2019 M L D 1415
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
Mir MUJIB -UR-REHMAN MUHAMMAD HASSANI ---Petitioner
Versus
RETURNING OFFICER PB -41 WASHUK and 16 others ---Respondents
Election Petition No. 53 of 2018, decided on 18th December, 2018.
(a) Elections Act (XXXIII of 2017) ---
----Ss. 139 & 144---Election petition--- Election for the seat of Provincial Assembly---
Allegations of illegal and corrupt practices ---Proof ---Requirements ---Recounting of ballot
papers ---Petitioner had failed to put forwar d particulars of corrupt and illegal practice or
other illegal acts allegedly 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 Tribunal had power to order recounting of ballot papers but
said power should be exercised on the basis of some material prima facie establishing
illega lities, corrupt practices and illegal acts during process of election--- No one could claim
recounting of votes as a matter of right ---Party had to show that there had been improper
reception, refusal or rejection of votes, corrupt practices and illegal act s---Inspection or
recounting of ballot papers could not be granted to support vague pleas made in the election petition not supported by the material facts to fish out evidence to support such pleas ---
Petitioner had not made any written complaint with rega rd to rigging, corrupt and illegal
practices committed by the returned candidate ---Order for inspection/recounting of votes
could not be passed on the ground that no prejudice would be caused to the returned candidate ---Petitioner was to prove the factual controversy of corrupt and illegal practices
alleged to have been committed during the election process but he had failed to do so---Election petition was dismissed, in circumstances.
(b) Elections Act (XXXIII of 2017)---
----S. 139 ---Election petition ---Allegations of illegal and corrupt practices ---
Inspection/Recount of ballot papers ---Object and conditions enumerated.
The purpose of a recount/inspection is to verify and determine the authenticity and
truthfulness of the allegations on the basis whereof the election result is challenged,
however, in order to secure the sanctity of the election result and with a view not to
encourage the loosing candidates to attempt and to frustrate the will of the people, a conscious effort is to be made that it is only in the circumstances, which clearly justify, rather demand a recount/inspection, the recount is allowed. Undoubtedly, the Election Tribunal while seized of the election petition is vested with the power to order recount,
however, such power is to be exerci sed on the basis of some material prima facie establishing
illegalities, corrupt practices and illegal acts during the process of election. A party is not
entitled to claim recount of votes as a matter of right and it is to be shown that there had been improper reception, refusal or rejection of votes, corrupt practices and illegal acts. The
inspection or recount of ballot papers cannot be granted to support vague pleas made in the petition and not supported by the material facts or to fish out evidence to support such pleas, however, the Tribunal can grant such permission for inspection of ballot papers, subject to fulfilment at least of the following conditions:
(i) that for setting aside an election of a returned candidate, the petition shall contain an
adequate statement of the material facts on which the petitioner relies in support of his case;
(ii) that the Tribunal is prima facie satisfied that in order to decide the dispute and to do
complete justice between the parties, inspection of the ballot pape rs is necessary;
(iii) that it should also be kept in mind that the secrecy of the ballot should not be violated
on the basis of frivolous, vague and totally unfounded allegations and that the primary object should be to do full justice in the matter;
(iv) that the Tribunal must be prima facie satisfied on the material produced before it
regarding the truth of the allegations made for inspection/recounting; and
(v) that the discretion conferred on the Tribunal should not be exercised in such a way so
as to enable the petitioner to indulge in a roving enquiry with a view to fish materials for declaring the election to be void.
Arbab Muhammad Tahir and Aurangzaib Khan Kakar for Petitioner.
Kamran Murtaza and Asif Reki for Respondent No.2.
Jameel Ramzan and Muhammad Rafique Langov, Legal Advisors, ECP for
Respondents.
Date of hearing: 15th December, 2018.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Mujeeb -Ur-Rehman Muhamma d
Hassani, the petitioner herein, through this petition under section 139 of the Elections Act, 2017 (hereinafter referred to as the ("Act of 2017") has called in question the validity of the elections of PB - 41 Washuk, after losing the same.
2. The facts in brief giving rise to this petition are that the petitioner, Mujeeb- Ur-
Rehman Muhammad Hassani (the "petitioner") Zabid Ali (the "respondent"), being
candidates of Balochistan Awami Party ("BAP") and Jamiat -e-Ullama Islam "JUI") and
respondents Nos.3 to 15, contested the general elections to the seat of Balochistan Provincial
Assembly PB -41, Washuk, held on 25th July, 2018. The petitioner has secured 12588 votes;
whereas, the respondent has obtained 12807 votes, with the differential between the two
being 219 in the first round of election. The rest of the respondents, however, secured
insignificant number of votes. The respondent despite having been polled the highest number
of votes among the contesting candidates could not be declared a returned candid ate due to
litigation between the parties.
3. The petitioner being aggrieved, filed the instant petition before this Tribunal,
challenging the election of respondent mainly on the following grounds:
(i). After closure of balloting, during the course of cou nting, the polling agents of
petitioner were expelled from the concerned polling stations and Forms -45 were
prepared in their absence;
(ii) Without electricity at some polling stations, balloting did remain in progress till late night;
(iii) The election w orkers of respondent extended threats to the voters and polling officers
to join them and they were neither allowed to enter polling stations nor provided them Forms -45;
(iv) The election workers of the respondent found harassing the voters of petitioner by not allowing them to enter the polling stations, rather they cast bogus votes in favour of respondent and converted the obvious win of the petitioner into defeat; and
(v) The election was manipulated and procured by the respondent through coercion and in
connivance with the election staff and thus election has been materially affected which should be declared void.
4. Except the returned candidate, the other respondents did not put in appearance,
though they were duly served and, therefore, were proceeded against ex- parte.
5. The respondent filed his written statement, denying and refuting the various
averments made in the petition. The divergent pleadings of the parties gave birth to the following issues:
(1) Whether the petition is hit by the principle of estoppel?
(2) Whether the petition is not maintainable in view of the provisions of section 144 of the Elections Act, 2017?
(3) Whether the respondent No.2 has committed cor rupt practices and illegal acts on the
day of polling i.e. 25.07.2018 and 07.10.2018, if so, to what extent?
(4) Whether the petitioner is entitled for the relief claimed for?
(5) Relief?
6. The petitioner, besides recording his own statement, produced and examined as many
as ten witnesses. They all have stated in their affidavits -in-evidence that the success/election
of respondent is the result of corrupt and illegal practices. On the contrary, the respondent
did not produce a single witness and only recor ded his own statement.
7. Keeping in view the checkered history of the instant matter, it would be advantageous
to state here a short brief of the matter in hand. After holding of the general elections on 25th July 2018, an application for recounting of votes was moved on 27.07.2018 by the petitioner, which was rejected by the Returning Officer ("RO") by means of order dated 28th July 2018, which reads as under:
"The application moved by the candidate namely Mujeeb- ur-Rehman, wherein, he
requested for the recount of all votes cast in all polling stations in the constituency.
As per section 95(5) of Elections Act, 2017, it is not in the domain of the R.O. to recount the votes of the entire constancy, hence, the application in hand is thereby rejected"
8. Since, the Forms -45 of polling stations Nos.44 and 45 were not included in the final
consolidated statement by the RO, as such, the petitioner approached the Election Commission of Pakistan (the "Commission") by means of filing a petition unde r section
95(6), which was dismissed on 01.08.2018, with the following observation:
"I am directed to refer to the subject noted above, to convey that since the consolidation has been completed in PB -41, Washuk and Form -49 has been received,
therefore, th e applicant/petitioner may approach the appropriate forum through an
election petition, if so desired."
9. The petitioner, being still dissatisfied, filed Constitutional Petition No.1013/2018
before the Hon'ble High Court of Balochistan, Quetta, which also met the same fate, vide order dated 15.08.2018. The petitioner, once again, approached the Commission by m eans of
filing a petition, which was clubbed with the petition filed by one Muhammad Hanif, a candidate from NA -270, and the same were disposed of by the Commission through a
common order, dated 11.9.2018, relevant part whereof reads as under:
"Accordingl y, for the reasons noted above both the petitions are disposed of in terms
of different results were prepared by Returning Officer of NA -270 and PB -41. The
Returning Officer, NA -270 include the result of same polling station i.e. 108 and 109
in the count but Returning Officer of PB -41 excluded the count of polling station
Nos.44 and 45 though the Presiding Officers and Assistant Presiding Officers were same, who submitted same result on form 45 and conducted poll in the same building. Thus, to resolve the c ontroversy, we have no alternate except to pass an order of
holding fresh poll at Polling Stations Nos.44, 45 of PB - 41 and Polling Stations
Nos.108 and 109 of NA -270. As for as the polling station Nos. 107 and 244 of
National Assembly are concerned, learn ed counsel for the petitioner could not provide
any such material evidence to substantiate that any illegality was committed or to undermine the validity of election. Office to take follow -up action forthwith. These
are the detailed reasons of our s hort order of even date."
10. The aforementioned order, passed by the Commission, was challenged before the
Hon'ble Apex Court by the parties while filing Civil Appeals Nos.1093, 1101 and 1102 of
2018, which were rejected, vide order dated 01.10.2018, which reads as under:
"The reasons recorded by the learned Election Commission of Pakistan for re poll of Polling Stations Nos.44 and 45 with respect to PB - 41 and NA -270 are absolutely apt
and cogent and in accordance with the jurisdictional authority ve sted with it. No
illegality has been pointed out in the impugned judgement warranting interference by this Court. Dismissed accordingly."
11. In view of the judgement, passed by the Commission, re -polling was held on
07.10.2018 at polling stations Nos.44 a nd 45 and as a result of fresh elections, the
respondent, Zabid Ali, once again succeeded to maintain his lead, as such, he was declared as a returned candidate by securing 13040 votes as against that of petitioner, who obtained 12705 votes, vide Notificat ion No. F.2(37)/2018- Cord(1). dated 15th October, 2018, hence
the instant petition.
12. I have heard learned counsel for the parties and also perused the available record with
their valuable assistance. After going through the available record, it has stra ightaway been
observed that the petitioner has failed to prove his case against the respondent as the alleged allegations do not qualify the legal test laid down by section 144 subsections (1)(b) of the Elections Act, 2017, which reads as under:
"144. Con tents 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 il legal practice or illegal act and the date and place of the commission
of such practice or act."
13. Minute perusal of the allegations mentioned in the election petition as well as in their
affidavits -in-evidence would show that the petitioner has badly fa iled to put forward full
particulars of corrupt and illegal practices or other illegal acts alleged to have been committed by the respondent and his supporters. Similarly, the petition is completely silent regarding the names of those persons, who allegedl y committed corrupt or illegal practices.
The affidavits -in-evidence, filed by the witnesses, also do not purport the names of those
persons, who allegedly committed corrupt or illegal practices during the course of election. Instead of providing full part iculars of the corrupt and illegal practices, allegedly committed
during the election process, the petitioner has relied on vague and general allegations.
14. Similarly, the petitioner has annexed as many as sixteen affidavits -in-evidence with
the petition but the same do not fulfill the mandatory requirements of Section 144 of the Act
of 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 th e respondent and
his supporters. The typed affidavits -in-evidence of all the witnesses are almost stereotype
and completely identical in all respects including minor details. The same being verbatim copies of each other seem to be prepared subsequently jus t to create a ground for de -seating
the respondent.
15. It would also be interesting to observe that the previous pleadings of the petitioner
would show and suggest to believe that the election, conducted on 25th July 2018 in the
whole constituency i.e . PB -41, was not disputed by the petitioner and his claim was only in
respect of including the counts of polling stations Nos.44 and 45 in the consolidated statement.
16. It is also surprising to observe that the petitioner while recording his statement b efore
this Tribunal has not uttered a single word in respect of alleged corrupt practices and illegal acts either committed by the respondent, his election agent or supporters. Thus, the allegations in respect of corrupt practices and illegal acts, seemed to be baseless, concocted
and un- proved.
17. So far as the prayer of petitioner for re -counting of votes is concerned, it would be
relevant to state that in this regard the petitioner's witnesses have deposed that the supporters of respondent were casting bogus votes but it is very strange and astonishing to observe that
no objection whatsoever in nature was raised by them during the course of election despite the fact that under section 86 of the Act of 2017, and the Code of Conduct, issued by the Commission, after consultation with all the stakeholders, they were authorized to do so after depositing the required fee of Rs.100/ - with the concerned Presiding Officers. It would also
suffice to add here that during the course of election, number of personnel of law enforcing agencies were deployed at every polling station for maintaining law and order situation. The witnesses have admitted in their cross -examinations that they did not file any written
complaint either with the Police, Army officials or the Comm ission with regard to their
expulsion, harassment or casting of bogus votes. The petitioner has also failed to produce and examine any witness, who claimed to be deprived from casting his vote by the supporters of respondent. The petitioner has alleged rigging at 27 polling stations, but only 10 polling
agents were examined and no evidence was led with regard to the corrupt practices allegedly committed at the remaining 17 polling stations.
18. It may be stated that the purpose of a recount/inspection is to verify and determine the
authenticity and truthfulness of the allegations on the basis whereof the election result is challenged, however, in order to secure the sanctity of the election result and with a view not to encourage the loosing candidates to at tempt and to frustrate the will of the people, a
conscious effort is to be made that it is only in the circumstances, which clearly justify, rather demand a recount/inspection, the recount is allowed. Undoubtedly, the Tribunal while seized of the election petition is vested with the power to order recount, however, such power is to be exercised on the basis of some material prima facie establishing illegalities, corrupt practices and illegal acts during the process of election. A party is not entitled to cl aim
recount of votes as a matter of right and it is to be shown that there had been improper reception, refusal or rejection of votes, corrupt practices and illegal acts. The inspection or recount of ballot papers cannot be granted to support vague pleas m ade in the petition and
not supported by the material facts or to fish out evidence to support such pleas, however, the Tribunal can grant such permission for inspection of ballot papers, subject to fulfilment at least of the following conditions:
(i) that for setting aside an election of a returned candidate, the petition shall contain an adequate statement of the material facts on which the petitioner relies in support of
his case;
(ii) that the Tribunal is prima facie satisfied that in order to decide the dispute and to do
complete justice between the parties, inspection of the ballot papers is necessary;
(iii) that it should also be kept in mind that the secrecy of the ballot should not be violated on the basis of frivolous, vague and totally unfounded allegations and that the primary object should be to do full justice in the matter;
(iv) that the Tribunal must be prima facie satisfied on the material produced before it regarding the truth of the allegations made for inspection/recounting; and
(v) th at the discretion conferred on the Tribunal should not be exercised in such a way so
as to enable the petitioner to indulge in a roving enquiry with a view to fish materials for declaring the election to be void.
19. While considering the instant case on the touchstone of the said settled principles of
law, I am of the considered view that the petitioner has not been able to make out a case for inspection/recounting for the reasons; firstly, not a single document has been produced to establish that any wri tten complaint was made by the petitioner, his election agent or polling
agents regarding the corrupt practices or illegal acts committed by the respondent; secondly,
not a single doubtful vote was challenged by the polling agents of petitioner on the day of
election; thirdly, merely because some serious allegations have been made in the election petition, it would not be proper to order inspection/recounting of the voters of about 100 polling stations on the promise that no prejudice would be caused to the returned candidate;
fourthly, though, the respondent was required to be declared a returned candidate after the elections, held on 25th July 2018 on account of his lead, however, due to the corrupt practices and illegal acts committed by the petitioner at polling station Nos.44 and 45 with
the help of state missionary, repolling was held and the respondent again maintained his lead; fifthly, request of petitioner for re -counting of votes was not entertained by all the forums i.e.
the Returning Officer, the Commission, the Hon'ble High Court as well as the Apex Court in
the first round of litigation, therefore, it becomes a past and closed transaction and re -
agitating of the said claim at this stage is unjustified and finally, ordering recounting of the total votes after a period of about 4/5 months of the elections, in absence of evidence
regarding the safe custody of election materials, would serve no purpose.
20. Reverting to the next contention of Arbab Muhammad Tahir, learned counsel for the
petitioner, regarding non- casting of a single vote at Polling Station No.45, it would be
relevant to state here that general elections have become a major factor in stabilization and democratization despite all risks and problems, they entail, however, holding of gene ral
elections in Pakistan, particularly, in Balochistan was a tight rope walk between war and peace, stability and instability on account of the reason of worst law and order situation prevailing in this part of the country, especially at Makran and Darkha shan Divisions. It is
evident from the record that as per statement of the Presiding Officer of polling station No.45, no vote was cast at the said polling station on 25th July, 2018 due to fear and panic of terrorists. The non- casting of votes at polling station -45 can not be attributed to the
respondent nor his election can be declared void on this ground.
The onus to prove the factual controversy of corrupt and illegal practices, alleged to
have been committed during the election process, was upon the p etitioner. He did not
successfully prove the issue of corrupt practices. Resultantly, the election petition, moved by
the petitioner, is found to be baseless and unproved, consequently, is dismissed, with no order as to cost.
ZC/12/Bal. Petition dismisse d.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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