AMIR HANI MUSLIM, J.-- Through this Election Petition, the petitioner has challenged the Election of respondent No. 21 from the constituency PS-115, Karachi-XXVII, inter a/ia, on the ground of rigging and corrupt practice alleged to have been committed by the workers of the respondent No. 21 in connivance with the election staff.
2. The facts as it appear from the pleadings of the parties are that the petitioner had filed his Nomination Papers besides the other respondents for PS-115 which had 74 Polling Stations, inclusive of the Polling Stations falling within the Lines Area. According to the petitioner, the Voters and workers of the petitioner in the Lines Area, were not provided security and the workers and supporters of Muttahida Qaumi Movement ('MOM') and Muhajir Qaumi Movement (Haqiqi) were in clash on the day of elections which fact was brought to the knowledge of the concerned agencies but no heed was paid to ease the situation.
3. According to the petitioner, the location of six Polling Stations was changed 12 hours, before the start of polling without notice to the petitioner causing inconvenience to his voters as a result of which, most of the voters of the petitioner could not reach the Polling Stations and were deprived to cast their votes.
4. It was further alleged in the petition that the petitioner's agent and voters were thrown out from the Polling Stations within the Lines Area. The polling agents of the petitioner had protested to the Presiding Officers but on account of the influence of workers of the respondent No. 21, the polling staff present did not remedy their grievance and, therefore, the complaint was loaded with the Chief Election Commissioner, Islamabad. The female voters of the petitioner were harassed and were prevented from casting their votes. Incidents of such nature were reported to the competent authority, which did not come to their rescue. The supporters of MOM raided the election camps of the petitioner, man handled the workers and forced the voters of the petitioner, who were standing in queue, in the Polling Stations to cast their votes to leave the Polling Stations. The polling process according to the petitioner was completely abrupt in between 3 p.m. To 5 p.m. And the voters of the petitioner were not allowed to cast their votes. The Polling Stations were in control of the workers of the MOM, which after removing the polling staff started stamping votes in favour of their candidate and the agents of the petitioners were confined illegally and were extended threats of dire consequences. It was also alleged in the petition that many votes in favour of the petitioner were wrongly rejected and hundreds of votes cast in favour of other candidate were wrongly declared valid.
5. According to the petitioner the number of registered votes in two constituencies of Provincial Assembly were equal in number of the registered votes of the constituency of National Assembly. In the present case, the Presiding Officer of NA-251 of which PS-115 and PS-114 were the two parts, were issued 77838 ballot papers whereas the number of the ballot papers for these two provincial constituencies was 78359, which according to the petitioner reflects 809 more ballot papers were issued to the voters of the National Assembly which according to the petitioner does not appeal to the reasons and reflects ma/a fide on the part of the election authority. It was further pleaded that the Returning Officer has consolidated the results of elections in violation of the provisions of Section 39 of the Representation of People Act, 1976 (hereinafter referred to as "the Act").
6. Except the respondent No. 21, the other respondents did not put in appearance though they were duly served and were, therefore, declared ex parte.
7. The respondent No. 21 filed his written statement denying and refuting the various averments made in the petition.
8. On 10.3.2003 the following issues were framed:-
9.
10. '1. Whether the petition is not maintainable for non -compliance of Provision of Section 55(1)
(a) and (b) of the Representation of People Act, 1976?
2. Whether the voters of the petitioner were harassed and were prevented to cast their votes and the polling agents of the petitioner were thrown out from the polling station in Lines Area under the pressure/influence of the respondent No. 21? If so, its effect?
3. Whether the six polling stations. Were changed before 12 hours of the polling without prior notice to the petitioner, if so, its effect?
4. Whether the female voters of the petitioner were harassed, misbehaved and were prevented to cast their votes by the supporters of respondent No. 21?
5. Whether the supporters of respondent No. 21 raided the camps of the petitioner in Lines Area and totally disturbed the polling process and closed the polling between 3 p.m. To 5 p.m. Which amounts to corrupt practice u/S. 78(6) of the Representation of People Act, 1976, if so, its effect?
6. Whether the supporters of the respondent No. 21 hijacked the polling staff in Lines Area and Chanesar Goth and controlled the polling station and started stamping ballot papers in favour of respondent No. 21, if so, its effect?
7. Whether at the time of counting the polling agents of the petitioner were not allowed to participate and counting was carried out without their participation and presence? If so, its effect?
8. Whether the number/quantity of ballot papers issued by the Presiding Officer of Polling Station Nos. 1, 58 and 62 for the National Assembly and Provincial Assembly are different, if so, its effect?
9. Whether the rejected votes of Provincial Assembly are more than National Assembly, if so, its effect?
10. Whether there are many discrepancies/illegalities and over writing in count sheet Form XIV, which is the basis of the final result, if so, its effect?
11. What should the order be?
9 The petitioner PW-1 examined himself as Exhibit-1 and produced his. Affidavit-in-Evidence as Exhibit-2, copy of complaint to the Chief Election Commissioner, Islamabad, Exhibit-3, copy of complaint to the Chief Election Commissioner, Islamabad, Exhibit-4, copy of complaint to the Chief Election Commissioner, Islamabad, Exhibit-5, copy of complaint to Chief Election Commissioner, Islamabad, Exhibit-6, copy of complaint to Chief Election Commissioner, Islamabad, Exhibit-7, copy of complaint to Chief Election Commissioner, Islamabad, Exhibit-8, statement of count of Polling Station, Junior Model School, Exhibit-9, statement of count of Polling Station Baldia School, Exhibit- 10, statement of count of Polling Station No. 24, Exhibit-11, statement of count of Polling Station Jamshed Town, Exhibit-12, statement of count of Polling Station No. 56, Exhibit-13, statement of count of Polling. Station No. 15 Exhibit-14, statement of count of Polling Station, Govt. Boys Primary School, Fowder Lines Exhibit-1 5, copy of complaint to the Chief Election Commissioner, Exhibit-16 copy of Form XVII Exhibit-17, copy of Form XVII Exhibit-18, copy of Form XVi, Exhibit-19. The petitioner also examined his witnesses namely Syed Muhammad Suleman Azam, PW-2, Exhibit-20, who appeared and produced his affidavit -in-Evidence as Exhibit-21, lmran Hamid PW-3 (Exhibit-22), who appeared and produced his affidavitin-evidence as Exhibit-23, ,Muhammad Abdul Aziz, PW4 Exhibit-24,' who appeared and produced his affidavitin-evidence as Exhibit-25, Muhammad Amin PW-5, Exhibit-26 who appeared and produced his affidavit-inevidence as Exhibit-27, Syed Kausar Hussain Zaidi, PW6 Exhibit-28, who appeared and produced his affidavitin-evidence as Exhibit-29, Mrs. Shamim A. Sadozai, PW-7, Exhibit-30 who appeared and produced Form XIV of Polling Station No. 9 Exhibit-30/1, Form XIV of Polling Station No. 15 Exhibit-31, Form XIV of Polling Station No. 16, Exhibit-32, Form XIV of Polling Station No. 24 Exhibit-33, Form XIV of Polling Station No. 56, Exhibit-35, Notice of the Returning Officer Exhibit-36, application addressed to the Chief Election Commissioner with acknowledgement Exhibit-37, Form XVII, Exhibit-38 and Form XVII, Exhibit-39, Ghulam Rasool PW-8, Exhibit-40 appeared and produced Form XVI Exhibit-41.
10. As against this the respondent No. 21 examined himself as Exhibit-42 and produced his affidavit- in-evidence as Exhibit-43 and the written statement as Exhibit-44.
11. Mr. Muhammad Anwar Tariq, learned counsel for the petitioner, has submitted that he will confine his arguments to the question of 'recount' only and will not address the Tribunal on any other issue. On the issue of recount, he has placed reliance on the representation, Exhibit P/14, which the petitioner has Made to the Chief Election Commissioner and copy of which was endorsed to the Returning Officer. The representation, Exhibit P/14, contained various allegations in regard to the conduct of elections. The representation was admittedly made to the Chief Election Commissioner on 12.10.2002, after the elections were over. The entire evidence, which has been brought on record by the petitioner is oral in nature in as much as the petitioner in all has examined seven witnesses, beside himself. Out of these seven witnesses the petitioner has examine done Voter Syed Kausar Hussain Zaidi, PW-6, Exhibit 28, who in his deposition has stated that he was permitted to vote. Another witness was the polling agent. PW-4, Muhammad Abdul Aziz, Exhibit 24, who was polling agent of Polling Station Mandarvvala School, Lines Area. He in his affidavit-in-evidence has stated that he was maltrttated. He in his deposition has not levelled any allegation against the respondent No. 21:
12. The petitioner has not examined any of the polling agents except the one referred to hereinabove. However, the two other polling agents, namely, Aurangzeb and Abdul Razzak 'whose affidavits-inevidence were filed by the petitioner were given-up. The petitioner has also filed to examine any of the Presiding Officers who were alleged to have deprived the polling agents of the petitioner to participate in the count. Mr.. Muhammad Anwar Terri in support of his argument has relied upon the case of Abdul Hafeez Khan v. Muhammad Tahir Khan Loni, 1999 SCMR 284 by submitting that the Returning Officer in law -in the given circumstances was duty bound to order count as she was requested for 'recount' prior to consolidation of the results on 12.10.2002 by Exhibit P/14.
13. As against this, Mr. Qazi Khalid A.I, learned counsel for the respondent No. 21, the Returned Candidate, has argued that none of the witnesses have levelled any allegation against the respondent. No. 21 (the Returned Candidate) and the grounds urged in the petition were that of the law and order situation which was alleged to have been created on account of serious differences between the political rivals. He further submitted that the petitioner, has failed to make out a case for recount and has relied upon two reported judgments of this Tribunal in the case of Muhammad Shabbir Abu Talib v. Dr. Abdul Aziz Bantwa, SBLR 2003 Sindh 1285 and case of Muhammad Ahmed Siddiqui v. Zamir Ahmed Tunio, 2003 CLR (Kar) 1002.
14. I have heard the arguments of the learned counsel and have perused the record. It is an admitted position that the petitioner has failed to examine any of his polling agents to establish that the Presiding Officers had counted votes on their back except PW-4, Muhammad Abdul Aziz.
The petitioner also has failed to examine any of the Presiding Officers who were alleged to have disallowed the petitioner's polling agent from participating either in the election process or in the count. It is also ,a fact that the petitioner neither in his petition nor in his evidence has disclosed the names of his polling agents who were refused to enter the polling stations or were refused to participate in the count by the Presiding Officers. Even the names of Presiding Offices do not find place either in the petition itself or in the evidence of the petitioner who had committed such an illegality. Even for the sake of arguments if the evidence of PW-4 is believed the registered votes in the said polling station No. 64 are less than 600, out of which the petitioner has secured 82 votes whereas the respondent No. 21 (the Returned Candidate) has secured 265 votes. Recount of the nature even if it is ordered would not change the complexion of the case as the difference of votes secured by the Returned Candidate are more than 1300 and no material change would have been resulted.
15. In order to establish ground of recount, the law requires that a party has to clearly establish that his polling agents were not allowed to sit in the polling station and were denied participation in the count. 'Recount' cannot be ordered as a matter of right either by this Tribunal or by the Returning Officer unless a justifiable ground is made. There has to be sufficient material to order recount. In the present case, the petitioner has failed to discharge the burden to prove the allegations to the effect that his polling agents were not allowed to enter the polling stations besides the fact that the petitioner has also failed to establish that his polling agent were disallowed to participate in the count.
16. The judgment relied upon by the learned counsel for the petitioner is of no help' to him as the facts in the said judgment referred to by the learned counsel were distinguishable in as much as that the Tribunal in the said case did examine the Presiding Officers whereafter the finding of the nature was given but in the present case, no such material has been brought on record. Moreover, the petitioner has also failed to show any 'discrepancy in' the number of votes of any of the forms (XVI of XVIII), which could warrant 'recount'. The Returning Officer PW-7, Exhibit-70 was examined by the petitioner, who in her deposition has stated that she has not received any complaint during the elections either from the petitioner or from any of his agents, either orally otherwise nor has she been given independent application for recount prior to consolidation of the result on 12.10.2002, except that she did receive the copy of the representation made by the petitioner to the Chief Election Commissioner, endorsed to her, in which request for recount was made. I have also perused the said representation and the allegations contained therein. I am of the view that the allegations contained in the representation were of general nature and no specific instance has, been given nor these' allegations were substantiated by placing any material before this Tribunal.
17. For the aforesaid reasons I am of view that a case of 'recount' is not made out as the petitioner has failed to establish the essential grounds for recount. Since the learned counsel for the petitioner has not pressed the other issues no finding is recorded on such issues. This petition for the aforesaid reasons merits dismissal with no orders as to costs. .