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Petitioner: MEHMOOD KHAN ACHAKZAI And Others VS Respondent: ELECTION COMMISSION OF JUDGMENT
Court Name: Balochistan High Court Judge(s): Raja Fayyaz Ahmed, Akhter Zaman Malghani Title:MEHMOOD KHAN ACHAKZAI And Others vs ELECTION COMMISSION OF
JUDGMENT
Reported As: 2003 YLR 1413 Result: Petitions partly allowed Judgment JUDGMENT RAJA FAYYAZ AHMED, C.J.---The following reliefs have been claimed in this Constitutional petition:-- "It is accordingly respectfully prayed that it may be declared: (a) That the order dated 11-10-2002 and notification dated 19-10-2002 issued by the Election Commission of Pakistan ate unconstitutional, mala fides, void in excess of authority, discriminatory and of no legal effect. (b) That the petitioners having secured highest number of votes from the undisputed polling stations are liable to be declared as returned candidates and the commission be directed to declare them as such. (c) Alternatively, the Commission be directed to hold re-poll only in the disputed polling stations instead of entire constituencies of NA-262 Killa Abdullah, PB-12 Killa Abdullah-2 and PB-13 Killa Abdullah-3. (d) Pending disposal of this petition, the operation of the order dated 11-10-2002 and notification dated 19-10-2002 be suspended. (e) Any other relief as may be deemed fit and proper in the circumstances of the case may also be awarded."
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Also in Constitutional Petition No.551 of 2002 in respect of the constituency No.262-Killa Abdullah order dated 11-10-2002 passed by the respondent No.1 and the Notification dated 19-10-2002 issued by the Election Commission of Pakistan have been assailed seeking relief of declaration that the same be declared as illegal and having been passed in excess of jurisdiction and consequently; of no legal effect with the further relief that this Court may declare the result of NA-262 Killa Abdullah as per consolidated statement of counts submitted to the respondent No.1 by the Returning Officer of NA-262 Killa Abdullah (respondent No.2) and any other relief, to which the petitioner Maulvi Muhammad Hanif may be found entitled in the circumstance of the case. Whereas; in Constitutional Petition No.540 of 2002 petitioner Ghulam Sarwar Khan has assailed the common order passed by the Election Commission of Pakistan dated 11-10-2002 for being void, illegal and without jurisdiction including the Notification dated 19-10-2002 issued by the respondent No. 1 in respect of re-election of PB-12. Killa Abdullah-II with the further reliefs claimed therein as under:-- "(i.e) Direct the respondents Nos.2 and 3 to complete the counting of remaining four polling stations, and thereafter announce the unofficial result of PB-12 Killa Abdullah-2. (i.e) Direct the respondent No.1 to declare the official result of PB-12 Killa Abdullah-2 on the basis of result already compiled on Form-XIV regarding forty-three polling stations as well as on the basis of result of the remaining four polling stations. (v) Restrain the respondent No.1 from conducting re-election in the constituency i.e. (PB-12 Killa Abdullah-2). (vi) Any other relief which this honourable Court may deem fit and proper also be awarded to the petitioner. " 2. Since in all the three Constitutional petitions i.e. C.P.No.546 of 2002, C.P. No.551 of 2002 and C.P. No.540 of 2002 a common order passed by the respondent No. 1 (Election Commission of Pakistan) on 11-10---2002 pursuant to which impugned Notification dated 19-10-2002 was issued, has been assailed, out of which; C.P.No.546 of 2002 relates to constituencies NA-262 Killa Abdullah, PB-12 Killa Abdullah-II and PB-13 Killa Abdullah-III, whereas; the other C.Ps. i.e. 551 of 2002 and 540 of 2002 respectively relate to constituencies NA-262 Killa Abdullah and PB-12 Killa Abdullah-II in respect whereof the abovesaid common order and notification have been passed and issued by the respondent No. 1, therefore, the same are disposed of collectively, by this order. 3. The brief facts of the case are that the petitioner Mehmood Khan Achakzai, Chairman of Pakistan Pashtoonkhawa Milli Awami Party (PPMAP) and respondents Nos.6 to 11 namely Bismillah Khan Kakar, Abdul Khaliq, Abdul Aziz, Lala Jan, Muhammad Ismail and Maulvi Muhammad Hanif (petitioner in C.P.No.551 of 2002) contested general elections held on 10-10-2002 from the constituency NA-262 Killa Abdullah which comprises of the Baluchistan Provincial Assembly constituencies i.e. PB-11 Killa Abdullah-1, PB-12 Killa Abdullah consists of 182 Polling Stations, whereas; PB-12 Killa Abdullah-II comprises of 47 Polling Stations and for PB--13 Killa Abdullah-III, 65 Polling Stations as per election scheme. Petitioner No.3 Naseem Khan Turyalai, in C.P. No.546 of 2002 and respondents Nos. 18 to 23 namely Ameer Jan, Dr. Wali Jan, Abdul Ghaffar, Ghulam Sarwar (petitioner in C.P. No.540), Muhammad Usman and Maulvi Abdullah contested election from PB-12 Killa Abdullah-II. Petitioner No.4 Abdul Majeed Khan Achakzai, in C.P. No.546 of 2002 and respondents Nos.24 to 31 namely Ameer Jan Kakar, Haji Wali Muhammad, Abdul Sadiq, Kalimullah Khan, Muhammad Din Kakar, Muhammad Nawaz, Maulvi Ghulam Haider and Muhammad Naseem contested election from PB-13 Killa Abdullah-III. 4. The Election Commission of Pakistan/respondent No.1 vide short order dated 11-10-2002 recorded its satisfaction in the terms that grave illegalities, violation of provisions of Representation of the People Act, 1976 and the Rules made thereunder have since taken place during the polls of constituencies i.e. NA-262 Killa Abdullah, PB-12 Killa Abdullah-II and PB-13 Killa Abdullah-III, which
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thus; to be declared void, therefore, in exercise of powers conferred on it under sections 103-AA(1) and (3), 104 of the Representation of the People Act, 1976 read with Article 6 of the Election Commission Order, 2002 and all other powers enabling it, in that behalf, the respondent No.1 declared the polls in the abovesaid constituencies to be void and called upon the electors of the said constituencies to elect the persons to fill in the seats for these constituencies on 22-11-2002, accordingly; the Secretary, Election Commission was directed to issue the Notification for holding of the polls of the said constituencies by publication of Notification in the official Gazette. 4-A. The contesting candidates namely Mehmood Khan Achakzai from NA-262 Killa Abdullah, Dr. Hamid Khan Achakzai from PB-11 Killa Abdullah-I, Naseem Turyali from PB-12 Killa Abdullah-II and Abdul Majeed Khan Achakzai from PB-13 Killa Abdullah-III stated to have submitted review application against the short order dated 11-10-2002 to the Election Commission of Pakistan seeking for review of the order on the grounds mentioned therein in respect of the aforesaid constituencies, however, in respect of NA-262 Killa Abdullah it was admitted in the relevant paragraph of the review application that in 12 polling stations by force polling staff were held hostage and the ballot boxes were taken over by the supporters of the rival candidates and the matter was reported to the concerned quarters including the polling staff of the polling stations, Returning Officer and to respondent No. 1 similar complaint was made in respect of the nine polling stations of PB-12 Killa Abdullah-II and specifically it was contended in the review application that polling was interrupted by use of violence in respect of nine polling stations and eventually control of these polling stations was taken over by the miscreants and during the violence Mst. Nek Bibi, Polling Agent of PPMAP was killed by means of firing and two other polling agents sustained bullet wounds and a formal F.I.R. Was also registered. Also the election staff including the Returning Officer, who visited the Polling Stations, was subjected to firing and were made hostage. As regards the polling of the constituency PB-13 Killa Abdullah-III, it was alleged in the review application that out of 65 Polling Stations, polling could not be held at 3 Polling Stations i.e. No.35 (High School Abdul Rehmanzai), No.37 (Shahmir) and No.40 (Lal Muhammad). It appears that the Election Commission of Pakistan as regards the Review Application is concerned, if received, remained undecided. 5. Perusal of the reasons recorded by the respondent No. 1 for the short order dated 11-10-2002 shows that reports were transmitted by the District Returning Officer, Returning Officer and Provincial Election Commissioner, Baluchistan in respect of the abovesaid constituencies to the respondent No. 1. The Returning Officer of the said constituencies vide his memorandum No.387 of 2002 dated 11-10-2002 informed that the supports of the various candidates contesting election, from PB-12 comprising of 47 Polling Stations, numbering 30/40 equipped with arms in the shape of groups, took the polling staff of 14 polling stations as hostage, who took over possession of the polling material on gunpoint and cast bogus votes as well as on gunpoint got prepared statements of the counts and in such behalf the Returning Officer was also informed in writing by the Presiding Officers, whereas; in respect of PB-13, the Presiding Officers have informed to the Returning Officer in writing that at 3 polling stations they had been taken on gunpoint and on a large scale bogus votes were cast/ballets were stamped at that 3 polling stations out of 65 polling stations of the constituency. As regards PB-12 vide letter No.386/2002 dated 11-10-2002 the Returning Officer informed the Election Commission of Pakistan that till 1-00 p.m. Polling continued at the polling stations peacefully, but thereafter, intermittently disturbance by way of riots, firing and incidents of stone pelting abruptly occurred and the supporters of candidates of various political parties in the shape of armed groups one after the other raided the polling stations, but the Levies and the Personnel of Frontier Corps deployed there and the patrolling personnel failed to control the situation, with the result that the mob besieged 14 polling stations and took the polling staff of these polling stations
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as hostage and cast bogus votes in favour of the candidates of their choice, inasmuch as; the Presiding Officer was also beaten-up. Also, it was reported by the Returning Officer that the deployed forces were also taken on gunpoint and in the late hours of the night the remaining staff of the 14 polling stations extremely perplexed and terrified reached to the headquarter. The Presiding Officers laid information in writing to such effect to the Returning Officer, regarding the open terrorist activities and the rigging carried out at these polling stations by the supporters of the candidates. The names and numbers of 14 polling stations have been specified in the report submitted by the Returning Officer to the respondent. No. 1. In the light of these facts, the Returning Officer noted that count of polls in respect of the aforesaid 14 polling stations has not been prepared except of 33 polling stations of PB-12 with the request that in view of the large scale rigging, carried out at 14 polling stations, the poll may be cancelled. As regards the 33 polling stations of the said constituency in view of the statement of counts prepared by the Returning Officer, Ghulam Sarwar secured 5665 votes leading at position No.1, whereas; on the next to him candidate Muhammad Naseem secured second position by securing 4996 votes. 7. Similar report was submitted to the respondent No. 1 by the District Returning Officer, Killa Abdullah, Chaman and it was observed therein that as a result of rigging at vast scale etc.; the whole process of polls in PB-12 and NA-262 was on the mercy of the outsiders at 14 polling stations of PB-12 Killa Abdullah-II and NA-262 Killa Abdullah. It may be noted that copy of the reports of the District Returning Officer and the Presiding Officers have been filed and supplied to the parties by the learned Deputy Attorney--General. Also, extract of the same including report of DRO etc. Has been reproduced to an extent in the detailed reasons recorded by the respondent No. 1. Also, it is pertinent to note that the aforesaid communication transmitted to the Election Commission of Pakistan by the District Returning Officer appears to have been based on the reports of the Presiding Officers and the Returning Officer. In view of the above noted reports, the respondent No. 1 directed the Secretary, Election Commission of Pakistan to conduct a detailed inquiry in compliance whereof report was submitted to the Election Commission relevant extract whereof has been reproduced in the details reasons recorded for the short order by the Election Commission of Pakistan on 12-10-2002. 8. After having perused the report and the material available with the respondent No. 1, the Election Commission of Pakistan requested one of its Members (Mr. Justice Ahmed Khan Lashari) to peruse the available material and after speaking to the Returning Officer concerned informed the Commission, as to the result of his summary inquiry, consequently; the learned Member, of the Commission did the needful and expressed his views that in the facts and circumstances of the case, the polls in the constituencies i.e. NA-262 Killa Abdullah, PB-12 Killa Abdullah-II and PB-13 Killa Abdullah-III be declared void. Thereafter, the entire material available on record was scrutinized by the Election Commission of Pakistan and in view of the report submitted to it by the Secretary, Election Commission of Pakistan, as well as views expressed by the learned Member, Election Commission and from facts apparent on the face of the record (as per detailed reasons for the short order) as well as in view of the peculiar facts and circumstances of the case, the Commission recorded its satisfaction that by reasons of grave illegalities/violation of the provisions of Representation of the People Act, 1976 and the Rules made thereunder, the poll in the abovesaid constituencies are to be declared void and illegal, consequently; in exercise of the powers conferred on it as abovesaid, the poll in the abovesaid constituencies were declared to be void and the electors of these constituencies have been called upon to elect the persons to fill the seats for these constituencies on 22-11-2002 with the further direction to the Secretary, Election Commission of Pakistan to issue notification, accordingly by publication of the programme in the official Gazette for holding of poll.
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9. Before commencing with his arguments Mr. H. Shakil Ahmed pointed out that result of poll in respect of PB-11 Killa Abdullah-I has since been declared by the Election Commission of Pakistan, therefore, Constitutional Petition No.546 of 2002 to such extent has become infructuous and the petitioner No.2 Dr. Hamid Khan Achakzai and the respondents Nos. 12 to 17 be accordingly deleted from the title of the memo. Of the petition. This position has been confirmed by the Deputy Attorney-General, consequently; the Constitutional petition having become infructuous as regards the PB--11 Killa Abdullah-I, is disposed of accordingly and the names of the concerned parties have been deleted from the title of the memo. Of petition. 10. Mr. H. Shakil Ahmed, Advocate contended and raised the following points:-- A. The petitioner Mehmood Khan Achakzai at the polls for NA-262 Killa Abdullah secured highest number of votes numbering 33230, whereas; next higher number of votes were polled in favour of respondent Maulvi Muhammad Hanif i.e. 23949 and the respondent Bismillah Khan Kakar being the third in the order of merit secured 17976 votes and as per statements of counts issued to petitioner Mehmood Khan Achakzai by the Presiding Officers of the Polling Stations, was to be declared as returned candidate but illegally and contrary to the unofficial results supplied to the Polling Agents of the said petitioner, result of the constituency was withheld by the respondent No.1 and without any legal or factual basis the respondent No.1 declared the poll of NA-262 as void vide impugned order, further directing that poll to be held afresh of the said constituency. The learned counsel however, in view of the contents of review application, statedly submitted by the petitioner to the respondent No. 1, reports forwarded to the Election Commission of Pakistan by the Returning Officer and the inquiry conducted under the direction of Election Commission of Pakistan, submitted that the impugned order and Notification are liable to be set aside as by no stretch in view of the undisputed material available with the Election Commission of Pakistan holding of re-poll in the entire constituency could not have been ordered. According to Mr. H. Shakil Ahmed at best in view of the dictum laid down by the honourable apex Court in the case of Behram Khan Achakzai v. Abdul Hameed Khan Achakzai and others PLD 1990 SC 352 re-poll could only have been ordered in respect of the Polling Stations numbering 12 where allegedly vast scale rigging, grave irregularities etc: were reportedly committed, but in no case poll for the entire constituency can be directed to be re-held, hence; the impugned order and the Notification being illegal, void and mala fide be set aside and declared to be of no legal effect. B. As regards PB-13 Killa Abdullah-III, Mr. H. Shakil Ahmed contended that petitioner No.4 (Abdul Majeed Khan) at the polls secured 15312 votes whereas; 9087 votes were cast in favour of the candidate namely Haji Wali Muhammad in the order of merit while the third candidate respondent Ghulam Haider secured 7287 votes, therefore, even if be assumed that grave illegalities and rigging was carried out/committed at three polling stations i.e. Killi Shah Mir, High School Killi Abdul Rehmanzai and Primary School Killi Lal Muhammad and the total number of registered votes of these polling stations numbering 5471 even if be counted in favour of the candidate next to him, who has secured 9087 votes in all the remaining polling stations of the constituency, cannot be declared successful as against the petitioner Abdul Majeed, therefore, in view of such undisputed position and number, of votes secured by the abovesaid candidates except the petitioner Abdul Majeed Khan no other candidate can be declared having secured highest number of votes, therefore, for such reason the impugned order and the Notification is liable to be struck down and necessary directions be issued to the respondent No.1 to announce the official result of PB-13, Killa Abdullah-III, in the light of the statement of counts of the constituency, submitted to the respondent No. 1 by the Returning Officer concerned. In a similar situation, according to the learned counsel, the Election Commission of Pakistan in respect of PB-14, Loralai-I declared the contesting candidate Sardar Masood Ali Khan as the returned candidate vide order dated 29-10-2002 passed in Petition No.01-Q of 2002 and copy' of the order in support of the contention has been placed on
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record and in this respect he also placed reliance on the above-quoted judgment of the honourable Supreme Court. C. Same contention in respect of PB-12, Killa Abdullah-II noted in ground (A) above in view of the alternate plea, submitted that re-polling of the entire constituency is violative of the law and the material available with the Election Commission of Pakistan as regards the allegation of rigging and grave irregularities committed at the polling stations as per information of petitioner No.3 (Naseem Khan Turyali), however, he admitted that prima facie the material available with the respondent No.1 indicated that grave irregularities and rigging at vast scale was committed at 14 polling stations referred to in the impugned order and detailed reasons recorded by the respondent No.1, as such there being no adverse report as regards the polling carried out at the remaining polling stations of the constituency where the same was conducted peacefully and without any disturbance, did not necessitate for declaring the poll of the entire constituency as void, consequently; the impugned order and the Notification being illegal, mala fide and violative of the law resulted into frustrating the vote cast by the electors as per their Will and conscious, are liable to be set aside and appropriate consequential orders be passed. 11. M/s. Kamran Murtaza, (for respondents Maulvi Muhammad Hanif and Maulvi Abdullah) and Muhammad Qahir Shah (for respondents Bismillah Khan Kakar and Ghulam Sarwar Achakzai), Advocates after having gone through the detailed reasons recorded by the respondent No. 1 for the order dated I1-10-2002 and the reports submitted by the Returning Officer etc.; and in view of the above-quoted judgment of the honourable Supreme Court contended that re-poll of the entire constituency could not have been legally ordered, hence; the order and the Notification as having been passed in the abuse of the powers and authority, are liable to be set aside except that re-poll in respect of the polling stations on which the rigging was allegedly carried out can be ordered and the poll at the remaining polling stations carried out peacefully and in accordance with law cannot be disturbed. 12. Mr. Waseem Jadoon, Advocate for Maulvi Ghulam Haider submitted that the impugned Notification is unexceptionable in the given facts and circumstances of the case, which need not be interfered with. 13. The un-represented respondents respectively in Constitutional petitions No. 540 and 551 of 2002 namely Dr. Wali Jan Dakar and Abdul Aziz as well as they being respondents in Constitutional Petition No.546 of 2002 being present in the Court were informed that they can by themselves address the Court if they or either of them interested to make any submission, but they declined and stated that they are not interested to say anything. 14. Mr. Mujeeb Ahmed Hashmi, the learned counsel for respondents Ubaidullah, Amir Jan and Haji Wali Muhammad contended that statement of count annexed with the Constitutional petition and relied upon by the petitioners pertaining to the Polling Station No.53 (Abdullah Jan Takri) of PB-13, Killa Abdullah-III purportedly issued by the Presiding Officer concerned since did not contain the requisite certificate nor the same appears to have been prepared in the presence of the Polling Agents of the candidates as required under section 38 of the Representation of the People Act, 1976, therefore, no reliance can be placed on this document nor the statement of count of votes mentioned therein can be legally considered, which on exclusion has a direct effect on the overall result of count of the petitioner Abdul Majeed Khan in respect of all the Polling Stations except the three rigged polling stations, hence; on this score the relief prayed for in view of the reported judgment of the honourable Supreme Court in the case of Behram Khan Achakzai will not be applicable and thus, the impugned order and the Notification issued by the Election Commission shall be unexceptionable. He next submitted that since the petitioners have filed nomination papers for contesting the general election from the constituencies pursuant to the impugned Notification dated 19-10-2002 and they have been declared as validly nominated candidates from
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the concerned constituencies after the scrutiny of nomination papers, therefore, they are estopped by their conduct to challenge the impugned Notification and the order dated 11-10-2002 passed by the respondent No. 1 in the light whereof the impugned Notification was issued. The learned counsel further submitted that in view of the material and reports officially submitted to the respondent No.1 competently and in the lawful exercise of powers vesting in the Election Commission, the impugned order and the Notification has been issued. To elaborate this contention he made reference to the provisions of section 103-AA read with section 108 of the Representation of the People Act, 1976 as well as to the provisions of Article 6 of the Election Commission Order, 2002. The learned counsel further added that since the process of re-holding of the poll of the constituencies, is in full progress after completion of the required formalities and the same are to be held on 22-11- 2002, as per impugned Notification, therefore, the petitioners are not entitled for the discretionary relief. To supplement his view-point reliance has been placed on a reported judgment of the Election Tribunal passed in the Election Petitions Nos. 17 and 11 of 1997 in the case of Sardar Muhammad Abdullah Khan v. Sahibzada Muhammad Usman Abbasi and 4 others 1998 CLC 612. Mr. H. Shakil Ahmed, Advocate in the light of contentions noted above made by Mr. Mujeeb Ahmed Hashmi submitted that the impugned order for re-holding of poll for the whose of constituencies i.e. NA-262 Killa Abdullah, PB-12 Killa Abdullah-II and PB-13 Killa Abdullah-III…
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