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Petitioner: Malik Muhammad Shahid & another VS Respondent: Election Tribunal Gujranwala & others
Court Name: Lahore High Court Judge(s): Shahid Karim Title:Malik Muhammad Shahid & another vs Election Tribunal Gujranwala &
others Case No.: Election Appeal No.85359 of 2017 Date of Judgment:2017-12-16 Reported As: 2017 LHC 4162 Result: Appeal dismissed Judgment Shahid Karim, J:- This judgment will decide an election appeal under Section 46 of the Punjab Local Government Act, 2013 ("the Act, 2013" ). The order which has been called in question in this appeal is dated 03.10.2017 passed by the Election Tribunal, Gujranwala and in conclusion it was directed that:- ?The upshot of above discussion is that the petitioners have succeeded to prove the contentions put forth in the election petition which is hereby accepted. The two votes, one was shown by Muhammad Idrees voter to the polling agent of Respondents No.1 and 2 and the other containing the sign of identification with thumb mark are excluded from the count. After excluding the aforesaid two votes admittedly counted in favour of Respondents No.1 and 2, the number of votes secured by the Respondents No.1 and 2 remains as 11 as compared to petitioners who secured 13 votes. Hence, the result announced by the RO and the notification of the ECP declaring the Respondents No.1 and 2 as returned candidates of Chairman/V ice Chairman in Municipal Committee Shakargarh, District Narowal is hereby set aside while the petitioners namely Inam ul Haq and Naeem ur Rehman are declared as returned candidates of Chairman/V ice Chairman in Municipal Committee Shakargarh, District Narowal. The copy of the order be sent to ECP through the office of REC, Gujranwala for its notification accordingly .? 2. Thus, the election petition filed by the respondents No.2 and 3, herein, was allowed and the result announced by the Returning Officer and the ensuing notification of the Election Commission of Pakistan declaring the appellants as returned candidates for the seat of Chairman/Vice Chairman, Municipal Committee Shakargarh, District Narowal was thereby set aside and the respondents No.2 and 3 were declared as returned candidates. 3. The respondents No.2 and 3 filed a petition under rules 59 and 62 of the Punjab Local Government (Conduct of Election) Rules, 2013 ("the Rules, 2013" ) by which the elections for the seat of Chairman and Vice Chairman of Municipal Committee Shakargarh, District Narowal was challenged. The said electi ons were held on 22.12.2016 for
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which the appellants as well as the respondents No.2 and 3 were candidates. The symbol allotted to the respondents No.2 and 3 was Guldan whereas the appellants were allotted the symbol of Calculator. There were 26 votes to be cast in the elections under consideration. At the end of the ballot, both the candidates polled equal number of votes, that is, 13 each, upon which draw of lot was held in terms of rule 37 of the Rules, 2013 and as a result of the draw, the appellants were held as successful candidates. As stated above, on an election petition brought by the respondents No.2 and 3, the election of the appellants was annulled and held to be void and the respondents no.2 and 3 were declared as successful candidates. 4. At the heart of the controversy are two votes to which a challenge was laid by the respondents No.2 and 3 and on which the entire controversy turns. With respect to one of those votes, it has been alleged that the ballot paper was not folded properly and the voter clearly showed the ballot paper to the polling agent of the appellants and after demonstrating clearly his intent to vote for the appellants, inserted the ballot paper in the ballot box. This infringed the secrecy which underlies the entire electoral process and, therefore, the said ballot paper ought to have been discarded and taken out of consideration. The second challenge is with regard to a ballot paper which was found to be smeared and contained a mark other than the official mark which too in the contention of the election-petitioners (respondents No.2 and 3 herein) ought to have been taken out of consideration and could not have been counted as a valid vote cast in favour of the appellants. 5. There are intervening events between the day on which the polling took place and the filing of the election petition which will be adverted to briefly although at this juncture any of those events does not have a substantial bearing on the outcome of this appeal. 6. The statement of count was prepared on 22.12.2016 by which the candidates had equal number of votes. Although a challenge was laid by the respondents No.2 and 3 to the efficacy and sufficiency in law to the two votes cast in favour of the appellants, the objections so raised by the said respondents were dismissed by the Returning Officer and the votes were counted in favour of the appellants. Thereafter , a draw of lot was held to which I shall advert at a later stage. On 22.12.2016 notices were issued by the Returning Officer to both the parties for conducting the consolidation proceedings to be held on 23.12.2016 in terms of rule 36 of the Rules, 2013. On 23.12.2016, the unofficial result was issued by the Returning Officer declaring the appellants as returned candidates. This was done on the basis of draw of lot and it is the case of the appellants that the said draw was held with the consent of the respondents No.2 and 3 and thus the respondents are estopped by their own conduct from challenging the result of the draw and bringing an election petition. A constitutional petition W.P No.40619 of 2016 was filed by the respondents No.2 and 3, in which an interim injunction was granted and the Election Commission of Pakistan was restrained from issuing the notification. This was finally disposed of on 06.02.2017 by which the matter was referred to the Election Commission of Pakistan. This was assailed before the Supreme Court of Pakistan which on 27.3.2017 issued a direction to the Election Commission of Pakistan to decide the matter within a certain period of time as also to attend the question of jurisdiction. The Election Commission of Pakistan?s short order was handed down on 27.4.2017 by which the petition filed by the respondents was dismissed and they were advised to approach the Election Tribunal by way of an election petition. Once again, the respondents No.2 and 3 filed W.P No.21957 of 2017 on 02.05.2017 against the short order announced by the Election Commission of Pakistan on which an interim order was passed restraining the Election Commission of Pakistan from issuing the notification. The said petition was decided on 09.05.2017 on the basis that the Election Commission of Pakistan had issued a notification of the appellants as the returned candidates and a direction was issued that the election petition filed by the respo ndents No.2 and 3 be decided within a period of one month. 7. On 16.05.2017, election petition No.38 of 2017 was filed. It is the case of the appellants that the election petition was pre-mature and could only be filed after the election result had been published whereas by that time no publication had taken place. Nothing turns on this aspect since the election petition was filed in any case though it may be pre-mature and filed prior to the issuance of the result in the official gazette but the fact remains that the election petition was finally determined and decided by the Election Tribunal and no infirmity in the entire process can be attributed on this account. During the course of the proceedings before the Election Tribunal, the
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appellants filed two applications, one under Order VII, Rule 11 CPC for the rejection of the election petition and the second application was under Order XXXIX, Rule 4 CPC for the recall of the order passed by the Election Tribunal by which the notification issued by the Election Commission of Pakistan was suspended. Vide order dated 29.05.2017, the Election Tribunal dismissed the applications filed by the appellant which order was assailed in W.P No.30413 of 2017, which was dismissed by a learned Single Judge of this Court on 04.07.2017 and the direction to decide the election petition within 30 days was reiterated. Vide order dated 04.07.2017, it was observed by the learned Single Judge that the appellants herein had failed to file a written reply despite various opportunities. 8. The learned counsel for the appellants alluded to the aspect of bias on the part of the presiding officer of the Election Tribunal and in this regard admitted to refer to the various aspects on the basis of which this allegation was sought to be substantiated. In this regard, a transfer application was also filed with the Election Commission of Pakistan which was dismissed on 17.7.2017. An application dated 24.7.2017 was also filed before the Election Tribunal requesting for the recusal of the adjudication of the election petition which, too, was dismissed on 26.7.2017. On 20.06.2017, a written reply was filed to the election petition. Once again, a second transfer application was filed on 01.08.2017 which was also dismissed on 05.09.2017 . The learned counsel for the appellants laid great stress on the fact that against the order passed by the Election Commission of Pakistan, constitutional petition W.P No.77216 of 2017 was filed. This petition was allowed and the order of the Election Commission of Pakistan was set aside on 02.10.2017 with a direction to the Election Commission of Pakistan to decide the transfer application afresh through a speaking order . However , before the Election Commission of Pakistan could decide the case on remand by this Court, the impugned order was passed by the Election Tribunal although an application for adjournment had been filed on 27.9.2017. The Election Tribunal proceeded to record the statement of official witness District Returning Officer as RW.6. Much emphasize was laid on the fact that the appellants? counsel was not provided sufficient opportunity to direct the examina tion-in- chief of the said witness which was the witness summoned by the petitioner and which, in turn, adversely affected the rights of the appellants. However, once again it is important to note that the said witness had been summoned by the appellants and the appellants? counsel was not required to lead in any manner the said witness into recording his examination-in-chief and it was in fact the right of the respondents No.2 and 3 to cross examine the said witness. Thus no prejudice was caused to the appellants thereby. The case was adjourned to the next day for the submission of documentary evidence and final arguments which was 3.10.2017. Once again the appellants? counsel filed an application seeking an adjournment which was declined by the Election Tribunal and after hearing the arguments of the respondents, proceeded to pass the impugned order. In declining adjournment request, the Election Tribunal was swayed by the need to comply with the direction of this Court to decide the petition within one month. This direction was issued on 9.5.2017 and the case had gone well past that deadline. No infirmity can e attributed to the impugned judgment on this account and a lacunae, if any, can be dealt with in the present appeal which is a rehearing on questions of fact and law. 9. On 04.07.2017, the Election Tribunal framed the following issues:- 1) Whether the election of respondents No.1 and 2/Returned Candidates is liable to be set aside for illegal and corrupt practices as mentioned in the instant petition? O.P .P. 2) Whether the instant petition is liable to be dismissed for preliminary objections as raised in the written reply? O.P.D. 3) Relief. 10. The onus of issue No.1 was on the respondents No.2 and 3 whereas the onus of the issue No.2 was on the appellants. The decision of issue No.1 hinged upon the determination of the validity and lawfulness of the two votes cast in favour of the appellants and the said issue and its determination made by the Election Tribunal is being taken up firstly . 11. The aspects which affected the validity or otherwise of the two votes will be dealt with separately . Firstly , I shall deal with the vote with respect to which it was alleged that secrecy of the vote was seriously compromise in that one of the voters exhibited and demonstrated in public the vote proposed to be cast by him by showing the ballot paper to the polling agent of the appellants.
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Thus, on the basis of the relevant rules and settled principles, the said vote ought to have been discarded and taken out of consideration. The voter whose vote was called in question was Muhammad Idrees and who appeared as RW.3. Inam ul Haq, the respondent No.2 appeared as PW.1. The relevant portions of his examination-in-chief which was given in vernacular are reproduced as under:-- {{URDU TEXT}} 12. In the statement of PW.1, he states that Muhammad Idrees after stamping the ballot paper came out of the polling booth and exposed his ballot paper to the polling agent Khalid Manzoor of the appellants which clearly showed the stamp affixed against the name of the said appellants which was printed at the ballot paper as candidates. However, to this extent, the statement of the PW.1 is not a direct evidence and can only be termed as hearsay and the entire episode was narrated to him by Hafiz Rizwan Masood Advocate. It was only upon hearing the noise that he rushed into the place where votes were being cast and he did see that his polling agent was raising hue and cry over the casting of the vote by Muhammad Idrees and upon his objections, the presiding officer asked Muhammad Idrees to fold his ballot paper and then insert it in the ballot box. In the cross examination, PW.1 admits that at the time when Muhammad Idrees cast his vote he was not in the room as also that the ballot paper was not shown in his presence and that the entire fact was disclosed to him by his polling agent. 13. Hafiz Rizwan Masood appeared as PW.2. Hafiz Rizwan Masood was the polling agent for the respondents No.2 and 3 and has given eyewitness account regarding the allegation of breach of security of ballot paper on the part of Idrees. He has made a statement without equivocation that Idrees came out of the polling booth while clearly showing his ballot paper and exposed his stamp to the polling agent of the appellant Khalid Manzoor and by which act the stamp in favour of the appellants could be clearly seen. He has also stated in his examination-in chief that Amir Nisar who was a voter waiting for his turn to cast his vote was also present in the polling station and awaiting his turn to cast his vote. He was also witness to the entire episode. He further went on to state that he raised serious objections to the casting of the said vote in favour of the petitioner upon which the presiding officer asked Idrees to fold his ballot paper and then insert in the ballot box. In the meantime Returning Officer Nauman as well as the respondent No.2 also entered the polling station and witnessed the latter part of the entire incident. In the cross examination he, while replying to a question, stated that Amir Nisar who was one of the voters and an eyewitness cast his vote after the vote of Idrees. This was a question specifically asked to him by the counsel of the appellants and in reply to which the said fact was clearly stated by PW.2. He did not deny the fact that the respondent No.2 was not present at the time when Idrees came out waiving his ballot paper but upon commotion raised by him entered the polling station and was a witness thereafter. 14. PW.3 Amir Nisar also claims to be an eyewitness to the entire incident relating to showing of his ballot paper by Idrees and thus falling in breach of the secrecy of the ballot. He supports in material particulars the statement made by PW.2. The following portion of the examination-in-chief is pertinent for our purposes and is reproduced hereunder:- {{URDU TEXT}} 15. Clearly , he deposed that he was inside the polling station and was waiting for his vote to be cast while Idrees was casting his vote. He was also unflinching in his statement regarding the incident as narrated by the PW.2 and recites the incident in the same terms substantially. He also stated in his examination-in-chief that the ballot paper was in the hand of Idrees and which he clearly showed to the polling agent of the appellants and could clearly be seen and identified and which, PW.3, in fact did. According to his visual assessment, the ballot paper was stamped against the election symbol of "Calculator" which was the symbol allotted to the appellants. He also reiterated that the polling agent of the respondents No.2 and 3 raised serious objection to the manner in which the vote was being cast by Idrees and on which the presiding officer required Idrees to fold his ballot paper and insert in the ballot box. The following portion from his cross examination would be pertinent for our purposes:- {{URDU TEXT}}
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16. It can be seen that in reply to the questions put by the learned counsel for the appellants, PW.3 clearly stated that when a voter would enter the polling booth to cast his vote, the next voter would enter the polling station and the process of issuing of ballot paper to him would start at that time. Therefore, his turn was after Idrees and so he was inside the polling station while Idrees was in the polling booth going through the process of affixing a stamp on the ballot paper and thus when he came out he saw the entire incident and could see the ballot paper on which a stamp had been affixed against the symbol of Calculator. He remained unshaken during the cross examination conducted by the learned counsel for the appellants. One of the aspect which requires to be flagged with regard to PW.3 is that he is an independent eyewitness and no question was put during the cross examination with regard to his credibility or his relationship with the respondents No.2 and 3 which would taint his deposition in any manner . Malik Muhammad Shahid, the petitioner No.1 appeared as RW.1. He admits in his examination in-chief that there were 26 votes in total to be cast. He also admits that equal number of votes were cast in favour of both the candidates and the result was not declared on 22.12.2016 and the election was decided on the basis of draw of lot and the result was announced on 23.12.2016. He also admits in his cross examination that the polling agents of both the candidates were present inside the polling station. However , he also does not deny the fact that he is not an eyewitness to the entire incident regarding breach of secrecy of vote on the part of Idrees and came inside the polling station upon hearing noise. He also admits that commotion took place inside the polling station while Idrees was casting his vote and upon hearing noise he entered the polling station. Therefore, he is an important witness from the aspect of narrating of contemporaneous event and at least to the extent that some kind of commotion took place and serious objections were raised by the polling agent of the respondents No.2 and 3 and therefore, the fact that the happening of the event is not denied by RW.1 shows that the incident in fact did take place and the polling agent PW.2 did raise serious concerns regarding the vote being cast by Idrees. To this extent the statements made by PW.2 and 3 are corroborated by the statement of RW.1. He also admits that when he entered the polling station, Hafiz Rizwan Masood PW.2 had placed his hands on the ballot box and was insisting that the vote of Idrees be restrained from being cast. He also states that PW.2 was of the view that since the ballot paper had been shown by Idrees, he had serious objections to ballot paper to be cast by Idrees and, therefore, it was imperative that the said ballot paper be taken out of consideration. From the cross examination of RW.1, it is clearly evident that he does not deny the entire incident regarding the raising of objection by PW.2 and also witnesses the incident as he entered the polling station and saw that PW.2 had placed his hands on the ballot box clearly trying to prevent the casting of vote by Idrees. Thus, the only question which requires proof was whether the ballot paper was shown in public by Idrees and could clearly be seen by all those present at that time in the polling station. In this regard, there are four persons who were eyewitnesses and who have all been produced as witness before the Election Tribunal. The eyewitness account of two of those witnesses has been discussed hereinabove. The third eyewitness of the entire incident was Khalid Manzoor , the polling agent of the appellants.In his examination-in-chief, Khalid Manzoor denies that Idrees showed his ballot paper to any one or that he came out waiving that ballot paper. In his cross examination he denies that the ballot paper of Idrees could clearly be seen. More importantly he outrightly denies that the ballot paper of Idrees was not folded and that when he came out of the polling booth he had already folded the ballot paper. The importance of this denial will be brought forth when we juxtapose his statement with that of PW.2 and 3 as well as the statement of RW.4 and RW.5, one of which was the presiding officer. 17. Muhammad Idrees appeared as RW.3. His statement makes an interesting reading. He himself admits in his examination-in-chief that when he came out of the polling booth and moved towards the ballot box, the presiding officer specifically asked him to fold his ballot paper upon which he was constrained to fold that ballot paper. He however denies that any one actually saw the ballot paper or the stamp affixed on that ballot paper before he cast his vote. This is a material contradic tion to the statement made by RW.2 who was the polling agent for the appellants. In the examination-in-chief, RW.3 denies that he came out of the polling booth waiving his ballot paper meaning thereby that he had already folded his ballot paper inside the polling booth and this in fact contradicts his examination-in-chief where he admits that he was required to fold his ballot paper by the presiding officer. He
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denies as well any objection having been raised by Hafiz Rizwan Masood to the vote being cast by him on account of breach of secrecy . Once again, this aspect is contradicted by not only the statement of PW.2 but also the statement of the presiding officer who have both stated that Hafiz Rizwan Masood raised vehement opposition to the vote being cast by Idrees and the manner in which it was done. The most significant contradiction made by RW.3 is when he denies in his examination-in-chief that the presiding officer required him to fold his ballot paper and then to cast his vote. This not only runs counter to the statement of other witnesses but to his own examination-in-chief in which he clearly states that the presiding officer required him to fold his ballot paper and then to cast his vote. Therefore, the statement of Idrees as RW.3 is replete with contradictions and when considered for comparison with the statements made by the PW.2 and 3, it has a lesser probative value and must yield in favour of the statements made by other witnesses to the entire incident. 18. RW.4 was the presiding officer Nauman Farooq. He merely deposed with regard to the draw of lot in his examination-in-chief and this part of his examination will be adverted to when dealing with the aspect of draw of lot on which much emphasis was laid by the learned counsel for the appellants. However, in his cross examination he makes some interesting observations. Firstly, he concedes that if a person shows a ballot paper on which he has affixed a stamp against a candidate of his choice then that vote has to be taken out of consideration as it offends the Rules, 2013. Thus, he is starkly aware of this legal position. He also admits the making of an application on the part of the polling agent of the respondents No.2 and 3 for discarding the vote cast by Idrees. That application was marked to the Assistant Returning Officer and the application Ex.P.7 was marked by the Assistant Returning Officer to the presiding officer. He also admits that on the said application the Assistant Returning Officer did not give his independent opinion and merely relied upon the report of the presiding officer. He also admits that he did not as a Returning Officer call the Assistant Returning Officer with regard to the entire incident nor did he conduct any inquiry on the application Ex.P.7 made by the respondents No.2 and 3. He also admits at the end of his cross examination that during the process of the election he had been suspended on the orders of the Chief Minister. The rest of the portion of the cross examination will not be adverted to at this stage. However, for the present purpose, the portion of his cross…
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