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Petitioner: Mir Lasfikari Raisani VS Respondent: Qasim Khan Soori and others
Court Name: Election Tribunal Judge(s): Abdullah Baloch Title: Mir Lasfikari Raisani vs Qasim Khan Soori and others Case No.: Election Petition No. 10 of 2018 Date of Judgment:2019-09-27 Reported As: 2020 YLR 2031 Result: Petition allowed
JUDGMENT
JUDGMENT ABDULLAH BALOCH, J.---This Election Petition under Section 139 of the Election Act, 2017 ("Act of 2017"), has been tiled 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 declared 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 direction 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 NADRA 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 petition, 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
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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, which 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, counterfoils 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 examination 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. 1. 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 Sections 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 nor 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 casting 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
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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 Tribunal 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 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 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 counsel 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 rushed 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 franchise. 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 was 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 were 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 polling 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 highlighted 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 agents 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
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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 was 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 time, 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 casting 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 have 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 returned 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 petition 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 Usman Dar and others v. Khawaja Muhammad Asti 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 Preliminary 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.
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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 Baloch, 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 Sadam 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 Quetta-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 polling 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, where 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. The 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 election 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 failed 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 information 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 staff 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
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counterfoils as well as the voters of the returned candidate were casting their votes by means of impersonation 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 ballot 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 the 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 act, 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 candidate 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…
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