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Petitioner: ANWAR SAIFULLAH KHAN VS Respondent: Haji MUHAMMAD KABIR KHAN
Court Name: Election Tribunal Judge(s): Nasir-ul-Mulk Title: ANWAR SAIFULLAH KHAN vs Haji MUHAMMAD KABIR KHAN Case No.: Petition No,62 of 1997 Date of Judgment:1999-06-07 Reported As: 2000 MLD 46 Result: petition allowed
JUDGMENT
JUDGMENT ' This election petition under section 52 of the Representation of the People Act, 1976 has been filed by Anwar Saifullah Khan, a contesting candidate for election held on 3-2-1997 to the Constituency NA-20 Lakki Marwat Bannu, to question the results of the polling whereby Haji Muhammad Kabir Khan, respondent No,1, was declared the returned candidate. According to unofficial announcement of the results on 4-2-1997, respondent No,1 led by a margin of 747 votes, respondent securing 34948 as against 34201 polled by the petitioner. In the official count made on 17-2-1997, when the result was being consolidated by the Returning Officer, the winning margin of respondent No,1 was reduced to 353 votes when it was found that he had polled 35772 votes and the petitioner 35419 votes. There were 6 other contesting candidates but they legged far behind as the candidate who obtained the third highest number of votes could only poll 6544 votes. All the contesting candidates were impleaded as respondents but only respondent No,1 contested the election petition. 2. The petitioner has in the election petition alleged the commission by respondent No,1 of corrupt and illegal practices in the election and the deliberate failure of the, District Returning Officer and the Returning Officer to comply with the provisions of the laws relating to elections. The incidents of allegations are spread out in 19 paragraphs in the petition. Since the details of these incidents are comprehensively incorporated into the 24 issues that were framed, it will be convenient, for the purpose of knowing the nature of the allegations, to reproduce the materially significant issues:--- ' Issues Number: (6) Was no polling held and female voters deprived of their right to vote at female polling booth of Polling Station No, 101, Biland Khel because of the collective decision of the elders of the village to
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this effect, as stated in para. 7 of the written statement? (7) Was polling at female polling booth of Polling Station No, 102, Shahbaz Khel started after 12.00 noon and stopped at 4.00 p.m. Thus, denying a large number of female voters the right to vote, if so its effect? (8) Were a number of registered voters as mentioned in para. 10-D of the petition refused ballot papers and, thus, prevented from/deprived of their right to vote, if so, its effect? (9) Whether a large number of persons in the service of Pakistan had applied for postal ballot but were not issued/did not receive the same till consolidation of result and they presented themselves for vote at the polling stations concerned but were not issued ballot papers and, thus, disenfranchised, if so, its effect? (10) Whether some registered voters of Polling Station No, 93, Khero Khel Pacca, who were not qualified to nor had applied for issued postal ballot, were refused ballot papers, thus, deprived of their right to vote, if so, its effect? (12) Whether some persons in service and registered as voters at Polling Station No, 93 had not applied for/issued ballot papers but were refused ballot .Papers when they presented themselves for vote because the words PB were written in the electoral roll against their names and, thus, disenfranchised? (14) Whether after express close of poll at Polling Station No, 55, Daddiwala, a number of persons were called and they polled their votes, as alleged in para. 10-J of the petition, if so, its effect? (16) Whether polling at Polling Station No, 47, Wanda Samandi was started late and stopped completely by the Presiding Officer at 2.30 p.m. And voters present inside the Polling Station till about 11.00 p.m. Were not issued ballot papers to poll their votes and, thus, disenfranchised? If so, its effect? (18) Whether ballot boxes of Polling Station No,68, GMS Mela Shahab Khel were removed by the Presiding Officer at close of poll to some unknown place and votes counted without notice to and in absence of polling agents of the petitioner, if so, its effect? (20) Whether election material of 31 polling stations as stated in para. 10-N of the petition was not sent to the Returning Officer but dumped at Bannu, remaining in unauthorised possession there and then transported on the following day to Lakki in a conveyance supplied by respondent No,1? If so, its effect? (21) Whether all the polling bags were unauthorisedly withdrawn by the Returning Officer from the treasury on 15-2-1997, without notice to the candidates and kept with him for more than 8 hours, if so, its effect? (22) Whether the election material polling record was tampered, during this period? If so, its effect? (24) Whether the votes polled in favour of petitioner at Polling Station Tajori and Kalakhel were shown less in the unofficial result by the Returning Officer, if so, its effect? (25) Relief. 'Amongst the issues framed on the preliminary objection raised by respondent No,1 in his written statement the following were of importance:--- ' Issues Number: (1) Whether the petition, the Annexures and the affidavits filed alongwith it have not been verified as required under Order V, Rule 15, C.P.C. ,if so, its effect? (3) Whether petition is liable to be dismissed for non-impleadment of various functionaries of the Government Election Authorities/Returning Officers, D.R.Os., P.Os. And A.P.Os. And other election Polling staff? 3. To substantiate his case the petitioner, besides himself appearing as his witness, examined 138 witnesses. Out of these, 34 recorded their statements before this Tribunal whereas 105 female witnesses were examined by Civil Judge, Lakki Marwat, who was issued a commission by the
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Tribunal On 20-2-1998 to examine female witnesses, numbering 421, whose names and affidavits were filed by the petitioner with the election petition. This order was passed on the application of the petitioner after elaborate arguments were addressed for and against the issuance of the commission. The petitioner as well as the respondent No,1 were represented at the recording of the statements of the witnesses before the Commission. The witnesses were duly cross-examined. No objection has been raised as to the mode of recording of evidence before the Commission. These witnesses have been numbered by the Commission as A-1 to A-105 and shall be referred to by the numbers so ascribed to them. 4. Although a total of 25 issues have been framed not all of them were pressed at the hearing, either because of lack of sufficient evidence or they had no significant bearing on the outcome of the election petition. The ones on which elaborate arguments were advanced are discussed below 4-A. Issues No,6.--This was the most debated issue. It was framed on the allegation of the petitioner that no polling at all was held at the female polling booth of Polling Station No, 101, Buland Khel. Mr. Muhammad Sardar Khan, the learned counsel appearing for the petitioner, with reference to Article 218(3) of the Constitution read with sections 7(4) and 9(1)(2)(3) contended that it was the duty of the Returning Officer to effectively conduct the election, including the appointment and availability of the election staff at all the polling stations. The learned counsel referred to the show- cause notices issued by the Returning Officer to the Polling Staff of Polling Stations No, 101 Buland Khel and 102 Shahbaz Khel, the replies thereto and the order of the Returning Officer (Exs.P.W.1/1 to Ex. P.W. 1/12), and pointed out that no staff at all was either appointed or posted at Polling Station No,101 and thus the Returning Officer has failed to comply with the duty imposed upon him under the law to effectively conduct the election. It was maintained that all these documents were exhibited through Mir Abbas, Superintendent Sessions Court, Lakki Marwat (P.W.1) without any objection and, therefore, the admissibility of these documents in evidence is no longer open to question. Reliance was placed on Abdullah and others v. Abdul Karim (PLD 1968 SC 140) and Gopal Das v. Sri Thakurji (AIR (30) 1943 Privy Council 83). Citing the cases of Muhammad Sadiq v. Federation of Pakistan (1981 MLD 1), Zerina v. Fatima Bi (PLD 1995 Karachi 388) and Articles 132 and 133 of the Qanun-i-Shahadat Order, 1984. 'The learned counsel maintained that the allegation that no polling staff was sent to Polling Station No,101 stands established because P.W.1 was not cross- examined at all and the petitioner (P.W.34) was not cross-examined on this statement on the point. It was pointed out that 671 female voters at this polling station were disfranchised, thus materially affecting the result of the election within the meaning of section 70 (a) as the winning margin of respondent No,1 was 353 votes. 5. Qazi Muhammad Anwar, Advocate representing respondent No, 1 submitted that it was in pursuance to the decision of the elders of the area that no polling was held at the female polling booth of Polling station No, 101. With reference to the consolidated statements of the results (Form XVI) produced at the hearing of the arguments the learned counsel argued that in as many 18 feinale polling stations no polling at all was held as no vote was cast in those polling stations which was in accord with the local traditions where men do not allow their womenfolk to go to polling stations. The learned counsel further argued that the submission on behalf of the petitioner regarding the non-availability of the female polling staff of female Polling Station No, 101 is not substantiated as neither the Returning Officer of the constituency nor the Presiding Officer of Polling Station No, 101 have been examined by Me petitioner. Placing reliance upon Saeed Hassan v. Piyar Ali (PLD 1976 SC 6), Muhammad Yousaf Aytub (PLD 1973 SC- 160) and Mohan Singh v. Bhanwarlal (AIR 1964 Madya Pardesh 137) the learned counsel maintained that the standard of proof required to substantiating the allegations in the election petition is to be proved beyond doubt, which the petitioner has failed.
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6. The petitioner has in para. 7 of the election petition alleged that no polling had taken place at Polling Station No,101, This has not been denied by respondent No,1 in the corresponding paragraph of his written statement. The respondent has only pleaded that the polling had not taken place on account of the decision of the elders of the village. The burden to show that such a decision was taken obviously lay on the respondent. He has not produced any evidence to prove such an. Agreement. In his examination-in-chief Respondent No,1 (R.W.1) had stated that since the constituency consists of Pashtoon, female generally at their owft would not got to the, polling station for casting their votes. The witness 'did no make any reference to any agreement by elders of the area as alleged in para. 7 of the parawise replies of the written statement. Thus, the explanation of respondent No,1 regarding non-polling at female booth of Polling Station No, 101 does not stand established. The legality of such an agreement was not touched upon by either of the counsel. However, it is not necessary to go into this question in view of the finding that the agreement has not been proved. 7. Having held that no polling at all had taken place at the female booth of Polling Station No,101, the next question that requires determination is whether any polling staff was at all deputed to, or provided for the said polling booth. The District and Sessions Judge, Bannu was appointed as the District Returning Officer, Lakki Marwat whereas Mr. Subhan Sher, Additional District and Sessions Judge was the Returning Officer for the Constituency. It is in this background that the petitioner examined Mir Abbas, Superintendent Sessions Court Lakki Marwat, and got exhibited through him the show-cause notice issued by the District Returning Officer to the various polling staff of Polling Stations No,101 and 102. Exh. P.W. 1/1 is a show-cause notice dated 13-2-1997 issued to 9 female teachers requiring them to explain as to why they had failed to perform their duties at Polling Station No, 101 Buland Khel and Polling Station No, 102 Veterinary Hospital Shahbaz Khel. The names of the defaulting staff were Farzana Tabassum, Imtiaz Bukhari, Surriya Begum, Neelofar, Nisa, Maimoona Alam, Zaitoon Bibi, Naseem Akhtar, Bushra Bibi and Yasmin Khan. A separate show- cause notice (Exh. PW. 1/2) was also issued on the same date to Mst. Saeeda Sultana for not performing her duty as Presiding Officer at Polling Station No, 102 (Shahbaz Khel). In her reply (Exh. P.W 1/3) Farzana Tabassum explained that she was posted at two different polling stations namely Wanda Aurangzeb and Shahbaz Khel and that it was after consultation with the Returning Officer that she performed her duties at polling station Wanda Aurangzeb. A Certificate to that effect of the Presiding Officer of Polling Station Wanda Aurangzeb was also attached with the reply. Maimona Alam in her reply Ex. P.W. 1/4 stated that it was on the orders of the Returning Officer that she performed duty at Girls Primary School Nader Khel instead of Poling Station No,102 (Shahbaz Khel). Zakira Bibi responded in her reply Exh. P.W.1/5 that she was posted at Polling Station No, 102, where polling could not start till noon because there was no Presiding Officer and polling commenced only when Mehrun Nisa (P.W.4) was brought in as Presiding Officer. Mrs. Yasmin Khan denied having received any order for performing election duty (Exh. P.W. 1/6). Similarly, Surraya Begum in her reply Exh.P.W. 1/6-A stated that she had not received any duty order as Assistant Presiding Officer at Polling Station No, 101, Saeeda Sultana to whom a separate show-cause notice was issued denied receiving any duty order as Presiding Officer of Polling Station No,102. Similar denials were made in their replies to the show-cause notices by Imtiaz Bukhari (Exh. P.W 1/8), Mrs. Saeeda Sultana (Exh. P.W. 1/9) and Naseem Akhtar (Ex. P.W. 1/10). Report Ex. PW. 1/12 was prepared by the Reader of the Sessions Judge based on the replies to the show-cause notices. The District and Sessions Judge on 29-3-1997 withdrew the show-cause notices (Exh. P.W. 1/11) after he found the replies satisfactory. 8. Reference to the show-cause notices, replies thereto and the eventual withdrawal of the show- cause notices was made by the learned counsel for the petitioner to show that no staff was deputed to Poling Station No, 101 Buland Khel. The above documents were exhibited through the
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Superintendent of the Sessions Court Lakki Marwat (P;W.1) without any objection and the witness was also not cross-examined. Out of the 9 female staff issued with show-cause notice, 3 were supposed to conduct polls at Polling Station No, 101 and the remaining six at Polling Station No, 102. According to the report of the Reader to the District and Sessions Judge, Lakki, the District Returning Officer (Exh.P.W. 1/12) 1, on the basis of which the shows-cause notices were withdrawn, 4 female polling staff were deputed for Polling Station No,101. The fourth to whom show cause notice was not issued is Ba.Shir-un-Nisa. Of the four polling staff, Surraya Begum and Neelofar Nisa were the Assistant Presiding Officers of the Female Polling Booth and Bashir-un-Nisa and Yasmin Khan were assigned the task of Poling Officers. The polling station being combined for male and female, one Dilawar Khan was the Presiding Officer. Of the 3 female staff to whom show-cause notice was issued two of them, Surraya Begum and Yasmin Khan, submitted their .Replies in which they conceded their absence but explained that they had not received any order for performing election duty. The show cause notice against the two was withdrawn. Neelofar Nisa, according to Exh. P.W. 1/12 had not tendered any explanation but there is nothing on the file to show that any action was taken against her. The show-cause notice had been issued after it was found that the 3 female staff were not present at the polling station. The explanation furnished by the staff for their absence would not by itself be sufficient to establish that they had not received any duty order unless the female staff was examined staff. How, ever, the explanation tendered by them was found satisfactory by the District Returning Officer and the show-cause notice was withdrawn by order dated 29-3-1997 (Exh. P.W. 1/11). This is an official document and, therefore, the contents of it are admissible in evidence. Copies of Ex. P.W. 1/11 were sent inter alia to the Provincial Election Commission as well as the Divisional Director Eduction (Female) with the remarks to the latter that action be not taken against the officials. The inquiries seem to have been made after reports were received that no polling staff was available at Polling Station No, 101. Regardless of whether the explanation tendered by the female staff was true or not the issuance of show-cause notice itself is sufficient to show that the 3 female staff had not reported to the polling station for duty. Bashir-un- Nisa was probably the only polling staff who had turned up. In the letter written by Dilawar Khan, the Presiding Officer of the polling station, to the district Returning Officer (Exh. P.W. 17/3), which was annexed with the application Exh. P.W. 17/2 of the petitioner to the Chief Election Commissioner for re-polling, it was stated that Bashir-un-Nisa, the Polling Officer was the only polling staff, who had come to the polling station and consequently the polling could not be held at the female polling booth. These two documents were exhibited through Gul Akbar Khan, Deputy Election Commissioner ( P.W.17) who had brought the relevant record from the office of the Election Commission of Pakistan. Obviously, if the two Assistant Presiding Officers and the other polling officers were absent, one polling officer was neither in a position nor empowered, in the absence of Assistant Presiding Officer, to conduct polls. 9. It was the petitioner's stand right from 4-2-1997, as is evident from Exh. P.W 17/1, a complaint made by him to the Returning Officer and the District Returning Officer with copy to the Chief Election Commissioner of Pakistan, that polling had not been held at Polling Station No, 101 on account of absence of female polling staff. Request was made for re-polling at Polling Stations Nos. 101 and 102. The same request was repeated in his application made on 6-2-1997 (Exh. P.W. 17/2) with the additional request that votes be re-counted. That request was granted but re-polling was not ordered. In his testimony before this court the petitioner reiterated that no female polling staff was available at the said polling station and that 671 registered female voters attached to the polling booth were disfranchised. His this allegation was not questioned in cross-examination. The only cross-examination relating to polling station No, 101 was regarding his non-mention in Exh. PW. 17/1. The number of voters disfranchised and the number who had come to the polling station but unable to poll their votes because of the absence of female polling staff. As far as the number of
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the female registered voters at polling station No, 101 the figure 671 is confirmed by Gul Akbar Khan, the Deputy Election Commissioner (PW 5). This witness was examined twice, the second time as P.W.17 on behalf of the Election Commissions of Pakistan. Respondent No, 1, in his testimony before this Tribunal, did not explicitly deny the absence of the polling staff at polling station No, 101 but, with obvious reference to the allegation, in his examination-in-chief had stated that on the date of election he had not come across any complaint that for a particular polling station polling staff was not provided. The petitioner's stand regarding non availability of the polling staff at the said polling station taken immediately after the polls and his being not cross-examined on this stand at the trial lends further support that the female polling staff were not provided to conduct polling at female polling booth of Polling Station No, 101. 10. The petitioner examined 82 female registered voters of polling station No,101. They were examined by Civil Judge, Lakki Marwat, Mr. Safeer Qaiser Malik, to whom commission was issued on 20-2-1998. These witnesses have been numbered A-1 to A-82. It is not only cumbersome but unnecessary to comment upon the testimony of each of these witnesses because they have reiterated the contents of the affidavits given by them and filed with the election petition, which is more or less to the same effect and the cross-examination of the witnesses is materially on the same lines. A general comment on their testimony would, therefore, suffice. In the affidavits as well as in the examination in chief or these witnesses had alleged that they had gone to the polling station and because there was no female staff available they returned home without casting their votes. The time they went to the polling station and the period spent their before disappointedly returning home varies with each witness. Some had gone in the morning, other in the afternoon. Some of them had spent 2 or 3 hours before returning home while others stayed right upto the end when the polling time was over at 4 p.m. Almost all the witnesses stated in their cross-examination that they were illiterate. That also accounts for their ignorance, when cross-examined, of the registered number of their votes, the meaning of the word "booth", referred to in their affidavits and that they could not distinguish their affidavits from the others. When cross-examined regarding the execution of the affidavits, they all candidly admitted that the affidavit had already been written for them by the male members of their family and that they had thereafter, thumb-impressed the same. This does not affect the evidential value of their testimony as they had reiterated the contents of the affidavit when examined on Oath by the Civil Judge. As regards their answers regarding the number of votes and distinction between the affidavits the witnesses being illiterate were not expected to respond positively to these questions. Suggestion in cross-examination that male members of some of the witnesses were employed by the petitioner or his brothers were denied. In fact quite a few witnesses, when asked, stated that they did not know the petitioner. Nothing in the cross-examination could be elicited to create, doubt that they had not gone to the polling station on the day or to show that the polling staff was available to conduct the polls. When asked of some of the witnesses by the cross-examiner, it was denied that there was any decision by the elders of the area that female would not cast their votes. It was at the same time admitted that the women would abide by a decision by the elders prohibiting them for voting. The testimony of the witnesses is straightforward and despite being illiterate villagers, they successfully withstood the test of cross-examination. There is no reason to disbelieve their allegation that no polling staff was available at the female booth, of Polling Station No, 101. 11. From the above discussion it has been amply established that no polling at female booth of Polling Station No, 101 was held because there was no female staff provided to conduct the polling. The effect of this lapse would be examined later while discussing issue No, 25, relating to relief. 12. Issue No 7.-This issue, which follows issue No, 6, in sequence and in importance, relates to the late commencement of polling at female polling station No, 102, Veterinary Hospital Shahbaz Khel. The petitioner has alleged that on account of non-availabifity of polling staff at this Polling station,
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staff from another polling station were brought at around mid-day with the result that a number of female/voters returned without casting their votes and that a number of voters who were present in the premises of polling station at the close of the polls were not allowed to vote. Thus, the first question that calls for determination is "whether the polls started late. To prove this, the petitioner primarily depended on the statement of P.W. 4 Mrs. Mehrun Nisa, Assistant Sub-Divisional Education Officer' (Female) Lakki Marwat, who was posted as Presiding Officer, Polling Station Girls Middle School Daro Khel, but because polling did not take place at that polling station on account of decision of the elders of the area, she alongwith other staff were taken to polling station No, 102, to conduct the polls. She had given an affidavit Exh. P.W. 4/1 to that' effect and the…
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