2019 C L C 1543
[Balochistan]
Before Abdullah Baloch, J
ABDUL KHALIQ ----Petitioner
Versus
SARDAR SANAULLAH ZEHRI and 12 others ----Respondents
Election Petition No.31 of 2018, decided on 31st December, 2018.
(a) Elections Act (XXXIII of 2017) ---
----Ss. 139 & 144---Election petition--- Election for the seat of Provincial Assembly---
Allegations of illegal and corrupt practices ---Proof ---Requirements ---Verification of thumb
impression ---General allegations of illegal and corrupt practices had been leveled against
polling officials ---Petitioner had failed to mention the name of any of the officials who
indulged in the illegal and corrupt practices ---Statements of petitioner's witnesses were silent
with regard to polling stations, time and persons invol ved in the alleged rigging--- Nothing
was on record to prove a case of illegal and corrupt practices warranting declaration of
returned candidate to be declared as void---Order for verification of thumb impression would be justified if prima facie evidence of rigging and casting of invalid ballots was available on record ---No such evidence was available on record in the present case---Election petition was
dismissed, in circumstances.
Usman Dar and others v. Khawaja Muhammad Asif and others 2017 SCMR 292 re l.
(b) Administration of justice ---
----If law had prescribed a method for doing of a thing in a particular manner then same should be followed in letter and spirit and doing of a thing in the manner other than the provided manner would not be permitted under the law.
Zia-ur-Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 rel.
Kamran Murtaza and Tahir Ali Baloch for Petitioner.
Shah Muhammad Jatoi and Barrister Ali Ahmed Zehri for Respondent No.1.
Jameel Ramzan and Rafique Ahmed Langove, Legal Adv isors ECP and Naseer
Ahmed, Senior Assistant ECP.
Date of hearing: 21st December, 2018.
JUDGMENT
ABDULLAH BALOCH, J. ----This Election Petition under Section 139 of the
Elections Act, 2017 ("the Act), has been filed by the petitioner, Abdul Khaliq, a cont esting
candidate of general election from PB -38 Khuzdar -I, held on 25th July 2018, assailing the
Notification No.F.2(42)/2018- Cord. - dated 7th August 2018, whereby the respondent No.1,
Sardar Sanaullah Zehri, was declared as returned candidate. In the peti tion, the petitioner has
sought the following relief:
"It is, therefore, respectfully prayed that this Hon'ble Tribunal may call for the whole
record of the election of the constituency in question, the same may be examined by this Tribunal itself or through some other officials including of NADRA particularl y
the counterfoils and the ballot papers (used and unused) beside directing that the record be kept in safe custody till final disposal of the matter coupled with recording of the evidence as suggested by the petitioner, examination of thumb impressions on
the counterfoils with the help of NADRA, as such, on the basis of the same, declare the election of the returned candidate i.e. respondent No.1 to be void by setting aside the notification dated 07 -07-2018 (to the extent of PB -38 Khuzdar -I) issued by the
Election Commission of Pakistan and to declare the petitioner to be elected from the constituency in question or alternatively re -poll be ordered wherever the thumb
impression have been affixed but the voters have been impersonated, with any other
relief a s deem fit and proper in the circumstances of the case, with cost of the petition,
in the interest of justice."
2. Facts of the case are that the petitioner and Sardar Sanaullah Zehri, respondent No.1,
along with respondents Nos.2 to 13 contested the gener al election from the said constituency,
which was held on 25th July 2018. According to Final Consolidated Result (Form -49),
prepared by the Returning Officer ("R.O.") of the said Constituency on 29th July, 2018, Sardar Sanaullah Zehri, respondent No.1 obta ined 11833 votes and the petitioner namely
Abdul Khaliq secured 11815 votes, thus vide Notification No.F.2(42)/2018- Cord. -dated 7th
August 2018 issued by the Election Commission of Pakistan ("ECP") the respondent No.1 was declared as returned candidate fro m the said constituency. The petitioner being
aggrieved of the said notification filed the present election petition, with the above relief.
3. On filing petition, notices were issued to the respondents through all possible modes
for effecting service upon them, however only the respondent No.1 (returned candidate)
chose to contest the petition and submitted his written statement to the main petition and rejoinders to the C.M.A., stating therein that the petition is not maintainable and liable to be dismiss ed for the reason that whilst filing the petition, the provisions of sections 142, 143
and 144 have not been complied with, besides general allegations for committing corrupt and illegal practices have been leveled by the petitioner, on the basis whereof n either the election
of the respondent No.1 can be declared 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. Since no one had come forward on behalf of the remaining respondents to contest
the petition, as such, they were proceeded against ex- parte. On the divergent pleadings of
parties, following issues were framed:
1. Whether the petition is not maintainable in view of the legal objections No.B, C and E
of respondent No.1?
2. Whether final result was declared by the R.O., whereby the petitioner Secured 11815
votes and respondent No.1 secured 11833 votes with a difference of 18 votes, while 2768 votes were rejected and 178 votes of postal -ballot of the petitioner was not taken
into count in his favour?
3. Whether the respondent No.1 by means of corrupt and illegal practice committed rigging with collusion of polling staff in the Polling Stations Nos. 01, 04, 07, 09, 10, 20, 31, 35, 39, 42, 49, 47, 48, 50 and 51 of PB -38 Khuzdar -I and procured the result
in his favour?
4. Relief?
4. The petitioner has examined and produced the evidence of six (06) witnesses while
the Provincial Election Commissioner Balochistan namely Niaz Muhammad appeared as CW-1, who produced the report regarding scrutiny of postal ballots as Ex.C -l/A, while the
Returning Officer Aminullah, Judicial Magistrate -11 Khuzdar appeared as PW- 7 and in the
last the petitioner recorded his own statement and owned the contents of detail affidavit, while in rebuttal the respondent No.1 produced two RWs and also recorded his own statement.
5. Learned counsel for petitioner contended that the respondent No.1 with the
connivance and collusion of Presiding Officers and other polling staff committed massi ve
rigging throughout the constituency and mainly targeted fifteen (15) polling stations, where the polling agents of the petitioner were not allowed to sit and to monitor the election process and in absence of the said polling agents bogus/fake votes were being cast by impersonation,
while the complaints so submitted to the concerned Presiding Officers were not entertained, which fact can easily be ascertained if the thumb impressions contained of voters are scanned through the modern devices of NADRA; tha t after close of pole counting was not made in
presence of the petitioner or his polling agents and in this manner Form -45 was not issued
and supplied to the petitioner or his polling agents, which is in violation of provisions of Elections Act, 2017; that the postal ballots polled in favour of the petitioner were not open
by the R.O. and the CW -1 as such in this manner they deprived the voters from the right of
franchise to elect representatives of their own choice; that the witnesses so produced along with the supporting documents it has been established and proved that the result of election
was procured by the respondent No.1 by means of corrupt and illegal practices, thus prayed for re -poll in the constituency.
6. On the other hand, the learned counsel for the respondent No.1 contended that the
petition is not maintainable being beyond the scope of section 139 of the Act, as whilst filing the petition the compliance of sections 142, 143 and 144 of the said Act was not made; that the polling process was c arried out peacefully and in accordance with the Act; that absolutely
false and general allegations have been leveled by the petitioner upon the polling staff for
interfering in the polling process or joining hands with the respondent No.1 to carry out a massive rigging; that the petitioner has failed to establish the charge of massive rigging; that
the petitioner out of 98 polling stations intentionally picked and chose those 15 polling station which are inhabited by the supporters of the respondent No.1 a nd concealed the fact
of obtaining highest and abnormal percentages of votes in the remaining polling stations; that
the petitioner has failed to prove a case of illegal and corrupt practices as per provisions of
the Act; that since the provisions of Rule 85 of the Elections Rules, 2017 ("the Rules") have
not been complied with, thus the postal ballots, have rightly been excluded from the count; that after counting of votes Forum -45 were 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,
hence the petition being not maintainable is liable to be dismissed.
7. Learned Legal Advisors of ECP have also assisted the Tribunal.
8. Heard the learned counsel for parties and with t heir able assistance perused the
record. The perusal of record reveals that the respondent No.1 while filing his written statement raised objection "B", "C" and "E" with regard to maintainability of the petition and in this regard Issue No.1 was framed, bu t he has failed to bring on record any material
evidence establishing that the petition is not maintainable in view of section 139 of the Act. Perusal of petition along with its annexures reflect that the petition and its annexures are duly signed and veri fied on oath by the petitioner as required under the law and also annexed all
the necessary documents as required under Section 144 of the Act. 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.
ISSUE No.2
"Whether final result was declared by the R.O., whereby the petitioner Secured 11815 votes and respondent No.1 secured 11833 votes with a difference of 18 votes, while 2768 votes w ere rejected and 178 votes of postal -ballot of the petitioner was not taken
into count in his favour?"
9. So far as the first part of this issue with regard to rejection of 2768 is concerned,
suffice to state here that it has come on record during course of cross -examination of
respondent No.1:
During course of arguments the learned counsel for respondent No.1 offered the
petitioner for verification of said rejected votes, but the learned counsel for petitioner on the instructions of petitioner does not press his said plea rather withdrawn his contention for
verification of rejected votes through NADRA. Even otherwise, nothing was brought in
evidence by either side adversely to verify the fate of said rejected votes.
10. So far as the second portion of Issue No.2 is concerned, suffice to observe here that
the learned counsel for petitioner has mainly stressed that 156 postal ballots have not been opened by the R.O. and subsequently by the Commission constituted by this Tribunal, the same were also not opened and taken into consideration. Prior to decide this limb of issue, it is necessary to mention here that along with main petition, the petitioner has also filed C.M.A. No.1235 of 2018 for recounting of postal ballots, which was allowed and the Provincial Election Commissioner Balochistan was appoi nted as Commission to open the
bags/packets of postal ballots and after inspection submit report, vide order dated 22nd November 2018. In compliance whereof, the report was submitted before this Court as Ex.C -
1/A. He also appeared as CW- 1 and was cross -examined. For decision of this issue, it is
necessary to dilate upon the relevant law with regard to the Postal Ballots, Section 93 of the Act is relevant:
"93. Postal ballot. - (1) The following persons may cast their votes by postal ballot in
such manner as may be prescribed ---
(a) a person referred to in subsection (2) or (3) of section 27;
(b) a person appointed by the Returning Officer, including police personnel, for the performance of any duty in connection with an election at polling station other than
the one at which he is entitled to cast his vote;
(c) a person with any physical disability who is unable to travel and holds a National Identity Card with a logo for physical disability issued by the National Database and
Registration Authority; and
(d) a person detained in a prison or held in custody.
(2) A voter who, being entitled to do so, intends to cast his vote by postal ballot shall -
-
(a) in the case of a person referred to in clause (a) and clause (c) of subsection (1), within such time as may be specified by the Commission soon after the issuance of the
Election Programme; and
(b) in the case of a person referred to in clause (b) of subsection (1), within three days of his appointment;
apply to the Returning Officer of the constituency i n which he is a voter for a ballot
paper for voting by postal ballot; and every such application shall specify the name of the voter, his address and his serial number in the electoral roll.
(3) The Returning Officer shall upon receipt of an application, by a voter under subsection (2) send by post to such voter a ballot paper and an envelope bearing on its face a form of certificate of posting, showing the date thereof, to be filled in by the proper official of the Post Office at the time of posting by the voter.
(4) A voter on receiving his ballot paper for voting by postal ballot shall record his vote in the prescribed manner and, after so recording, post the ballot paper to the
Returning Officer in the envelope sent to him under subsection (3), so as t o reach the
Returning Officer before the consolidation of results by him.
11. The manner for acceptance or rejection of postal ballots will be on the same manner
as contemplated in section 90(4)(c) of the Act, which reads as under:
"90(4)(c) count, in suc h manner as may be prescribed, the votes cast in favour of each
contesting candidate excluding from the count the Spoilt Ballot Papers and the ballot
papers which bear ---
(i) no official mark and signature of the Presiding Officer;
(ii) any writing or any mark other than the official mark, the signature of the Presiding Officer and the prescribed mark or to which a piece of paper or any other object of any kind has been attached:
(iii) no prescribed mark to indicate the contesting candidate for whom the vot er has voted:
or
(iv) any mark from which it is not clear for whom the voter has voted.
In the above referred clause (c) of subsection (4) of Section 90 of the Act, it is clearly
mentioned that count in such a manner as may be prescribed. The prescribed m anner is well
defined in Rule 85 of the Elections Rules, 2017, wherein a complete mechanism for dealing with the count of postal ballots has been provided. For convenience Sub- Rule (10) of Rule 85
is reproduced hereunder:
"(10) The Returning Officer shall deal with the postal ballot papers in the following
manner namely:
(a) no cover in Form -40 containing a postal ballot paper received by the Returning
Officer after the expiry of the time fixed in that behalf shall be counted;
(b) the Returning Officer shall close and seal in a separate packet all the packets referred to in sub -rule (2) of rule 71;
(c) all other covers in Form -40 containing postal ballot papers shall then be opened one
after another;
(d) as each cover is opened, the Returning Officer shall scrutinize the declaration in Form -38 contained therein and shall reject t he ballot paper and make an appropriate
endorsement on the cover in Form -39 without opening the same -
(i) if the said declaration is not found in the cover in Form -40; or
(ii) if the said declaration is substantially defective; or
(iii) if the serial numbe r of the ballot paper entered in the said declaration differs from
such number endorsed on the cover in Form -39.
For issuance and delivery of postal ballots, a procedure is provided in sub- rule (2) of
the Rule 66 that:
66. Issue of postal ballot papers.--
(1) ………
(2) Along with the ballot paper, the Returning Officer shall send to the voter -
(a) a declaration in Form -38:
(b) a cover in Form -39;
(c) a large cover addressed to himself in Form -40; and
(d) instructions for the guidance of the voter in Form -41.
Likewise, sub -rules (2), (3) of Rule 67 and sub- rule (1) of Rule 71 provides that:
"67 (2) (3) Recording of votes on postal ballot paper.-
(2) In recording the vote, such voter shall, after complying with the instructions
contained in Form -41 sent to him under clause (d) of sub- rule (2) of rule 66, put the
ballot paper in the cover in Form -39.
(3) The voter shall sign the declaration in Form -38 in the presence of a Gazetted or a
Commissioned Officer to whom he is personally known or to whose satisfaction he has been identified and he shall have his signature attested by such Officer."
"71. Return of postal ballot paper.- (1) After a voter has recorded his vote and made
his declaration under Rule 67, or has his vote recorded and his declaration signed
under Rule 68, he shall return the ballot paper and his declaration to the Returning Officer in a ccordance with the instructions communicated to him in Form -41.
Besides for guidance of voters, Form -41 has been provided in the rules. For
facilitation, the said Form is reproduced herein below:
FORM -41
[see rule 66(2)(d)]
INSTRUCTIONS FOR THE GUIDANCE OF VOTERS VOTING BY POSTAL BALLOT
You know the names of the candidates contesting election from your home constituency. If you desire to vote, you should record your vote with a pen by writing the name of the candidate for whom you wish to vote, in the bla nk space on the ballot
paper. Thereafter, you should follow the instructions detailed below: ---
a. After you have recorded your vote on the postal ballot paper, place the ballot paper in the smaller cover marked 'A' sent herewith. Close the cover and secur e it by seal or
otherwise.
b. If two or more candidates in your constituency are having same name, then you will record the name and symbol of the candidate of your choice.
c. You have then to sign the declaration in Form -38 also sent herewith, in the pres ence
of a gazetted officer of BPS -17 or above or a commissioned officer who is competent
to attest your signatures under sub- rule (3) of rule 67 of the Elections Rules, 2017.
d. If you are unable to mark the ballot paper and sign the declaration yourself i n the
manner indicated above by reason of illiteracy or infirmity, you are entitled to have
your vote marked and the declaration signed on your behalf by any officer mentioned in item (c) above. Such an officer will at your request mark the ballot paper in your
presence and in accordance with your wishes. He will also complete the necessary certificate in this behalf.
e. If you are a person with physical disability who cannot travel and possesses national identity card bearing logo of disability issued by t he National Database and
Registration Authority, you may authorize one of your family members namely father, mother, brother, sister, spouse, son or daughter to get the declaration attested from a gazetted or a commissioned officer on your behalf.
f. After your declaration has been signed and your signature has been attested in
accordance with item (c) above, put the Declaration Form and the smaller cover marked 'A' containing the ballot paper, in the larger cover marked 'B'. After closing the larger cover, send it to the Returning Officer concerned by post.
g. You must ensure that the cover reaches the Returning Officer before the time fixed for consolidation of the results by the Returning Officer under subsection (1) of section 95 of the Elections Act, 2017.
h. Please note that --
i. if you fail to get your declaration attested or certified in the manner indicated above, your ballot paper will be rejected; and
j. if the cover reaches the Returning Officer after the time fixed for consolidation of the
results by the Returning Officer under subsection (1) of section 95 of the Elections
Act, 2017, your vote will not be counted.
12. In view of the above provisions of law, since 156 postal ballot paper were not found
covered in Form -40 (Mark- B) of Form -41, while covered in Form -39 (Mark -A) of Form -41,
without declaration/ certificates or defective numbers, as such, the Returning Officer has rightly rejected the said postal ballots in the manner as prescribed under the law without opening the same as provided in Rule 85 Sub- Rule (10)(d)(i)(ii)(iii) of the Rules that, "as
each cover is opened, the Returning Officer shall scrutinize the de claration in Form -38
contained therein and shall reject the ballot paper and make an appropriate endorsement on the cover in Form -39 without opening the same". Subsequently, the Commission constituted
by this Tribunal comprising of Provincial Election Comm issioner Balochistan, who also
scrutinized all 198 postal ballot and submitted a detailed report Ex.P -C/A-1 to A -8 opened 42
postal ballot, which were found in the prescribed manner, while 156 postal ballots were found without cover of Form -40 or declarati on of Form -38 as such, discarded the same from
the count, thus the report of Election Commissioner does not suffer from any illegality or irregularity to be rejected. If the law had prescribed a method for doing of a thing in a
particular manner, such prov ision of law was to be followed strictly in letter and spirit and
achieving or attaining the objective of performing or doing of a thing in a manner other than
provided manner, would not be permitted under the law. The Hon'ble Apex Court in the case of Zia -ur-Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 has held that, "If the
law requires a particular thing to be done in a particular manner it has to be done
accordingly, otherwise it would not be in compliance with the legislative intent. Non-
comp liance of this provision carries a penal consequence in terms of section 63 of the
Representation of the People Act whereas no penal provision is prescribed for non-
compliance with Order VI, Rule 15 of the Civil Procedure Code". It is pertinent to mention here that prior to the petition the petitioner approached the ECP for recounting of postal ballots, but the petition was dismissed by the ECP. Thus, the objections of petitioner are without substance, carries no weight are rejected and the Issue No.2 is resolved against the petitioner.
ISSUE NO.3
"Whether the respondent No.1 by means of corrupt and illegal practice committed rigging with collusion of polling staff in the Polling Stations Nos. 01, 04, 07, 09, 10, 20, 31, 35, 39, 42, 49, 47, 48, 50 and 51 of PB -38 Khuzdar -1 and procured the result
in his favour?"
13. Adverting to Issue No.3, is concerned, the petitioner has alleged that the respondent
No.1 being in league with the polling staff of 15 polling stations committed corrupt and illegal practice b y casting bogus votes and in this manner he procured the election result in
his favour. In order to establish the said issue, the petitioner has only produced the evidence of six witness i.e. PW -1 Ali Ahmed, PW -2 Abdul Aziz, PW -3 Haji Muhammad Amin, PW -4
Abdul Baqi, PW -5 Imam Din and PW -6 Shams -ud-Din. All the PWs are claiming to be
polling agents of the petitioner, but none of them have produced the copy of the authority for their appointment as polling agents by the petitioner, thus in absence of any evidence it cannot be believed that the said witnesses were actually the polling agents of the petitioner. The affidavits annexed with the petition on behalf of said six PWs are stereotype statements. All the affidavits were computerized typed and have contain ed similar nature of assertions
and only the particulars of the witnesses i.e. Name, parentage, place of residence and polling stations were left blank and filled subsequently through pen. It is not acceptable for a prudent mind that similar nature of occurrence had taken place in all the polling stations. It has further on record through the statements of said witnesses that on the day of polling they had not made any writ complaint to any competent officer with regard to rigging committed by any particula r person or Presiding Officer. Besides, not a single vote was challenged at the
time of counting.
14. The comparative study of statements of PWs would establish the fact that 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, but none of them have mentioned a single word that in which polling station, at what time, who was committing illegal or corrupt practice and to what extent as well as in what manner. Besides,
the witnesses admitted in their cross -examinations that they have not made any written
complaint by mentioning the name of any particular official of law enforcing agency or
polling staff abetting the respondent No.1 in ma ssive 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 behalf 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.
15. The minute scrutiny of the pleadings of the parties and the evidence produced in
rebuttal, would establish the fact that though the petitioner has leveled serious allegations of
corrupt and illegal practices against the respondent No.1 that he has procure d the election
results in his favour by means of corrupt and illegal practices by joining hands with the security agencies and polling staff, but absolutely not a single piece of evidence has come on record establishing the league of the respondent No.1 wi th the polling staff and even have
failed to mention the name of any particular polling staff or Presiding Officer. With regard to the allegations ol targeting 15 polling stations for rigging, the petitioner has even failed to produce the polling agents of the said 15 polling stations. The objection taken by the
respondent No.1 that the petitioner has only picked and chose those polling station, where
the supporters of the respondent No. 1 were inhabited. Besides, in the said 15 polling station
there is a m arginal lead in between the votes obtained by the respondent No.1 and petitioner
as well as the third position holder i.e. respondent No.8 (Mir Israrullah Zehri, the brother of respondent No.1) who secured 7333 votes. The Form -45 available on record reflec ts in
certain polling stations, the petitioner had secured highest votes, but the said polling stations were escaped by the petitioner in his petition. The respondent No.1 while filing his written statement has drawn a table showing the high margin of vote s secured by the petitioner in
nine polling stations, which is reproduced herein below:
S. No. Name of Polling Station Votes received
by Sardar
Sanaullah Votes received
by Abdul Khaliq
1. Govt: P/S Chashma, Zehri 402 655
2. Govt: P/S Mazhi Tootak 45 299
3. Govt: P/S Balbal Tootak 28 89
4. Govt: P/S Balbal Zehri 119 33
5. Govt: P/S Dezeri, Zehri 128 190
6. Govt: P/S Duggean, Zehri 183 292
7. Govt: P/S Hadirkash, Zehri 63 113
8. Govt: P/S Lad, Zedi 11 89
9. Govt: P/S Majalav, Mola 93 153
16. From the perusal of record and from the statement of PW -7 R.O. (Returning Officer),
it has further established the fact that polling officers/officials were deputed in all the polling stations and the poll was being carried out smoothly and peacefully within the time stipulated by the Election Commission of Pakistan. It has further been observed that besides, the polling agents of the petitioner and the polling agents of returned candidates, the polling agents of the remaining contesting candidates were als o seated in the polling stations and
were monitoring the polling process, thus it is also not appealable to a logic that they let the
polling agents of the respondent No.1 to rig the poll and even except the petitioner none of
the contesting candidates have contested the petition before this Tribunal. Though, the petitioner has alleged that rigging, corrupt and illegal practices have been adopted in 15 polling stations, while the petitioner produced only six witnesses, who collectively accounted for six pol ling stations, while nothing was brought on record regarding the remaining nine
polling stations. The onus to prove allegations of rigging and the use of corrupt and illegal
practices is on the shoulders of petitioner, but the petitioner has failed to shif t such burden
from his shoulders. 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 Peti tions 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 c an 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 specify in the petition the corrupt practices committed, giving in the list attac hed 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 corrupt 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 consistent
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 determination 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 stringent and the allegations in this regard must be absolutely proved through posit ive
evidence without accepting any inferences 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) Electi on
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 Returni ng 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]
17. Adverting to the application for verification of thumb impressions of voters contained
on counterfoils, suffice to observe here that legally the order of verification of thumb impressions would only be justified, where there is prima facie evidence of rigging and the
casting of invali d ballots available on record. However, such evidence is lacking in the case
in hand thus no relief as prayed for can be granted to the petitioner merely on the ground of
meager margin of lead. Accordingly, Issue No.3 is also answered in negative.
The cas e laws relied upon by the learned counsel for the petitioner are distinguishable
and not helpful.
For the above reason the petition being devoid of merits, is hereby dismissed.
ZC/9/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,
let us know.