2020 Y L R 2031
[Election Tribunal Balochitan]
Before Abdullah Baloch, J
Mir LASHKARI RAISANI ---Petitioner
Versus
QASIM KHAN SOORI and others ---Respondents
Election Petition No. 10 of 2018, decided on 27th September, 2019.
(a) Elections Act (XXXIII of 2017) ---
----Ss. 139, 84, 95, 154 (1)(b)(ii)(iii), 156(2) & 158--- Constitution of Pakistan, Art. 218 (3) --
-Election petition ---Election for the seat of Member National Assembly---Allegations of
illegal and corrupt practices ---Violation of provisions of Ele ctions Act, 2017 ---Effect ---
Bogus votes ---Verification of thumb impressions of voters on the counterfoils of ballot
papers ---Witnesses produced by the petitioner had specifically alleged that votes obtained by
the petitioner were snatched, double stamped a nd spoiled---Large number of votes were
declared invalid and excluded from the total count ---Rejection of votes on widespread scale
could not be ruled out of consideration and the assertions of witnesses of petitioner ---
Sufficient evidence had been produce d by the petitioner with regard to commission of
massive rigging in the elections by the supporters and agents of returned candidate with the
connivance of polling staff ---Respondent had failed to produce even a single evidence in
support of his contention---Bald denial of returned candidate was not enough to discard the
evidence produced by the petitioner ---Bogus votes had been cast without appending
fingerprints of the voters on the counterfoils of ballot papers ---Report prepared by National
Database and Registration Authority for verification of thumb impressions of voters on the counterfoils of ballot papers had established the allegations of casting bogus votes by means
of impersonation--- Neither the votes cast on invalid Computerized National Identity Card
were acceptable nor mentioning of incomplete Identity Card number could be considered as
human error ---More than 45% of votes had not been compared by the National Database and
Registration Authority which had created doubt with regard to fate of elec tion---Election
Commission was bound to provide indelible ink for fingers or thumbs and to ensure prescribed procedure of issuing ballot papers in the polling stations ---Election Commission
had failed to conduct free, fair and transparent election in the constituency---Provisions of Elections Act, 2017, had not been adhered at the time of polling which had paved the way of bogus voting--- Election Commission had violated the law and such election could not be
termed free, fair and transparent ---Detection of huge quantity of bogus votes by National
Database and Registration Authority had materially affected the result of election ---Corrupt
and illegal practices had occurred on the day of election in the present case ---When law had
prescribed a method for doing a thing in a particular manner then such provision of law
should be followed and doing a thing in a manner other than provided manner would not be permitted under the law ---Petitioner filed application for recounting of votes prior to
commencement of cons olidation proceedings but same had been rejected without any reason
in an arbitrary manner ---Returning Officer was biased while conducting elections in the
constituency---If contravention or corrupt or illegal practice had been proved then Election
Tribuna l was required to declare the election of returned candidate void ---Impugned
notification whereby respondent was declared as returned candidate was set aside by the
Election Tribunal, in circumstances ---Election Commission was directed to hold fresh
electi on in the constituency in accordance with law ---Election petition was allowed, in
circumstances.
Nawab Ali Wasan v. Syed Ghous Ali Shah 2018 SCMR 87; Mir Shah Nawaz Khan v.
Manzoor Hussain Wassan and 13 others 2014 CLC 1042 and Usman Dar and others v.
Khawaja Muhammad Asif and others 2017 SCMR 292 ref.
Muhammad Siddique Baloch v. Jehangir Khan/Tareen PLD 2016 SC 97; Feroze
Ahmed Jamali v. Masroor Ahmed Khan 2016 SCMR 750 and Zia -ur-Rehman v. Syed Ahmed
Hussain and others 2014 SCMR 1015 rel.
(b) Administration of justice ---
----When law had prescribed a method for doing a thing in a particular manner then such
provision of law should be followed and doing a thing in a manner other than provided manner would not be permitted under the law.
Muhammad Riaz Ahmed, T.H. Khan and Bilal Haider for Petitioner.
Dr. Babar Awan, Nazar Muhammad Baloch, Ayub Tareen, Zahir Achakzai, Abdul
Qadoos and Jamil Agha for Respondent No.1.
Nazir Agha for Respondent No.5.
Zubair Naseem Khawaja, Legal Advisor NADRA along with Abdul Wahid Sherani,
Assistant Director NADRA.
Naseer Ahmed, Senior Assistant, ECP.
Date of hearing: 14th September, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ---This Election Petition under Section 139 of the
Election Act, 2017 ("Act of 2017"), has been t iled by the petitioner Mir Lashkari Raisani, a
contesting candidate of general election of NA -265 Quetta -II held on 25th July 2018,
assailing the Notification No.F.2(38)/2018- Cord. - dated 7th August 2018, whereby the
respondent No.1 Qasim Khan Soori was de clared as returned candidate. In the petition, the
petitioner has sought the following relief:
"It is accordingly respectfully prayed that this Honourable Tribunal may call for the
whole record of the election of the constituency in question with the dire ction that
same may be kept in safe custody till final disposal of the matter and on examining the same coupled with recording evidence, recounting and thump impression examination on the polling station mentioned above be made and also verified from
the N ADRA of the matter as mentioned above. Thereafter election of the returned
candidate be declared void, and the petitioner be declared as elected.
OR
To declare the election of the returned candidate is partially void and that fresh poll
be ordered in one or more polling stations or that the election as a whole be declared
as void and fresh polls be conducted in the entire constituency:
OR
To pass any other appropriate order as is deemed fit and proper in the circumstances of the case with cost of petiti on, in the interest of justice."
2. Facts of the case are that the petitioner Mir Lashkari Raisani as well as respondent
No.1, Qasim Khan Soori and respondents Nos.2 to 24 contested the general election from
constituency NA -265 Quetta -II held on 25th July 2018. As per Form -49 prepared by the
Returning Officer, the petitioner secured 20394 votes, while the respondent No.1, Qasim Khan Soori, obtained 25979 votes with the difference of 5585 votes and thus the respondent No.1 was declared as returned candidate by the Election Commission of Pakistan ("ECP"),
vide impugned Notification No.F.2(38)/2018- Cord.- dated 7th August 2018. The petitioner
feeling aggrieved of the election's result, has filed the instant petition seeking declaration of the respondent No.1 as returned candidate to be void on the ground that on the day of polling
there was a bomb blast at Tameer -e-Nau polling station, which had caused deaths and
injuries to many people, resulting panic and anarchy in whole of the city; polling was stopped, whic h resulted into low turnout as the security agencies cordoned off the area and
voters could not reach polling stations to cast their votes. It is further averred in the petition that the respondent No.1 with the connivance of personnel of law enforcing and the polling
staff committed massive rigging in the elections by not allowing the polling agents of the petitioner to sit in the polling stations and even neither the Form -45 was provided to them
nor the same contains the signatures of the polling agents. Furthermore, there is a lot of difference between the count of votes of Form -45, 46, 47, 48 and 49. In addition, it has been
averred that the votes cast in favour of the petitioner were either not counted in his favour or certain valid votes cast in favour of petitioner were double stamped and rejected arbitrarily,
while number of bogus votes were cast in favour of respondent No.1 by impersonation of the
same voters, to whom the ballot papers were being issued repeatedly by the Presiding
Officers. Also, cou nterfoils are lacking signatures of the Presiding Officers/Assistant
Presiding Officer, thumb impression of voters, CNICs and electoral roll, which fact can easily be ascertained if the matter is referred to NADRA for verification of counterfoils for
exami nation of thumb impressions. For reference the petitioner in para No.19 of the petition
has given the details of 72 polling stations, where there is abnormal differences in between
the votes obtained both the petitioner and the respondent No.l.
3. Notices were issued to all the contesting candidates, while only the respondent No.1
(Qasim Khan Soori), respondent No.4 (Rahila Hameed Durrani) and respondent No.5 (Rozi Khan Kakar) contested the petition by filing their written statements. The respondents Nos.4,
5 and 10 admitted the contents of petition and prayed for re -polling in the constituency,
while the respondent No.1 being returned candidate seriously contested the petition on the
ground that the petition is not maintainable for non- compliance of Section s 143, 144 and
144(b) of the Act, as the petitioner has failed to furnish full particulars of any corrupt or
illegal practice or other illegal act alleged to have been committed, besides neither the incident of bomb blast was occurred in the constituency n or the polling was stopped, thus the
petition being based upon concocted stories, deserves dismissal.
4. Out of pleadings of parties, this Tribunal has framed the following issues:
1. Whether the petition is not maintainable in view of legal objections Nos.A and B of respondent No.1?
2. Whether a bomb blast took place on 25.07.2018 at 10.35 A.M. at Tameer -e-Nou
Polling Station resulted several casualties and panic among the voters including polling agents and polling staff were disappeared to save their lives and the polling
was stopped and polling station was cordoned off by the security agencies?
3. Whether due to the bomb explosion at Tameer -e-Nau Polling station a large number
of voters of the petitioner have been deprived from right of cas ting their votes and the
benefit whereof was illegally and unlawfully extended to the respondent No.1 instead of re polling on the said polling stations?
4. Whether the respondent No.1 with connivance of polling staff committed corrupt and illegal practice by casting bogus votes and procured the result in his favour?
5. Relief?
5. In support of issues, the petitioner produced nineteen (19) witnesses, whose affidavits
were already filed with the election petition. The witnesses owned the averments of their
affidavits in their examination -in-chief. The petitioner himself also entered in the witness
box and recorded his statement. In rebuttal the respondent No.1 has recorded his own statement and has not produced any witness in his support.
6. Since serious allegations of massive rigging and impersonation of voters have been
levelled by the petitioner against the respondent No.1, hence vide order dated 13th December 2018 the C.M.A. No.996 of 2018 for verification of thumb impressions of voters through
National Database and Registration Authority (NADRA) was allowed and NADRA was directed for carrying out verification and comparison of thumb impressions of voters on the counterfoils of the ballot papers polled in the election. The Returning Officer was also directed to hand over all the election materials including the counterfoils of polling stations of entire constituency along with photo voter's lists and statement of counts (Form -45, 47, 48
and 49) in sealed envelopes to the Registrar of this Tribuna l and thereafter the record so
received from R.O. was transmitted to the NADRA Headquarter Islamabad through the representative of this Tribunal.
7. In compliance, CW -1 Abdul Wahid Sherani son of Sardar Khan, Assistant Director,
NADRA Quetta appeared and p roduced the reports of NADRA, consisting upon two parts
i.e. Exh.C -1/A/1 -52, which relates to correspondence in between this Tribunal and the
NADRA authorities, while the second part is comprising upon two volumes i.e. Exh.C -1/B-
1/1-294 and Exh.C -1/B-2/295 -673 pertaining to the result of verification of thumb
impressions. The respondent No.1 filed his written objections as well as C.M.A. No.1131 of
2019 for dismissal of petition being not maintainable and thereafter final arguments were heard.
8. Learned co unsel for petitioner, Mr. Riaz Ahmed, Advocate, contended that the
petitioner was contesting the elections from two constituencies i.e. PB -31 Quetta -VIII and
NA-265, however, on the day of elections a tragic incident of bomb blast occurred in PB -31
Quetta -VIII, resulting into several casualties and injuring more than 60 persons, while soon
after the occurrence, there was a situation of fear and panic, which resulted into disappearance of voters, polling agents and polling staff, besides most of the voters r ushed to
the hospitals for the treatment of injured or receiving the dead bodies of martyrs or medical treatment of injured and also rushed to graveyards for funeral ceremonies of the martyrs, thus huge number of voters were deprived from their right of fr anchise. Not only this,
immediately after the blast, the personnel of law enforcing agencies arrived at site, cordoned off the area to collect evidence, while the constituency in question being an adjacent to the said constituency, where tragic incident wa s occurred, the polling process was completely
disturbed and turn- out of voters was almost remained very low, thus the people of the area
mostly were deprived from using their right of franchise; that since the polling process was
completely sabotaged, thus the circumstances of the case demands re- polling in the
constituency.
In continuation of above, the learned counsel for petitioner further contended that
massive rigging was committed by the respondent No.1 (returned candidate) being in league
with the Polling Staff and the personnel of law enforcing agencies; that the voters and
supporters of the petitioner were not being allowed to cast their votes in favour of petitioner
on the basis of illegal objections and on lame excuses, while to the contrary the voters of
returned candidate were receiving number of ballot papers to cast the same in his favour; that number of voters of the returned candidate were casting their votes on invalid CNICs by impersonation and even many voters of the returned candidate w ere casting their votes
without having CNIC and even without appending their fingerprints on the counterfoils; that either the polling agents of the petitioner were not allowed to enter in the polling stations or in some cases they were ousted from the pol ling stations prior to the end of polling process in
order to procure the election results in favour of respondent No.1; that the counting of votes was made in absence of polling agents of petitioner and even Form -45 were not issued to
them and in absence thereof, the votes so obtained by the petitioner were double stamped and spoiled that casting of huge quantity of fake/bogus votes in favour of returned candidate has been established from the NADRA's Forensic report, wherein it has specifically been highl ighted that not only fake/bogus votes were cast through impersonation, but also the
record of the 15 polling stations were not sent to the expert for analysis; that in writing the R.O. and D.R.O. were approached well in time by the petitioner through his a gents and
through application, but they were reluctant to redress the legal and lawful grievance of the petitioner; that casting of fake/bogus votes has materially affected the election results and the election of the returned candidate is liable to be declared as void in view of Section 158 of the Elections Act, 2017; that throughout the elections, the conduct of the Returning Officer remained biased; that the petitioner has succeeded in establishing the allegations of illegal and corrupt practices through oral and documentary evidence/NADRA report and the
returned candidate has failed to rebut the concrete and solid evidence produced by the
petitioner. Lastly, it was prayed that the respondent No.1 may be declared as unqualified to contest the election and his election results may be declared as void and accordingly either
the petitioner be declared as returned candidate, who had obtained 2nd highest votes or as an alternate re- polling may be ordered in the entire constituency. He has relied upon case laws
titled as Muhammad Siddique Baloch v. Jehangir Khan/Tareen PLD 2016 Supreme Court 97
and Feroze Ahmed Jamali v. Masroor Ahmed Khan 2016 SCMR 750.)
9. On the other hand, the learned counsel for respondent No.1 Mr. Babar Awan,
Advocate, strongly opposed the arguments so advanced by the learned counsel for petitioner
and contended that the incident of suicidal bomb blast was not occasioned in the constituency
in question i.e. NA -265 rather it was happened in NA -266, but despite such fact the polling
process w as continued till the stipulated time period and the petitioner has failed to produce
any single documentary or oral evidence in support of his contention that after the bomb blast either the election process was stopped completely or postponed for some ti me, hence
the polling process so carried out on the day of polling cannot be declared as void on this sole ground. It has further been contended that the personnel of law enforcing agencies were deployed on all the polling stations, who were allowing the genuine voters to enter in the
polling stations after checking their CNICs. Besides, in each polling station the polling
agents of all the contesting candidates were present and the polling process was held in accordance with law, thus no question for casti ng of a single fake or bogus vote in favour of
the returned candidate does arise at all and it appears that the petitioner after losing the elections has levelled bald, baseless and unfounded allegations just to make out a ground for filing this petition; that the witnesses produced by the petitioner were his political workers and polling agents, thus are not trustworthy being interested in favour of the petitioner, as
such, no weight is attached with their testimonies; that absolutely false allegations hav e been
levelled by the petitioner upon the Presiding Officers/Officials for interfering in the polling process or joining hands with the respondent No.1 to carry out a massive rigging and in such behalf throughout the proceedings, the petitioner has failed to produce any of the Polling
Officer or Official in the Tribunal and even he has not alleged against any of the officer/official, who was in league with the returned candidate; that the returned candidate cannot be held responsible for any act of omission or negligence on the part of the Election Commission or Polling Staff; that perusal of NADRA report reflects that though it mentions of invalid CNIC holders votes, but it is silent about casting of such votes in favour of returned candidate or that the r eturned candidate directly or through his workers succeeded in
casting such votes in his favour, when more particularly number of candidates were contesting the elections and the Election Commission had established more than 320 polling stations, while in certain polling stations even the returned candidate had not deputed his
polling agents, thus there is every possibility that either the runner -up or any other contesting
candidate had polled such bogus/fake votes, thus holding responsible to the returned candidate on the basis of mere presumptions and assumptions is unwarranted in the eyes of law; that the petitioner has failed to prove a case of corrupt and illegal practice as per provisions of the Sections 167 and 175 of Elections Act 2017, hence the pet ition being not
maintainable is liable to be dismissed, with special compensatory costs. He relied upon case laws titled as Nawab Ali Wasan v. Syed Ghous Ali Shah 2018 SCMR 87, Mir Shah Nawaz Khan v. Manzoor Hussain Wassan and 13 others 2014 CLC 1042 and U sman Dar and others
v. Khawaja Muhammad Asif and others 2017 SCMR 292.
10. Learned counsel for respondents No.5 supported the arguments of learned counsel for
petitioner and prayed for re -polling in the constituency.
11. The representative of the ECP also assisted the Tribunal.
12. Heard the learned counsel for parties and with their able assistance perused the
record. Perusal of record reflects that out of divergent pleadings of parties, this Tribunal
framed five issues. The issue No.1 relates to Prelimina ry Legal Objections Nos.A and B,
wherein not only the maintainability of the petition has been questioned, but also dismissal of the petition has been sought and during arguments the learned counsel for the petitioner respondent No.1 has also filed another C.M.A. No.1131/2019 on the same grounds on
maintainability of the petition under Section 144 of the Act, 2017, but minute perusal of
petition along with its annexure reflect that the same are 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. Besides, all the contesting candidates were joined in the petition as well as requisite security amount has also been deposited. Thus, Objection "A" and C.M.A. No.1131/2019 are overruled and rejected, while the Objection "B" is interlinked with issue No.4, which will be discussed along with issue No.4.
13. The issues Nos.2 and 3 are interlinked with each other pertaining to occurrence of
suicidal bomb blast and depriving of the voters of the petitioner to use their right of franchise, thus the same are being decided jointly. In order to establish these issues the petitioner produced PW -1 Abid Hussain Bukhari, SHO CTD, who produced the copy of FIR
of suicidal bomb blast. However, the witness has made his ignorance that whether the occurrence had taken place in NA -265 or in NA -266. He also made his ignorance that
whether due to bomb blast the polling process was stopped or otherwise. PW -2 Dr.
Muhammad Noor Baloc h, Police Surgeon produced the death certificates of martyrs of the
incident as Arts.P -2/1 to 29. PW -3 Senator Dr. Jahanzaib Jamaldini and PW -6 Nasrullah
admitted that the bomb blast did not occur in the constituency of NA -265. PW -8 Waqar
Ahmed and PW -9 Sa dam Shah admitted that the polling process was started and ended
within the stipulated time period. PW -12 Kehkashan admitted in her cross -examination that
the polling was started at about 08.15 a.m. and ended at 06.00 p.m. PW -13 Muhammad Juma
Khan and PW -14 Jahangir Ahmed admitted that the polling process was started from 08.00
a.m. and was continued till 6.00 p.m. The petitioner himself admitted in his cross examination that the occurrence had not taken place in NA -265 rather it was occasioned in
PB- 31 Qu etta-VIII. He further admitted that PB -31 is not the part of NA -265. The petitioner
has also made his ignorance that whether any voter of NA -265 was martyred or injured. He
also made his ignorance that after blast in any polling station of NA -265 the polli ng process
was stopped. The petitioner further made his ignorance that the Election Commission of Pakistan had ordered for stoppage of polling or otherwise.
14. The above admissions made by the witnesses produced by the petitioner and the
admission made by the petitioner himself, clearly establishes this fact that the occurrence of
bomb blast had not taken place in NA -265 Quetta -II rather it was occasioned in PB -31,
which provincial constituency otherwise was not the part of NA -265 rather it was falling
within the constituency of NA -266 Quetta. It has further been established that the polling
process was started at 08.00 or 08.15 a.m. and ended at 06.00 p.m. without any break and the
petitioner has failed to mention any polling station of the constituency, w here the election
process was stopped completely or partially. Even otherwise, nothing has come on record
that the Election Commission of Pakistan had ordered for stoppage or postponement of the
polling process in any polling station of the constituency. T he petitioner has also failed to
produce any witness of the constituency, who was either injured or any of his relative or
blood relation was martyred in the said incident, due to which he or his family members could not poll their votes. Since, the polling process was not officially postponed or stopped rather it was continued till the stipulated time of polling. Thus, the issues Nos.2 and 3 are resolved in negative.
15. The most important issue in this case is issue No.4, which pertains to resolving the
question of collusion and connivance of Polling Officers/Officials with the respondent No.1
or with his polling agents, voters, political workers or supports and that through corrupt or illegal practices the respondent No.1 was succeeded in procuring the el ection results in his
favour. The petitioner in toto has produced the evidence of Nineteen (19) witnesses, besides
recording his own statement, however, in support of rebutting the allegations of corrupt and
illegal practices, the respondent No.1 has faile d to produce any single witness and he has
only recorded his own statement. The PW -1 and PW -2 were produced in support of issues
Nos.2 and 3, while the returning Officer appeared as PW -11. However, in support of this
issue the petitioner has produced PW -3 to PW -10, 12 to 19. PW -3 Dr. Jahanzaib Jamaldini,
PW-4 Qari Akhtar Shah, PW -5 Musa Baloch and PW- 6 Nasrullah have unanimously stated
that after the close of polling, all the election materials were packed and taken to the office
of Returning Officer and the consolidation process was underway and the presence of contesting candidate or his agent was necessary to have been associated in such process, but the officials did not allow them to enter in the office of Returning Officer and even on conveying informa tion to R.O.; the R.O. did not call them, while to the contrary the returned
candidate had gone inside the office of R.O. with protocol.
16. Likewise, PW- 7 Dilawar Khan, PW -8 Waqar Ahmed, PW- 9 Sadam Shah, PW -10
Shehbaz Haider Butt, PW- 12 Kehkashan Butt, PW -13 Muhammad Juma, PW -14 Jahangir
Ahmed and PW -15 Muhammad Imran were appointed as polling agents of the petitioner in
different polling stations and they observed that the supporters and voters of the returned candidate being in league with the polling st aff were illegally getting issued number of ballot
papers to fake voters on the basis of invalid CNICs and also without obtaining their thumb impressions on counterfoils as well as the voters of the returned candidate were casting their votes by means of i mpersonation without having valid CNICs, whereas to the contrary
genuine voters of the petitioner were not being allowed to cast their votes on lame excuses. According to PWs this practice was not only continued till the end of polling, but even after polling the votes so obtained by the petitioner were double stamped and spoiled at the time
of counting. Besides, some of the witnesses have stated that the counting of the ballot papers were not taken place in their presence, while after counting Form -45 was also not delivered
to them.
17. While, PW -16 Nadir Hussain, PW -17 Muhammad Shaukat, PW -18 Faheem Butt and
PW-19 Naik Muhammad are claiming to be the voters of the petitioner and have
unanimously stated that outside the polling stations the officials were persuading them and to
the other voters to cast their votes in favour of returned candidate and when they entered in the polling stations, they observed the presence of number of supporters of returned
candidate in the polling station, who snatched their ba llot papers, stamped the same in favour
of the returned candidate and threw the same in the ballot box. According, to PWs they
intend to cast their votes in favour of petitioner, but were not allowed to do so and in the polling stations it has alleged by t he PWs that number of ballot papers were being issued to a
single voter without obtaining his thumb impressions on the counterfoils and even without signing on it by the Presiding Officer. The witnesses have further added that they contested the illegal ac t, but were ousted from the polling stations with the help of security personnel.
18. It has also been observed that the PWs produced by the petitioner have specifically
alleged that the votes obtained by the petitioner were snatched, double stamped and spoiled; however, Form -49 reveals that about 3422 votes were declared as invalid and excluded from
the total count. Thus, the rejection of votes on widespread scale cannot be ruled out of consideration and the assertions of the PWs rings true to some extent. Even otherwise,
sufficient evidence has been produced by the petitioner with regard to commission of massive rigging in the elections by the supporters and agents of returned candidate with the connivance of polling staff, while in rebuttal the returned c andidate has failed to even
produce a single iota of evidence in support of his contention. Thus, the bald denial of the returned candidate is not enough to discard the entire evidence produced by the petitioner, as such, in order to resolve the issue of c orrupt and illegal practices and to ascertain and
determine as to whether bogus votes were polled by fake voters or the genuine voters used their right of franchise as well as to further probe into the matter in shape of documentary
evidence, vide order da ted 13th December, 2018 the C.M.A. No.996 of 2018 filed by the
petitioner for verification of thumb impressions of voters through NADRA, was allowed and the election materials so received by the ECP was sent to the NADRA through the representative of this Court and in compliance, CW -1 Abdul Wahid Sherani, Assistant
Director, NADRA produced the reports of NADRA, consisting upon two parts i.e. Exh.C -
1/A/1 -52, which relates to correspondence in between this Tribunal and the NADRA
authorities, while the second part comprising upon two volumes i.e. Exh.C -1/B-1/1-294 and
Exb.C -1/B-2/295- 673 pertaining to the result of verification of thumb impressions. The
summary of the analysis report of NADRA (Exh.C -1/2 to 315) is as under:
S. No. Description Remarks
1. Invalid CNIC on Counter -foils There were 1,533 used counterfoils
having invalid CNIC written on them. This was mainly observed in polling station # 401 (113 x CFS) and polling
station # 166 (64 x CFs).
2. Incomplete CNIC not
mentioned on Counterfoils Ther e were 359 used counterfoils
which do have -Incomplete CNIC
number mentioned. This was observed mainly in polling station # 85 (35 CFs)
and at polling station # 96 (19 CFs)
3. Duplicate Voters on
Counterfoils There were 123 used counterfoils
bearing CNIC n umber appearing
elsewhere on other counterfoils. This
affected a total of 246 used counterfoils. This information was extracted from capturing NIC number written on used counterfoils. This was observed mainly in polling station # 195 (7CFs) and at polling station # 32
(4 CFs)
4. Counterfoils without
fingerprints 1,083 used counterfoils were found
without having fingerprints on them. This was observed mainly in polling station # 88 (24 CFs) and at polling
station # 327 (22 CFs).
5. Out of Constituency Votes There were 100 x NIC numbers
mentioned on used counterfoils which we consider as not registered in this constituency (i.e. NA -265). This was
observed mainly in polling station # 317 (10 CFS) and polling station # 313
(8 CFs).
6. Fingerp rints of insufficient
quality There were 52,756 used counterfoils
which the Automated Fingerprint Identification System found to be of insufficient quality for the purpose of automated matching. However, CNIC number mentioned on such counterfoils having po or quality thumb
impressions were valid CNICs.
7. Fingerprints successfully
authenticated Out of the 49,042 fingerprints found of
sufficient quality by AFIS, a total of 49,042 fingerprints were authenticated by AFIS. This means that fingerprint affixed on counterfoil at the time of
issuance of ballot paper correctly matched with fingerprint date of registered voter/citizen held with
NADRA in Citizen Database.
8. Fingerprints failing
authentication 0 x votes failed authentication.
19. The above summary extracted from NADRA's report established the allegations of
casting of bogus votes by means of impersonation through invalid CNICs and even without appending the fingerprints of the voters. The report reflects that 1533 used counterfoils had
invalid CNIC numbers plus 359 used counterfoils having incomplete CNIC numbers. Admittedly, neither the votes cast on invalid CNIC arc acceptable under the law nor
mentioning of incomplete CNIC number can he considered as human error. Even otherwise,
according to said report 123 duplicate voters were found on Counterfoils, while 1083 used counterfoils were found without having fingerprints on them, whereas 1,083 used counterfoils were found without having fingerprints on them and likewise 100 x NIC numbers mentioned on used counterfoils were found out of Constituency. Admittedly, the
NADRA's report has confirmed that not only the voters of other constituency have polled
their votes, but also numbers of Counterfoils were found without fingerprints of the genuine
voters coupled with the fact that duplicate voters have also polled their votes and freely use
of invalid CNICs has also been observed on the day of elections.
20. The further scrutiny of NADRA's report establishes the fact that out of 114,742 vot es
only 49,042 fingerprints were found of sufficient quality by AFIS, while 52,756 were of bad quality and could not be compared/matched through AFIS as NADRA was unable to decipher them. The reasons could be accidental or intentional or partly accidental and partly intentional, but the fact remains that non- authentication of more than 45% of votes creates
serious doubt regarding the fate of election and this Tribunal cannot close its eyes on widespread scale of non -authentication of votes. Though, the NADR A's report mentions that
52756 counterfoils bore valid CNICs, while the fingerprints could not be deciphered due to
bad thumb impressions on used counterfoils, but presumption cannot be ruled out of
consideration that the fingerprints appended on counterfoils were belonged to a duplicate or out of constituency voters and in order to conceal the actual position proper procedure was not observed. The para No.29 of the summary of NADRA's report though mentions that out of the 49,042 fingerprints found of suffi cient quality by AFIS, a total of '0' fingerprints failed
authentication. It was opined in the said para that. "This means someone else voted against the NIC number mentioned on the used counterfoil." Admittedly, non- authentication of large
number of votes cannot be totally immune from universal malaise of bogus entries as has
been held in the case of Muhammad Siddique Baloch (supra). It was the duty of Election Commission of Pakistan to provide indelible ink for any finger or thumb and to ensure prescribed procedure of issuing ballot papers in the polling stations, but this has not been
done so in the case in hand and that's why more than 45% fingerprints could not be deciphered and still it cannot be said with certainty whether such votes were polled by genuine voters or that the same is the result of mala fides and rigging. Admittedly, the
Election Commission of Pakistan has badly failed to conduct free, fair and transparent elections in the constituency under Article 218(3) of the Constitution of Islamic Republic of Pakistan and that was the reasons that huge quantity of fake/bogus votes were polled.
21. Further analysis of NADRA's report reveals that it has received the record of only 300
x polling stations, while the record of 15 polling stations i.e. 10, 17, 38, 127, 139, 141, 155, 172, 178, 186, 210, 211, 216, 253 and 270 were either missing or not sent to NADRA for analysis. No explanation whatsoever is available on record that as to why the records of the said 15 polling stations were not sent to the NADRA by the ECP (R.O.) and even nothing has
come on record that what happened with the record of said remaining polling stations. Thus, it cannot be said with certainty that what happened in the said polling stations and either the genuine voter had polle d their votes or massive rigging was committed by means of corrupt
and illegal practices.
22. Likewise, according to NADRA report it has received Khaki envelops of two polling
stations, but the name or the number of the said polling stations has not been m entioned, as
such, dummy polling station numbers were allocated to the said envelops as Polling Station
Nos.401 and 402, respectively. Now once again it cannot be said that the election materials of the said two polling stations were belonged to the consti tuency in question or that the said
election materials were used on the day of elections or procured subsequently in favour of
returned candidate. Though, the NADRA had presumed the same belonged to polling station
Nos.401 and 402, but the truth cannot be denied that no polling station at all bearing S. Nos.401 and 402 were established at all and ambiguity remains in a prudent mind with regard to its authenticity and genuineness.
23. The report further transpires that the Counterfoils of 17x polling station s were not
received by the NADRA i.e. Polling Stations Nos. 2, 41, 59, 64, 100, 107, 116, 122, 156, 167, 169, 171, 237, 263, 292, 306 and 314. Since, the NADRA was supposed to match/ authenticate the fingerprints of the voters appended on the Counterfoils, thus non -dispatch of
counterfoils of said seventeen polling stations would mean that the NADRA had absolutely not carried out the analysis to the extent of said seventeen polling stations. Non- dispatch of
complete election materials by ECP to NADRA is astonishing. Certainly, new surprising
facts could have been emerged if the complete election materials were received and analyzed
by the NADRA.
24. The discrepancies and illegalities so pointed out in the NADRA's report clearly
indicate that the provisions of Elections Act, 2017 were not adhered at the time of polling. The counterfoils, which are suffering from the above defects are required to be examined for the purpose of declaring the ballot papers used against these counterfoils, being valid or otherwise in the light of provisions made in Section 84 of the Act of 2017, which provide
that before the ballot paper is issued to an elector, the same shall be stamped on its back with the official mark and signed by the Presiding Officer; the Presiding Officer s hall record on
the counterfoils of the ballot papers, the number of the elector on the electoral roll, the number of Identity Card of the elector, stamp it with the official mark, sign it and obtain on it the thumb impression of the elector and shall refus e the issuance of ballot paper to a person,
who refuses to put his thumb impression on the counterfoil, on the space provided for the purpose on the electoral roll or whose thumb bears traces of its having already been used for putting an impression. Such provisions have been made to ensure fair election amongst the
rival candidates. Therefore, to achieve the object, it is necessary to comply with each condition laid down by the statute strictly because departure from such provision tantamount to make the l aw ineffective and pave the way for bogus voting, but the fact remains that the
mandatory provisions as envisaged under section 84 of the Act of 2017 have been violated, which provides a complete mechanism for issuance of ballot papers to a voter. For facilitation, Section 84 (ibid) is reproduced herein below:
"84. Voting procedure.--- (1) Where a voter presents himself at the polling station to
vole, the Presiding Officer shall issue a ballot paper to the voter after satisfying himself about his identity and shall, for that purpose, require him to produce his
original National Identity Card issued by the National Database and Registration Authority.
(2) For the purpose of verification of the identity of a voter, the Commission may
adopt such othe r technology as in its opinion may prove effective, including bio-
metric verification system, in addition to the National Identity Card mentioned in subsection (1).
(3) Failure of a voter to prove his identity through the new technology shall not disentit le him to cast his vole if he is otherwise entitled so to do under this section.
(4) Before a ballot paper is issued to a voter --
(a) the number and name of the voter as entered in the electoral roll shall be called out:
(b) the entry relating to the vo ter on the electoral roll shall be struck off to indicate
that a ballot paper has been issued to him;
(c) he shall be required to receive a personal mark, made with indelible ink, on any finger or thumb of either hand as indicated by the Commission;
(d) the ballot paper shall be stamped on its back with the official mark and signed by
the Presiding Officer;
(e) the Presiding Officer shall record on the counterfoil of the ballot paper the number of the voter on the electoral roll, the number of the National Identity Card of the voter, stamp it with the official mark, sign it and obtain on it the thumb impression of the voter; and
(f) the Polling Officer shall obtain the thumb impression of the voter on the space provided on the electoral roll for the purpose against the photograph of the voter.
(5) A ballot paper shall not be issued to a person who
(a) fails or refuses to produce his original National Identity Card issued by the National Database and Registration Authority;
(b) refuses to put his thumb i mpression on the counterfoil or, as the case may be, on
the space provided for the purpose on the electoral roll against his photograph or whose thumb bears traces of its having already been used for putting an impression; or
(c) refuses to receive the personal mark with indelible ink; or who already hears such a mark or traces of such a mark.
(6) If a contesting candidate or his election agent or polling agent alleges that a voter to whom a ballot paper is about to be issued already has one or more ballot papers in his
possession, the Presiding Officer may require the voter to satisfy him that he does not have any other ballot paper in his possession and may also take such measures as he thinks fit to ensure that such voter does not insert more than one ba llot paper in the
ballot box.
(7) On receiving the ballot paper, the voter shall
(a) forthwith proceed to the place reserved for marking the ballot paper;
(b) put the prescribed mark on the ballot paper at any place within the space
containing the name a nd symbol of the contesting candidate for whom he wishes to
vote; and
(c) after he has so marked the ballot paper, fold and insert it in the ballot box.
(8) The voter shall vole without undue delay and shall leave the polling station immediately after he has inserted his ballot paper in the ballot box.
(9) Where a voter is blind or is otherwise so incapacitated that he cannot vote without the assistance of his companion, the Presiding Officer shall allow him such assistance and thereupon such voter may, with such assistance, do anything which a voter is required or permitted to do under this Act."
25. The perusal of above referred provision of law, is clear, definite, specific and
straightforward, if such mechanism is adopted in its later and spirit, there would remain no
chances at all for casting bogus votes in any manner and definitely deviation from such mechanism would amounts to violation of law and such elections cannot term to be free, fair and transparent and in violation of Article 218(3) of the Constitution, which provides that the
elections should be held honestly. Justly, fairly and in accordance with law and that corrupt
practices are guarded against. For facilitation Article 218 of the Constitution is reproduced
herein below:
"218. Election Commission. ---(1) For the purpose of election to both houses of
Majlis -e-Shoora (Parliament), Provincial Assemblies and for election to such other
public offices as may be specified by law, a permanent Election Commission shall be constituted in a ccordance with this Article.
(2) The Election Commission shall consist of
(a) the Commissioner who shall be the Chairman of the Commission; and
(b) four members, one from each Province, each of whom shall be a person who has been a Judge of a High Court or has been a senior civil servant or is a technocrat and is not more than sixty- five years of age, to be appointed by the President in the
manner provided for appoint -ment of the Commissioner in clauses (2A) and (2B) of
Article 213.
(3) It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against."
While dealing this point, the Hon'ble Supreme Court in case of Muhammad Siddique
Baloch (supra), held that:
" 8. Based on the said analysis of the counterfoils, the NADRA report at the end of its narrative gives the following summary of its findings:
S. No. Description Count of Votes
1 Election material of 290 x Polling Stations 218,056
received from Election Tribunal (Ref Paras -
2, 3 of this report)
2 Invalid NIC number mentioned on used
counterfoils. This also includes such
counterfoils that do not have CNIC
mentioned ever it. 20,601
3 Out of constituency voters found on used
counterfoils. 121
4 Duplicate votes on used counterfoils 728
5 Used counterfoils without fingerprints 587
6 Fingerprints successfully authenticated on
used counterfoils and ER 73, 707
7 Fingerprints on used counterfoils and ER
failing authentication 179
8 Fingerprints of bad quality affixed on used
counterfoils resultantly NADRA was unable to decipher them due to non- utilization of
proposed ink beside other possibilities.
However, CNIC number mentioned on such counterfoils having bad thumb impressions
were valid CNICs. 122,133
9. The summary of findings given in the NADRA report (Exb.CW -10/1- 6) reproduced
above is explained in its narrative. The report states that the election material of 298 polling stations out of a total 304 polling stations in the constituency was received from the ECP. However, relevant election material of eight polling stations was damaged or unavailable and only the record of 290 polling stations was scanned and
analyzed. From this election material, a total of 218,056 counterfoils of ballot papers were examined by NADRA. 122,133 counterfoils. equaling 56% of the available number, contained bad quality finger prints that we re not readable by the NADRA
software for the purpose of their comparison with and verification through the NADRA database. As a result, only 95,927 counterfoils contained thumb impressions that were readable by the NADRA software. Out of this total, 20,60 1 counterfoils
bore invalid CNIC numbers that had never been issued by NADRA. This count includes 733 counterfoils which did not contain any CNIC number. The said mismatch with the NADRA record shows either that the election staff failed to verify CNIC ide ntity of electors or made bogus entries on the counterfoils, reflecting their
indifference or otherwise an improper purpose.
10. In addition to the 20,601 counterfoils containing invalid CNIC numbers, another 587 counterfoils were defective for absence of thumb impression of the voter. Yet
another 728 counterfoils were issued to 362 voters showing duplicate votes being cast by such voters; 121 counterfoils were issued to out of constituency voters and 179 counterfoils bore valid CNIC numbers but un- matchin g thumb impressions.
Accordingly 22,216 counterfoils contain evidence of bogus voting out of a total number of 95,927 counterfoils that were found readable by NADRA software. These figures reveal that 23% of the total counterfoils read and deciphered by NA DRA
software contain false identities of persons who voted in the election on account of
absent or invalid CNIC number or thumb impression. Casting of vote by unidentified strangers is contrary to Section 33 of the ROPA that aims at curbing, inter alia, the practice of bogus voting."
[BOLD ADDED]
It has further been held in the said judgment that:
"22. According to the NADRA's report (Exb.CW -10/1-6) the election record of 290
polling station was scanned and verified. Out of these, entries of bogus CNIC are contained in the record of 288 polling stations. Nearly fifty of these polling stations had bogus ID Cards entries on a minimum of 100 counterfoils upto a maximum of 414 counterfoils. This result is based on the analysis of 95,927 counterfoils pertaini ng
to almost all the polling stations. However, the NADRA report states that thumb impression on 122, 123 counterfoils could not be deciphered and therefore, were excluded from the count. What extent of violation may have taken place in respect of said unr eadable counterfoils can only be guessed, since these cannot be totally
immune from the otherwise universal malaise of bogus entries. Add to these figures the violation of section 33(1)(e) of the ROPA occurring at 104 polling stations
highlighted in the RE C's report. The Presiding Officers at these polling stations did
not sign and/or stamp the counterfoils of ballot papers. The issuance of ballot papers
against such counterfoils is unauthorized and invalid. Therefore, the combined impact of the violations of the ROPA and the Rules framed thereunder that are noted in the
NADRA report and the REC report in the election of NA -154 Lodhran- I is so
widespread and extensive that the test laid down in Jam Mashooq Ali's case (PLD
1996 SC 426) is also squarely satisf ied. Consequently, the finding of the learned
Election Tribunal, that the result of the election of NA -I54 is materially affected on
account of violations to comply with the provisions of the ROPA or Rules framed thereunder, is entirely justified and is upheld. The derivative finding by the learned Tribunal that such violations have been committed by the election staff by or at the behest of the appellant is unsupported by any evidence and is therefore set aside. We hold that in consequence of non- compliance of the election laws, the election in NA -
154 Lodhran- 1 is void as a whole."
26. It has further been observed that under Sections 154 (1) (b) (ii), (iii), 156(2) and 158
of the Act of 2017, the result of the election can be declared to be void for non -compliance of
the mandatory provisions of the Act and the Rules made there under, if the result has been materially affected. Obviously, the object of requiring of affixation of thumb impressions and to record CNIC numbers on the counterfoils is to ens ure that correct voter to whom a
ballot paper has been issued casts his/her vote and subsequently to provide a reference point to find out if any bogus votes have been cast in the election. Thus, detection of huge quantity of bogus votes by NADRA has mater ially affected the result of the election, thereby bringing
the case within the purview of aforesaid provisions of law, warranting declaration of the election to be void. Reliance is placed on the case of Feroze Ahmed Jamali v. Masroor Ahmed Khan Jatoi and others 2016 SCMR 750. The relevant portion is reproduced here
under:
"10. As regards the question and the effect of the NADRA report it seems expedient
to reproduce the relevant part of the report: -
Invalid CNIC on Counterfoils
15. There were 2,147 use d counterfoils that had invalid NIC numbers (NIC numbers
which NADRA has never issued) written on them. This also includes such counterfoils that do not have CNIC mentioned over it. This was observed mainly in polling stations # 24 (340 votes) and at polli ng station # 40 (279 votes).
Counterfoils without fingerprints
19.61 used counterfoils were found without having fingerprints on them. These counterfoils were mainly used at polling station #37 (8 votes) and at polling station # 27 (7 votes).
Summary:
S. No. Description Count of Votes
1. Voles polled in polling stations whose election
material was received by NADRA 12,174
2. Invalid NIC number mentioned on used
counterfoils, this also includes such counterfoils
that do not have CNIC mentioned over it. 2,147
3. Out of Constituency Votes 0
4. Duplicate Voters on Counterfoils 0
5. Used counterfoils without fingerprints 61
6. Fingerprints successfully authenticated on used
counterfoils and ER 3, 121
7. Fingerprints on used counterfoils and ER failing
authentication 0
8. Fingerprints of bad quality affixed on used
counterfoils 6,845
9.
Summary report is describe
We find it useful to mention at the very outset that it was permissible for the learned Tribunal to seek the examination/verification of the election material from an expert, i.e. NADRA, in order to find out if the provisions of the Act and the rules frame d
thereunder have not been complied with and then to determine itself whether such non- compliance materially affects the result of the election. In this context, as has
been mentioned above, the material of 19 polling stations was sent to NADRA pursuant to the order passed by the learned Tribunal dated 23.8.2013. Before
proceeding further with the matter, we would like to highlight that the learned Election Tribunal has given no reason to reject the report of NADRA, but according to the report, the summary of which is reproduced above, it is clear and unmistakable that 2,147 used counterfoils out of these polling stations had invalid NIC numbers (meaning thereby that the said used counterfoils either contained NIC numbers that
were never issued by NADRA or had no mention of NIC number thereupon). The
mention of such number is the mandatory requirement of the provisions of Section 33 of the Act. As regards 61 used counter foils the report is that there were no fingerprints/ thumb impressions on them, again this is the non- compliance of Section
33 thus the total votes which from the report of NADRA were not issued as per the
used counterfoils comes to 2,208 and thus the ballot papers corresponding thereto
were liable to be excluded. With regard to the argument of the learned counsel for the
respondent that the 2,147 used counterfoils which had invalid NIC numbers were those counterfoils where the correct NIC was produced when the voter came to vote and an error was committed while writing the NIC number down, and since this was
due to a lapse by the election staff, the benefit or prejudice of such error in writing of the NIC number on the counterfoil should not go to any candidate or in other words the returned candidate should not suffer for the omission and mist ake of the election
staff suffice it to say that we cannot say with utmost certainty whether the eligible voter came and brought his correct NIC but the number was written incorrectly, or that an imposter came with a bogus NIC. The fact of the matter stand s that a voter has
to be properly identified and his correct NIC has to be noted on the counterfoils, which is required by the law, and the above has not been done, which is the non-compliance of the provisions of the Act. According to the provisions of Se ction 70 of
the Act, the result of the election can be declared to be void for non- compliance of the
provisions of the Act and the rules made thereunder if the result has been materially affected. Obviously the object of requiring affixation of thumb impre ssions and to
record NIC numbers on the counterfoils is to ensure that the correct voter to whom a ballot paper has been issued casts his vote and subsequently to provide a reference point to find out if any bogus votes have been cast in the election. Ther efore in this
scenario since the votes to be excluded, i.e. 2,208 (2,147 plus 61 votes) are greater in number than the differential of 1,611 votes between the number of votes secured by the appellant and respondent, this would materially affect the result of the election,
thereby bringing the case within the purview of the provisions of Section 70 of the Act, warranting declaration of the election to be void as a whole. This very important and conspicuous aspect of the matter has not been attended to by the learned Tribunal
and the impugned judgment is flawed in this respect. "
27. In continuation of above, it has further been observed that the objection to the validity
of issued ballot papers arises due to non- compliance of Section 84 of Elections Act that aims
at curbing, inter alia, the practice of bogus voting and ensuring a free, fair and transparent
elections and non- compliance of the said provision would attract the application of Section
158 of the Act, which provides grounds for declaring the election as a whole void. For
facilitation, Section 158 ibid, reads as under:
"158. Ground for declaring election as a whole void.---The Election Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has bee n materially affected by reason of --
(a) the failure to comply with the provisions of this Act or the Rules in connivance with the returned candidate: or
(b) the prevalence of extensive corrupt or illegal practices at the election."
28. Admittedly, not o nly there are clear -cut evidence of non - compliance of Elections Act
in the voting procedure, but also there is apparent evidence of occurrence of extensive
corrupt or illegal practices on the day of election. Legally, when the law has prescribed a method for doing of a thing in a particular manner, such provision of law was to be followed
strictly in later and spirit and achieving or attaining the objective of performing or doing of a
thing in a manner other than provided manner, would not be permitted under the law. The
Hon'ble Apex Court in the case of Zia -ur-Rehman v. Syed Ahmed Hussain and others 2014
SCMR 1015, has held that, "If the law requires a particular thing to be done in a particular
manner it has to be done accordingly, otherwise it would not be in -compliance with the
legislative intent. Non -compliance of this provision carries a penal consequence in terms of
section 63 of the Representation of the People Act". Undoubtedly, not only the provided procedure of law for issuance of a ballot paper t o a voter has been violated, but apparently
illegal and corrupt practices were adopted on the day of election, which resulted into casting of bogus votes and on the other hand due to failure of Election Commission of Pakistan to adopt the prescribed procedure in the Polling Stations, resulted about 45% used counterfoils which NADRA could not process through AFIS because of insufficient quality of fingerprints of the voters affixed on them. Furthermore, the record of 15 polling stations is missing, while the counterfoils of 17 polling stations were not sent by the ECP to NADRA
for analysis, while in the record of the constituency, the NADRA Authorities have found two envelopes containing election materials, but the name or number of polling stations were not mentioned on the same. Besides, huge quantity of votes were polled on the basis of invalid CNICs; the counterfoils were not bore the CNIC number, fingerprints of voters and also it has been observed that the voters of other constituency have polled their v otes in the
constituency in question. The combined impact of the violation of Elections Act, 2017 noted in the NADRA's report establishes the fact that the result of elections of NA -265 Quetta -II
has been materially affected, warranting declaration of the election to be void as a whole.
29. Besides, it was observed that the conduct of R.O. was biased, which is evident from
the record that despite a meager difference of votes between the rival candidates, but the application of the petitioner for recounting of votes prior to commencement of the consolidation proceedings was declined by the RO in a slipshod manner through a non-speaking order dated 27th July 2018 which reads as under:
"Since the application is of general allegation and un- reasoned, while cons olidation
process has also begun, hence the same is rejected."
It has further been observed that the provisions of subsection (5) of Section 95 of
Elections Act provides that the R.O. shall recount the ballot papers of one or more polling stations if a re quest or challenge in writing is made by a contesting candidate or his election
agent provided that the margin of victory is less than live percent of the total votes polled in the constituency of ten thousand votes, whichever is less, or the Returning Off icer considers
such request as not unreasonable. Admittedly, the said application was filed well within time and the margin of victory is also less than 10 thousand votes, thus after receiving a written request from the petitioner, there was no reason for the R.O. to disallow the said application, but this has been done in an arbitrary manner, which shows the biased conduct of the Returning Officer and non- sending the complete record to NADRA is also appears to be the
continuation of the same.
30. The case laws relied upon by the learned counsel for the respondent No.1 are
distinguishable from the facts and circumstances of case in hand, as such, are not helpful to
the case of respondent No.1. The objections filed by the respondent No.1 against the NADRA's r eport being without substance are hereby rejected as the NADRA report is
comprehensive, while the NADRA is an independent State owned Organization. Similarly
impartial report on the basis of available record has been prepared and submitted before this
Tribunal.
31. As discussed above, if the contravention or corrupt or illegal practice is proved, the
Election Tribunal is required to declare the election of the returned candidate void and to
direct re- poll in the specific polling station(s) or in the entire constituency and
simultaneously the provisions of Section 174 of the ibid Act provides penal consequences for committing of corrupt practices, which stipulates that any person guilty of the offence of corrupt practice shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to one hundred thousand rupees or with both. However, under the peculiar circumstances of the case it is not possible to ascertain that such bogus votes were polled by the returned candidate directly or his workers themselves adopted illegal means, thus the only logical way of determining the will of the people of the
constituency in question, will be re -poll in the entire constituency. Accordingly, the issue
No.4 is resolved in a ffirmative.
For the above reasons, the Election Petition is accepted. The Notification
No.F.2(38)/2018- Cord.- dated 7th August 2018, whereby the respondent No. 1 (Qasim Khan
Soori) was declared as returned candidate from NA -265 Quetta -II, is set aside to his extent.
The seat of returned candidate having become vacant shall be filled through re -polling in the
entire constituency. The record be sent immediately to the Election Commission of Pakistan
through Provincial Election Commissioner, Balochistan. The Commission is directed to hold
Fresh elections in the constituency in accordance with law.
ZC/122/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.