2016 C L C 41
[Election Tribunal Balochistan]
Before Naeem Akhtar Afghan, J
Sardar HAIDER KHAN NASIR and another ----Petitioners
Versus
Sardar DUR MUHAMMAD NASIR----Respondent
Election Petitions Nos.1 and 2 of 2014, decided on 9th January, 2015.
(a) Representation of the People Act (LXXXV of 1976) ---
----Ss. 52, 38(12) & 44---Election petition ---Election for Provincial Assembly ---Corrupt or
illegal practices ---Proof ---Standard of ---Burden of proof would lie upon the person challenging
the election of returned candidate---Alleged illegal/corrupt practice had to be proved by clear,
cogent and convincing evidence without reasonable doubt ---No findings could be given on
presumption, surmises and conjectures ---Standard of proof required was li ke that of a charge in
criminal trial and in case of any doubt benefit of same had to be extended to the returned
candidate---Statements of interested witnesses could not be made a basis to give findings upon
the allegations/issues without corroboration of the same ---Mere registration of FIR on the day of
polling could not be considered as evidence unless finding of guilt was recorded with regard to
the allegations levelled in the FIR ---Affidavits/statements of election petitioners without any
supporting do cuments and without any corroboration from record could not be made a basis to
give findings upon the allegations/issues ---Election petitioners, in the present case, had failed to
prove the allegations of corrupt, illegal practice or other illegal acts allegedly committed by the
respondent through confidence inspiring oral or documentary evidence ---Election material was
not sealed in the separate packets/bags by the Presiding Officers and Returning Officers ---
Respondent could not be penalized for non- compli ance of relevant provisions of Representation
of the People Act, 1976 by the Presiding Officer and Returning Officers ---Nothing was on record
that no polling was conducted on the alleged polling stations or election was rigged by the
respondent on those polling stations ---No evidence had been produced by the election petitioners
that Form -XIV of said polling stations were forged, fabricated or maneuvered by or on behest of
respondent ---Authenticity of results declared by the Presiding Officers of such polli ng stations
on Form -XIV could not be doubted in absence of any evidence to the contrary ---Results of
alleged polling stations could not be excluded from count as serious doubts had arisen with
regard to the safe custody of election material and accessibili ty of the same by any person ---
Respondent could not be penalized for the use of poor quality/defective ink by the Election
Commission ---If all the invalid votes were excluded from the votes secured by the respondent
even then he had the lead of 234 votes over the election petitioners ---Election petitioners had
failed to discharge the burden of proving corrupt, illegal practice or the illegal acts alleged to
have been committed by the respondent ---Election petitions were dismissed in circumstances.
(b) Adm inistration of justice ---
----No one should be penalized for the act of public functionaries.
Iftikhar Hussain Gailani, Senior Advocate Supreme Court, Muhammad Amir Rana and
Atta-ur-Rehman for Petitioner (in Election Petition No.1 of 2014).
Muhamma d Aslam Chishti and Naseebullah Tareen for Petitioner (in Election Petition
No.2 of 2014).
Muhammad Riaz Ahmed for Respondent No.1 (in Election Petitions Nos.1 and 2 of
2014).
Muhammad Aslam Chishti and Naseebullah Tareen for Respondent No.5 (in Election
Petition No.1 of 2014).
Muhammad Amir Rana and Atta -ur-Rehman for Respondent No.4 (in Election Petition
No.2 of 2014).
Muhammad Haroon Kasi, Law Officer, Election Commission Balochistan, Quetta.
Dates of hearing arguments in Election Peti tion No.1 of 2014: 18th, 24, September, 15th,
20th October, 25th November and 9th December, 2014.
Dates of hearing arguments in Election Petition No.2 of 2014: 11th, 12th, 15th, 18th
September, 2014 and 9th December, 2014.
JUDGMENT
NAEEM AKHTAR AFG HAN, J. --- This judgment disposes of Election Petitions Nos.1
and 2 of 2014 as common question of facts and law are involved in both the petitions and the
returned candidate is same.
Initially, on 16th July, 2013 and 25th July, 2013 both the above petiti ons were entrusted by the
Election Commission of Pakistan (hereinafter "the Election Commission") for trial and disposal
to Election Tribunal Balochistan Quetta -I Presided by Mr. Muhammad Akbar Sani. The same
were numbered as Election Petitions Nos.82 and 141 of 2013. However, on 29th November,
2013 due to lack of confidence expressed by learned counsel for respondent No.1 on that
Tribunal, both the petitions were referred to Election Commission for transfer to any other
Election Tribunal. Both the petitions were entrusted to the Election Tribunal Presided by Hon'ble
Justice Muhammad Hashim Khan Kakar. The Hon'ble Judge ordered for not fixing the petitions
before him, whereafter, vide transfer order dated 24th April, 2014, both the petitions were
entrusted t o this Tribunal by the Election Commission. The same were renumbered as Election
Petitions Nos.1 and 2 of 2014.
2. The election petition No.1/2014 has been filed by the petitioner Haider Khan Nasar against
Dur Muhammad Nasar and others, praying as follow s:---
"It is, therefore, respectfully prayed that this Hon'ble Tribunal may call for the whole
record of the election of the constituency in question beside directing that the same be
kept in safe custody till final disposal of the matter and on examinin g the same couple
with recording the evidence, re counting and thumb impression examination on the
polling stations mentioned above be made and thereafter, declare the election of the
returned candidate i.e. respondent No.1 to be void by setting aside the notification dated
22-5-2013 (to the extent of PB -14 Loralai -I (Dukki) issued by Election Commission of
Pakistan and instead of him the petitioner be declared to be elected with any other relief
as deem fit and proper in the circumstances of the case, with cost of the petition, in the
interest of justice."
3. The election petition No.2/2014 has been filed by the petitioner Muhammad Shafique Tareen
against Dur Muhammad Nasar and others, praying as follows:
"It is prayed that learned Tribunal may be pleased to declare:
(a) That Election of returned candidate Sardar Dur Muhammad Nasar (respondent No.1)
was void and petitioner has been duly elected from PB -14 Loralai -I (Dukki
Constituency);
(b) Further directing to de -notify respondent No.1 as retur ned candidate and in his place
to notify petitioner as duly elected from PB -14 Loralai -I.
(c) Such other relief as may be warranted, may also kindly be granted."
4. Facts of the case are that sixty four (64) polling stations were established in the constituency
PB-14 Loralai -1 (Dukki) (hereinafter "the constituency"). The respondent No.1 was declared as
Returned Candidate from the constituency by securing 6544 votes, whereas the petitioner
Muhammad Shafique Tareen secured 4623 votes and the petitioner H aider Khan Nasar secured
4041 votes.
5. In election petition No.1/2014, out of 64 polling stations, the results of the following 44
polling stations have been challenged by the petitioner Haider Khan Nasar:
S.No P.S. No. Name of Polling Station
1 1 Animal Hospital Dukki (Male)
2. 2 Boys H/S Dukki (Female)
3. 6 Girls, H/S Dukki (Female)
4. 12 Government P/S Muhammad Azam
Nasar Dukki (Female)
5. 13 Government P/S School Rehmatullah
Nasar Dukki (Male)
6. 14 Government P/S Mir Azad (Female)
7. 16 Government P/S Killi Majeed (Male)
8. 17 Government P/S Safar Khan Nasar
(Female)
9. 18 Government P/S Killi Zabto Nasar
(Female)
10. 19 Government P/S Killi Naik Muhammad
(Male)
11. 24 Government P/S Nawab Khan
(Combined)
12. 25 Government P/S Jungle Balochan
(Combined)
13. 26 Government P/S Habib Killa (Combined)
14. 27 Government P/S Killi Nazar Khan
(Combined)
15. 28 Government P/S Jalal China (Combined)
16. 29 Government Girls M/S Nasarabad
(Female)
17. 30 Government M/S Nasarabad (Male)
18. 31 BHU Nasarabad Dukki (Male)
19. 32 Government Girls P/S Noor Muhammad
Nasar (Female)
20. 34 M/S Bani Kot (Combined)
21. 35 Government P/S Hazar Shar (Combined)
22. 36 Government H/S Ismail Shar (Male)
23. 37 Government Girls P/S Ismail Shar
(Female)
24. 38 Government P/S Din Muhammad Killa
(Combined)
25. 40 Government M/S Chutiali Shareef
(Combined)
26. 41 P/S Kochi Baz Muhammad (Combined)
27. 42 P/S Babogan (Combined)
28. 43 Government C/D Shahnawaz Banar
(Combined)
29. 44 Government M/S Wavi (Combined)
30. 45 Government P/S Sardar Jungle
(Combined)
31. 46 Government M/S Nemaki (Combined)
32. 47 Government P/S Viala Narechi
(Combined)
33. 48 Government H/S Manzi (Combined)
34. 49 Government P/S Daki (Combined)
35. 50 P/S Kach Sadozai (Combined)
36. 51 Government M/S Raz Muhammad
(Combined)
37. 53 Government P/S Landi Mir Khan
(Combined)
38. 54 Government P/S Jafar Viliani
(Combined)
39. 58 Government C/D Wala (Combined)
40. 59 Government P/S Noor Khan Shehar
(Combined)
41. 60 Government M/S Sanguri (Combined)
42. 61 Government P/S Gaz (Combined)
43. 63 Government Talao Daman (Combined)
44. 64 Government P/S Talao Bulanda
(Combined)
In Election Petition No.2/2014, the results of the following 16 polling stations have been
challenged by the petitioner Muhammad Shafique Tareen:
S.No P.S. No. Name of Polling Station
1. 13 Rehmatullah Nasar (Male)
2. 14 Killi Mir Hazar (Female)
3. 16 Killi Majeed (Male)
4. 18 Killi Zabto (F/Male) S.No.501 to 827
5. 30 Nasar Abad (Male)
6. 23 Killi Karim Khan Nasar (Female)
7. 25 Jungle (Combined)
8. 27 Killi Nazar Khan (Combined)
9. 28 Jalal Cheena (Combined)
10. 29 Middle School Nasarabad (Male)
11. 31 BHU Nasarabad (Male)
12. 32 Girls Primary School Killi Noor
Muhammad Nasar (Female)
13. 44 M/S Wahvi (Combined)
14. 45 Sardar Jungle (combined)
15. 12 Muhammad Azam Ghareeb Abad
16. 21 Animal Husbandry Habibullah Killi
Kareem Khan (Female)
Out of 16 polling stations, results whereof have been challenged in Election Petition No.2/2014,
14 polling stations are included in the 44 polling stations of Election Petition No.1/2014. Hence
in total, results of 46 polling stations have been challenged in both the Election Petitions.
6. In Election Petition No.1 of 2014 it has been alleged by the petitioner Haider Khan Nasar that
without permission of the Election Commission, the voter lists of certain polling stations were
changed/ shifted just before the election without notice to the candidates and voters of the
constituency; that majority of the staff was appointed by the District Returning Officer ("DRO")
and the Returning Officer ("RO") at the behest of respondent No.1 as both of them were
favouring him; that some of the polling staff was changed without any info rmation to the
Election Commission, the candidates as well as the voters; that some of the Assistant Presiding
Officers ("APOs") appointed in the constituency were illiterate and they were appointed to
accommodate the respondent No.1; that fearing atmosphe re was created in the constituency by
the law enforcing agencies and some of the candidates including the respondent No.1; that the
supporters of respondent No.1 namely Kareem (brother of Majeed) entered in the polling station
No.16 P/S Malik Majeed Nasar (male), misbehaved with the polling and security staff and two
copies of Provincial Assembly and a copy of National Assembly were stolen in respect whereof
FIR No.23/2013 dated 11th May, 2013 was lodged by the Presiding Officer ("PO") Abdul Haq;
that the s taff posted on these polling stations was in league with the respondent No.1, respondent
No.4 (Asmat Luni) and respondent No.5 (Muhammad Shafique Tareen petitioner in Election
Petition No.2/2014); that the areas of the polling stations were out of the reac h of the petitioner;
that though the petitioner appointed his polling agents on these polling stations, but they were not
allowed by force to remain/sit in these polling stations; that in absence of the polling agents of
the petitioner, with the connivance of the polling staff, the whole election process was taken over
by the persons working on behalf of the respondent Nos.1, 4 and 5; that bogus votes were cast by
impersonation which can be verified from the counterfoils of the used ballot papers and other
record with the help of NADRA authorities through scanning/comparison of the counterfoils
with the electoral roll having photographs, thumb impressions and CNICs of the voters.
The Election Petition No.1/2014 was supported by affidavit of the petitioner and accompanied by
copies of verified relevant documents including Form -XIV of the respective polling stations,
affidavits of polling agents of the petitioner, list of witnesses bearing names of 44 polling agents
of the petitioner and representative of Election Commission for producing the record of
notification of the polling stations and amendments made (if any), detail of polling staff
appointed on the polling stations, revised list of polling staff (if any), orders (if any) permitting
the DRO or RO to s ubstitute the polling staff, Form -XIV of all the polling stations, Form -XVI,
notification of election commission, detail of total votes of the area, detail of total vote cast,
detail of votes obtained by each candidate and detail of difference of votes.
7. The Election Petition No.1 of 2014 was contested by respondent No.1 Dur Muhammad Nasar,
the returned candidate, on merits as well as by raising preliminary legal objections by filing
rejoinder dated 28th July, 2013. The allegations levelled in the petit ion were strongly contested
and denied. It was objected that the petition has not been verified as contemplated under section
55(3) of the Representation of the People Act, 1976 (hereinafter "the Act"); that the relief
claimed by the petitioner has no conf ormity with section 55(2) clauses (a), (b) and (c) of the Act;
that the documents annexed with the petition have not been attested and verified as contemplated
under the provisions of the Act and that the petitioner has not submitted returns of the election
expenses as contemplated under section 50 of the Act.
On merit, it was stated that the petitioner participated in election without any objection; that the
election in the constituency was conducted fairly, freely and in a transparent manner. The
allegations of disallowing the polling agents of the petitioner to sit in the polling stations;
connivance of the polling staff with the petitioner, casting of bogus votes by impersonation,
tempering of record and getting result of his own choice by the responde nt No.1, were strongly
contested and denied. The allegation of rigging, corrupt and illegal practice in the Election was
strongly repudiated. The rejoinder of respondent No.1 was annexed with his affidavit, verified
photocopies of the statements of the Pre siding Officers ("POs") of different polling stations dated
14th May, 2013 allegedly submitted to RO during alleged inquiry and with list of 27 private
witnesses and their affidavits.
8. The respondent No.5 Muhammad Shafique Tareen (petitioner in Election Petition No.2/2014)
also filed rejoinder. It was agitated by respondent No.5 that the petitioner did not raise any
objection or made any complaint regarding alleged rigging or alleged irregularities against him
or against the election staff in respect of polling stations Nos.35, 36, 37, 38, 40, 41, 58; that the
petitioner has not submitted returns of the election expenses as contemplated under section 50 of
the Act. The allegation of joining his hands with respondent No.1 were strongly contested and
denie d and it was stated that the respondent No.5 has separately filed Election Petition
challenging the election of respondent No.1 and has brought on record the massive rigging by the
respondent No.1. The contents of the allegation of change/shifting of voter list of certain polling
stations by the DRO and RO without prior permission of Election Commission was admitted
with addition that despite complaints by respondent No.5, no action was taken by the authorities.
The allegation of appointment of polling staff at the behest of respondent No.1 by the DRO and
RO was admitted with addition that respondent No.1 was instrumental behind all the affairs.
Creation of fearing atmosphere was admitted with further explanation that three FIRs bearing
Nos.22, 23 and 24 of 2013 were registered on the day of polling in respect of different incidents
at polling station Malik Majeed Nasar with regard to assaulting Head constable Jamal Khan,
abuses, interference and snatching of the b allot paper books of the Provincial and National
Assembly and tempering with ballot paper books. However, the allegation of the connivance of
respondent No.5 with respondent No.1 was strongly denied on the ground that there exist a tribal
dispute between T areen and Nasar tribe. The allegation of violation of section 38 of the Act to
the extent of 44 polling stations was denied by respondent No.5 and it was alleged to the extent
of 16 Polling Stations Nos.12, 13, 14, 16, 18, 21, 23, 25, 27, 28, 29, 30, 31, 32, 44 and 45. It was
further alleged that the results of these 16 polling stations were not given as provided under
section 38 (ii) r/w section 24 of the Act. It was contended that only way to ascertain the rigging
and bogus voting is thumb verification by NADRA for which he has made request in his Election
Petition to the extent of 16 polling stations. It was prayed by respondent No.5 that petition
No.1/2014 be clubbed with his petition No.2/2014 to avoid conflict of decision. The rejoinder
filed by respondent No.5 was annexed with verified copies of relevant documents, list of
witnesses of his six polling agents and their affidavits.
9. In Election Petition No.2/2014, it has been alleged by the petitioner Muhammad Shafique
Tareen that protest and complai nts were made about rigging of election by respondent No.1, but
no action was taken by the authorities concerned; that out of 16 polling stations, results whereof
have been challenged by the petitioners, 13 were situated in Nasarabad area; that from the
polling stations of that area, by 11:00 a.m. of the polling day, the polling agents of the petitioner
were turned out and ballot papers were forcibly taken from the PO; that FIR No.22/2013 was
lodged by Head Constable Jamal Khan due to assault upon him, FIR No.23/2013 was lodged by
the PO of Primary School Killi Majeed Nasar for causing interference, abuses and snatching of
the ballot paper books kept for Provincial and National Assembly Elections and FIR No.24/2013
was lodged with regard to tempering of ball ot paper books and illegal stamping of ballot papers;
that at polling station No.23 Killi Karim Khan (Female) which was not in existence, the
registered votes were 388, but the vote cast was in excess as 420; that forged thumb marks were
appended to the counterfoils of the ballot papers.
According to the petitioner Muhammad Shafique Tareen, prior to filing of Election Petition, he
approached the Election Commission under section 103AA of the Act and vide order dated 29th
May 2013, reproduced herein below, he was advised by the Election Commission to approach
Election Tribunal for redressal of his grievance: ---
"Same order is in case of Moulvi Salah -ud-Din, candidate for NA 262 Killa Abdullah and
Moulana Abdul Qadir Loni candidate for PB -14 Dukki Loralai -I. The orders in the above
mentioned cases were that petitioners should go before Election Tribunal for redressal of
grievance:
In present case, petitioner could, if he so desired, seek recourse from Tribunal for redressal of his
grievance through Electi on petition. Petition is disposed off. The contention raised in petition
shall be addressed by Tribunal as far as possible expeditiously as well as sending the Ballot
Papers and counterfoils to NADRA for verifying thumb impression."
It was contended by t he petitioner Muhammad Shafique Tareen that after Forensic
Examination/scanning of ballot papers and counterfoils through NADRA, if the bogus votes
casted on the controversial polling stations are excluded, the petitioner will be the winning
candidate on t he basis of the votes secured in undisputed polling stations. It was contended that
illegal practice has been committed by and at the instance of respondent No.1.
The Election Petition No.2/2014 was supported by affidavit of petitioner, photocopies of the
attested documents as well as list of 16 private witnesses with their affidavits and a separate list
of 5 official witnesses i.e. Returning Officer, District Returning Officer, representative of
Election Commission of Pakistan Islamabad, SHO Police Station Dukki and representative of
Provincial Election Commissioner Balochistan to produce the applications and complaint of the
petitioner about bogus voting and rigging, consolidated statement of the constituency,
application of Haider Khan Nasar for withhol ding the result of constituency on account of
massive rigging, order of DRO dated 13th May, 2013 issued to RO to make preliminary inquiry
for ascertaining the allegations of the complaints, letter dated 8th May, 2013 issued to Deputy
Commissioner and Distr ict Police Officer Loralai to deploy security at sensitive polling stations,
copy of the petition filed by the petitioner under section 103 AA of the Act to the Election
Commission, the order passed thereon and copies of FIRs Nos.22, 23 and 24 of 2013.
10. Along with Election Petition No.2/2014, the petitioner Muhammad Shafique Tareen also
filed an application for Forensic Examination/scanning of the thumb marks appended to
counterfoils of ballot papers through NADRA regarding votes secured by the respond ent No.1 at
the disputed 16 polling stations.
11. Another application was also filed by the petitioner Muhammad Shafique Tareen praying
therein to issue directions to the Provincial Election Commissioner to preserve the election
record of the constituenc y till disposal of the petition on the ground that it is not known as to
when the request for recounting and Forensic Examination will be entertained by the Tribunal;
that there is genuine apprehension that due to delay in passing appropriate orders for the reasons
beyond control of the Tribunal, the record of election of the constituency may be destroyed.
12. Another application was filed by the petitioner for grant of interim relief to suspend the
notification dated 22nd May, 2013 of respondent No.1 as returned candidate and for restraining
him from attending the Provincial Assembly or holding any office by virtue of the said
notification.
13. The respondent No.1 Dur Muhammad Nasar contested the Election Petition No.2/2014 by
filing rejoinder. It was o bjected that the petition has not been verified as contemplated under
section 53 of the Act; that the petitioner has not given full particulars of the alleged corrupt,
illegal practice or the illegal acts; that CNIC numbers of six deponents have not been m entioned,
in absence whereof, their identification is not admissible; that documents annexed with the
memo. of petition have not been attested and verified as contemplated under the provisions of the
Act; that the petitioner has not submitted returns of th e election expenses as contemplated under
section 50 of the Act.
Upon merit, the allegations levelled in the election petition were strongly contested and denied. It
was contended that the election was conducted in just, fair, free and transparent manner; that the
complaint against rigging is mere allegation without any substance and evidence; that no
objection was raised at the time of consolidation of the results.
With regard to decision of the Election Commission on the application of the petit ioner under
section 103AA of the Act, it was contended that the verdict of the Election Commission is not
binding upon the Tribunal. Test of thumb marks appended to the counterfoils of the ballot papers
at the controversial polling stations by comparing th e same with thumb marks on the voter list
supplied to the POs through NADRA was contested and it was contended that the suggestion
made by the petitioner for scanning and comparison is against Article 226 of the Constitution as
the secrecy of ballot is sacrosanct.
The rejoinder filed by the respondent No.1 Dur Muhammad Nasar was supported by his
affidavit, photocopies of the relevant verified documents, list of 10 private witnesses along with
their affidavits and list of 18 official witnesses/POs.
14. A pplication for Forensic Examination/scanning of thumb marks was also contested by
respondent No.1 on the ground that it would be against the provisions of Article 226 of the
Constitution.
15. Rejoinder to the application for directions of the Tribunal to preserve and retain the election
record till decision of the petition was also filed by respondent No.1 and it was contended that
the Tribunal has got its power to exercise, but not on the ground mentioned in paras 1 and 2 of
the application.
16. The application for interim relief/staying the operation of the notification of the respondent
No.1 as returned candidate was also contested by filing rejoinder.
17. The respondent No.4 Haider Khan Nasar (petitioner in Election Petition No.1/2014) also
filed r ejoinder to Election Petition No.2/2014, wherein the respondent No.4 admitted the
allegation of rigging in polling stations Nos.12, 13, 14, 16, 18, 25, 27, 28, 29, 30, 31, 32, 44 and
45. The allegation of rigging in polling station Nos.21 and 23 was denied. It was alleged that the
polling staff was in league with respondent No.1 and respondent No.5 Asmatullah Khan Looni,
as bogus votes were casted by impersonation which can be verified from the counterfoils of used
ballot papers and other record with the he lp of NADRA. It was alleged that the elections were
rigged and respondents Nos.1 and 5 succeeded in getting result of their own choice in respect of
Polling Stations Nos.1, 2, 6, 17, 19, 24, 26, 34, 35, 36, 37, 38, 40, 41, 42, 43, 46, 47, 48, 49, 50,
51, 53, 54, 58, 59, 60, 61, 63 and 64.
The registration of three FIRs was admitted by respondent No.4. However, with regard to FIR
No.24/2013, it was contended that the same has been lodged with mala fide and ulterior motives
with the connivance of respondent No.1. It was alleged that apart from 100% vote cast at some
of the polling stations, postal ballots have also been casted by same persons, which shows that
corrupt and illegal practice has been committed by respondents Nos.1, 5 as well as the petitioner
(Muhammad Shafique Tareen) and the persons acting on their behalf. It was alleged by
respondent No.4 that 519 postal ballots were used in the constituency, but majority of the same
were not issued in accordance with Rules nor received back lawfully, but benefit of same was
given to respondent No.1; that several ballots/votes casted in his favour are missing and count is
not correct; that number of used counterfoils and the ballot papers are different; that ballot papers
were brought from outside for putting in the boxes and this fact can be verified by recounting of
ballot papers. It was prayed by respondent No.4 that whole election record of the constituency be
kept in safe custody till disposal of the matter and after recording evidence, recounting and
scanning/ examination of thumb impressions of the polling stations mentioned by the petitioner
and respondent No.4 through NADRA, the election of respondent No.1 as returned candidate be
declared void and after setting aside the notification dated 22nd May, 2013 issued by the
Election Commission in favour of respondent No.1, the respondent No.4 be declared as returned
candidate with any other relief deemed fit and proper in the circumstances of the case.
The rejoinder filed by respondent No.4 was supported by his affidavit and annexed with
photocopies of verified relevant documents, list of 44 private witnesses with their sworn
affidavits and list of official witness/Representative of Election Commission to produce
notification of the polling stations of the c onstituency, detail of polling staff appointed on the
polling stations of the constituency, Forms -XIV and XVI of all the polling stations of the
constituency and notification of Election Commission.
18. On the basis of pleadings of the parties, in Electi on Petition No.1/2014, the then Tribunal
framed the following issues: ---
(A) Whether the petitioner was deprived/effected due to sudden change of polling
stations and polling staff as well as voter list carried out returning officer and district
returnin g officer before the Election Day.
(B) Whether any fearing atmosphere was created by the respondent No.1 with the
connivance of law enforcing agencies to rig in Polling Station No.34 and No.63 in P.B 14
Loralai/Dukki.
(C) Whether massive rigging took place in 44 polling of PB. 14, therefore, requires
verification of thumb- impression of voters from NADRA authority.
(D) Whether the respondent No.1 managed to get cast dual votes from Government
employees of the constituency whom were posted on different part of the country, on the
polling day in shape of postal ballet (sic) as well as in person.
(E) Whether the petitioner failed to raise any objection to file any complaint regarding
rigging or against election staff during polling period till the conso lidation of result
against the respondent No.1, therefore, petitioner is estopped to objection being after
thought with mala fide intention.
(F) Whether the petitioner has failed to give full particulars of corrupt or illegal practices
or other, illegal acts alleged to have been committed along with data and commission at
such practice or act.
(G) Whether the petitioner is entitled for the relief claimed for "
19. On the basis of pleadings of the parties, in Election Petition No.2/2014, the then Tribunal
framed the -following issues:---
"(1) Whether massive rigging was made by the respondent No.1 with the connivance of
polling staff in 16 polling stations mentioned in para No.3 of the petition by removing the
polling agents of petitioner forcebly (sic ) from the polling stations.
(2) Whether the respondent No.1 had complete control, during the polling day, at 16
polling stations mentioned in para No.3 of petitioner (sic) therefore, three FIRs
Nos.22/2013, 23/2014 and 24/2013 were lodged against respondent No.1 and his
supports.
(3) Whether in Polling Stations No.32 Killi Noor Muhammad and in poling station 23
Killi Karim Khan (female) excess vote were cast instead of actual registered votes which
are 388 in number.
(4) Whether voter whom are Government employees have cast their votes twice i.e.
through postal ballet (sic) as well as in person.
(5) Whether the petition is not maintainable for non- compliance of section 55 subsection
(2) clause, (a), (b), (c) of the R.O.P.A.
(6) Whether Presiding Officers, Polling Officers and other polling staff were changed
replaced in the constituency just before the election day without permission of Chief
Commissioner of Pakistan just to accommodate the respondent No.1.
7. Relief. Whether the petitioner is entitled for the relief claimed for.
20. In Election Petition No.1/2014, the petitioner Haider Khan Nasar produced PW -1
Muhammad Tahir, his polling agent at polling station No.30, PW -2 Muhammad Siddique, his
polling agent at polling station No.44, PW -3 Muhammad Bilal, his polling agent at polling
station No.31, PW -4 Muhammad Afzal, his polling agent at polling station No.13, PW -5 Wazir
Khan Nasar, his polling agent at polling station No.16 and PW -6 Sahib Khan, his polling agent at
polling station No.27.
In Election Petition No.2/2014, the petitioner Muhammad Shafique Tareen, produced PW -1
Mehrullah, his polling agent at polling station No.27, PW -2 Obaidullah, his polling agent at
polling station No.31 and PW -3 Mohyuddin, his polling agent at polling station No.45.
21. In the meanwhile, the petitioner Haider Khan Nasar filed an application dated 23rd
September, 2013 praying therein that the counterfoils, electoral roll of 44 Polling Stations Nos.1,
2, 6, 12, 13, 14, 16, 17, 18, 19, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 40, 41, 42,
43, 44, 45, 46, 47, 48, 49, 50, 51, 53, 54, 58, 59, 60, 61, 63 and 64 along with postal ballots be
verified through biometric system of NADRA by scanning the thumb impressions available on
the counterfoils, electoral roll and record of NADRA.
The said application was contested by respondent No.1 on the ground that the same is premature
as the petitioner has failed to substantiate and establish the corrupt and illegal practice through
the p rivate witnesses so far produced; that the petitioner has no evidence to prove his case and is
avoiding to produce the evidence by filing the instant application.
A similar application filed by the petitioner Muhammad Shafique Tareen along with his Election
Petition No.2/2014 was also pending which was contested by respondent No.1 by filing
rejoinder.
22. The then Tribunal heard the arguments of the learned counsel for the parties on both the
above applications and fixed the same for orders. However, be fore passing orders on the above
applications, the respondent No.1 filed two separate applications for rehearing arguments. While
allowing the applications for rehearing the arguments, the parties were reheard on 25th October,
2013. Vide detailed order dat ed 11th November, 2013, the then Tribunal accepted both the
applications mentioned in para supra and directed RO of PB -14 Loralai -1 (Dukki) to produce the
counterfoils of the used ballot papers, photo voters list and statements of count of 46 polling
stations, in separate sealed bags under proper security before the Tribunal on 20th November,
2013.
23. On 20th November 2013, the election material was not produced before the then Tribunal.
However, on 25th November, 2013, Mr. Khadim Hussain Judicial Magist rate Dukki appeared
before the then Tribunal along with 52 bags and made statement before the then Tribunal that he
has made a mistake by bringing all the election material of 46 polling stations and has not
separated the required election material i.e. co unterfoils of used ballot papers from the whole
election material contained in 52 bags. With regard to statements, of count and photo voter list
Judicial Magistrate Dukki stated that those were lying in his office and he has got the same with
him. After he aring the Judicial Magistrate Dukki, the then Tribunal ordered to send the 52 bags
of the election material of 46 polling stations back to Dukki under supervision of Judicial
Magistrate Dukki in strict security and directed the Judicial Magistrate Dukki to open the sealed
bags of 46 polling stations at his station in strict security and then to separate the required
election material i.e. counterfoils of used ballot papers, photo voters list and statement of count
from the bag of each polling station and thereafter, to seal the same in separate bag by
mentioning name and number of polling station on it; thereafter to seal properly all the bags of
the remaining election material and to deposit the same with the Treasury Officer of the
constituency as deposite d earlier; that to bring newly sealed bags of used counterfoils, photo
voter list and statement of count of 46 polling stations with him for onward transmission to
NADRA by the nominee of the then Tribunal.
On the request of the learned counsel for the parties, the Deputy Registrar of the then Tribunal
was directed to be present with the Judicial Magistrate Dukki in the above process and to
supervise the process and submit his report. The Deputy Commissioner was directed to provide
fool proof security to the Judicial Magistrate Dukki for the said purpose on 29th November, 2013
so that the required election material be brought safely to Quetta.
24. On 29th November 2013, Mr. Khadim Hussain, Judicial Magistrate Dukki appeared before
the then Tribunal along with sealed bag containing the required election material of 46 polling
stations for onward transmission to NADRA Headquarter Islamabad. Along with the sealed bag,
the Judicial Magistrate Dukki also submitted a report dated 28th November, 2013 (wrongly
mentioned in the order sheet as 29th November, 2013) which was retained on file/made part of
the record. For the events that happened before the then Tribunal on the said date, the order sheet
of 29th November 2013, maintained in Election Petition No.1/2014 is reproduced herein below: -
--
"Case called. Mr. Naseebullah Tareen Advocate is present for petitioner. Mr. Riaz
Ahmed Advocate is present for respondent No.1 (Returned Candidate). Mr. Asmatullah
Achakzai and Zafandlah Advocate are present for respondent No.4. It is worthwhile to
mention here that Mr. Khadim Hussain Returning Officer/Judicial Magistrate PB -14
Loralai -1 (Dukki) has produced a sealed bag containing election material of 46 polling
stations of constituency PB -14 Loralai -1 (Dukki) in petition No.82/2013. The said
material has been brought by the direction of the Tribunal issued in common order dated
11-11-2013, passed in petition in hand and in petition No.82/2013, for onward
transmission to NADRA Head Quarter Islamabad. Mr. Khadim Hussain Returning
Officer/Judicial Magistrate is present, he has submitted report dated 29 -11-2013, the said
report is being retained on file. The learned Advocates for petitioner and respondent No.4
prayed that in view of common order dated 11 -11-2013, passed by this Tribunal in
petition in hand and in petition No.82/2013, the sealed bag/election material may be sent
to NADRA Head Quarter Islamabad, for verification of thumb impression without any
delay. The learned counsel Mr. Riaz Ahmed Advocate instantly raised obj ection and
submitted that this Tribunal has to dispose of the application filed in petition No.82/2013,
first and thereafter, the election material may be sent to NADRA, the learned counsel for
respondent No.1 kept on insisting to dispose of the said appli cation instantly. Mr. Riaz
Ahmed Advocate has been told to be patient and maintain the decorum of the Tribunal
and to behave with the decency with the Tribunal and Advocates present in Tribunal. But
Mr. Riaz Ahmed Advocate paid no heed to the advice of the Tribunal and tried to prevent
the Tribunal for sending the election material to NADRA on the pretext to dispose of
application filed in petition No.82/2013. When his request was turned down, Mr. Riaz
Ahmed Advocate became very annoyed and to pressurize the Tribunal by saying bluntly.
I have no hope of justice from this Tribunal, if his application filed in petition
No.82/2013 is not decided instantly.
It is worthwhile to mention here that after announcement of the common order dated 11-
11-2013 by this Tribunal in petition in hand and in petition No.82/2013, Mr. Riaz Ahmed
Advocate is trying to pressurize the Tribunal by adopting different tactics to linger on the
matter and to get the order of own choice, however, as the election material has been
broug ht before this Tribunal in connected petition No.82/2013, therefore, the Deputy
Registrar of this office who was present was directed to take the election material to
NADRA without any further delay. In this regard a detailed order has been issued in
petition No.82/2013. As Mr. Riaz Ahmed Advocate has shown no confidence on this
Tribunal and wants to get the order of his choice, therefore, it would not be proper to
preside the proceedings of this petition by me. To come up on 13- 12-2013 for further
proceedi ngs in order to send the matter to Hon'ble Chief Election Commissioner of
Pakistan for transfer to some other Tribunal."
25. In pursuance of the above order dated 29th November, 2013, the election material was sent to
NADRA by the then Tribunal and there after the matter was referred to the Chief Election
Commissioner for transfer of both the Election Petitions to any other Tribunal.
Both the Election Petitions were entrusted to this Tribunal by the Election Commission on 24th
April, 2014 and the same we re fixed for 5th May, 2014. On the said date learned counsel for the
petitioner in Election Petition No.1/2014 requested for an opportunity to file rejoinder to the
application dated 29th November, 2013 which was filed by learned counsel for respondent No.1.
On the said date, it transpired that in pursuance of order dated 29th November, 2013 passed by
the then Tribunal, the NADRA had sent the report with regard to examination of thumb
impressions, but the office had returned the said report to Assistant Dir ector NADRA
Balochistan as at that time the case was not earmarked to any Tribunal.
In view of the above, the Registrar Election Tribunal was directed to procure the said report from
Assistant Director NADRA Balochistan and to place the same before the T ribunal.
26. On 9th May, 2014, Assistant Director NADRA Balochistan placed the report of NADRA
before the Tribunal in a sealed packet bearing stamp of NADRA and a metal seal. The packet
was de- sealed and opened in Court in the presence of the parties and their counsel. It was
containing the analysis report of NADRA Islamabad. Copies of report were handed over to the
learned counsel for the parties who requested for an opportunity to go through the contents of the
same.
Learned counsel for the petitioner in Election Petition No.1/2014 also filed rejoinder to the
application of respondent No.1 dated 29th November, 2013.
27. On 31st May, 2014, in continuation of C.M.A. No.611/2014 dated 23rd May, 2014, amended
C.M.A. No.611/2014 was filed by the petitione r Muhammad Shafique Tareen in Election
Petition No.2/2014 stating therein in the light of report of NADRA and report of Judicial
Magistrate Dukki, subject to formal tender of the same by summoning him as Court witness, the
petition can be decided without f urther proceedings, except the statement of petitioner. The
following prayer was made in the said application:
"(a) To summon present Returning Officer as a Court witness to formally tender his
Report dated 28- 11-2013;
(b) To decide petition on basis of material in the form of Scanning Report of NADRA,
Report of present Returning Officer dated 28- 11-2013 and undisputed results of
remaining 18 polling stations (exclusive of 46 polling stations, results whereof were
disputed/challenged by both the petitioners); after recording statement of petitioner but
without any further proceedings;
(c) Honorable Tribunal may declare that without numbered counterfoils, votes/ballot
papers could not be counted in favour of candidate for whom the votes/ballot papers
purport to have been casted."
28. The amended C.M.A. No.611/2014 was contested by the respondent No.1 on the ground that
on 29th November, 2013 Judicial Magistrate Dukki appeared before the then Tribunal and
formally tendered his report which was not opposed by the petitioners; that the respondent No.1
filed an application on the said date to the effect that the required election material produced by
the Judicial Magistrate Dukki appears to have been tempered; that Forms -XIV, XVI and XVII
are available on record and the petitions cannot be decided by excluding the same and on the
basis of report of NADRA exclusively.
29. Similarly on 2nd June, 2014 C.M.A. No.671/2014 was filed by the petitioner Haider Khan
Nasar in Election Petition No.1/2014 stating the rein that in view of report of NADRA and report
of Judicial Magistrate Dukki dated 28th November, 2013, there is no need to produce any further
evidence; that the petitioner has established beyond any doubt that the election in the
constituency was not fai r, free or transparent; that through massive rigging and mal practice the
respondent No.1 has managed the said election; that the petitioner without producing any further
evidence wants to appear before the Tribunal for cross -examination as his affidavit is already
annexed with the petition. The said application was not opposed by respondent No.1.
30. The petitioner Haider Khan Nasar was cross -examined on 3rd June, 2014 in Election Petition
No.1/2014. The petitioner Muhammad Shafique Tareen was cross -exam ined in Election Petition
No.2/2014 on 18th June, 2014.
31. In both the Election Petitions, respondent No.1 separately filed C.M.As. Nos.677 and
678/2014 praying therein to call for the record of Form -XIV and Form -XVI being a public
document and to count the result in favour of the parties on the basis of the same as the report of
Judicial Magistrate Dukki and NADRA reveal that counterfoils of some of the polling stations
are missing.
C.M.A. No.677 of 2014 was contested by the petitioner Muhammad Shafique Tareen on the
ground that if the request of respondent No.1 is accepted, it will defeat the report of NADRA and
Judicial Magistrate Dukki and will make the entire exercise infructuous; that the suggestion to
use the statement of count or consolidated st atement in place of report of NADRA is untenable.
The respondent No.4 (Haider Khan Nasar) in Election Petition No.2/2014 also contested C.M.A.
No.677/2014 to the extent of recounting on the basis of Form -XIV and stated that he will have
no objection if rec ounting of the ballot papers is made viz -a-viz counterfoils.
C.M.A. No.678/2014 was contested by the petitioner Haider Khan Nasar by filing rejoinder on
the ground that the counting on the basis of Form -XVI and XVII has no relevancy and that he
will have no objection if recounting of the ballot papers is made viz -a-viz counterfoils. The
respondent No.5 Muhammad Shafique Tareen in (Election Petition No.1/2014) also filed
rejoinder to C.M.A. No.678/2014 by stating that his rejoinder to C.M.A. No.677/2014 in
Election Petition No.2/2014 be treated mutatis mutandis as rejoinder to C.M.A. No.678/2014.
32. In both the Election Petitions respondent No.1 produced Kamal Khan PO of polling station
No.27 as RW -1, Allah Noor PO of polling station No.31 as RW -2, Noor Muhammad PO of
polling station. No.13 as RW -3 and Muhammad Usman PO of polling station No.30 as RW -4.
The respondent No.1 filed separate applications in both the petitions on 17th June, 2014 to the
effect that he does not want to produce further evidence , whereafter the respondent No.1 was
cross -examined in both the Election Petitions as his affidavits were already filed in both the
petitions.
33. In Election Petition No.1/2014 learned counsel for the petitioner Mr. Iftikhar Hussain
Gaillani assisted th e Tribunal about the relevancy and admissibility of the analysis report of
NADRA and about the basic principles for deciding the Election Petitions. Learned counsel for
the petitioner Mr. Muhammad Amir Rana, Advocate while referring to the statements of th e
witnesses and the petitioner, report of Judicial Magistrate Dukki and report of NADRA stated
that the allegations of corrupt and illegal practice committed by respondent No.1 as mentioned in
the election petition have been proved on record by the petitioner; that the results of 11 polling
stations, used counterfoils whereof are totally missing, have to be excluded from the count; that
5216 votes which have not been processed through Automated Finger Print Identification System
(AFIS) by NADRA are also to be excluded from the count; that the report of NADRA has
materially affected the results of the election on the basis whereof the notification of respondent
No.1 as returned candidate be declared void and of no legal effect and re -election be ordered.
34. In Election Petition No.2/2014, learned counsel for petitioner Mr. Muhammad Aslam Chishti
assisted by Mr. Naseebullah Tareen, Advocate stated that illegal and corrupt practice committed
by respondent No.1 and the allegations levelled in the petition have been proved on record
through the statements of the petitioner, his witnesses and respondent No.1 as well as report of
Judicial Magistrate Dukki and report of NADRA. According to learned counsel, the copies of the
statements tendered by the 04 POs in thei r statements recorded before the Tribunal while
appearing as witnesses of the respondent No.1 cannot be considered as affidavits under the
provisions of the Act and as such the same are not admissible; that the affidavit of respondent
No.1 is in English and during cross -examination the respondent No.1 failed to comprehend the
contents of his affidavit which was prepared by his Advocate and in such circumstances the
affidavit of respondent No.1 is of no avail and same cannot be considered as statement of
respondent No.1; that Form -XIV of the polling stations, results whereof have been challenged by
the petitioner, are in dispute and as such same cannot be considered for counting the results; that
if the results of 11 polling stations, used counterfoils whereof are totally missing, is excluded
from the count and the report of NADRA is analyzed, the petitioner Muhammad Shafique
Tareen becomes the returned candidate. Learned counsel stated that after de -notifying respondent
No.1, petitioner Muhammad Shafique Tare en be declared as returned candidate and directions be
made to the Election Commission for issuing notification accordingly.
35. In both the Election Petitions, learned counsel for respondent No.1 Mr. Muhammad Riaz
Ahmed, Advocate stated that burden to prove the allegations levelled in the Election Petitions
was heavily on the petitioners, but the petitioners have failed to disc harge the burden of proving
the allegations of corrupt and illegal practice; that none of the petitioner has produced any
official witness to disprove the Form- XIV of the 46 polling stations; that the results of 11 polling
stations, counterfoils whereof ha ve been reported to be missing by Judicial Magistrate Dukki,
cannot be excluded from the count as the petitioners have not proved on record that no polling
was held on those 11 polling stations or that the results declared on Form -XIV of the respective
polling stations are forged/fabricated; that there exists serious doubt about the safe custody of the
packets containing the election material; that benefit of doubt in respect of the election material
produced before the Tribunal goes to the respondent No.1 being the returned candidate; that if all
the invalid votes declared in the report of NADRA are excluded from the secured votes of
respondent No.1, even than the votes of respondent No.1 are higher than the petitioners; that the
report of NADRA and of Judi cial Magistrate Dukki have not materially affected the election;
that there is no occasion to de -notify the respondent No.1 and to declare petitioner Muhammad
Shafique Tareen as returned candidate or to order for reelection.
36. Heard the learned counsel for the parties and perused the available record. According to
settled principles of law, in the Election Petitions, the burden of proof lies upon the person
challenging the election of returned candidate. The alleged illegal/corrupt practice has to be
proved by clear, cogent and convincing evidence without reasonable doubt and no findings can
be given on presumptions, surmises and conjecturers. The standard of proof required is like that
of a charge in criminal trial and in case of any doubt, benefit of s ame has to be extended to the
returned candidate.
37. In both the Election Petitions, the petitioners have not exhausted their list of private
witnesses and have not produced a single official witness despite citing official witnesses to
produce important and relevant record. The petitioners have not produced any official record to
prove the allegations that voters lists of certain polling stations were changed/shifted just before
the election; that majority of the staff was appointed by the DRO and the R O at the behest of
respondent No.1; that the polling staff was changed without information of the Election
Commission; that some of the APOs appointed in the constituency were illiterate and were
appointed to accommodate the respondent No.1. No evidence ha s been led by the petitioners to
prove the allegations about the postal ballots. Since the petitioners have not led any evidence to
the above effect, therefore, no findings can be given by the Tribunal upon the issues framed in
this regard.
In Election P etition No.1/2014, the petitioner Haider Khan Nasar has challenged the results of 44
polling stations, but has produced POs of only 6 Polling Stations Nos.13, 16, 27, 30, 31 and 44 as
his witnesses. Similarly, in Election Petition No.2/2014 Muhammad Shafique Tareen has
challenged the results of 16 polling stations, but has only produced polling agents of 3 polling
stations Nos.27, 31 and 45 as his witnesses.
38. It appears that being fascinated by the report of Judicial Magistrate Dukki dated 28th
Novembe r, 2013 and report of NADRA, the petitioners have halfheartedly led evidence of some
of their polling agents and have not exhausted their list of private and official witnesses.
39. The affidavits of all the witnesses of the petitioners are stereotype co ntaining the allegations
that the polling staff was in connivance with respondent No.1 who managed to cast bogus votes;
that the polling agents of the petitioners were turned out of the polling stations and were not
allowed to participate in the process. T he witnesses admitted that no written compliant was made
by them to the concerned PO or RO about the alleged corrupt and illegal practice. All the
witnesses of the petitioners admitted that polling agents of other contesting candidates were also
present in the polling stations, but surprisingly, none of them has appeared as witness to support
the allegation or lend corroboration to the version of interested witnesses/polling agents of the
petitioners. During cross -examination, the witnesses expressed their lack of knowledge about
certain relevant material facts. The statements of interested witnesses i.e. the polling agents of
the petitioners cannot be made a basis to give findings upon the allegations/issues without
corroboration of the same. Mere registrat ion of three FIRs on the day of polling can also not be
considered as evidence, unless finding of guilt is recorded with regard to the allegations levelled
in the FIRs.
The affidavits/statements of the petitioners without any supporting documents and without any
corroboration from the record can also not be made a basis to give findings upon the
allegations/issues.
40. In both the Election Petitions the petitioners have failed to prove the allegations of corrupt,
illegal practice or other illegal acts a llegedly committed by respondent No.1 through confidence
inspiring oral or documentary evidence.
41. In both the Election Petitions, the respondent No.1 has only produced POs of Polling Stations
Nos.13, 27, 30 and 31 as official witnesses. During cross -examination, the said POs have denied
all the allegations levelled by the petitioners. Though RW -2 Allah Noor, PO of Polling Station
No.31 and RW -3 Noor Muhammad, PO of Polling Station No.13 admitted that prior to their
appointment as PO, Hameedullah Agriculture Officer and Kafeel Ahmed Agriculture Officer
were appointed as Presiding Officers for Polling Stations Nos.31 and 13 respectively, but there is
nothing on record to prove that such transfer posting was made at the behest of the respondent
No.1 or due to his connivance. The photocopies of the statements tendered by these 4 POs
allegedly submitted to the RO being inadmissible are kept out of consideration.
42. In view of sketchy, scanty and weak oral evidence produced by the petitioners, I have no
option, but to decide both the Election Petitions in pursuance of C.M.A. No.671/2014 (filed by
petitioner Haider Khan Nasar), amended C.M.A. No.611/2014 (filed by petitioner Muhammad
Shafique Tareen), C.M.As. Nos.677 and 678 of 2014 (filed by respondent No.1) on the basis of
unchallenged reports of Judicial Magistrate Dukki, NADRA and Form -XIV of the respective
polling stations in respect whereof both the petitioners have not led any evidence to prove that
the same are forged, fabricated or maneuvered.
43. T he report of Judicial Magistrate, Dukki dated 28th November, 2013 submitted to the then
Tribunal on 29th November, 2013 along with details of the polling stations with remarks is
reproduced herein below:
From : The Judicial Magistrate Dukki
To : The Court of Hon'ble Election Tribunal Quetta -1.
No.495/J.M.D. Dated Dukki the 28th November, 2013.
Subject: - DETAILED REPORT REGARDING SEALED BAGS OF 46 POLLING
STATIONS OF PB -I4 LORALAI -1 DUKKI.
With reference to subject cited above it is to say that the undersigned was directed by
your lordship to produce the counterfoils of used ballot papers, photo voters list and
statements of count of 46 polling stations of PB -14 Loralai -1 Dukki. In pursuance of your
order, the sealed bags of 46 polling stations have opened and required material taken out
from the bags. During all this process the Deputy Registrar of Election Tribunal Quetta -1
was present as representative of Election Tribunal Quetta- 1. The Tehsildar Dukki was
also in attendance as representati ve of Assistant Returning Officer of this consistency
(sic). Mr. Sajjad Ahmed junior Personal Assistant Regional Election Commissioner
office Zhob Division at Loralai was also present on behalf of District Election
Commissioner Loralai. After opening of the sealed bags of 46 polling stations it has been
observed that some required material is not present in sealed bags of some polling
stations. The polling station wise detailed report whereof is separately given.
REPORT OF THE RECOVERED AND MISSING MATERI AL FROM THE SEALED
BAGS OF 46 POLLING STATIONS OF PB- 14 LORALAI -I DUKKI
S.No. Polling
Station
No. Name of Polling
Station Remarks
1. 1 Animal Hospital
Dukki (Male) Photo voters list not
found in sealed bag.
2. 2 Boys High School
Dukki (Female) Photo voters list not
found in sealed bag.
3. 6 Girls High School
Dukki (Female) Photo voters list not
found in sealed bag.
4. 12 Government Primary
School Muhammad
Azam Nasar Dukki
(Female) Photo voters list not
found in sealed bag
5. 13 Government Primary
School Rehmatullah
Nasar Dukki (Male) Some used
counterfoil papers
were missing from
sealed bag.
6. 14 Government Primary
School Mir
Azad(Female) Neither photo voters
list, nor any used
counterfoil found in
sealed bag
7. 16 Government Primary
School Killi Majeed
(Male) Photo voters list not
found in sealed bag
8. 17 Government Primary
School Safar Khan
Nasar (Female) No any used
counterfoil found in
sealed bag.
9. 18 Government Primary
School Killi Zabto
Nasar (Female) Photo voters list not
found in sealed bag.
10. 19 Government Primary
School Killi Naik
Muhammad (Male) Photo voters list not
found in sealed bag.
11. 24 Government Primary
School Nawab Khan
(Combined) Some counterfoils
of used ballot
papers were missing
from sealed bag.
12. 25 Gover nment Primary
School Jungle Photo voters list not
found in sealed bag.
Balochan (Combined)
13. 26 Government Primary
School Habib Killa
(Combined) Photo voters list not
found in sealed bag.
14. 27 Government Primary
School Killi Nazar
Khan (Combined) Neither photo voters
list, nor any used
counterfoil found in
sealed bag.
15. 28 Government Primary
School Jalal Cheena
(Combined) Neither photo voters
list, nor any used
counterfoil found in
sealed bag.
16. 29 Government Girls
Middle School
Nasarabad (Female) Neither photo voters
list, nor any used
counterfoil found in
sealed bag.
17. 30 Government Middle
School Nasarabad
(Male) Neither photo voters
list, nor any used
counterfoil found in
sealed bag.
18. 31 BHU Nasarabad Dukki
(Male) Photo voters list not
found in sealed bag.
19. 32 Government Girls
Primary School Noor
Muhammad Nasar
(Female). Neither photo voters
list, nor any used
counterfoil found in
sealed bag.
20. 34 Government Middle
School Bani Kot
(Combined) Neither photo voters
list, nor any used
counterfoil found in
sealed bag.
21. 35 Government Primary
School Hazar Shar
(Combined) Some used
counterfoil papers
and photo voters list
were missing from
sealed bag.
22. 36. Government High
School Ismail Shar
(Male) Photo voters list not
found in sealed bag.
23. 37 Government Girls
Primary School Ismail
Shar (Female) Material found in
sealed bag.
24. 38 Government Primary
School Din
Muhammad Killa
(Combined) Material found in
sealed bag.
25. 40 Government Middle Material found in
School Chutiali
Shareef (Combined) sealed bag.
26. 41 P/S Kochi Baz
Muhammad
(Combined) Photo voters list not
found in sealed bag.
27. 42 P/S Babogan
(Combined) Photo voters list not
found in sealed bag.
28. 43 Government C.D.
Shahnawaz Banar
(Combined) Photo voters list not
found in sealed bag.
29. 44 Government Middle
School Wahvi
(Combined) Neither photo voters
list, nor any used
counterfoil found in
sealed bag.
30. 45 Government Primary
School Sardar Jungle
(Combined) Material found in
sealed bag.
31. 46 Government Middle
School Nemaki
(Combined) Material found in
sealed bag.
32. 47 Government Primary
School Viala Narechi
(Combined) Photo voters list not
found in sealed bag.
33. 48 Government High
School Manzai
(Combined) Material found in
sealed bag.
34. 49 Government Primary
School Daki
(Combined) Photo voters list not
found in sealed bag.
35. 50 P/S Koch Sadozai
(Combined) Photo voters list not
found in sealed bag.
36. 51 Government Middle
School Raz
Muhammad
(Combined) Counterfoil not
found in sealed bag.
37. 53 Government Primary
School Landi Mir
Khan (Combined) Material found in
sealed bag.
38. 54 Government Primary
School Jafar Viliani
(Combined) Photo voters list not
found in sealed bag.
39. 58 Government C.D.
Wala (Combined) Photo voters list not
found in sealed bag.
40. 59 Government Primary
School Noor Khan
Shehar (Combined) Some used
counterfoil papers
and photo voters list
were missing from
sealed bag.
41. 60 Government Middle
School Sanguri
(Combined) Material found in
sealed bag.
42. 61 Government Primary
School Gaz
(Combined) Neither photo voters
list, nor any used
counterfoil found in
sealed bag.
43. 63 Government Talao
Daman (Combined) Photo voters list not
found in sealed bag.
44. 64 Government Primary
School Talao Bulenda
(Combined) Material found in
sealed bag.
45. 23. P.S. Killi Kareen Khan
Nasar (Female) Photo voters list not
found in sealed bag.
46. 21 Animal Husbandary
Habibullah Killi
Kareem Khan
(Female) Material found in
sealed bag.
44. While dilating upon the report of Judicial Magistrate Dukki, it is to be appreciated that on
11th November 2013 when the order was issued to the RO Dukki to produce the counterfoils of
the used ballot papers, photo voter list and statement of count of 46 polling stations, Mr. Kha dim
Hussain Judicial Magistrate Dukki was not the RO of the constituency. His predecessor Mr.
Najeebullah Khan was the RO of the constituency during the election and after his transfer Mr.
Khadim Hussain was appointed as Judicial Magistrate Dukki, but he w as never notified as RO by
the Election Commission. The directions issued to the RO of the constituency by the then
Tribunal to produce the relevant record was factually complied with by Mr. Khadim Hussain
Judicial Magistrate Dukki who was not the RO of the constituency. Record further transpires that
on 25th November, 2013, Mr. Khadim Hussain, Judicial Magistrate Dukki brought all the
election material of 46 polling stations instead of the required material whereafter, the same bags
were send back under se curity and the then Tribunal ordered Judicial Magistrate Dukki to
separate the counterfoils of used ballot papers, photo voter list and statement of count from bag
of each polling station and thereafter to seal the same in separate bag by mentioning name a nd
number of polling station on it and to bring the same to Quetta for onward transmission to
NADRA. It reveals that on 29th November, 2013, the Judicial Magistrate Dukki produced the
sealed bag containing the requisite material of 46 polling stations for onward transmission to
NADRA.
The report of Judicial Magistrate Dukki was retained on file and the same is part of the record of
the Tribunal. None of the parties have filed any objections on the report of Judicial Magistrate
Dukki. In the circumstances, there is no need for appearance of Judicial Magistrate Dukki as a
Court witness to tender the said report.
45. The procurement of the required election material by Judicial Magistrate Dukki in pursuance
of order dated 11th November, 2013 of the then Tribunal and his report has given rise to serious
doubts about the sealing of the packets of the used counterfoils and the other relevant election
material by the POs and sending of the same to the Election Commission by the RO as well as
about the safe cu stody of the same.
Section 38 (12)(f) of the Act mandates that the PO shall seal in separate packet the counterfoils
of used ballot papers. According to section 38(15) of the Act on the close of proceedings, the PO
shall cause the said packet along with the packets of the other relevant election material with the
statement of count and the ballot paper account prepared by him to be sent to RO.
Section 44 of the Act mandates that the RO shall forward to the Election Commission the
packets containing the ballot papers, the packets of the counterfoils of the issued ballot papers,
the packets containing the marked copies of the electoral rolls and the packets containing the
ballot paper account as well as the tendered ballot papers, the challenged ballot pap ers, tendered
votes list and the challenged votes lists.
According to section 44(3) of the Act, the Election Commission shall retain the documents
contained in the packets for a period of one year from the date of their receipt and thereafter
shall, unle ss otherwise directed by the Tribunal, cause them to be destroyed.
46. The order sheet of 25th November, 2013 of the then Tribunal transpires that the required
election material procured by Judicial Magistrate Dukki and produced before the then Tribunal
was lying in custody of Treasury Officer of the constituency instead of the Election Commission
in violation of section 44 of the Act. Instead of issuing directions to the RO on 11th November,
2013, which was not in existence on the said date, the then Tri bunal should have issued
directions to the Election Commission to produce the relevant record.
47. The circumstances have created serious doubt about the safe custody of the packets
containing the election material and it cannot be held that after close of the polling till
procurement of the required election material by Judicial Magistrate Dukki, the packets
containing the election material were not accessible to any one.
48. It further transpires that the election material was not sealed in separate p ackets/bags by the
POs and RO as provided under section 38(12) and section 44(a), (b), (c), (d) (e) and (f) of the
Act. Had the packets containing the counterfoils of used ballot papers sealed separately by the
POs under section 38(12)(f) and forwarded to the Election Commission by the RO section 44(b)
of the Act, the same would have been produced before the then Tribunal by Judicial Magistrate
Dukki being sealed and there would have been no occasion for the Judicial Magistrate Dukki to
separate the same fr om the other election material and then to seal the same in separate bag (s).
Be that as it may, the respondent No.1 cannot be penalized for non -compliance of the relevant
provisions of the Act by the POs and RO in sealing and sending the election materi al to the
Election Commission after close of the polling, particularly when none of the POs or the RO has
been summoned by the petitioners as witness.
49. The report of Judicial Magistrate Dukki reveals that the sealed bags of 11 Polling Stations
bearing Nos.14, 17, 27, 28, 29, 30, 32, 34, 44, 51 and 61 were not containing any used
counterfoil and in some of the sealed bags of remaining polling stations photo voters list were
not found and in some of the bags, some used counterfoils were missing. Since the complete
relevant record of the 46 polling stations was not available, therefore, sending the incomplete
election material to NADRA by the then Tribunal was meaningless. In such circumstances,
before sending the incomplete election material to NADRA, the then Tribunal should have
dilated upon the application dated 29th November, 2013 filed by respondent No.1 alleging
therein that the required election material produced before the Tribunal appears to have been
tempered.
50. No evidence has been brought on record by the petitioners to prove that on the day of
election no polling was conducted on these 11 polling stations or that the election was totally
rigged by respondent No.1 on these 11 polling stations. The petitioners have not produced the
RO, the PO s or APOs of these 11 polling stations or any witness to prove that Form -XIV of
these 11 polling stations are forged, fabricated or maneuvered by or at the behest of respondent
No.1 . In absence of any evidence to the contrary, the genuinity and authentici ty of the results
declared by the respective POs of these 11 polling stations on Form -XIV cannot be doubted and
the same cannot be kept out of consideration. According to settled principles of law, while
extending the benefit of doubt to respondent No.1, being the returned candidate, the results of
these 11 polling stations declared on Forms -XIV and XVI cannot be excluded from the count on
the ground that the packets/bags of the election material of these 11 polling stations opened by
Judicial Magistrate Du kki were not containing the used counterfoils, particularly, when serious
doubts have arisen with regard to the safe custody of the packets/bags containing the election
material and accessibility to the same by any person.
51. The summary of the analysis report of NADRA in respect of 35 polling stations reveals as
follows: ---
S.No. Description Count of
votes
1. Voters polled in polling stations whose
election material was received by NADRA 9,716
2. Invalid NIC number mentioned on used
counterfoils, this also includes such
counterfoils that do not have, CNIC
mentioned over it. 900
3. Duplicate voters on used counterfoils 351
4. Used counterfoils without fingerprints 196
5. Fingerprints successfully authenticated on
used counterfoils and ER 2,813
6. Fingerprints on used counterfoils and ER
failing Authentication 240
7. Fingerprints of bad quality affixed on used
counterfoils 5,216
52. According to finding No.12 of the report of NADRA, comparison of the statement of count
with used counterfoils revealed that on 08 polling stations the polled votes, as per statement of
count, are greater than the number of used counterfoils received by NADRA. In my view it is of
no significance as the undisputed report of Judicial Magistrate Dukki dated 28th Novem ber 2013
reveals that in some of the sealed bags of 35 polling stations, some of the counterfoils were
missing and as a result of the same NADRA has received used counterfoils less than the votes
polled.
According to finding No.13 of the report of NADRA, there are 11 polling stations where
received used counterfoils are greater than the votes polled as per statement of count which
include Polling Stations Nos.12, 16, 21, 23, 31, 36, 37, 45, 46, 48 and 50. Since none of the party
has applied for recounting of the ballot papers, therefore, the only inference which can be drawn
from the above is that after issuance of the ballot papers as per used counterfoils, the voters did
not cast the vote which has resulted in the greater number of used counterfoils than the votes
polled.
53. According to column No.5 of the summary report r/w finding No.21 of the report of
NADRA, fingerprints affixed on 2813 counterfoils at the time of issuance of ballot papers
correctly matched with fingerprint data of registered voter / citizen held with NADRA in Citizen
Database. As per findings of NADRA, these are the valid votes.
54. According to column No.7 of the summary report r/w finding Nos.24, 25 and 26 of the report
of NADRA, fingerprints on 5216 used counterfoils could not be processed through AFIS due to
poor quality of fingerprint as the used ink was defective. However, categoric findings have been
given by NADRA that CNIC numbers mentioned on these 5216 counterfoils were valid CNIC
and were of same constituency. The resp ondent No.1 cannot be penalized for the use of poor
quality/ defective ink by the Election Commission. In view of categoric findings of NADRA
about CNIC numbers, these 5216 votes cannot be excluded from the count and same have to be
considered as valid vot es.
55. According to column No.2 of the summary report r/w finding No.15 of the report of
NADRA, there were 900 used counterfoils that had invalid NIC numbers which were never
issued by NADRA and it also included some counterfoils that had no CNIC number s which was
mainly observed in polling stations Nos.12 and 37. In absence of any evidence on record, it
cannot be concluded as to which of the contesting candidate is responsible for the, same.
However, these 900 invalid votes have to be excluded from the count.
56. With regard to column No.3 of the summary report r/w finding No.17, there were 351
duplicate votes polled by 168 voters and this information was extracted from capturing NIC
number written on used counterfoils and it was mainly observed at pol ling stations Nos.37 and
23. Though there is no evidence on record to prove as to which of the contesting candidate is
beneficiary of the same, but these invalid 351 votes are to be excluded from the count.
57. According to column No.4 of the summary report r/w finding No.19 of the report of
NADRA, there were 196 used counterfoils without having fingerprints. The same have to be
excluded from the count.
58. According to column No.6 of the summary report r/w finding No.23 of the report of
NADRA, there we re 240 votes, authentication whereof failed. According to the findings of the
NADRA, it means that someone else voted against the NIC number mentioned on the used
counterfoils. These 240 votes have to be excluded from the count.
59. After analyzing the r eport of NADRA, if all the invalid votes i.e. 900+351+196+240
(total=1687) are excluded from 6544 votes secured by the respondent No.1, the votes secured by
respondent No.1 come to 4857. The respondent No.1 still has lead of 234 votes over the
petitioner M uhammad Shafique Tareen who has secured 4623 votes and has lead of 816 votes
over the petitioner Haider Khan Nasar who has secured 4041 votes.
60. For the reasons discussed hereinabove, it is concluded that both the petitioners have failed to
discharge t he burden of proving corrupt, illegal practice or the illegal acts alleged to have been
committed by respondent No.1 in the election of PB -14 Loralai -1 (Dukki) and that the report of
Judicial Magistrate Dukki and report of NADRA have not materially affecte d the result of the
election of the constituency.
For the above reasons, the Election Petitions Nos.1 and 2 of 2014 are dismissed with no order as
to cost.
ZC/68/Bal Petitions 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,
let us know.