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Petitioner: Dr. MUHAMMAD SHAFIQ BOI KHAN VS Respondent: Hafiz MUHAMMAD TAQI and 12 others
Court Name: Election Tribunal Judge(s): Abdul Razzaq A. Thaim Title: Dr. MUHAMMAD SHAFIQ BOI KHAN vs Hafiz MUHAMMAD TAQI and 12 others Case No.: Petition No,10 of 1985 Date of Judgment:1986-06-16 Reported As: 1986 MLD 2220 (2) Result: petition allowed
JUDGMENT
JUDGMENT ' This Election Petition under section 52 of the Representation of Peoples Act, 1976 (hereinafter referred as Act) has been filed by defeated candidate Mr. Muhammad Shafi Boi Khan. He contested National Assembly Election from Constituency No,NA-185-Karachi-V, held on 25-2-1985. He has challenged the Election on the grounds that due to non-compliance of provisions of the Representation of Peoples Act, 1976 and the rules the Election as a whole is void and further that respondent No,10, Muhammad Afaq Khan (hereinafter referred as respondent) was not qualified to contest election. The allegation of corrupt practice was also made against respondent. It is charge that due to duplication of votes in the list the result has materially been affected. 2. None except respondent No,10, the returned candidate, contested this petition. He controverted all the allegations in his written statement. Respondent No,3, Sarwar Sultana filed her written statement but she did not appear for evidence. In all 13 (thirteen) candidates contested from aforesaid constituency of National Assembly. Respondent No,10, Muhammad Afaq Khan has been declared as elected. 3. On the pleadings of both the parties the following consent issues were framed:- (1) Whether the written statement filed by the respondents Nos.3 and 10 is liable to be struck of from the record for having filed beyond the time prescribed by law? (2) Whether respondent No,10, was qualified to contest the election? (3) Whether the respondent committed illegal and corrupt practices? (4) Whether impugned election is liable to be declared void as a whole for non-compliance of the provisions of the Representation of Peoples Act, 1976 and Rules for the conduct of election?
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(5) Whether petition is liable to be dismissed for non-complying the provisions of section 54 or section 55 of the Representation of the Peoples Act, 1976? (6) What should the decision be ? 4: The petitioner in support has produced documents and examined himself and. Baboo Exh.6, Shamsul Islam Exh.7, Mahboob Ali Exh.8 and Gul Muhammad Exh.9. While respondent No,10 has examined himself, Muhammad Ayub Exh.11 and Aziz-ul-Haque Exh.12. 5. I have heard Mr. Khalid M. Ishaque for the petitioner and Mr. Muniruddin Alvi for the respondent at length. They have also submitted written arguments. 6. At the outset Mr. Khalid M. Ishaque frankly submitted that he does not press Issue No,1 about late filing of written statement and affidavits of the witnesses of the respondent. Therefore, this issue is disposed off as not pressed. I had already admitted the written statement of respondent No,10. The respondent No,3 though filed written statement did not appear therefore, her written statement has not been taken into consideration and statement is kept in miscellaneous record. 7. Now I proceed to deal with Issue No,4 relating to non-compliance of provisions of the representation of Peoples Act, 1976 and Rules. The petitioner's contention is that he is registered in the Electoral Roll for the purpose of election as "Dr. Muhammad Shafi Boi Khan" and he in social, political, intellectual and in professional circle is known as , "Dr. M.S. Boi Khan" or "Dr. Boi Khan." He in his petition stated that in "National Identity Card" and in passport his name is also written as "Muhammad Shafi Boi Khan". In support, he filed certain documents with petition. He filed Nomination Form before Returning Officer of the Constituency on 19-2-1985 in which he gave his name as "Dr. Muhammad Shafi Boi Khan." In his election campaign he got printed posters his name as given in the Nomination paper and in Press his name is shown as "Dr. Muhammad Shafi Boi Khan, or "Dr. Boi Khan". In support he has submitted documents. It is argued that on 24-2-1985, one day before Polls the Returning Officer of the Constituency published a poster assigning the order of names and election symbols of the candidates in which his name is shown as "Muhammad Shafi" only and in Ballot Paper his full name was not given which created confusion which affected on the result of election. It is argued that requirement of section 21 of the Representation of Peoples Act, 1976 not complied with. ' Gul Muhammad Exh.9, Assistant Commissioner, Karachi who was Returning Officer of the Constituency has been examined by the petitioner. He has produced original Nomination Paper of petitioner Exh .9/1, receipt of nomination paper Exh .9/2, receipt of Security Deposit Exh.9/3, Election Commission Notification Exh.9/4, Photo copy of application of petitioner Exh.9/5. He has stated that after Notification Exh.9/4, the Polling Stations Nos 53, 63, 64, 65, 66, 67 and 68 were also changed but cannot 'say how many days before the election the pollings were changed. He has stated that on 2422-1985, the petitioner made complaint in writing that his name was wrongly mentioned in the poster Exh.9/6 issued- by the Election Commission. He stated that he had not taken any action on the application of the petitioner as no time was left to redress the 'grievance but he made endorsement on the application. The particulars of the candidate were supplied to him by the >Commission and Ballot Papers were also printed by the Election Commission. He got voters' list ten days before the election and assignment of voters at each Polling Station was made 20/25 days before the election. The documents produced by the petitioner and Returning Officer, in support of this allegation have not been disputed by. The respondent but he has stated in para. No,8 of- the written statement that name of respondent was mentioned in various ways and styles viz. Muhammad Afaq Khan, "M. Afaque Khan Shahid, Afaque Ahmed Shahid" and somewhere only "Afaque Shahid" as such the contention of the petitioner does not carry any weight in the eye of law.
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8. Witness No,3, Shamsul-Islam Usmani Exh.7, was Chief Election Agent of the petitioner. He has stated that petitioner is known in the constituency as "Dr. Muhammad Shafi Boi Khan", "Dr. M.S. Boil Khan" or "Dr. Boi Khan" and he is registered as voter in the Electoral Roll as "Dr. Muhammad Shafi Boi Khan". He has stated that nomination paper was filed by the petitioner as "Dr. S. Muhammad Shafi Boi Khan" and he as Chief Polling Agent informed the voters that name of petitioner will be arranged in alphabetic in Nomination paper but on 24-2-1985, Returning Officer published poster assigning the order of names and-Election symbols of the contesting candidates where full name of petitioner was not mentioned nor the names were according to alphabetic. The -petitioner - made an application to the Returning Officer requesting him to direct the Polling Officers to correct the name in Ballot papers and posters and that application was granted but no action was taken. ' He in his evidence also stated that on polling day several Polling Stations were changed without notice to electors or the petitioners. He has given particulars of such Polling Stations and Returning Office and Polling Officers who committed illegality in allocating the same number of voters on two Polling Stations of the same constituency and statement Annexure "L" filed with the petition was compared with election list b them and found correct. His evidence has not been challenged an documents relied upon by the petitioner have not been controverted. 9. It is admitted fact that petitioner is registered` as voter and his name in Electoral Roll is given as "Dr. Muhammad Shafi Boi Khan" and copy of extract from the Electoral Roll was attached with Nomination Form Exh.9/1. He filed nomination form as "Dr. Muhammad. Shafi Boi Khan son of Aziz Muhammad Khan" and it was accepted on 21-1-1985. The Returning Officer/Assistant Commissioner, Karachi West of NA-188 on 19-1-1985 received nomination paper and acknowledged receipt Exh.9/2 in which his name is given as "Dr. Muhammad Shafi Boi Khan" and same is position in deposit receipt Exh.9/3. In National Identity Card Annexture 'B' (with petition) and passport Annexure 'C' the name of the petitioner is given as stated above. It is proved that name of petitioner in ballot paper and poster was given as "Muhammad Shafi " only. It is also admitted on 24-2-1985 when petitioner came to know, he immediately made an application to the Election Commissioner. The contents of the apPlication are as follows: Dated: 24th February, 1985. "The Election Commissioner, Block No,44-A, ' Pakistan Secretariat, Karachi. ' Dear Sir, ' This is to draw your attention towards the poster by your department showing all the candidates name with their symbols. ' It is to bring to your notice that my full name Dr. Mr. Muhammad Shafi Boi Khan is not printed and only Muhammad Shafi is printed. / In my area all the voters recognise me as Dr. Boi Khan. Thus, It was very essential that my full name as Dr. Muhammad Shafi Boi Khan should have been printed. ' Now as there is no time, left any correction it is requested to kindly direct all the polling stations to correct my name as Dr. Muhammad Shaft Boi, Khan with marker and I should also be permitted to personally or through my appointed agent may correct the posters displayed inside and outside the polliqg stations by marker. Thanking you, Yours faithfully, (sd)Dr. Muhammad Shafi Boi Khan." ' On 'the very day an application was also presented an 'application before Returning Officer Exh .9/5 and it was allowed but no correction could be made in posters and ballot papers. ' The petitioner has produced so many press-cuttings and other documents showing that during his election compaign he has been notified as candidate in the name of "Dr. Muhammad Shafi Boi Khan" and he got printed his posters and other material in the same manner but due to illegality committed by Election Commission the results of election were affected. The above averments are on the factual side. Now it is to be seen whether such non-compliance of provisions of Act and
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Rules have materially affected on the result of elections. Section 12 of the Representation of the Peoples Act, 1976 deals with nomination of candidate. Subsection (7) of sectin 12 reads as under:- "12(7).--The Returning Offier shall cause to be affixed at a conspicuous place in his office a notice of every nomination paper received by him containing the particulars of the candidate a shown in the nomination paper." ' Under section 15 of the Act, the Returning Officer shall after the scrutiny of nomination papers, prepare and publish in the prescribed manner a list of validly nominated candidates. Section 21 of the Act is as follows: "21(1) If there are more contesting candidates than one in respect of a constituency, the Returning Officer shall (a) prepare a list of contesting candidates in which their name shall be arragned in the alphabetical order of the Urdu language (b) allocate one of the prescribed symbol to each contesting candidate by drawing a lot, and (c) give public notice of the poll. (2) The Returning Officer shall arrange and exhibit prominent) at each Polling Station the name and symbol of each contestin candidate" ' The same procedure is given in the Representation of the Peopl. (Conduct of Election) Rules, 1977. Under Rules 6 and 7 the list validly nomited candidates and contesting candidates is to be drawn u in the forms IV and V. The names are to be entered in Urdu, in t alphabatical order and copy to be furnished to Provincial Electio Commissioner of the Province and also to each of the contest?: candidates. The forms IV and V are reproduced as under: FORM IV (See rule 6(1)) LIST OF VALIDLY NOMINATED CANDIDATES National Assembly Election to the Provincial Assembly of the Punja Si the Nor West Fronti Province Baluchista From ........................................................................... Constituency Serial No, Name of candidate Name of father/ Address of husband Candidate 1 2 4 (BALLOT PAPER PRINTING) lace................................................. Date ............................................................................................................... Returning Officer FORM V (See rule 7(1)) LIST OF CONTESTING CANDIDATES National Assembly Election to the Provincial Assembly of the Punjab Sind the North-West Frontier Province Baluchistan From-- ......................................................................... Constituency Serial No.Name of candidateName of father/ husbandAddress of Candidate 1 2 3 4 (BALLOT PAPER PRINTING) Place ....................... Date---------------.. Returning Officer FORM V (See rule 7(1)) LIST OF CONTESTING CANDIDATES National Assembly
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Election to theProvincial Assembly of thePunjab Sind the North-West Frontier Province Baluchistan From: Constituency Serial No.Name o the contestingAddress of theSymbol candidates in the Urducontestingallocated alphabetical order withcandidates. their English translation. 1. 2. 3. 4. etc. Notice is hereby given that the poll shall be taken the hours Of---------------------- on (date) ---------------------- Place---------------------- Date----------------------Returning Officer. There is clear non-compliance of sections 12(7), 15 and 21 of the Representation of the Peoples Act, 1976. The Ballot papers, posters do not contain the particulars as given in the nomination and list of validly nominated candidates is not published in the prescribed manner. A In both the relevant sections the word "shall" appears and therefor compliance is mandatory. The Returning Officer had no option but to publish list and ballot papers according to particulars as given in the nomination paper. The Returning Officer is bound to prepare list of contesting candidates in their names to be arranged in alphabetical order in Urdu as provided under section 21 of the Act. The name of petitioner in the ballot paper appears in the end. Had his name been correctly printed and published, the position could have been otherwise. The Returning Officers are not authorised by law to delete some portion of name or add contrary to the record. Reliance is placed on a case of Ghulam Rasool v. Additional Commissioner, Revenue and another reported in 1983 CLC 2441. In that case ballot-box of the petitioner was not kept according to alphabetical order as required by rule 31(d) of Punjab Local Council (Election) Rules, 1979. The ballot-boxes of the District Council, Election were mixed up with those meant for Union Council Election and there was cross-casting of votes. The election as a whole was declared as void by the Election Tribunal. The order was challenged by way of Constitutional Petition which was dismissed as it was observed at page 2445 as under-- "Since in Urdu alphabetical order comes first and subsequent thereto, therefore, the box of respondent No,2 which according to the learned counsel was placed in the end was not placed in its right and real place. The confusion created in the election by this irregularity committed by the. Presiding Officer is apparent from the number of the votes which were cancelled as mentioned in Annexure 'A'. To us, this is a failure on the part of the Presiding Officer to comply with the provisions of the Ordinance within the meaning of rule 31(d) and alone was sufficient for the declaration of election as a whole to be void." ' In Election Petition No,4 of 1985, decided by Election Tribunal/Judge of this Court Mr. Justice Saleem Akhtar it was held that on account of misprinting of ballot-paper had affected the exclusion of the petitioner from the Election, and it is breach of provision of Act and Rules.
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' Mr. Khalid Ishaque, learned counsel for the petitioner has argued that his full name is "Khalid Ishaque". In case somewhere if only "Mr. Khalid" is mentioned nobody will understand if Mr. Khalid Ishaque had appeared. There is force in his arguments. Moreover, this illegality was realised by the Returning Officer and he passed such order and allowed the application of petitioner but no relief could be extended to the petitioner and his name could not be corrected in the ballot-papers posters. The petitioner made such protest before the proper authorities as soon as he came to know. There may be hundred in name "Muhammad Shafi" in the constituency. In poster published by Election authorities, the full particulars of other candidates are given. For instance first name which appears in poster is "Hafiz Muhammad Taqi and serial-wise names of other candidates as given in the poster ballot-papers are as under: (1) Hafiz Muhammad Taqi (2) Haider Ali Moolji (3) Sarwar Sultana (4) Syed Akbar All Pirzada (5) Syed Aleemuddin Ahmed (6) Shaikh Muhammad Zaheeruddin Babar (7) Faizullah Azad (8) Kazi Syed Hamid Hussain Izzat (9) Qaisar Jameel (10) Muhammad Afaq Khan (11) Muhammad Zaki (12) Muhammad Rizwan Akhtar (13) Muhammad nazi (14) Muhammad Umer ' This violation of mandatory provisions of Act and Rules not exhibiting proper name of petitioner in ballot-paper according to alphabetical ofC rdu has clearly affected the result a the election. ' Now I come to the next question -regarding change of -Polling Stations. In petition it is averred that on polling day the Polling Stations Nos.53, 63, 64, 65, 66, 67 and 68 were changed without due notice to the electors or petitioner and due to that change about 10,000 voters - have been defranchised Mr. Gul Muhammad, Returning Officer Exh .9, in his evidence had admitted that above Polling Stations were changed but cannot say how many days before the Elections. Be'has not produced any Notification. He has stated that assignment of voters at -each Station was made 20/25 days before the Election and he got voters list about 10 days before the election. The respondent in his written statement had not disputed the change of Polling. Stations but stated` that this change if at all had affected all the candidates, but nobody came to complain. The relevant section regarding fixing of polling stations is given in section 8 of the Act which is reproduced as under: "8. Polling station.--(1) The Returning Officer shall, before such time as the Commission may fix, submit to the (District Returning, Officer) a list of polling stations he proposes to provide in a constituency for the purpose of election of a member for that constituency. (2) Subject to the direction of the ,Commission, the District Returning Officer may make such alterations in the list of polling - stations submitted under subsection (1) as he deems necessary and. Shall, at least fifteen days before the polling day, publish in 'the official Gazette the final list of polling stations specifying the electoral area the electors whereof will be entitled to vote at each polling station. (3) The Returning Officer shall establish in each constituency 'polling stations according to the final list published under subsection (2).
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(4) No polling station shall be located in any premises which belong to, or are under the control of, any candidate." The District Returning Officer under subsection (2) of section may make such alterations in the list 'of polling stations submitted under subsection (1) subject to the direction of the Commission but I hall be published at least fifteen days before the polling day. The Returning Officer has stated that there was some change in polling stations one week before the election. He has only produced virile notification, dated 9th February, 1985, the Revised Notification by which change was made has not been produced. From the evidence it is clear that there is non-compliance of section 8 of the Act. It is also argue that in the Electoral List of the Constituency names of about six thousand voters have been repeated in Electoral List and on several polling stations these double entries have affected the result of election and casting of votes by six thousand on different polling stations will affect the result to the extent of fifteen thousand. In support the petitioner produced documentary evidence and such list is at Annexures 'K' and 'L' showing the same persons are registered voters in the list twice or -thrice. From the perusal of list it is clear that names showing father's name address of so many voters are listed in the voters list of the constituency and Annexure 'L' is also. Clear. Mehboob Ali, Election Officer Exh .8 has produced Electoral List of NA-188, Karachi-V West as Exh.8/2. He has also produced copy of extract Exh.811, showing name of petitioner as "Dr. Muhammad Shafi Boi Khan". The respondent on this allegation challenged the validity of this point and he filed application under section 29 of the Electoral Roll Act, 1974, Mr. Muniruddin Alvi submitted' that Electoral roll cannot be challenged by the, Tribunal. It was decided by the consent that his application will be disposed of while deciding the petition. The validity is not bein questioned but it is to be seen if this has materially affected the result of the elections. In my view from these documentary evident the results of election have materially been affected. In case reported in Rashid Ahmed Rahmani v. Mirza Barkat Ali, PLD 1968 SC 103 in has been held by the Supreme Court that Tribunal in Election Petition can competently go into question of correctness or otherwise of an electoral roll. The relevant observations in the judgment are at page 307/D, reproduced as under: "In the instant case the question is otherwise. The name of respondent Mirza Barkat All has been included in the electoral roll not in accordance with law but in clear disregard of the mandatory provisions of sub-rule (3) of rule 22. Hence, it is not a question of an irregularity which has arisen exclusively out of the manner in which the Registration Officer has performed his duties. Hence, the validity of his action must be judged in relation to the peculiar circumstances of the case. ' We are alive to the fact that this complaint did not relate to anything done at the polling but was due to official actions antecedent to the polling. Normally, a Tribunal cannot enter into such questions because the electoral roll is conclusive on a Tribunal unless there be some personal disqualification. It is, however, not necessary to enter into the question whether inclusion of the name of Mirza Barkat Ali in violation of sub-rule (3) of rule 22 could be disregarded as a personal disqualification and whether it was a case of improper acceptance of the nomination paper. It will suffice to say that this is one of the extreme cases where the Tribunal, for justice and fairplay and in public interest, has set aside the election because the Registration Officer in violation of his statutory duty amended the final electoral roll and the authorities concerned declined to exercise their jurisdiction in the matter. In these circumstances, the Tribunal was justified to act in aid of justice to give relief to the appellant. To hold that though the voter has a right to claim that the Registration Officer should perform his statutory duty, yet he has no remedy in the situation that has arisen, would amount to denial of statutory right to him. Such a proposition cannot be accepted. ' Apparently the names of thousands of voters are given two or three places in electoral roll of same constituency and such lists were supplied to polling officers and those persons as the case is
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entitled to cas voters in different Polling Stations of the same constituency therefore, it is clear that there is gross negligence, illegality in corporating th names of some persons twice or thrice in the constituencies. Some times it happens that name of voter appears in different places and different constituency of the country and voter has an option to cast vote at one place but in the present case there is hardly justification to include the name of same persons showing same address, particulars to enable them to cast vote at different Polling Stations- of the same constituency. The allegation is supported by documentary evidence. ' Now I come to Issue No,2 regarding disqualification of respondent Afaq Muhammad Khan. In para. 17 of the petition it is stated as under: "17. That the returned candidate namely respondent No,10 secured his election through malpractices and misrepresentations, which are as under:- (i) during the election he held himself out as Champion of the persons who identified themselves as belonging to the Community of Biharies coming from region known as Bihar, and repatriated from former East Pakistan. This was in contravention of the prohibition under section 58 of Senate (Election) Rules, 1975 against contesting the election sectarian, linguistic…
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