2019 C L C 1520
[Balochistan]
Before Abdullah Baloch, J
KHAIR JAN ----Petitioner
Versus
ABDUL QUDOOS BIZANJO and 22 others ----Respondents
Election Petition No. 35 of 2018, decided on 19th December, 2018.
Elections Act (XXXIII of 2017) ---
----Ss. 139 & 144 ---Election petition ---Election for the seat of Member Provincial Assembly-
--Allegations of illegal and corrupt practices ---Burden of proof ---Benefit of doubt ---Onus to
prove allegations of rigging and use of corrupt and illegal practices was on the petitioner ---
General allegations of illegal and corrupt practices of rigging in different polling stations had
been leveled against the respondent ---Written complaint by mentioning the name of any
particular officer/official abetting the respond ent in the alleged rigging had not been made ---
Particular act of illegal and corrupt practice was not assigned to any particular person ---No
material substance had been produced to prove the case of corrupt and illegal practices against the respondent ---Benefit of doubt had to be extended to the party against whom
allegations had been levelled ---Petitioner was required to narrate full particulars of incorrect
declaration, illegal and corrupt practices along with supporting evidence ---General
allegations wit hout supporting evidence could not be taken into consideration having not
fulfilled the mandatory requirements of S.144 (1)(a)(b) of Elections Act, 2017--- Petitioner
had failed to shift the burden of proof ---Huge difference between the votes secured by the
petitioner and respondent was on record---Order for recounting or verification of thumb impressions would be justified where there was prima facie evidence of rigging and casting of invalid ballots on the record---Petitioner had failed to establish the charge of illegal and corrupt practices ---Election petition was dismissed, in circumstances.
Usman Dar and others v. Khawaja Muhammad Asif and others 2017 SCMR 292 rel.
Nadir Ali Chalgari for Petitioner.
Tariq Ali Tahir and Nadeem Sheikh for Respondent No.1.
Khalil -uz-Zaman, Additional A.G. for the State.
Jameel Ramzan, Legal Advisor ECP and Naseer Ahmed Senior Assistant ECP.
Date of hearing: 15th December, 2018.
JUDGMENT
ABDULLAH BALOCH, J. ----This Election Petition under section 139 of the
Election A ct, 2017 ("Act of 2017), has been filed by the petitioner, Khair Jan, a contesting
candidate of general election from PB -44 Awaran -cum-Panjgur, held on 25th July 2018,
assailing the Notification No.F.2(42)/2018- Cord. - dated 7th August 2018, whereby the
respondent No.1, Abdul Qadoos Bizenjo, was declared as returned candidate. In the petition,
the petitioner has sought the following reliefs:
"It is therefore, respectfully prayed that petition may kindly be accepted in the
following manner:
i. That the result of General Election 2018 from the Constituency of PB -44 Awaran -
cum-Panjgur as prepared by the Returning Officer may kindly be declared void and
re-polling of the entire constituency be order or declared the petitioner as returned
candidate.
ii. That the votes polled at the following Polling stations i.e. Polling Stations Nos. 1 to 16, 18, 20, 25, 27, 28, 39, 43, 44, 45, 48, 49, 51, 53, 54, 55, 56, 58, 61 to 68, 77, 78, 80, 82 and 83 of the Constituency of PB -44 Awaran -cum-Panjgur may kindly be
examined and scrutinized through "NADRA" thump screening and the beneficiary of such votes who have committed rigging be disqualified and be punished in accordance with election laws.
iii. That impugned Notification dated 07- 08-2018 issued by the Electi on Commission of
Pakistan, thereby declaring the respondent No.1 as returned candidate may be declared as null and void.
iv. That the orders be passed for verification/checking of thumb impressions of the voters upon the counter foils of booklets of the ba llot papers in Polling Stations Nos.1 to 16,
18, 20, 25, 27, 28, 39, 43, 44, 45, 48, 49, 51, 53, 54, 55, 56, 58, 61 to 68, 77, 78, 80, 82 and 83 of the Constituency of PB -44 Awaran -cum-Panjgur.
v. That as a consequence the election of said Polling Stations may kindly be declared
illegal, unfair and re -polling may kindly be ordered upon the above said polling
stations or in whole the constituency.
vi. Any other relief deemed appropriate in the peculiar circumstances of the case might also very kindly be gran ted to the petitioner."
2. Facts of the case are that the petitioner and Abdul Qadoos Bizenjo, respondent No.1,
along with respondents Nos.2 to 19 contested the general election from the said constituency, which was held on 25th July, 2018. According to Fi nal Consolidated Result (Form -49),
prepared by the Returning Officer ("R.O.") of the said constituency Abdul Qadoos Bizenjo, respondent No.1 obtained 8055 votes and the petitioner namely Khair Jan secured 5962 votes, accordingly vide Notification No. F.2.( 42)/2018- Cord.- dated 7th August 2018, the
Election Commission of Pakistan declared Abdul Qadoos Binzenjo, respondent No.1, as
returned candidate from the said constituency. The petitioner being aggrieved of the said notification filed the present election petition, with the above relief.
3. Notices were directed to be issued to the respondents through all possible modes for
effecting service upon them, but only the returned candidate Abdul Qadoos Bizenjo (respondent No.1) chose to contest the petition by filling his written statement, stating therein that the petition is barred under section 142 of the Elections Act, 2017 as the same was not filed within the stipulated period of 45 days and even no application for condonation of delay in filing the petition has been filed, besides general allegations for committing corrupt and illegal practices have been levelled by the petitioner, on the basis whereof neither the election of the respondent No.1 can be declared as void nor re -poll can be ordered
to be made, when more particularly the counting of ballot papers was made in presence of
polling agents of the petitioner, thus the petition is not maintainable under sections 43 and 144 of the Elections Act, 2017. On the divergent pleadings of parties, following iss ues were
framed:
1. Whether the petition is not maintainable in view of Legal Objections Nos. 1, 3, 4, 6 and 7 of the respondent No.1?
2. Whether the polling staff was arrived at 1400 pm in sixteen polling stations of Mashkay, till such time the voters ret urned back to their homes and deprived from
casting their votes, which has effected the result?
3. Whether the respondent No.1 with connivance of polling staff committed corrupt and illegal practice by casting bogus votes and procured the result in his favour?
4. Relief?
4. In support of issues, the petitioner produced eleven witnesses, whose affidavits were
already filed with the election petition. The witnesses owned their affidavits and averments of the affidavits in their examination- in-chief. The petit ioner also recorded his own statement
and owned the averments contained in his affidavit. In rebuttal, respondent No.1, produced eleven (11) witnesses, who owned their affidavits already filed with the written statement. Besides, the respondent No.1 also e ntered in the witness box and recorded his own statement.
5. Learned counsel for petitioner mainly contended that the respondent No.1 (returned
candidate) being influential person and in league with the polling staff has not only double stamped the votes p olled in favour of petitioner and huge number of the votes of the
petitioner were spoiled, but also in sixteen polling stations the polling staff arrived after 2.00 p.m., while till that time the voters of the petitioner returned to their homes with the perception that no balloting is being carried out in the said polling stations and in this manner
the voters were not only deprived from right of their franchise, but also huge number of fake/forged votes were cast by impersonation and appending forged/ficti tious thumb
impressions on the counterfoils, which fact can easily be ascertained, if the forensic analysis of the thumb impressions are carried out through the modern devices of NADRA; that after close of polling, the polling agents of the petitioner were ousted from polling stations and
counting were made in their absence and even no Form -45 was provided to them; that the
petitioner well within time approached the concerned D.R.O. and R.O. by pointing out the
illegalities and irregularities committed on t he day of polling and after closure of polling, but
the grievance of the petitioner was not redressed; that the petitioner through solid, concrete and cogent evidence has substantiated its case, hence the petitioner is entitled to be declared as returned candidate and the election of respondent No.1 is liable to be declared as void or
as an alternative re- polls be ordered in the whole of constituency.
6. On the other hand, the learned counsel for the respondent No.1 contended that the
petition is not maintainable as prior to filing the instant petition, the relevant provisions of
Elections Act of 2017 were not complied with; that the polling process was ca rried out
peacefully and in accordance with the Elections Act, 2017 and no rigging at all was committed on the day of polling and the petitioner has levelled false and general allegations for committing massive rigging, whereas to the contrary he has faile d to establish the charge;
that after counting of votes Forum -45 was issued in accordance with law and the Polling
Agents of the petitioner at the time of counting have failed to challenge even a single vote; that there is huge difference in between the vo tes obtained by the petitioner and the
respondent No.1 on the basis whereof the petition being devoid of merits deserves dismissal.
7. Learned Additional Advocate General and learned Legal Advisors of Pakistan
Election Commission have also assisted the Tri bunal.
8. Heard the learned counsel for parties and with their able assistance perused the
record. The perusal of record reveals that the respondent No.1 while filing his written statement raised certain legal objections questioning the maintainability of the petition and in this regard issue No.1 was framed, but perusal of record emerges that the respondent No.1
has failed to bring on record any material evidence establishing that the petition is not maintainable in view of Section 139 of the Elections Act , 2017. Perusal of petition along
with its annexure reflect that the petition and its annexure were duly signed and verified on oath by the petitioner as required under the law and also annexed all the necessary documents as required under section 144 of t he Act of 2017. Besides, he joined all the
contesting candidates in the petition as well as deposited the requisite security amount. Thus, the issue No.1 is resolved in favour of petitioner.
9. So far as the Issue No.2 is concerned, it relates to the allegations of petitioner that the
polling process was started after 02.00 p.m. and the voters were deprived from the right of franchise, as till that time the voters had left the polling stations. In support of said issue, the petitioner has produced the evide nce of PW- 1 Muhammad Anwar, PW -2 Humraz Baloch,
PW-3 Abdul Hai, PW -5 Abdul Malik, PW -9 Waleed Baloch and PW- 10 Barkat Ali. PW -1
has stated that out of total 1700 votes, only 700 votes were polled in the polling station, where he was deputed as polling agen t. According to PW -2 the polling process was started
after 02.00 p.m. in the Polling Station Government Boys School Jabri, where the total numbers of voters were 1800. This witness has further averred that soon after start of polling, some armed persons fo rcibly entered in the said polling station and started stamping the
ballot papers in favour of respondent No.l. PW -2 further admitted that in the said polling
station only 25 votes were cast. It is astonishing that if the armed persons forcibly entered in the polling station, snatched the books of ballot papers from Polling Staff and started
stamping the ballot papers, but despite such fact only 25 votes were polled, when otherwise
the number of voters were 1800 and the alleged armed persons could have cast the maximum
number of votes, but this has not been done so. The statement of this witness is not ringing true and thus no reliance could be placed upon the same. Likewise, the statements of PW -1,
PW-3, PW -5, PW -9 and PW -10 are similar to the statement of PW-2. All the Nitnesses have
failed to mention the names of the alleged armed persons, but more particularly the elections
were being carried in presence of personnel of security agencies. Besides, the voters were
only entered in the polling stations after showing their CNICs. According to the case of
petitioner in sixteen polling stations the polling process was started after 2.00 p.m., thus the petitioner was required to produce the polling agents to the extent of all the sixteen polling stations, but onl y six witnesses were produced, who collectively accounted for six polling
stations, while nothing was brought on record regarding the remaining 10 polling stations. Thus, the petitioner has failed to establish the Issue No.2, which is accordingly answered in
negative.
10. Adverting to issue No.3, which relate to corrupt and illegal practices allegedly
committed by the respondent No.1 being in league with the polling staff. In support of this issue the petitioner has produced PW -4 Muhammad Asif, PW -6 Abdul G hani, PW -7 Pervaiz
Ali and PW -8 Amir Bakhsh. All witnesses mainly alleged that the ladies voters were casting
bogus votes by impersonation and on behalf of other ladies, while such act was objected, but no heed was paid by the Presiding Officer. Though, the said witnesses are claiming to be polling agents of the petitioner, but the fact remains that they have failed to produce the authority letter issued by the petitioner by deputing these witnesses in the Female polling stations. It is also surprising that as to how these witnesses have identified such ladies
allegedly casting bogus votes by impersonation, when otherwise according to customs and
traditions as well as more particularly being a tribal area, where the female observe veils and masks on their fa ces, thus the identification of females in the polling stations was not
possible by the witnesses. Besides, the witnesses have alleged that they had challenged the bogus votes, but according to section 86 of Election Act, 2017, a mechanism is provided for challenging any vote by depositing the requisite fee whereof, but from statements of PWs, it appears that such provision of law was not complied with. It has further come on record that besides the polling agents deputed by the petitioner, the polling agents of the other contesting candidates were also present in the polling stations, who never objected the polling process.
11. While in rebuttal, the respondent No.1 produced ten witnesses, who unanimously
stated that the polling was carried out peacefully, smoothly and in accordance with election laws. The RWs denied the suggestion that any rigging was committed in any polling station. The respondent No.1 fully supported the contents of his affidavit and written statement and categorically stated that the el ections were carried out in presence of personnel of security
agencies, thus no question of rigging at all does arises.
12. It has further been observed that the evidence produced by the petitioner is not in
consonance with the allegations contained in the petition. All the witnesses unanimously leveled general allegations of corrupt and illegal practices of massive rigging in the different
polling stations at the behest of respondent No.1. The statements of PWs further show that they have not made any written complaint by mentioning the name of any particular
officer/official abetting the respondent No.1 in the alleged massive rigging in any of the
polling stations. Even otherwise, from the deposition of PWs nothing has come on record
that a particular act of illegal and corrupt practice was assigned to any particular person, who has committed illegal and corrupt act on or on be half of respondent No.1, but general
allegations have been leveled against the returned candidate, having no material substance to
prove the case of corrupt and illegal practice warranting declaration of returned candidate to
be declared as void. Admittedl y, the petitioner has only leveled general allegations seeking
declaration of the returned candidate to be void without any solid and concrete evidence,
while in such like election petitions where if a case of corrupt and illegal practice is proved having penal consequences and besides containing three years imprisonment, meaning
thereby the evidence so brought by the parties if any doubt is created, the benefit of such doubt would be extended to the party against whom allegations have been leveled, while t he
petitioner in term of section 144 (1)(b) of Elections Act, 2017 required to have give full particulars of incorrect declaration, illegal and corrupt practices along with supporting evidence while general allegations without supporting evidence could not be taken into
consideration having not fulfilled the mandatory requirement of section 144(1)(a)(b) of Elections Act, 2017. The onus to prove allegations of rigging and the use of corrupt and illegal practices is on the shoulders of petitioner, but the pet itioner has failed to shift such
burden from his shoulders. Thus, the Issue No.3 is also answered in negative. The Hon'ble Supreme Court of Pakistan in the case titled as Usman Dar and others v. Khawaja Muhammad Asif and others, reported in 2017 SCMR 292, has held as under:
"Reference may be made to Muhammad Saeed v. Election Petitions Tribunal, West Pakistan and others (PLD 1957 SC (Pak.) 91) wherein it was held that, "The law relating to the trial of elections petition, though volumes have been written on it, in so far as it is relevant to the present case, is so simple that it can be summed up in one
sentence, namely, where an election is sought to be set aside on the ground of commission of corrupt practices, the party challenging its validity must spec ify in the
petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices; that no fresh charge or instance of a corrupt practice can be added at the trial, that the burden of proof of corrupt practices is on the petitioner; that the evidence in proof of such practices must be restricted to the charges or instances mentioned in the petition and the particulars; that each ingredient of a cor rupt practice
so charged must be affirmatively proved by evidence, direct or circumstantial; and that where the evidence is wholly circumstantial, the commissioners before finding a corrupt practice proved must exclude all reasonable hypotheses which are c onsistent
with that corrupt practice having not been committed". Reference may also be made to the case of Hafeezuddin v. Abdul Razzaq (PLD 2016 Supreme Court 79) in which this Court held that, 'Before we embark upon an analysis of the evidence and a deter mination about the correctness or otherwise of the findings of the learned
Tribunal, it is pertinent to mention that the rules of proof for the grounds challenging the election which are founded on corrupt and illegal practices are quite strict and stringe nt and the allegations in this regard must be absolutely proved through positive
evidence without accepting any interference and if there is any doubt, the benefit must go to the person against whom corrupt or illegal practices are being alleged, as held by this Court in the cases reported as Muhammad Saeed and 4 others v. (1) Election
Petitions Tribunal, West Pakistan, (2) Mehr Muhammad Arif Khan, (3) Ghulam
Haider and (4) West Pakistan Government and others (PLD 1957 SC (Pak.) 91); Mian Jamal Shah v. (1) The Member Election Commission, Government of Pakistan, Lahore, (2) The Returning Officer, Constituency of the National Assembly of Pakistan No.NW -II, Peshawar II and (3) Khan Nasrullah Khan (PLD 1966 SC 1);
Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC
160)". [BOLD ADDED]
13. It has further been observed that there is a huge difference in between the votes
secured by the petitioner and the respondent No.1, while legally the order of recount or
verification of thumb impressions wou ld only be justified, where there was prima facie
evidence of rigging and the casting of invalid ballots are available on record. The petitioner
has miserably failed to establish the charges of illegal and corrupt practices.
For the above reasons, the pet ition being devoid of merits, is dismissed.
ZC/7/Bal 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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