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Petitioner: Haji ATTAULLAH BALOCH VS Respondent: ASADULLAH BALOCH
Court Name: Election Tribunal Judge(s): Syeda Tahira Safdar Title: Haji ATTAULLAH BALOCH vs ASADULLAH BALOCH Case No.: Election Petition No,2 of 2008 Date of Judgment:2012-01-14 Reported As: 2012 CLC 469 Result: Petition dismissed
JUDGMENT
JUDGMENT ' MRS. SYEDA TAHIRA. SAFDAR, J.--- This Election Petition has been filed by the petitioner Haji Attaullah Baloch, whereby the election of PB-43 Panjgoor-II was questioned with the prayer that the election at the Polling Station No,25 PB-43 Panjgoor-II be declared as void, and re-poll at the Polling Station be made, or the election as a whole may be declared as void. It is the case of the petitioner that both the petitioner, and respondent No,1 contested the election for Provincial Assembly from the Constituency PB-43 Panjgoor-II held on 18th February, 2008, whereby the respondent Asadullah Baloch was declared as Returned Candidate through Gazette Notification dated 1st March, 2008. Further, according to the Statement of Consolidation of Count (Form-XVI) issued by the Returning Officer under section 39 of the Representation of the People Act, 1976 (hereinafter referred as the Act 1976), the Returned Candidate secured 6335 votes, while the petitioner secured 6131 votes. The petitioner challenged the result of the Polling Station No,25 Boys Middle School, Gar on grounds that the 'respondent being, an influential person, as prior to the election hold the office of the District Nazim Panjgoor, thereby, using his influence violated the Rules and Regulation, and cleverly changed the result in his own favour. Further, as per requirement of law the Returning Officer appointed one Hassan Jan ADLO Live Stock Department, Panjgoor as Presiding Officer of the questioned Polling Station, but at the instance of the respondent, the Presiding Officer of the questioned Polling Station was changed, and substituted a day before the polling day i,e, 18th February, 2008. The act was done without any lawful basis, legal justification, and also without approval of the Commission. While the real uncle of the respondent namely Dr. Hussain Ahmed, an employee of Live Stock Department, was appointed as Presiding Officer of the Polling Station with intention to get undue favour for the respondent. It was contention of the petitioner that this act of
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substitution was objected by him (petitioner) immediately, thereby raising serious allegations against appointment of Dr. Hussain Ahmed on grounds of being prejudicial, biased, partial, and had pre-determined mind, and appointment had been made just to damage, harm, and hurt the petitioner, and his voters. Furthermore, during the polling process due to this act of substitution 353 votes were cast in favour of the Returned Candidate, without using any of National Identity Cards. Further, the petitioner was shown to have secured 78 votes, with .a difference of 275 votes, which caused serious prejudice to him, and resulted in grave miscarriage of justice. The petitioner further contended that the Presiding Officer namely Dr. Hussain Ahmed by doing illegal practice, facilitated the Returned Candidate. 2. The instances of illegal practices as described in the petition are that the Polling Agent of the petitioner namely Naseer Ahmed was brutally beaten, and was turned out of the Polling Station at 12-00 noon, and thereafter, he was not allowed to re-enter the Polling Station. While taking advantage of his absence, unidentified persons were allowed to vote, without having any National Identity Cards in their names. Further, fraudulent persons were allowed to cast votes just to make way for the respondent to win the seat at any cost. Furthermore, 30-votes of the Provincial Assembly were found excessive from the number of votes casted for the National Assembly. On basis of these facts it was contended that this corrupt practice clearly speaks out manoeuvring, and illegalities on the part of the Returned Candidate with the connivance of the Election Staff. It was also alleged that in absence of the Polling Agent of the petitioner, the Presiding Officer himself put stamps on the ballot papers, and cast votes in favour of the respondent. In addition pre-poll rigging was made in the Polling Station, and the respondent in collusion with the officials, deputed at the Polling Station, used all illegal means to get himself successful. Further, on completion of the polling process even no Form-XVI was issued from the questioned polling station. Furthermore, after counting of the votes from the polling stations, the petitioner was declared successful, but thereafter, on move of the respondent the result of the constituency was withheld till 6-00 a.m. By the Presiding Officer Dr. Hussain Ahmed, and during this span of time the result was changed. Further, feeling aggrieved he approached the concerned Authorities including the Election Commissioner of Balochistan, but his grievance was not redressed. 3. It was further contention of the petitioner that the fraudulent acts were taken to replace the appointed Preiding Officer, and this fact was very much apparent from letter dated 12th December, 2007. According to this letter the Presiding Officer of the Polling Station No,25 was shown to have been changed, whereas inability of the Department to make available Hassan Jan was forwarded on 13th February, 2008, and was received by the Returning Officer on 15th February, 2008, and through same letter the Live Stock Department made nomination of Dr. Hussain Ahmed as such, whose name did not exist in the list of the staff initially prepared by the Returning Officer. It was further contended that the name of the uncle of the respondent No,1 was proposed, in presence of other senior officers, and this fact shows mala fide on the part of the Department. Furthermore, large numbers of Presiding Officers were changed in the last moment, which seriously prejudice the process of election. Furthermore, the Returning Officer failed to adopt the procedure, and to do the act as required to be done under section 7 of the Act 1976. Therefore, in view of the facts all the process looses its legal sanctity. 4. The respondent in his written statement strongly contested the plea taken, and the allegations made in the petition. He further raised several legal objections on maintainability of the petition. It was objected that the petition is filed beyond the scope of section 52 of the Act, 1976. Further, the allegations made in the petition does- not constitute an election dispute. The maintainability of the petition was further objected on the grounds that the petition is bad for non-joinder of necessary parties, and filed without any cause of action, therefore, not maintainable. On merits the respondent denied having any relation with Dr. Hussain Ahmed, being his real uncle. It was his
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contention that he had no concern with the appointment of Presiding Officer, nor the appointment was made on his request or on his interference. It was his contention that the petitioner did not raise any objection regarding the appointment of the polling staff at the relevant time, rather this objection was only raised when he (petitioner) loses the election. He further denied event of beating of the Polling Agent of the petitioner, or turning him out from the polling station. It was his contention that if any untoward incident would have been taken place, the matter should have been reported to the concerned police, or law enforcing agencies, which was not done. According to him the election process in the constituency was completed in fair and transparent manner, while the votes were polled smoothly. As far as assertion about difference of (30) thirty votes is concerned, it was his contention that the petitioner cannot take advantage of the fact, because it depends upon the voters to properly cast their votes. Furthermore, the polling process was carried out in presence of the Polling Agents of the contesting candidates. While unofficial count was also made in presence of the Polling Agents, and Form-XVI was issued by the Presiding Officer. He prayed for dismissal of the petition. 5. Following issues were framed on 24th July, 2008:- (1) Whether the petition is not maintainable in view of preliminary legal objections 'A' to 'H' raised in rejoinder/ written statement? (2) Whether Dr. Hussain Ahmed, Presiding Officer was uncle of the returned candidate (respondent No, 1), if so, whether he was appointed with the approval of the Election Commission as Presiding Officer. Of Polling Station No,25, if so, whether he assisted the returned candidate (respondent No,1) illegally and through corrupt practice in becoming the successful candidate? (3) Whether bogus votes were cast in favour of returned candidate thy the said Presiding Officer, if so, whether 30 votes were found excessive from the number of ballot paper book for the candidate of National Assembly (NA-271), if so, to what effect? (4) Whether the election has been procured through corrupt and illegal practice by the returned candidate, as alleged in the petition, and whether the result was withheld with mala fides, if so, to what effect? (5) Whether in the initial result, the petitioner was found successful and later on respoiident No,1 was declared as successful candidate with mala fides? (6) What should be the relief? 6. Before going into merits of the case, and recording findings on the issues it deemed appropriate to decide an objection raised by the counsel for the respondent about eligibility of the petitioner for contesting the election. During course of cross-examination while replying to a question the petitioner stated that he done his Bachelor from University of Balochistan, while obtained degree of Masters from Madina University Saudi Arabia. He further admitted it to be correct that he had done his Bachelor after election of 18th February, 2008. At the relevant time, and during the course of final arguments the learned counsel for the respondent raised contention that at the time of holding of the election section 99(cc) of the Act, 1976 was in field, therefore, the petitioner was not having the required educational qualification, therefore, he was not qualified to contest the election. It was his contention that in view of the fact, and the admission made by the petitioner, the relief claimed by him through instant petition cannot be granted in his favour. The learned counsel stressed that in view of the fact the present petition is not maintainable, and without going into merits of the case the petition is liable to be rejected. The learned counsel for the petitioner though admitted that clause (cc) of Section 99 of the Act 1976 was in field at relevant time, but he further referred to section 12(2) (a) of the Act 1976, and also to subsections (6) and (7) of the section. It was his argument that the respondent was required to raise objection to the effect at the time of filing of the nomination papers, or even at the time of scrutiny of the same, as required by section 14 of the Act, 1976. But, at the relevant time no such objection was raised, and process had already been
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completed, therefore, at this stage this objection cannot be raised, nor entertainable. He further emphasized that no such objection was taken in the written statement. The learned counsel further argued that on same point an election complaint was filed before District and Sessions Judge, Quetta in year 2010, which was disposed of through order dated 21st February, 2011, but this order was never challenged by the respondent. Further, the same ground was taken in the Constitutional Petition No,457 of 2010 which is still pending before the High Court, therefore, as the matter is sub judice, this objection cannot be taken in the instant petition. The learned counsel also produced the compliant made before the District and Sessions Judge, Quetta, and its decision, and constitutional petition, which are placed on record. Copies of Secondary School Certificates pertaining to Matriculation, and Intermediate level in the name of Attaullah, the petitioner, were also produced. While copy of the certificate of Islamic University of Al-Madina-ul-Munawara confirming Bachelor degree in favour of Attaullah bearing dated 13th June, 2001, along with an equivalence certificate issued by the Higher Education Commission of Pakistan, were also produced, and retained on record. 7. ' Articles 62 and 63 of the Constitution of Islamic Republic Pakistan 1973 describe qualification, and disqualification for the Membership of Majlis-e-Shoora (Parliament). While section 99(1) of the Act, 1976 also describes the qualifications required for a person, who intends to be elected or chosen as member of any Assembly of the country. While subsection (1A) of the Section enumerate the grounds on which a person shall be disqualified from being elected as, and from being a member of an Assembly. But, subsection (1) clause (cc) of section 99 of the Act will be relevant in determination of the issue in hand. Because at the time of holding of the election in 2008, this clause was in field, which was thereafter, omitted through Act-III of 2009. Before omission this clause reads as under:--- "Section 99 (1) (cc). He is at least a graduate, possess a bachelor's degree in any discipline or any degree recognized as equivalent thereto by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974); or any other law for the time being in force; " ' In reply to the objection the petitioner has produced equivalence certificate being covered by the quoted clause, coupled with the fact that no objection was raised on genuineness of these certificates. Therefore, in the circumstances, the petitioner was in possession of required qualification at the time, and unless established otherwise he cannot be deprived of his right. If it was so the respondent was required to adopt the procedure provided in the Act, 1976 for challenging the nomination of any of the contesting candidate at relevant time. Further, the nomination papers submitted under section 12 of the Act, 1976, are made public by the Returning Officer as per requirement of subsections (6) and (7) of the section. While the procedure of scrutiny of the papers is specifically provided in section 14 of the Act, 1976. Further, all such objections can be made, and be disposed of by a Tribunal constituted under subsections (5) and (5a) of the section. But, admittedly the respondent did not raise any objection to the effect at relevant time, nor the matter was referred to the Tribunal constituted for the constituency. Therefore, at this stage this objection; in view of above discussion, is not entertainable, therefore, rejected. 7. ISSUE NO.1. ' This issue pertains to the legal objections A to H taken in the written statement filed by respondent No,1. ' Legal objection "A" is to the effect that the petition is beyond the scope of section 52 of the Act, 1976, therefore, liable to be dismissed. The learned counsel for the petitioner while arguing the matter urged that the legal objections are without force, as the requirement of the section were fulfilled, therefore, this objection was removed. The learned counsel for the respondent did not argue this objection. It is to be noted that my learned Predecessor in office dispose of the petition through order dated 26th May, 2010 on same ground, but the honourable Supreme Court through
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order dated 26th April, 2011 set aside the order, and remanded the case to proceed with the matter. Therefore, this objection has already been decided, and no further findings are required in same respect. ' As far as objection "B" is concerned, it is to the effect that the petition does not constitute an election dispute, therefore, not maintainable. But the learned counsel for the respondent advanced no arguments, nor made it clear that why the allegations taken in the petition failed to constitute an election dispute. Rather in the instant petition the petitioner challenged the result on the allegations of committing illegal practice, corrupt practice and using of undue influence by the Returned Candidate for procuring of favourable result. The matter in hand is covered by election dispute, and the petitioner has approached the proper forum for redressal of his grievance. The objection being baseless therefore, rejected. ' As far as remaining objections "C", "D", "E", "F" and "H" are concerned, all of them pertain to the factual aspects of the case, and not based on any provision of law, therefore, do not constitute a legal objection. Therefore, no findings are required to be made on these objections; rather findings on facts will be recorded while discussing the issues framed on factual aspect of the case. ' As far as objection "G" is concerned, it is to the effect that the petition suffers from non-joinder of necessary parties. This objection though had been taken, but without clarification that who being necessary party, had not been joined, and in whose absence no effective order can be made. No arguments were advanced on this objection too, which is hereby overruled. 8. ISSUE NO.2. This issue pertains to appointment, and acts committed by the Presiding Officer namely Dr. Hussain Ahmed, but it is to be noted that issue No,3 also related with this issue, as it also. Pertains to the act allegedly committed by the Presiding Officer Dr. Hussain Ahmed during the course, therefore, it deemed proper to decide these both issues together. 9. This issue consists of three parts. On first instance it is to be established that Dr. Hussain Ahmed, the questioned Presiding Officer, was uncle of the respondent No, 1 . Secondly he was appointed in violation of relevant provisions, without approval of the Election Commission. And lastly he assisted the Returned Candidate through illegal, and corrupt practice to become the successful candidate. While Issue No,3 elaborate the further acts of the Presiding Officer that he cast bogus votes in favour of Returned Candidate, and while doing so 30 votes were found excessive from the ballots of National Assembly. In the petition it was plea of the petitioner that the respondent by using his influence got appointed Dr. Hussain Ahmed, being his real uncle, as Presiding Officer of the Polling Station No,25 Gar in place of Dr. Hassan Jan through the Returning Officer. Further, this act was done in order to get favourable result. It was further his case that as per relevant law the appointment of the Presiding Officer is to be made 15 days prior to the polling day, and no change can be made except with the approval of the Election Commission. But there was complete violation of this provision. It was further his plea that this Presiding Officer not only committed illegal practice, but by doing so facilitated the Returned Candidate to become successful. 10. In view of the pleadings the acts for which this Presiding Officer was accounted for were that the Polling Agent of the petitioner namely Naseer Ahmed was brutally beaten, and turned out from the polling station at about 12-00 noon, and thereafter, he was not allowed to enter the polling station. Further, by taking advantage of the absence of the Polling Agent of the petitioner, the Presiding Officer allowed casting of votes by unidentified and fraudulent persons without provision of CNIC. Further, due to the fact 30 votes were found in excess from the votes cast for National Assembly. Secondly, the Presiding Officer himself stamped the ballot papers, and cast votes in favour of the respondent. The onus to establish the same was on the petitioner. Therefore, to substantiate the same the learned counsel for the petitioner while arguing the matter contended that the existence of relationship between the respondent, and Dr. Hussain Ahmed are established as specific
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evidence had been produced. The learned counsel referred to the statements of the petitioner's witness No,1 (P.W.1) Muhammad Sadiq, who deposed about the fact, and also produced the pedigree-table, which shows existence of relationship between them. P.W.4 Ghulam Rasool and P.W.5 Haji Jameel also affirms the same. P.W.12 Kafayatullah was also referred in same context. While in reply there was simple denial of the fact. 11. The onus was on the petitioner to establish that there exists some relationship between the respondent, and Dr. Hussain Ahmed, the Presiding Officer; which is the basis of the election dispute. P.W.1 Muhammad Sadiq, P.W.4 Ghulam Rasool, and P.W.5 Haji Jameel all of them described the pedigree-table (URDU TEXT) of the respondent, and Dr. Hussain Ahmed, which shows that Dr. Hussain Ahmed is son of Moulvi Ubaidullah son of Khuda-e-Dad, while the respondent Mir Asadullah is son of Asma Malik, who was also daughter of Moulvi Ubaidullah, therefore, sister of Dr. Hussain Ahmed. Though during course of cross-examination it was denied, but to rebut this contention no specific evidence was produced by the respondent. From the evidence on record and in absence of any evidence in rebuttal, it is established that blood Telationship exists between the respondent and the Presiding Officer Dr. Hussain Ahmed. 12. But the fact of existence of relationship between the respondent, and the appointed Presiding Officer namely Dr. Hussain Ahmed, become crucial if the remaining portions of the issues are established by the petitioner to constitute an offence of illegal and corrupt practices. Mere existence of relationship does not by itself invalidate the election process and the result thereof. Therefore, something more is required. It is to be established that the Presiding Officer Dr. Hussain Ahmed was appointed without approval of the Election Commission by using undue influence, with intention to obtain favourable result, that too, by the respondent. The learned counsel for the petitioner while arguing the matter referred to section 9 of the Act, 1976, with contention that the Presiding Officer is to be appointed according to the procedure provided in it, but it was not observed. His further argument was that if there is any change it is to be made according to the procedure as provided in subsection (4) of section 9 of the Act 1976. The learned counsel further referred to Exh.P/16, where name of the Presiding Officer is mentioned as Hassan Jan, which has been overwritten by hand as Dr. Hussain Ahmed.' He further referred to Exh.P/17 a letter dated 13th February, 2008. ' According to the learned counsel the name of Hassan Jan was substituted on the basis of this letter. It was his contention that the contents of the letter are contrary to the contents of Exh.P/16. It was also his argument that if there was some disability, whereby the nominated Presiding officer was unable to perform his duty, only Assistant Presiding Officer can act as Presiding Officer under the relevant provisions, but this was not done. Rather, letter dated 12th February, 2008 was manipulated, and the name of Dr. Hussain Ahmed was' incorporated in the list. Furthermore, provided 15 days time for making any change in the staff was also not complied with, therefore, the appointment of Dr. Hussain Ahmed as Presiding Officer was made in complete violation of section 9(4) of the Act, 1976. Therefore, it was his argument that from this sudden change of the Presiding Officer mala fide on the part of the respondent can easily be presumed. Therefore, in presence of the fact the remaining proceedings are without authority, thus of no legal effect, and liable to be set aside. 13. While replying to this argument the learned counsel for the respondent only raised contention that this change was not challenged at the relevant time. Further, letter of approval of change of the Presiding Officer is not called into question; therefore, it shall be presumed that the petitioner had accepted the change; therefore, he cannot raise this ground in the petition. It was further his argument that the provisions of section 9 of the Act, 1976 are to be read with section 68(2) (2) of the Act, 1976. It was further his argument that non-compliance of subsection (2) of section 9 of the Act, 1976 is not fatal, as this provision is not mandatory, as no consequence is attached with the
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provision. Furthermore, subsection (4) is misinterpreted by the counsel for the petitioner. He placed reliance on:-- ' Mian Shah Jehan v. Haji Lal Karim 1993 CLC 929, Rehmatullah Khan v. Dilawar Khan 1987 MLD 1395, Dr. Haji Misal Khan v. Maulana Gohar Rehman 1987 M LD 1321. ' He also referred to Article 129(e) of Qanun-e-Shahadat Order, 1984, and urged that a presumption of correctness is attached with the official documents, and if a change contained in official record is not rebutted the presumption of correctness attached to it will prevail. He relied on:-- Riaz Ameer…
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