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Petitioner: TARIQ KURD VS Respondent: RETURNING OFFICER, A.C. DHADAR
Court Name: Election Tribunal Judge(s): Munawar Ahmad Mirza Title: TARIQ KURD vs RETURNING OFFICER, A.C. DHADAR Case No.: Election Petition No, 46 of 1993 Date of Judgment:1994-11-10 Reported As: 1995 CLC 820 Result: Election petition dismissed
JUDGMENT
JUDGMENT ' Petitioner Tariq Kurd and respondents 2 to 15 were candidates for contesting general elections of the Provincial Assembly from constituency PB-24 Bolan-I (Kachi) held on 9-10-1994. On final counting respondent No, 13 Mr. Lashkri Raisani was declared as successful by obtaining 102 votes more than petitioner. Final result of above constituency concerning petitioner and contesting respondent contained in Final Result Count Form XVI Exh. PB published in the Gazette is mentioned below for convenience. {{TABLE}} S. No, Name of polling station Petitioner Tariq Kurd Respondent No,13 Mir Lashkri Khan Raisani Total valid votes carted 2 3 4 5 1. Middle School Kolpur 69 19 385 Girls High School Mach 331 80 1031 (Male) Girls High School Mach 84 35 421 (Female) Library Hall Mach 267 149 987 Inspector Mines Office 183 114 655 Machh Bibi Nani 57 5 112 Primary School Kirta 173 14 207 Model School Dhadar 313 214 762
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Girls High School Dhadar 100 113 402 Jaibani Public School 404 51 475 Dhadar High School Rind Ali 404 75 589 S. No, Name of polling Petitioner Respondent Total valid station Tariq Kurd No,13 Mir votes Lashkri Khan casted Raisani {{TABLE}} 1. 2 3 4 5 12. Girls High School Rind Ali 329 21 400 13. Kot Khai at S.W.O. 250 210 578 14. Middle School Sibri 459 167 642 15. Middle School Mishkaf 207 420 848 16. Girls Primary School 87 112 248 Mishkaf 17. Union Council Office 17 481 566 Mithri 18. Kolachi Civil Dispensary 90 349 388 Mithri 19. High School Mithri 2 763 798 20. Girls Middle School Mithri 93 126 371 21. Primary School Dandoor 44 116 346 22. High School Haji Shahr 22 26 697 23. Primary School Haji Shahr 6 10 412 24. Gari Aurang Shah 9 132 811 25. Middle School Chandar 64 35 248 26. Dosa at Primary School 52 9 251 Habibabad 27. Middle School Ghani 108 21 419 28. Shahbazo Civil Dispensary 17 202 413 Ghazi 29. Primary School Masoo 68 195 484 Total Numbers of votes recorded at the polling station. 4228 4264 14946 Total votes recorded on postal ballot for the constituency 64 130 364 Grand Total: 4292 4394 15310 2. It is the case of petitioner that through electronic media he was shown to have been elected from constituency PB-24 Bolan-I but subsequently during final counting by including challenged votes and postal ballots which suffered from variety of defects and illegalities respondent Mir Lashkri Raisani was unjustifiably declared successful returned candidate for Provincial Assembly from said Constituency. It was asserted that three voters were supplied double postal ballot- papers and one voter supplied postal ballot-paper meant for National Assembly which too have been counted in favour of respondent. It was categorically asserted that respondent No,13 (Mir Lashkri Raisani) has been factually defeated but through manipulation he got himself declared as successful, by glaringly contravening essential requirements of election laws and rules which constitutes, malpractice. Feeling aggrieved from election results of PB-24 Bolan-I and official declaration of respondent No,13 as successful; the petitioner on 25-11-1993 filed an election petition under sections 52, 53, 54, 55 of 'the Representation of People Act, 1976' enumerating details of illegalities and malpractice committed by him. It was sought that election of respondent No, 13 (Mir Lashkri Raisani) being void, the petitioner be declared as duly elected from the seat of Provincial
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Assembly PB-24 Bolan-I. Respondent No, 13 contested the election petition, and filed written statement on 11-12-1993 repudiating all such allegations. It was expressly asserted that no illegality had been committed. Averments concerning manipulation were also specifically refuted. It was mentioned that votes living in far flung area did not have facility of post office, therefore, ballot- papers were directly delivered to Returning Officer. Similarly allegations about supplying double postal ballot-papers was also disputed. It was averred that counting was properly conducted by Returning Officer by correctly counting challenged votes and postal-ballots in the presence of authorized representatives of parties. However, keeping in view the pleadings of parties, following points for determination were frathed:- POINTS FOR DETERMINATION (1) Whether petition is barred by time? (2) Whether the petition has not been signed/verified in accordance with law, if so what would be its effect? (3) Whether the petition is hit by the principle of res judicata? (4) Whether the Returning Officer while consolidating the result, counted 52 challenged votes in favour of respondent No, 13 (Returned candidate) without adhering to the provisions of People Representation Act and the Rules framed thereunder? (5) Whether the Returning Officer received 132 Postal Ballot Papers by hand and not from the postal authorities as it is required under the Law. If it is so, had the Returning Officer jurisdiction to count these votes in favour of respondent No,13 (Returned candidate). (6) Whether the Returning Officer issued double postal ballot-papers to ten voters and if it is so can such votes be counted in favour of any candidate? (7) Whether there were certain voters who exercised the right of their adult franchise both availing facility of Postal Ballot as well as casting the votes personally at the Polling Station? (8) Whether the Electoral Roll relating to franchise from Nos. 153 to 354 Polling Station Mohallah Baghat Rind Ali registered fictiously? If so, has it any effect on the present proceedings? (9) What should the nature of Relief? Petitioner besides himself adduced four witnesses namely (P.W. 1) Javid Iqbal (P.W. 2) Dr. Muhammad Ishaq (P.W. 3) Sheikh Ghulam Farid and (P.W. 4) Abdul Manan son of Haji Muhammad Jan. Whereas contesting respondent Mir Lashkri examined (R.W. 1) Muhammad Arif (R.W. 2) Khair Muhammad (R.W 3) Muhammad Ibrahim (R.W. 4) Malik Dinar Khan and (R.W. 5) Muhammad Azam. Respondent Mir Lashkri Raisani also got recorded his statement. Documents in the shape of (i) final counting result (ii) application for postal ballots (iii) Form VIII issued on the basis of said application (iv) postal-ballot, Result Count of various polling stations (v) Record of Post-Master Sibi and some of the challenged votes etc. Were proved through some of the witnesses. 3. Mr. Maqbool Ellahi Malik learned counsel for petitioner emphatically urged that merely two points concerning validity of challenged votes and postal ballots and its effect on the final count require determination for the disposal of present petition. Thus arguments were advanced only regarding said points and remaining aspects were expressly dropped. Learned counsel strenuously urged that 130 votes were received by the office of Returning Officer, through postal ballots which were illegally counted to the benefit of respondent No,13. He maintained that all those 130 postal ballots were ex-facie illegal and ought to have been completely excluded from final counting. As regards other aspects it was emphatically urged that out of 66 challenged votes counted in favour of respondent No,13 (Mir Lashkri) only twelve were properly considered by the Returning Officer whereas 54 have been illegally counted in favour of respondent No, 13 without considering objection raised at relevant occasion or giving any cogent reasons. It was contended that after exclusion of said votes, certainly number of votes obtained by petitioner would be higher than respondent No,13 who, therefore, becomes entitled for being declared as validly elected candidate
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from PB-24 Bolan-I. Learned counsel stressed that by counting defective postal ballots, requirements of section 39 (1) and section 29 (4) of the People Representation Act, besides Rules 12 and 16 (4) (10) of the Representation of People (Conduct of Election) Rules, 1977, and requirement of Form XI have been flagrently disregarded. He further argued that essential requirements for receiving ballots through post, have been ignored in a trivsual manner. All the arguments centred around, only above discussed two points and no other legal or factual aspect was touched. ' Whereas on the other hand Mr. Yahya Bakhtiar, Advocate for respondent No, 13 vehemently opposing the petition emphatically urged that discrepancies showing invalidity of postal ballots did not form basis for challenging the election and absolutely new case was intended to be set up which cannot be permitted under the law. Reliance was placed on PLD 1973 (Tr. Cases) Karachi P.117. He maintained that there are 29 polling stations, where election was held properly and statements of count disclose clear winning position of respondent No,13. He maintained that absolutely no objection has been raised by petitioner concerning challenged votes at the time of final counting (consolidation of results before Returning Officer) nor any evidence adduced during trial of present petition. Showing defect or impropriety in entertaining, challenged votes. Learned counsel referred to procedure contained in sections 35 and 38 of Representation of People Act 1976 and argued that if at all serious defects or impropriety existed, a determinative order could be sought from Returning Officer or eventually from this Tribunal. He thus maintained that such objection has no significance at this stage. As regards other point of postal ballots it was expressed that 409 postal ballots were issued by the Returning Officer in PB-24 Bolan-I out of which the petitioner has secured only 64 postal votes whereas respondent No,13 Mir Lashkari Raisani had obtained 130 votes. Learned counsel canvassed that mostly postal ballots counted in favour of either side were considered by the Returning Officer which according to him did not suffer from any legal defect. Reliance was placed on the observation Mahmood Azam Farooqui v. Muhammad Shafi Okarvi (PLD 1977-Jour 211). ' Mr. Maqbool Elahi replied above contentions and argued that failure to raise specific objection ceases to be fatal, when evidence concerning those aspects has been brought on record, Reliance is placed on the observation in cases (i) Rasantilal Ratanlal Lain v. Umashankar Muljibhai Travedi and others (AIR. 1965 Madya Pardesh-94) (ii) Bhupendra Narain Mandal v. Ek Narain Lal Das etc (AIR. 1965 Patna-332) (iii) Bhagwan Datta Shastri v. Ram Ratanji Gupta and others (AIR. 1960 Supreme Court-200, (iv) Abdur Raziq Khan v. Abdul Aziz etc. PLD 1975 Journal 41 and (v) Balwan Singh v. Lakshmi Narain and others (AIR 1960 Supreme Court-770). He further canvassed that petitioner is expected to produce only such material which is within the knowledge and with regard to remaining obviously when evidence is led same became admissible and relevant. Reliance was placed on observation to S.M. Ayub v. Syed Yousuf Shah and two others (PLD 1967 Supreme Court page-486) (ii) Syed Zafar Ali Shah versus Muhammad Nawaz Khokhar (PLD 1986 Journal 160) (iii) Balwan Singh v. Lahkshmi Narain and others (AIR 1960 Supreme Court P-770) and (iv) Ghulam Mustafa v. Akhtar All and others (1986 M LD 2143.) He further submitted that observation in the election matters reported as PLD 1977 Journal 211 forms an opinion therefore not binding. 4. For dilating upon various aspects discussed by learned counsel for parties it would be appropriate to give brief resume of evidence brought on record. ' P.W. I Javeed Iqbal was election agent of petitioner deposed, that bags containing postal ballot papers did not have stamp or seal of post office. According to the version of this witness postal ballots were unlawfully counted in favour of Mir Lashkari Raisani when result was finally consolidated by the Returning Officer, otherwise petitioner had obtained higher votes than him. The witness further deposed that objections were raised by Mr. Shakil Ahmad, Advocate about absence of postal stamp on the bag containing postal ballots but were ignored. He expressed that challenged votes were also counted without considering the objections. He mentioned about
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presence of Deputy Commissioner Bolan when final counting for consolidation of results was carried out by Returning Officer. During cross-examination witness stated that Presiding Officer has not counted the challenged votes, and in some cases envelopes containing challenged votes were not even opened. He deposed that 132 postal ballot papers were counted in favour of respondent Mir Lashkari by the Returning Officer despite their objections which affected election results. ' P.W. 2 Dr. Muhammad Ishaq who is also a contesting candidate from Constitutency PB-24 Bolan I Kachhi deposed that on the basis of initial counting, petitioner was declared successful taking lead of 15 votes, but Returning Officer wrongly counted 132 postal ballot papers in favour of Mir Lashkari Khan. Accordingly to this witness, Returning Officer unlawfully counted 52 challenged votes in favour of respondent No,13 Mir Lashkari Khan and unjustifiably declared him as successful. The witness is admittedly paternal uncle of petitioner Tariq Kurd. He admitted presence of Mr. Shakil Ahmad, Advocate at the time of consolidation of results. According to this witness Deputy Commissioner had presided over the process of consolidation. According to this witness Mr. Shakil Ahmed, Advocate raised objection about validity of postal-ballot-papers as they had not been received through post-office or concerned department. The witness also admitted that challenged votes were counted in favour of both; the petitioner and respondent Mir Lashkari Khan. The witness conceded that, he did not make any objection regarding re-scrutiny of challenged votes. ' P.W.3 Sheikh Ghulam Muhammad, Assistant Commissioner-Returning Officer PB-24 Bolan-I deposed that, approximately 401 postal ballot papers were issued. The applications made by voters are produced as Exh. P/A-1 Exh. PA-401. List of postal ballot-papers issued from time to time consisting of ten pages is brought on record as Exh. PA-402 to Exh. PA 411. Witness explained some of the voters had sent postal ballot-papers through post. ' P.W.4 Abdul Manan who functioned as Returning Officer PB-24 Bolan-I from 28-9-1993 onwards deposed that results of 29 polling stations were consolidated by him, copy whereof has been produced as Exh.PB. It was maintained by the witness that according to Exh.PB 130 votes were counted in favour of respondent No, 13 Mir Lashkri Raisani. He however admitted that requirement of Rule 12(2)(c) and FORM-XI were not examined by him. The witness produced 70 envelops of postal ballot-papers Exh.P/E-i to Exh.P/E-70 which had double postal stamp. Whereas 14 envelopes Exh.P/E-71 to Exh.P/E-84 bears single stamp. Additionally 298 envelopes of postal ballots which did not have any postal stamp were produced as P/E-85 to Exh.P/E-382. The witness explained that said envelopes were received in his office. The witness, however, expressed that none of the candidates or their Advocated at the time of consolidation of results raised objection for separating envelopes for postal ballot-papers which had not have stamps. However, seventeen (17) ballot-papers Exh.P/E-383 to Exh.P/E-399 were rejected. Testimony of this witness further discloses that 384 declaration Forms under Form VII were received which have been produced as Exh.P/E-400 to P/E-783. Besides 130 votes carted in favour of respondent Mir Lashkari have been brought on record as Exhs.P/E-784 to P/E 914. Challenged votes of respondent No, 13 pertaining to six polling stations have been produced through this witness as Exh.P/E 915 to Exh. P/E 987. The witness admitted that some of the challenged votes were counted by the Presiding Officer of concerned Polling Station in favour of petitioner. Details recorded on Form XIV are produced as Exhs. R/1 to R/37. The witness, however, admitted that challenged votes are normally counted by Presiding Officer while compiling result of Form XIV for transmitting it to Returning Officer. The witness on the basis of Exh. P/B deposed that Mir Lashkari Khan had received 4394 votes whereas petitioner obtained 4292 votes. The witness categorically mentioned that during consolidation of results none of the candidates or their representatives raised any objection or sought re-scrutiny of challenged votes. The witness also stated that 17 postal ballot-papers were rejected on the objection of petitioner's counsel Mr. Shakil Ahmed, Advocate. It was also admitted that at certain places of constituency PB-24 Bolan-I postal service was not available. The witness also produced
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application made by Shakil Ahmed, Advocate Exh. R/38 for recounting of few polling stations which was carried out. However, further recounting was stopped on the written request of said counsel of petitioner which is also proved as Exh.R/39. 5. The petitioner in his affidavit submitted on 27-11-1993 gave details of irregularities committed by Presiding Officer an Returning Officer at the time of consolidating the Election Results. Ha gave description of violation committed as regards postal Ballot-papers and challenged votes. He maintained that 184 votes consisting of 132 postal ballot-papers and 52 challenged votes were illegally counted in favour of respondent Lashkari Khan for declaring him successful candidate." Petitioner admitted that he did not participate in consolidation proceedings held on 8-10-1993. He admitted that Mr. Shakil Ahmed, Advocate had represented him before the Returning Officer for consolidation of results. He also mentioned that few postal vote were issued twice causing serious irregularities. 6. Whereas on the other hand respondent Mir Lashkari Khan apart from himself examined five witnesses. ' R.W.1 Mr. Muhammad Arif Post Master Mithri has produced receipt and despatch of postal Exhs.R /49. R/50 and R/51. ' R.W. 2 Khair Muhammad, Senior Post Master Sibi gave details of 63 envelopes despatched to Dhadar through Mail. He states these 63 postal ballot-papers were collected through post-box. ' R.W. 3 Muhammad Ibrahim, Post-Master Mach had not brought record, therefore, he was discharged. ' R.W. 4 Malik Dinar Khan Bangulzai, deposed that he was present at the time of re-counting and consolidation of final results concerning constituency PB-14 Bolan-I by Returning Officer. Mr. Shakil Ahmad, Advocate was authorised agent of petitioner. Witness deposed that sealed boxes and postal ballot-papers were opened in presence of all the agents and representatives of parties and counting was carried out properly in accordance with rules. He admitted that Mr. Kamran Murtaza, Advocate was also present on behalf of respondent Mir Lashkari Khan, besides Aminullah Raisani and Mr. Mohsin Javid, Advocate. The witness pointed out that only validity of few postal ballot- papers was challenged out of which 11 were rejected by the Returning Officer on the pointation of Mr. Shakil Ahmed, Advocate. ' R.W. 5 Mr. Muhammad Azam, Post-Master Mach stated that no ballot-paper was received in the post office Mach. Respondent Mir Kashkari Khan explained his stand and confirmed that he was validly declared successful on the basis of final consolidation of results. The respondent maintained that no defect or error existed in the announcement of final results. The question with regard violations committed at various polling stations were squarely denied. It was also refused, that after announcement on the television respondent procured postal ballots or made efforts for changing result of the election. Suggestion to the contrary made by opposite side during cross- examination were specifically disputed. 7. Firstly I would like to examine contentions relating to `CHALLENGED VOTES'. Apparently when elector presents himself at the polling stations for casting votes procedure is specified under section 33 of Representation of People Act, 1976 (Act LXXXV of 1976) (hereinafter referred as "People Act"). However, if a candidate or his polling agent raises an objection about elector having already casted or doubts his identity and undertakes to prove such charge then subject to depositing Rupees TWO and proof of such accusations his vote is deemed challenged as contained in section 35 of The People Act" which is reproduced below for ready reference:-- "35. Challenge of electors.--(1) If, at the time a person applies for ballot-papers for the purpose of voting, candidate or his polling agent declares to the Presiding Officer that he has reasonable cause to believe that person has already voted at the election, at the same or another polling stations, or is not the person against whose name entered in the electoral role he is seeking to vote
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and undertakes to prove the charge in a Court of law and deposits with the Presiding Officer in cash a sum of two rupees, the Presiding Officer may, after warning the person of the consequences and obtaining on the counterfoil, his thumb-impression and if he is literate also his signature issue a ballot-papers (hereinafter referred to as "challenged ballot-paper") to that person. (2) If the Presiding Officer issues a ballot-paper under subsection (1) to such person he shall enter the name and address of that person in a list to be prepared by him (hereinafter referred to a "the challenged votes list") and obtain thereon the thumb-impression and, if he is literate, also the signature of that person. (3) A ballot-paper issued under subsection (1) shall, after it has been marked and folded by the elector, be placed in the same condition in a separate packet bearing the label "Challenged Ballot- Paper", instead of being placed in the ballot box." ' The "Challenged Votes" are separately packed in a bag labelled "Challenged Ballot-Papers". The Presiding Officer after close of poles conducts counting in accordance with procedure providing under section 38 of "People Act" and condition contained in rules 21 and 23 of the Representation of People (Conduct of Election) Rules, 1977 (hereinafter referred as "The Election Rules"), Presiding Officer prepares statement of count in Form XIV contemplated by section 38(9) of "Peoples Act" and relevant rules, and eventually transmits the whole record to Returning Officer within the purview of subsection (15) of section 38, Returning Officer then consolidate the result after giving due notice to the contesting candidates or Election Agent and pronounces final result in FORM XVI by performing requirement contained in section 39 of the "People Act" and Rule 26 of the Election Rules. ' Mr. Maqbool Ellahi learned counsel for petitioner emphatically urged that Presiding Officer except at High School Mithri had completely ignored the objection whereby 54 "Challenged Votes" casted in favour of respondent Mir Lashkari Raisani had been wrongly counted. At this stage it is pertinent to mention here that petitioner and contesting respondent were represented by their respective counsel. Admittedly they had not pressed their objection concerning "Challenged Votes" before Returning Officer at the time of consolidation of results. ' Mr. Yahya Bakhtiar critically emphasised that absolutely no objection was raised by petitioner before Returning Officer when result was being consolidated in Form XVI. Therefore, any subsequent protest does not have legal sanctity. Learned counsel canvassed that absolutely no reasons showing invalidity of "Challenged Votes" was either asserted in the petition or proved through evidence. 8. Bare perusal of section 35 of "People Act" elaborately disclose responsibility of party challenging the vote of elector, to substantiate the charge showing inherent defect or disability of person casting the vote. Convincing material must be brought forth to establish legal justification, and plausible cause for excluding the vote of elector from final count. No doubt the Presiding Officer had initial responsibility to consider objections raised to the validity of any vote. But it was imperative for aggrieved party to substantiate grounds of disability, legal infirmity or invalidity concerning any vote when result was being finally consolidated by the Returning Officer in FORM LXVI. Lastly petitioner should have specifically pointed out exact nature of grievance regarding "Challenged Vote" so that by thorough analysis these objections could be appropriately scrutinized by the Election Tribunal". Even on enquiry precise objection concerning "Challenged Votes" which may require determination in the light of relevant law was not pointed out. Record is also conspicuously silent about any cause or reason for showing disability of elector, whose votes were challenged at the time of casting.…
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