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Petitioner: MIR BEHRAM KHAN MARRI VS Respondent: Nawabzada MIR GAZAIN
Court Name: Election Tribunal Judge(s): Iftikhar Muhammad Chaudhry Title: MIR BEHRAM KHAN MARRI vs Nawabzada MIR GAZAIN Case No.: Election Petition No, 56 of 1993 Date of Judgment:1995-01-16 Reported As: 1996 CLC 963 Result: Petition dismissed
JUDGMENT
JUDGMENT ' Petitioner Mir Behram Khan and respondents Nos.1 to 3 contested election of Provincial Assembly, Balochistan from PB-18, Kohlu Agency. The respondent No,1 was notified as Returning, Candidate, as he secured 5199 votes. The petitioner polled 4946 votes, as such, remained unsuccessful and had challenged the election of respondent No,1 through this Election Petition. ' The respondent No,1 contested the petition, by repudiating the allegations. The remaining respondents, 2 and 3, however, did not oppose the petition. ' On having received the pleadings, with the consent of parties, counsel, following points for determination/issues, were framed:-- (1) Whether filing of nomination paper in respect of the returned candidate, naming him as ' Sardar Gazain Khan' rendered his nomination invalid? (2) Whether names on the list of contesting candidates were not entered in Urdu alphabetical order. If so, to what effect? (3) Whether the name and symbol of the returned candidate were placed on the top and that of petitioner, at the bottom of the ballot paper deliberately and with ulterior motive of putting the returned candidate in an advantageous position as against the petitioner? If so, what effect? (4) Whether the Presiding Officer of Kotey Sharh Polling Station deliberately withheld the official mark (the squares-bearing rubber stamp), from the voters? If so, to what effect? (5) Whether bogus voting at large scale, has taken place at polling station. Daman (female) and Kahan (female)? If so, to what effect? (6) Whether a large number of votes liable to be rejected, were counted in favour of the returned candidate? If so, to what effect?
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(7) Whether the returned candidate had employed many vehicles and brought numerous persons from outstation for the purpose of bogus voting? If so, to what effect? (8) Whether the returned candidate had employed many vehicles for conveying the voters to, and from, the polling station? If so, to what effect? (9) Whether the returned candidate enlisted active assistance of persons in the service of Pakistan, who solicited votes for him and threatened those not inclined to vote for him? If so, to what effect? (10) Whether, contrary to past practice, Katki Daff electoral area was detached from Shameni Polling Station and was tagged to far-off polling-station, Daman? If so, to what effect? (11) Whether there had been any double voting? If so, its extent and effect? (12) Whether the statement of count were not drawn up in accordance with rules in respect of many polling stations? If so, to what effect? (13) Whether none of the Presiding Officers had furnished to the petitioner's Polling Agents, the certified copies of the statement of ballot paper account? If so, to what effect? (14) Whether the election of the returned candidate has been procured by corrupt and illegal practice, committed with the connivance of the said candidate? (15) Whether the petitioner is entitled to be declared as returned, from the constituency PB-18 Kohlu Agency? (16) Whether the election in the said Constituency is void as a whole, on account of (i) failure to comply with the provisions of the Act and rules, and (ii) the prevalence of extensive corrupt and illegal practice? (17) Relief? ' Parties led for and against, evidence in support of their respective contentions. In view of the evidence and relevant provisions of'the law, the findings on the issues are recorded hereinbelow: Issues Nos.1, 2 and 3 ' The issues are inter-linked with each other, therefore, I proposed to dispose them of, jointly. ' The petitioner did not produce any witness in support of these issues, except his own affidavit (Exh. PJ) wherein he stated that the correct name of respondent No,1, according to the electoral list is Nawabzada Mir Gazain Khan, whereas in the nomination papers, he recorded his name as Sardar Gazain Khan, in violation to paragraph 22 of the Manual of Instructions, therefore, the Returning Officer failed to scrutinize the nomination papers, in accordance with section 14(3), provisos (i) (ii) and (iii) of the Representation of the People Act, 1976 (hereinafter referred to as the 'Act'). It is alleged that incorrect name of respondent No,1 was used by him, with mala fide intentions and ulterior motives, enabling himself to had his name and symbol implaced on top of the list, whereas the name of petitioner as well as his symbol i,e, bus, was shown below his name and symbol. Such device placed the respondent No,1 in an unduly advantageous position. The list of the contesting candidates was not prepared and published, in accordance with section 21 (b) of the Act and Rule 7 (ii) of the Rules. Made thereunder. Inasmuch as, the names of the contesting candidates were not entered in the said list in Urdu alphabetical order, thus violated the mandatory provisions of the law. Had the Returning Officer, excluded surname of both the candidates, the name of petitioner would have been enlisted at Serial No,1, whereas the respondent No,1 's name would have down at Serial No,3, or if the list of contesting candidates had been prepared, in accordance with the name of candidates, including their surnames, title were shown in the Electoral Roll, the petitioner whose recorded name is Mir Behram Khan, would have been shown above the name of respondent No, 1 . ' In cross-examination petitioner admitted that the process of scrutiny was attended by him and he did not raise objection on the name of respondent No,1, being Sardar Gazain Khan Marri, for which, he offered explanation that in his presence, Returning Officer described him as Nawabzada Mir Gazain Marri. Petitioner also deposed that Returning Officer did not supply copy of the candidates, contesting the elections after scrutiny or at the time of issuance of symbols or even thereafter. As
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such, due to non-availability of such list he could not know that the name of respondent No,1 has been shown as Sardar Gamin Khan Marri. Petitioner also admitted that against the acceptance of nomination papers of respondent No,1, he did not file appeal. It was also averred by him that on the day of polling, he did not know that on the ballot papers, the name of respondent No,1 has been published as Sardar Gazain Marri and later on, he came to know about it. He further stated that actually respondent No,1 is not the Sardar of his Tribe, therefore, his name should have not been published as such. He also stated that for illiterate voters there is no difference between the symbol of 'Scooter' and 'Bus', if both are printed, one after the other. According to him, in this constituency the majority of peoples are illiterate as rate of literacy is 2% and 98% voters of the Constituency cast their vote on seeing the symbols of the candidates, but even then some time they commit mistake. Contrary to the above evidence, the respondent No,1 also filed his affidavit (Mark-5) explaining therein that being the son of Sardar of Marri Tribe he is also called by the people as 'Sardar Sahib'. He produced copy of his National Identity Card (Exh. R/1) in which his name has been written as Sardar Gazain Khan Marri. According to him, his father and other members of the family left for Afghanistan during the regime of late Bhutto and they came back in 1992. The electoral, rolls were prepared in their absence. He learnt about his name as Nawabzada Gazain Marri, at the time when he obtained the extract of the electoral list for contesting the election, but as in the identity card, his name was shown as Sardar Gazain Khan Marri, therefore, he filled the same name in the nomination papers without any mala fide intentions or ulterior motives. The respondent No,1 also stated that after the scrutiny as well as allotting of symbols the Returning Officer never described him as Nawabzada. The Returning Officer affixed relevant list outside his office describing him as Sardar Gazain Khan Marri and to petitioner as Mir Behram Khan. Inasmuch as, at no stage, any objection was raised nor appeal was .Filed by the petitioner. He also stated that it is not correct to state that the people of the area cannot differentiate between 'Scooter' and 'Bus'. ' In cross-examination, respondent No,1 admitted that in the electoral list his name has been shown as (Nawabzada Mir Gazain Khan son of Nawab Khair Bakhsh'). He admitted that vide Exh. P/K, symbol of gun was allotted him in the election. He also admitted that the letter head of his portfolio i,e, Interior Minister, carries his name as 'Nawabzada Gazain Marri'. In view of the above evidence, it is to be borne in mind that under section 68 (1) of the Act, the election of a Returned Candidate can be declared void, if the Tribunal is satisfied that the nomination of the Returned Candidate was invalid. In the electoral list of PB-18 (Kohlu) for the year, 1986-87, the name of respondent No,1 appears to be as ' Nawabzada Mir Gazain Khan son of Nawab Khair Baldish', whereas admittedly in the nomination papers he described himself as ' Sardar Gazain Khan' , according to the National Identity Card (Exh. R/1). It is also an undisputed fact that during the scrutiny of the nomination papers, the petitioner did not raise any objection in this behalf nor he did file appeal subsequently under section 14 (v) of the Act.,As per section 14(iii) (a) of the Act, the Returning Officer has been empowered to reject the nomination papers, if he is satisfied that the candidate has not qualified to be elected as a member. Section 99 of the Act, prescribes number of qualifications and disqualifications, which essentially do not debar a candidate to be elected as a member, if he had mentioned his title, surname, or the family name other than which has been recorded in the electoral list. As far as the respondent's name form i,e, Gazain Khan. In such situation, it was incumbent upon the Returning Officer under proviso (ii) of section 14 of the Act, to have remedied forthwith the defect in the nomination papers, because of such error/defect, he had no authority to reject his nomination papers. Since the respondent No,1 has substantially complied with the substantive provisions of the law and objection was also not raised by petitioner at the relevant time, therefore, he rightly declared his nomination form to be valid. As it has been stated above that no apparent disqualification was attached with the candidature of respondent No,1 to be elected as member of Provincial Assembly, therefore, for the
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discussion made hereinabove the nomination papers of respondent No,1, cannot be declared invalid, rendering the election void under section 68 (1) (a) of the Act. ' According to subsection (v) of section 16 read with Rule 7 (ii) the Returning Officer was required to publish the list of contesting candidates entering their names in Urdu in the Alphabetical order indicating against the name of each contesting candidate the symbol allotted to him. As the name of respondent No,1 opens with the word ' CY's '{{URDU TEXT}} and that of petitioner with as his received name is 'Mir Behram Khan Marri'. Thus in the final list, the respondent No, 1 's name was rightly placed above the name of petitioner and in doing so no provisions of the substantive statute has been violated. Although in the affidavit petitioner stated that the symbol of Scooter was allotted to respondent No,1 and the symbol of Bus to petitioner, but it was not correct statement of fact as the symbol of respondent No,1 as per P/K was Bandook (gun). Both the contesting candidates were allowed respective symbols and as the name of respondent No,1 was coming above the name of petitioner, therefore, in Urdu Alphabetical order, the symbol of his election was shown in front of his name, according to law. It is noteworthy that due to this reason no prejudice appears to have been caused to petitioner, nor any confusion was created at the time of polls, for the added reason that as per own admission of petitioner voters 98% voters do exercise their right of franchise by making reference to the election symbol. ' Thus these issues are decided against the petitioner. Issue No,4 ' To substantiate this issue, the petitioner produced P.W.5 Miran, who in his affidavit deposed that when he went inside the booth of Kote-Shaher Polling Station, stamp was not lying there but the stamp pad was available. As such, he came out and demanded the stamp from the Officer, who went inside and on coming back told him that now go and cast the vote. When he again entered in the book stamp was available. He used the same and when he came out he disclosed this fact to a number of other persons, who also confirmed that even at their turn, the stamp was not available, and they affixed their thumb-impression on the ballot paper. ' On the other hand, respondent No,1 produced R.W.4 Iltaf Hussain, who after explaining the procedure for conducting the polls deposed that APO on handing over the ballot paper also used to give the seal to the voter, so he may affix the same on the ballot paper in front of the symbol of the candidate of his choice. In cross-examination witness denied that to a number of people the seal was not made available as such, they put their thumb-impression on the ballot papers. ' According to Raja M. Afsar, learned counsel since the stamp was kept by the Presiding Officer in his possession and was being made available only to few voters, therefore, majority of them could not cast their vote validly and they affixed thumb-impression on the ballot resulting in declaring a good number of votes invalid which were used in favour of petitioner. In this behalf, it is to be observed that according to section 33 (v) (b) of the Act read with rule 17 (i) & (ii), the elector on receiving the ballot paper was 8 required forthwith to proceed to the place reserved for marking the ballot paper and put the mark containing squares on a rubber stamp provided for this purpose by the Presiding Officer at the polling station. It would mean that the rubber stamp shall not be made available for all the time inside the reserved place but it is to be provided by the Presiding Officer to a voter before he proceeds to that place. Therefore, non- availability of the rubber stamp inside the booth when P.W.5 entered there was not in violation to the above provision of law. Moreover, it is not his case that at all such rubber stamp not given to him, because as soon as he demanded from the Presiding Officer the same was provided to him, as it is indicative from his affidavit. In this behalf, no other person from amongst those who claim that rubber stamp was not given to them was not produced before the Tribunal to substantiate the charge. Therefore, this issue as well, is decided against the petitioner. Issue No,5 ' To substantiate the point, petitioner produced the evidence of P.W.1 Ellahi Baldish, P.W.2 Ghazi Khan and P.W.3 Hooran. According to the version of P.Ws.1 and 3, on 9th October, 1993, at Polling Station
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Kahan (female), they were appointed as Polling Officers. At this station, double electoral lists were used, due to which, a voter used to cast his vote twice besides minor girls aged 7/8 years who also exercised the right of vote. When the Presiding Officer i,e, D.E.O., Kohlu, was contacted in this behalf he stated that he would himself be responsible etc. Similar type of statement was given by P.W.2 who was also appointed as Polling Officer at Daman (Female) Polling Station. The petitioner in his affidavit also contended that on these two polling stations, bogus voting was permitted. In cross- examination, he denied the suggestion that at Daman and Kahan (Female) Polling Station, minor girls of 7/8 years did not caste vote in place of voters, having Identity Cards showing ages of 35/36 years. In rebuttal, respondent No,1 produced R.W.3 Syed Tahir Shah Bokhari, Presiding Officer of Civil Dispensary (Female) Polling Station, Kahan. He maintained that only those voters were permitted to enter inside the polling station, who were recorded voters having identity cards with them and were also major. The witness explained that as soon as the voter used to enter in the polling station, an officer was deputed to verify her name in the electoral list and to check the Identity Card and then Polling Officer would affix the inedible ink on the thumb of voter and in the meanwhile Identity Card will also be punched. On completion of these formalities, after getting signatures on the counterfolio the ballot paper used to be issued. Ellahi Bakhsh and Hooran (P.Ws.1 and 3) were also Polling Officers with him but both were deputed separately on polling booths. They did not lodge any sort of complaint before him, during the process of voting. He himself also did not notice any illegality or irregularity during the polling hours. He further stated that during the process of counting no objection by the agent of the candidate was made. The Election Agent of Mir Behram Khan (petitioner) stayed in the polling station till the entire process of counting and thereafter she left for Quetta as till that time, he had not filled the requisite forms which were required to be signed by Election Agent, because the electricity was not available. In the meanwhile a Datsun pick-up was available for going to Quetta, therefore, she stated that as far as the counting is concerned she is satisfied and put her signatures on a written statement which was obtained from her in good faith and then she left in the said Datsun. The result was also handed over to her on a white paper. The written statement was filed as Exh. R/3 and the result of polling station on Form-14 as Exh. R/4, In cross-examination the witness denied that Polling Officer Ellahi Bakhsh and Hooran for number of times pointed out to him that minor persons (Female) are casting votes therefore, they be asked not to do so and he did not listen to it and allowed those girls to use the votes. The witness also did not agree that he had stated to Polling Officer that it is his responsibility to allow the minor or major persons to cast the votes. With reference to non-providing the statement of count on prescribed form to the Agent of petitioner, he stated that an explanation has already been given by him, because his Agent had already left the Polling Station. The witness communicated unofficial result to Deputy Commissioner, Kohlu, through Major of the Army who was posted at the Polling station. Through this witness, the result of the election of this polling station on a white paper was produced as Exh. P/J, in respect of which, he stated that although this document was issued by him under his signatures, but he observes that manipulation has been made therein. The petitioner secured only 15 votes but in Exh. P/I figure of '2' has been added to make it as '215', similarly the figure of '2' has also been added with the figure of '16' to make it '216'. In respect of the statement signed by the Agent of petitioner Exh. R/3, he denied that it is a forged document which has been prepared after the polling. To counter the allegation of bogus voting in Daman Polling Station, respondent No,1 produced R.W.5 Niaz Muhammad, A.P.O. He also maintained that the voters were allowed to enter in the polling station by the staff posted there, turn by turn. On checking their Identity Cards, coupled with the fact that their names are enlisted as voter and they had National Identity Cards in their possession. Similarly the Identity Cards used to be checked for the second time with reference to the name of voter in the electoral list, such scrutiny was made in presence of Polling Agent of the candidate and thereafter the ballot-paper used to be issued to the
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voters. As per his statement no altercation took place between P.W. Ghazi Khan and Presiding Officer, neither former made any complaint to the Presiding Officer. In cross-examination, the witness stated that it is incorrect to suggest that at Daman Polling Station bogus voting was allowed to favour the respondent No,1. The respondent also denied the allegations in his statement. ' It is important to note that at Civil Dispensary (Female) Polling Station, petitioner had appointed Mst. Akhtar Bibi as his Agent, but she was not produced to substantiate the allegations not her thumb-impression on Exh. R/3, has been disputed during the cross-examination on the statement of P.W. Syed Tahir Shah Bokhari. Similarly no Polling Agent was produced from Female Polling Station Daman. It is also an admitted position that no bogus vote was challenged, according to section 35 of the Act. Under this provision of the law, the burden of proof lies upon the candidate or his Agent to prove by challenging the vote, that the person has already voted at the same or another polling station or is the person whose name is entered in the electoral roll or is not the person, whose name is entered in the electoral roll etc. For this purpose on depositing a sum of two rupees with the Presiding Officer, a challenge can be made to the elector. Therefore, in absence of such challenge, it is not possible to hold that bogus voting was allowed at Kahan and Daman (Female) Polling Stations. Although Mr. Tariq Mehmood, Advocate by submitting an application No,10/94, had objected on the evidence of witness being P.Ws.1 and 3, which according to him as per the rule prescribed by the Election Commission of Pakistan vide Notification dated 16th March, 1985, can only be summoned with the permission of Court. Although the objection appears to be valid but is not relevant as the application was moved by him after recording of their statement therefore, no order in my opinion is required to be passed, for an added reason that the matter is being decided on merits instead of non-suiting any party on a technical point. ' Now turning to the objection of Raja M. Afsar, learned counsel that the Presiding Officer tampered with the result, as according to Exh. P/J petitioner secured 216 votes, out of which one was challenged but in the result compiled on Form XIV the petitioner has been shown to have obtained only 15 votes instead of 215. He also contended that P.W. Syed Tahir Shah Bokhari had admitted the execution of Exh. P/J, therefore, the burden shifts upon him under Article 118 of the Qanoon-e- Shahadat, 1984, to prove that figure of '2' has not been recorded in his handwriting. In this behalf, he placed reliance on PLD 1963 Karachi 1960. The contention of learned counsel appears to be in course of business. Moreover, on careful perusal of Exh. P/J, in terms of mention the aggregate of total number of votes polled by the contesting candidate and total number of doubtful votes, excluding from the count. At this polling station all the candidates polled 369 votes, whereas four were the doubtful votes, as such total used ballot-papers were shown to be 373. The petitioner to further elaborate this fact conveniently could have summoned the counterfoils of the used ballot papers and in absence thereof, the sanctity is to be attached to an official document which has been prepared in the ordinary course of business. Moreover, on careful perusal of Exh. P/J, in terms of Article 84 of the Qanoon-e-Shahadat, 1984, an ordinary person conveniently can conclude that the figure of '2' with the figures '15' and '16' has been added subsequently. As far as the judgment relied upon by the learned counsel is concerned that is not attracted and is distinguishable on facts. Therefore, I am inclined to hold that petitioner did obtain 15 valid votes at Civil Dispensary Polling Station (Female), Daman. In consequence of the above discussion it is held that no bogus voting took place at Kahan and Daman (Female) Polling Stations. Issue No,6 ' No, convincing material has been produced by the petitioner to substantiate that a large number of votes liable to be rejected were counted in favour of respondent No,1, as such, the issue is decided in negative. Issues Nos. 7 and 8 ' In support of this issue, petitioner produced P.W. Ghazi Khan and Mir Nehlan Khan. The former witness without stating the registration number of any vehicle alleged that on the intervening night
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of 8/9th October, 1993, the brothers of respondent No,1 had been transporting peoples from Marri Camp, Quetta to Kahan via Sibi through Trucks and Tractors. Similarly the latter deposed in the affidavit that respondent No,1 had made arrangements to bring the voters in Trucks from Marri Camp and after election those persons returned to Quetta. According to section 78 (v) of the Act, using, hiring, borrowing any vehicle for the…
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