1. GHULAM RABBANI, J.---Petitioner has challenged the notification dated 22-12-2005 issued under the order of Election Commission of Pakistan (hereinafter to be referred to as "the Commission") whereby the bye-election held on 10-12-2005 for Constituency No, NA-210, Jacobabad-III has been declared null and void.
2. Briefly stated, the case of the petitioner is that he being candidate of Pakistan Muslim League (Q), respondent No,2 a candidate of Pakistan Peoples Party (Parliamentarian) and respondents Nos.3 to 7 as independent candidates contested the above mentioned bye-election. No report as to rigging, irregularity or any untoward incident was made and the election process took place in peaceful manner. On conclusion of the polling, the Returning Officer announced unofficial result declaring the petitioner a successful candidate having received 1,53,756 while respondent No,2 could poll only 14,420 votes. The compiled results were submitted before the Commission for declaring official result within terms of Representation of People Act, 1976 (hereafter to be referred to as "the Act"). After a couple of days, when petitioner inquired, he received verbal information from the staff of the Commission that the result of the election in question was withheld and then on 22-12-2005 the notification, impugned herein, was issued in violation of principles of natural justice and the provision of section 103-AA of the Act, as well.
3. The Joint Secretary (Elections) of the Commission/Respondent No,1, filed comments on behalf of the said respondent on 24-1-2006 while other respondents failed to furnish reply to this petition in writing. According to the said comments, Mir Imran Khan Bijarani, respondent No,2 and a contesting candidate, on the day of polls, made to the Commission a complaint with details that a pre-planned rigging in connivance with Zila Nazim Kashmore, took place. On the next day, too, similar complaint was received on which under the orders of learned Chief Election Commissioner, the District Returning Officer furnished a report that as per Assistant Returning Officer, the Presiding Officer of Polling Station GPS-Ali Sher Sarki was pressurized by the Additional Secretary to Chief Minister, Sindh and the SHO of the area for bogus voting and further that he had not seen any row (Queue) of voters at polling stations except one at the time of his visit and that the turn out was generally higher in comparison to previous polls. Later, the District Returning Officer furnished another report on directives of learned Chief Election Commission relating to details of 172 polling stations and such reports were found sufficient for the purpose of summary enquiry. A meeting of Commission was then convened where it was noticed with great concern that there was abnormal percentage of votes in bye-elections. The Election Commission afteri going through the record furnished by District Returning Officer/Returning Officer and after perusing their reports was satisfied that grave illegalities were committed and the provisions of the Act and the Rules framed thereunder were grossly violated during the polls. As such, the Commission, in exercise of powers under section 103AA of the Act passed order dated 21-12-2005 by giving reasons in detail.
4. According to the comments petitioner has already filed his Nomination Paper pursuant to fresh schedule issued by Commission for re-election to be held on 25-2-2006 for the same constituency.
5. Petitioner has filed no rejoinder to the above comments of respondent No, 1.
6. Mr. Raza Hashmi, learned counsel for petitioner contended that not a single voter made to the Commission complaint of mal-practices or rigging; that no summary enquiry was conducted by the commission; that while issuing the notification dated 22-12-2005 no reasons were stated for declaring the bye-election in question as null and void; that the higher turn out of voters could not be taken as a criteria for declaration of bye-election null and void; that in case respondent No,2, the contesting candidate, was aggrieved by rigging or any mal-practice, he could challenge the election by way of an Election Petition, a remedy available to him and that on his complaint, the Commission could not issue the impugned notification violating the provisions of law and the principles of natural justice as ingrained in maxim "Audi Aterm Partem". Mr. Hashmi contended further that in case the Commission was of the view that polling at one of polling stations viz. GPS- Ali Sher Sarki was found to have been rigged, even then all the votes, in all 510, polled by petitioner when added to the total votes of respondent No,2 would not alter the results unofficially declared by the Returning Officer. In support of his contentions he placed reliance on the case of Haji Behram Khan v. Abdul Hameed Khan Achakzai and others (PLD 1990 SC 352), the case of Kanwar Khalid Younus v. Federation of Pakistan and others (PLD 2003 Kar, 209), the case of Mehmood Khan Achakzai and others v. Election Commission of Pakistan (2003 YLR 1413) and the case of Sardar Muhammad Ashiq Dogar v. Federation of Pakistan (2004 YLR 471).
7. Mr. Mehmood Alam Rizvi, learned Standing Counsel reiterated the same facts as are mentioned in comments of respondent No, 1 . In addition, he contended that on complaint of respondent No,2, learned Chief Election Commissioner had immediately called for detailed reports from the District and Sessions Judge/District Returning Officer, Kashmore, inter alia, to identify the names and number of Polling Stations where more than fifty per cent votes were polled. He argued that the District Returning Officer had reported in specific terms that he had not seen any row (queue) of voters at any Polling Station except Polling Station No,89, GPS-Abdul Haque and that on his visit of Polling Station GPS-Nasrullah Bijrani at about 12-45 p.m. He found that many hundreds women voters were shown to have cast votes up to that time but no woman voter was found available.
8. According to Mr. Rizvi the District Returning Officer had also reported that the general turn out was higher in comparison to previous polls. He contended that such higher turn out was absolutely abnormal as, for example in cities like Karachi where the voters comparatively appeared to be more advanced, the turn out, at least in bye-elections could not be witnessed more than 30 per cent and in the constituency in question which happened to be a part of former Constituency Nos.NA-156 and 157 before 2002 Elections, the turn out even in general elections was found below 50 per cent. Further, he stated that here were in all 172 Polling Stations and in none of these polling stations the turn out was lower than 50 per cent in the election in question. In support of his contentions he referred to the order dated 21-12-2005 of the Commission, the reports of District Returning Officer, Returning Officer, the Assistant Returning Officer and other documents including General Elections Reports containing specific details of the results of the elections held in 1988, 1990 1993,1997 and 2002 all over the country.
9. Mr. Rizvi argued further that the Commission, on complaints, conducted summary enquiry, in which the reports of election staff and the record produced by them were examined and on its satisfaction that there were grave illegalities apparent on the face of it, rightly declared the bye- election in question as null and void vide its detailed order dated 21-12-2005, sufficiently highlighting the reasons for the action taken, therefore, there was no necessity of giving any reason in the impugned notification dated 22-12-2005 which was a simple and formal manifestation of order dated 21-12-2005. He supported the order dated 21-12-2005 and notification dated 22-12- 2005 of the Commission and stated that the same were rightly passed/issued in consonance with the mandate of provisions under section 103AA of the Act.
10. Mr. Zaheer H. Minhas, learned counsel for respondent No,2 argued that- the petitioner was involved in grave illegalities in the Election, leading to the complaints to the Commission on the basis of which, after holding summary inquiry the order dated 21-12-2005 was rightly passed followed by the impugned notification issued legally and lawfully. He, too, supported the impugned notification.
11. From the arguments of learned counsel for the parties, in our view, following questions fall for determination:
(1) Whether there were facts apparent on the face of record sufficient for satisfaction of the Commission by reason of grave illegalities or violation of the provision of the Act or Rules to declare the poll void?
(2) Whether respondent No,1, the Commission declared the polls in Constituency No,NA-210, Jacobabad-III, null and void after summary enquiry?
(3) Whether it was imperative to state reasons In the impugned notification dated 22-12-2005 ?
12. From the facts culled out from material placed before us, it is evident that Mir Imran Khan, respondent No,2 made to the Chief Election Commissioner complaints twice. In his complaints against the petitioner, besides variety of other illegal acts, to sum up, he levelled the allegation of stuffing the ballot papers in connivance with the administration resulting into extreme higher turn out of. Voters. On such complaints, learned Chief Election Commissioner called reports from the.
13. District and Sessions Judge/District Returning Officer Kashmore at Kandkot. It appears that the District Returning Officer reported that he had visited several Polling Stations on the day of poll but he did not find any queue of voters except at one Polling Station and that the turn out of the votes was higher in comparison to previous polls. He also reported that at one Women Polling Station he had not seen a single voter at the time of his visit at about 12:45 p.m.; but, 300 women votes were shown to have been cast by that time. Further, that as per report of the Assistant Returning. Officer Tangwani, Mr. Sikandar Amir Pahore, the Presiding Officer had disclosed to him that during his visit of polling stations G.P.S. Ali Sher Sarki, Mr. Ghulam Sarwar Sarki, Additional Secretary to Chief Minister of Sindh and Mr. Shoukat Ali Rind, the S.H.O. Police Station Ghulam Sarwar Sarki had pressurized him for bogus votes.
14. On such reports, learned Chief Election Commissioner convened a meeting of the Commission where it was noticed that the votes cast in the constituency comprising of 172 polling stations were as follows:
(1) In 37 polling stations between 91-99 per cent.
(2) In 58 polling stations between 81-90 per cent.
(3) In 39 polling stations between 71-80 per cent
(4) In 24 polling stations between 60-70 per cent.
(5) In 14 polling stations between 50-59 per cent.
15. The order dated 21-12-2005 passed by the Commission shows that the above percentage of votes was considered abnormal and an unprecedented achievement in the bye-elections or even in general elections leading the Commission to a legitimate conclusion that the polls were rigged adopting massive corrupt practices in violation of relevant law and the rules framed thereunder.
16. The Commission observed in its order that even in normal circumstances in a bye-election turn out of voters in big cities like Karachi was below 30 per cent. The Commission was, therefore, of the view that it was satisfied that grave illegalities and violations of provisions of the Act and the rules framed thereunder had taken place during the poll and in exercise of its powers under section 103- AA of the Act and all other powers enabling it in this behalf, declared the poll in question to be void and ordered fresh elections to be held in the constituency.
17. We have also gone through comparative statistics for general elections 1988, 1990, 1997 and 2002 compiled in two volumes, which were placed before us by Mr. Rizvi, during the course of his arguments. He had pointed out that before 2002 elections, the constituency in question was a part of and was carved out of two constituencies viz. NA-156 Jacobabad-I and NA-157 Jacobabad-II (not controverted by Mr. .Hashmi) while 2002 elections were held .In the same constituency. On examination of comparative statistics what we find is that the percentage of poll in the above constituencies has never been above 50 per cent. The figures of the votes polled in the above three constituencies in the previous elections are as follows: CONSTITUENCY NA-156 JACOBABAD-I YEAR PERCENTAGE 1988 29.17 1990 38.28 1993 23.45 1997 23.69 CONSTITUENCY NA-157 JACOBABAD-II YEAR PERCENTAGE 1988 22.51 1990 43.23 1993 23 .40 1997 23.40 CONSTITUENCY NA-210 JACOBABAD-III YEAR PERCENTAGE 2002 47.05 Mr. Hashmi learned counsel for petitioner in his arguments had taken a plea that the higher turn out of voters could not be taken as a criteria for declaration of bye-election null and void which according to him could have been challenged by way of Election Petition; however, on a question whether such an unprecedented turn out was ever noticed and in the present elections it appeared to be a fact apparent on the face of record, he failed to give any appropriate reply. He also failed to controvert, the report of the District Returning Officer in which the latter stated that he had not seen any queue at polling stations, particularly, in a situation where it was the claim of petitioner that he had polled 1,53,756 votes. In this case, petitioner has also failed to file any rejoinder to the parawise comments filed by respondent No,1 wherein the, mention of reports of District Returning Officer and Assistant District Returning Officer is made and a host of documents including the copies of reports and other material have been placed on record and the fact of abnormal/unprecedented turn out was stated. Such unprecedented and abnormal turn out appraised in the light of reports of District Returning Officer and other Officers, and the percentage of polls in past years are the facts apparent on the face of record and have been seen in the background of the allegations made in the complaints mentioned above.
18. Respondent No,1, the Commission, declared the elections in questions null and void in exercise of powers vested in it under section 103 AA of the Act. The same is reproduced as follows: "103AA. Power of Commission to declare a Poll void.-(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of record and after such summary inquiry as it may deem necessary, it is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void and by notification in the official Gazette; call upon that constituency to elect a member in the manner provided for in section 108.
(2) Notwithstanding the publication of the name of a returned candidate under subsection (4) of section 42, the Commission may exercise the powers conferred on it by subsection (1) before the expiration of sixty days after such publication; and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribunal.
(3) While exercising the powers conferred on it by subsection (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented, and shall, notwithstanding anything contained in Chapter VII, regulate its own procedure."
19. Perusal of subsection (2) of section 103-AA of the Act, as above, reveals that notwithstanding anything contained in the Act, if, from the fact apparent on the record and after summary enquiry as it may deem necessary, it is satisfied that, by reason of grave illegalities or violation of provisions of the Act or the Rules the poll ought to be declared void, the commission may make a declaration accordingly and by notification in the official Gazette; call upon that constituency to elect a member in the manner provided for in section 108. In the circumstances, the Commission on its subjective and rational satisfaction rightly declared the poll in question to be void and ordered for fresh elections within terms of section 103-AA of the Act. We do not find ourselves inclined to take contrary view. Accordingly, we hold that the Commission could, therefore, declare the poll held on 10-12-2005 in NA-210 Jacobabad to be void and order fresh elections to be held in the said constituency. The question No,1 is answered accordingly.
20. Regarding second question that whether respondent No,1, the Commission declared the polls in the constituency in question null and void after summary enquiry, it may be stated that on complaints of respondent No,2, the Commission examined reports called from District Returning Officer and other officers responsible for holding and supervising the election; carried out an exercise, in the light of allegations contained in the complaints, to determine the percentage of votes polled in as many as 172 polling stations in the constituency in question. Then matched the same with previous record enabling it to reach a conclusion that there was an abnormal percentage of votes cast in the bye-election and -only then found itself satisfied and observed that, "there is no history of such a high turnover in the said constituency in any general or bye-election, as is visibly evident from its order dated 21-12-2005 " .
21. It may be stated that the mode and manner of an enquiry by the Commission has not been prescribed in section 103-AA of the Act for its satisfaction on the basis of the facts apparent on the face of record that by reason of grave illegalities or violation of the provisions of the Act or the Rules the poll in any constituency ought to be declared void. However, the words used in subsection (1) of section 103-AA, are "after such summary inquiry as it (Commission) may deem necessary". Term "Inquiry" is synonymous to word "Examination". According to Webster's New World Dictionary (Third Edition) the word "Inquiry" means (1) Act of inquiring, (2) an investigation or examination and according to Chambers 21st Century Dictionary (Revised Edition) term "Inquiry" means an act or the process of asking for information, an investigation specially a formal one while the term "Summary" according to Judicial Dictionary by KJ Aiyar (13th Edition) means (i) an abridgment; (ii) Short and speedy, when qualifying a noun, Summary Trial; summary disposal; further it defines the terms "Action or proceeding" to mean that the proceeding before a court, tribunal or any authority are called summary proceeding if it is not required to follow the regular formal procedure but is authorized to follow a short and quick procedure for expeditious disposal.
22. (Mohan Lal v. Kartar Singh 1996 Punj LJ 383 at 390). The same term, according to Ballentines Law Dictionary means Immediate, Peremptory, off-hand, without a jury: provisional, statutory. The said term used in connection with legal proceedings means a short, concise and immediate proceedings. In case of Mumtazuddin Ahmed v. Sultan Jehan Begum (PLD 1981 Karachi 329) my lord Ajmal Mian, J., (as then he was) considering the above meaning of term "summary" and its use with reference to certain proceedings which have been defined in the Ballentines Law Dictionary namely, Summary abatement, summary contempt proceedings, summary conviction, summary dismissal etc.; held that perusal of the above quoted definitions of other terms referred to herein above, indicate that the word, "Summary" in a fit case may mean that an action can be taken even without giving opportunity to defend. In election matters, such as the instant case require immediate determination of issue, the summary inquiry, has even been left to the discretion of the Commission "as it may deem necessary". It is already stated in the foregoing paras. That the Commission undertook examination of reports placed before it in the light of allegations contained in the complaints of respondent No,2 and determined the percentage of votes polled in 172 polling stations in the constituency in question; matched the same with previous record enabling the Commission to reach a definite conclusion. Thus, seen in the light of above discussion, it cannot be said that the. Commission declared the polls in the constituency in question null and void without summary inquiry as envisaged in subsection (1) of section 103AA of the Act. The question stands replied accordingly. This also furnishes an answer to the contention raised by Mr. Hashmi as regards the violation of principle of natural justice as ingrained in maxim "audi aterm partem".
23. Coming to the third question, it may be stated that the petitioner has, in essence, challenged the notification dated 22-12-2005 as follows:
(a) That the operation of Notification dated 22-12-2005 be immediately suspended.
(b) That the election of the petitioner as a Returned Candidate be declared as correct and final and the Respondent No,1 ought to have issued the official Notification whereby declaring the Petitioner as successful candidate.
(c) That the uncalled for action on the part of Election Commission of Pakistan (Respondent No,1) whereby withholding the result of the bye-election held on 10th of December 2005, without providing opportunity of hearing to either the petitioner or any other contesting candidates, is hit by the principles of natural justice.
(d) Any other relief or reliefs, which this Hon'ble court may deem fit and proper.
24. Besides above, in para. 9 of this Petition, petitioner has prayed in unequivocal terms that notification dated 22-12-2005 be set aside.
25. Mr. Hashmi, learned counsel for petitioner, in his arguments, stressed that the Commission while issuing the above notification has stated no reasons for declaring the bye-election in question as null and void. Respondent No,1, the Commission in its parawise comments has, on the other hand, stated that the Commission had declared the poll as void and ordered for holding of fresh elections vide order dated 21-12-2005. In the said order detailed reasons have been set forth hence the same are not required to be mentioned in the notification. Along with comments, respondent No,1 has filed a copy of the order bearing No,8 (8)/2005-Cord dated 21-12-2005 which supports the contentions stated therein. Mr. Mehmood Alam Rizvi, learned Standing counsel while advancing his arguments expressed that there was no necessity of giving any reason in the impugned notification dated 22-12-2005 as the same happened to be a simple and formal manifestation of order dated 21-12-2005 in which elaborately highlighted reasons are already stated. We have gone through the said order and find significant force in his submissions, therefore, we do not see any substance in the contentions of Mr. Hashmi, which merit no consideration. The question No,3 is answered accordingly.
26. Coming to the cases cited by Mr. Hashmi, it may be stated that in the case of Haji Behram Khan (supra) the election of the whole constituency was not set aside as the complaint pertained to only two polling stations viz. 43 and 44 only out of 57 polling stations in the constituency, it was observed that in case where a serious violation of law or any statutory rule is established by a group of miscreants or by the supporters of a losing candidates in one or two polling stations the election of whole constituency may not be set aside if on the strength of votes cast in other polling stations and the available record a clear result is determinable. Thus, in this case circumstances are distinguishable.
27. In the case of Kunwar Khalid Youus (supra) the petitioner was aggrieved since his name was not published in the Gazette dated 20-10-2002 and ever thereafter. It appeared that a large number of allegations relating to the rigging of electoral process were made in an application submitted to respondent No,2. In this case no final order was passed under section 103AA of the Act after summary enquiry and a Division Bench refrained from expressing final opinion while in the case in hand the final order under section 103AA of the Act had already been passed.
28. In the case of Mehmood Khan Achakzai (supra) the determination of question of charges pertaining to specific polling stations and large scale of rigging by miscreants was involved however in the absence of material to support any massive rigging in the constituency affecting the outcome of the election the petition was partly allowed. Thus, in this case circumstances are different.
29. The case of Sardar Muhammad Ashiq Dogar (supra) relates to a matter where the petitioner appears to be aggrieved by an order passed by Wafaqi Mohtasib Aala who accepted the complaint filed against the petitioner. In this case the question of validity of powers exercised by the Commission within terms of section 103 AA of the Act are not involved.
30. Considering the above facts, circumstances and the case cited by learned counsel for petitioner, we are clearly of the view that this G Constitutional Petition has no substance and it is dismissed accordingly.