Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: BISMILLAH KHAN VS Respondent: ABDUL QAHAR KHAN WADAN
Court Name: Election Tribunal Judge(s): Amir-ul-Mulk Mengal Title: BISMILLAH KHAN vs ABDUL QAHAR KHAN WADAN Case No.: Election Petition No.98 of 1993 Date of Judgment:1995-12-17 Reported As: 1996 MLD 1619 Result: petition dismissed
JUDGMENT
JUDGMENT This is an Election Petition under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 52 of the Representation of the Peoples Act, 1976 (hereinafter referred to as the Act), whereby the petitioner has challenged Election of the 1st respondent from PB-8. Qilla Abdullah-I who was declared the Returned Candidate. Brief facts for filing of this petition are that the petitioner along with private respondents contested the Election of Provincial Assembly Baluchistan from PB-8 Qilla Abdullah-I held on 9-10-1993. The petitioner contested Election as a nominee of Pakistan National Party, whereas respondent No.1 was candidate of Pashtoon Khawah Milli Awami Party. As a result of Election, on final counting, the 1st respondent obtained 5054 votes, whereas petitioner got 4451 votes, thus the respondent No.1 was declared as a Returned Candidate. It is to be noted that there were 47 Polling Stations in the said Constituency and according to the petitioner he obtained majority of votes except in 7 Polling Stations, the detail whereof is as under:---
S. No.Name of Polling StationVotes secured by Returned CandidateVotes secured by petitioner 1 Primary School Killi Sharan 263 1 2. Primary School Killi Arambi Kakozai515 3 Primary School Killi Jumma Khan317 3 4 Primary School Killi Goher 329
---
## Page 2
5 Primary School Killi.Shaista Khan 363 1 6 Primary School Killi Dilsora Karez 478 7 Girls High School Inayatullah Karez195 3
The main allegation levelled by the petitioner is that the Returned Candidate obtained a machine for preparation of bogus Identity Cards, specially of female voters and such Identity Cards were used at large scale in the seven Polling Stations where percentage of female voters was much high (almost about 80% of the total registered votes of .The females). It was further alleged in the petition that some bogus Identity Cards were also taken into possession by the Administrative Authority; but no action was taken in spite of the complaint l; made to that effect. Yet another objection taken by the petitioner -was that several series of Identity Cards have not yet been issued to the people of the abovementioned Constituency or other residents of District Qilla Abdullah but the same have been illegally, used. It was averred by the petitioner that the Returned Candidate got prepared 13000 bogus Identity Cards, to use it in the abovementioned Constituency. The petitioner had informed in writing, the Election Commission of Pakistan, but no action was taken. It was alleged that at Dorazai Polling Station 160 bogus Identity Cards were recovered from one Abdul Bari son of Muhammad Gul and he was also arrested but no action was taken against him. Similarly at Polling Station Primary School Jumma Khan one male voter wearing Burqa was caught red-handed, when he was about to cast a bogus vote at the female booth, who was sentenced at the spot. The petitioner made a complaint in writing to the Election Commission of Pakistan (copies to Election Commissioner, Baluchistan and Incharge Election Cell of Pakistan Army), with a prayer that result of the Constituency be withheld till an enquiry is made into the complaint made by him, however, this too went unheeded. On the Election day only 6 bogus Indentity Cards fell into the hands of agents of the petitioner which have been attached along with the petition. The petitioner approached the Returning Officer for supply of copies of counterfoils of ballot papers used in the Election in order to check the genuineness of the Identity Cards with the record of Registration Officer but of no avail. However, such orders were made by the Election Commission of Pakistan. After when the Election Petition was received by the Office, it was fixed for hearing on 19-12-1993. Thereafter Civil Miscellaneous Applications were filed and 1st respondent filed his written statement. On the basis of pleadings, following issues were framed:--- (1) Whether the petition is not maintainable for the reason that Notification dated 17-10-1993 has not been challenged? Onus on respondent No.1. (2) Whether copy of petition along with Annexures was despatched to the respondent through registered post acknowledgement due and received by him on 1-12-1993. If so, whether written statement was duly filed within 7 days after receipt of the petition and if not to what effect? (3) Whether the respondent No.1 won the election on account of corrupt practice bribery, personation, undue influence and threats to the polling staff? (4) Whether the respondent No.1 used Afghan refugees to cast votes in his favour by using bogus Identity Cards which influenced the whole election of PB-8 Killa Saifullah? (5) Whether the eldction of the Provincial Assembly PB-8 Killa Saifullah-I was won by the respondent No.1 by widespread use of bogus Identity Cards at Polling Stations Primary School Sharan, Primary School Arambi, Kakozai, Primary School Killi Jumma Khan, Primary School Killi Goher, Primary, School Killi Shaista Khan, Primary School Dilsora Karez and Girls High School karez and Girls School Inayatullah Karez, if so, to what effect? (6) Relief?
---
## Page 3
After disposal of the Miscellaneous Applications and with consent of the parties a Commission for taking evidence and comparing the counterfoils with the Registers of District Registration Officer, was constituted. Mr. Sakhi Sultan, Advocate was appointed as the Commissioner, but on 19-6-1994 he requested that he be exonerated from carrying out the work assigned to him as he was indisposed. Resultantly, learned District and Sessions Judge was appointed as the Commissioner for Taking Evidence with the following directions:--- "The District Registration Officer, Pishin is directed to personally bring concerned registers regarding identity cards and produce it before the learned District and Sessions Judge at Quetta. Learned District and Sessions Judge in presence of District Registration Officer shall compare the counterfoils of the ballot-papers with the Registers of Identity Cards kept by D.R.O. In order to find out their validity. For the said purpose one representative of each party shall be present during the proceedings before the learned District and Sessions Judge in order to assist him. The learned District and Sessions Judge after comparing the counter--foils with the registers shall submit his report in writing to this Tribunal. In order to do the needful the learned Sessions Judge shall fix a date convenient to him and summon District Registration Officer, Pishin and the representatives of the parties before him on the said date. " The Commissioner for taking evidence, who was appointed with consent of the parties, submitted his report after about one year. Civil Miscellaneous Application No. 19 of 1994 was filed which was also disposed of on 2-10-1994. In order to substantiate the allegations, petitioner Bismillah Khan filed an affidavit, entered the witness-box and was cross-examined. The Returned Candidate was also examined and he produced in rebuttal, 10 witnesses. Heard Mr. Azizullah Memon assisted by Mr. S.A.M. Quadri, Advocate for the petitioner, M/s. Iftikhar Hussain Gillani assisted by Mr. Ehsanulhaq and Mr. Muhammad Zafar for the returned Candidate. The remaining respondents did not contest. With this background; Mr. Memon argued that the Returned Candidate brought a machine to prepare bogus Identity Cards which were widely used by the female voters on these six Polling Stations. A number of such bogus Identity Cards were secured by the Election Officers on duty but no action was taken by them, despite serious objections raised by the Polling Agents of the petitioner. However, the Polling Agents of the petitioner got only six(6) bogus Identity Cards which have been brought on record. This Tribunal appointed a Commissioner for taking evidence in order to find out the number of votes cast on the basis of alleged bogus Identity Cards, after comparing the counterfoils with the original Registers kept by District Registration Officer. The Commissioner submitted his report indicating that 1159 bogus votes have been cast on these six Polling Stations, whereas the difference between the votes of petitioner and Returned Candidate is only 603 votes. Thus, the petitioner can be conveniently declared as a Returned Candidate, after declaring the election of Returned Candidate as void. Learned counsel emphatically urged that the Returned Candidate or his attorney raised no objection whatsoever to the report during the proceedings before the Commissioner nor thereafter. /This ,amounts to implied admission, according to the learned counsel. Even otherwise entire proceedings were conducted in presence of the attorney and counsel for the parties. As such this report is a credible piece of evidence to be taken into consideration by the Tribunal. Reference was made to Order 26, Rule 10, Civil Procedure Code. The Commissioner prepared the pro forma in the beginning of the proceedings, handing over the same to both the parties who raised no objection to the same. Therefore, the report becomes much relevant and pertinent in view of the aforementioned facts and the Same cannot be easily bypassed by the tribunal. In support of his above contentions, reliance was placed on the following authorities:---
---
## Page 4
(i) PLD 1978 Kar. 316: In this case it was inter alia held that although report of Commissioner is not binding on Court yet such report be treated as evidence. If no objection is filed against the report the Commissioner's evidence cannot be conveniently rejected; (ii) PLD 1978 Lah. 31: In this case it was held that the report of Commissioner is not a finding but an enquiry for information of Court. Commissioner's report was treated only as evidence and not a decision; (iii) AIR 1962 Andhara Pardesh 84: It was held that if the proceedings before the Commissioner conducted behind the back of defendants, such report becomes unreliable and examination of the Commission does not cure it; (iv) PLD 1955 Dacca 15: An observation was made that Court must consider the reasons given in report before rejecting it; ' (v) AIR 1940 PC 3: In this case it was held that it was not safe for a Court to act as expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness.Are unquestioned; (vi) 1981 CLC 364: ' It was decided that report of Local Commissioner is not binding on parties nor Court is obliged to decide dispute in terms thereof. However, if parties give undertaking to be bound by finding of Local Commissioner and agreeing upon the Court finally, position of such Local Commissioner would be of a referee; (Justice Amir-ul-Mulk Mengal, Election Tribunal) (vii) 1991 MLD 1774: It was held that acceptance of report could be on the basis of rejection of objection to that report or alternately on no objection having been raised at all. According to the counsel, this report lends sufficient corroboration to the allegations made by the petitioner against respondent No.1 that bogus votes were used in six Polling Stations. Besides, a preliminary objection was raised by the petitioner's counsel that the Returned Candidate did not file written statement within prescribed period of 7 days as required by Notification of the Election Commission of Pakistan dated 16-3-1985, therefore, the same cannot be taken into consideration and as such the allegations of the petitioner would go unrebutted. He relied on 1992 CLC 1766. The third argument canvassed before me was general in nature where the learned counsel explained how the bogus Identity Cards have been used and in some cases the female voters have used male votes. It was also pointed out that persons whose names were not entered in the Electoral Roll of these 6 Polling Stations also cast their votes, as is indicated from the Commissioner's Report. On the other hand, the main counsel for Returned Candidate while giving the background of the Election Laws in Pakistan outlined different principles to be ad hered to and explained the Scheme, Policy and Purpose of Election Laws. It was contended that the chief purpose of the entire. Scheme is to maintain secrecy of the ballot. It was next contended that the Act provides Special and Restricted Jurisdiction to the Tribunal.. The third contention raised was that the Act is comprehensive and self-contained, therefore, every provision of it must 'be strictly construed. The fourth contention agitated was that strict standard of proof is required to de-seat an Elected Representative, who has been chosen by the Electorate. As to the jurisdiction it was submitted that the Act provides two kinds of jurisdiction as follows:--- (1)Summary Jurisdiction. ---This jurisdiction starts from filing of nomination papers, objections thereto regarding disqualification of the candidate or any other objection and then filing of appeal, which is provided in sections 14, 38, 39 and 103 of the Act.
---
## Page 5
(2)Plenary jurisdiction. ---This process is initiated by filing an Election Petition before an Election Commission which is competent to scrutinize it and if found validly filed, then to refer it to the Tribunal who takes cognizance under provision of the Act and proceeds there under as provided in Chapter VII of the Act. The learned counsel then explained the scope of enquiry and jurisdiction of the Tribunal under the Act. Reference was made to sections 33 and 34 regarding tendered ballot papers and section 35 challenge of electors etc. Besides, my attention was also drawn to section 104 of the Manual of Instructions issued by the Election Commission of Pakistan, which authorises the Commission to provide procedural guidelines where no provisions exist in the Act. In support of his contentions reliance was placed on PLD 1957 SC 91, PLD 1986 SC 178 and PLD 1989 SC 396. In addition thereto learned counsel submitted that there are three stages where objections can be raised to an elector to cast his vote or if he has so cast his vote about validity of the vote. The first stage is during the polls. The second stage is at the time of counting and then when official counting is made by the Returning Officer. The counsel submitted that if 1159 votes had been found in the challenged ballot papers box as per rule 26(4) then of course, prima facie, the petitioner could argue about the same. But, in fact, even according to the report of the Commissioner for taking evidence only 56 votes were found in the challenged ballot paper box. While criticising the report of the Commissioner, the learned counsel submitted that its validity is doubtful firstly because this is an unauthorised report as it is not mandated by the Tribunal. In this respect the counsel read out order of the Tribunal referring the matter to Commissioner for taking evidence. It was submitted that the Commissioner travelled beyond the mandatory directions, therefore, such report cannot form a sole basis for unseating the Returned Candidate nor his election could be declared void. Reliance was placed on 1983 CLC 272 and PLD 1961 Dacca 65. Besides, the learned counsel argued that the Commissioner has not been produced as witness in order to clarify glaring contradictions in the report. .The counsel took me to different observations made by the Commissioner and submitted that those were factually wrong and totally incorrect in view of the documentary evidence as, for example, in many cases voters appeared in the list where he polled his vote, but the Commissioner has stated that his name did not appear in the Electoral Roll. As to wrong entries in the counterfoils, the learned counsel submitted that it may be a bona fide mistake on the part of Presiding Officer and the Returned Candidate has nothing to do with it nor any Election Agent or Polling Agent was associated in any manner with such wrong entries if at all done by the Presiding Officer. Thus, there is no connivance of the Returned Candidate with such clerical mistakes. Hence he could not be disentitled to be elected. Lastly while giving reply of Mr. Memon as regards- preliminary objection to the effect that written statement was not filed within 7 days as prescribed by the Notification of Election Commission of Pakistan, the counsel stressed that there is no penal clause, therefore, the objection cannot be sustained. Furthermore, it was argued that one order is passed and written statement is allowed to be brought on record, then the same cannot be kept out of consideration without strong reasons. To fortify these contentions reference was made to 1990 CLC 1078, 1989 CLC 1883 + 625 and PLD 1991 Kar. 299. I have given my anxious consideration to the arguments so advanced. At the very outset it may be pointed out thai Article 225 of the Constitution of Islamic Republic of Pakistan prescribes forum and jurisdiction regarding election dispute. It lays down that election to a House or a Provincial Assembly shall not be called in question except by an Election Petition presented to such Tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament). The Majlis-e- Shoora has passed such Act known as 'People' Representation Act of 1976. Thus, the Tribunal under
---
## Page 6
the said Act has got exclusive jurisdiction to decide about an Election Petition or an Election Dispute. It appears that besides the Tribunal, no other forum except petition under section 103 to the Election Commission has been provided to challenge Election of a Member to a House or a Provincial Assembly. The object of the Act is to provide a forum for smooth conduct of Elections of the House or the Provincial Assembly and to guard against corrupt and illegal practices or other offences at or in connection with such Elections and . For the determination of doubts and disputes arising out of it or in connection with such Elections and other matters arising out of and connected therewith. This object may be found in the preamble of the Act. The right of franchise is exercised by way of casting a vote by an elector. It is the expression of will of a voter in favour of a candidate, or in some cases his political party. The Act, in fact, is intended that the. Voter should not be influenced by extraneous considerations so that he may cast his vote in a free and fair manner and the corrupt or illegal practices should not be allowed to influence the result of the will of electorate. In a -nascent democracy like ours, emphasis has been laid to transparency of election process, so that fairness of an election is ensured. Undoubtedly secrecy of ballot is of paramount importance as laid down in Article 226 of the Constitution, but simultaneously. The sanctity of vote and the fairness of election process has also been `safeguarded by the Act. This jurisdiction has been exclusively vested upon a Tribunal constituted under the Act or the Election Commission in certain cases as provided under the Act. There is no cavil that the Act provides a special procedure but to say that the jurisdiction of the Tribunal is restricted cannot be readily accepted. It extends to ensure that no corrupt practice or illegality has been committed during conduct of Election so as to guard against corrupt and illegal practices and other offences in connection with such elections. The jurisdiction of the Tribunal cannot be restricted only to a section here or there to exclusion of other sections. Rather it covers all provisions as contained in the Act. I do not find, much force in the contention of Mr. Gailani that. Tribunal could exclude only such votes which are mentioned in section 38 of the Act and no other. Subsection 4(c) of section 38 may be reproduced as under:--,- Section 38. Proceedings at the close of poll.--- (1). . . . . . . . . . . . . . (2) (3) (4)The Presiding Officer shall--- (a) open the used ballot box or ballot' boxes and count the entire lot of ballot papers taken out therefrom; (b) open the packet bearing the label "Challenged Ballot Papers" and count them; (c) count in such manner as may be prescribed, the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear-- (i) no official mark and signature of the Presiding Officer; (ii) any writing or any mark other than the official mark, the signature of the Presiding Officer and the prescribed mark or to which a piece of paper or any other object of any kind has been attached; (iii) no prescribed mark to indicate the contesting candidate for whom the elector has voted; or (iv) any mark from which it is not clear for whom the elector has voted: Provided that a ballot paper shall be deemed to have been marked in favour of a candidate if the whole or more than half of the area of the prescribed mark appears clearly within the space containing the name and symbol of that candidate and, where the prescribed mark is divided equally between two such spaces, the ballot paper shall be deemed invalid. In fact, there are other provisions particularly section 68 which prescribes grounds for declaring election of Returned-Candidate void, and it is, for the sake of convenience, reproduced as under:-- -
---
## Page 7
Section 68. Ground for declaring Election of Returned Candidate void.-=-(l) The Tribunal shall declare the Election of the Returned Candidate to be void if it is satisfied that--- (a) the nomination of the Returned Candidate was invalid; or (b) the Returned Candidate was not on the nomination day, qualified or was disqualified from, being elected as a member; (c) the election of the Returned Candidate has been procured or induced by any corrupt or illegal practice; or (d) a corrupt or illegal practice has been committed by the Returned Candidate or his election agent or by any other person with the connivance of the candidate or his election agent. (2)..... From bare perusal of section 68(d) it becomes evidently clear that the Tribunal is competent to declare the Election of the Returned Candidate to be void, if it is satisfied that a corrupt or illegal practice has been committed by, the Returned Candidate or his election agent or by any other person with the connivance of the candidate or his election agent. However, there is substance in the arguments that such jurisdiction has to be exercised within the four corners and ambit of the Act and no other ground can be imported. I have already reproduced the issues. Issue No.1 was framed on the preliminary objection that Notification dated 17-10-1993 has not been challenged, therefore, the petition is not maintainable. But during arguments the counsel for the respondent did not say a word in support of this objection. It appears that this objection had been raised in a Luke-warm manner and was not pressed. This otherwise being a technical nature, the petition cannot .Be dismissed on this ground particularly when from perusal of the entire petition it appears that the petitioner has challenged the election. Issue No.2 was again a preliminary issue that petition along with annexures was not despatched to the respondent through registered post acknowledgement due, which was received by respondent on 1-2-1993, but the written statement was filed beyond 7 days. But I will deal with this issue at the later stage of the judgment. Issue No.3, Issue No.4 and Issue No.5 are all in respect of the allegations that election was won on account of corrupt practice, bribery, personation un due influence and threats to Polling Staff. It was alleged that Afghan refugees were used by Returned Candidate to cast votes in his favour by using bogus Identity Cards on 6 Polling Stations as named hereinabove. I, therefore, dispose of three issues together. The petitioner filed affidavits of Mst. Bibi Aisha who was his Polling Agent at Girls High School Inayatullah Karez. Abdul Qayyum who was Polling Agent at Killi Muhammad Khan Primary. School Faizullah his Polling Agent at Killi Shaista Khan, Muhammad Shafiq his Polling Agent at Primary School Sharan, Gul Ghutai his Polling Agent at Polling Station Killi Habibzai, Gul Makai his Polling Agent at Polling Station Civil Dispensary Kalak, Farzana, Marina, Rehmat, Gul Bushra, Miss Rehana, Naimatullah, Rafiullah, Liaquat Ali, Amanullah, Aman Khan, Bibi Naseema and Muhammad Shafiq. But none of these witnesses was produced for cross-examination before the Tribunal. Besides, affidavits of Muhammad Ismail, Wali Jan and Shahabuddin were also filed who claim to be appointed by Human Rights Commission to watch election of PB-8 Killa Abdullah-I but they were not produced for cross---examination. Thus, in support of the petition, the petitioner produced no…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.