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Petitioner: IZHAR HUSSAIN KHOSO VS Respondent: Mir FARIDULLAI3 'AMALI
Court Name: Election Tribunal Judge(s): Javed Iqbal Title: IZHAR HUSSAIN KHOSO vs Mir FARIDULLAI3 'AMALI Case No.: Election Petition No,42 of 1997 Date of Judgment:1998-03-16 Reported As: 1999 MLD 3052 Result: Election petition dismissed.
JUDGMENT
JUDGMENT ' JAVED IQBAL, J.---This is an Election Petition preferred on behalf of Izhar Hussain Khoso (Petitioner) under sections 52, 53, 54 and 55 of the Representation of the People Act, 1976 (hereinafter referred to as the Act), calling in question the Election and Notification issued by the Election Commission of Pakistan whereby the Returned Candidate namely Mir Faridullah Jamali (respondent No,9) was declared successful and notified as Returned Candidate from the Constituency NA-203 Jaffarabad-cum-Nasirabad with the following prayer:- ' "It is accordingly, therefore, in view of the above respectfully prayed that the election of Faridullah Jamali respondent No,9 may very kindly be declared as void and the petitioner be declared as duly elected Member of the NA-203 Constituency. ' Another relief which is deemed fit and proper in the circumstances of the case may kindly be granted in the interest of justice." 2. Briefly stated the facts of the case are that petitioner contested election from the said Constituency as Nominated Candidate of the Balochistan National Party and according to the initial count of votes it was declared by the concerned authorities that the petitioner has won from the Constituency in question and it was announced by Pakistan Television on 4th February, 1997 at about 6-30 a.m. The said information was also confirmed by Deputy Commissioner, Jaffarabad to the Petitioner, but on 4th February, 1997 Pakistan Television regretted regarding announcement made earlier and Mir Fareedullah Jamali (respondent No,9) was announced as successful candidate. It is also she case of petitioner that on 9th February, 1997 official counting consolidation statement of result was conducted in his absence and his counsel namely Narain Dass, Advocate who visited the office of Returning Officer for the purpose of counting, who refused the request on
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the ground that it could have been done only, at the direction of Chief Election Commissioner. According to petitioner bogus voting took place in the following Polling Station where the Presiding Officers at their own carried out the entire exercise by putting fictitious Identity Cards numbers on ballot papers which were counted in favour of the Returned Candidate:-- ' Polling Station .. .. Civil Dispensary Baghtail (Male) ' Polling Station .. .. Union Council Office Karya Fari Beghtail (Female) ' Polling Station .. High School Gandakha (Male) , Polling Station .. .. Govt. Middle School Gandakha (Female) Polling Station .. .. Dispensary Manderkot (Male) Polling Station .. .. Primary School Manderkot (female) Polling Station .. .. Dispensary Jaffarabad (Male) Polling Station .. .. Primary School Jaffarabad (Female) Polling Station .. .. Irrigation Bungalow Bagh Head (Male) Polling Station .. .. Primary School. Bagh Head (Female) ' Polling Station .. .. High School Usta Muhammad (Male). Polling Station .. .. High School Hag Baho Usta Muhammad (Male) Polling Station .. .. Girls High School Usta Muhammad (Female) Polling Station .. .. ' Primary School Usta Muhammad (Female) Polling Station .. . High School Boys Dera Allah Yar (Male) Polling Station .. ..Girls High School Dera Allah Yar (Female) Polling Station .. .. High School Abdul Nabi Dera Allah Yar (Male) ' Polling Station .. P.S. Hussain Bux Gola Dera Allah Yar (Female) ' Polling Station .. .. High School Rojhan (Male) ' Polling Station .. .. Primary School Girls Rojhan (Famale) ' Polling Station .. .. Cattle Form Office (Male) ' Polling Station .. .. Primary School Cattle Form (Female) ' It is also stated that at the instance of Mir Zafarullah Jamali the then Care-Taker Chief Minister (father of Returned Candidate), the Sub-Divisional Magistrate and Naib-Tehsildar Chattar created harassm ent among the voters of petitioner and subsequently Chief Minister directed the executive staff of the Polling Station including Sub-Divisions Magistrate and Nabi-Tehsildar that nobody should be allowed to cast his vote within the premises of Polling Station mentioned herein below and if any voter attempts to cast his vote he should be arrested and in order to implement the said directive the tracker was also asked to sit there and take foot prints of those voters who violate the above said direction and resultantly no voter could cast his vote in favour of the petitioner:-- ' Polling Station .. .. Govt. High School Chattar (Male) Polling Station .. .. Civil Dispensary Chattar (Female) ' Polling Station .. .. Govt. Primary School Wazirani Combined. Polling Station .. .. Govt. Primary School Kunri Combined. Polling Station .. .. Govt. Primary School Thairkot Combined. Polling Station .. .. Govt. Middle School Korar Combined. Polling Station .. .. Govt. High School Pulaji, Combined. ' It is further averrred that on 2nd February, 1997 Mir Zafarullah Jamali, the then Care-Taker Chief Minister visited Constituency NA-203 and supplied he specimen of a slip to the Presiding Officers with the direction that only the nearer of such slip having the photograph of Mir Fareedullah Jamali should be allowed to cast their vote and about 4000 votes were cast by following the said lirective which resulted in success of Mir Fareedullah Jamali. It is also stated hat the Chief Minister arranged 200 official vehicles of the Government of Balochistan which were utilised in the election compaign and on the Election day he voters were brought in the said vehicle for the purpose of casting their votes a favour of Mir Fareedullah Jamili, and, thus, the then Chief Minister ommitted illegal and corrupt practice violating the provision of Election Laws. t is also stated in the petition that all the Polling Bags were taken to the house f Deputy Commissioner by the Presiding Officer and the Administrative staff ubordinate to the Chief Minister of Balochistan including Superintendent of Police, Deputy Commissioner, S.D.M., Tehsildar, Local Government Staff of the Provincial Government started bogus voting in the presence of the then Chief 4inister and resultantly Mir
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Fareedullah Jamali was declared as Returned 'andidate from Constituency NA-203 by a lead of 5334 votes by securing 18703 otes while the petitioner obtained 13369 votes. The said lead was obtained due ) bogus voting by obtaining fictitious thumb-impression on the Ballot Papers in 11 139 Polling Stations. It is further stated that the following voters were disallowed to cast their votes:-- (1) Nazer Muhammad son of Gul Muhammad. (2) Inamuddin son of Nazer. (3), Gul Muhammad son of Nazir Muhammad. (4) Vato alias Lamz son of Gosho. (5) Eisa Khan son of Musa Khan. (6) Khan Muhammad son of Thara Khan. (7) Saleh Muhammad son of Thara Khan. (8) Muhammad Saleh son of Ghulam Muhammad. (9) Mst. Lal Khatoon wife of Nazer Muhammad. (10) Mst. Sher Bibi wife of Gul Muhammad. (11) Mst. Noor Bhari wife of Muhammad Panah. (12) Abdul Wahab son of Muhammad Ismail. (13) Jankel son of Sain Dad. (14) Mst. Izzat Khatoon wife of Gul Muhammad. ' The petitioner is also aggrieved that his Election Agent namely Ghulam Yasin was stopped to enter the following Polling Stations:-- ' Civil Dispensary Beghtail (Male) ' Union Council Officer Karya Fari Baghtail (Female) High School Gandakha (Male) ' Government Middle School Gandakha (Female) Girls High School, Usta Muhammad (Female) Primary School Usta Muhammad (Female) Dispensary Jaffarabad (Male) ' Primary School Jaffarabad (Female) ' By the Local Administration but later on when he managed to reach the Polling Stations he found that Presiding Officer was casting bogus votes in favour of Mir Fareedullah Jamali and the voters of petitioner were not allowed to cast their vote on the pretext that their names were not available in the Electoral List and besides that the Polling Staff was canvassing in favour of Mir Fareedullah Jamali and so much that one of the supporters of the petitioner namely Haji Ali Mardan Khan Jamali was kept under detention and put to prison on the ground that he refused to support Mir Fareedullah Jamali. The petitioner being aggrieved sent Fax Messages to the Chief Election Commissioner. The President of Pakistan, Care-Taker Prime Minister, Government of Balochistan and Provincial Election Commissioner Balochistan to the effect that the then Chief Minister be refrained from using his official sources for his son, but with no avail. It is also mentioned that Mir Fareedullah Jamali at the instance of his father .Mir Zafarullah Jamali commited illegal and corrupt practices and his father also mis-used his official capacity being chief-Minister who also got published an Election Poster for Mir Fareedullah Jamali from Syed Colour Printers, Jacobabad and, thus, fareedullah Jamali succeeded on the basis of illegal and corrupt practices regarding which an application was as also submitted to the Returning Officer on 3rd February, 1997 with the signatures of all Contesting Candidates with specific allegation that illegal and corrupt practice was being committed in the Constituency NA-203, but effective step for their redressal were not taken. It is also pointed out that Assistant Presiding Officer namely Sikandar All son of Mohabbat Khan Magsi for Polling Station Goth Ghaffar Khan was thrown out from the Polling Station forcibly and despite his best efforts he was not allowed to perform his routine functions by Mir Jan Muhammad Jamali, who was a Candidate from PB-20. ' It is also one of the grievances of the petitioner that in various Polling Stations the details whereof is mentioned hereinabelow, the results of Election were given by the Presiding Officers on Plain papers without having signatures or
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thumb-impressions of the Presiding Officers and there is also difference of votes in between the result provided on plain paper and that of final consolidation statement:-- ' Polling Station .. (Yar Muhammad) ' Polling Station .. Naser Khan ' Polling Station .. .. Muhammad Bakhsh Palyani ' Polling Station .. Goth Sohrab Khan ' Polling Station .. Rojhan ) ' Polling Station .. .. Abdul Nabi Polling Station .. Tahir Goth) ' Polling Station .. Qarar ' Polling Station .. Behram Khan Buledi ' Polling Station Behram Khan Buledi.) ' Polling Station .. Kurar ' Polling Station .. .. Abdul Rehman Sher Polling Station .. Akbar Khan Umrani Polling Station ....Ahmed Abad ' Polling Station .. Sohbat Pm.) ' Polling Station .. Adam Pur ' Polling Station .. Dilmurad Gola ' Polling Station .. Rojhan Jamali ' Polling Station .. Majo Shori) ' Polling Station .. Haji Moula Bakhsh Punjrani ' Polling Station .. Waziran ' Polling Station .. 6 Muhammad Rahim Polling Station .. Abdur Rehman Sher. Polling Station Imam Bakhsh Hijwani) ' Polling Station Cattle Farm) ' Polling Station . C. Ahmed Abad. ' Polling Station .. Zulfiqarabad. ' Polling Station .. Baghatail ' Polling Station .. .. Shaheen Khan. ' Polling Station .. Dera Allah Yar. ' Polling Station .. .. Muhammad Baldish. ' Polling Station .. Qadirabad. ' Polling Station .. .. Rindli. ' Polling Station .. .. Abdul Rashid. ' Polling Station .. Sikandarabad. ' Polling Station .. Khairdin. ' Polling Station .. .. Muhammad Rahim Mengal. ' It is stated that on account of void, illegal and corrupt practices committed by Officers, subordinate to the Election Commissioner, as well as Officers subordinate to the then Acting Chief Minister of Balochistan, the petitioner was defeated in spite of the fact that initially he was declared as a successful candidate from Constituency NA-203. 3. Mr. Zaheer-ud-Din Kakar, learned Additional District and Sessions Judge, Usta Muhammad/Returning Officer, who has been impleaded as respondent No, 1, and also showed as witness in the list of witnesses submitted by petitioner has furnished his written statement by repudiating all allegations with specific denial that no announcement regarding the win of the petitioner' was announced by Pakistan Television on 4th February, 1997 and moreso, the information of Deputy Commissioner, Jaffarabad in this regard carries no value as he does not figure in so far as the announcement of result is concerned. It is mentioned that the official counting consolidation statement of the result was prepared in presence of petitioner and his
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counsel after issuance of proper notices as required under the relevant provisions of law, and on the day of consolidation the petitioner remained present alongwith his counsel Mr. Narain Dass D. Kapoor, Advocate, which negates the version that consolidation was made in absence of petitioner. On the question of bogus voting it is stated that no complaint was made to the authority concerned in writing as such at this belated stage such objection could not have been raised. The said grievance was never brought to the notice of Election Commission and no complaint in this regard was made in writing meaning thereby that petitioner had nothing to complain regarding casting of bogus voting. It is denied that any official vehicle pertaining to Government of Balochistan was used in the Election compaign and no complaint was lodged by petitioner or any other contesting candidates or some one else in his behalf for the reasons that it was totally baseless allegations. It is also mentioned in crystal clear manner that no complaint regarding taking away the Polling Bags after closing of the Polling to the house of Deputy Commissioner by the Presiding Officers was ever made upto the consolidation of statement of result and the Presiding Officers brought all the Polling Bags from the Polling Station after compilation of result without any delay hence the question of any malpractice does nbt arise. It is submitted that insofar as the allegation that certain persons were disallowed to cast their vote it is mentioned that no protest or timely complaint was made by the persons concerned to the Presiding Officer of the Polling Station as provided under the relevant election laws, and therefore, It can be inferred that it is an afterthought allegation. In so far as application made jointly by all the contesting Candidates is concerned it is submitted that only allegation regarding delay in providing of ballot-papers by the Polling Officer to the voters was alleged which hardly warrant stopping poll in the entire Constituency which was not possible as by that time the Polling was almost over and the casting of votes throughout NA-203 reached its logical conclusion in all very peaceful smooth and lawful manner. It is stated that in the said application no allegation regarding using of 200 official vehicles, disallowing of voters to cast their votes, visiting of Caretaker Chief Minister, distribution of specimen slip by Chief Minister and all other misconceived allegations levelled now by way of this petition were mentioned and as such no importance can be given to such imaginary and afterthought allegations. It is stated that the concerned Presiding Officers have submitted their respective consolidation result on prescribed printed form duly signed by them and as such no illegality whatsoever has been committed. It is lastly submitted that the petition is without lawful force, void in the eyes of law and has nothing in itself to merit decision as into miscarriage of justice has been done because no Election Laws and relevant Articles of the Constitution of Islamic Republic of Pakistan have been violated, hence this petition merits dismissal in the greater interest of justice and rule of law. 4. Mir Fareedullah Jamali (Returned Candidate) has filed his written statement repudiating all the allegations and raised various Preliminary Objections pertaining to maintainability of this Election Petition being devoid of merits and without any substance or specific role attributed to him. It is replied that general allegation has been levelled against Sub-Divisional Magistrate, Naib-Tehsildar Chatter without mentioning their names and allegations raised against Mr. Aslam Shafi, S.H.O. Police Station Gandakha and other Police Officials but have not been impleaded and as such the allegation hardly need any consideration. It is further submitted that the learned Returning Officer (respondent No, 1) has denied all the allegations levelled which may be taken into consideration. It is also objected that in so far as the allegation regarding bogus voting in presence of then Chief Minister with further allegation of fictitious Thumb-Impression in all 139 Polling Stations is concerned, neither the Presiding Officers nor Deputy Commissioner, Superintendent of Police or other official have been impleaded as respondents therefore, the allegations are liable to be struck of being scandalous and embarrassing. It is mentioned that no bogus voting whatsoever was made by any of the Presiding Officer whose names were not mentioned but it was alleged that
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fictitious National Identity Cards numbers on the Ballot Papers were put by them and votes were casted in favour of Mir Fareedullah Jamali. It is further pointed that all the serious allegations have been levelled against Mir Zafarullah Jamali, who is father of Returned Candidate and is not before the Tribunal to defend himself and the entire petition revolves around him meaning thereby that nothing illegal was done by the petitioner as the factum of connivance which is essential to prove corrupt practice is lacking. It is stated that the petition is liable to be dismissed as it does not disclose any cause of action and further it is in violative of the provisions as contained in section 63(a) read with section 54 (b) of the Act. It is explained that the allegation that illegal and corrupt practices were committed by subordinate official of Election Commission and Care-taker Chief Minister without even nearly stating that the same was with connivance of the Returned Candidate or his Election Agent cannot be considered for want of any cause of action against Mir Fareedullah Jamali. It is denied that petitioner was ever announced on Pakistan Television Transmission as Returned Candidate. All other allegations such as that consolidation statement was prepared in absence of petitioner or his representative, bogus voting in various Polling Stations, direction from the Chief Minister to executive staff not to allow any voters within the premises of the Polling Stations to cast vote in favour of petitioner, and direction to tracker by Chief Minister for taking foot prints of the voters, direction to the presiding Officers that no voter should be allowed to cast his vote without having specimen slip with photograph of Mir Fareedullah Jamali, casting of 4000 votes on the basis of specimen slip, use of official vehicle, afffixation of fictitious Thumb Imperssion at all 139 Polling Stations by the voters, non-allowing of casting vote to certain persons, forcible removal of Ghulam Yasin Election Agent, and casting of bogus voting by any Presiding Officer. It is submitted that regarding application allegedly submitted by all the candidates is in fact a managed document as the same were got signed by the candidate who were contesting election for Provincial Assembly and otherwise being political rivals no importance can be attached to such application and besides that contents of the application were not proved by producing the applicants. Any misbehavior with Sikandar Ali Magsi, Assistant Presiding Officer of Goth Ghaffar Khan has been repudiated strongly who himself admitted in his affidavit that Mr. Jan Muhammad, Khan Jamali remained incurious and rude to him who in fact himself was a candidate having no concern with Returned Candidate. In the end it is stated that no illegal or corrupt practice whatsoever has been committed either by the Returned Candidate or his father who was the then Care-taker Chief Minister or any of the Government functionaries. ' After having indepth scrutiny of the petition and written statement filed by Returned Candidate and Returning Officer the following issues were framed:- (1) Whether the respondent No,9 has procured or induced the result of Election of NA-203 Nasirabad by any corrupt or illegal practice as enumerated in section 68(1)(c)(d) of the Representation of the People Act, 1976? If so to what effect. (O.P.P.) (2) Whether respondent No,9 has procured/induce the result of NA-203 in violative of the provisions as contained in section 70(a)(b) of the - Representation of the People Act. 1976? If so to what effect (0.P.P ) (3) Whether the respondent No,9 has been declared elected on the basis of bogus, illegal and invalid votes? If so to what effect. (O.P.P.) (4) Whether official counting and consolidation of result was made in absence of the petitioner? If so to what effect.(O.P.P.) (5) Whether Election Result was determined by massive rigging of all the administrative staff of the Chief Minister including Superintendent of Police, Deputy Commissioner and Sub-Divisional Magistrate at the direction of the then Chief Minister? If so what effect. (O.P.P.) (6) Whether the petitioner's supporter Haji Ali Mardan Khan Jamali was detained in prison on his refusal to support the winning candidate? If so to what effect. (O.P.P.)
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(7) Whether the Election Petition is liable to be dismissed under section 63 (a) of Representation of the People Act, 1976 for non-compliance of section 54(b) for non impleadment of persons accused of corrupt and illegal practices or other Election Offences? If so to what effect. (O.P.P.) (8) Whether the petitioner is entitled for the relief claimed in the petition and does it disclose any cause of action against the respondent No, 9? (O.P.P.) 6. The petitioner produced Sikandar All (P.W.1) lmtiaz Tajwar (P.W .2.) Qadir Bakhsh (P.W.3), Retired Colonel Muhammad Hash= (P.W .4), Saleh Muhammad (P.W .5), Muhammad Saleh (P.W.6), Khan Muhammad (P.W.7), Abdul Wahab (P.W .8), Gul Muhammad (P.W .9), Imam Din (P.W.10), Jonkal (P.W. 11), Ghulam Yasin (P.W.12), Mst. Sher Bibi (P W 13.), Mst. Noor Bhari (P.W .14), Abdul Qayyum (P.W .15) and petitioner also got recorded his own statement as P.W.16. Mr Kanwar Muhammad Dilshad, Provincial Election Commissioner, Balochistan got recorded his statement as Court-witness. In rebuttal the Returned Candidate produced Muhammad Akbar (R.W .1), Gul Muhammad (R.W. 2), Muhammad Wariam (R.W. 3), Saeed Ahmed Nomani (R W.4) and also got recorded his own statement as R.W.5 7. It is mainly contended by Sardar Abdul Lateef Khoso, Advocate duly assisted by Mr. Muhammad Riaz Ahmed, Advocate, on behalf of petitioner that in fact Mir Fareedullah Jamali is 'Benami' candidate on whose behalf the entire election campaign was organized and run by his father namely Mir Zafarullah Jamali, the then Care taker Chief Minister who exerted and channelised all the resources available to him in his capacity as Chief Minister to win the Election at any cost. It is urged with vehemence that since Mir Zafarullah Jamali could not contest election himself as he opted to become Chief Minister having a Limited period, he brought his son in the limelight and gave him full projection by misusing his, official position including rigging at massive scale, use of official vehicle, extension of threats, unlawful detention of supporters of petitioner forcible removal of Election Agents of the petitioner and use of fake National Identity Cards as according to Sardar Abdul Lateef Khoso, Advocate the Government functionaries could not be done to act against the wishes of the then Chief Minister and interest of Mir Fareeullah Jamali and therefore they were determined to get him 'Win' at any cost irrespective of its consequences in view of the influence of Chief Minister and, thus, Mir Fareedulah Jamali used official influence and availed Governmental patronage and as such he is guilty of undue influence' as envisaged under section 81 and illegal practice under section 83 of the Act and consequently the election may be declared as a whole to be void as provided in Section 68 read with Section 70 of the Act. It is also contended that specific allegations were not only levelled (paras. 4, 5, 6, 7, 8, 13, 14, 15, 16, and 17) in the petition, but also proved by producing cogent and concrete evidence and Commissions report is also support the massive rigging illegal and corrupt practice and glaring irregularities benefit whereof may be given to petitioner. It is lastly contended that in view of peculiar circumstances of the matter, where election was contested by a Chief Minister on behalf of Dummy candidate' deviation can be made from the well entrenched legal position that charges/accusation concerning illegal and corrupt practice must be proved beyond shadow of doubt and heavy onus lies on the…
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