2019 Y L R 1594
[Balochistan]
Before Abdullah Baloch, J
LIAQUAT ALI ---Petitioner
Versus
AKHTAR HUSSAIN and 28 others ---Respondents
Election Petition No.30 of 2018, decided on 19th December, 2018.
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 ---Verification of thumb impression ---General allegations of illegal and corrupt
practices had been leveled against polling officials ---Petitioner had failed to mention the
name of any of the officials who was indulged in the illegal and corrupt practices ---
Statements of petitioner's witnesses were silent with regard to polling stations, time and
persons involved in the alleged rigging---Nothing was on record to prove the case of illegal
and corrupt practices warranting declaration of returned candidate to be declared as void ---
Petitioner was required to have given full particulars of incorrect declaration, illegal and corrupt practice--- Benefit of doubt was to be extended to the party against whom allegations
had been leveled---General allegations without supporting evidence could not be taken into consideration having not fulfi lled the mandatory requirements of S.144 of Elections Act,
2017--- Onus to prove allegations of rigging, corrupt and illegal practices was on the
petitioner who had failed to shift such burden ---Huge difference between number of votes
secured by the petitioner and returned candidate was on record ---Order for recounting or
verification of thumb impression would be justified if prima facie evidence of rigging and casting of invalid ballots was available on record---Petitioner could not take benefit from the weakness of the case of defence---Election petition was dismissed, in circumstances.
Usman Dar and others v. Khawaja Muhammad Asif and others 2017 SCMR 292;
Pakistan Peoples Party v. Government of Punjab PLD 2014 Lah. 330 and Syed Hafeezuddin v. Abdul Razz aq and others PLD 2016 SC 79 rel.
Muhammad Akbar Shah for Petitioner.
Muhammad Riaz Ahmed and Mir Attaullah Langove for Respondent No.1.
Ahmed Ali, Additional A.G. for the State.
Naseer Ahmed Senior, Assistant ECP.
Date of hearing: 15th December, 2018.
JUDGMENT
ABDULLAH BALOCH, J. ---This Election Petition under Section 139 of the
Elections Act, 2017 ("Act of 2017"), has been filed by the petitioner, Liaquat Ali, a
contesting candidate of general election from PB -29 Quetta -VI, held on 25th July, 2018,
assailing the Notification No.F.2( 42)/2018- Cord. - dated 7th August 2018, whereby the
respondent No.1, Akhtar Hussain Langove, was declared as returned candidate. In the petition, the petitioner has sought the following reliefs:
"IN VIEW OF THE ABOVE GROUNDS, it is most respectfully prayed that notice
may be taken of the illegalities and corrupt practices committed by respondent No.1 with conyance [connivance] of D.R.O., R.O. and Election Staff, together with complete recounting of votes and send the counterfoils of the used ballot papers of the mentioned polling stations in Para # 04 and 07, to NADRA authorities for identification/verification of thumb impressions. Furthermore the bogus votes may be excluded from the count of returned CANDIDATE including declaring the returned CANDIDATE of PB -29, Quetta -VI under section 156 of the Act, void.
OR
To, Direct the re -polling of 32 (thirty two) polling . stations which are mentioned in
above Paras 04 and 07 of the petition.
OR
Election of the candidate may be declared void as a whole.
OR
Any other relief as this Honorable tribunal deems fit in the facts and circumstances may also be granted in favour of petitioner."
2. Facts of the case are that the petitioner and, respondent No.1 (Akhtar Hussain
Langove), along with respondents Nos.2 to 29 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, Akhtar
Hussain Langove, respondent No.1 ob tained 12603 votes and the petitioner namely Liaquat
Ali secured 4885 votes, thus vide Notification No.F.2(42)/2018- Cord.- dated 7th August
2018, the Election Commission of Pakistan declared Akhtar Hussain Langove, respondent No.1, as returned candidate fr om 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, in response thereof the returned candidate i.e. respondent No.1
(Akhtar Hussain Langove), chose to contest the petition, while rest of respondents were proceeded against ex parte. The respondent No.1 while filing his written statement, objected that the petition is not maintainable and liable to be dismissed for the reason that general allegations for committing, corrupt and illegal practices ha ve been levelled by the petitioner,
while there is a huge difference in between the votes obtained by the petitioner and the
returned candidate, on the basis whereof neither the election of the respondent No.1 can be
declared as void nor re -poll can be ordered to be made, when more particularly the counting
of ballot papers was made in presence of polling agents of the petitioner, thus the petition is not maintainable under Sections 143, 144 of the Elections Act, 2017. On the divergent pleadings of parties, following issues were framed:
1 Whether the petition is not maintainable in view of legal objection of respondent No.1?
2. Whether the respondent No.1 with connivance of Polling Officer/ officials of PB -29
Quetta - V1, committed corrupt and illegal practic e of massive rigging in the process
of election and procured the result in his favour?
3. Whether the petitioner being contested candidate have locus standi to challenge the election of respondent No.1 on the point of delimitations, declared as null and void by the High Court of Balochistan on 01.06.2018?
4. Whether this Tribunal has the jurisdiction under Elections Act, 2017 to declare the election of Returned Candidate as null and void on the score of delimitations?
5. Relief?
4. In support of issues, the petitioner has produced and examined twenty two (22)
witnesses, whose affidavits were already filed with the election petition. The witnesses owned their affidavits and averments of the affidavit s in their examination- in-chief. The petitioner
also recorded his own statement and owned the averments contained in his affidavit. In rebuttal, the respondent No.1 produced thirteen (13) witnesses, who owned their affidavits already filed with the written statement and the averments of affidavits in their examination -
in-chief. Lastly the respondent No.1 entered in the witness box and recorded his own
statement and refuted the allegations levelled by the petitioner.
5. Learned counsel for petitioner contended that the respondent No.1 (returned
candidate) being in league with the Presiding Officers, polling staff and personnel of security agencies targeted 32 polling stations and committed massive rigging in the elections by means of persuading and pressurizi ng the voters to poll their votes in favour of respondent
No.1 and even after close of polling and counting, instead counting in the polling stations and providing Form -45 to the polling agents of petitioner, the ballot boxes were taken to
Kacheri and in t his manner votes polled in favour of petitioner were spoiled, double stamped
and even bogus votes were cast in favour of respondent No.1, which act was agitated even by the polling agents of the petitioner as well as the petitioner in person, but without a ny
practical results and all these facts can easily be ascertained, if the recounting and verification of thumb impression of voters are scanned through modern devices of NADRA; that the witnesses so produced along with the supporting documents are enough to establish
that the result of election was procured by the respondent No.1 by means of corrupt and
illegal practices by joining hands with the Presiding Officers, Polling Staff and personnel of law enforcing agencies; that the votes obtained by the respo ndent No.1 were rejected and
considerable rejection of votes is unnatural, which smacks of mala fide intention on the part of the concerned Officers/Officials being in league with the respondent No.1, hence the
petitioner is entitled to be declared as retu rned candidate and the election of respondent No.1
is liable to be declared as void or as an alternative re- polls be ordered in whole of the
constituency or at least in 32 polling stations.
6. On the other hand, the learned counsel for the respondent No.1 contended that the
petition is not maintainable as the relevant provisions of Elections Act of 2017 was not
complied with; that the polling process was carried out peacefully and in accordance with the provisions of Elections Act, 2017 and no rigging at al l was committed on the day of polling
and the petitioner has levelled false and general allegations for committing massive rigging, whereas to the contrary he has failed to establish the charge; that after counting of votes in presence of all the polling a gents of the contesting candidates, Form -45 was issued in
accordance with law and even the Polling Agents of the petitioner as well as the other contesting candidates have failed to challenge even a single vote at the time of counting; that
on the applicat ion of the petitioner, the concerned R.O. recounted the ballot papers and
perused the Form -45 and thereafter in accordance with law and after finding the allegation of
the petitioner baseless, declared the respondent No.1 as returned candidate; that there is huge
difference of votes in between the votes obtained by the petitioner and the respondent No.1,
thus no recounting can be ordered to be made in view of Section 95(5) of Elections Act, 2017, hence the petition being not maintainable is liable to be dis missed.
7. Learned Additional Advocate General and learned Legal Advisor of Pakistan Election
Commission have also assisted the Tribunal.
8. Heard the learned counsel for parties and with their able assistance perused the
record. The perusal of record reve als that the respondent No.1 while filing written statement
has raised certain legal objections with regard to non- maintainability of the petition and in
this regard issue No.1 was framed. The respondent No.1 has failed to bring on record any material evid ence establishing that the petition is not maintainable in view of Section 139 of
the Elections Act, 2017. Even nothing has been produced by the petitioner that while filing the petition any provision of law has not been complied with. Perusal of petition along with
its annexures reflect that the same were duly signed and verified on oath by the petitioner as required under the law and also annexed all the necessary documents as required under Section 144 of the Act of 2017. Besides, he joined all the conte sting candidates in the
petition as well as deposited the requisite security amount. Thus, the issue No.1 is resolved in favour of petitioner.
Issue No.2:
"Whether the respondent No.1 with connivance of Polling Officer/officials of PB -29
Quetta - VI, com mitted corrupt and illegal practice of massive rigging in the process
of election and procured the result in his favour?"
9. So far as the issue No.2 is concerned, the same relates to massive rigging allegedly
committed by the returned candidate i.e. respondent No.1 being in league with the Polling
officers/ officials. In order to establish the said issue, the petitioner has produced and examined the evidence of PW- 1 Muhammad Ibrahim, PW -2 Taha Haider, PW- 3 Gul
Muhammad, PW -4 Ayaz Lahri PW- 5 Abdul Qayyum, PW -6 Zahoor Ahmed, PW -7
Muhammad Javed, PW -8 Raheem Bakhsh, PW -9 Jan Muhammad, PW -10 Muhammad
Noman, PW -11 Shah Rukh, PW -12 Ha seeb Ahmed, PW- 13 Muhammad Ishaq, PW -14
Muhammad Haroon, PW -16 Naveed Alam, PW -17 Sajjad Ahmed, PW -18 Saddam Hussain.
PW-19 Abu Bakar, PW -20 Nazakat Ali, PW- 21 Atta Ullah and PW -22 Aurangzaib. All the
witnesses are claiming to be the polling agents of the petitioner, while PW -15 Khan
Muhammad, Civil Judge -VI Quetta is the Returning Officer of the constituency, who
produced the Form -45 of the consistency and brought on record that on the application of the
petitioner, the recounting of the ballot papers was made. The private witnesses being the polling agents of the petitioner have alleged that massive rigging was made by the respondent No.1 with the connivance and collusion of the Presiding Officers, Polling Staff and the personnel of law enforcing agencies, who were compelling, pressurizing and
persuading the voters of the petitioner to cast their votes in favour of the respondent. It has also been alleged by the witnesses that after close of polling, they were ousted from the polling stations and till midni ght no counting was made in the polling stations rather the
personnel of security agencies took the ballot boxes to Kacheri, hence in this manner neither the counting was made in their presence nor Form -45 was provided to them.
10. The comparative study of statements of PWs would establish the fact that all the
witnesses unanimously levelled general allegations of corrupt and illegal practices of massive rigging in the different polling stations by the polling Officers/Officials and the personnel of law enf orcing agencies, but they have failed to even mention the name of any
single officer, official and personnel of law enforcing agencies, who were indulged in illegal and corrupt practices and allegedly persuading the voters of the petitioner to cast their votes in favour of respondent No.1. The statements of PWs are silent that in which polling station, at what time, who was committing illegal or corrupt practices and to what extent as well as in what manner. Though, the statements of PWs show that they made applications to the
Presiding Officers, but perusal of such applications show that the said applications were not received by any of the official, thus in this manner presumption can be drawn that such applications were after thought and written subsequently just to make a ground for filing this petition. It has further been observed that the petitioner has annexed stereotype affidavits of the witnesses. The assertions in all the affidavits of the PWs are almost same, thus it is not appealable to a prudent mind that similar nature of acts were being committed in all the
polling stations and even by adopting a similar nature of modus operandi. Even otherwise, from the deposition of PWs nothing has come on record that a particular act of illegal and corrupt p ractice was assigned to any particular person, who has committed illegal and corrupt
act on or on behalf of respondent No.1, but general allegations have been levelled against the returned candidate, having no material substance to prove the case of corrup t and illegal
practice warranting declaration of returned candidate to be declared as void. Admittedly, the petitioner has only levelled general allegations against the respondent No.1 seeking declaration of the returned candidate to be void without any so lid and concrete evidence,
while in such like election petitions where if a case of corrupt and illegal practice is proved
having penal consequences and besides containing three years imprisonment, meaning
thereby the evidence so brought by the parties if any doubt is created, the benefit of such doubt would be extended to the party against whom allegations have been leveled, while the petitioner in term of Section 144(1)(b) of Election Act, 2017 required to have give full particulars of incorrect declarati on, illegal and corrupt practices along with supporting
evidence while general allegations without supporting evidence could not be taken into
consideration having not fulfilled the mandatory requirement of Section 144(1)(a)(b) of
Elections Act, 2017.
11. It has further been observed that despite alleging that rigging, corrupt and illegal
practices have been adopted in 32 polling stations; while the petitioner produced only 21 private witnesses, who collectively accounted for 21 polling stations, while nothing was brought on record regarding the remaining 11 polling stations. 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. Thus, the issue No.2 is resolved in negative. The Hon'ble Supreme Court of Pakistan in the case titled as Usman Dar and others v. Khawaja Muhammad Asif and others, reported in 2017 SCMR 292, has held as under:
"Reference may be made to Muhammad Saeed v. Election Petitions Tribunal, West Pakistan, etc. (PLD 1957 SC (Pak.) 91) wherein it was 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 si mple 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 petition or in his
statement before the settlement of issues full particulars of those corrupt practices; that no fresh charge or instance of a corrupt practice can be added at the trial, that the burden of proof of corrupt practic es is on the petitioner; that the evidence in proof of
such practices must be restricted to the charges or instances mentioned in the petition and the particulars; that each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial; 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 committee Reference may also be made to the case
of Hafeezuddin v. Abdul Razzaq (PLD 2016 Supreme Court 79) in which this Court held that, '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 t hrough 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, as held by this Court in the cases reported as Muhammad Saeed and 4 others v. (1) Election Petitions Tribunal, West Pakistan, (2) Mehr Muhammad Arif Khan, (3) Ghulam Haider and (4) West Pakistan Government and others (PLD 1957 SC (Pak.) 91); Mian Jamal Shah v. (1) The Member Election Commission, Govern- ment of Pakistan, Lahore, (2) The
Returning Officer, Constituency of the National Assembly of Pakistan No.NW -II,
Peshawar II, and (3) Khan Nasrullah Khan (PLD 1966 SC 1); Khan Muhammad
Yusuf Khan Khattak v. S. M. Ayub and 2 others (PLD 1973 SC 160)".
12. It has further been observed that there is a huge difference in between the votes
secured by the petitioner and the respondent No.1, while legally the order of recount or verification of thumb impressions would only be justified, where there was prima face evidence of rigging and the casting of invalid ballots are available on record.
13. So far as, the issues Nos.3 and 4 are concerned, it would be appropriate to reproduce
the aforesaid issues, which are as under:
3. Whether the petitioner being contested candidate have locus standi t o challenge the
election of respondent No.1 on the point of delimitations, declared as null and void by the High Court of Balochistan on 01.06.2018?
4. Whether this Tribunal has the jurisdiction under Elections Act, 2017 to declare the election of Returned Candidate as null and void on the score of delimitations?
Apparently, the issues Nos.3 and 4 relates to declaring null and void the election on
the basis of delimitations and in view of judgement dated 1st June 2018 passed by the Hon'ble High Court of Ba lochistan as far as the jurisdiction of this Tribunal for declaring the
election as void on the point of delimitation is concerned, in this behalf it is observed that the election is a process commencing from the election schedule followed by filing of nomination papers and its scrutiny as well as hearing of objections and holding of actual
polls. If any of these links is challenged, it really (is) tantamount to challenging the said process of election. It is the proprietary of action taken in these stages that can be scrutinized
by this Tribunal. It is an established point that the stage of delimitation of constituencies occurs much prior to and is altogether distinct from the election process that is announced in an election programme. Nor is it a stage th at is amenable to the jurisdiction of this Tribunal.
In this regard reference can be made to the case of "Pakistan Peoples Party v. Government of Punjab" (PLD 2014 Lahore 330), where in it was held:
"The above quoted precedents, including 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 stages or events that f orm 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'ble Supreme Court in Hashmi's c ase."
Thus the issues Nos.3 and 4 are answered in negative.
14. In view of the above discussion, it has clearly been established that the petitioner has
failed to establish the charge of illegal and corrupt practice through cogent and confidence
inspiring rather general allegations of massive rigging has been levelled. The petitioner
throughout the proceedings has failed to raise his finger on the returned candidate for
committing illegal and corrupt practices directly or through his polling agents or any of the
Polling Staff, who were involved in the rigging in any manner or abetting the respondent No.1 to procure the election result in his favour rather it has further been established that the
allegations of the petitioner were/are mere words, which can n either make basis for declaring
the election results of the respondent No.1 as void nor re -poll can be ordered. It is, by now,
well established principle of law that in election matters it is the accuser, who has to prove
its case against the respondent by standing on its own legs and it cannot take any benefit
from the weaknesses of the case of defence. Needless to observe here that the respondent may take any plea in his defence, but his failure to substantiate such a plea would not automatically result in success of the case of the accuser, which is, otherwise, legally bound to prove its case to the hilt, beyond any shadow of doubt, regardless of weaknesses in the case of defence. The Hon'ble Supreme Court in the case of Syed Hafeezuddin v. Abdul Razzaq and others PLD 2016 Supreme Court 79, has held as under:
"Thus the grant of relief to the election petitioner or any other respondent in the election petition under the provisions of section 69 of Representation of the People Act, 1976, must be proved on t he strength of their own entitlement to get elected in
place of the returned candidate."
In the instant case, the petitioner has failed to discharge its responsibility of proving
the case against the respondent No.1. The case laws referred on behalf of the petitioner are distinguishable, thus not helpful to the case of petitioner.
For the above reasons, the petition being devoid of merit, is dismissed.
ZC/8/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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