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Petitioner: Syed MASHOOQ MOHIUDDIN SHAH VS Respondent: Syed FAZUL ALI SHAH And 37 Other
Court Name: Election Tribunal Judge(s): Zafar Ahmed Khan Sherwani Title: Syed MASHOOQ MOHIUDDIN SHAH vs Syed FAZUL ALI SHAH And 37 Other Case No.: Election Petition No.11 of 2013 Date of Judgment:2014-04-21 Reported As: 2014 CLC 1181 Result: Petition dismissed
JUDGMENT
JUDGMENT DR. ZAFAR AHMED KHAN SHERWANI (ELECTION TRIBUNAL).--- This election petition under section 52 of the Representation of the People Act, 1976 (the Act) is directed by one of the unreturned candidates (the petitioner) against the election of Syed Fazul Ali Shah, (the returned candidate) from the Sindh Provincial Assembly's constituency No.PS-33 Khairpur-V in the General Election held on 11-5-2013, on the ticket of Pakistan People Party Parliamentarian. The Petitioner was a contesting candidate on the ticket of Pakistan Muslim League (F) and was the runner up. He has prayed that the election of the returned candidate may be declared as void and he, having been secured the second highest votes, may be declared as the returned candidate or in alternate the election may be declared as a whole to be void ordering for the re-poll in the constituency for:--- (i)the returned candidate was not qualified to contest the election and his nomination paper should have been rejected by the Returning Officer because he had amassed wealth beyond known sources of income as he failed to disclose as to how his assets were increased 13 times more than the income he earned from the known resources in order to avoid payment of taxes or he has generated his income through illegal means as he was a member of Parliament and the Chairman of Federal Land Commission during the last 5 years, (ii)the process of poll was massively rigged at 74 polling stations as detailed in the petition by the workers or the returned candidate who had made their polling staff hostage and took control of the ballot-papers and affixed stamps on his symbol, (iii)the local administration was fully involved in his election process since before the election as the caretaker government was not neutral,
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(iv)the polling staff of different polling stations was changed by Returning Officer a day before the poll at the instance of the returned candidate and persons recommended by him were appointed as polling staff affecting materially the result of the election, (v)the Returning Officer did not call for the petitioner at the time of consolidation of result which has made entire process doubtful, (vi)the returned candidate violated the code of conduct of the Election Commission of Pakistan for the candidates and remained busy in distribution of cards Benazir Income Support Program (BISP) and of Baitul Mal. The returned candidate only filed his written statement and denied all the allegations against him, his workers and election officials and prayed for dismissal of the petition whereas, the other respondents did not contest the petition which proceeded ex parte against them. Out of the pleadings of the parties, the Election Tribunal Sukkur (where the petition was initially filed) framed the following issues:--- (1)Whether the respondent No.1 is guilty of illegal and corrupt practices as mentioned in the memo of petition? (2)Whether bogus votes were cast in favour of respondent No.1 by assigning fake thumb- impressions at the polling stations mentioned in para No.8 of the petition? (3)Whether Polling staff was changed at the Polling Stations mentioned in para No.10 of the petition? If so what is its effect? (4)Whether respondent No.1 has filed false declaration about his assets and income at the time of filling of nomination form and was disqualified to contest Election as per Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan and section 99 of Representation of the People Act, 1976? (5)What should the order be? During the proceeding of the petition this Tribunal, with consent, forwarded counterfoils of used ballot-papers in respect of 91 polling stations (74 polling stations pointed out by the Petitioner and 17 pointed out by the returned candidate), used pictorial electoral rolls and statements of count of these polling stations to the National Database and Registration Authority (NADRA), Islamabad for verification of the thumb-impressions on these counterfoils and pictorial electoral rolls from the biometric data of the voters having the National Identity Cards (NICs) which numbers were mentioned thereon through its Automatic Fingerprints Identification System (AFIS). Such report was submitted by NADRA at Exh.O-1/2 On the above issues both the parties, beside themselves, have examined the following 2 witnesses each respectively:--- (1)Mr. Mehboob Ali, at Exh.P-3 (2)Mr. Gulab Ali at Exh.P-4 (3)Dost Muhammad alias Allah Warrayo, at Exh.R-1, and (4)Muhammad Jumman at Exh.R-2 On behalf of the petitioner 3 official witnesses were also examined, namely, Mr. Abbas Sial, the Assistant Returning Officer at Exh.P-1 who produced counterfoils, pictorial electoral rolls and Forms XIV in respect of 91 polling stations, Deputy Director (Technical) NADRA Mr. Ahmed Waqas Langha at Exh.O-1 who produced the report of NADRA as well as other documents and lastly a witness from the Election Commission of Pakistan Mr. Muhammad Saeed, Deputy Director (Est.) at Exh.O-2 who produced several documents from Exh.O-2/1 to O-2/13 on the point of purchase and supply of magnetized ink by the Election Commission. Heard the learned counsel for the parties and perused the record very carefully. Before starting discussion on the above issues let the legal question raised by the learned counsel for the returned candidate at the outset of his arguments on the maintainability of the election
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petition under section 63 of the Act, may be decided. The learned counsel contended that the petitioner has not complied with the provisions of section 55 of the Act because he has not only failed to give full particulars of the illegal practices and the illegal acts allegedly committed by the returned candidate during the poll, as required under section 55(1)(b) of the Act, but also failed to verify the petition as provided under section 55(3) of the Act in terms of Order VI, Rule 15, C.P.C. by failing to mention its number of paragraphs which were based on his personal knowledge and which on his belief to be true, therefore, the petitioner has not complied with the provisions of section 55 of the Act entailing dismissal of the petition under section 63 of the Act. Learned counsel for the petitioner has opposed the above arguments and contended that the petition has been filed in accordance with the law and therefore, the same cannot be dismissed on the alleged legal infirmities. I have carefully considered the above argument in the light of the record and reached to the conclusion that the objections of the learned counsel for the returned candidate on the non- maintainability of the petition under section 63 of the Act is uncalled for as the petitioner has fully complied with the provisions of section 55(1)(b) of the Act by mentioning the full particulars of the illegal, acts allegedly committed by the returned candidate's workers at the 74 polling stations of the constituency by mentioning their names and places where the staff of Election Commission deputed for the poll was made hostage and then took the control of the ballot-papers for marking on the symbol of Arrow to ensure sham success in favour of the returned candidate. A number of other particular in respect of the allegations on the subject which were in his knowledge have been given by him in the petition, therefore, it cannot be argued that the petitioner has failed to comply with the provisions of the section 55(1)(b) of the Act with reference to his mandatory obligation to provide full particulars of illegal practice or illegal acts as far as time, place and the persons who committed the same are concerned, therefore, the petition cannot be dismissed on this point. (Reliance is placed on the case of Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan, 1999 SCMR 284). With regard to the objection of the learned counsel for the returned candidate on verification of the petition it is suffice to observe that the petitioner has verified all the contents of the petition on oath believing the same to be true both to the best of his knowledge and his belief as required under the law and if the paras have not been separated the petitioner cannot be unsuited under section 63 of the Act, 1976 for this technical shortcoming as laid down by the Hon'ble Supreme Court in the case of Molvi Abdul Qadir v. Molvi Abdul Wassay and others, 2010 SCMR 1877. It has been held that the settled question with regard to verifying pleadings notwithstanding numbered paragraphs or pleadings what has been verified on one's own knowledge and what verified upon information received and believed to be true as such provisions of law could not be considered as mandatory as one could verify the paras in pleadings on his own knowledge without verifying any para upon receipt of information as the same were believed to be true. Now after disposing of the legal question on the maintainability of the petition the issues settled by the Tribunal are taken up. ISSUE NO 1. On this issue it was incumbent upon the petitioner to prove the allegations as made in the petition by him. To discharge his burden of proof he has filed his affidavit-in-evidence and the affidavits of Messrs Mehboob Ali and Ghulam Ali. Affidavits-in-evidence of several other witnesses were also filed by him but they were not produced for their cross-examination for the reason best known to him, therefore it can be presumed under Article 129 of the Qanun-e-Shahadat Order, 1984, Illustration (g) that had these witnesses produced they would have been unfavourable to him.
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The petitioner in his affidavit-in-evidence has mentioned the same facts and the allegations as mentioned by him in his petition with reference to the alleged illegal acts including massive rigging by capturing the polling stations and making hostage of the polling staff during the poll by the workers of the returned candidate at the 74 polling stations, however, there is no corroboration of his testimony through any direct evidence as one of his own or of any other contesting candidates polling agents at these polling stations was examined to depose in his support. The evidence of these polling agents could be the best possible direct testimony on the subject but the petitioner chose to withhold the same without giving any plausible reason. The petitioner has not deposed that he had himself remained present during the polling at any polling station out of these 72 polling stations rather he deposed that he was not even allowed to enter in these polling stations and against that he complained to the Returning Officer on telephone but this statement too, remained uncorroborated as he did not examine the Returning Officer. The testimony of the petitioner will thus amount as hearsay. The evidence of his two witnesses namely Mehboob Ali and Gulab Ali, who were not his polling agents at any polling station but merely his voters at 2 different polling stations of the constituency, is only on the point of harassment to his voters by the police before and during the poll to stop them from voting in favour of the petitioner. These witnesses too have not produced any proof of being the voters at the respective polling stations therefore it is not safe to believe their testimony without corroboration from any independent witness. The learned counsel for the petitioner contended that the allegations made by the petitioner in his affidavit in evidence with regard to doing fake voting after taking control of the 74 polling stations and marking the ballot-papers on the election symbol of the returned candidate were not challenged by way of cross-examination by his counsel, therefore, these allegations stood proved and relied upon the case of Chief Engineer Irrigation Department N.-W.E.P. Peshawar and two others v. Mazhar Hussain and two others reported in PLD 2004 Supreme Court 682, wherein it has been held that if the facts in examination-in-chief were not cross-examined such part of the statement given in examination-in-chief shall be deemed to be admitted and accepted under Article 33 of the Qanun-e-Shahadat Order, 1984. In this regard it may be appreciated that the returned candidate has been denying all such allegations since filing of his written statement which were further reinforced in his affidavit in evidence, therefore in my view until and unless the petitioner independently discharges his burden of proof through tangible evidence no affirmative finding can be recorded by this Tribunal in his favour and as rightly argued by the learned counsel for the returned candidate that the burden of proof that the corrupt and illegal practices were committed during the poll by the returned candidate is to be discharged in the same manner as a criminal charge is to be proved beyond all the reasonable doubts and the petitioner has failed to do so relying upon the case of Muhammad Irfan Khan v. Javed Ahmed Chatari and 20 others 1998 CLC 1241. In view of the above discussion it is held that the petitioner has failed to prove the issue and same is decided in negative. ISSUE NO 3. On this issue also the petitioner has failed to produce any iota of evidence as neither any documentary evidence including the official record was produced by him nor the official witness on this point that any particular official was changed abruptly before the election day by the Returning Officer in violation of the Act or the Rules framed thereunder. He has only deposed in his affidavit-in-evidence that polling staff at different 18 polling stations named therein was changed a day before the polling at the instance of the returned candidate and the persons recommended by him were appointed as Presiding Officers, Assistant Presiding Officers and Poling Officers without any reason and that huge number of impartial polling personnel were removed from the election duty. This allegation was required to be proved through documentary evidence from the official
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record of the Returning Officer but no effort was made and even surprisingly, the petitioner has not given a single name of polling staff that was changed, therefore, his scanty oral evidence is not sufficient to prove the issue which is also decided in negative. ISSUE NO 4. On this issue, the case of the petitioner is that returned candidate filed his nomination paper from this constituency before the Returning Officer in the prescribed form showing his assets and liabilities in the relevant columns but did not provide any justification or resources for his increased income during the last four years which is a proof that he has amassed wealth through illegal means, therefore, he lacked the qualifications in terms of Article 62 of the Constitution of Pakistan for be a Member of the Provincial Assembly. He has made the same allegations in his affidavit in evidence and produced a certified copy of the nomination form filed by the returned candidate as Exh.P-2/1. The returned candidate in his affidavit in evidence denied the allegations and stated that at the time of scrutiny of the nomination papers by the Returning Officer none had filed any objection to his nomination challenging his eligibility, therefore, his form was accepted. He has further deposed that the increase in his income was on account of the fact that his father had expired from whom he had inherited the property. Moreover, the income also increased on account of his monthly salary that he had received as Member of National Assembly during the last five years, and the property purchased by him was from his own resources, he has paid all the taxes honestly. The learned counsel for the petitioner has argued that the returned candidate's nomination, papers itself shows anomalies in income and expenditures as the same did not show that he had paid motor vehicle taxes on the two vehicles owned by him which he was using, therefore, he was not qualified to be elected as a member of the Provincial Assembly for want of qualification as provided under Article 62(f) of the Constitution of Pakistan and section 99 of the Act and his election is therefore, required to be declared as null and void. The learned counsel for the returned candidate in his argument has denied the above arguments and contended that since the assets of the returned candidate were increased on account of inheritance from his deceased father and the same cannot be subject to any scrutiny under the election laws. He has relied upon the case of Ghazanfar Ali v. Noor Muhammad and others PLD 2011 Lahore 11. I have carefully considered the above arguments in the light of the record and reached the conclusion that the petitioner's allegation against the returned candidate with regard to his ineligibility to contest the election for lacking any of the qualifications as provided under Article 62(f) of the Constitution of Pakistan read with section 99(1)(f) of the Act was very specific and required to be proved through tangible evidence. But the petitioner has failed to bring any material on record on the basis of which it can be held that the returned candidate was not qualified to be elected as a member of an Assembly being not sagacious, righteous and non-profligate and honest and Ameen. His declaration of assets as made in the nomination form is on record and no material against that has been produced by the petitioner to contradict it and to prove that his solemn verification of assets at the end of his nomination form, Exh.P-2/1 was false. Mere allegation that the returned candidate has amassed wealth through unknown sources is not sufficient in this regard, therefore, this issue is also decided in negative. ISSUE NO. 2 This is the issue which the petitioner has mainly highlighted in his petition. On this, the case of the petitioner is that the returned candidate and his workers had committed immense bogus voting by getting control of the 74 polling stations and ballot-papers. These allegations have been mentioned in the petition as well as in his affidavit-in-evidence. He has further alleged therein that the workers of the returned candidate had affixed stamps on the election symbol of the returned
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candidate at large scale to ensure sham success and this fact could be ascertained through thumb-impressions verification process by screening the same by NADRA. The returned candidate who had emphatically denied this allegation in his written statement but acceded to the request of verification as both the learned counsel for the parties voluntarily proposed that not only the counterfoils of these 74 polling station but also of 17 other polling stations of Taluka Naara from where the petitioner got majority of the votes be also screened out. These counterfoils as well as pictorial electoral rolls and statements of Count of these polling stations were called for from the Returning Officer of PS-33. The same were produced by Mr. Abbas Sial, the Assistant Returning Officer. This material was forwarded to NADRA in 91 separate sealed bags as submitted by Returning Officer, for the thumb-impression verification vide letter of this Tribunal dated: 12th October, 2013, Exhibit O-1/1 in terms of earlier letter of confirmation by the Chairman NADRA through Director- General (NDW) dated; 22nd July, 2013 in response to the Tribunal's letter 16th July, 2013 wherein NADRA authority had confirmed its capability and capacity to examine the thumb-impressions available on the pictorial electoral rolls and the counterfoils of the used ballot-papers though AFIS on usual cost. NADRA has submitted its report through its Deputy Director, Technical (RHO) Karachi, Mr. Ahmed Waqas Langha on 1st March, 2013 vide report Exhibit O-1/2. As per report the total No. of counterfoils received by NADRA for the examination through its AFIS were 65511 but out of them 12818 counterfoils did not qualify for fingerprint matching, and on 23356 counterfoils the fingerprints were of bad quality and did not pass through the test. Out of the remaining counterfoils thumb-impressions on 29219 counterfoils were successfully authenticated. However, 118 thumb-impressions on these counterfoils failed authentication. Specimens of these counterfoils were also submitted as well as the details of the NICs numbers on these counterfoils that passed authentication test. NADRA was also asked by the Tribunal to provide details of those 12818 counterfoils that didn't qualify for the fingerprint matching as the same were either having no thumb-impression or invalid NIC number was mentioned thereon or one NIC number was mentioned on multiple counterfoils. These details were provided by NADRA vide Exhibits O-1/7, O-1/8 and O-1/9. NADRA has also sent back the material examined by it in 17 sealed cartons which were produced as Article 1 to Article 17, out of them 7 cartons were containing those counterfoils which did not qualify for the AFIS examination. On this report the learned counsel for the returned candidate filed his objections to the effect that the said report is not confidence- inspiring and has no evidentiary value. With regard to 12818 counterfoils which did not qualify for AFIS examination it has been mentioned that the same did not fall within the purview of NADRA's mandate of thumb verifications. Similarly it has been mentioned in the objections that the Election Commission and its staff were responsible for the bad quality of thumb-impressions on high numbers of such counterfoils and pictorial electoral rolls for which the returned candidate was not responsible. Due to the above objections, Mr. Ahmed Waqas Langa, Deputy Director Technical, NADRA, was examined by this Tribunal to produce the report and other documents in accordance with the law. He was cross-examined by the learned counsel for the returned candidate only. Since it was mentioned in the NADRA's report that 23356 counterfoils were bearing thumb- impression of bad quality which couldn't be analyzed and similarly the thumb-impressions on the used pictorial electoral rolls were also not examined on account of their bad quality and other reasons including that the magnetized ink and inkpads (having specific properties) which were proposed by NADRA for their use during poll were either not used or they were having no such properties which were suggested by it, therefore, on the application of the petitioner this Tribunal also examined a witness from Election Commission of Pakistan, (the ECP) on the point whether the
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use of magnetized ink was proposed by NADRA for obtaining thumb-impressions of the electors on the counterfoils and pictorial electoral rolls during the poll and whether the same was approved by the ECP and purchased for its use and if the same was purchased whether it was used at the polling stations during the poll for this purpose. The secretary, ECP was asked by this Tribunal to produce such record through its witness before this Tribunal. On this one Mr. Muhammad Saeed, Deputy Director, Establishment, ECP, Islamabad, was examined vide Exhibit O-2 who also produced the relevant report in respect of approval of the ECP regarding use of magnetized ink and the inkpad during the poll of General Election held in 2013, the proposal of NADRA in respect of magnetized ink and inkpad and the properties of the magnetized ink that was to be used during the poll, the approval of the ECP in respect of the said proposal, purchase of the said ink from Pakistan Council of Scientific and Industrial Research (PCSIR) Islamabad and the supply of the magnetized ink by PCSIR at all the provincial HQs for further transmission to the District Returning Officers and Polling Stations. These documents are at Exhibits O-2/1 to O-2/13. The learned counsel for the petitioner has argued that out of 65511 counterfoils which were sent to NADRA for forensic examination only 29219 could be verified whereas the remaining counterfoils could not be verified for different reasons which is a proof of the fact that bogus voting had taken place at these polling stations and the election process was sham which cannot be relied upon for the purpose of fair and transparent process for declaring any person as an elected representative of the people of PS-33 Khairpur under the Act, therefore, the election of the returned candidate is liable to be declared as void declaring the petitioner as a returned candidate. He has alternatively contended that this Tribunal may declare the election as a whole void under section 70 of the Act as the two conditions that required to be fulfilled before such declaration i.e. firstly that any person has failed to comply with the…
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