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Petitioner: Mir Abdullah Khan VS Respondent: Election Commission of Pakistan
Court Name: Sindh High Court Judge(s): N/A Title: Mir Abdullah Khan vs Election Commission of Pakistan Case No.: Election Petition No.S-17 of 2018 Date of Judgment:2022-08-13 Reported As: 2022 SHC 352 Result: Petition Dismissed
JUDGMENT
JUDGMENT AMJAD ALI SAHIT O, J. This election petition, under section 139 read with section 142 of the Election Act, 2017 (which hereinafter is referred to as "the Act of 2017"), is directed against the declaration of respondent No.9 through notification bearing No.F.2(40))/2 018-Cord. dated 07th August 2018 as the returned candidate after the General Elections-2018. Election to Constituency of Provincial Assembly PS-71, Badin-II, was held on 25.07.2018 (which hereinafter is referred to as "said Constituency). Petitioner and respondents No.2 to 15 have contested the General Elections-2018 for said constituency . Petitioner was the candidate of the Pakistan Democratic Alliance (GDA) while respondent No.9 is the candidate of Pakistan People's Party Parliamentarian (PPPP). Petitioner obtained 33047 votes whereas respondent No.9 obtained 38550 votes with a difference of 5503 votes, as such, respondent No.9 has been declared as a 'Returned Candidate' in the General Election-2018. 2. The petitioner in his election petition has alleged illegalities committed by the election functionaries against the petitioner at the behest of respondent No.9; the R.O. appointed most of the Presiding Officers, Assistant Presiding Officers and Polling Officers in collusion with respondent No.9/returned candidate to give him undue favour; that the presiding officers 130 polling stations provided results of count but did not provide ballot paper account; that at the time of consolidation of results by the R.O. the petitioner objected by pointing out the position of tampered record sent by the Presiding Officers and requested for recounting but the R.O. illegally consolidated the result of the count. The provisional result (Form-47) and final result (Form-49) by the R.O. are contrary to section 95(2) of the Act of 2017 as well as section 80 of the Election Rules. Per petitioner , the application to the D.R.O. Provincial Election Commission and Chief Election Commission of Pakistan for the same subject was received in their respective offices but his efforts went in vain. The petitioner further stated that on his application though the order was passed believing the version of other candidates who extended their oral support to the returned candidate, neither the petitioner nor any other person thereafter invited to participate in the consolidation process.
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3. It is contended in the petition that it was obligatory upon the R.O. to examine invalid votes (excluded from the court) and after scrutiny , the same should be made as part of the record. The petitioner alleged that some polling stations took benefit due to the non-availability of agents of the rival, there was passage free to rig the elections as such many votes cast by same persons; therefore, such allegation could be established on verification of thumb impression of voters through NADRA to ascertain the actual quantum of rigging the polls. The petitioner has further alleged that the R.O. dismissed his application filed for a recount of the votes by ignoring the mandate of law which is simultaneous to be observed pre-requisite condition of 5% of the total Ballots or Ten Thousand. He further alleged that the very serious aspect concerning form-45 either not given to the agents or somewhere given on plain papers containing the seal of the election commission through containing similar aspect by forged signatures the agents were kept on hallow hopes of issuance of Form-45; somewhere the requirements of form-45 have not been complied with mentioning names of the candidates, their election symbol statu s as an independent or party affiliation, therefore, such practice by issuing these papers as Form-45 would be an eye wash merely to satisfy the petitioner for ill-achievements which have been secretly done in favour of the returned candidate. The Form-45 though issued at some polling stations did not contain signature of the polling officers or somewhere thumb impressions were missing and the polling officers issued fake form-45 instead of carbon copies of the original one. Petitioner also alleged that somewhere the calculations are altogether incomplete and interpolations are showing the maneuvering of results by the polling officers in favour of the returned candidate. Despite the filing of applications to the D.R.O. Badin, Provin cial Election Commissioner , Karachi, Secretary Election Commissioner Sindh to Chief Election Commissioner of Pakistan and Secretary Election Commission Pakistan before the consolidation of result and on the applications, no notice was ever provided; such conduct on part of the election functionaries is tantamount to disregard fundamental rights guaranteed to him under the Constitution and his right to a fair trial as well as due process of law. The petitioner further alleged that several spoiled votes were wrongly counted in favour of the candidate of PPP despite the protest of the polling agents which was not recorded. A number of the polling agents were not allowed to enter the polling stations at the time of counting of votes which shows the irregularity floating on the face of the record. The returned candidate has committed corrupt practice and hence, his conduct fails within the ambit of section 175 of the Act of 2017, therefore, his election as a returned candidate is liable to be declared void. The petitioner , therefore, filed an instant election petition with the following prayers:- (a) Declare that the impugned notification dated 07.08.2018 to the extent of PS-71 Badin-II is contrary to law, consequently set aside the same. OR IN THE ALTERNA TIVE (b) Declare that the election of Respondent No.9 as returned candidate is void and fresh polls are directed to be conducted in the entire constituency . (c) This Honourable Court may kindly be pleased to pass an order for recount of votes for the entire polling stations comprising 130 Polling stations of PS-71 Badin-II, Sindh. (d) That, the mala-fide conduct conjointl y committed is declared to be corrupt and illegal practice as defined in Chapter X of the Election Act, 2017. (e) Any other relief which this Honourable Court deems fit may be awarded to the petitioner in the circumstances of the case. 4. In response to notices issued by this Tribunal to the respondents through all possible modes for effecting service upon them, only respondent No.9 being returned candidate and respondent No.10 have chosen to contest the petition and submitted their written statements while the rest of the respondents failed to contest the instant petition, as such, the respondents No.2 to 8 and 11 to 15 were declared ex parte by this Tribunal vide order dated 06.112018 while respondents No.1 and 16 were debarred from the filing of their written replies. 5. Respondent No.9 in his written reply has denied the allegations of the petitioner and questioned the petition on the ground that it does not disclose the cause of action and non-compliance with provisions of sections 142 to 144 of the Act of 2017. He denied that any violation or illegality has been committed by the election functionaries. The returned candidate further denied the appointment of election staff with his collusion; however , he added that if the
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petitioner felt so, he did not raise any objection to the appointment of polling staff before R.O., D.R.O. and the Election Commission of Pakistan, Form-45 of all 130 polling stations was provided to the petitioner . The application for a recount of the votes was rightly dismissed by R.O. after hearing the counsel of the petitioner . The consolidation of the result was made according to section 95 of the Act of 2017 and Rule 85 of the Election Rules. None of the contesting candidates including the petitioner made any request for examination of the invalid votes. The entire consolidation process was carried out in presence of candidates and their agents. There was no rigging or any false vote was cast on any polling station and the petitioner did not make any complaint during or after the close of the poll. Respondent No.9/returned candidate prayed for dismissal with special casts. 6. Respondent No.10 in his written statement has stated that the petition is misconceived; it does not disclose the cause of action; the petitioner has not complied with the provisions of sections 142 to 144 of the Act of 2017, therefore, the petition is not maintainable. He further contended that the petitioner has sent only copy of the petition without annexure including the list of witnesses, affidavits and documentary evide nce. He disclosed the weight of the petition along with annexure, which includes affidavits and documentary evidence to be 1.40 kg while the petitioner sent only 0.50 kg and to this extent he annexed shipment details of TCS with his written statement. He relied upon the contents of the written statement filed by respondent No.9 to be true and correct. However , respondent No.10 lastly contended that the petitioner has filed a false, frivolous and vexatious petition, which may be dismissed with special costs. 7. From the pleadings of parties, the following issues were framed:- 1. Whether the petition is not maintainable under the law? 2. Whether the election and result of the returned candidate/respondent No.9 for the constituency of PS-71, Badin- II, in the General Elections, 2018 had been procured by corrupt and illegal practices with the help of staff appointed to perform duties thereby committed violations of their of ficial duties? 3. Whether the election of respondent No.9 as returned candidate is void and fresh poll be conducted in the entire constituency? 4. Whether the recount of votes for the entire PS-71 Badin-II is required? 5. What should the decision be? 8. After framing of issues, the petitioner examined his witnesses namely Raja Khaskheli, Wahid Bux Khoso, Salaar Dal and Shabeer Ahmed Jarwar in his support. These Witnesses have produced their affidavits-in-evidence. The petitioner also examined himself and produced a memo of the petition, amended memo of petition and affidavit-in- evidence as well as Form-49, notification dated 07.08.2018, application for recoun ting of election votes along with order , applications made to high-ups along with receipts; and the number of Form-15 and Form-47, Thereafter learned counsel closed side of petitioner's evidence through the statemen t. The contesting respondent No.9/returned candidate Mir Allah Bux examined himself and produced a memo written statement and his affidavit- in-evidence and then his counsel closed the side of evidence. 9. Learned counsel for the petitioner while reiterating the contents of the petition mainly contended that the petition is maintainable; that illegalities and irregularities have been committed by the election functionaries against the petitioner and most of the Presiding Officers, Assistant Presiding Officers and polling Officers were appointed in collusion with the respondent No.9/returned candidate to give him undue favour; that the presiding officers 130 polling stations provided results of count but did not provide ballot paper account; that at the time of consolidation of results by the R.O. despite the petitioner objected to tampered record sent by the Presiding Officers and requested for recounting but the R.O. illegally consolidated the result of the count. It is further contended that the provisional result (Form-47) and Final result (Form-49) by the R.O. are contrary to section 95(2) of the Act of 2017 as well as section 80 of the Election Rules. Learned counsel alleged that against illegal acts the application moved by him was though received by high-ups but no action was taken. Per learned counsel, at some polling stations benefit was taken due to non-availability of agents of the rival, there was passage free to rig the elections as such many votes cast by same persons; therefore, he prays that such allegation could be established on verification of thumb impression of voters through NADRA to ascertain the actual quantum of rigging the polls. Learned counsel further contended that the R.O. dismissed his application for a recount of the voles by ignoring the mandate of law
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which is simultaneous to be observed as a pre-requisite condition of 5% of the total ballots polled or ten thousand. He further contended that form-45 was not provided to the agents or somewhere given on plain papers containing the seal of the election commission containing forged signatures and the agent s were kept on false hopes of issuance of Form-45; that mostly the requirements of forrn-45 have not been complied with by mentioning names of the candidates, their election symbols status as an independent or party affiliation, therefore, such practice by issuing these papers as Form-45 would be an eye wash merely to satisfy the petitioner for ill-achievements which have been secretly done in favour of a returned candidate. He also contended the Form-45 issued at some polling stations did not contain signatures of the polling officers or somewhere thumb impression were missing and the polling officers issued fake form-45 instead of caroon copies of the original one, therefore, such conduct on part of the election functionaries is tantamount to disregard fundamental rights guaranteed under the Constitution and right to a fair trial as well as due process of law. Learned counsel also contended that several spoiled votes were wrongly counted in favour of returned candidates; that number of the polling agents were not allowed to enter the polling stations at the time of counting of votes which shows the irregularity floating on the face of the record. Learned counsel has stressed that the returned candidate has committed corrupt practice and hence his conduct falls within the ambit of section 175 of the Act of 2017, therefore, his election as a returned candidate is liable to be declared void and consequently entire fresh poll be conducted or recounting of the votes for the entire polling stations comprising 130 polling stations of the constituency be ordered. 10. Conversely , learned counsel appearing on behalf of respondent No.9 while reiterating the contents of his reply mainly contended that the petition is not maintainable on the ground that the petitioner has not complied with the requisite provisions of sections 142 10 144 of the Act of 2017, lie has contended that no illegality or irregularity was made during the process of the poll and in the presence of 1aw enforcement agencies deployed at all the polling stations, the entire poll was conducted peacefully . Learned counsel for the return ed candidate further contended that though the petitioner has taken a plea in respect of the appointment of pollin g staff who are alleged to have collusion with the returned candidate the petitioner has never made any complaint to this respect before any forum even did not complain after the close immediately . He contended that despite the petitioner is seeking a recount of polling stations comprising 130 polling stations but he has failed to pinpoint any illegality , or tampering of record at the time of consolidation of result, which was made in presence of all contesting Candidates/agents. He further contended that since there was no justification for the allegations of the petitioner , as such, the application for a recount of votes was rightly dismissed by the R.O. with cogent reasons. He pointed out that since the petitioner lost his election, therefore, with malafide intention and manipulation has filed an instant petition with concocted false, frivolous allegations through the petition was filed without verification, which later on was amended by filing an application. The petitioner examined his witnesses being agents of the election but they failed to produce their agentnamas to prove that they were not allowed or ousted from polling station. Form-45 and 46 were provided to the respect of the petitioner at all polling stations, however , no complaint in respect of any mistake or tampering of the record was made by the petitioner . The grounds taken by the petitioner are trifling, insignificant and do not fall within the definition of corrupt practices alleged committed by the returned candidate. Learned counsel further contended that the contents of the petition and affidavits in evidence have specifically been denied by the returned candidate and the petitioner failed to shatter evidence of respondent No.9 at the time of cross-examination. The version of the petitioner is not supported by any corroboratory evidence, as such on such vague and concocted allegations, the election of the returned candidate cannot be declared void. Lastly , learned counsel has prayed for dismissal of instant petition with special costs by relying upon the case laws reported as 2016 SCMR 251, 2016 SCMR 849 & 2016 SCMR 1312 , 2018 SCMR 87, PLD 2017 SC 684 and PLD 2020 SC 718. 11. The learned Assistant Attorney Gener al for Pakistan and Law Officer of the Election Commission of Pakistan have contended that the election was conducted peacefully and no illegal practices or procurement of results with the connivance of of ficials or in contravention of mandatory provisions or the Act of 2017 was made. 12. Heard and perused the material available on record with the able assistance of counsel appearing on behalf of respective parties.
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13. Issue No .l. (Whether the petition is not maintainable?). With regard to the maintainability of the instant petition, learned counsel or respondent No.9 mainly contended that the instant petition is not maintainable on the ground that the petitioner has failed to make verification of the petition following the requirement prescribed under subsection 4 of Section 144 of the Act of 2017, as such, on the failure of this mandatory requirement, the instan t petition is liable to be dismissed. On the other hand, learned counsel for the petitioner has contended that all the provisions of the Act of 2017 have been complied with and the verification of the petition has been made following the law after seeking amendment, therefore, the petition is maintainable in law. As to this issue, I would like to add here that subsection (1) of section 145 of the Election Act, 2017 provides that if any provision of section 142, 143, or 144 has not been complied with, the Election Tribunal shall summarily reject the election petition; whereas its subsectio n (2) says that if an election petition is not rejected under sub-section (1), the Election Tribunal shall issue notice to each of the respondents through all certain modes. It is an admitted position that at the time of filing this petition, it was not summarily rejected by this Tribunal and the notices were issued; the amendment was sought in the petition, the requisite verification of the petition was made, and the written statement was filed and issues were framed; evidence of the parties has been recorded. The main scope for rejection of petition is at the earliest stage and if both subsections (1) & (2) of section 145 of the Election Act, 2017 are read together , then it would be clear that such chapter for rejection of election petition in the circumstances of an instant petition becomes closed after issuance of notice to the respondents and amendment. As such, the petition is maintainable and this issue is answered in favour of the petitioner . 14. Issue No.2. (Whether the election and result of the returned candidate/respondent No.9 for the constituency of PS 71, Badin-II, in the General Elections, 2018 had been procured by corrupt and illegal practices with the help of staff appointed to perform duties thereby committed violations of their official duties?). On this issue, the petitioner has examined himself and his four witnesses; they got exhibited memos of the petition, affidavits-in-evidence and numerous documents relating to the election. The petitioner's witnesses namely , Raja Khaskheli, Wahid Bux, Salaar and Shabe er Ahmed have produced their affidavit-in evidence' which are stereotype written only with change of identity of each witness wherein they have generally stated that "on 25.07.2018 I was performing my duties as on agent of petition in the constituency of PS 71 Badin II, werein the Presiding officer in league with the respondent No.9 were openly busy in process of voting and recounting process in rigging by casting fake votes of persons not available or came to cast their votes, inspite of complaining orally they turned down my request, and there was no any law enforcing agen cy to conduct fair and free elections. That the behavior of Returning Officer was very biased. Criteria for rejection of ballot papers with symbol other than 'ARROW were very strict while with 'ARROW", he was very lenient." This being position of the similar type contents of the affidavits-in-evidence of the petitioner's witnesses suggests that the stance taken by them is just allegations against the Presiding Officers and R.O, otherwise no tangible material is brought to validate their version. Even the witnesses have admitted that they neithe r made the complaint to the R.O. nor have produced a written complaint with their evidence. They also failed to produce their agentnamas. They have also admitted that under the instructions of petitioner Mir Abdullah they have filed their af fidavits. Petitioner Mir Abdullah Khan during cross-examination has deposed as under:- "It is correct to suggest that earlier I have filed petition in which verification is not available. It is correct to suggest that I have not filed complaint to the Returning Officer for appointment of the polling staff on the different polling stations at PS-71 Badin-II. Voluntarily says that subsequently we came to know that the officers appointed on different polling stations are biased to me. It is correct to suggest that even then I have not filed any application to the Returning Officer. The contents of the petitio n were read-over to same of the results on the plain paper of Form-45 were provided and some were not provided to me. It is correct to suggest that in petition in pare-3 it is written that "on 25.07.2018 after close of polls the Presiding Officers of 130 polling stations provided results of count (Form XIV) but did not provide ballot papers account (Form XV)." It is correct to suggest
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that due to typical mistake it is written Form-14 but it may be treated as Forrn-4 5. It is correct to suggest that I produced the Form-45 from pages No.67 to 583. I have not challenged the figures of the votes before any high-ups or Returning Officer. It is correct to sugge st that simply I have made application by requesting to the officer of PS- 71 Badin-II for recounting of votes; however , I have not made allegation of corrupt and corrupt practices. It is correct to suggest that on my application which was moved by me on 27.7.2018 to the Returning Officer of PS-71 Badin-II notices were issued to all the contesting candidates and the order was passed in presence of all the contesting parties. It is correct to suggest that I have moved the application on 28.07.2018. Voluntarily says that 1 have move application when rigging was committed. Voluntarily says that in Form-45 the result was different one and subsequently result was given to the polling agents in which votes were different when we had taken the result from the Electio n Commission of Pakistan. It is correct to suggest that I have produced the documents as E7 page No.5 which disclosed the date is/was 9th August 2018 and it is correct to suggest that I have moved application on 28.07.2018. It is incorrect to suggest that I have filed the annexed documents which are available at pages-51 to 59 are afterthought. It is correct to suggest that in my application I have not specifically mentioned that in which polling station rigging was committed and the election was not conducted in free, fair and transparent manner . It is incorrect to suggest that in support of my contents of petition I have not produced the agents. It is correct to suggest that I have not produced the agentnamas of all those agents who have supported the contents of my petition as well my complaints. It is correct to suggest that during polling process I have not made any complaint to the Return ing Office, High-ups or Rangers and Army Personnel. It is incorrect to suggest that documents which I have produced which is available at pages No.51 to 59 which are managed one. It is correct to suggest that I have pursued my application which was moved by him before chief Election Commissioner of Pakistan at…
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