2019 M L D 1130
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
Mir MUHAMMAD SADIQ UMRANI and others ---Petitioner
Versus
RETURNING OFFICER, PB -11, NASIRABAD- I and others ---Respondents
Election Petitions Nos.12 and 25 of 2018, decided on 7th December, 2018.
Elections Act (XXXIII of 2017) ---
----Ss. 139, 144, 156 & 86--- Constitution of Pakistan, Art. 162(1)(f) ---Election petition ---
Election for the seat of Provincial Assembly ---Allegations of illegal and corrupt practices ---
Proof ---Requirements ---Omission to declare an asset ---Effect ---Petitioner had failed to put
forward particulars of corrupt and illegal practice or other illegal acts alleged to have been
committed by the respondent and his supporters ---Nothing was on record with regard to the
persons who allegedly committed corrupt or illegal practices ---Petitioner had relied on vague
and general allegations of corrupt and illegal practices during the course of election---Election of returned candidate could not be declared to be void even if any corrupt or illegal
practice had been committed if Election Tribunal was satisfied that it was not committed by or with the consent or connivance of that candidate or his election agents ---Strong,
convincing and cogent evidence was required to un- seat a returned candidate--- Petitioner had
failed to prove beyond reasonable doubt that respondent or any of his election agents had committed any corrupt or illegal practice--- Allegation made by the petitioner being vague
and non- specific did not meet the requirements of S.144 of Elections Act, 2017---Omission
to declare an asset by an elected member could only be considered material when non -
disclosure was meant to conceal a wrongdoing---Election petition was dismissed, in circumstances.
Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189 rel.
Ishaq Nasar, Arbab Muhammad Tahir, Aurangzeb Kakar and Ehsan Rafiq Rana for
Petitioners (in Election Petition No.12 of 2018).
Muhammad Aamir Rana and Barrister Zahoor Hassan Jamot and Arif Achakzai for
Respondent No.2 (in Election Petition No.12 of 2018).
Jameel Ramzan, Legal Advisor, ECP for Official Respondents (in Election Petitions
Nos.12 and 25 of 2018).
Ehsan Rafiq Rana for Petitioner (in Election Petition No.25 of 2018).
Muhammad Aamir Rana and Barrister Zahoor Hassan Jamot and Arif Achakzai for
Respondent No.2 (in Election Petition No.25 of 2018).
Date of hearing: 19th November, 2018.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Through this common judgment, I
intend to dispose of election petition Nos.12 and 25 of 2018, arising out of one and the same
constituency i.e. PB -11, Nasirabad- 1 (the "Constituency"). Petitioners, Muhammad Sadiq
Umrani and Mir Shaukat Ali as well as respondent Mir Sikandar Ali Umrani contested election for the seat of Pro vincial Assembly, Balochistan, from PB -11, Naseerabad -1, in the
General Elections, held on July 25, 2018. As per result, published in the Official Gazette of Pakistan vide Notification No.F.2(42)/2018- Cord.- dated August 7, 2018, issued by the
Election Com mission of Pakistan (the "Commission"), respondent Mir Sikandar Ali Umrani
was declared as a Returned Candidate from the said constituency.
2. Being aggrieved of the result of election, declared by the Commission, the petitioners
filed the instant petition s to declare the election of respondent Mir Sikandar Ali as void;
inter -alia, on the grounds that the process of election was rigged by the Returned Candidate
and his agents in connivance with the polling staff. The petitioners further pleaded in their petitions that respondent Mir Sikander Ali, who is an influential person, with connivance of
the Returning Officer as well as the Presiding Officers of some of the polling stations, maneuvered the results of election in violation of the spirit of free, fair a nd transparent
election. In those polling stations, wherein respondent Mir Sikandar Ali has been shown to be the winner, fake identity cards were used for the purpose of casting bogus votes by the respondent Mir Sikandar Ali and his supporters and fictitio us results were prepared in order
to win the election.
3. The petitioners also filed petitions under section 9(1) of the Election Act, 2017,
before the Commission to declare the poll as void, which were dismissed with the observations that the petitioners can agitate their grievances before this Tribunal. Hence, these election petitions under section 139 of the Act of 2017, assailing the result, whereby respondent Mir Sikandar Ali was declared as Returned Candidate on the ground that massive corrupt and ill egal practices were committed by him with the help and connivance of local
administration and election staff as stated hereinabove.
4. In response to the notices issued by this Tribunal, the respondent/returned candidate
contested the petitions and submitt ed his written statements separately. On divergent
pleadings of the parties, following issues, which are common in both the petitions, were framed:
"(1) Whether the respondent No. 2 has committed illegal and corrupt practices on the day
of polling i.e. 25. 07.2018, if so, to what extent?
(2) Whether the petitioner is entitled for the relief claimed for?
(3) Relief?"
5. In order to prove the respective issues, the parties led oral as well as documentary
evidence. Irshad Ali, Ubaid Ullah, Shabir Ahmed, Imdad H ussain, Zafar Ali, Iltaf Hussain,
Ghulam Murtaza, Faizullah, Muhammad Hashim, Muhammad Panah, Shahid Nadeem,
Dawood Mamand, Khursid Ahmed and Munir Ahmed entered the witness box. Their affidavits -in-evidence were filed with the election petitions. They own ed their affidavits and
averments of the affidavits in their examination -in-chief. The witnesses averred in their
affidavits that they were voters and polling agents of the petitioners at polling stations Nos. 14, 28, 33, 34, 36, 37, 38, 39, 52 and 77 in t he general election 2018; that on the day of
polling massive rigging was committed and large number of fake votes were cast; that in violation of section 53 of the Act of 2017, on 22.07.2018 two days prior to polling day, the Presiding Officers of some of the polling stations were altogether changed; that during counting of the votes agents of the petitioners were sent out of the polling stations by force; that Forms -45 were not handed over to the polling agents of the petitioners and that the
applications, moved by the petitioners for the purpose of recounting, were dismissed by the
Returning Officer without applying judicial mind and justification; that the respondent concealed certain properties and foreign visits at the time of filing his nomination pape rs, as
such, failed to demonstrate himself as an honest person in terms of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"). Apart from above, the petitioners also got recorded their own statements on oath.
6. In addition to evidence of the petitioners, Mr. Inayath Ullah, Barech, Judicial
Magistrate/Returning Officer was also summoned as a Court witness, who besides producing the whole record of Forms -15, also submitted a comprehensive report Ex. C/1- A.
7. Similarly, the Returned Candidate i.e. respondent Mir. Sikandar Ali produced and
examined two witnesses i.e. Abdul Qadir, Muhammad Azam and also recorded his statement on oath.
8. Messrs Ishaq Nasar and Ahsan Rafiq Rana, learned counsel appearing on behalf o f the
petitioners, contended that the respondent Mir Sikandar Ali Umrani has won the election while adopting massive and illegal corrupt practices in collusion with the District Administration and polling staff, thus, the result, declaring him as a Returne d Candidate, is
liable to be set aside. In support of their contentions, they have referred to the statements/affidavits -in-evidence of the petitioners and their witnesses, who averred that
bogus votes were cast in favour of the Returned Candidate by his s upporters with the help of
polling staff. They lastly submitted that the Returning Officer did not perform his legal duties, as he was in league with the respondent Mir Sikandar Ali, hence, his result is liable to be declared as void and requested for decl aring the petitioner Mir Muhammad Sadiq Umrani
as a Returned Candidate.
9. On the contrary, Mr. Muhammad Amir Rana, representing the respondent Mir
Sikandar Ali has argued that no materials have been placed on record by the petitioners,
which could warrant interference of this Tribunal. He further submitted that under the law
the petitioners were required to give details of the particulars of the alleged corrupt and illegal practices, but they have failed to do so, thus, the petitions are liable to be dismi ssed.
10. After hearing learned counsel for the parties and going through the available
evidence, it has straightaway been observed that the petitioners have failed to prove their cases as the allegations do not qualify the legal test laid down by section 144 subsection (1)(b) of the Elections Act, 2017, which reads as under:
"Contents of petition.- (1) An election petition shall contain --
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including names of the parties who are alleged to have committed
such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act."
11. A careful and minute perusal of the allegations mentioned in the election petitio ns and
the above -mentioned provisions of law would show that the petitioners have badly failed to
put forward full particulars of corrupt and illegal practices or other illegal acts, alleged to have been committed by the Returned Candidate and his supporte rs. Similarly, the petitions
are completely silent regarding the names of those persons, who allegedly committed corrupt or illegal practices. Likewise, the affidavits -in-evidence, filed by the witnesses, also do not
purport the names of the person who have allegedly committed corrupt and malpractices during the course of election and the witnesses while recording their statements have made dishonest improvement by naming some persons, related to the respondent. A bare perusal of
the allegations mentioned i n the Election Petitions would show that instead of providing full
particulars of the corrupt and illegal practices allegedly committed during the election process, the petitioners have relied upon vague and general allegations. It is also pertinent to mention here that the witnesses in their affidavits -in-evidence have repeated the vague
allegations in line with each other word to word. The affidavits -in-evidence are stereotype
having blank columns regarding names, parentage and residence of deponents and filled in subsequently. It seems that the affidavits are prepared by one and the same person subsequently just to create concocted and baseless grounds for un- seating the respondent.
12. It would also not be out of place to mention here that in terms of se ction 156(3)(a) of
the Elections Act, 2017, even if any corrupt or illegal practice has been committed and if the Tribunal is satisfied that it was not committed by or with the consent or connivance of that candidate or his election agent, the election of the returned candidate cannot be declared to
be void because very strong, convincing and cogent evidence is required for un- seating a
returned candidate. As the petitioners have not been able to prove beyond reasonable doubt that respondent Mir Sikandar Al i or any of his election agents committed any corrupt or
illegal practice as such, the petitioners are not entitled to the relief being sought.
13. Similarly as has been observed hereinabove, the affidavits -in-evidence also do not
fulfill the mandatory req uirements of section 144 of the Elections Act, 2017, in so far as it
failed to give details and complete particulars of the alleged corrupt or illegal practices or
other illegal acts alleged to have been committed by the returned candidate and his supporte rs. The typed affidavits -in-evidence of all the witnesses are almost stereotype and
completely identical in all respect including minor details and only vary in respect of the names, parentage, profession and residences of the deponents. Although most of t he
witnesses produced by the petitioners claimed that bogus votes were being polled by the
supporters of the respondent, yet it is very strange and astonishing that no objection
whatsoever in nature was raised by them at the time of polling despite the fac t that under
Section 86 of the Act of 2017, as well as the Code of Conduct, issued by the Commission, they were authorized to raise objection on any doubtful voter subject to deposit of Rs.100/ -
with the concerned Presiding Officer against proper receipt. The allegations, alleged by the petitioners and their witnesses, being vague, generalized and non -specific, do not meet the
requirements of section 144 of the Act of 2017.
14. Learned counsel for the petitioner Mir Muhammad Sadiq Umrani further argued that
petitioner secured 1767 votes at polling station Nos. 6, 7, 24, 31, 32, 40, 42, 43, 64, 66 and 79 but the same were not counted in his favour while preparing Forms -48/49 and, on the
contrary, the votes of respondent were illegally enhanced. In this regard he also placed on
record some photo copies of Form -45, as Mark P/8- 1 to 13. In this respect, it would be
relevant to make a reference to the order dated 31.10.2018, made by this Tribunal, which
reads as under:
"Mr. Arbab Muhammad Tahir, learne d counsel for petitioner pointed out that a
number of votes obtained by the petitioner were not included in the statement of count by the learned Returning Officer (RO) in the consolidated result i.e. Form 48, as such, in this regard, he intends to examine some witnesses in order to produce the result
(Form 45) of such Polling Stations.
When Mr. Muhammad Aamir Rana, learned counsel appearing on behalf of the returned candidate was confronted with the contention raised on behalf of the learned counsel for t he petitioner, he frankly conceded that some votes obtained by the
petitioner as well as the returned candidate have not been include in the Statement of Count inadvertently and, fairly suggested that he has no objection if the Returning Officer is directed to prepare final result (consolidated result) within the purview of Section 90 of the Elections Act, 2017.
However, in response of the offer learned counsel for the petitioner seeks short adjournment to consult with his client/petitioner."
15. Though it was a fair offer, made by the learned counsel for the respondent, yet the
same was not accepted by the petitioner. Suffice to add here that the petitioner has produced and placed on record Forms -45 of some of the polling stations as Mark P/8- 1 to 13 (decl ared
to be fake by the RO) but he has failed to establish the said fact. If, 1767 votes are counted in favour of the petitioner Muhammad Sadiq Umrani, who secured 6978 votes, even then, he cannot be declared as a returned candidate in view of the consolida ted statement of count,
prepared and issued by the Returning Officer concerned, as there is difference of about 3000 votes between him and the returned candidate. In such view of the matter ordering recounting of the votes and preparation of fresh consolidated statement by the Returning Officer would
amount to nothing but a futile activity.
16. As has been stated above, the offer made by the learned counsel for respondent for
fresh tabulation of the votes was declined by the petitioner, however, for my own
satisfaction, while exercising powers under section 165 of the Act of 2017, the Judicial Magistrate/Returning Officer was also summoned and examined as a Court witness, who besides producing the copies of Forms -45, also submitted a detailed and comprehensi ve
report. In respect of allegations of non- inclusion of valid votes in the final consolidated
statement, the report reveals as under:
"Contents of Para. No.6 are admitted to the extent that as per Form -15 the petitioner
secured 73, 38 and 88 (total 199 votes) in polling stations Nos. 28. 33 and 77 respectively. It may be pointed out here that besides above typographical mistakes the petitioner secured 90 votes in polling station No.89 but inadvertently it is shown as 208 secured votes in Form -45 and Form -48 the same was not mentioned as above.
The petitioner did not mention the same in his petition of securing less votes, rather the respondent No.2, in polling station No.89 secured more votes then the petitioner. However again now the Form -45 and Form -48 a re compared and updated and
following four (4) mistakes have been taken out. Three are already mentioned by
petitioner but the 4th one is omitted. The mistake happened due to the reason that the
three candidates at 1st, 2nd and 3rd position were adjacent t o each other at serial Nos.
29, 30 and 31. It is also pertinent to mention here that the grand total is still the same as it stood on 28th July 2018 in Form -48. The above mistake was clerical and
typographical. The old and new secured votes are given below :
No. of
polling station Mir Sikandar
Ali Umrani Mir Shoukat
Ali Mir
Muhammad Sadiq
Umrani
Old New Old New Old New
28 40 158 73 40 0 73
33 40 260 38 40 0 38
77 155 155 88 45 0 88
89 86 86 90 208 208 90
Total 321 659 289 333 208 289
95 PS
Result 10057 10395 5359 5403 6978 7059
It may also be stated that at the time of submission of Form -45 with the replying
respondent by the presiding officers, the petitioner did not submit any complaint and kept quiet for the reasons best known to him otherwise his this grievance would have also been redressed The Form -45 of polling station No.89 is annexed herewith for the
sake of facility and marked as Annexure -F"
17. Similarly, the report in respect of Forms -45, speaks as under:
"The Contents of Para No.7, are totally false and denied. The petitioner on his own made Form -45 and mentioned it in the tables at pages 11 and 13 of the petition which
has no nexus with the official record. The Form -45 provided by the Presiding Officers
to the reply respondent is on record, the same was handed over to the petitioner as
well as to other contesting candidates. The same was scanned and provided to the Hon'ble. ECP, PEC and every individual if asked. The petitioner made self -made
counting without any legal reason. The original Forms -45 of all the 95 Polling
Stations have been requisitioned by the Hon'ble ECP vide letter No.F.2(4)/2018- Cord
dated 28.07.2018, the DEC through letter No.F.4(8)/2018- Elec dated 2nd August
2018 and the replying respondent provided the same through letter No.290- 93 dated
2nd August 2018 and after receipt in this regard a Certificate is issued by the Assistant Director (Elec) Balochistan Quetta on 4th Augus t 2018. Copies of the same
are filed and marked Annexures "G to K". Complete set of scanned certified copies of Forms -45 of 95 Polling Stations is also annexed herewith along with Form -48.
For the sake of facility scanned copies of Form -45 of polling sta tions Nos. 6, 7, 24,
31, 32, 40, 42, 43, 64, 66, and 79 are enclosed herewith and marked as Annexure "L to V."
18. After coming to the conclusion that it is a case of no evidence to the extent of
allegations of corrupt practices and illegal acts on the par t of respondent, I take up the third
ground of attack against the candidature of respondent that he is a defaulter of the Excise and Taxation Department, and did not mention his fourth wife namely, Kalsoom Sikandar in his nomination paper. The contention i s without any substance for the reasons; firstly, the said
objections were not raised by the petitioner at the time of scrutiny and secondly, the name of Mst. Kalsoom has inadvertently been mentioned in the family tree of the respondent and the petitioner has admitted during the course of cross -examination that her name has been
deleted from the family tree of respondent by the National Database and Registration
Authority (NADRA). Besides such admission on the part of the petitioner, PW -5. Dawood
Momand, As sistant Director, Operation, NADRA has also stated that the name of Mst.
Kalsoom has been deleted from the family tree of respondent by producing the fresh family tree of respondent.
19. The learned counsel for petitioner lastly contended that the responde nt has failed to
list some of the properties as his assets at the time of filing his nomination papers and hence, failed to demonstrate himself as an honest, sagacious and righteous person in terms of Article 62(1)(f) of the Constitution. In this regard he also halfheartedly made an attempt to point out
some differences in the nomination form and assets filed with the FBR, as well as non -
mentioning in respect of foreign visits. The contention is devoid of force for certain reasons; firstly, the respondent h as never visited Japan, though a valid visa was obtained, secondly, he
had annexed the copy of passport with the nomination form, having exit and entry dates; thirdly, the property at Sibi has been mentioned the list of assets. Even otherwise, an omission to declare an asset by an elected member can only be considered material when
non- disclosure is meant to conceal a wrongdoing. Mere non- disclosure of an asset ipso facto
does not render a person to be dishonest in terms of Article 62(1)(f) of the Constitut ion. In
this respect reference can be made to the cases of "Khawaja Muhammad Asif v. Muhammad Usman Dar", (Civil Petition No.1616 of 2018)" 2018 SCMR 2128, "Muhammad Hanif Abbasi v. Imran Khan Niazi" (PLD 2018 SC 189) and "Malik Shakeel Awan v. Sheikh Rash eed Ahmed" (Civil Appeal No.467 of 2015).
For what has been stated above, these petitions, being without any merit, are
dismissed, with no order as to cost.
ZC/14/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.