2019 M L D 1335
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
Mir TARIQ MEHMOOD KHETRAN ---Petitioner
Versus
RETURNING OFFICER, NA- 259 and others ---Respondents
Election Petition No. 21 of 2018, decided on 7th December, 2018.
Elections Act (XXXIII of 2017) ---
----Ss. 139 & 101--- Civil Procedure Code (V of 1908), S. 151---Qanun -e-Shahadat (10 of
1984), Art. 18 & 164--- Election petition--- Election for the seat of Provincial Assembly ---
Allegations of illegal and corrupt practices ---Application for Biometric Verification of
ballot papers ---Scope ---Narrow margin of votes between the returned candidate and
petitioner did not per se give rise to a presumption that there was an irregularity or illegality
in the counting of votes ---Petitioner was required to mention material facts in the election
petition and then to prove the same through cogent evidence ---Facts in issue could be proved
through oral as well as documentary evidence ---Biometric verification of thumb impression
from National Database and Registration Authority was also a kind of documentary evidence
being modern device ---Six hundred and twenty four votes received by the petitioner had not
been shown by the Returning Officer in the Consolidated Statement which fact was sufficient to es tablish that irregularities had been committed in the counting of votes ---Petitioner had
made out a case for biometric verification of thumb impression of voters ---Election Tribunal
could order for opening of packets of counterfoils and certificates or the inspection of any
counted ballot paper and could also refuse to issue such order if it did not have an impact on the result of election--- Evidence could be given in any proceedings of existence or non-
existence of fact in issue or other fact which was rel evant ---Court could allow production of
any evidence that might become available through modern devices ---Evidence of National
Database and Registration Authority would provide more authentic and accurate account of what had transpired at the polling stati ons---Application for biometric verification of ballot
papers was allowed, in circumstances.
Aijaz Hussain Jakhrani v. Illahi Bux Soomro and 16 others PLD 2014 Sindh 90 rel.
Muhammad Aamir Rana and Zahoor Hassan Jamote for Petitioner.
Syed Ayaz Zahoor f or Respondent No.4.
Muhammad Rafique Langove, Legal Advisor, ECP for Official Respondents.
Date of hearing: 4th December, 2018.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---Through this order, I intend to
dispose of Civil Miscellaneous Application No.1375 of 2018, under Section 151, C.P.C. read
with Article 164 of Qanun- e-Shahadat Order, 1984, filed on behalf of the petitioner in
Election Petition No. 21 of 2018 with the following prayer:
"It is, therefore, respectfully prayed that in view of submi ssion made here in above
the instant application may kindly be allowed and directions be issued to relevant Officers of NADRA to conduct Bio- Metric Verification of abovementioned polling
stations and submit report to this Hon'ble Tribunal."
2. The facts in brief giving rise to this application are that the petitioner and respondent
No. 4 (respondent) contested general election from NA -259 Dera Bugti -cum-Kohlu -cum-
Barkhan- cum-Sibi-cum-Lehri. The respondent Shahzain Bugti was declared to be a returned
candida te by the Election Commission of Pakistan (Commission), vide notification
No.F.2(38)/2018- Cord. Dated 07th August, 2018. He obtained 22787 votes, whereas, the
petitioner Tariq Mehmood Khetran (runner -up) secured 21566 votes with the difference of
1221 vote s. The petitioner has challenged the election of respondent mainly on the grounds
that a large number of bogus votes were got cast by the respondent; the election was manipulated and procured by him in connivance with the election staff; the request of petitioner for recounting of the votes in view of a narrow margin was declined by the
Returning Officer without any justification; massive rigging was committed at 29 Polling Stations, situated at Dera Bugti, detail whereof has been mentioned in para -4 of the petition,
where unnatural turnout was shown and not a single vote was rejected at the said polling stations; and these facts can be verified through National Database and Registration Authority (NADRA), as fingerprints/ thumb impressions are available on the counterfoils of
the used ballot papers, which can be tallied with NADRA record.
3. Mr. Muhammad Amir Rana, learned counsel for the petitioner/ applicant submitted
that the counterfoils of the ballot papers of the votes of aforementioned 29 polling stat ions,
showing to be cast in favour of the parties, may be called for from Provincial Election Commissioner or the Returning Officer of the constituency as well as original used photo voters' list and the statement of counts in respect of the said polling s tations, where the said
votes, allegedly, have been shown to be used/cast and may be sent to the NADRA for their examination of the thumb impressions on the counterfoils as well as photo voters' list, for which he is ready to deposit the requisite charges of NADRA. While concluding his
arguments, he further added that this Tribunal has ample powers within the purview of Section 101 of the Act of 2017 and Article 164 of the Qanun- e-Shahadat Order, 1984 to
allow production of any evidence that could have become available because of modern devices and techniques.
On the contrary Syed Ayaz Zahoor, learned counsel for the respondent while
controverting the contentions raised by the learned counsel for the petitioner, submitted that
the votes, polled in favour of respondent, were cast by the genuine voters and no corrupt or
illegal practices were committed during the course of election. He further submitted that a narrow margin of votes between the returned candidate and the petitioner does not, per se, give rise to a presumption that rigging was committed or there was an irregularity or
illegality in the counting of votes. While concluding his arguments, he further submitted that
the allegation must be proved through reliable, cogent and convincing evidence. The onus to
prove the allegations of irregularity, impropriety or illegality in the election process, on the part of the election officers, is on the petitioner but he has failed to bring on record any such evidence, justifying Bio -Matric Verification of thumb impression of voters.
4. The petitioner in support of his case so far produced and examined PW -3, Muhammad
Aslam son of Ghulam Rasool, who happened to be the Presiding Officer at Government Boys' High School, Rakni and he produced Form -45 as Ex -P/3-A, whic h shows that the
petitioner had obtained 624 votes at the said polling station No. 211.
5. The petitioner also produced and examined PW -4 Ayaz Khan Mandokhail, who at the
time of election i.e. 25.07.2018, was performing his duties as Commissioner, Sibi division Sibi. He produced letter dated 27th July, 2018, addressed to the Chief Secretary, Government of Baluchistan, which reads as under:
"To,
The Chief Secretary,
Government of Balochistan, Quetta.
Subject: NEGLIGENCE AND CONNIVANCE OF ELECTION STAFF DURING ELECTION OF NA- 259
The ECP notified Assistant Commissioner Kohlu, Tehsildar Dera Bugti, Tehsildar Pheilawagh, Tehsildar Barkhan and DSM PPHI Barkhan as AROs for NA -259 in their
respective area of jurisdiction. Unfortunately RO NA -259 did not plan di spatch and
retrieval of election materials properly. After close of poll, the AROs were duty bound to dispatch immediately the results and the materials but they let the Presiding Officers deposit the results and materials with Judicial Magistrates ie RO P B-8
Barkhan, RO PB -9 Kohlu and RO PB -10 Dera Bugti who had nothing to do with
result of NA -259.
2. The said ROs neither sent details of results nor dispatched the materials. The undersigned ordered DC Barkhan, Kohlu and Dera Bugti to personally meet the s aid
ROs, retrieve the materials and dispatch materials after sending details of results. All the DCs could not send the details of results or dispatch the materials. DC Bar Khan sent results and materials todays afternoon. DC Kohlu sent the materials today
afternoon and said that RO BP -9 was not handing over the result and materials and
FC was not ready to escort materials due to non -availability of forces.
3. Last night, the undersigned directed DC Dera Bugti to dispatch immediately the
results and mater ials upto Kashmore and hand over to the receiving party sent from
Sibi. Vehicles were sent to Kashmore to receive results and materials of 15 polling
stations of Pheilawagh Tehsil and materials of other polling stations of district Dera Bugti but DC Dera B ugti did not send materials of remaining polling stations citing
non- preparedness of FC.
4. Today a Naib Tehsildar of Dera Bugti left for Sibi with results and materials with
one vehicle which reportedly got punctured at Sui. The DRO and RO NA -259 kept on
asking first Judicial Magistrates at Barkhan, Kohlu and Dera Bugti and later the
undersigned to help in dispatch/receipt of materials. The results of all polling stations except 9 were received with intervals by the evening today.
5. Last night Shahzain Bugti intruded RO office and stayed there for some time. This act of his was protested by contesting candidates. Today again he sat at RO office during receipt and compilation of results. The undersigned visited RO office and found him there seated with DRO and RO during compilation of results. These acts of negligence created an impression of connivance of ECP, Administration and Judiciary amongst public.
6. In short, the whole result except 15 polling stations of Tehsildar Pheilawagh was prepared by Judicial Magistrate, who illegally opened the statements of the count and
conveyed to RO in violation of section 90(1B) and Section 13. The RO in violation of rule 84(1), without receipt of whole results, is preparing the provisional consolidated statement of results of the count in Form -47 on the basis of the results not provided
by presiding officers electronically or personally. The RO neither informed ECP about incomplete results nor provided list of polling stations from which results are awaited af ter passage of about 45 hours.
7. You are therefore requested to kindly order inquiry to probe the alleged involvement and negligence of all concerned.
Sd/ xxx
(AYAZ MANDOKHAIL)
COMMISSIONER SIBI DIV ISION.
6. The record also reflects that immediately after announcement result, the petitioner
approached the Returning Officer for re -counting of the votes by means of filing an
application, which was declined by him. The petitioner also approache d the Election
Commission of Pakistan for the said purpose, however, remained unsuccessful and finally filed Constitutional Petition No.1018 of 2018, before the Hon'ble High Court of Balochistan, which was also dismissed vide order dated 7th August 2018, operating part whereof reads as under:
"7. In view of the above, the relief claimed by the petitioner cannot be granted at this stage in exercise of constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan.
For the above reasons, the constitution petition is dismissed in limine.
However, the petitioner is held at liberty to agitate his all grievances before the
Election Tribunal under rule 139 of the Rules."
7. The basic questions involved in this application are , firstly as to whether the
petitioner had obtained 624 votes at polling station No. 211, which have not been shown in the consolidated statement by the Returning Officer and secondly, as to whether massive rigging was committed at 29 polling stations. men tioned in the election petition, and the
petitioner has been able to establish a prima facia case for bio -metric verification of thumb
impressions of voters.
8. Before dilating upon the rival contentions of the parties, it would be relevant to
mention here that the object behind obtaining the NIC on the counterfoils is proper
identification of the voter. Similarly, the reason of fixation of thumb impressions and recording of NIC numbers on the counterfoil is to ensure that the correct voter to whom a ballot paper had been issued, cast his vote and subsequently to provide a reference, point to
find out if any bogus votes had been cast in the election.
9. It is also by now settled that a narrow margin of votes between the returned candidate
and the petitioner does not, per se, give rise to a presumption that there was an irregularity or illegality in the counting of votes. The petitioner is required to mention material facts in the election petition and then to prove the same through cogent evidence. Similarly, onus to
prove the allegations is on the petitioner.
10. As has been stated above, the questions as to whether any bogus votes have been east
or not at 29 polling stations and as to whether 624 votes were obtained by the petitioner at
polling station No. 2 11 are facts in issue, which could be proved through oral as well as
documentary evidence. The Biometric Verification of Thumb Impressions from NADRA is also a kind of documentary evidence become available because of modern devices and techniques.
11. Cons idering the case of petitioner on the touchstone of the above principles of law, I
am of the considered view that the petition as well application at hand are speaking out valid grounds, adequately supported by relevant material. 624 votes, received by the petitioner at
polling station No. 211 have not been shown by the Returning Officer in the Consolidated Statement, which fact alone is sufficient to establish that irregularities and illegalities were committed in the counting of votes. Similarly, the lett er, dated 27th July, 2018, addressed to
the Chief Secretary, Government of Balochistan, by the Commissioner, which is self -
explanatory also prima facie supports the allegations of petitioner and he has been able to make out a case for Bio -matric Verification of thumb impressions of voters.
12. I am in agreement with Syed Ayaz Zahoor, advocate that merely because some
serious allegations have been made in the election petition, it would not be proper to order recount or Bio- matric Verification of thumb impre ssions of voters on the premise that no
prejudice would be caused to the returned candidate. However, in the instant case sufficient evidence has come on record, which materially support the allegations, levelled by the
petitioner against the respondent, j ustifying Bio -matric Verification of thumb impressions of
voters. Keeping in view the aforementioned allegations and the difference of votes, there is
strong possibility of an impact on the result of election. It may also be stated that under section 101 o f the Act of 2017, this Tribunal can order the opening of packets of counterfoils
and certificates or the inspection of any counted ballot papers and can also refuse to issue
such order, if it is not likely to have an impact on the result of the election. Similarly, Article
18 of the Qanun- e-Shahadat Order, 1984, provides that evidence may be given in any
proceedings of existence or non- existence of fact in issue or such other facts as are relevant.
Likewise, Article 164 of the Qanun- e-Shahadat Order, 1984 also provides that Court may
allow production of any evidence that may become available through modern devices and in
the peculiar circumstances of the instant case, the evidence of NADRA would provide more authentic and accurate account of what had transp ired at the polling stations and, thus would
be more believable than the oral account of rigging, if at all that has taken place. While holding this view, I am fortified from the observations, made in the case of "Aijaz Hussain Jakhrani v. Illahi Bux Soomr o and 16 others" (PLD 2014 Sindh 90), which read as under:
"In our view the entire exercise of calling for counterfoils and other polling record and seeking verification of signatures is an exercise which is to be conducted after issues are framed and bef ore evidence is recorded through witnesses. Seeking report
from NADRA would be itself constitute documentary evidence which once produced and proved in accordance with law of evidence would give an option to a party not to give oral account of an event or a fact on any particular issue and rely on documentary evidence only. Therefore, to prohibit such documentary evidence from coming on record before witnesses are examined on oath would in fact amount to closing the doors on a party to seek protection of documentary evidence at the relevant stage of the proceedings. Before any document is produced in evidence, it
may require verification of its contents either from the concerned authority or through some modern device. Once such document is ordered to be ver ified and then brought
on record only thereafter a party may be in a position decide as to what extent and on what issues oral account of an event or fact is required to be given in evidence. Therefore, first ordering recording of oral account of an event or a fact and then decide to verify a document would amount to putting the cart before the horse. The election disputes are supposed to be resolved in shortest possible time as it is a question of sending true representatives of the people to the instituti ons like
parliament and provincial assemblies."
13. In view of the above, the application is, accordingly allowed. However, it is made
clear that the petitioner as well as the respondent would be at liberty to file objections to the report of NADRA and in case of receiving such objections; the same will be considered strictly in accordance with law, after providing an opportunity of being heard to the parties and allowing them to lead evidence in support of their respective contentions, if so desire, before a final disposal of the election petition. The Returning Officer of the constituency i.e.
NA-259 Dera Bugti -cum-Kohlu -cum-Barkhan- cum-Sibi-cum-Lehri is directed to produce the
counterfoils of polling stations Nos. 294, 295, 296, 299, 303, 304, 310, 311, 312, 313, 334, 335, 337, 338, 339, 340, 341, 342, 344, 345, 347, 348, 350, 351, 356, 361, 362, 365 & 366, photo voters' lists and statement of counts pertaining to the concerned polling stations on 11th December 2013 at 9 a.m. in sealed envelopes. The petit ioner shall deposit the requisite
fee of NADRA through bank draft and to submit the same before this Tribunal for its onward
transmission to NADRA along with counterfoils, statement of counts and the used photo voters' lists through its authorized represen tative. The petitioners shall also deposit a sum of
Rs.60,000/ -(Rupees sixty thousand) tentatively towards expenditure and T.A./D.A. allowance
for the representative of the Tribunal before Assistant Registrar (Accounts), High Court of
Baluchistan, Quetta, who shall deposit these papers at NADRA Islamabad for examination
and report.
ZC/13/Bal. Petition allowed.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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