2019 C L C 670
[Election Tribunal Balochistan]
Before Justice Muhammad Hashim Khan Kakar, Member
Haji MUHAMMAD HASSAN SHERANI ----Petitioner
Versus
Sardar BABAR KHAN and 13 others ----Respondents
Election Petition No.27 of 2018, decided on 7th December, 2018.
Elections Act (XXXIII of 2017) ---
----Ss. 139, 144, 156, 167 & 93---Election petition ---Election for the seat of Member
Provincial Assembly ---Allegations of illegal and corrupt practices ---Burden of proof ---
Benefit of doubt ---Postal ballot papers, issuance of ---Procedure---Burden to prove illegal and
corrupt practices was on the petitioner ---Allegations of corrupt practices and illegal acts must
be proved with such standard as was required for proving a charge in criminal case ---Benefit
of doubt arising out of the material placed before Election Tribunal must be extended to the
returned candidate---Allegations made in the election petition as well as in affidavit- in-
evidence were not supported by the facts on the face of record ---Affidavits s ubmitted before
Election Tribunal did not bear any date of attestation and date when same were reduced into
writing ---Possibility of said affidavits being concocted and prepared at some unknown date
could not be ruled out ---None of the witnesses had mentio ned the names of those persons
who allegedly committed any illegal act or corrupt practice ---Nothing was on record that any
person was deprived of casting his vote or bogus votes were cast ---Mere words of petitioner
were not sufficient to unseat a returned candidate and disenfranchise the entire constituency --
-Election of returned candidate could not be declared void on the basis of sketchy, scanty and
weak piece of evidence---Petitioner had failed to plead full particulars of illegal acts or
corrupt practi ces nor he could prove whatever was alleged by him was done with the consent
and connivance of returned candidate or his election agent ---Civil servants and their spouses
were required to apply by post to the Returning Officers of the concerned constituenc y on
prescribed forms with envelopes addressed to them for supply of postal ballot papers ---None
of the witnesses contacted personally the concerned Returning Officer for issuance of postal ballot papers and all the applications for supply of the same were allegedly handed over to
one and same person--- Nothing was on record that any application for issuance of postal
ballot paper was handed over or posted with envelops to the Returning Officer ---Election of
returned candidate was not to be declared void if any corrupt or illegal practice was not committed by or with the consent or connivance of said candidate or his election agent ---
Returned candidate had no concern with the issuance of postal ballot papers to the civil servants rather civil servants were required to approach the concerned Returning Officer for issuance of ballot papers within stipulated period in accordance with law and rules thereunder ---Petitioner had failed to establish the allegation of corrupt and illegal acts as well
as non -issuance of postal ballot papers ---Election petition was dismissed, in circumstances.
Nadir Ali Chalragi, Changaiz Baloch for Petitioner.
Amanullah Kanrani and Khursheed Anwar Khoso for Respondent No.1.
Muhammad Rafique Langov for Respondents.
Date of hearing: 7 th December, 2018.
JUDGMENT
JUSTICE MUHAMMAD HASHIM KHAN KAKAR, MEMBER---Haji
Muhammad Hassan, the petitioner herein, through this petition under section 139 of the
Elections Act, 2017 (the "Act of 2017") calls in question the validity of the election of PB -1
Musakhail -cum-Sherani after losing the same.
2. The facts in brief giving rise to this petition are that the petitioner, Haji Muhammad
Hassan, respondent, No. 1 Babar Khan Musakhail and respondents Nos.2 to 14 contested the general election to the sea t of Provincial Assembly PB -1 Musakhail -Cum -Sherani. The
petitioner has secured 12214 votes; whereas, the respondent No.1 has obtained 12287 votes. The rest of the respondents, however, secured insignificant number of votes. The respondent No.1 having been polled the highest number of votes among the contesting candidates was
declared returned candidate from the said constituency.
3. The petitioner being aggrieved, filed the instant appeal before this Tribunal,
challenging the election of the respondent No. 1 mainly on the following grounds:
(1) At Polling Stations Nos. 18, 29, 30, 31, 41, 42, 44, 45, 46, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80 and 81, the polling agents of the petitioner were detained and not allowed to enter the said polling stations and in their absence with connivance of polling staff
the whole process was taken over by the workers of respondent No.1 and bogus votes were cast by impersonating the voters.
(2) The Returning Officer did not issue postal ballot papers to electors of the constit uency
and thereby deprived about 3300 voters to exercise their right of franchise.
(3) Though the Presiding Officers were required to count the votes immediately after close of the poll in presence of the contesting candidates or their polling agents but initially they delayed the counting with mala fide intention as systematic rigging was
being planned in the whole of the country and then with the help of security officials prepared the result behind the back of candidates and their polling agents.
4. In pursuance of the notice, the returned candidate appeared and filed reply to the
petition and out of the divergent pleadings of the parties, following issues were framed:
"i. Whether the respondent No.1 has committed illegal and corrupt practices on the day
of polling i.e. 25- 07-2018, if so, to what extent? OPP.
ii. Whether the Returning Officer despite approaching has failed to issue postal ballots
papers to 3300 civil servants?
iii. Whether the petitioner is entitled for the relief claimed for?
iv. Relief ?"
5. The petitioner besides recording his own statement, also produced and examined as
many as 13 witnesses and also placed on record number of documents regarding appointments of polling staff and applications moved for the purpose of issuance of postal ballots, whereas, the respondent did not produce and examine any witness and only recorded his own statement.
6. Mr. Nadir Ali Chalgari, learned counsel for the petitioner, contended that it has been
established through the evidence that a number of applic ations were received by the
Returning Officer from the electors for issuance of postal ballot papers but he did not issue the same despite the fact that he was under legal obligation to do so. He further contended that there are sufficient instances of ill egal and corrupt practices cited in the election petition
as well as in affidavit- in-evidence of the petitioner, as such, the election of the returned
candidate is liable to be declared void by setting aside the Notification dated 7th August, 2018.
7. On t he contrary, Mr. Amanullah Kanrani, learned counsel for the respondent No.1,
contended that the election petition contained only general and vague allegations and did not conform to the requirements of law as contemplated under section 144 of the Act of 2017. It was submitted that there were specific instructions issued by the Election Commission to the Returning Officers not to issue postal ballot papers except on the prescribed application
forms provided by the Election Commission. The Returning Officer w as, therefore, not
obliged to issue postal ballot papers to the electors on simple applications that too to one and the same person i.e. one Wali Khan, who claimed to be the representative of about 3300 civil servants.
8. I have heard learned counsel for t he parties and also perused the available record with
their valuable assistance. At the very outset, it would be relevant to mention here that subsection (1) (b) to section 144 of the Act of 2017, deals with mode of disclosures in the election petition about the material facts including full particulars of any corrupt and illegal practice or illegal acts. Section 156 of the Act, 2017 empowers the Election Tribunal to declare the election of the returned candidate to be void on any of the four grounds as mention in sub -clauses (a) to (d). Sub -clause (d) to section 156 (1) again deals with the
question of corrupt or illegal practice. A Tribunal is competent to declare election to be void if it is satisfied that any corrupt or illegal practice was committed either by the returned candidate or his election agent. This is further clarified in subsection (3)(a) of section 156 which provides that the election of a returned candidate shall not be declared void if the Tribunal is satisfied that any alleged corrupt or illegal practice was not committed with the consent or connivance of the returned candidate or his election agent and that such candidate and his election agent took all reasonable precautions to prevent its commission.
9. Similarly, in the election disput es, it is settled that the burden to prove illegal and
corrupt practices lies heavily on the petitioner and that the allegations of corrupt practices
and illegal acts must be proved with such standard as is required for proving a charge in criminal trial. It is further settled that in a case of doubt arising out of the material placed before the Election Tribunal, it must go to the returned candidate. In the instant case, there
are several allegations, which may fall within the definition of corrupt and ill egal practices
with in the purview of section 167 of the Act, 2017 but the allegations made in the petition as
well as in the affidavits -in-evidence are not supported by the facts on the face of the record.
The affidavits although attested by one Abdul Wahab, Oath Commissioner, yet do not bear any date of attestation and date when the same were reduced into writing. The possibility of the affidavits referred to above being concocted and prepared at some later unknown date cannot be ruled out. None of the wi tness has mentioned the names of those persons, who
allegedly committed any illegal act or corrupt practice. Not a single witness was produced or examined by the petitioner to show that either such person was deprived of casting his vote or bogus votes wer e cast in his presence. Mere words of petitioner are not sufficient to unseat
a return candidate and disenfranchise the entire constituency. The criteria of evidence in this respect should be strictly in compliance of the provisions of section 144 of the A ct of 2017.
On the basis of such sketchy, scanty and weak pieces of evidence, the election of a returned candidate cannot be declared void. From perusal of available evidence, it can easily be held that neither petitioner was able to give full particulars of the illegal acts or corrupt practices
nor was able to prove whatever was alleged by him the same was done with the consent and connivance of the returned candidate or his election agent.
10. The petitioner has mainly challenged the election of responden t on the ground that
Returning Officer did not issue postal ballot papers to a number of electors and thereby deprived about 3300 civil servants, belonging to District Sherani, to exercise their right of
franchise. In this regard the petitioner has also pr oduced and examined PW -1 Wali Khan,
PW-2 Sultan Shah, PW -3 Habib -ur-Rehman, PW -4 Raz Muhammad, PW -5 Akhtar Shah,
PW-6 Lal Muhammad, PW -7 Azal Khan, PW -8 Fazal Din, PW -9 Muhammad Saddique, PW -
10 Abdul Qayum and PW -11 Nadir Shah, who claimed that despite the ir approach, the
Returning Officer did not issue the postal ballot papers.
11. Before dilating upon the said contention, it would be relevant and advantageous to
reproduce the relevant provision i.e. section 93 of the Act of 2017 and directions, issued by the Election Commission of Pakistan, in respect of postal ballot papers, which read as under:
"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 Program; 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 in 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 Returning Officer in the envelope sent to him under subsection (3), so as to reach the Returning Officer before the consolidation of results by him."
Similarly, in pursuance of clause (a) of subsection (2) of section 93, the Commission
has issued the following direction:
"(a) The elector, who is entitled to cast his vote by postal ballot, will apply for a
postal ballot paper to the Re turning Officer of his constituency within such time as
may be specified by the Election Commission. The Election Commission has fixed 5th July, 2018 as last date for sending the applications for postal ballot. However, for the polling staff and the police personnel deputed for polling duty, the last date for
sending the applications will be 10th July, 2018."
12. A combined study of the above mentioned provisions of law and directions issued by
the Commission would show and suggest that all the Government S ervants, members of the
Armed Forces, holders of any public office and their spouses were required to apply by post to the Returning Officer of the concerned constituency on prescribed forms with envelopes addressed to themselves for supply of postal ballot papers before 5th July or in case of polling staff before 10th July, 2018 and the Returning Officer was bound to return the ballot papers, duly marked by post.
13. After going through the evidence available on record, I am forced by the
circumstances of the case to hold that the claim of the petitioner and his witnesses regarding non- issuance of postal ballot papers by the concerned Returning Officer is not only a tall
claim but tall enough that it cannot be accepted without a lump of salt for the followi ng
reasons:
i. The affidavits -in-evidence, produced by the petitioner as well as his witnesses do not
bear the date of attestation made by the Oath Commissioner as well as the date of
writing;
ii. Admittedly, none of the witness contacted personally the concerned Returning Officer for issuance of postal ballot papers and all the applications for supply of postal ballot were allegedly handed over to one and the same person i.e. Wali Khan on 9th July 2018 and there is no evidence to show that the same were ha nded over or posted with
envelopes to the Returning Officer;
iii. The affidavits -in-evidence, produced by the petitioner and his witnesses are
stereotype and identical in all respects and are verbatim copies of each other;
iv. The affidavits are attested and verified by one and the same person in the office of petitioner's lawyer on the same date and time;
v. All the typed affidavits -in-evidence purported blank columns regarding name,
parentage, residence and designations of civil servants, filled in subseq uently by one
and the same person in the office of petitioner's lawyer;
vi. Admittedly, all the stamp papers of affidavits -in-evidence have been purchased by
one and same person i.e. Nawaz Khan (not produced), who happened to be relative and supporter of petitioner, as such, the possibility of securing, preparing false, baseless and concocted affidavits by Wali Khan and Nawaz Khan on behalf of petitioner, just to create a ground for unseating the returned candidate cannot be ruled out;
vii. No evidence has been produced to show that the applications allegedly moved by the
civil servants were received by the Returning Officer within the stipulated period i.e.
till 20th July, 2018.
viii. It is the claim of petitioner that the applications for supply of postal ballot were
handed over to one Bilal Ahmed who happened to be Junior Clerk in the court of Judicial Magistrate/Returning Officer BP -1 Musakhail -cum-Sherani but he has not
been produced and examined to substantiate the claim of petitioner and his witnesses;
ix. PW-12, Muhammad Ibrahim, Judicial Magistrate/Returning Officer BP -1 Muskhail -
cum-Sherani appeared and categorically admitted that he had not received
applications for supply of postal ballot papers;
x. Allegations for non -issuance of postal ballots pa per have been levelled against the
Returning Officer, but surprisingly neither he has been produced and examined nor any request was made for calling him as a Court witness to substantiate the allegations;
xi. The witnesses have admitted during the course of their cross -examination that neither
they had sent applications by post to the Returning Officer for supply of postal ballots nor personally visited his office for the needful;
xii. PW-1 Wali Khan, who claimed to be the representative of civil se rvants belonging to
District Sherani stated the formats of about 700 affidavits were prepared by counsel of the petitioner and the witnesses only filled the blank columns in respect of names, parentage and CNICs; and
xiii. Admittedly, the petitioner as well as respondent contested the election in question on
the tickets of JUI and PTI. Though the civil servants, who had allegedly deprived of their rights of franchise belong to District Sherani but it cannot be presumed that they were supposed to cast their votes in favour of petitioner, as the petitioner and respondent have secured a number of votes from both components of the constituency i.e. Districts Musakhail and Sherani.
14. Admittedly, prior to 25th July, 2018 neither the respondent was holding a pub lic
office nor was part and parcel of the care- taker Government. He was also not committed in
any manner with the affairs of the Commission or District Administration. Like, petitioner, he also participated in the general elections and was declared elected due to securing highest
number of votes and by no stretch of imagination can be declared responsible for commission or omission of the part of election staff or Commission. It is also worth mentioning that it is provided under section 156 (3)(a) of the Ac t, 2017 that the election of
returned candidate shall not declared void, if any corrupt or illegal practice has been committed but the Tribunal is satisfied that it was not committed by or with the consent or the connivance of the candidate or his election agent and that the candidate and election
agent took all reasonable precaution to prevent its commission. Admittedly, the returned
candidate was not concerned in any manner with the issuance of postal ballot to the civil
servants, rather the civil servant s were required to approach the concerned Returning Officer
for issuance of postal ballots within stipulated period in accordance with the provisions of the Act of 2017 and the rules made thereunder.
15. It would also be pertinent to mention here that duri ng the pendency of the instant
petition, C.M.A. No.1398 of 2018 for re -counting of postal ballot papers was moved. Calling
of postal ballots for the purpose of re -counting would serve no fruitful purpose for the reason
that no witness in the regard has bee n produced and examined by the petitioner, rather it is
the case of petitioner that postal ballots were not issued to the civil servants belonging to District Sherani. Needless to observe that for the purpose of re -counting, the petitioner was
required to establish a prima facie case but he failed to do so.
For the aforesaid discussion, the petitioner has failed to establish the allegation of
corrupt and illegal acts as well non -issuance of postal ballot papers, as such, the petition as
well as CMA No. 139 8 of 2018 being without merit are dismissed, with no order as to costs.
ZC/11/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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