Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Khawaja Saad Rafique and others VS Respondent: Hamid Khan and others
Court Name: Supreme Court of Pakistan Judge(s): Mushir Alam, Sh. Azmat Saeed, Mazhar Alam Khan Miankhel Title: Khawaja Saad Rafique and others vs Hamid Khan and others Case No.: Civil Appeals No, 369, 835 and 885 of 2015 Date of Judgment:2018-06-12 Reported As: 2018 P.S.C. 1816 Result: Appeal allowed
JUDGMENT
JUDGMENT MUSHIR ALAM, J. -- Instant Civil Appeal No, 369 of 2015 under Section 67(3) of the Representation of People Act, 1976 ("RoPA") arises out of the final decision dated 4.5.2015 rendered by the learned Election Tribunal, Faisalabad (Camp at Lahore), whereby Election Petition No, 194 of 2013 filed by the Election petitioner/runner-up candidate Mr. Hamid Khan (Respondent No, 1 herein) against the returned candidate namely Khawaja Saad Rafique (Appellant herein) was' allowed. Learned Election Tribunal, Faisalabad (Camp at Lahore) while returning the finding on pivotal issue No, 7 concluded that "the Returning Officer and Polling Staff failed to comply with the provisions of Representation of People Act, 1976 and all the rules and guidelines provided (them) for the conduct of polls as well as extensive illegal practices prevailed throughout the constituency, which are more than enough to hold to the satisfaction of the Election Tribunal that the election law been materially affected." Election petition was accepted as a consequence "the election for NA- 125, Lahore are hereby declared to be void as a whole, under Section 67(1)(d) read with Section 70 of the RoPA, 1976". A reference was forwarded to Election Commissioner of Pakistan for further proceedings in accordance with law for conduct of bye-election for NA-125, Lahore. 2. This matter has taken considerable time to ripen, even lengthy arguments for severai dates were heard and at the fag end case by consent vide order dated 26.1.2016 "available counterfoils of NA- 125, Lahore are sent to NADRA for verification of thumb impression with their available electronic database record." NADRA Report dated 2.8.2016 was submitted, considerable time was consumed by the parties to examine the report. When this bench commenced hearing all the learned counsels were cognizant of the fact that decision in the matter may not eventually benefit either side, as no time is left to go to re-poll. However, parties insist that since next elections are right at
---
## Page 2
the corner, it would be just and proper to resolve the controversy one way or the other, before the parties go to next general election. 3. Facts in perspective are necessary to appreciate the contentions of the learned counsels for the parties. Appellant Khawaja Saad Rafique and the runner-up Candidate-Hamid Khan alongwith other candidates contested the General Elections, 2013, from NA-125, Lahore-VIII, held on 11.5.2013. The Appellant herein, having secured 1,23,416 votes as against the election petitioner (Mr. Hamid Khan)/Respondent No, 1 herein, who bagged 84,495 votes. Appellant by lead of 38,921 votes was declared and notified as the returned candidate. 4. Respondent No, 1 herein, being runner-up, challenged the election, essentially on the grounds of corrupt and illegal practice allegedly committed by the returned candidate, other candidates running from Provincial Constituencies of the same beat, his election staff and persons responsible to conduct elections, who allegedly violated Representation of Peoples Act, 1976 (hereinafter abbreviated as RoPA) and rules framed thereunder, which according to the learned counsel for the Respondent No, 1 had materially affected the result of the election. 5. Election Petition was contested both on technical/legal grounds, as well as on merits. Out of the pleadings of the parties, following issues were struck down:- Issues (1) Whether the election petition has been drawn up in utter disregard of the provisions of Sections 54, 55 read with Section 63 of the Representation of People Act, 1976, and Notification No, F-1 (685- Coord) 16.03.1985, if So, its effect? OPR 1. (2) Whether all the documents/annexures relied upon by the petitioner have not been verified in accordance with law, if so, its effect? OPR 1. (3) Whether the petitioner failed to dispatch copies of the election petition and annexures to all the contesting candidates under registered cover in terms of Section 54(b) ibid and clause 1 of above-said Notification, if so, its effect? OPR 1. (4) Whether the petitioner failed to put forward specific instances of malpractices and instead introduced vague and general allegations, if so its effects? OPR 1. (5) Whether the election of the returned candidate has been procured or induced by corrupt or illegal practice? OPP. (6) Whether any corrupt or illegal practice has been committed by the returned candidate, or his Election Agent, or by any other person with the connivance of the candidate or his Election Agent? OPP (7) Whether the result of the election has been materially affected for reason of failure of any person to comply with the provisions of the Act or the Rules or by prevalence of extensive corrupt or illegal practice at the election? OPP (8) If issues 5 to 7, or any of them, is proved in affirmative, then to what relief the petitioner will be entitled to? OPP 6. From the record it appears that initially application for verification of the entire electoral record of the subject constituency, filed by the Election Petitioner was declined vide order dated 7.11.2013 (CMA No, 2507/15 @ 1452-1459) observing in para 6 thereof; "........that until and unless the allegation of voting through impersonation or other fraudulent means setup in the Election Petition is substantiated with evidence at trial, no order for or against the request for comparison of thumb impression can be passed because contents of Election Petition cannot be equated with legal evidence and it is the legal evidence only, which provides a legal basis for passing a legal order." From '.the record it appears that the Application for verification of entire voting record of NA-125 from Electronic database of NADRA was dismissed through detail order dated 25.2.2014 (CMA No, 2507/15 @ pages 1468-1472 Vol. IX] observing in para 8 at page 1471 that "The best option, in the circumstances would be to let the petitioner's evidence concluded and if instances or
---
## Page 3
impersonation are apparent from such evidence the petitioner may make fresh request, for comparison by physical persons having reliable and sufficient expertise in the science of Finger Print" in para 9 of the said order it was concluded that "Moreover,- before conclusion of Petitioner's evidence such exercise would be premature, as allegation of facts are to be established through primary evidence and, surely, expert evidence can only corroborate primary evidence and not to substitute itself". 7. Consequently. Election petitioner, in support of his case examined his Election Agent, Abdul Latif Hanka as PW-1 (pages 12-13 CMA 2527/15 Vol-1) Chaudhry Mehboobul Hassan. Advocate as PW-2, both on 15.3.2014 Shamirnur Rehman, Advocate PW-3, Ms. Zainab Lodhi, Polling Agent at PS-98 as PW-4, Rashid Ahmed Khan,. Polling Agent at PS-120 PW-5, '2Ms.,Neelam Irshad Sheikh, Polling Agent at PS-06 as PW-6, Begum Tasneem Saadai, Polling Agent, at PS-6 as PW-7, Mrs. /ram Akmal, Polling Agent at PS-111 as PW-8, Shoaib Nabi, Polling Agent, at PS-110 as PW-9 Dawood Tanveer, Polling Agent at PS-107 PW-10, Mukarram at PS-05 as PW-11 all on 29.3.2014. Election Petitioner, Mr.' Hamid Khan, was examined. on 12.04 2014 as PW-12 (CMA 2507/15 part 1-page.s 88-95): 8. At the motion of Election petitioner. On 9.5.2014 evidence of .official witnesses namely Mrs. Sameera Kousar, P.0: at PS 146, was recorded as TW-1,. (page 528, CMA 2507/15) Muhammad Javaid Ali, P.O at PS-145, as TW-2 (page 530; CMA 2507/15) and Mr. Nazir Ahmed Ganjana, the then DRO, Lahore, (page 543 CMA 2507/15) as TW-3. On 17.5.2014 evidence of Khalid Mehmood Bhatti, RO for NA-125 as TW-4 (page 545 CMA 2507/15) was recorded. On 28.5.2014 evidence of Justice (R) Riaz Kayani, Member, Election Commission (P) Pakistan, was recorded as TW-5 (pages 551-561 CMA 2507/15 Vol. IV), evidence of Mr. lshtiaq Ahmed Khan, Secretary, Election Commission of Pakistan was completed on 10.5.2014 as TW-6 (pages 562-571 CMA 2507/15). 9. After concluding his evidence, Election petitioner closed his side on 21.6.2014. He made another application for the "examination of entire voting record of NA-125 including CNIC numbers and thumb marks on all the counterfoils," which application was partly allowed vide order 26.6.2014 (CMA No 2507/15 @1488-1496), observing that "The petitioner and his Election Agents have raised a number of complaints against various Presiding Officers and conduct of pulling at such polling station. However, since limited number of polling agents have appeared in witness-box, and no other voter with a grievance, and merely pleadings in the election petition cannot be accepted as substitute of evidence for carrying out the aforesaid exercise of electoral forensic, so in view of aforesaid examination I accept the petitioners' applications partially in following terms." Learned Tribunal than proceeded to appointed three Commissioners, (a) One a retired Judge, (b) Second, a Technical Commission, having expertise in finger print forensic, to forensically examine marked electoral rolls of seven (7) Polling Stations namely 5, 6, 98, 107, 110, 111 and 120. After receipt of the report of two above-referred Commissions, and (c) Third Commissioner was proposed to be a Professional from- NADRA. The terms of reference for the first Commissioner was set down in paragraph 8 (b) (0 to (viii) of the said order. 10. On 12.7.2014, Shaikh Muhammad Tareef, former. District and Session Judge, was appointed as First Commissioner. Learned Tribunal on 19.7.2014 appointed Dr. Amir Ali Hussain Khan, Project Director NFSA, a Forensic Expert as Second Commissioner for the examination of record of noted seven polling stations of NA-125. 11.First Commissioner, Shaikh Muhammad Tareef, completed the exercise, his report dated 22.9.2014 alongwith annexures was placed on record as Ex-C-1 (CMA No, 1904/18 @1-159). He was examined on 27.9.2014 as CW-1. Out of 265 Polling Stations in the NA-125, Lahore he received 432 Polling bags which also included bags for the Provincial Assembly. His report was found ambiguous. On the same day, record of five Polling Stations (PS 5, 6, 98, 107, and 110) was forwarded for examination by the Second Technical Commissioner, Dr. Amir Ali Hussain Khan, Project Director, NFSA.
---
## Page 4
12. Dr. Amir Hussain Khan, Second Technical Commissioner was firstly examined as Tribunal's witness TW-7 on 20.12.2014 (CMA 2507/15 @ 576-577], who produced his report as Ex-TW-7/A (in respect of PS-05, 06. 98, 107, and 110 (CMA No, 2507/15 @ 578-798, Vol. V). 13. Dr. Amir Ali Hussain Khan, Project Director, NFSA Islamabad, as Second Technical Commissioner, was examined for the second time on 21.2.2015 as TW-9 (CMA 2507/15 @924-925 Vol. VI), he produced his report in respect of two Polling Stations No, 110 and 111 as TW-9/A (@ 927- 928) summary of the opinion/finding is as follows:-- "The summery of the opinion/findings of the commission is as follows:-- PS-110 Male Block CodeComparable Thumb ImpressionsNot comparable Thumb ImpressionsTotal Thumb Impressions 188110401 63 36 99 188110402 178 171 349 188110403 71 104 175 188110404 63 72 135 188110405 83 97 181 Total 459 480 939 The opinion/findings of Counterfoils of PS-110 has already been given to Election Tribunal vide report No. 03A0008, letter No. 10/08/2014-NFSA-827, dated 13.11.2014 PS-110 Male Block CodeComparable Thumb ImpressionsNot comparable Thumb ImpressionsTotal Thumb Impressions 188110401 35 55 90 188110402 64 245 309 188110403 9 138 147 188110404 4 84 88 188110405 46 104 150 Total 158 626 784 Note: 1. "Comprarable" means having enough minutia points and fingerpint pattern for opinon to be identical or otherwise. 2. "Not Comparable" means do not having enough minutia points for opinion to be identical or otherwise. 3. The opinion/result is based on the available facility by manual examination." 14.Mr. Ghazali Zahid, Director, NADRA was also appointed as the Third Commissioner vide order dated 27.9.2014 for analysis and to carry out CNIC verification on electoral material of said Polling Stations. 15.Mr. Ghazali Zahid, Director, National Data Base, NADRA, Third Commission was firstly examined on 20.12.2014 as TW-8 (page 799 CMA 2507/15 Vol. VI) on 20.12.2014. He produced report in respect of five Polling Stations, (PS Nos, 5, 6, 98, 107, 110) as EX-TW-8 Summary of his report is as follows (@ page 807): 'Summary: S. No.Description Counterfoils Electoral Roll
---
## Page 5
1. Election Material of NA-125 Received from Election Tribunal.2,542 1,548 2. Invalid NIC number mentioned on used counterfoils.125 0 3 Duplicate votes on used counterfoils. 6 0 4. Category No, 1: Counterfoil comparable but Electoral Roll is not comparable (CF=1352, ER=0) (Decided by Commission No, 2) a.Fingerprints successfully authenticated. 1,254 0 b.Fingerprints Failed authentication. 14 0 c.BAD Quality Thumb Impressions. 84 0 5. Category No, 2: Electoral Roll comparable but Counterfoil is not comparable (CF = 0, ER = 489) (by Commission No, 2). a.No Thumb Impression on Photo Electoral Roll.0 10 b.Invalid Silsala Number. 0 2 c.Fingerprints Successfully Authenticated. 0 451 d.Fingerprints Failed authentication. 0 0 e.BAD Quality Thumb Impressions. 0 26 6. Category No. 3: Counterfoils and Electoral Roll both are comparable (CE = 1059, ER = 1059) (Decided by Commission No. 2.) a.Fingerprint Authenticated On Counterfoil- but no thumb impression on Photo Electoral Roll.1 1 b.Fingerprints Successfully Authenticated on Both Counterfoil & Electoral Roll.978 978 c.Fingerprints Authenticated on Electoral Roll but Counterfoil is not readable.58 58 d.Fingerprints Authenticated on counterfoils but Electoral Roll is not readable.17 17 e.Fingerprints Failed authentication. 0 0 f.BAD Quality Thumb Impressions on Counterfoils & Electoral roll.5 5 16. Mr. Ghazali Zahid, was examined second time on 28.2.2015 as TW-10 (page 929 CMA 2507/25 Vol. VI), when later electoral material for two P.S 110 and 111 was retrieved and examined by him, he produced report in respect of said two Polling Stations as Ex. TW-10/A, Summary of report of said two Polling Stations 110 and 111 reads as follows:--- "Summary: S. No, Description (ER) (PS-110)(ER) (PS-111)Total 1.Electoral Material of NA-125 Received from Election Tribunal.459 158 617
---
## Page 6
2.Fingerprints Successfully Authenticated.448 155 603 3.Fingerprints failed Authentication.0 0 0 4.Bad Quality Thumb Impressions.11 3 14 17.From perusal of two summaries of in all seven Polling Stations (PS-5, 6, 98, 107, 110, 111 and 120) (ExTW-8 and Ex-10-A, as reproduced above, in respect of which evidence of corrupt and illegal practice and of impropriety was led, shows that out of total 2,542 counterfoils only on 125 counterfoils invalid CNIC numbers were found (which is merely 4.9) and total 6 duplicate CNIC were detected, which when looked at the totality of vote cast and difference between the two rival candidates is hardly of any substantial significance. 18.None of the reports of the Commissioners were objected to nor, any of the Commissioner was cross-examined by the Election Petitioner/respondent No, 1 herein, though Appellant herein filed objections and so also cross-examined the Commissioners. 19.On 30.3.2015, Mr. Saad Rafique, Appellant herein examined himself as RW-1, (CMA 2507/15 @ 12991306) and produced Mian Naseer Ahmed as RW-2 and on 4.4.2015 examined Yasin Sohail as RW-3. 20.On 10.3.2015, learned Election Tribunal, decided three applications filed by the Election Petitioner (i) for verification of entire record of NA-125, and comparison of thumb marks, (ii) for production of entire record and letters to and from Election Commission of Pakistan, DRO, and (iii) for direction to Election Commission for examination of polling bags; learned Tribunal in para 10 thereof; concluded that "report of the first commission deficient in view of the aspects entrusted to him for reply vide order dated 26.6.2014." The Election Tribunal in para-11 concluded and passed the following orders:-- "Keeping in view the time to be consumed in such exercise again, as well as incurring valuable expenditure afresh, would like to summon polling bags of 10 polling stations 5 of each party, to be selected either by consensus of parties, or if there is no consensus, by the Tribunal itself, preferably from polling stations where each party bagged the highest votes. Such bags would be examined by the Tribunal in presence of parties/counsel, in view of original reference to the Commission dated 26.06,2014 and examination report of such inspection would become part of record." 21. Learned Election Tribunal pursuant to its order dated, 13.3.2015 selected following 10 polling stations for examination of record by itself; five polling stations wherefrom Khawaja Saad Rafique succeeded with a big margin and other five Polling Stations wherefrom Mr. Hamid Khan, the Appellant herein secured highest vote:--- Polling Stations Nos.Hamid Khan Khawaja Saad Rafique 30 180 942 32 147 954 46 842 199 98 802 228 112 216 898 120 161 728 191 267 578 193 848 228 194 824 154
---
## Page 7
195 1220 301 22.Out of above ten Polling Stations PS 98 and PS 120 were already forensically examined. It may further be noted that Rasheed Ahmed, Polling Agent of the Election Petitioner at PS 120, appeared as PW-5, who came forward to depose in respect of corrupt and illegal practice allegedly committed in PS 120, his evidence was discarded by the learned Election Tribunal as noted in Para- 45 of the impugned Final Decision. Likewise evidence of one of the two Polling Agents in respect of PS-6, namely Begum, fasneem (PW7), was discarded as discussed in paragraph 49 of the Impugned Decision. 23.On examination of record of the above-noted 10 (ten) polling stations for NA-125 learned Tribunal concluded (CMA 2507/15 at pages 932 to 956 Vol. VI) "This Tribunal has recorded visual finding pertaining to examination of available record of selected polling stations. Since the case has entered into final round, and trial is likely be concluded shortly, so this Tribunal finds, no legal or factual necessity to record finding or deduction subsequent to inspection of such record. On all martial aspects, the parties would be heard, alongwith merits of the main case, before the final decision." 24.Election Tribunal, after hearing learned counsel for the parties, recorded finding on legal issues No, 1 and 2 together, whereby it was concluded in para-26 thereof "as such these objections being devoid of substance are repelled, and issues No, 1 & 2 are decided in negative". Issue No, 3 was "decided in negative". Issue No, 4 again as to the pleading and the form of the petition was decided in negative. 25. Issues No, 5 and 6 being material (5. Whether the election of the returned candidate has been procured or induced by corrupt or illegal practice? OPP and 6. Whether any corrupt or illegal practice have been committed by the returned candidate, or his Election Agent, or by any other person with the connivance of the candidate or his Election Agent? OPP). Learned Tribunal recorded extensive arguments and gave detail finding on much contested issues finding on both the issue runs from paragraphs 29 to 110 of the impugned decision, the learned Tribunal thread- bare discussed entire evidence adduced by the parties. Summary of allegation raised by the Election Petitioner/respondent No, 1 was encapsulated in paragraph 30(i to xiv), and summary of illegalities and irregularities as claimed by main Election Agent Abdul Latif. Hanka (PW-1) is summarized in Para 31(i) to (ix), raising all conceivable allegations, which are mere_ repetition of allegation made by the Election Petitioner in his pleadings and amplified in his deposition. Each of the substantive allegations were independently examined in paragraphs 85 to 110 of the impugned decision and discarded, final conclusion on issues No, 5 and 6 was drawn in paragraph 110 of the impugned decision as follows:--- "110. The pleas of 100% voting, go slow policy, taking over polling stations by respondent No, 1, tampering of ballot boxes etc. have been discussed above which could not be established. In view of all the aforesaid circumstances and the evidence examined, it is held that the petitioner failed to discharge onus of either of these issues, which are hereby decided in negative. 26.Coming to brass task issue No, 7 "whether the result of the election has been materially affected for reason of the failure of any person to comply with the provisions of the RoPA, 1976 or the rules or by prevalence of extensive corrupt or illegal practice at 'the election." Learned Election Tribunal summing up the finding on said issue in paras 147 to 149 held that election has been materially affected and thus issue was decided in affirmative:-- 147. It is to be recalled the t on the basis of evidence produced by the petitioner, only 7 polling stations were selected for forensic analysis. Complete record of all the 7 polling stations was however not found, and the available, record was examined by the Second and Third Commissions. It appears that over 50% of thumb impressions examined by the Second Commission, were not found technically comparable. Reasons could be accidental or intentional,
---
## Page 8
or partly accidental and partly intentional, but no relevant evidence is available on record for determination of causes of so much bad thumb impressions on counterfoils and electoral rolls. It is also to be noticed that taking healthy thumb impressions for subsequent forensic analysis, is a skilled job. Polling personnel selected from various civil departments, having no proficiency in taking thumb impressions, may not be blamed for such neglect, especially when they had very short time for each voter, and they had to take hundreds of thumb impressions in limited polling time. It would be appropriate that in future, instead of ink impressions, digital thumb impressions be recorded, possibly linking the exercise with electronic voting. However, some instances of fake voting and double voting were also indicated in such reports by the third commission. 148. I may conclude that the R.O. failed to perform his duty by not preparing list of polling personnel himself, for not getting the same approved at least 15 days before the polls, by making changes in the list of polling personnel which was used to appointments of staff, just a few days before the polls and without permission of the ECP, by not providing correct electoral rolls at P.S. 145, 146 for two booths and resulting into depriving voters of such booths in a large number, by receiving the statements of counts from Presiding Officers without their signatures and thumb impressions, by preparing the consolidated statement (final result) without opening the polling bags and without scrutiny of ballot papers excluded from count as well as the challenged votes, and by consigning to the Treasury incomplete polling bags which even lacked ballot papers, counterfoils and electoral rolls at some stations. I am also convinced that Presiding Officers generally were negligent in due performance of their duties and even statements of counts were not prepared in accordance with laws and ballot papers were put into polling bags without sealing on envelops and by mixing records of national and provincial constituencies. 149. The Returning Officer also acted unlawfully by refusing the opening of polling bags for examination of excluded ballot papers and challenged ballot papers and also, he demonstrated no responsibility in selection of polling personnel, rather he has conceded that, he had no role in such exercise and details of polling personnel were prepared by Election Cell in the Office of the District. Returning Officer and such data was just fed into computer. All these facts and reports of the Commissions and forensic experts lead me to the conclusion that the Returning Officer and the polling staff failed to comply with the provisions of the Representation of the People Act and all the rules and guidelines provided them for the conduct of polls as well as extensive illegal practices prevailed throughout the constituency, which are more than enough to hold that to the satisfaction of the Tribunal the election has been materially affected, and thus this issue is decided in affirmative". 27. Consequently, issue No, 8 (if issues No, 5 to 7 or any of them is proved in affirmative, then to what relief the petitioner will be entitled to? OPP), was also decided in affirmative Election Petition was accepted and, the election for…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.