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Petitioner: Ch. MUHAMMAD ASHRAF WARRAICH and another VS Respondent: MUHAMMAD NASIR JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Mushir Alam, Mian Saqib Nisar, Maqbool Baqar Title:Ch. MUHAMMAD ASHRAF WARRAICH and another vs MUHAMMAD NASIR
JUDGMENT
Reported As: 2016 SCMR 998 Result: Appeals dismissed Judgment JUDGMENT MUSHIR ALAM, J.---Through this single judgment, we intend to decide the listed Civil Appeal No,1169 of 2014, filed by Ch. Muhammad Ashraf Warraich, and Civil Appeal No,1192 of 2014, filed by Muhammad Nisar Cheema. 2. Muhammad Ashraf Warraich, also Respondent No,1 In Civil Appeal No,1192 of 2014 (hereinafter referred to as the 'Returned Candidate'), has been non-seated by the learned Election Tribunal, Lahore, vide the impugned decision dated 05.08.2014 and at the same time it directed the Election Commission of Pakistan to take necessary steps for holding Bye-Elections in 33 polling stations of the Constituency of PP-97, Gujranwala. Second mentioned Appeal has been filed by Muhammad Nasir Cheema, who is Respondent No,1 in first mentioned Civil Appeal, (hereinafter referred to as the 'Election Petitioner'), is also aggrieved by the portion of the same impugned decision, declining to declare him elected member from the said constituency, has prayed for modification of the impugned decision of the Election Tribunal to such an extent. 3. Briefly stated the facts appear to be that the elections for Provincial Assembly for Constituency PP-97, Gujranwala-VII, comprising 120 polling stations were held along with general elections throughout the Province of Punjab on 11.05.2013. Both the contestants along with 28 other candidates contested for the Constituency, official result of the election was declared on 13.06.2013 (Ex.PW.33/H). As a result of the count in form XVI, first three candidates secured votes as follows:- i. Ch. Muhammad Ashraf Warraich, Returned candidate secured............................................ 29,756 votes; ii. Muhammad Nasir Cheema Election Petitioner secured.............................................. 22, 335 votes; iii. Ghulam Sarwar Resp.No,25/Runner up secured....................................... 23, 871 votes.
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4. None other than the Election Petitioner, Muhammad Nasir Cheema challenged the election through Election Petition No,226 of 2013 essentially on the ground summarized in the impugned decision of the Election Tribunal as follows:- "GROUND OF ATTACK NO. 1 That the petitioner defeated all his political rivals including the returned candidate and the runner up at 33 polling stations of the Constituency fully particularized in the statement, Ex. PW-33/E; that his polling agents received copies of statements of the count in form XIV regarding said 33 polling stations from the Presiding Officers and passed on to the petitioner, according to which the petitioner secured 26,769 votes whereas the returned candidate obtained 25,473 votes and that the Returning Officer tampered with the statements of the count in form XIV and reduced the votes polled to the petitioner from 26,769 to 22,335. GROUND OF A7TACK NO.2 That the General Election-2013 from Constituency No, PP-97, Gujranwala-V1I was not conducted in accordance with delimitation of the constituencies approved and notified under the Delimitation of Constituencies Act, 1974; that according to notified delimitation of constituencies vide notification dated 28th June, 2002 and not dated 8th April, 2013, Gujranwala Cantt. Was included in Constituency No,PP-96- Gujranwala, that villages Baddoke, Hardo Amin Fur, Bhaghat Garh and Dhippha were made part of Constituency No, PP-97 by the District Returning Officer through polling scheme despite the fact that the above said villages being located within the territorial limits of Cantonment, Gujranwala should have been made part of Constituency No, PP-96, Gujranwala and that the election held on 11.05.2013 at the polling stations of aforesaid villages under the said polling scheme Ueing offensive to the notified delimitation of constituencies, was null and void." 5. However, serious challenge before this Court was confined to first mentioned ground. From the record, it is evident that Election Petitioner and the Returned Candidate participated in the proceedings and other contesting candidates were proceeded against ex parte. 6. After exchange of the pleadings, the learned Election Tribunal framed the issues as follows:- "1. Whether the election petition is actuated by bad faith, if so its effect. OPR1 2. Whether the election petition is hit by the provisions contained in section 55(1)(B) of the Representation of People Act 1976? OPR1 3. Whether the petitioner is estoppel by his conduct to file this petition OPR1 4. What is effect of preliminary objections number 4 to D and F of the written statement OPR1 5. Whether the election of respondent No,1 is liable to be declared as void and the petitioner is entitled to be declared as Returned Candidate for the reasons mentioned in the election petition? OPR1 6. Relief" 7. Issues Nos.1 to 4 were not contested by the Returned Candidate, therefore, were decided in favour of the Election Petitioner. Issue No,5, being pivotal, was seriously contested by the disputants. Since burden to prove subject issue was on the Election Petitioner, he examined himself as RW.33 and produced his 30 polling agents, (PW-1 to PW-32) who supported his case that they had collected the copies of statements of count in form XIV issued by the Presiding Officers of their respective polling stations. He produced consolidated result of 33 polling stations Ex.P-33/E (available at pages 316 to 319 of CA#1169/2014) which shows total vote casted in his favour whereby he secured 26,769 votes as against 25,473 votes polled by the Returned Candidate. The Election Petitioner produced the count of form XIV of all the 33 polling stations himself and through his witnesses at trial. The Returned Candidate (RW-33) examined 32 out of 33 Presiding Officers (RW1-R W32) from the disputed polling stations. He and his witnesses produced copies of the
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statements of the vote counts in form XIV. Result of the counts as claimed by the disputant candidates emerged as follows:- Sr. No. Polling station No.Number of polled votes to the petitioner as per statement of the count relied upon by the petitionerNumber of polled votes to the petitioner as per statement of the count relied upon by the returned candidateNumber of polled votes to the returned candidate as per statement, of the count relied upon by the petitionerNumber of polled votes to the returned candidate as per statement of the count relied upon by the returned candidate 1 2 170 70 171 271 2 4 238 138 174 274 3 4 359 249 367 477 4 6 285 135 145 295 5 8 368 218 279 429 6 9 397 297 374 474 7 17 577 377 461 661 8 59 306 156 480 630 9 62 317 214 175 278 10 78 135 35 152 252 11 79 130 30 106 206 12 80 259 59 260 460 13 81 202 52 202 352 14 82 132 32 120 220 15 85 278 178 264 364 16 87 226 26 159 359 17 88 134 34 137 237 18 91 287 87 175 375 19 92 161 61 195 295 20 93 189 39 223 373 21 94 169 19 183 333 22 97 133 33 165 265 23 98 275 75 263 463 24 99 190 40 173 323 25 100 169 49 162 282 26 101 140 40 146 246 27 105 434 334 141 241 28 106 364 264 157 257 29 110 313 213 70 170 30 113 471 271 210 410 31 114 151 00 180 180 32 115 430 230 306 506 33 117 599 499 260 306
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Grand Total 8988 4554 7035 11318 8. It was noted by the learned Election Tribunal that the statements of the count in form XIV as relied upon by the Returned Candidate falls to the ground, if the statement of the count adduced by the Election Petitioner is taken into consideration. Conversely, if the result of the vote counts relied upon by the Runner Up is taken as true, the Election of Returned Candidate will not be open to any exceptions. 9. Since the vote count in Form XIV produced by the contesting parties was conflicting. To resolve the controversy learned Election Tribunal, at the behest of the Election Petitioner, in exercise of powers under Section 46 of the Representation of People Ad, 1976 (RoPA, 1076) deemed it expedient to appoint a Commission (Mr. Sultan Ahmad, Additional District and Sessions Judge, (Retd.), to examine the election record of 33 challenged Polling Stations and submit report. The Commission completed the exercise in presence of contestants and also appeared as Tribunal Witness (TW-1). He produced the Report as Ex.TW1/A and Ex.TW1/B. He deposed that all the bags containing the election material including statutory forms were not sealed when received by the Commission. 10. To examine the effect of the unsealed bags and to ascertain the circumstances, how and when such bags were de-sealed, learned Election Tribunal also examined Mr. Rehan Bashir, Returning Officer as TW-2, Mr. Shakeel Ahmed, the then District Accounts Officer, Gujranwala as TW.3 and Syed Safdar Rana, Head Treasurer, Gujranwala as TW.4. On the strength of the evidence so adduced, the learned Election Tribunal in paragraph 16 observed that "After coming to the conclusion that the Returning Officer deposited unsealed election bags with the returning Officer attempted to conceal the factual position from this election Tribunal, which persuaded him to deposit unsealed election bags with the District Accounts Office is open to serious exception." It was thus concluded that "Here I would say that the reasons and motive behind deposit of the unsealed election bags in the district Treasury is shrouded in mystery. Hence I feel no difficulty in concluding that the record found by the Commission from unsealed Bags is worthless". 11. Learned Election Tribunal, took into consideration, statements of the Presiding Officer of polling station No,6, Dr. Shaheen Naqvi (RW.3), Presiding Officer of polling station 78, Mr. Abdul Hameed Khalid (RW.8), Dr. Imtiaz Husain, Presiding Officer (RW.10) of polling station No,80 (PP-97), Ms. Rakshanda Iqbal (RW. 14) Presiding Officer of polling station No,99, Ms. Faiza Khan (RW.15) Presiding Officer of polling station No,101 and Mr. Muhammad Bilal (RW.30), Presiding Officer of polling station No,59. It was noted that all the six Presiding Officers, who were produced by the Returned Candidate, owned the statement of count prepared by them in form XIV, confronted to them by the Election Petitioner. They had no satisfactory explanation to offer to the contradictory statement of count contained in form XIV prepared by them and produced by the Returned Candidate. Learned Election Tribunal also carefully examined the report of the Commission (Ex. TW. 1/A and Ex. TW. 1/B) constituted under section 46 of RoPA, 1976! It has also come on record that the Returning Officer, Rehan Bashir (TW-2) "did not carry out the exercise of consolidation of results qua the rejected votes in terms of section 39(3) of the Act, 1976" and that "he failed to discharge his legal obligation". Thus the Election Tribunal observed that all the six presiding officers erroneously deposed that they had correctly prepared the statements of the counts as presented to the Election Tribunal. 12. Learned Election Tribunal, in paragraph 18 of the impugned Decision, also took stock of the fact that as per statements of count in Form XVI, of the six (06) challenged PS namely PS No,2, (271 vote) PS No, 17, (votes 661), PS No, 62, (278 vote), PS No, 81, (votes 352) PS No,91 (375 votes) and PS No, 93 (373 votes) total 2260 votes were not found. It was thus concluded that the 'Returned Candidate' could not substantiate that he secured (2260) votes from said six challenged PS. In paragraph 19 of the impugned Decision it was noted that Form XIV were missing in bags of nine (09) 'challenged PS Nos.2, 17, 62, 81, 82, 91, 93 101 and 114 for the comparison with the conflicting statements contained in form XIV, relied upon by the disputant. In paragraph 20 of the Decision, it was noted that from the
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bags of five (05) challenged PS (Nos.2, 80, 85, 93 and 94), not a single counterfoil was available though the form XVI reflected that 4,302 votes were polled at the subject polling stations. Thus, the validity of the 4,302 polled votes was held to be seriously questionable. 13. Learned Election Tribunal, thoroughly and meticulously thrashed out the evidence led by the parties and took note of the fact that the number of polled ballots did not tally with the available record, as could be seen from the tabulation of 33 challenged polling stations (Typed Page 20 of the impugned judgment). It shows that total votes casted in favour of the contesting candidates as per consolidated statement in form XVI were recorded as 34,229. Whereas, total number of votes actually found in the bags were only 19,300. There is no explanation of shortage of 14,929 votes missing from the bags. Learned Election Tribunal, also found that total number of counterfoils did not tally with total number of polled ballot papers found from the bags. It was admitted by the Returning Officer (TW. 2) at trial that he did not reexamine the rejected votes, excluded from the count by the Presiding Officer as was required under section 39(3) of the RoPA, 1976. Discrepancy in total number of rejected votes as per Form XIV were 728, whereas only 497 rejected votes were physically found in the bags. The state of available and missing record as noticed in various tabulated statements as discussed in the Decision and as noted and discussed above, demolished the cause of the Returned Candidate. On the strength of evidence as discussed above, the learned Tribunal came to the following conclusion:- "26. Keeping in view the above discussed factual and legal position, the credibility, legality and transparency of the election of returned candidate from 33 polling stations of the Constituency have been eroded. According to the consolidated statement of the count under challenge the returned candidate was ahead of the runner up by 5,885 votes, whereas the returned candidate defeated the petitioner by 7,421 votes. The returned candidate claimed to have obtained 11,291 votes at 33 polling stations. After coining to the conclusion that election of the returned candidate from 33 polling stations is null and void with no legal effect, the result of election favourable to the returned candidate falls to the ground mathematically and automatically. I, therefore, declare election of the returned candidate to be void. Resultantly, the position of respondent No,1 as Member, Provincial Assembly, Punjab from the above said constituency has ceased to exist. Issue No,5 is answered to the above effect. 27. Onus to prove issues Nos. 1 to 3 and 4 was on the respondent No,1 /returned candidate. During the course of arguments, learned counsel for the returned candidate did not utter a single word regarding these issues, which are disposed of as having not been pressed. 28. The Election Commission of Pakistan shall take necessary steps for holding bye-election from the above said 33 polling stations of the constituency (mentioned in the list, Ex.PW-33/E) in accordance with law. The District Returning Officer shall prepare polling scheme of Constituency No, PP-97, Gujranwala afresh strictly in line with delimitation of the constituencies already notified by the Election Commission of Pakistan. " 14. Learned ASC for the Returned Candidate, since non-seated, contended that after the evidence of the parties was concluded, in a bid to make fishing enquiry, the Election Petitioner applied to the Election Commission for inspection of record, said application was dismissed by the Election Commission on 21.4.2013, which order was challenged and is still sub judice before the High Court in Writ Petition No,11615/14. It was, therefore, contended that learned Election Tribunal fell into error by considering such request under section 46 of the RoPA, 1976 vide its order dated 15.5.2014. 15. It may be observed that candidature of a candidate could be challenged under the RoPA, 1976 at three different stages, right from the day of nomination till 45 days after the declaration of the official result. First stage is pre-election challenge at the time of scrutiny of nomination papers. Challenge to the candidature could be thrown by any of the contesting candidate, their agents, proposer, seconder, electors by filing objections against any of the candidate before the Returning
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Officer, on the grounds enumerated in clauses (a) to (d) to subsection (3) and subsection (5A) of section 14 of the RoPA. Any decision rejecting or accepting nomination paper, passed by the Returning Officer, is subject to right of appeal before the Tribunal comprised of not less than two and not more than three High Court Judges. Appeal is required to be decided summarily within prescribed time, if time, appeal by virtue of deeming provision subsection (6) thereof is deemed to be rejected. Second stage is post-election challenge to the election of returned candidate before the Election Commission of Pakistan, under section 103AA of the RoPA, 1976. Election Commission, after such summary enquiry as .To grave illegality or violation of the provisions of RoPA, 1976 or the rules framed there under, may declare the poll in any constituency as void and may call upon constituency to elect member, but such jurisdiction to declare the poll void, could be exercised before the expiry of sixty (60) days after the publication of result of the election (per section 42 of RoPA), where after, the Election Commission, becomes functus officio, and the returned candidate is deemed to be elected, but subject to the decision of Election Tribunal, constituted Section 57 of RoPA. Provided such challenge is thrown, by any of the contesting candidate. Third opportunity to challenge the election of the returned candidate becomes available post-election, to be made by any candidate of the subject constituency, before the Election Tribunal constituted under Section 57 ibid, within forty five (45) days from the date of publication in the official gazette of the name of the returned candidate, of the subject constituency in the manner provided under the RoPA, 1976 itself. 16. In cases of allegation of misconduct, the Returning Officer on the application of a contesting candidate or on the direction of Election Commission, has power under Section 39(3) of RoPA, 1976 to open packets, examine and inspect the ballot papers in presence of contesting parties or their representatives. Such request was made by the Election Petitioner on the following day of election, but it was declined by the Presiding Officer (Ex. P-33/F, available at page 320 of CA# 1169/14] . After the consolidation of result, such power rests with Election Commission, which was moved on 18.5.2013 [Ex.P-33/G, available at pages 322 of CA# 1169/14] to scrutinize result of 33 polling stations but, was also rejected by the Election Commission, through order dated 13.6.2013, on the ground inter alia "that the election Tribunals, which have been established and have commenced their work. If the Petitioner approaches the election Tribunal for the redress of his grievances his case would be decided expeditiously. " 17. Election Commission of Pakistan, issued Notification dated 22.5.2013 declaring the Petitioner as Returned Candidate. On 03.6-2013, Election Tribunals were also set up in Province of Punjab under section 57 of RoPA, for the trial of election disputes. Consequently, Election Petitions was filed, subject matter of instant Appeal. 18. It was urged by the learned ASC, for the Petitioner, that the appointment of the Commission, to examine the bags of the 33 Polling Stations was not justified, as similar request was declined by the Returning Officer and so also by the Election Commission, for the recount of the votes in 33 Polling Station. It was contended that it was the duty of the polling staff to observe the law and the rules on the subject and on failure of the same, the appellant cannot be penalized. According to learned counsel, the election was held in large number of polling stations, in a peaceful manner, and no objection to majority of the polling stations was taken. 19. Adverting to the contention of the learned ASC, for the Appellant that after the dismissal of application of the Election Petitioner by the Returning Officer and the Election Commission of Pakistan as noted above, the Election Tribunal, committed grave illegality to allow such application under 'Section 46 of the RoPA, 1976 appointing Commission to inspect the record of the 33 challenged Polling Stations is concerned. It may be observed that the Election Tribunals are bestowed power to inspect and examine the ballot papers of all sorts i,e, polled, rejected, or spoiled etc. Such powers could not be invoked by any party to the election Petition on mere ipse dixit nor,
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could be exercised by the Election Tribunal on its own whims and fancy and or mechanically. A Party seeking such recourse or inspection and examination of counted ballot paper has to demonstrate and show to the satisfaction of the Election Tribunal that there had been improper, reception, refusal, or rejection of votes had affected the outcome of the election materially. Election Tribunal, enjoys elaborate and extensive authority to carry out the exercise of examination of polled ballot either himself or, through commission and may order ,inspection and or to recount of the ballot papers, however, same are to be exercised with circumspection and care by application of mind on the strength of tangible and material evidence, prima facie establishing that there had been wrong inclusion or exclusion of the ballot paper in the course of ballot count that had direct and material bearing on the final outcome of the result of the election. 20. As noted above, since the Election Tribunals in Punjab were already notified and after expiry of statutory period of 60 days from notification of returned candidate, the Election Commission, had no authority to adjudicate upon the controversy as to the examination of the ballot record of challenged Polling Stations and had rightly directed the election Petitioner to approach the Election Tribunal. Similar controversy came up before this Court, in the case cited as "Ehsanullah Reki v. Abdul Qadir Baloch (2010 SCMR 1271), this Court, while examining the power of Election Tribunal, under section 46 of RoPA, 1976, held that "the Election Tribunal cannot only appoint a Commission but also direct opening of packets of counterfoils and certificates or the inspection of any counted ballot papers with a rider that in carrying into effect an order for inspection of ballot papers, care shall be taken that no vote shall be disclosed until it has been held by the Election Tribunal to be invalid". Subsection (3) of section 46 RoPA, 1976 attaches great deal of sanctity to the production of a document by the Commission appointed by the Election Tribunal, which is treated as conclusive evidence that the document relates to the election specified in the order and any endorsement made by the Commission, on any ballot paper or packet of ballot paper or documents so produced shall be prima facie evidence that the ballot papers or documents are what the endorsement states them to be. Therefore, contention of the learned ASC for the Petitioner that the Election Tribunal had no jurisdiction to appoint the Commission for the purpose of examination of polled ballot or to undertake such exercise itself, in view of discussion made above, and under given facts and Circumstances, is devoid of merits. 21. The Commission, as appointed by the Election Tribunal, was also examined as the Tribunal Witness TW-1. Lengthy cross-examination by the Returned Candidate could not demolish the credibility of the Report Ex-TW-1/A and Ex-TW-1/B, nor was he able to point out any error in the tabulated statement of votes count actually found and as relied upon by the disputants. Learned ASC for the Returned Candidate, could not bring home the objections as to authority and jurisdiction of the Election Tribunal to appoint "the Commission" and empowering "the Commission" to examine the Bags of the challenged Polling stations and submit report. 22. Before adverting to examine the power and jurisdiction of the Election Tribunal under section 67 ibid and other enabling provision to declare "the election of returned candidate void"; would amount to "declaring the election as a whole void" and as a consequence; direct the election of whole of the constituency or "partial poll" could be ordered, as has been done in the instant case. We have noted that the "Election Commission", in post election scenario, though for a limited period within 60 days after declaration of official result has to some extent concurrent jurisdiction and power to declare the "poll in any constituency" void under section 103-AA ibid, which power, is akin to the power of the Election Tribunal under…
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