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Petitioner: ZULFIQAR ALI BEHAN VS Respondent: RAIS GHULAM MURTAZA KHAN JATOI and 16 otherss
Court Name: Election Tribunal Judge(s): Zafar Ahmed Khan Sherwani Title: ZULFIQAR ALI BEHAN vs RAIS GHULAM MURTAZA KHAN JATOI and 16 otherss Case No.: Election Petition No,1 of 2014 Date of Judgment:2014-08-11 Reported As: 2014 YLR 2351 Result: Petition allowed
JUDGMENT
JUDGMENT ' DR. ZAFAR AHMED KHAN SHERWANI, ELECTION TRIBUNAL.--- This is an Election Petition under section 52 of the Representation of People Act, 1976 (the Act) in which the election of the respondent No,1, Raees Ghulam Murtaza Khan Jatoi (The returned candidate) has been challenged who was declared as a winner in the election by obtaining 83960 votes whereas the petitioner being one of the contesting candidates polled. 67338 votes and stood runner up from the constituency, NA-211 Naushero Feroze-I in the General Election held on 11-5-2013 vide result of the count Exh. 3A/43 ' The petitioner in his petition has alleged that the returned candidate was neither qualified to be the member of the Parliament under Article 62 of the Constitution and was also disqualified under Article 63 of the Constitution as he was not sagacious righteous and non-profligate and honest and ameen as he had falsely claimed himself to be a graduate and also failed to disclose his assets and liabilities as required under section 12 of the Act by hiding the fact that he and his wife were shareholders in Moro Textile Mill who was indebited to one Mrs. Khan Ginners as evident from a suit filed by it in the Sindh High Court bearing Suit No, 200 of 2004. He has also alleged that the returned candidate failed to provide information as provided under section 12(2)(a), (c)(d)(e) and (f) of the Act and also defaulter in payment of wealth tax as well as agriculture income tax and other taxes. He has submitted that in the election of 2008 also he had filed similar objections as well as an election petition against him bearing Election Petition No, 85 of 2008 but it was dismissed on 16-5-2013 after completion of the tenure of the National Assembly. However an appeal has been preferred against the said judgment before the honourable Supreme Court. He has also alleged the commission of corrupt and illegal practices against him during the poll at 97 Polling Stations mentioned in detail vide Paragraph No, 2(I) to 2(X) by mentioning details of such practices to the
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effect that the returned candidate, his agents and worker named in the petition abducted his polling agents from the Polling Stations, captured some of the Polling Stations harassed his voters by firing to refrain them from casting their votes and other similar acts in this regard. He has alleged that mass rigging was committed by them in connivance of the polling staff. He has, therefore, prayed as under. ' Declare that the election of the returned candidate is void and the petitioner is a returned candidate or declare the election as a whole void. ' The returned candidate has filed his written statement through his attorney Muhammad Yaseen and denied the allegations of lack of qualifications and alleged disqualifications mentioning that all these allegations have been thrashed out in the previous Election Petition against him filed by the petitioner challenging the election of 2008 as admitted by the petitioner. He has also denied that he committed any default in payment of any agriculture tax or income tax. He submitted that he had paid the wealth tax till 2002 and thereafter the same has been stopped as the law has been repealed. He has also denied his shareholding in the Moro Textile Mills as on the day of filing of nomination papers he had no concern with the same which question has also been decided by the Returning Officer during the scrutiny of the nomination paper. He has also denied the allegation of commission of corrupt and illegal practices at the Polling Stations mentioned by the petitioner and prayed that the petition may be dismissed. ' It may be mentioned here that on an application under Article 84 of the Qanun-e-Shahadat Order, 1984 moved by the petitioner the counterfoils of 92 selected Polling Stations along with used photo electoral rolls and statements of count (Form-XIV) were sent to the National Database and Registration Authority (NADRA) for verification of thumb impressions of the voters thereon vide order dated 28-10-2013 and such report has been received which was produced by the witness from NADRA Mr. Noman Khan, Exh.87-B. ' The summary of the report is produced hereunder:-- Summary S. No.DescriptionCount of Votes 1 Voters Polled in Polling Stations whose election material was received by NADRA 56,294 2Invalid NIC number mentioned on used counterfoils, this also includes such counterfoils that do not have CNIC mentioned over it.8,700 3 Duplicate voters on used counterfoils 373 4 Used counterfoils without fingerprints 321 5 Fingerprints successfully authenticated on used counterfoils and ER 17,859 6 Fingerprints on used counterfoils and ER failing authentication 79 7 Fingerprints of bad quality affixed on used counterfoils. 28,962 ' On the pleadings of the parties following issues were settled:-- (1) Whether the election petition is not maintainable under the law and does not fulfil the requirement of sections 53 and 54 of the Representation of People Act, 1976? (2) Whether corrupt and illegal practices committed by the respondent No, 1 through armed supporters and agents by casting bogus votes on 28 Polling Stations mentioned in Para Nos.02(ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix) of the petition by causing harassment, torture and removed the polling agents of the petitioner forcibly from the above Polling Stations? (3) Whether petitioner made such complaints to the Returning Officer? (4) Whether the respondent No, 1 is defaulter of Income tax and not qualified as valid Graduate? (5) Whether the respondent No,1 is exempted under section 41 of the Income Tax Ordinance, 2001 being an agriculturist?
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(6) What should the order be? ' The petitioner has examined himself and filed his affidavit in evidence vide Exh. 60 and produced different documents relating to the election including copies of different complaints sent by him to different authorities in respect of different Polling Stations and other relevant document vide Exh. 3A/1 to 3A/50. In his support he examined Mst. Asma Umrani Exh.-2 and Mst. Farzana Exh.3. They were his female polling agents at Polling Station 222 GHS New Jatoi (female) and Polling Station 212, GPS Boys Thohra. Whereas the returned candidate examined himself through his attorney Muhammad Yaseen who filed his affidavit in evidence vide Exh. 68. ' I have heard the learned counsel for the parties and perused the record. Issue No, 1: ' On this issue it is suffice to mention here that an application under section 63 of the Act in which all the grounds with regard to non-maintainability of the petition were agitated and the same were rejected vide order dated 25-9-2013 by Election Tribunal Sukkur, where the petition was pending before its transfer to this tribunal. No other legal point was raised by the learned counsel for the returned candidate during his arguments, before this tribunal therefore the issue has become redundant and decided accordingly. ' Issues Nos. 2 and 3: ' On these two issues the petitioner has examined himself and produced his different applications having similar allegations of commission of atrocities by the returned- candidate, his agents and workers including abduction of his polling agents from different Polling Stations and harassment to the voters. In his support he examined the above mentioned two polling agents i.e, Mst. Asma Umrani and Mst, Farzana. ' The learned counsel for the petitioner has contended that the fact that the returned candidate had been. Making hue and cry regarding the commission of these illegal acts by the returned candidate, his agents and workers since the inception of the polling and moved such applications which continued till the elections was over but none paid any heed and therefore the returned candidate got his desired result in the election and was declared as such illegally in violation of section 68 of the Act and therefore his election is liable to be declared void and the petitioner being the second highest in obtaining the votes from the constituency is to be declared as the returned candidate under section 69 of the Act. He has referred the evidence of above two polling agents and submitted that the evidence of the petitioner has been fully corroborated by these witnesses and there is no rebuttal in respect thereof, therefore their evidence cannot be discarded. He has also contended that the allegations made by him in the petition very specifically and elaborately in Paragraphs No, 2(I) to 2(X) against the particular persons but the same were not denied by the returned candidate specifically and the denial was very vague therefore under Order VIII of the Civil Procedure Code, this vague denial is to be taken as admission. He has relied upon the cased reported as Ghulam Hussain v. Muhammad Hussain and others, PLD 2011 SC 119, in which it has been held that evasive denial in the written statement, expressing lack of knowledge in that regard is no denial as per provisions of Order VIII, and Rules 3, 4, and 5 C.P.C. And such denial may be construed as admission on the part of defendant, (2) United Bank Limited v. Ali Muhammad Rajani, 1994 CLC 173 in which it has been held that denial of a fact by defendant in written statement should be specific, and not to be evasive or vague which would be deemed to be no denial, (3) Tasneem Uddin v. Messrs Prunditial Discount and Guaranteed House Limited, 2005 M LD 1681 in which it has been held that if an allegation of fact in plaint was not denied specifically or by necessary implication the same would be taken to be admitted. ' He has further contended that the returned candidate had filed several affidavits in evidence in support of his contention that polling was peaceful and no rigging was committed but did not
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produce any one of them, therefore, it would be presumed that these witnesses were not supporting him. He has relied upon the case reported as Treat Corporation v. ELMAC Limited, 2011 YLR 2825 in which it has been held that non-production of the material witnesses is sufficient to infer that the party concerned tried to hide real facts from the court within the parameters of Article 129(g) of the Qanun-e-Shahadat Order, 1984. ' On the other hand the learned counsel for the returned candidate has submitted that the burden of proof was upon the petitioner to prove the allegations of commission of corrupt and illegal practices but he has failed to examine the witnesses in support of his contention except the two whose evidence is also not trustworthy and cannot be relied upon, therefore, the petitioner has failed to prove the issues. ' I have carefully considered the above arguments. ' The first question raised by the learned counsel for the petitioner that since the allegations of the petitioner have not been specifically denied therefore the same would be taken as admission as provided under Order VIII, Rules 3, 4, 5 of Civil Procedure Code, it is sufficient to observe that the rules with regard to the pleadings are not to be applied in election disputes as the application of the Civil Procedure Code in this regard has not been made applicable because special procedure has been notified by the Election Commission of Pakistan for this purpose invoking such powers under section 62 of the Act vide Notification No,F.1(7)/85-Coord, dated 16-3-1985 only to keep the procedure very straight and free from technical barriers of the general law. Reference may be made to the case of Jam Mashooq All v. Shahnawaz Junejo, 1996 SCM R, 426. Moreover it may also so be observed that the honourable Supreme Court in S. M Ayub v. Syed Yusaf Shah (PLD 1967 Supreme Court 486) has held that the law of pleadings has never been strictly construed and rigorously applied in all its technicalities, to this country. The plaints and petitions drafted, especially in the mufassil, suffer from minor defects and a very strict view on the 'technical plane, of such pleadings, without regard "to the substance of the matter, would defeat the ends of justice. This judgment has also been referred in the case of Mrs. Dino Manekji Chinoy v. Muhammad Mateen, PLD1983 Supreme Court 693. ' Now the question whether the petitioner has discharged his burden of proof in respect of these issues may be examined. For this if the evidence of the petitioner and his witnesses is, considered objectively it can be safely held that the petitioner could not prove these issues. Admittedly the petitioner was not a witness of these alleged incidents mentioned by him in Paragraph No, 2(i) TO 2(X) but his information is based on the information furnished by his agents and therefore the testimony of his agents was primary evidence but he withheld the same except of two witnesses Mst. Asma Umrani and Mst.Farzana whose testimony, too, is not safe to be believed because of the fact that the petitioner has not proved that they were actually his polling agents at these Polling Stations during the poll by producing such document in spite of such objection by the returned candidate during their cross-examination for the reasons best known to him. The nomination of the polling agents by the candidate is required to be made to the Presiding Officer of each Polling Station in writing before the commencement of the polling as provided under section 23 of the Act read with Rule 10 of the rules framed thereunder therefore the documentary evidence could be produced by him. Moreover their names do not appear in any application said to have been forwarded by the petitioner to different authorities on the election day which are Exhs. 3-A/1 to 3- A/13, therefore their presence at these Polling Stations has not been proved by the petitioner and their testimony cannot be believed for want of corroboration on this point. The petitioner has not provided any cogent reason for not producing his other polling agents who were appointed by him in term of section 23 of the Act read with the rule 10 supra and therefore under Article 129(g) of the Qanun-e-Shahadat Order it can be presumed that they were withheld by him because they were not supporting his allegations.
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' With regard to the effects of the report of the NADRA as summarized above it may be sufficient to observe that this report is only in respect of 56294 counterfoils of 92 Polling Stations and not in respect of any ballot paper of these Polling Stations and no application for the audit of any ballot papers, as provided under section 46 of the Act was moved, therefore, it cannot be held that any vote shown to have been polled in favour of the returned candidate was invalid for the non- compliance of the provisions of the section 33 of the Act which are mandatory as far as relating to voter but directory as far as the polling official is concerned as held in the judgment of the Supreme Court in Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Looni, 1999 SCM R 284. In this case basic essentials required to be fulfilled by the election staff in the conduct of the election within the contemplation of section 33 of the Act have been elaborated and effects of their violation have been laid down. It is also necessary to observe here out of the above counterfoils 28962 out of total 56294 i.e, majority in numbers were the counterfoils which had bad quality of thumb impressions and therefore couldn't be identified by Automated Fingerprint Identification System (AFIS) of NADRA for the reason that the quality of the ink appeared to have not been used for obtaining such thumb impression on them or was not having the properties as suggested by NADRA. With regard to the remaining deficiencies in the counterfoils as mentioned in the NADRA report it will be suffice to observe that as per Sardar Abdul Hafeez Khan case, supra the provisions in section 33 relating to the officials were directory in nature and the petitioner didn't make any application for the manual audit of these counterfoils to examine whether substantive compliance in respect of the directory provisions of section 33 were made by the Presiding Officer thereon or not before invalidating any vote. No supportive piece of evidence in favour of the petitioner is therefore available on the record. Hence both the issues are decided in negative. Issues Nos. 4 and 5 ' These issues appear to have been wrongly phrased because the petitioner had alleged in the petition with regard to the qualification and disqualification of the returned candidate under Articles 62 and 63 of the Act levelling allegations with regard to his educational qualification and assets, liabilities and default in taxes therefore such issues were to be framed but no issue with regard to his qualification under Article 62(f) was framed therefore while deciding thee two issues both the questions that is relating to the qualification and disqualification of the returned candidate would be discussed. ' It is settled that the burden of proof with regard to the qualification of a candidate for his election as a member of Majlis-e-Shoora (Parliament) within the parameter of Article 62 of the Constitution A is on the candidate himself whereas the burden of proof with regard to his disqualification within the parameter of Article 63 of the Constitution is on the election petitioner. ' In this case since the qualification of the returned candidate as provided under Article 62(f) of the Constitution read with section 99(f) of the Act is to be examined by this tribunal keeping in view the evidence produced by the returned candidate to discharge the burden of proof that he is righteous and honest mani qualified to be elected or chosen as a member of an Assembly and he has not committed any act of corrupt practice as provided in section 78(d) of the Act The' petitioner's claim in this regard has been that the returned candidate was not graduate as being claimed by him and the returned candidate has denied this allegation. Admittedly the petitioner has been filing his objections/election petitions against his election as a member of the National Assembly since 2002 as evident from the judgment of the Election Petition No, 85 of 2008 Exh. 3A-45. It has been mentioned very categorically in this judgment while deciding issue No, 4 with regard to his bachelor's degree or the degree equivalent to that the petitioner had taken the objection while his nomination paper were being scrutinized during the Election in 2002 and was accepted by the Returning Officer on 28-8-2002 but the same was challenged in appeal under section 14(5) of the
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Act which was allowed by the tribunal in High Court vide Order dated 13-9-2002 as apparent from its Paragraph No, 9 which is reproduced as under:-- "11 As per the relevant provisions of law reproduced above, the graduation of a candidate was prescribed in two categories i.e, either he possesses a Bachelor's degree in any discipline or any degree recognized as equivalent thereto by University Grants Commission. The perusal of the record shows that in 2002 Elections, the nomination form of Ghulam Murtaza Khan Jatoi (respondent No, 1 herein) for contesting election from Naushahro Feroze District, was accepted by Returning Officer on 28-8-2002 but it was challenged in Election Appeal under section 14(5) of the said Act of 1976 and the same was allowed by the Election Tribunal consisting of a Bench of two members of Sindh High Court vide its order dated: 13-9-2002, the concluding Para No, 9 of which is as under:- "9 in the present case, the sanad was delivered to the representative of UGC for verification and report. The report received is that U. G. C. Does not recognize the sanad produced by the respondent No, 1 as equivalent to graduation or bachelor's degree. Since the degree has not been recognized by U. G. C as equivalent to graduation/ bachelor's degree as required by the law, respondent No, 1 does not qualify for being elected as a member of Assembly. Appeal is Accepted and respondent's nomination form is rejected. 12. The above decision was challenged by Ghulam Murtaza Khan Jatoi through Constitution Petition No, D-1616 of 2002 which was dismissed by three members Bench of Sindh High Court vide order: 24-9-2002 (which is also reported in 2003 YLR 721), the concluding part of which reads as under: - ' For the foregoing facts and discussion it is doubtful to conclude that the petitioner possess valid Sanad-e-Fragh and Sanad of Shahadatul Aalmiya so as to be treated at par with a Bachelor's Degree as envisaged in section 8-A of the Order of 2002 or section 99(1)(cc) of the Act of 1976. ' The petitioner has not been able to make out a case for interference with the impugned order of the Election Tribunal. The petition does not merit consideration and is accordingly dismissed." 13. The Civil Petition No, 1674 of 2002 filed by Ghulam Murtaza Jatoi against such order dated 24-9- 2002 was however dismissed as withdrawn vide order dated 27-9-2002 was however dismissed as withdrawn vide order dated 27-9-2004 passed by honourable Supreme Court of Pakistan." ' The above facts as mentioned in the judgment clearly show that the returned candidate was disqualified during the election of 2002 on account of fact that he was not qualified to be elected as a member of the assembly because his Sanad produced by him as equivalent to the graduation or bachelor's degree as required by the law was not recognized by U.G.0 (The University Grants Commission), therefore, he was not qualified for a member of Assembly under Article 62 of the Constitution. This means that the returned candidate who had falsely claimed himself to be a graduate on the basis of his Sanad which was not recognized by the U.G.0 and therefore prima facie he was not Ameen and righteous within the qualification as provided in Article 62 of the Constitution as well as in the Act as referred to above. The Election Tribunal in Election Petition No,85 of 2008 has decided similar question with regard to his qualification of B.A which examination he claims to have passed later on in respect of the election of 2008, against the petitioner which decision is in appeal before the Supreme Court as claimed by the petitioner. Now it is to be examined whether the rejection of the nomination paper in the election of 2002 by the Election Tribunal on the ground of his disqualification under Article 62 of the Constitution as member of an Assembly would be a permanent bar on his election on account of requirement of such qualification. In this regard the cases of Malik lqbal Ahmed Langrial v. Jamshed Alam and others PLD 2013 Supreme Court 179 and Abdul Ghafoor Lehri v. Returning Officer PB-29, Nasirabad would be very relevant and goes to the root of the case and it will be sufficient to reproduce the following observation in the case of Abdul Ghafoor Lehri.
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"6. Learned counsel for the appellant contends that the order dated 18-4-2013 passed by the Full Bench of the High Court of Balochistan is against law and facts of the case; that the learned Full Bench has misread and misappreciated the material available on record; that the Returning Officer after completing all codal formalities had rightly accepted his nomination papers but the learned Tribunal as well as the learned High Court have illegally set aside order of the Returning Officer; that the appellant was duly qualified to contest elections of 2013 as no condition of being graduate has been imposed to contest general elections the same having been erased from the statute, as such, both the learned Courts below have committed a patent illegality while upsetting well-reasoned order of the learned Returning Officer accepting the nomination papers of the appellant; that since the appellant has neither committed any sinful act nor cheated the Court while producing a Sanad from Madrassa, as such, the conditions laid down by Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be imposed upon the appellant to declare him that he is not righteous, sagacious or Ameen whereas the position is otherwise and that since the appellant has been declared as returned candidate after contest of general elections, 2013 under the orders of this Court, therefore, if the order impugned in these proceedings is not set aside, the voters of his constituency will not only be deprived of their constitutional right to choose a representative of their choice but the constituency will also be left unattended/un represented, in such circumstances, the impugned judgment/order is liable to be set aside. 7. On the other hand learned counsel for the respondents have vehemently opposed the…
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