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Petitioner: QAISER AHMED SHEIKH VS Respondent: MUHAMMAD TAHIR SHAH and others
Court Name: Election Tribunal Judge(s): Syed Jamshed Ali Title: QAISER AHMED SHEIKH vs MUHAMMAD TAHIR SHAH and others Case No.: Election Petition No,195 of 2002 Date of Judgment:2004-07-18 Reported As: 2005 CLC 1521 Result: Petition dismissed
JUDGMENT
JUDGMENT The election of respondent No,1 from National Assembly Constituency No,86-Jhang-I held on 10-10- 2002 has been called in question in this election petition. According to the official result, respondent No,1 was declared as a returned candidate with 52644 votes while petitioner polled 41023 votes. The main ground to challenge the election of the returned candidate is commission of illegal and corrupt practices by him. According to the averments of the petition, the Daily "Nation", "Nawa-e- Waqt" and even the ARY Digital T.V. Net Work had announced the success of the petitioner on 11-10- 2002. However, the ultimate result was manipulated by respondent No, 1. 2. Petitioner's case is that illegal practices were committed before the election, at the time of de- limitation, setting up to the polling stations and appointment of the polling staff, the election campaigning itself, during the polls and immediately and after the polls. 3. It is contended that Syed Zulfiqar Shah is the real nephew of respondent No,1 who is the Tehsil Nazim of Chiniot who was associated at the time of delimitation of the constituency and the polling scheme including the selection of the polling personnel. Most of the members of the polling staff were the employees of the Tehsil Municipal Administration and subordinate to Tehsil Nazim and most of the polling stations were established in the premises of the Tehsil Municipal Administration. 4. On the day of election, office of the Tehsil Nazim remained open and was used as election office of respondent No, 1 . The results were brought initially in the Tehsil Municipal Administration office as these were verified by the Tehsil Nazim and then sent to the Returning Officer. Vehicles were arranged by respondent No,1 for conveying the voters to the polling stations. The polling agents of the petitioner were not allowed entry in the polling stations. Statement of count was not supplied to the polling agents of the petitioner in respect of 47 polling stations (described by the learned
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counsel for the petitioner as the target polling stations), on the election day and even before respondent No,1 has been soliciting votes on the basis of his caste i,e, "Syed". 5. During the election campaign the Nazims of Union Council, the Tehsil Nazim Chiniot and the Councillors have fully been participating in the election campaign of respondent No,1, "Jalsas" were held at various places and the development projects were announced. After the election, the results were changed and copy of consolidated result was not supplied to the petitioner. It was further alleged that even on the election day he had made a complaint to the Returning Officer, the learned Chief Election Commissioner and the learned Provincial Election Commissioner. It was also alleged that apart from the Tehsil Nazim, Naib Nazim and the Councillors, one serving Major Asim, the paternal-nephew of respondent No,1, had also exerted undue influence on the voters to secure support for respondent No, 1. 6. In the written statement filed by respondent No,1 a number of preliminary objections were taken including that the provisions of section 55 of the Representation of the People Act (LXXXV of 1976) had not been complied with and the affidavits filed with the petition did not fulfil the requirement of law. 7. On the basis of the pleadings of -the parties the following issues were framed:-- (1) Whether the provisions of section 55 of the Representation of People Act, 1976 have not been complied with by the petitioner, if so, to what effect? OPR (2) Whether the affidavits attached with the petition do not fulfil the requirements of law, if so to what effect? OPR (3) Whether respondent No,1 is guilty of breach of instructions contained in paragraph 3 of the Code of Conduct for Political Parties issued by the Election Commission of Pakistan vide Notification No,F.2(9)/2002-Cord., if so to what effect? OPR (4) Whether respondent No,1 was guilty of violation of provisions contained in section 83-3 of the Representation of People Act, if so, to what effect? OPP (5) Whether respondent No,1 was guilty of corrupt or illegal practice by exerting undue influence through his paternal-nephew Major Asim? OPP (6) Whether respondent No,1 has been guilty of other corrupt or illegal practice? OPP (7) Whether election petition is frivolous and vexatious, if so, whether respondent No,1 is entitled to special costs? OPR (8) Relief. 8. The parties led oral as well as documentary evidence in support of their respective pleas. Apart from the petitioner who appeared as P.W.7, six other witnesses were produced by him and documents Exh.P.1 to Exh.P.67 were placed on the record. Respondent No,1 appeared as his own witness and produced in evidence Exh.R.1 to Exh.R.16. 9. Before the contentions of the learned counsel for the parties are noted and examined it is considered necessary to record some facts which may have relevance while answering the issues. 10. This election petition was filed before the learned Election Commission of Pakistan with which photo copies of the affidavits of the witnesses were filed. This election petition came up for hearing before this Tribunal on 27-12-2002 when the learned counsel for the petitioner submitted that no private person is sought to be examined as witness while the list of official witnesses had been filed on which notices were directed to the respondents. Except respondent No,1, nobody came forward to contest this election petition. The persons whose affidavits were filed with the election petition were sought to be examined on which the learned counsel for respondent No,1 raised two objections. ' Firstly, that according to the statement of the learned counsel for the petitioner recorded in the order dated 27-12-2002 no private person was to be examined and secondly, the affidavits filed with the election petition were photo copies (although attested by the Oath Commissioner) and
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were not receivable in evidence. The petition then came up for hearing on 20-3-2003 on which date the learned counsel for the petitioner submitted that he was prepared to file fresh affidavits of the witnesses sought to be produced. Even this was objected to by the learned counsel for respondent No,1. However, the petitioner was allowed to produce original affidavits of the witnesses within seven days photo copies of whose affidavits were filed with the election petition. 11. My findings on the issues are as follows:-- Issue No,1 12. The objection of the learned counsel based on section 55(3) of the Representation of People Act (No,LXXXV), 1976 is two-fold. Firstly, that oath on verification of election petition was not attested in accordance with the instructions of the Lahore High Court contained in Part "B" in Paragraphs 11, 12 and 16 of Chapter 12 of Volume IV of the Lahore High Court Rules and Orders inasmuch as that only the stamp and signatures of the Oath Commissioner appear thereon along with word "attested". Elaborating his submission he contended that according to paragraph 11, the official administering the oath shall specify at the foot of the affidavit the name and description of the person by whom the identification is made as well as the time and place of making the affidavit and according to para.12 he will append a certificate at the foot of the affidavit prescribed under the Indian Oaths Act, 1978 by virtue of paragraph 16 of the said rules. He submitted that not only the provisions of paragraph 11 were not complied with but also that the certificate required to be appended was missing from the verification of the oath on the election petition. Reliance was placed on Engineer Iqbal Zafar Jhagra and others v. Khalil-ur-Rehman and 4 others 2000 SCM R 250 according to which the provisions of section 55(3) of Act No,LXXXV of 1976 are mandatory and that a mandatory requirement should be exactly fulfilled. Reliance was also placed on judgment of this Tribunal rendered in Election Petition No,111 of 2002 and other connected petitions. He also submitted that even the separate affidavit filed with the election petition was not attested in accordance with law. 13. The other violation of section 55(3) pointed out by the learned counsel for the petitioner was that very "schedule or annex" filed on the D record of this election petition or exhibited at the trial was not verified by the petitioner. 14. Controverting the objections of the learned counsel for respondent No,1, the learned counsel for the petitioner submits that there was no requirement in rule 15 of Order VI of the Code of Civil Procedure that verification of the election petition must be attested by the Oath Commissioner or a person duly authorized. According to him the absence of certificate of the Oath Commissioner required by High Court Rules and Orders was only an irregularity. He maintains that technicalities should not be allowed to defeat not only the ends of justice but also the object of the election laws. As far as non-verification of the documents filed with the election petition and exhibited are concerned, his submission is that all these documents are public documents and do not come within the scope of "a schedule or annex". Reliance was placed on S.M. Ayub v. Syed Yousaf Shah and others PLD 1967 SC 486. It was further contended that according to para.3 of the notification of the Election Commission of Pakistan, dated 16-3-1985 which was published in the gazette on 17-3- 1985. Respondent No,1 was required to file written statement within seven days of the notice of the petition but he himself violated the said provision, filed written statement before this Court and that too not promptly. According to him, the aforesaid instructions are directory. 15. The submissions made by the learned counsel for the parties on this issue have been considered. The stamp attesting the verification by the Oath Commissioner or the stamp on the separate affidavit does not indicate that the oath was made by the petitioner before the Oath Commissioner although in the verification, oath is mentioned. The object of oath is to confront the maker with the Almighty God and to ensure truth of the declaration and this is to be made before a person duly authorized. Oath on affidavit is prescribed by section 139 of the Code of Civil Procedure which can be administered by a Court or Magistrate or an Officer or other person appointed by the
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High Court in this behalf or any other person appointed by the Provincial Government. The forms of oath, affirmations, and affidavits and the manner of attestation thereof have been prescribed by the Lahore High Court by virtue of the powers conferred by section 7 of the Oaths Act, 1893. Therefore, the instructions contained in Part-B of Chapter 12 of High Court Rules and Orders have the force of law. Part-II of the said instructions requires that the person making an affidavit, if not personally known to the attesting officer, shall be identified by person known to the said Officer who will specify at the foot of the affidavit the name and description of the person by whom the identifications made and a certificate has to be appended as directed by para. 16 in the form prescribed under the Indian Oaths Act, 1878. Perusal of the election petition does not bear out that the petitioner had appeared before the Oath Commissioner nor there is the prescribed certificate as to how the Oath Commissioner had satisfied himself of the identity of the maker of the oath. Therefore, the verification on the election petition and the accompanying affidavit was not attested as required by law and therefore, provisions of section 55(3) were not complied with. 16. The question as to whether section 55(3) was mandatory or directory came up for consideration before the Honourable Supreme Court in the case of Engineer Iqbal Zafar Jhagra (supra). The provisions of section 36(3) of the Senate Election Act No, (LI of 1975), which are in pari meteria with section 55(3) or Act No,LXXXV of 1976, were under consideration of the Honourable Supreme Court and the view taken was that the provisions of section 55(3) were mandatory. The said judgment was followed by the Punjab Election Tribunal in Mst. Asif Nawaz Fatyana v. Walayat Shah 2003 CLC 1896. I also happened to examine the provisions of section 55(3) of Act No,LXXXV of 1976 in Election Petition No,111 of 2002 and nine other Election Petitions decided on 8-1-2004 and on the basis of the'judgment of the Honourable Supreme Court in the case of Engineer Iqbal Zafar Jhagra and Mrs. Asif Nawaz Fatyana (supra) the view taken was that the provisions of section 55(3) are mandatory. In my judgment, on a similar provision of law, the view of the learned Indian Supreme Court in M. Kaurnanidhi v. H.V. Honda AIR 1983 SC 558 and Sattva Narain v. Dhuja Ram and others AIR 1974 SC 1185 was also noted. In the case of M. Karunanidhi (supra) the observation made was that a "mandatory provision must be fulfilled exactly". It may be observed that when a provision is mandatory the Court is bound to give effect to it and the consideration of substantial justice against technicalities was completely eclipsed. 17. As far as the annexes or the schedule appended to the election petition are concerned, all the documents exhibited on the record, except Exh.P.6 are certified copies of public record. Therefore, as explained by the Honourable Supreme Court in the case of S.M. Ayub (supra) these are not conversed by the expression "schedule or annex" referred to in section 55(3) of Act No,LXXXV of 1976. Exh.P.6, the application made by the petitioner to the Returning Officer, however, contained additional/supplementary information. In the said application, certain irregularities in the conduct of election at Chak No,15, Moona, at the male polling station and other allegations were levelled. This document falls within the scope of "schedule or annex" and, therefore, was required to be verified but has not been verified. However, it was exhibited during the trial. The effect of non- compliance of the provisions of section 55(3) is that the said document cannot be considered. There are however, same other documents on the record .Of this election petition but these were not exhibited. It is, therefore, not necessary to take notice of the said documents. In view of the above, I find that section 55(3) insofar as it relates to verification of the election petition and the documents Exh.P.6 was not complied with by the petitioner and this election petition is liable to be dismissed on this sole ground. The issue is, accordingly, answered in favour of respondent No, 1 . Issue No,2 18. The objection of the learned counsel for respondent No,1 was that photocopies of the affidavits filed with the petitioner were not admissible and, therefore, the provision contained in paragraph 1 of the notification dated 16-3-1985 was not complied with. According to him, the provisions of the
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said notification were mandatory. Reliance was placed on Mir Tariq Mahmood Khan Khetran and others v. Mir Baz Muhammad Khetran and others 1992 CLC 176l; Mian Shah Jehan v. Abdus Subhan Khan and others 1988 CLC 750; Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CLC 175 and Mehr Zafar Ahmad Haraj v. Dr. Khawar Ali Shah 1988 CLC 1289. As already noted above, the petitioner was allowed to produce original affidavits of the witnesses vide order dated 20-3-2003. In adopting the said course, reliance was placed on Rai Asghar Ali Khan v. Returning Officer and other PLJ 1999 Lah. 632; Haji Aziz-ur-Rehman Chan v. Mian Abbas Sharif and another 1994 M LD 2293 and Ihsanul Haq v. Dr. Saddique Hussain and another 1995 CLC 382. The question whether the instructions contained in the notification dated 16-3-1985 were mandatory was considered by me at some length in Election Petition No,111 of 2002 and other connected petitions. The view taken was that the said instructions were directory since the consequence of non-compliance of the aforesaid instructions was not provided either in the said notification or Act No,LXXXV of 1976 and by virtue of section 64 of the aforesaid Act an Election Tribunal had all the powers of a civil Court. The issue is decided in favour of the petitioner. Issue No,3 19. According to para.3 of the Code of Conduct issued by the learned Chief Election Commissioner, Pakistan vide Notification No,F2(9)/2002 Cord. Dated 23-8-2002, the political parties and contesting candidates were permitted to announce their overall development program but after the announcement of the election schedule no undertaking for any development project in the constituency could be given. Apart from the question whether the evidence produced by the petitioner could be relied upon it may be noted that none of them identified the dates of the public meetings to determine whether any election Jalsa was held after the announcement of the election schedule or any undertaking for development work was given by the petitioner or the political party he was representing i,e, the P.M.L. (Q). The issue is accordingly, answered in the negative. Issue No,4 20. P. W.1 to P.W.5 did not state that loud-speakers were used at the election meeting, it was not so claimed even by the petitioner who appeared as P.W.7. The issue is, accordingly answered in the negative. Issue No,5 21. None of the witnesses examined by the petitioner supported the allegation that Major Asim participated in the election campaign of respondent No, 1. The only witness in support of this allegation, subject-matter of this issue, was the petitioner himself. According to him, Major Asim not only canvassed to vote in favour of respondent No,1 but he also threatened the voters of the rural areas that their houses would be burnt if they did not vote for respondent No, 1. In cross- examination he stated that this information was supplied to him by the voters. No such voter was examined. The sole testimony of the petitioner, could not be relied upon particularly in view of the fact that although, it was asserted in the election petition that he made complaints to the Chief Election Commissioner and the Provincial Election Commissioner, but he admitted as (P.W.7) that no complaint was made against Major Asim. Therefore, the issue is answered in the negative. Issue No,6 22. This is the all important issue. Before the contentions of the learned counsel for the parties are dealt with it would be appropriate to take notice of the oral and documentary evidence produced by the parties. On behalf of the petitioner seven witnesses including himself and the Returning Officer were examined. As far as documentary evidence is concerned, Exh.P.1 to Exh.P.5 are the affidavits of the witnesses examined by the petitioner. Exh.P.6, the application, which is not being taken into consideration for the reason noted above. Exh.P.7 is the consolidated result issued at 8- 00 a.m. On 11-10-2002 by the Returning Officer. Exh.P.8 and Exh.P.9 are the consolidated results of
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PP.73 and PP.74. From both these Provincial Assembly constituencies the election was won by the nominee of the Pakistan Peoples Party (Parliamentarian). There was no contesting candidate nominated to any of the two constituencies by the Tahreek-i-Istiqlal on whose ticket the petitioner had contested the election to NA-86. Exh.P.10 is the statement of results of the count in Form XVI in respect of 256 polling stations of N.A.86. Exh.P.11 is the statement of the results of the count in respect of PP.74 and has no bearing on the present petition. Exh.P.12 to Exh.P.66 are the statements of count in Form XIV in respect of 55 polling stations which include the target polling stations. Exh.P.67 is the notification of the Election Commission of Pakistan in respect of final list of polling station in N.A.86. 23. Respondent No,1 appeared as his own witness as R.W.1. No other oral evidence was produced on this behalf Exh.R.1 to Exh.R.3 are the photo copies of the affidavits of Muhammad Usman (P.2), Ghulam Murtaza who was examined as P.W.3 and Riaz Ahmad was examined as P.W.. These were originally filed with the election petition Exh.R.4 is the affidavit of respondent No, 1. Exh.R.4/1 is the statement of the results of the count in respect of all the polling stations of N.A.86. Exh.R.5 and Exh.R.6 are the results of statements of count in respect of PP.73 -and PP.74 respectively. Exh.R.7 is the letter of the Returning Officer of N.A.86 to the learned Election Commissioner with which the result of the statements of count of N.A.86, PP.73 and PP.74 were forwarded, Statements in respect of the aforesaid three constituencies dated 9-10-2002 of the Returning Officer to the Presiding Officer of Polling Station No,114 of PP.73 according to which the voters of Chak No,10/JB, Gujjar, were allowed to cast their votes at Polling Station No,115. This letter is accompanied with the fax message of the Provincial Election Commissioner of Pakistan. Exh.R.16 is the result of count in respect of N.A.86 in Form XVII, Exh.R.11 and Exh.R.12 are the results of count in respect of PP.73 and PP.74 respectively. Exh.R.13 is unofficial result of N.A.86. Exh.R.14 is the affidavit with which return of election expenses was filed by respondent No, 1. Exh.R.15 is the list of District Returning Officers of the constituencies of National Assembly and Provincial Assemblies for District Jhang. Exh.R.16 is the statement of count (254 sheets). 24. In the affidavit Exh.P.1 Imran Yasin stated that on 10-10-2002, in the lawn of Municipal Committee. Lights tents and chairs were arranged and throughout the night fake results were announced by the officials of the Municipality who were subordinate of the Tehsil Nazim and during the election campaign of respondent No,1 Tehsil Nazim has been making announcement for development works particularly one Jalsa was arranged by one Malik Khalil, Nazim of Union Council, Mohallah Aali Chiniot, which was addressed by the Tehsil Nazim and respondent No,1 and on the demand of Malik Khalil disposal pipes were brought in the Jalsagah to persuade the voters to vote in favour of respondent No, 1. He further stated that in Jalsa in Satellite Town, respondent No,1, in the company of the Tahir Shah announced that if votes were cast in favour of his uncle, the area 'will be supplied with the sui-gass and further that in the Satellite Town and other Jalsagahs tents and chairs where provided in the Trolly of the Municipality and in these Jalsas the 'Tehsil Nazim campaigned for respondent No, 1. Muhammad Usman was examined as P.W.2. He made similar statement as made by P.W.1 and added that wrong votes lists were supplied and a number of persons were deprived to cast their votes. Ghulam Murtaza was examined as P.W.3. He asserted the same facts as deposed by P.W.1. Sheikh Riaz, Ahmad was examined as P.W.4. According to him, he was on duty on behalf of the petitioner on 10-10-2002 at Jadid No,1 School near the Library Park and in his presence the Tehsil Nazim and respondent No,1 entered the polling station, turned out all persons from the polling station and remained there with the Presiding Office for 15 minutes. Malik Shafqat Hussain was examined as P.W.5. According to him, in the election held on 10-10-2002, a number of persons were not registered as voters and at a number of polling stations the correct electoral were not registered as voters and at a number of polling stations the correct electoral lists were not available. Further stated that the Tehsil Nazim participated in the election campaign,
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and for the Jalsas of respondent No,1 chairs and other articles were supplied by him. He further stated that on 10-10-2002, there was an alteration on account of announcement of wrong results from the office of Chiniot Municipality. Mr. Sabir Sultan the Additional District and Sessions Judge, Returning Officer of N.A.86 was examined as P.W.6. He stated that at 2-25 a.m. (mid-night) an application (Exh.P.6) was submitted before him by the petitioner with a photocopy of the report of the Presiding Officer of Polling Station No,127 to the effect that a ballot box of white colour was found open. It was rejected on the ground that it was not presented within the polling time. It may be noted that the ballot box referred to in the said complaint pertained to the Provincial Assembly constituency and has no relevance to the controversy raised in this petition. He further stated that the unofficial result was declared at 8-00 a.m. On 11-10-2002 and it was received by Malik Rab Nawaz, Advocate. He stated that unofficial result Exh.P…
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