2011 M L D 1239
[Election Tribunal Balochistan]
Before Muhammad Noor Meskanzai, J
Agha PARI GUL SYEDA ---Petitioner
Versus
KALSOOM PARVEEN and 11 others ---Respondents
Senate Election Petition No.1 of 2009, decided on 31st December, 2010.
(a) Senate (Election) Act (LI of 1975) ---
----S.32 ---Election petition ---Recounting of votes, prayer for ---Petitioner's request for
recounting of votes already turn ed down by Returning Officer ---Validity ---Turning down
of such request by itself could not create a bar for maintaining election petition.
(b) Pleadings ---
----Every fact alleged by a party would be legally required to be proved by production of
solid evidence.
Muhammad Riaz Ahmed for Petitioner.
Kamran Murtaza for Respondent No.1.
Date of hearing: 14th December, 2010.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Through this judgment, I propose to decide
Election Petition No.1 of 2009 filed by pe titioner. The petitioner has called in question
the candidature of the respondent No.1 as returned candidate on the seat reserved for
women (Senate).
2. The facts, in brief, are that the election for the seat reserved for women (Senate)
from the Province o f Balochistan was held on 4th March, 2009. The petitioner contested
the said election on the ticket of PML (Q). The respondents Nos.1 to 11 also contested the
election for the seats reserved for women. Out of the total MPAs i.e. 65, 63 MPAs
participated to cast their vote. It is further averred in the petition that at the time of close
of the poll and on counting of the votes by the Returning Officer/Provincial Election
Commissioner, Balochistan, Quetta, number of votes which were polled in favour of the
petitioner, were counted in favour of Mst. Kalsoom Parveen (respondent No.1). The
petitioner objected to the same, but the Returning Officer did not accede to her objection.
The petitioner, in her petition further alleged as follows: --
(i) The each voter h as not cast one transferable vote but more than two votes, which
is violation of the Election Laws.
(ii) The polling has not been conducted by secret ballot.
(iii) Returning Officer has not counted votes in the prescribed manner as contemplated
under the E lection Laws.
(iv) The Election of the Returned Candidate has been procured and induced by corrupt
and illegal practice.
(v) The corrupt and illegal practice has been committed by the Returned Candidate
along with Returning Officer with the connivance of r espondent No.1 and the
election staff.
(vi) Extensive, corrupt and illegal practice has been committed by the returned
candidate with the connivance of Returning Officer and election staff.
3. The petitioner stated that the Presiding Officer without counti ng the votes in
presence of the petitioner announced that Pari Gul Agha has been succeeded as Returned
Candidate. The petitioner requested the Returning Officer to show the votes counted in
favour of respondent No.1 in presence of the voters but the Return ing Officer refused to
do so. Under such circumstances the petitioner went to the office of the Returning
Officer, where she raised hue and cry that the proceedings in counting of the votes and
declaring the respondent No.1 (Kalsoom Parveen) as returned ca ndidate was/is highly
illegal, unlawful caused grave miscarriage of justice by depriving the petitioner of her
legal and lawful rights. Thereafter the petitioner filed election appeal before the Chief
Election Commissioner Pakistan under section 32 of the Senate (Election) Act, 1975
which was dismissed with the observation that the appellant may file election petition.
Thereafter the notification for successful Returned Candidate i.e. the respondent No.1 was
also notified. The petitioner averred in her peti tion that the respondent No.1 with the
connivance of Returning Officer, arranged and procured votes in her favour by corrupt
and illegal practice. The petitioner objected on the illegal practice of the Returning
Officer, but she was thrown out of the offic e by the Returning Officer. Hence this
petition.
4. The respondent No.1, while filing written statement raised the following legal
objections: --
(A) That the petition has been filed on imaginary grounds, as such, not maintainable.
(B) That the petition is hit by section 32(6) of Senate (Election) Act, 1975, as such,
liable to be rejected.
(C) That the petition suffers from misjoinder of parties in violation of section 35 of
Senate (Election) Act 1975, as such, liable to be amended.
On merit also the claim of petitioner was denied by respondent No.1.
5. After filing of written statement following issues were framed on 3 -7-2009: --
(1) Whether the petition is not maintainable under section 32(6) of the Senate
(Election) Act, 1975 in view of preliminary objecti on 'B' of the written statement?
(2) Whether the polling has not been conducted by secret ballot, if so, to what effect?
(3) Whether election of respondent No.1 was result of corrupt and illegal practice?
(4) Whether the votes were not counted by the Retur ning Officer in accordance with
law and rules?
(5) Whether petitioner is entitled to the relief claimed for?
(6) Relief?
6. After framing of the issues, a request for disposal of legal issues was made. The
request for the disposal of legal issue first was turned down.
7. Prior to embarking upon the facts and evidence, it would be proper to dilate
upon the Civil Miscellaneous Application dated 1 -10-2010 filed by the learned
counsel for the petitioner for summoning the witness Sona Khan Returning O fficer. It is
important to note that P.W.3 was produced on 15 -1-2010. Thereafter, after a couple of
hearings petitioner got recorded her statement on 6 -4-2010, i.e. almost after three months,
in the intervening period no P.Ws. could be produced by the peti tioner. On 1 -10-2010 the
petitioner moved an application for summoning the witness namely Sona Khan along with
the record. The application was contested by the respondent No.1. I have given my
anxious considerations to the submissions made by the learned c ounsel and have perused
the record. The name of Sona Khan does not appear in the list of witnesses, the last
P.W. i.e. P.W.3 was examined on 15 -1-2010. Petitioner has filed the instant petition in
year 2009. No explanation for such delay has been offered. In my considered opinion the
application is just an attempt to cause delay and further linger on the case. Application
smacks mala fide, and lacks substance, as such is dismissed.
Petitioner in order to prove her case examined three witnesses i .e. P.W.1
Muhammad Nawaz Qazi, P.W.2 Sadia wife of Abdullah, P.W.3 Noor Jahan Panezai and
also recorded her own statement. Respondent did not adduce any witness in her defence,
however, recorded her own statement. After recording the statements of parties the
arguments of learned counsel for the parties were heard.
9. Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner submitted that the
election in question were not conducted in fair and transparent manner. The votes of
petitioner were counted for respondent, after the counting process initially the Returning
Officer declared the petitioner as Returned Candidate, but thereafter suddenly the
respondent No.1 was declared as Returned Candidate. The moment petitioner was
declared successful, respondent No.1 contacted to the Returning Officer on mobile phone
and she was asked to remain calm and satisfied. After negotiation with respondent No.1,
the respondent No.12 changed the result. The corrupt and illegal practice in the process of
election was committ ed by the Returning Officer with connivance of respondent No.1,
therefore, the election is liable to be declared void and the notification be cancelled.
10. Mr. Kamran Murtaza, learned counsel for respondent No.1 vehemently opposed
the arguments so advance d by the learned counsel for petitioner. It was contended that
petitioner has failed to produce any evidence in support of her petition. The statements of
P.Ws. are contradictory to each other. The learned counsel requested for dismissal of
petition.
11. In the light of evidence of the parties I propose to decide the issues: --
Issue No.1.
Whether the petition is not maintainable under section 32 (6) of the Senate
(Election) Act, 1975 in view of preliminary objection 'B' of the written statement?
The lea rned counsel for respondent No.1 did not address arguments on this issue,
even otherwise the request for recounting of votes if turned down, that by itself cannot
create a bar for maintaining election petition. So issue No.1 is resolved in favour of
petiti oner and against the respondents.
Issue No.2.
Whether the polling has not been conducted by secret ballot, if so, to what effect?
As far as issue No.2 is concerned, the P.Ws. produced by the petitioner are
absolutely silent. All the three P.Ws. have fil ed their affidavits. The perusal of affidavits
reflect that there is not an iota of statement to such effect. Legally every fact alleged by a
party is required to be proved by production of solid evidence, but petitioner has failed to
produce evidence to p rove this issue. Therefore, Issue No.2 is resolved in negative.
Issue No.3 .
Whether election of respondent No.1 was result of corrupt and illegal practice?
The evidence produced by the petitioner is silent in this connection. This issue is
factual as we ll as legal. As far as factual respect is concerned, the P.Ws. produced by the
petitioner has not proved the allegation. The P.Ws. have stated that election was over.
Counting started and petitioner was declared Returned Candidate and thereafter
respondent No.1 was declared as Returned Candidate. P.Ws. further stated that after
declaring the petitioner as Returned Candidate the respondent No.1 contacted to the
Returning Officer and she was assured of her success. The cross reflects that the story
narrated by the P.Ws. is self -contradictory; for instance P.W.3. in reply to questions
stated that I did not see Sono Khan to attend a call on account of rush of persons, as he
was invisible. It is correct to suggest that till the counting of last vote no one can s ay with
certainty who is going to win. It is correct to suggest that when Agha Pari Gul Syeda was
congratulated by the persons present there, by that time, total votes were not counted . It
is correct to suggest that when the whole counting was concluded t hen the Returning
Officer declared Kalsoom Parween as returned candidate. The statement of P.W.3 is quite
important because she was contesting the election of Senate. So under such circumstances
the factual aspect of issue could not be established by the p etitioner. As far as the legal
aspect of issue is concerned, the pre request for nullification of an election on such
ground is that the corrupt and illegal practice must have been committed by the official
respondent or Presiding/Returning Officer with th e connivance of returned candidate. All
the P.Ws. produced by the petitioner has not uttered a single word nor there is a sentence
to this effect that corrupt and illegal practice, if any, has been committed by respondent
No.12 with the connivance of respo ndent No.1. The law lays much emphasis in this
regard. For ready reference section 49 subsection (2) of Senate (Election) Act, 1975 is
reproduced hereunder: --
"(2) The election of a returned candidate shall not be declared void on the ground -
(a) that any corrupt or illegal practice has been committed if the Tribunal is
satisfied that it was not committed by, or with the consent or connivance of that
candidate and that the candidate took all reasonable precaution to prevent its
commission; or
(b) that any of the other contesting candidate was, on the nomination day, not
qualified for, or was disqualified from, being elected as a member"
Keeping in view the nature of statement of P.Ws. and the legal requirement Issue
No.3 could not be proved as su ch is resolved in negative.
Issue No.4.
Whether the votes were not counted by the Returning Officer in accordance with
law and rules?
As far as issue No.4 is concerned, the statements of P.Ws. do not state that how
and which law was violated, what irreg ularity was committed by the Returning Officer.
Even all the P.Ws. do not know the manner of counting the vote for Senate Election, nor
the petitioner herself is well familiar with the procedure and method of counting the
votes. Even in this regard the con tents of petition are self destructive for instance in Para
No.5 petitioner claims that "on counting of the votes by the Returning Officer/Provincial
Election Commissioner, Balochistan, Quetta, number of votes, which were polled in
favour of the petitione r were counted in favour of another candidate namely Mst.
Kalsoom Parveen (Respondent No.1." Whereas in Para No.6 factually it is Para No.7,
which is reproduced herein under: --
That on the close of the Polling and without counting the votes in presence o f the
petitioner, the Returning Officer announced that Pari Gul Agha has been
succeeded as Returned Candidate from a women reserved seat, thereafter, the
respondent No.1 slipped from the Polling place and came out of the building. She
contacted on mobile phone with the Returning Officer, as to what happened then
the Returning Officer told her; you should not bother about, result will be in your
favour."
So the petitioner failed to prove this issue as well, hence issue No.4 is also resolved in
negative.
Issues Nos. 5 and 6
Whether petitioner is entitled to the relief claimed for?
Relief?
Issues Nos.5 and 6 are similar in nature and to the same effect, hence, are disposed
of jointly. Since all the material issues have been decided against the petitioner, therefore,
both the Issues Nos.5 and 6 are also decided in negative by holding that the petitioner is
not entitled to the relief prayed for.
12. In the light of above discussion, petitioner has not been able to prove her case,
therefore, petition is dismi ssed. Parties to bear their own costs.
S.A.K./33/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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