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Petitioner: ABDUL RAZZAK VS Respondent: Syed HAFEEZ-UD-DIN and 27 others
Court Name: Election Tribunal Judge(s): Zafar Ahmed Khan Sherwani Title: ABDUL RAZZAK vs Syed HAFEEZ-UD-DIN and 27 others Case No.: Election Petition No,7 of 2013 Date of Judgment:2014-08-07 Reported As: 2014 MLD 1720 Result: Petition allowed
JUDGMENT
JUDGMENT ' DR. ZAFAR AHMED KHAN SHERWAN1, ELECTION TRIBUNAL.---This is an election petition under section 52 of the Representation of the People Act, 1976 (the Act) wherein the election of the respondent No 1 Syed Hafeez-ud-Din (the returned candidate) has been challenged by one of the unreturned candidate (the Petitioner) from Provincial Assembly constituency No, PS-93 Karachi from where the returned candidate on the ticket of Pakistan Tehreek-e-Insaf obtaining 15432 votes was declared as such whereas the petitioner on the ticket of Jamat-e-Islami obtained 10960 votes and was runner up. ' The petitioner who has made a number of allegations and the grounds to challenge the election of the returned candidate but during the trial of the petition he opposed the same tooth and nail only on ground that at seven polling stations of the constituency i,e, Polling Stations Nos. 2, 18, 23, 29, 32, 55 and 68 (the polling stations in question) there turned candidate managed to obtain different result of count from their presiding officers what they provided on plain papers to his agents showing a clear cut lead over the returned candidate and thus reduced his lead by increasing the votes of the returned candidate on account of which the overall result was changed showing a lead of 4472 votes over him amounting the corrupt and illegal practices, hence the same is liable to be declared as void under section 68 of the Act and the petitioner is entitled to be declared as the returned candidate under section 69 of the Act. Allegation of illegal consolidation of the result by the Returning officer without mandatory notice to the contesting candidates before holding the same affecting materially the result of the election has also been agitated. ' The returned candidate filed his written statement denying all the allegations and the grounds and pleaded that the election was held peacefully in accordance with the law and therefore the
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same cannot be declared as void under section 68 of the Act. He has also pointed out different contradictions in the allegations made by the petitioner from time to time in different proceedings he initiated. Out of the remaining respondents none except the respondents Nos. 4, 8, 24, 26 and 28 filed their written statements and these too when the proceeding had been started ex parte. Their advocates were, however, allowed to participate in the proceedings. Their written statements are also on record in which they supported the petitioner. ' Out of the pleadings of the parties following issues were settled. (1) Whether the petition is maintainable in accordance with the law. (2) Whether the petitioner had obtained the votes as mentioned by him in his petition in paragraphs Nos. 15(c) and 15(d)? (3) Whether the Presiding Officers of Polling Stations Nos. 29, 32, 68, 71 and 77 of the constituency had issued statements of count (Form-XIV) to the petitioner showing his votes as mentioned in paragraph 15(C) of the petition? (4) Whether the respondent No, 1 didn't obtain the votes at Polling Stations Nos. 2, 18, 23, 29, 32, 55 and 68 of the constituency and consolidated statement of count (Form XVI) issued by the Returning officer in respect of these polling stations is not in accordance with the statements of count (Form XIV) issued by the Presiding Officers of these polling stations? (5) Whether the returning officer had failed to issue notices to the contesting candidates before the consolidation of the result in form XVI in accordance with the law? (6) Whether the respondent No, 1 or his agents have committed any act of illegal practice during the polling? (7) Whether the Presiding Officers of the above mentioned polling stations and the Returning Officer in connivance with each other committed illegal act or illegal practice to support the respondent No, 1 if yes, its effect? (8) Whether the election of the respondent No, 1 (The Returned Candidate) is fit to be declared as void and the petitioner to have been duly elected? (9) What should the order be? ' On the above issues the petitioner has filed his affidavit in evidence vide exhibit P-5 and produced a number of documents from exhibits P-5/1 to 5/28 which include the statements of count of the polling stations in question on the prescribed form as well as on the plain papers. I support of his evidence the Presiding Officers namely Fasihur-Rehman at Polling Station No, 32, exhibit P-1, Abid Hussain Qureshi at Polling Station No, 68, exhibit P-2, Ms. Saeeda Sagheer, Assistant Presiding Officer Polling Station No, 29, exhibit-3, Ms. Safia Sultana, Presiding Officer Polling Station No, 29, exhibit 0-5 and Mr. Farhan Anwar, Presiding Officer at Polling Station No 23, exhibit P-4 and Mr. Aftab, Presiding Officer at Polling Station No 55, exhibit P-12 were examined. Service of summons could not be possible on the two Presiding Officers namely Mr. Aftab Anwar and Dr. Jumman for their evidence because as per statement of the bailiffs namely Aslam Khan and Muhammad Younus their addresses were not correct. Ms. Shagufta Siddiqui, the Returning officer was also examined vide exhibit 0-6 who also produced documents vide exhibits 0-6/1 to 0-6/18. The petitioner has also examined his Polling agents namely Abdul Qadeer at Polling station No, 23, exhibit P-9, Badarul Islam, Chief Polling Agent exhibit P-8, Mst Sana, polling agent at Polling Station No, 2, exhibit P-10, Mst. Sajida, at Polling Station No, 29, exhibit P-11, Mst. Fazila Qureshi, at Polling Station No, 68, exhibit P-6, In-charge of the polling Camp of the petitioner situated at Polling Stations 67, 68, 69,namely Mr. Akber Hussain Afridi, exhibit P-7. These witnesses have produced the relevant documents relating to them, i,e, statements of count on plain papers. ' In rebuttal of the above evidence the returned candidate filed his affidavit in evidence vide exhibit R-1 and produced a number of documents vide exhibits R-1/1 to R-1/8. ' Heard the learned counsel for the parties and perused the record
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Issue No, 1 ' On this issue which is with reference to non-maintainability of the petition within the parameters as provided in section 55 of the Act an elaborate order has already been passed by this tribunal on an application under section 63 of the Act, C.M.A. 18/2013, vide order dated 23-8-2013 dismissing the same in which all the points raised in the petition were agitated but the same were again argued relying upon different case-law by the learned counsel for the returned candidate during the course of arguments, therefore, the same need not be considered again. Hence the issue has become redundant and answered accordingly. Issues Nos. 2, 3 and 4. ' These are the common issues based on common evidence; therefore, require to be disposed of conjointly. On these issues the case of the petitioner is that in all his 463 votes were reduced by the Returning Officer at the time of consolidation of result as compared to shown by the Presiding Officers in respect of Polling Stations Nos.29,32, 68, 71, and 77 and at the same time 5538 votes of the returned candidate were increased in respect of the polling stations in question. However as mentioned earlier herein during the evidence as well as during his arguments the learned counsel for the petitioner put main thrust of his arguments on the alleged illegal increase of votes in favour of the returned candidate by the Presiding Officers, therefore I will confine my deliberations on the same point in these issues. ' The learned counsel for the petitioner has contended that the petitioner has proved objectively and beyond all reasonable doubts through tangible evidence by examining himself, his polling agents as well as the relevant Presiding Officers of the polling stations in question that an illegal favour to the returned candidate within the ambit of illegal practice has been made by these Presiding Officers in connivance with the returned candidate who had provided the details of count of votes in favour of both the parties in respect of these polling stations on plain papers which were different as shown by the Returning Officer in the consolidated statement, Form XVI, prepared on the basis Forms-XIV. His primary .Attack was on the integrity and competence of the Presiding Officers especially of Polling Station No, 29, Ms. Safia Sultana Malik who has shown in her statement of count the votes polled by the returned candidate as 1400 whereas his own name was not mentioned therein what to say about his correct votes he polled. He also contended that the illegal favour given by her is evident on the face of the record produced by the petitioner as the total votes cast at the corresponding. Polling Station in respect of National Assembly constituency NA- 241 were only 148 whereas for the Provincial Assembly they were 1440, hence her undue favour in violation of her legal duty in connivance with the returned candidate is proved from the record. He further contended that her bias in his favour is apparent from her evidence and specially from the fact that she filed her affidavit in evidence in his favour at his instance with the written statement of the returned candidate which shows that she was not independent functionary of the Election Commission of Pakistan responsible to conduct the election honestly, justly, fairly and in accordance with law as required from the Election Commission under Article 218 (3) of the Constitution. He also contended that the other 2 Presiding Officers namely Dr. Jumman and Aftab Anwar who have also committed similar illegal practice as alleged in the Petition were not traceable, i,e, neither on their residential addresses nor on their official addresses, which proves that they were some fake persons not authorized to conduct the poll but the returned candidate got them posted by hook and crook which has made the poll at these polling stations illegal. He also attacked on the credibility of the remaining 5 Presiding Officers out of the 7 Polling Stations in question by illustrating their conduct during the Poll and contended that the cumulative effect of this has made the election of the returned candidate as void under section 68 of the Act and entailing a declaration in favour of the petitioner as the returned candidate under section 69 of the Act, or in alternate a declaration that election as a whole to be void under section 70 of the Act.
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' The learned counsel for the returned candidate has vehemently opposed the above arguments and contended that the petitioner has miserably failed to prove any corrupt or illegal practice committed by the returned candidate or his agents, therefore the petition is liable to be dismissed. He also contended that a presumption of correctness is attached with the official acts under Article 129 of the Qanun-e-Shahadat Order, 1984 and therefore the Form XIV submitted by these Presiding Officers in the prescribed form which were official documents therefore their authenticity cannot be questioned without strong legal evidence through credible witnesses. He contended pointing out contradictions in the statements of the polling agents that they were not trustworthy witnesses and being interested in favour of the petitioner no weight is attached with their testimony. He also contended that if there was some doubts about the count in respect of some of the polling stations out of the polling stations in question the same have not materially affected the election of the returned candidate and the election cannot be declared as whole void under section 70 of the Act. ' In order to appreciate the above arguments in the light of the record, let the evidence produced by the parties may be examined one by one in respect of each polling station. The burden of proof of these issues was on the petitioner who has examined beside himself, the witnesses in respect of these 7 polling stations which includes the 5 Presiding officers, his 4 polling agents in respect of polling Station Nos.2, 23, 29, and 68, and as mentioned earlier herein the presence of the remaining 2 Presiding Officers namely Muhammad Jumman, Presiding Officer of Polling No, 2, and Adnan Anwar, Presiding Officer of Polling Station No, 18 could not be secured because their addresses were incorrect and the efforts of the bailiffs went in vain as per their statements recorded before this tribunal, therefore, the official statements of count in respect of these two Polling Stations Nos. 2 and 18 in Form XIV could not be proved in accordance with the law. Against this the witness of the petitioner namely Mst. Sana his polling agent posted at the Polling Station No, 2, in her evidence, exhibit P-10, has deposed that she had prepared the statement of count, exhibit P-5/26, which was authenticated by the Presiding Officer by putting a rubber stamp. This statement of count shows that the petitioner obtained 21 votes and the returned candidate obtained 82 votes. However the statement of count in respect of the other polling station (P.S. No, 18) prepared by Mr. Adnan Anwar could not be questioned by the petitioner as lie too didn't examine any witness in support of his contention that the votes mentioned by the Presiding Officer in his statement of count in favour of the returned candidate as 210 and in his own favour as 196 vide Statement of count produced by him with the petition at Page No, 325 were incorrect. These 210 votes are also mentioned by the Returning Officer in favour of the returned candidate in the consolidated statement, therefore, there appears no difference of any count. ' Now coming to the count in respect of Polling Station No,29 which is the most controversial count from the petitioner's point of view. Its Presiding Officer, Mst. Safia Sultana Malik was examined as exhibit 0-5 and was cross examined by both the learned advocates for the parties. As per her evidence the returned candidate had obtained 1400 votes which were mentioned in her official statement of count, Form XIV, exhibit 0-5/3. However, admittedly in this statement of count even the name of the petitioner was not mentioned as she was completely ignorant of the fact that he too had contested the election from the said constituency. This statement of count does not provide the other required details as far as the names of all the contesting Candidates and the votes polled by them are concerned. Section 38(9) of the Act directs the Presiding Officer of polling station that immediately after the count he shall prepare statement of count in such Form as may be prescribed (Form-XIV) showing therein the numbers of valid votes polled by each contesting candidate and the ballot papers excluded from the count. There are other unexplained discrepancies also in the same including corrections, overwriting and miscalculation in counting. The violation of the above provision of law has made the statement highly doubtful and requires further objective scrutiny before reaching to any firm conclusion as far its legal effects are
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concerned. For this the conduct and neutrality of the Presiding Officer will be the most important factor. In this regard the act of filing of her own affidavit in evidence, exhibit 0-5/1, voluntarily in support of the returned candidate show her bias in his favour and is sufficient to hold that she did not act fairly and independently while performing her duties as polling official for whom it was incumbent under the Act' to discharge her duties honestly within the contemplation of its provisions. This finding gets full support from the consideration of the total votes cast at the corresponding Polling Station No, 159 of National Assembly constituency, NA-241 in comparison with the total votes cast at Polling Station No, 29. The total votes cast at Polling Station No, 159 were 148 (as per exhibit P-5/17, consolidated result which is an admitted document) whereas the total votes cast at Polling Station No, 29 of this constituency were 1440 and there is no logical reason of such a huge difference when each voter is required to cast his vote to the contesting candidate of his choice for the National Assembly and Provincial Assembly. The Presiding Officer during her cross avoided to reply the questions in this regard showing her ignorance. The total votes polled at the Polling Station No, 149 of NA-241 corroborates the evidence of the polling agent of the petitioner, Mst. Sajida, exhibit P-11, in which she has deposed that as per official count, the votes polled by petitioner and the returned candidate as furnished by the Presiding Officer were 117 and 83 respectively and the total votes cast at these two polling stations for both the constituencies were 117 and 111, exhibit P-11/1, This statement is bearing the purported signature of the Presiding Officer, Ms. Safia Malik. Without going into the genuineness of this signature by comparing with her admitted signatures on exhibit, 0-5/2 to 0-5/5 but on the basis of quality of evidence produced by the petitioner which is fully corroborated with the circumstantial evidence it is held at Polling Station No, 29 the petitioner polled 117 votes and the returned candidate 83 votes. ' Now coming to the Polling Station No, 23. Its Presiding Officer Mr. Farhan Anwar, exhibit P-4, has produced the official statement of count on Form XIV exhibit P-4/3, duly signed by him. As per this document the petitioner polled 130 votes whereas the returned candidate 1083 votes. This witness during his evidence described the process of the polling at the polling station and denied the allegation that after the counting he gave a hand written statement of count on plain paper to any polling agent and also denied his purported signature on such statement of count exhibit P-9/1. Against this the polling agent of the petitioner namely Abdul Qadeer, exhibit. P-9 has deposed in favour of the petitioner and produced the hand written statement of count. In this statement of count of the petitioner has been shown to have obtained the same 130 votes as mentioned in official statement whereas the returned candidate 165. However the total votes cast at this polling station in respect of the Provincial Assembly was 1671 whereas the total votes cast at the corresponding Polling Station No,153 in respect of the National Assembly (exhibit P-5/17) were 1583. The Presiding Officer was not confronted with this marginal difference as compared to Polling Station No, 29, therefore, the evidence of the Presiding Officer being of official witness having a presumption of correctness under Article 129 of the Qanun-e-Shahadat Order cannot be discredited on account of this difference specially in absence of better evidence in rebuttal. The objection on his credibility and competence raised by the learned counsel for the petitioner on the basis of his grade in Which he was serving at the time of this assignment can be well ignored since no such question was raised during the cross of the Returning Officer who had appointed him as such and was in better position to explain the circumstances. Now the next polling station is No, 32, in respect of which the petitioner's claim is that as per Presiding Officer's statement of count given to him he had polled 94 votes but the consolidated statement showed only 8 votes. About this discrepancy the Presiding Officer, Mr. Fasih-ur-Rehman, exhibit P-1, has claimed that it was his bona fide mistake on account of tiring and sleepless over work during the assignment In these circumstances it is held that the petitioner has proved that at this polling station he obtained 94 votes and not 8 votes.
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' Now coming to the Polling Station No, 55. At this polling Station the petitioner claims that as per handwritten statement of count, exhibit p-5/28, the returned candidate polled 137 votes but in the consolidated statement he has been shown to have obtained as 1069 votes. Its Presiding Officer Aftab, exhibit P-12, has denied that he had issued any such handwritten statement (exhibit-P- 5/28). Although this witness was declared hostile but even during his lengthy cross examination nothing has been brought on record which affects his credibility. Moreover the petitioner did not examine his own polling agent in support of his evidence that this Presiding Officer had signed the statement exhibit P-5/28 and handed over it to him. Therefore, there appears no reason to discard the evidence of this Presiding Officer and believe uncorroborated evidence of the Petitioner. Moreover the consolidated statement in respect of NA-241, exhibit P-5/17, also shows that the total votes cast at the corresponding polling Station No, 185 were 1474 which are near to 1493 polled at Polling Station No, 32 therefore are not in variance as compared to Polling Station No,29 as discussed above. No evidence in rebuttal of his evidence has been produced except of the petitioner which too is hearsay. ' Now the last polling station in this connection is No,68. As per petitioner's claim his 97 votes which were mentioned by its Presiding Officer in his statement of count given to his polling agent Mst. Fazeela Qureshi were reduced to Zero by the Returning Officer in the consolidated statement. He produced Mst. Fazeela Qureshi as well as a handwritten statement of count provided to her vide exhibit P-5/22. This hand written statement shows that the petitioner obtained 97 votes whereas the returned candidate obtained 281 votes. The Presiding Officer of the said polling station Mr. Abid Hussain was examined vide exhibit P-2 who has produced his official statement of count (Form- XIV) vide exhibit P-2/1 showing that the petitioner polled Zero votes whereas the returned candidate polled 1833 votes. The total votes polled at this polling station as per this statement of count were 2232. This witness has emphatically denied to have issued any Statement of count on plain paper by putting rubber stamp used by the voters thereon. He was declared hostile and was cross examined in detail by the learned counsel for the petitioner but no incriminating material has been brought on record to discredit his evidence. The total votes polled at the polling stations of this Provincial Assembly constituency was 2169 and at corresponding Polling Station No, 192 of the National Constituency NA 142 (as per exhibit P-5/17) was 2161 which shows minor difference and the same was required to have been clarified from the Presiding Officer by the learned counsel for the petitioner but no such question was put to him. ' To sum up the above discussion it is suffice to say that except for the Polling Stations Nos. 29 and 32 the petitioner has failed to prove the statements of count relied upon by him showing the figures of votes polled by him or by the returned candidate. The issue is decided accordingly. Issue No, 5 ' This issue relates to the issuance of the required notices to the contesting candidates by the Returning Officer before the consolidation of the count in form XVI and its effect. ' The learned counsel for the petitioner submitted that these proceedings were required to be held immediately after submission of the result by the Presiding Officers after giving the mandatory notice to all the contesting candidates but in this case these proceedings were conducted 3 days after the submission of these statements of count and that too without any notice and without examining the ballot papers excluded from the count by the presiding officers hence these proceedings are illegal and the result of the election has been materially affected on account of violation of the provisions of the Act entailing the declaration of the election as a whole void. ' Conversely, the learned counsel for the returned candidate contended that these proceeding were held in accordance with law after the notice which fact has been admitted by the petitioner. He contended that there is no proof that the returning officer did not examine the votes which were excluded from the count and mere fact that the figures of the votes as given by the Presiding
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Officers in the statement of count were not changed after these proceedings is not sufficient to declare these proceedings as illegal. ' In my view it is an admitted position that a general notice was pasted on the notice board informing about the said proceedings. As per evidence of the Returning Officer some representatives of the contesting candidates including an advocate Mr. Durrani for the petitioner attended these proceedings. As per admission of the returned candidate during his cross the said proceedings were held on the basis of statements…
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