2019 Y L R 1542
[Balochistan]
Before Abdullah Baloch, J
JAM KAMAL KHAN--- Petitioner
Versus
ELECTION COMMISSION OF PAKISTAN through Secretary and 2 others ---
Respondents
Election Petition No. 5 of 2018, decided on 13th December, 2018.
Elections Act (XXXIII of 2017) ---
----Ss. 139 & 144---Election petition--- Election for the seat of National Assembly---
Allegations of illegal and corrupt practices ---Proof ---Requirements --Verification of thumb
impression ---Petitioner had failed to prove as to how many polling stations were targeted to
be rigged and in which manner, in whose presence to what extent and in what manner the
rigging was committed ---Presiding Officers and polling staff were deputed at all the polling
stations and poll was carried out smoothly and peacefully ---Petitioner had leveled general
allegations against the returned candidate seeking his declaration to be void without any solid and concrete evidence--- Nothing was on record as to particular act of illegal and corrupt
practice committed by any particular person on behalf of returned candidate ---General
allegations had been leveled against the respondent having no material substance to prove the case of corrupt and illegal practice warranting declaration of returned candidate to be void ---
His Lordship observed that party assailing the validity of election must bring on record the
corrupt practices committed and the full particulars of those practices should be given in the election petition by specifying the particular person or persons respon sible for such corrupt
practices ---Onus to prove allegations of rigging, corrupt and illegal practices was on the
petitioner while he had failed--- Order for verification of thumb impression would be justified
if there was prima facie evidence of rigging an d casting of invalid ballots were available on
record ---No such evidence was available on record in the present case--- Petitioner had failed
to prove rigging or corrupt practices committed by the respondent or any of his authorized polling agent ---Election petition was dismissed, in circumstances.
Usman Dar and others v. Khawaja Muhammad Asif and others 2017 SCMR 292 and
Muhammad Saeed v. Election Petitions Tribunal, West Pakistan and others PLD 1957 SC (Pak.) 91 rel.
Barrister Iftikhar Raza and Farooq Rashid for Petitioner.
Amanullah Kanrani for Respondent No.3.
Zahoor Ahmed Baloch, Additional A.G. for the State.
Rafique Ahmed Langove, Legal Advisors and Naseer Ahmed, Senior Assistant, ECP.
for Respondents.
Date of hearing: 8th December, 2018.
JUDG MENT
ABDULLAH BALOCH, J. --- This Election Petition under Section 139 of the
Elections Act, 2017 ("Act of 2017"), has been filed by the petitioner, Jam Kamal Khan, a
contesting candidate of general election from NA -272 Lasbella -cum-Gwadar, held on 25th
July 2018, assailing the Notification No.F.2(38)/ 2018- Cord. - dated 10th August, 2018
whereby the respondent No.3, Muhammad Aslam Botani, was declared as returned candidate. In the petition, it was prayed as under:
"It is therefore respectfully prayed that this Honorable Tribunal may be pleased to set
aside and impugned order dated 27- 07-2018 and allow the petition in the following
terms:-
i) Direct the respondent No.1 to suspend the result of constituency NA 272 Lasbella cum Gawadar till final disposal of this petition.
ii) Direct the respondent No.1 to verify/recounting all the valid and invalid votes of the said constituency and after re- examination of these votes, the petitioner may be
declared as returned candidate of NA -272 Lasbela Cum Gawadar.
iii) Direct the respondent No.1 for verification of thumb impression of all votes through bio-metric in polling stations of NA -272 Lasbela cum Gawadar and submit their
report.
iv) Direct the respondent No.1 to compare the Forms Nos.45, 47, 48 and 49 and compi le
the accurate result without any difference and counter the difference.
v) Directions may also be made to exclude all those votes casted in favour of the respondent No.2, which were without signatures of the presiding officer and without thumb impressions.
vi) After doing so, upon satisfaction, the Notification of the result of NA -272 Lasbella
cum Gawadar made in favour of the respondent No.3 may be declared null and void and respondent No.1 may be directed to notify the petitioner as a returned candidat e.
vii) Any other relief which this honorable court may deem fit and proper may also be extended in favour of the petitioner in the interest of justice and fair play."
2. The brief facts of the petition are that the petitioner and Muhammad Aslam Botani,
respondent No.3, along with respondents Nos.4 to 14 contested the general election from the
said constituency, which was held on 25th July 2018. According to Final Consolidated Result (Form -49), prepared by the Returning Officer ("R.O.") of the said Constituency on 29th July
2018, Muhammad Aslam Botani, respondent No.3 obtained 69016 votes and the petitioner
namely Jam Kamal Khan secured 63789 votes, thus he was declared as returned candidate
and accordingly vide Notification, Notification No.F.2(38)/ 2018- Cord.-dated 10th August
2018, the Election Commission of Pakistan declared Muhammad Aslam Botani, respondent No.3, as returned candidate from the said constituency. The petitioner being aggrieved of the said notification filed the present election petition, with the above relief.
3. Notices were directed to be issued to the respondents through all possible modes for
effecting service upon them, however only the returned candidate i.e. respondent No.3 contested the petition by filing his written statement, whe rein he has raised legal objection on
the maintainability of the petition and further added that general allegations for committing corrupt and illegal practices have been levelled by the petitioner and that too without any evidence, on the basis whereof neither the election of the respondent No.3 can be declared as void nor re -poll can be ordered to be made, when more the counting of ballot papers was
made in presence of polling agents of the petitioner. Since no one had come forward on behalf of the remai ning respondents to contest the petition, as such, they were proceeded
against ex -parte. On the divergent pleadings of parties, following issues were framed:
1 Whether the petition is not maintainable in view of the preliminary legal objections A and D of respondent No.3 (Returned Candidate)?
2. Whether the respondent No.3 with connivance of polling staff committed corrupt and illegal corrupt practice of massive rigging in the process of election and procured result in his favour?
3. Whether 10493 votes wer e excluded from the count with the connivance of the
respondent No.3 by the R.O. (Returning Officer) and most of the above votes were
cast in favour of the petitioner?
4. Relief?
4. Thereafter, the petitioner produced and examined two 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. Lastly, the attorney of the petitioner
namely Prince Ahmed Ali recorded his statement. In rebuttal , respondent No.3 did not
produce any witness and only recorded his own statement.
5. Learned counsel for petitioner contended that the polling agents of the petitioner
deputed on different polling stations were turned out during election process and even after the close of election and even no counting of ballot papers was effected in presence of polling agents, as such, in such like situation the votes cast in favour of the petitioner were doubled stamped and thus were not counted in favour of the petitioner, which is evident from the fact that more than 10493 votes were rejected; that in such like situation, the petitioner moved an application dated 27th July 2018 to the concerned Returning Officer, which application was partially allowed and only recount ing of 4000 votes was made instead of all
the rejected votes; that there is a difference of votes cast in provincial and national assemblies of the said constituencies, which depicts of the fact huge fake/bogus votes were cast in the elections; that despit e requests made by the polling agents, the concerned
Presiding Officer have not provided Form -45 to the petitioner and thus violated the relevant
provisions of Election Act of 2017; that the petitioner through concrete, solid and cogent
evidence has succeeded in establishing the charge against the respondent No.3, who being in league with the Presiding Officer has procured the election results in his favour, thus the election of the respondent No.3 is liable to be declared null and void and instead either t he
petitioner be declared as returned candidate or as an alternative re -poll may kindly be
ordered throughout the constituency.
6. On the other hand, the learned counsel for the respondent No.3 contended that the
petition is not maintainable as the contents of the petition were neither signed nor verified and also affidavit has not been sworn in respect of each paragraph of the petiti oner, which
otherwise is mandatory; that the petitioner has only levelled general allegations of rigging, but has failed to produce any cogent and positive evidence in such behalf; that the petitioner has failed to prove a case of illegal and corrupt pract ices 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 Gen eral and learned Legal Advisors of Pakistan
Election Commission have also assisted the Tribunal.
8. Heard the learned counsel for parties and with their able assistance perused the
record. So far as the maintainability of the petition is concerned, the res pondent No.3 though
has raised legal objections, but has failed to prove the same. The perusal of petition along with annexures would disclose the fact that the same were signed and duly verified by the petitioner as required under the law. The petitioner has deposited the requisite security amount. Besides, he joined all the contesting candidates in the petition. Therefore, the
petition is maintainable and the issue No.1 is resolved in favour of petitioner.
9 Adverting to issues Nos.2 and 3, suffice to obs erve here that both the issues are
interlinked with each other, thus the same are being decided together. In support of said issues, the petitioner has only produced the evidence of two witnesses i.e. PW -1 Abdul
Raheem and PW- 2 Hassan Ali. PW -1 is claiming to be the polling agent of the petitioner at
Polling Station at Government Middle School Bara Bagh. According to this witness he was turned out from the polling station at about 12.00 Noon, while the opponent polling agents were remained present in the po lling station and after one hour he was allowed to enter in the
polling station. While after close of polling at 6.00 p.m. once again he was turned out from the polling station and counting was made in his absence. This witness admitted in his cross -
examin ation that the number of votes in the said polling station was in between 500 to 550.
He also admitted that about 7/8 candidates were contesting the elections and the polling agents of the said candidates were also present in the polling station. PW -2 was the polling
agent of the petitioner at polling station Government Middle School Gwadar Halqa Panwan. He also alleged similar allegations as levelled by the PW -1. PW -2 has failed to mention
the correct number of contesting candidates. The attorney of the petitioner has levelled similar allegations, however, admitted in his cross examination that if the whole rejected votes are counted in favour of the petitioner, even then the respondent No.3 has the lead of about 6000 votes.
10. In rebuttal the respondent No.3 has also recorded his statement and contended that no
corrupt and illegal practice was committed by the respondent No.3 or in his behalf and all the
allegations are baseless and no rigging was committed at the time of polling. The polling was being carried out smoothly and peacefully, while after his defeat the petitioner has
levelled general allegations.
11. The comparative study of evidence produced by both the parties, it appeared that the
petitioner has failed to prove the charge of ma ssive rigging against the respondent No.3 or
his league with the Presiding Officers or polling staff. Both the witnesses have failed to mention the name of the person, who ousted them from the polling stations. The petitioner in his petition as well as thr ough evidence has failed to prove that how, many polling stations
were targeted to be rigged and in which manner, in whose presence and to what extent as well as in what manner the rigging was being committed and more particularly what was the reaction of the petitioner and his polling agents. The petitioner has only produced the evidence of two witnesses, who can bring the picture of only two polling stations, but has failed to produce any authentic evidence with regard to remaining polling stations. Admittedly, except the two polling agents of the petitioner, the polling agents of other contesting candidates have not raised any objection on any polling stations. Even otherwise,
it is not appealable for a prudent mind that even in absence of the polling age nts of the
petitioner and in presence of the polling agents of the remaining contesting candidate how
the rigging was taken place. The petitioner has failed to establish through the record that the respondent No.3 had procured the result in his favour by m eans of corrupt and illegal
practices by joining hands with the polling staff even not a single piece of evidence brought on record establishing the league of the respondent No.3 with the presiding officers or any of the polling agent. The petitioner has a lso failed to mention the name of any Presiding,
Officer or any other polling staff, who was in league with the respondent No.3 and was
abetting the respondent No.3 in rigging.
12. It has also come on record that Presiding Officers and polling staff were d eputed in all
the polling stations and the poll was being carried out smoothly and peacefully, while the petitioner has levelled general allegations against the respondent No.3 seeking his declaration to be void and that too without any solid and concrete evidence. Even otherwise, from the deposition of PWs nothing has come on record that a particular act of illegal and corrupt practice was assigned to any particular person that he has committed illegal and corrupt practice on or on behalf of respondent No.3, but general allegations have been levelled against the returned candidate, having no material substance to prove the case of corrupt and illegal practice warranting declaration of returned candidate to be void. Since, the petitioner has failed to prove main issues Nos. 2 and 3, as such, said issues are decided
against the petitioner, hence no relief could be granted.
13. According to settled norms of justice and being the consistent view of the superior
Courts that where an election is sought to be decla red void on the ground of corrupt
practices; the party assailing the validity of such election in his petition must bring to light the corrupt practices committed and the full particulars of those corrupt practices should be given in the petition by specif ying the particular person or persons responsible for such
corrupt practices and to prove the same during trial of the case. The burden of proof of
corrupt practices is on the shoulders of petitioner, but the petitioner has failed to shift such
burden from his shoulders. The Hon'ble Supreme Court of Pakistan in the case titled Usman
Dar and others v. Khawaja Muhammad Asif and others, reported in 2017 SCMR 292, has given the reference of a case titled, Muhammad Saeed v. Election Petitions Tribunal, West Pakistan, etc. reported in PLD 1957 SC (Pak.) 91, wherein it has been held that, "The law
relating to the trial of elections petition, though volumes have been written on it, in so far as
it is relevant to the present case, is so simple that it can be summed up in one sentence,
namely, where an election is sought to be set aside on the ground of commission of corrupt
practices, the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the pe tition or in his statement before the settlement
of issues full particulars of those corrupt practices. It has further been held in the said case that, "each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or ci rcumstantial; and that where the evidence is wholly circumstantial, the
commissioners before finding a corrupt practice proved must exclude all reasonable hypotheses which are consistent with that corrupt practice having not been committed".
14. So far as the prayer for verification of thumb impressions is concerned, suffice to
observe here that verification of thumb impressions would only be justified, where there was
prima facie evidence of rigging and the casting of invalid ballots available on record. S ince,
the petitioner has failed to prove rigging or corrupt practice committed by the respondent
No.3 or any of his authorized polling agents, thus the verification of the thumb impression would be unjustified. The cases relied upon by the learned counsel for the petitioner are distinguishable and not helpful to the case of petitioner.
For the above reasons, the petition is dismissed, with no orders as to cost.
ZC/6/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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