2020 M L D 120
[Balochistan]
Before Abdullah Baloch, J
JAMEEL AHMED DASHTI ---Petitioner
Versus
ABDUL RASHEED and 13 others ---Respondents
Election Petition No. 54 of 2018, decided on 22nd May, 2019.
Elections Act (XXXIII of 2017) ---
----Ss. 139 & 143--- Election petition ---Maintainability ---Election for the seat of Member
Provincial Assembly ---Allegations of illegal and corrupt practices ---Proof ---Requirements ---
Only contesting candidates could be made respondents in the election petit ion and any other
party could not be joined as respondent unless otherwise directed by the Election Tribunal ---
Petitioner in the present petition had arrayed official respondents unnecessarily without
permission from Election Tribunal ---Present petition was not maintainable, in circumstances -
--Contention of petitioner was based upon presumption and assumption---No Presiding Officer of any polling station or any of the polling staff was produced before Election Tribunal to substantiate the allegations ---Nothing was on record that any returned candidate
obtained or procured the assistance of Presiding Officer to secure his election---No inference could be drawn in absence of any concrete evidence that missing ballot books were done in connivance or collusion w ith the returned candidate ---Any careless or deliberate act on the
part of any functionary of Election Commission was not enough to nullify the election results ---Petitioner had levelled bald allegations against the respondent without any solid and
concret e evidence---Names of persons accused of corrupt or illegal practices or illegal act
and date and place of commission of such acts or practices were not available on record---Petitioner was bound to prove allegations of rigging and the use of corrupt and i llegal
practices which he had failed to prove the same---Allegations made in the election petition were not only vague, generalized, non- specific but also did not fulfil the requirements
enough to declare the elections of returned candidate to be void---Me re bald allegations of
rigging were not sufficient for verification of thumb impression from National Database and Registration Authority--- Election petition was dismissed in circumstances.
Pakistan Peoples Party v. Government of Punjab PLD 2014 Lah. 330; Mir Saleem
Ahmed Khosa v. Zafarullah Khan Jamali and others 2017 SCMR 664 and Hafeezuddin v. Abdul Razzaq PLD 2016 SC 79 rel.
Malag Dashti, Nadir Ali Chalgari and Bilal Mohsin, Rehan Jakrani and Farooq Ali for
Petitioner.
Kamran Murtaza, Noor Jan Buledi and Tahir Ali Baloch for Respondent No.1.
Shai Haq Baloch, Additional A.G. for the State.
Naseer Ahmed, Assistant, ECP.
Date of hearing: 11th May, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ---This Election Petition under Section 139 of the
Elections Act, 20 17 ("Act of 2017"), has been filed by the petitioner Jameel Ahmed Dashti
son of Syed Muhammad, a contesting candidate of bye -elections from PB -47 Kech -III, held
on 6th December 2018, assailing the Notification No.F.8(9)/2018- Cord. dated 11th
December 2018, whereby the respondent No.1, Abdul Rasheed, was declared as returned
candidate. In the petition, the following reliefs have been sought:
"a) Declare that the Petitioner as the elected/returned/successful candidate from PB -47
KECH- III in the bye -election held on 06.12.2018.
b) Declare that the Respondent No.1's election from PB -47 KECH -III is void and of no
effect.
c) The complete record from Election Commission of Pakistan regarding the Polling
Stations of the constituency PB -47 KECH -III that is counterfoils from 45 and 46 may
kindly be called for and taken into custody because there is serious apprehension of tampering of record as well as perusal of counterfoils and ballot papers by this hon'ble tribunal for the purpose validity and invalidi ty of the said counterfoils and ballot
papers.
d) Call for the polling bags of entire consistency in order to tally the ballot paper books/numbers with the votes polled on each and every polling station and have the thumb impressions of the votes contained therein verified through NADRA. The
petitioner is willing to pay the expenses on this account to NADRA.
e) To direct that recounting with examination of all the valid/ invalid ballot papers of the entire constituency under supervision of this learned trib unal or commission
appointed by this learned tribunal.
f) That meanwhile the notification wherein the respondent No.1 has been declared as returned candidate may be suspended because the mandatory condition of consolidation has been violated and if the ini tial order is void, the superstructure
becomes void.
g) The Respondent No.1 has willfully concealed his assets (mentioned in paragraphs Nos.6 and 7 of the petition) in his nomination papers as candidate for PB -47, Kech-
III, therefore, he is not righteous. He is also not "Sadiq" (honest) and "Ameen". He is untruthful and disqualified to be a member of the parliament under article 62(1) f of the Constitution of Islamic Republic of Pakistan 1973. He has also disqualified to
hold a public office for life.
h) Any other relief which this Honourable Court deems fit and proper under the
circumstances of the case.
i) Costs of the petition."
2. Facts given rise to file this petition are that the petitioner and Abdul Rasheed,
respondent No.1, along with respondents Nos .2 to 11 contested the bye -elections from PB -47
Kech -III, which were held on 6th December 2018. According to Final Consolidated Result
(Form -49), prepared by the Returning Officer ("R.O.") of the said Constituency dated 8th
December 2018, the respondent No.1 obtained 7088 votes and the petitioner namely Jameel Ahmed Dashti secured 5758 votes with a difference of 1330 votes, thus the respondent No.1 was declared as returned candidate from the said constituency by the Election Commission of Pakistan ("ECP"), vide Notification No.F.8(9)/2018- Cord. dated 11th December 2018. The
petitioner being aggrieved of the said notification filed the present election petition, with the above relief.
Along with main petition, the petitioner has also filed C.M.A. No.1486 of 2018 for
examining the thumb impressions of votes, counterfoils through Biometric System of NADRA.
3. Notices were directed to be issued to the respondents through all possible modes for
effecting service upon them, however only the respondent No.1 chose to contest the petition
and submitted his written statement to the petition and rejoinder to the C.M.A., stating
therein that the petition is not maintainable and liable to be dismissed for the reason that
mere bald allegations for committing corrupt and i llegal practices have been leveled by the
petitioner, on the basis whereof neither the election of the respondent No.1 can be declared as void nor re -poll can be made. Since no one had come forward on behalf of the remaining
respondents to contest the peti tion, thus they were proceeded against ex- parte. This Tribunal,
out of pleadings of parties, framed the following issues:
1. Whether the petition is not maintainable in view of the legal objections of respondent No.1?
2. Whether at the time of filing of no mination papers the respondent No.1 mis -declared
his assets and also concealed his business of estate agency and immoveable properties, on this account, he is liable to be disqualified?
3. Whether the respondent No.1 with connivance of election officials c ommitted
massive rigging in the poll and procured the result in his favour by means of corrupt and illegal practice?
4. Relief?
4. After framing issues, the petitioner produced eleven (11) witnesses, whose affidavits
were already filed with the election petition. The witnesses owned their affidavits and averments of the affidavits in their examination -in-chief. The petitioner appeared and
recorded his own statement and verified the contents of his petition and affidavit. In rebuttal, the responde nt No.1 has recorded his own statement and owned the contents of his affidavit
and the written statement.
5. Learned counsel for petitioner contended that the respondent No.1 is not qualified to
be a member of the Parliament under the provisions of Article 62(1)(f) of the Constitution of
Islamic Republic of Pakistan, 1973 ("the Constitution") for the reasons that while filing his nomination papers he concealed his income, business and assets, thus neither he is a
righteous person nor is "Sadiq" (honest) and "Ameen". The learned counsel contended that
massive rigging was committed on the day of election by the respondent No.1 being in league with the Presiding Officer and polling staff, which fact is evident that there is only difference of 1330 in between the votes obtained by the petitioner and the returned candidate, while about 23 ballot books containing 2300 ballot papers were handed over to the respondent No.1 by the Presiding Officers and polling staff and the respondent No.1 used the same by casting bo gus votes in different polling stations. It has further contended that after
close of election process, the results were being received from different polling stations, according to which the petitioner was in lead having secured highest votes than any other candidate and the news of winning the elections by the petitioner were also reported in electronic and social media declaring the petitioner as a returned candidate with the margin of 564 votes, but the respondent No.1 being influential person and the t icket holder of ruling
party succeeded in delaying the elections results and in the dark of night, the results of seventeen polling stations were changed and manipulated by decreasing the votes of the petitioner and counting the same in favour of the respo ndent No.1 and thus he was declared
returned candidate, thus the petitioner immediately filed an application for recounting, but his such request was not entertained. Furthermore, the polling agents so appointed by the petitioner were either not allowed to sit in the polling stations or at the time of counting they
were turned out from the polling stations in order to manipulate the election results of each polling stations, thus all these facts can easily be ascertained once the examination of thumb impres sions of voters contained on counterfoils are scrutinized through the modern devices
of NADRA; that the petitioner has proved its case by producing confidence inspiring
evidence; that the evidence produced by the petitioner has not been shaken nor veracity
thereof be doubted, the counsel for the respondent No.1 despite conducting lengthy cross examination has failed to shake their testimony rather all the PWs remained firm in their deposition, hence the election of returned candidate i.e. respondent No.1 is liable to be
declared as void and fresh elections be held in the constituency.
6. Conversely, the learned counsel for the respondent No.1 contended that the petition is
not maintainable for non compliance of Section 144 of the Elections Act 2017; that the
petition suffers from mis -joinder of necessary parties, as this Tribunal i3 not competent to
entertain the case against the R.O., D.R.O. and Election Commission of Pakistan, but they have been arrayed in the petition as respondent No.12 to 14; that the el ection process was
conducted justly and fairly and no rigging at all was committed by the respondent No.1 or any other contesting candidate as the personnel of security forces were deputed on each polling station; that the petitioner has failed to prove a case of illegal and corrupt practices as per provisions of the Elections Act 2017; that there is huge difference in between the votes obtained by the petitioner and the respondent No.1, hence the petition being not maintainable is liable to be dismissed.
7. Learned Additional Advocate General and the representative of Pakistan Election
Commission have also assisted the Tribunal.
8. Heard the learned counsel for parties and perused the available record with their
valuable assistance. It has been observed that after declaring disqualified to the then returned candidate i.e. Mir Abdul Rauf Rind, the Election Commission of Pakistan announced schedule for by -election in the constituency, which was accordingly held on 6th December
2018 and after counting, it appea red that the respondent No.1 has secured highest votes, thus
the Election Commission of Pakistan declared him as returned candidate from the said
constituency. Since, the petitioner was not satisfied from the conduct of the election in the constituency and has alleged massive rigging, thus he has filed the present election petition
before this Tribunal. Perusal of petition reveals that the petitioner has joined as many as fourteen (14) respondents, out of which the respondent Nos.1 to 11 are the contesting candidates, while the respondent No.12 is Returning Officer, the respondent No.14 is District Returning Officer and the respondent No.13 is Election Commission of Pakistan. The provisions of Section 143 of the Election Petition are clear that only the cont esting
candidates can be made respondents and any other party cannot be joined as respondent unless otherwise directed by the Election Tribunal, while in the instant petition without seeking any permission from the Tribunal or the direction of the Tribunal , the official
respondents have been arrayed unnecessarily and thus the petition being not maintainable is hit by the provisions of Section 143 Cr.P.C. The issue No.1 is resolved accordingly.
9. Disqualification of the respondent No.1 (returned candidate) has also been sought
under the provisions of Article 62(1)(f) of the Constitution on the ground of concealment of his business as well as source of income and assets. According to the case of petitioner, the respondent No.1 while filing his nomination pape rs intentionally and deliberately has not
mentioned about "Sanghai Estate Agency", which he owns himself as he is running his business of Real Estate Agent, which was registered in the name of respondent No.1 in the Excise, Taxation and Narcotics Department Turbat. In order to establish this issue, the petitioner has produced the evidence of PW -3 Beerbal Tariq, Excise and Taxation Officer
Kech, who brought on record that initially the respondent No.1 along with his partners filed
an application dated 11th D ecember 2013 (Exp.3/A -1) for registration of Sanghai Estate
Agency, which was accordingly registered in the names of respondent No.1 and his partners
under Section 6 of Balochistan Finance Act, 1996, vide registration No.EA3/E&T:EX/351 dated 11th December, 2017 (Mark- P3/ A-2). However, subsequently the same was withdrawn
from the name of the respondent No.1 on his own application dated 10th May 2018. This
witness in his cross -examination has further clarified that on 5th May 2018 he received two
application s i.e. first from the respondent No.1 and the second from the partners of
respondent No.1 i.e. Jan Muhammad Dashti for change of ownership of the registration
certificate. The same was accordingly withdrawn from the name of respondent No.1 and accordingly recorded in his names of other persons, thus at the time of filing his nomination
papers the respondent No.1 had absolutely no concern or connection with the said Estate Agency or from its business.
10. Disqualification of the returned candidate has also been sought on the ground that
while filing his nomination papers he has concealed his properties of about 200 Acres and in order to establish this ground, the petitioner has produced the evidence of PW -2 Muhammad
Amin, Naib Tehsildar Dasht Khudan, who disowned the Fard- e-Intikhab and Jamabandi of
Khewat No.16 Khatooni No.16 and further added that the same were neither issued by him nor the same having similarity with the original record. PW -2 in his cross examination
admitted that the documents which he has referred as uncertified are not admissible under the law. PW -2 further added that this property was measuring 194 Acres, out of which 134 Acres
were distributed amongst the family members of returned ca ndidate, while only 60- Acres are
in the name of the respondent No.1. He further admitted that after family partition on 12th April 2017, only 60 Acres of land are registered in the name of respondent No.1 and no any change has been made in the revenue record. This witness has further admitted that according to revenue record Mark.P -2/2, the respondent No.1 is in the ownership of 14 Acres of land.
11. Admittedly, the petitioner has failed to establish through record that in what manner
and capacity the retur ned candidate had concealed his assets or business or income. Even
otherwise perusal of record reflects that admittedly no objection was filed by the petitioner at the time of filing of nomination papers, when otherwise no appeal was filed after acceptance
of nominations papers, therefore, no remedy was availed. Even the documentary evidence so produced was disowned by the own witness of the petitioner i.e. PW -2 that neither the same
were issued by him nor the same hay similarity with the original record. I t has further been
observed that there are certain stages or events of elections commencing from election schedule, filing of nomination papers. objections against the nomination papers its decision by the R.O. or D.R.O. or upper forum, holding of election s, announcement of results and
petition before the tribunal assailing the elections results. However, it appears from the record that the petitioner has failed to object the nomination papers of the returned candidate at the time of filing of nomination pa pers, hence the remedy so available with the petitioner
was not availed. In this regard reference can be made to the case of "Pakistan Peoples Party v. Government of Punjab" (PLD 2014 Lah. 330), where in it was held:
"The above quoted precedents, includin g most importantly, the view expressed by the
Hon'ble Supreme Court of Pakistan considered the stages of the election process that are challengeable before an Election Tribunal to constitute "election" within the meaning of Article 225. These are the stage s or events that form part of the election
schedule to constitute the "election". It is the propriety of action taken in these stages that can be scrutinized by an Election Tribunal. It is an established point that the stage
of delimitation of constituencies occurs prior to and is altogether distinct from the
election process that is announced in an election programme. Nor is it a stage that is amenable to the jurisdiction of an Election Tribunal as envisaged by the Constitution and by the Hon 'able Supreme Court in Hashmi's case."
In view of above, the issue No.2 is resolved in negative.
12. The petitioner has also sought disqualification of the returned candidate on the ground
of corrupt and illegal practices on the day of elections and in this regard the issue No.3 was
framed. In order to establish the issue of corrupt and illegal practices, the petitioner has produced the evidence of PW -4 to PW -11. PW -5 Syed Jan Ghichki, has stated that he was
the polling agent of petitioner at Polling Station Bilnagore Dasht and on the day of polling at
about 8.00 a.m. he asked the Presiding Officer for showing the ballot books and after checking it reveal that according to Form -36 packing invoice, 34 ballot books were issued to
Presiding Officer, while the Presiding Off icer was only in possession of 26 ballot books and
admittedly after tearing down the bag, 8 ballot books were taken out. Likewise, in cross examination, he has admitted that he did not file any complaint at the relevant time even thereafter any concerned. He also admitted that petitioner secured 246 votes and respondent No.1 secured 166 votes from this polling station. Meaning thereby that the petitioner had secured higher votes than the respondent No.1. Similarly, PW -6 also claimed that as per
invoice out of 10- books of ballot papers, two books were missing, but on the other hand in
cross -examination he admitted that from his piling station the petitioner secured 10 votes,
while respondent No.1 secured 14- votes again the shortage of Ballot books cannot be
justified. PW -8 Abdul Ghafoor alleged missing of 04 ballot books, PW -9 Muhammad Rafiq
alleged missing of 04 ballot books i.e. total 23 ballot books containing 2300 ballot papers. In such behalf, the learned counsel for petitioner has alleged that the returned candidate being the ticket holder of ruling party was in league with the Presiding Officers and in whose connivance the ballot books were handed over to the respondent No.1, who polled the same
through impersonation in different polling stations. The co ntention of the learned counsel for
the petitioner has absolutely based upon presumptions and assumptions. No Presiding Officer of any of the polling station or any of the polling staff was produced in this Tribunal to substantiate the allegations. Even otherwise, the Form -36 of the said polling stations
available on record does not describe that the returned candidate "obtained" or "procured" the assistance of the Presiding Officer to secure his election. Thus, no inference could be drawn in absence of any concrete evidence that missing of ballot books were done in connivance or
collusion with the returned candidate and benefit whereof availed in by him in any manner, while re -appraisal of evidence reflects that meager votes secured by both the candidates f rom
above polling stations. Since, there is more than one possibility as to what could have happened with the missing ballot books, thus I cannot drawn an inference as suggested by the learned counsel for the petitioner. Even otherwise, any careless or del iberate act on the part
of any functionary of the ECP, whereby the election material was found missing is not enough to to nullify the election results. This issue has already come for hearing before the Hon'ble Supreme Court of Pakistan in case titled Mir Saleem Ahmed Khosa v. Zafarullah
Khan Jamali and others 2017 SCMR 664, wherein it was held that:
"6. Learned counsel also referred to a document to demonstrate that seals of several bags containing election material were found to be broken in order to su pport his plea
of rigging. In our view, any careless or deliberate act on the part of any functionary of the Election Commission whereby the election record could not be adequately
preserved and seals were broken would not result in nullifying the election result.
There has to be some reliable meterial on record to reach the conclusion that the
winning candidate indulged in illegal and corrupt practices otherwise every losing candidate after managing to get the seals of the bags containing election material
broken would seek re polling or re -election." [BOLD ADDED].
13. The statements of PW -4 Naseer Ahmed, PW- 7 Qambar Khan, PW -10 Murshid and
PW-11 reflect that they have claimed to be the polling agents of the petitioner in different
polling stations and on t he day of polling they were harassed by the Presiding Officers,
officials of security forces, they were not allowed to either sit in the polling station or they were ousted from the polling stations and the counting was made in their absence and it has also been alleged that the votes obtained by the petitioner were counted in favour of the
returned candidate. Suffice, to state here that the petitioner has only leveled bald allegations against the respondent No.1 seeking the declaration of the returned candidate to be void without any solid and concrete evidence. It has come on record through the statements of said polling agents that they were not the voters of the said polling stations, thus it was very difficult for them to identify each voter and blame f or impersonation. The polling agents who
stated that they witnessed casting of bogus votes also admitted in their cross -examination
that they did not challenge a single vote at the time of of polling. Even after the polling was over, the petitioner did not approach the Provincial Election Commission to report the
alleged corrupt practices rather it has come on record that he was enjoying the so -called
election results pronounced in his favour through electronic and social media and after losing the election s, he has come forward with lame excuses. Anyhow, the petitioner whilst
recording his statement before this Tribunal has admitted in his cross -examination that the
result was consolidated/prepared on the basis of polled votes. The said admission of petitio ner is meaningful and as per own admission of the petitioner, no case for illegal or
corrupt practices remains in the field.
14. It has also been observed that the names of the persons accused of corrupt or illegal
practices or illegal act and the date and the place of commission of such acts or practices
were not available on record. The onus to prove allegations of rigging and the use of corrupt and illegal practices is on the shoulders of petitioner, but the petitioner has failed to shift such burden from his shoulders. Admittedly, the allegations made in the election petition are not only vague, generalized, non- specific, but also did not meet the requirements enough to
declare the elections of the returned candidate to be void. Reliance in this regard i s place on
the case of Hafeezuddin v. Abdul Razzaq PLD 2016 Supreme Court 79, wherein it has been held, as under:
"Before we embark upon an analysis of the evidence and a determination about the correctness or otherwise of the findings of the learned Tribunal, it is pertinent to mention that the rules of proof for the grounds challenging the election which are founded on corrupt and illegal practices are quite strict and stringent and the allegations in this regard must be absolutely proved through positive evidence without accepting any inferences and if there is any doubt, the benefit must go to the person against whom corrupt or illegal practices are being alleged "
Thus, issue No.3 is also resolved in negative.
15. So far as the prayer for verification of thumb impression through the modern devices
of NADRA is concerned, suffice to observe here that the petitioner has failed to substantiate the allegations of illegal and corrupt practices. Even otherwise, nothing has come on record
that on which polling station rigging was made and to what extent as well as in what manner
coupled with the fact that who was the person or persons doing so and on what date and time
and what was the reaction of the polling agents of the petitioner at the relevant time. Mere on the basis of bald allegations of rigging, the Tribunal cannot order for verification of thumb impressions from NADRA.
The case laws referred by the learned counsel for the petitioner are distinguishable
from the facts and circumstances of the present case.
For the above reasons, the petition along with C.M.A. No.1486 of 2018 are dismissed.
ZC/37/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,
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