2011 M L D 1322
[Election Tribunal Ba lochistan]
Before Muhammad Noor Meskanzai, J
Mir ATTAULLAH KHAN DULEDI ---Petitioner
Versus
RUSTAM KHAN JAMALI and 7 others ---Respondents
Election Petition No.7 of 2008, decided on 11th January, 2010.
(a) Representation of the People Act (LXXXV of 1976) ---
----Ss.52 & 75 ---Election petition ---Death of respondent/returned candidate ---Effect --
Election petition would not abate, rather same would require disposal by Tribunal by
initiating ex parte proceedings ---Illustration.
1990 MLD 224; 199 9 CLC 1026 and 1999 CLC 2030 ref.
1991 MLD 589 rel.
(b) Interpretation of statutes ---
----Provision of a statute, though not happily worded, but being an existing law would
require to be implemented and acted upon.
(c) Representation of the People Act (LXXXV of 1976) ---
----Ss.103 -B & 108 ---Death of any contesting candidate before day of polling ---Effect ---
Election of such constituency would stand postponed.
Date of hearing: 9th December, 2009.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---In the instant Election Petition, following
relief has been claimed: --
"It is accordingly respectfully prayed that record from all the (90) Polling Stations
may kindly be called for and after examining and recounting; the election of the
respondent No.1 be declared as void instead the petitioner be declared as duly
elected member of the Provincial Assembly from Constituency PB -25-Jaffarabad -I
or in the alternative;
OR
to declare the election of the Polling Stations mentioned in Paragraph No.1 as void
and re- polling be directed;
OR
to pass any other relief as is deemed fit and proper in the circumstances of the case
be also granted in favour of the petitioner, in the interest of justice."
2. The facts of the petition, in brief, are that the petitioner c ontested Election of
Provincial Assembly from PB -25-Jaffarabad -1 in General Elections held on 18th
February, 2008 on the ticket of Pakistan Peoples Party (Parliamentarian) and secured
12805 votes, whereas the respondent No.1 Rustam Khan Jamali son of Sarda r Yar
Muhammad Jamali, caste Jamali, resident of Bakhara Usta Muhammad (now deceased)
obtained 15245 votes, as such; he was declared returned candidate.
3. Petitioner stated that respondent No.1 was illegally declared as a Returned
Candidate from PB -25 Jaf farabad -1 by way of leading of 2440 votes as per Election
Commission of Pakistan. It is stated by petitioner that total number of registered votes in
PB-25 Jaffarabad -1 were 140857, 90 Polling Stations were made, out of which in ten
Polling Stations, respo ndent No.1 has rigged the election by way of casting bogus votes in
absence of the Polling Agents of the petitioner. Details whereof are given in Para No.1
page No.2 of the petition. It is case of petitioner that from following Polling Stations,
agents of petitioner were abducted/ illegally detained by concerned police authorities: --
P.S. 32 HIGH SCHOOL RUSTAM KHAN JAMLI.
P.S. 73 MIDDLE SCHOOL MUHAMMAD HASSAN JAMALI.
P.S. 75 -74 GIRLS PRIMARY SCHOOL CHOWKI JAMALI (MALE -FEMALE)
P.S 60 PRIMARY SCHOOL WALI MUHAMMAD JAMALI.
P.S. 64 PRIMARY SCHOOL SOOBAHWAH.
P.S. 57 PRIMARY SCHOOL AITEBAR JAMALI.
P.S. 85 PRIMARY SCHOOL GOTH ABDUL REHMAN.
P.S. 33 PRIMARY SCHOOL ALLAHABAD.
P.S. 67 PRIMARY SCHOOL FAIQ ALI JAMALI.
4. That therefore; on account of above stated rigging and in consequence of illegal
and corrupt practice of respondent No.1 with the active (sic) has committed illegal and
corrupt practice by way of creating harassment and casting bogus votes, but no action was
taken. It is submitted by the petitione r that an application under section 103 -AA of the
Representation of the Peoples Act, 1976 was submitted to the Election Commission of
Pakistan, but the said application was turned down. It is further case of petitioner that
discrepancies in the statement o f count prepared by the Presiding Officers and votes
actually counted in favour of respondent No.1 as per count of the petitioner, the
respondent No.1 has obtained 15143 votes while in consolidated results, the Presiding
Officer in the Form -XVI has shown t he votes of respondent No.1 15245, which also
suggest that the result has been made in a haphazard manner without giving proper
attention in accordance with the rules framed under the law.
5. Petitioner further averred in the petition that the voters were restrained from
casting votes by creating terror and harassment. For the sake of convenience, Para No.7
of the petition is reproduced herein -below: --
(7) That without prejudice to the above even otherwise, in Polling Station No. 6, the
petitioner voters were restrained not to caste their votes. It is fact that the
majority of the peoples of that area belong to supporters of Pakistan Peoples
Party (Parliamentarian). More so from the perusal of the consolidated results it is
clear that in the Poll ing station the turn out of the voters were very low because of
the fact that the petitioner's voters and supporters are there and the respondent
No.1 being highly influential person has harassed the voters by way of creating
terror and law and order situa tion in the area, therefore; the peoples of the area
were restrained from casting their votes even though the above mentioned Polling
stations are thickly populated areas. So it is apparent from the turn out that the
respondent No.1 has created terror, law and order situation in the area and the
peoples were restrained, harassed and stopped to come out from their houses to
cast votes in favour of the Petitioner."
The respondent No.1 contested the petition by way of filing written statement. Out
of the plea dings of the parties, following issues were framed: --
(1) Whether respondent No.1 has committed such acts and rigged the polling in the
polling station specified in para number 1 of the petition?
(2) Whether respondent No.1 with the active connivance with Election authorities
have committed illegal and corrupt practice as alleged in para No.2 of the petition,
if so, to what effect?
(3) Whether the petition does not fall within the ambit of section 52 of the
Representation of Peoples Act, 1976 as alleged by respondent?
(4) Whether the respondent No.1 has rigged polls, if, to what effect?
(5) What should be the relief in the circumstances of the case?
Thereafter petitioner in order to prove his case, produced as many as 15 P.Ws.
Except P.W.1, P.W.2 and P.W.9, rest of the other P.Ws. while recording their statements
also filed their affidavits, whereas P.W.9 produced F.I.R. No.14 of 2008 registered with
City Police Station, Usta Muhammad on 18th February, 2008.
On 16th October, 2009 when the case was called f or hearing, the learned
Advocate -General pointed out that respondent No.1 Rustam Khan Jamali has been
assassinated at Karachi, therefore; petition has become infructuous, however; in the
interest of justice an opportunity was afforded to the counsel for pe titioner, as on that date
counsel for petitioner was on general adjournment. On 23rd October, 2009 learned
counsel for respondent No.8 Mr. H. Shakil Ahmed, Advocate filed Civil Miscellaneous
Application No.1657 of 2009, wherein; request was made for dismis sal of petition, as the
same has become infructuous on the ground of death of respondent No.1 (returned
candidate). Another Civil Miscellaneous Application No. 1656 of 2009 was filed by Mr.
H. Shakil Ahmed, Advocate stating therein that respondent No.1 had died on 6th August,
2009, therefore; the petition stands abated and since the seat is fallen vacant, as such; the
same is liable to be declared as vacant and the Election Commission of Pakistan may be
directed to hold Bi -Election. Rejoinder to application was filed by petitioners, wherein;
except the death of respondent No.1, request for Bye Election was refuted.
Learned counsel for petitioner Mr. Muhammad Riaz Ahmed, Advocate submitted
as under: --
(i) That on the basis of available record and in view of statements of 15 P.Ws., the
petitioner has succeeded to make out a case for being declared as returned
candidate, as the success of returned candidate i.e. Rustam Khan Jamali
(respondent No.1 now deceased) was result of commission of corrupt and illegal
practice.
(ii) He further maintained that initially the record of ten polling stations was called
and subsequently the records of 90 polling stations were requisitioned, but
recounting could not be affected on account of stay order issued by the High
Court. The learned counsel was of the view that on 22nd June, 2009, petition filed
by respondent No.1 was disposed of from High Court, therefore; in view of the
orders passed by this Tribunal either recounting of 90 polling stations be carried
out, or minimumly recounting in ten Polling Stations as referred to in Para No.2
of the petition may be ordered.
(iii) The learned counsel stressed that section 75 of the Act, 1976 is clear on the
subject that notwithstanding the death of respondent No.1, neither petition a bates
nor even withdrawal by all contesting respondents; constitute a ground for
dismissal of petition, so according to learned counsel there are sufficient material
available on record to justify the petition to be decided on merits. Finally the
learned c ounsel relied upon the judgment reported in 1991 MLD Page 589.
Learned counsel for respondent No.8 in reply to arguments contended that
respondent No.8 is not contesting the petition; rather he is pressing the application under
section 75 of the Act, 1976 and on the basis of that application, he sought dismissal of
petition on account of death of respondent No.1, as it has become infructuous, therefore;
same may be declared infructuous and Election Commission of Pakistan be directed to
hold Bye -Election fo r the said Constitutency. He relied upon following authorities: --
1990 MLD page 224.
1999 CLC page 1026.
1999 CLC page 2030.
I have considered the contentions so put forth by the learned counsel for the parties
and have perused the record minutely. Sinc e learned counsel (sic) has not contested the
petition but has (sic) to dispose of this application first. Perusal of section 75 of
Representation of Peoples Act, 1976 makes it abundantly clear that irrespective of death
or withdrawal of all contesting can didates the petition is not supposed to abate but
requires disposal by the Tribunal by initiating ex parte proceedings. In such view of the
matter the request of respondent No.8 is directly in conflict with clear language, theme
and object of section 75 of Representation of Peoples Act, 1976. Learned counsel for
respondent No.8 was not able to satisfy the conscious of tribunal that on account of mere
death of respondent No.1 petition is liable to be dismissed. To the contrary the contention
of the learned c ounsel for the petitioner has got sufficient force. For ready reference
section 75 of the Act is reproduced herein below: --
"75. Death or withdrawal of respondent .---If, before, the conclusion of the trial of
an election petition, a respondent dies or giv es notice in the prescribed form that
he does not intend to contest the petition, and no respondent remains to contest the
petition, the Tribunal shall, without any further hearing, or after giving such
person as it may think fit an opportunity of being he ard, decide the case ex parte."
Perusal of section 75 of Representation of Peoples Act, 1976 reveals that
notwithstanding the death of respondent neither petition abates nor even withdrawal by all
contesting candidates constitutes ground for dismissal of petition though it is not happily
worded and perhaps is a departure from normal course yet is an existing law, hence
requires to be implemented and acted upon, therefore, I am of the clear opinion that
petition filed by petitioner does not abate on account of death of respondent No.1. As
observed earlier that in view of unequalical language of section 75 of the Representation
of Peoples Act, 1976 C.M.A. No.1657 of 2009 is not found to be maintainable as such is
dismissed. Reliance is placed on 1991 MLD page 589.
Petitioner filed Civil Miscellaneous Application No.1982 of 2009 under section 64
of the Representation of the Peoples Act, 1976 praying therein that statement of petitioner
is already on record and he be put to cross -examination by the other side, as such;
arguments on the said application and on the petition were heard. Request for cross -
examination of petitioner carries no substance in it, as the respondents have been
proceeded against ex parte. The statement of petitioner even if looked into and taken into
consideration, but it cannot be appreciated and examined in isolation to the rest of the
material available on record. Perusal of the statements available on record do not suggests
even drawing of inference that any corrupt and illegal practice during the course of
election, if at all committed, the same has been committed with connivance, consent or
instance of returned candidate or his election agents, the petitioner has failed to
substantiate this allegation by production of positive evidence. The law on subject is quite
clear if the tribunal is satisfied " section 68(2)(a) that any corrupt or illegal practice has
been committed, if the Tribunal is satisfied that is was not committed by, or with the
consent or connivance of that candidate or his election agent and that the candidate and
the election agent took all reasonable precaution to prevent its commission; or", therefore,
on this ground election so conducted could not be declared to be void or illegal.
Consequently C.M.A. No.1982 of 2009 is dismissed.
After dismissal of both the applications, now the main question that requires
attention i.e. as to whether on account of death of respondent No.1 if petition does not
abate then whether petitioner can be declared as returned candidate? Perusa l of section 75
of Representation of Peoples Act, 1976 divulges that no doubt withdrawal of all
contesting candidates or death of any of them will be immaterial and the Tribunal has to
proceed with the matter ex parte. Respondent No.1 (return candidate) ha s been expired
and rest of the respondents Nos.2 to 7 has also been proceeded against ex parte.
Respondent No.8 though present but is not contesting the petition on merits, he has
restricted his arguments and confined his interest to the extent of C.M.A. N o.1657 of
2009, which has been dismissed. So now I propose to decide the case on merits at the
strength of available material.
Issues Nos.1, 2 and 4 are inter related, therefore, same are being decided jointly.
Petitioner has produced 15 witnesses and whi le filing petition, have filed the affidavits of
8 polling agents. The contents of affidavits if taken into consideration and treated to be
true, even then the issues cannot be proved because there is no statement that the alleged
illegal and corrupt pract ice has been committed with connivance, consent or at the
instance of respondent No.1. All the 8 affidavits annexed with the petition are absolutely
silent so I have no hesitation in holding that the petitioner has utterly failed to discharge
onus of Issue Nos.1, 2 and 4, therefore, same are answered in negative.
As far as Issue No.3 is concerned since no arguments ware addressed on this issue,
perhaps parties have waived the issue by their conduct, therefore, it is dropped.
As far as issue No.5 is concer ned though petitioner has failed to prove that any
illegal and corrupt practice has been committed with connivance, consent or at the
instance of respondent No.1 yet on account of death of respondent No.1 petition has born
fruit. The perusal of record reve als that the petitioner has annexed eight affidavits of his
polling agents and has produced 15 witnesses, a perusal whereof reflects that if the
statements of all the deponents are believed on their face value the conclusion to follow
would be that corrupt and illegal practice has been committed and election so conducted
was not fair and transparent, most of the voters were restrained from casting their votes
and thus the election may not be found to have been conducted fairly, freely and justly. It
will no t be out of place to mention here that there is no material available on record to
substantiate the version of petitioner the said corrupt and illegal practice was committed
with consent, connivance or at the instance of returned candidate or his election agents.
So in such view of the matter the first point formulated by learned counsel for petitioner
cannot be subscribed. Because the evidence produced by petitioner does not entitle
petitioner to be entitled for declaration of returned candidate. As far as the arguments
with regard to the re -counting of the votes, it is suffice to observe that petitioner has
utterly failed to make out a case for recounting because evidence produced by the
petitioner even if believed in toto then the natural result would be to conduct fresh
elections.
Even otherwise, relief sought through basic application, initially moved to
Election Commission of Pakistan and the prayer clause in the petition followed by
subsequent relief sought by counsel through subsequent application ar e quite material, for
instance petitioner sought following relief from Election Commission of Pakistan while
filing application under section 103 -B of the Act: --
"In view of the above, it is accordingly prayed that after adopting
appropriate procedure, el ection of the said constituency (PB -25 Jaffarabad -I)
may be declared void and re -election under the provisions of section 108 of
the Representation of People Act, may be ordered. In the alternate, re -polling
may be ordered in the above mentioned polling st ations in accordance with
law to conduct the election honestly, just and fairly, in the interest of justice."
A perusal of respective relief clauses either before Election Commission of
Pakistan or before this Tribunal by petitioner, even does not entitle petitioner for
declaring him returned candidate.
As far as the request of petitioner for re -polling in ten polling stations or
recounting in that ten polling stations also will be a futile and an illegal exercise, such
exercise among candidates available to contest election, as we know, if any of contesting
candidate expires before the day of polling, the election in that constituency is always
postponed, therefore; at this juncture, petitioner is successfully entitled for the relief,
which he has prayed for through his application under section 103 -B of the Act the before
Election Commission of Pakistan for re -election under the provisions of section 108 of
Representation of the Peoples Act, 1976, so in view of above stated position and in the
light of ab ove discussion, I am of the considered opinion that Seat of PB -25 Jaffarabad -I
is lying vacant on account of death of returned candidate i.e. Rustam Khan Jamali and
remedy lies in conducting bye -election for the said Constituency as enunciated under
sectio n 108 of Representation of the People Act, 1976.
Having in view the facts and circumstances of the case, petition is dismissed and
the Election Commission of Pakistan is directed to hold bye -election for the Constituency
of PB -25 Jaffarabad -I as required by section 108 of Representation of the People Act,
1976.
S.A.K./34/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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