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Petitioner: EHSANULLAH REKI VS Respondent: Lt. General (R) ABDUL QADIR BALOCH and others
Court Name: Supreme Court of Pakistan Judge(s): Asif Saeed Khan Khosa, Tasaddaq Hussain Jillani Title: EHSANULLAH REKI vs Lt. General (R) ABDUL QADIR BALOCH and others Case No.: Civil Appeal No,26 of 2010 Date of Judgment:2010-04-22 Reported As: 2010 SCMR 1271 Result: appeal partly allowed
JUDGMENT
JUDGMENT TASSADUQ HUSSAIN JILLANI, J.---Ehsanullah Reki appellant and respondents Nos.1 to 8 contested elections for the National Assembly Constituency 271 comprising of 220 polling stations of the following three Districts: (i) Kharan (ii) Panjgoor (iii) Washuk 2. In terms of notification dated 1-3-2008, appellant was declared the returned candidate. This election was challenged by respondent No.1, initially by filing an application under section 103-AA of the Representation of the People Act, 1976 [hereinafter referred to as `the Act] before the Chief Election Commissioner of Pakistan immediately after polling i.e. on 21-2-2008 (elections were held on 18-2-2008) in which he alleged malpractices and rigging at the following polling stations: -- (i)Polling Station No. 86 (ii)Polling Station No. 87 (iii)Polling Station No. 89 (iv)Polling Station No. 90 3. The afore-referred petition was disposed of by the Election Commission of Pakistan on 4-3-2008 with the observation that since election result had been notified an election petition before the Election Tribunal was proper remedy. Respondent No.1 filed election petition before the Election Tribunal on 9-4-2008 and according to him having come to know of malpractices at other places, he added seven more polling stations which are as under: (i)Polling Station No. 83
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(ii)Polling Station No. 116 (iii)Polling Station No. 137 (iv)Polling Station No. 138 (v)Polling Station No. 139 (vi)Polling Station No. 140 (vii)Polling Station No. 150 4. On receipt of the written statement from the appellant/defendant, following issues were framed by the Tribunal: (i)Whether the petitioner has availed remedy before Federal High Court, Islamabad, as well as, before Election Commission of Pakistan, if so, to what effect? (ii)Whether the petitioner has failed to file the list of official witnesses, if so, to what effect? (iii)Whether the District and Sessions Judge Nushki in his report had exceeded in its jurisdiction in offering the explanation with regard to the merits of the case? (iv)Whether the petitioner has not raised any objection during the polling period, counting and consolidation of result, if so, to what effect? (v)Whether the petitioner has not filed affidavit, if so, to what effect? (vi)Whether the District and Sessions Judge Nushki had spoiled and changed the votes in league of petitioner, as alleged in para No. `F' of the reply? (vii)Whether the District and Sessions Judge Nushki was allowed to only unseal the ballot boxes and produce the same before the Election Commission of Pakistan, if so, to what effect? (viii)Whether the annexures having not attested by the competent authority, if so, to what effect? (ix)Whether the petition has not been verified as required by law, if so, to what effect? (x)Whether the petitioner and respondent No.1 were candidates in the election of National Assembly's constituency NA-271, comprising of three Districts i.e. Kharan, Panjgoor and Washuk? (xi)Whether the petitioner and returned candidate (respondent No.1) have obtained 22175 votes and 22856 votes (difference of 681 votes)? (xii)Whether the petitioner had made a complaint that the result of Polling Stations Nos. 86, 87, 89 and 90 of the constituency has been rigged by illegal practice, bogus voting and tampering of record? (xiii)Whether one Mir Mujeeb-ur-Rahman Muhammad Hassani (District Nazim of Washuk) and Mir Habib-ur-Rehman Muhammad Hassani candidate of PB-47 having in connivance with returned candidate in procuring the said result? (xiv)Whether the District Returning Officer Nushki was authorized to de-seal the polling bags in the presence of Returning Officer and taking out of the requisite record, re-seal the same and in this behalf the report was submitted on 28th February, 2008 and the Election Commission has directed for approaching the Tribunal for trial? (xv)Whether the respondent No.1 in connivance of Polling staff have rigged the election polls and the result thereof as alleged in para number 7 of the petition, if so, to what effect? 5. Respondent produced following set of evidence: (i)Respondent Lt. General (Retd.) Abdul Qadir Baloch, himself. (ii)Syed Anwar Aftab (P.W.1) [District Returning Officer]. (iii)Muhammad Afzal (P.W.2) [Returning Officer NA-271]. (iv)Haji Muhammad Afzal (P.W.3) [Assistant Returning Officer, Washuk Tehsil]. (v)Khurshid Ahmed (P.W.4) [Presiding Officer Jangian (female) Polling Station No. 87]. (vi)Mukhtiar Ahmed (P.W.5) [Assistant Presiding Officer, Killi Khan Muhammad (Jangian Male and Female) (Polling Stations Nos. 86 and 87)]. (vii)Moulvi Abdul Ahad [Polling Agent of Abdul Aziz Baloch candidate of NA-271]. 6. The appellant produced following set of evidence to rebut the evidence led by the respondent:
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(i)Appellant Ehsanullah Reki, himself. (ii)Kulian Khan (R.W.1) [Candidate NA 271] (iii)Muhammad Ashraf (R.W.2) [Polling Agent of appellant in Polling Station Shahugari (No. 89)] (iv)Hafiz Abdullah (R.W.3). (v)Noor Ahmed Pirkani (R.W.4) (vi)Dr. Abdul Samad (R. W. 5) [Presiding Officer Polling Station Shahugari (No.89)] (vii)Syed Abdullah Shah (R. W.6) (viii)Abdul Aziz (RW7) [Candidate NA 271] (ix)Waseem Ahmed, R. W.8 (x)Waseem Ahmed again appeared as R.W.9. 7. The learned Election Tribunal in terms of its judgment dated 16-7-2009 allowed the election petition and held that it stood proved that the election of the appellant was procured by corrupt and illegal practices and declared the elections of the constituency i.e. N.A. 271 as a whole void with a direction to the Chief Election Commissioner of Pakistan to hold fresh elections. This judgment was challenged both by the appellant (in Civil Appeal No. 945 of 2009) and by the respondent (in Civil Appeal No. 953 of 2009). These appeals were allowed with the consent of the parties and the matter was remanded to the Election Tribunal for decision afresh in terms of judgment dated 15- 10-2009. In accord with the remand order, Mr. Mahboob Anwar, Provincial Election Commissioner, Balolchistan was examined as C.W. 1 and both the parties were allowed to cross examine him. In terms of its findings primarily on Issues Nos. 11, 13 and 15, the learned Election Tribunal allowed the petition, held the election of the appellant as void and declared the respondent to be the returned candidate vide the impugned judgment dated 25-1-2010. 8. In support of this appeal, learned counsel for the appellant submitted as under: (i)that the learned Election Tribunal has not decided the case in terns of the consensual remand order passed by this Court inasmuch as in the said order it was specifically directed to allow the Provincial Election Commissioner to appear and tender a report prepared by him with opportunity to both the sides to cross examine him with the rider to decide the issues raised without being influenced in any manner by the earlier decision of the Tribunal. The appellant raised a specific objection to the afore-referred report with reference to section 46(2) of the Act but the said objection has not been decided as mandated in law. Relying on a judgment of this Court in Mian Ejaz Shafi v. Syed Ali Ashraf Shah PLD 1995 SC 43, learned counsel contended that the report submitted by the said Election Commissioner who appeared as C.W. 1 could not be taken into consideration as it was clearly violative of proviso to subsection (2) of section 46 of the Act. That being so he added that finding of Election Tribunal based exclusively on the said report of C.W. 1 cannot stand the test of legal scrutiny; (ii)that the findings of the learned Tribunal with regard to issues Nos. 13 and 15 are not based in evidence tenable in law; (iii)that the evidence led is not credible as it is inconsistent and is not corroborated by any independent evidence; (iv)that finding of the learned Tribunal on Issue No. 15 is based on the testimony of P.W.2 Muhammad Afzal, P.W.4 Khurshid Ahmed, P.W.5 Mukhtiar Ahmed and P.W.6 Maulvi Abdul Ahad. A bare reading of their statements would indicate that they did not prove the allegations of rigging or malpractices; (v)that proceedings in an election petition are quasi criminal proceedings and the evidence led by the respondent did not cross the threshold of proof sufficient to invalidate the elections; (vi)that P.W.6 Moulvi Abdul Ahad is a polling agent of a candidate (Abdul Aziz Baloch) at Polling Station No. 90, Talonk and he made allegations of rigging and malpractices at the said polling station where he was present, but this witness is not worthy of credit for two reasons: first he admits
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that he did not inform the candidate of which he was the agent and second his testimony was not corroborated by producing the candidate himself and no reason was given for the said omission whatsoever; and (vii)that the respondent failed to prove any rigging during the elections or any malpractice and no evidence was led to connect the appellant with the alleged illegal practices or rigging to warrant a finding that the appellant in any manner connived or indulged in the alleged rigging. The findings recorded with regard to the appellant in this regard are therefore not sustainable. 9. Learned counsel for the appellant did make his submissions with regard to non-verification of petition and the annexures attached with it to bring home the point that verification being a mandatory provision in terms of section 55(3) of the Act, the petition merited dismissal. However, on a court query as to whether he would seriously press this point because in that event, in view of the divergent judgments of this Court, the issue may have to be referred to a larger Bench, learned counsel sought instructions from the appellant (present in Court) and opted not to press this point. 10. Learned counsel for the respondent Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court defended the impugned judgment and contended as follows: (i) that an election can be called in question under the mandate of Article 225 of the Constitution in accordance with the law. The law can regulate the remedy but it cannot take away the right to contest and to question the elections held; (ii) that all annexures were duly attested by the respondent-petitioner and non-suiting the respondent-petitioner on this ground would be violative not only of the afore-referred constitutional provision but also Articles 17 and 187 of the' Constitution of Pakistan; (iii) that the Provincial Election Commissioner in carrying out the exercise of de-sealing the bags and recounting the votes was acting as a Commission (appointed by the Election Tribunal seized of respondent's election petition) in terms of section 46(2) of the Act read with Order XXVI, Rules 1 and 2 of the C.P.C. The report submitted by him pursuant thereto could not be taken exception to; (iv) that issues Nos. 11 and 13 were decided in favour of respondent-petitioner not merely on the statement of the Provincial Election Commissioner who appeared as C.W.1 but there was overwhelming evidence to the effect that the elections were rigged at various polling stations. The respondent's election was stolen and his lead was converted into defeat; (v) that the state of affairs prevalent on the polling day is evident from the letter dated 21-2-2008 (Ex.P./2A-IV) from the Returning Officer of the said Constituency (NA-271) wherein he narrated as under:-- That about 5 A.M. undersigned has received results of all polling stations of District Kharan, District Washuk along with results of almost 17 polling stations of District Washuk. Undersigned phoned several times to R.O. P.B-46 Washuk for dispatching the results of remaining polling stations to undersigned but it was brought into undersigned's knowledge that he had not received the results of these polling stations. Further that he was trying to have access with concerned A.R.Os. but till that time whereabout of these A.R.Os. was mysteriously unknown." (vi) that in the application filed by the respondent- petitioner the very next day of polls i.e. on 19-2- 2008 to the Chief Election Commissioner, he had levelled serious allegation of malpractices at four polling stations and subsequently when respondent found rigging at other polling stations after 19- 2-2008, he added seven more polling stations in the election petition filed before the Tribunal on 9- 4-2008. However, the allegation regarding the consolidated result of Polling Station 86 (Jangian- Male) to the effect that the votes polled in favour of appellant i.e. 46 were converted into 646 by adding digit (6) is borne out first from the reply of the appellant to respondent- petitioner's application before the Election Commissioner wherein he admitted that the afore-referred "addition" was "simply a clerical mistake and does not create any penal consequence";
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(vii) that there was no dispute in any of the polling stations of District Kharan or Panjgoor and the issues of rigging are relatable to the polling stations of District Washuk of which the appellant is a resident. He alleged that there is evidence/material to suggest that District Nazim of Washuk who is appellant's brother-in- law was trying to influence the process of polls through rigging and malpractices; (viii) that the report dated 21-2-2008 (Ex.P/2A-IV) of Muhammad Afzal, Returning Officer who appeared as P.W.2 corroborates the allegations of rigging at that polling station; (ix) that the Assistant Returning Officer Mukhtiar Ahmad (Polling Station 83, Killi Khan Mohammad) P.W.5 also corroborated the statement of P.W.2. Polling Station No. 86 (Jangian Male). (i) The result count given to the polling agents is without the signatures of the Presiding Officer. (ii) The Presiding Officer at that polling station specifically accused the District Nazim Washuk a close relation of the appellant of massive rigging. (iii) As per Ex. PW f /A2 the appellant got 566 votes whereas the total valid ballot papers issued for the said polling station were 67. This is evident from the statement of P.W. as well. (x) that the recount at the Polling Station 86 was without lawful authority. The recount under section 39(6) of the Act can be carried out only on the direction of the Election Commission of Pakistan or at the asking of the contesting candidates. In the instant case, he contended, there is nothing on record to indicate that the Election Commission had directed recount, the Presiding Officer while appearing as P.W.2 tried to shield himself and justify the act of recount by deposing that he did it on the direction of the Election Commission of Pakistan but there is nothing on record to that effect (at this stage the Court asked Mr. Abdul Hafeez Pirzada, learned counsel for the appellant about the afore-referred issue and in all fairness he admitted that there was no direction of the Election Commission for recount). On the question of recount, under the afore-referred provision, learned counsel relied on the following judgments of this Court: Ch. Muhammad Abdullah v. Ch. Abdul Wakil PLD 1986 SC 487 and Munshi Muhammad v. Election Commission of Pakistan 1991 SCMR 2033. (xi) that the dubious conduct of Returning Officer who carried out the recount without being any order of the competent authority to that effect (who remained as P.W..2) is also evident from the letter of the Election Commission of Pakistan to the Provincial Election Commissioner dated 28-2- 2008 (Ex. R1) wherein this aspect was duly taken note of in terms as follows:-- "In view of the apprehension that the Returning Officer for NA-271 Kharan-cum-Washuk-cum- Panjgur, who has been directed to place relevant record of the Constituency before this Commission on the 1st March, 2008 vide Order, dated 23-2-2008 may tamper with the requisite record while de-sealing the polling bags, the District and Sessions Judge, Noshki is authorized to de-seal the relevant bags in presence of the Returning Officer concerned and after 'taking out the requisite record from those bags re-seal them and thereafter, shall personally produce the same before the Election Commission on the 1st March, 2008." (xii) Making his submissions with regard to the conduct of polls at Polling Station 87 (Government Basic Health Unit Jangian, female), the learned counsel raised following points: (a) that the result count as reflected in Form XIV a copy of which is given to all the candidates or their agents after the count, is different from the consolidated report. In terms of the former count, the respective votes of the parties were as follows: Appellant532 Respondent03 In the consolidated result of the constituency, the votes cast were as follows: Appellant550 Respondent04
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The afore-referred divergence in the count is reflective of irregularities committed in the poll process; (b) that Form XV indicating the total votes cast valid and invalid was never submitted which is a requirement of law. This is evident from the statement of P.W.4 and the report submitted by CWI; (c) that P.W.4 (Khurshid Ahmed) did prove P/4B which was Form XIV but he clearly stated that he did not scribe it. This witness made shocking disclosures about the role of Mr. Mujeeb-ur-Rehman, the then District Nazim Washuk who was closely related to the appellant. (xiii) With regard to Polling Station 89 (Government Primary School Shahogari, combined), learned counsel made following submissions: (a) A prima facie examination of Ex.R/ 5B shows that this document was tampered with; (b) the result count issued in terms of Form XIV to the respondent-petitioner and the one officially issued show divergence of result:-- Issued to the AppellantIssued to the Respondent Appellant secured 627Respondent secured 51 Appellant secured 327Respondent secured 51 (c) that on respondent's application under section 103-A of the Act, the Chief Election Commissioner directed the Returning Officer on 23-3-2008 to carry out inspection and submit a detailed report. The said report which was placed on record as Ex.P.W.1, A submitted by the District Returning Officer who was a District and Sessions Judge, glaring malpractices came to light which indicated that there was massive rigging at the polling stations subject matter of this appeal. The Returning Officer appearing as P.W. (Anwar Aftab) proved the report. The report was further corroborated by the report of Provincial Election Commissioner (Ex.C.W.1/A) who carried out the result count as a Commission appointed by the Tribunal; (d) that the report of the Provincial Election Commissioner can broadly be divided into two parts i.e. one relating to the circumstances and evidence indicating commission of malpractices and second the recount carried out by him. Learned counsel contended that so far as the first part is concerned, the same is unexceptionable, was within the mandate of his lawful authority and the law declared and no exception can be taken to it. However, the second part whereby the Provincial Election Commission after recounting the votes declared certain votes to be invalid may seem to be hit by proviso 1 to section 46 (2) of the Act and this Court may not take that into consideration because no prejudice had been caused to the appellant and the judgment of the Tribunal is sustainable on other grounds as well; (e) that the Presiding Officer at this polling station was Dr. Abdus Samad. He was working as EDO (Health) under the same District Nazim who is closely related to the appellant. (xiv) that the result count of Polling Station 90, (Government Primary School Talonk, combined) lost its credibility because of the following: (a) Mr. Anwar Aftab P.W. 1, District Returning Officer in his detailed report reported that the result count was missing when he opened the record. This report is corroborated by Ex.C.W.1/A (report submitted by Provincial Election Commissioner); (b) P.W. 1 also found that the report in terms of Forms XIV and XV was missing; (c) that Moulvi Abdul Ahad, a polling agent of a rival candidate while appearing as P.W.6 gave an affidavit Ex.6/A levelled serious allegations against the District Nazim Washuk; (d) that the Presiding Officer of the said polling station Syed Abdullah Shah was a Superintendent Agriculture under District Nazim and there is finding of fact against him qua his role in rigging the poll at the said polling station. (xv) On Polling Station 83 i.e. improvised Hut Killi Muhammad Khan (combined), the Presiding Officer and the Assistant Presiding Officer at this Polling Station were both school teachers. The
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Assistant Presiding Officer appeared before the Tribunal as A.W.5 and candidly alleged that he and other members of the election commission staff were forcibly taken and bogus votes were cast. 11. Since appellant's learned counsel opted not to press two issues relatable to non-verification of annexures and election petition (Issues Nos. 8 and 9), this Court is left with the following issues necessary for disposal of this appeal: (i) Issue No.11 Whether the petitioner and returned candidate (respondent No.1) have obtained 22175 votes and 22856 votes (difference of 681 votes)? (ii) Issue No.13 Whether one Mir Mujeeb-ur-Rahman Muhammad Hassani (District Nazim of Washuk) and Mir Habib ur Rehman Muhammad Hassani candidate of PB-47 having in connivance with returned candidate in procuring the said result? (iii) Issue No.14 Whether the District Returning Officer Nushki was authorized to de-seal the polling bags in the presence of Returning Officer and taking out of the requisite record, re-seal the same and in this behalf the report was submitted on 28th February, 2008 and the Election Commission has directed for approaching the Tribunal for trial? (iv) Issue No.15 Whether the respondent No. 1 in connivance of Polling staff have rigged the election polls and the result thereof as alleged in para number 7 of the petition, if so, to what effect? 12. The learned Tribunal while deciding Issue No. 11 in favour of the respondent came to the conclusion as under:-- "As per official result the respondent No.1 obtained 22856 votes while the petitioner secured 22175 votes with the difference of 681 votes but on the contrary the consolidated statement of the result after recount in respect of constituency NA-271, Kharan---cum-Punjgoor furnished by the Provincial Election Commissioner, Balochsitan, the petitioner has secured 22137 votes while the respondent No.1 secured 21376 votes. Thus the petitioner has a lead of 761 votes over the respondent No.1. This fact was neither denied by the counsel for the respondent No.1 nor disputed, as a result I am inclined to hold that petitioner has secured more votes than respondent No.1. " 13. On Issue No. 13, the Court mainly relied on the statement of P.W.4 Khurshid Ahmed, Presiding Officer, P.S. Jangian (Female), who not only tendered his affidavit (Ex.P/4- A) but also appeared in Court in support thereof and the statement of P.W.6 Moulvi Abdul Ahad (who also tendered his affidavit Ex.P/6A). He was the polling agent of one candidate at Polling Station NA 271 Talunk Union Council Jangian. The Court found that they are credible because they are natural witnesses and that during cross-examination their credibility could not be shaken. 14. On Issue No. 14, the Court found that the District and Sessions Judge Washuk was duly authorized to de-seal the relevant bags in the presence of Returning Officer concerned as there was a direction received through fax from the Election Commission of Pakistan to do so. 15. Issue No.15 is crucial i.e. whether the respondent No.1 in connivance of polling staff have rigged the election polls and the result thereof as alleged in para number 7 of the petition, if so, to what effect? The Court found that there were six witnesses produced by the respondent to prove the afore-referred issue. The Presiding Officer Jangian (female) candidly stated before the Tribunal that people of the area did not allow the polling agents of the contesting candidates on the gun point to enter the polling station Jangian (female). He made a complaint to the Assistant Returning Officer but he directed him to start the polling. He alleged that the females observing parda cast their votes in absence of agents. About this, he made a complaint to the Assistant Returning Officer and requested the latter to stop the polling/ casting of bogus votes but he again was directed to continue the polling. The witness added that during polling Mir Mujeeb-ur-Rehman Muhammad
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Hassani, Nazim Washuk (a close relation of the appellant) remained present. The Assistant Returning…
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