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Petitioner: Sardar MUHAMMAD YAQOOB KHAN NASIR VS Respondent: Sardar MUHAMMAD ISRAR JUDGMENT
Court Name: Election Tribunal Judge(s): Muhammad Noor Meskhanzai Title:Sardar MUHAMMAD YAQOOB KHAN NASIR vs Sardar MUHAMMAD ISRAR
JUDGMENT
Reported As: 2011 CLC 1649 Result: Petition accepted Judgment JUDGMENT ' MUHAMMAD NOOR MESKANZAI, J.--- Through this judgment, I propose to dispose of the Election Petition No,8 of 2008 filed by Sardar Yaqoob Khan Nasar, the petitioner, assailing the Notification No,F.2(4)/2008-Cord dated 1st March, 2008 declaring respondent. No,1 Sardar Muhammad Israr Tareen as returned candidate from NA-263, Loralai-Cum-Nusakhail-Cum, Barkhan. 2. Facts relevant for the disposal of instant petition, are that the petitioner and respondents Nos.1 to 10 contested election from NA-263, Loralai-Cum-Musakhail-Cum, Barkhan held on 18th February, 2008. In the said election the respondent No,1 secured/obtained 52818 votes, whereas the petitioner got 34985 votes, as such respondent No,1 was declared as returned candidate from the constituency by a margin of 17833 votes vide Notification No,F.2 (4)/2008-Cord dated 1st March, 2003. The petitioner feeling aggrieved of the result filed an application before Election Commission of Pakistan, which was entertained and ultimately petitioner was directed to approach the Election Tribunal, constituted for the purpose of disposal of election petition of the concerned constituency of Balochistan. 3. Against the order of Election Commission of Pakistan, the petitioner approached the High Court of Balochistan, by way of filing C.P. No,61 of 2008. The same too was dismissed on the ground that Election Tribunal has been constituted, as such the petitioner should approach to the proper forum. Hence this petition. 4. It is the grievance of the petitioner that out of 280 polling stations, detail whereof is given in Form-XVI, in 23 polling stations the respondent No,1 in-league and connivance of Returning Officer and polling staff committed illegal and corrupt practices. There was a massive rigging owing to
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misuse of authority, transgressing of powers, exercise of arbitrary actions with mala fide intentions. It is further alleged that as the respondent No,1 was contesting the election on the ticket of Pakistan Muslim League (Q) "KING PARTY" threatened the Presiding Officers of the polling stations and taken away the ballot boxes and other relevant articles including ballot papers, Counterfoils, under the threats of dire consequences and thereafter with the help and assistance of the security forces by way of massive 'rigging put ballot papers, filled counterfoils by the persons other than the voters and filled ballot boxes with ballot papers and procured the election result in his favour. It is also the case of petitioner that respondent No,1 forcibly took away election material and the polling staff were restrained to act in accordance with law. The petitioner made oral complaint and intimation to the Returning Officer and District Returning Officer followed by written complaint to both the above officeRs, A meeting was also held with Commandant Loralai Scouts, who was apprised of the massive rigging, but as all the Polling Official Staff, i.e. Returning Officer and District Returning Officer and personnel of Security Forces were in-league with the respondent No,1 and were bent upon to get the respondent No,1 successful at all cost. Therefore, the efforts made by the petitioner borne no fruit. The petitioner alleged massive rigging in following 23 Polling Stations:--- S. No.Name and No. of Polling StationVotes cast in favour of respondent No.1Votes cast in favour of petitionerRejected 1. Polling Station No.54 Manzai990 115 - 2. Polling Station No.49 Wahooi36 263 284 3. Polling Station No.59 Nizam Machali439 31 - 4.Polling Station No.48 Banhar484 16 - 5.Polling Station No.22 Primary School Mohla Moin Shah1981 1 11 6.Polling Station No.20 Primary School Killi Raz Muhammad Tareen1762 0 0 7. Polling Station No.21 Primary School Murad Khan Zarkoon1186 0 0 8.Polling Station No.17 Primary School Thathi Killi2368 3 0 9.Polling Station No.23 Primary School Mohla Ismail Tareen2583 0 0 10.Polling Station No.15 Girls Middle School Duki1963 8 0 11.Polling Station No.7 Primary School Killa Jan Muhammad Duki0 0 0 12.Polling Station No.19 Primary School Akhtar Muhammad Tareen1920 0 0 13.Polling Station No.16 Girls Primary School Duki2090 0 0
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14.Polling Station No.25 Primary School Jangle Duki136 152 0 15.Polling Station No.13 Primary School Wakam Rabat Salam Baloch1510 16 50 16.Polling Station No.14 Primary School Wakamr Babat1246 3 50 17.Polling Station No.37 Middle School Habib Killa293 86 50 18.Polling Station No.27 Middle School Killi Karim Khan1714 15 0 19.Polling Station No.29 Neechal Subandi Killi Habibullah Karim Khan1852 0 27 20.Polling Station No.30 Primary School Madrassa Killi Karim Khan1629 0 0 21.Polling Station No.18 Zachao Bacha Centre Killi Akbar Khan2395 0 5 22.Polling Station No.28 Girls Primary School Karim Dad Duki0 0 0 23.Polling Station No.31 Primary School Essa Khan Duki2236 0 0
' Along with petition, the petitioner filed affidav'ts of 38 witnesses. 5. The petition was contested by respondents Nos.1 and 6 by way of filing separate written statements, wherein besides raising certain legal objections qua maintainability of petition, the petition was resisted on factual grounds. It was contended that allegations of mala fide are aimed at conventional mud-slinging by a defeated candidate. The elections were fair, transparent and held peacefully. The election staff after due checking of I.D. Cards issued ballot papers to the voteRs, However, an allegation of Booth capturing was levelled against the petitioner. For the sake of convenience, the Para No,11 of written statement filed by respondent No,1 is reproduced hereinbelow:--- "This para is utterly false and hence denied. The allegations are mala fide and aimed at conventional mud-slinging by a defeated candidate. The election was held quite peacefully. The allegations are nothing but a concoction. Besides, they are vague. The entire story is an afterthought. No such complaint was filed before or received by the Returning Officer as confirmed order dated 26-2-2008 . Passed by the learned Commission. Following table would, on the other hand demonstrate how the petitioner himself polled bogus votes by booth capturing:- S. No.Name and number of polling stationVotes polled by The answering RespondentVotes polled by the petitioner 1. P/S Killi Karim Dad 12 4 1273 2. P/S Faqir Muhammad 24 - 1939 3. P/S Zabto 26 - 908
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4. P/S Abdul Majeed 32 - 1148 5. Girls M/S Nasir Abad 35 - 2390 6. Girls P/S Nasir Abad 36 - 2184 7. P/S Jilal Chinna 38 8 2251 8. P/S Safdar Nasir 39 - 977 9. Civil Dispensary Zinda 62 7 384 10. Arba Seen 143 1 245
' As regards the remaining respondents i.e. Respondents Nos.2, 3, 4, 5, 7, 8, 9 and 10 did not appear, as such were proceeded against ex parte. 6. On filing of the written statement by the respondents No,1 and 6, on 19th December, 2008, the following issues were framed:- (1) Whether petitioner has lost locus standi to file election petition on account of violating provisions of section 50 of the Representation of the People Act, 1976? (2) Whether the petition is liable to be dismissed for non-compliance of provisions of sections 54 and 55 of the Act, 1976? (3) Whether respondent No,1 with connivance of polling staff committed illegal, corrupt and massive rigging in the process of election and procured result in his favour? (4) Whether in polling stations Killi Tatti Zucha Bucha Centre Akbar Khan and Killi Jan Muhammad ballot papers were issued more than total registered votes and cast? (5) Whether fake votes were stuffed in polling station Wavy by putting forged thumb-impression and fictitious number of I .D Card? (6) Whether respondent No,1 casts bogus votes with the connivance of polling staff and security personnel? (7) Relief ? 7. After framing of the above issues, oetitioner, in order to substantiate the allegations produced following ten P.Ws.:-- ' P.W.1 Abdul Salam, Manager Technical, NADRA deposed that they were provided a list of 25385 Manual I.D Cards and computerized Cards by P.A. To Sardar Yaqoob Khan. Nasar (petitioner) for verification. The said list was sent to NADRA Headquarter, Islamabad. They received result showing verification of 1115 MNIC and CNIC, whereas 24270 MNIC and CNIC could not be verified from NADRA base. He produced verification report along with his letter as Exh.P/1-A and record as Art:/1 containing 176 pages and Art:/2 containing 168 pages. ' In cross-examination he denied the suggestion that he has produced the list, wherein number and names of voters have been mentioned. He further deposed that MINC and CNIC were given to them for verification of genuineness of the same. He also denied that he has filed false verification report at the instance of Muhammad Akram and petitioner. ' P. W.2 Kamal-ud-Din, Assistant Presiding Officer, Wakam Rabat, Polling Station Tehsil, Duki produced the affidavits as Exh.P/2-A. He deposed that the same was got attested from Ayaz Mandokhail, Notary Public. He owned the contents of the affidavit Exh.P/2-A. ' In cross-examination he denied to have made a false statement. ' P.W.3 Allah Noor, Presiding Officer, Polling Station No,30, Primary School, Madrassa Killi Karim Khan produced his affidavit, which bears his signature. He owned the contents of affidavit. In cross- examination, he admitted hat he and petitioner belong to same tribe. He denied the suggestion that he has wrongly stated in Exh.P/3A on account of friendship. ' P.W.4 Muhammad Anwar, Assistant Presiding Officer, Polling Station Mohalla Moeen Shah, produced his affidavit as Exh.P/4- A and certified that the same was executed under his
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instructions and attested by Mr. Ayaz Mandokhail, Advocate. Besides owning the contents of affidavit, he identified his signature thereon. ' In cross-examination, he stated that the contents of affidavits were narrated by him to the Oath Commissioner/Notary Public. He, stated that he cannot tell the names of the persons for whom forged ballot papers were prepared, stamped and polled. He admitted that he had not filed any application before the Presiding Officer or Retuning Officer with regard to the incident stated in his affidavit. He denied to have made a false statement. ' P.W.5 Muhammad Karim Assistant Presiding Officer, Polling Station Killi Essa Khan, Tehsil Dukki produced his affidavit as Exh.P/5-A duly signed by Oath Commissioner. He identified his signature thereon. He affirmed the contents thereof. ' In cross-examination he admitted that his CNIC bearing No,56301-1076541-7 was issued to him by NADRA. He admitted that signature on his Service Card is in English. Voluntarily stated that he used to sign both in English and Urdu. He denied that the signatures on said affidavit are of some one else. He deposed that he had given in writing to the Returning Officer and also informed the Returning Officer about snatching the ballot papeRs, He did not mention names of person who snatched the ballot papeRs, He stated that he had not resisted when the persons were snatching the ballot papeRs, He denied to have made a false statement. ' P.W.6 Habib Ullah, Polling Officer, Girls Middle School, Killi Duki J.V. Teacher, Killi Noor Muhammad, Killi Karim Dad, Tehsil Duki produced his affidavit duly signed by Oath Commissioner as Exh.P/6-A. He affirmed the contents of affidavit. ' In cross-examination he stated that total votes of the Polling Station were 2090. He showed ignorance about number of polled votes. He denied that 13/14 ' Ghundas' did not come but only the representative of Muslim League (Q) came there. He stated that persons/Ghundas had beaten them. He did not get himself medically examined. He gave the names of said Ghundas to Asad Khan Presiding Officer of the Polling Station. Voluntarily stated that he was man of Israr Tareen (Respondent No,1). He admitted that he gave the names of the said persons and also stated in his application that those persons belonged to Israr Tareen. He stated that he had not mentioned the name of those persons who were putting the marks/stamps on ballot papeRs, As nobody was ready to listen them, therefore, he did not make a complaint in writing. He further stated that he had not made complaint before the Provincial Election Commissioner or District Returning Officer/Sessions Judge, Loralai or Returning Officer. He denied that he gave the affidavit at the instance of Sardar Muhammad Yaqoob Khan (Petitioner). He also denied that for this purpose Sardar Muhammad Yaqoob has paid the expenses of his affidavit. He denied to have made a false statement. ' P.W.7 Raz Muhammad, petitioner's Polling Agent, Polling Station, Killi Thatti, Killi Duki, produced his affidavit duly signed by him as Exh.P/7-A. He affirmed the contents of the affidavit which were attested by Mr. Ayaz Mandokhail, Notary Public. ' In cross-examination he stated that the Police as well as Frontier Corps personnel were present at the spot, therefore, he did not get registered any F.I.R. Against the persons mentioned by him in the Affidavit. He admitted that he had not submitted any written complaint against those persons. He admitted that he had not examined himself by the medical officer. He showed his torn clothes to the police officials and F.C. Personnel. He admitted that he had not produced his torn clothes to the police officials. He admitted that he is relative of Sardar Yaqoob Khan Nasar, (petitioner). He denied to have made a false statement at the instance of petitioner. ' P.W.8 Samandar Khan,. Assistant Presiding Officer, Killi Essa Khan produced his affidavit duly signed by him as Exh.P/8-A. He affirmed the contents thereof which were attested by Mr. Ayaz Mandokhail, Notary Public.
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' In cross-examination he admitted that he is a graduate. He admitted that he had not named the persons belonging to Muslim League (Q) who entered into the polling station. He admitted that he had not registered any case against those persons. He admitted that he had not sent any application/complaint to the Election Commission of Pakistan. The Affidavit was written on 23rd. The Elections were held on 18th; and he went to the Notary Public on 23rd. He denied that the Assistant Presiding Officer is subordinate and part of election staff, headed by the Chief Election Commissioner of Pakistan. He admitted that he had not registered any F.I.R. About this incident. He admitted that he had not submitted any application to the Returning Officer. He denied to have made a false statement before this Tribunal at the instance of Sardar Yaqoob Khan Nasar, petitioner. ' P.W.9 Muhammad Umar, Polling Agent, Polling Station Killi Akbar Khan Tareen, Duki produced his affidavit duly signed by him as Exh.P.9-A. He affirmed the contents of the same which were attested by Mr. Ayaz Mandokhail, Notary Public. ' In cross-examination he stated that he is a graduate. He was the only polling agent of Sardar Muhammad Yaqoob Khan Nasar. He admitted that that he had no knowledge about the conduct of those persons who entered in the polling booth. He admitted that they themselves told that they belong to Muslim League (Q). He does not know them personally. He admitted that he had not submitted any application against the said persons to the Returning Officer. The personnel deployed at the polling station belonged to Police as well as Frontier Corps. He admitted that he had not made any written complaint to F.C. Authorities at the relevant time. He stated that he went to the police station for lodging the F.I.R. Against those persons, who forcibly entered in the polling station, but no case was registered by the police. He admitted that he had not submitted any application before the higher police authorities; He denied to have made a false statement before this Tribunal at the instance of Sardar Yaqoob Khan Nasar, petitioner. ' P.W.10 Muhammad Anwar, Polling Agent, Killi Akhtar Muhammad, produced his affidavit duly signed by him as Exh.P/10-A. He affirmed the contents of the affidavit which were attested by Mr. Ayaz Mandokhail, Notary Public. ' In cross-examination he stated that he is a matriculate. The name of Presiding Officer was Shah Jehan, who had threatened him to keep silent. He stated that he had not submitted any application to the Returning Officer or the higher authorities but made an oral complaint to the F.C. Authorities. He stated that he does not know those persons, who entered in the polling station. Since those persons belonged to the Killi of returned candidate, therefore, he presumed that they are members of Muslim League (Q). He stated that he was abused by the Presiding Officer namely Shah Jehan. He stated that he does not know that Presiding Officer was a teacher or an officer/official of any other Department. He admitted that he did not get himself examined medically, as he was simply slept by those persons. He denied that neither he was present at the polling station; nor any incident took place and he was not beaten by the said persons. He denied to have made a false statement before this Tribunal at the instance of Sardar Yaqoob Khan Nasar. 8. As per the order of this Tribunal, recounting of votes pertaining to 23 Polling Stations was carried out by the Provincial Election Commissioner. So the statement of Provincial Election Commissioner was recorded and the report was produced as Exh.C/1. 9. C.W.1 deposed that he was appointed Commission for recounting the votes by the orders of this Tribunal vide order dated 6-4-2011. Pursuant to notice, the parties appeared and in their presence, the process of recounting was conducted. The learned counsel for respondent No,1 after attending one hearing did not propose to appear. As per instructions of this Tribunal, after notifying the date to the parties he continued the process and completed the same. After completing the process of recounting, he compiled the report and kept the entire recounted material in a bag, which was sealed. He saw the sealed bag, which is the same and intact. He signed all the relevant documents,
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which he produced as Exh.C/1-A (In the paper-book, the same are marked as G-2, G-1, G-5, 7-C, 13- B, G-6, G-9, G-15, G-13, G-12, G-14, G-16, G-19, G-18, G-22, G-23, G-24, G-7-B, 7-A), Exh.C1/B (In the paper-book, the same are marked as 7-J, 7-F, 7-K, 7-L, 7-M, 7-N, 7-0, 13-A, 13-D), Exh.C-1/C (In the paper-book, the same are marked as 14-B, 14-A, 15-A), Exh.C-1/D (In the paper-book, the same are marked as 15-A, 15-B, 15-C), Exh.C-1/E (In the paper-book, the same are marked as 15-D,16-B, 16A,), Exh.C-1/F (In the paper-book, the same are marked as 16-C, 16-E, 16-F, 16-G, 17-A, 17-B, 17-C), Exh.C- 1/G (In the paper-book,. The same are marked as 18-B, 18-A, 18-C, 18-D), Exh.C-1/H (In the paper- book, the same are marked as 18E, 18-F, 19A), Exh.C-1/I (In the paper-book, the same are marked as 19-B, 19-C,20-A), Exh.C-1/J (In the paper-book, the same are marked as 2-D, 20-G, 20-F, 20-H, 20-I, 21-A), Exh.C-1/K (In the paper-book, the same are marked as 21-C, 21-D, 21-E, 21-F, 21-G, 21-H, 21-I) Exh.C-1/L (In the paper-book, the same are marked as 22-A, 22-B, 22C), Exh.C-1/M (In the paper- book, the same are marked as 25-A), Exh.C-1/N (In the paper-book, the same are marked as 25-C, 25-D, 25-E, 27-B, 27A, 27-C), Exh.C-1/0 (In the paper-book, the same are marked as 28-A), Exh.C-1/P (In the paper-book, the same are marked as 28-B, 28-C, 28-D, 28-E, 29-A, 29-B), Exh.C-1/Q (In the paper-book, the same contains page pertaining to certificate dated 14th January, 2011), Exh. C-1/R (In the paper-book, the same are marked as 30-A, 30-B, 30-C, 30-D, 31-A), Exh.C-1/S (In the paper- book, the same are marked as 31-B, 37-A, 37-B, 37-C), Exh.C-1/T (In the paper-book, the same are marked as 48-A, 48-C), Exh.C-1/U (In paper-book, the same are marked as 48-B, 49-A), Exh.C-1/V (In the paper-book, the samt are marked as 49-B, 49-C), Exh.C-1/W (In the paper-book, the same are marked as 54-A, 54-B, 59-A) and Exh.C-1/X (In the paper-book, the same are marked as 59-B, 59-C). He has annexed synopsis/commentary, which starts from pages 1 to 109 and thereafter start annexures, which come to Annexure-59-A to 59-C. The conclusions drawn by him are available at the last two pages, -which contain his signatures. While drawing conclusions, he mentioned at Serial No, t the consolidated statement of result of General Election, 2007-2008 and recounting of NA-263 Loralai-cum-Musakhail-cum-Barkhan. Whereas Sheet No,2 is the consolidated statement of result of recounting of Polling Stations Nos. 7, 13, 14, 15, 16, 17, 18,19, 20, 21, 22, 23, 25, 27, 28, 29, 30, 31, 37, 48, 49, 54S and 59 (Total Polling Stations 23). The details are as under:--- (i) Number of counterfoils 26100. (ii) Number of counterfoils, filled incompletely 4328. (iii) Number of counterfoils found completely blank 6603 in violation of Clause 'E' of. Subsection (2) of section 33 of Representation of the People Act, 1976. (iv) Number of counterfoils filled-in partially 13752 in violation of Clause 'E' of subsection (2)of section 33.Of Representation of the People Act, 1976. (iv)(a) Number of counterfoils with stamp and signature of Presiding Officer 3191. (v) Number of counterfoils without stamp and signature of Presiding Officer 22224 in violation of Clause 'E' of subsection (2) of section 33 of Representation of the People Act, 1976. (vi) Number of counterfoils without Serial number of voters 7856 in violation of Clause 'E' of subsection (2) of section 33 of Representation of the People Act, 1976. (vii) Number of counterfoils without CNIC/MNIC 8115 in violation of Clause 'E' of subsection (2) of section 33 of Representative of Peoples Act, 1976. (viii) Number of counterfoils found missing in the books 685. ' The valid votes cast in total 23 Polling Stations were 32715, out of which 3260 were declared to be rejected. However, the total number-of votes cast are 35975. ' The details of votes of petitioner and respondent No,1 in Polling Stations Nos. 7, 13 to 23, 25, 27 to 31, 37, 48, 49, 54 and 59 are as under:--- Polling Station No.Number of votes of petitionerNumber of votes Of respondentTo be rejected Total votes
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(Sardar Muhammad Yaqoob Nasir)No.1 (Sardar Muhammad Israr Tareen) 7 101 924 4 1031 13 14 1742 24 1766 14 Nil 1080 64 1145 15 1 1940 19 1960 16 Nil 2127 28 2155 17 3 2162 225 2394 18 Nil 2279 114 2393 19 Nil 1919 9 1928 20 Nil 1640 112 1752 21 Nil 1180 4 1185 22 1 1678 309 1995 23 Nil 2585 11 2595 25 141 133 30 400 27 16 1703 12 2304 28 Nil 1288 5 2283 29 Nil Nil Nil Nil 30 4 1568 4 1982 31 Nil Nil Nil Nil 37 83 238 62 415 48 16 Nil 1 179 49 244 1907 2180 2180
' He has given the details of votes cast in favour of petitioner and respondent No,1 in the aforementioned 23 Polling Stations very minutely. ' In cross-examination he stated that the report pertaining to 23 Polling Stations was transmitted to Registrar Election Tribunal by the Presiding Officer. He has not gone through the contents of the report submitted along with bag/materials sent to Registrar Election Tribunal. However, he has given the exact position of the Election bags in his report and the same is comprehensive and detailed in nature. According to his report emerging at page No,2, the polling bags were de-sealed in presence of the parties meaning thereby the polling bags were already sealed and the certificate to this effect is also available in his report. Polling bag pertaining to Polling Station No,13 was sealed, which was de-sealed. He denied that the bag was torn and his report is incorrect. He has mentioned in his report that Polling bags pertaining to Polling Stations Nos.15, 20, 31, 49 and 54 were not sealed. Polling bags pertaining to Polling Stations Nos.16, 17, 18, 19, 22, 25, 25,(sic) 28 and 59 were sealed. He denied that bag pertaining to Polling Station No,25 was not sealed and the same contains two portions. The Election bag pertaining to Polling Station No,29 was torn from one side, which was shown to the parties present there. He denied that except the Polling Stations Nos.21, 23 and 48, rest of the Election bags were not sealed as seals thereof were broken. 'Voluntarily stated that he has annexed the detailed report in this respect with his report, however, he did not intimate this fact to the Tribunal that due to non-sealing of certain bags what he should do. Voluntarily, stated that he was ordered to recount, so he did. He admitted that prior to undertaking the exercise of recounting, he received a written application from the representative of Israr Tareen that the bags in question are not sealed and as such the recounting would not be transparent. Voluntarily stated that he has received the application, which is part of his report. He was not competent to
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