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Petitioner: Sardarzada Mir Saeed Ahmed VS Respondent: Mir Ziaullah and 22 others
Court Name: Election Tribunal Judge(s): Abdullah Baloch Title: Sardarzada Mir Saeed Ahmed vs Mir Ziaullah and 22 others Case No.: Election Petition No.15 of 2018 Date of Judgment:2019-08-02 Reported As: 2020 MLD 532 Result: Petition dismissed
JUDGMENT
JUDGMENT ABDULLAH BALOCH, J.---This Election Petition under Section 139 of the Elections Act, 2017 ("the Act of 2017 "), was filed by the petitioner Mir Saeed Ahmed Langove, a contesting candidate of general election of PB-37 Kalat ("said Constituency "), held on 25th July 2018, assailing the Notification No. F.2(42)/2018-Cord.- dated 7th August 2018, whereby the respondent No.1, Mir Ziaullah Langove, was declared as returned candidate. In the petition, following reliefs have been sought: "It is accordingly respectfully prayed that this Honourable Tribunal may call for the whole record of the election of the constituency in question with the direction that same may be kept in safe custody till final disposal of the matter and on examining the same coupled with recording evidence, recounting and thum b impression examination on the polling station mentioned above be made and also verified from the NADRA of the matter as mentioned in paragraph No.12. Thereafter election of the returned candidate be declared void, and the petitioner be declared as returned candidate from PB-37 Kalat. OR Election be declared as void and fresh polls be conducted in the entire constituency of PB-37 Kalat. OR To pass any other appropriate order as is deemed fit and proper in the circums tances of the case with cost of petition, in the interest of justice." 2. Facts of the case are that the petitioner and Mir Ziaullah Langove, respondent No.1, along with respondents Nos.2 to 23 contested the general election from the said constituency , which was held on 25th July 2018. According to Final Consolidated Result (Form-49 ), prepared by the Returning Officer ("R.O.") of the said Constituency , Mir Ziaullah Langove, respondent No.1 obtained 13335 votes, while the petitioner namely Mir Saeed Ahmed Langove secured 12842 votes with a difference of 493 votes, thus the respondent No.1 was declared as
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returned candidate vide Notification No.F.2(42)/2018-Cord. dated 7th August 2018 by the Election Commission of Pakistan. The petitioner being aggrieved of the said notification filed the present election petition, with the above reliefs. 3. Notices were issued to the respondents through all possible modes for effecting service upon them, however only the respondent No.1 being returned candidate chose to contest the petition and submitted his written statement, stating therein that the petition is not maintainable and liable to be dism issed for the reason that mere general allegations of committing corrupt and illegal practices have been levelled by the petitioner , on the basis whereof neither the election of the respondent No.1 can be declared as void nor re-poll can be ordered. Even otherwise, prior to pronouncement of result, the Presiding Officer on the application of the respondent No.1 recounted the votes in presence of parties and accordingly on the basis of recounting the respondent No.1 was declared as returned candidate. Besides, the provisions of Sections 144 and 145 of the Act have not been complied with. Since no one had come forward on behalf of the remaining respondents to contest the petition, as such, they were proceeded against ex-parte. Out of divergent pleadings of parties, the following issues were framed: 1. Whether the petition is not maintainable in view of the preliminary objections Nos.B and D? 2. Whether the respondent No.1 could be disqualified on account of that he was a Government employee in BPS- 16 in the S&GAD Department and drawn salary till January 2016 and thereafter also remained as Advisor of Food in the Caretaker Government in the month of May 2018? 3. Whether the respondent No.1 with the collusion of Polling Staff by means of corrupt and illegal practice committed massive rigging in the polling and procured result in his favour? 4. Relief? 4. In support of issues, the petitioner produced twelve (12) witnesses, whose affidavits were already filed with the election petition. The witnesses owned the averments of their affidavits in their examination-in-chief. The petitioner himself also entered in the witness box and recorded his statement. In rebuttal, respondent No.1 produced fourteen (14) witnesses, who owned their affidavits already filed with the written statement. Besides, the respondent No.1 has also recorded his own statement on oath. 5. It is worth to mention here that along with main petition, the petitioner has also filed C.M.A . No.1007 of 2018 for verification of thumb impressions of voters put on counterfoils through NADRA and after hearing arguments, the said application was allowed by this Tribunal, vide order dated 28th December 2018 and NADRA was directed for carrying out verification and comparison of thumb impressions of voters on the counterfoils of the ballot papers polled in the election. The Returning Officer was also directed to hand over all the election materials including the counterfoils of polling stations of entire constituency along with photo voter's lists and statement of counts (Form- 45, 47, 48 & 49) in sealed envelopes to the Registrar of this Tribunal and thereafter the record so received from the R.O. was transmitted to the NADRA Headquarter Islamabad through the representative of this Tribunal, 6. In compliance, CW-1 Abdul Wahid Sherani son of Sardar Khan, Assistant Director , NADRA Quetta appeared and produced the report of NADRA, consisting upon two volumes (Exh.C/1 to 24 and Exh.C-1/2 to 315). The parties filed their written objections and prayed for calling the author of NADRA report. Accordingly Mr. Ghazali Zahid, Director HOD EPD (author) of report was called, who appeared as CW-2 and owned the NADRA report already exhibited through CW -1 and accordingly he was cross-examined by both the learned counsel for parties. 7. Learned counsel for petitioner Mr. Naseeb Ullah Tareen, Advocate, has conte nded that the respondent No.1 before participating in General Election 2018 was government employee. as Office Assistant (BPS-16) in S&GAD (bearing Service I.D No.20148950) and accordingly withdrew his salary from Accountant General Balochistan till January 2016. Besides, he also had remained Advisor (Musheer ) for Food Department in the Provincial Cabinet of Balochistan till the month of May 2018, but while submitting his nomination papers he has failed to disclose the said facts; that the brother of the returned candidate had remained Member of Provincial Cabinet, besides the returned candidate himself remained the Advisor in the Provincial Cabinet, thus they used their influence and succeeded in deputing Presiding Officers of their own choice with the sole purpose to procure the election results in favour of returned candidate; that the counting of the ballot papers were made in absence of polling agents of the
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petitioner , as they were ousted from the polling stations by the F.C. personnel and during their absence the votes so obtained by the petitioner were stamped twice and shown as rejected/invalid votes; that in presence of polling agents of the petitioner , the supporters of the respondent No.1 being in league with the Presiding Officers/Polling Staff polled fake/bogus votes by impersonation and producing invalid CNICs, which act was objected by the polling agents of petitioner at the relevant time, but without any practical results; that the NADRA report Exh.C/Part-2/1- 315 has established the allegations that the returned candidate being in league with the officer/of ficials of polling stations was succeeded in procuring the election results in his favour by means of casting huge quantity of forged/fake votes either through forged/fake CNICs and impersonation or by means of appending forged/fake thumb impressions on counterfoils, which do not tally with the NADRA record and even the NADRA report further establishes that one voter polled number of bogus/fake votes; that the voting procedure so provided under the law has fully been violated just to give benefit to the returned candidate; that since the number of tainted votes detected by the NADRA through the modern devices are much greater/higher than the differential of 493 votes, thus admittedly casting of fake/bogus votes has materially affected the election results and the election of the returned candidate is liable to be declared as void in view of Section 158(2) of the Elections Act, 2017; that the petitioner has succeeded in establishing the allegations of illegal and corrupt practices through oral and documentary evidence/NADRA report and the returned candidate has failed to rebut the concre te and solid evidence produced by the petitioner . Lastly , it was prayed that the respondent No.1 may be declared as unqualified to contest the election and his election results may be declared as void and accordingly either the petitioner be declared as returned candidate, who had obtained 2nd highest votes or as an alternate re-polling may be ordered in entire constituency . He relied upon case laws titled as Muhammad Siddique Baloch v. Jehangir Khan Tareen PLD 2016 Supreme Court 97, Feroze Ahmed Jamali v. Masroor Ahmed Khan 2016 SCMR 250 and E.P. No.21/18 Mir T ariq Mehmood Khetran v . R.O. and others . 8. On the other hand, the learned counsel for respondent No.1 Mr. Nadir Ali Chalgari, Advocate, refuted the arguments so advanced by the learned counsel for petitioner and contended that since the constituency in question was declared sensitive, thus the personnel of law enforcing agencies were deployed on all the polling stations, while in each polling station the polling agents of all the contesting candidates were present and the polling process was held peacefully and in accordance with law, thus no question for casting of a single fake or bogus vote in favour of the returned candidate does arises at all and it appears that the petition er after losing the elections has levelled bald, baseless and unfounded allegations; that since there was no column provided in the nomination papers requiring the details of past portfolios from a contesting candidates, thus non-mentioning thereof would not amount to concealment of facts; that the witnesses produced by the petitioner were his political workers and polling agents, thus are not trustworthy being interested in favour of the petitioner , as such, no weight is attached with their testimonies; that absolutely false allegations have been levelled by the petitioner upon the Presiding Officers/Of ficials for interfering in the polling process or joining hands with the respondent No.1 to carry out a massive rigging and in such behalf throughout the proceedings, the petitioner has failed to produce any of the Polling Officer or Official in the Tribunal and even he has not alleged against any of the officer/of ficial, who was in league with the returned candidate; that the returned candidate cannot be held responsible for any act of omission or negligence on the part of the Election Commission or Polling Staff; that perusa l of NADRA report reflects that though it mentions of invalid CNIC holders votes, but it is silent about casting of such votes in favour of returned candidate or that the returned candidate directly or through his workers succeeded in casting such votes in his favour , when particularly more than 23 candidates were contesting the elections and the Election Commission had established more than seventy six polling stations, while in certain polling stations even the returned candidate had not deputed his polling agents, thus there is every possibility that either the runner-up or any other contesting candidate had polled such bogus/fake votes, thus holding responsible to the returned candidate on the basis of mere presumptions and assumptions is unwarranted in the eyes of law; that the petitioner has failed to prove a case of illegal and corrupt practices as per provisions of the Sections 167 and 175 of Elections Act, 2017, hence the petition being not maintainable is liable to be dismissed, with special compensatory costs. He relied upon case laws titled as Nawab Ali Wasan v. Syed Ghous Ali Shah 2018 SCMR 87, Mir Shah Nawaz Khan v. Manzoor
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Hussain Wassan and 13 others 2014 CLC 1042 and Usman Dar and others v. Khawaja Muhammad Asif and others 2017 SCMR 292 . 9. Heard the learned counsel for parties and with their able assistance perused the record. Perusal of record reflects that out of divergent pleadings of parties, this Tribunal framed four issues. The issue No.1 relates to Preliminary Legal Objections Nos.B & D, wherein not only the maintainability of the petition has been questioned, but also dismissal of the petition has been sought, but minute perusal of petition along with its annexure reflect that the same are duly signed and verified on oath by the petitioner as required under the law and also annexed all the necessary documents as required under Section 144 of the Act. Besides, all the contesting candidates were joined in the petition as well as requisite securi ty amount has also been deposited. Thus, the issue No.1 is resolved in favour of petitioner . 10. Disqualification of the respondent No.1 (returned candidate) has been sought by the petitioner under Article 62 (1)(f) of the Constitution of Islamic Republic of Pakistan, 1973, on the ground that while filing his nomination papers, the returned candidate has concealed that he had remained as Office Assistant BPS-16 in Service and General Administration Department and drew salary till January 2016, besides in the month of May 2018 he had also remained as Advisor of Food in the former Provincial Cabinet. Accordingly , issue No.2 was framed to ascertain the allegations, in order to establish this issue the petitioner produced the nomination papers along with annexure of the respondent No.1 through PW-11 Hizbullah, Judicial Magistrate Khaliqabad Mangochar as ExP-1 1/A-1 to A- 19. I have perused the nomination papers of the respondent No.1 minutely and observed that no such information has ever been sought by the Election Commission of Pakistan from a contesting candidate of general elections to mention the portfolios earlier he had held. Admittedly , the contesting candidate whilst filing his nomination papers was required to provide those information, which was sought from him or any other source through which his income is being increased. In rebuttal, the returned candidate produced Muhammad Taqi, Under Secretary S&GAD appeared as RW-14, who produced the resignation application dated 1st February 2016 of the respondent No.1 as Mark-14/1, Bank Challan Deposit Slip for deposit of one month salary Mark-14/2 and the Notification dated 3rd February 2016, whereby resignation of the respondent No.1 was accepted by the Secretary S&GAD. RW-14 has also produced the Notification dated 22nd January 2018, whereby the respondent No.1 was appointed as Advisor to the Chief Minister Balochistan on Food with the status of Provincial Minister When confronted to the learned counsel for petitioner as to how the returned candidate can be disqualified merely on the basis of information that was not sought by the Election Commission of Pakistan in nomination papers from the returned candidate, the learned counsel for petitioner was unable to satisfy this Tribunal on the point because-- the respondent has completed two years after his resignation from service and was qualified to contest elections. It has further been observed that the petitioner has failed to object the nomination papers of the returned candidate at the time of filing of nomination papers, hence the remedy so available with the petitioner was not availed. Accordingly , this issue is resolved in negative and decided in favour of respondent No.l. 11. The most important issue in this case is issue No.3, which pertains to resolving the question of collusion of Polling Officers/ Officials with the respondent No.1 at the time of election or throug h corrupt or illegal practices, the respondent No.1 procured the elections results in his favour . The burden to prove this issue was on the shoulder of the petitioner , who in toto has produced the evidence of twelve (12) witnesses. Since, the petitioner has specifically alleged that the respondent No.1 was in league with the polling staff and committing massive rigging with their collusion, but the witnesses so produced by the petitioner did not name any of the Presiding Officer, Assistant Presiding and Polling Staff, who in any manner had joined hands with the respondent No.1 or abetting the respondent No.1 or his workers or voters in any manner . PW-1 to PW-9 were the polling agents of the petitioner in different polling stations. The assertions contained in the affidavits of all the nine PWs are almost same and only the columns of name of deponent, father's name, CNIC number and the name of polling stations were left blank and filled subsequently through ink pen. It does not appeal to the logic that happenings or incidents were remained same in all the polling stations. Anyhow , the affidavits of the PWs mentions that they were the polling agents of the petitioner in different polling stations and observed that the voters of the returned candidate were casting their votes repeatedly through invalid CNICs, by appending forged/fake thumb impressions, thus they (PWs) requested
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for checking their CNICs, but the Presiding Officers and Polling Staff refused to adhere their request. The PWs have further alleged that the R.O. concerned was also approached through petitioner , but he has failed to take notice thereof and ultimately they were ousted from polling stations. According to PWs this process of casting bogus/fake votes was continued till the end of polling hours and the workers of the returned candidate were casting bogus votes and the Polling Staff were obtaining the thumb impressions of such voters repeatedly . Even otherwise, at the time of counting they were ousted from polling stations and the result was prepared in their absence as being polling agents their signatures were not obtained on Form-45. In their cross examinations the PWs admitted that their affidavits were written by Advocate. PWs have further admitted that Police, Levies and F.C. personnel were deputed on all the polling stations, while the polling agents of almost all the contesting candidates were present inside the polling stations. PW-1 has brought on record that he belongs to Jamiat-e-Ulema Islam, while the petitioner was contesting the elections on the ticket of said party . PW-1 has furthe r brought on record that he did not complain to the petitioner' with regard to his ousting from the polling station. PW-2 has admitted that the personnel of law enforcing agencies after checking the CNICs of voters were allowing them to enter in the polling station. PW-2 further admitted that besides him, no other polling agent of other contesting candidates raised any objection. PW-4 admitted the fact that the voters were casting their votes freely and the voting process was started and ended within the stipulated period. PW-6 has brought on record that the Returning Officer and District Returning Officer were visiting the polling stations, but he did not make any complaint. PW-6 also admitted that after checking the CNICs of voters they were being allowed to cast their votes freely . The comparative statements of all the PWs establishes the fact that the personne l of all enforcing agencies were deputed on all the polling station, who after checking the CNICs of voters were allowing them to enter in the polling stations. The voters were casting their votes out of their free will, consent and choice. No any mishap was reported in any polling station. All the PWs failed to name any of the Dolling staff A being in league with the returned candidate. It appears that the petitioner has only levelled bald allegations against the respondent No.1 seeking the declaration of the returned candidate to be void without any solid and concrete evidence. Though the polling agents have alleged casting of bogus votes, but they have failed to challenge a single vote at the time of polling. Even after the polling was over, the petitioner did not approach the Provincial Election Commission to report the alleged corrupt practices rather he waited for the election results, which were pronounced after recounting in presence of their representatives held in the office of Returning Officer and after losing the same, he has levelled baseless and unfounded allegations just to make out grounds for filing this petition. Even otherwise, none of the polling agents of the petitioner has claimed that he was not allowed to enter and sit in the polling stations at the time of polling. Admittedly , the allegations made in the election petition are not only vague, generalized, non-specific, but also did not meet the requirements enough to declare the elections of the returned candidate to be void. Reliance in this regard is place on the case of Hafeezuddin v. Abdul Razzaq PLD 2016 Supreme Court 79, wherein it has been held, as under: "Before we embark upon an analysis of the evidence and a determination about the correctness or otherwise of the findings of the learned Tribunal, it is pertinent to mention that the rules of proof for the grounds challenging the election which are founded on corrupt and illegal practices are quite strict and stringent and the allegations in this regard must be absolutely proved through positive evidence without accepting any inferences and if there is any doubt, the benefit must go to the person against whom corrupt or illegal practices are being alleged. " 12. Now adverting to the NADRA's report, suffice to observe here that on the application of petitioner , the election materials were sent to NADRA and accordingly the NADRA through CW-1 Abdul Wahid Sherani, Assistant Director , NADRA Quetta exhibited the NADRA report (Exhs.C/1 to 24 and Exhs.C-1/2 to 315). However , subsequently the author of the said report namely Ghazali Zahid, Director HOD EPD appeared as CW-2, who owned the NADRA report. Anyhow , the first report Exhs.C/1 to 24 pertains to details of material received by the NADRA, while the second part of report Exh.C-1 /2 to 315 relates to verification of invalid CNICs and thumb impressions etc. The summary of the .inalysis report of NADRA (Exhs.C-1/2 to 315) is as under: S.No. Description Remarks
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1. Invaid CNIC on CounterfoilsThe were 2,444 used counterfoils having invalid CNIC written on them. This was mainly observed in polling station # 65 (108 x votes) and polling station # 34 (102 x votes). 2.Incomplete CNIC not Mentioned on CounterfoilsThere were 100 used counterfoils which do have-Incomplete CNIC number mentioned. This was observed mainly in polling station # 49 (8 votes) and at polling station # 50 (6 votes) 3.Duplicate V oters on CounterfoilsThere were 126 duplicate (more Than once) votes polled by 64 oters. This information was extracted from capturing NIC number written on used counterfoils. This was observed mainly in polling station # 69 (12 votes) and at polling station # 60 (9 votes) 4. Counterfoils without Fingerprints477 used counterfoils were found without having fingerprints on them. This was observed mainly in polling station # 34 (37 votes) and at polling station # 65 (34 votes). However , NIC number mentioned on such counterfoils are valid. 5.Out of Constituency VotesThere were 0 x NIC numbers Mentioned on used counterfoils which were not registered in this constituency 6.Fingerprints of insuf ficient qualityThere were 13,574 used counterfoils which NADRA could not process through AFIS because of insuf ficient quality of fingerprints of the voters af fixed on them. However , CNIC number mentioned on such counterfoils having poor quality thumb impressions were valid CNICs.
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7.Fingerprints successfully authenticatedA total of 22,572 votes were authenticated by AFIS. This means That fingerprint af fixed on counterfoil at the time of issuance of ballot paper correctly matched with fingerprint data of registered voter/citizens held with NADRA in Citizen Database. 8.Fingerprints failing authentication0 x votes failed authentication. 13. The NADRA's report states that 2244 used counterfoils had invalid CNIC numbers plus 100 used counterfoils having incomplete CNIC numbers total 2344. Meaning thereby that an impressi on has been created that such invalid or incomplete CNIC numbers do not relate to the voters of the constituenc y. The NADRA's report is silent that whether on these 2344 used counterfoils thumb impressions were missing or that the thumb impressions were not verifiable.…
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