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Petitioner: Syed HAFEEZUDDIN VS Respondent: ABDUL RAZZAQ and others
Court Name: Supreme Court of Pakistan Judge(s): Mian Saqib Nisar, Iqbal Hameed-ur-Rehman, Maqbool Baqar Title: Syed HAFEEZUDDIN vs ABDUL RAZZAQ and others Case No.: Civil Appeal No. 1086 of 2014Petition No.7 of 2013 Date of Judgment:2015-11-19 Reported As: 2016 P SC 492, PLD 2016 Supreme Court 79 Result: Appeal allowed
Judgment ORDER ' MIAN SAQIB NISAR, J.---This appeal under section 67(3) of the Representation of People Act, 1976 (the Act) is directed against the judgment of the learned Election Tribunal, Karachi dated 7.8.2014 whereby the election of the appellant (returned candidate) was set aside and the respondent No.1/election petitioner (runner up) was declared to be the returned candidate. 2. The brief facts of the case are:- elections in PS-93 Karachi were held on 11.5.2013 for which twenty-nine candidates contested, including the appellant and respondent No.1 (respondent). The appellant, who was declared a returned candidate by the Election Commission of Pakistan (ECP) vide notification dated 22.5.2013, obtained 15,432 votes, while the respondent, securing 10,960 votes, was the runner up, and another candidate, namely, Bashir Jan (at third position) scored 9,664 votes. The difference between the number of votes obtained by the appellant and the respondent is 4,472. The respondent filed an election petition on the ground that massive rigging had taken place in the elections and that illegal and corrupt practices were resorted to on account of which the election of the appellant be declared as void and the respondent be accordingly declared as the returned candidate. It may be pertinent to mention here that according to the contents of the election petition, this massive rigging etc. Has been alleged and restricted to nine polling stations, i.e. 2, 18, 23, 29, 32, 55, 68, 71 and 77, but subsequently the respondent confined himself to only seven polling stations, i.e. 2, 18, 23, 29, 32, 55 -and 68. It may also be added that the case of the respondent was that the Returning Officer and the Presiding Officer of these polling stations manipulated the results. After obtaining a reply from the appellant, the learned Tribunal framed the following issues:- "1. Whether the petition is maintainable in accordance with the law.
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2. Whether the petitioner had obtained the votes as mentioned by him in his petition in paragraphs Nos.15(c) and 15(d)? 3. Whether the Presiding Officers of polling stations Nos.29, 32, 68, 71 and 77 of the constituency had issued statements of count (Form-XIV) to the petitioner showing his votes as mentioned in paragraph 15(c) of the Petition? 4. Whether the respondent No.] didn't obtain the votes at polling station Nos. 2, 18, 23, 29, 32, 55 and 68 of the constituency and consolidated statement of count (Form XVI) issued by the Returning officer in respect of these polling stations is not in accordance with the statements of count (Form XIV) issued by the Presiding Officers of these polling stations? 5. Whether the returning officer had failed to issue notices to the contesting candidates before the consolidation of the result in form XVI in accordance with the law? 6. Whether the Respondent No.1 or his agents have committed any act of illegal practice during the polling? 7. Whether the Presiding Officers of the above mentioned polling stations and the Returning Officer in connivance with each other committed illegal act or illegal practice to support the Respondent No. 1 if yes, its effect? 8. Whether the election of the Respondent No.] (The Returned Candidate) is fit to be declared as void and the petitioner to have been duly elected? 9. What should the order be?" ' Upon giving its findings on various issues, the learned Tribunal came to the conclusion that the respondent was not able to prove any illegal and corrupt practice vis-a-vis the noted seven polling stations except polling station No.29. In this context, it may be mentioned that though the case of the respondent is that there was rampant rigging in connection with polling station No.32, this plea of the respondent has been discarded and the respondent has not challenged the finding of the learned Tribunal before this Court (either by cross-objections or even orally). With regard to polling station No.29, suffice it to say that in the said polling station a total of 1,600 votes were cast out of which the appellant procured 1,400 .Votes while the respondent procured zero votes. The learned Tribunal, on account of the evidence, particularly the statement of Ms. Safia Sultana Malik and Ms. Saeeda Sagheer, the Presiding Officer and the Assistant Presiding Officer respectively of the said polling station, came to the conclusion that Ms. Malik had not counted the votes and committed grave illegalities in preparation of Form-XIV. 3. It has been argued by the learned counsel for the appellant that the difference of votes between the appellant and the respondent is 4,472 and even if 1,400 votes are excluded from the count, which were allegedly not properly and validly counted vis-a-vis polling station No.29, yet the appellant is a winning candidate with a margin of 3,072 votes. It is also argued that there was no evidence produced by the respondent vis-a-vis corrupt and illegal practices falling within the provisions of sections 78 and 83 of the Act. Therefore, on account of lack of such evidence the appellant cannot be prejudiced by declaring him as having procured his election through massive rigging and corrupt and illegal practices. 4. On the contrary, learned counsel for the respondent has at the very outset drawn a distinction between sections 68 and 69 on the one hand and section 70 on the other, stating that the question of an election being "materially affected" only relates to the latter section, when considering declaration of an election as a whole void, whereas the former sections pertain to declaration of the election of the returned candidate as void on certain grounds enumerated therein, and in this respect he particularly relied upon section 68(c) read with section 68(2)(a), and section 68(d). Furthermore, he justified and defended the judgment of the learned Tribunal by submitting that from the beginning of election till the counting of votes, there have been violations of law. In this context, it is argued that it was the duty of the Presiding Officer to have counted the votes and
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prepared the statement of count (Form-XIV) personally which, as per the statement of the Presiding Officer herself as also the Assistant Presiding Officer, was not so done, rather the form was filled up by the Assistant Presiding Officer and this is a glaring illegality which is apparent on the face of the record. It is also stated that the Presiding Officer of polling station No.29 signed the hand-written result and provided it to the polling agents of the respondent, which result is different from that reflected in Form-XIV, which plea is also supported by the Assistant Presiding Officer. Further, that the name of the respondent was not even contained in Form-XIV of polling station No.29. It is also submitted that the statement of count pertaining to the votes cast in favour of the candidate of the National Assembly is absolutely different from the votes of the Provincial Assembly which reflects that Ms. Malik had committed an illegality vis-a-vis the proper count and preparation of Form-XIV. Above all, it is argued that Ms. Malik had connived and colluded with the appellant because she, in ordinary course, should have been summoned through the learned Tribunal as an official witness, but in this case she not only appeared as a witness on behalf of the appellant rather it is a fact apparent on the record that she had provided him with her affidavit and that affidavit was produced before the learned Tribunal by the appellant himself meaning thereby that she had colluded with the appellant and such inference can be safely drawn. In support of his submissions, learned counsel for the respondent relied upon the case reported as Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCM R 284). 5. Heard. The key questions involved in this matter are:- first, whether the election of the appellant, on account of the amiss which is pointed out by the learned counsel for the respondent and the proof of committing illegal and corrupt practices by the appellant in connivance with the Presiding Officer; can be declared to be void; and secondly, whether such illegality if committed falls within the purview of section 70(a) of the Act and thus the election could be declared void as a whole but because the findings of the learned Tribunal vis-a-vis all other polling stations is in favour of the appellant and the only grouse is regarding one polling station, the difference of votes whereof is only 1,400, thus even if these votes are excluded, in that eventuality the election of the appellant would not be materially affected. In order to appreciate the above, the relevant provisions (parts) of sections 68, 69, 70 and 83 are reproduced as below:- "68. Ground for declaring election of returned candidate void.---(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that-. (2) The election of a returned candidate shall not be declared void on the ground- (a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by, or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission; or (b) that any of the other contesting candidates was, on the nomination day not qualified for or was disqualified from, being elected as a member. 69. Ground for declaring a person other than a returned candidate elected.-The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected. 70. Ground for declaring election as a whole void.-The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of- (a) the failure of any person to comply with the provisions of the Act or the rules; or (b) the prevalence of extensive corrupt or illegal practice at the election.
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83. Illegal practice.-(1) A person is guilty of illegal practice if he-obtains or procures or attempts to obtain or procure, the assistance of any person in the service of Pakistan to further or hinder the election of a candidate; (2) Any person guilty of illegal practice shall be punishable with imprisonment for a term which may extend to six months -and fine which may extend to five thousand rupees." 6. Before answering the two aforementioned questions, we find it expedient to understand the legal framework of sections 68, 69 and 70 of the Act. These sections can be broadly divided into two parts:- (i) Sections 68 and 69 stipulate the grounds for declaring the election of a returned candidate void and declaring a person other than the returned candidate as elected, respectively; and (ii) Section 70 governs the grounds for declaring the election as a whole void. Once any of the grounds enumerated in Section 68 have been established through such quality evidence which has been prescribed by various dicta of the apex Court in this behalf; the obvious consequence as per the law shall thus be to declare the election of such returned candidate as void. While passing such order the Tribunal under section 69 ibid though is duly empowered to declare the election petitioner or any of the contesting respondents as the returned candidate, it may make such declaration only if a claim in this regard has been set out by them. Furthermore, such declaration shall not be made as a matter of course or a right or ipso facto rather only in the circumstances of the case where the election petitioner or the respondent of the election petition is able to substantiate and make out a case qua his entitlement to the satisfaction of the Tribunal. This entitlement shall be dependant on the facts and circumstances of each case; the reasons set out and proof for the entitlement thereof; in this context the guiding principles have been propounded in the case reported as Syed Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 SC 6). Thus the grant of relief to the election petitioner or any other respondent in the election petition under the provisions of Section 69 of the Act must be proved on the strength of their own entitlement to get elected in place of the returned candidate, as has been laid down by this Court in Dr. Sheela B. Charles v. Qaisar Ifraeem Soraya and another (1996 SCM R 1455). ' While considering the parameters of section 69, particularly with respect to a runner up (and not any of the other candidates) and where the returned candidate has been found to be disqualified and his election has been declared as void, as has been consistently held by this Court in a line of cases reported as Rashid Ahmad Rahmani v. (I) Mirza Barkat AU, (2) Master Fazal Elahi and (3) The Additional Commissioner, Lahore (PLD 1968 SC 301); Lal Muhammad v. Muhammad Usman and others (1975 SCM R 409); Muhammad Ryas v. The Returning Officer etc. (1981 SCM R 233); Junaid Ahmad Soomro v. Hail Mehboob Ali Bhayo and others (PLD 1986 SC 698); Sahibzada Tariqullah v. Haji Amanullah Khan and others (PLD 1996 SC 717); Engr. Lqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others (2000 SCM R 250); Ellahi Bakhsh v. District and Sessions Judge, Rajanpur/Election Tribunal, Dera Ghazi Khan and others (PLD 2003 SC 268); Mian Ahmed Saeed and others v. Election Tribunal for Kasur at Okara and 7 others (2003 SCM R 1611); Sh. Amjad Aziz v. Haroon Akhtar Khan and 10 others (2004 SCM R 1484); Bashir Ahmed Bhanban and another v. Shaukat Ali Rajpur and others (PLD 2004 SC 570); Shaukat Ali and another v. District Returning Officer and another (PLD 2006 SC 78); Imtiaz Ahmed Lali v. Ghulam Muhammad Lali (PLD 2007 SC 369) and Chaudhry Muhammad Munir and others v. Election Tribunal, Mandi Bahauddin and others (2009 SCM R 1368), it is not the case that the votes of the returned candidate (who has been disqualified and whose election as a returned candidate has been declared to be void under section 68) are to be simply disregarded or discarded on the doctrine of throw away B votes and the runner up is to be automatically declared as the duly elected returned candidate by virtue of having secured the next highest number of votes; rather the notoriety of the disqualification amongst the voters at the time of polling has to be examined and if the disqualification is found to be notorious (apparent or known to the public), only then can the votes of a winner of an election
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be thrown away, and the runner up be declared to be the duly elected returned candidate. If the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences, then the runner up cannot be declared to be the duly elected returned candidate, as the possibility cannot be ruled out that any of the other candidates could have won the elections, hence the election must be declared to be void as a whole and fresh elections must take place (as per the law enunciated in the cases of Rashid Ahmed, Pyar Ali, Lal Muhammad, Muhammad Ryas and Ahmed Saeed). It may be pertinent to mention here that a runner up is required to prove the notoriety of disqualification of the successful candidate at the time of polling through positive evidence. It is also worthy to point out that though notoriety is with respect to disqualification, the test is essentially that of the validity (or otherwise) of the votes in question, which exercise was taken by this Court in the case of Pyar Ali, where there were allegations of illegal and corrupt practices as opposed to disqualification. Whether or not the principle of 'throw away votes' can be invoked in cases other than that of disqualification would ultimately depend upon the facts and circumstances of each case, the nature of the allegations leveled in the election petition and the quality of evidence produced before the election tribunal. ' The upshot of the above discussion is that sections 68 and 69 of the Act constitute a two-prong test, both limbs of which must be satisfied by any election petitioner or respondent to a petition challenging the election of the returned candidate, if any of them wish to be declared duly elected in place of such returned candidate. ' Now coming to section 70 of the Act, the provisions of which pertain to declaration of the election as a whole void (as opposed to the election of the returned candidate only), such a declaration can only be so made if there is a failure of any person to comply with the provisions of the Act or Rules or there is prevalence of extensive corrupt or illegal practice at the election, either of which must materially affect the result of the election. 7. The first question which requires deliberation is whether the lapses in the election pointed out by the learned counsel for the respondent constitute illegal practices within the purview of the law and consequently the election of the appellant can be declared to be void. It may be pertinent to mention here that the evidence led by the respondent, the findings of the learned Tribunal and the submissions of the learned counsel for the respondent do not fall within the realm of "corrupt practices" (defined in section 78), thus we do not find it necessary to refer to the same, rather we have confined ourselves to the relevant issue of "illegal practices" (defined in section 83). A perusal of the election petition indicates that the thrust of the respondent's allegations is that the appellant colluded and connived with the election staff, particularly the Presiding Officers of polling stations Nos.2, 18, 23, 29, 32, 55 and 68 (the respondent discarded his allegations vis-a-vis polling stations Nos. 71 and 77 during the trial of the election petition), who have fabricated, forged and manipulated the count in a manner which has illegally increased the votes of the appellant and decreased that of the respondent. The learned Tribunal held that the respondent could not prove his allegations vis-a-vis polling stations Nos.2, 18, 23, 55 and 68. With respect to polling station No.32, the minor discrepancy in the votes was admitted by the Presiding Officer of the said polling station to be a bona fide mistake on his part, thus in essence the respondent's allegations of collusion and connivance and illegal practice also did not stand to be proved vis-a-vis polling station No.32. The only contentious polling station that remained was that of No.29, with respect to which learned counsel for the respondent confined his arguments to before us. We find it beneficial to reproduce the relevant portions of the learned Tribunal's findings vis-a-vis polling station No.29: "Issues Nos.2, 3 and 4. ' Now coming to the count in respect of Polling Station No 29 which is the most controversial count from the petitioner's point of view. Its Presiding Officer, Mst. Sofia Sultana Malik was examined as exhibit 0-5 and was cross-examined by both the learned advocates for the parties. As per her
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evidence the returned candidate had obtained 1400 votes which were mentioned in her official statement of count, Form XIV, exhibit 0-5/3. However, admittedly in this statement of count even the name of the petitioner was not mentioned as she was completely ignorant of the fact that he too had contested the election from the said constituency. This statement of count does not provide the other required details as far as the names of all the contesting candidates and the votes polled by them are concerned. Section 38(9) of the Act directs the Presiding Officer of polling station that immediately after the count he shall prepare statement of count in such form as may be prescribed (Form-X1V) showing therein the numbers of valid votes polled by each contesting candidate and the ballot papers excluded from the count. There are other unexplained discrepancies also in the same including corrections, overwriting and miscalculation in counting. The violation of the above provision of law has made the statement highly doubtful and requires furhter objective scrutiny before reaching to any firm conclusion as far its legal effects are concerned. For this the conduct and neutrality of the Presiding Officer will be the most important factor. In this regard the act of filing of her own affidavit in evidence, exhibit 0-5/1, voluntarily in support of the returned candidate show her bias in favour and is sufficient to hold that she did not act fairly and independently while performing her duties as polling official for whom it was incumbent under the Act to discharge her duties honestly within the contemplation of its provisions. This finding gets full support from the consideration of the total votes cast at the corresponding Polling Station No. 159 of National Assembly constituency, NA-241 in comparison with the total votes cast at polling station No. 29. The total votes cast at polling station No.159 were 148 (as per exhibit P-5/17, consolidated result which is an admitted document) whereas the total votes cast at polling station No. 29 of this constituency were 1440 and there is no logical reason of such a huge difference when each voter is required to cast his vote to the contesting candidate of his choice for the National Assembly and Provincial Assembly. The Presiding Officer during her cross avoided to reply the questions in this regard showing her ignorance. The total votes polled at the polling station No. 149 of NA-241 corroborates the evidence of the polling agent of the Petitioner, Mst. Sajida, exhibit P-11, in which she has deposed that as per official count, the votes polled by the Petitioner and the returned candidate as furnished by the Presiding Officer were 117 and 83 respectively and the total votes cast at these two polling stations for both the constituencies were 117 and 111, exhibit P-11/1, This statement is bearing the purposed signature of the Presiding Officer, Ms. Sofia Malik. Without going into the genuineness of this signature by comparing with her admitted signatures on exhibit, 0- 5/2 to 0-5/5 but on the basis of quality evidence produced by the petitioner which is fully corroborated with the circumstantial evidence it is held at polling station No 29 the petitioner polled 117 votes and the returned candidate 83 votes. ' To sum up the above discussion it is suffice to say that except for the polling station Nos. 29 and 32 the petitioner has failed to prove the statements of count relied upon by him showing the figures of votes polled by him or by the returned candidate. The issue is decided accordingly. Issues Nos. 6 and 7 ' Since it has been admitted that the returned candidate has obtained the assistance of the Presiding Officer to further his own election as a candidate, but for this it is to be examined whether the said presiding officer is in the service of Pakistan. ' Applying the above principle the Presiding Officer Ms. Safia Sultana Malik was admittedly employed as school teacher in Sindh Welfare Board, Govt. Of Sindh, as admitted by her in her evidence therefore she is in the service of Pakistan. The returned candidate has therefore committed an act of illegal practice within the ambit of Section 83(b) of the Act on account of obtaining her illegal assistance to further his election as a condidte.
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' In this case the connivance between Mst. Safia Malik, the Presiding Officer and the returned candidate is also floating on the surface of the record as discussed in detail in the relevant issues and there cannot be any doubt that the act of mentioning 1400 votes polled by the returned candidate illegally was nothing but to procure her assistance to further his election as candidate. Hence he has committed an act of illegal practice within the contemplation of the section 83(b) of the Act." ' Before we embark upon an analysis of the evidence and a determination about the correctness or otherwise of the findings of the learned Tribunal, it is pertinent to mention that the rules of proof for the grounds challenging the election which are founded on corrupt and illegal practices are quite strict and stringent and the allegations in this regard must be absolutely proved through positive evidence without accepting any inferences and if there is any doubt, the benefit must go to the person…
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