, the Presiding Officer, which is the basis of the election
dispute. P.W.1 Muhammad Sadiq, P.W.4 Ghulam Rasool, and P.W.5 Haji Jameel all of them
described the pedigree -table ( ) of the respondent, and Dr. Hus sain Ahmed, which shows
that Dr. Hussain Ahmed is son of Moulvi Ubaidullah son of Khuda -e-Dad, while the respondent
Mir Asadullah is son of Asma Malik, who was also daughter of Moulvi Ubaidullah, therefore,
sister of Dr. Hussain Ahmed. Though during course of cross -examination it was denied, but to
rebut this contention no specific evidence was produced by the respondent. From the evidence on
record and in absence of any evidence in rebuttal, it is established that blood relationship exists
between the respondent and the Presiding Officer Dr. Hussain Ahmed.
12. But the fact of existence of relationship between the respondent, and the appointed
Presiding Officer namely Dr. Hussain Ahmed, become crucial if the remaining portions of the
issues are est ablished by the petitioner to constitute an offence of illegal and corrupt practices.
Mere existence of relationship does not by itself invalidate the election process and the result
thereof. Therefore, something more is required. It is to be established t hat the Presiding Officer
Dr. Hussain Ahmed was appointed without approval of the Election Commission by using undue
influence, with intention to obtain favourable result, that too, by the respondent. The learned
counsel for the petitioner while arguing th e matter referred to section 9 of the Act, 1976, with
contention that the Presiding Officer is to be appointed according to the procedure provided in it,
but it was not observed. His further argument was that if there is any change it is to be made
accordi ng to the procedure as provided in subsection (4) of section 9 of the Act 1976. The
learned counsel further referred to Exh.P/16, where name of the Presiding Officer is mentioned
as Hassan Jan, which has been overwritten by hand as Dr. Hussain Ahmed. He fu rther referred to
Exh.P/17 a letter dated 13th February, 2008. According to the learned counsel the name of
Hassan Jan was substituted on the basis of this letter. It was his contention that the contents of
the letter are contrary to the contents of Exh.P/ 16. It was also his argument that if there was some
disability, whereby the nominated Presiding officer was unable to perform his duty, only
Assistant Presiding Officer can act as Presiding Officer under the relevant provisions, but this
was not done. Rath er, letter dated 12th February, 2008 was manipulated, and the name of Dr.
Hussain Ahmed was incorporated in the list. Furthermore, provided 15 days time for making any
change in the staff was also not complied with, therefore, the appointment of Dr. Hussai n Ahmed
as Presiding Officer was made in complete violation of section 9(4) of the Act, 1976. Therefore,
it was his argument that from this sudden change of the Presiding Officer mala fide on the part of
the respondent can easily be presumed. Therefore, in presence of the fact the remaining
proceedings are without authority, thus of no legal effect, and liable to be set aside.
13. While replying to this argument the learned counsel for the respondent only raised
contention that this change was not challen ged at the relevant time. Further, letter of approval of
change of the Presiding Officer is not called into question; therefore, it shall be presumed that the
petitioner had accepted the change; therefore, he cannot raise this ground in the petition. It wa s
further his argument that the provisions of section 9 of the Act, 1976 are to be read with section
68(2) (2) of the Act, 1976. It was further his argument that non -compliance of subsection (2) of
section 9 of the Act, 1976 is not fatal, as this provision is not mandatory, as no consequence is
attached with the provision. Furthermore, subsection (4) is misinterpreted by the counsel for the
petitioner. He placed reliance on: --
Mian Shah Jehan v. Haji Lal Karim 1993 CLC 929, Rehmatullah Khan v. Dilawar Kha n 1987
MLD 1395, Dr. Haji Misal Khan v. Maulana Gohar Rehman 1987 MLD 1321.
He also referred to Article 129(e) of Qanun -e-Shahadat Order, 1984, and urged that a
presumption of correctness is attached with the official documents, and if a change contain ed in
official record is not rebutted the presumption of correctness attached to it will prevail. He relied
on:--
Riaz Ameer alias Abdul Haq v. Aamar Sultan Cheema 1991 CLC 870, Abdul Hafeez Pirzada v.
Agha Ghulam Ali Buledi 1991 CLC 2093, Nawab Ali Kha n v. Syed Inayat Ali Shah 1987 CLC
535.
14. The learned counsel further argued that the petitioner, nor his agents, or representatives
participated in the counting process at relevant time; therefore, they cannot agitate the matter
thereafter. Further, there is no direct evidence about the change of the Presiding Officer on the
instance of the respondent. Secondly, there is also no evidence to affirm that Presiding Officer
was extending favour to the respondent in the process, thereby issuing ballot pape rs to the
persons without showing their National Identity Cards, and the Polling Agent Naseer Ahmed
Khan was forcibly turned out of the polling premises. The learned counsel suggested that the
counterfoils may have been called, and produced in the evidence , but it has not been done by the
petitioner. He further stressed that no vote was challenged, or any application was submitted to
the effect in time. Even, there is no material to establish that any application was moved whereby
the change of Presiding Of ficer was challenged before 18th February, 2008. It was his argument
that affirmative evidence is missing, and in fact there is no evidence about pre -poll rigging. The
learned counsel further contended that there are clear contradictions in the evidence pr oduced by
the petitioner, and the contents of the petition, therefore, the evidence which is not in conformity
with the pleadings cannot be considered. Furthermore, the fact of difference of votes being an act
of the respondent and rigging was made with th e respondent in connivance with the staff was to
be established, but the petitioner has failed. In reply to the arguments the learned counsel for the
petitioner contended that it is an admitted position that there was a change in appointment of the
Presidi ng Officer of the questioned polling station. He further contended that the petitioner wants
to produce Dr. Hassan Jan, but he was not allowed by the Tribunal. It was his argument that Dr.
Hussain Ahmed was not produced by the respondent intentionally, whi ch shows his mala fide.
He concluded his arguments that if there is any violation of section 9 of the Act 1976, the
outcome of it will be that whole of the process be declared as null and void.
15. In present case the change of the Presiding Officer the basis of the allegations made in the
petition. It is the case of the petitioner that this change of the Presiding Officer was made on
instance of the respondent to get a favourable result. Further, being closely related, the Presiding
Officer committed act s of illegal practice, allowed to cast votes by the persons either having no
National Identity Cards or other fraudulent means. Furthermore, the Presiding Officer himself
put stamps on the ballot papers, and cast votes in favour of the respondent. In view of the
pleadings the basic point which needs consideration will be the mode of appointment of the
Presiding Officer, either being made in violation of section 9 of the Act 1976, or otherwise. The
next point for consideration will be that if there is violat ion of the relevant provision what would
be its effect. Section 9 of the Act, 1976 provides procedure for appointment of Polling Staff
including the Presiding Officers, Assistant Presiding Officers and Polling Officers for polling
stations. Section 9 of th e Act 1976 reads as under: ---
"9. Presiding Officers and Polling Officers --- (1) A Returning Officer shall appoint for each
polling station a Presiding Officer and such number of Assistant Presiding Officers and Polling
Officers from amongst the office rs of the Federal Government, Provincial Governments, local
governments and corporations established or controlled by such Governments to assist the
Presiding Officer as the Returning Officer may consider necessary:
Provided that a person who is, or has at any time been, in the employment of any candidate shall
not be appointed as a Presiding Officer, Assistant Presiding Officer or Polling Officer.
(2) A list of such Presiding Officers and polling officers shall be submitted to the District
Return ing Officer at least fifteen days before the polling day for its approval and no change in
the personnel shall be made except with the approval of the Commission.
(3) A Presiding Officer shall conduct the poll in accordance with the provisions of this Ac t
and the rules, shall be responsible for maintaining order at the polling station and shall report to
the Returning Officer any fact or incident which may, in his opinion, affect the fairness of the
poll.
Provided that, during the course of the poll, th e Presiding Officer may entrust such of his
functions as may be specified by him to any Assistant Presiding Officer and it shall be the duty
of such Assistant Presiding Officer to perform the functions so entrusted.
(4) The Returning Officer shall author ize one of the Assistant Presiding Officer to act in
place of the Presiding Officer if the Presiding Officer is, at any time during the poll, by reason of
illness or other cause, not present at the polling station, or is unable to perform his functions; an d
any absence of the Presiding Officer, and the reason, therefore, shall, as soon as possible after the
close of the poll, be reported to the Returning Officer.
(5) The Returning Officer may, at any time during the poll, for reasons to be
recorded in writing, suspend any Presiding Officer, Assistant Presiding Officer or polling
officer and make such arrangements as he may consider necessary for the performance of the
functions of the officer so suspended."
16. According to this S ection the polling staff's including the Presiding Officer, Assistant
Presiding Officers, and Polling Officers are to be appointed from the officers of either Federal
Government, or Provincial Government, or they may belong to Local Government or
Corporati on established or controlled by the Government. But, with one exception as provided in
proviso of subsection (1) that he may not be remained under employment of any of the
candidate. The time for issuance of list pertaining to the polling staff is provided as 15 days prior
to the polling day and it is to be submitted to the District Returning Officer for his approval.
There is further prohibition of making any change in the approved list, but if any change is
required it is to be made with approval of the C ommission. The subsections (3) and (4) of the
section describe the procedure, to meet with a sudden need of change, whereby authority of the
Presiding Officer or Assistant Presiding Officer can be delegated to other officer. While
subsection (5) of the Sec tion describes powers of the Returning Officer about suspending of
Presiding Officer, Assistant Presiding Officer or Polling Officer and making alternate
arrangements. A complete procedure is provided in the Section for appointment, and replacement
of the Polling Staff, which is to be adopted by the Returning Officer, and the officers
working under him.
17. In present case there are serious allegations about the procedure adopted for appointment
of Dr. Hussain Ahmed in place of Dr. Hassan Jan, wh ich is asserted to be made in complete
violation of the Section. The petitioner through Bashir Ahmed P.W.11 Tehsildar Panjgoor
produced the relevant documents to establish his contention. It is observed that the witness while
appearing at first instance pr oduced certain copies of the original documents, which were
retained, and mentioned in the statement as Mark P/A -1 to Mark P/14 -G by my learned
predecessor. But later on the witness was again called to produce the original documents,
whereby he produced Ex h.P/15 Notification dated 17th December, 2007, Exh.P/16 the original
letter dated 12th December, 2007, Ex:P/17 letter dated 13th February, 2008 Exh.P/18 list of
polling personnel of Polling Stations No.1 to 27 of PB -43 Panjgoor -II. The other documents,
which were marked up to Mark: P/14 -G are not found in the case file, therefore, statement of this
witness was recorded to the extent of mentioned documents being exhibited. Exh.P/15 is the
Notification dated 17th December, 2007, and pertains to tentative list of the Polling Stations for
PB-43 Panjgoor -II. While Exh.P/16 is the relevant document for the issue in hand, which bears
date 12th December, 2007 issued by the Returning Officer, wherein the appointments of the
Presiding Officer, Assistant Presiding Offi cers, and Polling Officers were made in respect of
Polling Station Middle School Gar (Combined). In Column No.1 the name of Dr. Hassan Jan is
typed, but seems to be cut down with pen and the name of Hussain Ahmed has been written with
hand, bearing no init ial of the Returning Officer. While Exh.P/17 is a letter bearing date 13th
February, 2008, issued by the Executive District Officer Live Stock, and Dairy Development
Department, Panjgoor with contents that "Reference to your Election Duty Order No.______
dated_____of Dr. Hassan Jan posted ____, the said Doctor faced serious illness and refer to
Karachi, so he cannot attend the Election duty We have another officer namely Dr. Hussain
Ahmed ADLO CVH Panjgur his name is already present in the reserve staff. Yo u can post him
instead of Dr. Hassan Jan". While Exh.P/18 is the list of the polling personnel of PB -43
Panjgoor -II, in respect of District Panjgoor The relevant entry in respect of Polling Station
Middle School Gar (Combined) is at serial No.25, wherein t he name of Dr. Hassan Jan ADLO
Live Stock Department Panjgoor has been mentioned in column of Presiding Officer. This
document also contained a list of reserved staff on its last page, which does not mention the
name of Dr. Hussain Ahmed.
18. From perusa l of these documents it appears that the list issued as per requirement of
section 9 of the Act, 1976 contained the name of Dr. Hassan Jan as Presiding Officer of the
questioned polling station, who was substituted by Dr. Hussain Ahmed, whose name was
proposed through Exh.P/17 on 13th February, 2008. But it is to be observed that the name of
Hussain Ahmed appeared to be written by hand in the letter Exh.P/16, which bears date 12th
December, 2007. There seems to be some manipulation in preparing of these pap ers. No further
document is placed on record by the concerned representative to clarify that due process was
adopted by the concerned authorities for substitution of the Presiding Officer of Polling Station
No.25 Middle School Gar (Combined). No further do cument had been placed on record from
which it can be ascertained that the approval of the Election Commission was sought as per
requirement of law. None of the parties made efforts for calling of the Returning Officer being
the concerned Authority, nor ca ll for the record from the Commission to clarify the factual
position. Therefore, in absence of the same it is hard to say that whether any other
correspondence was made, or order was issued for appointment of Dr. Hussain Ahmed by the
concerned office. But from the available material on record it can safely be concluded that Dr.
Hassan Jan was replaced, and Dr. Hussain Ahmed was appointed in his place, who performed the
duties of Presiding Officer at questioned Polling Station without fulfillment of legal f ormalities
by the concerned authorities. Therefore, legal effect of this violation is to be seen.
19. It is also case of the petitioner that this change in Presiding Officer was made on instance
of the respondent. Further, Dr. Hussain Ahmed was chosen as such being closely related to the
respondent, so that he could act on his (respondent's) behalf to get a favourable result for him. As
discussed hereinabove, it has been established that close blood relation existed between the
respondent, and Dr. Hussain Ahmed, the Presiding Officer, and his appointment was made in
violation of the law. But the petitioner had to step ahead and to establish that there was use of
influence on the part of the respondent to get him appointed as such with intention to obtain
favourable result. But perusal of whole set of the evidence unable to disclose the same Even the
petitioner during course of the cross -examination to his statement admitted that he had not seen
any writing of the respondent, or any request made by him to th e Returning Officer, District
Returning Officer or the Election Commission to get appointed Dr. Hussain Ahmed as Presiding
Officer.
20. Now reverting to the acts committed by the Presiding Officer, it was mainly alleged that
Dr. Hussain Ahmed, the Presid ing Officer, turned out the Polling Agent of the petitioner namely
Naseer Ahmed from the premises of the Polling Station, and without adopting legal procedure,
and also taking benefit of his absence thereby allowed casting of votes by forged persons.
Furth er, the Presiding Officer himself marked the ballot papers in favour of the respondent, and
placed them in the ballot box. To prove this contention PW -3 Naseer Ahmed, was the most
relevant person, being the Polling Agent of the petitioner at Polling Statio n No.25 Middle School
Gar (Combined). In his affidavit it was his statement that during course of the polling one Murad
Bakhsh son of Juman tried to cast vote in place of one Lal Jan son of Shawar already dead, on
which he made objection, while Hussain Ahm ed the Presiding Officer told him that this is a
challenged vote, therefore, decision would be given later on. It was further his statement that he
saw that ballot papers for Provincial Assembly were issued in excess, and a favourable attitude
was adopted with the voters of Asadullah, on which he raised serious objection, but no heed was
paid. Further, the officers allowed the agent of Asadullah namely -Abdul Ghafoor to cast vote on
behalf of certain voters, and his (witness) agitation was not considered. He further stated that he
objected on casting of votes three times by one Muhammad Munir son of Muhammad Musa with
fraudulent means, but his agitation was not considered by the officers. He further stated that
during course of polling his female polling agen t Gul Jan contacted him, and told him that
Hussain Ahmed was marking ballot papers by himself. Whereupon he along with one Jalal Khan
visited there to stop the Presiding Officer, but he (Presiding Officer) turned them out after
beating with the help of sec urity personnel. He further stated that from 12 -00 noon to 5 -00 p.m.
there was no polling at the polling station, while none of the voters were allowed to step in.
Further, later on he was called inside, and was asked to sign the result, but he refused, on ground
of rigging. During course of cross -examination he disclosed that apart from him one Sher Jan,
and Moula Bakhsh were also polling agents at said polling station.
21. This Moula Bakhsh appeared as P.W.2 and it was his statement that at 11 -30 a.m. w hen
he visited polling station for casting of his vote he saw that Dr. Hussain Ahmed himself casting
forged votes, meanwhile Naseer Ahmed and Sher Jan also went towards ladies' polling booth.
There was serious dispute, and at last the Presiding Officer tur ned them out through police
personnel. He further stated that he remained in polling station till 3 -00 p.m. while no one was
allowed to cast vote. While Sher Jan appeared as P.W.9, he described himself being polling
agent of Ehsanullah Reki, a candidate fo r National Assembly. It was his statement that polling
was continued with the orders of Dr. Hussain Ahmed, who allowed the rigging. Further, the
supporters of Asadullah were issued double ballot papers. He further stated that on instance of
Naseer Ahmed th ey both went to ladies polling booth, where they saw that Dr. Hussain Ahmed
himself was casting forged votes, and when they tried to stop him, the Presiding Officer turned
them out of the Polling Station. The lady Polling agent Gul Jan appeared as P.W.8. I t was her
statement that Dr. Hussain Ahmed himself cast several forged votes in favour of the opponent
candidate and till 11 -30 a.m. this all happened, while she informed the situation to the Polling
Agent Naseer Ahmed, whereupon serious agitation was made , and both the polling booths were
closed till polling time. While Naseer Ahmed along with other male agents were turned out of
the polling station She further stated that they never signed the result, as they had objection on
the polling process. P.W.7 Al lah Bakhsh also stated about the rigging made in the polling
process. It was his statement that on the respective day of polling he visited polling station
Middle School Gar at 11 -00 a.m. for casting of his vote. It was his statement that when he
reached t here he saw that there was hue and cry at ladies polling booth, the lady polling agent of
Attaullah Baloch was agitating, and informing the male polling agent of Attaullah that supporters
of Asadullah Baloch are rigging, and forcibly interfering in the pol ling process, and on her
agitation she was threatened to be turned out of the polling station. Therefore, on her complaint
the male polling agent appraised the position with the Presiding Officer, who turned him out of
the polling station. It was further h is statement that ladies of his family also told him that they
were refrained from casting their votes, while 10 to 12 ladies of Asadullah Baloch were casting
votes repeatedly. It was his statement that he (witness) made complaint of the same to the armed
personnel, who did not pay any heed, and due to these facts he become so dishearted that
he turned back without casting of vote along with his lady folks.
22. The Area Agent of the petitioner Abdul Ghafoor appeared as P.W.6. It was his statement
that on the respective day of the election he firstly visited Polling Station Nakar, whereafter; he
reached at questioned Polling Station Gar, where he saw the Polling Agent Naseer Ahmed was
roaming outside the Polling Station in worried cond ition. On query he (Naseer Ahmed) told him
that the Presiding Officer without any fault of him turned him out of the Polling Station, while
the other contesting candidate being provided all opportunities of rigging in the process,
whereupon he (witness) tr ied to enter the Polling Station, but he was not allowed by the police,
and armed personnel despite producing his authority letter. Rather the personnel told him that the
Presiding Officer had ordered them not to allow any person in. It was further his sta tement that
he tried his best, but the personnel of law -enforcing agencies did not allow to enter the premises
of the Polling Stations. Further, as the headquarter was at a distance, and there were no means of
communication, therefore, he was not able to c ontact with the contesting candidate (the
petitioner) to apprise him with the situation. As far as difference of votes cast for National
Assembly, and Provincial Assembly are concerned. PW -10 Hidayatullah Judicial Magistrate,
Kharan appeared as representat ive of the Returning Officer NA -271 Panjgoor Washak. He
produced Form -XIV, Statement of Count showing total cast votes 426 along with Exh.P/10 -A
and Exh.P/10 -B showing total cast votes at Polling Station Middle School Gar (Combined) as
426.
23. In reb uttal the respondent produced six witnesses, recorded his own statement. R.W.1
Nisar Ahmed is witness of declaration of result at the office of Returning Officer. It was his
statement that on 18th February, 2008 at 6:00 p.m. he was present in the office of the Returning
Officer. While he and Mullah Noor Muhammad being appointed as representative of the
petitioner, and the respondent remained present in the office, and noted down the results as
received in the office It was his statement that during all this process no one raised any objection
on the result and at the end on his success Asadullah was congratulated by Attaullah, the
petitioner, along with other persons. The statement of R.W.2 Muhammad Akram was to the
effect that he being Area Agent of Asadull ah Baloch visited questioned polling station at 3 -00
p.m., where polling was proceeding peacefully, and no objection was raised from either side on
the process. While R.W.3 Muhammad Hussain was Assistant Presiding Officer at Polling Station
Middle School G ar. He also stated that polling process completed without any hindrance, and no
dispute arose during the process. Further, he along with the record went to the office of the
Returning Officer, and handed over the same to the concerned office. RW -4 Liaquat Ali was also
Assistant Presiding Officer of the questioned polling station. His statement is similar to that of
P.W.3. While R.W.5 and R.W.6 Nasir Ali and Abdul Hameed, only stated that they never
performed their duties during election at Polling Station G ar, rather according to R.W.5 he was
appointed as Assistant Presiding Officer at Primary School Pir Koh Sorchal, and R.W.6 Abdul
Hameed described himself to be appointed as Polling Officer at Polling Station Government
Primary School Disporne. The remainin g witnesses of the respondent including Dr. Hussain
Ahmed despite efforts did not appear.
24. Before consideration of the issues, and recording findings thereon the objection raised at
the time of recording of the evidence of the respondent by the learne d counsel for the petitioner
is to be decided at first instance, which was kept pending at relevant time. It was objected by the
learned counsel for the petitioner that as the affidavits of the witnesses are filed at belated stage,
therefore, not admissibl e, and the witnesses may not be allowed to be produced, nor considered.
While in reply it was the contentions of the learned counsel for the respondent that directions
contained in Notification dated 16th March, 1985 do not pertain to the respondent, there fore, the
objection is without basis. A petition filed under provisions of the Representation of the People
Act, 1976 is to be governed by the law, and the procedure as provided therein. Therefore, a
petition is to be filed under section 52 of the Act, 197 6, but within the provided period. While
section 55 of the Act, 1976 speaks about the contents of the petition Rather section 62 of the Act,
1976 describes the procedure to be adopted by the Tribunal while proceeding with the petition.
While section 65 of the Act also provides procedure for recording of evidence, and examination
of witnesses But these sections do not specify the procedure of trial by the Tribunal, rather it is
clearly mentioned in subsection (1) of the section that the procedure as laid dow n by the Election
Commission is to be observed by the Tribunal. In compliance of this section the Election
Commission of Pakistan through Notification dated 16th March, 1985 laid down a procedure for
trial of the election petition. As per Clause (3) of the Notification the respondent is bound to file
affidavits of the witnesses as desired to be produced in defence along with the written statement.
The learned counsel for the respondent is at error while contending that the respondent, rather
clause (1) pert ains to the petitioner, and Clause (3) is for the respondent. Though there is
complete violation of this provision by the respondent. But as the whole process has been
completed, and it will not be appropriate, nor in interest of justice to decide the peti tion only on
basis of this objection, which otherwise a mere technicality Rather, the Tribunal is very much
empowered to allow production of any witness by either of the parties on their request at any
stage of the proceedings, which is done in the present case. The objection is exclusively technical
in nature, which is not appealing, therefore, overruled.
25. Now reverting to the merits of the case, as two portions of Issue No.2 have already been
discussed, therefore, the remaining portion along with Iss ue No.3 needs consideration. In
addition Issues Nos.4 and 5 are also to be discussed along with the preceding issues, as they are
interrelated, and no separate findings are required to be recorded, rather all the issues are decided
jointly.
26. In presen t case the petitioner alleged the acts committed either by the respondent, or on
his instance by the concerned polling staff specifically the Presiding Officer of the questioned
Polling Station. He claimed the acts to be covered by illegal practice, and c orrupt practices, both
these acts are defined in sections 78 and 83 of the Act 1976, which reads as under: ---
"78. Corrupt practice. --- A person is guilty of corrupt practice if he...
(1) contravenes the provisions of section 49;
(2) is guilty of bri bery, personation or undue influence;
(3) makes or publishes a false statement or submits false or incorrect declaration, in any
particular material...
(a) concerning the personal character of a candidate or any of his relation calculated to
adversely affect the election of such candidate or for the purpose of promoting or procuring the
election of another candidate, unless he proves that he had reasonable grounds for believing, and
did believe, the statement to be true;
(b) relating to the symbol of a candidate whether or not such symbol has been allocated to
such candidate;
(c) regarding the withdrawal of a candidate; or
(d) in respect of his educational qualification, assets and liabilities, or any liability with
regard to payment of loans or ad herence to party affiliation specified in subsection (2) or section
12.
(4) Calls upon or persuades any person to vote to refrain from voting, for any candidate on
the ground that he belongs to a particular religion, province, community, race, caste, bra dari, sect
or tribe;
(5) Knowingly, in order to support or oppose a candidate, lends, employs , hires, borrows or
uses any vehicle or vessel for the purpose of conveying to or from the polling station any elector
except himself and members of his immedia te family; or
(6) Causes or attempts to cause any person present and waiting to vote at the polling station
to depart without voting."
"83. Illegal practice. --- (1) A person is guilty of illegal practice if he
(a) fails to comply with the provisions of section 50;
(b) obtains or procures or attempts to obtain or procure, the assistance of any person in the
service of Pakistan to further or hinder the election of a candidate;
(c) votes or applies for a ballot paper for voting at an election knowing that he is not
qualified for, or is disqualified from, voting;
(d) votes or applies for a ballot paper for voting more than once in the same polling station;
(e) votes or applies for a ballot paper for voting in more than one polling station for the s ame
election;
(f) removes a ballot paper from a polling station during the poll; or
(g) knowingly induces or procures any person to do any of the aforesaid acts.
(2) Any person guilty of illegal practice shall be punishable with imprisonment for a te rm
which may extend to six months and fine which may extend to five thousand rupees."
Keeping in view both the provisions the acts as alleged by the petitioner are not covered by
section 78 of the Act, 1976. Rather the alleged acts are covered by subsect ion (1)(b) and (g) of
section 83 of the Act 1976. Before reverting to the merits of the case it is worth to explain that
keeping in view the language of the sections the material is to be assessed, as in criminal case.
Because in both these sections the ac ts are described as offences, and penalties are also provided
therein. Therefore, in the circumstances, the matter in hand is to be dealt with as of a criminal
case, and the evidence required is of a level to establish a charge of a criminal case. Therefor e, it
is the petitioner, who has to establish his case to the extent as made out in the petition. Further,
the allegation must be affirmatively proved by evidence either direct or circumstantial. And if the
evidence is wholly circumstantial the chain of ev ents must be intact without any break, that too
without any reasonable doubt.
27. Therefore, keeping in view the above referred provisions the material on record is to be
assessed. The witnesses appeared on behalf of the petitioner though generally raise d contention
that in their presence they saw Dr. Hussain Ahmed the Presiding Officer allowed casting of votes
by fraudulent persons or without checking their National Identity Cards. While the last act
assigned to the Presiding Officer was that he himself cast votes by placing stamps on the ballot
papers in favour of Asadullah. P.W.1, P.W.2, P.W.3, P.W.6, P.W.7, P.W.8 and P.W.9 are
witnesses of the event. P.W.3 and P.W.8 are the basic persons, whose evidence amounts to direct
evidence in the matter. P.W.3 N aseer Ahmed the Polling Agent of petitioner Attaullah, who was
allegedly turned out of the Poling Station by the Presiding Officer on making agitation on illegal
acts done by him (the Presiding Officer). In his statement he referred about Lady Polling Agen t
Gul Jan and Jalal Khan to be present with him. While Gul Jan P.W.8 though affirmed the
statement of P.W.3 while appearing before the Tribunal, but she is silent about presence of Jalal
Khan, Sher Jan or Moula Bashir, who showed their presence at time of incident. P.W.9 Sher Jan
in his statement stated that he along with Naseer Ahmed approached Lady's Polling Station,
where Dr. Hussain Ahmed was casting his vote. These witnesses stated that Male Polling Agents
were turned out from the premises of the polli ng station, and thereafter, till close of poll none
was allowed to enter the premises. Further, P.W.3 in his statement stated that he was beaten by
security personnel deployed at the Polling Station before turning him out, but his statement to
this extent is not confirmed by P.W.6 Abdul Ghafoor, who describes himself as Area Agent of
the petitioner, nor by any other witness. While P.W.7 Allah Bakhsh is a voter, who stated that
there was some disturbance at polling booth for the ladies. From the evidence of these witnesses
it is clear that disturbance was at the polling booth meant for women. While the act of casting
votes by the Presiding Officer was also at the same booth. According to P.W.8 Gul Jan Presiding
Officer Dr. Hussain Ahmed after putting stamps o n ballot papers put the same in ballot boxes,
and her agitation was ignored. But no other witness was produced who witnessed the act at
Female Polling Booth. None of the female polling agents were produced, nor any female voter
appeared to substantiate the charge. The petitioner while appearing before the Tribunal though
asserted that he timely objected on replacement of the Presiding Officer, while the Presiding
Officer with all illegal means tried to give favourable result in favour of the respondent, who cast
forged votes and turned out his Polling Agent Naseer Ahmed from polling station at 12 -00 noon.
But during course of cross -examination he admitted that polling process was calmly held except
turning out of his Polling Agent Naseer Ahmed.
28. In pres ent case there is no direct evidence to the effect that Dr. Hussain Ahmed the
Presiding Officer himself cast the votes and committed the acts favourable to the respondent, and
disallowed the petitioner, and his agents to participate in the legal process of the election. The
petitioner has relied mostly on the fact that the Presiding Officer Dr. Hussain Ahmed being real
uncle of respondent Asadullah, and his appointment was made as such due to the influence
exercised by the respondent, therefore, the Presidi ng Officer used all legal, and illegal means to
get the respondent successful, and for the purpose the Polling Agent of the petitioner was turned
out, and votes were cast without observing legal formalities. Further, the statement of count was
also not pre pared in presence of the Polling Agent of the petitioner. The burden to prove all these
allegations was on the petitioner. But most of the evidence produced by him is circumstantial in
nature. It has been established, as discussed hereinabove, that the Pre siding Officer Dr. Hussain
Ahmed is real uncle of the respondent Asadullah. Further, this fact has also come on record that
the process of his (Dr. Hussain Ahmed) appointment was made contrary to the relevant
provisions, and it is also an admitted position that there is difference of votes cast for Provincial
Assembly and National Assembly. But, mere establishment of these facts does not prove the case
of the petitioner, nor entitle him for the relief claimed for. Because section 9 of the Act, 1976
describe the persons, who are to be appointed as Presiding Officers, Assistant Presiding Officers,
Polling Officers and other staff deputed on the polling stations. But, proviso attached with
subsection (1) of the section only disqualify a person to be appointed a s such if he is, or has at
any time in the employment of any candidate. But existence of blood relationship is not noted as
disqualification. But it may be a circumstance for establishing the act of illegal or corrupt
practice, for which some more evidence is required.
29. The petitioner in his affidavit specifically stated that the Presiding Officer was substituted
on or before one day from the day of election, while Dr. Hussain Ahmed with pre -meditated
mind prejudice the election process, and cast forge d votes by himself, and by the remaining staff
deputed at polling station. But during course of cross -examination before the Tribunal he
asserted that he submitted an application before District Returning Officer raising therein
objections on the polling s taff so appointed. But the fact of submitting of such application was
not mentioned in the petition, nor copy whereof was filed along with the petition, nor produced
thereafter. The petitioner even did not try to procure it from the office of concerned Dis trict
Returning Officer to establish the same. It is to be observed that the petitioner later on changed
his stance and stated that as far as Polling Station No.25 Middle School Boys Gar is concerned,
he only raised oral objection on 18th February, 2008, w hile written application was filed on 20th
February, 2008. According to him he raised objections before the Returning Officer, and the
District Returning Officer. It was further his statement that the objection so raised only pertains
to Dr. Hussain Ahmed, the Presiding Officer of the Polling Station being maternal uncle of
respondent Asadullah, and no other objection was raised by him at said occasion. This statement
of the petitioner is contrary to his own contention as taken in the main petition. Though in his
petition the petitioner elaborate the instances of acts committed by the Presiding Officer during
the course. While his polling agent in his statement named several persons, who were either dead
or not present on whose behalf votes were cast. Instea d of only naming them, the petitioner must
have produced the relevant entries in the electoral roll or produced some evidence about death or
non-presence of the elector. But no such evidence was produced, rather mere assertions were
made.
30. From whole set of the evidence present on record it clearly appears that the petitioner was
in knowledge of the fact that there was substitution of the Presiding Officer, but he did not raise
any objection either before the Returning Officer or to the Election Commis sion. Nor even on the
date of election such objection was recorded. Furthermore, according to Naseer Ahmed (P.W.3)
he was turned out of the polling station at 12 -00 noon while thereafter Area Agent of the
petitioner Abdul Ghafoor (P.W.6) reached questioned polling station and acquainted with the
fact, despite the same he did not submit any application in same respect before the Returning
Officer or the Commission in time. He not even informed the fact to the petitioner for taking a
timely action. It was str ange because according to his own statement he was Area Agent of the
petitioner for Polling Station Nakar and Polling Station Gar, which was situated at quite a
distance, but he visited both the polling stations, and kept quiet. His conduct seems to be
unreasonable in the circumstances. It is further to be observed that the petitioner himself was
present on the same day in the office of the Returning Officer according to his own statement,
but he did not file any written objection to the effect before the R eturning Officer despite having
the opportunity. Rather, he only raised objection when the result was announced. There is no
explanation that if such illegalities were committed, what were the circumstances, which
restrained the petitioner from timely appr oaching the Commission or the Returning Officer?
Rather the result was declared on 18th February, 2008, and the petitioner admittedly filed
petition on 20th February, 2008.
31. As noted above Issues Nos.4 and 5 are also interrelated with Issues Nos.2 and 3, as if
these issues are established. Therefore, the possible result of both these issues will also be in
affirmative. It was also plea of the petitioner that result of the questioned polling station was
withheld with mala fides, while on initial result the petitioner was found successful, and declared
as such. But, there is no evidence to the effect that the result was withheld, and thereafter
changed. None of the witnesses speak about it. Rather, during course of the cross -examination it
was stance of t he petitioner that "after 6 O'clock I was declared as Returned Candidate, but after
10 O'clock at night after receiving result of Polling Station Gar, the result was changed." Further
stated that "when I declared as Returned Candidate the result pertaining to Polling Station No.25
Gar was not received" He further admitted the suggestion to be correct that "I presumed myself
to be Returned Candidate in absence of the result of Polling Station No.25 Gar". Though he
denied that "I had posed myself to be Return ed Candidate, therefore, after receiving of the result
from Polling Station Gar I felt insulted before General Public." While denying the suggestion it
was his contention that "I have treated it as my right." His own statement destroyed his own case.
It is not rational to deem to be successful in absence of result of one polling station, thus in the
circumstances this fact does not amount to change of the result.
32. It was also strongly asserted that the Polling Agents of the petitioner did not participa te in
the counting process and there was absence on his part at the time of preparation of Statement of
Count by the Presiding Officer. It is contended that the process being held in absence loose its
legal sanctity. But, it is specifically provided in sec tion 24 of the Act, 1976 that the absence of
the candidates or their authorized agents does not invalidate the acts done in the election process.
Section 24 of the Act, 1976 speaks as under: ---
"24. Absence of candidate etc.. not to invalidate acts etc. --- Where any act or thing is
authorized by this Act to be done in the presence of the candidate, an election agent or a polling
agent, the failure of such person to attend at the time and place appointed for the purpose shall
not invalidate any act or thi ng otherwise validly done."
To take advantage of this Section the party alleging the same has to prove that the act or thing
has been done contrary to law, but in present case the petitioner has failed to establish the same,
therefore, absence of the pet itioner or his authorized agent at the time of counting after polling
process by the Presiding Officer, and in proceedings held under section 42 of the Act, 1976, and
does not by itself invalidate the proceedings, because the contrary has not been establis hed. In
view of the above discussion there is no evidence that the result was withheld or there was any
change in it.
33. Though the main allegations were against the Presiding Officer Dr. Hussain Ahmed, but
the evidence produced by the petitioner speaks involvement of all the polling staff present at the
questioned polling station with further contention that all the acts were done, with collusion, and
with help of remaining polling staff on instance of the respondent. But the petitioner himself
specific ally stated that he has no complaint about the remaining staff deputed at the polling
station. In view of the same now confining to the extent of Presiding Officer, the material is to be
assessed. This fact has also come on record that the election of Prov incial Assembly and
National Assembly were held on the same date, and the questioned Polling Station No.25 i.e.
Middle School Boys Gar was meant for polling of votes for both the Assemblies. In view of the
fact it is an admitted position that at said occas ion the polling agents of all the contesting
candidates either of National Assembly or Provincial Assembly were present, and participated in
the proceedings held at questioned Polling Station. Therefore, in the circumstances, if the alleged
acts were done, and the male polling agents of all the candidates were turned out and polling
process was stopped, thereby no person was allowed to enter the premises for the purpose of
casting votes after 12 -00 noon till close of poll. Then, there was strong possibility that in the
given circumstances, the polling agents of the candidates contesting the election for National
Assembly must have agitated the matter disrupt the process, move applications about it before
the Returning Officer or the Commission. It was the be st evidence available to the petitioner, but
no such evidence was produced, nor referred. The only picture which appears from whole set of
the evidence that there was some dispute at ladies polling booth, and due to the same male
polling agents rather two of the polling agents, were turned out. But about turning of the second
polling agent of the concerned contesting candidate, no objection was recorded by the concerned
contesting candidate, which seems to be a bit strange. The petitioner assigned no explan ation for
all these sets of affair. The only explanation from his side is that there were no means of
communication between Gar, and the Headquarter, and the polling agent was illiterate. But, he
had not explained that why he himself kept silent, when the results were receiving at the office of
the Returning Officer in his presence. He admittedly did not record any objection at said
occasion. His silence adversely affected his own case.
34. From the whole set of evidence though it is established that ther e was change of
Presiding Officer of the Polling Station No.25 Gar without adopting due course coupled with the
fact that the Presiding Officer was closely related to the respondent. But only existence of these
facts does not require an action of nullifyin g the proceedings held at the questioned polling
station. Because the petitioner was not able to establish his case of illegal practice or corrupt
practice, as discussed above The evidence produced by him is not of such level to fulfil the
requirement of l aw. The petitioner has failed to establish using of undue influence by the
respondent for appointment of the Presiding Officer, thereby inducing him (Dr. Hussain Ahmed)
to act on his behalf for obtaining a favourable result. The sequence of events is not l ogical, and
the ab sence of timely approach to the concerned authorities ruins the case of the petitioner.
RELIEF.
In view of above discussion the petitioner has failed to make out a case in his favour to entitle
him for grant of relief as prayed for. Therefore, the petition is dismissed being without merits.
Parties are left to bear their own costs.
H.B.T./10/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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