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Petitioner: Muhammad Bux VS Respondent: Shahid Thahim
Court Name: Sindh High Court Judge(s): N/A Title: Muhammad Bux vs Shahid Thahim Case No.: Election Petition No.S-19 of 2018 Date of Judgment:2022-08-13 Reported As: 2022 SHC 350 Result: Petition Dismissed
JUDGMENT
JUDGMENT AMJAD ALI SAHIT O, J. This election petition, under section 139 read with section 142 of the Election Act, 2017 (which hereinafter is referred to as "the Act of 2017"), is directed against the declaration of respondent No.1 through notification bearing No.F.2(40))/2 018-Cord. dated 07th August 2018 as the returned candidate after the General Elections-2018. Election to Constituency of Provincial Assembly PS-45, Sanghar-V , was held on 25.07.2018 (which hereinafter is referred to as "said Constituency"). Petitioner and respondents No.2 to 18 have contested the General Elections-2018 for said constituency . Petitioner was the candidate of the Pakistan Democratic Alliance (GDA) while respondent No.1 is the candidate of Pakistan People's Party Parliamentarian (PPPP). Petitioner obtained 31206 votes whereas respondent No.1 obtained 45818 votes with a difference of 14612 votes, as such, respondent No.1 has been declared as a 'Returned Candidate' in the General Elections- 2018. 2. It is alleged by the petitioner in his election petition that the election functionaries have committed illegalities and irregularities during the election process. Some of the voters other than the said constituency cast their votes, therefore, the votes are required to be verified through NADRA. Before the announcement of the election, the party of respondent No.1 was in government and influenced the interim government, District Police and District Management, Local Government represe ntatives, Chairman District Council, Municipal Committee and others who were belonging to PPP. The polling staff was appointed mostly from Education Department as Presiding Officers, and Assistant Presiding Officers and those education employees were issued threats for stoppage of their salaries if failed to act as per instructions of the Taluka Education Officer Primary . An FIR was also lodged by the Mukhtiarkar . The agents of the petitioners were ousted from the polling stations and not allowed to participate in the counting process of results at polling stations. The polling agents of the petitioner detailed as below were not
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allowed to sit in the polling stations and look after the interest of the petitioner as well as smooth, honest and independent process of the polling. SR. NO.NAME OF POLLING AGENTPOLLING ST ATION NUMBER AND NAME 1. Muhammad Rakhil 66. Ghulam Haider Bagrani. 2. Waqer Ahmed 87 GHS Ghulam Muhammad Leghari. 3. Noor Ahmed 57 GHS Ghulam Muhammad Leghari. 4. Shafi Muhammad 64 Allah Bachayo. 5. Waseem Haman 58 Khuda Dad Kapri. 6. Ali Ahmed 58 Khuda Dad Kapri. 7. Manzoor Hussain 84 Maldasi. 8. Muhammad Hassan 58 Khuda Dad Kapri. It is further alleged by the petitioner that the Form-45 issued at some polling statio ns did not contain signatures of the polling officers or somewhere thumb impressions were missing. Even at some polling stations result was provided on white rough paper without showing the votes secured by all the candidates and the total number of ballot papers received from R.O. and showing the number of spoilt ballot papers. The petitioner in his petition has also alleged that several spoiled votes were wrongly counted in favour of the candidate of PPP. The polling agents agitated before the Presiding Officers for such an illegal and malafide act on their part and other polling staff but they were threatened either to get out from the premises of the polling station or to face consequences of arrest and detention at the hands of police and other agencies; however , forcibly they were removed from the polling station and were not provided Form-45 after counting process. The petitioner has alleged that the result of the count was prepared on Form-45 by the incompetent Presiding Officers with irregula rities and illegalities. The Form- 47 showed rejected votes, as such, the petitioner has reasons to believe that the votes have not been counted properly , therefore, he moved such application to the R.O. on 27.07.2018 for recounting of votes polled in the said Constituency; however , the said application was dismissed by the R.O. on 27.07.20 18 without any specific direction for a recount of votes polled in the said Constituency and on the grounds vague in nature. The petitioner has further alleged that respondent No.1 / returned candidate has concealed his properties and assets, therefore, he is liable to be declared disqualified in terms of Article 63 of the Constitution of the Islamic Republic of Pakistan, 1973. The petitioner , therefore, filed an instant election petition with the following prayers:- (a) Declare that the election of respondent No.1/returned candidate is void, ab-initio and the petitioner has been duly elected by securing a higher number of votes than respondent No.01. (b) That the Notification dated 07.08.2018 of the respondents No.01 as returned candidate is illegal, unlawful, void, ab-initio, unconstitutional and tainted with illegal and corrupt practice and liable to be set-aside. (c) To suspend the operation of a notification dated 07.08.2018 whereby respondent No.01 has been declared as returned candidate from the Constituency of PS-45, Sanghar-V , till the final disposal of the petition. (d) That the notification declaring respondent No.01 as returned candidate for the election 2018 held on 25.07.2018 of PS-45 Sanghar-V be set-aside and respondent No.01 be declared as disqualified under Article 63 of the Constitution of Islamic Republic of Pakistan. (e) To call the entire record of General Election 2018 pertaining to PS-45 Sangh ar-V including the ballot papers Form-45, Form-46, Form-48, rejected votes, un-used Ballot papers and all the other relevant record material and conduct an immediate recount under the supervision of this Honourable Tribunal or the Registrar High Court, (f) That without prejudice with the above recount may pleased be ordered for all polling station of the constituency which held in the absence of the polling agents with providing the Form 45. (g) That National Database and Registration Authority (NADRA) may be directed to verify the thumb impressions of the voters of the polling stations. (h) That any other relief be granted by the Hon'ble Tribunal being fit and proper in the circumstances of the ease.
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3. In response to notices issued by this Tribunal to the respondents through all possible modes for effecting service upon them, only respondent No. 1 being returned candidate has chosen to contest the petition and submitted his written statements while the rest of the respondents failed to contest the instant petition, as such, the respondents No. 2 to 18 were declared ex-parte by this Tribunal while official respondents No.19 and 20 were debarred from the filing of their written replies vide order dated 07.1 1.2018. 4. Respondent No. l while denying the allegations of the petitioner in his written statement has submitted that he filed the nomination paper as per requirements in the Nomination Form and also submitted his wealth statement of FBR duly reconciled of last three preceding years. The petitioner only filed the objections upon the nomination of respondent No.1 at the time of scrutiny before the R.O.; however , after hearing the parties the learned R.O. accepted the nomination of respondent No.1 and the petitioner did not file any appeal against acceptance of his nomination before the appellate forum. He further submitted that none of the voters of the said constituency filed any objection to the nomination of respondent No.1. It is further submitted that at the instance of the petitioner , one Muhammad Hassan Chhuto being a voter preferred Appeal bearing No.88 of 2018 before Election Appellate Tribunal, Sukkur against the acceptance of nomination of the respondent No.1, however , it was dismissed. Again said Muhammad Hassan Chhuto filed C.P No.D-2333 of 2018 in the Hon'ble High Court of Sindh, Circuit Court at Hyderabad against the dismissal order of Election Tribunal, PS-45, Sukkur , which was also dismissed after hearing the parties. He added that the election was conducted under the supervision of one of the honest Judge of Judiciary as well as Army personnel; and as per the petitioner , if any illegality or irregularity was being committed at the police station, he did not record such complaint before any of the Presiding Officers or R.O. or any of the election authorities. As far as the allegation that the voters other than the said constituency cast their votes 'is concerned, respondent No.1 has submitted that the electoral list of all the constituencies was supplied by the Election Commission of Pakistan on cost and the same were prepared and published by the NADRA. The FIR as stated lodged by Mukhtiarkar was disposed of under 'C' class by the learned Judicial Magistrate-I, Shandadpur on the report of Investigating Officer/ SHO PS Shahdadpur but this fact has been concealed by the petitioner knowingly and deliberately . The election process was conducted under the supervision of R.O. as well as army personnel fairly, honestly , smoothly , impartially and independently; during the poll, no complaint was made by the petitioner to the R.O. or any authority , In response to the allegation of the petitioner that as many as eight polling agents were not allowed to sit in the polling stations and look after the interest of the petitioner as well as the smooth, honest and independent process of the polling, respondent No.1 stated that the petitioner has failed to examine all these polling agents but out of them, he has filed affidavits of two. He further stated in his written reply that a free and fair election was held, therefore, notification was issued by the Elect ion Commission of Pakistan. He submitted that petition is not maintainable ; it is bad for misjoinder and non-joinder of the parties. He pointed out that the Election for NA-217 Sanghar-III as well as PS-45 Sanghar-V was carried out by the same Presiding Officers and their polling staff at all the 136 polling stations. The petitioner was a candida te for the said constituency and one Mahi Khan Wassan was the candidate from NA-217 Sanghar-III from the same political party i.e. GDA but said candidate Mahi Khan did not level any allegation regarding corrupt practice or illegal practice against the Presiding Officers and their staff; hence, it shows the free, fair and impartially conducts of an election. All the Forms-45 of 136 polling stations of the said constituency and all other constituencies were available on the website of ECP including Forms-46, 47 & 48. Respondent No.1 has stated that the petitioner secured 31206 votes while he secured 45818 votes with the lead of 14612 more votes from the petitioner , and the total invalid votes of all the candidates are 3878 votes; however , the petitioner or any other candidate did not challenge even a single vote during the poll, which manifestly demonstrates that the election was carried out fairly, impartially , honestly and independently; and that since there is no tender vote, there fore, the question of re-checking does not arise. He stated that all the allegations of the petitioner are based on fabrication, Therefore, respondent No.1/returned candidate prayed for dismissal with special costs. 5. From the pleadings of parties, the following issues were framed:- 1. Whether the petition is not maintainable under the law?
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2. Whether the persons appointed to perform functions in connection with an election for the constituency PS-45, Sanghar-V , in the General Elections, 20I8 are guilty of violations of their of ficial duties? 3. Whether the election and result of the returned candidate / respondent No.1 Shahid Thahim for constituency PS- 45 Sanghar-V in the General Elections, 2018 has been procured by corrupt and illegal practices? 4. Whether the declaration of respondent No.1 as returned candidate may be declared as null and void? 5. What should the decision be? 6. After framing of issues, the petitioner examined Muhammad Bux examined hims elf and produced a memo of an election petition and his affidavit-in-evidence including numerous documents. He also examined his witnesses being polling agents namely Manzoor Hussain and Muhammad Hassan. Witness Manzoor Hussain produced his affidavit-in-evidence. Thereafter learned counsel closed side of petitioner's evidence through the statement. The contesting respondent No.1 /returned candidate Shahid Thahirn examined himself and produced his affidavit-in- evidence as well other documents which include Form-48, notification of ECP, Forms-45 etc. and then his counsel closed the side of evidence. 7. Learned counsel for the petitioner while reiterating the contents of the petition mainly contended that the petition is maintainable as all the requisite provisions of the Act of 2017 have complied. He contended that the petitioner has fully established his case that the returned candidate in connivance of the polling staff has secured the election result in his favour . He contended that a number of votes of the petitioner were wrongly rejected/spoiled and counted in favour of the returned candidate though the same pertained to the petitioner . He further contended that the petitioner has raised his voice against the undue favour given to the returned candidate by the polling staff belonging to the ruling party i.e. party of the petitioner , but none listen to the petitioner even R.O. failed to take action against them. The valid votes of the petitioner were not counted and thrown out by corrupt and illegal practice to favour the returned candidate under influence of functionaries. Learned counsel has contended that the petitioner was deprived of the recount of votes inspite of requests before the consolidation of results in terms of section 95 (5) of the Act of 2017. It is further contended that the agents of the petitioner were not allowed to enter polling stations by the staff and the police. He further contended that if all the votes without spoiling could have been included in the count, the petitioner must have won the election with a clear margin but dishonestly he was deprived. He further contended that respondent No.1 belongs to the ruling party and on the day of polling used the entire government machinery in his favour . He therefore, prayed that the election of respondent No.1 be declared as void and consequently , an entire fresh poll be conducted. 8. Conversely , learned counsel appearing on behalf of respondent No.1 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 in the presence of law enforcement agencies deployed on all the polling stations, the entire poll was conducted peacefully . He contended that the petition er has taken the plea that respondent No.1 belongs to the ruling party , therefore, he overpowered on the election process is totally false and contended that after the announcement of the election and before the poll an interim setup was made, the entire process of election was supervised by the Election Commission of Pakistan and R.O., thus, no question for rigging or procuring results through corrupt and illegal practices can be made. He further contended that the whole polling staff was appointed by the Returning Officer and all the members of the polling staff were government employees; therefore, they being impartial acted in accordance with Election Act and Rules 2017; that if there was any calamity on their part of polling staff, the petitioner had failed to complain in writing before Returning Officer or any forum; that the petitioner failed to prove and place on record such convincing material before R.O. while praying for a recount of the votes; even the margin for the victory of respondent No.1 is/was more than 5% and more than 10,000 votes, hence. the recount of the votes was not mandatory to be made by the R.O., the Returning Officer has rightly dismissed the application for recounting of the votes, The request se made by the petitioner for a recount of votes was also not within the parameters of the case reported as "JAM MADAD ALI v. ASGHAR ALI JUNT O and others" (2016 SCMR 251) wherein the criterion settled in the case of "BHABHI v. SHED GOVIND and others" (AIR 1975 SC 2117) has been referred by the Hon'ble Supreme Court of Pakistan. He also contended that the petitioner has referred registration of FIR lodged by Mukhtiarkar concerned during an election, but he has concealed the real facts as the said FIR
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was disposed of under 'C' class by the learned Judicial Magistrate-I, Shandadpur on the report of Investigating Officer. The petitioner has leveled allegat ions against the polling staff but he has also failed to examine any of the Presiding Officers, Assistant Presiding Officers or Polling Officers to validate his allegations. Learned counsel has further contended that there was no violation on the part of the polling staff in the smooth process of election; therefore, the petitioner has not examined any of the members of the polling staff and without their examination, the election of the respondent No.1 cannot be disturbed. He contended that though as per the allegation of the petitioner , eight polling agents (mentioned in pare No.15 of the memo of petition) were not allowed to sit in the polling stations to look after the interest of the petitioner and smooth, honest and independent process of the polling, the petitioner has failed to examine all the polling agents, however , only examined two polling agents namely Manzoor Hussain and Muhammad Hassan, whose evidence is also not of such potential to accept such bogus entreaty . Both these witnesses have not produced their agentnamas to show that they were polling agents al the petitioner . Even they have admitted in their cross-examination that they have not filed any complaint with their affidavit-in-evidence or election petition but only made verbal requests. Learned counsel contended that Form-45 and 46 were provided to all the agents of the petitioner and other candidates and there was no complaint made at the relevant time from any of the agents of the petitioner or petitioner himself, therefore, taking such plea in the election petition has no hearing. He pointed out that if any unintentional error is made during the process of election, which cannot be made a basis for depriving respondent No.1 of his being elected as a returned candidate. So far as the charge of illegal and corrupt practice is concerned, learned counsel argued that it is well-settled law that such a charge is to be proved like a criminal charge; allegations of corrupt practice are required to be established by settling faultless evidence by giving a date and time at the specific place i.e. polling station but in this petition, no such evidence is brought by the petitioner , therefore, mere allegations of corrupt practice without material cannot be proved only on suspicion and failure thereof always goes in favour of the party against whom such allegations are leveled. Learned counsel further pointed out that the petition er himself has admitted during cross-examination in his evidence by deposing that he has not specifically mentioned the names of presiding officers that on what date, time and place they have allegedly not performed their duties in accordance with law; that petitioner has also admitted in his cross-examination that he has not disclosed the name of that government officer who has influenced the government servants to cast the votes in favour of the respondent No.1; even the petitioner has failed to mention in his election petition the names of delinquent officers/of ficials/polling staff, who have made illegal or corrupt practice at what date, time and place. According to learned counsel, the petitioner in his evidence has produced Photostat copies of Forms-45/46 which are not admissible under the law and while rebutting the plea of the petitioner that he has moved an application through his counsel for certified true copies to R.O. but he refused, but the petitioner has not submitted such proof. That the petitioner has only raised objection against the nomination of respondent No.1 but after acceptance of the nomination of respondent No.1, he did not challenge the same; and, none of the voters filed an abjection on the nomination of respondent No.1 before the learned Returning Officer; however , after acceptance of nomination of the respondent No.1, a voter namely Muhammad Hassan Chhutto in league with the petitioner preferred Appeal before the Election Appellate Tribunal, Sukkur , which was dismissed. Again said voter filed a Constitutional Petition bearing No.D-2333 of 2018 before the Hon'ble High Court of Sindh, which was also dismissed. Therefore, the plea taken by the petitioner subsequently in respect of wealth of the respondent No. 1 has nothing but only an aerial ground in the election petition without any force or corroboration by any valid document. That the electoral lists of entire constituencies were provided by the Election Commission of Pakistan, the same was prepared and published by the NADRA categorically for the voters of their respective jurisdictions; therefore, the plea of the petitioner for casting votes by the voters beyond the jurisdiction of his constituency is forged and false as each and even, voter is being identified/verified by the polling staff in presence of polling agents of the candidates; if the position was so; then there is no complaint in this regard available to have been moved before the Presiding Officers or Returning Officer. That the petitioner has unnecessarily prayed in his prayer claus e (g) for verification of thumb impressions of the voters of all the polling stations through NADRA without any justification or cogent reasons. Learned counsel has further contended that a free and fair as well as impartially and independently election was held under the supervision of Returning Officer
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and Army and no complaint was made by the petitioner to the Returning Officer or any other authority in respect of any illegality or irregularity on the part of polling staff, The petition is not maintainable. He has pointed out that the Election for NA-217 Sanghar-Ill as well as PS-45 Sanghar-V was carried out by the same Presiding Officers and their polling staff at all the 136 polling stations, The petitioner was a candidate for the said constituency and one Mahi Khan Wassan was the candidate from NA-217 Sanghar-Ill from the same political party i.e. GDA but said candidate Mahi Khan did not level any allegation regarding corrupt practice or illegal practice against the Presiding Officers and their staff; hence, it shows the free, fair and impartially conducts of an election. All the Forms-45 of 136 polling stations of the said constituency and all other constituencies were available on the website of ECP including Forms-46, 47 85 48. Learned counsel contended that the petitioner secured 31206 votes while respondent No. 1 secured 45818 votes with the lead of 14612 more votes from the petitioner , and the total invalid votes of all the candidates are 3878 votes; however , the petitioner or any other candidate did not challenge even a single vote during the poll, which manifestly demonstrates that the election was carried out in free, fair, impartial and transparent manner; and that since there is no tender vote, therefore, the question of re-checking does not arise. He stated that all the allegations of the petitioner are based on fabrication. Lastly , learned counsel has prayed for the dismissal of the instant petition with special costs. 9. 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 of ficials or in contravention of mandatory provisions of the Act of 2017 was made. 10. Heard and perused the material available on record with the able assistance of counsel appearing on behalf of respective parties. 11. Issue No.1. (Whether the petition is not maintainable under the law?). This issue relates to the maintainability of the instant petition. Nothing has been brought on record by the respondents to show that the petitioner has failed to file instant election petition beyond the prescribed provision under the Act of 2017 and Rules thereto. The petitioner has filed a list of witnesses; affidavit-in-evidence of petitioner; affidavit of service; original receipt of challan and courier receipts. There is also absence of…
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