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Petitioner: Sardar HAIDER KHAN NASIR and another VS Respondent: Sardar DUR MUHAMMAD NASIR
Court Name: Election Tribunal Judge(s): Naeem Akhtar Afghan Title: Sardar HAIDER KHAN NASIR and another vs Sardar DUR MUHAMMAD NASIR Case No.:Petitions Nos.1 and 2 of 2014Petition No.1 of 2014Petition No.2 of 2014Petitions
JUDGMENT
Reported As: 2016 CLC 41 Result: Petitions dismissed Judgment JUDGMENT NAEEM AKHTAR AFGHAN, J.--- This judgment disposes of Election Petitions Nos.1 and 2 of 2014 as common question of facts and law are involved in both the petitions and the returned candidate is same. ' Initially, on 16th July, 2013 and 25th July, 2013 both the above petitions were entrusted by the Election Commission of Pakistan (hereinafter "the Election Commission") for trial and disposal to Election Tribunal Balochistan Quetta-I Presided by Mr. Muhammad Akbar Sani. The same were numbered as Election Petitions Nos.82 and 141 of 2013. However, on 29th November, 2013 due to lack of confidence expressed by learned counsel for respondent No.1 on that Tribunal, both the petitions were referred to Election Commission for transfer to any other Election Tribunal. Both the petitions were entrusted to the Election Tribunal Presided by Hon'ble Justice Muhammad Hashim Khan Kakar. The Hon'ble Judge ordered for not fixing the petitions before him, where after, vide transfer order dated 24th April, 2014, both the petitions were entrusted to this Tribunal by the Election Commission. The same were renumbered as Election Petitions Nos.1 and 2 of 2014. 2 2. The election petition No.1/2014 has been filed by the petitioner Haider Khan Nasar against Dur Muhammad Nasar and others, praying as follows:--- "It is, therefore, respectfully prayed that this Hon'ble Tribunal may call for the whole record of the election of the constituency in question beside directing that the same be kept in safe custody till final disposal of the matter and on examining the same couple with recording the evidence,
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recounting and thumb impression examination on the polling stations mentioned above be made and thereafter, declare the election of the returned candidate i.e. Respondent No.1 to be void by setting aside the notification dated 22-5-2013 (to the extent of PB-14 Loralai-I (Dukki) issued by Election Commission of Pakistan and instead of him the petitioner be declared to be elected with any other relief as deem fit and proper in the circumstances of the case, with cost of the petition, in the interest of justice." 3. The election petition No.2/2014 has been filed by the petitioner Muhammad Shafique Tareen against Dur Muhammad Nasar and others, praying as follows: "It is prayed that learned Tribunal may be pleased to declare: (a) That Election of returned candidate Sardar Dur Muhammad Nasar (respondent No.1) was void and petitioner has been duly elected from PB-14 Loralai-1 (Dukki Constituency); (b) Further directing to de-notify respondent No.1 as returned candidate and in his place to notify petitioner as duly elected from PB-14 Loralai-I. (c) Such other relief as may be warranted, may also kindly be granted." 4. Facts of the case are that sixty four (64) polling stations were established in the constituency PB- 14 Loralai-1 (Dukki) (hereinafter "the constituency"). The respondent No.1 was declared as Returned Candidate from the constituency by securing 6544 votes, whereas the petitioner Muhammad Shafique Tareen secured 4623 votes and the petitioner Haider Khan Nasar secured 4041 votes. 5. In election petition No.1/2014, out of 64 polling stations, the results of the following 44 polling stations have been challenged by the petitioner Haider Khan Nasar:
S.No. P.S. No. Name of Polling Station 1. 1 Animal Hospital Dukki (Male) 2. 2 Boys H/S Dukki (Female) 3. 6 Girls, H/S Dukki (Female) 4. 12 Government P/S Muhammad Azam Nasar Dukki (Female) 5. 13 Government P/S School Rehmatullah Nasar Dukki (Male) 6. 14 Government P/S Mir Azad (Female) 7. 16 Government P/S Killi Majeed (Male)
8. 17 Government P/S Safar Khan Nasar (Female) 9. 18 Government P/S Killi Zabto Nasar (Female) 10. 19 Government P/S Killi Naik Muhammad (Male) 11. 24 Government P/S Nawab Khan (Combined) 12. 25 Government P/S Jungle Balochan (Combined) 13. 26 Government P/S Habib Killa (Combined) 14. 27 Government P/S Killi Nazar Khan (Combined) 15. 28 Government P/S Jalal China (Combined)
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16. 29 Government Girls M/S Nasarabad (Female) 17. 30 Government M/S Nasarabad (Male) . 18. 31 BHU Nasarabad Dukki (Male) 19. 32 Government Girls P/S Noor Muhammad Nasar (Female) 20. 34 M/S Bani Kot (Combined) 21. 35 Government P/S Hazar Shar (Combined) 22. 36 Government H/S Ismail Shar (Male) 23. 37 Government Girls P/S Ismail Shar (Female) 24. 38 Government P/S Din Muhammad Killa (Combined) 25. 40 Government M/S Chutiali Shareef (Combined) 26. 41 P/S Kochi Baz Muhammad (Combined) 27. 42 P/S Babogan (Combined) 28. 43 Government C/D Shahnawaz Banar (Combined) 29. 44 Government M/S W avi (Combined) 30. 45 Government P/S Sardar Jungle (Combined) 31. 46 Government M/S Nemaki (Combined) 32. 47 Government P/S V iala Narechi (Combined) 33. 48 Government H/S Manzi (Combined)
34. 49 Government P/S Daki (Combined) 35. 50 P/S Kach Sadozai (Combined) 36. 51 Government M/S Raz Muhammad (Combined) 37. 53 Government P/S Landi Mir Khan (Combined) 38. 54 Government P/S Jafar V iliani (Combined) 39. 58 Government C/D W ala (Combined) 40. 59 Government P/S Noor Khan Shehar (Combined) 41. 60 Government M/S Sanguri (Combined) 42. 61 Government P/S Gaz (Combined) 43. 63 Government Talao Daman (Combined) 44. 64 Government P/S Talao Bulanda (Combined)
' In Election Petition No.2/2014, the results of the following 16 polling stations have been challenged by the petitioner Muhammad Shafique Tareen:
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Sr.No. P.S. No. Name of Polling Station 1. 13 Rehmatullah Nasar (Male) 2. 14 Killi Mir Hazar (Female) 3. 16 Killi Majeed (Male) 4. 18 Killi Zabto (F/Male) S.No.501 to 827 5. 30 Nasar Abad (Male) 6. 23 Killi Karim Khan Nasar (Female) 7. 25 Jungle (Combined) 8. 27 Killi Nazar Khan (Combined) 9. 28 Jalal Cheena (Combined) 10. 29 Middle School Nasarabad (Male) 11. 31 BHU Nasarabad (Male) 12. 32 Girls Primary School Killi Noor Muhammad Nasar (Female) 13. 44 M/S W ahvi (Combined) 14. 45 Sardar Jungle (combined) 15. 12 Muhammad Azam Ghareeb Abad 16. 21 Animal Husbandry Habibullah Killi Kareem Khan (Female) ' Out of 16 polling stations, results whereof have been challenged in Election Petition No.2/2014, 14 polling stations are included in the 44 polling stations of Election Petition No.1/2014. Hence in total, results of 46 polling stations have been challenged in both the Election Petitions. 6. In Election Petition No.1 of 2014 it has been alleged by the petitioner Haider Khan Nasar that without permission of the Election Commission, the voter lists of certain polling stations were changed/ shifted just before the election without notice to the candidates and voters of the constituency; that majority of the staff was appointed by the District Returning Officer ("DRO") and the Returning Officer ("RO") at the behest of respondent No.1 as both of them were favouring him; that some of the polling staff was changed without any information to the Election Commission, the candidates as well as the voters; that some of the Assistant Presiding Officers ("APOs") appointed in the constituency were illiterate and they were appointed to accommodate the respondent No.1; that fearing atmosphere was created in the constituency by the law enforcing agencies and some of the candidates including the respondent No.1; that the supporters of respondent No.1 namely Kareem (brother of Majeed) entered in the polling station No.16 P/S Malik Majeed Nasar (male), misbehaved with the polling and security staff and two copies of Provincial Assembly and a copy of National Assembly were stolen in respect whereof FIR No.23/2013 dated 1 1 th May, 2013 was lodged by the Presiding Officer ("PO") Abdul Haq; that the staff posted on these polling stations was in league with the respondent No.1, respondent No.4 (Asmat Luni) and respondent No.5 (Muhammad Shafique Tareen petitioner in Election Petition No.2/2014); that the areas of the polling stations were out of the reach of the petitioner; that though the petitioner appointed his polling agents on these polling stations, but they were not allowed by force to remain/sit in these polling stations; that in absence of the polling agents of the petitioner, with the connivance of the polling staff, the whole election process was taken over by the persons working on behalf of the respondent Nos.1, 4 and 5; that bogus votes were cast by impersonation which can be verified from the counterfoils of the used ballot papers and other record with the help of NADRA authorities through scanning/comparison of the counterfoils with the electoral roll having photographs, thumb impressions and CNICs of the voters.
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' The Election Petition No.1/2014 was supported by affidavit of the petitioner and accompanied by copies of verified relevant documents including Form-XIV of the respective polling stations, affidavits of polling agents of the petitioner, list of witnesses bearing names of 44 polling agents of the petitioner and representative of Election Commission for producing the record of notification of the polling stations and amendments made (if any), detail of polling staff appointed on the polling stations, revised list of polling staff (if any), orders (if any) permitting the DRO or RO to substitute the polling staff, Form-XIV of all the polling stations, Form-XVI, notification of election commission, detail of total votes of the area, detail of total vote cast, detail of votes obtained by each candidate and detail of difference of votes. 7. The Election Petition No.1 of 2014 was contested by respondent No.1 Dur Muhammad Nasar, the returned candidate, on merits as well as by raising preliminary legal objections by filing rejoinder dated 28th July, 2013. The allegations levelled in the petition were strongly contested and denied. It was objected that the petition has not been verified as contemplated under section 55(3) of the Representation of the People Act, 1976 (hereinafter "the Act"); that the relief claimed by the petitioner has no conformity with section 55(2) clauses (a), (b) and (c) of the Act; that the documents annexed with the petition have not been attested and verified as contemplated under the provisions of the Act and that the petitioner has not submitted returns of the election expenses as contemplated under section 50 of the Act. ' On merit, it was stated that the petitioner participated in election without any objection; that the election in the constituency was conducted fairly, freely and in a transparent manner: The allegations of disallowing the polling agents of the petitioner to sit in the polling stations; connivance of the polling staff with 'the petitioner, casting of bogus votes by impersonation, tempering of record and getting result of his own choice by the respondent No.1, were strongly contested and denied. The allegation of rigging, corrupt and illegal practice in the Election was strongly repudiated. The rejoinder of respondent No.1 was annexed with his affidavit, verified photocopies of the statements of the Presiding Officers ("POs") of different polling stations dated 14th May, 2013 allegedly submitted to RO during alleged inquiry and with list of 27 private witnesses and their affidavits. 8. The respondent No.5 Muhammad Shafique Tareen (petitioner in Election Petition No.2/2014) also filed rejoinder. It was agitated by respondent No.5 that the petitioner did not raise any objection or made any complaint regarding alleged rigging or alleged irregularities against him or against the election staff in respect of polling stations Nos.35, 36, 37, 38, 40, 41, 58; that the petitioner has not submitted returns of the election expenses as contemplated under section 50 of the Act. The allegation of joining his hands with respondent No.1 were strongly contested and denied and it was stated that the respondent No.5 has separately filed Election Petition challenging the election of respondent No.1 and has brought on record the massive rigging by the respondent No. 1. The contents of the allegation of change/shifting of voter list of certain polling stations by the DRO and RO without prior permission of Election Commission was admitted with addition that despite complaints by respondent No.5, no action was taken by the authorities. ' The allegation of appointment of polling staff at the behest of respondent No.1 by the DRO and RO was admitted with addition that respondent No.1 was instrumental behind all the affairs. Creation of fearing atmosphere was admitted with further explanation that three FIRs bearing Nos.22, 23 and 24 of 2013 were registered on the day of polling in respect of different incidents at polling station Malik Majeed Nasar with regard to assaulting Head constable Jamal Khan, abuses, interference and snatching of the ballot paper books of the Provincial and National Assembly and tempering with ballot paper books. However, the allegation of the connivance of respondent No.5 with respondent No.1 was strongly denied on the ground that there exist a tribal dispute between Tareen and Nasar tribe. The allegation of violation of section 38 of the Act to the extent of 44 polling
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stations was denied by respondent No.5 and it was alleged to the extent of 16 Polling Stations Nos.12, 13, 14, 16, 18, 21, 23, 25, 27, 28, 29, 30, 31, 32, 44 and 45. It was further alleged that the results of these 16 polling stations were not given as provided under section 38 (ii) r/w section 24 of the Act. It was contended that only way to ascertain the rigging and bogus voting is thumb verification by NADRA for which he has made request in his Election Petition to the extent of 16 polling stations. It was prayed by respondent No.5 that petition No.1/2014 be clubbed with his petition No.2/2014 to avoid conflict of decision. The rejoinder filed by respondent No.5 was annexed with verified copies of relevant documents, list of witnesses of his six polling agents and their affidavits. 9. In Election Petition No.2/2014, it has been alleged by the petitioner Muhammad Shafique Tareen that protest and complaints were made about rigging of election by respondent No.1, but no action was taken by the authorities concerned; that out of 16 polling stations, results whereof have been challenged by the petitioners, 13 were situated in Nasarabad area; that from the polling stations of that area, by 11:00 a.m. Of the polling day, the polling agents of the petitioner were turned out and ballot papers were forcibly taken from the PO; that FIR No.22/2013 was lodged by Head Constable Jamal Khan due to assault upon him, FIR No.23/2013 was lodged by the PO of Primary School Killi Majeed Nasar for causing interference, abuses and snatching of the ballot paper books kept for Provincial and National Assembly Elections and FIR No.24/2013 was lodged with regard to tempering of ballot paper books and illegal stamping of ballot papers; that at polling station No.23 Killi Karim Khan (Female) which was not in existence, the registered votes were 388, but the vote cast was in excess as 420; that forged thumb marks were appended to the counterfoils of the ballot papers. ' According to the petitioner Muhammad Shafique Tareen, prior to filing of Election Petition, he approached the Election Commission under section 103AA of the Act and vide order dated 29th May 2013, reproduced herein below, he was advised by the Election Commission to approach Election Tribunal for redressal of his grievance:- "Same order is in case of Moulvi Salah-ud-Din, candidate for NA 262 Killa Abdullah and Moulana Abdul Qadir Loni_candidate for PB-14 Dukki Loralai-I. The orders in the above mentioned cases were that petitioners should go before Election Tribunal for redressal of grievance: In present case, petitioner could, if he so desired, seek recourse from Tribunal for redressal of his grievance through Election petition. Petition is disposed off. The contention raised in petition shall be addressed by Tribunal as far as possible expeditiously as well as sending the Ballot Papers and counterfoils to NADRA for verifying thumb impression." ' It was contended by the petitioner Muhammad Shafique Tareen that after Forensic Examination/gcanning of ballot papers and counterfoils through NADRA, if the bogus votes casted on the controversial polling stations are excluded, the petitioner will be the winning candidate on the basis of the votes secured in undisputed polling stations. It was contended that illegal practice has been committed by and at the instance of respondent No. 1. ' The Election Petition No.2/2014 was supported by affidavit of petitioner, photocopies of the attested documents as well as list of 16 private witnesses with their affidavits and a separate list of 5 official witnesses i.e. Returning Officer, District Returning Officer, representative of Election Commission of Pakistan Islamabad, SHO Police Station Dukki and representative, of Provincial Election Commissioner Balochistan to produce the applications and complaint of the petitioner about bogus voting and rigging, consolidated statement of the constituency, application of Haider Khan Nasar for withholding the result of constituency on account of massive rigging, order of DRO dated 13th May, 2013 issued to RO to make preliminary inquiry for ascertaining the allegations of the complaints, letter dated 8th May, 2013 issued to Deputy Commissioner and District Police Officer Loralai to deploy security at sensitive polling stations, copy of the petition filed by the petitioner
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under section 103 AA of the Act to the Election Commission, the order passed thereon and copies of FIRs Nos.22, 23 and 24 of 2013. 10. Along with Election Petition No.2/2014, the petitioner Muhammad Shafique Tareen also filed an application for Forensic Examination/scanning of the thumb marks appended to counterfoils of ballot papers through NADRA regarding votes secured by the respondent No.1 at the disputed 16 polling stations. 11. Another application was also filed by the petitioner Muhammad Shafique Tareen praying therein to issue directions to the Provincial Election Commissioner to preserve the election record of the constituency till disposal of the petition on the ground that it is not known as to when the request for recounting and Forensic Examination will be entertained by the Tribunal; that there is genuine apprehension that due to delay in passing appropriate orders for the reasons beyond control of the Tribunal, the record of election of the constituency may be destroyed. 12. Another application was filed by the petitioner for grant of interim relief to 'suspend the notification dated 22nd May, 2013 of respondent No.1 as returned candidate and for restraining him from attending the Provincial Assembly or holding any office by virtue of the said notification. 13. The respondent No.1 Dur Muhammad Nasar contested the Election Petition No.2/2014 by filing rejoinder. It was objected that the petition has not been verified as contemplated under section 53 of the Act; that the petitioner has not given full particulars of the alleged corrupt, illegal practice or the illegal acts; that CNIC numbers of six deponents have not been mentioned, in absence whereof, their identification is not admissible; that documents annexed with the memo. Of petition have not been attested and verified as contemplated under the provisions of the Act; that the petitioner has not submitted returns of the election expenses as contemplated under section 50 of the Act. ' Upon merit, the allegations levelled in the election petition were strongly contested and denied. It was contended that the election was conducted in just, fair, free and transparent manner; that the complaint against rigging is mere allegation without any substance and evidence; that no objection was raised at the time of consolidation of the results. ' With regard to decision of the Election Commission on the application of the petitioner under section 103AA of the Act, it was contended that the verdict of the Election Commission is not binding upon the Tribunal. Test of thumb marks appended to the counterfoils of the ballot papers at the controversial polling stations by comparing the same with thumb marks on the voter list supplied to the POs through NADRA was contested and it was contended that the suggestion made by the petitioner for scanning and comparison is against Article 226 of the Constitution as the secrecy of ballot is sacrosanct. ' The rejoinder filed by the respondent No.1 Dur Muhammad Nasar was supported by his affidavit, photocopies of the relevant verified documents, list of 10 private witnesses along with their affidavits and list of 18 official witnesses/POs. 14. Application for Forensic Examination/scanning of thumb marks was also contested by respondent No.1 on the ground that it would be against the provisions of Article 226 of the Constitution. 15. Rejoinder to the application for directions of the Tribunal to preserve and retain the election record till decision of the petition was also filed by respondent No.1 and it was contended that the Tribunal has got its power to exercise, but not on the ground mentioned in paras 1 and 2 of the application. 16. The application for interim relief/staying the operation of the notification of the respondent No.1 as returned candidate was also contested by filing rejoinder. 17. The respondent No.4 Haider Khan Nasar (petitioner in Election Petition No.1/2014) also filed rejoinder to Election Petition No.2/2014, wherein the respondent No.4 admitted the allegation of rigging in polling stations Nos.12, 13, 14, 16, 18, 25, 27, 28, 29, 30, 31, 32, 44 and 45. The allegation of
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rigging in polling station Nos.21 and 23 was denied. It was alleged that the polling staff was in league with respondent No.1 and respondent No.5 Asmatullah Khan Looni, as bogus votes were casted by impersonation which can be verified from the counterfoils of used ballot 'papers and other record with the help of NADRA. It was alleged that the elections were rigged and respondents Nos.1 and 5 succeeded in getting result of their own choice in respect of Polling Stations Nos.1, 2, 6, 17, 19, 24, 26, 34, 35, 36, 37, 38, 40, 41, 42, 43, 46, 47, 48, 49, 50, 51, 53, 54, 58, 59, 60, 61, 63 and 64. ' The registration of three FIRs was admitted by respondent No.4. However, with regard to FIR No.24/2013, it was contended that the same has been lodged with mala fide and ulterior motives with the connivance of respondent No.1. It was alleged that apart from 100% vote cast at some of the polling stations, postal ballots have also been casted by same persons, which shows that corrupt and illegal practice has been committed by respondents Nos.1, 5 as well as the petitioner (Muhammad Shafique Tareen) and the persons acting on their behalf. It was alleged by respondent No.4 that 519 postal ballots were used in the constituency, but majority of the same were not issued in accordance with Rules nor received back lawfully, but benefit of same was given to respondent No.1; that several ballots/votes casted in his favour are missing and count is not correct; that number of used counterfoils and the ballot papers are different; that ballot papers were brought from outside for putting in the boxes and this fact can be verified by recounting of ballot papers. It was prayed by respondent No.4 that whole election record of the constituency be kept in safe custody till disposal of the matter and after recording evidence, recounting and scanning/ examination of thumb impressions of the polling stations mentioned by the petitioner and respondent No.4 through NADRA, the election of respondent No.1 as returned candidate be declared void and after setting aside the notification dated 22nd May, 2013 issued by the Election Commission in favour of respondent No.1, the respondent No.4 be declared as returned candidate with any other relief deemed fit and proper in the circumstances of the case. ' The rejoinder filed by respondent No.4 was supported by his affidavit and annexed with photocopies of verified relevant documents, list of 44 private witnesses with their sworn affidavits and list of official witness/Representative of Election Commission to produce notification of the polling stations of the constituency, detail of polling staff appointed on the polling stations of the constituency, Forms-XIV and XVI of all the polling stations of the constituency and notification of Election Commission. 18. On the basis of pleadings of the parties, in Election Petition No.1/2014, the then Tribunal framed the following issues:--- (A) Whether the petitioner was deprived/effected due to sudden change of…
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