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Petitioner: Election Tribunal Sardar MUHAMMAD HUSSAIN KHAN VS Respondent: Dr. MUHAMMAD NAJEEB NAQI KHANand 12 others
Court Name: Election Tribunal Judge(s): Azhar Saleem Babar Title:Election Tribunal Sardar MUHAMMAD HUSSAIN KHAN vs Dr. MUHAMMAD
NAJEEB NAQI KHANand 12 others Case No.: Election Petition No,12 of 2011 Date of Judgment:2015-03-25 Reported As: 2015 YLR 1999 Result: Petition dismissed Judgment ORDER ' JUSTICE AZHAR SALEEM BABAR, ELECTION TRIBUNAL.---The above titled election petition has been filed to call in question the validity of election of LA-21 Poonch 5 Sudhnuti-1. The petitioner prayed to the Tribunal in the following words:-- "In view of the above facts and circumstances the petitioner requested that:-- (a) That the election of non petitioner No,1 be declared null and void and the petitioner be declared returned candidate. (b) That as the R.O. Did not comply with the provision of election Ordinance, laws and rules and the corrupt and illegal practices prevailed, the election on Polling Station No,185 may kindly be declared null and void and re-polling may please be ordered at the Polling Station No,185 of LA-21 Poonch 5 Sudhnuti-1 and after that recounting of total votes. (c) That all the bags; ballot packets may kindly be opened and checked with the help of NADRA and counter foils and invalid votes may be rejected and after count the petitioner may be declared returned candidate. (d) That the partial re-polling may kindly be held as applied by the non petitioner Nos.], 3 and consented by the petitioner. (e) That the results not compiled on form XIV may kindly be excluded from count. (f) That the results where polling agents signatures have not been obtained by Presiding Officers may also be excluded from count as being changed and doubtful, also where seals are opened may kindly be deducted from count.
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(g) Alternatively as it stands proved by the above mentioned facts and circumstances re polling may be ordered for LA-21 Poonch 5 Sudhnuti 1 and election notification of R.0 dated 28-6-2011 and Chief Election Commissioner Notification No,EC/S/5226-70/2011 may be set aside and non petitioner No,1 may kindly be declared un-returned candidate. Any other relief available under the law may kindly be granted." 2. Precise facts of the case are that the petitioner and non-petitioners Nos.1 to 8 contested for election from Constituency No, LA-21 Poonch 5, Sudhnuti 1 in the general election of Azad Jammu and Kashmir Legislative Assembly held on June 26, 2011. It has been contended that on 26-6- 2011,Retuning Officer Pallandri LA-21 received results submitted by the Presiding Officers of 184 polling stations and compiled the same in presence of polling agents of the petitioner and non- petitioners Nos.1 to 8. It has further been contended that the Returning Officer got the result calculated in the presence of agents, Govt. Agencies, media and candidates and declared the petitioner as returned candidate having 140 votes higher than non-petitioner No, 1. It has been submitted that Returning Officer along with Assistant Returning Officer went to his retiring room where the ballot bags were kept, bolted the door and remained there for about two hours. It has further been submitted that the Returning Officer and Assistant Returning Officer came out and abruptly announced non-petitioner No,1 as returned candidate having 147 votes higher than the petitioner. It clearly shows that RO changed the result in connivance with Dr. Muhammad Najeeb Naqi and his relatives, so the election is rigged. It has been alleged that result is bogus which is liable to be set aside. It has also been alleged that Presiding Officer was bound by law to provide result of election on form XIV prescribed and printed for this purpose, whereas some results were provided on plain papers. It has been stated that some bags of ballot papers were submitted open and unsealed. It has also been stated that Polling Station No,185 was established by the Returning Officer in connivance with non-petitioner No,1 for votes of officials who were deputed to conduct duties on polling stations and the Returning Office has acted as Presiding Officer. The Returning Officer legally could not act as such. It has further, been stated that the Returning Officer changed the result and committed fraud with the connivance of non-petitioner No, 1. The seal of the polling box was broken. It has been emphasized that non-petitioner No,1 moved an application for re- polling on 7 polling stations and the petitioner gave consent for re-polling as demanded by non- petitioner No, 1. Another candidate Tanveer Ahmed Qureshi, non-petitioner No,3 also moved application for re-polling at five polling stations which was also rejected by Returning Officer without any justification. Non-petitioner No,6 also filed an application for re-polling on 20 polling stations, which also met the same fate. It has been alleged that applications filed by non- petitioners Nos.1, 3 and 6 were fully justified because it is established law that facts need not to be proved. It has further been alleged that request of re-polling by all the three major candidates clearly makes the result declared by Returning Officer doubtful and rigged. The petitioner prayed for acceptance of the election petition. 3. The non-petitioners contested the petition by filing separate written statements. In the written statement filed by non-petitioner No,1, it has been stated that the petitioner has no locus standi to file instant election petition, hence is liable to be dismissed. It has been contended that the petitioner filed the instant petition on false, fabricated and baseless grounds. It has also been contended that the instant election petition has not been filed in accordance with law, hence, not maintainable. It has been averred that results of 184 polling stations were received by the Returning Officer and he compiled the same in presence of polling agents of contesting candidates and subsequently in presence of polling agents, media and number of people of the locality, declared non-petitioner No,1 as successful candidate by obtaining 147 votes more than the petitioner, so the version adopted by the petitioner that he was declared as successful candidate by obtaining 140 more votes is concocted, baseless and frivolous. It has also been stated that the result compiled by
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the Returning Officer was in accordance with law and rules. It has been alleged that the petitioner failed to point out any specific polling station and levelled vague allegations and did not annex any documentary proof in support of his version. It has also been stressed that Polling Station No,185 was established for the employees on duty to conduct the polling process. The allegation of changing the result and breaking of seal of ballot box has also been denied. The non-petitioner prayed for dismissal of the election petition. Non-petitioners Nos.2, 3, 6 and 8 also filed written statement whereby they have refuted the claim of the petitioner. 4. The following issues were framed by my learned predecessor, vide interim order dated 5-3-2013. "(1) Whether on 26-1-2011 RO Pallandri after receiving the result through the Presiding Officers of 184 polling stations declared the petitioner as returned candidate having 140 votes higher than respondent No,1? (OPP/ORD). (2) Whether Presiding Officers were bound to provide the result upon the prescribed form "XIV". Whereas, in impugned election for changing the result Presiding Officers provided result on plain papers, chits and without signatures of Polling agents, which is violation of laws and rules? (OPP/ORD) (3) Whether election has been materially affected by gross violation of law and rules and all polled votes are liable to be rechecked and recounted and election of returned candidates is void and petitioner is entitled to be declared as returned candidate? (OPP/ORD) (4) Whether the R/O failed to comply with the provisions of Election Ordinance and rules at Polling Station No,185 which has materially affected the election? (OPP/ORD) (5) Whether Para No,13 of the petitioner stands admitted which entails re polling on seven polling stations according to application moved by respondent No, 1 on 27-6-2011? (OPP/ORD) (6) Whether the extensive, corrupt and illegal practices prevailed at election with the connivance of respondent No,1? (OPD/ORD) (9). Relief." 5. Later on Sardar Muhammad Hussain Khan, the petitioner recorded his statement in support of his application dated 10-6-2013 and stated that he wants rechecking and recounting of all the polled votes in the constituency and as an alternate he wants re-polling on seven polling stations of the Constituency, which has been admitted by the contesting . Non-petitioner, through an application as well. It was recorded that previously framed issues have become surplus and infructuous, in view of the statement of the petitioner, so the following issues were reframed in presence of the petitioner as well as learned Advocate for the contesting non-petitioner on 21-12- 2013:-- (i) "Whether the petitioner has locus standi to file the instant petition? OPP (ii) Whether the petition is not maintainable in the eye of law? OPD (iii) Whether application of the petitioner for rechecking and recounting of all the polled votes in constituency LA-2I Sudhnuti-1, is in accordance with law and whether a positive order can be made in accordance with the application? OPP (iv) As an alternative, whether re-polling on seven polling stations of the constituency is justified? OPP" 6. It is worth mentioning that the petitioner as well as Dr. Muhammad Najeeb Naqi, the contesting non-petitioner filed writ petitions against the order passed by Tribunal on 11-5-2012, whereby an application for dismissal of election petition was refused by the Tribunal and it was declared that the election petition and the annexures have been verified in accordance with law. Hon'ble High Court upheld the order of Election Tribunal dated 11-5-2012. After that the Tribunal decided on 4-7- 2013 for rechecking and recounting of polled votes on Polling Station No,185 of Constituency No, LA- 21 Sudhnuti-1. A local commissioner was appointed for the purpose but the parties decided to challenge that order through separate writ petitions. Hon'ble High Court decided that an order of
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recounting and rechecking of votes may be recorded after taking some evidence from the petitioner. It was directed by the High Court to follow the conclusion arrived at by the Supreme Court of Pakistan in Sardar Abdul Hafeez Khan's case reported as 1999 SCM R 284. Hon'ble Supreme Court of Azad Jammu and Kashmir upheld the order of High Court and directed the Tribunal to follow the guide lines provided by the aforesaid case. It was in these circumstances that the petitioner was summoned by the Tribunal to record his statement in support of his application for recounting and rechecking of votes on Polling Station No 185, vide order dated 14-1-2015. The parties have led evidence on issues framed by the Tribunal on 21-12-2013. 7. I have heard learned counsel for the parties at length. The issues are decided as under:-- Issue No, 1. ' Whether the petitioner has locus standi to file the instant petition? OPP ' The petitioner feels aggrieved of notification of Chief Election Commissioner, whereby Dr. Muhammad Najeeb Naqi Khan has been declared as returned candidate from Constituency No, LA-21 Sudhnuti-1. He has attached plethora of documents in support of his version that violation of procedure and law has been committed by the election authorities and that illegal and corrupt practices prevailed over different polling stations, during general election on 26-6-2011. A perusal of memorandum of election petition along with the documents annexed transpires that the petitioner has an arguable case, so it is concluded that the petitioner has a locus standi to file the instant election petition. Issue No,1 is decided in favour of the petitioner, accordingly. 8. Issue No,2. ' Whether the petition is not maintainable in the eye of law? OPD ' Onus of proof of issue towards maintainability of election petition is on the non-petitioner. Learned counsel for the petitioner has emphasised that the matter has already been decided by the Tribunal and upheld by the High Court in a writ petition filed by the contesting non-petitioner, so a discussion towards maintainability of election petition on the argument that writ petition has not been verified in accordance with law, cannot be reopened. Learned counsel has referred to order of the Tribunal dated 11-5-2012 which has been upheld by the High Court. 9. On the other hand, learned counsel appearing on behalf of Dr. Muhammad Najeeb Naqi is of the opinion that the instant election petition has not been verified in accordance with mandatory provisions of Election Ordinance, 1970 and Order VI, Rule 15 of C.P.C. Along with different provisions of High Court Procedure Rules, 1984. He has emphatically argued that the Supreme Court of Azad Jammu and Kashmir has recently pronounced its judgment in different appeals filed by Ch. Muhammad Aziz, Khan Bahadur Khan and Raja Muhammad Iqbal Khan. The majority judges in the apex Court have laid down the principles governing the verification of an election petition and its annexures, so, in view of judgment of the Supreme Court, the instant petition is liable to dismissal. 10. A perusal of order of Tribunal regarding verification of election petition dated 11-5-2012 reveals that my learned predecessor concluded the application in the following words:-- "For the reasons mentioned above, it is crystal clear that there is no material difference between a verification on oath and a verification through affidavit separately appended with the petition. Both shall be read and treated in juxta position. So, the mandatory provisions of the Ordinance have duly been complied with and there is no reason for the Tribunal to dismiss the petition on the objection raised. The instant application filed by Dr. Muhammad Najeeb Naqi/non-petitioner No,1 stands dismissed " 11. A perusal of verification at the foot of election petition shows that it has been verified in die following words:- "Verification:- ' Verified that the contents of petition para Nos. 1 to 17 along with prayer clauses are correct to the best of my knowledge and belief and nothing has been concealed and kept secret
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' Petitioner Sd- Sardar Muhammad Hussain Khan, Advocate" 12. The petitioner has verified the contents of election petition from paras 1 to 17 along with prayer clause to the best of his knowledge and belief. However, the verification has not been attested on oath or solemn affirmation, rather a separate affidavit duly sworn in by the petitioner and attested by the Oath Commissioner has been attached at the tail of election petition, whereby he has affirmed the contents of election petition on oath and has declared them correct to the best of his knowledge and belief and information. 13. I am not convinced with the argument that matter relating to verification of election petition has been upheld by the High Court, so it cannot be reopened by the Tribunal now. The Supreme Court of Azad Jammu and Kashmir has dilated upon the matter of verification of election petition in a judgment titled Ch. Muhammad. Aziz v. Raja Faisal Mumtaz Rathore and 2 others and two connected appeals. In a detailed judgment, law governing verification of election petition has been, explained. This is a judgment in rem, which is applicable to the case at hand as well, despite the fact that the Tribunal or the High Court has already held a contradictory view. The apex court has examined various laws relating to the verification of election petitions and has held that it is obligatory for a petitioner to verify an election petition on oath and is required to be attested by an authorized officer. For convenience some extracts of the judgment are reproduced as under:-- ' While examining section 51(3) of the Election Ordinance, 1970 and Order VI Rule 15, C.P.C. The apex Court has laid down in Paras 27 and 28 of the judgment as under:- "27. Under section 51(3) of the Elections Ordinance, every election petition and every schedule or annexure to the election petition has to be signed by the petitioner and verified in the manner as laid down in the Civil Procedure Code. The manner of verification is laid down in Order VI, Rule 15, C.P.C. The same is reproduced as under: - "15. Verification of pleadings.-- (1) Save otherwise provided by any law for the time being in force, every pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it .Was signed. 28. Non-compliance of the provisions of section 51(3) results in the penal consequence in terms of section 59 of the Elections Ordinance. In the Civil Procedure Code, no penal provision is provided for non-compliance of Order VI, Rule 15, C.P.C. The oath is to be administered by a person authorized to administer the oath, as laid down in section 139, C. P. C. , which postulates that the oath on affidavit is to be administered by any Court or. Magistrate or any notary to be appointed or any officer or other person whom the High Court may appoint in this behalf or any officer appointed by any other Court which the provincial Government has generally or specially empowered in this behalf. Oath is to be administered under the Oaths. Act, as applicable in Azad Jammu and Kashmir. Section 7 of the Oaths Act provides that all the oaths and affirmations made under section 5 shall be administered according to such forms as the High Court may from time to time prescribe. The High Court of Azad Jammu and Kashmir under Rules 88, 89 and 90 of Chapter XV of the AJ&K High Court Procedure Rules, 1984, has provided the form of the oath. Under Rule 88, an affidavit which is intended for using in the Court may be sworn in before any authority or officer or the officer of the Court or before the Presiding Officer of the Court or before the Magistrate or a Sub-Registrar or before the Oath Commissioner appointed in this behalf: It is worth mentioning that the Oath Commissioners are governed under Chapter XVI of the High Court
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Procedure Rules, 1984. A combined reading of section 139, C.P.C., section 7 of the Oaths Act, Order VI, Rule 15 and provisions of Rules 38; 89 and 99 of the High Court Procedure Rules make it mandatory that verification shall have to be strictly in accordance with Order VI, Rule 15, C.P.C., and to be attested by a person authorized in this behalf as referred in section 139, C.P.C. 14. The apex Court has compared the provisions of sections 50, 51, 59 and 63 of the Election Ordinance with sections 54, 55, 63 and 67 of Representation of Peoples Act, 1976, which are pari materia. The Supreme Court of Azad Jammu and Kashmir has relied on different judgments of Pakistan jurisdiction and Azad Jammu and Kashmir as well. The famous cases of Iqbal Zaffar Jhagra (2000 SCM R 250), Malik Umar Aslam v. Sumera Malik (PLD 2007 SC 362), Zia-ur-Rehman v. Syed Ahmed Hussain and others (2014 SCM R 1015) and Muhammad Rafique Nayyar v. Raja Nisar Ahmed Khan and 9 others 2003 YLR 2784 have been discussed. However, the apex Court has diverted from the conclusion of case titled Ch. Arshad Hussain v. Rukhsar Ahmed and 9 others and has opined that the aforementioned citations were not brought to the notice of the court. It has further been held that the apex Court of State has already decided in PLD 1978 SC AJ&K 161 that judgments of the Supreme Court of Pakistan are binding on High Court of Azad Jammu and Kashmir. 15. As mentioned earlier, the instant election petition has not been verified on oath by an authorised officer, rather a separate affidavit has been attached, whereby the contents of election petition have been verified on oath. This aspect was also considered by the apex court in the afore discussed appeals. The apex Court recorded its conclusion in para 31 of the judgment in the following words:-- "We have also considered the argument of Mr. Abdul Rasheed Abbasi, Advocate, that the appellant, Ch. Muhammad Aziz, has filed a separate affidavit in support of the contents of election petition. He relied upon PLD 2004 SC 570 and PLD 2005 SC 600 by contending that a separate affidavit is a sufficient substitute of verification of the election petition at its foot on oath. 16. But the apex Court did not concur with the argument and concluded as follows:-- "We conclude that the attestation of verification by any Court of Magistrate, any officer or other person appointed in this behalf by the High Court or any officer appointed by any other Court or provincial government, is mandatory and non-attestation merits dismissal of election petition." 17. It is pertinent to bring on record that in case of Ch. Muhammad Aziz v. Faisal Mumtaz Rathore and others, the election petition had been verified by the petitioner on oath but the oath was not attested by the authorities mentioned in section 139, C.P.C. The apex Court concluded that election petition being incompetently filed, merits dismissal under section 59 of the Election Ordinance, 1970. In para 43 of the judgment, the apex Court has concluded the matter as follows:-- "43. We have drawn the conclusion that provisions of section 51(3) are mandatory in nature and verification of election petition is to be attested by the authority referred to in section 139, C.P.C., read with Order VI, Rule 15, C.P.C., for verification of pleadings and section 7 of the Oaths Act, read with Rules 88, 89 and 90 of the High Court Procedure Rules, 1984, is mandatory and Tribunal has no jurisdiction to continue the proceedings of the Election Ordinance. The dismissal of application for dismissal of election petition under section 59, leaves the aggrieved person without any remedy and filing of appeal after the decision of election petition is not an efficacious remedy, therefore, the writ petition is competent. Our this view finds support from the recent judgment of the Supreme Court of Pakistan delivered in the case reported as Zia Rehman v. Ahmed Hussain and other (2014 SCMR 1015) whereby the Supreme Court of Pakistan declared that question of maintainability of the election petitions has to be decided as a preliminary question. It was observed as under:-- "............... If an objection is raised with regard to maintainability of such a petition for non- compliance of a mandatory provision, the Court! Tribunal should decide that preliminary
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objection. Because I f that objection is sustained then the Court is left with no option but to dismiss the petition." 18. Election petition filed by Ch. Muhammad Aziz was, therefore, dismissed for having not been properly verified in accordance with law. 19. As mentioned earlier, the instant election petition, though has been verified by the petitioner in his name and under his signature but has not been verified or oath and has not been attested by an authorised officer. The other documents attached with the memorandum of election petition from annexure "A" to annexure "Q" are attested copies of the public documents, which do not require verification on oath and attestation by the authorised officer. In the same way, documents annexure PK, PL and PM are also attested copies of the documents which also did not require any such verification. However, the petitioner has attached a list of fake votes polled in Constituency No,LA-21 Sudhnuti-1.This document has been prepared by the petitioner himself and has not been verified in accordance with the provisions of law. In the concluding paragraph of the aforesaid judgment, the apex Court has laid down as under:-- "The annexures finding place at pages 202, 209 to 220, 222 and 223 are not the copies of the public documents. These documents, except page No,220, are verified but not attested by the authority as mentioned in section 139, C.P.C. Similarly, the documents annexed at pages Nos. 203, 204, 205 and 206 are also not certified copies of public record. These are neither verified nor attested by the authority mentioned in section 139, C. P. C. These documents required verification/ attestation by the petitioner as well as by the authority mentioned in section 139, C.P.C. The provisions of section 51(3) of the Elections Ordinance are not complied with, the election petition was rightly dismissed by the Election Tribunal." 20. This conclusion has been arrived at by the apex Court in…
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