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Petitioner: Sardar MUHAMMAD SALAH GOPANG VS Respondent: Sardar ALLAH BUX KHAN JALBANI and JUDGMENT
Court Name: Election Tribunal Judge(s): Abdul Razzaq A. Thaim Title:Sardar MUHAMMAD SALAH GOPANG vs Sardar ALLAH BUX KHAN JALBANI and
JUDGMENT
Reported As: 1986 MLD 2320 Result: petition accepted Judgment JUDGMENT JUDGMENT ' Sardar Muhammad Salah Gopang, petitioner and respondents Nos.l to 8 contested Election for membership of the Sind Provincial Assembly from Constituency No,P S-Larkana--II. As result' of Poll Sardar Allah Bux Jalbani, respondent No,1 (hereinafter to be referred as respondent) was declared elected as he secured 12,534 votes. The petitioner obtained 12,032 votes. 2. The petitioner has filed this petition under section 52 of the Representation of the Peoples Act, 1976 (hereinafter to be referred as Act) to challenge the validity of election with a prayer to declare the election as void and order petitioner duly elected from the above-said Constituency. 3. The grounds taken in the petition briefly are that:- (i) Respondent is guilty of illegal and corrupt practice as he used transport and did not allow Polling Agents of the petitioner to sit in the Polling Stations, etc. (ii) That at the last moment Polling staff was changed from some Polling Stations contrary to the provisions of Act and Rules just to favour the respondent which has materially affected the result of the Election. (iii) Respondent is a person of bad character, therefore, he was disqualified. (iv) Returning Officer has acted partially and openly favoured the respondent. 4. None except respondent, a returned candidate contested the petition. He controverted all the allegations in his written statement. 5. On the pleadings of the parties following consent Issues were framed:-
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(1). Whether the election petition is not maintainable in law for non-compliance with the provisions of section 55 of Representation of Peoples Act, 1976? (2). Whether the exchange of place of posting of Presiding Officers of P.S. 43 and P.S. 40 amounts to an illegal practice? If so, its effect. (3). Whether respondent No,1 is guilty of rigging of election and commission of illegal and corrupt practices as alleged? (4). Whether the election result is bad for being result of faulty counting of ballot papers, as alleged? (5). Whether the petitioner expressed his satisfaction as to the counting of votes? If so, its effect. (6). Whether respondent No,1 is a person of bad character and for that reason is not qualified for being member of the Provincial Assembly as such? (7). What should the order be? 6. Issue No,1 is with regard to maintainability of petition. In the petition all contesting candidates and Returning Officer have been joined as respondents. On perusal of the petition it is clear that precise statement of material facts is given. It is stated for the petitioner that Polling staff was changed, transport was provided in bringing bogus voters, the Polling Agents of petitioner were not allowed, etc. The petitioner has given particulars in order to afford opportunity to A respondent to rebut that evidence. The Election Petition must indicate the purpose for what it is filed. On this reference can be made t cases, Muhammad Shafi v . Election Tribunal, Bahawalnagar District and another PLD 1966 (W.P) Lah. 755, S.M. Ayub v. Syed Yousuf Shah and others PLD 1967 C 486 and Bostan Ali Hoti v. Muhammad Hanif Soldier and others PLD 1978 (Jour.) C 81. ' The requirements of sections 54 and 55 of the Act have been complied with, therefore, petition cannot be dismissed under section 63 of the Act, as such I hold that petition is maintainable. 7. Issues Nos. 2 to 6: I will deal with all the Issues together. With regard to Issues Nos.4 and 5, there is no evidence so far any mistake in counting is concerned. Recounting was ordered and again I allowed the request of the petitioner for inspection of the record but nothing material has come out to affect on the result of election. The Advocate of the petitioner was present at the time of counting and such statement Exh.22/5 is on the record. The charge has not been proved. 8. Issue No,6 is about the disqualification of the respondent. There is-no positive evidence against the respondent which may attract the provisions of disqualification. On the contrary the petitioner himself stated that respondent is Head of Jalbani Tribe and comes from respectable family. He represented Pakistan in U.N.O. As delegate and held elected Office as Chairman District Co- ordination Committee. In my view he was qualified to contest Election of Provincial Assembly. 9. Now I come to Issues Nos.2 and 3. The allegations in the petition are that Election Agents of the petitioner were not allowed to sit in Polling Stations at Masso dero (PS-29), Gul Muhammad Siyal (PS-28), Ratodero Primary School No,II (PS-43) and Ratodero Primary School No,I (PS-45). The Presiding Officers of Polling Station of Primary School No,II Ratodero (PS-43) Muhammad Ibrahim Bhutto and Athar Hussain of Polling Station, Naudero (PS-41) were exchanged on the last moment without permission of Election Commissioner. It is alleged that due to rigging at the above four Polling Stations the respondent got bogus votes cast as much as that 92.2 % votes were shown to have been cast at Polling Station Masso dero. (ii) That votes of head voters were cast, at Polling Station Massodero and voters were being asked to cast vote again and again. The Assistant Commissioner told the petitioner that word was going on that P.P. Was supporting the petitioner. (iii) That respondent was using buses for transporting Electors. The Returning Officer rejected about 500 votes of the petitioner. (iv) That Returning Officer without preparing statement in Form XVII went away and such statement was prepared by Mukhtiarkar Ratodero. Petitioner has shown his grievance with regard
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to allotment of symbol and levelled some allegations against Returning Officer that he did not allow Election, Agents of the petitioner to inspect ballot papers. (v) That contrary to law the Polling Station of Massodero was located in the village of respondent. (vi) That respondent is a notorious bad character of the area. 10. The petitioner produced his Election Petition as Exh.6/1 alongwith annexures and affidavit in evidence as Exh.6/2 in which he supported the allegations and grounds taken in the petition. In his cross-examination he has stated that respondent is Head of Jalbani Tribe and he is not in a position to attack on his character. He has stated that he lodged protest with Assistant Commissioner/Returning Officer and Mukhtiarkar Ratodero. He belongs to village Hayat Khan Gopang and stated that there were Polling Stations in the villages of other candidates. 11. Abdur Rehman Gopang Exh.7/1 was Chief Polling Agent of the petitioner. He in his affidavit has fully testified the version as given in the petition. He has repeated the allegations of corrupt practice, change of Presiding Officers, rigging, disqualification of respondent and grievances against the Returning Officer. He in his cross-examination stated that he made complaint in writing to Mukhtiarkar Ratodero. He admitted that he was present at the time of recounting. He stated that he has not given the Bus numbers used by the respondent. 12. Witnesses of the petitioner namely, Gulsher Exh.8/1, Wajid Ali Exh.10/1, Din Muhammad Exh.11/1 and Nazar Hussain Exh.12/1 have) stated in their afflavits-in-evidence that they are voters of the Constituency No,PS-32, Larkana. The Polling Agents of Sardar Muhammad Saleh Gopang were not allowed to function on the ground that they are not electors from the same electoral area and that large scale rigging was done during the polls at the instance of Sardar Allah Bux and Assistant Commissioner Ratodero. The same voters were being asked to cast their votes again and again, the respondent is bad character, the buses were used by him, the votes of dead voters were cast and on ballot papers thumb-impressio.Rs were affixed with cloth wrapped round the thumb. Their evidence is common. They have been cross-examined mostly on the points as to how their affidavits were taken. Their evidence has not been challenged on allegations against Returning Officer and respondent. 13. The affidavit of Lal Muhammad Exh.10/1 was filed alongwith petition in which he stat,d that large scale rigging -vas done during the Polls at the instance of Sardar Allah Bux Jalbani and Assistant Commissioner. He reiterated the allegations as given by other witnesses whose evidence is summarized in para. 12 of this order. When Lal Muhammad appeared before Tribunal for cross- examination, he produced his affidavit Exh.10/1 and admitted the contents to be correct. He was cross-examined by the Advocate of the respondent. He stated that he was Polling Agent of petitioner at Arzi Bhutto Polling Station where he arranged lunch for Polling staff as they were his friends. He on his own accord got the affiavit repared and handed over to the petitioner. He was shown another affidavit by Advocate of the respondent. He admitted to have given that affects it which was produced as Exh.10/2. The petitioner's Advocate objected to the production of this second affidavit on the ground that it was not filed with written statement. Lal Muhammad stated that contents of his second affidavit Exh.10/2 are not correct as it was obtained under threat of police. 14. Respondent Sardar Allah Bux Jalbani in his written statement Exh.16/1 denied all the allegations. In reply to para. 5 of the petition with regard to, exchange of Polling Officers, he stated that it is for the Returning Officer to clarify. He has not denied so far pars 6 of the petition is concerned but stated that percentage of votes cast at Polling Station (that Polling Station is Massodero, village of respondent) mentioned in this paragraph is not commented 'upon as it is a matter of record. He has not denied the allegation that 92.9% votes were cast at Massodero Polling Station. In reply to paragraph No,18 of the petition he stated in his written statement at paragraph No,11 that contents as framed are incorrect and denied, the petitioner is put to strict proof to the contents of this
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paragraph. He stated that he is respectable person and has blotless character. He is Chairman of District Coordination Committee, Larkana, was Member of Federal Council and Delegate of Pakistan to U.N.O. And China. 15. Respondent examined Abdul Khaliq Exh.17/1, the Election Agent, Lal Bux Exh.18/1, Taj Muhammad Exh.19/1-Fazal Muhammad Exh.20/1, Polling Agent. Abdul Khaliq has refused the allegations of the petitioner as given in the petition. He in paragraph No,6 of the affidavit has not commented on the percentage of votes cast at Massodero. He is paternal-uncle of father of the respondent. He has admitted that Returning Officer rejected some votes of petitioner as well as of respondent which bore the smudged marks of the thumb. He did not remember if agents of petitioner of Polling Stations at Massodero, Gul Muhammad Siyal, Ratodero Primary Schools Nos.1 and 2 were not allowed to sit and also did not remember if Aslam Sanwlo and Ghulam Kadir Bhutto were rounded up by respondent on 15-2-1986 two days before the date of hearing of this case. The evidence of remaining witnesses is that Polling Agents of petitioner are present and they did not raise any objection to the conduct of Election. They have stated that conduct of staff during the polls at Polling Station in general was fair and impartial. Lal Bux has admitted that Liaquat Jalbani, brother of respondent is Chairman of Ratodero Municipality. 16. Seerat Asghar Exh.22, Assistant Commissioner Ratodero was Returning Officer of Constituency No,PS-32, Larkana II. He filed his written statement. He was not contesting this Election Petition but was summoned at the written request of petitioner and has been examined. He produced his written statement as Exh.22/1. He in his written statement has denied the allegations made against him in the petition. He stated before the Tribunal that he prepared Polling Scheme of PS-32 Larkana-II, 15 days before the Polling which included location of Polling Stations as well as names of Polling Staff and on 27-2-1985 (one day before Polls) he ordered exchange of Presiding Officers, of Polling Stations of Primary School No,2 Ratodero and Naudero with prior approval of District Returning Officer. He explained that approval of Election Commission was not obtained because according to clause 78 of Manual of instructions issued by the Commission the change could be made at the last moment. He admitted that petitioner verbally requested him to change Polling Station from Massodero but he turned down his request on the ground that there is no proper place where Polling Station could be arranged and six Polling Stations were already situated in villages of other candidates including the petitioner. He has admitted that Polling Station at Hayat Gopang (the village of petitioner) was arranged in a katcha but on the outskirts of the village. He admitted that there was Primary School in Hayat Gopang but it was in Otaq of petitioner, therefore, but was constructed. He, produced original Form XVII Exh.22/2 signed by him. He admitted that Form XVII Exh.6-B is signed by Mr. Khalid, Mukhtiarkar Ratodero. He stated that recounting was made at the request of the petitioner in his presence and in presence of his Advocate and they signed statements Exhs.6/3 and 6/4. He stated that record was inspected under order of the Tribunal. He prepared such report and produced it alongwith ballot papers. He also produced affidavit of Sikandar Ali Election Agent of other defeated candidate Gada Hussain Mehar alongwith his written statement (this witness was not summoned by any party). He has also produced consolidated statement of results as Exh.22/3. 17. I have heard Mr. M.A. Rashed for the petitioner and Mr. A.Q. Halepota for the respondent. Both the counsel have also submitted written arguments. 18. In the first instance, I would deal with the allegation with regard to change of Presiding Officers. It is admitted by the Assistant Returning Officer that he exchanged Presiding Officers of Polling Stations, Primary School, Ratodero-II (PS-43) and Primary School, Naudero (PS-40) on 27th February, 1985. He produced order Exhs.6/5. The order is reproduced as under:- "In partial modification of the Polling Scheme for PS 32 Larkana-II, I hereby direct that the Presiding Officers of Polling Station No,40-Primary School I near Fish Market Naudero Mr. Athar Mirza Lecturer
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Government College Ratodero and that of Polling Station No,46-Primary School-II Ratodero Mr. Muhammad Ibrahim Bhutto Agriculture Officer Tatodero should exchange their post. ' This exchange is being done for smooth running of both the Polling Stations. ' The District Returning Officer Larkana has been pleased to accord sanction." 19. The appointment of Presiding Officers and Polling Officers is governed under section 9 of the Representation of Peoples Act, 1976. The relevant section as a whole is as follows: "Section 9, subsection (1).--A Returning Officer shall appoint for each polling station a Presiding Officer and such number of Assistant Presiding Officers and polling Officers to assist the Presiding Officer as the Returning Officer may consider necessary. Provided that a person who is, or has at any time been, in the employment of any candidate shall not be appointed as a Presiding Officer, Assistant Presiding Officer or Polling Officer. (2) A list of such Presiding Officers and polling officers shall be submitted to (District Returning Officer) at least fifteen days before the polling day for its approval and no change in the personnel shall be made except with the approval of the Commission. (3) A Presiding Officer shall conduct the poll in accordance with the provisions of this Act and the rules, shall be responsible for maintaining order at the polling station and shall report to the Returning officer any fact or incident which may, in his opinion, affect the fairness of the poll: Provided that, during the course of the poll, the Presiding Officer may entrust such of his functions as may be specified by him to any Assistant Presiding Officer and it shall be the duty of such Assistant Presiding Officer to perform the functions so entrusted. (4) The Returning Officer shall authorise one of the Assistant Presiding Officers to act in place of the Presiding Officer if the Presiding Officer is, at any time during the poll, by reason of illness or other cause, not present at the polling station, or is unable to perform his functions; and any absence of the Presiding Officer, and the reason, therefore, shall, as soon as possible after the close of the poll, be reported to the Returning Officer. (5) The Returning Officer may, at any time during the poll, for reasons to be recorded in writing, suspend any Presiding Officer, Assistant Presiding Officer or Polling Officer and make such arrangements as he may consider necessary for the performance of the functions of the officer so suspended." Under subsection (2) of the above section list of Presiding Officers and Polling Officers shall be submitted to the District Returning Officer at least fifteen days before the Polling day for its approval and n change in the personnel shall be made except with the approval of the Commission. The change is only authorised during the Poll by reasonC of illness of the such staff or other cause. The Returning Officer could suspend any Presiding Officer for the reasons to be recorded. In the present case Presiding Officers were changed without assigning any reasons. The Returning Officer, could not give reasons for such change before Tribunal also the law is clear that any change before the Polling day requires the approval of Commission. ' It is argued by the learned counsel for the respondent that in clause 80 of the Manual of Instructions for the guidlines of District Returning Officers and Returning Officers, the change of personnel at the last ,moment could be effected and it is contended that approval of Returning Officer was obtained. I have gone through Manual. First of all these guidelines cannot overrule the provisions of the Act and Rules. The relevant clauses of this Manual with regard to approval of Polling Personnel are 77 to 80 which are reproduced as follows:- "The list of Presiding Officers/Assistant Presiding Officer's and Polling Officers for the National Assembly as well as the Provincial Assemblies elections should be sent by the Returning Officer in duplicate to the District Returning Officer concerned by the 25-1-1985 positively. A legible copy of the list of polling personnel will be supplied by the District Returning Officer to the Provincial Election Commissioner immediately on its receipt from the Returning Officer. In order to avoid accordal of
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approval to the appointment of polling personnel too close to the polling day, it is considered advisable to issue appointment orders of polling staff sufficiently in advance of the date of the poll. ' Approval to the appointment of polling personnel for each polling station will be conveyed to the Returning Officers by the District Returning Officer well before the prescribed period. ' The polling staff, once approve by the District Returning Officer, should in no case be charted, except in case of serious illness, and in that case also staff from the reserve, for which approval has previously been obtained, should only be appointed and not from outside the approved list. Such replacement should invariably be reported to District Returning Officer at once. ' Change of personnel at the last moment can create misgivings. Such changes have to be avoided at all costs. If at all a change somewhere becomes necessary, the circumstances necessitating a change should at once be reported to the District Returning Officer and his approval obtained." ' With regard to this allegation the Returning Officer in para. 4 of the written statement stated as under:- "The allegation alleged in para. No,5 is vehemently denied, as order for such partial modification was not issued on 28th "The allegation alleged in para. No,5 is vehemently denied, as order for such partial modification was not issued on 28th February, 1985 but this order was made after obtaining approval of the District Returning Officer on 27th February, 1985. This order was delivered to the concerned Presiding Officers on 17th February, 1985. Their signatures were obtained on Office Copy of Order No,Elec/263, dated 27-2-1985. Its photocopy is attached herewith as Annexure 'A'. The approval order of the District Returning Officer was obtained on the same date." 20.Now it is clear that prior approval of the change of Presiding Officer one day before the Poll was without approval of Election Commission in violation of subsection (2) of section 9 of the Act as 'no change in the personnel shall be made except with the approval of Commission". The case is not covered by other subsections as this change was not done on the day of polling. The discretion is only vested in case of unavoidable circumstances on the polling day not otherwise. (ii) the reasons for exchange are not cogent. (iii) the written approval of the District Returning Officer is not produced. 21. This safeguard in the Act has been provided to ensure the free and fair election because it has been experienced that whatever rigging is done it has always come from the polling staff and anxiety of ever candidate in the election is to have polling staff of his own choice. The Returning Officer has not given justification in his written statement for such change. It is also clear in the Manual of Instructions that change of personnel at the last moment can create misgivings and such changes have to be avoided. I have, therefore, no hesitation in holding that change was not warranted. It was in violation of Act, Rules an. Instructions with mala fide. 22. The next grievance of the petitioner is that at "Massodero" Polling Station 92.2% votes were cast. The Returning Officer in reply to this change stated as under in para. 5 of the written statement:- "The allegation of the petition in para. No,6 to the petition is categorically denied so far as the charge of rigging is concerned." ' The respondent in his written statement on this stated as under:- "The contents of paragraph 6 as framed, are incorrect and hence denied. The contents of the said paragraph are vague and no particulars of any alleged illegality have been given. It is submitted that the percentage of votes cast at Polling Station mentioned in this paragraph is not commented upon as it is matter of record." 23. According to clause 63 (c) of Manual of Instructions the number of voters were assigned to each Polling Station. The formula as give in above clause is as follows: - "(i) The total number of voters assigned to a polling station with maximum number of four booths should not normally exceed 1,200 electors. Slight variation has, however, been permitted so that
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electors of complete electoral area are able to cast their votes at the same polling station. But in no case the assignment of elector to a polling station should exceed 1,500 with slight marginal adjustments. (ii) In sparsely populated areas, assignment of electors to polling stations should be further reduced, if necessary,, keeping in view the distances involved and convenience of voters. (iii) Each polling station will normally have three to four booths: each booth having to handle about 300 to 400 electors. An exception can, however, be made in case of sparsely populated areas where polling stations may be established with '1, 2 or 3 booths only, depending on the number of electors. (iv) In case of an electoral area, especially in big cities having more than two thousand electors, it will be advisable to have two or more polling stations with distinct bifurcation of the electoral areas served by each polling'station. The rolls prepared by two or more enumerators of the contiguous areas should relate to a polling station, taking care that the number of electors does not exceed two thousand. In urban areas where the enumerator's roll within the electoral area may not have been distinctly kept in view, care may be taken to see that streets and Mohallahs are not bifurcated. Where such bifurcation is inevitable, the name of the streets/Mohallahs or the roads should be clearly mentioned with suitable land marks ordinarily known to the electors. The bifurcation in such cases must be done keeping in view the fact that full pages of the electoral rolls are used at such polling station. This will avoid wastage of copies of the electoral rolls. (v) It should be ensured that female electors of a particular electoral area are assigned to the same polling station to which their men-folk…
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