Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD SIDDIQUE BALOCH VS Respondent: JEHANGIR KHAN TAREEN and others
Court Name: Supreme Court of Pakistan Judge(s): Mian Saqib Nisar, Gulzar Ahmed, Umar Ata Bandial Title: MUHAMMAD SIDDIQUE BALOCH vs JEHANGIR KHAN TAREEN and others Case No.: Civil Appeal No.307-L of 2015Petition No.355 of 2013 Date of Judgment:2015-10-28 Reported As:PLJ 2016 Sc 276, 2016 P.S.C. 176, 2015-SCP-124, 2015-SCP-166, PLD 2016
JUDGMENT
JUDGMENT UMAR ATA BANDIAL, J.--This election appeal assails the judgment dated 26.08.2015 of the learned Election Tribunal, Multan ("Tribunal") whereby the appellant, who was returned as Member National Assembly in General Elections held on 11.05.2013 from the constituency NA-154 Lodhran-I, has been unseated by the judgment of the learned Tribunal declaring his election to be void. The impugned declaration is based on three findings. Firstly, that the appellant made a false declaration in his nomination papers about his B.A. Qualification from the University of Balochistan. He has thereby incurred disqualification from being elected as member of Parliament under Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan ("Constitution"); secondly, that the appellant is the beneficiary of large scale corrupt and illegal practices committed by the election staff on the election day which the appellant procured, whereby the election is void and also the appellant is disqualified from being elected as Member of Parliament under Section 99(1-A)(1) of the Representation of the People Act, 1976 ("ROPA"); thirdly, that the result of the election is materially affected by the failure of the election staff to comply the provisions of the ROPA and therefore the election as a whole is void under Section 70(a) of the ROPA. 2. The appellant contested the election from the NA-154, Lodhran-I constituency as an independent candidate and secured 86,629 votes to be elected as Member National Assembly. The respondent No.1 ("election petitioner") was runner up in the election having bagged 75,738 votes, thereby losing the election by a margin of 10,891 votes. Nineteen other candidates (respondents Nos.2-20) also contested the election. Altogether they polled roughly 64,252 votes making a total tally of 226,619 votes being polled in the election. Even before the result of the election was consolidated, the
---
## Page 2
election petitioner approached the Returning Officer of NA-154 with an application dated 13.05.2013 requesting for suspension of the consolidation of result proceedings scheduled for that day. It was alleged that corrupt and illegal practices had been committed during the election by the election staff at the behest of the appellant. The request of the election petitioner was not acceded. Thereupon he approached the Chief Election Commissioner with a written application dated 14.05.2013 (Exb.P-16/52) seeking deferral of the consolidation of the election result pending outcome of recounting of votes, verification of count furnished by the Presiding Officers, and in particular the verification and analysis of finger prints of the voters and of the ballot papers by National Database Registration Authority ("NADRA") in order "to identify the bogus voters." By order dated 14.05.2013 (Exb.P-16/53) the Election Commission of Pakistan ("ECP") directed the District Returning Officer, Lodhran ("DRO") to carry out a recounting of votes after notifying all contesting candidates in constituency NA-154, Lodhran-I to attend such proceedings. 3. After the recount proceedings commenced by the DRO on 17.05.2013, the election petitioner again complained to the Chief Election Commissioner on 18.05.2013 that these were being conducted unfairly. Consequently, the ECP passed another order dated 18.05.2013 clarifying that the DRO/RO shall provide access to the nominee of the election petitioner for inspecting all documents available on record and to decide any objection raised about the recounting proceedings in a summary manner in writing. It was also ordered that the Regional Election Commissioner, Multan ("REC") shall attend the proceedings of recounting as an "observer" to ensure their smoothness. 4. On conclusion of the recounting, two reports about these proceedings, one by the DRO (Exb.P- 16/59) and the other by the REC (Exb.P-13), were submitted to the ECP. The report by the DRO (Exb.P- 16/59) dated 21.05.2013 acknowledges the correctness of the objection taken by the election petitioner that the counterfoils of the ballot papers cast in the election did not at their back bear the signature and/or stamp of the Presiding Officer as required under Section 33(2)(e) of the ROPA. The second report (Exb.P-13) dated 23.05.2013 filed by the REC, Mr. Ashfaq Ahmed Sarwar (PW-11), is detailed and gives a polling station-wise account of different violations of the election laws committed by the election staff on election day. These breaches were noted by the REC (PW-11) during the proceedings of inspection of record and recounting of ballot papers attended by him as an ECP observer from 19.05.2013 until 23.05.2013. The election material of 270 polling stations was examined during the said five days and are reported by the REC. However, the inspection and recount proceedings of 34 polling stations conducted on 17.05.2013 and 18.05.2013 prior to the REC's appointment as an observer by the ECP are therefore not dealt with in his report. From the election record of 270 polling stations examined during the recounting proceedings, the REC's report (Exb.P-13) notes contravention of election laws to have been committed at 104 polling stations. The most frequent violation committed at these polling stations is the non-signing and/or non stamping of the counterfoils of ballot papers by the Presiding Officers. This omission constitutes a breach of the duty imposed under Section 33(2)(e) of the ROPA. 5. Another violation of the election law noted in the REC's report (Exb.P-13) is the absence of the thumb impression of the voter on the voters' list. The said defect is reported to be less frequent than the one first mentioned above. But for the number of polling stations involved in these breaches of law, the exact number of votes affected by such omissions made by the election staff is not available in the REC's report. A general picture that nevertheless emerges is that the election record of more than 30% of the polling stations (104 out of 270) is tarnished with the violation of statutory requirements. The widespread and random occurrence of these defaults in the record of the 270 reported polling stations suggests a trend which the record of the 34 polling stations not covered by the REC's report may also bear out. In order to understand the seriousness of the said
---
## Page 3
default in duty committed by the Presiding Officers, the relevant provisions of, inter alia, subsections (1), (2) and (3) of Section 33 of the ROPA are reproduced below: "33. Voting procedure.---(l) Where an elector presents himself at the polling station to vote, the Presiding Officer shall issue a ballot paper to the elector after satisfying himself about the identity of the elector and shall, for that purpose, require the elector to produce his National Identity Card issued under the National Database and Registration Authority Ordinance, 2000 (VIII of 2000). (2) Before a ballot paper is issued to an elector- (a) [omitted] (b) the number and name of the elector as entered in the electoral roll shall be called out (c) the entry relating to the elector on the electoral roll shall be struck off to indicate that a ballot paper has been issued to him; (cc) he shall be required to receive a personal mark, made with indelible ink, on any finger 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 elector on the electoral roll, the number of National Identity Card of the elector, stamp it with the official mark, sign it and obtain on it the thumb impression of the elector. (3) A ballot paper shall not be issued to a person who- (a) fails or refuses to produce his National Identity Card issued to him under the National Database and Registration Authority Ordinance, 2000 (VIII of 2000); (b) [Omitted]; (c) refuses to put his thumb impression on the counterfoil or whose thumb bears traces of its having already been used for putting an impression; or (d) refuses to receive the personal mark with indelible ink or who already bears such a mark or traces of such a mark." 6. Armed with the above information, the election petitioner filed an election petition in July, 2013, inter alia, making three principal allegations against the appellant that were upheld in the findings of the impugned judgment. In support of these allegations, fourteen witnesses including the election petitioner were examined before the learned Tribunal. A Misc. Application seeking verification/comparison by NADRA of thumb impression of voters affixed upon counterfoils of ballot papers cast in the elections was also filed along with the election petition. After hearing the learned counsel for the appellant and the election petitioner, the learned Tribunal by order dated 21.05.2014 allowed the said application. NADRA was directed to carry out verification and comparison of thumb impressions of voters on the counterfoils of the ballot papers cast in the election. The DRO/learned District and Sessions Judge, Lodhran was directed to procure the relevant election material comprising counterfoils of ballot papers along with voters' list from the treasury and to dispatch the same in sealed condition to NADRA, in the presence of the representatives of each party. 7. After hearing die learned counsel for the parties and the officer of NADRA, the learned Tribunal on 25.06.2014 appointed its representative to observe the verification proceedings conducted by NADRA. The said representative was replaced on 09.07.2014 by Mr. Shabbir Hussain Chattha (CW- 2), a retired District and Sessions Judge. The proceedings of opening, scanning and verification of the election record by NADRA were conducted in the presence of the Tribunal's representative. The process was spread over three stages. Firstly, on the receipt of election material, it was opened, counted and tabulated in an electronic record for future reference. Secondly, each item of counterfoils and photo electoral rolls was digitally scanned and transferred to a database; thumb impressions, NIC number recorded on the scanned counterfoils and photo electoral rolls were
---
## Page 4
captured and digitized; thereafter, the original election material was repacked and stored in safe custody of NADRA. Thirdly, the digital record of thumb impression and given CNIC number captured from the election material were put to authentication and verification under the Automated Fingerprint Identification System ("AFIS") of NADRA by comparison with its record linking the thumb impression of every recorded citizen of the State with his CNIC. On completion of the authentication/verification stage, NADRA filed its analysis report (Exb.CW-10/1-6) before the learned Tribunal on 28.10.2014 identifying three categories of thumb impressions contained in the election record. Firstly, the thumb impression on the counterfoils that matched with the thumb print in NADRA's citizens' database for the CNIC given on the count.--rfoils. This is the category of verified votes. The second category of thumb impression on the counterfoils failed the above said authentication by not matching with NADRA's citizens' database in the NIC number recorded on the counterfoils. This category included the cases where someone other than the person holding NIC number recorded on the counterfoils had used the ballot papers. Finally, the third category of thumb impressions comprised finger prints of bad quality that could not be deciphered for comparison or matching through the AFIS of NADRA. 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 received from Election Tribunal (Ref: Paras-2, 3 of this report)218,056 2 Invalid NIC number mentioned on used counterfoils. This also includes such counterfoils that do not have CNIC mentioned over 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 ER73,707 7 Fingerprints on used counterfoils and ER failing authentication179 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 were 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
---
## Page 5
counterfoils contained thumb impressions that were readable by the NADRA software. Out of this total, 20,601 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 identity 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-matching 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 NADRA 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. 11. The NADRA report is signed on each page by Mr. Ghazali Zahid, Director, NADRA Data Warehouse, NADRA Headquarters, Islamabad. He appeared before the Tribunal as CW-2 and was cross- examined by the learned counsel for both the parties. ' Notwithstanding intense questioning on CW-2, by the learned counsel for the appellant, no dent could be caused to the credibility, transparency and analytical propriety of the NADRA scanning and verification process. The appellant did not file any written objections before the learned Tribunal to the NADRA report. Nor has the learned counsel for the appellant criticized the said report before us. The findings given in the NADRA report are therefore authentic, independent credit worth possessing high probative value. 12. According to the learned counsel for the election petitioner, NADRA report (Exb.CW-10/1-6) represents compelling affirmative evidence about illegalities committed on a widespread scale on the election day. The appellant is the beneficiary of such acts of commission and omission done by the election staff. Therefore, firstly, his election is liable to be declared void on account of its result being achieved through bogus voting. This is evident from the violations of law committed by the election staff as that have been detected in the NADRA report. Secondly, the learned Tribunal's conclusion about the appellant's disqualification arrived in the impugned judgment be affirmed. This conclusion finds the appellant to be the principal beneficiary of violations of law committed by the election staff, therefore, he has procured these acts by resorting to corrupt and illegal practices. Consequetly, the appellant is disqualified from being elected for committing the said wrongs. The learned counsel for the appellant has not contested the findings recorded in the NADRA report. He has, however, vehemently opposed the finding of the learned Tribunal that the appellant has procured the violations of law by the election staff and won the election by resorting to the commission of corrupt and illegal practices. 13. The NADRA report does not take account of the defects noted in the inspection and recounting of votes conducted by the DRO, Lodhran in May, 2013. These proceedings were observed by the REC (PW-11) and documented in his report (REC report) dated 23.05.2013 (Exb.P-13) addressed to the ECP. The violations noted therein include the absence of the stamp and/or signatures of the Presiding Officer on the counterfoils of ballot papers required under Section 33(2)(e) of the ROPA. The said provision of law aims at ensuring that a ballot paper is issued by the competent authority to a person who is verified to be a voter in the constituency. The REC report noted the afore-noted defect in the record of 72 polling stations during the scrutiny of election record of 270 polling stations, observed by the REC. On this analysis as well the election record of roughly 25% of polling
---
## Page 6
stations contain a violation of a crucial legal requirement aimed at identifying genuine voters before the issuance of ballot papers. The total number of ballot papers affected by this defect is not calculated by the REC report but the fact that at 72 polling stations the bulk of issued ballot papers suffered from the said violation of law highlights another serious failing and defect in the management and conduct of the election process in the constituency on the election day. The combined effect of the distinct violations of law committed in the identification of the voters highlighted in the NADRA report and in the issuance of ballot papers by unauthorized persons indicate serious flaws in the voting process that render no less than 25% and may be much more of the total votes cast in the election to be suspect, dubious and bogus. 14. Turning to the conclusion to be drawn from the above mentioned clear and convincing evidence of widespread violations of the ROPA committed by the election staff. The learned counsel for the appellant has seriously questioned the findings given by the learned Tribunal that the appellant is accountable for non-compliance of subsection 2(e) and 3(c) of Section 33 of the ROPA. He submits that there is no evidence on record showing that the appellant procured the violations of law committed by the election staff. He has read from the affidavits of the 13 witnesses produced by the election petitioner in aid of his allegation of corrupt or illegal practices being committed by the appellant on the election day. None of these affidavits nor the statements in cross-examination of the said witnesses including the election petitioner disclose any fact nor nominate any person, for connecting the appellant with the said violations of the ROPA committed by the election staff. Equally, neither of the two reports, that is, the REC report (Exb.P-13) and the NADRA report (Exb.CW-10/1-6) insinuates the appellant's involvement in the breach of requirements under Section 33 of the ROPA. The anxiety of the appellant to obtain the reversal of the finding that he has committed corrupt or illegal practices is to avoid his disqualification for five years from contesting election under Section 99(1)(1) of the ROPA. The fact that the appellant won the election cannot be presumed by the election petitioner as proof that the appellant procured violations of election law to be committed. 15. The law regarding the quality of evidence necessary to prove an allegation of corrupt and illegal practices committed by a candidate during his election is by now well settled. "Corrupt practice" is defined in Section 78 of the ROPA while "Illegal practice" is defined in Section 83 of the said statute. The allegation in the present case would, prima facie, fall within the ambit of Section 83(1)(b) of the ROPA. The delinquent conduct under the said provision pertains to, inter alia, procuring the assistance of any person in the service of Pakistan to further or hinder the election of a candidate. The successful proof of the commission of the said wrong by a returned candidate not only annuls his election under Section 68(1)(d) as well as Section 70(b) of the ROPA but also disqualifies him from contesting an election for a period of five years under Section 99(1A)(1) of the ROPA and exposes him to criminal prosecution for an offence carrying punishment of six months imprisonment. In view of the severe consequences following the proof of corrupt and illegal practices in particular by a returned candidate, different pronouncements by this Court adopt a cautious stance towards a defending incumbent of elected office. The earliest case on the subject is Muhammad Saeed v. Election Petitions Tribunal, West Pakistan, etc. (PLD 1957 SC 91) which holds that each ingredient of the misdemeanor of corrupt or illegal practices must be affirmatively proved by direct or circumstantial evidence. Circumstantial evidence is to be believed if all reasonable hypotheses which are consistent with the non-commission of corrupt or illegal practices have been excluded. The said rule has been reiterated with approval in Muhammad ,Yusuf v. S.M. Ayub (PLD 1973 SC 160) and in Muhammad Afzal v. Muhammad Altaf Hussain (1986 SCM R 1736). 16. In the present case, there is no circumstantial, let alone, any direct evidence implicating the appellant in the commission of corrupt or illegal practices during his election. Only an inferential
---
## Page 7
allusion in the submissions by the learned counsel for the election petitioner is suggested to entangle the appellant. The half heartedness of the suggestion itself indicates the weakness of any merit in the learned Tribunal's finding that the appellant is guilty of committing corrupt or illegal practices during the general election in constituency NA-154 Lodhran-I. Correspondingly, there cannot be any finding that the result of the said election is vitiated by such practices under Section 68(1)(d) or Section 70(b) of the ROPA. 17. Be that, as it may, the questi6n that arises is whether the inclusion of 22,216 invalidly issued ballot papers in the count of election result is inconsequential in the eyes of law or has any bearing on the result of the election. It may be reiterated that the objection to the validity of issued ballot papers arises from non-compliance with the requirements of Sections 33(1)(e) and 33(3)(c) of the ROPA to different degrees by the election staff at almost all the polling stations. Section 70 of the ROPA is relevant for widespread violations of mandatory law made during the course of election. It reads as under: 70. Ground for declaring election as a whole void.--The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of - (a) the failure of any person to comply with the provisions of this Act or the rules; or (b) the prevalence of extensive corrupt or illegal practice at the election. 18. Clearly, the provisions, inter alia, of Section 33 of the ROPA relating to the identification of an elector before the issuance of a ballot paper to him are crucial for preventing bogus voting and ensuring a free and fair election. These provisions with the said object would, according to the dicta laid down in Abdul Hafeez Khan v. Muhammad Tahir Khan Loni (1999 SCM R 284) have mandatory effect, and the widespread noncompliance of the said provision would attract the application of I Section 70(a) of the ROPA. However, it is noticed that a declaration under Section 70(a) ibid is predicated upon the satisfaction of the Election Tribunal that "the result of the election has been materially affected by reason of"…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.