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Petitioner: Ali Nawaz Shah through duly authorized attorney VS Respondent: Election Commission JUDGMENT
Court Name: Sindh High Court Judge(s): Amjad Ali Sahito Title:Ali Nawaz Shah through duly authorized attorney vs Election Commission
JUDGMENT
Reported As: 2023 YLR 2241 Result: Petition dismissed Judgment JUDGMENT AMJAD ALI SAHITO, J.---This election petition, under section 139 of the Election Act, 2017 read with section 142 of the Election Rules, 2017 (which hereinafter is referred to as "the Act of 2017"), is directed against Notification dated 07.08.2018, issued by respondent No. 1 after the General Elections-2018. Election to Constituency of Provincial Assembly PS-48, Mirpurkhas-II, was held on 25.07.2018 which hereinafter is referred to as "said Constituency"). Petitioner and respondents Nos. 2 to 14 have contested the General Elections-2018 for said constituency. Petitioner obtained 36, 241 votes whereas respondent No.6 obtained 38,097 votes, as such, he/ respondent No.6 was declared as a 'Returned Candidate'. 2. In his election petition, the petitioner has stated that he contested the election on the said Constituency as an independent candidate. He is aggrieved by the conduct on the part of the election functionaries in the said Constituency as well as the Election Rules have been flagrantly violated throughout the poll, as such petitioner reserves his rights to agitate all such grievance concerning polling station wise illegalities committed by the election functionaries to demonstrate the rigging against the petitioner. He alleged that notwith-standing the aforementioned conduct on part of the election functionaries as well as the rigging carried out by and at the behest of respondent No. 6/returned candidate; without prejudice the right of the petitioner to agitate polling wise illegalities committed by the election functionaries as well as by and at the behest of respondent No.6, the petitioner through the instant petition seeks a recount of the votes in the said Constituency. The petitioner has alleged that the R.O. appointed most of., the Presiding Officers, Assistant Presiding Officers and Polling Officers while being in collusion with respondent No.6 to
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give undue favor to respondent No.6 and loss to the petitioner. He also alleged that after the close of the polls the Presiding Officers of 131 polling stations provided results of count (Form XIV), but did not provide ballot papers account (Form XV). At the time of consolidation of results by R.O. on the basis of tampered form, the petitioner raised an objection, pointed out the position of tampered record sent by the Presiding Officers and requested for recounting but the R.O. illegally consolidated the result of count and furnished the same. In this regard, the petitioner made complaints to various authorities including R.O. Provisional as well as final consolidation of the result by the R.O. is contrary to section 95(2) of the Act, 2017 and rule 80 of the Election Rules, 2017. An application for the same subject was also moved to the Chief Election Commission of Pakistan but no fruitful result. The petitioner has further contended that there is a pre-requisite condition of 5 % of the total ballots polled or ten thousand, as such, the petitioner moved an application for a recount of the ballot papers and in terms of section 95 of the Act of 2017 the R.O. must allow such application; however, without application of mind and in absolute disregard of the mandatory provisions of the rules and Act of 2017, the application was dismissed without any cogent reason, which ought to have been allowed by operation of law in the facts and circumstances of the instant case. Such order of dismissing the application for a recount of votes was passed on an irrational, unreasonable, disproportional and illegal order, without jurisdiction and contrary to law. 3. The petitioner has further alleged that form-45 either were not given to the agents or somewhere given on plain papers containing the seal of the election commission through containing similar number but signatures whereon are different leading towards an aspect that by forged signatures the agents were kept on hallow hopes of issuance of Form-45; somewhere requirements of Form- 45 have not complied with even thumb impression is missing. He further alleged that out of a total of 131 polling stations, Form-45 of a few polling stations were only supplied to the polling agents of the petitioner on plain paper bearing a stamp of the Election Commission of Pakistan and a sign of a Presiding Officer. Petitioner further contended that as per his polling agents, many spoiled votes were wrongly counted in favour of the candidate of PPP/respondent No.6 despite the protest of the polling agents. At several polling stations, the polling agents of the petitioner were restrained from entering the polling stations at the time of counting of votes which shows the irregularity floating on the face of the record. Later on, when Form-47 being a provisional result was issued, the petitioner transpired that he had received a total of 36,241 votes whereas respondent No.6 had received 38,097 votes. He has alleged that fairness and transparency of the polls should have been ensured in accordance with the provisions of elections laws and under Article 218 of the Constitution of Islamic Republic of Pakistan, 1973, but all the relevant provisions have been blatantly brushed aside. Respondent No.6 in league with R.O. has committed corrupt practice and hence his conduct falls within the ambit of section 175 of the Election Act, 2017, therefore, this election showing him as returned candidate is liable to be declared void. The petitioner, therefore, filed an instant election petition with the following prayers:- (a) Declare that the impugned notification dated 07.08.2018 to the extent of PS-48 Mirpurkhas-II is contrary to law, consequently set aside the same. Or IN THE ALTERNATIVE (b) Declare that the election of Respondent No. 6 as returned candidate is void and fresh poll are directed to be conducted in the entire constituency. (c) This Honourable court may kindly be pleased to pass order for recount of votes for the entire polling stations comprising 131 polling stations of PS-48 Mirpurkhas-II, Sindh. (d) That, the mala fide conduct conjointly committed is declared to be corrupt and illegal practice as defined in Chapter X of the Election Act, 2017. (e) Any other relief which this Honourable Court deems fit may be awarded to the petitioner in the circumstances of the case.
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4. In response to notices issued by this Tribunal to the respondents through all possible modes for effecting service upon them, only respondent No.6 being returned candidate has chosen to contest the petition and submitted his written statement, questioning the maintainability of this petition on the ground that the petitioner has not complied with the provision of subsections (1) and (4) of Section 144 of the Act of 2017 . He while denying the averments of memo of petition contended that the election was held according to the Election Act and Election Rules, 2017. Respondent No.6 has denied that he either violated any provision of the Election Act and the Rules or been involved in rigging. The petitioner has failed to give complete particulars of corrupt or illegal practices, including the names of the parties alleged to have committed such corrupt practice or illegal practice along with the date and place of such commission of such practices. He has also failed to submit details of alleged corrupt or illegal practice caused by a returned candidate or his election agent or another person with the connivance of the candidate. He contended that an election of a returned candidate shall not be declared void if the Election Tribunal is satisfied that any corrupt or illegal practice was committed without the consent or connivance of that candidate or his election agent; that the R.O. of PS-48 was a Civil Judge and rudicial Magistrate-I, Mirpurkhas being an independent person and made all appointments of election staff on his own accord and the petitioner neither raised any objection nor ever made any application against such appointment of. election staff. Consolidation of results has been carried out following the provisions of section 95 (2) of the Act of 2017 and rule 80 of the Rules. He contended that it is also unclear as to how the petitioner got to know or rigging if his agents were not available, as such, this establishes the falsity of this allegation; that the petitioner nor his agent made any complaint regarding the casting of bogus votes to the R.O. on the polling day. Respondent No.6 in his written reply prayed for dismissal of instant petition with special costs. 5. Initially, the National Database Regulatory Authority through its Chairman, State Bank of Pakistan, Islamabad was arrayed as respondent No.15; however, respondent No.15 filed an application being M.A No.5778/2018 for deleting its name from the array of the respondents, which was allowed by this Tribunal vide order dated 27.11.2018 and the name of respondent No.15 was deleted from the array of respondents. Respondent No.1 ECP failed to file a written reply as such, debarred from filing its reply. Respondents Nos. 2 to 5 and 7 to 14 chose not to contest despite service of notices, as such, they were declared ex-parte vide order dated 19.11.2018. 6. From the pleadings of parties, the following issues were framed:-- 1. Whether the petition is not maintainable under the law? 2. Whether the election and result of the returned candidate/respondent No.6 Syed Zulfiqar Ali Shah for the constituency of PS-48, Mirpurkhas-II, Sindh in the General Elections, 2018 had been procured by corrupt and illegal practices with the help of staff appointed to perform duties thereby committed violations of their official duties? 3. Whether the alleged corrupt and illegal practices have been committed by the returned candidate or his election agent or by any other person with the consent and connivance of the returned candidate? 4. What should the decision be? 7. After framing of issues on 24.04.2021, the petitioner examined his attorney namely Shakir Hussain, who produced copies of the petition and amended petition. Petitioner witnesses namely Waqar Ahmed and Munawar Khan who are stated to be agents of the petitioner were also examined. They produced their affidavits-in-evidence. Thereafter, counsel for the petitioner closed his side of evidence. The contesting respondent No.6/returned candidate Syed Zulfiqar Ali Shah examined himself his affidavit-in-evidence and his counsel closed the side of evidence. 8. Learned counsel for the petitioner while reiterating the contents of the petition mainly contended that all the requisite provisions of the Act, 2017 have been complied with, the petitioner has also
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filed an affidavit of personal service swearing on oath that he has personally sent complete copies of the petition along with all the annexures, list of witnesses and documentary evidence to all the respondents, TCS receipts of the same have been attached with the memo of the petition; despite that the petitioner has also provided a complete copy of the petition along with all the annexures to the respondent No.3. He has further contended that grave illegality and irregularity has been committed during the election process, as such, the entire process suffers from illegal and corrupt practices. He has contended that the polling agents of the petitioner were thrown from the polling stations and form-45 were not provided to them. He has further contended that during the counting of results at various polling stations, the agents were not allowed in the counting process; however, the result was announced late on the next day of the poll. He has also contended that figures of votes in respect of spoiled, rejected, canceled, cast and unused ballot papers do not match with the total provided ballot papers at various polling stations, which clearly shows that the polling staff having nexus with returned candidate/Grand Democratic Alliance, who have knowingly made illegal and corrupt practice. Forms-45 and 46 do not match each other. He has further contended that though there was the difference of only 923 votes in between the votes obtained by petitioner and returned candidate, which becomes 0.6%; even, the application for recounting made by the petitioner before R.O. within time was not considered though the R.O. is bound to make recounting in case the difference of votes less than 5% polled in the constituency or ten thousand votes. Learned counsel has further contended that the returned candidate in his evidence has also admitted the mistakes that occurred in the figures in Form-45 and Form-46. He has contended that the result of the election is procured in favour of returned candidate by corrupt and illegal practices with the conveyance of Presiding Officer and polling officer and in contravention of mandatory provisions of the Election Act and Rules, 2017. He, therefore, prayed that the election of respondent No.3 be declared as void and consequently, an entire fresh poll be conducted or at least fresh polling on polling station Nos.9, 12, 37, 38, 44, 45, 95, 96, 97, 99, 101 and 122 may be ordered coupled with recounting of the votes. In support of his contentions, he has relied upon the decision in the cases reported as 1969 SCMR 189, 2001 SCMR 1700, 2004 SCMR 244, PLD 2018 (sic) 735, 1987 MLD 37, 1986 CLC 2499, 2020 YLR 2031 and 2020 YLR 132. 9. Conversely, learned counsel appearing on behalf of respondent No.6 while rebutting the arguments of learned counsel for the petitioner has contended that no illegality or irregularity was made during the process of the poll and the entire poll was conducted peacefully in the presence of law enforcing agencies, which were deployed on all the polling stations. He further contended entire polling process was supervised through CCTV cameras, thus, no question of rigging or procuring results through corrupt and illegal practices arises; however, if any inconsistency as alleged by the petitioner in Form Nos.45, 46, etc. is made, on such ground whole election process cannot be questioned; such discrepancies could be due to lack of expertise of the polling staff. The application for recounting of votes by the petitioner was moved after the consolidation of result, as such, the learned R.O. has rightly dismissed the same by a speaking order. He has further contended that the petitioner has failed to bring on record any complaint concerning his allegation during the poll, as such, the allegation levelled by the petitioner are nothing but baseless and forged; that an attorney cannot file an election petition on behalf of the petitioner; that the full particulars of the alleged corrupt or illegal practices have not been provided in the petition; that the burden to prove illegal and corrupt practices lies on petitioner; that the allegations of corrupt or illegal practice are based on mere presumptions and assumptions, which in the eyes of law are unwarranted. He, therefore, prayed that the petition being not maintainable is liable to be dismissed with special costs. In support of his contentions, he has relied upon the judgment passed in the case reported as PLD 2020 Supreme Court 718, 2021 SCMR 85, 2017 SCMR 292, PLD 2016 SC 79, PLD 1957 SC 91, PLD 2016 SC 97, 2018 SCMR 93 and PLD 2017 SC 684.
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10. The learned Assistant Attorney General for Pakistan and Law Officer of the Election Commission of Pakistan have contended that the election was conducted peacefully and no illegal practices or procurement of results with the connivance of officials or in contravention of mandatory provisions of the Act of 2017 was made. 11. Heard and perused the material available on record with the able, assistance of counsel appearing on behalf of respective parties. 12. Issue No. 1 relates to the maintainability of the instant petition. Learned counsel for respondent No.6 contended that an attorney cannot file the petition on behalf of the petitioner. He has further contended that the petitioner has also failed to verify the petition as per subsection (4) of section 144 of the Act of 2017. He, therefore, submits that the petition is not maintainable. On the other hand, learned counsel for the petitioner has contended that all the provisions of the Act, 2017 have been complied with and the verification of the petition has been made following the law. So far presentation of the petition through the attorney is concerned, it would be sufficient to say that as per clause (a) (ii) of subsection (2) of section 142 of the Act of 2017 permits the petitioner to present a petition by an authorized person. Further, the petition cannot be dismissed at this stage on the point of maintainability as the order in this regard could have been passed at the earliest before the issuance of notice to the respondents. Subsection (1) of section 145 of the Election Act, 2017 provides that if any provision of section 142, 143, or 144 has not been complied with, the Election Tribunal shall summarily reject the election petition; whereas its subsection (2) says that if an election petition is not rejected under subsection (1), the Election Tribunal shall issue notice to each of the respondents through all certain modes. It is an admitted position that at the time of filing this petition, it was not summarily rejected by this. Tribunal and the notices were issued; the written statement was filed and issues were framed; evidence of the parties has been recorded. The main scope for rejection of petition is at the earliest stage and if both subsections (1) and (2) of section 145 of the Election Act, 2017 are read together, then it would be clear that such chapter for rejection of election petition in the circumstances of an instant petition becomes closed after issuance of notice to the respondents. Moreso, vide order dated 13.3.2021, amendment of the petition to the extent of verification on oath was allowed and nothing is available on record as to whether the said order was challenged and findings of this Tribunal were reversed. As such, the petition is maintainable and this issue is answered in favour of the petitioner. 13. Issue No.2. On this issue, it is to be determined as to whether the result of the returned candidate/respondent No.6 has been procured by corrupt and illegal practice with the help of staff appointed to perform duties thereby committing violations of their official duties. In this regard, the petitioner has examined his attorney Shakir Hussain, who deposed that "near about 1800 is difference of votes in between the votes obtained by the petitioner and returned candidate, as such, I am requesting that fresh poll may be conducted. The news was also played on 'Geo News Channel'." During cross-examination, he admitted that "It is correct to suggest that I have not produced documents which suggest that election was not conducted free, fair and impartial. It is correct to suggest that in my evidence, I have not disclosed the name of any person/ government official who interfered in the election process. It is correct to suggest that in my evidence, I have not disclosed time, place and polling station in which election was conducted free, fair and impartial. It is incorrect to suggest that the entire petition is based upon hearsay evidence, however, on some polling stations the voters of the petitioner Syed Ali Nawaz Shah were not allowed to cast their votes. It is correct to suggest that in my evidence, I have not disclosed the numbers of polling stations, in which any voter was stopped for casting his votes." 14. PW Waqar Ahmed in his evidence stated that he was appointed as a polling agent. However, during cross-examination, this witness has admitted that "It is correct to suggest that I have not produced the agentnama in my affidavit-in-evidence or in evidence to believe that I was
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appointed as agent at polling station Makhan Samo; however, I do not know the number and name of said polling station. It is correct to suggest that I have not produced any document which shows or suggests that the election was not conducted free, fair and impartial. The Presiding Officer of polling station Makhan Samo was involved in rigging. It is correct to suggest that have not filed any application to the R.O. Army personnel or Ranger personnel. It is correct to suggest that Ranger Personnel were also appointed in election duties. Orally we have been informed about the announcement of result; however, I have not received Form-45. It is correct to suggest that in my affidavit-in-evidence, it is not written that I have not received Form-45. It is correct to suggest that I have not appeared before R.O. in order to file any application about the involvement of Presiding Officers in rigging at polling stations and not allowing the voters of the petitioner." 15. PW Munawar Khan was also examined, who produced his affidavit-in-evidence. During the cross-examination, he deposed that "I do not know the name of polling station where I was appointed as polling agent by the petitioner; however, it was in Government School Jhaloori. It is correct to suggest that I have not produced any agentnama which could suggest that I was appointed on the said polling station. I do not know the name of Presiding Officer, who was involved in rigging in the process of polling and involved by casting fake votes. It is correct to suggest that I have not filed any application to the Presiding Officer, R.O. or any other person, who was performing election duties at said polling station. Army personnel and Ranger personnel were posted for the election duties at the said polling station. It is correct to suggest that I had not appeared before the R.O. for the said complaint. It is correct to suggest that R.O. who was biased against us and rejected the ballot papers having symbol of Arrow. It is incorrect to suggest that I was not appointed agent of the petitioner at any polling station of constituency PS-48." 16. Respondent No. 6 / returned candidate during his evidence has produced his affidavit-in- evidence. He deposed that he has secured about 38000 votes and the petitioner obtained about 36000 votes. There was a difference of about 2000 votes in between the votes obtained by him and secured by the petitioner. The Army Personnel were deputed inside and outside of the polling stations. The returned candidate was cross-examined by the counsel for the petitioner, in which he deposed that; "It is correct to suggest that I have not read over the contents of petition, however, my counsel has read over the contents of petition. It is correct to suggest that specifically I have not denied the contentions in the memo of petition and affidavit-in-evidence. It is correct to suggest that I could not say that what is written in para-3 of my affidavit-in-evidence including paras Nos. 1, 2, 4 and 5. 11 is correct to suggest that 1 have secured 38112 votes while petitioner All Nawaz Shah secured 36271 votes and there is difference of 1841 votes. It is correct to suggest that petitioner Ali Nawaz has moved application for recount of votes. Voluntarily says that after consolidation of result, he has moved application then R.O. has no powers to order for recount of votes. The application was moved by the petitioner after 03/04 days of the announcement of result. It is correct to suggest that after filing of application by the petitioner the notice was issued by the R.O. as such, my counsel appeared before the R.O. who has filed the objections on that application before the R.O. Voluntarily says that application for recounting of the votes was dismissed. I cannot say whether it is written in the order about the consolidation of the result in the order passed by the R.O. I do not know about the contention of subsection (5) of section 95 of the Election Act, 2017. It is correct to suggest that if there is difference of 10,000/- (ten thousand) or 5% in the votes, the R.O. has to pass the order for recounting of votes. It is incorrect to suggest that under my compulsion the R.O. has dismissed the application filed by the petitioner for recounting of the votes. It is incorrect to suggest that under my pressure and others by making illegal practice the R.O. has dismissed the application for recounting of ballot papers. It is incorrect to suggest that news was flashed on Geo TV that petitioner Ali Nawaz has won the election...It is incorrect to suggest that the application was moved by the petitioner before the Election
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Commission of Pakistan and I have contested the same and by adopting foul methods, it was not proceeded there." 17. A vigilant look at the entire evidence reveals that the version of the petitioner concerning procurement of the result through corrupt and illegal practices has…
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