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Petitioner: WALID IQBAL VS Respondent: Sh. ROHALE ASGHAR and 17 others
Court Name: Election Tribunal Judge(s): Kazim Ali Malik Title: WALID IQBAL vs Sh. ROHALE ASGHAR and 17 others Case No.: Election Petition No,316 of 2013 Date of Judgment:2014-06-30 Reported As: 2015 CLC 194 Result: Petition dismissed
Judgment ORDER JUSTICE KAZIM ALI MALIK (ELECTION TRIBUNAL).- Wand Iqbal, petitioner (for short, the 'petitioner') and Sheikh Rohale Asghar, respondent No,1 besides respondents Nos.2 to 18 contested General Elections, 2013 held on 11th May 2013 for the position of Member, National Assembly from Constituency No,NA-124, Lahore-VII. On close of the poll, the Returning Officer grew up consolidated statement of the results of the count in form XVI on the basis of statements of the count in form XIV furnished by the Presiding Officers according to which, Walid Iqbal, petitioner secured 42,561 Votes whereas Sheikh Rohale Asghar, respondent No,1 obtained 119,312 votes. In this way, Sheikh Rohale Asgliar, respondent No,1 defeated all the rival candidates including Walid Iqbal, petitioner/runner up by 76,791 votes. Election Commission of Pakistan notified Sheikh Rohale Asghar, respondent No,1 as the returned candidate (for short, the 'returned candidate') from the above said Constituency. 2. Feeling dissatisfied with the result of the election to the above effect, Walid Iqbal, petitioner filed Election Petition No,316 of 2013 with an allegation that the returned candidate managed his success by adopting corrupt and illegal practices and that he was not eligible to contest the election as he relied upon bogus, forged and fictitious educational certificates. 3. In response to the notices issued to respondents Nos.1 to 18, only Sheikh Rohale Asghar, respondent. No, 1/returned candidate; Bushra Aitzaz, respondent No,2 and Muhammad Nawaz, respondent No,8 entered appearance whereas respondents Nos.3 to 7 and respondents Nos.9 to 18 opted to remain absent and were proceeded against ex parte. Sheikh Rohale Asghar, returned candidate and Bushra Aitzaz, respondent No,2 filed written replies. Muhammad Nawaz respondent No,8 joined the proceedings regularly without filing his written reply. It is manifest from written reply filed by Bushra Aitzaz, respondent No,2, who could secure 6,990 votes only, that she attempted to
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assume the role of petitioner without filing an Election Petition against the election of returned candidate. Here, I would say that section 52(1) of the ROPA, 1976 stands in the way of Bushra Aitzaz, respondent No,2 to assail the election of the returned candidate without filing Election Petition. For facility of reference, section 52(1) ibid is reproduced below:--- 52. Election Petition.--- (1) No election shall be called in question except by an election petition made by a candidate for that election (thereafter in this Chapter referred to as the petitioner). Keeping in view the statutory bar contained in section 52 ibid, Bushra Aitzaz, respondent No,2 cannot assume the role of petitioner by filing written reply in the Election Petition filed by her political rival, Walid Iqbal. I, therefore, exclude her written reply in the form of Election Petition from consideration, particularly when she (respondent No,2) neither entered the witness box nor produced any other evidence. I have already observed in the preceding lines that Muhammad Nawaz, respondent No,8 did not file written reply. He also did not produce oral or documentary evidence. However, he sided with the petitioner. In view of the above said state of record and law, only Walid Iqbal, petitioner and Sheikh Rohale Asghar, returned candidate remained in field. 4. Through his written reply, the returned candidate denied and dismissed all the allegations against the election process and his candidature. He also raised a few preliminary objections of legal nature. 5. Keeping in view counter versions of the petitioner and the returned candidate, which they laid before the Tribunal through the Election Petition and the Written Reply respectively, following issues were framed:--- (1) Whether the election petition is incompetent in its present form? OPR1. (2) Whether election petition is liable to dismissal for noncompliance of the provisions contained in section 55 of the Representation of People Act, 1976? OPR1. (3) Whether the election petition is actuated by bad. Faith? If so its effect? OPR1. (4) Whether respondent No,1 was not qualified to contest the election in question? OPP. (5) Whether respondent No,1 was disqualified to contest the election in dispute? OPP. (6) Whether the election in dispute is liable to be declared as void and the petitioner is entitled to be declared as duly elected from constituency NA-124 Lahore-VII for the reasons stated in the Election Petition? OPP. (7) Whether criminal proceedings should be initiated against respondent No,1 under the Representation of the People Act, 1976 for the reasons stated in the Election Petition? OPP. (8) Relief. 6. The petitioner entered the witness box as PW-6 in support of his case add cause. He also got examined his election agent Nasara Iqbal (PW-1) and polling agents; namely, Zaheer Ahmed (PW- 2); Faisal Latif (PW-3); Arslan Akram (PW-4) and Inam-ul-Haq (PW-5). On an application of the petitioner certified copies of complete record of Election Petition No,135 of 2008 arising out of General Elections, 2008 contested by Sheikh Rohale Asghar, returned candidate and his the then political rival Humayun Akhtar Khan, was made part of record of the Election Petition in hand. The petitioner was also allowed to bring on record an attested copy of marked Electoral Roll spreading over 118 pages, which he obtained from the Election Commission of Pakistan in terms of section 45 of the ROPA, 1976. 7. On the other hand, Sheikh Rohale Asghar, returned candidate supported his counter claim as RW-1. He did not examine any other witness. However, the returned candidate produced attested copies of his BA degree, Exh.RW-1/A; Certificate of Intermediate Examination, Ex.RW-1/B; Certificate of Secondary School Certificate, Exh.RW-1/C, his own affidavit, Exh.RW-1/D and detail marks certificate, Exh. RW-1/E.
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8. I have heard both sides and have perused the evidence brought on record by the petitioner and the returned candidate. 9. Learned counsel for the petitioner has contended that the petitioner put forward specific instances of corrupt and illegal practices committed by the returned candidate in connivance with the Govt. Officials and his own supporters and that the same were also proved at trial with evidence. On the other hand, learned counsel for the returned candidate dismissed the above said argument with the plea that the petitioner made vague, general and meaningless allegations. 10. Keeping in view the arguments of both sides, I have minutely gone through the Election Petition wherein the petitioner alleged that the election/polling agents and supporters of the returned candidate got credited votes to the vote account of the returned candidate, which had been polled to the petitioner; that the election/polling agents and supporters of the returned candidate themselves managed and controlled the election process; that the returned candidate and his supporters/ polling agents committed illegal and corrupt practices and violated the provisions of ROPA, 1976; that the results of the election had been engineered in advance; that the returned candidate and his election agents/supporters offered gratification and rewarded many persons including Government officials, who induced the voters to refrain from voting in favour of the petitioner; that the returned candidate and his polling agents/supporters extended threats, used force, resorted to violence and injured the voters in order to compel them to exercise their right of vote in favour of the returned candidate; that the returned candidate and his polling agents harassed the voters/supporters of the petitioner and restrained them from casting their vote; that the polling agents of the returned candidate with the support of Presiding Officers of various polling stations snatched ballot papers from illiterate voters and themselves stamped the snatched ballot papers in favour of the returned candidate; that numerous bogus votes had been cast in favour of the returned candidate by his polling agents; that the Presiding Officers committed illegalities while counting votes; that the Presiding Officers excluded such votes from the count, which had validly been polled to the petitioner; that the returned candidate committed illegal practices, violated the law, adopted pressure tactics and intimidated the voters; that the polling staff in connivance with the polling agents of the returned candidate stuffed the ballot boxes with ballot papers; that polling agents of the returned candidate themselves thumb marked hundreds of counterfoils; that votes, which should have been excluded from the count being invalid had been counted towards the vote account of the returned candidate and that the returned candidate hoodwinked the law and procedure in his favour and thus rigged the election. 11. At the very outset, I would say without any fear of contradiction that the aforesaid allegations do not qualify the legal test laid down by section 55(1)(b) of the ROPA, 1976, which reads as under:--- "Contents of petition,---(1) Every election petition shall contain --- (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and " A combined examination of the allegations set up in the Election Petition, referred to above and the statutory provisions of section-55 ibid would show that the petitioner completely failed to put forward full particulars of corrupt and illegal practices or other illegal acts alleged to have been committed by the returned candidate and his supporters. Similarly, the aforesaid allegations do not tell the names of those persons, who committed corrupt or illegal practices. A bare perusal of the allegations given in the Election Petition would show that instead of providing full particulars of the corrupt and illegal practices allegedly committed during the election process, the petitioner relied on vague and general allegations. Hence, I exclude the aforesaid allegations from consideration being violative of the mandatory provisions of section 55 ibid.
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Learned counsel for the petitioner attempted to argue that at trial of election dispute, the petitioner proved the corrupt and illegal practices with evidence and also furnished their details, which could not be given in the Election Petition. This contention is not receiving support from the record. Affidavits of Zaheer Ahmad (PW-2) and Faisal Latif (PW-3) repeated the vague allegations in line with each other word for word. The statements of other witnesses of the petitioner are of no help to him because he is not right in his assertion that his witnesses examined at trial proved the general allegations or explained the vague allegations. My this conclusion is receiving support from the testimonies of the witnesses of the petitioner. Relevant lines of their testimonies are reproduced below for facility of reference:--- Nasara Iqbal (PW-1): I did not mention name of polling agent at Ghulistan Public School, who made telephonic complaint to me at about 11.30 AM. In my presence ballot boxes had not been stuffed at polling station Ghulistan Public School. The male supporters of the returned candidate were found indulged in corrupt practices inside the female polling station of Government Yasmeen Girls High School Mugal Pura. I did not mention their names in my affidavit as they were not known to me. Votes in a sizeable number had been cast through impersonation, but I did not give their names and particulars in the affidavit as it was not possible. I did not give name of a single voter of the petitioner whose vote had been cast through impersonation. I did not mention names of members of polling staff indulged in corrupt practices because they were not known to me. Myself, our voters and our polling agents were not allowed to enter the polling station to discharge their duty. I did not mention the names of our said polling agents in my affidavits. I saw at the polling station of Dhobi Ghaat, that the members of polling staff were openly involved in rigging. I do not know the names of said members of polling staff. I did not mention name of a single voter whose vote had been cast by the polling staff. I did not mention name of the person from whom I received telephonic complaint regarding the polling station Mustafabad. I saw at a number of polling stations that the voters were forced and compelled to cast vote in favour of the returned candidate. Zaheer Ahmed (PW-2): I did not mention names of those voters in my affidavit from whom their CNIC had been taken away. I kept on sitting outside the polling station till 8.00 PM with my own will. I sat outside the polling station during the counting. I did not mention names of the voters who had been deprived of their right of vote. I did not give names of those, who extended threats to the voters. In a sizeable number the votes should have been excluded from the count and rejected. Faisal Latif (PW-3): I levelled allegations against voters and supporters of the returned candidate without giving their names as they did not belong to the area attached with said polling station. I did not mention names of those voters in my affidavit whose identity cards had been collected by supporters of the returned candidate after obtaining their thumb impressions. I have not given names of the members of polling staff in my affidavit. I did not mention names and number of voters, who could not cast their vote. I did not mention names and designation of the police officials in the affidavit, who indulged in corrupt practices. I did not mention number of voters of returned candidate who had been facilitated to cast vote after close of the poll. I did not give the number of votes, which in my opinion should have been excluded from the count instead of counting towards the vote account of the returned candidate. Arslan Akram (PW-4): I saw with my own eyes that supporters of the returned candidate themselves stamped ballot papers in favour of the returned candidate. I repeatedly agitated before the members of polling staff orally and in writing that the polling process was being rigged, but with no response. I have
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not given names of the above said members of polling staff in my affidavit. I did not mention in my affidavit names and number of voters, who could not cast their vote. I have not given the number of votes in my affidavit, which should have been excluded from the count instead of counting towards the vote account of the returned candidate. Inam-ul-Haq (PW-5): I did not mention names and designation of the police officials in the affidavit, who indulged in corrupt practices. Sub-Inspectors, police indulged in incorrupt practices. I have not given names of those members of polling staff who supported the returned candidate. Walid Iqbal (PW-6): I have not given the names and particulars of the members of the polling staff, police officials and the officers of District Administration, who sided with the returned candidate with reference to the allegations regarding the polling stations of Salamat Pura and Harbanspura. I have not given the names ofmy polling agents, who had been forced out at the time of counting of votes. I have not given name and number of polling stations, where the polling process had been delayed with a motive to discourage my voters. I have not given the names of my those voters who had been prevented by the polling staff and the police officials from exercising their right of vote. It is evident from the statements of the PWs that they attempted to reshape and improve upon their initial stance. Despite improvements at trial, the PWs failed to prove the allegations beyond any shadow of doubt. Statements of the examined PWs and allegations set up in their affidavits and the Election Petition have been examined together and D their combined examination provides a basis to say that all the aforesaid allegations remained vague as they were before the inception of trial. 12. Learned counsel for the petitioner further argued that a large number of votes, which should have been rejected and excluded from the count, had been counted as validly polled votes by the Presiding Officers and the Returning Officer and that the details in this regard were set up in the Election Petition in tabulated form. Before scrutiny of the contention, the tabulated stance of the petitioner is reproduced below:--- Number of polling stations.Number of votes, which have been Illegally rejected and which are Otherwise valid votes in favour of The petitioner. Number of votes, which have been counted as valid votes in favour of respondent No. 1 to otherwise are liable to be rejected.Number of valid votes actually obtained by the petitioner including votes shown as rejected in form XIV and excluded votes wrongly counted in favour of respondent No.1.Number of votes actually obtained by respondent No.1.
256 2432 336665 44843 85039 To a question, as to what was/is the basis of the tabulated statement, learned counsel for the petitioner was possessed with no answer. It appears that wishful thinking persuaded the petitioner
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to place relianceon the ground of attack in tabulated form despite the fact that he was/is not possessed with any evidence in support of the same 14. At the cost of repetition, I would say that each and every allegation, referred to above is meaningless and without any basis. The petitioner alleged that supporters of the returned candidate bribed the electors. The Election Petition and testimonies of the witnesses do not tell as to who bribed the voters. Similarly, the names and particulars of those voters, who received illegal gratification, could not be furnished by the PWs. Statements of the petitioner and his witnesses do not disclose identity of the voters, who had been harassed or injured by the supporters of the returned candidate. Likewise, names and particulars of those, who had threatened and injured the electors, are missing: Not a single voter entered the witness box, who had allegedly been threatened or injured by the supporters of the returned candidate. Medico-legal reports of the injured electors, if any, were not adduced in evidence. Not a single voter could be produced, who had been forbidden by the supporters of the returned candidate from casting his vote in favour of the petitioner. Not a single voter could be named and particularized by the petitioner and his witnesses, who could not exercise his right of vote due to alleged highhandedness of the supporters of returned candidate. In these circumstances, the aforesaid allegations by the petitioner are at the most his self-assertions. Needless to add that self-assertion is not the IF substitute of legal evidence. 15. Learned counsel for the petitioner halfheartedly argued that his polling camp at polling stations Nos.129 and 130 had been demolished by the polling staff and the police; that the polling staff was given possession of the buildings of polling stations a day before the election day and that a few polling stations of the constituency were established in the buildings of private schools. I find it convenient to take up each allegation separately. The statement of Nasara Iqbal, PW-1 would show that polling camps of the petitioner and the returned candidate at the above said polling stations had been uprooted as the same had been established within the prohibited zone. The only grievance of Nasara Iqbal, election agent/PW-1 was that the polling camp of the, petitioner was demolished first and that of the returned candidate was removed with delay. Be that as it may, it stands established on the basis of statement of election agent of the petitioner that both sides were treated at par as their polling camps had been uprooted for having been installed within the prohibited zone. For the sake of arguments, if it is admitted that the polling camp of the petitioner was removed first and that of returned candidate was demolished with some delay, even then the election of the returned candidate, who defeated the petitioner by 76,791 votes would not be adversely affected. Now I take up the second allegation. I fail to understand as to why this meaningless allegation has been levelled by the petitioner. The members of polling staff were under legal obligation to establish polling stations according to the polling scheme at least one day before the polling day. Had the polling staff not occupied the buildings of polling stations one day before the polling day, it would have been difficult rather impossible for them to conduct the election on the polling day. For two reasons, I do not feel inclined to attach any importance to the third allegation. If the petitioner was aggrieved of notified polling scheme by means of which a few polling stations were established in the buildings of private schools, he should have filed objections within the prescribed period before the District Returning Officer. Secondly, due to non-availability of official buildings, the District Returning Officer was left with no other option but to establish polling stations in the buildings of private schools. Needless to add that there is not an iota of direct or indirect evidence on the file, which may show that the election conducted in the buildings of private schools caused any damage to the cause of petitioner or any other contesting candidate. 16. For the aforesaid reasons, the case of the petitioner to the extent of allegations against the election process, falls to the ground.
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17. After coming to the conclusion that it is a case of no evidence to the extent of allegations against the election process, I take up the second ground of attack against candidature of the returned candidate that he relied on fake and bogus educational certificates. At trial, Walid Iqbal, petitioner (PW-6) deposed in this regard as under:---"The returned candidate was not qualified to contest the election in terms of Articles 62 and 63 of the Constitution. He submitted false declaration regarding his educational testimonials before the Returning Officer. He wrongly claimed to be graduate on the basis of fake and bogus degree. The returned candidate contested the General Elections, 2008. At that time, he claimed to be graduate on the basis of fake and bogus degree." On the other hand, Sheikh Rohale Asghar, returned candidate (RW-1) produced degree of Information Technology awarded by Al-Khair University, AJ&K (Ex.RW-L/A), Intermediate Certificate (Ex.RW-1/B) and Secondary School Certificate (Ex.RW-1/C). A perusal of the educational certificates, referred to above would show that the returned candidate passed Secondary School Certificate Examination in 1969 as regular student of Government High School, Baghban Pura, Lahore. He passed Intermediate Examination (Pre-Engineering Group) in 1971 as regular student of FC College, Lahore. Although, the petitioner made an allegation through his Election Petition that all the educationalcertificates of the returned candidate were fake and fictitious, yet he could not lead any evidence against the Intermediate Examination Certificate and. Secondary School Examination Certificate, referred to above. During the course of arguments, the Matriculation Certificate and Intermediate Certificate of the returned candidate remained unchallenged. In this way only the degree of Bachelor of Information Technology (Ex.RW-1/A) obtained by the returned candidate at the examination held in April, 2003 remains under challenge. The petitioner claimed at trial that the aforesaid degree was fake and bogus. He did, not produce any documentary evidence in support of his allegation. To a question, as to how and on what basis the petitioner claimed that the degree (Ex.RW-1/A) relied upon by the returned candidate was fake and bogus, learned counsel for the petitioner has argued that the returned candidate contested General Elections, 2008 for the position of Member, National Assembly successfully; that his election was challenged by Humayun Akhtar Khan, one of the contesting candidates of that election through Election Petition No.135 of 2008 titled as Humayun Akhtar Khan v. Sheikh Rohale Asqhar and others wherein the degree in question stood proved fake and bogus in the light of statements of Muhammad Shareef Sabir, Registrar, Al-Khair University, Islamabad and Abid…
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